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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






Continued from 25/08/2022


AUDIO COMMENCES                                                                          [9.30 AM]


MR SHARIF:  - - - section 157(2A), as we have set out (indistinct) answers to the supplementary questions, we have answered those issues that have been raised by the Full Bench.  In particular on the last occasion, Your Honour the President raised with us how we see the role of section 3 as (indistinct) object of the Act working with provisions relating to work value.  We hope we have answered that question, but I'm happy to assist your Honour (indistinct).


JUSTICE ROSS:  I suppose it sort of begs the question slightly which of the objects might be relevant.


MR SHARIF:  We certainly agree with the objects in relation to workforce participation, given it is very large in this case.


JUSTICE ROSS:  The idea of a fair framework (indistinct).


MR SHARIF:  Fair framework balances, and the Full Bench would have discerned from the material that we have provided, such as it is, that on the Treasury modelling, one of the conclusions that's been drawn is that an increase in the wage rates in this sector would lead to an increase in the supply of labour in the sector.


I'm not suggesting that there's a causal connection, but there's at least an inference to be drawn that an increase in wages in the sector, and I'm putting it no higher than an inference, could lead to greater workforce participation.  That's how we see it.


JUSTICE ROSS:  So it's not so much that we should attach significance to the particular numbers because, well, they are assumption based, the full 25 per cent, and it seems to be it's granted across the workforce.




JUSTICE ROSS:  And immediately then the effect would be what their model suggests, but it could support an inference, which would be logically available in any event - - -


MR SHARIF:  Indeed.


JUSTICE ROSS:  - - - that given the evidence we have received that low pay is one of the reasons for people leaving the industry and not being able to attract people, it supports the drawing of the inference based on all that material.


MR SHARIF:  Indeed.  And we put it no higher than an inference, your Honour.  We're not suggesting it's causal or anything like that on the materials.


The next point I just simply wanted to note was that the Commonwealth wishes to again reiterate that a range of skills and other factors, be they hidden or not, have not been previously recognised when setting the minimum wages for employees covered by the respective awards in this sector and that is a matter which I think every party, as it were, is ad idem about in these proceedings.


The Commonwealth reiterates the submission that the evidence before the Commission would support the finding that the work value of aged care workers is significantly higher than is currently reflected in the wage rates and the Commonwealth reiterates that part of the reason for that - we're not suggesting the whole of the reason but part of the reasoning for that - are gender-biased assumptions that have been value-laden into the framework, and that's not intended to be in any way pejorative of previous Full Bench decisions that have examined the sector or pay equity, but it is, nevertheless, a historical fact that the Commonwealth wishes to observe.


We have now next provided, we hope, sufficient information about the explanation for the Treasury modelling without, for the reasons I stated on the last occasion, the actual integers of every assumption that go into the model, and we hope that assists the Commission.


The next point I wanted to make was a correction to an aspect of our submissions at paragraph 191.




MR SHARIF:  That's our primary submissions.




MR SHARIF:  Where we had set out what was the gender pay gap.  As at November 2021, it was 13.8 per cent.  Can I inform the Full Bench that, on updated instructions, we were advised just yesterday that the latest data from May 2022 now records that the gender pay gap is 14.1 per cent, and that figure has been extracted from the Workplace Gender Equality Agency Equal Pay Day Key Facts 2022 and, if we have the Full Bench's indulgence, we can supply a link to that updated information later today, but we wish to indicate that.


The next point we wanted to make was we hope we have now answered the Full Bench's questions and the matters raised by the joint employers about funding of on-costs and funding more generally.  The position is, as we have stated, we can't take that matter further, but as we stated in our answers to the supplementary questions, the Commonwealth would welcome (audio malfunction) from the Commission, we can assist the Commission, once the Commission has come to either a concluded view or a preliminary view about particular wages rates and classifications, then to better inform the Commission if we are able to do so at that point.  Perhaps, in any event - - -


JUSTICE ROSS:  So are we left with the somewhat Delphic response that your support increases but that - and it may be that, you know, we don't need to go much further than this, but the Commonwealth has indicated what it's indicated and that support would mitigate the impact on employers of any increase arising?




JUSTICE ROSS:  But the extent of mitigation will remain to be seen depending on what happens post any decision we make.


MR SHARIF:  Yes, indeed, for reasons your Honour will understand, we wouldn't accept the Delphic comment, but we can understand the descriptor being applied.


JUSTICE ROSS:  But you are not suggesting that there will be no cost to employers - - -




JUSTICE ROSS:  - - - because you will pick up the bill for everything, are you?


MR SHARIF:  I'm not in a position to say that, yes.


JUSTICE ROSS:  You are not in a position to say whether you would or you wouldn't?


MR SHARIF:  Yes, that's right.  That's the position.  What I can reiterate is that from Prime Minister down to relevant responsible Ministers, a very firm commitment has been stated.  That's a matter of record and we have reiterated that to the Full Bench to the extent that we can.


The final point is another correction drawn to our attention by Ms Saunders.  Footnote [1] to our answer to the supplementary question referred to - - -


JUSTICE ROSS:  Footnote - I'm sorry?


MR SHARIF:  Footnote [1].


JUSTICE ROSS:  Bear with me for one moment.


MR SHARIF:  The correct reference in the Commonwealth Arbitration Reports is 78 CAR 758, not 78 CAR 753.  I understand Ms Saunders was reading that decision at 2 am last night.


JUSTICE ROSS:  Going for the pedant point, Ms Saunders?  I think you're the winner by a long way


SPEAKER:  The most technology on the Bar table.


MR SHARIF:  I believe she's actually got a full set of the Commonwealth Arbitration Reports, and she might be the only one here.


Other than those matters, they are the only matters we wish to add by way of oral supplement to that which we have said in writing.


JUSTICE ROSS:  Thanks, Mr Sharif.  Your point in relation to the gender-based undervaluation, as I understood your submission, you are inviting us to have regard to the indicia approach that's been adopted?  You are not suggesting it's the only approach?




JUSTICE ROSS:  But, having regard to that, and you have identified that while the reasons for, you know, low pay in the sector are complex, the evidence before the Commission is broadly consistent with the indicia approach and that should give us a level of comfort about that?


MR SHARIF:  Indeed.  Could I just say this by observation:  for our part, we don't think one needs to quite get to the point of the ANMF's submissions on the relevance of that to work value, rather we just say it's a historical fact from which, for various reasons, the Commission may proceed.




MR SHARIF:  The interpretive issues raised by the ANMF's submissions we don't think will need to be resolved here, or at all, but rather one can just approach it in the way that we have put it.  That's not to say that those submissions haven't been learned and well thought through, it's just we don't think it's necessary to go down that path.


JUSTICE ROSS:  Okay.  Can I raise two issues in relation to the modern award objective.  I don't recall that you made any submissions about 134(1)(d).  Are you suggesting that that's neutral or it doesn't arise in the context of - - -


MR SHARIF:  I think my learned friend Mr Gibian addressed on that and we accept that that is one way of construing those provisions as being of relevance here.  We had addressed them as being neutral, but we accept that it's an available consideration here.


JUSTICE ROSS:  All right.  My note - I haven't checked the transcript of the oral proceedings last week - the UWU was contending that attraction and retention was relevant under 1(h), the impact on the aggregate economy.  Am I right about that, Ms Harrison?


MS HARRISON:  Yes, your Honour.


JUSTICE ROSS:  All right.  I think you're the only one that's arguing it comes in under (h).  The others contend variously that mostly it's under (c), social inclusion, but it may also arise under (f), banked on business.  What do you say about the point that comes in under (h)?


MR SHARIF:  I'm just reminding myself of the text, your Honour.


JUSTICE ROSS:  It's really dealing with aggregate performance of the national economy, not of the sectoral impact.


MR SHARIF:  That's right.  We would say that that's the proper way of looking at (h).  That is, that the economy, and I think we provided some data from Treasury modelling about impact on GDP, about the increases in wages, and again, it's one of those factors, in the right type of case, that might be – attraction to attention might be relevant if there could be evidentiary support for a conclusion.


Again, it's one of those matters we don't think it's necessary to go to, but it might in the right type of case.  I might be being instructed about something.  I'm sorry, I'm reminded that we haven't said anything about GDP, but one can infer from that, that that's just a neutral position here, that there's not evidence one way or the other.


JUSTICE ROSS:  Yes.  So it's not likely to be statistically significant?


MR SHARIF:  Indeed.


JUSTICE ROSS:  Yes.  Can I - - -


MR SHARIF:  By which I mean – I'm sorry, your Honour, that doesn't mean there won't be a case where those types of factors - - -


JUSTICE ROSS:  I know, but I'm not contemplating this decision is going to sweep up every other case.




JUSTICE ROSS:  Can I take you to 158 of your submission.


MR SHARIF:  Yes.  Yes, your Honour.


JUSTICE ROSS:  This goes to a point that I raised, I think with the ANMF last week, and it's just the sequencing issue.  You'll see there in the quote that it's put that the phrase, 'fair and relevant', refers to those rates that properly remunerate the value of the work, taking into account surrounding factors.


But it's the next bit, 'and are not so low compared to general market standards as to have no relevance.'  I'm not entirely sure what's being put there, but if it's being put that you – and I think everyone agrees that you look at – there are cumulative tests, you look at whether an increase is justified by work value reasons and that's, if you like, the gatekeeper provision.


This sort of suggests that, well, you might reach a view about a particular quantum being justified by work value reasons, and then you go to the modern award objective and you think, oh, well, it's too low compared to general market conditions and you increase it.




JUSTICE ROSS:  How then would the resulting increase be said to be justified by work value reasons?


MR SHARIF:  Yes.  I concede that that is a part that has problems, not least because I think if we go on there to embrace what is said about the context of bargaining across the product – wage rates set by bargaining, it might be dictated by a number of factors, not necessarily a value of work.  So that that presents an inherent problem in taking that kid of approach.


What we were really saying here is that bargaining in this sector hasn't really had an impact, as far as we can tell, on wage rates, from what we can tell, and that data is pretty limited.  It seems that bargaining occurs on other areas of terms and conditions but - - -


JUSTICE ROSS:  What do you say about that – and it may be that, you know, I'm jumping at shadows and it's not what was being put by the HSU, but let's assume it was.




JUSTICE ROSS:  What do you say about the proposition that you reach a view about a level of increase can be justified by work value reasons?  You then turn to the modern award objective and on that submission, you increase?  You end up with a higher amount?


MR SHARIF:  As I say, it depends upon what the market position is and - - -


JUSTICE ROSS:  No, I don't think it does.  I'm asking you as a legal construct.




JUSTICE ROSS:  Not based on what the evidence is in this case.


MR SHARIF:  Yes.  All I'm saying is, as a legal construct, what is fair and relevant as a baseline, would stand at its own.  We can accept that in assessing what's fair and relevant one would look at market factors, but as a matter of interpretation, 'fair and relevant' is such a broad expression.


JUSTICE ROSS:  No, I realise that, but 157 provides we could only increase if it's justified on work value reasons.


MR SHARIF:  Yes.  Yes.


JUSTICE ROSS:  So if it's an amount above that which would be justified on work value reasons, how would it be consistent with 157?


MR SHARIF:  I think I have to accept that, at the first gateway.  At the first gateway.  That's right.


JUSTICE ROSS:  I'm not sure what that means.


MR SHARIF:  That is, as we read 157, the first gateway is work value reasons; and then one looks at the modern award objectives as a second gateway.


JUSTICE ROSS:  Sure.  I think the sequencing and – I don't think that's contentious.




JUSTICE ROSS:  But the point is, does that mean that it can rise no higher than that which is justified by work value reasons?


MR SHARIF:  I'd have to accept that, your Honour.


JUSTICE ROSS:  All right.


MR SHARIF:  I think one of the difficulties we have is that being completely determinative and conclusive in a case such as this where it might have set a precedent on how one interprets the provisions later - - -


JUSTICE ROSS:  No doubt it will, yes.






MR SHARIF:  And so perhaps the reason for our hesitation is just that, but we accept what your Honour has put to us.


JUSTICE ROSS:  Can I take you to 167?


MR SHARIF:  Yes.  Yes.


JUSTICE ROSS:  So the proposition is put that, and I accept there are difficulties in working out the – you put that the increase itself would have a neutral effect on bargaining.  Bearing in mind the consideration is the need to encourage collective bargaining, so if it has a neutral effect it couldn't be said to encourage collective bargaining.


MR SHARIF:  Yes.  I think if we could just refine that.  It may encourage collective bargaining, as I said, on terms and conditions outside of wages.  But I give the state of the evidence I can't take it any further than that.




MR SHARIF:  Thank you, your Honour.


JUSTICE ROSS:  Thanks, Mr Sharif.  Mr Ward?  Have you had a discussion amongst yourselves about how long each of you are likely to be?


MR WARD:  I've been put on notice by many people that I have to be as short as I humanly can, your Honour.  I can assure you I - - -


JUSTICE ROSS:  I didn't want to add to the list but - - -


MR WARD:  Can I indicate that I have no reason to believe we won't finish today, all of us.  I suspect I'll be a little more than an hour.


JUSTICE ROSS:  Yes, all right.


MR WARD:  If the Commission pleases, can I start by indicating that I have no intention of summarising our written submissions.  I rely on all of our written material.  It's very clear from the background papers that the Bench are across all of that material and I don't intend to go to it today.


My submissions in closing will be in four parts.  The first part, last week there were a number of observations made about what our position was in relation a small number of matters.  This mostly arose in dialogue between your Honour the Presiding Member and my friends, and it's appropriate that


I just affirm our comfort with how our position was described in relation to those matters.  I think that would be helpful.  Those matters are the C10 framework, the statutory framework, the homemaker model and the notion of productivity.


I then intend to move on to what we understand to be the matters we were invited to respond to today.  We've done our best to identify those, and we currently have six.


The implications of applying the C10 framework to the lower levels in aged care, the notion of key classifications or benchmark classifications and internal relativities, clarification about the role that modern awards objective and minimum wages objective plays alongside section 157, what are stated by the HSU as departures in our submissions from the consensus statement, a small point of clarification about an element of our closing submission of 22 July, and I think we were asked by the ANMF through the Commission to comment on the question they raised about our view about nurse practitioners and assistants in nursing who didn't have a certificate III.


I think that's what came out of last week in terms of what we were asked to address.  If I haven't got that right, then obviously the Bench will let me know as I go through it.


I then intend to, thirdly, deal with about a dozen matters arising from my friends last week, and I'll come to those when I come to them, and then lastly, I just want to talk about process from here.  Those would be our submissions today.


I'll start then with just some comments that fell from the Bench, and this will be mildly tedious, so if the Bench could just bear with me.  There was a discussion between his Honour the Presiding Member and I think Mr Gibian about our position on the C10 framework and this perennial debate about whether or not we say it's determinative of whatever.


That conversation was held.  It commenced at PN14289, and your Honour the Presiding Member said this:


I hadn't taken the joint employers to be saying it's the beginning and the end.


You later on at PN290 said:


I accept there are differences of emphasis but that's the heart of it, that relative, not determinative, not a necessary beginning point and not an end point.


Can I just say that we're entirely comfortable with how the Commission described our position.  I think that encapsulates it in a nutshell.  The C10 framework is a very useful guiding tool.  It is not the beginning, it is not the end, and it doesn't substitute for the statutory discretion in section 157.


There was then some discussion last week concerning section 157.  Your Honour used the phrase last week about the gatekeeper provisions.  Can I just indicate this at the outset, and I'll develop this a little later in some more detail.


We see the statutory task to be properly setting minimum rates of pay based on work value reasons.  We do not believe that the modern awards objective is available to adjust that decision in terms of quantum up or down.


JUSTICE ROSS:  Up or down?


MR WARD:  Yes.  I'll talk later about how we actually see that playing out and the role the modern awards objective plays, but the gravamen of the decision concerning the actual setting of the quantum is unashamedly residing in section 157 and relates to work value reasons.


The modern awards objective clearly has a role to play.  We'll come to that and we'll explain how we think it plays an important role, but we'd ask the Commission to focus very much on the evaluative exercise arising from section 157, and this notion of the gatekeeper provision is one we are entirely comfortable with.


There appeared to be then some debate - your Honour Deputy President Asbury was involved in a debate about the homemaker model, and your Honour sought to explain what our position was on that matter, and at PN14561 your Honour said this:


My understanding of the joint employer submission is not evidence that that is a broad shift -


- that is, a shift to the homemaker model:


It's confined to one or two employers in the industry and they deal with it by way of enterprise agreements.


I think that's a very appropriate summation of our view about the homemaker model, and so I want to indicate to the Commission that we're very comfortable with how the Commission are viewing our position in relation to that.  I will say a little bit more about that later on in response to the HSU's submissions.


Lastly, a matter was arising last week about the relevance of the notion of productivity.  This was in an exchange between the Presiding Member and the ANMF.  Can I just indicate this.  This might have been misunderstood from our submissions.  I don't think we've made any submission about the issue of productivity in this case.  I've trawled back through our submissions.  I can't find it.


To the extent that the notion of productivity arises in section 134, it doesn't seem to us to be a particularly relevant issue for these proceedings.  I think that's the conclusion that was ultimately expressed last week by the Bench.  It's a conclusion we're comfortable with.


Can I then turn to the questions we were asked to deal with.  Your Honour the Presiding Member asked us at PN14474 this, what the implication would be of applying the C10 framework to the lower levels of personal care workers in this award, and my sense of that was that we were asked to explain our position on that.


It is possibly the case when we look at our submissions, if you look at the mathematical formulations in our submissions, I think it's fairly clear that the levels below C10 on a mathematical exercise suggest that the entry level rate, and certainly the rate below C10 but above entry level, is actually higher than the appropriate C11 rate.


I think that question has probably been posed to us because on a mathematical exercise it suggests that the classification below C10 should go down.  I assume that's why we've been asked that question.


JUSTICE ROSS:  Yes, but that's if you adopt as a decision rule the manufacturing award framework and you apply it here.


MR WARD:  Indeed.


JUSTICE ROSS:  As your submissions have developed over time, I've taken it that you're not proposing a decision rule, but it seemed to me there was some tension between that proposition as reflected in your first submission with the proposition in your response to questions around where you said there was a significant increase in work value, which was the direct care component of the workforce - not limited to that, but that would include the personal care workers.


So I just wasn't sure where we ended up, just as I'm not sure - I think it was your answer to - and this is in background document 8, but your answer to question 8 of background document 5, you confirmed that you contend an increase in minimum wages is justified on work value grounds in respect of Cert III care workers and the like?


MR WARD:  Can I try and dispose of it this way, perhaps with some example.  If the Commission formed the view that it was appropriate, by way of example only, that you grant a 4 per cent increase to the Certificate III classification, there would obviously be a consideration then as to what should happen with the classifications below.


It might ordinarily follow that you want to maintain the current internal relativities, unless there's some particular reason why they might cause you some anxiety and, in that case then, the classification below would obviously have an increase as well commensurate to maintain the relativity.  That's certainly one approach that would be available to the Commission and, in that sense, it wouldn't go down.


I don't think there's enough evidence before the Commission - in fact, I don't think there's any evidence before the Commission - of any employee who operates currently in the classification below the Certificate III or equivalent classification.  I don't recall, when we took the evidence before Commissioner O'Neill, that there was any employee who was in that classification.


JUSTICE ROSS:  It would seem counter intuitive in a case where there's broad agreement that the sector has difficulty attracting and retaining people - at least they are the Royal Commission's observations on them - there are those parts of the consensus statement for us then to reduce the wages of certain classifications of employees in direct care when there's sort of no application to do so and it's not proposed that we should adopt the Metals framework as a decision rule.


MR WARD:  No, I'm not sure that we're actually at odds with your Honour.  What I would say is this, is that one could consider a case where, in properly setting a minimum rate, it might actually suggest that that minimum rate should be reduced from what it is today.  You could imagine a case like that.  I would suggest that the modern awards objective would come into play in this regard then.  It might be appropriate in washing that through the modern awards objective to form a view that no existing employee, for instance, should have a reduction in their pay.  That would seem to be quite a reasonable proposition to follow.


JUSTICE ROSS:  Yes.  Speaking for myself, I'm sort of reluctant to embark on hypotheticals in a decision, but just focusing on this case, I'm not taking the joint employers to be contending that the wage rates of any employee should be reduced.


MR WARD:  No, not at all.  That's why I say I don't think we're at odds with the Commission.




MR WARD:  I don't think we have in any sense suggested that.


JUSTICE ROSS:  Yes.  Look, it's a bit like Mr Sharif, to the extent he was inviting us to perhaps make some observations that in another case there may be an impact on aggregate, well, that might be right, but let's sort of bring it back to where we are, otherwise you end up with a decision that's so qualified about what might arise in another case that it's hard to sort the wheat from the chaff.


MR WARD:  Our presumption in this case was largely the one I put, which was we had assumed that you most likely would grant an increase of some magnitude to the Certificate III classification and then there would be some obvious movement of the classification below commensurate with that.  We have made that assumption.  There's not enough evidence before the Commission to independently form a view as to the value of the work for that classification.


JUSTICE ROSS:  Yes, I follow.


MR WARD:  That's the assumption we had, your Honour.


JUSTICE ROSS:  Okay.  Well, since we're on the quantum point, as I understand your response to the questions put, it was - and this is recorded in, I think background document 8 - that you've identified the areas where you say the evidence supports an increase on work value grounds for those employees.  You are not contending that it should be a uniform increase of 25 per cent.  You have clarified in relation to the registered nurse the application of the Metal structure would lead to 35 per cent.  So, on my understanding of your submission, you are not putting that it ought be a uniform increase for the Cert III care workers and the enrolled nurse, registered nurse, head chefs, cooks, whatever we are describing them as, but that sort of begs the question what is the quantum that you say is justified?  If it's not a uniform 25 per cent, what is it?


MR WARD:  Your Honour, all I can say at this stage is I'm not instructed to put a position on that.  If the Bench presses me on that, I will try and seek some instructions, but, at this stage, I'm not presently instructed for that and I apologise if that's unhelpful.


JUSTICE ROSS:  No, no, that's all right.


MR WARD:  Can I just say on the registered nurse in terms of our submissions, it's not just a reflection on the C10 framework that leads us to that.




MR WARD:  It's also the fact that when one compares the role and nature of the work performed by the registered nurse by comparison to the teacher in the Teachers decision, we actually in our submissions indicate that we saw very clear parallels between those two occupations, and so we thought there was a broader reason to support that other than just the mechanics of the framework.


JUSTICE ROSS:  Is it the position that given the role of the registered nurse under the regulatory framework as well and the level of responsibilities and the evidence around work value, you say it's not simply a mathematical link to degree-qualified and you run that across and that's the reason; that framework analysis is supported by the evidence in this case and together they justify the proposition?


MR WARD:  Yes, indeed.


JUSTICE ROSS:  I follow, okay.


MR WARD:  It's slightly more nuanced than just sort of A equals B.


JUSTICE ROSS:  Yes.  This case has got nothing if not nuance.


MR WARD:  That is very true, your Honour.  Which brings us in many respects to the question that were posed back in the benchmark classifications.  There's very clear complexity in this case in this regard.  I have tried to think of an example when this isn't the case, but predominantly awards in this jurisdiction today and historically, with a few exceptions, tend to deal with what we might describe as people involved in post-secondary education qualifications up to a certain limit and then we have awards dealing with predominantly tertiary education.


I think one of the challenges you have in this case is you've got possibly benchmark classifications to give some consideration to.  One is clearly the Certificate III classification; one might even possibly add Certificate IV; you've then got the diploma qualification, which is vested in the enrolled nurse, and then you've got the degree qualification.


So, as might have been the practice say in the ACT case of simply identifying one benchmark and working from there, we think that sort of is insufficiently sophisticated for this case.  I think you have to look at Certificate III, you have look at the diploma enrolled nurse and the registered nurse in their own rights, and we do say that might create some challenges in the sense of historical relativities might be disturbed, but it would be more appropriate to do that in the context of section 157 rather than simply say, 'Well, we're going to look at, say, C10' or 'We're going to look at C1 and we'll just let the internal relativities flow.'  I think this case is more sophisticated than that and you will need to look at those individually in determining what you think is the work value outcome for those.


As I say, that might then require the parties to turn their minds at the next stage of the proceedings as to how that might juggle up some of the way people are classified today, but I think that's the only way we can respond to this notion of you abandon the ACT notion of just picking one benchmark, because this is an unusual case because it traverses a very broad sphere.


JUSTICE ROSS:  The ACT case wasn't intending to set on a stone tablet that it should be ‑ ‑ ‑




JUSTICE ROSS:  It reflected the way the case was put.


MR WARD:  It did.


JUSTICE ROSS:  And it was put on one there was very little examination of the circumstances in which the work was performed or the broader work value considerations.


MR WARD:  There's no doubt in this case that there is - just putting the support staff to one side for a minute, if I can do that.




MR WARD:  There's no doubt in this case that there's ample evidence for the Commission to arrive at its decision about registered nurses, about enrolled nurses and about certificate III personal care workers, and, I would suggest, also certificate IV, to the extent that they're relevant for recreational officers and the like.  This case has been broad enough and deep enough to provide the Commission with assistance in relation to each of those key classifications, for want of a better term.


Can we just deal with the role of the modern awards objective.  I think we were asked to come to this.  We see the role of the modern awards objective in this light.  The Commission will review the evidence and undertake its evaluative exercise under 157, applying work value reasons, and reach a determination as to quantum.


It seems to us  that the modern awards objective has a role to play in a variety of ways, none of which are about determining the quantum, none of which are about determining it.


It clearly has a role to play, unashamedly, in how any decision would be implemented.  Without going to particular parts of the modern awards objective, there's a whole variety of them there, but they would all go to issues of when it might start, how it might be phased in, whether or not it should be phased in sort of in one go, two goes, three goes, over what period it might be phased in.


So the modern awards objective would really give a great deal of force to assist how that occurs, and that would be the balancing exercise between workforce participation, business impact and all of those of things.


But we don't reach the position the HSU do that suggests that somehow the modern awards objective allows you to go, 'Well, that's the work value outcome, but we're now going to increase it or decrease it because of the modern awards objective.'  We're not comfortable with that.


JUSTICE ROSS:  Yes.  I'm not sure that is the HSU's position, but they can deal with that in their own time.  It's one interpretation of the extract of the submission that I took the Commonwealth to, but it may be no more than saying that it's an additional check.  You look at other factors, and they also support the level of increase which is justified by work value reasons, and that's another reason to award an increase of that magnitude.


MR WARD:  The part where we start to develop some discomfort is this.  The scheme in 134 is a fair and relevant minimum safety net.  I don't need to go to that.  It's been dealt with in many decisions of this Commission, but that does stand in contrast to other jurisdictions such as the New South Wales industrial jurisdiction, which is about setting fair and reasonable without mention of minima.


So we would just be somewhat anxious if the Commission brought into its mind market rates as it was determining work value.  We think there needs to be some concern in that.  One needs to look very much at the value of the work in the context of setting of minimum wages rather than why or how people might accept market rates.  That's all we would say about that, but we think that's the role that the minimum awards objective plays in the proceedings.


I think there was a suggestion that in relation to section 134 we were - I think your Honour the Presiding Member suggested we were engaged, I think the words were, in a mild fence‑sitting exercise.


JUSTICE ROSS:  Well, you didn't put what you've put this morning, and you didn't seem to be putting a concluded position.  That is, the unions contend the modern award objective and the considerations support the increase they're seeking.


You didn't seem to be contending that it didn't support an increase.  You dealt with the considerations in the way you've put them, which seemed to be an acknowledgement that the needs of the low paid, consideration A could be said to weigh in favour, but you have to have regard to all the others, there are costs, et cetera, while attraction and retention may be brought to bear in it as well, but I wasn't sure where that led you.


MR WARD:  I think it's probably true to say that we probably were engaged in a mild fence‑sitting exercise.  That's probably a fair description, in that we didn't necessarily arrive at an ultimately concluded view.  There's no doubt that any increase in any minimum wage is going to assist the lower paid.  I mean, as a matter of logic it's going to assist.


We probably differ from the unions, in that our view, particularly based on the evidence, for instance, is that raising wages in the award, certainly of the magnitude that the applicants contend for, certainly isn't going to encourage bargaining, it will probably have the opposite.  So we do take issue with that.


As to the issue about the impact on business, obviously the late entry of the Commonwealth in the proceedings with its position has to be taken into account.  There's no doubt that to some extent what this Commission ultimately decides will be ameliorated by funding.


As I'll deal with later on, my clients are anxious about the notion of support, and it fell from your Honour talking to Mr Sharif this morning.  It's not clear at this stage what the phrase 'support' necessarily means in practice.


JUSTICE ROSS:  I suppose the Commonwealth is in a difficult position too.  If you look at either end of the continuum, their support will be dependent, no doubt, in part on the level of increase.


MR WARD:  Yes.


JUSTICE ROSS:  The level of increase no doubt will also affect the view they might take on whether the increase is phased or not, and it strikes me that - I mean, your clients are in a bit of a conundrum as well.


On the one hand there is the potential for a significant, albeit unknown, cost impost depending on the level of Commonwealth support, but on the other hand, the employer lay evidence also speaks to difficulties in attracting and retaining people in the sector, and that because it's a funded sector the use of market wages isn't really a way of addressing that, at least not completely.


So on the one hand, an increase in minimum wages would assist in the attraction and retention issue, and I think it's common ground that the projections are for a significant increase in the number of people employed in this sector, and it's sort of, at the moment, difficult to see where they're going to ‑ ‑ ‑


MR WARD:  Come from.


JUSTICE ROSS:  Come from.


MR WARD:  Yes.


JUSTICE ROSS:  So in some ways the impact on employers of an increase is a mixed outcome.  In some instances it will assist in addressing labour force shortage issues and projected issues.  On another view, if the Commonwealth support wasn't what the sector was looking for, then it might - I'm not suggesting the Commonwealth would do this, but let's say they came, 'We'll fund 50 per cent, you have to find the other 50 per cent yourself', well that might make some businesses unsustainable in the sector.


MR WARD:  I think your Honour's probably hit on why it might be said that our submissions appear to be sitting mildly on the fence.




MR WARD:  Because, on a practical understanding of what's just fallen from your Honour, it's not unrealistic for my client's perhaps to be mindful of sitting on the fence, in that regard.


The other challenge, if one reads the Commonwealth's material on its modelling, and it talks about the reservations it has about modelling in its submissions, given the current (indistinct) state of the labour market in Australia generally, I'd adopt your Honour's view as to it's entirely unclear where the labour is going to come from.


Of course, what hasn't been modelled is whether or not the markets in other industries will adjust, in response to this sector potentially being more attractive for a period of time.  They might adjust and, therefore, people will again be back where we started.


So it's not that we're trying to be deliberately equivocal about the whole thing, it's just that there are many moving parts and we try to be as candid as we can about our approach to the Modern Awards objective.  But, in a circumstance, as the one your Honour's just described, we probably are mildly sitting.


Can I deal with this consensus statement?  I think we were put on notice, by the Commission, to respond to what Mr Gibian suggested was a departure from it.  I don't intend to restate everything we said about this.  The consensus stated was an artefact in particular context at a particular point in time.  We would ask the Commission to (indistinct) on the evidence.  I don't think the consensus statement can be said to bar us from making submissions in these proceedings.  If it does intrigue us that when Mr Saville(?) gave evidence, nobody seemed to be interested in asking him any question about the consensus statement which, obviously, he was available to answer.


I will address, very particularly, Mr Gibian's suggestions that my client's submissions depart from paragraph 5, 13, 19, 22 of the consensus statement.  I apologise in doing this, it seems that it's almost taken on the role of a legal instrument that requires interpretation almost.


We're not sure that our submissions really depart from paragraphs 5, 13 and 19, and I'm going to explain why, but we do acknowledge that our submissions depart from paragraph 22.


JUSTICE ROSS:  So when you say, at 318 of your response to the questions, that there are limited areas of alleged inconsistency, those are the ones that you've identified.  But, as you're going through it, if you can identify for me where is the inconsistency?


MR WARD:  I'm going to try my very best, and I'm going to do this in granular detail, which might be a little tedious, but if the Bench might bear with me.


I'm going to start with paragraph 5, because we don't actually think - maybe it's how we read the words, which I'll explain, we don't think it's, necessarily, a departure in how we advanced our position in paragraph 5.  Paragraph 5 says this:


Clustered domestic and household models of care are growing in prevalence.  These models of care require greater numbers of staff with a broader range of capabilities.


There is no doubt that, over the last 20 years, there are now more of those in the industry than there were 20 years ago.  To the extent that they've grown in prevalence, we don't have a difficulty with that.


JUSTICE ROSS:  Does the issue come down to the HSU's additional area of proposed - - -


MR WARD:  Yes.


JUSTICE ROSS:  And you don't say - you say it doesn't go that far but you're content with the descriptor, in paragraph 5?


MR WARD:  Absolutely.  If that's to be read that the industry is moving uniformly to this new model, well, we don't read it that way.  But it's clear, if one looks at the industry 20 years ago, one would struggle to find that model.  It's clearly now a part of the industry.




MR WARD:  As to the greater number of staff, we think it probably is a reasonably logical proposition, in this sense.  If one looks at Hammond Care, who gave evidence about the homemaker model, their model, effectively, was, 'This is a cottage house, very much like a residential house, where one has a smaller number of consumers in the house'.  If you just think about this, just in terms of labour force structure, it you're going to have people geographically located in a premise, there's going to be a smaller number of them, rather than in a more institutional setting, by definition you're probably going to need more staff on your payroll.  So we don't have any difficulty with that phrase.  I don't think we've said anything, in any way, that struggles with that notion.


Then there's this proposition that those staff have a broader range of capabilities.  Well, we don't struggle with that either.  In this sense, and I'm thinking of the evidence of Marion Jennings, we refer to this at Annexure A, 2.313 of the closing submissions, that Ms Jennings' evidence, when she worked in home care model, I think she said, in her evidence, that, in addition to providing personal care she said she did the personal laundry of those people in the home.


Now, she said she didn't do the laundry, the linen laundry and the towels and things, they went to the central laundry, but she did that.  She also said, in her evidence, that she made toasted sandwiches and things like that.  So, again, Ms Jennings demonstrates that people that are doing it have a broader range of capabilities.


I don't think there was any evidence of somebody in a more traditional aged care setting doing personal washing or making toasted sandwiches.  That washing would fall to the laundry and the catering would fall to the kitchen.


We're not entirely sure why it's said that our submissions are inconsistent with paragraph 5, we're just really struggling with that.


If one looks at paragraph 13:


The work demand of aged care workers is changeable and work is done to rigorous time and performance standards.


I suspect the devil is in how one reads to those words.  We're comfortable with how we read them.  Is it changeable?  Yes, and I'll come to this in some more detail later.


JUSTICE ROSS:  I think the conflict here might have arisen from your earlier submission about the work having a particular cadence.


MR WARD:  I'm going to come to that.


We don't resile from the fact that there is cadence to the day.  I'm going to talk about the cadence before we sit down today.  But within the cadence it is changeable in this sense; and there's an abundance of evidence about this.  Let's take the morning routine.  The morning routine appears to be, in all the evidence, that the first thing to do is to assist the consumers to rise from sleeping.  There's then a process where they shower, bathe, assist with toileting.  Then the next step in the process is normally breakfast and feeding.  That's part of the normal cadence of the day.


What is changeable is this; and evidence suggest that this happens frequently.  The personal care worker might decide to start with Nigel.  Nigel's clearly wanting to stay in bed and continue sleeping, so the personal care worker then goes and goes to Jane and sees if Jane is ready to get out of bed.  It clearly is a change process occurring that someone has to adapt to, but the notion that 'changeable' is meant to mean that you walk in on Monday and you have absolutely no idea of what you're going to do it with and you make it up as you go along, that's not what we understand to be by 'changeable.'  But there is change and adaptability within the normal cadence of the day, and within the care plan which I'll come back to, as well.


'Work is done to a rigorous time and performance standards.'  Again, it's what you think of the word, 'rigorous.'  But the cadence of the day is a fairly rigorous program.  Get up, shower and toilet, breakfast, morning tea, lunch, afternoon tea, dinner, get ready for bed, sleep, punctuated by other routines – morning medication round, afternoon medication round, night time medication round, punctuated by activities from the recreational officer.


So, in a sense we just think that that is part of the rigorous time process that's involved.  We don't read it any differently to that.  In terms of the performance standards, it's quite evident that there are very clear performance requirements in the evidence.  The requirements to comply with a care plan is unambiguous.  The requirement to follow certain procedures and protocols in a very particular way, was undoubtedly brought out in the evidence taken in front of Commissioner O'Neil.


I'll give examples.  All of the employees talked about, if there's a fall and there's a call bell, how quickly you have to respond, and who had to respond.  That is unashamedly a clear and unambiguous performance standard that they have to meet.  All of the employees' personal care workers talked about how if they observed a bruise or a tear they immediately had to contact the registered nurse to understand what was going on.


So that there clearly are very clearly delineated performance standards, performance requirements in how they perform the job.  The unions might read those words differently to us, that's fine.  But we read them that way.  We have no problem with it.


Paragraph 19, 'The home care workers work with minimal supervision, and the increase in acuity and dependency of recipients of aged care services means that these workers are exercising more independent decision-making, problem-solving and judgment on a broader range of matters.'  Again, perhaps the eye is in the beholder here.  'Do they work with minimal supervision?'  That is not contested.  It was very clear that care workers working in the home, the residential home environment do not work with direct or close supervision.  There's no debate about that.


What they do do though, is they follow very clear procedures which are designed to account for the lack of direct or close supervision, and those procedures are that in certain circumstances one does X and Y, and it normally involves calling the home base, as it were, waiting for instructions.  It might involve departing the house.


But I don't think we've ever suggested that people in home care work under direct or close supervision.  They have protocols to accommodate that.  We've dealt with those in Annexure G of our submissions, and I think all of the cross-examination of those witnesses before Commissioner O'Neill demonstrated that all of those employees understood those procedures and they followed them very clearly.


'Do people in home exercise more independent decision-making in a broader range of matters?'  Yes, they do.  Let me explain what we take that to mean.  It means this.  They don't have colleagues near them to bounce issues off.  They clearly will have to be making decisions, themselves.  There's no doubt about that.  Those decisions could be, do I do the consumer's washing first, do I shower them first, they're going to be making all of those types of decisions independently.  We have no trouble with that as a notion.


As to the acuity question, it's a little more complex because I think the evidence demonstrates that there's a broader range of people in the home environment, potentially than there was in the residential environment.  I think all of the evidence suggests that the – I'll try and say this appropriately, that people ultimately move at the end of their life into the residential environment.


I think that the evidence was that when they do move in there's a much greater likelihood of comorbidity.  The evidence was that the period of time they spend there before they pass is now dramatically reduced, compared to, say, ten years ago.


JUSTICE ROSS:  So, as a matter of logic, if they're encouraged to stay in their own residence as long as they are able to do so safely and appropriately, and just the shift in the profile of those in residential care would suggest that there are more people receiving home care that have a higher level of acuity than in the past.  I don't think it's put that everyone receiving home care has a high level of acuity.


MR WARD:  No.  No, no.


JUSTICE ROSS:  But if you look at it as a collection then there are more people with higher levels of acuity in home care than in the past.


MR WARD:  Yes, but I don't think we've suggested otherwise.




MR WARD:  I think the point we're trying to make though is that in the home environment there's probably a broader span of acuity, as it were, of people you're dealing with.  There will be people who are relatively independent for whom somebody might just be doing the shopping.




MR WARD:  There might be somebody who possibly might be more suited to a residential facility but is staying in the home and has considerably more domestic and personal care.




MR WARD:  But in relation to the broader range of matters, and we'll talk about their role a little later, I don't think we have any concern about the fact that they have a broader range of activities, for this reason.  All of the evidence demonstrates that if one is caring in a home environment that one could be undertaking, I think what were reasonably described as domestic activities, and also personal care activities.


That is, you could be in the environment, you could be shopping, you could be preparing a meal, you could be putting a load of washing on for people, you could be vacuuming the house.  Conversely, you could be undertaking very particular personal care activities, similar to a residential aged care setting, such as showering and things like that.


JUSTICE ROSS:  And overseeing medication and the like.


MR WARD:  Overseeing medication in the way the evidence described it, in the home setting.  That was predominantly the medication prompt process.




MR WARD:  Yes, and then I think the evidence demonstrated that of the people working in the home environment there were people who did both domestic and personal care.  There were some people who just did domestic, and there were some people who just did personal care.  But in aggregate, clearly the person in the home environment is undertaking a broader range of duties.


The most, and we're saying most of the people in the aged care setting, because one has to be a little careful in this sense, there was some evidence of people in a aged care setting, personal care workers, who said, well, I helped feed people in the morning; there was some evidence from personal care workers who were dealing with people who had eating challenges and the personal care worker fed them.


I think there was some evidence, at least in one provider, of if someone was incontinent of urine, for instance, in the bathroom, I think one personal care worker said that was their job to clean up, rather than the cleaner.  So there might be a little blurring with that but generally speaking, yes, the range of duties performed in the home probably is going to be broader.  So, again we're not particularly discomforted by that statement.


It's paragraph 22 that is probably the issue and we accept that, and I've said that in our opening submissions.  We do to believe that the evidence in this case supports the view that those people in the support functions should be considered to be on a par with the personal care workers.  We think the evidence is, with respect to my friends, very clear on that particularly the evidence from the people who work in the laundry, the gardening, some of the people who were undertaking jobs that I think were colloquially described as sort of handy people.  It seems to us to be very clear that, with one exception which I will come to, those people had not been exposed to the great majority of things that all parties seem to have acknowledged about personal care workers.  So, we think the evidence does distinguish that group.


To the extent that that submission is at odds with paragraph 22, we accept that.  My clients acknowledge that it is at odds.


JUSTICE ROSS:  Does the difference in your submission flow from the extent of interaction with residents?


MR WARD:  Well, it flows from two propositions.  It seems to us that, for the most part, those persons that were brought forward as witnesses and were cross-examined, for the most part, this notion of change seems to be dramatically less for them in terms of how they are performing their jobs.  They have greatly diminished interaction - I'm not suggesting they don't have interaction - but they have greatly diminished interaction with the consumer compared to the personal care worker or the registered nurse.


Where they do have a similarity one would say is possibly this.  It's very clear from the evidence that people in those roles, and I will come to the head chef in a minute, people in those roles we accept do, for instance, undertake in-house training around dealing with people with dementia and things like that.  We accept that.  The evidence was very clear on that.  But, for the most part, we don't see the evidence suggesting that the conclusions one might draw about caring work can be simply washed onto those types of activities.


Now, we have said that we think that the head chef seems to stand out a little bit in regard to that and we have acknowledged that.  The head chef seems to have a higher level of interaction.  A number of the head chefs indicate in their evidence before Commissioner O'Neill for instance that they participate more broadly in interacting with not only residents but also family members.  They have a much more involved role now in working with dieticians and the like in terms of the setting of menus and things like that.  So, we saw them very much as a distinct group of people who one might focus on separately to support staff generally.


We were put on notice to address an issue at PN14842 by His Honour the Presiding Member.  This seems to have been a question of clarification around our closing submission at paragraph 4.7.  I'll just paraphrase it if I can.  The Commission said this:


The ANMF are confused with respect to the employer position on AINs and PCWs who do not hold a Certificate III but who do possess the equivalent knowledge and skills.


I think at 4.7 we made a number of observations about those people in our closing submission.  If the wording of our submission has caused some difficulties, I have to say we apologise.  It's 4.47, my apologies.


We are entirely comfortable with the general proposition that there are two types of people working at what we might describe as the Certificate III level.  There's the person who has the Certificate III and discharges those competencies in their daily work.  We are entirely comfortable that there is a person who doesn't hold the Certificate III formally but has been assessed as being equivalent based on experience.  If we have suggested that we take issue with that, we don't.  We are entirely comfortable with that as a general proposition.


There was then a matter Your Honour the Presiding Member asked us to address again arising from the ANMF at PN14842.  This seemed to be - I'm paraphrasing now, I apologise - but I think the ANMF had a view that we may have been suggesting that nurse practitioners shouldn't receive anything and, again, possibly that AINs with no Certificate III shouldn't receive anything.  I just want to make a couple of observations about that.


I am very conscious that I don't think we received - I withdraw that.  In relation to the AIN or personal care worker without a Certificate III, I am assuming that in the context of that person being seen as being equivalent to the Certificate III, we don't take any issue with that.  As to the question of if they were referring to personal care workers or AINs below a Certificate III, I think I've dealt with that this morning, so I don't think I need to go over it again.


As to the nurse practitioner, yes, I accept that we were probably immensely vague about that.  I think I acknowledge that.  We were vague simply for this reason, that there was very limited evidence from those persons.  I think the evidence from one of them almost suggested that they were running a private consulting business in how they operated in terms of how they were structured.  We were just struggling in what we said about them.  What I can say, though, is this, for clarity.  As Mr Voogt - we accept this as a proposition, perhaps as evidenced by the fact I accidentally called one 'doctor', I think, in cross-examination - they clearly said, in terms of their scope of practice and competence above the registered nurse and then between the general practitioner.


There's no doubt that some of the activities they perform are activities that otherwise are performed by general practitioners, and Mr Voogt talked about how he issues prescriptions.  Now, there's a protocol and a procedure that he has to follow with a general practitioner to do that, but there's no doubt that they are a group of - quite a limited group of people in the industry generally, the medical industry generally, but we don't cavil with the notion that they kind of sit somewhere between those two roles.


As to anything more, we just couldn't take anything more from the evidence to assist, but it's clear that some of their activities are unashamedly of a much higher order than those undertaken by the registered nurse.


I think that deals with the questions we were asked to deal with, unless I've missed some, and I might then move on to some response to the unions, if I can, if the Commission please.


I am going to deal with these issues.  I will let the Commission know what they are.  I just want to talk about this issue of classification structure in aged care with separate streams.  I hadn't intended to address the issue of putting the nurses in the aged care award, but I will do so if that assists the Commission.  I do want to briefly talk about the distinction between work performed by care workers in residential versus the home care setting.  We, I think, have been invited effectively by the ANMF to talk about ENs, RNs and NPs in home care, and I'll deal with that.


I want to talk about this notion of evolutionary change and its relevance.  I just want to briefly touch on the care plan.  I want to briefly talk about the discrepancy between my position and Mr Gibian's position on the notion of routine and just clarify that.


I want to talk about the gender pay gap, then I'll discuss this notion of hidden skills or, as his Honour the Presiding Member talked about, caring skills or soft skills, briefly respond to the UWU view of our summary of the evidence.  I then want to talk about whether or not AINs and personal care workers should be classified in the same structure, and then briefly I'll talk about the Commonwealth response on funding.


I'll just deal with those issues, if I can, then I'll finish on process.


We've already indicate that we think it would be appropriate to have two streams in the Aged Care Award, one for care work and one for what we've called support work.  It's not unreasonable to say that the current classification structure is not particularly sophisticated.


It seems to be like a lot of structures that arose in 2008, 9 and 10.  All sorts of people have sort of been thrown in together as quickly as possible.  In doing so, it doesn't allow you to effectively describe the difference between care and support work, so we think it would be logical but also, in a way, simplify the award by having a care stream and a support stream.


We think it would be much easier for the employer to apply if that is properly done and properly written, and I think the ANMF suggested that these are qualitatively different sort of work activities, and that's something we adopt.


The other issue is this.  If it comes to pass that the Commission formed a view that people involved in care work should get an increase or an increase of a certain order and people in support work should get no increase or an increase of a different order, that can only be accommodated, in our view, by splitting the two groups out and managing them in that way.  So it seems to us that it's a more appropriate way of structuring a modern award than is currently the case.


I'll just jump ahead on this, if I can.  The actual structuring of a classification structure per se might be contemplated by this Commission as a sort of second stage.


What I mean by that, it might very well be that the Commission make findings for sort of particular groups, like certificate III or whatever, indicate what they have in mind in terms of quantum, maybe make some general observations about what a classification structure architecture should look like, and that might be referred back to the parties in conference to see if they can resolve that.  A not dissimilar approach was adopted in Teachers after the initial decision was handed own.


So that might be an approach for sort of dealing with that, but we would start from the premise that care work and support work should be broken out.


In terms of the distinction between the care worker in a residential setting versus a home setting, we would say this - and having said it, it might not matter.  It might not matter.  It would be wrong to say that they're the same job.  It would be wrong.  They're not the same job.  They have some very clear similarities, but they also have some fairly distinct features that differentiate them.


The process of supervision is different.  The requirement for one group, the home care worker, to, for want of a way of putting it, sort of phone home for assistance and guidance versus the residential person simply finding a colleague or the registered nurse at the facility.  That actually does create a different work process and the things associated with it.


As we've already said, the scope of work that might be performed in home care again on balance seems to be different from the scope of work that the personal care worker more likely than not is going to perform in a residential setting.


There's going to be some grey areas depending on how the residential facility sets itself up.  I accept that, but on balance, the actual scope of work is going to be somewhat different.


DEPUTY PRESIDENT ASBURY:  Is it the scope of it or the application of the skills that people are using that's different?


MR WARD:  It's a good question, your Honour.  Well, clearly in home care you are more likely than not to do activities that you wouldn't do in a residential setting.  I don't think you're necessarily exercising different competencies, in this sense.  The person in the residential setting exercising the competencies arising from the certificate III compared to the person in the home setting exercising the competencies of certificate III are effectively exercising the same competencies.


DEPUTY PRESIDENT ASBURY:  What sort of activity?  Can you give an example of an activity that you say you do in a home setting and not in the other setting?


MR WARD:  Yes, indeed.  So the person in the home setting most likely could be doing domestic activities such as hoovering the carpets.  The personal care worker in the residential setting, I don't think there's any evidence that they hoover, but it's very clear that the cleaner does.


The person in the home setting might be cleaning the shower, the bathroom.  We had evidence of that.  The person in the residential setting is not going to be doing that.  There was no evidence that they clean bathrooms, but clearly again that's a job for the cleaner.  So in that sense, in terms of the activities one might perform, there is some difference.


At the end of the day, why we say that might not mean very much is the Bench might sort of weigh all of that up and come to the view that, well, okay, one's got a slightly different supervision, one's doing a slightly different array of activities, but on balance, they're still certificate III care workers, on balance they're still discharging the general competencies that a certificate III provides, and in that sense, on balance, the Commission might form the view that while there are some differences, on balance you arrive at the same conclusion.  All we're simply saying is it would be wrong to say they are the same job.  They're not.  They're not.


The third point we wanted to talk about was, as invited by the ANMF, is our position on ENs, RNs and NPs in home care.  I might just start with the nurse practitioners.  I have to be honest and say that I'm not even sure - happy to stand corrected.  I'm not even sure if the two nurse practitioners who gave evidence gave evidence about being involved in home care.  I just can't recall.  They might have done, but I can't recall.


In terms of the registered nurse, the evidence in relation to home care registered nursing was considerably more spartan than it was in relation to the residential settings.  There's no doubt about that.


A number of things seem to be again slightly different, at least from the evidence that was there, and we would say these things:  (1) it's unambiguously clear that in the residential setting the registered nurse is the keeper of the care plan.  In some of the evidence in the home care setting it appears to be the case that somebody other than the registered nurse might be keeper of the care plan, albeit they might technically be a registered nurse but they're actually in a different role.


It seems to us that the other distinction in home care is we've made a number of submissions within the residential setting.  The nurse has almost taken on this sort of quasi managerial administrative role.  I don't think there was any evidence that would suggest that that occurs in the home care setting.  The evidence in the home care setting seemed to suggest that the role of the nurse was very much the more traditional role, in terms of clinical care and providing clinical care.


So the difficulty here is that the Commission isn't as assistance by the evidence about nurses in home care, simply because there was a lot less.  But, to the extent that there was some, there do seem to be some distinctions in terms of how they (indistinct).


There was evidence, from an enrolled nurse in home care, who was Patricia McLean.  She worked for Blue Care.  Again, from her evidence, it seemed to be the case that her primary focus was the clinical activities within her scope of practice.  The possible distinction that we would draw between her evidence and some of the evidence about the enrolled nurses in the residential setting, in the - she indicated, by way of a sample, these things, she needed to change catheters; provided wound care, including drains; treated ulcers; assess clients who did not need a GP or hospitalisation, with creams, administer medications and so forth.


So, clearly, we don't cavil with fact the EN, in the home care setting, is providing clinical care, is providing care within the scope of practice that they are registered for, we don't cavil with that for the registered nurse either.


The EN, in home care, does seem to be a little different to the residential care in this sense.  I think we're all agreed that in the residential care setting the enrolled nurse has taken on more of a supervisory role, or a team leader role.  I think we were comfortable with that proposition.  It's a position advanced with some force by the ANMF.  I don't think there was any evidence that the EN, in the home care environment, has taken on that supervisory team leader role, they are simply the discharger of clinical care.


So as to where that leaves one, with respect, that's the best we can assist the Commission, but we don't believe the evidence supports the view that the EN and RN, in home care, is on all fours with what's occurring in the residential setting, although there will be many similarities, in terms of dealing with people with higher acuity, et cetera.  We do accept, without any reservation, that the registered nurse, in all settings, is executing their competence within their scope of practice, as registered, and we accept that, in all settings, the enrolled nurse is exercising their competence within their scope of practice as well.


I think we were taken to task about the phrase 'evolutionary change'.  It's slightly harsh, but I think the point we were trying to make was just simply this.  We struggle with the notion that all and every change, however small, however insignificant, would motivate the Commission to re-evaluate work.  Perhaps we didn't put that very well, but it's an evaluative exercise, we had a sense that there might be some things which, technically, involved change that certainly wouldn't, necessarily, enliven the Commission to exercise its discretion.  The notion of how jobs evolve is the phrase that we adopted for that.  I do appreciate that my friend, so you don't need to show change anymore as well, so maybe it's less of an omission.


Some change makes work easier, some change is about the substitution.  Perhaps the most obvious one that we think is relatively benign, in its effect on work value, is moving from paper forms to computer forms.  It's a substitution from one work activity to another.  It seems to be, in a temperate society such as ours, computer competence, at some level, almost seems to be a life skill these days and hopefully the Bench is comfortable with me saying that.  I think it is.


It wasn't that we were saying if you can class all of these things into this category, you ignore them immediately, it was just that we were simply saying there probably some things that are of a magnitude, a lower magnitude that really wouldn't move you.


JUSTICE ROSS:  So it's not a dichotomy between evolutionary and revolutionary change, it's put that, 'Well, some changes are less significant and in, of themselves, wouldn't justify an increase'.  It's not that you wouldn't necessarily, to the extent they impact on one of the work value reasons that you wouldn't take them into account, but they may be, of themselves, so insignificant, that they may not take you anywhere.


I think it probably was the language and the suggestion of an adoption of one of the observation points in childcare that has led to the vigorous response.  But I take it, you're not inviting us to adopt that dichotomy, you're simply saying that you need to look at the evidence and some changes are more significant than others, and some, of themselves, wouldn't justify an increase and that's pretty much where it is.


MR WARD:  That's exactly how we would advance it.


I might just turn briefly to the care plan.  I thought the evidence was quite clear on the care plan and the role of the care plan, but I think it's best I deal with this by simply saying it seems that the HSU, our side, perhaps construed the notion from the role of the care plan slightly differently.  It would appear so, I might be wrong.


It would be remiss of the Commission to think that before the care plan the world was topsy-turvy without any structure or planning whatsoever, that would just be inappropriate to draw that conclusion.  There's obviously always been some level of regime in the aged care sector, in caring for people.


The care plan, in our view, plays a very simple role.  It's the fundamental artefact which creates the care to be delivered within what we'll describe later on as the cadence of the day.  It sets the framework for people to discharge their duties.  In that sense it's a tool that assists and facilitates people.  In many respects, it makes their lives easier and there's even evidence of various elements of the care plan being extracted out and put behind bathroom doors, and things like that, to assist people.  It, effectively, explains what's to be done and how it's to be done.  And it, effectively, identifies, where relevant, a consumers potential preferences and likes.  That's the role of the care plan.


They've been around for about 15 years, I think the evidence supported that, there or thereabouts.  They're not some new novelty in the industry.


DEPUTY PRESIDENT ASBURY:  Isn't it just preferences and likes in a care plan?


MR WARD:  There were, your Honour.  I apologise, I think when we cross-examined some of the witnesses before O'Neill C, we were provided them with a version of one.  For instance it said things like, 'Consumer X likes to have coffee in the morning', I think it said things like that.


I think one of them said, 'Their favourite food is this'.  So it had that - one has to be careful, because it's not a statutory instrument and different providers will construct them in different ways.  There clearly was in the one - I have to concede, in the one that we used in cross‑examination I think it said words to that effect.  But, for instance, it will also include things like the Food ITSI index, for the consumer.  So, for instance, as you will recall from the evidence about the IDDSI index, if the consumer has to have their food minced, or mince and moist, it will have those things on it.


DEPUTY PRESIDENT ASBURY:  I didn't think I was going to it, it froze again.


MR WARD:  The voice or the IDDSI index.  Missed the voice.  So it has those things on it.


We just see it as an important artefact to guide and facilitate the activities of the day.  We don't think - I'm not sure how you could place some sort of higher emphasis on it than that.  It explains what people can do and what they can't do.


There's two redacted examples in the digital court book; document 347 and 354, your Honour.  I hope they say what I've said they say.


Now, there's been some cavilling about this notion of routine.  There was an exchange involving Mr Gibian and I think this is what the transcript says, around PN14518, around that area:


The 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'm not sure he's suggesting has said that, it's not us.  We never said that.  Maybe somebody else did, in the proceedings, and we missed it, but we didn't say that.


Our view about routine is very simply this, and I've said it already but I'll say it again.  You cannot deviate from two propositions.  Proposition 1 is, the is some level of routine emanating from the care plan because certain things have to be done.  You also cannot get away from the fact that there is a natural cadence, because we're dealing with human beings in a residential setting, be it in residential aged care or home care.  There's a natural cadence to the day.


All of the facilities that gave evidence, and all of the witnesses, the lay witnesses, they all, in giving their evidence, reinforced that there is this cadence to the day.  There is some level of routine.


Yes, it is the case, and we don't demur from it at all, that there will be chopping and changing within the context of that cadence.  As we said before, somebody might want to stay in bed, somebody might want to get up, somebody might not want to have their shower yet, somebody else might be ready for their shower.  Somebody might have a fall and, all of a sudden, people have to stop what they're doing and go and deal with the fall.  We accept all of that, that was in the evidence.


But the suggestion that somehow, when one walks into the residential aged care facility, one is confronted by chaos, and that these personal care workers are simply responding, using their independent initiative to chaos is just wrong.  There is clearly a cadence to what they're doing.  Yes, within that they do have to adapt to circumstances and they do have to adapt to when they do things for one person versus another.


I do, briefly, want to just make a comment about the gender pay gap material.  We still hold the view that it doesn't seem to be particularly helpful.  It's not helpful for these reasons.  We're not sure, in a case where everybody has stood up and said the rates aren't properly set, we are not sure why it's relevant to debate and to explore why they might not be properly set.  They are not properly set.


It might be an entirely different scenario if we stood up here today and said they were, that might be different.  But we said, from the very outset of these proceedings, we don't think they're properly set and we invite the Commission to properly set them.


The other concern we have about the gender pay gap material is simply this, it's contextual.  In cross‑examination we took the relevant professor to this.  The notion of the pay gap being an aggregated mathematical formulation of average weekly earnings earnt by men, versus average weekly earnings earnt by women, divided by the men and women, might have relevance in many places, but I would struggle to see how it has relevance, in relation to minimum award rates.


We asked the professor that we cross‑examined whether or not there had been any research done on whether or not there was a gender pay gap associated with minimum award rates, and my recollection of their answer was they weren't aware of it.


So our view of that issue is simply that the Commission should be cautious of bringing something into the minimum awards domain that is not actually contextually relevant to the minimum awards domain.  That's our concern with it.


It's interesting that we asked a number of those experts what increase should be granted and, interestingly enough, none of them actually said it should be 25 per cent.  I think the best we got out of anybody was that it should be a decent increase, although they weren't prepared to explain to us what a decent increase was.


We would also say this, it's not, in and of itself, a work value reason.  The Commission is being asked here to properly set rates, based on work value reasons, and that's the statute task at hand.  That shouldn't be, with respect, distracted or perverted by engaging in considerations of this notion.


I want to deal with the question of the hidden skills, (indistinct) skills, I think they've been paraphrased by the Bench last week, but I wasn't here, as the soft skills.


JUSTICE ROSS:  I don't think it was particularly our choice.


MR WARD:  Somebody else's.


JUSTICE ROSS:  No, no, I'm not suggesting we didn't say it, but in the literature it's described in various ways.  That's really the point.  Invisible, hidden, soft, et cetera, however one characterises it.


MR WARD:  I've used all of them because I just wanted to be clear as to what I was talking about.




MR WARD:  There was a variety of exchanges last week.  I think some of those exchanges involved your Honour characterising our position, I think at PN14357, your Honour the presiding member said this:


I don't take the joint employers to be saying that we shouldn't have regard to the requirement of those particularly in direct care, to exercise empathy and communication skills and the like, with both clients they're dealing with, and their families.


That's one observation, we are entirely comfortable with that proposition.  I think there was then a variety of exchanges, I presume with Mr Gibian, distinguishing social utility from the caring nature of the work.  I've dealt with social utility, I don't intend to go to it.


It's entirely appropriate for the Commission to consider the nature of the work and if the nature of the work is caring in nature, that's an entirely appropriate consideration in these proceedings.  We would say a few things about those matters though, in this sense, and it's more cautionary than anything else.


Some of those skills clearly emanate from the Certificate III.  I apologise, I don't have the exact references in front of me, but four of the modules in the Certificate III were working with diverse people, supporting independence, communicating health or community services and recognise healthy body systems.  There's no doubt that some of that some of those competencies to be applied around the caring nature of the work emanate from the Certificate III.


Our view about the Certificate III needs to be considered holistically.  You don't get paid for having it and then paid for exercising the competencies.  An employee should have their remuneration assessed in the context of holding it and then applying the competencies.


They're fairly easy, they're fairly clear, but the other thing that needs to be borne in mind are skills like communication, interpersonal skills and the like, they're not unique to the aged care sector.  But they're relevant to a variety of sectors that involve consumers, although we accept that they are clearly relevant to the aged care sector and we think that you need to be a little cautious about where you draw the line on them.


What I mean by that is this, and I'm very mindful that nobody who gave evidence was a clinical psychologist in the proceedings, some of those so-called skills appear to us to be examples of simple cognitive activity by adults, and so one needs to be a little bit careful as to where one goes.


I mean, holding conversations is something that is a capacity that people evolve through childhood, into adolescence and so forth.


Others that were identified, and I'm thinking of empathy, in particular here, we'd ask the Commission to be a little careful.  It would appear to us that empathy is a personality disposition, it's a personality trait, and I don't want to get into a debate about whether or not you can learn empathy.  I think I put that to one of the witnesses in front of the Commissioner, and I think somebody said that some people are born to the role.


I think one witness said that.  I think another witness said, well, some people are obviously better at this than others, and – all we would say to the Commission is, yes, embrace an examination of the caring nature of the work, understand that there are the requirement to exercise skills, such as communication and personal skills, be conscious that some of those come out of the Certificate III (indistinct) program, et cetera, and I think it would be reasonable to say, out of the education that is undertaken by the nursing group, as well.


But just be a little cautious that some of those things seem to be more about the simple cognitive activity of adults, or personality disposition and I'm not able to help the Commission as to how one draws a line in that but I think there has to be some element of care with it.


We have a few more matters, if I can.  The United Workers Union asked you to, I think the phrase was, 'take extreme caution' with our summation of the lay evidence that was set out in Annexures (a) to (h) of our submissions.  I'm not sure why the adjectives seem to be so important.  Can I just say this about what we've done in (a) to (h), because I think we've done something nobody else in the proceedings has tried to do.


We have attempted to glean the evidence by category, personal care worker, registered nurse, et cetera, and we have attempted to provide the Commission there to assist it with what we think on balance typically is done in those categories, and we don't resile from the fact that we obviously took some utility from Commissioner O'Neill's report in relation to that.  We think that's a reasonable way of sort of describing a day in the life of those people.


To the extent that the UWU has taken some issue with us, I'm simply going to say this.  Clearly the evidence will demonstrate that from time to time, somebody did something else.  Yes, we accept that.  We accept that.  What we tried to do was try and portray, what we thought on balance was typically what occurred in relation to those roles.  So we would ask the Commission to consider what we've submitted in that light, I don't think as has been advanced that one needs to approach it with extreme caution.


I think there was an issue raised by the Commission about the distinction in how the AIN is classified and the personal care worker, and this might now move me into the realm of, should the nurses be in the Aged Care Award, as well.  Can I just say this.  It seems to be almost nonsensical that the AIN, who everybody seems to accept in these proceedings is doing exactly the same job as the personal care worker, it seems to be almost nonsensical that the structure of their classification is different.


There might be a delightful historical reason for that, and it might be because the Nurses Award emanates from the public sector, and all of those things, but in a modern award context, it seems very difficult to understand why somebody who is doing effectively the same job but called something different, has a different classification structure.


And we think that it would be entirely reasonable to create some alignment in how they're classified.  It certainly would be supported by the modern award's objective, there is no doubt about that.  That creates a little problem, we acknowledge that, and it probably creates a bigger problem.  The little problem is simply this.  It raises the question of service based increments in the Nurses Award.


You won't be surprised that we adopt the view that came out of the teachers decision that service based increments are anachronistic in modern awards, and if one is to adopt a similarity of classifications for those two structures, we don't believe that one should adopt it based on service based increments.  That said, we have advanced this proposition throughout this case.  We do believe there is merit in a classification sitting above Certificate III, but below Certificate IV for the personal care worker with two to three years' experience.


It wasn't uniformly the case in the evidence, but a number of witnesses, particularly our witnesses, indicated that around that mark, personal care workers do develop a greater capacity to apply their competencies that they've learned from the Certificate III, and we think that that would be a useful step to include in any modern award for a variety of reasons.


One, we think it is reflective of the value of the work at that period of time.  It also might assist in terms of workforce participation because it would create a career path for personal care workers rather than having to move straight away to a Certificate IV.  The Commission has asked the question about amalgamating the awards.  I have read the ANMF's sus vociferously opposing that.


It is a challenge that we don't have an answer to, other than to say this.  It would make a lot of sense for the aged care industry per se, that everybody was in the same instrument.  There is no doubt about that.  It also would assist, potentially the Commission in this regard, with one problem that I should raise.


It would potentially help corral what the Commission is doing away from other nurses, because it almost begs the question, if a registered nurse in aged care hasn't been properly set(?), well, has the registered nurse generally been properly (indistinct).  The Commissioner would need to be mindful of this, unfortunately.  My understanding is this, that that wouldn't necessarily solve nurses working in home care.


JUSTICE ROSS:  Just bear with us for a moment.


MR WARD:  Yes.


JUSTICE ROSS:  We just don't want to go too far down this rabbit hole.  So, having read the ANMF's submission, we wanted to make it clear that we wouldn't be determining that issue without giving everyone a further opportunity to be heard, including the ANMF's request that that may involve evidence, so we needn't take up any more time with this.


MR WARD:  No, that's fine.


JUSTICE ROSS:  And, look, it's increasingly becoming obvious to us that issues around classification structure may also require a further stage in these proceedings.  The Commonwealth referred to whether we granted an interim position or an increase and then considered classification structures.  I think both the joint employers and certainly the ANMF have made the point that part of their classification proposals may be given more weight in the event there are differential increases, et cetera.  There's a clear inter-relationship between where we go in stage 1 and what might be emerging as a second stage.


To the extent the ANMF is no doubt thinking of a response to what you are putting, you needn't trouble yourself, you will be given an opportunity in due course, and probably following some sort of conference process.  There's the other issue, not just for home care, there's the issue of what associated conditions might be involved, and whilst it may appear on its face to be of benefit to the aged care employers if you're actually moving most of the Nursing Award into the Aged Care Award, that might not be as attractive.


MR WARD:  Your Honour, I wasn't trying to chase the rabbit, I assure you.  My concern was more about the - - -


JUSTICE ROSS:  No, no, I let the rabbit loose.


MR WARD:  You did.


JUSTICE ROSS:  I'm just now trying to put the rabbit in the box.


MR WARD:  Put it back in the hole.  My submission is predominantly aimed at the alignment of how one classifies an AIN and a PCW.




MR WARD:  And it seems to naturally invoke me at least commenting on that.  No, I'm very comfortable with that approach.  I am very mindful in the Teachers case, we spent six years arguing about teachers in childcare and had a decision about teachers generally, so that was an interesting experience.


I intend now just to make a few comments about the Commonwealth and that will then lead us into what we say should happen next, if that would assist.




MR WARD:  My clients are unashamedly pleased that the Commonwealth has indicated a preparedness to provide support for funding for any decision the Commission makes.  I don't want to in any way detract from that proposition.


It wouldn't come as a surprise, however, that might clients are a little anxious, affirmed by my learned friend's submissions today on behalf of the Commonwealth, that it's currently opaque what support means.  The extent to which support is provided obviously will have some bearing on considerations of section 134, impact on business being the one I'm thinking of, if support is ultimately very modest and, obviously, that might involve us wanting to have a conversation about a much longer phasing in period.  If support is more generous, then that might ameliorate our anxiety around that.  It might well be that ultimately support is more targeted to certain groups and not others.


All I can say at this stage is that my clients are greatly encouraged by the Commonwealth's position, but are still mildly anxious as to what it actually means.


In that sense, I think that leads us fairly comfortably into process, and I have spoken to my learned friend Mr Sharif about this.  The view we hold is that something like this should occur.  The Commission might issue a decision which deals with those classifications or those groupings of employees that it believes should be provided with an increase, it would inform us as to the quantum; the Commission might provide some indication as to its views on classification architecture and things like that, and obviously it will provide its reasonings for that, and then it might direct the parties into conference chaired by the Commission, and it's in the context of that conference that the Commonwealth might then be able to be better informed and it might well be that ultimately the final form of the classifications and how one gives full effect to the decision, when it starts and how it's phased in, all of that could be dealt with through that conference process.


I am inclined to suggest that it's a very similar approach to that adopted in the Teachers and it allowed the parties directly involved to discuss and reach a very strong sense of accord on the questions of transition and the like, and given the importance of this sector to the community and given the challenges this sector currently has, it would seem to us that that type of two-stage process - and the Commission might envisage it being more involved than that - but that kind of two-stage process in some form probably commends itself in these proceedings.


If the Commission pleases, that's all we want to say in closing.


JUSTICE ROSS:  Look, we propose to take a short break, but can I get - this is a triumph of hope over experience - but some indication as to how long the union parties might be in response, or indeed if the Commonwealth wanted to say anything?


MR GIBIAN:  Maybe 20 minutes to half an hour.




MR McKENNA:  Your Honour, assuming that rabbits stay in hats, I anticipate being perhaps 10 minutes and Mr Hartley has some reply as well also of perhaps maybe 15 minutes.


JUSTICE ROSS:  We will just adjourn for 15 minutes or so to give everyone a break and then we'll come back.

SHORT ADJOURNMENT                                                                   [11.48 AM]

RESUMED                                                                                              [12.11 PM]


JUSTICE ROSS:  Please be seated.  Mr Gibian?


MR GIBIAN:  I'm sorry ‑ ‑ ‑


MR SHARIF:  I do apologise.


MR GIBIAN:  Mr Sharif said he would like to speak for a short time first.


JUSTICE ROSS:  Yes, Mr Sharif?


MR SHARIF:  I do, yes.  I'm sorry, if I could seek the indulgence ‑ ‑ ‑


JUSTICE ROSS:  Wanted to come back on the opaque reference or ‑ ‑ ‑


MR SHARIF:  I'm not touching the opaque reference.  Could I just indicate to the Full Bench that Mr Ward in the last part of his address proposed a process.




MR SHARIF:  The Commonwealth wishes to indicate that it would embrace such a process and would welcome it, but I say this hopefully not opaquely, but we may need some time from the publication of, if one was to embark upon that approach, of proposed determinations of variation to provide assistance, by which I really mean there would be time needed for relevant briefings and decisions of government to do that.


JUSTICE ROSS:  But that might be a short number of weeks as opposed to months and years.  Is that the ‑ ‑ ‑


MR SHARIF:  It's one of those things where I can - neither can say yes nor no to that.


JUSTICE ROSS:  Well, I suppose we can.


MR SHARIF:  Yes, I emphasise that I couldn't say that, but yes.


JUSTICE ROSS:  No, certainly.  It's taking me back to an episode of Yes, Minister, Mr Sharif.


MR SHARIF:  Of Yes, Minister, yes, for those of us who can remember.


JUSTICE ROSS:  Thank you for that.


MR SHARIF:  I included me in that.  The other thing is, if I can have your Honour's indulgence to be excused.


JUSTICE ROSS:  No, no, certainly.  Yes.


MR SHARIF:  May it please.  Thank you.


JUSTICE ROSS:  Yes, Mr Gibian?


MR GIBIAN:  Yes, thank you, your Honour.  I was just going to address, as briefly as I can, a small number of matters that my learned friend raised, and I propose to do so in the order that he dealt with them.  Firstly in relation to the C10 framework, as I think your Honour the President observed, things seem to have developed somewhat.  Now it's not being suggested that that's either a necessary starting or ending point in the Commission's analysis, but it is still put as a guide.


The only observation I wish to make in that respect, without being repetitive, is that the discussion that then ensued in relation to the lower level classifications within the Aged Care Award, my learned friend I think - or Mr Ward embraced that the consequence of a strict approach to the C10 framework would be to reduce the pay in those levels, and no one is suggesting that that is appropriate in the present context.  That seems to us to emphasise why that approach is not even a useful guide in the present proceedings.


JUSTICE ROSS:  It might depend.  I suspect this is all a question of perspective, Mr Gibian.




JUSTICE ROSS:  If you thought the C10 framework would support an increase, you'd now no doubt be putting that it is not determinative but it's something we should give weight to.  So I don't know that it advances it much further than that, really.


I take the point, and I think it's put by the ANMF, that in the Teachers case the Bench wasn't saying that it was the only method or it was the determinative method.  It's just in the context of that case it was relied on and led to that result. In the context of the Childcare case it was relied on and let to an increase.  As you say, nobody is arguing for a reduction.




JUSTICE ROSS:  Yes.  I think the more we stir around this issue, the more confused it gets.  I think nobody seemed to be debating it was relevant but not determinative.  It's not a substitute for the statutory test.  I don't know that we need to get too much further into it.


MR GIBIAN:  Yes.  Look, I don't disagree with your Honour.  The only point that we've emphasised, and emphasised in our earlier submissions, that there are particular reasons why it is not a particularly useful guide in the present instance.


As your Honour says, there may be other cases, and the Childcare case in the nineties was an example where a case might be run that that framework itself provided the work value reasons if they were focused particularly on qualifications issues, but that's not ‑ ‑ ‑


JUSTICE ROSS:  I understand that position from your perspective, but that might not be in the interests of those that the ANMF represents.


MR GIBIAN:  Indeed, and the ANMF made a submission in that respect ‑ ‑ ‑




MR GIBIAN:  ‑ ‑ ‑ last week which I think clarified their position, which as I understood it was that there had to be an assessment of work value reasons in a general sense rather than a limited sense.


The second point I was going to raise was in relation to interaction between section 157(2)(a) and the modern awards objective.  I think I did address that in answer to a question from the Bench last week at PN14327 to 14332.


In short, as was put to me and I accepted, our case is that the increase that we've sought is justified by work value reasons and we don't need any additional bump up from the modern awards objective to reach that outcome, but whether we accept that the way in which the Act is structured is that 157(2)(a), the reference to justified by work value reasons is a gateway, in the sense that the variation has to be justified on that basis.


The observation that we added to that is that because of the breadth of the concept of work value reasons encompassing anything related to the nature of the work, the skills and responsibilities and the conditions under which it's performed, there is significant overlap between matters that might be relevant to elements of the modern awards objective and could be part of work value considerations.


The third point I wanted to make, as to the modern awards objective considerations, Mr Ward made some observations in relation to the impact on business and the position of the Commonwealth and the like.


There were two things I wanted to say about that.  The first is Mr Ward accepted at the outset of the proceedings initially, and I don't think there was any departure from that, that that consideration would not be relevant to an assessment of whether an increase is justified and what quantum of increase ought be awarded to employees.  It would at most potentially be relevant to issues of timing and phasing and the like, and I didn't understand there to be any departure from that position.


As to the Commonwealth position, we did just want to note what was said at paragraph 201 of their submissions in relation to the impact of business consideration in the modern awards objective, which was that the Commission ought approach the matter - although there is some opaqueness, perhaps, in relation to the reference to support, that the Commission should approach the matter on the basis that the impact on business would not be material given the support that the Commonwealth would propose to provide.


JUSTICE ROSS:  I'm not sure on what basis we'd reach that point without knowing what the level of support is.


MR GIBIAN:  Well, I understood there to be reticence to give a precise indication as to the level of support, but reference was made by the Commonwealth to the strong public statements being made in that respect and that the Commission could be satisfied that the level of support would be such that the impact in business would not be materially - and that that was the commitment that the Commonwealth had given.


JUSTICE ROSS:  That might put Mr Sharif in a difficult position.  That rather suggests that the level of support would be substantial and would cover all material costs flowing from the decision and all you would be left with would be some immaterial amount.  Is that what you're suggesting?


MR GIBIAN:  We're just reading the Commonwealth's submissions, your Honour, and wish to direct attention to that, as per the Commonwealth's submissions.


Maybe this comes at a later point as well.  As to the issues of phasing and timing, to the extent they're relevant in that, we did wish to emphasise my client's view, as the Commission would apprehend, that there is some urgency in addressing what my client regards as the adequate levels of pay and the difficulties that that is causing, both for individual employees and generally for the industry in terms of attraction, retention and staffing issues which have been canvassed in the evidence, and the Commission will understand the emphasis that we place on those considerations.


The fourth point I was going to raise concerned a few of the responses to the aspects of the consensus statement, firstly, as to - and not for the purposes of arguing about the status of the consensus statement, but the substance of what my learned friend said in that respect.


As to paragraph 5, dealing with the household model, to the extent there was any uncertainty as to why we said that there was some conflict between the joint employers' submissions and that paragraph, it was because in their reply submissions at paragraph 5.4, they said they didn't agree with the precise words in paragraph 5 of the consensus statement.  We will take it that that position is no longer pressed given the oral submissions which have been made today.


That proposition also applies to paragraph 19 of the consensus statement dealing with home care, the words of which suggested to us to be uncontentious and the written submissions at least of the joint employers was that they were not agreed to.  Again, we will take it that that's not pressed.


As to the household model issue, the oral submissions accepted that there were a greater range of capabilities and responsibilities involved by care workers in that model.  That, in our submission, justifies the inclusion of a reference to that model in the specialist classification that we have asked to be included in the classification structure.  We would say that's the case regardless of evidence in relation to - or precise evidence in relation to the prevalence of the model.  It's clearly sufficiently common to warrant that reference and, as I observed last week, in a sense, in part at least, if there's not evidence as to the precise prevalence because we didn't regard it as a contentious matter arising from the census statement, but we did also point more specifically to the evidence as to that matter and the recommendations the Royal Commission has made in that respect.


Secondly, with respect to paragraph 13 of the consensus statement and the concept of changeability, submissions were made in relation to what that meant and it perhaps interacts somewhat with the concept of routine and cadence, which were later addressed.


In that respect, I just wanted to observe that so far as questions of the dynamic nature of the work involved, that that is an element which has also been the subject of change - no doubt there was always, to some degree, a degree of changeability - but that is an aspect that has been subject of the considerations leading to change in the nature of work, in particular both the change in philosophy towards a person-centred care approach rather than a more institutional approach, which says, 'At this time, breakfast happens, at this time, you have bathing at this time.'  The changeability of the work has fundamentally changed.


Secondly, because of the change in the care needs and the like resulting from the dramatic increased in age, frailty and agility of residents in residential care in particular and the consequence both in terms of behaviours and also just complex needs that arise in the course of the day.


With respect to paragraph 19 of the consensus statement dealing with home care, there was some discussion arising from the submissions made as to the degree of frailty and acuity and the like of persons who are receiving care in their homes and the submission was put that there is a broader range of needs within recipients of home care.


In that respect, I just wanted to emphasise an aspect of our submissions - it's particularly dealt with at paragraphs 112 to 139 of the initial closing submissions - which emphasise that the proportion of work done with respect to recipients of care under either the Commonwealth home support program, which is referred to as the entry level care program, and home care packages, which is a higher level of care, the evidence indicated more people receive care under the Commonwealth home support program, the entry level, than under home care packages.


There are two observations that have to be made about that.  The first is the evidence as to the difficulty in progressing from one to the other, that is, recipients have a higher level of acuity and stay under the home support program, even though they might qualify for home care packages because of the lack of availability of those packages, but, secondly, the evidence that we have referred to in the paragraphs to which I made reference was that more of the work hours of home care workers is devoted, obviously enough, to recipients of support under the home care packages because they have a great degree of care required.


There was a further observation I wish to make in relation to home care, the submissions made concerning home care, and that arose from an observation that Mr Ward made that referred to some home care workers just doing domestic duties or just domestic work and the hoover was utilised as an example of just domestic work.  That was no doubt a reference made for the purposes of economy of submissions because it certainly doesn't describe the work undertaken by home care workers, even if they are providing cleaning, and I, by way of reference, refer to the evidence of Jennifer Wood, who was a home care worker in that category, which emphasised the complexity involved in negotiating the tasks such as taking a consumer to medical appointments, negotiating the provision of home support with an individual, the provision of social support through that role in dealing with persons who are often isolated or have complex emotional needs.


The role that those workers play in, not clinical diagnosis, but monitoring and assessing whether there are changes in the physical or psychological state of the consumer that might require some form of medical intervention or give rise for concern, persuading a consumer to call an ambulance because they appear to need medical assistance, the description of that work as 'just domestic work', as if it is vacuuming when there is no person present in an office - not that I want to downplay cleaning work either - with respect, doesn't take account of the complexity and nature of the work involved.


I'm sorry, I've just been asked to correct one thing I said and that was with respect to the division of work between recipients of support through the Commonwealth home support program and home care packages.  I think the data is not with respect to hours, which I think I said, but with respect to the number of workers involved in working in both areas.


Then with respect to paragraph 22 of the consensus statement, submissions were made with respect to what were described as support workers, laundry, gardening and maintenance, and it was suggested that they shouldn't simply be swept in with care work.


The submissions somewhat seemed to suggest that the impact of the changes which have occurred and the particular demands of that kind of work in an aged care context would have to be exactly the same for cleaners or the food assistants for any work value reasons to justify an increase.  Those submissions failed to take account of the particular demands of that type of work in an aged care context and the context in which it is performed, including the regulatory context, and in that respect, the submissions that we have advanced in relation to the need to apply a person-centred approach to care to all of the roles, the fact that the care team - that care is a comprehensive concept provided by everyone in the organisation and the difficulties of dealing with and accommodating the increasing complexity of needs and behaviours of residents with whom those persons deal, and compliance with other regulatory requirements.


Now, then the fifth matter to which I wish to refer briefly was that Mr Ward went through, I think, nine matters, in response to the union's submissions.  I think I only refer to three of them.


Firstly, in respect of the difference between home care work in the home care context and in the residential context, I think, ultimately, it was said that the Commission might form the view that, on balance, the work and competence were broadly the same, albeit that there are some differences and in that sense, as it's stated, with a level of generalities, is unremarkable.  I think, as to the degree of differences involved, the example that was given was that cleaning tasks might be done in a home care context which wouldn't be done in a residential context.  That doesn't reflect the evidence, particularly in the home maker model.  Of course, the range of tasks being undertaken by the care worker is broader, but even outside of that context, the evidence indicated that care workers would undertake cleaning tasks where that was necessary to be done.


Then some submissions were made, I think it was the sixth matter that Mr Ward raised, concerning the cadence of the day and the routine nature of the work.  In a sense, we don't understand entirely what was sought to be made of those submissions, unless what is sought to be made of them is that there is an attempt to downplay the level of discretion or judgment involved in the work because it is routine.  That is, you turn up and you know what you have to do first, so there's nothing first, second and third, and there's a limited degree of judgment or discretion involved.


That both doesn't reflect the evidence but, more particularly, I'd want to say, there was an air in the submissions, with the greatest respect, of suggesting that because the work involves day-to-day activities, in the sense of washing and feeding and activities, that the level of skill involved is lesser for that reason, because everyone has to eat in the morning and everyone has to eat in the evening, the degree of skill or responsibility involved in providing care to aged person with complex needs, to undertake those tasks or to perform those activities, is lesser because it has to be done every day.  That does seem to fall into the category of the unplanned skill, downplaying the kind of emotional, relational and communication skills involved in those tasks, because they are seen as day–to-day domestic activities.


I think it was said that one wouldn't apprehend that when a personal care worker arrives at work at a residential facility there is chaos that the personal care worker has to deal with.  We would say that if there is not chaos it is because of the skills of the personal care workers in managing and providing - managing the home and providing the care that is needed.


Finally, my learned friend made some submissions, or Mr Ward made some submissions in relation to some aspects of what was said to be hidden skills were merely cognitive activity of adults, such as holding a conversation and that empathy was not really a skill.


There seemed to be a number of difficulties with that.  Firstly, it is, again, downplaying, it appears to us, the type of skills and the complexity of skills involved in the provision of care work.  Providing care to a resident with advanced dementia and endeavouring to bathe and feed and dress that individual is not like striking up a conversation with a stranger at a bus stop about the weather, which was, no doubt, not Mr Ward's intention but added a flavour of, or did seem to be the consequence of the submission that was advanced.


Secondly, so far as empathy was concerned, it appeared to be suggested that that's something that people have or they hadn't.  That is, it's an aptitude issue.  I don't know, that's quite a philosophical question, perhaps, but leaving that to one side, all jobs have aptitude.  Mechanical skills are - some people have a greater aptitude to mechanical skills and, no doubt, some people have a greater aptitude to be a brain surgeon.  That doesn't downplay the significance and importance of the complexities of the skills involved and the way in which they ought be recognised in the pay that - in the setting of appropriate pay.


DEPUTY PRESIDENT ASBURY:  It's contextual too, isn't it.  It's the context that they're applying the skill in, really, that's the issue.


MR GIBIAN:  Exactly.  But the fact that some people may be better at it that other people does not downplay the skills.  That's the case in all jobs, every job.  Again, that does seem to fall into the trap of saying, 'These are natural skills that someone has and oughtn't be valued for', for that reason, or the value to be attached to them is reduced for that reason.


Finally, some submissions were made about the process that ought be followed from here.  In a sense, I don't think we have anything to say about that, it's a matter for the Commission, other than to emphasise what we've said about that there is some urgency in this, so far as we're concerned.  Whether that leads to consideration of some interim outcomes or that - if those other processes, in terms of either classifications or if there is more detailed proceedings necessary, including the receipt of evidence about what's to be done with nurses classifications, so far as aged care is concerned, we would if that's going to delay, by months, one doesn't attempt to say years, but by substantial periods of time.


JUSTICE ROSS:  I suppose it is the balance, there would be a range of options, as you indicated, some form of interim increase position.  I think, plainly, the classification structure issue has a degree of complexity about it and the benefit of some form of interim increase to some or all of the classifications, where that lands, would be - that would also involve determination of - there is still some issue between you about 157 and how that operates.


Speaking for myself, I'm not quite sure where the Commonwealth's position leaves us, in relation to the employer cost position.  I understand what you say about it, but in some ways we've got a chicken and the egg, until we indicate, at least for the first tranche or an interim, however one frames it, increase, the Commonwealth is not going to be in a position to clarify how much of that, et cetera, and then, as you say, I think not only from your perspective, but more generally there is a degree of urgency around starting that process.  So whatever we can do to assist that and - no, I don't envisage it being the six year process that Mr Ward was indicating, in teachers.  But I think the sooner we start down the path the quicker we'll get to the end.


MR GIBIAN:  As we've - expedition and urgency is all relative.  That is, if there was a small number of weeks, which I think was a period mentioned for the Commonwealth, that's something.  If there was a period of many months involved in the preparation of evidence or arguments about, or initially conferences and proceedings, in relation to classification structure, that would be an entirely different matter, so far as my client's position is concern.


JUSTICE ROSS:  No, I follow what you're putting.  Thank you.


MR GIBIAN:  Thank you.




MR McKENNA:  If the Full Bench pleases.


The Full Bench had asked the parties to address background document 9, as to whether there were any changes, corrections or clarifications to that.  There are three very brief matters arising from the perspective of the ANMF, from that document.


I suspect I can do them quickly and read them onto transcript, I don't think - - -


JUSTICE ROSS:  If that's more convenient, sure.


MR McKENNA:  Page 8, paragraph 16(2) of background document 9 refers to a submission made by the ANMF.  There's a minor typographical error in it.  It refers there to, 'A separate classification structure is appropriate because AIN PCWs work as part oft the nursing team, engages in case work' – that should be 'care work.'


There is a reference in Annexure B to the classification structure proposed by the HSU for the Aged Care Award.  I understand Grade 5, which relates to specialist aged care workers – this is on page 22, there is a reference there to the last dot point, 'May require formal qualifications or a trade, or advanced certificate or Associate diploma level.'


I understand that in accordance with the submissions of the HSU in August, at paragraph 232, that should be read as, 'May require formal qualifications, a trade, or advanced diploma level.'


The final matter arises in Annexure B, which is the classification structure in the Aged Care Award as put forward by the ANMF, at B.12, Grade 5 Specialist Personal Care Worker.  It appears at a number of the descriptors have dropped off.  There are four listed, and I think there ought be seven, so it's just simply a matter of transposition.


The Full Bench, your Honour, President posted a question to both Mr Gibian and I last week about the consequences of a difference between the classification structure of the HSU and the ANMF.  It hasn't been addressed by Mr Gibian, and it may be the case that given the proposal put forward by the Full Bench of dealing with classifications at a later phase, it may not be appropriate to raise it now.  I can address it very briefly if it's of any assistance, or I could move past it, as well.


JUSTICE ROSS:  I think you can move past that, thank you.


MR McKENNA:  If the Full Bench pleases.  In that case, there are really only two other matters that I would seek to reply to, and then there will be a number of reply matters from Mr Hartley.  The first of those is to briefly address submissions made by Mr Ward, this morning about the distinction between the RN and EN residential care, as opposed to home care.


Mr Gibian has gone to this issue more broadly and we agree with the way that he has put it, and as I understand Mr Ward's submission that the joint employer position is that it is accepted that there are many similarities in the changes to work value reasons as have arisen in home care, similarly to what has occurred in residential care.  The particular evidence that the ANMF relies upon for the work values of enrolled nurses and registered nurses in home care is address in the written submissions and I don't need to repeat it.


The ANMF's closing submissions follow the structure of the lay evidence report, and the lay evidence report deals with these issues at C.2.3, and the ANMF's submissions deal with it at D.3.  Similarly, for registered nurses – sorry, that is registered nurses.  For enrolled nurses, the (indistinct) report deals with it a C.2.3, and the ANMF closing submissions, at part D.4.


It is accepted that the evidence from the ANMF of particular home care workers is thinner than it is for residential workers.  But the way that the ANMF's submissions approach it, the way that the (indistinct) report approaches the evidence is that there are some aspects that are compartmentalised for particular classifications, but the bulk of the evidence, in our submission, relates to the industry more generally.


And of the themes that are addressed in the lay evidence report, and of the themes that are addressed in the work value submissions from the ANMF, the great bulk of those are applicable both to home care and to residential care, and that is, of course, true on the ANMF's case about historical undervaluation.  There is no distinction in our case between historical undervaluation in home care or residential care.


The conclusions made flow equally to both, and of course, I won't go through the themes but the key themes that are relied upon for changes to work value is things like changes in acuity, increased regulation.  They are matters that flow both to home care and to residential care.


The ANMF relies upon its written submissions with respect to what we've described as the proposal.  I understand the position of the Full Bench is that that's not a matter that will be taken further today.  There is perhaps one aspect of that, that I would (indistinct) in reply to the submissions of Mr Ward, and the joint employers.


Mr Ward posed the question about why it is that we have this overlapping coverage between the Aged Care Award and the Nurses Award, and I think he suggested that it might be the result of some sort of historical anomaly.  This exact issue was the subject of some reasonably intense discussion and debate during the Award Modernisation process.  Submissions were made on this very point by a large number of parties, and a decision was made by the Full Bench to retain the AIN classification in the Nurses Award, and the way that the Full Bench described it, was to retain it and make it more relevant.


And what the Full Bench there did is tied that AIN classification, firstly to the provision of nursing care, and secondly to nursing care provided by somebody who is under the direct control and supervision of a registered nurse, and whose employment is to assist the RN and enrolled nurse.


So, whilst the submissions of the ANMF don't distinguish between the particular classification descriptors of AIN's PCW's extended care assistance, care services employees and so forth, there is a distinction in that classification of an AIN, and the terms that are used in the Nurses Award.


The effect of that was, as the Full Bench said, to make it more relevant to nursing.


The AIN is an infinite part of the nursing team, and for those reasons which no doubt will be considered further in due course, it is submitted that they are an integral part of the class of work that's (indistinct) covered by the Nurses Award.


As I say, my learned friend, Mr Hartley, will address the Full Bench on a number of discrete points, but if there are any questions arising from the ANMF's submissions more generally, or our response to the proposal, I seek that they all be directed to me before I sit down.


JUSTICE ROSS:  Thank you, Mr McKenna.


MR McKENNA:  If the Full Bench pleases.


JUSTICE ROSS:  Mr Hartley?


MR HARTLEY:  Thank you, your Honour.


JUSTICE ROSS:  I've got four points that I want to address, most of which should be very quick, one of which might take a little bit more time, but it'll finish before lunch.  The first is, I think it was Deputy President Asbury that asked the question about the care plan and what was in the care plan.  If it assists the Commission, the care plan, of the example care plan that was shown to witnesses in the


cross-examination of those witnesses can be found at page 15884 of version 2 of the court book, or 18587 of version 3.  It's not necessary that the Commission go to it but I might just draw attention to a few of its features.


It contains a list of allergies, allergy descriptions, notes, reactions, a medical history, so in the case of this particular person there's Osteoporosis, chronic lower respiratory diseases and a number of other items.  Then we get the things that are described as, 'Things about me and things that are important to me', and there are then a series of preferences – 'I like knitting, I enjoy classical music, I have a number of grandchildren', et cetera, et cetera.


There are goals.  The goals stated for this person is, 'To maintain or improve current mobility and independence, to have no falls, to have no injuries, and pain medication.' Then we get under a heading, 'My needs and preferences', and despite that it's called that, it really is directed to the care that is provided to the resident.  It describes the comfort that the resident experiences in particular kinds of chairs, falls risk, assistance required for ambulation, strategies to be required for ambulation, so a four-legged walker rather than a walking stick over long distances, additional strategies to minimise risk of falls; communication needs or ability to speak in English, preferred language and dialect; whether hearing aids are required; whether there are cognitive issues, preferred font size - aerial 14 in this case - good font, good size; to maintain oral and dental hygiene; further needs and preferences along the lines of when it is that the person prefers to be showered; the care required for fingernails, toenails, food consistency - I won't use impermissible words - assistance required for eating and drinking; meal size; continence and toileting needs, whether there is a catheter, whether there's particular kinds of incontinence, whether there's a stoma, whether the person is safe to be left unattended on the toilet; skin care needs - on a Norton Scale this person is 12 to 16, moderate risk, skin is dry, arthritis, pain, at risk of skin tears; sensory needs; pain management needs; behaviour management needs; managing restrictive practices and restraints.


So, it's a detailed document which will provide assistance to the care worker, but one imagines, of course, the care worker will not, in the course of providing care, always be referring to page 7 of the care plan and saying, 'Well, you know, in response to this situation that I'm confronted with, I should respond in this way.'  There would be a knowledge of the care plan.  It guides care, but the process of providing care is one that involves, for reasons I am going to come to, skill and recalling what are the, not just preferences, but clinical needs of the individual resident in a way that involves the deployment of skill and, so far as it concerns the registered nurse, the development of such a plan requires skill, and the process of feeding back, as the evidence described, from personal care workers or enrolled nurses to registered nurses, updating care plans as appropriate is a skill which involves value.


There is a home care care plan at page 16007 of version 2 of the court book or 18710 of version 3.  I won't go to that.  That's point 1.


Point 2 is Browne v Dunn.  I didn't hear anything much said orally about Browne v Dunn, but there was said in writing by the joint employers at paragraph 3.19 that our submissions were of limited utility, but they don't seek findings on matters that are put.  Now, we say that's a matter of considerable utility because very little was put to the expert witnesses, especially ours, but also the HSU's.  I won't take the Commission now through the cross-examination to show what was in fact put, but it won't take the Commission long to read because it's not lengthy.


It doesn't appear that any issue is taken with any of the points in our submissions where we say things weren't put, and so I will draw attention to a few of those.  Paragraph 343 - this is all in our reply submissions - that there is a gender pay gap; 355, that it is wrong to describe Professor Smith's analysis as being a connect the dots exercise; 370, about the role of gender discrimination in the gender pay gap; 374 and 375, and this is important, that women's work has historically been undervalued for reason relating to gender.  That was Professor Junor's opinion to that effect.


Paragraphs 377 to 378, Professor Smith's opinion to the same effect; 402, we said that it shouldn't have been put in writing and the finding should not be made that Professor Junor's report was of academic interest only and didn't have any practical significance, or that her evidence was self-serving.  We maintain that that submission should really have been withdrawn and we regret that it wasn't.  Similarly the submission that she advocated for particular findings.  She gave expert evidence consistently with her duty to the court.  That is not advocacy.  That was at paragraph 414 that we made that point.


At 404, that there was no inconsistency in Professor Junor's evidence as to the purpose for the creation and then the subsequent use of the Spotlight tool; 417 to 418, that there is a link between gender and undervaluation, and I will come to that; 420, the same point; 422 to 426, historical reasons for that undervaluation; the entirety of annexures 8 to 9, which weren't cross-examined at all, and those are the annexures that demonstrate the theoretical link between the description of a particular kind of work as being feminised work or care work, whatever, and the undervaluation of that work, and 438, importantly, that the Spotlight tool is a tool for correcting gender bias in skill recognition.  It can be used for other purposes, sure, but it is a tool that can be used, and was used, by Professor Junor for that reason.


That's what we say about Browne v Dunn.


Now the gender pay gap, which is the third of the four points.  I will be brief on this.  I think four points were made by the employers about the gender pay gap.  First, they say not helpful because it's not necessary to enter into a debate given that everyone accepts that rates weren't properly set.  I have addressed that already and I won't repeat myself.


Secondly, that because what is not being done is a comparison of an award rate to an award rate, that means that it's not useful.  I have addressed that already and I won't go through that again.


Then there were two points which I don't think were made in writing.  The first is that the experts didn't express a view about what increase should be granted by this Commission.  We say that's entirely appropriate.  They didn't see or hear the evidence that the Commission has seen and heard and it's difficult to understand how it is that they could therefore proffer any useful view as to the ultimate issue for the Commission, which is what amount of pay should be increased.  So, we say that's not a valid criticism of any of the experts.


The final point was that evidence about a gender pay gap was not itself a work value reason.  We say, no, it's not a work value reason, but it is something that one bears in mind when understanding what are work value reasons.  When one is identifying skills that are brought to bear by workers, one bears in mind the historical context of gender-based undervaluation of those skills.


That's what we say about gender pay gap, and that brings me to the last point, which is hidden skills.  Now, some of these points, again, I addressed already on my feet on the last occasion.  The first was that hidden skills are relevant in other sectors and we say, yes, Professor Junor accepted that, but there's no basis for thinking that those skills are relevant or are deployed to the same extent in every other sector, and there's every reason for thinking that they are not deployed to the same extent in other sectors for the reasons that I developed at length on the last occasion, for the reasons developed at length in annexures 8 and 9 of Professor Junor's report.  I won't go over that again unless it would assist the Commission.


Then there was a submission to the effect that one has to be careful to differentiate between what we call hidden skills and what others might describe as personality traits, and we say that is precisely the misunderstanding that is addressed in the evidence of every expert witness that gave evidence to this Commission.  It is precisely that kind of thinking that leads to, and has led to, undervaluation.


If the employers wanted to put on expert evidence to say these things aren't in fact skills, they are personality traits, they could have done that, they could have cross-examined on the detailed theoretical underpinning for the proposition that care skills are undervalued on the basis that they are falsely described as attributes and personality traits and they didn't do that.


So far as a witness was cross-examined on that point, it was Mr Sewell.  I referred to this on the previous occasion.  He readily - and we say entirely appropriately - accepted descriptors of work procedures that we say were very clearly skills.  A way of describing the type of skill that is brought to bear, you could say 'empathy' or you could say, and this is what Professor Junor says at 140(c) in the main body of her report, you could say 'skilled in emotion management', and when you say it in those terms, it sounds like, and it is, the deployment of a skill, whereas if you tendentiously say, 'Well, this is just empathy', as though that meant it wasn't a skill, then one might reach the opposite view, but this is precisely what the experts deal with.


In Professor Junor's report, in table MR4, which is on page 29 of her report - it is 4982 in version 2 of the court book or 7685 in version 3 - I'm looking at a few of the descriptors that Professor Junor sets out there which might also be used, or might instead be used, instead of saying a person has empathy:


Responding to the grief and sadness of residents at the loss of independence and possessions; managing one's own stress in the midst of many interruptions; managing one's own and a client's responses when dealing with the horrendous effects of neglected wounds, managing adverse impacts on a resident's wellbeing of inappropriate wishes of family who are in denial, initiating service acceptance, navigating intense fear and shame, prioritising advocacy for residents' rights, dignity and pain relief, interactions with doctors, perceiving a resident's pain level based on facial expression, combining professionalism, humour, empathy, projecting confidence to establish trust and lighten mood.


These things are valuable.  It's wrong to write them off as being personality traits and therefore not something that one must take into account in deciding what is the value of the skill that the person brings to bear.


Just because someone is born with a strength, or it might be tendentiously described as an attribute, doesn't mean that it isn't valuable.  So this is a point that Mr Gibian made, I think.  If you had a child mathematics prodigy, you wouldn't discount the value of that skill when analysing their work value as an engineer or an econometrician or a quantitative analyst working for a hedge fund.


If someone was innately dextrous you wouldn't discount that skill in their work as a master stonemason.  If someone was innately creative you wouldn't say that that shouldn't be taken into account in public policy design, ,or if someone was someone that you might describe as a born leader, that doesn't mean that they don't bring skills to bear in managing other people.


So the fact that you can say, well, it's a personality trait, it's an attribute, it's whatever, doesn't mean it isn't valuable, and the Commission must avoid falling into that trap.


The last thing to which I want to respond is something that was said about it being necessary to distinguish between hidden skills and - I think the language that was used was simple cognitive skills by adults, such as holding conversations.


The idea that it can be said in some undifferentiated way that the skill of, on the one hand, speaking with your boss in a metal fabrication worksite and the skill of speaking with a person who is in the course of dying and bringing that person to a good death, or dealing with that person's family in the stages of grief or seeking to comfort or re‑centre or redirect a person who's lost some or all of their grip on reality and is in immense distress or is scared or is angry or is violent, or someone desperately trying to maintain independence in the context of a diminished capacity for being independent, the idea that there's a comparison between those two skills in terms of their level and their content really only needs to be stated to be rejected.


That's what we say about that proposition that really what aged care workers are doing is bringing the bare simple cognitive skills.


Unless there's anything else with which I can assist the Commission, those are the submissions that I wish to make.


JUSTICE ROSS:  Thank you, Mr Hartley.  Ms Harrison, did you want to say anything?


MS HARRISON:  Commissioner, Nothing other than to say that we would endorse the submissions of the HSU (indistinct).  Thank you.


JUSTICE ROSS:  Thank you.  Anything further from anyone?


MR GIBIAN:  There were two matters, I'm sorry, that I neglected to mention arising out of corrections or suggested additions to background document 9.  We're content to send a message to that effect, if it would be convenient.


JUSTICE ROSS:  Yes, you can file that.  That's fine.


MR GIBIAN:  I think that's probably the easier way of dealing with it.


JUSTICE ROSS:  Yes, okay.  Mr Ward?


MR WARD:  Thank you.


JUSTICE ROSS:  No?  Nothing further?




JUSTICE ROSS:  All right.  Thank you for your assistance.  We'll adjourn and reserve.

ADJOURNED INDEFINITELY                                                            [1.04 PM]