PN1

THE COMMISSIONER: Today is to deal with the substantive variations. What I thought would be the sensible way to proceed - everyone has got a copy of the summary document prepared by the Commission - so I propose to go through that and essentially discuss, first and foremost, are the claims still sought. We can have some brief discussion about the nature if they are. If they are not, then it is straightforward conversation; if they are, then we can have some discussions about what the nature of the claim is, the reason for it, how it varies from the existing provisions and so on. I doubt that we will be able to do much more than that at this stage because we don't have any draft variations, but then we can talk about the process from here.

PN2

There are some directions that have been issued. I was just looking at this morning in the SACS Award for filing of materials along those lines and a timetable, so we will work towards discussing what that might look like and discuss that with the President and have something issued.

PN3

Does that sound all right? Has anyone got any other preferred, better, more desirable plans? No? All right then, let's go. Aged Care Employers are the party for the first item, telephone advice payment. Who wants to speak to that?

PN4

MR LIGGINS: Commissioner, we understand that the circumstance in the industry is that from time to time people who are - - -

PN5

MR MCCARTHY: Sorry, Geoff, could you - - -

PN6

MR LIGGINS: Sure, sorry.

PN7

THE COMMISSIONER: Just yell out, Mr McCarthy. People always forget, including me.

PN8

MR LIGGINS: Sorry, Andrew. We get feedback from members that from time to time, people are on call but they are not required to physically return to the workplace and what we want to do is to make clear and to remunerate where they don't physically need to come back to the workplace, where they are, for instance, just answering a phone call. So, we are looking for a provision that deals with that and is different from the disutility, to use the Commission's word, of physically being required to get up, get changed, hop in the car or public transport and physically go back to the workplace. We would argue that the disutility of that is significantly more than answering a phone call where they could literally be anywhere and not tied to, you know, a location within the vicinity of the place. That is the proposal that we put forward for this award. We have had some success with the parties for a similar proposal in the SCHADS Award and we're also attempting to do the same thing in the Nurses Award.

PN9

THE COMMISSIONER: What is the entitlement at the moment for a phone call-type arrangement? What would you say?

PN10

MR LIGGINS: There isn't anything specific in there. I guess the best that we would say is we don't believe it's the same as - there are recall to work provisions, minimum payments in the award where you physically have to come back to the workplace.

PN11

THE COMMISSIONER: Yes.

PN12

MR LIGGINS: Our position is that we don't believe that circumstance applies to this circumstance. There has been a Federal Court decision determining in a similar sort of situation 15 minutes at OT. What we found is that there's a whole range of different ways that people remunerate this or don't remunerate this.

PN13

THE COMMISSIONER: The Federal Court decision was in respect of the Aged Care Award?

PN14

MR LIGGINS: No, not specifically the Aged Care Award, but a similar circumstance.

PN15

THE COMMISSIONER: But a like circumstance?

PN16

MR LIGGINS: Yes.

PN17

THE COMMISSIONER: And the Federal Court found that a phone call should be made at 15 minutes' overtime?

PN18

MR LIGGINS: Yes.

PN19

THE COMMISSIONER: All right.

PN20

MR LIGGINS: Minimum, and that it was different from physically - - -

PN21

MS SVENDSEN: A back pay claim, wasn't it?

PN22

MR LIGGINS: Sorry?

PN23

MS SVENDSEN: It was a back pay claim? I was trying to remember what decision it was last night.

PN24

MR LIGGINS: It was Polan and something. I can't remember the exact name.

PN25

THE COMMISSIONER: All right.

PN26

MR LIGGINS: So, at the moment, there's a variety of different ways that people deal with this. It's not clear, so we would like to make it clear and deal with the issue. That's why we are putting it on the table.

PN27

THE COMMISSIONER: All right.

PN28

MS SVENDSEN: Goulbourn Valley Health.

PN29

MR LIGGINS: Yes, I think you're right there - and Polan.

PN30

THE COMMISSIONER: What is the view of the unions about this claim?

PN31

MS SVENDSEN: I am not going to speak on behalf of all of us. We have had discussions with the employers around a similar clause in the SCHADS Award, which is the one that Geoff was referring to, and we have effectively a similar claim for on-call/recall provisions to be properly dealt with in this award. My view is that on-call/recall in the standard provisions were written at a time where landlines were the only phones that were used and you had to stay at home and recall was usually the outcome, and also at a time when supervisory staff on duty were significant and now that has changed dramatically. The outcome of that is that there are a lot more people who are doing phone on-call and not being properly remunerated in relation to it, so I think it is a matter that needs to be dealt with.

PN32

THE COMMISSIONER: So they might be rung up, "So and so is agitated", consulted about what medication they had had that day or something?

PN33

MS SVENDSEN: Yes, it could be anything from that to the boilers - I don't know. It is everything and anything. It is administrative, it is care-based, there's no supervisory capacity in residential or support services any longer, there's not that, because there's not the same level of staff either on overnight, but, you know, they're different, completely different these days. But the reality of calling is that that happens much more frequently. Certainly, anecdotally, we know that a number of staff are not paid even an on-call allowance, but they are certainly not paid for any disturbance unless they are returning to work physically, and so from our point of view, we think there's a disconnect between the two.

PN34

THE COMMISSIONER: A gap?

PN35

MS SVENDSEN: Yes. But this award actually doesn't have on-call provisions. It has recall to work for overtime, which is the provisions that Geoff is returning to, so it does deal with that issue only on a recall basis and we think the two kind of go hand in hand. There's a need to have on-call and some concepts of what recall to work means.

PN36

THE COMMISSIONER: Yes.

PN37

MS SVENDSEN: And there's recall to duty or there's work by phone.

PN38

MR LIGGINS: Yes, remote.

PN39

MS SVENDSEN: Yes. We called it remote in SCHADS, remote work. That doesn't mean it will apply here, but it's that premise, different premises.

PN40

THE COMMISSIONER: Is the SCHADS discussions you've had, is that a way forward with this one?

PN41

MS SVENDSEN: Potentially.

PN42

MR LIGGINS: Yes, I think it's the basis for a discussion, yes.

PN43

MS PATTON: It's a slightly different set of scenarios for that award given, maybe, the higher prevalence of remote work in an environment which is more of home care style working communities, that award, unlike a residential aged care facility where it's a different style of working. So there's some potential in discussions and can be led from those earlier, the SCHADS Award discussions, but considering there's no on-call in this award, it would create some difficulties to marry them across.

PN44

THE COMMISSIONER: All right.

PN45

MR MCCARTHY: I have a few comments, if I can?

PN46

THE COMMISSIONER: Yes, of course.

PN47

MR MCCARTHY: I have got a few comments in relation to this proposal and also the HSU, I think, have mentioned also a phone allowance proposal. The ANMF wasn't involved in the SCHADS negotiations, so we weren't party to that discussion. There's a similar proposal in the Nurses Award which, at this stage, we've opposed. The Nurses Award isn't necessarily the same wording as the Aged Care Award or the SCHADS Award, for that matter, and our position in relation to the Nurses Award at this stage is that we oppose the telephone advice proposal and we say that the existing clause in the Nurses Award, which is similar wording to the Aged Care Award, is that a recall to work as a minimum payment of - I think it's three hours in the Nurses Award, four hours in the Aged Care. Our position is that if you get called up at home, that could fall within the existing wording of the clause.

PN48

We are aware of the Polan decision and I think we need also further information as to what situation we are talking about here. Polan does talk about being called up at home being potentially a recall to work falling within the existing provisions as well; it all depends on the circumstances of the call and the arrangements that are put in place. It depends on what situation we are talking about.

PN49

There is also the situation of - I guess also I don't actually have the details of the proposal from the other parties at this stage. Of course, the submissions were put in a couple of years ago, so we don't have the actual precise detail.

PN50

THE COMMISSIONER: That's because there aren't any.

PN51

MR MCCARTHY: Sorry?

PN52

THE COMMISSIONER: There aren't any details.

PN53

MR MCCARTHY: No, no, that's right.

PN54

THE COMMISSIONER: We are at the conceptual stage.

PN55

MR MCCARTHY: That's right, yes, I understand. At this stage, we are very cautious about those proposals because they are very similar to the Nurses Award proposals, which we oppose at this stage. I also have mentioned, too, the situation of someone who is called up who is not on the roster. That doesn't appear to have been dealt with in the SCHADS situation, so I am just wondering how that would fit into things as well because there's a financial incentive to call someone who's not on the roster that might receive lesser payment than someone who is on the roster and that would also be of concern. These are the issues that we have in relation to this.

PN56

THE COMMISSIONER: As in an on-call roster?

PN57

MR MCCARTHY: An on-call roster, that's right.

PN58

THE COMMISSIONER: Yes. I think that is the issue, isn't it? The problem with this award, as I understand what is being said, is that there's nothing to deal with the issue of ringing up, in your case a nurse, and it might be as simple as saying, "Look, the medication record says you gave two of these pills and not one, we just needed to double check, what did you do?" There might be just a simple query like that. It's that classic, "We can't wait until tomorrow" to ask this person the question." There may well be a five-minute conversation. How do you sensibly pay for the level of disutility that occurs in those situations? That person might not be on call but you are just going to ring them up anyway.

PN59

MR MCCARTHY: Sorry, Commissioner, could you just move your microphone a little bit?

PN60

THE COMMISSIONER: Yes. They might not be on call in that situation but you are just going to ring them anyway, and then there's the other situations where you are going to have someone on call because you want that resource to either ring them or perhaps bring them back in and, as I understand it, if you are bringing them back in, we don't have any issue in terms of the current provisions, but if we don't want to bring them back in, we just want to ask them something, yes, the question is then is a three-hour minimum payment appropriate to the level of disutility, using that word, or is some other regime more appropriate?

PN61

MR MCCARTHY: Yes, I understand the issues. It's just, I guess, there is an existing provision and there is an issue of how far that provision extends.

PN62

THE COMMISSIONER: Yes.

PN63

MR MCCARTHY: I think that needs to be addressed as well.

PN64

THE COMMISSIONER: All right, I understand all that. Anyone else want to speak on this matter? All right, it is expected that this will be pursued and I will just note it has some overlaps, as you said, Ms Svendsen, your on-call/recall concepts.

PN65

MS SVENDSEN: It does. It is around about the same matters but our claim probably goes a little further because it asks for an on-call per se allowance and then provisions around that.

PN66

THE COMMISSIONER: Yes. There is some notion that the SCHADS discussion may be a platform and note ANMF not involved in that and also are opposing a similar change in the Nurses Award. All right, I have got all that.

PN67

Item 2 is on-call and recall, HSU. Is that really wrapped up in the same bundle?

PN68

MS SVENDSEN: It is.

PN69

THE COMMISSIONER: Yes, fix one, fix all. Item 3 and item 4 are both referred to the Part-time and Casuals Full Bench, so we have no need to discuss those items today. Agreed?

PN70

MS SVENDSEN: They are technically referred to the Part-time and Casuals Full Bench, but they haven't been dealt with.

PN71

THE COMMISSIONER: All right, tell me about that.

PN72

MS SVENDSEN: Certainly in relation to casual loading being paid in addition, and while I have withdrawn the application for an addition to the shift payments, I think - I'm just trying to remember now - but the issue hasn't actually been noted as being dealt with and I don't think the part-time matter has either, but I haven't kept as fully abreast of that. So, although they are both noted as being referred to the Full Bench, there's been no indication from the Full Bench about those being dealt with by the Full Bench.

PN73

THE COMMISSIONER: But that Full Bench is a long way down the track, isn't it? It's finished, isn't it?

PN74

MS SVENDSEN: It's finished all of the - - -

PN75

THE COMMISSIONER: There is no decision but - - -

PN76

MS SVENDSEN: No there's no decision yet, that's exactly right, which is why at the time this summary was done and it was noted that these matters fell within that ambit, it was, I think, envisaged that they would deal with a whole list of things that were coming up and things kept getting added to it because they referred to part-time and casual work, but they weren't really common matters. There was also an indication of the concept of casual loading being in addition to other penalties, that that particular issue might be dealt with as a global issue.

PN77

THE COMMISSIONER: Yes.

PN78

MS SVENDSEN: The closest it has got to being dealt with as a global issue is in the penalty rates decision, in fact, and whether or not the casual loading should be in addition to weekend rates of pay.

PN79

THE COMMISSIONER: Yes.

PN80

MS SVENDSEN: That's the closest it has got to being dealt with, that particular part of casuals being dealt with, which is actually my issue, dealt with in relation to the Full Benches. It hasn't been identified that that Bench is going to come back and deal with those matters.

PN81

THE COMMISSIONER: Of course, what we decided in the penalty rates was specific to casual loadings.

PN82

MS SVENDSEN: It was.

PN83

THE COMMISSIONER: And it was connected to those particular penalties and I am not sure the broader application, yes.

PN84

MS SVENDSEN: That's why I say it's the closest there is to that being dealt with as an issue on its own and it's not been dealt with as an issue as a common matter and I don't think it's actually being dealt with by that Full Bench in reality.

PN85

MS PATTON: Leigh, just a quick question: are claim 17 and claim 4 both HSU claims?

PN86

MS SVENDSEN: Yes, they are the same matter.

PN87

MS PATTON: Okay. And is it that one in 17 that you're saying you are not pursuing the shift allowances? Is that the one that you're mentioning?

PN88

MS SVENDSEN: It's a bit confused because the shift allowances was actually initially a claim for it to be paid as well as weekend rates of pay, which is a different issue.

PN89

MS PATTON: Okay.

PN90

MS SVENDSEN: I'm not pursuing that.

PN91

THE COMMISSIONER: But the part-time provision - is the summary correct - because this is your claim?

PN92

MS SVENDSEN: Yes.

PN93

THE COMMISSIONER: Or the employer's claim: seek removal of the requirement that any additional hours agreed to between an employer and employee be recorded in writing.

PN94

MS PATTON: Sorry, that one there I believe has gone to the Full Bench. It was a separate matter, and I think actually was not even - that wasn't raised by aged care employers. I think we may have - and it may have gone to the Full Bench and then I think it became part of the - - -

PN95

SPEAKER: (Indistinct).

PN96

THE COMMISSIONER: Yes.

PN97

MS PATTON: Yes, that's what I thought, where then there was a look at other awards with similar language.

PN98

THE COMMISSIONER: It was very similar in lots of awards.

PN99

MS PATTON: Yes.

PN100

THE COMMISSIONER: Although it tends to come up - from someone who approves a lot of agreements, it is typically a BOOT issue in the Aged Care/SACS area.

PN101

MS SVENDSEN: Which is not surprising because they're the ones that work different rosters, changing rosters.

PN102

THE COMMISSIONER: That's the issue, because of the changing rosters, yes.

PN103

MS SVENDSEN: Yes.

PN104

THE COMMISSIONER: Yes, exactly. But you are pretty confident that it is going to be dealt with? It might be that, in terms of items 3 and 4, we are really waiting for the Full Bench decision.

PN105

MS PATTON: To see if it is caught.

PN106

MS SVENDSEN: To see how much it is dealt with or how little it's dealt with, that's exactly right.

PN107

THE COMMISSIONER: We probably can't meaningfully do anything with this and we will just park it until that time.

PN108

SPEAKER: That's the way we're thinking as well.

PN109

THE COMMISSIONER: All right, but I will make a note we are not entirely sure if the PT/Casuals Bench will deal with this but we will await that outcome and consider this one further - three out of four. All right, thank you for that, Ms Svendsen. Item 5?

PN110

MS SVENDSEN: The first part of item 5 references back to item 2, so the phone allowance and on-call/recall allowances. Sorry, no, the phone allowance doesn't, the on-call/recall allowances does. The phone allowance is somewhat related in that the phone allowance deals with, as do all these phone allowances, fixed line rentals only and therefore we're looking to - - -

PN111

THE COMMISSIONER: The current provisions.

PN112

MS SVENDSEN: Yes, the current provisions. We're looking to update those provisions to deal with mobile.

PN113

THE COMMISSIONER: All right.

PN114

MS SVENDSEN: It also goes further than that because now people are starting to roster on smartphones and providing for acceptance and rejection of shifts on smartphone apps, so it's a bit broader than it would have been when I first put it down.

PN115

MS PATTON: In that scenario, and I agree that they're using technology to make things more efficient and more manageable for employer and employees, in that scenario for a telephone allowance to include a mobile where mobiles are used for work-related purposes, if the alternative was a roster being pinned up at work and you had to come in, say, to see the roster or, alternatively, you could say, "My preference is either I'll go on site to look at it or have it emailed to my phone or do it through a different system", is it your view that the allowance for using a mobile phone, say, if that's what it relates to for work-related reasons, is that in the circumstances where someone has elected to receive messages by phone as opposed to the alternative way, which would be to go on site?

PN116

MS SVENDSEN: I don't think election is an option in a lot of those cases, it's actually an app provided by the employer and it's a requirement that staff use that for rostering purposes and for allocation of their shifts. So there's actually a broader application which has meant that people have had to acquire smartphones instead of - I mean, we're talking about some fairly low-paid people in terms of this, and it's a problem in SCHADS as well, and they don't necessarily - the reality is the feedback from our members is they don't all necessarily have them and they're having to switch over. There is absolutely no doubt that they are used for both, but that's - - -

PN117

THE COMMISSIONER: "Both" being personal and private?

PN118

MS SVENDSEN: Personal and work use. There's absolutely no doubt about that, but there's also no doubt that not everybody wants to or has a smartphone, and there's also no doubt that it requires them to use data to actually get their - I am not expecting that would be paid for lock stock and barrel, but there is absolutely provision in relation to those things that needs to be addressed.

PN119

THE COMMISSIONER: Yes.

PN120

MS SVENDSEN: The only provision at the moment is for a landline. Half this set of people don't have landlines and haven't had one for years. So I think that it's about how you deal with that modernisation of it and, yes, there are several ways of looking at it.

PN121

MR LIGGINS: There's a range of different issues, too. Some of our members have wanted to provide the phone and the staff have said, "I don't want to carry two phones, can I just put it on my phone?"

PN122

MS SVENDSEN: Yes.

PN123

MR LIGGINS: So there's a range of complications.

PN124

MS SVENDSEN: Yes. It's a bit like the laundry allowance issues, you know, whether you have - isn't it amazing, we've actually got to the point where we've gone back to uniforms, but they tend towards being more casual style of uniforms - but the point about that sort of stuff is that, you know, sometimes it's going to be an either/or, I suspect, and I haven't had enough conversations to see how we would move down that path, but I think it needs modernising from a landline provision and we need to take into account that there are moves towards putting rosters online, which also deals with the issue of record-keeping because the idea is to allow for that to form an electronic record.

PN125

THE COMMISSIONER: What is the allowance now?

PN126

MS SVENDSEN: For the rental cost for three months for a fixed line on provision of the bill, the account, I think. Is there not one? Maybe that's me getting my awards mixed up.

PN127

MR LIGGINS: Because they all seem suspiciously similar, like my claim and SCHADS.

PN128

THE COMMISSIONER: I can't see it.

PN129

MS SVENDSEN: No, I reckon it's not in there, so maybe it was to even put it in.

PN130

MR LIGGINS: I remember it being somewhere.

PN131

MS SVENDSEN: Maybe the pre-existing - maybe it's SCHADS I'm thinking. That's the way it's written in SCHADS. Sometimes you get confused about which award still has these things. The one I read went through the on-call stuff.

PN132

THE COMMISSIONER: Do you withdraw the claim now?

PN133

MS SVENDSEN: No. I just don't have to update an existing clause, I have to insert one.

PN134

THE COMMISSIONER: You know your 16-year old kid who works at McDonalds accepts and rejects rosters on their Metime app?

PN135

MS SVENDSEN: Yes.

PN136

THE COMMISSIONER: Every single one of them has got a mobile phone. I only raise that in the context of this will have implications. The world is on smartphones doing this stuff now.

PN137

MS SVENDSEN: Yes, they are and they will be soon, but not everybody is yet, certainly particularly given the age of the cohort we're talking about.

PN138

MR ROBSON: Which sort of median age is 48 and people work up from that.

PN139

MR LIGGINS: I think most of us in that age demographic are pretty used to smartphones.

PN140

MS SVENDSEN: No, most of us aren't. Those of us around this table are.

PN141

SPEAKER: I've certainly - in South Australia and Western Australia, I find a smartphone something pretty challenging, especially - I'm glad you said that and not me.

PN142

SPEAKER: It's something that they've communicated to us, you know, it's not something that - - -

PN143

THE COMMISSIONER: I am just saying you'd probably want to have a good think about this one because it will be an issue that if there's no - it's one thing, I think, talking about there's an existing allowance, just from a merit point of view, and we want to reflect new technology and so on, but if there's nothing there now, that doesn't necessarily mean - and don't take anything I'm saying to be suggestive of any particular outcome - you would have to then think about the case you would have to run to get that there and I do just observe that I think this is something that would have implications beyond just this award.

PN144

MS SVENDSEN: Yes, I hear what you are saying. I would be - I will have to go back to the pre-existing awards now, but my memory is that this existed in most of them, so I'm not quite sure how it got left out.

PN145

THE COMMISSIONER: It slipped away in the night.

PN146

MS SVENDSEN: It slipped away in the night, that's right.

PN147

THE COMMISSIONER: All right.

PN148

MS SVENDSEN: Our First Aid Certificate renewal allowance is a different issue and that is a new allowance. That is a remembered new allowance. The other one was a new allowance that I didn't realise was new. I realise that this one is. It's around the requirement for them to update the certificate every three years, at least a minimum of every three years.

PN149

THE COMMISSIONER: Yes.

PN150

MS SVENDSEN: I was at the First Aid Industry Reference Group the other day, so it might be more frequent than three years soon.

PN151

THE COMMISSIONER: So this has got the standard payment for holding one?

PN152

MS SVENDSEN: Yes, which applies to the person who is required to hold it for the purposes of being a health and safety officer in an organisation. The majority of employees are required to hold it, the majority of employees working as a part of their employment for client care as opposed to other staff. Not that I suspect that they wouldn't use it.

PN153

MS PATTON: But we're acknowledging that there's no first aid allowance in the award at all at this stage.

PN154

THE COMMISSIONER: Isn't there?

PN155

MS PATTON: No.

PN156

MS SVENDSEN: Not what I'm thinking about anyway. Even if the first aid allowance is there for other staff.

PN157

MS PATTON: No, there's none.

PN158

MS SVENDSEN: There you are, that's another one.

PN159

MS PATTON: I know that's in the SCHADS.

PN160

MS SVENDSEN: There you go, it's referred to in the class descriptors and there's not an allowance for it.

PN161

MR LIGGINS: In SCHADS it's only payable where a person has the responsibility of first aid for the other employees.

PN162

THE COMMISSIONER: Yes, that's what Ms Svendsen is talking about.

PN163

MS SVENDSEN: But, again, it used to be. But, look, that's actually not what we are referring to, we are referring to the requirement to refresh - - -

PN164

THE COMMISSIONER: As part of your contract of employment, yes. How much is it worth, do you know, roughly?

PN165

MS SVENDSEN: That varies substantially.

PN166

THE COMMISSIONER: Depending on the type of course you need to do?

PN167

MS SVENDSEN: Yes, depending on what level, but also depending on where you're receiving the training. I think you'll find that the differences between Red Cross and St John providing services as opposed to a private RTO are also a different fee and that probably needs to be taken into account in drafting that, yes.

PN168

MR LIGGINS: Then you have the complication of many people under the Aged Care Award work for multiple employers, so if the allowance comes in to be paying for - if you're looking to put an allowance in that pays for the training, if you like, then it can't therefore be paid at full rate for two or three employers who employ the person.

PN169

MS SVENDSEN: I will have a look at that.

PN170

MR LIGGINS: That's quite a common circumstance, as you know, that people work at a number of different facilities or environments.

PN171

MS SVENDSEN: It's reimbursement that we're looking at anyway.

PN172

THE COMMISSIONER: You intend to pursue that?

PN173

MS SVENDSEN: Yes.

PN174

THE COMMISSIONER: Anyone want to say anything else on item 5? If not, we will go to item 6. Your time to shine.

PN175

MR ROBSON: Yes, this is pretty simple. We've had some issues. We have clarified the number of uniforms a person is entitled to under the allowance. We provided - - -

PN176

THE COMMISSIONER: Can we just have a look at the allowance?

PN177

MR ROBSON: Sorry, I've actually just closed the award for some reason. It is 18.3 in the Exposure Draft and the relevant provision is 18.3(a)(i) at dot point one. There it says:

PN178

Where the employer requires an employee to wear a uniform, the employer must:

PN179

supply the employee with an adequate number of uniforms free of cost appropriate to the occupation.

PN180

We would like to insert an additional dot point clarifying what an adequate number of uniforms means and we say the appropriate amount is enough that a person can work their agreed hours without needing to do laundry more than once a week.

PN181

THE COMMISSIONER: Any parallels with any other clauses in other awards?

PN182

MR ROBSON: Not that I know of.

PN183

THE COMMISSIONER: How often does this come up as an issue in dispute?

PN184

MR ROBSON: I don't know. Our coverage is fairly limited nationally, but it was certainly one of the top things that people have talked about and that it seems to happen relatively regularly that people aren't given enough uniforms and then are asked to buy additional ones.

PN185

THE COMMISSIONER: Yes.

PN186

MR LIGGINS: From our place, I can say we have never had a dispute with anybody concerning this issue, but that's not to say that it doesn't happen.

PN187

MR ROBSON: No, no, I understand that.

PN188

THE COMMISSIONER: Any other views about this matter from anyone?

PN189

MS PATTON: I've got a funny feeling the Aboriginal Community Controlled Health Award provides wording around that concept.

PN190

THE COMMISSIONER: Anything similar in the Nurses Award?

PN191

MR ROBSON: No, there isn't.

PN192

MR MCCARTHY: No, I don't think so. There's a laundry allowance but - - -

PN193

THE COMMISSIONER: Not provision of uniforms?

PN194

MR LIGGINS: I think it says "reasonable", but there's no dictate as to how many or - - -

PN195

THE COMMISSIONER: No, no.

PN196

MR LIGGINS: None of that.

PN197

THE COMMISSIONER: I've never seen one, yes. All right. You intend to pursue that?

PN198

MR ROBSON: Yes, we do.

PN199

THE COMMISSIONER: I think there's been enough - as people are aware, there's been some big cases now which I think provide an indication about what you'd better climb over to get change, so, in terms of pursuing these things, one needs to be clear about what sort of evidentiary case they'd be bringing to bear as to why a change should be made, particularly if it's opposed. It hasn't been explicitly said but I'm assuming it's opposed by the employers - yes - as opposed to the on-call/recall issue where you might not agree on what you're doing but you all agree you need to do something.

PN200

Item 7, clothing and equipment allowance.

PN201

MS SVENDSEN: Number 7 related to, for us - I can't remember the equipment part of this - number 7 related to a damaged clothing allowance where it's not a provided uniform. The type of allowance looking at - it's the Health Professional Support Services provisions.

PN202

THE COMMISSIONER: And what's in that award?

PN203

MS SVENDSEN: Yes, and it excludes hosiery, you'll be pleased to know.

PN204

THE COMMISSIONER: It expressly says that, does it?

PN205

MS SVENDSEN: It expressly says it. It relates to people who are never wearing a uniform suffering significant damage to clothing and a replacement cost for that.

PN206

THE COMMISSIONER: So you want basically the same provision as the Health Professionals Award. All right, views on that? Support? Opposition? Open mind? Open mind from employers. Well, while we are all here, let's have a better look at it. Can you get that up, Health Professionals?

PN207

MS SVENDSEN: The provision is:

PN208

Where an employee, in the course of their employment, suffers any damage to or soiling of clothing or other personal effects, excluding female hosiery -

PN209

I said it was there -

PN210

the employer will be liable for the replacement, repair or the cleaning of the clothing or personal effects providing immediate notification is given of the damage or soiling. This clause will not apply where damage or soiling is caused by the negligence of the employee.

PN211

MS PATTON: My Association doesn't really deal with the Health Professional Award too much, we only have a few classifications who would sit under this award and probably would never - rarely would be impacted by a damaged clothing allowance. I'm thinking about who those workers are and where they work in the facility.

PN212

THE COMMISSIONER: Yes.

PN213

MS PATTON: So that's probably got bigger implications in this award given the number of classifications that could work in areas where soiling - - -

PN214

THE COMMISSIONER: Have we got a laundry allowance in this award already?

PN215

MS PATTON: You've got a nauseous linen allowance, a linen laundry allowance, yes.

PN216

THE COMMISSIONER: That pays for cleaning of the stuff.

PN217

MS SVENDSEN: But they are all based on uniforms.

PN218

MS PATTON: Yes, yes. I just think this clause might - - -

PN219

MS SVENDSEN: This does not apply for a uniform because that's replaced anyway.

PN220

MS PATTON: I just think this clause would be used a lot more or looked at a lot more in the Aged Care Award where people weren't given uniforms. To understand where this might have had any area of dispute or area for confusion, I don't know because I don't think I would have had any workers working under this award where that clause would have come into play, but in the Aged Care Award, I suspect it could, in which case then I don't know the area where people might say the damage is caused by the negligence of the employee, where that has come up for cause for compensation or dispute. Maybe your union's been involved in discussions with employers and employees where the employer has claimed it's the employee's negligence as to how the damage has occurred.

PN221

MS SVENDSEN: No, I haven't because the only times it has ever come up has been relating to something that's pretty clear.

PN222

MS PATTON: Yes.

PN223

MS SVENDSEN: It's just been fairly clear circumstances. It doesn't occur often, in the areas where it covers, it doesn't seem to appear often, but it seems to be, when it's used, it's because there's quite significant damage to items of damage and there's no provision for uniform.

PN224

MS PATTON: Because in here it could be, for example - I'm just thinking of how it could happen - if a personal care worker is looking after a resident and the resident was to soil their clothing, say, the negligence could be - it could be that there was no negligence and it just occurred, in which case that would be not in dispute, but then it also could be that someone might say, "But if you weren't standing there or if you had another person with you, that wouldn't have happened" and therefore the negligence has resulted in the soiling, which could be fixed by just laundering, in which case it's not got a cost element to it, but I'm just trying to think of the scenarios in aged care - - -

PN225

MS SVENDSEN: We're actually talking about scenarios where the clothing - the only time I've ever heard it used is where the clothing is damaged and damaged badly.

PN226

MS PATTON: Right.

PN227

MR LIGGINS: You would be looking for that to apply whether there's a uniform or not?

PN228

MS SVENDSEN: If there's a uniform - - -

PN229

MR LIGGINS: Uniforms are covered by laundry.

PN230

MS SVENDSEN: It's covered by uniform and a need to replace.

PN231

MR LIGGINS: The uniform allowance, the need to replace, but you are talking about this applying beyond that circumstance because there are places where uniforms aren't required.

PN232

MS SVENDSEN: There are places where they don't require uniforms, in fact, they don't like people wearing uniforms.

PN233

MR LIGGINS: Yes.

PN234

MS SVENDSEN: They reject the notion of a uniform.

PN235

MR LIGGINS: Yes, because they want it to be more a home like environment.

PN236

MS SVENDSEN: That's right.

PN237

MR LIGGINS: Yes.

PN238

MS SVENDSEN: So they're not going down the line of using a more corporate style uniform even, they're actually not using uniforms and the reality is that means that you get your clothes - I don't know people who don't have clothing, in fact, that's different to their normal clothing if they're working in aged care or disability where both of these things apply, but that means, you know, it's all their costs from damage that's not their fault. It's simply that.

PN239

THE COMMISSIONER: Has this occurred often?

PN240

MS SVENDSEN: No, it doesn't occur often. Soiling does, but soiling's just laundry and not - this doesn't really provide for soiling. It does say "soiling", but in reality that's just laundered normally, but this issue is damage.

PN241

MR LIGGINS: My concern with the word "soiling", if it were transferred into Aged Care, would be really you'd be extending the laundry allowance beyond uniforms because everybody's clothes at some stage get washed because they're soiled or, you know, you change your shirt every day, whatever you do.

PN242

MS SVENDSEN: My view about that is also that if the employer doesn't want people wearing uniforms because they want a more home like environment, the laundry allowance still should apply in the circumstances we're talking about because you will not go to work, unless you're sitting in the office all day, and not get soiled. It's a reality of working in the sector.

PN243

MR LIGGINS: Every workplace you could argue the same.

PN244

MS SVENDSEN: And to abrogate responsibility because you don't require a clothing allowance is, I don't think, reasonable.

PN245

MR LIGGINS: That would be a big ask.

PN246

MS PATTON: (Indistinct) significant soiling (indistinct).

PN247

MS SVENDSEN: Yes, potentially.

PN248

MR LIGGINS: It would be a big extension, though, Leigh, to apply the laundry allowance to everybody because every workplace could realistically be - would be interested in the outcome of that.

PN249

THE COMMISSIONER: But that's not your claim.

PN250

MS SVENDSEN: That's not my claim.

PN251

THE COMMISSIONER: That's not the effect of the - - -

PN252

MS SVENDSEN: That's right. I'm just answering a question in relation to the requirement and I think that, you know, it's one of the issues that unions have had for a while in relation to the requirement to wear a uniform and whether or not - because what occurs with the "I don't require you to wear a uniform" is a list of allowances fall out of the award or the requirement to pay, which means that all that you're doing is moving that payment onto the employee, which may be a really good thing for employers to do but is - given the areas we're talking about and the requirement for people to have different clothes, the reality is you would not wear the same clothes to go shopping and to the bank or to the theatre that night that you would wear at work in aged care - you're not going to.

PN253

You actually do have - if there's a requirement not to wear a uniform, people actually put together their own effective uniform because there are clothes they wear to work and there are clothes they don't wear to work, and the reasons for it are not to look smart or to dress appropriately for work, as I do, it's about actually having clothes that aren't soiled. There's nothing about what I wear at work that I can't wear somewhere else. There's a whole difference when you're talking about working in aged care and disability and places like that, in this case aged care.

PN254

THE COMMISSIONER: All right. Is it understood what "soiling" is because that seems to be the jump off point for "I've just got my clothes dirty at work", which everyone does.

PN255

MS SVENDSEN: Yes.

PN256

THE COMMISSIONER: Just because you're walking around, catching a train and doing all those things, but soiling is something - - -

PN257

MS SVENDSEN: Something different.

PN258

THE COMMISSIONER: Yes.

PN259

MS SVENDSEN: My training nursing uniform, I have to tell you, was bright yellow, but it also had this little white strip that went down the middle here which caught everything, so you would always go home with all the revolting rubbish - - -

PN260

THE COMMISSIONER: Splatter.

PN261

MS SVENDSEN: Splatters right down the white piece in the middle of the uniform, which stood out much more than it did on an all-white uniform, let me tell you. Anyway, be that as it may.

PN262

THE COMMISSIONER: Was that soiling?

PN263

MS SVENDSEN: That's the soiling.

PN264

THE COMMISSIONER: But that's just getting - - -

PN265

MS SVENDSEN: But the reality is I wore a uniform, I got a laundry allowance, so it wasn't an issue. It was a completely different thing, but - - -

PN266

MS PATTON: If you were receiving a nauseous linen allowance, would you also receive the potential - not the damage piece but the soil piece? If you're getting the nauseous linen allowance for working with nauseous linen, which may be rare these days because people do it better, but you could have soiling from being in the role that deals with nauseous linen where you're getting the nauseous linen allowance. Would you get both allowances?

PN267

MS SVENDSEN: You'd get a laundry allowance if you were wearing a uniform.

PN268

MS PATTON: Yes, but if you weren't wearing a uniform?

PN269

MS SVENDSEN: Why not?

PN270

MS PATTON: Just looking at the other allowances, that might sit in areas where - - -

PN271

MS SVENDSEN: But it's not actually an allowance. Let's be clear.

PN272

THE COMMISSIONER: It's a reimbursement, is it?

PN273

MS SVENDSEN: It is. Leaving the soiling aside, the primary issue around this is damage.

PN274

MS PATTON: Yes.

PN275

MS SVENDSEN: It's not soiling.

PN276

MS PATTON: Yes.

PN277

THE COMMISSIONER: But just again - sorry to go on with this - but back to your example of your yellow uniform, that's just normal wear and tear, isn't it? I was assuming that soiling was more, you know, someone had thrown up on me today or something, you know, significant, "I can't put this on, I've almost wrecked" - - -

PN278

MS SVENDSEN: You could go home in hospital gowns, yes.

PN279

THE COMMISSIONER: Yes, that sort of stuff. Anyway, I'm not sure that has been dealt with. Any views on any of this, Mr McCarthy?

PN280

MR MCCARTHY: No, nothing to add, Commissioner.

PN281

THE COMMISSIONER: Item 8, AiG said has been withdrawn. True, Ms Svendsen?

PN282

MS SVENDSEN: Yes, it is.

PN283

THE COMMISSIONER: Item 9? From the employers - rosters:

PN284

Allow for a roster to be changed at any time when the employer and employees agree and/or where there is an unexpected absence.

PN285

What is the current regime for roster change?

PN286

MS PATTON: That it requires seven days' notice.

PN287

MR LIGGINS: Seven days. There is no ability for it to be changed within the seven days even where there's agreement between the parties to do that.

PN288

MS PATTON: Sorry to keep harping on about the SCHADS, but is this something similar to what we've got in the SCHADS Award?

PN289

MR LIGGINS: A similar issue, yes.

PN290

MS SVENDSEN: It's also similar to a Nurses Award issue.

PN291

THE COMMISSIONER: Has anyone resolved them in any of these other awards?

PN292

MR LIGGINS: In the SCHADS.

PN293

THE COMMISSIONER: In the SCHADS?

PN294

MR LIGGINS: Yes.

PN295

THE COMMISSIONER: So you are looking for the same outcome?

PN296

MR LIGGINS: A good starting point for discussions, yes.

PN297

THE COMMISSIONER: All right. Mr McCarthy, you have not been involved in that?

PN298

MR MCCARTHY: No, I wasn't involved in the SCHADS. We have opposed this proposal in the Nurses Award. We have said this is a matter more appropriate for bargaining and we also had a concern that the imbalance in bargaining power may mean that employees may feel pressured to agree to changes they don't really wish to agree to.

PN299

I think the SCHADS Award - correct me if I'm wrong - also had something about "agreed in writing".

PN300

MS SVENDSEN: Yes.

PN301

MS PATTON: Yes.

PN302

MR MCCARTHY: I don't know whether this proposal would including "in writing" or not. Also I'm just sort of wondering how this fits in with - we think it's gone to the Full Bench, but S3, which talks about:

PN303

seeks removal of the requirement that any additional hours agreed to between and employer and employee be recorded in writing.

PN304

If you are wanting that provision to not be in writing, which is about minimum number of hours, would that mean that the aged care employers would not be wanting to put this in writing as well?

PN305

THE COMMISSIONER: If I can intercede, in terms of items 3 and 4, when we discussed those and about that claim for the removal of the requirement for changes for part-timers to be in writing, the discussion around that is, "Well, we think that the Part-time/Casual Bench will deal with that but we're not sure." That's to do with part-timers only. This is all rosters, full-time and part-time, where, as I understand it, the employer position, obviously in a non-coerced and everyone's happy, you know, "I've decided that I actually do want to pick up another shift and change my roster tomorrow, Friday", but the conundrum is you can't do that at the moment.

PN306

MS PATTON: No. This is also about staff swapping shifts because that's not allowed for either in the award. So seven days' notice for the employer, say, to change a roster, which has its own qualifications around changing a regular roster and consultation requirements in 10.3(c), but this also would suggest unless there's particular circumstances, that may not be able to occur either, the swapping of shifts.

PN307

THE COMMISSIONER: Yes.

PN308

MR LIGGINS: We have put on evidence in the other awards which we would put on in this and it's just simply a list of the circumstances where, sometimes at short notice, employers or employees might want to agree to change a shift.

PN309

THE COMMISSIONER: Yes.

PN310

MR LIGGINS: And often it is last-minute circumstances, so that's what it's about. It's not about changing their primary employment contract, which requires certain things to be done, it's about those often last-minute or those type of things, a request by the employer or the employee and it's agreed to, and we argue that, particularly in our environment, we need to have the ability to do that on shorter notice where there's agreement than seven days.

PN311

THE COMMISSIONER: Yes.

PN312

MR LIGGINS: In effect, people would probably be breaching that in most places that don't have agreements at the moment.

PN313

THE COMMISSIONER: Yes, they would just be swapping them.

PN314

MR LIGGINS: Yes, they would.

PN315

THE COMMISSIONER: All right.

PN316

MS SVENDSEN: Whether it's technically a breach but - - -

PN317

MR ROBSON: Yes, we feel the same way. We're not sure it's either specifically forbidden or permitted by the award.

PN318

THE COMMISSIONER: Sure. All right, Mr McCarthy, it would be worth - can I get - what's the best way to do this? It would be good for you to - - -

PN319

MS SVENDSEN: I'm just sending Andrew the clause that SCHADS - I've just emailed to you the clause that we agreed in SCHADS, Andrew.

PN320

MR MCCARTHY: Yes.

PN321

THE COMMISSIONER: So have a look at that. If that becomes the platform for which - - -

PN322

MS SVENDSEN: It's at least something to talk from.

PN323

THE COMMISSIONER: Yes.

PN324

MR MCCARTHY: Yes, okay.

PN325

THE COMMISSIONER: Item 9 the employers intend to pursue. Item 10 is connected, I suppose, rostering:

PN326

Allowance for employees who are the subject of a unilateral employer-imposed roster change.

PN327

Is this irrespective of whether it's seven days' notice or not?

PN328

MS SVENDSEN: It was really within the seven days.

PN329

THE COMMISSIONER: It is really - - -

PN330

MS SVENDSEN: Contemplating that one. It goes back to change of shift allowance, Commissioner. You should know all about those things.

PN331

THE COMMISSIONER: I know all about change in shift allowance, as you know. All right. I was assuming that that was more of a - - -

PN332

MS SVENDSEN: Ambit claim?

PN333

THE COMMISSIONER: Yes.

PN334

MS SVENDSEN: Yes, I'll acknowledge that might be.

PN335

THE COMMISSIONER: And perhaps connected to the sub seven days.

PN336

MS SVENDSEN: It's connected to the sub seven days issue.

PN337

THE COMMISSIONER: Yes. So HSU is considering whether to pursue?

PN338

MS SVENDSEN: Yes.

PN339

THE COMMISSIONER: That's fine. Item 11.

PN340

MS SVENDSEN: Item 11 is also marginally hooked up in the minimum engagement provisions that are the subject of the Full Bench AM2014/196 and 197, the Casual and Part-time Full Bench, which has a minimum engagement provision.

PN341

THE COMMISSIONER: All right.

PN342

MS SVENDSEN: But it is actually focused at the provisions in sleepover and broken shifts. So, while they are the same provisions in relation to the minimum engagement provisions applying to each of those - - -

PN343

THE COMMISSIONER: Yes, I've got you. In other words, the Casual/Part-time Full Bench, your understanding of what's being contemplated there will be whether to adopt four - - -

PN344

MS SVENDSEN: The claim is for a four-hour minimum engagement clause.

PN345

THE COMMISSIONER: Irrespective of casuals or part-time or anything? Obviously full time doesn't - - -

PN346

MS SVENDSEN: The minimum engagement provision actually applies to casual and part-time, so that's the application and that's what is being considered.

PN347

THE COMMISSIONER: Yes.

PN348

MS SVENDSEN: This provision is moving a minimum engagement for broken shifts. I have focused it at four hours because that's the claim at the Part-time/Casual Full Bench, but it might not be four hours, is really what I'm saying, but what I'm actually talking about in this claim is around ensuring that minimum engagement provisions apply to each part of the broken shift and to each part of the sleepover.

PN349

THE COMMISSIONER: Yes, I get that, but is the sensible way to proceed, having regard to the resources that's gone into the casual/part-time case, that you would - tell me if I've got this wrong - wait and see what happened there and then your position - let's just say that settles on a minimum four-hour engagement for casuals and part-time across the board, you would then agitate for - or it might be some other number - but whatever the number, you would then agitate for that to be applied to the circumstances of sleepovers and broken shifts?

PN350

MS SVENDSEN: Yes.

PN351

THE COMMISSIONER: That is what you intend to do?

PN352

MS SVENDSEN: Yes.

PN353

THE COMMISSIONER: All right. It is probably just a matter of waiting to see what that is and your reaction to that will be a function of the outcome of the other case, one would have thought.

PN354

MS SVENDSEN: Yes.

PN355

THE COMMISSIONER: Is that buzzing in my head or is - - -

PN356

MR LIGGINS: No, it's here.

PN357

THE COMMISSIONER: That's good. Just on that from the employers, any sense of how skinny, if you like, shifts get in sleepovers and broken shifts? To cut across it, I'm assuming that sleepovers are going to be less of an issue just because of the nature of sleeping, generally taking eight hours or more, as opposed to broken shifts, which can be - - -

PN358

MS PATTON: I have to say, the broken shift one is the one of interest a little bit more. I don't know how prevalent they are in residential aged care facilities for broken shifts. I know they are used, that's not to say they're not used, but whether they would be used similar to my understanding in home care where you do have shorter shifts where people do stints at clients, employees under the Aged Care Award, I would suspect they are doing longer periods with each broken shift - with each shift in a broken shift.

PN359

MR LIGGINS: It's one shift from start to finish, so it's just got more than one break in the middle of it.

PN360

MS PATTON: Periods of work in a shift.

PN361

MR LIGGINS: In the sleepover one in the SCHADS Award, there's a four-hour minimum that's got to be attached to a sleepover, but then the payment for work performed during the sleepover is considerably different to how that's paid for in here because this one differentiates between emergency and non-emergency and if it's non-emergency, you can be hit up from the start of the work to the end of the whole broken shift period, even if it was only a few minutes, whereas in SCHADS, it's not that way at all.

PN362

THE COMMISSIONER: Yes.

PN363

MR LIGGINS: We would have some significant hesitation if there was too much required to be attached when it has got a completely different way and more onerous in terms of the penalty.

PN364

THE COMMISSIONER: I see.

PN365

MR LIGGINS: Certainly broken shifts are more utilised in home care, but they are also utilised in aged care, but I would have thought, or I think, it's more to do with the kitchen staff preparing meals, et cetera, more so than the care staff. It's not common for care staff to be working broken shifts, in my understanding, but it would be more common for the circumstance to occur in preparation of meals at different times of the day.

PN366

THE COMMISSIONER: All right.

PN367

MR ROBSON: I think it's considered fairly common practice just across cooks and chefs to - you know, a normal working week is two split shifts and three straight shifts, depending on whether you are going to be covering lunch or not or working late to cover later evening meals.

PN368

THE COMMISSIONER: All right.

PN369

MR LIGGINS: We would certainly have a problem if the suggestion was that each part of that single shift between the breaks had to be four hours because that would be not workable.

PN370

MS PATTON: Yes, no longer a broken shift because two periods of working at a four-hour minimum would start to be eight hours.

PN371

MR LIGGINS: That would be a big problem because that's not the way it's done at the moment.

PN372

THE COMMISSIONER: Yes, that's what I am trying to get a feel for. But if it was three hours - - -

PN373

MR LIGGINS: At the moment, part-timers, their minimum start is two hours, so that two hours is a broken shift, possibly a broken shift. You then have considerable implications if that went to four.

PN374

THE COMMISSIONER: Yes.

PN375

MR LIGGINS: Then if, additionally, the four applied to the periods of work within a broken shift, that would be a disaster for us and we would obviously strongly oppose that situation.

PN376

THE COMMISSIONER: All right, so it has got big implications for broken shifts at four hours. Strongly opposed. All right.

PN377

MR ROBSON: It would be your understanding, wouldn't it, guys, that each sleepover a person - there's an attached shift to sleepovers?

PN378

MS SVENDSEN: Not in this one.

PN379

MR LIGGINS: Not in the award, though, is there?

PN380

MS SVENDSEN: No, there isn't in the award. I think it would be - - -

PN381

MR LIGGINS: Certainly all the agreements there are.

PN382

MS SVENDSEN: I think it would be incredibly unusual for it not to be. Yes, you're right, we've got that attachment in terms of SCHADS where - - -

PN383

MR LIGGINS: It's four hours.

PN384

MS SVENDSEN: - - - work has to be attached to one or both ends of the sleepover and, if it's both - - -

PN385

MR LIGGINS: The minimum of four.

PN386

MS SVENDSEN: - - - at least one has to be a minimum of four. That's been there for a long time.

PN387

MR LIGGINS: And then I have to say this - - -

PN388

MS SVENDSEN: There isn't actually a provision, but I'd actually be surprised if sleepovers were worked without hours attached.

PN389

MS PATTON: I think it has to be because it says 15.5.

PN390

THE COMMISSIONER: Yes.

PN391

MR LIGGINS: It wouldn't be possible because you can't just lob into the place and start doing it, you're - - -

PN392

MS PATTON: But in here it's saying it has to be continuous.

PN393

MS SVENDSEN: Yes, it does have to be continuous, it's just not got a minimum set of hours.

PN394

MR LIGGINS: The minimum is, at the moment, the shift minimum start, and so for a full-timer, it would be a four-hour minimum, for a part-timer, it's two. That's already there, that a worker's sleepover, as a minimum, they have to have an attached shift of two hours for a part-timer.

PN395

MS SVENDSEN: Yes, because it has to be continuous with work and a minimum amount of work would be a two-hour minimum engagement.

PN396

MR LIGGINS: Yes.

PN397

THE COMMISSIONER: Back on the broken shifts, how skinny do you go on broken shifts? Do they go down to an hour?

PN398

MR LIGGINS: The periods of work within a broken shift, yes, would do that.

PN399

MS SVENDSEN: We would argue they shouldn't be anyway because we'd argue that the provisions of minimum engagement is for a shift.

PN400

MR LIGGINS: And a broken shift is a single shift with more than one break so - - -

PN401

MS SVENDSEN: Yes, we've had this argument, which is another reason we're running it. We've actually had an employer in Victoria attempt to do a minimum engagement of one hour on the basis of four 15-minute shifts or 15-minute periods of work. Funnily enough, that's one of the issues that we don't want to be able to happen, so that's part of the broken shift, in terms of the minimum engagement issue for us being applicable to each period of work within a broken shift, even if that minimum engagement doesn't change from what it currently is.

PN402

THE COMMISSIONER: Yes.

PN403

MR LIGGINS: That's the tip of the tail wagging the dog, though. I'd have trouble supporting 15-minutes scenarios, but to turn the 15 minutes into four hours for each of the periods of work, that's completely at the other end of the scenario.

PN404

MS SVENDSEN: As I said, the minimum engagement of four hours is the claim generally, per se, so that's about it being the whole issue. Regardless of whether that - leaving that aside, so if there's no change to the current minimum engagement terms in the award, we would still be seeking that the minimum engagement applied to each period of work within a broken shift - to be clear.

PN405

MR LIGGINS: Yes, that's clear.

PN406

THE COMMISSIONER: Which slightly changes your answer to earlier, which was your reaction to that will be a function of what comes out of that because the answer is, "Well, even if the Full Bench in the PT/casual case doesn't change that at all in its existing provision, that still has implications for you if it is applied to broken shifts."

PN407

MR LIGGINS: Very much so.

PN408

THE COMMISSIONER: All right. Item 12 is four hours for all employees. Why is this a separate issue?

PN409

MS SVENDSEN: Because it has just been lodged as a separate issue. It's actually the minimum engagement that applies and that has been referred to - - -

PN410

THE COMMISSIONER: That is absolutely with the Full Bench.

PN411

MS SVENDSEN: Yes.

PN412

THE COMMISSIONER: That won't need to be progressed here. All right. Item 13, delete provision or, in the alternative, provide for an allowance and overtime to be paid. We are back with the minimum engagement for each shift.

PN413

MS SVENDSEN: Yes. I guess the "delete provision" - we're not a fan of broken shifts.

PN414

THE COMMISSIONER: Are you actually going to pursue the deletion of the broken shifts provision?

PN415

MS SVENDSEN: Probably not. We are probably going to pursue it as an alternative rather than a stand-alone on its own. We have actually identified that in other awards, too, as deletion is our preference, but, in the alternative. We have talked about those provisions, essentially.

PN416

THE COMMISSIONER: Except for the allowance and overtime, there is no broken shift allowance in this award at the moment.

PN417

MR LIGGINS: What does the overtime relate to, Leigh?

PN418

MS SVENDSEN: Provision when overtime applies. I think overtime applies at double time after 12 hours.

PN419

MR LIGGINS: Yes, it does.

PN420

MS SVENDSEN: Yes, and it was really providing that that would actually be at a higher rate. Working beyond 12 hours is really - - -

PN421

MR LIGGINS: That was because the span of the broken shift is typically that 12-hour span.

PN422

MS SVENDSEN: Yes.

PN423

MR LIGGINS: And if you did go outside it, it's not just OT, it's double time.

PN424

MS SVENDSEN: Yes.

PN425

MR LIGGINS: But also it's possible that a person could be on overtime within the broken shift if they worked beyond the ten hours, if they physically work. I am just trying to understand what's the additional concept that you are trying to introduce by reference to overtime?

PN426

MS SVENDSEN: No, no, it's not an additional concept, but the rate of overtime would be higher.

PN427

MR LIGGINS: Even if it's within the 12-hour span? Because it's double time outside but within - - -

PN428

MS SVENDSEN: I can't actually imagine how you would get double time within a 12-hour span.

PN429

MR LIGGINS: No, that's my point. The most it would probably be is time-and-a-half because you've got your periods of break.

PN430

MS SVENDSEN: My issue is after 12 hours is working in excess.

PN431

MR LIGGINS: You want more than double time?

PN432

MS SVENDSEN: Yes. All right, now I get it. I was confused, now I'm not and, yes, we oppose that. We have already put double time in there as the sweetener for the fact that, yes, it's supposed to be a 12-hour span and if it goes outside, yes, have double time. That is not just overtime, that's penalty, so we would not be interested in going any higher than that.

PN433

THE COMMISSIONER: All right. So you are still pursuing that?

PN434

MS SVENDSEN: Yes.

PN435

THE COMMISSIONER: You want more than double time for work outside 12 hours. Is that the allowance and the overtime issue all together? That is the one issue?

PN436

MS SVENDSEN: Yes, it's all in on broken shifts; it wouldn't be separated in any claim. This is a better provision for broken shifts.

PN437

THE COMMISSIONER: All right.

PN438

MS SVENDSEN: We are actually not pursuing the sleepover allowance rate at the moment at this stage.

PN439

THE COMMISSIONER: Item 4?

PN440

MS SVENDSEN: Fourteen.

PN441

THE COMMISSIONER: Sorry, item 14 no longer pursued, pressed, or other, by HSU. Item 15, anonymous - - -

PN442

MS SVENDSEN: "Sleepover provisions aren't fair" is a fairly accurate summary of those submissions.

PN443

THE COMMISSIONER: For the record, we don't have a record - it's made anonymous - we don't know whether this is put - it's unlikely to proceed anywhere in the absence of an individual identifying themselves and indicating they will bring evidence. Unless that occurs in the next period where we will start to formulate what the claims are, I will note it is unlikely to proceed any further.

PN444

Item 16 - United Voice?

PN445

MR ROBSON: This deals with the sleepover clause. We're still thinking about the exact wording that we're looking for, but there are, I suppose, two big things that we would like to see changed. Currently in the award at 15.3(a), the span for a sleepover will be between eight hours and 10 hours on any one night. We feel that 10 hours is too long and we would like to bring it in line with the SCHADS Award to a continuous eight hours.

PN446

The other issue that we will be pursuing is the rate at which work performed during - - -

PN447

THE COMMISSIONER: Sorry, 15.3 in the Exposure Draft?

PN448

MR ROBSON: Yes.

PN449

THE COMMISSIONER: Not the current award. You said "the current award".

PN450

MR ROBSON: Apologies, the Exposure Draft. The other issue is the rate of payment for that. Currently full-time employees are paid overtime for all hours worked during a sleepover; part-time employees are paid at overtime rates after having worked a certain number of hours on a day or in a week, and casuals are only paid at overtime rates after working 38 hours in a week and then working on a sleepover. We think everyone should be paid at the overtime rate and, again, this is bringing us into line with the provisions in the SCHADS Award where all work during a sleepover is paid at OT.

PN451

THE COMMISSIONER: So the key changes are the span would be no more than eight hours and you say that's the same as the SCHADS?

PN452

MR ROBSON: Yes.

PN453

THE COMMISSIONER: And for all employees, including casuals?

PN454

MR ROBSON: Including casuals.

PN455

THE COMMISSIONER: They are the ones missing out at the moment, from your perspective; correct?

PN456

MR ROBSON: Yes.

PN457

THE COMMISSIONER: Including casuals, to get - what is it - OT for?

PN458

MR ROBSON: All hours worked during the sleepover.

PN459

THE COMMISSIONER: So they are the two additional rights created?

PN460

MR ROBSON: Yes.

PN461

THE COMMISSIONER: Is it necessary to redraft the clause entirely to do that?

PN462

MR ROBSON: No, we are not looking to redraft the entire clause.

PN463

THE COMMISSIONER: No, it's just enshrine those rights?

PN464

MR ROBSON: Enshrine those things.

PN465

THE COMMISSIONER: Yes, all right.

PN466

MR ROBSON: We have flagged that we may want to change the definition of emergency work, but I think at this stage, the way it's been written in the Exposure Draft is probably fine with us, but we would provide wording for that when we came to the draft determination stage.

PN467

THE COMMISSIONER: All right. Views from the other unions about this claim?

PN468

MS SVENDSEN: No, we have discussed it and we support it.

PN469

THE COMMISSIONER: You support it. ANMF?

PN470

MR MCCARTHY: We don't oppose it.

PN471

THE COMMISSIONER: You don't oppose it?

PN472

MR MCCARTHY: We don't oppose it, no.

PN473

THE COMMISSIONER: Employers?

PN474

MR LIGGINS: Particularly 15.3(f) is significantly different in the Aged Care Award to what it is in the SCHADS Award in terms of the payment. This differentiation between emergency and non-emergency is significantly different. If you do something that's deemed non-emergency, it has got very severe potential implications in terms of payment.

PN475

THE COMMISSIONER: All right.

PN476

MR LIGGINS: It wouldn't be a matter of simply whacking overtime onto that because the whole entitlement is quite different. If there was to be some change, then it would want to understand and deal with that particular issue as well.

PN477

THE COMMISSIONER: Yes.

PN478

MR LIGGINS: The clause in this award, I guess the advantage from the employees' point of view different to SCHADS is that there's a significant disincentive to not have employees performing what would be seen as non-emergency work during that time. For instance, if the non-emergency work were, you know, five minutes just before halfway through and five minutes after halfway through, then the whole shift would be paid for and you've done 10 minutes' work. That outcome is not possible in the SCHADS Award, but in this award, it is and it certainly garners the employer's focus in terms of directing people what you don't do during the sleepover and what you can do because of that implication.

PN479

THE COMMISSIONER: Yes.

PN480

MR LIGGINS: It has the effect that if there's too much of the non-emergency going on, then the incentive would be to turn it into a stand-up shift and not have a sleepover shift in the first place. So, if there's a playing around with that whole provision, then even thought you might say it provides, or I would suggest it doesn't provide additional remuneration, but it certainly would have a significant effect on people's decision to keep doing sleepovers.

PN481

I understand your primary goal would be to kill off sleepovers, if you could. Well, this clause, the way it's written, has the effect of not making them particularly a favourite course unless we're talking about emergency. That is the only point I basically say to what you're proposing, that I'm not sure that changing this would give the outcome that you're actually - your preference outcome.

PN482

MR ROBSON: I am not sure getting rid of sleepovers entirely is our preference outcome. I think there's a concern from my branches that in the use of emergency work, it's becoming more and more common and the fact that routinely part-timers and casuals are being rostered to do emergency work - sorry, being rostered to doing sleepovers, they end up doing emergency work and they are being paid for hours that are meant to be outside the ordinary and they are receiving - their base rate of pay is problematic.

PN483

I certainly hear what you are saying and if there's room for discussion on this, we would be inclined to narrow the issue, but I suppose, at this stage, we would be pursuing it.

PN484

MR LIGGINS: It sounds more like the issue for you is that people are misunderstanding/misinterpreting, either accidentally or for other reasons, the distinction between emergency and non-emergency.

PN485

MR ROBSON: Yes.

PN486

MR LIGGINS: More so than most of the other issues. Would that be fair?

PN487

MR ROBSON: I think that is partly an issue, but there's also the issue about various work that I think what we wouldn't dispute is of an emergency nature that's being worked. I think the issue for casuals is at the moment, it's too cheap to roster them on. I mean, there's a potential that they may be put on there simply with a shift the following morning or the night before and in 15.5, there would be - and then the only other thing that needs to be paid is the allowance and then you'd just be paid on a casual rate for any emergency work that's been done in between there with none of the extra rules for the performance of non-emergency work.

PN488

I think the same for part-timers, and there it's really there's an issue with emergency work about doing work outside of ordinary hours at ordinary rates of pay.

PN489

MS SVENDSEN: There's a general position in this award which is actually a matter that comes up a little bit later on ours about overtime only being payable to part-timers and casuals after 38 hours, excluding a couple of minor issues in relation to things like more than 10 hours in a day and more than 12 hours in a broken shift, those sorts of things, but principally the provision of overtime for this award is in excess of 38 hours in a week and, as a consequence of those provisions, there are fall-outs in terms of such as the sleepover clause that has impact about that work, which also has impacts in relation to using - this one in particular - using casual staff for sleepovers instead of ongoing employment, instead of people in ongoing employment. There is no exclusion in this for using casuals just for sleepovers.

PN490

THE COMMISSIONER: Part-time employees get overtime for time worked in excess of their rostered hours in any one day?

PN491

MS SVENDSEN: Their rostered hours are the rostered hours that are set on their engagement, which could be changed. It's not - - -

PN492

THE COMMISSIONER: Under 10.3?

PN493

MS SVENDSEN: Yes, and it's about those engagement provisions rather than if they are rostered to work an eight-hour shift and they work 10 hours because they're actually not paid overtime until they've worked 38. They would get normal hours.

PN494

SPEAKER: Yes, I get that, but only if they've agreed to vary it.

PN495

MS PATTON: Yes, (indistinct).

PN496

SPEAKER: They haven't agreed.

PN497

MS PATTON: Only if they get overtime if - - -

PN498

SPEAKER: If they haven't agreed, they get it - in writing, that's right.

PN499

MS PATTON: - - - they haven't agreed in writing at 10.3(c), whatever it is.

PN500

THE COMMISSIONER: All right, item 17? Weekend work, payment for shift allowances at casual loading for weekend work.

PN501

MS SVENDSEN: That's S4. It's just been - - -

PN502

THE COMMISSIONER: It's the same?

PN503

MS SVENDSEN: Yes.

PN504

THE COMMISSIONER: Is it?

PN505

MS SVENDSEN: Yes.

PN506

THE COMMISSIONER: It's the same as casual loading be paid in addition to other shift allowances and weekend, all right. Item 18, overtime:

PN507

Employees should be paid overtime when they work beyond their rostered hours in excess of the daily maximum of 10 hours or on an average weekly hours basis.

PN508

MS SVENDSEN: That goes to what I was just saying in relation to overtime provisions. The effect of the overtime provisions are that a part-time employee doesn't get overtime unless they work more than 38 hours, neither does a casual, or 10 in a day, and that's - - -

PN509

THE COMMISSIONER: So it's a part-time employee problem, this one?

PN510

MS SVENDSEN: Yes. Whereas full-time employees are entitled to overtime when they work overtime - - -

PN511

MR LIGGINS: Any extra hours.

PN512

MS SVENDSEN: Any additional hours, whether that's extending a shift or working overtime on sleepover, working hours on sleepover instead of sleeping, whatever it is, and it's about - some of this is a little bit of clarity, some of it is about saying that overtime provisions should apply to people when they're rostered for a shift and then stay back for longer, which doesn't necessarily apply, and it's making that clear, but other stuff is we're definitely saying that overtime applies for part-timers when they work in excess of their rostered hours, whether it's less than 38 or not.

PN513

THE COMMISSIONER: But you have got that now.

PN514

MS SVENDSEN: No. Well, 10 hours in a day, yes.

PN515

THE COMMISSIONER: No, as per what I was reading earlier, you get it if you work outside your agreed hours.

PN516

MS SVENDSEN: Yes - no, that doesn't work.

PN517

THE COMMISSIONER: That's what it says.

PN518

MS SVENDSEN: I know, but it doesn't say that in the overtime clause and so it needs to be very clearly stipulated. It also says they don't get overtime except in excess of 38 hours a week.

PN519

MS PATTON: I read this clause to say you get - - -

PN520

THE COMMISSIONER: I read it differently than you do then.

PN521

MS PATTON: - - - overtime after 38 hours a week or 76.

PN522

THE COMMISSIONER: Yes.

PN523

MS PATTON: You get it after 10 hours a day and you'd get it if you didn't agree to do additional hours under 10.3 and kind of were directed to say, "Well, can you stay on and then you'll get overtime."

PN524

MS SVENDSEN: The only time that the additional hours is applied in relation to not working - sorry - the only time additional hours by agreement and not getting overtime is applied is where somebody works an additional shift, not when they stay back, and then the 38 hours is applied.

PN525

MR LIGGINS: No, that's not the way that we've interpreted that, unfortunately. I'd love it if that was the case, but it's certainly not the way our members understand that who aren't on agreements. That's not what it says. If you don't get written agreement and they do extra work, they get OT and that's why we've worked - what - three times to get the written agreement ripped out of the damned thing, but, anyway, it's there. This happens regularly and there's just reams of papers signed, you know, "I agree to work additional hours on such and such a day", that type of scenario.

PN526

THE COMMISSIONER: I think this goes back to that actual issue and the notion of what is agreement and the way in which it works probably connects up with what Mr McCarthy raised very early on about the imbalance and whether there's real agreement. What does agreement in writing mean? I just would have thought that the answer to all of this is probably in that agreement in writing issue and to the extent that that's going to be dealt with by the other Full Bench, and until you see what happens there and what comes out of that, it might be - it's one to watch, I think. Wouldn't you agree, Ms Svendsen?

PN527

MS SVENDSEN: Yes, it's one to watch, I agree with that.

PN528

THE COMMISSIONER: I think whatever comes out of that Bench would have a significant bearing on what you decide you want to do with this, I would have thought, but, to be clear, I don't disagree that the bit that I was struggling with when I was going through these materials was I don't understand this claim because you've already got it.

PN529

MS SVENDSEN: The problem is this. It starts off with that all time worked by a part-time or casual employee in excess of 38 hours per week or 76 per fortnight is to be paid at the following rates and the provisions in there don't deal properly with any of the other issues. It doesn't start the same as a full-time employee, which says that a full-time employee will be paid the following for all work done in addition to their rostered ordinary hours on any day.

PN530

MR LIGGINS: That's because they're already rostered to work 76, so any extra hours beyond 76 or 38, so that's sort of a given, you don't need any more direction for - - -

PN531

MS SVENDSEN: That's not the reason that there's a difference. The reason there is a difference is to do with part-time work and it's got to do with the premise that part-timers are a minimum number of hours and they can work anything up to 38 hours a week without getting paid overtime. That's actually the premise on which it's based.

PN532

MR LIGGINS: Or 10 a day.

PN533

MS SVENDSEN: I understand the or 10 a day, but even that's not actually dealt with in this clause.

PN534

MR LIGGINS: Really?

PN535

MS PATTON: What's 22.2(b)?

PN536

MS SVENDSEN: Or is it dealt with at the bottom? I'll keep looking at it to try and find it now, but it's not - pardon?

PN537

MR LIGGINS: 22.2(b) makes clear.

PN538

MS SVENDSEN: That's what I was looking for. I'm not actually saying anything about the 10 hours per day. I understand that the 10 hours per day is there.

PN539

MR LIGGINS: Yes.

PN540

MS SVENDSEN: But that means everybody could be rostered six and work to 10.

PN541

MS PATTON: No, because 10.3 says that you have to get their starting and finishing times in the contract.

PN542

MR LIGGINS: Then they've got written agreement.

PN543

MS SVENDSEN: I understand what it says about that, Emma, but that is being breached all the time in terms of, you know, the way the rostering provisions are used and I understand why. I'm not actually critical of the fact that people change rosters all the time or are able to add shifts at normal hours. The thing that I am critical of is the fact that people are working a rostered shift and then being asked to stay longer because the work isn't finished and asked if they agree and, well, yes, but - and it happens at the last minute and it actually impacts on their day and they're not being paid overtime for that. It impacts on your whole organisation of your life when your hours are extended beyond what they were rostered to be.

PN544

I actually have much less problem with the fact that - and it goes to - I suppose it goes to being used to that kind of provision as well - but I have much less problem with people being asked to work additional shifts, which might be full additional shifts adding up to 10 hours in a day, but they're being asked and it's being rostered and they're agreeing to that. That is quite clearly a different form of agreement to the one about people staying back, and if they do, if they say "Yes", they are not paid overtime because they've agreed to stay and it's not - - -

PN545

MS PATTON: Yes.

PN546

MR LIGGINS: It's in writing that they agree.

PN547

MS SVENDSEN: It's not, it's not. I just - it's not - if you're a full-timer and you agree to stay, it's overtime, even if you get the hours off again later. It's actually quite clear. It used to be quite clear in a lot of pre-existing awards. It's got muddied. There didn't used to be the engagement clauses there were, so the intersection between those two things has changed the relationship to the rostering provisions and overtime provisions. They didn't used to be - in some awards they were different, in some awards part-timers were only paid overtime after 38 hours.

PN548

THE COMMISSIONER: But again this comes back - - -

PN549

MS SVENDSEN: In some awards they're paid normally.

PN550

THE COMMISSIONER: But this all comes back to then it's either an enforcement issue, which is not something that I would expect there would be an inclination to make changes for because that's another - - -

PN551

MS SVENDSEN: No, that's actually not really what I'm on about. Look, I think that there is some - - -

PN552

THE COMMISSIONER: Hang on. Wait.

PN553

MS SVENDSEN: There are problems.

PN554

THE COMMISSIONER: I haven't finished.

PN555

MS SVENDSEN: Sorry.

PN556

THE COMMISSIONER: Or it comes back to this issue about what is agreement and whether the agreements are actually real and that sort of notion, which then comes back to - it might be the agreement in writing issue partly deals with that, or maybe that doesn't deal with it at all, but that then begs the question how do you change that to remedy what I think you are saying the problem is, which is, "I'm a part-timer, I've been rostered for six hours, I've been asked to work another couple of hours and I say, 'Yes, okay', and therefore I've agreed", even if it's in writing or it's not, and you say, "I should just get paid that extra two hours that I agreed to work at overtime rates?"

PN557

MS SVENDSEN: I am.

PN558

THE COMMISSIONER: "Every time, whether I agree with it or not"?

PN559

MS SVENDSEN: And - - -

PN560

THE COMMISSIONER: Genuinely or not?

PN561

MS SVENDSEN: I don't have a difficulty with the concept of additional shifts being different.

PN562

THE COMMISSIONER: You separate that out, you - - -

PN563

MS SVENDSEN: You separate that out.

PN564

THE COMMISSIONER: You've honed in on it being the extension of a roster.

PN565

MS SVENDSEN: Yes.

PN566

THE COMMISSIONER: Yes.

PN567

MS SVENDSEN: Yes, and that's not - I just think that if it's overtime, it's clearly overtime and then you don't have the argument about consent, and the issue about additional shifts is a completely different matter.

PN568

MS PATTON: That could have high cost implications, obviously, to the employers because at the moment they are, I guess, saying to staff who regularly say, "I want extra hours", because we know this, that the employees are looking for extra hours, so when they are saying, "I want extra hours", an employer would then be saying, "I can't give them to you because - I've got them to add to your day-to-day if you want them, but I can't because it's going to have an overtime provision attached to it."

PN569

MS SVENDSEN: Or they could actually roster their rosters properly so that they actually - - -

PN570

MR LIGGINS: No, that's not a fair situation because if somebody turns up - - -

PN571

MS PATTON: I don't think that's - - -

PN572

MS SVENDSEN: Because there aren't that many emergencies.

PN573

THE COMMISSIONER: Don't speak over the top of each other.

PN574

MS SVENDSEN: There aren't that many emergencies in a day that require the extension of hours that isn't forecastable.

PN575

MR LIGGINS: Let me respond to that. What we get regularly is, "What are you doing about short shifts, people don't turn up", et cetera, et cetera. If we can't have them staying back until the new person comes in then the other people will be faced more with short shifts.

PN576

MS PATTON: Or a greater use of casuals.

PN577

MR LIGGINS: To me, this is covered by what's there. If there's written agreement, it's not OT.

PN578

MS SVENDSEN: Sorry, I don't - can you just go back to that? I don't understand what you just said to me.

PN579

MR LIGGINS: If someone is approaching the end of your shift and you get word that the person who is supposed to be starting in the next shift is not going to be able to make it for whatever reason, that's more often than not where a person on the - - -

PN580

THE COMMISSIONER: Gets called to stayed back.

PN581

MR LIGGINS: Gets asked to stay back and, if they can't, then they do the ring around and try and get someone in. It's handy if that person can stay back at least until the next person comes on. In the absence of that, those people on the following shift are working short and that's one of the biggest issues of complaint that we get from employees is when you can't fill that gap. If that asking the person to stay back was at overtime rates in every situation, as I understand you are suggesting, yes, there would more likely be more short shifts for the next one and they'd wait for someone else to come in.

PN582

To me, this is dealt with. It's not the way I want it to be dealt with, but it does say "written agreement". There is agreement required for a whole host of things in this award and outside of the award in every workplace. If you believe that the agreement isn't genuine, then that's a compliance and enforcement issue. I suppose, from an employer's perspective, I've heard enough about the unscrupulous employers who don't genuinely reach agreement. I don't believe that's the case in the majority of circumstances and if people are breaching that, then they should be brought up, and that is compliance and enforcement.

PN583

But the issue is clearly dealt with in this award the way it is. They get overtime in some situations, they don't where they agree. That is the different view to yours.

PN584

THE COMMISSIONER: All things to think about. You will have a think about whether you are going to pursue this matter, Ms Svendsen?

PN585

MS SVENDSEN: At this stage, I have got directions to pursue.

PN586

THE COMMISSIONER: All right. Item 19, ceremonial leave, the clause should be expanded to include Torre Strait Islanders.

PN587

MS PATTON: I thought this was picked up in the technical drafting.

PN588

THE COMMISSIONER: I was wondering about that.

PN589

MS SVENDSEN: Yes, because it's been agreed. It keeps getting dumped on the list, though. I think the substantive summary hasn't picked up that this has actually been agreed and put in.

PN590

THE COMMISSIONER: Thank you for that. Item 20, what fill in do we want to do here?

PN591

MS SVENDSEN: Not stuff without consultation between the parties. It's not about - in actual fact, I didn't put that in and I haven't really looked at it, but my memory is this is really about clarification of classification areas, it's not about changing them substantially. There was, at one stage, I think Mark, going back a long time, Geoff, Mark kind of talked to you at one point about (indistinct) nomenclature and some idea that he had that - - -

PN592

MR LIGGINS: Yes, I think so, but it didn't really go anywhere.

PN593

MS SVENDSEN: No. I need to actually read this and see if there's anything we really are interested in pursuing, but it would be a discussion matter anyway. I think it really goes back to - because it's so long ago - I think it really goes back to the initial idea that Mark had that I never really fully understood or got my head around.

PN594

THE COMMISSIONER: I just wonder - we've got the general clerk/typist. At some stage in our human history, we will stop talking about typists, they are gone, I think, aren't they?

PN595

MS SVENDSEN: I don't know why you're worried about it. I think we've still got animal husbandry provisions in this and the SCHADS Award, haven't we, or is it only still in the SCHADS Award? And in Health Professionals, too, I think it might be.

PN596

SPEAKER: (Indistinct) an enterprising person (indistinct) for a pet groomer.

PN597

MS SVENDSEN: Yes. On the other hand, pet therapy would now be a very valid therapy in aged care, so maybe we should be looking at animal husbandry of some sort.

PN598

THE COMMISSIONER: Was that the sort of thing you were talking about?

PN599

MS SVENDSEN: Yes, that was what I was - that was the kind of changes I was - I am only interested in dealing with now. The stuff that Mark was looking at was quite different, but I really - - -

PN600

MR LIGGINS: The real issue in the classifications, as we all know, but none of us are prepared at this stage to deal with, is the fact that there's indicative tasks, indicative positions - - -

PN601

MS SVENDSEN: Yes.

PN602

MR LIGGINS: - - - are not defined.

PN603

MS SVENDSEN: No.

PN604

MR LIGGINS: No one has the faintest idea what that means. You almost have to go back to the old HASA Award to get an inkling for what it meant in those awards because there's no definitions in this award.

PN605

THE COMMISSIONER: All right.

PN606

MR LIGGINS: So people have fallen into their respective positions and there's sort of agreement, but those indicators don't give you any help.

PN607

MS SVENDSEN: No.

PN608

MR LIGGINS: A personal carer grade 1, right, what's that, and then a 2, then a 3 and then a 4 with no definition of what any of them are.

PN609

MS SVENDSEN: And there's no definition for what they are.

PN610

MR LIGGINS: No. At some stage - not now, please.

PN611

THE COMMISSIONER: You will - - -

PN612

MS SVENDSEN: To be honest, we've kind of also fallen into the "I think this might be a post 2014 review process."

PN613

THE COMMISSIONER: So you are considering whether you will pursue this at all?

PN614

MS SVENDSEN: I think we probably won't, but, if it is, it will be the minor stuff like removing the odd thing that all parties agree to.

PN615

THE COMMISSIONER: The last one?

PN616

MR ROBSON: Yes, that's ours, I believe. This one is also dealing with classification. Aged care employee level 4 is probably bigger in scope than what we may necessarily want to run in the award review. We want to delete the requirement for a personal care worker to be required to hold a relevant Certificate III qualification so that it simply says that a personal care worker does hold the relevant Certificate III qualification.

PN617

THE COMMISSIONER: All right, I am sorry for not being very sharp, but what's the difference?

PN618

MR ROBSON: There's - - -

PN619

MS SVENDSEN: It's a cracker.

PN620

MR ROBSON: Lots and lots of people in the industry are going out and getting their certificates, but this clause allows them to be classified at a lower level simply because the employer says that they don't need a Certificate III.

PN621

MS SVENDSEN: They don't have to hold it.

PN622

MR ROBSON: So you'd be an aged care employee level 3.

PN623

THE COMMISSIONER: Right.

PN624

MR ROBSON: I suppose better employers will recognise the skill, but there are problems that have been communicated to my office that there are places where basically they won't hire someone without a certificate, but they won't - they will make it clear that there's no requirement.

PN625

MS PATTON: Recruitment practices are that they would not select candidates as personal care workers who don't have a Cert III but not pay the Cert III ACE 4 level because they haven't required it, they just haven't selected candidates that don't have it?

PN626

MR ROBSON: Yes.

PN627

MR ROBSON: I think this will probably be a work value claim if we were forced to run it. What level of opposition would we have?

PN628

MR LIGGINS: Pretty enormous.

PN629

MR ROBSON: Yes, I thought it would.

PN630

MR LIGGINS: It would kill off ACE as far as personal care work, ACE 2 and 3 and 1 because they would be a care worker, they would fit your new definition of an ACE 4, every one of them, even where they are doing the very much lower grade type of activity, just by virtue of acquiring it, even if we don't actually need it at that level. I understand what you are saying, but the way of resolving it in the way that you are talking about would have a dramatic effect. It would be that there would be, in reality, only one classification of care worker in this award for anybody who held a Cert III, and everybody will pop out and get it and "Today I'm an ACE 1 and tomorrow I'm an ACE 4, even though I'm not doing anything different in terms of my work role."

PN631

MR ROBSON: Yes.

PN632

MR LIGGINS: Particularly exacerbated by the fact that there's no definition of what ACE 1 to - sorry, care worker 1, 2, 3, et cetera, is. So you couldn't even differentiate on the basis of this is what this is. That would be a big push back by us, there's no doubt about it, and the whole - our mantra about skills acquired as opposed to skills required, that whole thing.

PN633

MR ROBSON: I suppose, as I said, we are still considering whether we will run it.

PN634

THE COMMISSIONER: Yes. It probably falls into that category we sort of talked about earlier where you might want to give consideration to whether really it's an enforcement issue, in a way, to the extent that the problem that you are seeking to solve is employers who you say are misleadingly saying, "We don't need a Cert III for this job" when actually they do, and if they actually do require a Cert III for the job, that's probably different to, "Well, we'd like to get a person with a Cert III for the job."

PN635

MS SVENDSEN: It does actually provide - if you actually have a Cert III then you actually have a different skill knowledge base on which you are drawing regardless of the work you are doing and, as a qualified nurse, I'm still a qualified nurse and I still apply that skill and knowledge to the areas that I work in, regardless of whether I'm - it's no different to the argument about employing a registered nurse and saying, "We only need you to perform the duties of an enrolled nurse and we'll employ you as an enrolled nurse." No different to that. It doesn't apply in that case.

PN636

MR LIGGINS: We've got people, though, in some of our places, RNs, for instance, they are an RN, but they haven't actually worked as an RN for ages. They will apply for a job as a carer and that's the job that we've got advertised, that's the job we want done. If we rejected them simply - - -

PN637

MS SVENDSEN: You do realise that if you employ - - -

PN638

THE COMMISSIONER: No, don't - wait until he has finished.

PN639

MS SVENDSEN: Sorry.

PN640

MR LIGGINS: If we rejected them simply because they had qualifications that we don't need - the job is clear what we want done - it's not an issue that we're employing an RN in that position. That person happens to have that, but that's the job.

PN641

MS PATTON: It also happens to be the job that they want to apply for; otherwise they wouldn't - - -

PN642

MR LIGGINS: Yes, because they don't feel - and I am going from first-hand experience here - they don't feel that they have the competency, albeit they've got the qualification, and they don't want the additional responsibility of being an RN but they're happy in their local community to be doing that job and - what - are we going to say "No"?

PN643

MS SVENDSEN: Do you realise that if that nurse is registered, they are required to abide by the - Andrew going into darkness in Melbourne - - -

PN644

MR LIGGINS: I totally agree, they - - -

PN645

MS SVENDSEN: They are required to abide by ACRA Board requirements and meet those.

PN646

MR LIGGINS: Totally. That's their responsibility, not our responsibility.

PN647

MS SVENDSEN: It won's just be theirs.

PN648

MR LIGGINS: It's their responsibility as a registered nurse.

PN649

MS CHAN: I think that's a bad example.

PN650

MS SVENDSEN: That's a very bad example.

PN651

MR LIGGINS: I don't think it is a bad example.

PN652

MS CHAN: If I've got a Masters of Law and I want to be a legal secretary, I might not be using my skill set at all, but just because I've, for instance, got my law degree, does that mean I should be paid at the same rate as a lawyer while I'm a legal secretary?

PN653

MS SVENDSEN: I can't tell you about the practising certificate requirements or any of those things, I can tell you about the nursing ones, so I can tell you - and I can also tell you that there are implications that vary in relation to qualifications and the implications for people with Cert III and Cert IV are slated to change. I don't know what's actually happening with the proposed legislation in relation to that, but they are slated to change and therefore it will have an impact regardless of whether - if they have their Cert III or Cert IV, it will have an impact on them and that will have to be taken into account at some point.

PN654

THE COMMISSIONER: Suffice to say, there might be other ways to deal with the issue. You need to have a think about that.

PN655

MS SVENDSEN: Which is a separate issue, but, yes.

PN656

THE COMMISSIONER: No, I understand that. I am going back to the original claim.

PN657

MS SVENDSEN: Yes.

PN658

THE COMMISSIONER: Cert III, and if you do want to pursue this, the employers strongly oppose it?

PN659

MR LIGGINS: Yes.

PN660

THE COMMISSIONER: All right, fair enough. I see that this sort of approach was followed in the SCHADS Award, is it? Yes? We are proposing to follow a similar path, so if we go to the next step, there would be yet another conference where you would finalise - we are making a few more advances, so we've got a few things on there - I'm not really sure what I'm doing with this list. Your minds will hone in when you start to think more, both of you, about the evidentiary case required and then you might decide that, yes, you still want to pursue all those things, or you might decide that you've got particular interests that you think are the ones that you really want to focus on. Who knows?

PN661

I was proposing to follow the same process here. Any views about that? Presumably you have got this process now, you've had a couple of conferences with the Deputy President? Yes? And it has been useful?

PN662

MS SVENDSEN: Yes, it was.

PN663

THE COMMISSIONER: Do you want to go the same road with me?

PN664

MS SVENDSEN: We might look at providing each other with some proposals in terms of matters that we - I'm not going to go to the ones that we're completely opposed to, but the ones that we might be able to reach agreement on and then have further discussions.

PN665

THE COMMISSIONER: Yes. But I just want some structure to that, so we will structure it through that same basic process. All right?

PN666

MS SVENDSEN: Yes.

PN667

THE COMMISSIONER: Which canvasses you exchanging positions on matters on which you are likely to agree, which matters you are going to pursue and which ones you are no longer pressing. So we will go down that road. I don't propose to put out a summary (indistinct) with the technical and drafting because I don't want to - to a certain extent, a lot of what is discussed today is sort of - you're starting to paraphrase your positions and that might become difficult and I don't want to put anyone in a position where I am possibly not properly representing what your position is, particularly because it might change. So we will go down this road.

PN668

This was issued in February. There was three weeks until a conference was held. You were told to, within that three-week period, circulate to each of the other parties and the Commission a short position paper summarising the status and that position paper had to be circulated at least 24 hours before the conference and then interested parties were to file a short submission confirming the substantive claims being pursued by 4 pm Tuesday 21 March. That was after the conference.

PN669

MS SVENDSEN: I think we've probably done the first step here today.

PN670

MR ROBSON: Yes, but I think this was the end of like four - six or seven - - -

PN671

MS SVENDSEN: We'd already had several conferences, yes.

PN672

MR ROBSON: Maybe what we want to do is something slightly different from that.

PN673

THE COMMISSIONER: All right.

PN674

MR ROBSON: Parties circulate to each other drafts, then we have a further conference to discuss it, and then, after that, we can sort it out amongst ourselves if there's any agreements to be reached and then file a position paper sort of - - -

PN675

MS SVENDSEN: On agreed matters.

PN676

MR ROBSON: On agreed matters at the same time as we're filing our draft determinations on things we take to arbitration.

PN677

THE COMMISSIONER: Yes.

PN678

MS SVENDSEN: We had actually had several conferences, yes, maybe six or eight, prior to those directions and there were rafts of things - we were focused on some particular matters and there were a raft of things that we hadn't even touched on in the summary, so I kind of think - and they were more contentious than the matters that are here before us - even the contentious ones - so that's why the eight conferences before - and about five times as many - - -

PN679

THE COMMISSIONER: Really?

PN680

MS SVENDSEN: Yes, they were really contentious, yes.

PN681

THE COMMISSIONER: Yes.

PN682

MS SVENDSEN: I think I agree with Michael that we really today have got an idea of the position of everybody that we're talking about in the first position paper in those draft directions, so that what we would be much better doing now is putting - we all have an idea about probably what we think might be possible to reach agreement on, so if we put some draft proposals on the table and circulate those and come back for another conference with you for discussions.

PN683

THE COMMISSIONER: All right, yes.

PN684

MS SVENDSEN: And that is probably all we need.

PN685

THE COMMISSIONER: No worries. So we're really jumping to step 4?

PN686

MS SVENDSEN: Yes.

PN687

THE COMMISSIONER: You will file a short submission confirming your substantive claims by a particular - what sort of date are we looking at? Three or four weeks?

PN688

MS SVENDSEN: No, no. I mean maybe it's not quite the same. We're not looking at wording exactly. I'm looking at kind of three, that we exchange some drafts for discussion, come back and have some discussion with you and then go to filing the drafts and if an agreed position - - -

PN689

THE COMMISSIONER: That is actually similar to what is in here.

PN690

MS SVENDSEN: It is, is it?

PN691

THE COMMISSIONER: Yes, you are actually saying - - -

PN692

MS SVENDSEN: I was actually looking for it to pull it up, but I can't find it.

PN693

MS CHAN: I can't seem to find it either.

PN694

MS SVENDSEN: I remember it, but I can't actually find it.

PN695

THE COMMISSIONER: Have a look. All you did in the first stage of those directions was do what you are talking - is that what you are talking about, Ms Svendsen, which is just circulate, "Look, these are our general views and ideas and positions" - that is really more about an exchange between you - then there is a conference, then you do a final, "All right, this is what we're really going for"? Are you happy to do it that way?

PN696

MS SVENDSEN: Yes.

PN697

MR LIGGINS: Yes.

PN698

THE COMMISSIONER: Similar timeframes, if I set it in a similar timeframe?

PN699

MS SVENDSEN: Yes.

PN700

MR LIGGINS: Yes.

PN701

THE COMMISSIONER: Which would mean another conference in about - whatever is realistic. I don't want to set conferences that you can't then get to. Four weeks, say, end of June?

PN702

MS SVENDSEN: I'm in Bali.

PN703

THE COMMISSIONER: Well, we can go there.

PN704

MS SVENDSEN: I suggested Venice to His Honour Justice Ross one time and he was a bit negative about that really, wasn't he, a bit negative about listing in Venice.

PN705

MR ROBSON: I think Riordan C is taking everyone for an inspection in the Alpine Awards.

PN706

MS SVENDSEN: I've been watching the wrong award.

PN707

MR LIGGINS: Are there any resort awards?

PN708

MS SVENDSEN: There are.

PN709

MR ROBSON: No, we killed off the resort islands award proposal at modernisation.

PN710

THE COMMISSIONER: 7 July?

PN711

MS SVENDSEN: I am not back until the week after.

PN712

THE COMMISSIONER: You are back on the 14th?

PN713

MS SVENDSEN: I am, but I've got National Executive in the morning of that day. I could do the afternoon easily.

PN714

THE COMMISSIONER: What about other days that week?

PN715

MS SVENDSEN: Yes, Tuesday?

PN716

MR ROBSON: Unfortunately, I've got two days of bargaining on the 11th and 12th.

PN717

MS PATTON: The 13th?

PN718

MS SVENDSEN: Yes, that's actually a day Executive, it's a day and a-half. See what happens when you go on leave?

PN719

MR ROBSON: The other dangerous thing is that from 15 July to 16 August, I will be in Europe, and if we absolutely need to schedule something - - -

PN720

THE COMMISSIONER: It won't be any later than this week of 10 July.

PN721

MS SVENDSEN: Is the week before in June possible?

PN722

MS CHAN: That is what I was going to say.

PN723

MS SVENDSEN: The 22nd/23rd? That's three weeks from now.

PN724

MR ROBSON: Yes, I'm happy with the 22nd and 23rd.

PN725

THE COMMISSIONER: I can't do either of those.

PN726

MS SVENDSEN: The 21st?

PN727

THE COMMISSIONER: No.

PN728

MS CHAN: Does the 10th work for anybody if we're not doing (indistinct) that week?

PN729

MS SVENDSEN: The 10th?

PN730

MS CHAN: Yes.

PN731

MS SVENDSEN: The 10th is a Saturday.

PN732

MR ROBSON: No, 10 July.

PN733

MS CHAN: 10 July.

PN734

MS SVENDSEN: July?

PN735

MS PATTON: Were there no dates in the last week of June?

PN736

MS SVENDSEN: Yes, I could do 10 July. I might be jet-lagged.

PN737

MS PATTON: Sorry.

PN738

MS SVENDSEN: I can do 10 July.

PN739

THE COMMISSIONER: You can't do the 11th?

PN740

MS SVENDSEN: I could do the 11th.

PN741

MS PATTON: Michael can't, though.

PN742

THE COMMISSIONER: What are you doing on the 11th?

PN743

MR ROBSON: Bargaining. I can get someone else to come in if it's the absolute - - -

PN744

THE COMMISSIONER: Bargaining with an employer?

PN745

MR ROBSON: Yes.

PN746

THE COMMISSIONER: You can't move that this far out?

PN747

MR ROBSON: No, we've got eight people flying in from each different State and Territory and the hotel rooms are booked.

PN748

THE COMMISSIONER: What about on the 12th?

PN749

MR ROBSON: I have got two days with them, unfortunately.

PN750

MS CHAN: Is the 10th a no go?

PN751

MS SVENDSEN: The 10th is okay by me.

PN752

MR ROBSON: The 10th is fine for me.

PN753

MS PATTON: The 10th is fine for me.

PN754

MS CHAN: The 10th is fine for me.

PN755

THE COMMISSIONER: Why can't you do the 14th? I am trying to avoid the 10th. I don't want to do the 10th, but I will do it if I have to.

PN756

MS SVENDSEN: I can do the 14th in the afternoon.

PN757

MS PATTON: I can do the 14th as well.

PN758

MR ROBSON: That also works for me.

PN759

MS SVENDSEN: He doesn't want to go on Friday, not on the Friday night. We'll just have to finish it. I'm in the same boat. We'll have to finish it quick.

PN760

THE COMMISSIONER: What time could you start on the Friday?

PN761

MS SVENDSEN: Midday.

PN762

THE COMMISSIONER: You can start at midday?

PN763

MS SVENDSEN: Yes.

PN764

THE COMMISSIONER: That's all right. All right, Friday the 14th. I am not missing anything in the diary, am I? No. Friday the 14th at midday. All good. All right, I will circulate some directions as well and we will all get together then.

PN765

MR LIGGINS: Commissioner, on another issue, is it likely that all of the work that you and Leigh did with the Exposure Draft will lead to a revised exposure draft?

PN766

THE COMMISSIONER: Yes, at some stage, if you would like to see one. That will be sterling, you're telling me?

PN767

MR LIGGINS: Yes.

PN768

THE COMMISSIONER: All right, I have taken that on notice and I will get back to you on that. Yes, I similarly don't want to see that work wasted, and it won't be. I will just get the Award Modern Team to work some more overtime and we'll be fine.

PN769

All right, thank you all. That you, Mr McCarthy.

ADJOURNED UNTIL FRIDAY, 14 JULY 2017 [11.56 AM]