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Fair Work Act 2009                                                    






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


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


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


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




9.30 AM, THURSDAY, 25 AUGUST 2022


Continued from 24/08/2022



JUSTICE ROSS:  Mr Hartley?


MR HARTLEY:  If it please the Commission.  I was reflecting overnight on the sort of central question that your Honour was putting to me yesterday about how much of this really is important and I thought I'd have one more go at answering that to see if it assists the Commission.


What the Commission has to do, unavoidably and centrally, is make findings about what skills are involved in work.  We submit that in making those findings, the Commission should take into account and ascribe value to what we describe as Spotlight skills, but they could be called a number of other things.


It could be said against us, and I think it has been said against us by the employers, 'Everyone utilises these skills.  In any event, who's to say that they haven't already been taken into account in the wage setting process?'


We answer in these ways.  As to the first of those propositions, we say that's a misunderstanding of what Spotlight skills are.  These are skills that are peculiarly prevalent in feminised work and in particular in care work, and so a theoretical understanding of what the tool is designed to do and what skills it's designed to find is relevant in understanding that submission.


As to the second of the objections that I think is put against us, 'Who's to say they haven't been taken into account?' we say a few things.  One, we say that the expert evidence demonstrates that these are skills that are liable to be under-recognised in work for reasons given by both of the expert reports, but by Professor Junor, she describes these skills as hidden or under-specified or under- codified.


There have been barriers to their recognition in the industrial wage setting system, and Professor Smith gives you that and, at paragraph 96, says one of these barriers is that these skills are hidden, under-specified, under-codified, for example, and the non-recognition of the skills continues to be a contributing factor to the existence of a gender pay gap.


JUSTICE ROSS:  Well, it's the latter bit that I'm just - I follow everything else.




JUSTICE ROSS:  Why do we need to go down the rabbit hole of the gender pay gap?


MR HARTLEY:  I think the degree to which the Commission needs to go down the rabbit hole is limited.  The gender pay gap is something like a sanity check.  Because it exists - - -


JUSTICE ROSS:  We can all do with that.


MR HARTLEY:  Yes.  Because it exists, it gives the Commission comfort by reference to real world data that feminised work is undervalued.  Now, why is that so and why relevantly?  For the reasons that the experts give - - -


JUSTICE ROSS:  All right.  No, no, I follow, okay.


MR HARTLEY:  Yes.  We proffer an explanation for how it is that the gender pay gap is salient in this case and how it should figure into the Commission's reasoning, and the employers don't, and that's the theoretical aspect of our submissions.  So, that is the answer to your Honour's question.


JUSTICE ROSS:  All right.


MR HARTLEY:  I was about to start with what I'd call proposition 3, which is a contributor to the gender pay gap, but you might as well call it a contributor to the undervaluation of particular kinds of work, is that the work is stereotyped as women's work.  I have referred already to paragraph 46 in the Smith report.


I draw attention again to that paragraph, but the next paragraph to look at is paragraph 52, which is on page 4867 of version 2 of the digital court book.  Professor Smith there refers to the fact that care work is seen as being intrinsically feminine, it has a resemblance with historical household work, it's said or it's perceived to have a degree of naturalness as opposed to the deployment of skill.


At paragraph 56, Professor Smith refers to these assumptions, assumptions as to value and what have you, being impacted by women's role as parents and carers and undertaking the majority of primary unpaid caring responsibilities.  That contributes to invisibility and under-recognition of skills which might be described as nurturing or caring skills.


There's a further explanation at paragraph 60 and 61 where Professor Smith refers to work having been sex-typed when it's viewed as being socially appropriate for women, often as a result of similarity to unpaid domestic tasks.  For example, the reference is made to a decision in the 1990s of the QIRC holding that working with children involved attributes rather than skills, and that's exactly the kind of reasoning that we oppose and resist and we say that the Commission would bear in mind when it is itself trying to figure out what actually are the skills that are brought to bear by these workers.


We noted at 376 of our reply submissions, to which the Commission doesn't need to go, that Professor Smith was not challenged in regard to any of this evidence.  Professor Junor gave similar evidence and wasn't challenged there either.


Professor Junor's report I'll be coming to in a bit of detail later on, but, for the moment, I will draw attention to what we say about that report at paragraphs 421, 422, 423 of our reply submissions, which are on pages 111 and 112, and we extract bits of a report which are in alignment, we say with Professor Smith's report.  She draws attention to the bit extracted at 421 of our submissions, which is 249 of her report.  There is a historical legacy of perceptions of care work as a vocation that's performed for love and not money, and that influences the degree to which value is placed on that sort of work.


At 422, like Professor Smith, she says that it's analogous, care work, often to what had previously been, and perhaps still is - definitely still is - unpaid housework and volunteer work.


At 423 we refer to what Professor Junor says at 251, which is that there has been a trend in the last quarter century, or perhaps a bit more, into the creation of low status but skilled service jobs into which people have been recruited, predominantly women have been recruited, on the basis of skills that they acquired - not attributes that they have, skills that they acquired outside of the labour market or outside of a formal training construct.


At 428 to 429 of the reply submissions we summarise what Professor Junor says about the growth of that service economy, bringing into paid labour what had formally been domestically undertaken by predominantly women on an unpaid basis, and in particular we use as an example of that care work, which Professor Junor describes as involving four key criteria.  We set them out at 430 of the reply submissions:


That contributes to the physical, mental, social and/or emotional wellbeing of the person cared for.  It's a primary labour process involving person to person relationships with those cared for.  Those receiving care are members of groups that cannot provide for all of their own care, for example, because of age, and it builds and maintains human infrastructure that can't be adequately maintained through unpaid work or unsubsidised markets.


We say that plainly aged care work meets all of those four criteria, is care work, is stereotypically feminised work, for the reasons identified by Professors Smith and Junor.


At 432 of the reply submissions we extract what Professor Junor says about the naturalisation of learned skills as though they were simply female attributes and the concomitant overlooking of the technical skill that goes into performing, in particular, aged care work, or relevantly, aged care work.


The lay evidence report is replete with examples of highly technical skills involving catheters and many other techniques that are plainly skilled but are folded into this concept of caring work which is stereotyped as involving attributes rather than technical skills.


A submission that's put against us, which I think I've slightly dealt with already so I'll try to whip through this quickly, is that, well, this is all easily addressed, because you can look at the C10 framework and the AQF.


The submission that's made, in effect, is, well, the C10 doesn't distinguish between men and woman, therefore it's gender neutral, therefore it can't be - or it can be used to overcome any undervaluation of women's work.


Whether that is so, whether the C10 framework is deployable to all kinds of work, is, as we say in submissions, very obviously to be doubted.  It has been doubted by the employer parties in previous proceedings.  It's a matter of opinion.  It's not supported by any expert evidence on the part of the employer parties.


At paragraph 92 of - I think it's Professor Smith's report, she refers to one of the limitations on the proper recognition of women's work as being precisely the pivotal role of the metal industry tradesperson in wage fixing, which is to say that work value comparisons are grounded by a male standard.


And the point being that when one is trying to align a C10 framework which involves very much stereotypically masculinised work, or men's work, with any other kinds of work, one is making a value judgment.  To what extent is the skill that's utilised in the caring scene comparable to the skill that's utilised in metal fabrication?


In drawing those value judgments, opinions might differ, which is why expert evidence would have been relevant from the employers if they'd put it on, but they didn't, and when those value judgments are made, they are liable to be affected by the types of considerations that our experts and the HSU's experts talk about, the undervaluing of what actually are in fact skills involved in women's labour.


Professor Junor gives, we say, helpfully, in a table which we extract just underneath paragraph 419 of our reply submissions, what she describes as the five Vs and their relationship to undervaluation.  The Vs are visibility, valuation, vocation, value‑added and variants.


An example of this, relevantly to the point that I'm currently making, is the second of the Vs, valuation, the relationship to undervaluation, women's skills often not valued, the relationship to segregation, is that female dominated occupations may be measured against skill hierarchies developed outside the service sector.


So this is a matter about which Professor Junor and Professor Smith gave evidence.  They weren't challenged on it.  There's no competing expert evidence.  We say that that is evidence that the Commission could very easily accept.


The next point that's made against us is that when one compares work between particular awards, one sees that the rates are the same as between each of them.


So, for example, the employers set out in tables in their annexure J, starting from about paragraph 2.28 of their closing submissions, a series of tables in which they set out hourly rates payable to particular kinds of workers across a variety of awards, including in regard to personal care employee as between the aged care award, the SCHADS award and a particular state award that also covers care work.


As we explain in our reply submissions, we say that sort of comparison doesn't make sense and doesn't assist the Commission.  If there is a care penalty, as the expert witnesses say that there is, or if feminised work is undervalued, it's going to be undervalued as between awards.  Each of the awards that covers stereotypically women's work is very likely to be undervalued, and for the same reasons.


So you can't disprove the existence of undervaluation by pointing to a valuation of the same work in a different award.  What you'd have to do, and this isn't done, and if it were sought to be done it would be opinion and fraught, would be to identify work that objectively or can be manifestly seen to be work of the same value that isn't care work, and to say that amount, the amount payable to those sorts of workers is the same, therefore the women's work isn't undervalued.


That hasn't been done.  If it were to be done, it would have to be done by, we think, an expert witness.  That's what we say at paragraphs 364 and 365 of the reply submissions.


The last point we make about this section is that there's a submission made by the employers which in effect is if one were to accept that care work, no matter which award it's covered by, is undervalued, then to lift the rates of pay in all of those awards would involve accepting - and I think this is directly the way that they put it - accepting that all women's work is of greater value than men's work, and we say obviously that's not the consequence.


If we are right to say that this work is undervalued, then by giving a pay increase you're not overvaluing it, you're valuing it properly.  So it doesn't involve any sort of proposition that women's work is more valuable than men's work.


The proposition that it involves is that women's work has a particular value which hasn't been recognised and it should be recognised.  So that in terrorem submission that's made by the employers would be rejected.


I think I've already dealt with what the employers said in their reply at 3.22 to 3.27, but just very briefly, the submission there is, in effect, that spotlight skills are able to be recognised in men's work as well.


We address that in our reply submissions, starting from about paragraph 399, where we say that there's absolutely no reason for thinking, and it wasn't put to Professor Junor, that if one turned the spotlight tool onto stereotypically men's work one would find the same quality or quantity of these undervalued skills.


That would be entirely inconsistent with a proper understanding of her report, which is precisely that the tool was developed to identify skills that are applied and brought to bear in stereotypically women's work.  Would you find them in some men's work as well?  No doubt.  We don't dispute that.


Would they be found in the same quantity and quality?  There's no reason for thinking so, and that would be inconsistent with Professor Junor's evidence and it wasn't put to her that that would be the case, and so we say that that submission would be rejected.


I've already drawn attention to the fact, and I won't go back to this, that where in the reply submissions the employers underline bits of the classifications in the C10 which they say, 'Well, that's a spotlight skill', we say, no, it isn't.  They've misunderstood what are the skills that Professor Junor identifies as being spotlight skills.


That was proposition 3.  I'm onto proposition 4, which is that the spotlight tool is designed to bring 'feminised skills' to light, and we commence by addressing a few submissions made by the employers, starting at about 398 of our reply submissions.


The employers say Professor Junor accepted that the spotlight tool can be used in other industries.  Sure it can, but that doesn't mean that it's not useful in the aged care industry.  They say the spotlight tool doesn't identify all skills.  We say, fine but it doesn't identify some skills, and that's relevant.


The employer parties seem to suggest that there's some sort of inconsistency in Professor Junor's evidence in regard to why the tool was created.  We say, and I won't go through this but it's all in the reply submissions, that there is no inconsistency when one reads the submission as a whole.  She created the tool.  She knows why it was created.


She says at paragraph 73 of her report which is on page 4969 of the court book, that it was created to assist, to inform gender inclusive job evaluations.  The fact that it's been deployed in other contexts since then doesn't deny that that's the purpose for which it was created, and its primary role.  In any event - - -


JUSTICE ROSS:  Was Professor Junor challenged as to the purpose, in cross-examination?


MR HARTLEY:  We say no.  It was put to her that the tool was also used for other purposes, and she said, sure it is.  It was never said to her, something along the lines of, 'You are wrong to say that it's' - - -


JUSTICE ROSS:  Yes, so paragraph 73 wasn't challenged, correct?


MR HARTLEY:  Yes.  And we outline the relevant extract.  I think we quoted in full, actually, in the reply submissions.




MR HARTLEY:  In any event, what Professor Junor says is supported in the documents to which he refers in describing the creation of the tool.  We set that out at 406 to 408 of our reply submissions.  If the employers press the point I'll deal with it in reply, but I won't take the Commission through all that now.


What I will take the Commission to is the bit starting really at paragraph 416 of the reply submissions, which is, what is the link between the spotlight tool and undervaluation of skills based on gender.  I have already referred to the table underneath 419 of the reply submissions, which is the five V's, and the theoretical basis for linking those V's with care work and the feminised work.  That's at 419 to 426 of the reply submissions.


What I want to do now if it assists the Commission, is go to Annexure 9 of Professor Junor's report in which she sets out in a bit more detail, the typology of skill, as she describes it, and the link between the skills identified in the spotlight tool and the gender of the people – well, I should say, and the stereotypically feminised character of the work that's being performed.


So Annexure 9 commences, my note says, on page 5202 of the court book, and that seems to be wrong.  But that is the bit in Annexure 9 that I wanted to refer to, so it's in Annexure 9, at page 5202 of the court book, and Professor Junor breaks up what she describes under the headline as being invisible skills, four categories:- hidden skills; under-defined skills; under-specified skills; and under-codified(?) skills, and she goes on over the following pages to explain what each of those things means, and what is the length between the skills that are involved and the stereotype gender of the people performing the work.


So at paragraph 20 of Annexure 9, Professor Junor describes and example of a hidden skill as being one which the utiliser of the skill hides because if attention were drawn to it, it would lose its effectiveness.  Examples of this might include caring for a person who's had an incontinence issue in a way that preserves the dignity of that person; or supervision or guidance in a way that avoids undermining the person to whom supervision or guidance is being provided, guidance for (indistinct) the person cared for.


Or dirty work eliciting embarrassment or fear is performed by workers in a way that avoids drawing attention to the fact that this might be embarrassing to the person for whom care is being provided.  That's connected, as Professor Junor explains, at paragraph 25 with what she calls the 'virtue script', which she says sentimentalises care work as a labour of love, rather than as a bringing to bear of skills in a setting involving – or in a way that attracts value, work value.


Because the work is sentimentalised that explains, or it doesn't explain why, but one avoids embarrassment to the person cared for in the same way that one would do in caring for one's child, or one's own elderly parent, and because of that connection with the, what was formally unpaid domestic household work, the work is seen to involve a labour of love, or attributes rather than training and skills, and what have you.  So that's the link between hidden skills and gender.


Under-defined skills are at 27 and following of Annexure 9.  Those are the aesthetic skills of managing space and physical resources to build a stimulating or soothing environment and hence, calm.  Or, at paragraph 33, reading, at a glance, small changes in a person's condition.  So, again, these are aspects of work that involves nurturance of the person cared for.


They are dissimilar to the types of skills that are brought to bear by the metal fabricator, and they have the same link with the virtue script of the labour of love, or the domesticated labour that had historically been performed on an unpaid basis, and that again is the link with gender and stereotypically feminised work.


At paragraph 36, underspecified skills, and these are skills involving personal qualities.  So, for example, a person is good with people, or has good interpersonal skills, or has a sense of humour or has flexibility.  And Professor Junor describes at 38, what this does it


mis-define skills in emotion management as gifts or attributes, and thereby avoids attributing value to them.


At paragraph 42, we have under-codified skills.  Under-codified skills, as we say at paragraph 436 of our reply submissions, are what Professor Junor describes as second order, or supra or integrated skills, the thinking part of multitasking, as Professor Junor says.


Now, obviously multitasking is a skill that is utilised in many kinds of work, and so again we say the fact that this kind of work exists in men's work doesn't mean that their link with under-recognition doesn't have a stronger link with gender and feminised work.


That was the evidence given by Professor Junor by reference to a literature review; that was the evidence given by Professor Smith, that these sorts of skills are under-recognised, particularly, or are prevalent particularly in stereotypically women's work, and are undervalued on that basis.  There was no challenge to that evidence, there's no contrary expert evidence, and so we say that it can be accepted and ought to be accepted.


Going down to paragraph 57 in Annexure 9 of Professor Junor's report she, having discussed these four kinds of skills, describes what econometric literature defines as a care penalty, which is the circumstance whereby the hourly rate of people working in caring occupations is lower than would be predicted on the basis of other job characteristics such as skill demands, so it's an econometric analysis of the kind that the employers prefer.


A similar result has been identified for nurses in the United Kingdom using 13 years of household panel data, and an Australian study compares the earnings of nurses to those in other women's health, and business professions showed a gap, a care penalty of between 18 and 27 per cent.  So those are three studies that Professor Junor relies upon as demonstrating that there is a care penalty, even on an econometric analysis, and the quantum of the penalty is between 18 and 27 per cent.


That really was proposition four, and I'm on now to the final proposition which is the actual task of recognising the skills, and that is where Professor Junor's spotlight tools is actually brought to bear.  Now this fifth proposition which is that aged care workers do in fact utilise various invisible skills, has been covered in detail in written submissions, and the actual process doesn't seem to be contested by the employer parties.


They contest the usefulness of the process but they don't, on my reading, say that Professor Junor is wrong to say that particular kinds of skills are brought to bear.  So I will be brief about taking the Commission through the bits of Professor Junor's report wherein she identifies the skills.  I think it's convenient to start with the process that Professor Junor used, and one sees that, starting really at paragraph 61 in the main body of her report, which is on page 4967 of the digital court book version 2.


She commenced by gathering primary material, which is questionnaires of 135 work activity descriptors and optional written answers to generic open-ended questions.  She then, with her collaborator, Professor Hampson, conducted interviews of people that had completed the questionnaires, and one sees from bullet point 3 that that generated transcripts of 120,000 words in total, following interviews, each lasting between one and two hours.


Research data was then generated for the purpose of analysing all of this primary material, responses were coded to a Spotlight skills framework, heat maps were generated which showed the incidence, importance and contribution to the work value of the various skills, and the skills were clustered.  The heat maps appear in annexure 6, the clustering is shown at annexure 7, and I'll come to each of those.


One sees in paragraph 26 that Professor Junor identifies skills in three groups and then, within those three groups, three skills each.


There's skillset A contextualising, building and shaping awareness, and here you have things like sensing contexts and situations, monitoring and guiding reactions, judging impacts; then, in skillset B, connecting, interacting and relating, which involves negotiating boundaries, communicating verbally and non-verbally, working with diverse people and communities; and then skillset C is coordinating, which is, amongst other things, interweaving on activities smoothly with those of others and, relevantly, I think, in particular in aged care work, maintaining and/or restoring work flow.


I say 'relevantly' in particular because the evidence was, as Mr McKenna drew attention to, that days are full of disruption in aged care and there is skill involved in taking oneself off one's path to deal with a situation and then restoring order and going back into the tasks that have to be performed on a routine basis, and that sort of skill is engaged in aged care work or in care work to a greater degree than in other kinds of work, for example, metal fabrication work.


I will draw attention to paragraph 96 in the main body of Professor Junor's report really just because that is an outline of what is in each annexure.  Professor Junor's report is long and so it's useful to have an understanding of what is where, and at paragraph 96 one sees exactly what she's doing in each of the various annexures.


We have been through annexures 8 and 9 to some degree already, which is the theoretical underpinning.  What I'm coming to now are the earlier annexures, which are the heat maps and the clusters.  So that's at 96 where that's summarised.


At page 4975 in the court book, which is just above paragraph 103, one sees, in effect, the final output table, which is a summary of the heat maps.


JUSTICE ROSS:  Sorry, what was that paragraph?


MR HARTLEY:  Just above paragraph 103.  So, as against the nine skill areas, Professor Junor sets out the average incidence of use of Spotlight skills reported per person.  She divides it up between RNs, ENs and AINs/PCWs, and one sees, for example, that the RN is bringing to bear more Spotlight skills on average than the EN, more on average than the AIN/PCW, and one can also see where in particular Spotlight skills are brought to bear.


The AIN and PCW, the highest average incidence is in skill element A, which is sensing contexts and situations, moderating and guiding reactions, judging impacts, which makes sense because one might imagine that those sorts of skills are the types of skills that are particularly important in one‑on‑one care, whereas the registered nurse is well ahead of others in regard to, for example, sequencing and combining activities, maintain and/or restoring work flow, which again makes sense because it's the RN who has the responsibility for dealing with incidents like falls and what have you that arise and directing traffic and making sure that adequate care is provided under delegation and then restoring order once the situation is addressed.


At 105 of Professor Junor's report, she says:


Particularly impressive are the accounts at all three classification levels of the range of skills used in averting or de-escalating aggression, of thinking into the world of residents disorientated by dementia, particularly those reliving trauma or returning to another cultural and language background, and the skills used in bringing a resident and family to a good death.


The overlap between that and the oral evidence is abundantly clear, we say.


From 109 to 116, there's a summary of what Professor Junor records based on the primary data as being changes in the work over 20 years.  The Commission may not need further evidence of that because that's what all the lay evidence was directed to, but, if it does, then the Commission will find similar themes, increased security, greater complexity of care needs, increased comorbidity, palliative care, pace of work, critical incidents and the need to appear to be calm.


Starting on page 4981, and this is still in the main body of the report, we have tables MR3, MR4 and MR5.  That's one table each for RNs, ENs and AINs/PCWs.  What the tables show is Spotlight skills in action, so it's examples of the skills and their level.  For example, in table MR3, which is registered nurses, for skill B2, just taking one at random, communicating verbally and non-verbally, a level 4 application of that skill, which is a high level application of that skill, is constructively providing upward and downward feedback in unequal power situations or gently managing unrealistic family expectations.  One sees similar sorts of examples of those skills given for each of the skills at each of the levels.


Forward quite a bit to page 5083 in the court book, and now we're into, I think, annexure 5.  Yes, so this is - in annexure 5 at page 5083 are examples of skills by reference to things that Professor Junor was told in the interviews or in the workbooks.  For example, at paragraph 22 in annexure 5 on page 5083, she's dealing with an example of skill A3, which is judging impacts, and she sets out evidence that was given to her by a person who is described as 'Amy' - these aren't the real names of the people, they've been de-identified - but Amy says:


I will always be saying, 'Why are we doing that?  How did we come to that decision?  What do you think of the impact of that?  Why didn't we do X, Y or Z instead?  And I might get an answer, the doctor might say -


blah, blah, blah, and then the doctor's response is evaluated.  And so there's a process always for a registered nurse - Amy is a registered nurse - of constantly evaluating what was the impact of care that was provided, what alternatives might have been provided, would they have turned out better, and that's an example of skill A3, judging impacts.


Skill B1, negotiating boundaries, is similar sorts of things, and so, at paragraph 35, boundary management, used to provide effective downward feedback to staff.  Bron, the registered nurse, might walk into a room where there's a conversation going on:


And the tone that I would use and the words that I would use would be different from those used already to try to influence the conversation in a particular way with a view to ensuring a particular care outcome.


It's the same with regard to each of the other classifications and each of the other skills.


If the Commission is ever concerned to try to understand what exactly does Professor Junor mean when she says that a registered nurse brings to bear skill A3, the place to look is starting on about page 5082 at annexure 5 and, for many pages that follow, there are transcript extracts which demonstrate exactly what it is that Professor Junor has in mind.


I next want to draw attention to page 5111.  Now we're in annexure 6, which is where Professor Junor draws attention to the clustering of skills.  She gives case studies.  One example is for the enrolled nurse at paragraph 7, and this is on page 5111 of the court book.  The first example is for the enrolled nurse, and this is on page 5111 of the court book.  The first example from enrolled nurse Lyn demonstrates the cluster of Spotlight skills required in order to combine the activities of administering medications and performing assessments and observations while, at the same time, showering and dressing residents.  The cluster of skills is especially required when scheduled care staff members don't turn up.


The point that's being made here in this annexure - that's one case study; there are others - is that it's inadequate to understand the Spotlight skills as individualised.  One understands them properly by understanding that they are brought to bear at the same time, interfacing with one another in the kinds of situations that are described in the case studies, so, for example, medications while, at the same time, showering, looking for deteriorations in conditions and what have you.


Case study 2, the afternoon shift, RNs, ENs and AINs/PCWs working together, so that's going to involve the deployment of the individualised Spotlight skills but also the Spotlight skills having to do with interweaving one's own work activities with those of others, resequencing events after a disturbance and what have you.


No real issue has been taken by any of the parties about any of this, so the purpose of this has really just been to walk the Commission through where in the report one finds the Spotlight skills described, analysed, clustered, heat mapped.  Otherwise, we rely on the report, of course, in its entirety, but we do, with a view to assisting the Commission, summarise it in various places in our closing submissions and in our reply submissions.


The next thing that we do, relying on Professor Junor's Spotlight tool, is we performed our own Spotlight analysis of the lay evidence that was given to the Commission orally and in witness statements.  We do that starting at paragraph 884 of our closing submissions, which is on page 233.


What we did was, with that understanding of what it is that these skills are and how it is that one identifies them - we're not experts - but we thought you can sense check what Professor Junor is saying by looking at the evidence that was given by witnesses in this proceeding, not to Professor Junor where she's asking pointed questions which might have been directed to identifying Spotlight skills in particular.  These statements weren't put together with that intention and, indeed, we performed the analysis on the witness statements of HSU witnesses as well, so witnesses having nothing to do with Professor Junor's work product.


If it were the case that, when reading through these statements, one didn't find things that looked like Spotlight skills, well then you might say that undermines what Professor Junor is saying a little bit, but that's not what one finds.  What one finds, as we set out over, I think, about 50 pages, are all sorts of Spotlight skills brought to bear in each of the categories, and starting at page 238 of our written submissions, we set out extracts of the evidence which are directed to each of the Spotlight skills.  I will draw attention to only a few to illustrate the point that we're making.


On page 243, we have set out extracts from the evidence of Jocelyn Hofman, who is a registered nurse.  At paragraph 39 of her statement, she says:


I simultaneously undertake a range of other functions such as -


this is while she's administering medication:  checking on side effects, both immediate and longer term; assessing changes in the communication and cognitive capacity of the resident; assessing overall wellbeing, oral and personal hygiene; reviewing continence care; ensuring adequate hydration; maintaining skin integrity; safe behavioural management, et cetera, et cetera.  We say that that falls into Spotlight skill A2, monitoring and guiding reactions to the giving of medication and other things.


The next one we draw attention to is page 262.  This is in the evidence of Linda Hardman.  Linda Hardman was an AIN or PCW at a facility in Figtree.  At paragraph 22(a) in her statement, she says the following:


You have to know your residents very well so that you know when they are off or something is up.  I may not know all the medical terminology, but by careful observation you can get a sense of when things are wrong and alert the RNs and ENs.


We say that's an example of judging impacts.


At page 276, we have an extract from the evidence of Dianne Power, who my memory is is another AIN/PCW.  At paragraph 67 of her statement, Ms Power says:


When buzzers go off, AINs must respond.  If I'm showering someone or toileting, I cannot leave my current resident.  I have to leave hurriedly to attend the buzzer.  If there's an incident, the RN has to be found and help provided.  You've got other buzzers going off.  It's terrible -


she describes the indignity that's involved if there's some sort of an incontinence accident, and we say that this is an example of maintaining and/or restoring work flow.  You go off and you deal with a disturbance and then you're back to the other residents who, at the same time, are pressing their buzzers and having issues that they need to be dealt with.  That's skill C3.


One sees over many, many, many pages countless examples of these sorts of skills being brought to bear just when one analyses the lay evidence given by statement and on transcript, and so we say that this is supportive of or confirms the utility of Professor Junor's analysis.


The last point that I want to make on this proposition 5 is something that we encapsulate at paragraph 826 of our closing submissions - that's page 216 of the submission.  I referred to this earlier.  This was evidence from Mark Sewell, who is the CEO and company secretary of Warrigal.


Mr Sewell had expressed the view at 93 of his statement that the Certificate III couldn't teach the attitude and maturity that made a quality aged care worker.  When he was cross-examined about that, he referred to Cert III being terrific by way of training, but good aged care work requires personal attributes of customer service, resilience, kindness that can't be taught so much but they are attributes, and he says that these are relational skills that develop, according to Mr Sewell, over about three years.


When we cross-examined Mr Sewell, we put to him a series of propositions about whether, when he said 'personal attribute', what he had in mind was, for example, the ability to piece together resident information and past traumas to better understand present behaviour and he accepted that, and there was a long list, which we set out at paragraph 827, of the propositions that we put to him of things that he meant when he said 'personal attributes' and he accepted all of these things:  adapting one's voice, tone and body language to how it is that residents will respond.  Mr Sewell accepted all of these were things that he had in mind when he was distinguishing good aged care workers from less good aged care workers.  Every single one of those characteristics was a descriptor from the Junor report of being a skill that is often undervalued on the basis that it's mischaracterised as an 'attribute'.


We don't say that to deprecate Mr Sewell or indicate any absence of good faith.  It's exactly the opposite.  We say Mr Sewell presented as a sympathetic witness who understood the value of good aged care work, and even a person like that would describe, innocently no doubt, not with a view to downplaying the skills that are brought to bear by his employees, but he characterises these things as 'attributes that people have', and they aren't; they are skills which are learned and can be recognised.


We say that when the Commission does recognise them, they will be attributed considerable value in determining what skills are brought to bear for the purpose of 157(2A).


I think the last thing that I want to say, and maybe I'll leave this to reply - because we haven't yet heard from the employers - what we say about this, but there are a few places in our submissions where we say certain things shouldn't have been said about our witnesses.


It was put that Professor Smith's analysis was a connect the dots exercise.  We don't know what that means, but it sounds deprecatory.  It sounds as though it's being said that her analysis is simplistic or childlike and we say that's wrong.  It was a scholarly analysis.  Her expertise is unquestionable, and it wasn't put to her, and that shouldn't have been put in writing.


Professor Junor was described as being 'self-serving and advocating'.  Frankly, that was absurd as a submission.  Professor Junor was in the witness box for all of about 12 pages of transcript.  It was never put to her that she was an advocate, she didn't present as an advocate, she clearly took her expert witness duties seriously.  She produced a scholarly work and the idea that it should be put against her, when it hadn't even been suggested to her in fairness for her to deal with, that she was self-serving, whatever that might mean, and we don't quite know what that means, or that she was advocating for a particular outcome is frankly wrong and shouldn't have been put, and we wait to hear what the employers say about that, but I might have to deal with that more in reply.


Unless there are questions that the Commission has for me, that's what I wanted to say.


JUSTICE ROSS:  Thank you, Mr Hartley.  Mr McKenna?


MR McKENNA:  If the Commission pleases.  Before I return to finalise the closing submissions of the ANMF, there are a number of housekeeping matters that arose from yesterday.


The first of those is that the Full Bench requested a note identifying some of the evidence about people leaving the industry.  That has been provided to chambers earlier this morning.  In addition to that ‑ ‑ ‑


JUSTICE ROSS:  And to the other parties?


MR McKENNA:  I believe so.  Yes, of course.




MR McKENNA:  In addition to that, I referred yesterday to the fact that the issue had been touched upon in the written closing submissions and there were some extracts of evidence from ANMF witnesses identifying the broader issue of how they see their work as being undervalued, and that can be found in the closing reply submissions at paragraphs 190 to 192.


Your Honour the Presiding Member asked a number of questions arising from background document 7 that I was unfortunately not in a position to answer yesterday.  I apologise for that.


The first of those arose from paragraph 49 of background document 7.  What is extracted at paragraph 49 of background document 7 is actually drawn from the ANMF's original application filed in May last year.  The paragraph relates to section 134(1)(b) and the relevance of bargaining.


The position of the ANMF on that topic is addressed comprehensively, in my submission, in the closing submission at part G4, where the evidence that is relied upon is extracted and a slightly more conventional submission about what the Commission can make of that evidence is set out.


JUSTICE ROSS:  So what does that mean, that we disregard what's set out at 49 and prefer what you've said in your closing?


MR McKENNA:  Yes.  What was put in the original application obviously pre‑dates the evidence.




MR McKENNA:  We've now heard evidence and we make submissions on the evidence and what can be taken from that.


Turning then to questions arising from paragraph 120 of background document 7 - just bear with me for one moment.  The submission that is set out in the chapeau to that paragraph 120 in the ANMF's written submissions is preceded by what's recorded at dot point 1 there.  So the submission that is made is preceded by the statement that the ANMF adopts the observations set out in background document 1.


It's accepted that the submission made and accurately recorded in background document 7 is less than clear.  The intention of the submission really is to call up the meaning of productivity as discussed in the Schweppes Australia v United Voice decision, which is what is extracted at paragraph 98 of background document 1, and to say further that any loss of margins arising because of increased minimum wages does not amount to a reduction of productivity such as might act as a constraint for the Commission.


The next issue arising from yesterday relates to a question from Commissioner O'Neill as to the comparability of rates for certificate III AINs and PCWs.  Just having quickly reviewed the transcript, Commissioner, you referred to the rate of 9.4090(?) per hour pertaining to a nursing assistant, experienced, under the Nurses Award, and that is someone who is a holder of a relevant certificate III qualification.


Commissioner, you referred, I think, to level 4 under the aged care award.  Commissioner might have done what I've done on a number of occasions, and that is to read the indicative classifications that sit above the descriptions.


COMMISSIONER O'NEILL:  I reviewed it last night and came to the same conclusion.  Thank you.


MR McKENNA:  If the Commission pleases.  Your Honour the Presiding Member had suggested that it might assist to provide a note on that.  Would that still be of assistance in light of the clarification?


COMMISSIONER O'NEILL:  It's still helpful, in the sense of the relationship between the other classifications.


MR McKENNA:  Certainly.  Yes, that will be done.


There was one other matter arising from background document 8.  I didn't go through in oral submissions the changes that were to be made.  That will be done.  It has not been done but that will be done and that will be filed, if the Full Bench pleases.


Returning then to the balance of the matters in the ANMF's closing submissions, and they are dealing with some of the other amendments sought to the nurses award and the aged care award, and then some final submissions about the modern award objective and the minimum wages objective.


One of the issues that's taken by the employer interests as to the schedule that's sought for the nurses award is the retention of increments.  It's said against us - or against us the employer interests rely upon aspects of the teachers case to question the appropriateness of service‑based increments with annual progression, as is already contained in the nurses award and would seek to be maintained and perpetuated.


We say a number of things about that.  Firstly, the revised classification structure that was adopted by the Full Bench in the teachers case was based upon a nationally recognised career progression in accordance with the Australian Professional Standards for teachers as administered by the Australian Institute for Teaching and Schools Leadership.


There is no such applicable nationally recognised scheme that would apply within the levels of enrolled nurses and registered nurses.


Secondly, to the extent that the teachers case is said to stand for a proposition that the value of work will not increase year by year, it's submitted that that should be treated with caution.


Thirdly, it's submitted that where incremental increases do properly reflect work values, they should be retained whether or not those increases are determined by length of service, and there has been much said about the historical underpinnings of the awards, including the nurses award, and the Full Bench will see from that that in 1998 there was pay rates review decision pertaining to rates for enrolled nurses and registered nurses.


Principle 8 of that decision recognised that increments would be retained where they have been included in an award pursuant to relevant work value principles.


The current internal relativities pertaining to enrolled nurses and registered nurses are derived from that decision, which involved an application of the then applicable work value principles to the work that was performed.


Whilst it's the ANMF's case that the fixation of the rates for enrolled nurses and registered nurses weren't proper fixtures because they were infected by gender bias, that criticism doesn't apply to the proposition that internal increments do recognise work value.


Finally, the progression through pay points under the nurses award for enrolled nurses and registered nurses don't merely depend on time spent in the role.  In accordance with clause 15.7(b) of the award, progression through pay points will have regard to the acquisition and use of skills described in the definitions contained in Schedule A classification descriptions and knowledge gained through experience in the practice settings over such a period.


So for those reasons, it's the ANMF's position that it is entirely appropriate to retain the existing classification structure as it pertains to internal increments.


Dealing then with the changes sought to the classification structure within the Aged Care Award, this has been addressed, both in writing and by Mr Gibian yesterday.  I think the differences between the AMS's position and the HSU's position is uncontroversial.  The differences between the two have been identified.  I'll touch upon some of those.


Obviously the main difference is that the ANMF seeks to extract, from the mainstream of aged care employees in Schedule B, personal care workers and create for them a separate classification stream.  The ANMF proposal is to retain the existing structure for personal care workers, in terms of retaining the same number of classifications and each grade would remain aligned with the same classification of aged care employee as is currently the case.


Apart from some minor amendments to the classification definitions, as a consequence of a proposed amendment, such as the exclusion from the new structure of terms, which are expressed only to relate in the case of administrative or clerical employees, the classification descriptions proposed by the ANMF are intended to ensure that personal care workers would retain their current grade under the Aged Care Award and would not be realigned to a lower level.


The ANMF has adopted the HSU's proposed titles for senior personal care worker and specialist personal care worker.  The ANMF considers that they are appropriate titles for personal care workers at what is currently termed grade 4 and grade 5 care workers, respectively.


The difference here, between the ANMF and the HSU is that the HSU would seek to insert a new additional classification level for personal care workers, aligned at level 6, which is between the existing grade 4 and grade 5 personal care worker.  In that respect, we say it's for the HSU to satisfy the Commission that such a classification level would be necessary to achieve the Modern Award objective.


There aim of this proposal also identified - now identifies Certificate IV at grade 5 of level 7, being the relevant qualification, updating a previous description of the qualification, which referred to an advanced certificate or associate diploma.


Finally, with respect to those matters, perhaps the significant difference there, between the ANMF and the HSU is that the ANMF proposal would retain a Certificate IV personal care worker at the existing level, rather than have them existing level grade 4, level 7, rather than have them realigned to a lower level, level 6.


Returning then to the primary difference, and that's the extraction of personal care workers from the mainstream of aged care employees, at its higher level of generality, the rationality for doing so is that the work performed by PCWs is qualitatively different from the work done by the general and administrative services and food service workers, so the rates of pay should be treated separately.


I should note that the position of the ANMF is to support the application brought by the HSU, for pay increases for employees covered by the Aged Care Award who are outside the personal care stream, but in the event that the Commission were to determine that different minimum rates of pay were to be applicable to aged care workers - sorry, I withdraw that - to personal care workers, as opposed to workers in different classification streams, obviously, in our submission, the most efficient drafting mechanism to do that would be to have a separate stream for personal care workers.


On the other hand, if the Commission is satisfied that there should be the same increase or the same minimum rates of pay for PCWs and all other workers under the Aged Care Award then, in any event, the ANMF submits that it's appropriate to separate the PCW classification structure where the evidence from the ANMF witnesses establish that the work of their personal care workers occurs as part of a nursing team and, as I've previously submitted, is qualitatively different from work that may be performed, by way of example, by a gardener.


Finally, then to turn to address the Modern Award objective and minimum wages objective, it is - the parties, including the ANMF, have made submissions about this.  What is clear, from background document 7, is that those submissions have been digested. I don't propose to work through, in detail, the original - the specific limbs, under section 134, rather, I rely upon the submissions, in writing.


More generally, with respect to the necessity to achieve the Modern Award and minimum wages objective, it's submitted that because current minimum rates of pay for direct care workers in aged care, under both the Nurses Award and Aged Care Award, do not properly reflect the value of the work performed.  They, therefore, do not provide a fair and relevant minimum safety net of terms and conditions, nor a safety net of fair, minimum wages.


The ANMF submits that the current wage rates are neither fair nor relevant, including because the rates don't reflect the work value of the employees concerned.  The rates of pay are out of step with community expectations, as reflected in the work and findings of the Royal Commission and other public inquiries referenced in the evidence of the ANMF.


The context in which the awards operate have been the subject of analysis by the Royal Commission, which has included that the rates are inadequate for the purpose of securing the delivery of high quality care.  The rates are inconsistent and out of step with those applying in other sectors for equivalent work, as has previously been submitted.  And, as previously submitted, the issue of attraction and retention disclose significant labour force deficiencies contributed to the depressed rates in the current award.


The final matter then is to note where the current minimum rate sit, with respect to the national minimum wage.  In summary, it's submitted that the minimum rate of pay, under the Aged Care Award, currently being $23.57 per hour, and only $1.87 above the national minimum wage, fails to reflect the value of the work that is being performed.


Likewise, the work value of a personal care worker grade 1 justifies a minimum rate that is far greater than $2.91 above the national minimum wage, which is where it currently sits.


For those reasons, we submit that a 25 per cent increase of minimum wages for aged care workers, under both the Aged Care Award and the Nurses Award, justified by work value reasons and are necessary to achieve both the minimum award's objective and minimum wages objective, if the Full Bench pleases.


If there are no further questions, those are the submissions for the ANMF.


JUSTICE ROSS:  Thank you, Mr McKenna.  You'll recall, yesterday, an exchange around your proposition for a four year sunset provision?




JUSTICE ROSS:  It was put to you that one way of addressing the underlying concern would be to insert into the Aged Care Award the nursing classifications relating to aged care.  You replied that that would undermine the occupational status or nature of the Nurses Award.  We want to give you a further opportunity to say what you want to say about that, and if you can file - so you'd have leave to file any submissions about that issue, by 4 pm next Tuesday.  Other parties can respond to it, in oral argument, on Thursday and Friday.


MR McKENNA:  Thank you.  That opportunity will be taken up.  Can I just indicate at this point that the maintenance of an entire occupational work for nurses is something that is of particular significance to the ANMF.


JUSTICE ROSS:  That's all right, you can put it in writing.


MR McKENNA:  It, of course, has been a part of any parties' application.


JUSTICE ROSS:  Yes, that's why I'm putting you on notice.


MR McKENNA:  And it is something that, had it been part of any parties' application, would have been addressed in evidence, so - - -


JUSTICE ROSS:  In evidence?


MR McKENNA:  Yes.  But these are all, of course, things that we can raise in the notes for the Full Bench.


JUSTICE ROSS:  All right.


MR McKENNA:  If the Commission pleases.


JUSTICE ROSS:  Ms Harrison?


MS HARRISON:  Thank you, if the Commission pleases.  First we'd start by endorsing the submissions of the HSU and the ANMF.  We intend to keep our submissions very brief and in this respect I intend to start by addressing a number of the questions that were raised yesterday, and then in turn, I'll turn to some submissions in relation to the UWU's witness evidence, predominantly in response to some of the written submissions from the joint employers.


Then finally, the general tasks that the Commission finds itself in, in assessing the work value.  Your Honour - - -


JUSTICE ROSS:  Would you mind speaking up a little bit, Mr Harrison?  I'm just having a bit of trouble hearing, that's all.


MS HARRISON:  No problems.  Sorry, your Honour.  You posed a question yesterday in relation to the evidence about the gender pay gap, and your Honour specifically asked where the evidence in respect of the gender pay gap took the Commission in terms of the statutory test.  It's our submission, particularly, I guess, in the context where the parties do not appear to be in dispute in relation to the skills traditionally associated with female tasks or duties, albeit there's a divergence in relation to the weighting(sic) that should be associated with those tasks.


In respect of that question, your Honour, we would echo the submissions that have been made by the ANMF and the HSU, but we would also state the following.  The evidence that the Commission heard in relation to the gender pay gap is a significant factor in determining the appropriate weighting that should be given to those skills associated with female tasks, and incorporating all the other terminology that's been used.


But those skills essentially that are associated with caring duties, the interpersonal skills that the expert evidence has touched upon, the failure to provide sufficient weight to those skills associated with female work, we would say would have the effect of perpetuating the gender pay gap, which we say would be contrary to the modern award objective in section 134(e), namely, remuneration of work of equal or comparable value.


In practical terms we say that a considerable weighting needs to be applied to those tasks associated with female work, the spotlight skills, the hidden skills as referred to in the ANMF submissions.  Extrapolated out, if the Commission were to take the joint employer submissions, that being that the interpersonal skills expressed in the Metal Trades Awards were equivalent and require no different weighting to the significant role aged care workers are engaged in, both in dealing with clients and residents, anything from interpreting the facial expressions to best assist someone with dementia, to engaging with families, we would say the Commission is likely to fall into error.


That being that by adopting the joint employers' approach, placing what we would submit would be inadequate weighting to those skills performed by aged care workers, would have the effect of perpetuating that gender pay gap.  So in determining how the skills demonstrated by aged care workers needs to be weighted, we would say that the Commission needs to at least factor in the evidence about the gender pay gap.


Secondly, your Honour also asked a question in relation to section 134(h), and the relevant of attrition and retention to that modern award objective.  In that respect I just highlight that as per our written submissions that we filed on 19 August, paragraph 18 which was in response to question 16 in the background paper number 5, it's our view that attrition and retention are relevant to the modern award objective, namely 1341(h).


I this respect we cited the Committee for Economic Development in Australia, which was exhibit ANMF95 at page 27,238 of the trial book. In that respect the CEDA(?) report found that improving the quality of care for older generations is not only a social imperative but also an economic one.


The sector receives more than 22 billion dollars of government funding per year, supports more than 7.3 million people receiving some form of care service, and employs more than 360,000 people.  It went on to say that by 2030 there would be a shortfall of at least 110,000 in the aged care sector if it continued to expand at the same pace to provide basis care needs, and that obviously doesn't factor in any increases in ratios and the like.


That was coupled then with the final report of the Royal Commission to aged care quality and safety which referenced, inter alia, low wages as being a factor in attracting and retaining well skilled persons.  It would thus be our submission in relation to the question posed that the attraction and retention is a factor intrinsically linked to the sustainability and performance of the economy, and thus the modern award objective contained in section 134(h).


Your Honour, in relation to one other question I think that was posed, which I will put in written submissions about, which was in relation to the question about the evidence of aged care workers who are leaving the industry, I intend to file something further in relation to that.


In relation to the witness evidence, and particularly the UWU's members who gave evidence, the UWU agrees with the submissions of the HSU in relation to the witness evidence, and in particular in relation to the summary provided by the joint employers in their written submissions, which was paragraphs 9 to 22, Annexures A to J of their closing submissions on 22 July, we would agree that it's very imprecise and that, in particular, it fails to encapsulate the degree of complexity of duties performed by aged care workers who gave evidence, and/or seeks to downplay the level of judgment, the discretion, the knowledge and the skills that the work that's performed is actually required.


One of the many examples of this can be seen in the summary provided by the joint employer in respect of the evidence of personal care worker, Judith Clarke, at that care.  The submission of the joint employers lists the set of tasks performed by Ms Clarke in very limited detail and then fails to mention what Ms Clarke describes as 'enablement work' which is the physical care performed by a PCW under the guidance of physiotherapists, which we would say actually falls more within that quasi medical type category.


Similarly, Lillian Grogan, a care worker coach at Australian Unity, performs a number of medically related duties without assistance or supervision, such as bowel care, described in detail at paragraph 12 of her statement, and palliative care at paragraph 13.  In respect of Lyndelle Parke, a PCW at Australian Regional & Community Services, the joint employers state that because she acts within the scope of her care plan, she is not required to make any judgment calls, save for emergencies in which an ambulance is called immediately.


It is our submission that this downplays the work performed by Ms Parke.  This includes monitoring the health of the client that she is looking after, redressing wounds and she gave quite detailed evidence around how she was required to monitor and make judgment calls in relation to what should happen if a wound looked infected, for example, and without the direct oversight of a nurse, and working with clients with dementia amongst many other things.


The dementia skills, I think as I mentioned before, included things like interpreting those facial expressions and body language to interpret what clients' needs were.  It's a very learnt and difficult skill.  These tasks involve a significant level of judgment, knowledge and skill and the above is just three examples of how we say that the joint employers' submissions undervalue the skills that were demonstrated by the witness evidence.


It is our submission that extreme caution should be taken by the Commission in reliance of that summary of the joint employers and the conclusions that are then drawn as a result.  In s similar vein, in relation to the evidence of UWU members, Wahl and Capelluti, the joint employer makes the assertion that the evidence should not be considered, due to the timing of the filing.  This is in relation to paragraph 4.2(6) of Annexure C of their closing submissions.


We obviously agree with the joint employer submissions in relation to the operation of section 590 of the Act.  It does give the Fair Work Commission broad discretion to admit evidence.


We say that such discretion should be used in favour of the admission of that evidence, and in this respect we note that the joint employers didn't object to the admission of the evidence at the time.


The employer interests have not been disadvantaged by the filing of both Wahl and Capelluti's evidence.  They were available for cross‑examination.  Indeed, they had the opportunity to cross‑examine them.


The joint employers also had the opportunity to adequately consider the evidence of both of those witnesses, and their actual evidence itself, we see, is of assistance to the Commission in the determination of this matter.  On that basis, their evidence should be admissible and the same weighting should be provided to their evidence as to the evidence of other lay witnesses.


Your Honours, that was all I intended to say in relation to the witness evidence.  In relation to the broader question that's before the Commission, which is the power to make the work value orders as sought, the United Workers Union agrees with the submissions of the HSU in respect of the operation of section 157(2A) and the interrelationship between 157(2A) and the modern award objectives contained within section 134 by virtue of section 157(2).


We note considerable submissions have already been made by both the HSU and the ANMF in relation to the operation of the pharmacy decision, the teachers decision and the ACT childcare decision.


In that respect, we echo the submissions in relation to the ACT childcare decision, which was made under section 881B of the Workplace Relations Act 1996, and it is notable that the 2018 amendment, the parliament chose not to incorporate the final criteria in section 157(2A), namely it removed that requirement to demonstrate a significant addition or find a fixed datum point.


It is within that legislative framework that the methodology established in the ACT childcare decision was made.  It is a situation where the Commission was asked to align the AQF framework to certain classifications but not otherwise consider the work value within childcare.


We say that it is open to the Commission to depart from this methodology when answering the question of work value in this case.  In this matter we say that there are clear work value reasons that should favour the variation of the aged care award and the SCHADS award in the manner proposed by the Hsu, and in this respect we also support the classification structure put forward by the HSU and support the submissions in respect to the proposal that there should be a separate supervisory classification.


The aged care workforce is predominantly women, and the 2016 National Aged Care Workforce Census, which was in March 2017, on page 75, demonstrates that 87 per cent of people employed in the aged care sector are women.


The reasons outlined by both the ANMF and the HSU - is a sector that has historically been low paid due to gender inequality and the devaluation of skills.  It is a sector where employers increasingly require PCWs and AINs to hold qualifications, and according to that same census and survey - and bearing in mind this was in 2016, some six years ago - two‑thirds of people engaged in the sector held a certificate 111 or higher qualification.


The evidence before the Commission is also that the vast majority of employees have at least a certificate 111, and there's significant evidence that employers require it as well.


This is a sector where the nature of work and the level of skill and/or responsibility in doing that work has increased, and this is across all streams of the aged care workforce.  It is uncontested - or is uncontentious, I should say, that the care model has shifted to one that is person‑centred.  The HSU yesterday took the Commission to the aged care standards, which encompassed this very fact.


Workers who work in aged care are expected to respond to more acute needs by adopting and applying philosophies such as re‑enablement, the household model of care, resident choice‑centred care, which is a definable change in the nature of work performed.


This is not just seen in the work that's performed by personal care workers but also in support staff and other non‑direct care workers such as Jane Wahl, who gave evidence that her work incorporates dementia care in garden planning.  She spoke of her increased interactions with residents and the expectations associated with this, Ross Heyan, whose interactions with clients as a cleaner are a fundamental part of his job, and Donna Capelluti, who gave evidence regarding the increased interaction with residents and indeed families.


Changes in the workplace structure mean that persons who work in the aged care sector, personal carers and other streams, are likely to be working in environments where there is less medical expertise on the site in the form of doctors and nurses, at least as a proportion of PCWs, to assist if necessary, and at the same time as residents are presenting with high medical needs.


In this respect, it's uncontentious that PCWs and AINs are being required to perform increasing levels of medical or quasi-medical duties.  This is not just seen in residential homes but also in home care settings, where carers are required to dress wounds, administer medication and similar without direct supervision.


The acuity of residents and clients in aged care has increased, and in turn the level of care provided by aged care staff has increased in complexity and skill.  There's been significant changes in technology and delivery.


In residential homes this includes things like various machines to monitor residents, glucose and similar, in recording and the documentation of information.  That's across the board in relation to home care as well, and in aged care it includes the communication - sorry, in home care it includes communication with supervisors via electronic means.


It's uncontested that propositions 1 to 16 in background paper 5 at 116 and the additional two propositions put forward by the HSU all demonstrate a clear increase in the skill and responsibility articulated in section 157(2A) and (B).


In respect of 157(2A)(c), it's again not contentious that the regulatory framework and the administrative oversight of the aged care industry has increased, and this too informs the conditions under which the work is performed.


In terms of the application before the Fair Work Commission, whilst it's discretionary to make the application pursuant to section 157(2), the preconditions described in section 157(2A)(a) and (b) have been met, namely a variation is justified by work value reasons, per section 157(2A), and secondly, the making of a determination outside of the system of annual wage reviews is necessary to achieve the modern award objectives.


In this respect, I don't intend to repeat the submissions already made today and yesterday but would rely on the submissions made by the HSU and the ANMF, if it pleases the Commission.


JUSTICE ROSS:  Thank you, Ms Harrison.  You might recall earlier this year we published a statement expressing three provisional views, and my recollection is the UWU didn't deal with those provisional views in its written submissions.  Do I take it that you don't oppose those provisional views?


MS HARRISON:  Your Honour, I actually have to refresh my memory as to what those provisional views were.


JUSTICE ROSS:  All right.  Have a look at the statement there.  They're also dealt with in the background papers, and if there's a different position from the UWU, let us know.


MS HARRISON:  Thank you, your Honour.


JUSTICE ROSS:  Ms Rafter, during the course of the oral submissions today and yesterday, in a number of instances either I or another member sought to characterise the position in respect of an issue as being uncontentious or not opposed.  You can take it that if we're not corrected about that, then that's the basis on which we'll proceed.


The transcript is now - I think it's been provided, and we'll expedite the transcript of today, so if anyone has any issue with any of those observations, they can bring it to our attention during the course of final oral argument next Thursday and Friday.


MS RAFTER:  If the Commission pleases.


JUSTICE ROSS:  Mr Sharif, you'll recall, I think, one of the questions to you is about the extent of the funding.  As part of the answer to that, if the answer is that, 'Look, it covers this but not this', type of proposition, then I want to know how much is in this and this.


So in other words, if, for example, you don't cover on costs, which is suggested by the joint employers, then, well, what proportion of total costs might that be, so we can try and get a feel for the extent, if any, of the impost on employers that won't be funded in one way or another by the Commonwealth.


MR SHARIF:  We will endeavour to have an informed position to provide to your Honour by next Thursday.  I just hold a degree of reservation because I know that there is a new model.  That's all I will say at the moment, but I will do my best to have a direct answer to you on this question.


JUSTICE ROSS:  No, no, I appreciate it might not be straightforward from past experience with the funding model.  It's one of the reasons why I'm asking the question now.  I think that's something you would be responding to earlier than next Thursday.


MR SHARIF:  I'm sorry, yes, we are responding to by Monday afternoon, but I suppose I'll (indistinct).


JUSTICE ROSS:  Look, I'd also encourage you to engage with the joint employers and see if there can be some sort of agreed understanding about what this might be.  I appreciate in the context of a foreshadowed new funding model, that might be challenging, but even if you can come up with a set of words that seeks to characterise the extent of the funding underpinning to any increase, that would be helpful as well.  If you can't get to the precise mathematical outcome, which seems unlikely - - -




JUSTICE ROSS:  Okay.  Thank you, Mr Sharif.  Nothing further?


MR GIBIAN:  Sorry, there were just two quick matters.  Your Honour the President raised yesterday a question about the evidence concerning supervision in home care.  We dealt with that in some degree at paragraphs 109 to 113 of the reply submissions, but we can supplement that with some additional references and do that in a note, if that's a convenient way to do it.




MR GIBIAN:  The second matter - - -


JUSTICE ROSS:  If there are any notes to be filed, it would probably be useful if you can file them by close of business tomorrow and provide them to all the other parties.


MR GIBIAN:  May it please.  The second matter was that Mr McKenna raised an issue just about the classification structure that we propose, particularly inserting the specialist at level 7 within the aged care worker classification and, as I understood it, made a submission that the effect of that would be to realign downwards personal care workers with a Certificate IV.  If we've missed it, we've missed it, but I hadn't detected that in their written submissions, I have to say, it's something they said was a consequence.  It would seem to depend upon the present circumstance being that any personal care worker, whether they have supervisory responsibilities or not, with a Certificate IV would be at level 7. I'm not sure whether that's correct and we would have to - - -


JUSTICE ROSS:  Well, why don't you have a chat - - -


MR GIBIAN:  I can maybe respond to that next week, if need be.


JUSTICE ROSS:  No, just have - - -


MR GIBIAN:  I just thought - or a note.


JUSTICE ROSS:  No, no, have a chat with Mr McKenna and see if you can sort it out between yourselves rather than leaving us to try and deal with it.


MR GIBIAN:  Of course, yes.


JUSTICE ROSS:  Nothing further?  Sorry, yes?


MS HARRISON:  Yes, your Honour, thank you.  Sorry, your Honour, I just thought whilst I was here, I might just quickly address the question that your Honour just posed then about the provisional views.




MS HARRISON:  We take no issue in relation to the provisional views that have been expressed, although would state in relation to provisional view number 2, which is that it's not necessarily for the Full Bench to form a view about why the rates have not been properly fixed, in the context of the gender pay gap expert evidence, what we would say is that we agree with that statement insofar as the Fair Work Commission doesn't need to go back through and retrospectively work out why it has not been properly set, but in terms of how they go about determining how the skills factor into the rates going forward, it is necessary to have a look at those determinative factors in relation to the gender pay evidence, so that those skills that are generally associated with feminised work, for example, have the appropriate weighting.


JUSTICE ROSS:  The nub of the point is that the exercise of properly fixing the minimum rates, we would have regard to the range of skills, including those that are referenced in Professor Junor's report?


MS HARRISON:  Yes, thank you, your Honour.


JUSTICE ROSS:  Anyone else?




JUSTICE ROSS:  Yes, Mr Sharif?


MR SHARIF:  I'm sorry, your Honour.  Hopefully this will be the last - - -


JUSTICE ROSS:  It's almost like whack-a-mole.


MR SHARIF:  I hope I'm not getting whacked.


JUSTICE ROSS:  Well, the next one who gets up might.


MR SHARIF:  Your Honour, one of the matters raised for the Commonwealth was an invitation to provide the Treasury modelling.




MR SHARIF:  Could I just - we are doing our - - -


JUSTICE ROSS:  That might have been a polite way of putting it, but, yes.


MR SHARIF:  Yes.  It wasn't a direction but an invitation.  There are obviously many practical difficulties in providing modelling as such, especially when it relates to Treasury material, because it doesn't have one source, as it were, but what we propose to do is to provide an explanatory statement of how we arrived at the conclusions that are stated in our written submissions, that is, to provide an elaboration of what inputs went into where to produce the result.


I just wanted to raise that because literally we couldn't accede to the invitation to provide the modelling.  It would require tremendous work.


JUSTICE ROSS:  I think the main issue raised in the other submissions is there's sort of no transparency about how you get from A to B, so anything that you are able to assist with that would be useful.


MR SHARIF:  That's what we intend to do, but we didn't want to get whacked next Thursday because we hadn't provided the actual modelling.


JUSTICE ROSS:  No, no, sure.  Yes.  No, I wasn't sort of seeking an exposition on Treasury's macroeconomic model and endless pages of formulae, but how did they arrive at the result really is the central issue of interest.


MR SHARIF:  Thank you, your Honour.


JUSTICE ROSS:  We will adjourn to 9.30 next Thursday.