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Fair Work Act 2009                                       1056861






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Social, Community, Home Care and Disability Services Industry Award 2010








1.02 PM, WEDNESDAY, 3 APRIL 2019


JUSTICE ROSS:  Can I have the appearances in Sydney, just starting from one end and going to the other.


MR S BULL:  If the court pleases, my name is Bull.  I appear for United Voice with my colleague, Ms Dabarera.


JUSTICE ROSS:  Thanks.  There's no need to stand.


MR M ROBSON:  If the court pleases, Robson, initial M, for the ASU.


JUSTICE ROSS:  Thank you.


MR ROBSON:  I should say it's the Commission rather than - - -


JUSTICE ROSS:  That's all right.


MS R LIEBHABER:  If the Commission pleases, Liebhaber, initial R, for the HSU.


JUSTICE ROSS:  Thank you.


MR T ROBERTS:  If the Commission pleases, Roberts, initial T, for the Australian Council of Trade Unions.


JUSTICE ROSS:  Thank you, Mr Roberts.


MR B FERGUSON:  If the Commission pleases, Ferguson, initial B, for the Australian Industry Group.


MS N SHAW:  If the Commission pleases, Shaw, initial N, for AFEI.


MR L IZZO:  If the Commission pleases, Izzo, initial L, seeking permission to appear on behalf of the NSWBC and ABI.


JUSTICE ROSS:  Is Mr Scott on the phone?


MR IZZO:  Mr Scott and Ms Tiedeman are in Newcastle.


JUSTICE ROSS:  In Melbourne?


MR M PEGG:  If the Commission pleases, Pegg, initial M, for National Disability Services.


MR M PERICA:  Your Honour, if the Commission pleases it's Perica, initial M, for the CPSU.


JUSTICE ROSS:  Have I missed anyone?


MS E VAN DER LINDEN:  I think you might have missed Adelaide, just because I was running a few minutes late.  I apologise.


JUSTICE ROSS:  That's all right.


MS VAN DER LINDEN:  Van der Linden, initial E, for business SA.


JUSTICE ROSS:  All right.  Thank you.  Mr Izzo?


MR IZZO:  Your Honour, as you would be aware, we have filed an application in relation to amending this particular award to introduce a new form of employment in the award - a new type, I should call it, which is called "flexible ongoing".  Our intention at all times has been that the filing of this particular application is not intended to necessarily derail the existing proceedings that are - - -


JUSTICE ROSS:  No, no.  Sure.


MR IZZO:  - - - currently on foot in that regard, because there is existing litigation about a variety of entitlements.  That, in our view, shouldn't be affected by what we've filed.  In short, what we have filed is an application to introduce this type of employment which will largely mirror the casual employment provisions in the award as they are now or as they ultimately turn out to be.


Those casual employment provisions are modified in two substantive ways.  One is to arrange for this flexible ongoing employee to be entitled to leave entitlements and the other is that the loading they will be paid, instead of being paid 25 per cent as casuals currently are, that loading is reduced to 10 per cent to take into account the employees receiving leave entitlements.  Other than that, the intention is that the employees' rostering arrangements, engagements, all other elements related to the way work is performed, will be the same as essentially the casual employment arrangements.


The reason that this has been sought is that, as the Commission will be aware, there was a decision of the Full Federal Court mid last year, Skene v WorkPac, and the effect of that decision is that for employees who have been engaged for extended periods of time on regular and systematic working arrangements, there is a significant risk that some of those - or in fact a large number may well not be considered casual under the NES but may indeed be considered permanent.


Our concern is that the effect of that decision is that in this industry - and this industry is not the only one, but in this industry which is the one we're dealing with at the moment, there are a large number of employers engaging employees as casuals on a regular and systematic basis in a manner that is inconsistent with the NES.  If that is the case, we think the modern award provisions can be varied so that employers can take themselves out of this unlawful arrangement and into a different arrangement which is lawful but which mirrors the reality of how work is performed in the industry.


We would say this industry has some particular characteristics that mean there is a need to retain casuals, and indeed casuals that might be working regular and systematically and are long term, and accordingly that's why we're seeking a change in that industry.  So that is, at a very broad high level, what is being sought.


What we would seek is the Commission's leave to file


evidence and submissions in support.  We are in the process of identifying - I think we have identified, but commissioning some expert evidence on the issue and because of that we do require some time in order to file that evidence.  I can come to what that might look like, but then we would anticipate that those who oppose the application would have an opportunity to file evidence, as well, and there would be a hearing.


JUSTICE ROSS:  Is the WorkPac - I'm only putting this on the basis of media reports, so I couldn't say it's a reliable source, but the WorkPac litigation seems to be ongoing, if one can put it that way.  There are reports of a variety of different proceedings in the Federal Court seeking to either - however, I'm not characterising it in this way, but it's characterised as either rearguing or seeking to deal with some of the issues that arise from the WorkPac judgment.  Do you have any idea where those are up to?  Are you involved in any of those?


MR IZZO:  We are not involved in those proceedings, but my understanding is that there are at least two proceedings.  One is a claim by an employee called Mr Rizzato, seeking a declaration that Mr Rizzato is a permanent and not a casual, and WorkPac is defending that.  The other is a class action against WorkPac in relation to a number of casuals saying that they should be paid permanent leave entitlements.


There was an interlocutory application to have the Rizzato claim struck out on the basis there was an abuse of process and, equally, that the proceedings should be deferred so that the class action can proceed instead.  I think they're the two main proceedings.  It's possible there is a third that I can't recall specifically now, but they're the two I'm certainly conscious of.


I believe where that is currently at, unless anyone else at the bar table corrects me, is that the applications as to whether the Rizzato proceedings should actually proceed or not, the strike out application, all those things, submissions have gone in in relation to those matters, but no final determination has been made by the Federal Court as to whether the Rizzato claim proceeds, whether it does in advance of or behind the class action.  I think we are waiting on the Federal Court outcome to determine - - -


JUSTICE ROSS:  No, sit down.  We won't worry about all that.


MR IZZO:  - - - the timetabling of that.  I can't envisage us having an outcome very soon in terms of the substantive issues being determined.


JUSTICE ROSS:  Was there a special leave application in relation to the Full Court decision in WorkPac?


MR IZZO:  There was not.


JUSTICE ROSS:  Okay.  You indicated that this is not the only one where this issue arises, which raises the question of the scope and - not to put too fine a point on it - whether this application is a stalking horse for a broader range of applications, because I think that goes to what other interests might be involved in it.  Do you have anything to say about that?


MR IZZO:  I think the arguments that we will seek to pursue will likely be broadly applicable across almost all industries.  There will be some industries where casual employment is not as prevalent or it's not as necessary to engage employees as casuals and so in those industries there may not be a need.


JUSTICE ROSS:  So the factual matrix might be different in different industries, but the principal arguments you'll be advancing will be common?


MR IZZO:  I think that's right.




MR IZZO:  We had initially sought to pursue an application in this industry because we wanted to be able to present a case where we focused our evidence and we have a case that we can put up which addresses the industry‑specific needs, which becomes more difficult if you run a case commonly across, say, 80 awards; but if, for instance, the Commission is satisfied that there are issues that need to be addressed and makes the variation sought or variations similar to those being sought, I think there may be a flow‑on effect that other parties may seek to agitate for similar conditions in other awards.  It's entirely possible.


JUSTICE ROSS:  And do I take it from the fact you have made the application that you don't think the casuals' offsetting regulation resolves the issues that have arisen?


MR IZZO:  If I could say two things about the regulation, your Honour.  The first thing is it does not seek to change the state of the law.  The explanatory statement to the regulation makes that very clear.  What it does seek to do is help facilitate a responsive claim an employer might make.  If the employer is faced with a claim for unpaid leave entitlements, an employer might look to use common law principles of offset or unjust enrichment - equitable principles of unjust enrichment - to seek to recover moneys that were mistakenly paid as a casual loading.  The regulation may have some role in assisting an employer's claim to offset - - -


JUSTICE ROSS:  How does it do that?


MR IZZO:  Well, it does that - at least on its face it states that a court can take into account whether a casual loading is being paid in determining whether unpaid leave entitlements are due to an employee.  So when the employer seeks to run their offset claim, I suppose the regulation is at least flagging to the court and parties that these offset claims may be available.


Now, to the extent that actually has a substantive impact, I think there may be some differing views on that, but at the very least it seems to be playing a role in at least foreshadowing to all that these type of offset claims may be available.  I suppose the issue with that is does that address the concerns that we have raised.  I think there are a number of concerns that remain outstanding.  One is if you are engaging casuals incorrectly, the regulation does not automatically mean that now your engagement of casuals is somehow lawful or proper.


JUSTICE ROSS:  So it doesn't provide a legislative substantive right to offset?


MR IZZO:  No, it does not do that.


JUSTICE ROSS:  Okay.  I suppose there has been debate about disallowance motions and I don't know where those are up to or anything else, and I assume that no employer has yet sought to run an offsetting case which relies on the regulations, so we don't really know - - -


MR IZZO:  Yes, I'm unaware of any.  I suspect it may be relied upon in the WorkPac litigation, but which is ongoing and has some time to run.


JUSTICE ROSS:  You raised an issue about the separateness between your claim and the substantive claim in the SCHADS Award which I'll deal with after I've dealt with this matter, but it's certainly the case from my perspective, as well, because there will be different benches constituted to deal with this claim as opposed to the others; so it will be run separately and not on the same timetable.  In relation to the timetable, do you have any draft directions in mind?


Well, let me break that into a couple of bits.  One issue - and I don't have a view either way - is it in your view, and I'll seek the views of others with an interest in a minute, that the case should be run in one block?  That is, you deal with the evidence and the principal arguments or do you deal with the issue in principle and the legal framework, if you like; argument first and then deal with the factual evidence?  Do you want to give some thought to that?


MR IZZO:  I think it would benefit from some thought, your Honour, before arriving at a concluded position.  I suppose there may be some benefit in a staged approach.  If it turns out that the parties have differing views - and I think this might be the case - as to what WorkPac means - - -


JUSTICE ROSS:  I think so, yes.


MR IZZO:  - - - at law, because I've heard, for instance, a number of people say - including people at the bar table who are with us today - "Oh, it doesn't apply to this industry.  It only applies to the mining industry."  Now, if that is really the view of some parties that are going to agitate that view, that in fact the decision has no impact on this industry, they are matters that could be ventilated and subject to some preliminary views at an initial stage.


JUSTICE ROSS:  Yes.  I'm not sure how enthusiastic I would be to be expressing a view about whether the Federal Court decision applies to this industry or not.  That is sort of really straying into the judicial - but there may be issues around the intersection between the claim and the legislative framework and the NES, and how all that works.  Yes, all right, that's a matter you might give some thought to.  Let's go back to your evidentiary case.  How long do you envisage requiring to file all that material?


MR IZZO:  So the primary issue which is going to take up most of the time is the expert evidence that we're seeking to commission and I anticipate that that might take four months, your Honour.


JUSTICE ROSS:  Okay.  All right.  Anything else you want to say at this stage, Mr Izzo?


MR IZZO:  No, I think that's okay.


JUSTICE ROSS:  Are any of the other employers with an interest in this intending to run any sort of evidentiary case or are you sort of attending to see what happens?


MR FERGUSON:  We haven't made a decision about running an evidentiary case.  We are at this stage primarily watching to see how it unfolds.




MR FERGUSON:  We had a concern - which Mr Izzo might have partly addressed - about the potential interconnectedness between the case he is advancing and the SCHADS review more broadly.  The reason is this:  as the draft determination has been framed, there are certain matters that overlap squarely with claims here.  Say, for example, minimum engagements.  Now, as we had read it, there was a specific draft determination which included arguments for specific draft - minimum engagements for this category.


Now, if the unions win their case on that point - obviously if that case was pressed - then they would be having another shot at this one issue so it would be reconsidering the same matter, but he is, it seems, going to - ABI might modify their claim if that is the - as I said, we would have responded - - -


JUSTICE ROSS:  The essence of the claim is really the leave plus 10 per cent to fit this category of employment.  You're not really wanting to agitate much more than that central proposition.


MR IZZO:  Precisely.  If there are changes to casual employment conditions by reason of these proceedings - - -




MR IZZO:  - - - then I absolutely intend that our determination would change to mirror the casual employment provisions.


JUSTICE ROSS:  Yes.  Okay, yes.


MR IZZO:  Subject to leave and the loading.




MR FERGUSON:  The timing that is being talked about - and I appreciate that's not a direction - might make my concern academic, in that a decision - - -


JUSTICE ROSS:  Yes, it certainly sounds like it.


MR FERGUSON:  Yes.  A decision gets handed down - - -




MR FERGUSON:  - - - and all of a sudden it's an entirely different situation we're facing.


JUSTICE ROSS:  Yes, yes.


MR FERGUSON:  Not knowing the time frames that were being contemplated, it seemed to me that the most efficient way to deal with it also had been just to run them concurrently in terms of the least number of - - -


JUSTICE ROSS:  I don't think we'll be doing that.


MR FERGUSON:  No.  I now understand the time frames that are being contemplated.


JUSTICE ROSS:  Yes, okay.


MS SHAW:  Yes, at this stage we haven't decided whether we will put in an evidentiary case.


JUSTICE ROSS:  All right.  Any of the other employers want to say anything at this stage?  No?


SPEAKER:  Not at this stage.


MR PEGG:  No, your Honour.  National Disability Services will just wait and see at this point.


JUSTICE ROSS:  Yes.  Mr Roberts?


MR ROBERTS:  Yes.  Thank you, your Honour.  We have had a number of concerns which prompted our appearance this morning.  Obviously the first of those was we were concerned to ensure that the flexible ongoing application didn't disrupt the hearing of the other matters and that has been dealt with.  We're also reassured to hear that the matter will be dealt with by a separate bench and the proposed timetable that has been outlined this morning, that's the first time we have heard that sort of information, so obviously that also factors into our considerations.


Mr Izzo also indicated - and again this is first time we've heard this proposition - that the proposal is that the flexible ongoing category, if I can call it that, will ultimately reflect what is determined for casual employees in the proceedings proper, if I can put it that way.  So, they are all matters that we wish to consider a bit further.


Primarily, your Honour, the submission we wanted to make today was that the flexible ongoing matter should be dealt with separately.  It's a novel application.  It's not a matter of discrete award entitlements being claimed and counterclaimed.  As Mr Ferguson indicated, there is some interconnectedness in terms of the award claims that are being agitated on this side of the bar table.


We say that the matter should be determined separately and it should be determined once the other award matters are concluded.


JUSTICE ROSS:  Well, on the time frame that has been indicated - look, subject to what we deal with shortly about the substantive claims in the award, that's likely to happen just by dint of the - so I don't know that I need to say much about that.


MR ROBERTS:  It may well be, yes.


JUSTICE ROSS:  I'm likely to be on both benches.  I'm just not sure at this stage whether I have a three‑person bench or a five.  It depends a bit on the evidentiary case.  Where the witnesses are, all of that sort of stuff, will influence - and I don't need to make any decisions about that for ABI's claim at the moment, but it's likely that the foreshadowed timeline is going to resolve that issue.


Do you have a view about - and it may be that you want to give some more thought to it, as well - are there issues of principle that deal with the intersection with the legislative framework that can usefully be determined as a threshold question or an initial question, or is it one where we may as well just hear the lot at once?


MR ROBERTS:  Your Honour, I think given the debate that has gone on around the WorkPac decision - I don't have submissions to make about discrete points at the moment.




MR ROBERTS:  But I think it is more than likely that the way it will develop is that there will be some arguments of legal principle that will need to be had to allow this matter to progress in an orderly way; but I can take your Honour's question on notice and give it some thought.


JUSTICE ROSS:  Well, I've invited Mr Izzo to do the same thing.  All right.


MR ROBERTS:  Your Honour, the other issue we wanted to raise - and it has been dealt with and raised by your Honour - is the status of the WorkPac proceedings.  As Mr Izzo said, the Rizzato proceedings were filed last year.  They were the subject of a hearing before the Chief Justice in December last year.  There were orders for expedition and there were orders that the matter be heard by a Full Court.  Recently his Honour Bromberg J has listed the matter for hearing, I think on 8 May, before a three‑member Full Court, so that matter is set to progress relatively quickly.


Given the state of flux of the law in this area, again we say the WorkPac proceedings gives good reason to take pause on progressing the flexible ongoing matter at any great rate.  We need to see - the WorkPac litigation raises - well, as I understand it, there were no formal pleadings filed in the proceedings and it's being progressed by way of statement of agreed facts, but, nonetheless, we understand that the company will be urging the court to reach a conclusion that the original WorkPac matter was wrongly decided in a number of significant respects, including that the court should not take account of post contract conduct in determining the status of an employee's employment as full‑time or casual.  There will also be, as we apprehend it, arguments about the set‑off issue in the Rizzato proceedings.


So, all of that is squarely on the table in those proceedings and we say that it just makes sense that those matters should be fleshed out in the Federal Court before we rush into progressing the flexible ongoing matter in this tribunal.


JUSTICE ROSS:  All right.  Anything else from any of the other union parties?  Anything you want to add?


MR BULL:  Just to echo what my friend from the ACTU has said, that the Rizzato proceedings seem to be the test case which will clarify what this means.  WorkPac never - for whatever reason, the employer chose not to seek special leave to the High Court to appeal.  Rizzato is the one which may end up in the High Court, which will make the definitive statement as to what it all means.


JUSTICE ROSS:  All right.


MR BULL:  What we can say it means is that there will be some significant delay in the legal resolution of what it all means.  I perhaps should put just on the record that I came here today prepared to make a submission asking you to dismiss Mr Izzo's - my friend's claim.  I apprehend that's not the course which you intend to take.


JUSTICE ROSS:  Well, given it's listed for mention on what basis would I, as a single member, dismiss an application to vary an award?


MR BULL:  I suppose a Full Bench needs to do that.


JUSTICE ROSS:  Well, even a Full Bench, what would you - without hearing argument, on what basis would you - - -


MR BULL:  I wasn't suggesting you would do it without hearing argument.




MR BULL:  We were prepared to put in written submissions about why you shouldn't hear the matter and I think there are good reasons.  It's a problematic claim for a number of reasons.  It's not a variation to an existing claim, it's not a minor claim.  It's creating an entirely new category of employment and my friend appears to have chosen, we would say, an entirely inappropriate vehicle in which to agitate this issue.


This award covers an area of complex social policy which is undergoing dynamic change.  It deals with essentially how we care for disabled and unwell Australians.  It's not the place to agitate, we say, these issues.  That's a policy matter.  There are broad issues, we say.  I can run through the history, but the history broadly is that there have been a number of opportunities for ABL to raise this matter.  They haven't.  They have raised it out of sequence.


I think in the review of this award arguments about not complying with directions - no one can really throw that mud with any credibility - - -


JUSTICE ROSS:  I don't think you can.  You would be the first person to - - -


MR BULL:  I'm not going to - - -


JUSTICE ROSS:  Look, I mean - - -


MR BULL:  I'll tell you quickly why I say that it wouldn't be inappropriate to pre‑emptorily cease to entertain this application.  It obviously needs to be done in a proper way.  That would involve making of submissions, the convening of a Full Bench to make these decision, but I think it's not inappropriate to consider that course of action.


JUSTICE ROSS:  I wouldn't be doing it as a single member.


MR BULL:  I know that, but I'm - - -


JUSTICE ROSS:  All I'm doing here is just trying to find out what the scope of it is.  My principal question was the intersection between the claim and the other claims, because I was concerned that it might impact on those, but that has been resolved.  I will constitute a bench, invite ABI confer with the ACTU and the union parties as to some proposed directions.  At that point there's nothing to stop any party to make an application of whatever type you like and a Full Bench can deal with it as it sees fit.


It does seem that a number of the issues you've raised go to merit questions and you would need an evidentiary basis to advance some of them, so - - -


MR BULL:  Some are procedural, some are - one of the issues we have, even if a separate Full Bench is constituted to deal with this claim, it's still a claim in the review of this award, so - - -




MR BULL:  Well, there is, we say, a significant procedural irregularity where a party essentially gets to progress a claim after all the other claims have been done where they, in a sense, know - sort of almost the - - -


JUSTICE ROSS:  That of course is Ai Group's complaint about you.


MR BULL:  Yes, but it's a lesser complaint.


JUSTICE ROSS:  Because it's from Ai Group or - - -


MR BULL:  No, no, no.  A travel claim is not a significant - is creating an entire new category of employment, anyway.


JUSTICE ROSS:  I mean, you can run that before the Full Bench, but, look, I'm not sure there is much substance in the proposition it's in the four‑yearly review, because when the review is completed there will be nothing to stop anyone making an application of this type to vary any award.  Whether it succeeds or not is, you know, a matter that will turn on the merit and the legislative framework.  You know, to dismiss it on that basis that it has sort of been filed out of sequence, that's not a submission I have been attracted to in other proceedings.  It may be different in this one, but we'll wait and see.


I think the best course is to get the parties to confer about directions, file it without prejudice to United Voice's desire to run a preliminary application.  It can file that once we've worked out what the directions look like and the Full Bench is constituted.  The directions also would be subject to liberty to apply because, as has been foreshadowed, this case may be impacted by developments in the Federal Court and all parties might see the sense of awaiting a judgment there depending on how that case evolves.


I wouldn't want to lock in stone any set of directions, but by the same token I don't see much point in waiting until everything has been exhausted through the Federal Court and the High Court before taking any steps.  Certainly the first step, the directions for filing by the applicant of an evidentiary case, should take place.  It may be that we have a further mention after that period to see, well, where are the Federal Court matters up to and what sort of time frame do the other parties want to file any of their material.


You may need, Mr Izzo, to discuss it with the other employers, because what I want to avoid is you filing your material in four months and the other employers filing their material a couple of months after that or at the same time as the unions file; and then of course the unions are going to want to reply to the material of the other employers.  I think rather than me setting it out, I think you should have the conversations and see where you land on it, and let me know.  If there is a need for another mention, I'll do that.  Any other comments?  Anything anyone else wants to say?


MS LIEBHABER:  The HSU supports the submissions of the ACTU and also United Voice.  We also believe that ABL should not be allowed to pursue this claim in the four‑yearly review and we're happy to make submissions at the appropriate time, but that's our position, too, that ABL had multiple opportunities since WorkPac was handed down back in August in 2018.  There were a series of mentions and - - -


JUSTICE ROSS:  When you come to run that point, both of you might want to reflect on what is to stop them making the application as soon as the review is finished and what is the point of - - -


MS LIEBHABER:  I suppose our perspective is that perhaps that would be more appropriate and when this matter was first raised, it was raised in the context of a number of awards, not just the SCHADS Award.  It seems that because the SCHADS Award is one of the last awards to be reviewed, it has been latched onto that award, which we would agree is not necessarily appropriate.  I just wish to raise that comment.


JUSTICE ROSS:  Yes.  The appropriateness of it and the circumstances of the award is a merit point against the application.  I follow that.  Well, I mean, you will make the application and we'll deal with it.  What I'm struggling with is how it feeds into a pre‑emptory thing without even hearing from ABI about their claim that we shouldn't entertain it.




JUSTICE ROSS:  If we're applying that, then that would apply to a number of union applications in the proceedings of the four‑yearly review, as well.


MR BULL:  We had a claim dismissed in the casual and part‑time common issue by Hatcher VP basically because it was late.


JUSTICE ROSS:  Yes, but that was the - in hospitality?


MR BULL:  That was to even up the shift lengths.




MR BULL:  We raised it late in the proceedings and it was dismissed because it was late.


JUSTICE ROSS:  Yes, but - - -


MR BULL:  We didn't quibble with that.


JUSTICE ROSS:  Yes, and I asked you in the substantive proceedings whether you wanted to pursue your claim to extend the minimum engagement period and you said, oh, well, you weren't able to run that in casual, so you didn't want to run it in the substantive claim; but I wasn't saying to you you couldn't.  That was the choice you made.


MR BULL:  There must be a point - - -


JUSTICE ROSS:  No, no, I agree, there must be a point - - -


MR BULL:  In two years if someone makes some extraordinary claim in this review - - -




MR BULL:  - - - there must be a point at which the Commission, whilst they're - you know, there are broad principles of finality which underline how courts and places like this should function and there needs to be an end to things.


JUSTICE ROSS:  Sure, but I'm just struggling with the utility of - the likely timetable is it won't be heard until next year, anyway, at which point the review will be completed.  They can re‑badge their - you know, I can understand why you might have an interest in pushing it off for as long as possible, but it's unlikely to be heard until next year in any event, in which case it sort of becomes a bit moot, an argument about whether it's in the review or it isn't.  As I say, it's not an argument that you can put to me; it's an argument you would need to put to a Full Bench.


MR IZZO:  If I could just say two things for the sake of completeness and the record.  The first thing is we are very conscious in terms of the time when this was filed - it is very late in the four‑yearly review - but the reason for that is that the WorkPac decision was only handed down in August of last year.  We had no contemplation that we would be filing this claim until the decision was handed down, was digested, there was communications with members.  We had a sense that we would be wanting to pursue this in about mid-September, which is when we actually wrote to the Commission and we identified that would be seeking to make this type of claim in the SCHADS industry.


The reason that we have decided to pursue the claim in this industry and not the others that were flagged actually depended on two matters and they were consultation with other employers, members, industry associations, and also we see there are certain characteristics in this industry that require the ongoing engagement of what an employer would in this day call a casual employee.  Whether they are one or not at law is a different point, but we say there are reasons why casuals are needed in this industry and that's why this industry was chosen.


So, we do take exception to any suggestion that the reason that this industry has been chosen is simply because it's convenient and that it's late in the review, and this hearing hasn't gone ahead.  As I said, earlier, we in fact see this as an entirely separate process to the current hearing.  I just wanted to put that on the record.




MS LIEBHABER:  Your Honour, if I can just respond to that - - -


JUSTICE ROSS:  No, no, I'm not inviting a response.  I understand you might not agree with everything Mr Izzo says and, you know, this is not the time to argue this point.  You can argue it once the bench is constituted, draft directions are in.  There will be liberty to apply.  You can file your application seeking it to be dismissed then and set out all the grounds, and we'll deal with it at that point.  There's not much point in arguing it before me because that's not the purpose of this mention and it's a matter for the Full Bench ultimately.  Is there anything else about any other matter we have discussed in relation to this claim?


MR FERGUSON:  Only a very minor one in relation to the timing of the directions.


JUSTICE ROSS:  You're not going to have a go at Mr Bull, as well?


MR FERGUSON:  No, we're not going to have a go at anyone.  It's just in relation to the issue about how long the various parties will be given.  It may not be that employers speak with the one voice on the merits of this particular claim and it may be that we need to file separately.


JUSTICE ROSS:  No, that's fine.


MR FERGUSON:  But we will think through that - - -


JUSTICE ROSS:  You will have time to - - -




JUSTICE ROSS:  You can sort that out.


MR FERGUSON:  We will have the discussions.


JUSTICE ROSS:  In the meantime you might be able to tick it with Ms Roberts - - -


MR FERGUSON:  I might be.


JUSTICE ROSS:  - - - and you can work out how you want to deal with that, but from the sounds of it it's not as if we need to settle any directions in the next week or so.  Mr Izzo is foreshadowing it will be some months before they're in a position to file their evidentiary case, so I'll leave it to the parties to confer about it.  If you've got a consent position in relation to it, reserving your position with HSC and United Voice to seek to strike out, in effect, the application, then file that if it it's agreed.  If it's not, then I'll list it for further mention at the request of any party and we'll decide it then.  All right.


Can I go to the substantive issues - not that I'm suggesting this isn't substantive, but the other claims, if I can put it that way.  There has been correspondence from Ai Group and ABI in respect to these matters.  As you know, they are listed for hearing on the 12th.  I met with the other members of the bench yesterday to give some thought to what we might do in relation to it.  We issued a statement earlier this morning to express some preliminary views in respect of the matter to hopefully facilitate the discussion.


As I understand it, the issue has arisen because of - well, it starts from Ai Group's intervention before Christmas to indicate they were opposed to the consent position that the other parties had reached arising from the conciliation process.  There was then some engagement between Ai Group and the other parties.  There were directions issued, various materials filed.  The matter was listed for mention before Lee C at which date - I think the current state of play seems to be that there isn't a consent position.


No doubt, to protect its interests, that led United Voice to file - part of the consent position was an agreement that they wouldn't pursue certain claims.  Well, of course there was no consent position; they want to pursue those claims now.  Ai Group has reacted to that in its correspondence.  What we're trying to look at is, well, what then can be done in the time that we have scheduled.


It seems that the union claims that have been identified in the statement - I suppose what we are raising is, well, why can't we use that time to hear argument on those claims and we can determine those claims and set down a program for whatever the remaining matters are.  But, because they are your claims - let's go to the unions first and see if there's any - presumably you are ready to run on those, you have filed the material.


MR BULL:  We are not completely the sort of outlier.  The HSU actually filed material on travel time before us.


JUSTICE ROSS:  No, no, I am not raising it to apportion  blame.  I understand it has been a bit untidy because the consent position hasn't been crystallised as to where you are up to with it, so that's fine.  It is really what are we going to do with the days we have got?


MR BULL:  I think it's in a position that AiG, at least, shares that we want to maintain the time which has been allocated so it can be usefully used.


JUSTICE ROSS:  To deal with the claims you have identified in the statement?


MR BULL:  The issue we have is - well, for example, a number of our witnesses are going to have to come back if we have two tranches.  This is an award which, it's a significant award, it's one which really does need review because there are real issues that a proper review will fix.  I am not suggesting that other reviews - some are more pristine than others.  We have some concern with the way - the statement seems to want to divide up the hearings.


JUSTICE ROSS:  It is really just intended to provoke a reaction really.  Our starting position is, well, look, it seems to be the case that some of the matters have been known for some time that claims are going to be pursued.  We have got this amount of time allocated.  My question to you, collectively, is, "Well, our preference is to use the time we have got allocated and I am asking you what can you run in that time?"


MR BULL:  We can run our entire case.  Part of the issue is that a number of claims are interrelated in relation to travel time, broken shifts, variation to rosters, minimum engagements, which broadly relate to the fact that - - -


JUSTICE ROSS:  That's right, that's why we haven't included any of those in the group.


MR BULL:  The main cohort of the care workers and so forth are the part-time workers who, we say, are being exploited.  They often have multiple breaks - - -


JUSTICE ROSS:  No, no, you don't need to go into the merit.


MR BULL:  No, I am just saying they are related.


JUSTICE ROSS:  All I want to know is what claims can you run in the time we have got allocated, of the list there, or are there others?  What do you want to run?  I understand it means, both of you, your witnesses may need to come back and the only solution to that seems to be to defer, and the Bench isn't enthusiastic about that, so my question to you, to HUS and the ASU, is really we have identified some and are you content that we will hear evidence and argument on those, or do you want to add some or do you want to take some out?


MR BULL:  This is United Voice, I am not speaking for others.




MR BULL:  We want to run our case.  We have got three witnesses and we would like to run our case.


JUSTICE ROSS:  Your case means it's the variations set out - it will be your evidence and argument in respect of the claims we have identified?


MR BULL:  And the travel time, broken shifts and variation to rosters.


JUSTICE ROSS:  Yes, but the point that is taken against  you about that is that it's the notice around the running of those matters.


MR BULL:  It's late.


JUSTICE ROSS:  Yes, so if we excise those matters - I understand your preference would be to deal with them, but I understand that is opposed as well - then are you content we can deal with the rest of it?


MR BULL:  Obviously, we will do what the Commission determines as the appropriate way to manage the hearing or review of this award.


JUSTICE ROSS:  No, no, sure, but I am interested to know whether - it seems to me there are three options.  Your preferred position is you run everything; your second position is, well, you could run - and I am not suggesting this is in order of preference - you can run the ones we have identified; the alternative is we just pick later dates in July, or some time, and you run everything.


I understand that the middle position has the advantage that we can use the time we have allocated, we can hear it and then we can determine those matters, but it may mean that some witnesses have to come in twice.


MR BULL:  All right.  Our claim in relation to clothing and equipment and the telephone allowance, those witnesses also speak to the ones which are intended to be in the second tranche.  So, if you only deal with the deletion of the 24‑hour clause, the variation of the excursion clause, the variation of the overtime clause and the variation of public holiday clause, that is pretty minimalist.  I think we will have one witness.  No, we won't have any witnesses in relation to - if it's just one, two, three, four - - -


JUSTICE ROSS:  So it would be oral argument on those?


MR BULL:  That will be oral argument.  We will be complete on Friday.


JUSTICE ROSS:  Are you content - because, you know, we are ambivalent about whether you add the equipment allowance and the telephone allowance, but if it is your preference to deal with the other four in the time we have got because, if you deal with the other two, it means you have got some witnesses that will have to come in twice, then that's fine.  I understand that, from your perspective, we could deal with claims 44A, 47, 51 and 57?


MR BULL:  Correct.


JUSTICE ROSS:  And we deal with what will essentially be an oral argument on merits about those claims?


MR BULL:  Correct.


JUSTICE ROSS:  All right.  HSU?


MS LIEBHABER:  Your Honour, we ran all our claims on those dates, so - - -


JUSTICE ROSS:  When you say all of your claims, you mean S50 and S43?


MS LIEBHABER:  But we have many more claims than those.


JUSTICE ROSS:  What other claims do you have that don't bump into the 'they have been filed late' propositions?


MS LIEBHABER:  I suppose our issue is that we filed the travel time claim in our submissions due on 15 February.  My understanding after the 8 February conciliation was that if we wanted, that we should file any claims that we considered pursuing because there was no - - -


JUSTICE ROSS:  When did you file those?


MS LIEBHABER:  We filed those on 15 February in accordance with the directions of the Commission, and we think it would be unfair to be disadvantaged for filing on time and allowing other parties to have much more time, so our preference would be to run all the claims in the week that it was programmed from the 12th to the 18th, but if the Commission says otherwise - we are ready to file all of our claims.


I suppose, from our perspective, we do need to know which witnesses will be available.  We have 10 witnesses who have provided evidence, so, yes, we are ready to run the case in April.  The other parties have had notice of those claims since 15 February.  ABI have had notice of those claims since 15 February.  United Voice's travel claim is similar to the HSU's travel claim and those witness statements are supplementary to the statements they have already filed.


JUSTICE ROSS:  So, have you filed all of your case?


MS LIEBHABER:  On 15 February.


JUSTICE ROSS:  All of the materials on 15 February?


MS LIEBHABER:  Yes, including matters that were withdrawn as part of the consent agreement because it seemed clear that the consent agreement was not likely to be held up.


JUSTICE ROSS:  What are those matters?


MS LIEBHABER:  So, that was the claim around travel time, around client cancellation, and we filed a claim around sleepovers, but that came out of the conciliation, where it seemed that we largely had agreement around amendments to the sleepover clause, except for issues around the definition of security and our amended sleepover claim sought to sort of address those issues.


Otherwise, I believe all the claims were claims that we had foreshadowed that we were running as part of our substantive claims, and that included minimum engagement, broken shifts, overtime and telephone allowance and a first aid allowance.


JUSTICE ROSS:  Well, it is not clear to me and, frankly, reading the transcript of the earlier mention doesn't help me much either because everyone was equivocating about what they were going to do.


All I really want to know is what did you say you were not going to pursue, because you had the consent arrangement, that you are now pursuing?


MS LIEBHABER:  Our claim around travel time.


JUSTICE ROSS:  Travel time.


MS LIEBHABER:  And the claim around client cancellation.


JUSTICE ROSS:  All right.  Leave those two aside for the moment.  This sleepover claim, what is the claim number?


MS LIEBHABER:  I don't have the claim number, but the clause is 25.7 and the exposure draft clause is 13.7.


JUSTICE ROSS:  What are the claims?  At the moment, all you have told me is you have got five claims, the two that I have listed in the statement, the one you have just mentioned about sleepover, travel time and client cancellation.


MS LIEBHABER:  In terms of all our claims?




MS LIEBHABER:  We have a claim for the change of minimum engagement provisions that - - -


JUSTICE ROSS:  Going back to my question, I want to know what - you have identified two claims.




JUSTICE ROSS:  Travel time and client cancellation.




JUSTICE ROSS:  As I have understood it, those are the only two that, as part of the consent arrangement, you said you weren't going to pursue and now you are.




JUSTICE ROSS:  Is that right?




JUSTICE ROSS:  Well, Mr Ferguson is shaking his head.


MR FERGUSON:  Sleepover as well.


MS LIEBHABER:  And the sleepover claim, but, as I said, that was - we had a broader claim around sleepovers that we withdrew.  We are not pursuing that claim, we are - the only claim we are pursuing is around what is provided by the employer in a sleepover in terms of security because it emerged from the conciliation that parties were unclear about the meaning of that agreed consent clause.


MR SCOTT:  Your Honour, if I might be able to assist - it's Mr Scott from Newcastle.




MR SCOTT:  The letter that we filed yesterday has, at paragraph 9, if your Honour has it before you, a list of the items that are set out in the HSU's amended draft determination, which are the additional claims that seem to relate to the consent position.


JUSTICE ROSS:  Can you speak into the microphone; I am just having trouble picking you up.  Whereabouts in your correspondence?


MR SCOTT:  Paragraph 9 of our letter that bears today's date.


JUSTICE ROSS:  Yes, just bear with me for a moment.


MS LIEBHABER:  Your Honour, I did miss out one, which was - - -


JUSTICE ROSS:  No, it's all right, I don't have his correspondence and that's the problem.  No, it's all right, I have got it now, thanks.  You were saying?


MS LIEBHABER:  Your Honour, we also included a claim around recall to work, which, I think, has been referred to, which is in paragraph 16 of our draft determination, so that's about being recalled to work remotely.


JUSTICE ROSS:  Was that something you said you wouldn't pursue?


MS LIEBHABER:  That was something that formed part of the consent agreement where we withdrew our original claim and we ended up including it.  I think the other point that Mr Ferguson made is some of our claims may have changed somewhat from how they were described in the original consent agreement in the draft determinations that we filed.


JUSTICE ROSS:  All right.  ASU?


MR ROBSON:  Your Honour, S6, our community language skills claim - or I suppose I should start this by saying we are ready to go for everything that we are advancing in that week.  Noting your comments about perhaps having two separate tranches of proceedings, the community language skills allowance claim could be heard in - - -


JUSTICE ROSS:  I am rapidly moving to the view that I still don't understand with precision what everyone is chasing.  I am thinking of abandoning the hearing and having a conference and trying to sort out what everyone is pursuing.  Trying to track it through is a nightmare.  It's just shifting constantly and, you know - - -


MR ROBSON:  Sir, I can be very precise.




MR ROBSON:  We have been advancing these claims and we're only dropping off claims, and there's a caveat to that.  We've got our community language skills allowance claim, our witnesses are ready to go on the 12th, or potentially in the next week, and other dates are used.  We have dropped our coverage clause.


JUSTICE ROSS:  You are not pursuing S9?


MR ROBSON:  No, we're not.


JUSTICE ROSS:  S7, sorry.


MR ROBSON:  S7, no, and that was included in our submission of 18 February.  We would like to seek leave to file evidence and submissions in support of a new travel time claim.  We would be adopting the United Voice draft determination.  We just think we have got something to say about the disability sector.


JUSTICE ROSS:  All right, that's another reason for not dealing with the travelling time in the next tranche.


MR ROBSON:  I agree with that.


JUSTICE ROSS:  Yes.  Community language skills, how many witnesses do you have?


MR ROBSON:  I've got four.


JUSTICE ROSS:  And you have filed the statements.  All right.  Well, let's canvass the employers for a moment and then I will come back to the unions.  I take it you don't want to say anything about this, Mr Roberts?




JUSTICE ROSS:  Yes, I wish I was in the same position.  You have seen the statement.  Why can't we deal with those issues is really the short point?


MR FERGUSON:  I think the statements have done a good job of identifying and excluding the matters that are obviously caught up with either the new claim by United Voice or what has subsequently been the application by ABI.


So, what's left, on the face of the discrete issues, with one exception in terms of the subject matter, and could probably proceed, the only one exception I would say to that is S51 variation to overtime in that there might be some argument over the interconnectedness between that and the remote response claim that I understand ABI has advanced, at a glance, in the sense that we will both have arguments about the rates that are to be paid for overtime at home versus overtime when you're working, and there's some unusual provisions in the award that sort of have an interconnectedness there, but everything else that certainly Mr Bull has said, I think, conceptually, could be run as discrete issues.


The only issue is the evidence point, which is that there is, I think, from memory - I haven't this morning been able to go through all of the material - some interconnectedness in the sense that some witnesses, you know, give one - - -


JUSTICE ROSS:  I accept that if you take United Voice's last four claims, there's no evidence being put in support of those.




JUSTICE ROSS:  There is no interconnection with the community language skills claim of the ASU and the others.


MR FERGUSON:  The overtime claim, and if I am mixing them up, correct me, there might be evidence about the nature and way part-time employees work.  I think the HSU is running a claim.


MR BULL:  I don't want to interpose, but that is a claim which has been pristinely run in accordance with directions and so forth.  It's essentially a claim about disaggregating the penalties which arises from the original penalty rates review where there's some absorption.  The employers have had an opportunity to reply and they haven't, and I don't know what their evidence would be, but they are past that point.


MR FERGUSON:  I may well be confused this morning trying to get around it quickly and had apprehended that to be the overtime claim dealing with payment of overtime to part‑timers.


MR BULL:  No, no, it's about overtime not being absorbed into other penalties.


JUSTICE ROSS:  So, it's a different point?


MR FERGUSON:  Yes, so that might be right.


JUSTICE ROSS:  It's essentially a merit argument, is it, Mr Bull?


MR BULL:  Well, we say it's a legal argument that there's been - - -


JUSTICE ROSS:  No, no, I mean merit in the broad sense.  You are not running an evidentiary case about that issue?


MR BULL:  No, no.


JUSTICE ROSS:  No, all right.


MR FERGUSON:  Then I was mistaken on that.  The one Mr Bull has foreshadowed seems, on the face of it, to be, you know, just legal arguments and merit-based arguments that we can advance, in any event, so we wouldn't need to deal with it.


JUSTICE ROSS:  All right.


MR FERGUSON:  And the community language skills issue seems to be a clear issue that we would just deal with separately.


JUSTICE ROSS:  All right.  Any different view from any other employer party?


MR IZZO:  I am going to defer to Mr Scott in relation to these claims, your Honour.




MR SCOTT:  Thank you, your Honour.  I think in relation to the statement and the proposition that certain matters be hived off, I think that can be accommodated subject to two matters.


If I can just make some comments in relation to the list in the statement.  There's one matter which I understand is an HSU claim relating to First Aid Certificate renewals, which is not on the list and which, in my mind, would be something that could be dealt with next week.  I don't really see any connectedness between that claim and some of the other issues.


JUSTICE ROSS:  Do you know the number of that claim?


MR SCOTT:  It is S19, according to their submissions that they filed.


JUSTICE ROSS:  All right.  I will come to the HSU about that point in a moment, but anything else?


MR SCOTT:  Yes.  The other thing that I would point out is item S50 on the list, which is described as "Saturday and Sunday work", I think it's an issue of just mischaracterising the nature of the claim because, having a look at the HSU submission, item S50 is described as:


A variation to the overtime clause to ensure that it applies to all employees, including part-time and casual employees, when working beyond their rostered hours and in addition to eight hours in a day.


JUSTICE ROSS:  So it really should be variation to overtime clause?


MR SCOTT:  That's right.


JUSTICE ROSS:  No, that's fine.


MR SCOTT:  I haven't given any consideration to what Mr Ferguson just raised as to, given that it's a claim relating to overtime, is there some connection to some of the other claims about recall to work and the rates - sorry, remote response and the applicable rate of pay there, but I would imagine that it could be dealt with, although one of the claims that is not proposed to be dealt with next week is a claim for overtime entitlements for part-time employees working additional hours beyond their agreed hours up to 38.


There may be some merit in dealing with this proposed variation about overtime in excess of eight hours at the same time as dealing with the claim relating to overtime for part-time employees working additional agreed hours.  So, I just raise that.


Other than that, the list seems to sensibly identify the claims that could be run next week in light of what has been said earlier about the clothing and equipment allowance and the telephone allowance.  My clients will be in a position to deal with the claims that have been identified today.


The second issue I raise, and I think Mr Ferguson has raised this, is just in relation to evidence and whether there is any intermingling of evidence.  I haven't looked closely enough at the evidence to get a handle on whether that would cause an issue, but I think there are a number of statements where there will be - there are matters relevant to a number of variations, so there may be some benefit in the unions identifying within a short space of time the specific evidence that they will be seeking to rely upon for the purposes of the hearing next week, having regard - - -


JUSTICE ROSS:  That is really only going to be the HSU because - - -


MR SCOTT:  Yes, I think that's right, yes.


JUSTICE ROSS:  - - - the ASU has already indicated its four witnesses.  The evidence all deals with the community language skill claim.




JUSTICE ROSS:  And United Voice is not leading any evidence in relation to the four claims that have been identified.


MS LIEBHABER:  Your Honour, I think our concern is - - -


MR SCOTT:  That's right.  I think it would be limited to the HSU.


JUSTICE ROSS:  All right.


MS LIEBHABER:  Our concern would be similar to what United Voice have said, but there's significant overlap in that the witnesses that would provide evidence on clothing and telephone allowance are the same ones that provide evidence on minimum engagement and broken shifts.  I would want to avoid having to call witnesses multiple times if that's not required.  That would be our concern.  From our point of view, we would want to know which witnesses the employer parties seek to cross-examine.


JUSTICE ROSS:  Let me just take a step back.  We have got to the position where the ASU is wanting to file material on travelling time, so it doesn't seem that it is viable to run the travelling time argument during this period we have got coming up.  There is an interconnectedness between travelling time and some of the other claims, so it seems that that category of claims is going somewhere else, to a later time.


You then have clothing and telephone and, on that issues, there's similarities between your claim and the claim of United Voice.  United Voice is not wanting to press those claims in this next tranche of hearings because it would involve calling their witnesses twice.


MR BULL:  Correct.


JUSTICE ROSS:  United Voice, as I understand it, is content to run the argument, and we will hear from the employers in response, in relation to four claims, that is, the deletion/variation to 24-hour care, variation to excursions, variation to overtime, variation to public holidays, as set out in their statement.  The ASU wants to run its claim S6, community language skills.  That involves four witnesses.


If we go to you, at the moment, having regard to all of that, we seem to be left with three claims:  one, S50, which I accept is mischaracterised and should read - let's just call it variation to overtime clause; S43, deletion of the 24-hour care clause, and S19, the First Aid Certificate renewal clause.


MS LIEBHABER:  I believe some of our witnesses, the evidence may be irrelevant for that first aid allowance claim and potentially the overtime claim.  If they are not required for cross-examination in relation to those claims, then we would be happy to run those on the 12th, but I suppose our concern is also to bring in those witnesses, we would rather have them all come in on one day, yes.


JUSTICE ROSS:  Well, let's deal with the point first.  Do you require them for cross-examination in respect to their evidence about these claims?


MR FERGUSON:  We are just not in a position to make that - - -




MR FERGUSON:  We are still - - -


JUSTICE ROSS:  The evidence has been filed.


MS FERGUSON:  We are still working frantically on our material to file, given that we have had a truncated timetable.  We have been dealing with all this mess, too.


JUSTICE ROSS:  When did you file the witness - - -


MS LIEBHABER:  On 15 February.


MS SHAW:  There's something like 20-plus claims, there's a large volume of material, and the claims are, as they have said, different - - -


JUSTICE ROSS:  When are you going to provide an answer about whether you want to cross-examine these witnesses on these claims?


MR FERGUSON:  Once we gather the material and - - -


JUSTICE ROSS:  No, no, I appreciate that, but in - - -


MR FERGUSON:  Shortly thereafter, so within a couple of days, we could advise on that, and I can obviously endeavour to do that earlier.  We had been told that no one was going to call a witness on the 12th, they weren't intending to do that, that there would be other - - -


JUSTICE ROSS:  Sure, but that was before you filed your letter wanting the whole thing - - -


MR FERGUSON:  No, no, but this - - -


JUSTICE ROSS:  I mean, let's not - - -


MR FERGUSON:  I am not criticising.  That's why this mess was - - -


JUSTICE ROSS:  It sounded a little bit like it.


MR FERGUSON:  This mess is what - we thought just bring it on now rather than having a fight or the argument on the 12th and the mess.


JUSTICE ROSS:  Do I understand the HSU's position correctly, that there are three claims that can potentially be run, S50, S43 and S19, but whether you run S50 and S19 depends a bit on whether or not the employers want to cross-examine the witnesses you want to call in relation to those matters?  Is that - - -


MS LIEBHABER:  Yes, your Honour.


JUSTICE ROSS:  All right.


MS SHAW:  Can I just clarify?  My understanding was that the Saturday and Sunday work was actually to do with their claim of S48, which is ensuring that casual loading is paid in addition to weekend and public holiday rates?


JUSTICE ROSS:  I don't know.  It's ABI who's raised the - - -


MR IZZO:  Your Honour, may I take the opportunity to be excused?


JUSTICE ROSS:  I wish I could as well, but, sadly, no.  Yes, certainly.


MR IZZO:  I feel I am not adding any value to the process and Mr Scott - - -


JUSTICE ROSS:  No, no, that's fine.


MR IZZO:  - - - if he speaks into the microphone a bit better, will.




MS SHAW:  And potentially that claim wouldn't require any witnesses?


MS LIEBHABER:  Yes, your Honour, I think that's correct actually, so that's number 8 in our draft determination, which is titled "Saturday and Sunday Work" and it refers to casual employees receiving casual loading in addition to Saturday and Sunday rates.  I think that could be dealt with.


JUSTICE ROSS:  All right.  And that's a merit claim?


MS LIEBHABER:  Yes, we don't have witness evidence around that claim.


JUSTICE ROSS:  All right.  So S48?  That mis-describes it, it should be S48, not S50 there; is that right?


MS LIEBHABER:  Yes, that's correct.


JUSTICE ROSS:  So far, S48 can be dealt with and whether S19, the first aid, or S43, deleting the 24-hour care clause, can be dealt with depends on whether or not the employers want to cross-examine the witnesses; is that right?


MS LIEBHABER:  Yes, in relation to those three.


JUSTICE ROSS:  So that would only leave - if those witnesses are going to be cross-examined, then your preference is they only be called in once, which, the way these things evolve, means those would be dealt with later.


MS LIEBHABER:  I think that would be preferable from our perspective.


JUSTICE ROSS:  No, that's fine.  I am certainly not going to force you to run a claim and call your witnesses twice if you don't want to.


On the state of knowledge at the moment, until you know whether or not the witnesses are required for cross‑examination, it's clear that you would run S48.  Look, from the Commission's perspective, we are content for you to run S49 and S19, the deleting of the 24-hour care clause and the First Aid Certificate renewal, if you wish, but whether you want to or not is going to depend on whether the witnesses are to be cross-examined, and we can leave it really on that basis.  It's not going to trouble us much.


The employers need to tell you as quickly as possible, bearing in mind it's not a general question about do you want to cross-examine those witnesses about all their statement, it's only that part of their statement that relates to this claim.


MR FERGUSON:  We will look at it properly.




MR FERGUSON:  It's just that there's a lot of material up in the air.


JUSTICE ROSS:  Sure.  Because it may be, for example, that if they don't wish to cross-examine in relation to - if you identify which parts of the statement relates to these claims and they don't want to cross-examine about that, they can say that and the witnesses won't be required.  The witnesses may be required later in relation to their evidence about the other claims, but at least that way they won't be stuck with having to come in twice.  All right.


MS DABARERA:  Your Honour, there may be another matter that we can deal with.




MS DABARERA:  If we are dealing with S44A, which is the deletion or variation to the 24-hour clause, we should be able to also deal with S40, which is - - -


JUSTICE ROSS:  Is that S40?


MS DABARERA:  Yes, which is in regards to the sleepover clause, and that seeks a variation to that clause which would result - if the 24-hour clause was deleted, the sleepover clause would be amended to say that it's no longer in effect.  So, it's not - - -


JUSTICE ROSS:  I see, a consequential variation?


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  Yes, all right.  Anything else?  It seems on the basis - do you have a view about the order?  Is the ASU - can it tick off, deal with its evidence and it's a discrete point?  Are you happy to do that on the Friday?


MR BULL:  I am going away on 13 April.


JUSTICE ROSS:  Which is when?


MR BULL:  The Saturday.  I'm leaving the country.  Our stuff is all legal argument, so it doesn't - - -


JUSTICE ROSS:  Yes.  Look, we don't care what the order is, it's really are your witnesses - - -


MR BULL:  We don't have witnesses.


JUSTICE ROSS:  Does it suit you to have it on the Monday or the Friday or what?


MR ROBSON:  If our witnesses aren't required for cross-examination, then - - -


JUSTICE ROSS:  Yes, well, we don't know because they have to look at the material.


MR ROBSON:  I don't know that.  I will need to confirm the availabilities of the witnesses.  The majority of them should be good to go, but we have got a CEO and a branch secretary giving evidence.


JUSTICE ROSS:  All right.  Can I get you to inform my chambers by close of business tomorrow about their availability?




JUSTICE ROSS:  I think it's preferable if we deal with them all on one day.


MR ROBSON:  I agree.


JUSTICE ROSS:  When we schedule them, we will hear from - the employers can give an indication by close of business Friday about which of those four witnesses they want to cross-examine and which of the HSU - where you are up to in relation to that.  Have a discussion with HSU so you are both clear about - all the parties are clear about who would be required and then what the consequences are for how you want to run the case.


Then the Bench will put a position on Monday, but it's not going to be markedly different from what we have just been discussing.  It might just deal with the order and clarify that for everybody about when the witnesses are going to be required.  If you want to cross-examine, give an estimate of time and we will use that in the programming and that can clarify for you, you know, the witnesses won't be required before a certain time and we will try to meet their convenience.


If there are any issues about witnesses appearing by video or telephone, sort that out before you file the information about which ones you want to cross-examine.  Are they all in Sydney?


MR ROBSON:  Three are in Sydney, one is based in Melbourne and they will appear by video link.


JUSTICE ROSS:  All right.


MR FERGUSON:  Just two observations.  Obviously, it seems like, if we do use the second week, we will obviously fit it fairly comfortably within the four days.  The only - - -


JUSTICE ROSS:  I would think so.  We should be done by - I'm not sure - - -


MR FERGUSON:  No, I - - -


JUSTICE ROSS:  Even if they are cross-examined, the witnesses aren't going to take long.


MR FERGUSON:  I don't think the cross-examination will take long on the type of material.




MR FERGUSON:  And, yes, there are a lot of parties, but we will have all advanced detailed written submissions at that point.


JUSTICE ROSS:  Moreover, we will put out a background document next week summarising your submissions and what you have put and identifying what the claims are for these matters.  So, you will have that, so you won't need to go through that.  We will also put out a background document on the legislative framework, so you don't need to argue about what the review is about.  We will try and make it as efficient as possible.


MR FERGUSON:  The only other issue in relation to timing is we did request a short extension for filing our material, which might even not be as necessary - - -


JUSTICE ROSS:  But why do you need it now that we have confined it to these matters?


MR FERGUSON:  No, no, that's what I am getting at.  I am not sure we will need - we had asked for the Tuesday, but I don't even think we will need that.  Whether we might need the Monday - obviously we will be working on the weekend - I just am not sure.  We can endeavour to try and do this, but, in any event, obviously, given the amount of - the submissions we are advancing will now be much shorter than what they were previously going to be, so I don't think that would prejudice anyone.  We will endeavour to get it done before then, which is why we have been loath to actually ask for one because we have been trying to meet it.


JUSTICE ROSS:  Yes.  I am not going to deal with it now, but bearing in mind that the claims that we are now going to be focused on are matters that you have been on notice of for a while, it's not the - - -


MR FERGUSON:  No - - -


JUSTICE ROSS:  I understand the issue about the travelling times are now caught up a bit with the ASU wants to file material as well and we will deal with, at the commencement on next Friday, when you want to do that and we will try and identify what are the other claims and the witness evidence that is left and then set a program for that and deal with ABI's material as well.  So, we will try and sort out the rest of the case at the commencement on Friday.  But what's left - - -


MR FERGUSON:  Being very frank, the status - I am aware of the submissions (indistinct).  There's been a lot and a lot has been done and it's just some of the ones that we are now dealing with were the gaps in where we're at.  In saying that, there aren't many gaps, so we can probably - we will endeavour to get it done very quickly, and I hear what you say in terms of not dealing with it now.


As I said, throughout this, we have been loath to seek it unless we were going to need it, but, in any event, it seems that we might have a day or two of leeway in the hearing in any event, so it shouldn't cause any problem with knocking over the hearing dates or causing any undue delay.  We will come back to you, to the extent that is necessary, and that will depend partly on how my office is proceeding with them while I have been here today.


JUSTICE ROSS:  If there is a delay, and I understand, Mr Bull, it may or may not impact on you, but the other option is to abandon the Friday and have it on the Monday and the Tuesday and Wednesday.


MR BULL:  It is up to you.  Ms Dabarera is across the matter as well as I am.  She is perfectly able to assist the Commission.  So, if you want to abandon Friday, that's not a problem.  It makes my departure on Saturday morning for my holiday more leisurely, so I won't suggest that's a reason to abandon Friday, but I just leave that floating.


JUSTICE ROSS:  It might depend a bit on - if the material from Ai Group is late, we might revisit that point.  It also depends a bit on the ASU's witnesses.  I canvassed their availability for at least the Friday, Monday, Tuesday and it's obviously desirable that we get them all in, and we don't know that yet.  So, I will just - I will flag that that might be a possibility but it will depend a bit on the advice about the ASU's witnesses and where the HSU, the claims that it is pursuing in this tranche, and that will depend on whether the employers want to cross-examine on that.


MR BULL:  Abandoning Friday seems eminently sensible to me.


JUSTICE ROSS:  Well, let's see how it evolves.  If, for example, the ASU's witnesses are only available on the Friday, then obviously we will keep it, but if they are available on the Monday, or whenever, and if the ASU can have a discussion with the other two unions and work out what the order might be of when you want to run the - then we can put that - let us know that by the end of the week as well and we will put that in a final statement setting out how the thing is going to run and we will try and get that out on Monday.


MR BULL:  Just one jiggle matter, with - I won't use the word "tranche" - the remainder of the claims - we view, and I think I can speak collectively, this is an important award where change is inevitable in some form and it should happen sooner rather than later.  When would you envisage - because, if you like, the really substantive stuff has been put over.




MR BULL:  What we say are the variations that will cure the structural problems in this award, when would you envisage the Commission having an opportunity to hear these matters?


JUSTICE ROSS:  Well, when are the employers in a position to respond?


MR FERGUSON:  I think it's a bit premature to do that now because ABI has just filed a whole raft of additional claims as well that do intersect with some of these issues and, to be honest, I haven't got my head around them.  I don't envisage - if we were just responding to the material now, it won't take very long, it would be a matter of weeks, whatever, I hadn't thought through that.  We were obviously - - -


JUSTICE ROSS:  All right.  When is ABI going to file its material in support of its claims?


MR SCOTT:  Can I just make one observation before I answer that, your Honour?


JUSTICE ROSS:  Yes.  Can you speak into the microphone?  We have been having trouble hearing you.


MR SCOTT:  Yes, sorry.  At the mention on 20 March, we flagged that we had instructions to file these claims that arise from the consent position falling over.  A number of other parties equally indicated that they either wished to file claims or had reserved their rights to file claims.  So, in respect of your question, ABI is not the only party who is affected by the consent package, but in relation to your question - - -


JUSTICE ROSS:  I am not going into the merit or otherwise of people raising these issues.  The thing has evolved as it's evolved.  All I want to know is when will you be in a position to file your submissions and evidence in support?


MR SCOTT:  We would be seeking no less than eight weeks from 12 April because we are not going to be in a position to even turn our minds to the evidence and the submissions that we would wish to be adducing and advancing until next week's hearing has occurred because, at the moment, we are just dealing with the union claims.  So, we would be seeking, from 12 April, a period of eight weeks, but, before that, I think that some - there would be merit in a direction whereby if other parties wish to pursue matters, because they have been flagged, that there be a date for filing draft determinations.


JUSTICE ROSS:  Which other parties?


MR SCOTT:  Because otherwise we are going to be - Jobs Australia and United Voice both, at the mention on 20 March, indicated that, with the consent package falling over, they would be seeking to advance other claims.


Now, in respect to United Voice, perhaps they have done that, perhaps the claim that they filed four days ago was their claim, but the reality is that - - -


JUSTICE ROSS:  I must admit that's how I had understood it, but, yes?


MR SCOTT:  If that's the case, well, that's fine, but I am conscious that Jobs Australia had previously agreed to withdraw claims under the consent package which has now fallen over, and so - I apologise to Mr Pegg - I understood that on 20 March, he indicated that NDS would wish to pursue claims, so I apologise for that.  I don't think it was Jobs Australia.


JUSTICE ROSS:  All right.  Well, let me ask him now.


MR PEGG:  Yes, your Honour, NDS is intending to revisit some of the claims that were withdrawn.  They are on the same topics as the draft determinations that ABI have filed, so that's certainly still on the agenda for NDS.  We haven't made a decision yet.


JUSTICE ROSS:  Well, you will need to make a decision soon.  When are you planning on making a decision?


MR PEGG:  Very soon, your Honour.  We have had a look at the ABI draft determination and it's just a matter of whether we need to file anything different to what they have filed or whether we will be supporting that.


JUSTICE ROSS:  All right, if you file a submission setting out what your position is in relation to further claims, if you intend to pursue any and what they are, with a draft variation determination, or, if you intend to support ABI's position, by 4 pm next Wednesday, then, at the commencement of the proceedings, whether it be on the Friday or the Monday - we will sort that out - we will deal with the question of the future programming of the remaining matters, and I am going to want to hear from ABI as to why you need eight weeks and what witness evidence you are proposing to call, and then we will hear from the other parties and then we will set down directions about it.


Does that answer your question, Mr Bull?


MR BULL:  Partly.


JUSTICE ROSS:  What was the other part?


MR BULL:  I think there should be some expedition in relation to the hearing of the remainder.


JUSTICE ROSS:  I understand that you would prefer them to be dealt with sooner.


MR BULL:  Yes.


JUSTICE ROSS:  I am not making any observations about how long, but, yes.


MR BULL:  We have laid our cards on the table.  We are not going to file any fresh claims.  And these things have been - in terms of ABI, they have raised - and AiG - they have been very much in their mind since November last year, so I query the need for a significant amount of time.  It wouldn't be inappropriate to have a lesser period for them to put on their evidence and additional claims.


JUSTICE ROSS:  We will hear the merit of that when the Full Bench meets, but I would be interested to know more about on what basis do you say it was in their mind then?  Is it because - and I don't know but - - -


MR BULL:  Well, I'll be frank - - -


JUSTICE ROSS:  Was this a claim that they said they weren't going to pursue as part of the consent, but, obviously, they thought about it then?


MR BULL:  It was pretty clear that the conciliated position fell apart.  It was falling apart in, I think, November, and then we had two conciliations which were conducted by Lee C.  The commissioner tried his best, but we just reached a point where we weren't going to agree.  And it is confusing and that's why I think it's pointless to, frankly, have any further conciliation.


JUSTICE ROSS:  Yes, I wasn't suggesting that.


MR BULL:  Save yourself from it - trust me.


JUSTICE ROSS:  No, I am not even contemplating that.


MR BULL:  It really is a matter where, frankly, orders need to be made that the parties make any additional claims, and these should be the revival of old claims, because we have only revived an old claim.


JUSTICE ROSS:  Well, to be clear about that, what I am putting to all of you is if there are any more claims, whether they arise from the collapse of the consent arrangement or not, then you need to put them in by 4 pm next Wednesday.  That is the point I am making to NDS, but if there's anybody else in a similar position, or if the unions have reflected on what they had given up before and they now want to run it and they haven't already said that, then put that in by 4 pm, put your draft variation determinations in by 4 pm next Wednesday, and then we will look at what we have got when we come back.  All right?  Anything further?  Everybody clear?  Any questions about the process from here?


To be clear, the employers are to advise the HSU as quickly as possible, but certainly by the end of the week, about which of its witnesses they wish to cross-examine in respect of the claims that we have identified - first aid, and I think it's the deletion of the 24-hour care clause - and which of the ASU witnesses they want to cross-examine.


The ASU is going to, by the end of the week, find out the availability of those witnesses and let me know, knowing that the preference would be, obviously, to deal with them all at the one time.  The Bench may want to see those witnesses, even if they are not going to be cross-examined, so still find out the availability and we will let you know early next week.  If they are not required for cross‑examination, then we will let you know whether we want to ask them any questions, but let's not get to that point until we know whether they are going to be cross‑examined or not.  All right?  And we will put out something on Monday setting out what the program will be.


At that point, we will let you know whether it is starting Monday or if it's Friday.  Nothing further?  Thank you, I will adjourn.

ADJOURNED INDEFINITELY                                                           [2.35 PM]