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Fair Work Act 2009                                                    






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


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


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


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




9.30 AM, TUESDAY, 22 NOVEMBER 2022


Continued from 02/11/2022



THE ASSOCIATE:  Parties, the Fair Work Commission is now in session for the matters in AM99 of 2020, AM63 of 2021 and AM65 of 2021, listed for mention before the Full Bench.


THE DEPUTY PRESIDENT:  Good morning, could I just start by taking the appearances, please.


MR GIBIAN:  Yes, thank you, your Honour.  I appear for the HSU and I've got Ms Grayson and Mr Delpiado with me in the same room.


THE DEPUTY PRESIDENT:  Thank you, Mr Gibian.


MR MCKENNA:  The Full Bench pleases, McKenna, initial J., continuing to appear with and instructed by Mr White for the ANMF.




MS HARRISON:  If the Commission pleases, Harrison, initial L., on behalf of the United Workers' Union.




MR TAYLOR:  If it please the Commission, Taylor, initial G., for the Australian Workers' Union.




MR ARNDT:  If it please, my name is Arndt, A-r-n-d-t, initial J.  I appear with Ms Rafter for ABI and the Aged and Community Care Providers Association, ACCPA.




MR FULLER:  May it please the Commission, Fuller, F-u-l-l-e-r, initial D., for the Commonwealth.


THE DEPUTY PRESIDENT:  Thanks, Mr Fuller.  Thank you for that.  We've listed the matter this morning to discuss the matters raised in the statement issued by the Full Bench on 17 November.  I think we need to at the outset clarify one of the dates where there was an issue.  We intended the date to be the Thursday in February, so I think my associate sent an email yesterday afternoon confirming that it was Thursday, 9 February 2023 was our proposal for the hearing date in paragraph 11, item 4.  With that clarification, perhaps if the parties can indicate their views in relation to the Bench's provisional view.


MR GIBIAN:  Yes, thank you, your Honour, and perhaps – and Members of the Bench may be familiar with this already but just briefly by way of update there have been, as I understand it, two meetings which have been conducted involving various participants including everyone here and others, I think, facilitated perhaps by the Commonwealth and involving former Booth DP which had been discussing the issues that are contemplated by the Commission to be dealt with in stage 2 of these proceedings.


That group is working towards, as I understand it, a further consensus statement which is not yet finalised but is hoped to be so in a short period of time, but without – and without going into the detail of it I do understand that there is in a broad sense an in-principle agreement in relation to commencement issues and the issues concerning head chefs, cooks and or the extension of the interim increase to head chefs, cooks and AROs which will be fleshed out in that consensus statement once finalised.


In relation to the timetabling issues my client and I think broadly everyone else was in a general sense content with the timetabling that the Commission was proposing.  For our part we had suggested delaying the date at point 2 in paragraph 11 of the Commission's statement for the filing of responsive materials to the position of the Commonwealth by unions, employers and other interested parties from 13 to 20 January.


The Commission will apprehend that's not more than a consequence of the unavailability of certain people at that time of year.  Otherwise, for our part we were content with the hearing on 9 February.  I understand that the Commonwealth has communicated this morning a desire to change the date at point 3, that is for reply material, a week later from the 3rd to the 10th.


We don't have a difficulty, we understand people have availability issues at that time of the year which is the explanation with which we've been provided.  Obviously the Commission will understand that from my client's perspective we would like the Commission to be able to deal with the stage 2 issues and, indeed, the remaining issues as quickly as can be achieved and we had some concern if that extension would result in the matter not being able to be heard on 9 February and did just perhaps wish to push back a little bit to see if that issue could be – the reply material could be dealt with before the 9th in a manner which would allow the hearing to proceed on that day.


THE DEPUTY PRESIDENT:  Yes.  Well, it will, won't it, Mr Gibian.  It will prevent the hearing on the 9th going ahead.


MR GIBIAN:  That's why I was indicating gently that we would push back slightly to just to feel – we obviously haven't had direct discussions on the precise nature of the inconvenience which has given rise to that request as to whether perhaps if it was even earlier in that week that the reply material could be put on.  For our part we're content to put on the reply material by the 3rd.


THE DEPUTY PRESIDENT:  Thank you.  Thanks.  Mr McKenna.


MR MCKENNA:  Thank you, Deputy President.  As Mr Gibian indicated a further revised proposal circulated by the Commonwealth this morning, I can indicate from the perspective of the ANMF, we are content with what the Commonwealth has proposed and perhaps if I work through orders 1 to 4 indicating the amendments that are proposed.


Firstly, in order 1 the Commonwealth seeks to push back the filing to 5 pm on Friday, 16 December.  That causes no concern to the Federation.  Secondly, as I think all parties are content for the applicant unions, joint employers and other interested parties to file their material by 5 pm 20 January.


Item 3 which I think all parties have now agreed to, save for as Mr Gibian has indicated the HSU, for all parties to file any submissions and evidence in reply by 5 pm on 10 February.  And, fourthly, that the matter be listed for hearing in what is proposed by the Commonwealth and agreed to by the Federation, is for the hearing to occur in the week commencing 13 February.


Now, it might be slightly presumptuous for the parties to be indicating a hearing in that week so perhaps it would be taken as a not before date but assuming that something can be accommodated in or around that time, that timetable doesn't present any difficulties to the Federation and we will support that proposal.


THE DEPUTY PRESIDENT:  Thank you.  Ms Harrison.


MS HARRISON:  Commissioner, we don't have strong views in relation to the proposed timetable.  I think we're in the other parties' hands to be honest.  We don't raise any issues in relation to the Commonwealth's proposed timetable but we also note the HSU's concerns in relation to it.


THE DEPUTY PRESIDENT:  Thank you.  Mr Taylor.


MR TAYLOR:  Thank you, your Honour.  I think Mr Gibian and Mr McKenna have put the position as best as it can be.  We'd prefer to have the hearing as soon as possible.  That is as much as I can add to that, thank you.


THE DEPUTY PRESIDENT:  You're not in the pushing back camp or the agreeing camp, it's as soon as possible?


MR TAYLOR:  As soon as practicable for all the parties.  I mean, I think the general consensus is that everyone wants this all to happen.




MR TAYLOR:  And wants it to happen as soon as the Commission and the parties are able to make it happen.


THE DEPUTY PRESIDENT:  Sorry, Mr Gibian, perhaps I've misquoted your position.  It was gently pushing back, I think.


MR GIBIAN:  I just wanted to explore the extent of the inconvenience which would be occasioned by the earlier dates.




MR GIBIAN:  Obviously our position might be affected by the degree of delay that would be occasioned of course.  If the Commission can't deal with it for some weeks for some other reason, then that would firm our position.




MR ARNDT:  Thank you, Deputy President.  We're comfortable in terms of the proposed variations to the timetable, so we don't have a – we're comfortable with the variations as proposed and I just note Mr Gibian's comments about the conferral process is ongoing.  I'm at a slight disadvantage.  I'm deputising for Mr Ward today but I understand he will return next week form a period of leave in which he will participate in those conferral discussions about those two classifications.


THE DEPUTY PRESIDENT:  All right.  Thank you.  Mr Fuller.


MR FULLER:  Thank you, Deputy President.  Just to confirm the proposed directions that were put on the record by Mr McKenna are the ones that the Commonwealth has proposed, so those dates are accurate.  In terms of the direction 1 we has sought a short extension of time to 5 pm rather than 12 noon but we're otherwise content with 16 December.  Jumping down then to direction 3, just to be clear, obviously the Commonwealth does not want to delay the proceeding anymore than anyone else does.


The reason for the proposed 10 February date was to allow all of the parties the three weeks that had been contemplated by the Commission's original directions and I think, frankly, to accommodate availabilities of everyone on our side in circumstances where there's at least one public holiday falling within that period I think, so that the original proposed date of 3 February would only allow about seven or eight working days to finalise reply material for all parties.


So that was really the reason.  I think Australia Day falls in there.  We've been talking about 20 January for receiving the material from the applicant and joint employers and other interested parties, so in terms of finalising material it would be eight or nine working days perhaps.


In terms of the proposed hearing dates, and we can appreciate the position the Full Bench takes on the timing may depend on the Full Bench's availability for a hearing.  We had hoped perhaps optimistically that there may be a date available in the week of 13 February and certainly we would be available for that but we understand of course that we're in the Full Bench's hands in relation to that.  I don't think I can say anything further about the proposed timing from the Commonwealth's perspective.


THE DEPUTY PRESIDENT:  Thank you.  Perhaps if we could look at item 3 in those directions with respect to the reply material.  If it's by 10 February what does that do?  What kind of timeframe do the parties who would be interested in receiving that reply material and reviewing it, what view do they have about the interval that they would need between receiving that material and the hearing date?


MR MCKENNA:  Deputy President, just in terms of the position that the ANMF have agreed to, it would be a hearing not before 13 February.  Now, that is only three – it is a minimum of three days and that is no doubt a tight timetable but for the reasons that have been articulated by others, I think everybody wants this to get on and in those circumstances if there was availability on the 13th then the three days would be tough but we would live with it.


THE DEPUTY PRESIDENT:  Which would include two weekend days, so - - -


MR MCKENNA:  Yes, yes, it would.




MR GIBIAN:  I think there's only two days and both of them were weekend days but I don't think we would propose a long period.  Can I just indicate, and I also don't want to be presumptuous of the Commission's availability in this respect but in that week I think we are only available the Monday to the Wednesday, so 13, 14, 15.  We would be content to do any of those days.


THE DEPUTY PRESIDENT:  Thank you.  From the UWU's perspective, Ms Harrison?


MS HARRISON:  Deputy President, we could definitely make that work, thank you.




MR TAYLOR:  Yes, we could make that work as well.  Thank you, your Honour.


THE DEPUTY PRESIDENT:  Are there any difficulties from the employer parties with respect to any of those three days?


MR ARNDT:  Not that we're aware of.


THE DEPUTY PRESIDENT:  From the Commonwealth?


MR FULLER:  No, any of those days is fine, Deputy President.  Thank you.


THE DEPUTY PRESIDENT:  We might stand the matter down for a few minutes and just confer about those dates and come back, say, five or 10 minutes.  Thank you.

SHORT ADJOURNMENT                                                                     [9.49 AM]

RESUMED                                                                                               [9.55 AM]


THE DEPUTY PRESIDENT:  Thank you.  Having conferred between the members of the Full Bench, we think the best option is to conduct the hearing on the 14th, Tuesday the 14th, to give the parties the additional day on Monday and we're happy with the amendments to the timetable that has been generally proposed by the parties.  So if we can – we'll - - -


MR ARNDT:  Deputy President.




MR ARNDT:  Deputy President, I'm very sorry to interject.  The short break just gave me another opportunity to check Mr Ward's availability on his other calendar.  I just need to indicate for the record that he doesn't have availability on the 14th or 15th.  I'm not sure if that's going to move the Commission either way but I probably should say that now.  For our position the 13th would work better.  I understand obviously the practical difficulties in relation to the 13th and I understand the unavailability of the other parties for the 16th and 17th, but I do need to correct my summation of Mr Ward's calendar that I've put to the Commission just moments ago.


THE DEPUTY PRESIDENT:  Okay.  It looks like we're back to the 13th then if that's the case.  I think it would probably be advisable or desirable for Mr Ward to continue his involvement given the extent of it to date, would be my view.


MR ARNDT:  That's my understanding of the matter.  Obviously the Bench is in a better position to make that assessment.  Again, I apologise for speaking too soon on that availability point.  I have investigated how immovable his unavailability is and it does seem to be concrete unavailability, so I don't think – if it proceeds on the 14th he will not be able to appear.


THE DEPUTY PRESIDENT:  The only possibility to give a little bit more time is if the parties could stretch themselves to having their submissions and evidence in reply by 5 pm on the Thursday the 9th.  That would then give you the full day on Friday, Saturday and Sunday.  Is that going to be an option?


MR ARNDT:  Obviously - - -


MR GIBIAN:  We would be content with that obviously.


THE DEPUTY PRESIDENT:  Okay.  All right.  We'll make the date in item 3, Thursday the 9th.  We all know the 9th is now a Thursday, so we'll make it Thursday the 9th at 5 pm.  Then the hearing on Monday the 13th.  That brings us to what we foreshadowed in relation to stage 3.  So perhaps if we could turn now to canvas the views of the parties in relation to that.  Essentially we'll produce a background document mid to late December and then the parties will be directed to have discussions to narrow further issues and to report back by the end of February.  Is that going to be suitable?  It sounds like you've commenced the narrowing.


MR GIBIAN:  I think for our part, your Honour, we are content with that course and we will report back in February as soon as we can, and perhaps would be able to indicate by the 13th at least hopefully what the parties' positions are about the matter going forward and that would seem to be the sensible course if that can be achieved or at least indicate that they will be able to do so shortly thereafter.


THE DEPUTY PRESIDENT:  Thank you.  Mr McKenna?


MR MCKENNA:  Thank you, Deputy President.  Yes, that sounds appropriate.  What's set out in the statement is appropriate, thank you.


THE DEPUTY PRESIDENT:  Thanks.  Ms Harrison?


MS HARRISON:  Yes, we would agree with what was set out in the statement is appropriate, thank you.


THE DEPUTY PRESIDENT:  Thank you.  Mr Taylor?


MR TAYLOR:  Yes, we agree with that as well, Deputy President, thank you.


THE DEPUTY PRESIDENT:  Thank you.  Mr Arndt?


MR ARNDT:  No issues from our side, Deputy President.


THE DEPUTY PRESIDENT:  Thanks and, Mr Fuller?


MR FULLER:  No difficulty, thank you, Deputy President.


THE DEPUTY PRESIDENT:  Are there any other matters that we need to deal with today?


MR GIBIAN:  Not for our part, thank you.


THE DEPUTY PRESIDENT:  Other than noting that there's liberty to apply if any legislative matters emerge during the period that we're discussing, on that basis we will reissue the statement, we'll amend it, reissue it and adjourn the proceedings.  Thank you for your participation this morning.  Good morning.

ADJOURNED UNTIL MONDAY, 13 FEBRUARY 2023                 [10.00 AM]