Epiq logo Fair Work Commission logo






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, WEDNESDAY, 24 AUGUST 2022


Continued from 06/06/2022



JUSTICE ROSS:  Any changes in the appearances?  No?


MR SHARIF:  Yes, your Honour, my name is Sharif - S-h-a-r-i-f.  (Indistinct.)  I appear with my learned friend Ms Bulut (indistinct) for the Commonwealth.


JUSTICE ROSS:  Thank you, Mr Sharif, Ms Bulut.


MS HARRISON:  Larissa Harrison on behalf of the UWU.


JUSTICE ROSS:  Thank you.  Deputy President Asbury has been unable to travel down.  I am assuming that you can see the Deputy President?  Yes?  Okay.


Are there any preliminary matters?  Is there an agreement about who's going to go first?


MR GIBIAN:  I think I was going to go first, your Honour, followed by the ANMF's representatives.




MR GIBIAN:  We had some discussion about timing, but we'll see how we travel.


JUSTICE ROSS:  Okay.  What was the outcome of the discussion?


MR GIBIAN:  The suggestion was I would - - -


JUSTICE ROSS:  I've given up trying to hold counsel to timing, but if you can let us know, that might be helpful.  We were thinking about taking a mid-morning break at some point, but, you know - - -


MR GIBIAN:  Yes.  Well, the discussion that we had was that I'd likely take most of the morning, subject to what the Commission wants to hear from me about in particular, and Mr McKenna and Mr Hartley would probably take a good deal of the afternoon.




MR GIBIAN:  Which may mean we're not using all of tomorrow, unless there's a lot of questions the Commission wants to ask and depending on how Mr Sharif - - -


JUSTICE ROSS:  Don't feel compelled to use the time available.  Look, I think as a result of the questions we've asked, the background papers, the issues are relatively clear about the parties' respective positions.  We've got some matters we want to raise with the parties on the way through.  Just in terms of next week, I'd envisage the Commonwealth would go first, then the joint employers, and then anything in response from the applicants.


MR GIBIAN:  Is that the Commonwealth then go from next week?




MR GIBIAN:  The Commonwealth are being heard from next week, is that right?


JUSTICE ROSS:  Well, the Commonwealth are putting in their answers to questions, I think, on Monday.  There may be issues arising from that, so unless – look, I'm in your – I'm content to deal with it in whatever way you want.  I'm content for you to go after the applicants, if that's convenient to you, over the course of these hearings.  There may be questions for you following your responses to questions.  For example, we're seeking the Treasury modelling.  There might be some – I mean, it's just difficult to know, that's all.  What's convenient for you?


MR SHARIF:  Your Honour, I was anticipating that what I wish to address by way of oral supplementation that which we put in writing, be very short.


JUSTICE ROSS:  Then it's convenient to do that over the course of today or tomorrow?


MR SHARIF:  Yes, but the questions that have been posted more recently, are ones that we're responding to, we're getting instructions about.  So, our position was it might make more sense that we address in one go, perhaps next Thursday, once we have put in our written responses to that.


JUSTICE ROSS:  No, that seems to make sense.  Does anyone take a different view?  No, all right.  All right, Mr Gibian?


MR GIBIAN:  Yes, thank you, your Honour.  Perhaps I could just indicate at the outset, what I propose to do by way of structure.  Obviously enough, the Commission has had the benefit of, to table these lengthy written submissions from all of the parties, and there's obviously the opportunity to digest them from the background papers that have been prepared.  What I hope to do is to concentrate on what appeared to be some areas of remaining contention, which hopefully I can elaborate upon what our position is with respect to those matters, obviously subject to any additional issues the Commission might want to raise with me.  That is obviously without prejudice to the raft of matters that we have raised in our written submissions that I would have the opportunity to address in detail today.


In broad overview, the order in which I was intending to address matters, was to firstly provide a short introduction, perhaps unnecessarily so, but to indicate broadly what our position is in terms of the way in which the Commission should approach the proceedings and the significant issues that we say arise, particularly with respect to work value reasons.  Then go to areas that seem to be in contention, dealing with the status of the consensus statement, the principles to be applied, particularly concepts of evolutionary change, the relevance of the C10 framework and the questions which have been asked about the approach in the pharmacy and the teachers' decisions.


JUSTICE ROSS:  Just with the C10 framework, it does seem on – and this might be more of a question for the joint employers, but it seems that the positions of the applicants and to some extent the Commonwealth, seem to accept that the C10 framework is relevant. It's determinative, and it's not an end point, seems to be the short descriptor of it.  I hadn't taken the joint employers to be saying it's the beginning and the end.  So, I'm not sure how much more elaboration on that issue, unless I'm wrong about the characterisation is going to help me.


I mean nuances; I accept there are differences of emphasis, but if that's the heart of it, that relative, not determinative, not a necessary beginning point and not an end point.  You have regard to obviously, the context in which the work is performed and all of the other considerations in 157.  But do we need to spend a lot more time on this?


MR GIBIAN:  I understand.  I don't disagree with what you want to see, in terms of the characterisation of the parties' position.  As your Honour says, there are differences in emphasis.  We did detect from the joint employers' submission that - - -


JUSTICE ROSS:  I think their position sort of moderated a bit, if I can use that description, over time.  But am I wrong about that, Ms Rafter?  Is that - - -


MS RAFTER:  No, your Honour.  We're (indistinct) - - - -




MS RAFTER:  (Indistinct) their description.


JUSTICE ROSS:  All right.


MR GIBIAN:  Yes.  It did seem to us from the written submissions that there did seem to be a suggestion that certainly one could start with that approach and that any departure should be, in some sense, marginal.  Now there might be a question about what that means but - - -


JUSTICE ROSS:  What that means will depend on the evidence in the case, won't it?






MR GIBIAN:  That's quite right, your Honour, and certainly from our perspective the position is that there are particular reasons in this proceeding why that approach would not be - - -


JUSTICE ROSS:  No, I understand your argument and I understand why you're putting it.




JUSTICE ROSS:  No, no, I follow that.




JUSTICE ROSS:  I understand.


MR GIBIAN:  Just proceeding with the plan as to how I propose to approach it, I was going to deal with some of the work value reasons, not going through each of the elements that we've dealt with in the submissions, but with respect to some of the elements that, perhaps more are arising from the reply submission, seem to be points of contest.  Perhaps in some respects, they are points of emphasis rather than sharp areas of evidentiary contest, but nonetheless that seemed worthy of discussion.


In so doing, I'll need to deal separately with personal care workers, both in the home care and residential care context, and it is a different approach taken, so far as the outcome that ought apply, so far as indirect care workers or the administrative in general, and to the services streams.


I did then want to say something briefly about home care.  Your Honour, the President asked right at the outset of the substantive hearing of the proceedings, a question about the basis upon which the same increase is sought with respect to residential care and home care.  We have addressed it in the written submissions but I wanted to say something about that.


Perhaps we're not entirely clear on what the employer's position is in respect of that but we don't actually detect any party is contending that there ought be different outcomes, so far as care workers are concerned in a residential context, or providing home care services.  So maybe that's not such an issue, but it having been raised, I thought it appropriate to address it briefly.


Then I was going to address briefly the expert evidence and questions that were asked about that in the background paper, particularly dealing with gender based undervaluation.


Finally, there are some issues raised with respect to the classification changes which are sought by my client, so far as the Aged Care Award is concerned, and there is some difference with the AMS proposal in that respect, as well.  If that seems like a sensible course, they're the matters that seemed to be potentially the subject of useful oral submissions.


I wasn't proposing to go at great lengths to the modern awards objective considerations, and the like, which have been dealt with in the submissions, and in the sense there doesn't seem to be great controversy about it.


If I can commence then with an introduction.  At the commencement of these proceedings, or at least the substantive hearing of these proceedings, I said that this proceeding provided an historic opportunity for the Commission to examine the work of workers in the aged care sector, both in residential care and home care.  My client's application seeks to address that issue and that challenge by seeking a 25 per cent increase in modern award wages to apply to workers in residential facilities and delivering home care to aged persons in the home.


We do emphasise, again, that the applications in a broad sense have a wide degree of support.  The unions speak with one voice on this subject.  As the Commission knows, the ANMF has made an application with respect to the Aged Care Award and also the Nursing Award, broadly seeking the same outcome, subject to some issues in relation to classification descriptors.  The UWU supports the HSU applications.


The applications also, in a general sense at least, have broad support arising from the recommendations of the Royal Commission, the support from within the stakeholder consensus statement to significant increases, and from the submissions the Commission has received from significant employer groups and a number of governments, initially the Victorian and Queensland Governments, and now the Commonwealth Government is broadly supportive of the outcome sought, albeit not making a submission as to the precise quantum of increases that ought apply to the awards.


In short, the HSU contends that the substantial increases sought are warranted for work value reasons and having regard to the considerations in the modern awards objectives and the minimum wages objectives.  That falls into broadly three categories.


Firstly, there have been significant changes in the nature of the work, skill and responsibility involved in the performance of the work and the conditions under which it has performed under the last 20 years, and that change is remarkable and fundamental.


Secondly, the increases sought are necessary, in our submission, to properly value the work, having regard to the fact that it is work of a type, the nature of which and the complexity of which has historically been overlooked, including on gender grounds, and that proper recognition of the nature of the work and skills, the complexity of the skills involved and the nature of the responsibilities and the nature of the conditions under which it is performed ought, as revealed in the evidence, properly be reflected in the rates of pay of the workers undertaking that work.


The third area is that the applications are strongly supported by the considerations within the modern awards objective and the minimum wages objectives, including because they are necessary to ensure that there is a fair and relevant safety net, particularly having regard to the funded nature of the sector and the reality of the circumstance that there is very limited capacity through enterprise bargaining or otherwise for wages to be achieved substantially departing from the modern awards minima, and that is plainly demonstrated in the evidence.


That makes plain the importance of - I'm sorry, your Honour.


JUSTICE ROSS:  I just wanted to step through the - I can't recall if this has been put explicitly to the parties, but it seems to follow that - we've certainly put that the legal steps involve being satisfied that whatever variation is proposed is justified by work value reasons.  That's under 157.  That seems to be, if I can put it, almost a gatekeeper provision.  You have to be satisfied that it's justified by work value reasons.  That gives you, as the Commonwealth puts, there's both that level of satisfaction and as to the amount of any increase.


Then you look at the modern award objective and the minimum wages objective.  I think it's common ground there's a degree of overlap between those.  Basically, what you say about the modern award objective you repeat for the minimum wages objective.


That would suggest - I'm not in any way suggesting this, but there's a legal construct, then you determine a provisional amount, if you like, based on 157, then you look at the modern award objective.  I don't see how the modern award objective could operate, on the face of it, to increase that provisional amount because it has to be justified by work value reasons.  It may operate to moderate it in whatever way, and the same could be said of the minimum wages objective, and I understand what you put about that, and we will hear from - there's a slight issue around the impact on employers and cost about the extent to which the Commonwealth support covers on costs, but at least, you know, on the material we have, a substantial part of the cost would be funded.  Quite how much, we don't know.


I am not suggesting the modern award objective would necessarily moderate it and, as either you or the ANMF refer in your final submissions, there's the statement on transcript of, I think, 26 April by the joint employers that once you've established work value, then really the moderating might go to timing rather than the extent of it.


Is that how you - you can take it if I'm asking a question of one, if you want to comment on it or if you have a different view to the answer given, you should cover it, that is the other parties, when you are on your feet.


MR GIBIAN:  Yes, your Honour.  Look, I broadly agree with that outline.  I would make maybe two observations about it.  The first is that there is a bit of a tension in the Act in the sense that, as your Honour describes it, the threshold in terms of the modern award wages is the 157(2)(a), to distinguish it from A - - -




MR GIBIAN:  - - - are justified by work value reasons, and then the additional consideration of necessary to achieve the modern awards objective in the sense that there could potentially be some sort of inconsistency between the two, particularly looking at the needs of the low paid and the like, but we agree that that seems to be the scheme that the Act proposes.


The second observation I was going to make was that there is potential overlap between the two, obviously enough, that is, matters - and it was a matter I was going to refer to briefly at least - the breadth of the considerations which are capable of falling within the concept of work value reasons is such that there is significant potential overlap between matters that are relevant to the modern awards objective and the minimum wages objective and those which would be at the very least related to the nature of the work relating to the skills and responsibilities and related particularly perhaps to the conditions or, as it's been understood, the environment under which work is performed.


JUSTICE ROSS:  In any event, the issue is sort of a theoretical legal construct.  On your submission, it doesn't arise because you say the increases you seek are justified by work value reasons and the modern award objective the minimum wages objective considerations, when you weigh them up, favour a variation of that order.




JUSTICE ROSS:  Yes, okay.


MR GIBIAN:  Yes, very much so, and the consideration I was particularly mentioning about the funded nature of the sector, look, we do think that underlines the necessity of modern award wages being set in a way which properly recognises the value of the work because there is very limited capacity for actual wages to substantially depart from or have a substantial premium above the modern award rate.  That is potentially a matter relevant to or related to the conditions under which work is performed, but we say it primarily falls under the modern award objective considerations.


As I say, the modern award objectives considerations or factors, as your Honour has identified, strongly favour the applications, including the recognition of the critical role that the aged care sector and home care have on the economy as a whole, including the participation in the workforce, the need to attract and retain sufficient skilled staff in the sector and the imperatives of addressing the needs of the low paid and the difficulties encountered by workers in the sector, as are explained in the evidence, and, as has been mentioned, at least significantly, any impact on business was said to be relevant to transitional considerations alone and perhaps is, in very substantial part at least, answered by the commitment now coming from the Commonwealth to fund increases as are awarded by the Commission.


The second introductory matter that I was going to mention briefly was just to identify, as we have in the written submissions, what appear to us to be the significant matters going to the work value reasons justifying the increases in this case.  There are eight matters initially that we have identified.


The first of those is simply the nature of the skills and responsibilities involved in the provision of aged care to aged persons both in the home and in residential settings.  This is, as we have indicated and as is demonstrated by the evidence, complex work involving emotional, intellectual and physical labour, frequently simultaneously.  It involves high degrees of discretion, judgement and advanced interpersonal and communication skills.  The range of skills is broad involving health and interrelated skills involving body work, provision of personal care to vulnerable individuals.  The ability to provide person-centred care and enabling of vulnerable persons, complex communications and interpersonal skills, as well as the type of – addressing numerous communication competencies necessary to prepare documentation and records that are increasingly required.


The second element we've referred to is the fundamental and evolutionary changes which have occurred in the characteristics of and the clear needs of residents in residential care and consumers of home care services which have occurred in the last 20 years or the last 10 years.  And as I'll come to it, it's difficult to avoid trying to quote some of these statistics, apart from anything else, because they are so remarkable.  As the Commission knows, the changes that have occurred both in government policy, have been encouraging individuals to remain independent in their home for as long as possible and change societal attitudes to that question, have resulted in fundamental changes to the characteristics of persons receiving care in residential facilities and consequently are recipients of home care in the home.


Fundamentally, the consumers of care are significantly older, they are characterised by having far greater care needs, have complex and multiple health conditions, including physical, cognitive issues.  That has an obvious impact upon the nature of the skills and the degree of responsibilities involved in that work.  I was going to address that in a little more detail in a moment, because there is a sense – again, it's perhaps a matter of nuance more than anything else, but the joint employers' submissions perhaps categorise the consequences of those changes, the broad nature of which are not in any dispute as being substantially a work intensity issue, that is the care workers particularly have to work a bit harder because they have – are dealing with residents or consumers with a higher level of care needs, or a greater combination of health challenges, rather than recognising the degree to which those fundamental changes have increased the complexity of the skills required and the degree of responsibility of those involved, and fundamentally change the nature of the work and the conditions under which it is undertaken.


The third element that we've identified is the change in the nature of the care models which are now proposed and required to be followed in the provision of care, both in residential setting and a home care setting.  That is, the contemporary approaches have moved away from institutional-like care and have mandated for the purpose of improving care and providing more appropriate care and support to aged persons, towards a person-centred approach which emphasises the independent and individuality of the residents and requires those persons involved in the care, and indeed not only the personal care, but in all aspects of the care provided in residential care setting and in a home care setting to be tailored to the needs and desires of the individuals concerned, rather than perhaps, at least, stereotypically would seem to be the case provisionally, in a uniformed institutionalised framework.


That's the case in, as a result or exemplified in the aged care standards which are presently in place for residential care, and so far as home care is concerned, are embedded in principles of consumer choice and consumer directed care.  All workers engaged in the aged care industry have been required to adapt and develop the skills necessary to provide that person-centred, or consumer-directed approach.


The fourth broad area that is evidenced from the evidence is the changes in regulatory and governance requirements which have taken place over recent years.  The substantial details are increasing but regulatory and governance arrangements imposed by providing workers involved in residential aged care and the provision of home care have, again, greatly increased, both the burden, in terms of compliance with regulatory compliance, but also the degree of accountability and responsibility involved with the work performed.


As I have mentioned, the aged care quality standards enshrines principles of dignity and choice, and the involvement of recipients of care as partners in the ongoing assessment, and planning and provision of their own care.  The other governance regimes, including the Aged Care Quality and Safety Commission rules, the National Quality Indicator Program and the Serious Incident Response Scheme, further increase the expectations in the staff and the degree of accountability and responsibility of all those in the industry.


The fifth area that we have identified is the changes that have been consequent upon the changes in workforce composition which have taken place over the last 20 years or so, particularly, and which have had substantial implications for the nature of the work performed.  The removal of mandated minimum staffing levels for nursing and allied health staff has resulted in the substantial decline in the proportion of nursing staff in both residential care, and in the provision of home care.


The consequence has been the transfer of tasks formally undertaken by nursing staff, to care workers, in particular, including observation and assessment and reporting of health concerns; pain management; administration of medications and other treatments, and increased levels of responsibility, certainly associated also with the change in the demographics and the characteristics of residents and consumers, with reduced degrees of direct supervision and a greater degree of independence in judgment and decision-making, and performance of work.


A question was asked in the most – sorry, I think it was background document 5, with respect to the proposed new legislation in relation to staffing numbers.  We have answered that and I was going to elaborate on it to some degree, but fundamentally, that legislation as we apprehended, is intended to ensure coverage in the sense that there would at least be a registered nurse available, or staff on site in a facility at all times, 24/7, rather than increasing the proportion or number of nurses generally speaking, certainly not intended to reverse the changes which have occurred consequent upon the transfer of skills, and indeed, presumably intended to improve the quality of care by every one in the facility, rather than to lead to any deskilling, as it were, of care staff.


The sixth area that we identified was the nature of the work environment.  Aged care work is often physically demanding, is often dirty and difficult work that is undertaken under time pressures, and requires accommodating complex and numerous tasks and priorities in the same period.


We have also noted the evidence that aged care workers, both in the home and a residential setting, are commonly and frequently exposed to what have been called difficult behaviours, including aggressive and unpleasant and violent conduct towards them, which both are an aspect of the conditions under which they perform work, and regrettably, probably a substantial part and unavoidable aspect of the conditions in which they perform work, but also have real skill implications in the sense of the requirement to develop the kind of de-escalation skills or communication skills and relationship skills which enable them to effectively manage circumstances of that nature in a manner which avoids risk to health or injury, and maintains the dignity of the residents and consumers involved.


The seventh area we have referred to as training and qualification requirements and the evidence indicates an increased emphasis upon aged care workers having both formal qualifications and increased provision of training in a wide range of areas associated with their work.


We emphasise in that respect also that the evidence emphasises, and indeed this includes the employer evidence, that qualifications are essential and are baseline, but this is particularly a type of work where effectiveness and competence are developed through the performance of the work, the development of the skills in developing and applying those communication, relationship and empathic skills in developing the relationships with residents that allow effective and appropriate care to be provided.  It isn't an area of work where the qualification of the end of the competence but rather the beginning.


The final broad theme that we have emphasised is changes in consumer, community and family expectations and interactions in aged care.  As acknowledged in the consensus statement, there has been an increase, perhaps progressively but also prompted by the Royal Commission and other focus upon the sector, an increase in expectations both of the consumers and residents and of families and loved ones of the nature and degree of care which is to be provided and an increase in interactions with family, having both skill implications but also the increase in accountability and responsibility involved in the performance of that work.


Finally in that respect, in addition to those elements which, broadly speaking, both emphasise the nature of the work and the skills and responsibilities involved, but also emphasise change and the fundamental and remarkable changes which have occurred in recent years.  We do emphasise, and I think all the unions do, that the increase in value of the work or consideration of the increase in value of the work must be understood in the context in which we say the Commission can be satisfied that it is likely the work has been historically undervalued or the nature of the skills and responsibilities involved in the performance of that work are of a nature which is likely to have been overlooked historically, including on gender grounds.


JUSTICE ROSS:  Can I just go to that.  Quite a bit of time and space is taken up with this point, yet you all agree that we don't need to determine the question because it's common ground that the rates haven't been properly fixed.  I'm just a bit puzzled, given that, why we spend so much time on it.  When you say it's likely, well, isn't the fact of it that we know very little about how these rates were fixed?




JUSTICE ROSS:  So, how can we make any assumption and why do we need to?  Isn't the central proposition that we have regard to the factors, the work value reasons in 157 and, on the submissions that have been put, that's related to - as a broad construct, it would include the empathetic skills, et cetera, that you have been referring to?  So, why do we need to and on what basis could we form the view that it's likely to have been undervalued by gender when we don't even know how they've arrived at rates in the first place?


MR GIBIAN:  Perhaps the way I put it is this.  It is relevant in two ways at least.  The first is - and it may be an unnecessary reminder, but a reminder to the Commission and to all of us that, as all of the expert evidence makes clear, this is a type of work which historically has been under appreciated, and there are particular reasons for that associated with the categorisation of the work as having a gendered nature and its association with unpaid work in the home as being leading to the consequence that the nature of the skills involved and the responsibilities involved have not been afforded the type of economic value that they ought do and would do if they were undertaken in other contexts.  To properly value the work now one has to keep that in mind.


JUSTICE ROSS:  Yes, but I don't take the joint employers to be saying that we shouldn't have regard to the requirement for those particularly in direct care to exercise empathy and communication skills and the like with both the clients they're dealing with and their families.  So, I don't see that issue in contest and we're obviously embarking on the task to properly fix those rates, having regard to the range of considerations.


MR GIBIAN:  Yes.  Yes, I see what you're saying, your Honour.  I guess that is true.  I don't know that the joint employers are saying that those matters would not be considered.  Obviously, we think that the evidence which has been put on by all of the experts is an important indication that it has to be properly considered as well, that is the nature of the skills and their values needs to be properly considered.


JUSTICE ROSS:  Sure.  Well, there's a difference between about weight and the consequences of it.




JUSTICE ROSS:  But not about its relevance.


MR GIBIAN:  Yes.  I agree with that, your Honour.  Perhaps if I can give by way of brief example, in that respect.  In the most recent reply submissions from the joint employers, I think it's in reply to something that the AMF had said, is about invisible skills and the spotlight approach.  There is a table setting out the descriptors so far as a tradesperson is concerned and the AIM grade within the Nurses Award and because there are – the submission which appears to be made is because there is a reference to interpersonal or communication skills in the tradesperson role, that that type of skill has been recognised and would be recognised by equivalence between the C10 rate and the AIM rate, so far as those two awards are concerned.


Obviously, in our submission to say that the nature of the communication or interpersonal skills that a tradesperson is expected to demonstrate, presumably interacting with colleagues or a supervisor or the like, is very different and not in any sense, comparable with the nature of skills required to provide care to an elderly person with dementia, and bathe that person and deal with difficult behaviours and the like and develop a relationship which allows all of that to occur.


So, although as I accept what your Honour says that there doesn't appear to be a submission that these matters are irrelevant, one has to properly consider the degree – the nature of the skill and responsibility involved and even an equivalence of those two, is an approach which would regard two context as equivalent, both in any sense, fails to take into account the nature of the work and the skills and responsibilities and the context in which it is performed.  But also, perhaps the percent of the approach of downplaying or disregarding the types of skills that are involved in care work.  I think I said there was a second point but I think that was the second point.


In any event, that was what I proposed to say in introduction to the issues.  As I say, I wasn't proposing to deal with all of those matters by way of oral address, but rather to concentrate upon those elements which seek to be in contest.  The first area in that respect that I was going to deal with was to address the status of the stakeholder consensus statement.  The Commission has asked some questions about that and has identified that as an area of dispute.


In our final submissions, we suggested the Commission should proceed in this matter on the basis that all the significant stakeholders agree, at least, that some variation, and it seems most likely a significant variation, in wages is justified by work value reasons, and it is the view of all stakeholders that the wages need to be significantly increased.


We made that submission on the basis of the stakeholder consensus statement and the submissions that have been received from various major employers and now governments, employers including Uniting Care, BaptistCare, New South Wales ATT and the IRT Group.


As to the consensus statement, there does seem to be some issue as to the way in which the Commission would take it into account for the purposes of these proceedings.


JUSTICE ROSS:  Well, I think it's plain it doesn't bind us.


MR GIBIAN:  I agree with that, your Honour.


JUSTICE ROSS:  And it's an expression of view by those who are party to it and, as you say, you canvassed the other submissions before us, but, ultimately, we have to be satisfied the increases are justified for work value reasons and wouldn't we reach that assessment or wouldn't we approach that assessment on the basis of the evidence before us rather than the opinion of particular groups?


MR GIBIAN:  I don't disagree with that in a substantial sense, but I think we would put it a little bit higher, your Honour.  Perhaps if I can emphasise a few matters about the consensus statement initially.  Firstly, as your Honours will have seen, it involves most significant stakeholder groups in the industry.  It was conducted or is a consequence of a process which was undertaken consistent with the recommendations of the Royal Commission, and it was a process facilitated by the Aged Care Workforce Industry Council to consider the very applications which are before the Commission now.  That was the context in which it was done.


It records matters that all of the stakeholder groups who participated in that process were able to agree to, both as to the outcome in a general sense of the proceedings themselves, that is, the submission that the aged care rates need to be significantly increased because of both historical undervaluation and the changes which have occurred, and also then lists 23 factual matters that it is said the Commission ought take into account in properly valuing the work of aged care workers.


In those circumstances, in our submission at least, its content, that is, it goes beyond a submission as to outcome, it is a statement of agreement of those participants at least as to the factual matters which are said to be relevant and which the Commission is asked to take into account in undertaking that task.


JUSTICE ROSS:  But the extent to which those matters have been challenged here, you say we should just ignore that, those factual matters 1 through to 23?


MR GIBIAN:  No, your Honour, I don't say the Commission ought ignore it, but it is an aspect of the material before the Commission that it can take into account both in dealing with factual matters relevant to the ultimate questions or ultimate evaluative judgment the Commission is asked to or required to make as to justified by work value reasons or achieve the modern awards objective and also as to general exercise of discretion.


We don't say that the Commission is, obviously enough, bound or would disregard matters or evidence if it is in any way inconsistent with the matters set out in the consensus statement, but we would say it is, and including the factual matters contained within the consensus statement, part of the material before the Commission, and not an insignificant part, which the Commission would take into account in considering both factual findings relevant to the views that the Commission is required to form and overall questions of discretion.


To the extent it is suggested that the consensus statement is of limited assistance, the joint employers addressed that matter in its reply at 5.3(2) to 5.4(3), I think, and in their Annexure P to their initial submissions, and to the extent that the significance of the consensus statement is downplayed, it seems to be on the basis that the negotiated position between 12 organisations at a particular point of time, and in a particular context.


We don't really understand what is put by that.  The time was for the purposes of these proceedings, and the document was finalised in December of last year.  Nothing has been put forward, that is, there's not been anything in particular put forward, to say that some mistake was made or that some relevant fundamental change has occurred with respect to any of the 23 matters, much less the overall approach to the proceedings, which is furnished(?) in the consensus statement.


What's more, the suggestion that it is negotiated is somewhat mysterious, perhaps, but as the statement makes clear, these are matters about which all of the participants agreed for the purposes of the proceedings and the Commission should approach the matter on that basis.  We think that would include the agreement of ACSA and LASA who were participants in that process.


We say that in circumstances in which they haven't come here and said that they do not, or no longer support the consensus statement.  They've not come here and said to the Commission that, as I say, some mistake was made, or some fundamental change of circumstances occurred which has forced them to reassess agreements to the matter set out in the consensus statement.  Furthermore, its contents seem to be broadly consistent with public statements of organisations or of other processes in which both organisations participated.


There were just two additional matters that I was going to address in that respect.  The first is that there is a suggestion which the Commission has noted in the joint employers' submissions, that the unions ought to have cross-examined Mr Saddler as to whether ACSA continued to adhere to the consensus statement, or in what respect it did or did not.  With respect there is no merit in that submission, at all.


The suggestion that there was some obligation upon the union to cross-examine Mr Saddler about that, in circumstances in which there was no indication by us that it did not continue to adhere to the statement of which it was a party, obviously means there was no obligation to cross-examine upon that.  That is particularly so where the issue had been raised at the outside of the substantive hearing of the proceedings, and the parties were still awaiting an answer form the joint employees as to what their position was, so far as the consensus statement is concerned.


The second additional observation I was going to make in that respect, was that the AMF suggested that it should be treated as something of an admission and the capacity to withdraw from it should be denied.  My client perhaps doesn't put it that highly.  Obviously that's a concept deriving from inter partes - - -


JUSTICE ROSS:  That's right.


MR GIBIAN:  Court litigation, of which this is clearly not a type, and is not proceeding down by pleadings or matters of that nature.




MR GIBIAN:  So, we don't think we can put it that high.  But we think that the Commission can, and should, act on the basis that the consensus statement represents the position of all of those participants, with respect to both the proceedings generally, and in particular, the 23 matters which are listed in it, and that that is, whilst not obviously not binding upon the Commission, an important consideration in assessing both the factual matters and the exercise of discretion.


I was just going to say in that respect that we are still a little unclear as to the extent to which the joint employer submissions, in fact, seek to depart from the factual matters which are contained within the consensus statement, although perhaps there is some window in respect of the additional uncontested matters that we suggest were uncontested, as it were, but to the extent that there seems to be, at least on the face of the submissions, some dissent from the propositions in the consensus statement - well, perhaps as to the overall outcome, obviously, to the extent that there is agreement that there should be significant increases, obviously there is a departure from that so far as at least outside of the particular classifications of care workers or Certificate III care workers, RNs, ENs and whatever head chef/head cook means, so there's at least a departure in that respect.


So far as the particular factual matters are concerned, it seems potentially there's submission made which depart from paragraph 5, which deals with the clustered domestic and household models of care growing in prevalence, paragraph 13, to the extent it refers to demands being changeable, at least - - -


JUSTICE ROSS:  Perhaps the easiest way to deal with it is to ask the joint employers when they come to make their oral submissions to identify any areas rather than - - -


MR GIBIAN:  Speculating.


JUSTICE ROSS:  Yes, speculating.


MR GIBIAN:  Yes, I understand.  Well, if I can just do two additional areas of speculation because they were partly matters that we were asked to address - - -




MR GIBIAN:  - - - in the most recent background document 8. It appears to go to paragraph 19, which deals with home care workers operating with minimal supervision, and that the increasing acuity and dependency of recipients of aged care services means the workers are exercising more independent judgment, problem solving - independent decision making, I should say - problem solving and judgment, and paragraph 22, which deals with what are described as indirect care support services, the food services, cleaning and administrative areas, which are subject of a different submission.  Those seem to us to be the areas in respect of which there's, again perhaps only at the margins, but some form of departure.


The next area I was going to address, and I think I'll try and abbreviate it to some degree given your Honour's comments as to the principles and the extent to which there is debate about it, as the members of the Commission have seen, there is a degree of weight in the submissions as to the proper approach to be adopted to variation in modern award rates of pay.  Perhaps, at the end of the day, there isn't a huge amount of disagreement as to the principles to be applied, which is perhaps unsurprising and, in a general sense, the matters have been considered in the pharmacy and the teachers' decisions as well as the equal remuneration matter in 2015, and at a fundamental level, a lot of the principles are set.


There were perhaps four matters I was just going to touch upon briefly.  The first concerns the concept of evolutionary or progressive change; the second as to whether the matters in 157(2A) are exhaustive; thirdly, as to the Pharmacists, Teachers and the ACT Child Care case, and, finally, I was just going to say something briefly about attraction and retention, which I think is a question addressed to the ANMF, but I just wanted to make one point about.


Firstly then, as to the concept of evolutionary change is relied upon in the joint employers' submissions to some substantial degree, that is perhaps particularly with respect to the administrative and general services stream and the food services stream, it is suggested that elements of the work which are relied upon by my client represent no more than that the work has evolved over time and therefore in its submission at least, it ought not play in part in or could not provide a justification for a variation on award wages for work value reasons.


As the Commission will apprehend, we disagree with the characterisation of the matters to which we've referred as being evolutionary or progressive change.  But we do also say that that form of categorisation is not, any longer at least, a useful frame of reference for the Commission's consideration.  Whilst the concept of work value reasons, as is now found in section 157, contains no doubt a nod to the approach which has been adopted historically under the rate fixing principles under earlier the statutory regimes.


The Commission has made clear that the statutory context in the current Act is different.  In particular that work value reasons is a broad term and that the Commission is no longer constrained by concept of change from fixed date employment or a threshold requirement of a significant net addition to work requirements.  All that is required is justification by reference to a matter at least related to the nature of the work, the skills and responsibilities involved or the conditions under which it is performed.  It could be an evolutionary change; it could not have anything to do with change at all.  All it needs to be satisfied for the Commission to vary modern award wages is that the Commission is satisfied that the reasons as assessed by the Commission justify a variation for work value reasons.


The reference and the repeated reliance upon assertions as to whether or not changes which have occurred are revolutionary or progressive or otherwise, do not engage with the task of the Commission under section 157(2A) or the definition of, or the explanation of work value reasons in 157(2A).  All that needs to be satisfied under those provisions is that the reasons in the Commission's view justify the amount employees should be paid for doing a particular type of work, as the text of section 157(2A) suggests.


It is put in the reply submissions by the joint employer that what we've said in that respect means any change at all would require a reassessment of modern award wages and that perhaps some sort of floodgate arguments, or common sense argument, but that's not the consequence.  The consequence is only that the threshold is justified by work value reasons.  That is, that the Commission must be satisfied that any work value reason referred to, or any matter related to the nature of the work, skills and responsibilities and conditions under which it is performed, is such as to justify a variation of modern award wages and attempts to disregard matters because they are alleged to be evolutionary or otherwise is a departure from the current statutory task of the Commission.


JUSTICE ROSS:  There's no requirement as there was under the wage fixing principles in operation at the time of the child care case, that there be a significant net addition, but further, such as to warrant the creation of a new classification.






MR GIBIAN:  I should perhaps have completed the phrase, and as your Honour will know, that was in place for the particular reason, initially at least, endeavouring to produce some harmony between awards and constraining departures from that under the statutory context that existed at that time and that the references, and we've responded to it in more detail in writing, but the various – the summary provided in the aged care – sorry, in the ACT Child Care case of the various considerations which had been considered historically in terms of assessing work value change.  A good number of them are infected by that concept, that is - perhaps 'infected' is the wrong word, influenced by the concept of a requirement of a significant and addition to work requirements, justifying the creation of a new classification, and one of those is the approach of indicating that evolutionary or progressive change is unlikely to be sufficient.


The next point that I was going to mention, briefly, is a question has been asked as to whether section 167(2A) and the explanation provided as to what constitutes work value reasons is exhaustive and some efforts have been made to make submissions in that respect.


The short point, initially, might be that it probably doesn't matter terribly much in the present case and probably another matter that probably doesn't need to detain the Commission for any length of time.  That's because it is accepted, I think by everyone, that the explanation of the concept of work value reasons in subsection (2A) is extremely broad, both because the concepts that are referred to there are broad.  That is, the nature of the work, the skills and responsibility involved in the work and the conditions under which the work is done, are, themselves, very broad concepts, but also because the introductory words to the subsection indicate that the reasons, the work value reasons, are any reasons justifying the amount the employee should be paid for doing a particular kind of work, being reasons related to any of those three matters and that the concept of 'related to' is a broad one.  There doesn't seem, to us, to be anything in the proceedings which would not fall within the category of being related to the nature of the work, the skill and responsibility or the conditions under which it's done.


Having said that, we do say the better approach is that the subsection is intended to clarify rather than limit this.  That's indicative or indicated by the fact that the reasons need only be related to the extremely broad subsections, rather than being confined by them.


Although there's some difference to the drafting in section 134, the Commission, in the background paper, has referred to the approach and the penalty rates matter in the Full Court, where a similar argument was advanced, with respect to the Modern Awards objectives.  We think that, broadly, the same approach would be adopted here, in the sense that  we don't read these provisions as intended to constrain the types of matters that the Commission might consider are relevant to an assessment as to whether there are work value reasons justifying variation in Modern Award wages.


The third matter then I was going to address in this respect concerns the questions that have been asked about the consistency between the decisions in the pharmacists matter, and the teachers matter and the ACT Child Care, or the approach to the ACT - - -


JUSTICE ROSS:  Just before you go to that, it might be convenient if I raise with the Commonwealth that they can take on notice that can take on notice.  In the Commonwealth submission, I wouldn't characterise it as having a bet each way, but you accept that the ANMF submission that 157(2A) is a code insofar as that's where the matter is directly dealt with.  You say, later in your submissions, that we'd also be required to take into account the objects of the Act in interpreting (2A) because that's a contextual matter.


Well, assuming that's right, what does that mean, in a practical sense?  So if you can take that on notice and deal with that in due course.  Thanks, Mr Schuler.


Sorry, Mr Gibian, go on.  You were talking about the tension between teachers and pharmacists.


MR GIBIAN:  Yes.  I was going to go to the decisions briefly, but unless the Commission – I notice Deputy President Asbury is not here but – physically, at least – I'm perhaps in the Commission's hands.  We do have copies that I can provide to those members of the Bench who are here, or I can simply describe in overview, the submissions we make about it.


I think the members of the Bench are familiar with the decisions.




MR GIBIAN:  So maybe it will be sufficient if I describe our position.




MR GIBIAN:  And then perhaps just for the record I can give some references to those parts of the decisions which are relevant.


JUSTICE ROSS:  Certainly.


MR GIBIAN:  Before coming to the decisions, particularly, the starting position is that the broad nature of the judgment that the Commission is called upon to make in proceedings of this type, is emphasised by the breadth of the matters that potentially fall within the subsection 2A, and in that respect the nature of the matters that may justify variation to the modern award wages is extremely broad and the Commission is required to consider any matter which falls within that scope, and cannot disregard any.


In that context we think there is no justification for the assumption, and I'm noting what the President said at the outset as to the joint employers' position, that it is necessary or appropriate for the Commission to set rates in a manner which involves close adherence to what's been referred to in the submissions as the C10 framework.  That is certainly not the approach which is dictated by the authorities, properly understood.


Can I start with the ACT Childcare decision.  The Commission asked a question about the statutory context in that respect, that everyone accepted as obviously correct that that matter was decided in a different statutory context.  The statutory context in which it was decided was made plain in the passages which commence at around paragraph 142 in that decision, particularly at 143, the then statutory provision requiring, particularly section 88B(3)(a), as it then was, that in performing the functions, the Commission was required to have regard to a number of matters, including the need for alterations in wage relativise between awards to be based on skill, responsibility and conditions upon which work is to be performed, and that was particularly noted as an important consideration of paragraph 153, as being intended to preserve the structure of stable and equitable relativities between awards as to that despite the minimum rates - - -


JUSTICE ROSS:  I'm sorry, what was that paragraph?


MR GIBIAN:  152.


JUSTICE ROSS:  Thank you.


MR GIBIAN:  By the minimum rates process which commenced – it would be the 1989, national wage decision.  And that immediately precedes the three step approach at paragraph 155, which the Commission has obviously extracted in the background papers, and informed it.




MR GIBIAN:  Having the three step process that was described at 155, and I don't need to repeat, the additional consideration I was just going to mention arising from that is that even with that type of approach dictated by the statutory context that existed at that time, was not some kind of straight jacket.


That's made clear by the reference, particularly at paragraph 172 where the Full Bench there made clear that a comparison of qualifications required at particular classification levels with those awards which have been adjusted in accordance with the minimum rates adjustment process, is one method of establishing the proper effects of minimum rates.  It wasn't suggesting that that was the only method, even adopting the processes that were in place at that time of establishing properly set minimum rates pursuant to that process, and it's then said that, in that context, the AQF is relevant, that is, it's a relevant but again not determinative or the sole matter that would be considered in that process.


All of that was said, of course, in the context of a case which was - at paragraph 181, it was noted that the central feature of which was alignment of the Child Care Certificate III and diploma levels in the Victorian and ACT awards.


JUSTICE ROSS:  My recollection is that was the only thing the case was about.


MR GIBIAN:  Exactly.


JUSTICE ROSS:  There was no evidence about the nature of the work or anything of that nature.


MR GIBIAN:  Yes, so the adjustment was sought on that basis.




MR GIBIAN:  And that's the context in which it was done.  Similar observations were made at 181 to 183 and again in the conclusionary parts of the decision at 372 to 373 in which it was observed that - well, the submission was considered - the employer's submission was considered that a rate should be set which was lower than would be produced by the three-step process, and the conclusion of the Commission was that:


Contrary to the employer's submissions, the conditions under which the work of child care workers is performed do not warrant a lower rate of pay than that received by employees at the same AQF level in other awards.  Indeed, if anything, the opposite is the case.  Child care work is demanding, stressful and intrinsically important to the public interest.


Indeed, as your Honour observes, it seems the case - and your Honour knows much more than me - but it seems the case was - - -


JUSTICE ROSS:  It was a long time ago, Mr Gibian.


MR GIBIAN:  Indeed.  Was approached or brought on the particular basis which didn't involve detailed considerations of the nature of the work and the conditions under which it was performed.  What the Commission is not into there is those matters might lead to some different outcome - - -




MR GIBIAN:  - - - albeit by way of addressing a submission the lower rate would be set.


Secondly, coming to the Pharmacist's case, obviously there is a long recitation commencing at paragraph 164, as noted in the background documents, of the history of work value type considerations under previous statutory regimes.  In particular, the three-step process derived from the ACT Child Care case was extracted at paragraph - sorry, I think I gave the wrong paragraph number a moment ago - the discussion of the history, I'm sorry, commences around 131.  At 159,  paragraph 155 of the ACT Child Care case is set out.  It's set out in a manner which is introduced as described in the requirements for the fixation of minimum rates which flowed from the pay rates review.  That's the basis upon which it's set out in the Pharmacy decision.


There is then the summary of the principles or the approach under what was then section 156(3) and (4) from paragraph 163 and following, including reference to the fact at 164 that there's a broad evaluative judgment to be made as to whether or not the Commission is satisfied that the variation is justified by the prescribed type of reasons, at 165, as to the breadth of the concept of 'related to' as used in what was then subsection 4 of section 166, the departure from the requirement that there be a fixed date and point, and at 167, the observation that the present legislation does not incorporate the test of a significant and addition to work requirements to warrant the creation of a new classification.


Then the following sentence appears:


In substance, section 156(3) and (4) leave it to the Commission to exercise a broad and relatively unconstrained judgment as to what may constitute work value reasons, justifying an adjustment of minimum rates of pay similar to the position that applied prior to the establishment of wage fixing principles in 1975.


That statement is obviously inconsistent with at least as more strictly read, a submission which requires some mechanistic approach in any particular case.  It is in that context only that at 168 there's an observation that it would be open to the Commission to take into account some aspects of what was considered in part work value cases, albeit, there's reference not to the three step process in the ACT Child care, but rather to the list of considerations at paragraph 190.


Then there is obviously a consideration of the claims that were advanced, it goes on for some period of time and as has been observed in the background paper, I'm sorry before coming to that, at 185 an acceptance that work value claims, or an increase on work value grounds had been established on various identified grounds.  Then as is noted in the background paper at 197, the observation is made that the outcome that had been decided upon appeared to be inconsistent with the approach to the fixation of minimum award rates in the ACT Child Care decision, but it's observed that that was under a different statutory regime and is not treated as an impediment to that outcome.


Finally, the Teachers decision re Education Union, can I note that so far as the approach to be adopted at paragraph 560, the Full Bench referred to the Pharmacist decision and endorsed the recitation of the history of work value considerations provided in the Pharmacist decision – sorry, just a moment.  I'm sorry, just going back slightly, just to give the reference, at paragraph 538 there was reference to the Pharmacist decision.


JUSTICE ROSS:  This is in Teachers?


MR GIBIAN:  Yes, in Teachers, at 538, and endorsement of the proposition that all that is required for the purposes of what is now section 157(2) is that a variation of minimum award wages is justified by work value reasons and that involves a judgment of broad and unconstrained nature.  That it may include, but is not confined to whether the value of employees has changed since a state in point in time and makes then to wider considerations for the work of the employees in question has been undervalued.  That undervaluation in the broad sense, may arise from what award rates are paid for the relevant class of employees have never been fixed on a proper assessment of their work value.


So, in that respect, we think there is an entire endorsement of the broad and unconstrained nature of the judgment the Commission makes in a decision of this type.


Having considered the evidence and the claims that were advised, the Commission was satisfied that a work value case had been established.  It's at both 605 and 645 there's a conclusion in similar terms. There is a reference in both of those paragraphs to 'a significant net addition', we don't read that as suggesting that is a threshold requirement to be met.  Indeed, it would be consistent with what was said earlier in the case, earlier in the decision, if that were the case.


JUSTICE ROSS:  So it's not advanced as a jurisdictional point, it's advanced as - on the facts of this case there was a significant net addition.


MR GIBIAN:  Exactly.  As I say, it will be inconsistent with what was said in the Pharmacy decision, which was endorsed, expressly, earlier in the teachers case.


There is then, following from paragraph 646 and following, consideration of what the appropriate adjustment ought be and, without paraphrasing it too briefly, a rejection of the structure and quantum of what was sought by the IEU as not properly reflecting a consideration of the work value that had been found.


Then the part that seems to have caused the perception of some tension between that case and the pharmacy decision, at paragraph 653, having said that the nature of the claims that had been, or the structure of the claims that have been brought by the IEU, in terms of amount, were not appropriate.  They go on, at 653 to - the Full Bench goes on, at 653 to say:


We consider the correct approach is to fix wages, in accordance with the principles stated in the ACT Child Care decision.


Then, as set out earlier:


This requires identifying a clear classification or classifications and aligning the classifications in the metal industry structure.


And they go on.  We don't read that, particularly in the context of the earlier observations about broad and unconstrained discretion, as being anything other than a statement as to how it was appropriate to resolve that case and to set the rates in that case.  It could not be said, and cannot be sensibly understood as suggesting that that is the required approach in any particular case.  It is an approach which might be appropriate in a particular case, depending upon the nature of the evidence which was disclosed and the outcome that would be produced by the application of the three steps in the ACT Child Care decision.


If understood in that way, it avoids any tension and we think that's how it's properly understood, particularly given the express endorsement of the approach in the pharmacists decision earlier on and the teachers decision.


In short, in that context, we think that the use of the C10 framework, in the way in which the joint employers, at least in a stricter reading of their submissions, suggest, is something that the Commission may adopt in a particular case.  It may be appropriate because the work value reasons that are relied upon, as was the case in the ACT Child Care case, as justifying increases or variations in Modern Award wages are a disparity on qualification type rounds.  That might be an approach that is available in a particular case, if that is the nature of the case which is brought.  Or and only if - if work value reasons of another nature are found to justify a variation of Modern Award wages, only if the outcome of that process were such as to, in the view of the Commission, provide for fair wages which properly reflect the value of the work performed.


That is the extent to which use could be made of it, particularly if, and to some degree, and again there's been a moderation, perhaps, in the joint employees submissions, in this respect, to the extent that there is reliance upon qualification level, as either the only or, at least, the most significant element in identifying relativity between awards.


That approach would, if adopted strictly, or even if requiring close adherence to it, fail to undertake the statutory tasks that the Commission is given, under section 157(2A), in that it would not and could not properly capture matters which fall within the potential of being work value reasons, including the nature of the responsibilities involved and the conditions under which work is performed.


I think I was going to give the example, at that point, to the reply submissions, the joint employee's reply submissions, reference to the nature of interpersonal skills in a tradesperson and manufacturing context, compared to the circumstances of an aged care working providing care to a vulnerable older person, as being indicative of the type of thing that would be lost by a simplistic approach, or an approach which, at least - which even required close adherence to that approach, much less the fact that it would overlook the broad range of considerations that are attached to the conditions under which the work is performed.


Fundamentally, the Act now requires the Commission to consider whether variation is justified, on work value reasons, by reference to any matter related to the nature of the work, and the skill and responsibility involved, or the conditions under which the work is being done.  We don't think that the type of approach that the joint employers suggest is available here, particularly having regard to the fundamental differences between the type of work involved in an aged care context and in a manufacturing context, that a qualifications based analysis would fail to take into account the conditions under which work is performed or the responsibilities involved.


Using that approach as a starting or finishing point, or even treating it as a limiting factor would not give proper weight to, or allow proper consideration to be given to the degree of change which has occurred, with respect to work value reasons, over the last 20 years or so and fail, as I've said, to undertake the task that is required by the Commission.


We have, and perhaps it arises from some of the more recent questions in the background document 2, we would observe that, at least even as a starting point, the approach that is proposed by the joint employer would seem to us to produce what would likely be an absurd outcome in the present proceedings, given that the evidence which is before the Commission, it seems it would, and this seems to be embraced, result in a 35 per cent increase for registered nurses, but reductions in pay for the lower levels of - before one comes to whether any marginal change ought be considered, a reduction in the rates of pay for those care workers, at least up to level 3, in the Aged Care Award, that seems to be what was put in the initial submissions, or said to be the outcome of the approach that the joint employers propose.


Given the acknowledged nature of the change and the acknowledge made for the work involved by those workers, that is obviously an outcome which would not properly give consideration to the work value reasons which emerge from the evidence.


JUSTICE ROSS:  Perhaps, Ms Rafter, in due course you can clarify what the implication would be of applying the C10 framework to the lower levels for personal care workers in this award.


MS RAFTER:  Yes, sir.


MR GIBIAN:  As we understand it, even with respect to the higher levels of the care worker classifications in the Aged Care Award, it would be maybe some slight increase that seems to be what is suggested.


In those circumstances, the preliminary view of the Commission - as the preliminary view of the Commission expressed suggests, the Commission in this task should value the work of the relevant employees and attach an appropriate rate to it.  In paragraph 35 of our final submissions, we refer to a New South Wales decision in Crown Employees and Scientific Officers Award from 1962 which whether helpfully or unhelpfully, described that task, the task of valuing work as involving:


As being a function not limited to the ascertainment of the market value or absolute value discoverable by other means.  The function truly understood is to consider all relevant material including such as will guide a fair evaluation, bearing in mind the contentions of the parties to the arbitration and in light of these matters to fix an amount to which the Tribunal deems to be just and reasonable in the circumstances of the case.


And that's the approach.


The only additional matters, so far as principles is concerned that I was going to refer to is that a question was asked of the ANMF in relation to attraction and retention as to whether it was – dealing in concerns in relation to attracting and retaining appropriate staff in the sector, were relevant to work value.  We accepted that the approach of the Commission and indeed industrial tribunals was not to regard attraction in the sense of what was needed to be paid by employers to attract staff as ordinarily relevant to work value assessments.


I did just want to observe, we think there is some value in the ANMF's response to that which was I think, to accept that as a basic proposition, but to say that the difficult – the evidence as to the difficulties in attracting and retention in aged care in particular, could be taken to be a consideration that the Commission would regard as supporting the view that the work is not appropriately valued.  That there is a perception in the community that the work is harder and more difficult and more exacting than the wages that are being paid for it are recognised.


In that respect, we note Mr Hayes' evidence when he was cross-examined about why he thought the aged care workers were underpaid and he indicated that he regarded them as underpaid compared to someone working at Bunnings, someone working at the pub, someone twisting a sign on the road.  It's one thing in my mind, you know, drop a can, you know, when you're stacking shelves at Woolies.  It's another to drop a person, fracture a hip and they might die.  That is that there is a common perception, perhaps which is contributing to attraction and retention problems that a recognition of the nature of the work is not appropriately valued compared to other elements.  We don't say it's a major consideration, but we do express our support for that proposition.


Unless if there's anything I can further assist the Commission with, that was what I proposed to say, just to an elaboration of the principle's arguments to the extent that there are disputes about it.  I was going to go on to deal with some elements of the work value considerations that we rely upon.  Again, I emphasise that I wasn't going to do so, or attempt to do so in a comprehensive way, but rather seeking to identify some elements in which again, perhaps nuance rather than sharp distinction.  There appear to be some disagreement between the submissions.


Can I firstly deal with personal care reviews.  It's accepted, as we apprehend it, that at least with to Certificate III, care workers, there are work value reasons justifying increasing wages, albeit, no indication of quantum has been given in the joint employers' submissions.  There is perhaps some lack of clarity, but we had understood that as to extend to home care workers as well, who are generally Certificate III qualified according to the evidence, but perhaps that's a matter that can be clarified as well.


The degree to which there is any disagreement as to the work value considerations that justify that conclusion is again not entirely clear, but there did seem to be some areas of potential distinction.


Firstly, as I foreshadowed, there appears to be a submission - it's perhaps contained in the joint employers' initial final submissions at 9.17 - that the changes in the characteristics and demographics and care needs of residents and consumers of aged care was a matter going to work intensity rather than having more broader effects upon the work of workers in the sector.


Perhaps as an initial aside, under the current statutory regime, intensity itself might be a matter related to the nature of the work and the conditions under which it is done, so it is not out of the picture, as it were, and, in itself, work intensity is a relevant consideration which may justify a variation in modern award minimum wages, but obviously the Commission will understand we would say that the remarkable and dramatic changes which have occurred in resident characteristics and care needs, resident and consumer characteristics and care needs, are such as to cause or have a radical impact upon the skills and responsibilities of the work as well as matters of intensity.


As to the nature of the changes in the characteristics of residents and consumers, there were two matters.  I just want to emphasise that the causes are perhaps at two levels.  Those that are perhaps easiest to understand are that people are going into residential aged care later, if at all.  That means that the residents in aged care are very substantially older, generally speaking will have entered residential care because they have extreme complex conditions which cannot be managed by them in the home, and the consequence is both on the nature of the residents and their care needs in residential facilities, but also those who are receiving home care from home in the sense that if there's a delay in entering residential care, then the characteristics of those receiving home care services are also substantially frailer or older with more complex needs that was historically the case.


So far as residential care is concerned, there is also evidence that - trying to put it sensibly - it's happening at the other end as well, that is, people are not going to hospital at times of end of life either.  That is, people will go to - and this is a change consequence upon changes in hospital techniques as well - that is, generally the objective now is to keep people in hospital for as short a period of time as possible.  That's not limited to aged care, it's in all types of hospital type treatment.  No doubt there's economics in that, but it's also better for everyone not to be in hospital for any longer than is absolutely necessary.


The consequence of that in an aged care context is that aged persons are not going to hospital when they are sick, unless it is a really critical event which requires intensive care.  That has an obvious consequence upon the nature of the conditions and the complexity of the conditions being managed in a residential facility, including the increase in palliative care and in the end of life care being provided in that kind of context.  So, the effects are coming from both directions, as it were.


We have set out some of the evidence in that respect from paragraph 95 of our final submissions.  As I said, it is, in some respects, difficult to resist the temptation to quote some of the statistics just because they are so remarkable in their number.  Professor Maher's report, for example, notes that the information from the Australian Institute of Health and Welfare, noting that between 2009 and 2019, residents in residential care with complex health needs quadrupled from 13 to 52 per cent; those with cognitive and behavioural needs from 36 to 64 per cent; those needing support carrying out the activities of daily living from 33 to 60 per cent; those with high care needs in all domains of activities of daily living, and cognitive of their behaviour and complex health needs from 4 per cent to 31 per cent.  So that the change has been extraordinarily remarkable in a very short period of time, comparatively speaking.


We also have noted the degree to which, and it was something I was going to come to separately, as well, the degree to which there are cognitive mental health and behavioural conditions of residents in residential care, initially, now 55 per cent of whom have a diagnosis of dementia.


Particularly, Professor Eagar's report contains information in relation to the proportions of residents exhibiting symptoms of agitation, suffering from symptoms of depression or symptoms of irritability, being very large proportions of the populations.  We also note, as I've said, that the increases in the age, frailty and health and care needs of recipients of home care have also been extremely substantial for the same obvious reasons that I've explained.


The point of this submission is that the impact of those remarkable changes has not been limited to working harder, in the sense that care workers and workers in aged care, generally speaking are working harder but there is a real impact upon skills involved and the responsibilities of the work.  That is apparent for a number of different reasons.


Firstly, obviously enough, there are now persons who would previously have been treated in hospital, who are now being cared for in residential care.  The consequence is that aged care workers are dealing with residents with conditions and requiring treatments that they have never seen before, at all.


So it's not that there were a smaller number of residents with these care needs in the past and there are now a large number, it's not simply that.  It is also that there are conditions and treatments which require a greater range of medications, equipment and care than was ever the case before.


We note in that respect at paragraph 104 of our final written submissions, evidence from Ms Boxsell who noted that residents now come with more complex needs.  Recently we had residents with feeding tubes.  When we first started receiving residents with this type of care, we had no idea how to work the machines.  We had to learn how to provide that care and to look after residents.  As I say, residents are exhibiting conditions which were not present at all in the past.


Secondly, personal care workers, and indeed all of the workers within a residential context, and care workers in a home context are dealing with multiple individuals, each with complex care needs, resulting in both an increase in the complexity of the work and the skills required to juggle the demands of multiple residents, each with complex needs and the responsibility involved in ensuring that appropriate care can be provided to all of them.


Just briefly, in that respect we've set out, again in paragraph 104 Ms Boxsell notes that the high care residents would need more observation and attention, and have difficulties with mobility, behaviours, nutrition and toileting which are much more complex and have to be juggled.  It extends to impacts on other types of workers within an aged care context.


At paragraph 105 of the final submissions we refer to Mr Kent, a chef, who discusses the complexities of ensuring that the correct meals are prepared for each of the individual resident's needs, and the serious consequences of choking or worse, if errors were to occur.


Thirdly, the complexity of the needs of residents, particularly those with cognitive issues, dementia or mental health disorders have astronomically increased the incidence of aggressive or behavioural issues which has become part of the day-to-day work.  As I've indicated, Professor Eagar's report contains studies resulting indicating that by 2019 some 43 per cent of residents in residential care exhibit symptoms of agitation, 35 per cent are suffering from depression, 35 per cent exhibiting symptoms of irritability.


The experience of workers, in that respect, we've summarised at paragraphs 272 to 301 of our final submissions.  The lay witness report, prepared by O'Neill C, also sets out that - it summarises evidence to that effect, at paragraphs 529 to 558.


I'm not sure what time your Honour was proposing to have a morning tea break, but - - -


JUSTICE ROSS:  Are you moving to another topic?


MR GIBIAN:  I was.


JUSTICE ROSS:  All right, we'll adjourn for 15 minutes.

SHORT ADJOURNMENT                                                                   [11.21 AM]

RESUMED                                                                                             [11.37 AM]




MR GIBIAN:  Yes, thank you, your Honour.  The next matter relevant to the work value reasons about which there seems to be some issue arising from the submissions, particularly the joint employers' reply submissions at 2.48 to 2.52 refer to or assert that our submissions give insufficient weight or disregard the role of the registered nurse or the care manager in care planning and, as a result, elevate the role of particularly personal care workers beyond their defined competence.


Again, it's not entirely clear to us at least what is sought to be made of that, but the submission appears to be that personal care workers are working in accordance with a plan and, in some sense, the degree of discretion that they have or judgment that is required to be exercised is for that reason somewhat less than we have suggested in our submissions.  Can I say three things about that proposition, if that is the way it is put.


The first is that, obviously enough, the care plans have a limited degree of prescription.  There was an example, which I think people are content to treat as typical enough, at page 15884 of the digital hearing book.  It's a relatively detailed document.  It contains information in relation to the family, the personal needs and desires and goals of the individual and their medications and treatments, feeding, washing and toileting requirements, or at least customary ones.


However, whilst it provides information in relation to the needs of the resident, it is not a prescription self-evidently as to how work is to go on any particular day.  Clearly the carer is the person who is tasked with dealing with the needs of the resident on a day to day basis and exercising discretion and judgment in so doing and, indeed, the proposition that there's some kind of strict process is both inconsistent with common sense or reality, but also with the philosophy of care, which is sought to be provided, that is, which is individual, which takes into account the day-to-day desires and needs of the resident, in a flexible, individual, and sensitive way.


Secondly, the evidence indicated that whilst, generally speaking, the care plans were initially prepared by the registered nurse, in the case of residential care, or someone in a care manager type role in home care, the care workers, personal care workers or home care workers, were frequently involved - not infrequently involved in initial intake and formulation of plans, particularly experienced carers were involved in that process.  And, perhaps, more critically, the process of developing and varying the plans over time was one which, primarily, relied - albeit supervised by the registered nurse, in a residential care context, primarily utilised and relied upon the observations and records that the care worker prepared, the progress notes and the like, in the course of dealing with the resident.


Self-evidently, the care worker is the person, and as acknowledged by everyone, the person who has the most direct, frequent relationship with the resident, the one who knows what their individual needs and desires are, the ones who are there to observe if they are acting differently or if there does seem to be some issue with their, either, condition or the care with which they are being provided.  It is the personal care worker who is, albeit supervised, albeit subject to the overall supervision, the person who most contributes to the way in which the care plan develops over time and is adapted to the changing needs and the changing desires of the individual, consistent with the provision of person-directed care.


Thirdly, the implementation of more detailed and rigorous care planning is obviously part of an intention to improve the standard of care being provided to persons, both in residential care and in a home care setting, such that the work being performed is more accountable and responsible.  That is, it is intended to ensure that the care is being provided in accordance with the needs and desires of the individual resident or consumer.  In fact, the burden on the care worker to ensure that that is done to, albeit in a flexible and individual way, ensure that the comprehensive and detailed plans are executed, in fact increases the burden and skills and the degree of accountability and responsibility of the work performed by the care workers.  So it is, indeed, the opposite, we would submit, of the tenor of the submissions we understand it is put by the joint employers submissions.


The third area is, and I wasn't going to say too much about this, there's a great deal of evidence references I could go to, but I don't think that's necessary to do so at present, is that there is a suggestion, in the joint employers' submissions, that care work, in particular, perhaps particularly in a residential care context, is, in some respects at least, has some type of routine attached to it.  That is, people get up in the morning and are bathed.  They are then fed or have breakfast.  There's some kind of activity, then they have lunch - - -


JUSTICE ROSS:  Is this the cadence of the day type observation?


MR GIBIAN:  Yes, exactly.


Now, again, I'm not sure precisely what is sought to be made from that but, perhaps, the inference one draws is perhaps the contention is that one day is much like the other and the degree that the worker can do the same thing every day, exercising the same skills and that is a loss, perhaps, upon the degree of skill and the nature of the responsibility involved in the work, if it has a certain commonality from day-to-day.


As I say, there are a great many of evidence references that one could go to in that respect, but, plainly, the evidence demonstrates that the opposite is the case, that this is highly changeable work from day-to-day.  That is both because of obvious and practical matters.  That is, the nature of the date is inherently dynamic, unpredictable and consequently changeable, having regard to the, not just potential, the actuality on a day to day basis of interruption by occurrences such as a fall, or an incontinence issue or a behavioural problem, a behavioural issue arising with a particular resident.  A concept that one can simply get the residents up in order, bathe them and then they're all standing in a line, lining up for breakfast, both defies common sense and is utterly inconsistent with the entirety of the evidence.  Now, I don't want to mischaracterise the evidence to – the submission, sorry, too bluntly, but it does have that kind of air to it, with the greatest of respect.


The second observation with making that respect, is that that proposition is also inconsistent with what is the philosophy of care, that is, it is person centred and individual and as the aged care quality standards emphasise, care is to be provided in a manner which accommodates the individual choice, dignity and desires of the resident, not merely in some global sense, but in a day to day way.  That is, if the resident wants to do something different today, then they are – their individuality, their dignity and choice demands that that be respected and not that they be programmed into some kind of pre-set schedule with military precision, so that that dictates the daily routine type submission, with the greatest respect, is utterly inconsistent both with the evidence, but also the care philosophy which is to be adopted.


The next issue I was going to address, and I probably should have covered this in an introductory part to some degree is the workforce composition issue.  We do think it is a significant issue in terms of the work, particularly of personal care workers in a residential context.  It also influences the home care context as well.  The changes in workforce composition have been very substantial.  the consequence has been a transfer of functions and an increase in responsibility for care workers from nursing staff.  There are two, or a number of causes for that.  It is both a numbers issue, in the sense that there are simply less nursing staff, or less allied health staff particularly in residential care, but also involved in the provision of home care.


The other aspect of it, as is acknowledged in the evidence is that – and this is a work value reason, work relevant, as I understand it's put, relevant to registered nurses, particularly, is that there is an increase in burden upon registered nurses to deal with regulatory matters, governance issues which diverts them, no doubt in many respects for very good reasons, but diverts them away from direct provision of personal care or in any way direct supervision of the provision of personal care by personal care workers involving matters such as care planning, assessments of residents for funding purposes, reporting requirements in relation to (indistinct) and the aged care standards, and the governance requirements which are required by the aged care standards to be implemented, not externally, but internally within particular operators.


Both of those matters as evidence indicates, or means, as the evidence indicates that personal care workers and home care workers are being required to perform roles traditionally undertaken by nursing staff, at least so far as they have sufficient training and instruction to do so, including more towards the clinical end of the spectrum, administration and medication, peak feeding, catheter support, insular management and the like.  That the complex tasks that carers are required to undertake involving residents and consumers with more complex health and behavioural and care needs, are being undertaken with less supervision and that personal care workers, home care workers, are the primary person with the observational and assessment role, not in a clinical diagnosis sense, and there seemed to be something made of that in the submissions, but in a sense that they are the person there to observe whether there is some change in the resident's behaviour or condition, in a manner which could give rise to concern, which needs to be implemented.


That is, in itself, a complex skill and a heavy responsibility.  It something is missed and there is a health consequence then that is obviously a matter of significant concern.  As I foreshadowed, the Commission raised the aged care amendment implementing care reform bill, and at least the aspect of that proposed legislation directed at ensuring that there was a registered nurse on site at residential facilities, and on duty at all times, 24 hours a day, seven days a week.


In that respect, we've obviously observed that it is only proposed legislation at the present time and the Commission would decide the matter on the legislation that is.  Having said that, it is plain that it's not intended to, or would not have the effect of fundamentally altering anything that we've relied upon as being the consequence of workforce compositional changes, or the changing role of the different aspects, different parts of the workforce in residential care or home care.


It's, at most, an additional registered nurse on site at times where there might not be one at the moment, which is the case in some facilities according to the evidence, not perhaps the larger ones, but is the case for some facilities.  It is not intended to result in a change of the disposition of the duties.  The other aspects of the changes which have resulted in those transfer of functions and the assumption of greater responsibilities by the care workers will remain unchanged on the basis that that legislation, at all.


I suppose the only exception I would have to acknowledge is that there is some evidence about care workers making decisions about accessing an ambulance or medical assistance at night, for example, where there is not a registered nurse on site at a particular facility.  I think Mr Jones gave some evidence about that at his facility, that that's something that he has to deal with, and it may be if there's a registered nurse all the time, no doubt it would be a collective decision and a discussion between the registered nurse in the manner that it would be during the day.  But other than to that extent, we don't think that that proposed change affects what we've said in that respect.


There were just two other aspects of the work value reasons that seemed to be potentially subject argument.  The next to which I was going to refer was the reliance that we've placed on dangerous or unpleasant work, particularly the evidence in relation to the occurrence of behavioural issues, or aggressive or violent behaviour.


I did just want to emphasise, and the members of the com will have seen it in the evidence and the submissions, but the somewhat striking nature of the evidence in that respect which is disclosed, and the fact that that evidence discloses that those are issues which affect care workers, but also other employees in a residential context within the administrative and general stream, or the food services stream.


At paragraph 283 of our final submission we refer to evidence given by Ms Fleggin(?), administrative officer, about being grabbed in the arm by a resident who was then throwing chairs around, and being forced to barricade themselves, essentially, in the administrative office until that issue could be dealt with.  And Ms Power, we've referred to at paragraph 279 of the submissions, barricading herself in the bathroom to escape an assault.


Perhaps the most striking example in the oral evidence was Ms Clark who, with somewhat of an aside, recounting a story about a medication mistake that she had made, and disclosed that she was being hit with a shoe at the time that she made this mistake, almost as a sigh, not as the kind of point of the story.


But there might be a question about what's to be done about this.  We think that it is a relevant work value consideration both going to the conditions under which work is performed in that the nature of these incidents is such as inevitable and unavoidable.  It's not a kind of danger money situation where something is - or a particular risk arises in a particular circumstance and might be accounted for by some other form of supplementary payment.  The risk of behavioural issues and aggressive or unpleasant conduct is unavoidable.  The persons who have, because of their condition, a tendency in that direction will require care and need someone to care for them and it is an unavoidable part of the conditions in which work is performed.


We also say it's relevant to skill and responsibility as well because of the detailed evidence that has been given as to the nature of the relational communication and other skills required to de-escalate those circumstances and develop relationships that allow them not to occur or to be avoided where possible.


The final aspect to which there's some debate, particularly arising out of the lay witness report, is the degree to which there is some relevance or some weight ought be given to the evidence in terms of the COVID-19 pandemic.  Obviously there is an issue there, as is identified in the lay witness report, as to whether that evidence is relevant to work value in the sense that it is enduring rather than a temporary issue.  There are two reasons why we think that some weight ought be given to it in the present context.


The first is both that the pandemic is still ongoing and doesn't appear to be particularly temporary at the moment.  Now, that might affect many industries, but we think with respect to aged care, it is the most perhaps - only acute hospital circumstances would be equivalent - it is the area which has been affected the most and is most likely to have an enduring impact upon the work performed in aged care because of the degree of vulnerability of residents in the event of an outbreak and the consequences that would and have, sadly, occurred.


The second reason is that there was evidence, including from the employer witnesses, of the steps that have been taken and the measures which have been introduced as a consequence of the COVID-19 pandemic so far as infection control is concerned and have provided lessons which will be generally applicable in aged care.  It's not a one off to this pandemic, it has resulted in changes being made to the way in which aged care workers work and their work is organised, which are expected to have ongoing impacts upon the nature of the work that is performed.


COMMISSIONER O'NEILL:  Where is the evidence that lessons have been learnt and they will continue on?  It's not clear to me what those lessons are and whether they reflect a systemic change or structural change that's relevant in a work value sense.  In terms of the evidence about the enduring changes, I think from memory there's the evidence of one of the employer witnesses that talks about some of the infection control measures, in particular the PPE, continuing I think until the end of the year, but I wasn't sure that it was in fact agreed at least that the changes were enduring.


MR GIBIAN:  I think the evidence I had in mind was Mr Sewell's evidence about lessons.  So far as it's outside of COVID in particular, I think I have to agree that there wasn't great clarity as to what those lessons were, other than in a general sense that the attention to the importance of infection control procedures, their rigorous application and education and instruction of staff in respect of the importance of and the critical significance of compliance with infection control procedures was an increase - the consciousness of that had increased, for obvious reasons, as a result of the pandemic, and that that is not something that is going to go away and is applicable across other particularly infectious disease issues, but generally across issues that can affect residents, within particularly aged care facilities, yes.


COMMISSIONER O'NEILL:  So the implication is that the conscious - that heightened consciousness changes and will continue to change behaviour, by all the care staff?


MR GIBIAN:  Yes.  In terms of both the need for and acknowledged need for workers to be educated about and knowledgeable of infection control procedures and the increased responsibility and accountability to ensure that they are implemented with a (indistinct) that wasn't necessarily front of mind of management and workers in the past.


I'm not sure I can put it a lot higher than that, but we do think there is something in that.  There is also the point that we really don't know how long even the current circumstance is going to keep on going, and it doesn't seem like it's going to stop, at least in a sudden way, any time soon.


The next issue that I wanted to refer to is the administrative - general and administrative and the food services streams.  As the Full Bench will know, the current structure within the aged care, and this is, obviously, the Aged Care Award specifically, the present structure within the Aged Care Award is that employees falling within each of the three streams are allocated to aged care employee classification levels and rates of pay within the same structure.


The joint employers submit that there should be - well, they don't precisely say what the structure should be, but there should be a separation, in short, between the general administrative and food streams should be separated out into a different classification structure.  The ANMF's application makes the same point, albeit they've made clear that it's not a submission that there oughtn't be a pay rise, so far as the general administrative and food services streams are concerned.


Can I make a few observations about that?  The first is that, as with any variation, that variation would have to be found to be necessary to meet the Modern Awards objective and perhaps the minimum wage objective.  There's less relevance in that respect, but at least necessary to meet the minimum wage objectives.  We'd at least make four observations about that.


The first is that we don't think the evidence demonstrates there's any problem to be fixed, in that respect.  That is, the combination of care work with a general administrative and food services streams has been the longstanding position of the HQ Award.  Despite that, there doesn't seem to be the slightest evidence before the Commission that that combination has produced - in itself has produced any particular difficulties, confusion or unfairness in application.


There are some observations, in relation to the classification structure, generally speaking, some of which we've sought by our classification (indistinct) to address in some respect.  I'm thinking of Professor Charlesworth's observations about the small increments that exist between the care worker classifications and the like, but we don't think there is any evidence suggesting a problem with the combination of the general administrative and the food services streams with the B care stream.


Secondly, the evidence indicates and suggests, properly understood, the indirect care roles are not seen as something distinct.  That the care being received in a residential facility by a resident is - part of the overall care includes both the personal care, in terms of washing and cleaning and medical, or health needs, tending to the health needs, as well as being provided with appropriate nutritious food, being in a facility where it is clean and maintained to the individual desires of the resident.


There is not the intention of - the contemporary approaches to care is not that the personal care be provided in a particular way and separately the food services and cleaning and administration and maintenance occur, but all of it be provided as part of the overall care of the resident directed at meeting their particular needs.


In that respect - I don't need to go to it - but can I note the guidance provided with respect to the Aged Care Quality Standards.  It's document 318 in the digital hearing book, commencing at page 16304.  Particularly from page 16304 - sorry, if I can just have a moment - the guidance or the standards, I should say, deal separately with - that is, there is a standard for personal care and there is a standard for services and supports for daily living.  They are standards 3 and 4 respectively.


Standard 4, in dealing with services and supports for daily living, however, makes clear, as do the other standards, the way in which they interact with one another.  In particular, as is acknowledged - it's within the digital hearing book at 1067 - there are linked standards, particularly standards 1, 2, 7 and 8 are all linked to standard 4.


Standard 1 deals with the requirement that all aspects of services and supports for daily living needs to treat consumers with dignity and respect and support them in the choices they make and are provided in a manner which is culturally safe.


Standard 2 deals with the assessment and planning of consumer needs, goals and preferences and promoted delivery of safe and effective services and supports.


Standard 7 deals with workforce interactions and with consumers, always need to be kind, caring and respectful of the consumer's identity, culture and diversity, and in particular the workforce need to have competency qualifications and knowledge of the safe and effective services and supports for daily living and promote consumers' health, wellbeing and cultural safety.


Standard 8 deals with governance and accountability responsibilities.


All of those apply equally to care workers and to those workers engaged in what are described in the standards at least as services and supports for daily living.


I would also note what is said at 16311 in relation to the expectations of the workforce involved in services and supports for daily living, being that they are able to describe how they come to understand what consumers want to continue to do for themselves.  They also describe what the consumer needs to do to stay safe and well and what they want to be able to do or keep going; described how the services are tailored to support the individual needs and goals of the consumer; how they work with the consumers to maintain their independence and quality of life and the like.  All of those requirements are intended to apply equally.  A change of approach to food services and other aspects of the care.


Secondly, can I note that Professor Maher gives some useful evidence in this respect in her report, document 162, particularly from pages 4612 to 4624, to the effect that the provision of person-centred care is a whole of staff responsibility and indirect care workers' roles are unique or involve unique demands in the aged care setting.  We direct the Commission's attention to that.


The lay witness evidence in that respect is also supportive of that view.  I don't need to go to it, but can I note that food services is dealt with in the lay witness report from paragraph 202 to 221; cleaning staff from paragraphs 250 to 256; laundry staff from paragraph 222 to 230, and then administrative support staff following that.  In each respect, the evidence of the individuals makes it plain how the particular circumstances of residential aged care, particularly the requirements for adherence to hygiene standards, to safety standards in respect of food preparation, cleaning and maintenance, all impact upon the work performed, and that in each respect the workers have to deal with and interact with residents in a manner which is consistent with personal directed care.  That is, that is respectful of their dignity, and they're in the resident's home, and respect their individual desires and wishes and provides the service or undertakes the work consistent with that requirement.


The third observation in that respect is that the evidence makes clear that the indirect care work is similarly affected by the changes which were provided, more generally speaking.  That is, the changes in the characteristics, frailty and age of residents.  The changes in the regulatory and accountability requirements are applicable also to these roles, the changes to the expectations of families and residents in that respect.  That is consistent with paragraph 22 of the consensus statement with the aged care standards and with the application of the regulatory requirements.


Finally, in that respect we have referred to evidence that indicates that there it is not uncommon for workers to undertake a combination of roles, as well, that there are administrative workers who do care work, as well, including on the same shift.  That is, a shift that they are rostered to perform administrative work, because they have the skills and experience if either shortages, or because of particular incidents they will be involved in the provision of care of personal care work in addition to the administrative role.  Ms Field and Ms Gauci, and Ms (Indistinct) gave evidence to that effect.


COMMISSIONER O'NEILL:  Just on that, Mr Gibian, is it relevant in this issue that the evidence about the homemaker model in some work places where the care work is expanding and taking on other functions and responsibilities in other parts of the classification structure, if it's contended that that's kind of relevant to this issue, and my understanding of the joint employers' submission is that there's not evidence that that is a broader shift.  It is confined to one or two employers in the industry and they deal with it by way of enterprise agreements.


MR GIBIAN:  Yes.  I was going to deal with that.  Firstly, it is relevant to that issue.  As you'll certainly recall, Commissioner, the evidence in relation to the homemaker model was that the homemakers do personal care work, as well as a greater degree of, at least, cleaning, food preparation and the like, as part of the endeavour to create a home like environment.


In addition to that we've sought recognition of a specialist carer classification which would include that type of worker separately.  As to the prevalence of that, it was one of the questions the Commission asked us about because there were two additional matters that we suggested were not contested and we were told that they were contested, that was that clustered(?) domestic and household models of carer are growing in prevalence, and that the models of carer require growing numbers of staff with a broad range of capabilities.


I'm not sure the second part of it was contested, but maybe the first.  The first observations about that is that that was drawn from the consensus statement, so that that was expressly acknowledged in the consensus statement that that was the case.  As to the precise extent to which it's been adopted in practice, the evidence perhaps wasn't precise.  We accept that, and maybe it is one of the difficulties in resiling from the consensus statement issue, is if the evidence wasn't necessarily explored in precisely the detail it was.


There was evidence in Professor Meagher's report at digital hearing book 4617.  Ms Hutchins from the union at page 8, 785.  Ms Hutchins was also cross-examined about this at pages 3328 and 3329, where she referred to, at least within her knowledge, operators such as HammondCare, Uniting Care, RSL Life Care and Harbison Care have all adopted the home maker model.  Those being very significant operators, I think Uniting was the largest operator, as I understand it, with something like 50 000 staff, 5000 residential facilities in New South Wales alone.


The other observation I was going to make about that is, it is dealt with in the Royal Commission report as well, which would be relevant to the consideration of that question.  I note in that respect that recommendation 46 of the Royal Commission's final report recommended that the Australian Government provide additional capital grants for building and upgrading residential aged care facilities to provide small scale congregate living.  That followed on from discussions about the desirability of that model, without going into it at great length, particularly – I think it's document 150.


It's within the joint employers' first submissions and acts as the report as pages 2151 to 2152.  It talks about both the evidence that the Royal Commission heard as to that happening in practice, and the desirability of it being expanded going forward, particularly that it was an appropriate model or provided for better outcomes because it created home-like familiar environment for residents, particularly residents suffering from dementia.  It had the benefits of all the adopted – there was encouragement for it being adopted more broadly speaking.  So, that in our submission provides an ample basis for the Commission to have to regard to that evidence, but also with respect to the specific specialist classification that we're advocating for.


I think there are perhaps really two matters that I wish to deal with before I finish.  The first is just to say something about the home care – more specifically about home care, particularly to address the question as to why we say that the same increase out to apply within – for carers in residential care and in the home care setting.  Although there are some differences obviously enough between the provision of caring in a residential facility and in the home care setting, the themes relevant which are most significant arising from the evidence as to the assessment of work value reasons, appear substantially to overlap and justify common increases in the two areas.  There's just five brief observations in that respect.


The first is that care work undertaken in residential care in a home care setting, is properly to be seen as part of one system, that is, each funded by or all funded by the Commonwealth in substantial part.  That is, the system as a whole seeks to ensure appropriate care is provided to aged persons in the appropriate place, whether it's in their home, to the extent that that is possible to be done in a residential facility and that that be done consistent with their needs and desires.


Secondly, the core nature of their skills, be they health and medical skills, medical related skills, personal care skills, interpersonal communication, empathic skills and the degree of judgment, responsibility, discretion involved is, albeit, in a somewhat different context, the same category.  In some sense, the degree of independence of judgment and discretion is greater, of course, because the homecare worker is further distanced from any immediate support or supervision.  There is some evidence about the potential to call a care manager if some issue arises, but, self-evidently, the worker is working individually in the home of the resident that they know and no one else does to quite the same degree and is required to make decisions and exercise discretion in that context, which is even more independent and further distant from support than is the case in a residential facility.


The third point is, as I have already described, that the change in demographics in care needs and characteristics of recipients of home care and residential aged care have both shifted in a very substantial way.  Perhaps you could say that, on a whole, residents in residential care perhaps will have higher care needs in the sense that residential care is by and large reserved for those people who are simply unable to maintain themselves in their own home even with a high level of home care support, but the consequence of that is that the care being provided to persons in their home is also being provided to consumers with far greater care needs than was the case in the past, and many people will never enter residential care at all.


The fourth point, which perhaps I've already foreshadowed as well, is that the changes in the models of care and care philosophies directed at individual needs and desires, referred to more as consumer-directed care in the home care context, have very similar features to those dictated by the Aged Care Quality Standards in a residential care setting.


Finally, the nature of qualifications and training is broadly similar between the two.  In addition to that, the considerations attaching to the modern awards objective and the minimum wages objectives apply similarly in both contexts as well.


Unless there's any questions, the last matter I was going to address briefly was just the particular classification changes that we have proposed in the Aged Care Award in particular.  There don't seem to be a large - well, there is some controversy about it, but it seems to perhaps be at the lower end.  Relevantly, and I'm referring to the application here, we hadn't noticed particular submissions about the clarification of progression through the lower end of the care worker stream.


At level 5, we have proposed insertion of an additional description of the type of tasks undertaken at that level as including, in the case of a senior personal care worker, that they may be required to assist residents with medication and hold the relevant degree of competency in that respect.  The joint employers make a submission resisting that clarification.


The HSU's view expressed in Ms Hutchins' evidence at page 8777 in the digital hearing book is that the care workers who are qualified to administer medication and are called upon to do so ought be paid at a higher rate to recognise the degree of responsibility and skill involved in that task.


As we understand the objection, it appears to be two-fold, perhaps.  There's said to be some differences between jurisdictions as to the rules governing the administration of medications and, secondly, that classification shouldn't be based on a singular task and that maybe it could be dealt with by way of an allowance.


So far as the different jurisdictions is concerned, I have a recollection that there was some debating about that in the hearing of the evidence, or some mention of it, but we don't think there's actually any direct evidence as to what those differences are or that they would be of such significance as to affect the type of work or the type of responsibility involved in the administration of medications.  If we have overlooked something in that respect, it can be (indistinct) out, but we don't think that there's any evidence that any such differences mean that they're being done in any particular jurisdiction or is of any substantial way the nature of the role is, in any substantial way, different.


As to the second matter, we think that it is appropriate to clarify that given the significance of that role, recognised within, according to the evidence by providers in that particular workers are identified, trained, required to maintain their competencies on an annual basis, in order to undertake that type of work, it is appropriately recognised that it ought be done at a higher level within the classification structure and we've put it in it at aged care employee level 5.


That is the evidence.  It's not a one-off thing, the evidence supports the view that, as I say, providers are identifying particular employees with that competency, by way of training and maintenance to undertake that work which ought be recognised.


Then at level 6, we have proposed a specialist personal care worker and a senior recreational lifestyle activities officer, which is not present in the current structure.  It's to provide an additional step of progression where there are, in the case of a specialist - the person who's providing specialised care and may have undertaken specific training in order to undertake it.  The examples we've given are dementia care, palliative care, and the household model of care.


We didn't notice opposition to the clarification and additional progression for recreational lifestyle activities officers, but that's also a feature of what we're seeking to put in at that classification level.


So far as the specialist personal care worker is concerned, the only thing that appears to have attracted particular comment is - well, perhaps it's two-fold.  The first is the reference to home maker may be dealt with that.  That is, that seems to be opposed on the basis that it's only a limited matter which effects a small number of operators and should attach specific reference for that reason.  I think I've addressed that matter.  I would just observe that homemaker model is only mentioned in the classifications, on our proposal, as an example of a type of personal carer.  So maybe even if it was only a small number of operators not much harm is done unless the Commission is of the view that that was not a role which had additional skills and responsibilities attached to it, warranting recognition as a specialised carer.  With respect, we think the evidence makes it plain that it is a role with additional range of skills and responsibilities because it is - the home maker is a person who is undertaking a far wider range of tasks in order to facilitate the (indistinct) living household type environment.  I think I've addressed the prevalence.


So far as dementia carers and palliate care is concerned, we think that - there seems to be some recognition that some additional payment ought be afforded in that respect, perhaps though it's said that it will be an allowance-based, rather than an additional rung in the classification scale.  We think that would not be the appropriate approach.


Evidence disclosed the existence of specialised workers who'd been designated with knowledge in both of those areas.  I was going to make an additional observation with respect to the Royal Commission report in that respect which, at a number of places, identified the importance of recognition of the special needs of residents with dementia and of the specialist skills involved in the provision of care in that respect and with respect of palliative care.


I note recommendation 16 included a recommendation to ensure that the number of specialist dementia units established and planned to be established was sufficient to address the needs in that area.  And at recommendation 76, a recommendation to facilitate personal care workers having opportunities to move laterally across aged care, disability care, community care and primary health care, and vertically in aged care by advancing into nursing, specialist care roles and supervisory management roles.  So, there's a specific recommendation there ought be recognition of specialist roles and in the preceding text, a reference to carers with special skills with respect to dementia and palliative care.  All of that supports the view that that ought be a specialist classification.


Finally, in that respect, we were asked a question with respect to the difference between the structure proposed for – by the ANMF's application and my client's application.  In that respect, the difference seems to be that the ANMF's application has reduced the number of levels from six in our case, to five, for the care worker stream.  So, it's clear, there are six in our stream, because there are no care worker classifications within aged care employee level one, so it's level two to seven – it contains six levels.  Now, that's the existing structure; we've added an additional specialist carer role and senior recreational officer role in level six.


As I understand the difference, it is primarily that the ANMF's application would have the specialist carer role at level seven, rather than level six, just skip level seven, and replace that title – that title replacing the current title which is a personal care supervisor.  That is said to be the appropriate structure.  In a sense, if the specialist care was at a higher level, we won't obviously have an objection to that.  We do think there ought be a supervisor above though, so that will require some additional structural change, to have a supervisor role above level seven, as it presently is.


In addition to that, there was one issue raised as to the consistency of the reference to qualifications in that we had reference to a Certificate IV at level six and an Associate Advanced Certificate or Associate Diploma at level seven.  In that respect, we were really – we were no more than reflecting the current wording of the award, which perhaps does have some correction and should perhaps be a reference to an advanced certificate or advanced diploma at level seven, which would provide the appropriate sequencing of qualifications.  But other than that, we don't have a difficult with the specialist, if it's put in as we propose it being somewhat higher, but we do think that a supervisor has to be accommodated as well.


I think that's probably dealt with the issues in relation to classification structure, unless there's anything – at least that seem to be controversial in the submissions.  Unless there's anything further that I can assist with.


In terms of the questions that arose out of that crown paper eight, there was – just a moment.


JUSTICE ROSS:  Question seven?


MR GIBIAN:  Yes, so I think I've dealt with the question about the additional uncontested qualifications held.  What was said, but not uncontested qualifications, as that – and then question seven relates to the home care and disability care.  As I understand, the issue that was raised in the joint employers' submissions is that the relevant schedule SCHADS Award would cover disability home care workers and aged care home care workers, and this application simply relates to aged home care workers, as it were, and that might create some difficulties if there were people doing both tasks.


I don't think I would say that doesn't happen.  I don't think there was a great amount of evidence as to the extent to which that would happen or does happen.  But I think there's really two responses to it.  The first is that for obvious reasons, the application with respect to the SCHADS award is being heard now, together with these proceedings because it relates to aged care and is appropriately considered together.


It wouldn't be appropriate, given that it would diversify the evidence and relevant considerations to a substantial degree, to also endeavour to deal with the question of persons providing support in their homes to disabled people, as well.  It's just simply that the circumstance that we're seeking to extract aged care because it's being dealt with as a matter of substance in this case.


In that context I note that there is an issue within the SCHADS Award of some complexity as to what is 'disability support work', and what is, 'disability home care work' in schedules B and E of that award respectively, and that's an issue that will have to be separately dealt with if there's need for clarity in that area.  Much of the work which is, if it's said to be brought, the equivalent to the aged home care work that were talking about here, would be done as disability support work and paid the other rates, not under the same schedule E, as I understand it.


The second observation that I would make is that to the extent that there are individuals who do, for the same employer or for different employers, aged home care work and home care work for persons with a disability, that doesn't really raise any different issues than arise generally between awards or within awards where someone does work, which might cover or go across a number of different classifications.


Either that person has two jobs, in the sense that they're employed to do two things, in which case they're paid the appropriate rate for each of those.  If it is truly one job then that is a difficulty that industrial tribunals, of course, have had to resolve since time immemorial by adopting some major and substantial or principle purpose types of approaches.  That is not an unusual consequence of the structure of awards or industrial instruments more generally speaking, and if that has to happen in some cases, well, that'll have to be determined.


Unless there's anything further on that point, there were two – I'm sorry, I've lost which question it was now – it was question 2 in relation to what we say were the uncontested propositions - - -


JUSTICE ROSS:  Year 2 additional propositions, yes.


MR GIBIAN:  Yes.  The first of those was the clustered model, which I dealt with.




MR GIBIAN:  The second of those was as to the supervision, home care work with minimal supervision, and the increasing acuity and dependency of residents of aged care services means that those workers are exercising more independent decision-making, et cetera.




MR GIBIAN:  That is also drawn from the consensus statement.  Perhaps we're a little unclear on what the objection to that is, that is, whether it relates to the supervision part of it or that there is increased complexity in decision-making and the like resulting from the increase in acuity and frailty of recipients of home care.


If it's the latter there's a long list of evidentiary references which I can read, which establish that point.  If it is the former, that is the supervision issue, firstly it's just a matter of obvious logic that there is no direct supervision of someone who is performing work in the home of a consumer.  There was some evidence and there was cross-examination about the capacity to telephone someone, a supervisor or a care manager, and obtain some kind of instructional assistance if there was a difficulty encountered in the course of the provision of the service and that that's the degree of responsibility.


JUSTICE ROSS:  Was there any evidence about the utilisation of that?


MR GIBIAN:  There was evidence by some individuals as to the difficulty of accessing the person, that they might not always be available and the like.  I'm not sure there was evidence about the degree to which it was done, but I might take that on notice.




MR GIBIAN:  I think some people gave some anecdotal examples of circumstances in which they hadn't been able to access the relevant supervisor or at least in the relevant time frame, but I'm not sure there was evidence about how often they did it or these circumstances arose to justify it.




MR GIBIAN:  Otherwise, obviously I haven't endeavoured to cover every area that we have dealt with in the written submissions in whole, but they were matters I thought that I could assist with by way of oral submissions, unless there's anything further I can assist with?


JUSTICE ROSS:  Thanks, Mr Gibian.  Mr McKenna, do you want to start now or do you want to come back at quarter to 2?


MR McKENNA:  I am entirely in the Full Bench's hands in that respect.  I personally would need a comfort break, but it can wait 20 minutes, but if your Honour was contemplating sitting beyond that, I might have some slight difficulties.


JUSTICE ROSS:  We may as well break now.  I think that's probably the most convenient.  Thank you.  We will resume at 1.45.

LUNCHEON ADJOURNMENT                                                          [12.41 PM]

RESUMED                                                                                                [1.46 PM]


JUSTICE ROSS:  Yes, please be seated.  Mr McKenna?


MR McKENNA:  If the Full Bench pleases.  If I can just begin by giving a brief overview of the matters that will be addressed in the submissions of the ANMF.  Firstly, I propose to provide a brief overview, an introduction to the ANMF's case in closing, and then an overview of the material that is available to the Full Bench in determining the applications.


The Full Bench has proposed a number of questions in background documents six through eight, so, those will also be addressed.  I shall make submissions as to the proper approach to the statutory task before the Full Bench and provide a response to the employer's position with respect to work reasons which are said to justify or not to justify various increases.  Following that, I shall address the disputed areas of work value reasons and then changes in work value reasons that arise from the interior before the Full Bench.


Mr Hartley will then address the Full Bench with respect to historical under-valuation and the expert evidence that is before the Full Bench and then the final matters that I shall address will relate to the other changes to the Nurse's award, classification, structure and to the aged care classification structure.  Then briefly address the minimum wage's objective and the modern award's objective.


The Royal Commission in to aged care quality and safety tabled its final report on 1 March last year.  That report expressly recognised that the aged care workforce is underpaid.  Recommendation 84 from the Royal Commission called upon the unions to collaborate with the Australian government and employers and apply to vary the award wage rates and the Aged Care Award, Nurse's Award and SCHADS Award, to reflect the work value of aged care employees in accordance with the Fair Work Act.  That is what the ANMF and the other union parties have done.


As a result of collaboration with stakeholders including ACSA and LASA of the Commission now has evolved a consensus statement and the Commissions has the benefit of submissions from the Commonwealth in support of the applications.  As recognised by the consensus statement, wages in aged care sector need to be significantly increased because the work of aged care workers has been historically undervalued, and because it has not been properly assessed by the Fair Work Commission or other industrial tribunals.


To date, the problem of low wages in the aged care sector, has been unresponsive to attempts to correct it, and enterprise bargaining has not, and it is submitted will not, solve the low wages problem.  As a result, the ANMF brings this application to address the substantial under-valuation of aged care work.  To assist in determining the application the Commission has before it a substantial body of evidence from frontline workers, union officials, experts and indeed employer representatives in support of the proposition that the minimum ages in aged care need to be significantly increased.


In overview, two amendments are sought by the ANMF.  The first is the amendment of the Nurse's Award by inserting a new schedule, applicable to aged care workers only, and expiring after four years, which increases minimum rates of pay by 25 per cent.  Secondly, an amendment to the Aged Care Award by removing the personal care workers from the mainstream of aged care employees in schedule B, creating a new classification structure for them, and by increasing the minimum rates of pay for personal care workers by 25 per cent.  With respect to the first of those variations, the updated revised schedule is now found at annexure 2 to the ANMF closing submissions dated 22 July 2022, and the restructure that's sought with respect to personal care workers under the Aged Care Award is contained within the ANMF's application.


The ANMF's case is advanced on two grounds.  Firstly, that aged care work has changed over about the last 20 years, including the work is now more complex, it is more stressful than it previously was, it involves more skill and responsibility than it previously did and it's performed in conditions that are in many ways more demanding of employees than was previously the case.


The second basis upon which it's put is that in any case, the wages of aged care workers have been historically under-valued and the fact that aged care workers, being overwhelmingly female, is at least a substantial explanation for that historical under-valuation.  As indicated, that is a matter which will be addressed specifically by Mr Hartley.


In relation to the change in work value, the Commission has an abundance of evidence to make findings in respect of the following matters.  There have been changes in residential needs.  Residents of aged care have more acute care needs than previously and more complex treatment needs.  There have been changes in staffing and skill mix.  There is a long term trend of lower staffing levels in aged care, as well as a long term change in skill mix, in the sense that there are fewer registered nurses and enrolled nurses and more RN's or PCW's performing direct care work.  There is, as a result of this, increasing supervisory burden on RNs and ENs, and less supervision available to AINs and PCWs.


There has been a cultural transformation towards more person-centred individualised care, away from more regimented or task-based approach, historically taken in aged care.  There is increased regulation.  Aged care has always been a highly regulated industry but the regulatory burden which is acquitted at least in large part, by the work of RNs, ENs and AINs and PCWs has increased considerably over the last 20 or so years.  There is increased requirement for particular and specialised skills, and there has been an increase in the need for particular skills of a kind including observational, interpersonal skills, making clinical type observations, dealing with falls, renal care, the use of catheters and the administration of medication.  Particularly, there has also been increases in the prevalence and need for skills for providing dementia care and providing palliative care.


There is an increased prevalence of death dealt with by aged care workers because of the increased age and acuity of aged care recipients.  As a result, death of residents is more frequent and guiding and assisting a person as they die and supporting their loved ones through the process of dying requires understanding and skill.  The death of a resident or a person in their home is often a source of grief for aged care workers and this takes an emotional toll.


The work is also more mentally, emotionally and physically demanding.  As to the physically demanding nature of the work, the Commission heard evidence, for example, from Diane Power, an AIN at Regis Whitfield in Cairns, and she says:


I'm a very fit person.  I compete in triathlons.  In a triathlon I run 21 kilometres, I ride 90 kilometres and I swim 2 kilometres.  I am physically and mentally strong.  But, despite how fit I am, I am often shattered after my shift in aged care.


There is also a greater prevalence of violence and aggression in the workplace, including because of increased dementia and because of decreased chemical and physical restraint and the aged care workforce is more highly qualified and receives more specialist training than it did in the past.


The wages of aged are workers also, as I have indicated in the ANMF's case, are historically undervalued.  That will be addressed by Mr Hartley.  For now, it's sufficient to say that the aged care workforce is, and has been, overwhelmingly female.  There is, and has been, an economy wide gender pay gap in Australia.  The most significant contributing component of that gender pay gap is gender discrimination, and that may include the undervaluation of feminised work and skills and the invisibility of skills.


JUSTICE ROSS:  Wouldn't labour force segregation be the most significant cause of the gender pay gap?


MR McKENNA:  I'm sorry?


JUSTICE ROSS:  Wouldn't labour force segregation be the most significant contributor to the gender pay gap?


MR McKENNA:  It may be.


JUSTICE ROSS:  Well, what's the basis for saying gender discrimination is as opposed to women being employed in great proportions than men in lower paid occupations and sectors?


MR McKENNA:  Your Honour, these are matters that have been the subject of expert evidence and will be - - -


JUSTICE ROSS:  That's why I'm asking the question, yes.


MR McKENNA:  And will be addressed in more detail by Mr Hartley.


JUSTICE ROSS:  All right.


MR McKENNA:  I don't wish to squib your Honour's question, but I suspect you will get a more satisfactory answer from Mr Hartley.




MR McKENNA:  The position of the ANMF is that both changes to the work by direct care workers and the historical undervaluation of this work justifies an increase in the minimum wages for direct care workers in aged care and an increase in the amount of 25 per cent.  That is a 25 per cent in minimum wages to employees providing personal care and residential aged care facilities under the Aged Care Award and a 15 per cent increase to nursing assistants, enrolled nurses, registered nurses and nurse practitioners under the Nurses Award engaged in the provision of services for aged persons in residential aged care or in home care.


The ANMF seeks a 25 per cent increase in wages because, in our submission, such an increase is justified by the work value reasons and necessary to achieve the minimum awards objective and minimum wages objective.  That 25 per cent is not put as an ambit claim, it is put on the basis that that is in fact what the work is worth.


In support of the ANMF's case, the Commission has before it a large amount of evidence and material.  It also has all of the submissions that have been previously filed, particularly the closing written submissions dated 22 July and the reply closing submissions of 17 July, but also opening submissions of 29 October last year and reply opening submissions of 21 April last year.  Obviously, I will not attempt to canvass all of the matters covered in those submissions, but do propose to highlight a few matters that, in my submission, are pertinent to the ANMF's case.


Turning then to the material available to the Full Bench, the Commission has the benefit of the consensus statement, which I will return to in a moment and attempt to address Your Honour the Presiding Member's question to my learned friend.  There is also evidence from frontline workers in the aged care industry.  Indeed, there were 72 lay witnesses, as summarised in the 20 June 2022 report by Commissioner O'Neill to the Full Bench, and further evidence from those witnesses which has been extracted and identified by the ANMF in its closing submissions of 22 July.


The Full Bench has evidence from union officials with particular knowledge of the aged care industry, including eight ANMF witnesses who are union officials.  The Full Bench has the benefit of expert evidence, in particular the Smith/Lyons report filed on behalf of the ANMF and the Junor report, which, as I've indicated, will be addressed by my learned friend, and the Full Bench also has evidence from employer representatives, which, in many respects, is supportive of the ANMF's application and consistent with the evidence called by the ANMF and other unions.  Where relevant, that evidence is also summarised in the ANMF's closing submissions, adopting the topics and structures as per the lay evidence report.


With respect to the ANMF's approach in doing that, it is said against us by the employer interests in the joint reply closing submissions at 3.55 that the evidence of the employer material provided by the ANMF is highly selective and that it misrepresents employer evidence.


In response to that, it is accepted that what is provided by the ANMF is a summary.  It is, by its nature, selective, but we strongly reject any submission that that summary is in any way unfair.  Similarly, the suggestion that the evidence extracted misrepresents the true status of the evidence is a serious assertion and it is rejected and it ought be dismissed.  The examples that are set out in the employer evidence at 3.55 do not make good that proposition, in our submission.


The Commission also has the benefit of numerous reviews, reports and other source material, primary amongst which, of course, is the reports from the Royal Commission which were relevant and have been identified already in the ANMF submissions.


With respect to the consensus statement, by its own terms, it is described as reflecting the matters over which the parties have reached agreement.  The organisations supporting the statement include the union applicants, ACSA, LASA and other aged care industry stakeholders.  It was made pursuant to recommendation 76(2)(e) of the Royal Commission in express contemplation of these proceedings and it was filed pursuant to an order by the Full Bench for the filing of any agreed position involving union parties, employees, employer associations and/or the Australian Government.


The position put by the ANMF has been alluded to already in submissions.  It is that consensus statement is akin to an admission filed by all parties.  The HSU written submissions describe it as an abuse of process to depart from that position.  Now whether it is said that it is abuse of process, whether it is said that it is akin to an admission or whether it is simply a matter of good case management, it is submitted that where parties have agreed to a position and that agreed position has been filed in accordance with orders of the tribunal, then those parties should be held to the contents of that document.


It is not submitted on behalf of the ANMF that the Full Bench is bound by it - that would clearly be wrong - but we do object to any attempt by ACSA and LASA to depart from the contents of that statement.


JUSTICE ROSS:  The practical effect of that is that the joint employers can't put any submission contrary to the consensus document?


MR McKENNA:  Absent an explanation for doing so.


JUSTICE ROSS:  Their explanation is that's where the evidence takes us.


MR McKENNA:  Well, absent a legitimate explanation.


JUSTICE ROSS:  Or one that you agree with?


MR McKENNA:  No, an explanation as to why an agreed position can or should be departed from.  If they had filed a statement of agreed facts or if they had made an admission on a pleading, they would be required to explain the departure from it.


JUSTICE ROSS:  Sure, but they didn't make an admission on a pleading.


MR McKENNA:  They didn't.


JUSTICE ROSS:  And we are not bound by legal forms.


MR McKENNA:  You are not.


JUSTICE ROSS:  Nor are we bound by the contents of the consensus statement.


MR McKENNA:  I accept all of that, your Honour.


JUSTICE ROSS:  Then where does that take us?


MR McKENNA:  Your Honour, I've made the submission and I probably can't put it any higher.


JUSTICE ROSS:  All right.


MR McKENNA:  But it is, in my submission, something that the employee parties, at least ACSA and LASA, should be able to.


JUSTICE ROSS:  I'm not suggesting that the consensus statement is not relevant, and it reflects the views of a range of parties.  It's the proposition that you're putting that drawing on authorities from courts of pleadings, that they have to somehow seek leave to depart from it.  It there any Tribunal case that comes remotely close to that?


MR McKENNA:  Not that I can direct the Full Bench to.


JUSTICE ROSS:  No.  I haven't been able to find it either.


MR McKENNA:  Your Honour and the Full Bench, the background documents, 6, 7 and 8 raised a number of questions relevant to the ANMF.  I think there are four and I'll deal with three of them expressly now.  The first of those arises in background document 6.  Question 6 invites the parties to identify any corrections or additions to that document.  The ANMF has no corrections or additions.


As to whether it's common ground that the material set out in background document 6 is uncontentious, it is certainly uncontentious in the sense that is an accurate representation of what the parties have submitted.


JUSTICE ROSS:  Yes, that was the sense in which it was meant.


MR McKENNA:  I understand that was the case.  As to background document 7, question 1, the ANMF is invited to elaborate upon its submission as to the relevance of section 134(1)(d)(a), as it arises as part of the modern award's objective.  That particular consideration relates to the need to provide additional remuneration for employees working overtime and so forth.


JUSTICE ROSS:  Yes.  Perhaps if I can clarify the intent.  Is it said that it's relevant to your classification structure - - -


MR McKENNA:  Only.


JUSTICE ROSS:  Proposal only?


MR McKENNA:  Only, yes.


JUSTICE ROSS:  No, that's fine.  Can I raise an earlier matter in background document 7.


MR McKENNA:  Certainly.


JUSTICE ROSS:  Can I take you to paragraph 49.


MR McKENNA:  Sorry, 49?






JUSTICE ROSS:  The first dot point there is that – the essence of it is that increasing the rates of pay consistent with your application would increase the incentive or necessity to negotiate trade-offs and productivity benefits.  Why would it do that when it's fully funded?


MR McKENNA:  The way that we put that submission is that the primary concern at present, or one of the primary concerns for bargaining is rates of pay.  If that is substantially increased our case is that that would then allow the parties to focus on matters other than rates of pay that are enterprise specific.


JUSTICE ROSS:  What, and they can't do that now?


MR McKENNA:  I'm sorry?


JUSTICE ROSS:  They can't do that now?


MR McKENNA:  Well - - -


JUSTICE ROSS:  Isn't the evidence now that they don't bargain on rates of pay, or if they do, in a very incremental way, and they do bargain on other matters?


MR McKENNA:  There is certainly evidence before the Full Bench that there is difficulty bargaining on rates of pay.  I certainly accept that.


JUSTICE ROSS:  I know.  But the outcomes, the Commonwealth canvasses those in its submission.




JUSTICE ROSS:  And it doesn't suggest that there's any significant extent of over award bargaining reflected in agreements.


MR McKENNA:  No, and as I understand the Commonwealth position that even where there isn't agreement, there is a very high dependence on award rates.


JUSTICE ROSS:  Yes, yes.


MR McKENNA:  And many that are falling behind, and simply pick up award rates by default.


JUSTICE ROSS:  I mean, this is based on, I think it's


Mr Fleming's evidence which - - -


MR McKENNA:  Mr Friend.


JUSTICE ROSS:  Yes, Mr Friend, sorry, which is his supposition.  All right, what's the second dot point?  'It removes any disincentive' - how does that arise – 'by removing the gap between those rates and the award minimum.'


MR McKENNA:  Your Honour, the - - -


JUSTICE ROSS:  I mean, are there any – 'removes in disincentive for employees' – wouldn't it be argued it removes incentive for employees if the rates more properly reflect the value of the work?


Just as a matter of logic, if you're on where the minimum rates are now, one can understand the desire to increase them.  If the minimum rates are increased significantly as you propose, then that amount of incentive must be accordingly reduced for employees.  I'm not suggesting there be no incentive, but it must be less.


MR McKENNA:  Your Honour, could I return to it?  I - - -


JUSTICE ROSS:  Sure.  I should have mentioned, in the question of the relevance of 134(1)(d)(a), I think you advanced the same submission about additional remuneration in the context of 134(1)(d), and I think that also appears to be confined to the classification structure element of your claim.


MR McKENNA:  Yes, that's so.


JUSTICE ROSS:  Okay.  Since we're on background document 7, can I take you to paragraph 120?


MR McKENNA:  Yes, your Honour.


JUSTICE ROSS:  The first sentence.  I'm not sure that that means.


MR McKENNA:  Your Honour - - -


JUSTICE ROSS:  It's difficult to see how, as a direct consequence of changing rates of pay, there'd be an impact on productivity.  Because productivity is a flow measure, it's not a cost measure.


MR McKENNA:  Yes, and your Honour, it's likely that it is now, in light of what has happened with the Commonwealth position it's become something of a moot point, in any event.


JUSTICE ROSS:  No, I don't think the Commonwealth's submission has any relationship to the productivity issue.  It relates to employment costs, certainly.  But productivity is not dealing with employment costs.  It's dealing with output per hour worked input.


So I just don't follow the – 'is not constrained by any reference to any suggested loss of productivity in its task and' – who's suggesting the loss of productivity?  I must admit I hadn't picked that up from the joint employers' submission.


MR McKENNA:  There is a discussion background document 1, your Honour - - -


JUSTICE ROSS:  Yes, in reference to the Schweppes case, and the like?


MR McKENNA:  Yes, that's so.




MR McKENNA:  But again, I'm not sure that I can take it much further as I stand before you.


JUSTICE ROSS:  All right.  Well, if no one's actually suggesting that an increase in minimum rates would adversely impact productivity, and that seems to be the case, we probably don't need to – if the joint employers take a different view in their oral closing, you can deal with it then.


MR McKENNA:  Certainly.  You don't have a further - - -


JUSTICE ROSS:  Not on background document seven.  I do have on eight.


MR McKENNA:  With respect to background document eight, question one is directed to the ANMF inviting all parties other than the HSU to comment on the HSU's response to question one of background document five, about the effect that a consideration of social context of the work would ensure, would be able to find reasons to justify an increase in minimum rates.  I'll deal with that in context later in the submissions.  Then question eight of background document eight, if the parties are invited to provide any corrections or additions that should be made in respect of the summary of the submissions, there are a number of those from the ANMF.  Bear with me while I turn it up.


JUSTICE ROSS:  If they're just corrections and additions, you can probably just file them and we'll deal with them then, might be the easiest way of dealing with that.


MR McKENNA:  We'll adopt that approach.


JUSTICE ROSS:  Thank you.  Can I take you then to paragraph 114?


MR McKENNA:  Sorry, in background document eight?


JUSTICE ROSS:  Yes, thank you.


MR McKENNA:  114, the HSU notes.


JUSTICE ROSS:  114, the ANMF submits.


MR McKENNA:  Background document eight?  Sorry.


JUSTICE ROSS:  Yes.  You might be on seven, I think.


MR McKENNA:  Sorry, you said 114.  My apologies.  All right, yes your Honour, I have that.


JUSTICE ROSS:  So, what's contemplated by this temporal limitation?  Is it that any increased rates are in a schedule that operates for four years and then cease to operate.  Is that the - - -


MR McKENNA:  That is so.






JUSTICE ROSS:  And that's put on the basis of there are non-aged care workers covered by the Nurse's Award?




JUSTICE ROSS:  Well, you're asking us to conclude that the increases are justified by work-value reasons, necessary to achieve the modern award objective and the minimum wage's objective but they should cease to operate by the effluxion of time.  Why on earth would we do that?


MR McKENNA:  In circumstances where a further application will be brought before - - -


JUSTICE ROSS:  Well, if a further – that's in your hands.




JUSTICE ROSS:  But you're asking – we can't control that.  You're asking us to say, oh well all these reasons, justify these increases but only for four years.  Why would we do that?  What on earth – is there anything to stop you making an application whenever you like?  I don't know why it would take you four years, but you know.


MR McKENNA:  The application can certainly be made within four years, but it will progress through the Commission, no doubt, and so - - -


JUSTICE ROSS:  Sure, but if it takes longer, aged care workers should have their wages reduced by, on your submission, 25 per cent?


MR McKENNA:  Well, you can take it as read that the ANMF is not going to allow the force of variations that are granted to expire simply because the follow-up application has not been - - -


JUSTICE ROSS:  Yes, but you don't control that.  You don't control whether – you're asking for it to be self-executing and to expire.


MR McKENNA:  Yes, no - - -


JUSTICE ROSS:  And you're now suggesting well, if it gets close to the four years you'll extend the four years, which rather gives rise to the question, why on earth are we doing any of this in the first place.


MR McKENNA:  It is absolutely not something that the Federation can control, but the Federation can control what it does and it can, of course, bring an application to extend should a further application not have carried through.


JUSTICE ROSS:  Then why do we do it?  Why is it necessary in the sense required by the modern award object?


MR McKENNA:  Why is a four year limitation necessary?




MR McKENNA:  Well, in that respect, we would rely upon authority about what the necessity means.  It's not something that's going above and beyond minimum rates and it does – the benefit that it has is that it puts a tempore limitation on a situation which is less than ideal, whereby part of the – some of the workers covered by the Nurse's Award have had their rates assessed under 157, and some have not.


JUSTICE ROSS:  That's it?  Well, from what you've put speaking for myself, I find that wholly unpersuasive.  I don't see any necessity for that.  You're asking us to make a decision on the one hand that these increases are justified on work value grounds, necessary for the modern award objective and then for a reason associated with the fact you haven't made an application for the other classifications in the Nurse's Award, somehow it ceases after four years.  They're either justified or they're not, and if they are, it's difficult to see why you would then create a legal construct where you would remove that entitlement.  Not for any shift in work value but because it doesn't suit – it doesn't neatly fit with the structure.


Another option would be to remove the Nurse's classifications in aged care from the Nurse's Award and move them to the Aged Care Award.  That would avoid any inconsistency in the Nurse's Award.


MR McKENNA:  The effect of that, there was obviously – the application is not limited to AINs, it includes ENs, registered nurses.


JUSTICE ROSS:  Sure, but you could move them into the structure in the Aged Care Award.


MR McKENNA:  Yes, which would, in my submission, undermine the effect of having an occupation-based award which - - -


JUSTICE ROSS:  Well, that cuts both ways.  Having an occupation-based award can be said to undermine the industry-based award covering the aged care sector.


MR McKENNA:  Your Honour, the intent and purpose of the four year sunset clause was in part directed to objective 134(g) under the modern award objective.


JUSTICE ROSS:  Well, it doesn't provide stability, because it's changing it.  Look, I don't think I need to go down this path, but I'm not even sure there would be jurisdiction to do it.  If you can only vary minimum wages outside of an annual wage review, on work value grounds, the effect of imposing what you're proposing, is to reduce minimum wages by, on your submission, 25 per cent, with no reference to work value, just some convenience associated with the timing of the review of other classifications in the Nurse's Award.


MR McKENNA:  Your Honour, I'm not sure that I can - - -


JUSTICE ROSS:  No, I'm not sure that you can either.


MR McKENNA:  If the Full Bench pleases.


MS HARRISON:  Just before you move on, a subset of that, or at least the opposition that another option would be to move nursing classifications into the Aged Care Award, it seems that there's almost no distinction between nursing assistance on the Nurse's Award and personal care workers under the Aged Care Award.  There is a distinction in terms of the definition in the Nursing Award that they are under training.


But the thing I'm just trying to grapple with is that throughout the case, the evidence was largely that those two roles were indistinguishable, largely and yet, it's at least on the face of it, somewhat confusing having different classifications with different rates of pay in the Aged Care Award as opposed to the Nurses Award.


MR McKENNA:  In terms of the evidence and the case that's been brought, it is put on the basis that the work performed by an AIN and the work performed by a PCW are essentially indistinguishable, and I think that's a common position adopted by all parties.  The classification, though, there will be some differences, Commissioner.  You have identified there is a different test under the Nurses Award for a person who is an AIN.  They will be performing nursing work under the supervision of a registered nurse.  So, there is a distinction and it is not the case that there is a complete overlap.  There is some overlap, but there is a definite distinction.


COMMISSIONER O'NEILL:  I'm just not sure how far that distinction actually operates in practice, particularly when you have got the context of quite different rates applying.  So, you could have someone who met the definition of nursing assistant under the Nurses Award, but could also be classified as a personal care worker under the descriptions at the moment at least under the Aged Care Award with the consequence of quite different rates of pay.


MR McKENNA:  As things stand and as things would continue under the ANMF's application, a PCW or an AIN who is Certificate III qualified has the same rate and would continue to have the same rate on the ANMF's case following determination of the application.


COMMISSIONER O'NEILL:  Is that right?  I had a quick look and thought that the PCW4, which is a Cert III under the Aged Care - - -




COMMISSIONER O'NEILL:  - - - is level 5, which I think is 972 or thereabouts, whereas the experienced nursing assistant with Cert III is 940 or - - -


MR McKENNA:  I don't have the precise figures in front of me, but I have a high degree of confidence that the Cert III - - -


COMMISSIONER O'NEILL:  I might have that wrong.


MR McKENNA:  The Cert III under the Nurses Award or the Aged Care Award, both of them currently are pegged to C10.




MR McKENNA:  And both are the same.


JUSTICE ROSS:  Perhaps you could just do the comparison and file that.  That would be helpful.


MR McKENNA:  Certainly.  That is something that I think is important to confirm.




MR McKENNA:  And we will do that.




MR McKENNA:  The next point I propose to address then is the proper approach to the statutory task, and the first matter I propose to address is the status of section 157, the definition under 157(2A).  It is the ANMF's case that that present a code.  Your Honour the Presiding Member asked some questions of my learned friend about whether that definition of work value reasons under 157(2A) presents a jurisdictional threshold, and it is the ANMF's case that it does.  What flows from that, though, is then the question for the Full Bench will be whether, firstly, the increases sought are necessary - sorry, whether they are justified for work value reasons and also whether they are necessary to achieve the modern award and minimum wages objectives.


The ANMF's case is that the 25 per cent is justified, is both justified by work value reasons and necessary to meet those objectives.  It is not the case that the Full Bench should start with 25 per cent, determine whether that's justified and then determine whether it's also necessary, but, in our submission, that is the end point that the Commission will come to.  With respect to the - - -


JUSTICE ROSS:  Well, they are cumulative, aren't they?


MR McKENNA:  They are.


JUSTICE ROSS:  Yes.  So, absent a finding that the variation is justified on work value reasons, then you wouldn't satisfy subsection (2).


MR McKENNA:  Yes, that's - - -


JUSTICE ROSS:  And absent a finding that making the determination is necessary to achieve the modern award objective, you wouldn't proceed.


MR McKENNA:  Yes, precisely.  I don't understand any party - there is some dispute about the work to be done by the objectives - I don't understand any party, though, to be identifying the particular consideration in either the modern award objective or the minimum wages objective that says if the Full Bench is satisfied that this increase is justified, then it should be discounted.  I don't understand that that's the case that is being run.


JUSTICE ROSS:  No.  Well, it might require some clarification of the joint employer position because the way they are arguing the particular considerations under the modern award objective, they seem to be - and how that fits with the statement on the transcript by Mr Ward of 26 April - that's something that perhaps can be the subject of some clarification when they come to it - but they don't reach an end point in their modern award objective consideration is my point.  They don't seem to be saying that when you weigh all these things up, you shouldn't do that, they just say that, broadly - well, there doesn't seem to be any opposition to the needs of the low paid now other than to put that it's one of a number of considerations and shouldn't be given determinative weight.  But almost all the others they say are either irrelevant or are against the proposition, so I'm not sure where that leads you.


MR McKENNA:  Your Honour, I have put my understanding of the position by all parties and, if I'm wrong in any aspect of that, then we can obviously address it in reply.


JUSTICE ROSS:  Yes, all right.  As I say, it can be clarified.  I don't think it's, at least not to my mind, clear on their current submission.


MR McKENNA:  With respect to whether 157(2A) provides a code, I think following the discussion that Your Honour the President Member has had with my learned friend, I think we would agree that there is little practical difference flowing from it, but, as a matter of proper construction, it's the ANMF's case that it does present a code, and it does so because the language used in 157(2A) refers to the work value reasons 'are' reasons justifying and, further, that the employee should be paid for doing a particular kind of work 'being' reasons related to any of the matters prescribed.


Now grammar is not my long suit, but the terms 'are' and 'being' are both forms of the very to be.  They are indicative of the definition being exclusive rather than inclusive.  So, in my submission, the proper approach to the interpretation of 157(2A) is that it does provide a code, and for something to be a work value reason, it must be related to subsection (a), (b) or (c) in that provision.


Now, what flows from that, and again I don't think - there's certainly no disagreement between the ANMF and the submissions put earlier this morning.  I don't think there is any general disagreement that it is - the consequence of those things being related to is that it provides the Full Bench a broad and relatively unconstrained - sorry, the Full Bench must exercise a broad and relatively unconstrained judgment as to what may constitute work value reasons justifying an adjustment to the minimum rates of pay.


JUSTICE ROSS:  Can I just take you to the construction point.  I mean I follow the first one, work value reasons are reasons justifying.  What was the second?


MR McKENNA:  Being reasons related to any of the matters prescribed.




MR McKENNA:  So neither of those versions of the verb to be import any scope for inclusivity, and nor, in our submission, does the term 'related to'.  The fact that the work value reasons must be related to doesn't import or doesn't broaden the meaning of work value reasons beyond subsections (a), (b) and (c).


JUSTICE ROSS:  It's still a code on your submission, but it's (a), (b) and (c).  Because of the prefatory words 'related to any of the following', the words 'related to' have a broad connotation, so it need not be closely related to, for example, one of those matters?


MR McKENNA:  No, and as indicated by the Full Bench in the Pharmacy Award case, 'related to' is one of broad import and requires a sufficient connection or association between two subject matters, but the degree of connection required is a matter for judgment, depending on the facts of the case.




MR McKENNA:  The connection must be relevant and must - - -


JUSTICE ROSS:  It's not fanciful, but - - -


MR McKENNA:  Remote or accidental.




MR McKENNA:  And consistent with the breadth of that provision, it's our submission that the Commission should not, and is not, limited by importing historical wage fixing principals.


If it be a common by all parties that it's no longer necessary to identify changes in work value measured from a fixed datum point, and if there's no requirement that a change in the nature of work should constitute such an addition to work requirements as to warrant the creation of any classification.


Further, it appears uncontroversial that there's no reason in principal why a claim that the minimum rates of pay in the modern award undervalue the work to which they apply for gender related reasons could not be advanced for consideration consistent with what was said in the equal remuneration decision and repeated in the Pharmacy Award case.


There is though, notwithstanding those points of commonality between the parties, there is some distinction as to the type of change capable of justifying any increase to minimum wages.  One of those has been referred to by my learned friend this morning.  That is, the reference and the emphasis that appears to be placed upon evolutionary change by the employer interests.


In that respect the concept of evolutionary change is one of the matters that was identified in the ACT Childcare case.  At 190 there was a list of principals that were described as factors arising from previous decisions that may, depending on the circumstances, be relevant to the assessment of whether or not the changes in question constitute the required significant net addition to work requirements.


In the ANMS opening submissions an analysis of each of those was done, and it was suggested that some of those may still be applicable, and some may tend to lead to error. It is submitted that this concept of progressive or evolutionary change being insufficient is such a matter that would tend to lead to error.


Progressive or evolutionary change to technology skills or responsibilities are reasons related to the nature of the work or the level of skill and responsibility involved or the conditions under which the work is done.  So those reasons may constitute a justification for an increase in the minimum wage, as indeed may work values where no changes it identified, given that no fixed datum point is required.


What the employer closing submissions do in referring to matters such as immaterial change, or a change that warrants the re-evaluation of work, or referring to changes of evolution that would not ordinarily suggest a change in the work value, those submissions should be treated with caution.  They either place a gloss on the statutory test that is inappropriate and unhelpful, or alternatively they suggest an ongoing relevance of the proposition that progressive or evolutionary change is insufficient, and for that reason those submissions should be rejected.


With respect to properly set minimum rates, it is uncontentious that the minimum rates under the Nurses Award, Aged Care Award and the Chefs Award have not been properly set.  However, to adopt the submission made by the Commonwealth, the proper fixation of the minimum rates according to the approach in the ACT Childcare case should not be considered a necessary precursor or a gateway to the Commission's exercise of its powers under section 157.


The ANMF wholeheartedly agrees with that submission and it's consistent with the position that we have put.  Notwithstanding the fact that it is not a gateway requirement, the position of the ANMF is that there has never been a consideration of the work value or reasons for applicable rates under the Nurses Award or the Aged Care Award since the modernisation.


Work value assessments have occurred related to ENs and enrolled nurses and registered nurses in 1998, and for AINs in 2005.  So the extent that change since that time can be identified, the Full Bench can have confidence that those are matters that have not been previously valued.  It is, of course, also the ANMF's position that the assessments conducted in 1998 and 2005 were not free of gender bias.


Turning then to the relevance and applicability of the C10 framework, I'll refer in these submissions to the metals framework, particularly in light of the move away from the C10 classification being used as a key classification.  The position of the ANMF is consistent with that, your Honour the presiding members, that was put to my learned friend earlier this morning.


The ANMF does not accept that the C10 classification structure or the metals framework is the starting point in the proper fixation of minimum rates, or indeed, we would say, the middle or end point.  The ACT Childcare decision was made under a different statutory regime as has been canvassed.


It is no longer the correct approach of the Commission's statutory task but it is submitted that the metal framework may in some cases be relevant, and may assist the statutory question (indistinct) by section 157.  It is not however, the statutory question and should not be allowed to limit the proper consideration of work value reasons under section 157.


In terms of the key classification, the ANMF case is that the law has moved in some respects, even as to the application of the Metals framework in that it's no longer necessary, indeed if it ever was, to use the C10 as a key classification.  Obviously in the teachers' case the Full Bench used the key classification, the classification of proficient teacher who has a degree and has obtained registration to be the key classification, and did not seek to align the award there with the C10 classification in the Metals Award but rather used the top classification of C1A.


JUSTICE ROSS:  Similarly, in child care.  It wasn't focussed on the C10.


MR McKENNA:  Thank you, your Honour.  The ANMF's primary submission is that the Commission, the Full Bench does not need to go through the process of identifying a key classification then applying the three step Metals framework test discussed in ACT Childcare.  But in the event that it does, it is the ANMF's case that the appropriate key classification to use is that of registered nurse grade 1 – sorry, Level 1, pay point 1.


Nursing care is provided under the Nurses Award, under the supervision of registered nurses and it would not make sense to view a nursing assistant and not a nurse whose employment is solely to assist the RN or EN in the provision of nursing care to persons as being the key classification in the Nurses Award.


The position put by the employee interests at the moment is a little unclear.  It's the subject of question 4 in, I think it's background document 8, as to what they say would be the consequence flowing from the alignment that they have identified with the registered nurse to the Metals framework.  That is a matter that we may need to reply to.


What, in our submission, the employer interests do not do at this stage is deal with the issues of internal relativities.  So step 2 and step 3 seem to have been forgotten in the employment response to step 1.




MR McKENNA:  But yes, two and three, that's why the question is put.  The ANMF's position as to the utility of the AQF is similar.  It is submitted that it may provide some assistance in assessing work value reasons, especially with respect to identifying the level of skill involved in doing work, but it is of course, not a complete proxy for determining workload.


Can I then turn to respond to the position of the employer parties with respect to work value reasons justifying the increase.


As we understand the employer parties' position, it is that AINs and PCWs with a Certificate III.  ENs and RNs at least in residential care are performing work, such work being significantly changed over the past two decades, warranting consideration for work value reasons.  I also accept that an increase to minimum wages is justified on those grounds in respect of those categories of employees.  The employer interests do not identify a quantum of increase said to be justified to those employees, save that they do not support a uniform increase of 25 per cent in respect of these classifications and identify an appropriate increase of 35 per cent to registered nurses.


Now, as the Full Bench would be aware the application brought by ANMF is for 25 per cent increases for all classifications in both the Nurse's Award and the Aged Care Award.  Section 157(3) makes it clear that the Commission may make a determination of its own initiative and as emphasised in the Pharmacy case, the Commission is not confined to the matter raised by the interested parties.


The Commission can and should increase minimum rates for registered nurses in aged care by 35 per cent, if, having a regard to the evidence, the Commission determines that a 35 per cent increase for registered nurses is justified and is necessary to achieve modern award objectives.  However, the ANMF is not asking the Commission to apply a 35 per cent increase based upon an application of the minimum framework in a way that is divorced from work value reasons.


Nurse practitioners and assistants in nursing that do not have a Certificate III, appear to be outside the category of employees that the employer interests recognise as warranting consideration for value reasons and deserving an increase of minimum wages is justified on value grounds.  Now, there is some uncertainty arising from paragraph 4.47 of the joint closing submissions with respect to employees, AINs and PCWs who do not hold a Certificate III but who do possess the equivalent knowledge and skills.  Now, under the current classification those employees are in the same classification, they are aligned with the AINs and PCWs who have the certificate III and it's not presently clear whether the employer interests accept that they too, deserve or are entitled to an increase on work value reasons.


JUSTICE ROSS:  You might take that on notice too, Ms Rafter.


MR McKENNA:  The question put by Mr Gibian this morning or raised through the Full Bench of the employer interests about whether the employer interests recognised the increased work value, or recognised that personal care workers with a Certificate III, working in home care were subject to changes to work value reasons, as also justifying an increase.  I understand that is a question that has also been to the employer interests through the Bench and it may be appropriate also for the employer interest to respond on the other classifications in home care, so ENs, RNs and nurse practitioners working in home care.


As to the admission of references to nurse practitioners from the employers, recognition of classifications warranting an increase, the conclusion appears to arise from the employer parties' position that that fit does not have the same clarity for nurse practitioners as there are for registered nurses.  It's submitted that to suggest that nurse practitioners and RNs without Certificate III are immune from the system-wide changes affecting RNs, ENs and PCWs with a Certificate III, is under-sustained.  Likewise, it's difficult to see how – well, it's unsustainable in circumstances where the workers focussing upon AINs who do and who do not have a Certificate III, each perform work of a similar nature, each exercise similar skills and responsibilities.  Each perform work under the same conditions and each undergo substantial training including in-house training, whether or not they have the same qualifications.


Having regard to the headline topics which I'll return to in a minute, it's submitted that the work value changes that can be identified apply as equally at the top of the scale to nurse practitioners, and at the very bottom of the scale to AINs, PCWs without a Certificate III, as they do to the class cations that are in the middle.  Similarly, it's submitted that the basis for a distinction – if a distinction is drawn between the work value reasons for employees in classifications in residential care, as opposed to home care, then the basis for that distinction should also be rejected.  Mr Gibian addressed the Full Bench this morning and identified five reasons and the ANMF broadly agrees with those five reasons as suggesting that there's no basis for a distinction between the two.


Essentially, the key driver of change as to work value reasons are systematic across the industry, and likewise, a historical under-valuation is not limited to those working in residential care.  That will apply equally to AINs, ENs, nurses and nurse practitioners in home care and in residential care.


There is also a number of matters that have been identified as in dispute at least between the ANMF and the employer interests as to whether certain matters can and should amount to work value reasons, and if so, what weight should be given to them.  The first of those that I will address is staffing levels.  The employer interests question whether staffing shortages are the proper subject for work value assessment, or a separate issue entirely.  The employer parties go on to rely on the ACT Childcare decision for a proposition that increased work load generally goes to the issue of manning levels and not work value.  But whether an increase in work loads leads to an increase to pressure and skills and the speed in which vital decisions are made, then it may be relevant to – it may be a relevant consideration.


Now again, that is one of the factors that was listed at paragraph 9 of the ACT Childcare case.  It's submitted that – additionally the joint closing submissions identify evidence from witnesses to preceding levels of staffing and describe those matters as things which should attract little, if any weight.


Several matters arise from those submissions.  Firstly, on the material before the Commission, it can comfortably conclude that there is chronic understaffing across the aged care industry.  This has led to an increase in workload and work intensity across all classifications.  The joint submission, as I read them, do not suggest otherwise, nor do the joint closing submissions contend that the changes to staffing levels are temporary.


JUSTICE ROSS:  But how does that fit with your submission on increase in wages, will contribute to attraction and retention which will alleviate the staffing issues.


MR McKENNA:  Your Honour, that assumes that all of the staffing shortages are a result of unfilled positions.  That is of course one – that is one factor contributing to short staffing.


JUSTICE ROSS:  How do we know what the respective way to influence is, different factors?


MR McKENNA:  Well, the primary - - -


JUSTICE ROSS:  Aren't there – I mean there are elements of the regulatory framework that a consequence would be a level of staffing, so many minutes per resident et cetera.  Are you suggesting that what, some enterprises are deliberately understaffed to save money as opposed to their not being able to recruit people.


MR McKENNA:  Correct me if I'm wrong, but the evidence is that there are staffing – there are two issues.  One is skill mix, and one is staffing levels.  And both of them have changed in such a way that there is additional work value reasons for staff - - -


JUSTICE ROSS:  Sure, but if we go back to the question, is there any evidence to suggest that there are enterprises that are reducing staffing levels, not because of an inability to recruit at the minimum wage level because that's a funded level, but as part of a deliberate strategy to reduce operating costs?


MR McKENNA:  I don't believe there's any evidence in those terms but - - -


JUSTICE ROSS:  You say there is understaffing which leads to an increase in workload.


MR McKENNA:  I'm sorry, I missed that, your Honour.


JUSTICE ROSS:  You say, as I understand it that there's a level of understaffing which leads to, or had led to an increase in workload.  What do you say is causing that level of understaffing?  Firstly, if you identify the evidence about the understaffing, and that may not be contentious.  But then what's driving it?


MR McKENNA:  Some of it will be an inability to recruit.  Some of it will be the levels of rostering in facilities, and indeed the number of clients that are allocated to home care workers.  What there isn't any evidence of – there is evidence of pressures on – there is a substantial body of the pressures that impact upon frontline workers because of - - -


JUSTICE ROSS:  No, I don't dispute that.  It's the argument that, well, part of that, as well as the changes in the nature of the work and the residents and the home care clients, et cetera.  It's the proposition that part of that additional pressure is driven by workload related to understaffing.


But what we don't know is – well, part of the understaffing problem which is consistent in the evidence and the other submissions is, the wage rates are too low.  If the wage rates were higher, and it's also the Commonwealth's submission, then that would act to retract and retain more staff, and meet the needs of the sector in the short, medium and long term.


But if you take that argument then increasing the wage rates resolves part of the workload issue that is referable to understaffing.  And I'm just trying to come to terms with, well, where is there any evidence that tells us of another impact on staffing levels other than the ability to attract and retain on the current wage rates?


MR McKENNA:  I press the submission and I accept that I can't point to particular evidence in support of it, but that shortages are not limited to inability.  The inability to recruit and retain is an element contributing to staff shortage.


JUSTICE ROSS:  Is it the most significant element?  Given there doesn't seem to be anything else in the evidence.


MR McKENNA:  I don't think there's any dispute that there are financial pressures in the industry.  And - - -


JUSTICE ROSS:  Except that you say the report the joint employers want to rely on to make that point shouldn't be relied on.


MR McKENNA:  Say again, I'm sorry?


JUSTICE ROSS:  But aren't you putting that the report the joint employers seek to rely on to make good a proposition like that is one that you give no weight to?


MR McKENNA:  It's a matter of a consensus statement.  It's not a matter in dispute.


JUSTICE ROSS:  What's a matter of a consensus statement?


MR McKENNA:  That there are financial pressures in the industry.


JUSTICE ROSS:  Where would I find that?


MR McKENNA:  I may have had in mind the final part of that statement that says a decision by the Fair Work Commission to increase minimum wages - - -


JUSTICE ROSS:  Yes, but that's not - - -


MR McKENNA:  It's not – I accept that.  I accept that.  Can I say this, your Honour - - -


JUSTICE ROSS:  It also talks of, in terms of – it's got a heading, 'Attraction and Retention.'




JUSTICE ROSS:  And so it seems that that was a consideration in the need for wage increases.


MR McKENNA:  Your Honour, the primary submission of the ANMF is that the Commission – there are a number of matters that are speculative.  The Commission has evidence before it of staffing shortages, and of course, skill mix is entirely separate to the discussion that we're currently having.


There is also evidence of missed care, that there is a substantial amount of work which is just simply not being done.  So even when - - -


JUSTICE ROSS:  But the work not being done is related to the fact that they're not able to recruit.


MR McKENNA:  At least, in part.  I accept that.  But once those additional staff are recruited one presumes that the first thing that will happen is there'll be less care being missed.  It's not the case that people will be sitting around having cups of tea, or that the work will be fundamentally less intense, or that there'll be fundamentally more time to make decisions, or less pressure.  There is a gap in the service that is being provided.


JUSTICE ROSS:  What we don't know though is, even accepting that, it's not necessarily going to be a zero sum game, is it, that there'll be an increase in staffing which will only be enough to meet the gaps.  There's no basis for that proposition.  Accepting there are gaps, and to some extent an increase in staffing will go to filling those gaps, I think you can accept that as a matter of logic.  But you can't take it to the next step and say that there'll be no other reductions in workload, it'll only be used to fill gaps.


MR McKENNA:  No, and in - - -


JUSTICE ROSS:  And you don't know to what extent it will be used to fill gaps, as opposed to reducing workload.


MR McKENNA:  Yes.  None of this is known.  It is all speculative.


JUSTICE ROSS:  It sounds a bit like that, known unknowns that went around in circles.


MR McKENNA:  It does.




MR McKENNA:  But in my submission there is evidence before the Commission of what is happening at the moment.




MR McKENNA:  What will happen tomorrow is speculation.  It might be that, yes, there are a number of areas where conditions may improve.  They may not.  There is evidence of what is happening now and that provides the basis for an assessment of work value reasons.


Conveniently, the next issue that I wanted to address is the relevance of attraction and retention.  I think the ANMF is on its own in saying that attraction and retention is a matter that is relevant to work value reasons.  All parties, as I understand it, accept that it's relevant to the objectives.  But it is only the ANMF that says that it's relevant to work value reasons.


JUSTICE ROSS:  Just before you launch into a retraction or a defence, one or the other, but I found the submissions about the modern award objectives slightly curious in as much as I follow the argument about why it's relevant to (c), social inclusion and the like, but I wondered why it also isn't relevant to the impact on business because the consensus statement, which at least the union parties are fond of taking me to, provides that under attraction and retention:


Providers of both aged care and disability support would benefit from an alignment of wage levels to support the mobility and aggregate supply of staff in both sectors.


So, if you take the proposition which, on its face, seems logical, that you increase the wage rates, that will attract more workers to the sector, which will alleviate what is common ground, a shortage of aged care workers, why wouldn't that have a - it's got a negative impact in the sense of any cost, residual costs associated with the gap between any funding support and the increase and what it means - I follow that - but it may not all be negative.  The impact may not all be negative.  It may, by providing access to a broader range of employees and addressing the attraction and retention issue, that might be a positive thing.  Certainly reducing turnover would of itself be useful because turnover costs are not insignificant.


I am not seeking for you to answer this today, but it might be something for you to consider that it's an issue that may arise under both considerations.  But, in any event, let's focus on the more interesting proposition.


SPEAKER:  We did make a submission of that type with respect to both (d) and (f), I think.


JUSTICE ROSS:  I think the Commonwealth only goes to (c) and I think the ANMF does.  I think the employers are sort of, well, engaged in a mild fence-sitting exercise saying it may be relevant, and you can take it will be wanting to test that proposition.  It may not lead you to conclude that the objective would favour increases, et cetera, but it does seem to be a matter that would arise under (c) and (d).


MS HARRISON:  I confirm we will address that in my closing submissions.


JUSTICE ROSS:  Thank you.  So back to work value and the loneliness of your position.


MR McKENNA:  So the ANMF submits that attraction and retention, although not perhaps put in that way, is related to work value reasons where direct care workers are leaving the industry in large numbers.  That's a proposition that's uncontroversial.  The Commission has evidence from direct care workers about their own assessment of the value of the work that they are performing and, indeed, that a number of them are choosing or have chosen to leave the industry to get different and better paid work.  It is accepted the first part of that is opinion evidence.


JUSTICE ROSS:  And subjective, yes.


MR McKENNA:  Well, it's opinion evidence, but it is submitted that that opinion is based upon the real life experience of those - and perceptions of direct care workers in circumstances where they know the nature of the work they are performing, they know the level of skills and responsibility that is involved in performing that work and they know the conditions under which the work is done.


JUSTICE ROSS:  Just as a general observation, there aren't too many of us who would think that we're overvalued.


MR McKENNA:  I'm not sure that I'd embrace that.


JUSTICE ROSS:  Speaking for yourself or?


MR McKENNA:  Speaking for myself.


JUSTICE ROSS:  I wouldn't be saying that with your client sitting near you.


MR McKENNA:  Perhaps as a profession.


JUSTICE ROSS:  Yes.  Well, as a profession, I could embrace that, but you can understand that it's a natural human response to feel perhaps underappreciated, and it's not disputed here that the rates have not been properly fixed and that might also contribute to a level of dissatisfaction with those current rates.  It's the sort of comparison that was referred to by Mr Gibian about people look at what someone gets paid elsewhere in order to try and make an assessment of their relative worth, and the idea that, you know, dropping a can of baked beans is somehow regarded at the same level as caring for an elderly resident - - -


MR McKENNA:  Or indeed that it shouldn't be.




MR McKENNA:  Those are the sorts of assessments that workers are conducting.  Workers are actually leaving the industry.  It's not simply the case that they are dissatisfied with their wages and grumbling.


JUSTICE ROSS:  It sort of sounds a bit like a relativity argument that you've (indistinct) elsewhere, that they look to other sectors to see what they're paid and what they're doing and compare it with what they're doing in aged care and the rate of pay they get.


MR McKENNA:  That is a part of the argument.  They know what they're paid, they know what they can be paid elsewhere, and they leave.  In our submission, what the Full Bench can take from that is that the work is underpaid, that the nature of the work, the conditions of the work, the level of skill and responsibility exceed the amount that they are paid for that work.


JUSTICE ROSS:  But each of those elements have a degree of objectivity about them.


MR McKENNA:  It is based upon opinion evidence.  It's objective in the sense that they believe that the nature of the work is such that they would be better in a different industry, better with a different line of work where they would be paid - they may be paid more, they may be paid less, but they are not going to be doing work of the nature that they are doing at the rate that they are being paid.


JUSTICE ROSS:  Yes.  Given the way it's put, it would be of assistance, given you will be filing some other material, if you can just identify the witnesses which deal with that issue expressly.


MR McKENNA:  Yes.  Some of the evidence is identified in the closing submissions.


JUSTICE ROSS:  Yes, it's just whether there's any more.


MR McKENNA:  There is one more statement from Irene McInerney.  It's not - it goes beyond - it's hearsay and opinion, but what she says is that - well, some of it is.  What she says is:


The word day leaves me feeling there isn't enough of me to go around.  It's that simple.  But I do get the reward from achieving a difference in the resident's day.  Many staff decide it's too hard on them mentally as well as physically and they leave the aged care sector.  They leave as the pay isn't attractive enough for a difficult work environment.


Now, I accept that that is both opinion and hearsay, but that is consistent with the direct evidence or the direct opinion of other direct care workers.


JUSTICE ROSS:  Okay.  I will still give you the opportunity to identify just in a short note the direct evidence and the evidence you have just referred to.


MR McKENNA:  Certainly.  We acknowledge the authority reflecting a reluctance to provide rates of pay which are designed to attract employment to a particular industry in previous federal and state tribunals.  We say two things about that.  Firstly, the ANMF's submission is not that the Commonwealth should set attraction rates per se, that is, wage rates set at a level which are perceived as necessary for an employer to attract and retain sufficient labour, the submission is rather that the Commonwealth is entitled, in deciding whether the particular rates properly reflect the skill involved in doing the work, its nature and the conditions under which it is done, to look at evidence or workers voting with their feet and the assessment that those workers have done about the comparability of different kinds of work.


Secondly, each of the decisions relied upon in support of the proposition are distinguishable - sorry, each of the decisions which have been relied upon in opposition to the use of attraction rates are distinguishable and none of them have arisen in a case under the Fair Work Act involving a direct application of section 157(2A).  One of the authorities that does deal with this question is the COVID-19 Care Allowance case [2020] FWCFB 4961.


JUSTICE ROSS:  Sorry, can you just give me the reference again?


MR McKENNA:  Of course.  [2020] FWCFB 4961.  Obviously that is a decision that did arise under the Fair Work Act, but it was not concerned with a variation to minimum award rates.  It related to an allowance that was sought, and so it didn't directly call up section 157(2A).  Just bear with me a moment, please.


JUSTICE ROSS:  Allowance is not in the definition of modern award minimum wages.  They cover a range of other issues, general rates, et cetera.  I'm just wondering if they cover allowances.


MR McKENNA:  Look, I don't believe so, but if I've misled the Commission, I will make sure that I correct it.


JUSTICE ROSS:  Sure, thanks.


MR McKENNA:  The next issue that I propose to address is COVID-19.  Commissioner, you asked a question about the status of the evidence and I can start with that.  The issue of COVID-19 is addressed in the ANMF's closing submissions at paragraph 739 and following.  A number of aspects of the evidence that we would rely upon are at paragraph 742, there is an extract of the evidence of Ms Chrisfield.  Ms Chrisfield is Occupational Health & Safety Team Manager of the ANMF and what she says, amongst other things, she gives evidence that each aged care facility is now required by the Aged Care Quality and Safety Commission to have an IPC lead within their service, whose role is to maintain oversight of IPC practices and facilities together with other matters, and I should say IPC is Infection Prevention and Control.  Ms Chrisfield also says that this role, that's the IPC lead role will continue to be required post-COVID-19 and will hopefully reduce the level of gastroenteritis and influenza outbreaks in aged care.


Commissioner O'Neill, you also referred to the evidence – or perhaps it was my learned friend who referred to the evidence of Mark Sorley, that's set out at paragraph 743 of the closing submissions, and its cross-examination at paragraph 12900 and I'll read that unless people have it in front of them.  The question was put to Mr Sorley:


You would also agree it is also the case that from your experience (indistinct) at least, that the pandemic has taught lessons in relation to infection control procedures generally in aged care outside of COVID specifically.


Response:  Yes.  All our staff are now required to be infection-control aware and follow the expertise of the infection-control advisers.


And the following paragraph, the question was:


Those are lessons which you, (indistinct) at least, would wish to incorporate into the general provisions of aged care services going forward, irrespective of what happens with COVID in coming.


Response:  I think yes, definitely.


There's also evidence from front line workers, including Ms Bayram who was a registered nurse.  This is set out at 753 of the closing submissions.  She says:


That as a result of COVID-19 there's been a significant increase in infection-control training and that is ongoing.


So, those are some of the evidential references that may assist.  As to the proposition more broadly, the employer parties accept that the COVID-19 pandemic resulted in an increase in infection control practices, the use of KPE and the necessary administration supplementing existing work practices.  They also accept that COVID-19 remains present in the Australian community and so the sector has to learn to continue to adapt to the changes of living with it in the community.  However, the employer interests have also contended that it's difficult to calibrate the impact of COVID-19 for those working in the aged care industry now and into the future.


Similar to what has already been said by my learned friend this morning on behalf of the HSU, COVID-19 is not a temporary event.  There can be no doubt that COVID-19 remains a significant issue for direct care workers impacting each of the work value reasons under section 157(2A).  Whilst it might be accepted the Commission can't know what the future will hold, this doesn't diminish the weight which it could attribute to the evidence of direct care workers about the impact of COVID-19 upon their performance of their work.  Difficult to predict the future course of COVID-19 does not make evidence related to work value reasons irrelevant or diminish the weight that should be attributed to it.


I'm grateful to Mr Hartley who's passed me a note in respect to the Your Honour presiding member's previous question about allowances being a form of minimum wages.  Section 139 of the Act deals separately with minimum wages and allowances.


JUSTICE ROSS:  No, no, I know it does.  It's whether it's a definition of modern award minimum wages and what that might encompass.  But that's fine, we'll - - -


MR McKENNA:  I think in that case, I'm still in the position that I was, that I'll come back to it.


JUSTICE ROSS:  No, that's fine; we'll return to it.


MR McKENNA:  One other issue of dispute as between the parties is a relevance of engagement with families.  The employer parties acknowledge different evidence from their own witnesses with respect to the level of engagement between direct care workers and the families or residents and clients in aged care.  The joint closing submissions of the employer part is fail to recognise the interaction between direct care workers and their families – and the families of residents or clients has become more frequent, more complex and more demanding.  The ANMF's submissions are set out in its closing submissions at part 4.6.6 and I rely upon those.


There is also some dispute as between the parties as to the relevance of technological changes and purpose-built facilities.  Again, these are matters that are dealt with in the ANMF's closing submissions in part E.11 and we refer the Full Bench to the submission that has been made without repeating them here.


Returning to the questions in background document eight and particularly, the issue of the inherent value of work and social utility.  The parties have been invited to respond to the HSU's submissions about the proposition of social utility of the work, where it's derived from, and in particular, which part of the legislative framework supports the proposed construction and how the social utility of work should be measured.


As identified in the HSU closing submissions, consideration of social utility or worth, or the value of work has been a feature of past assessments of work value.  The ANMF supports the HSU submission that the social utility or value of the work performed may operate to ensure that the work that is performed, largely out of the public view in residential aged care facilities or in people's homes, which has long been perceived as women's work and natural and not skilled, is not overlooked or undervalued.


It submitted that – to extract a quote from the Royal Commission final report, the Royal Commission found that the bulk of the aged care workforce does not receive wages and enjoy terms of conditions of employment that adequately reflect the important caring nature of the role.  So, to go beyond the submission put by the HSU, it's our submission that the Full Bench can have regard to or ought not exclude from its considerations, the important caring role that is played by aged care workers.  In our submission, that is related to the nature of the work.  It appears reasonably uncontroversial that is related to the nature of the work and in my submission, it's not something that should be excluded from work value considerations.


JUSTICE ROSS:  Is anyone arguing that the caring nature of the work should be excluded from the consideration of the work value?


MR McKENNA:  Well, to the extent that opposition is put to the Full Bench having regard to the social utility - - -


JUSTICE ROSS:  I think you can separate them.




JUSTICE ROSS:  Social utility seems to speak to a broader community value attached to the nature of the work, but whether or not you have regard to the caring nature of the work, which in the expert evidence might be described as soft skills, empathy, communication, interpersonal skills, et cetera, I hadn't taken that proposition to be contentious.


MR McKENNA:  Firstly, I'll leave it to any other party to dispute that proposition.




MR McKENNA:  But, to come back to the point, this, in my submission, is not limited to things like soft skills.  The quote that I've referred to identifies the important caring role that they play.  In my submission, that can go beyond skills and responsibilities.  It is the - - -


JUSTICE ROSS:  So you're talking about a societal benefit of the community broadly, et cetera, type role, which is similar to the proposition the HSU is advancing about social utility?


MR McKENNA:  It is accepted that there is no simple mechanism to measure that social utility.


JUSTICE ROSS:  I'm not even sure there's a complex mechanism to measure it.


MR McKENNA:  But, in that respect, perhaps it's not so different to much of the evidence that is before the Commission.  The Commission has a hard task in assessing work value reasons, but it is the Commission's statutory task.




MR McKENNA:  And, in my submission, this should not be excluded from that mix.


One other area of disputed relevance is the Stewart Brown report.  Your Honour the Presiding Member has made reference to it already.  I think, for now, it suffices to say that whether or not the - what weight the Full Bench could give to that report is a moot point.  The only work that it could really do would go to what is perhaps described as the affordability issue, which is something that the employer interests acknowledge is not relevant to the proper setting of minimum rates.  It may have relevance at some later point if the issue of a phasing is considered, and perhaps that would be the appropriate time to make further submissions about it.


Turning then to the changes in work value reasons relied upon by the ANMF to justify an increase in minimum wages, the ANMF has filed comprehensive submissions in its 22 July written submissions dealing with this issue at part E.  The approach taken by the ANMF has been to adopt the structure and the subheadings utilised by Commissioner O'Neill in the report to the Full Bench.  It's the ANMF's position that that is a valuable and useful mechanism to approach the evidence and a useful way of analysing the evidence.  So, the submissions are directed to those, I think, 14 primary topics with some subheadings.  The ANMF's submissions also include reference to COVID-19 as an additional topic.


The ANMF's reply closing submissions at part C1 also identify a number of points of agreement as between the ANMF and the employer interests with particular regard to the impact of increased regulatory requirements, increased incidence of complex health conditions and dementia and increased palliative care, consequences flowing from the adoption of person-centred care approach, enrolled nurses having developed supervisory responsibilities in respect of personal care workers and AINs and generally having more active supervisory roles, and changes to the work value of registered nurses.


To paraphrase submissions that are made in respect of different parts of this case, it is the ANMF's position that this evidence, this material, is the start point and the end point of the Commission's task.  Much of the written submissions have been devoted to matters of construction, matters of relevance, but this is what will inform, and must inform, the determination of the Full Bench in considering each of the applications before it.


I do propose to very briefly touch upon those things.  I certainly can't and won't attempt to identify anything but a very superficial review of some of that material, but turning first to the increased acuity and the more complex needs in residential care, it has been recognised as uncontentious in this proceeding that the acuity of residents and clients in aged care has increased, and that is applicable both in home care and residential care.


As identified by Christine Spangler, an AIN/PCW, her evidence is that:


Acuity is higher than it used to be, people tend to stay at home longer because of home care packages, so by the time they get to us, their needs are a lot higher.


Ms McInerney, a registered nurse, describes her facility as feeling like a hospital with a lot less staffing than in the public sector.


Mr Gibian has identified some statistics which he describes as identifying quite a remarkable change and the ANMF would echo that description.


Turning then to changes to staffing levels and skill mix, the changes to the skill mix is encapsulated in the figures in the 2016 NILS, which identifies that the composition of registered nurses in the direct care workforce in residential aged care reduced from 21 per cent in 2003 to 14.6 per cent in 2016, and whilst the total aged care workforce increased by a third over that period, the actual number of RNs decreased by 6.5 per cent.


Reductions have also been identified in the percentage of enrolled nurses in residential care and registered nurses and enrolled nurses in home care.  That is reflected in the lay evidence, summarised in the lay evidence report, to the effect that several witnesses gave evidence that there are fewer RNs, which puts greater demands on RNs and ENs and personal carers.  The consequence of this change is described as leading to a seismic shift in the role of AINs, ENs and RNs by Paul Gilbert, the assistant secretary of the ANMF in the Victoria branch.


The next theme is changes to the philosophy and models of care.  To highlight that, I would refer to the evidence of Virginia Mashford, who is an AIN, who says as follows:


Regis Wynnum operates with a person-centred model of care.  I agree with this approach, but providing person-centred care requires resources.  I have to meet the requirements that residents have of me and the expectation of high standards of care that Regis say they want to provide.  It is right that residents have a choice and control over their lives, but giving residents choice to do things requires a lot more resources.


She goes on to say:


Things are prescribed and timed, like meals and medication rounds, so it can be very difficult to accommodate resident choice.  For example, if I'm getting a resident ready for bed and they say they want to stay up for another five minutes, it may be difficult to do this.  I will have other residents who will also need assistance getting to bed and may not have time to be able to come back to that resident until much later.


On that issue, Emma Brown, who is a special care manager at Warrigal, described a change in emphasis where offering choice places the emphasis on the care workers having to have understanding and knowledge of each of the consumers to ensure that their choices and preferences are followed.  Ms Brown identified that this has impacted on RNs who are conducting the assessment of care plans.


In relation to changes to accountability, regulation and residents' expectations, there are a number of subcategories under that theme:  the serious incident response scheme, active accreditation, reduce use of chemical and physical restraints, observation and documenting responsibilities, including charting and making progress notes, care plans and interaction with family.  There is a substantial body of evidence related to those subtopics.


The evidence of Ms Butler, the federal secretary of the ANMF, is that between 1982 and 2021, there were at least 72 inquiries and reports into aged care.  She describes a range of reforms arising from those inquiries and reports, and reports that the pace of that reform has accelerated substantially in the last three to five years.


Under this topic, the reduced use of chemical and physical restraints provides a useful example.  Recommendation 17 of the Royal Commission has given rise to new specific responsibilities of aged care providers and amendments to the quality of care principles with respect to the use of restraints.


In relation to skills exercised by aged care employees, again this is a topic that has a number of subtopics, including observational skills, interpersonal skills and a number of skills dealt with under the subheading of 'Clinical Skills'.  So that's clinical observations, dealing with falls, wound care, skin care an bruises, catheters, medication and interpersonal skills.


With respect to those items the evidence establishes the direct and immediate consequence of changes to the nature of aged care work, such as increased acuity of residents and clients, changes to staffing levels and skill mix, changes to the (indistinct) models of care, changes to regulation and changes to residents' expectations.  It means that each of those skills is used more regularly and at a higher level.


Dealing with the theme of specialised knowledge and care, the lay evidence report deals with specified topics of dementia care and palliative care.  Those are both areas of increasing significance within aged care given the increased portion of people with dementia, or dementia associated conditions receiving aged care services, and the shorter stay of residents in aged care facilities and increasing prevalence of residents choosing to receive palliative care in their home or facility rather than going to hospital.  Both of those matters involve and require the use of technical skills and emotional skills.


The next identified thing is the impact of death of residents and clients upon workers.  This issue is addressed succinctly in the evidence of Wendy Knight, an enrolled nurse who says there are now a far greater number of residents who spend their end stage at the facility rather than going to hospital.


'That is usually specified in the advance care plan where they specify that they want to stay at the facility.  I think that dealing with end stage and death of a resident who treat us as part of the family, requires skill and an advanced level of emotional competence.


Finding the balance between privacy for families, explaining what is happening, to families, providing care and separating our own emotions is all quite challenging.


On top of that we often have to shepherd newer staff members through the process.  Very rarely is the doctor present, except initially around medications, or after death to sign the death certificate.'


With respect to the theme of physical and emotional aspects of working in aged care, the lay evidence report notes at paragraph 512 that a large number of witnesses gave evidence that the provisions of aged care was physically, mentally and emotionally taxing work.  Almost without exception, this is what the aged care workers have told this Commission.


The theme of incidents and strategies to deal with violence and aggression, I'll deal with in a it more detail because it has been the subject of a question from the Full Bench, in particular, having regard to authorities to the effect that the minimum award wage rates and allowances should not seek to compensate for the risk posed to employees from being required to work in dangerous conditions.


The focus should be on removing any risk to health and safety, so far as is practicable, rather than paying an employee to put up with it.  And of course, the quote that is often relied upon in that context from Commissioner Bennett in Vickers Cockatoo Dockyards, is that the Commissioner said that, 'I am of the opinion that if the work in question is dangerous then it should be dealt with.  It should be a matter of removing the danger rather than of the fixing of a penalty amount.'


There is undoubtedly an abundance of evidence before the Commission as to the increasing dangers faced by direct care workers.  Some of that evidence is addressed and identified in the ANMF closing submissions at part E9.  The primary relevance of that evidence is not that employees should be paid to put up with it, but rather that that relates to work value reasons.


However, as was recognised by the Full Bench in what I previously described as the COVID-19 allowance case, the full title being the 'Application to vary the Social Community Home Care and Disability Services Industry Award', it was there recognised that he principal identified by Commissioner Bennett has limitations where the danger cannot be removed, and the employees are nevertheless required to perform work that is in essential service.


The provision of aged care is a service that provides care to vulnerable older people, that can't be stopped when dangerous situations arise.  Aged care workers can't walk away from residents and clients in need of assistance.  The requirement for care is continuous, regardless of the danger, and so it might be distinguished from other industries where work can simply be stopped until the danger is removed.


Additionally, some of the dangers involved in the provision of direct care can't be eliminated as there will always be some risk in providing direct personal care to persons suffering from cognitive impairment.  Whilst it would be possible to mitigate or remove some of the dangers in aged care, legitimate policy reasons have prevented those dangers from being removed, and in some circumstances made the work more dangerous.  This is exemplified by the reduced use of physical and chemical restraints.


As identified by Sheree Clarke, an AIN, she describes medications as being a quick and simple way of dealing with behavioural problems.  The reduced use of physical and chemical restraints inhibits the ability of direct care workers to remove a potential risk from their work environment.


Navigating dangerous work conditions has involved the development of skills, as has been identified in the lay evidence report.  Several witnesses gave evidence that they have learnt how to deal with behaviours and aggression in residents, including developing strategies such as distraction, de-escalation, and some of those having been identified in the Certificate III and Certificate IV training.


Witnesses commonly identified that they had learned strategies including formal training about how to deal with aggressive and dangerous behaviour, such as using


de-escalation and distraction strategies.  The evidence leaves little doubt that a high level of skill is required to identify, prevent and de-escalate violence and aggression and there is no basis to ignore that skill in assessing work value.


Direct care workers also bear heavily the responsibility to protect other residents from the risk of violence and aggression, and for example, Shelly Clark, an AIN, gave oral evidence about the responsibility she had to a potential victim where a resident was acting aggressively, going towards another vulnerable older person.  She described it, you can't just walk away but rather, you've got to do what you can to get the attention back on you and away from the vulnerable person.


As the prevalence of dementia and other cognitive impairment increases in aged care, so too will the danger of the work and the need for direct care staff to have and exercise additional skill and responsibility for their own health and safety, and that of the residents and clients.  The nature of the aged care work and conditions under which it is done have become more dangerous, which in various ways relates to work value reasons.


Dealing with the theme of supervision, the consensus statement at paragraphs 15 and 16 recognise the increasing managerial responsibilities of registered nurses, and the increase in the proportion of PCW's in AIM's and aged care with less direct supervision.  In the lay evidence report it is also recognised that evidence from lay witnesses is consistent with the consensus statement in that respect.


Technology, I won't deal with, having referred to it earlier but that is the next theme.  Qualifications and training – there is a body of evidence to establish that there is a greater proportion of providers who require formal qualifications, and there is a greater prevalence of additional training qualifications, some of which is obtained at the initiative of the employee, some of which is mandated by employers, including some inhouse training.


With respect to attraction and retention and workload and wage rates, those are matter that have been previous addressed, as have the last three of the themes, gender pay gap, inherent value for work and COVID-19.


If the Full Bench pleases, I do have further submissions to make with respect to the objectives and some of the changes sought to the schedules to the awards, but at this point, Mr Hartley will address the Full Bench on the historical under-valuation.  If the Full Bench pleases.


JUSTICE ROSS:  Thanks Mr McKenna.  Mr Hartley.


MR HARTLEY:  I'll just steal Mr McKenna's microphone.  I might start if I can, by answering a question that Justice Ross, you asked my learned friend earlier today about the contributors to the gender pay gap.  The question was, is not occupational segregation the most significant contributor?  The answer, I think, your Honour is, it depends who you ask, but if you ask KPMG, the answer is no.  It is gender discrimination.  I'll give your Honour the reference to that.


If your Honour will look at, or if your Honours will look at in the Smith Report, page 4857 in the digital court book which is – I beg your pardon, I meant to say 4859, which is paragraph 24, there's a reference to analysis of the GPG in 2019 which was one of the more recent econometric analyses.  The Commission will recall that Professor Smith performed analyses both on an econometric basis and also an institutional and sociological basis.  She is referring here to the econometric analysis and refers to a 2019 KPMG report, last sentence:


The result of this approach showed that the most significant component contributing to the GPG in Australia was gender discrimination accounting for 39 per cent in 2017.


The reference is to KPMG 2019, page 25.  One sees from page 4917, that's where the full reference is given to that KPMG report.  It's a report entitled 'She's Price'd less', so price less or priced less.  The economics of the gender pay gap, prepared with the Diversity Council of Australia and the Workplace Gender Equality Agency.  One sees on page 24 of that report, a series of bar graphs which break up into components, proportions of contributors to the gender pay gap; the largest is gender discrimination.  The next two largest, at least on my viewing of those bar graphs are – I'm sorry, the next one is years not working due to interruptions, and the following two are occupational segregation and industry segregation.  When one looks at page 25 of that document, you're given a table which is much more useful in figuring out what the percentages actually are.


We certainly don't shy away from the proposition that occupational segregation is a very significant component to the gender pay gap.


JUSTICE ROSS:  What percentage to they attribute to occupational - - -


MR HARTLEY:  In 2014, they gave occupational segregation 20 per cent and industrial segregation 11 per cent.  By 2017 they said that had declined to 8 per cent for occupational segregation, 9 per cent for industrial segregation.  So, 17 per cent altogether.  But that seems to have shifted pretty rapidly in about three years, so it's difficult to know what the trend is or if there is a trend.  In any case, Professor's Smith's citations of the KPMG report as being one of the more recent econometric analyses, is what supports the proposition that gender discrimination remains the most significant, at least on the views of the authors of that report, occupational industrial segregation are significant.  Your Honours will see, if you return to Professor Smith's report, starting at paragraph 25.  What Professor Smith does is then explain how it is that occupational segregation feeds into the gender pay gap.


I'll deal with that now I think, rather than where I intended to in the running of things.  What Professor Smith says is that exactly what component of the gender pay gap is contributed by occupational segregation is very debatable and it depends on who you measure it.  There are the ANZ, SCL major occupational groups, and depending on what level of specificity one descends in analysing the data, one will come up with different answers, as to who much is contributed.  So, what Professor Smith draws attention to is that the lower you go, the more specific you get, the more you find that occupational segregation contributes to the gender pay gap.


One sees in paragraph 29 that Professor Smith cites with evident favour, an assessment done in 2014 by an author, Coelli, who descended to a more specific disaggregated occupational data and found that there was a significant contributor to the gender pay gap.  That's explained further in paragraph 30, that particular study.  In paragraph 32, Professor Smith draws attention, in about line 5 to the fact that the extent of influence varies depending on how it is that you measure and was found to 'explain' between 12 per cent and 51 per cent of the GPG.  So, there is a very wide range, which is why one can't help but adopt Professor Smith's perhaps conservative summary in paragraph 33 which is the gender differences in occupational workforce composition is an important contributing factor on the size of the GPG, but exactly what percentage, who can say.


Now, we don't have a difficulty with any of that, because the question that one asks oneself when one decides that occupational segregation is significant, is why, is occupation segregation significant.  Professor Smith and Professor Juno both say, it has to do with the fact, at least in part, that femininised work is undervalued.  So, the fact that the aged care workforce is one, which is characterised marked occupational segregation, is something that supports our case; it doesn't detract from it.  I'll come back to that in a bit more detail when I get to that stage of what I had intended to say.


A few other just quick preliminaries.  I want to be clear in saying that when I refer in my submissions – we've said this in writing, but just to be clear, when we refer to 'women's work' or 'feminised work' plainly what we aren't saying is that this is work that is only appropriate for women.  What we are saying is that stereotypically, it has been seen to involve skills that have historically been linked with the female gender, and for that reason, been undervalued.  We say that's wrong, and shouldn't continue and should be corrected by recognising the skills that are brought to bear.  So, I don't say that in any derogatory or deprecatory way.  I just want to be clear about that because there was a submission made by the employers to the effect of saying, well, men do aged care as well.  We say, so what.  That doesn't mean that it doesn't involve the stereotypical view that this is women's work and therefore is undervalued.


JUSTICE ROSS:  I wonder to what extent do we need to go down the pathway?  It's not a general enquiry into the drives of the gender pay gap.




JUSTICE ROSS:  Nor is it necessary to form a view that there was gender undervaluation that contributed to the low – to the current rates in the award.  The fundamental task, it's one that you've brought us back to with 1472(A) is to look at that, and I guess it brings me back to the question that I put to Mr McKenna, that that is, is anybody putting that you don't take into account the skills involved in caring for elderly clients or residents, the need to communicate with families, the need to deal with end of life circumstances and the skills involved in dealing with people with dementia and who are cognitively impaired.


Now, I don't take the employers as saying that no, you don't look at that.  They have a view about the extent to which different groups have to exercise those skills when they are called upon, but there's no – doesn't seem to be any dispute that yes, you look at them, and you look at them as part of a process of properly fixing the rates, because they fall within the rubric of work value reasons.


MR HARTLEY:  They certainly do.  I don't understand the employers to be disputing that.  Where the importance of these submissions arises, in our submission, is in this way, and I might illustrate it if I can, by something that Mr Gibian was addressing earlier today and something that the employer said in their reply submissions from about paragraphs 3.22 to 3.27.


What they do there is to say spotlight skills are used in every job.  Everyone needs to communicate with co-workers, everyone needs to be able to put themselves back on track when they've been take off track, and they set out quotes from the Manufacturing Award and say, well, for example, 'exercises good interpersonal and communication skills', is within the job description of a manufacturing worker, therefore there can't be any gender based undervaluation because everyone is exercising spotlight skills.


Our answer to that is a few-fold, one of which I'll come to in a bit more detail, but another one of which I'll make by reference to what appears on page 19 of the closing submissions, which is this.  One of the spotlight skills is spotlight skill level A2, 'monitoring and guiding reactions, and the employers say, well, that's similar to, quote, 'exercises discretion within the scope of this classification level', and we say, not it's not.


Or spotlight skill level B1, negotiating boundaries, and the employers say, well that's similar that it performs non trade tests incidental to their work.  We say, no it's not.  And you can see this by looking at some of the examples given in Professor Junor's report at page 4982 of the court book.  So this is in the selective activities, 'Illustrating use of spotlight skills for enrolled nurses.'


Negotiating boundaries, according to Professor Junor, includes thins like this:- initiate service acceptance; navigating intense fear and shame; or prioritise advocacy for resident's rights; for judging impacts or, I'll say, monitoring guiding reactions; respond to the grief and sadness of residents at loss of independence and possessions – and we say that's not the same thing as, 'exercises discretion within the scope of this classification level.'


So the point is this, that the reason why we emphasise that these are skills that have to be taken into account, is that it happens, and the employer submissions are an example of this, but the skills are wrongly discounted.  They are characterised in a way that doesn't reflect the true character of the skill.


JUSTICE ROSS:  No, I follow the point.




JUSTICE ROSS:  But my point was more that the employers are not contesting you take them into account.  They're arguing that they're already taken into account - - -




JUSTICE ROSS:  Or alternatively, they're not exercised by all employees.  So the difference between you is, what does the evidence actually show about the utilisation of those skills.  It's not that those skills shouldn't be taken into account as a general proposition.  It's, how do you translate the general proposition and put the evidence into that framework.


And as I understand your submissions and the HSU's is that, well, they need to be brought to account, they are exercised, they're of a different character and quality to the ones that the employers are seeking to draw a comparison with from the Metal structure.




JUSTICE ROSS:  And that is part of your argument, that the metal structure, while relevant, is impoverished, in a way.  It gives you one perspective.  But you need to look at the context in which the work is performed, and the full range of skills.


MR HARTLEY:  Your Honour has encapsulated the argument.


JUSTICE ROSS:  I understand that's the debate.  I'm just not sure how deep into the burrow we need to go around the gender pay gap.




JUSTICE ROSS:  The drivers and the like.


MR HARTLEY:  Can I answer your Honour's question in this way.  I think at a very high level and the way we put the submission, we put this part of the case is as follows.  We ask your Honours to award a 25 per cent pay increase.  And your Honours might look at the evidence about work value and say, we're happy that this evidence provides all the explanatory force we need to satisfy us that there is a 25 per cent higher value on this work than what the wages currently reflect.


Or the Commission might say, it's higher than the current wages but it may not be 25 per cent.  Why is it that the ANMF says that the work has been so drastically undervalued if it isn't only the changes in work value?  And our answer to that is, the other mechanism by which explanatory force is provided is that the wages or a manifestation of, or a contributor to, the gender pay gap.


JUSTICE ROSS:  Yes.  But I'm putting to you that we wouldn't just look at the changes.




JUSTICE ROSS:  We would look at the skills that are being exercised, and the context.




JUSTICE ROSS:  Which would include the weight we give, bearing in mind the contest around it, to the sort of skills you've been identifying and the ones that are mentioned in the spotlight skills tool.


MR HARTLEY:  Yes, and if in doing that the Commission were to take the view that, yes, when all these skills are properly taken into account the result should be at 25 per cent pay increase, then the Commission may never have to make findings about things like gender pay gap.  But if the Commission took the view that now even when these skills are taken into account, we can't go all the way with the ANMF, and that is when we would urge upon the Commission, in particular – I'll take a step back. Professor Smith provides the theoretical framework for saying, why is it that you would look at a report prepared by someone like Professor Junor?


Professor Junor identifies what are the skills that have to be taken into account.  If the Commission accepts that all those are skills that must be taken into account, including perhaps because the Commission takes the view that there is nothing in the history of award setting that indicates they've been taken into account before, and the result is that there are more skills involved in the work than the wages reflect, then it's difficult to see that you'd need finding about gender pay gap contributors to it.


But that does involve the proposition that, as Professor Junor says, these skills are invisible, which is to say that they have not been recognised and the Commission would now, for the first time, be recognising them.




MR HARTLEY:  And so that's a reason why the Commission might find it necessary to understand the theoretical underpinning to Professor Junor saying these are skills that are invisible, and are not the same as skills that, for example, have been recognised in the Metals framework.  But that's, I think, the best I can answer your Honour's question at the moment.


What I had intended to do was to walk through in a bit more detail, exactly what it is that our expert witness is saying and if at particular points the Commission thinks, well, you know, this is all surplus to requirements then I can address questions as and when they arise.  But I think that's how we put it at a high level and now I'll get into the detail if it assists the Commission.


Before I do that, two other very quick points.  Point 1, all the page references I'm giving are to version 2 of the hearing.  I saw an email that came from the Commission this morning with a version 3 and the page numbers will be different.  I'm sorry about that.


JUSTICE ROSS:  No, that's all right.


MR HARTLEY:  The final preliminary is this.  Question 5 in background document 6, sought from the Commonwealth confirmation that the omission of a reference to registered nurses – the Commonwealth said, we support Professor Junor's analysis when it comes to PCWs, ENs, and we said we understood the omission of a reference to RNs to be inadvertent, if it is convenient for the Commonwealth I might invite them to answer that question now.


SPEAKER:  It was inadvertent.


MR HARTLEY:  Thank you.  I'm grateful to my learned friend. Now at a high level, our case on historical undervaluation involves, I think, five propositions which we say establish this part of our case, and the propositions are these, some of which are totally uncontroversial.  These are contained in the closing submissions at paragraph 16 – that doesn't sound right.  Bear with me, your Honours, I'm sorry.  I might be right.  It is paragraph 16.


In subparagraph 1, 'The aged care workforce is and has been overwhelmingly female.'  We understand that to be uncontroversial but I'll give your Honours the references.  At 16 subparagraph 2, 'There is a gender pay gap, a substantial part of the explanation for which is gender discrimination, knowing or unknowing.'  Subparagraph 3, we rely on the expert evidence to the effect that this has to do at least in part with stereotype views concerning feminised work and the invisibility of things that are in fact skills but aren't recognised as such.


Subparagraph 4, Professor Junor's tool, the Spotlight tool, is useful precisely for the purpose of identifying such skills and, subparagraph 5, when one does in fact apply that tool, one sees that there are a range of skills that are brought to bear by aged care workers which Professor Junor characterises as invisible, and we apply that tool in three ways.


The first is we rely on Professor Junor's analysis; the second is that we ourselves have analysed the evidence before the Commission and set out in an annexure to our closing submissions - it's annexure 1 - where we think there are examples of Spotlight skills being brought to bear; and the third is - it's a very small encapsulation of the point - but we seek to encapsulate the point by reference to the evidence of Mark Sewell.  The Full Bench will remember that there was evidence that Mr Sewell gave about attributes that aged care workers have, and our point is that those aren't attributes, those are skills.


I will come to that in a bit more detail, but that neatly illustrates the thesis, which is that well-meaning people look at an aged care worker and say, 'Well, this is a very caring person, a nurturing person, a humorous person, that is this person as an individual', but it's not, that's the exercise of skills, which are valuable and can be trained, and should be compensated.


Now, proposition 1, the workforce is overwhelmingly female.  One sees in paragraph 107 in the statement of Annie Butler some figures, which are reflected in annexure A to the Commonwealth's submissions, which are these - and I'll whip through these because they are in that annexure - 87.6 of residential registered nurses are females, 93.7 of community RNs, 91.4 per cent of residential ENs, 94.3 per cent of community ENs, 86 per cent of residential AINs and PCWs, 88 per cent of community AINs and PCWs.  So, very, very high percentages.


The employers submit in their annexure J at paragraph 4.13 that it's 30 per cent male workers.  They don't give a reference for that; we don't know where it comes from, but the evidence, we say, doesn't support that figure of 30 per cent male workers in the aged care industry.  That's proposition 1.


Proposition 2 is that there is in fact a gender pay gap.  Now, I'm going to make my submissions under this proposition largely by reference to the Smith report, which is at tab 166 of the court book, starting at page 4850.  It might assist the Commission to have also open the ANMF's reply submissions.  We start these from about paragraph 333, which is on page 89.  One of the points - - -


JUSTICE ROSS:  Sorry, what was the paragraph?


MR HARTLEY:  Paragraph 333 on page 89.


JUSTICE ROSS:  Thank you.


MR HARTLEY:  One of the points that's made in the employer submission is that Professor Smith is only using AWOTE data, which is adult full-time ordinary time average weekly earnings.  That's demonstrably wrong.  When one looks at page 4853 or the updated figures at 4951 to 4952, one sees that Professor Smith finds that there is a gender pay gap basically no matter how one measures it.  Whether you look at hourly earnings, whether you look at part-time workers or not, the amount differs, but there's a gender pay gap no matter which way you cut it.


One sees Professor Smith's conclusions at paragraphs 12 to 13, which are that there are variations in the GPG between states and territories and depending whether you're in the private or public sector, but the measurement is a substantial one, it varies between, for example, about 7 per cent in South Australia, 21 per cent in Western Australia.  The Workplace Gender Equality Agency measures it in a different way, but everyone that measures it finds that it exists, no matter which data they use.


Various other experts also gave evidence to the effect that there was a gender pay gap.  They were, in some cases, not cross-examined at all; in other cases, cross-examined very lightly.  There's no reason why, were this finding necessary to make, the Commission would feel any hesitation in finding that there is, as a matter of fact, a gender pay gap in this country.


JUSTICE ROSS:  The Commission has just found that in the Annual Wage Review.


MR HARTLEY:  Even more reason to be confident in finding it again.


JUSTICE ROSS:  The central question is where does it take us?




JUSTICE ROSS:  And how does it bear on the statutory tests in 157?


MR HARTLEY:  Yes, yes.  The next point that I wish to address is that it doesn't matter which academic approach one adopts.  I will whip through this quickly and get to the bits that I think your Honour is more interested in.  There was a criticism made of Professor Smith, which I think we have responded to in writing, but I want to respond to it again, that she's wrong to have adopted an institutional approach because, for some reason that the employers don't explain, the only valid approach is the econometrics approach.


Professor Smith identified that even using the econometrics approach, which makes assumptions along the lines that people are making rational choices as market actors and that accounts for at least some of the gender pay gap.  Sure enough it does, but where I started was to say that it doesn't account for all of it.  One still finds that 39 per cent, according to KPMG, is accounted for by gender discrimination, and it still leaves this question which is - where, in part, the institutional approach comes in, that you've got figures for occupational segregation as contributing to the gender pay gap, but that leaves you with the question:  why is that so?


We reiterate that Professor Smith's analysis supports the existence of a gender pay gap no matter which academic approach one adopts.


I will pass over the next few pages.  I do want to spend a few moments explaining what exactly is involved in the sociological approach because the submission from the employer seems to be that, well, this is all just academic and interesting but not useful, and we say that's mistaken, for this reason.


Starting from about paragraph 34 of Professor Smith's report, she explains what is the sociological approach to understanding the gender pay gap.  An aspect of it is that institutional factors might explain some of what the econometrics approach cannot explain, for example, that wage setting mechanisms have not been able adequately to deal with historical gender undervaluation.  So, that is one of the institutions that Professor Smith says must be understood in order to understand why it is that a gender pay gap does exist.  That point is made at paragraph 35 where Professor Smith says:


The institutional approach has regard to, amongst other things, male breadwinner models of wage fixing and the determination of work value.


At paragraph 39, Professor Smith goes on to say:


The research that assesses these determinants identified the important of the following factors.


And the third one is:


The ongoing undervaluation of feminised working skills.


That ties in with Professor Junor's approach.


What does 'feminised' mean?  That's explained by Professor Smith at paragraph 41.


Feminised, as a descriptor, reflects two influences.  This includes in relation to an occupation, a description of an occupation that is predominantly made up of women -


which is aged care -


and an equating of particular areas of work as extensions of traditional female gender roles, especially related to domestic labour, care giving and reproduction.


So, nurture and care giving is, of course, another feature of aged care work, and so we are firmly within the concept of feminised work in the stereotypical sense when we speak about aged care.


Why does this matter?  One goes on to paragraphs 44 and 45 of Professor Smith's report where she identifies that higher value is attributed to jobs or occupations carried out by men or associated with male stereotype skills.  It is discrimination against jobs, not individuals, and that's a reason why for the employers to say, 'Well, you don't have male and female rates in the award' isn't an answer.  We accept, of course, that there aren't male and female rates in the award, but the setting of the rates in the award which covers feminised work may itself be affected by an under-recognition of the skills that go into that work, and that's in part because, as Professor Smith identifies at paragraph 45, a historical legacy, and Professor Smith gives an examination of that historical legacy which, as we say in written submissions, incontrovertibly at one point in this country it was the case that there was express gender discrimination between men and women.


And the question is really, has that been corrected?  Not, as the employers seek to say, well, you start from the proposition that because there aren't male and female rights, that means there isn't gender discrimination.  Now prove that there is.  We say there was, and the question is, has it been rectified.


In terms of historical barriers to work value we really rely on what Professor Smith says, starting from about 4872 in the court book, under the heading, 'Work value and equal remuneration proceedings in Australia.'  That's paragraph 68; 'Wage determinations in the early twentieth century institutionalised a needs based family wage that solidified male/breadwinner, female/carer provisions, in line with the family gender norm.'  So that's the starting point.


Has it been corrected?  The answer given by Professor Smith in paragraphs 86 to 87, having analysed three ethics epox(?) in – I beg your pardon, it's 4 epox in wage setting in the industrial framework in this country, is no, that the barriers to rectification of historical under-recognition of the value of feminised work have been sufficiently high that in her opinion they remain a contributing factor to the existence of a gender pay gap in this country.


In particular, we draw attention to paragraph 93 where Professor Smith says, 'In summary it is our opinion that values and limitations, the proper assessment of work value in female dominated industries include', and we'll pass over bullet points 1 and 2 to bullet point 3, 'the conceptual, including the subjective notion of skill and the invisibility of skills when assessing work value in female dominated industries and occupations.'  And that's the tie-in to Professor Junor's report.


Now a few brief responses to things that the employer parties say, we say it doesn't matter that Professor Smith is not preparing award rates to award rates.  If what's being suggested is that there's no gender pay gap at all, no matter how it's measured, well that's to be rejected for reasons that I've already covered.


If the suggestion is that the gender pay gap only exists if one adopts an institutional approach, that's denied by reading Professor Smith's report.  If the suggestion is that Professor Smith's analysis isn't useful because she only has regard to average weekly, ordinary time earnings, that again is denied by reading the report.


If the suggestion that she has failed to take into account things like working in different jobs, different hours, different qualifications, et cetera, that's exactly what the econometrics approach measures, so she has not failed to take that into account.


Then finally, the suggestion is that the only way that you could safely analyse the relevance of a gender pay gap is by comparing one award rate to another award rate, then we rely really on what we said, starting at about 358 of our reply submissions.  We accept, of course, that the awards don't set male and female rates.


What we say is that given the existence of a gender pay gap, no matter how you measure it, no matter if you're doing it by weekly earnings or hourly earnings, or whether you limit yourself to an econometric approach or not, it would be surprising if the aged care industry was unique in having managed to eliminate it, and there would be no evidential basis for concluding that somehow, so far as the aged care industry contributes to the gender pay gap, it only does so in above award payments.


That's including because, as the Commonwealth has identified in its Annexure B, I think, the vast majority of aged care workers are on the award rate, and so we say it will be a very unlikely conclusion that so far as there is a gender pay gap, or so far as the aged care industry contributes to a gender pay gap, which is to say that it, itself has explanatory force in explaining why it is that a gender pay gap exists, that that applied only to people, or that explanatory force came only from people who were on above award rates, and that people who are on the award rate had no input into that, at all.


JUSTICE ROSS:  Mr Hartley, I want to make sure that we don't sort of adjourn midway through a point.




JUSTICE ROSS:  So you might bear in mind we need to adjourn today at 4.30 for other commitments, so if you could take that into account when you're - - -


MR HARTLEY:  I will.  I was just, in fact, about to start on my proposition 3, which is that a contributor to the gender pay gap is stereo type views about women's work and that's a fairly lengthy proposition.  If the Commission would prefer to adjourn now - - -


JUSTICE ROSS:  Rather than interrupt you, I think that's probably the preferred course.  How much longer do you think you would be, in terms of planning for tomorrow?


MR HARTLEY:  I would try to wrap it up in another 30 minutes.  It might take 45.


JUSTICE ROSS:  All right, Ms Harrison?


MS HARRISON:  Your Honour, I suspect I won't be longer than 10 minutes.


MR HARTLEY:  I should say, your Honour, Mr McKenna will have some things to say after me, as well.




MR McKENNA:  Your Honour, that will be brief.  I'd say about 15 minutes.


JUSTICE ROSS:  Is everyone still content to resume at 9.30?


Yes.  All right, we'll adjourn now and resume at 9.30.

ADJOURNED UNTIL THURSDAY, 25 AUGUST 2022                     [4.19 PM]