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Fair Work Act 2009                                       1057489






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Social, Community, Home Care and Disability Services Award 2010






JUSTICE ROSS:  Could I have the appearances, please;  firstly in Melbourne and then we'll go to Sydney.


MR M PEGG:  If the Commission pleases, Pegg, initial M, appearing on behalf of the National Disability Services.


JUSTICE ROSS:  Thanks, Mr Pegg.


MS R LIEBHABER:  If it please the Commission, Liebhaber, R, for the Health Services Union, and Ms Doust is in Sydney, also appearing for the Health Services Union.


JUSTICE ROSS:  Thank you.  Can I have the appearances in Sydney, please?


MS N DABARERA:  If the Commission pleases, Dabarera, initial N, for the United Workers' Union.


JUSTICE ROSS:  Thank you.


MR M ROBSON:  If the Commission pleases, Robson, initial M, for the Australian Services Union.


MS L DOUST:  Yes, Ms Doust, initial L, for the Health Services Union.


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


MS S LO:  Lo, initial S, for Australian Federation of Employers and Industries.


JUSTICE ROSS:  And in Newcastle?


MS M TIEDEMAN:  Thank you - Tiedeman, initial M, on behalf of ADI, New South Wales Business Chamber, Aged and Community Services Australia and Leading Aged Services Australia.


JUSTICE ROSS:  Thank you.  The purpose of this morning is to deal with some directions for the finalisation of the tranche two proceedings.  As I understand it, the ASU has filed draft directions which have the support of the other unions.  Ai Group has also filed draft directions with the support of the employers.  Is that correct or does anyone have a different view?  No?  The directions are in the same terms.  The only issue between you seems to be that the ASU proposition that it will be more efficient if a background paper were prepared after the parties had filed their final submissions.  I'm having a bit of trouble following that argument, Mr Robson.  Why do you think that?


MR ROBSON:  If I may remain seated, sir?


JUSTICE ROSS:  Certainly, yes.


MR ROBSON:  Of course, look, we understand from the statement that the purpose of the final submissions is basically to sort out between themselves what they can agree with in the evidence and what they don't and then reply to submissions that were filed on - earlier in - I can't remember the date but - - -


JUSTICE ROSS:  Yes, yes.


MR ROBSON:  - - - the last round of filed submissions.  Our sense is that the statement will be a summary of submissions and the evidence and if it is summarising it maybe more useful for it to be produced after we've agreed on what we can agree on and identified the issues that actually are in contest.  Then if the Commission does have any questions for us or if we haven't addressed any issues to the Commission's satisfaction, once we've filed this final round of submissions, that's perhaps clearer.  But of course, we are in your hands.  You may have a plan for that (indistinct) that we're not fully aware of.


JUSTICE ROSS:  Yes, I think that is the case.  To give you the flavour of it, there are a number of claims which relate to the same subject matters:  recall to overtime, broken shifts, and we want to test with the parties what the differences are between those respective claims and some of the submissions, if I could put it this way, lack clarity about what position is being taken in respect of which elements of those claims.  So we want to tease all that out early so that we have an understanding of precisely what a party is saying and what they're proposing.  There is also, for example, a number of parties that made a sort of series of findings about the general nature of the SCHADS industry.  Speaking for myself, I don't really see how they relate or how a party intends they relate to the claims.


The sector is one that is - can be fairly characterised as evolving and the subject of some constant change.  I'm not sure how much effort ought to be put into resolving what might be contested propositions about how you characterise the sector, if that's not going to directly help us make the decision in relation to these claims.  So there are a number of issues that we want to test with you and we'd rather do that up front and also if I can say this, that in the past when parties have exchanged submissions without a paper, drawing your attention to whether you agree to particular findings, the submissions in reply have not been complete.  They've not deal with the contested issues.  So we want to make it crystal clear what it is we require of you so that your submissions address everything that we need, okay?


MR ROBSON:  May it please.


JUSTICE ROSS:  All right.  There doesn't seem to be anything between the parties about the dates or any other aspect of the draft directions.  Are we right about that?


MS DABARERA:  Your Honour, from the perspective of the United Workers' Union, we do have an issue with one of the dates proposed by Ai Group and that is leave arrangements.  Ai Group's proposed directions have the first lot of submissions being filed by close of business on 28 January.  Unfortunately, I don't return from leave until 29 January so we would request that there is another week, week-and-a-half for us to file a submission.


JUSTICE ROSS:  But isn't the ASU directions - aren't they the same?  What are your directions?


MR ROBSON:  Our directions have the parties filing their reply submissions on 20 December, so before people take their leave at the end of the year, and then reply submissions to that on 17 February.


JUSTICE ROSS:  Just a moment - all right, so the difference between you is that you would seek the filing of written submissions on 20 December and Ai Group seek the filing on 28 January.  You both have submissions in reply by 17 Feb, is that right?


MR ROBSON:  Indeed.


JUSTICE ROSS:  20 December doesn't work because you won't' have the background paper so that then moves us to a date in January.  Why don't we simply - just a moment.  Yes, all right, is there anything wrong with the submissions in relation to the matters that we'll identify, being 4 pm on Thursday, 7 Feb;  submissions in reply by 4 pm on Monday, 24 Feb?  any objection to that?


MS DABARERA:  No, your Honour.


JUSTICE ROSS:  Anybody else?


MR ROBSON:  No, your Honour.


JUSTICE ROSS:  All right.  Just bear with us for a second.  Any other issues in relation to the directions?


MR PEGG:  Your Honour, just in relation to possible hearing dates - - -


JUSTICE ROSS:  No, we're going to hear it on Wednesday, 11 March at 9.30.


MR PEGG:  Your Honour, do you anticipate just one day of hearings?




MR PEGG:  Thank you.


JUSTICE ROSS:  Does anyone have a different view - bearing in mind you will have put in your submissions and submissions in reply?  No?


MR ROBSON:  No, your Honour.


JUSTICE ROSS:  All right.




JUSTICE ROSS:  That concludes the directions.  We'll issue those shortly.  We're also minded to add to the matters the parties are to address some issues relating to the 24-hour clause that was the subject of some conferences before Commissioner Lee.  That issue is still outstanding and we propose to resolve that issue on the same timetable as we have for the tranche two matters.  The second issue is the community language allowance claim, which was the subject of a statement by Deputy President Clancy, and I will let him deal with that issue.


DEPUTY PRESIDENT CLANCY:  Thank you.  There has recently been published a statement and a background document for the community language allowance claim.  My intention is to convene a conference in relation to that claim which the parties can be informed about further, with the background paper.  My intention is to convene it on Tuesday, 17 December in Sydney and I'm intending to start at 10 am that morning.  So a notice of listing will be sent to interested parties for that unless there is significant issues for the parties in terms of availability.  But that is my intention for the conference;  10 am on Tuesday 17 December in Sydney.  Are there any comments about that?


MR FERGUSON:  It's Mr Ferguson:  I think it clashes with a number of matters before Full Benches in relation to the award review.


JUSTICE ROSS:  No, the award review matters are in the afternoon, if you're talking about the transport matters;  they're at 2 o'clock.


MR FERGUSON:  And the overtime for casuals exposure drafts - I'm sorry, (indistinct.)  I think the tranche two exposure drafts - - -


JUSTICE ROSS:  No, the tranche two exposure drafts are in the afternoon at 2 o'clock and the following day.




JUSTICE ROSS:  Deputy President Clancy and I are on those benches, so - - -


MR FERGUSON:  Yes, it might be something we can deal with through resourcing my office but the overtime for casuals is the other matter I think we're still on the 17th.


JUSTICE ROSS:  All right.


DEPUTY PRESIDENT CLANCY:  Yes, I didn't understand, Mr Ferguson, the Australian Industry Group had made submissions in relation to the community language allowance?




MR FERGUSON:  We have a relevant interest in that (indistinct) did originally.  It depends on how it unfolds from now, our level of interest.


DEPUTY PRESIDENT CLANCY:  Well, there is nothing in there from you at the moment, so you're welcome to attend but I'll be discussing it with the parties that have five submissions.


MR FERGUSON:  We put on detailed submissions in relation to the original claims and addressed it in detail in hearing.


DEPUTY PRESIDENT CLANCY:  But subsequent to that there were further directions and there has been material that has come out of that, so I'd rather you have a developed position rather than landing in at the last minute.


MR FERGUSON:  We do have a - we will have a position in reference to what the material is.  It depends on what specifically the proposed variation would be as to whether or not it impacts on our members.


JUSTICE ROSS:  Yes, well, I think that is - part of the challenge for us in relation to the community language claim has been just the volume of material that seems to have come in at different times and we want to make sure that we've got - firstly, we're right about, 'This is the material that the parties are relying on,' and secondly, that to check whether parties want to say anything further about the issue or a further opportunity or whether they're said everything they want to say and they want to rely on an earlier submission.  You'll recall there was a flood of material sort of late in the proceedings about this claim and it's led to some uncertainty in our minds as to what the respective positions might be and which material they're relying on, so that's what we want to try and nail down.


MR ROBSON:  Obviously our position is not clear, in the minds of the Bench, so - - -


JUSTICE ROSS:  It's not just your position, Mr Ferguson.  It's more a matter of - look, the late material that was filed, some parties have not said anything about that.  Do they want to say something about it and what is the relevance of it to the claim;  those sorts of things.  It's just we've got a deluge of material without a linkage between a position and the documents.  That is the challenge at the moment.


MR ROBSON:  I appreciate that.  I think we may be content to rely on that earlier material but I understand what you're saying - - -




MR ROBSON:  - - - that we would be keen to participate in that conference.  In my mind I think we can cover it from a staffing perspective.


JUSTICE ROSS:  Yes, but look, it's also open to you to have a look at the background paper and to shoot in a note prior to the conference.  The conference will be recorded and transcribed, so you'll have an opportunity to see what everyone is saying.  If anything arises from it - - -


MR ROBSON:  (Indistinct) as I say, depending on how the matter unfolds we may or may not have an interest, depending what the proposed variation is.


JUSTICE ROSS:  Yes, I understand that.  Anybody else?


MS TIEDEMAN:  Yes, just Ms Tiedeman here:  Mr Scott and I are in another hearing on 17 December in another jurisdiction.  It may be the same as Mr Ferguson, in that we can figure out resourcing but I will need to talk to Mr Scott - - -




MS TIEDEMAN:  - - - for arranging that so I'll just touch base and discuss with him.


JUSTICE ROSS:  Thank you, Ms Tiedeman.  Are there any other issues or any other questions?  No?  Thanks very much.  We'll issue the directions later today.  Thanks for your attendance.

ADJOURNED UNTIL TUESDAY, 17 DECEMBER 2019                 [9.51 AM]