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Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


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




9.25 AM, FRIDAY, 6 AUGUST 2021


JUSTICE ROSS:  I'll go through the appearances that I have.  For Ai Group, Mr Ferguson and Ms Bhatt.  For the ASU, Mr Robson.  For AFEI, Ms Lo and Mr Warren of counsel.  ABI, Mr Scott. UWU, Mr Redford and Ms Code.  National Disability Services, Mr Pegg.  AFEA Care Services, Mr Assad.  Leading Age Services Australia, Ms Bailey.  All Suburbs Private Home Care, Mr Gale.  Zest Personalised Care, Ms Morrison and Ms Isoardi.  Life Without Barriers, Ms Cross, Ms Cruden, Ms David and Ms Waskett.  Have I missed anybody?  No?  All right.  We will deal firstly with the two witnesses that are required for cross‑examination.  The first is Ms Leonard.  I would ask that if Mr Chippendale is currently on the conference call, if he can move out of the call into the waiting room.  So you disconnect and then reconnect, and we will keep you in the lobby or the electronic lobby until you're required for cross‑examination.


So let's deal firstly with the evidence of Ms Leonard.  Either Mr Ferguson or Ms Bhatt.


MR FERGUSON:  Thank you, your Honour.


Ms Leonard, can you hear me?


JUSTICE ROSS:  I think we've got to swear the witness in.


MR FERGUSON:  Sorry, yes.


JUSTICE ROSS:  But you're calling the witness?


MR FERGUSON:  I'm calling, yes, Ms Leonard.


JUSTICE ROSS:  I will have my associate swear the witness in, and then we will move through it.


ASSOCIATE:  Can you please state your full name for the Commission.


MS LEONARD:  My name is Aleysia Grace Leonard.

<ALEYSIA GRACE LEONARD, AFFIRMED                                   [9.37 AM]

EXAMINATION-IN-CHIEF BY MR FERGUSON                            [9.37 AM]

***        ALEYSIA GRACE LEONARD                                                                                                 XN MR FERGUSON


MR FERGUSON:  Ms Leonard, can you hear me?‑‑‑Yes, I can.


Ms Leonard, could you state your work address for the record?‑‑‑It's level 1, 333 Collins Street in Melbourne.


Have you prepared a statement for the purpose of these proceedings?‑‑‑I have.


Do you have a copy of that statement with you?‑‑‑I do.


Is it some 108 paragraphs in length?‑‑‑Yes, it is.


Dated 5 August?‑‑‑Yes.


And is it true and correct to the best of your recollections and knowledge?‑‑‑Absolutely, yes.


Your Honour, I seek to tender that statement.


JUSTICE ROSS:  Any objection?  No.  I will mark the statement of Ms Leonard as exhibit AiGroup1.



MR FERGUSON:  Thank you.  Your Honour, the witness is available for cross‑examination.


JUSTICE ROSS:  All right.  Thank you.  I think the HSU indicated they wished to cross-examine Ms Leonard.  Is the HSU represented at the hearing?  Do any of the other unions wish to cross-examine Ms Leonard?


ASSOCIATE:  It appears that Ms Svendsen from the HSU is on the line, but perhaps frozen, from what I can see here, your Honour.


JUSTICE ROSS:  All right.  We will just pause for a moment and we will contact Ms Svendsen and ask her to reconnect.

***        ALEYSIA GRACE LEONARD                                                                                                 XN MR FERGUSON


Bear with us for a moment, Ms Leonard.


ASSOCIATE:  I think we should have Ms Svendsen back on the line okay, your Honour.


JUSTICE ROSS:  Ms Svendsen, do you have any questions for the witness?


MS SVENDSEN:  Thank you, your Honour.  I apologise for all those connectivity issues.  I've decided that as a consequence of that I will actually turn my video off in a moment, but I thought that I would say hello to Ms Leonard before I do so so that the disembodied voice is not quite so bad.

CROSS-EXAMINATION BY MS SVENDSEN                                   [9.41 AM]


MS SVENDSEN:  Ms Leonard, I did want to ask you in relation to your statement just a couple of questions.  You provide a list of the challenges that you are facing.  Can you tell me, before we have a look at those, do you know what date the decision was handed down?‑‑‑So it was handed down in May, I believe.


And do you know when you and the organisation - you remember when you and/or the organisation was aware?‑‑‑Of the decision?  The entire organisation, I can't speak for everyone else, we were all aware around the May mark.  However, I obviously can't speak on behalf of the rest of the operational team on exactly when they were aware.


No, of course you can't.  I just was thinking generally anyway?‑‑‑Generally I would say May.


You list a range of things in your statement, so rostering challenges; the steps that you're required to change working arrangements, all of those things; the training requirements in particular, you go into in the steps that you will be required to change; the system upgrades; the renegotiation of client agreements; impact of other award changes, because you're already undertaking those in the organisation; and the final - and the impact of the decision finally.  You talk specifically at 73, you indicate that operational decisions about implementation of changes in relation to this decision haven't yet been made?‑‑‑Yes.

***        ALEYSIA GRACE LEONARD                                                                                                XXN MS SVENDSEN


Does that mean that you haven't started any planning or processes around this decision?‑‑‑So I guess if you look at the entirety of the statement, we've had high level discussions about the decision, but obviously the specifics and the final drafted clauses aren't final yet, so the operational team hasn't made final decisions on how to implement all of the changes based on all of the other things that are listed in my statement as well.


Do I understand you to mean that because you haven't made any of those operational decisions, you haven't started any of the work towards things like reviewing your rosters, and what challenges would be there; or processes and policies you might need?‑‑‑Yes, we haven't started any of that work yet.


Okay, no worries.  No further questions.  Thank you.


JUSTICE ROSS:  Any other cross‑examination of this witness?  No.  Re‑examination?


MR FERGUSON:  Nothing arising, your Honour.


JUSTICE ROSS:  Any questions, Mr Ferguson?


MR FERGUSON:  Nothing arising, your Honour.


JUSTICE ROSS:  Thank you for your evidence, Ms Leonard.  You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                            [9.44 AM]


JUSTICE ROSS:  We will now turn to Mr Chippendale.  We will admit him and I will have my associate swear him in.


ASSOCIATE:  Mr Chippendale, can you please state your full name for the Commission.


MR CHIPPENDALE:  Christopher Richard Chippendale.


EXAMINATION-IN-CHIEF BY MR FERGUSON                            [9.45 AM]


JUSTICE ROSS:  Mr Ferguson?

***        CHRISTOPHER RICHARD CHIPPENDALE                                                                          XN MR FERGUSON


MR FERGUSON:  Thank you, your Honour.


Mr Chippendale, have you prepared a statement for the purpose of these proceedings?‑‑‑Yes, I have.


Is that statement some 67 paragraphs in length?‑‑‑Yes.


And does it contain four annexures?‑‑‑Yes, it does, that's correct.


Do you have a copy of that statement with you?‑‑‑Yes, I do.


Is that statement true and correct to the best of your recollections?‑‑‑Yes, it is.


Your Honour, I tender that statement.


JUSTICE ROSS:  I will mark the statement of Mr Chippendale exhibit AiG2.



MR FERGUSON:  Your Honour, the witness is available for cross-examination.


JUSTICE ROSS:  Thank you.  The ASU had indicated it wished to put some questions to the witness.  Mr Robson?


MR ROBSON:  Yes, thank you, your Honour.  I sent through some documents shortly before the hearing.  Does your Honour have them in front of you?


JUSTICE ROSS:  Yes, we do.  I'm not sure whether the witness has them or not?‑‑‑Yes, I do.


All right.


MR ROBSON:  Apologies, your Honour, I'm having some trouble with my internet connection.  I've turned off my camera, but if you've said something, I may not have heard it.

***        CHRISTOPHER RICHARD CHIPPENDALE                                                                          XN MR FERGUSON


JUSTICE ROSS:  No, well, we've got them in front of us and the witness has them in front of him.


MR ROBSON:  Excellent, thank you.

CROSS-EXAMINATION BY MR ROBSON                                       [9.47 AM]


Mr Chippendale, my name is Michael Robson, I'm in industrial officer with the Australian Services Union.  I have some questions for you?‑‑‑Yes.


I would like to take you to paragraph 4 of your statement.  There you say you and your team act as the secretariat of Alliance20?‑‑‑Yes.


There's a long list of organisations there?‑‑‑Yes.


But you haven't been authorised to speak on their behalf or represent Alliance20 in these proceedings?‑‑‑That's correct.


When you say that you've spoken to members of Alliance20 or you have participated in meetings, that's only what - you're only reporting what people have told you?‑‑‑That's correct.


So you're not privy to their internal operations or any of their financial reports or internal activities?‑‑‑That's correct.


Thank you.  I would like to take you to paragraph 56 of your statement?‑‑‑Fifty-six, yes.


There you mention a comment by the Minister for the NDIS in hearings on 18 May and there's a footnote down at the bottom with a link to the website where that's available?‑‑‑Yes.  I don't think I mention it in 56.


Sorry, paragraph 55, I'm sorry?‑‑‑Fifty-five, right.  Yes.


Yes, that second sentence:

***        CHRISTOPHER RICHARD CHIPPENDALE                                                                             XXN MR ROBSON


The Minister for the NDIS made clear during those proceedings that it is the Commonwealth Government's position that the expected growth in demand for the scheme cannot sustainably be supported by the scheme as it currently operates.




Do you have in front of you or on your computer a document titled "Official Committee Hansard"?‑‑‑Yes, I do, I have it in front of me.


Do you know what that document is?‑‑‑Well, it's the Hansard - it's a report of a joint standing committee, I believe, or, sorry, it's a Hansard transcript of a joint standing committee on the National Disability Insurance Scheme session or hearing.


Yes.  Is that the document you reference at paragraph 55 of your statement?‑‑‑18 May, yes.


Minister Reynolds' transcript starts at page 21.  Can I take you to that?‑‑‑Twenty-one, yes.


Does Minister Reynolds - and if you don't know, please say - mention the workforce of the NDIS at all in these statements?‑‑‑Look, I don't know.  I'd have to read it in detail.


No, that's fair enough.  At page 32, if you can go down there?‑‑‑Yes.


Ms Reynolds is talking there, further down the page below a comment by Mr Hoffman, Senator Reynolds starts speaking about some of the unfairness that's been identified about, you know, the different packaging amounts that go to different participants in different areas?‑‑‑Sorry, towards the bottom of the page, is it?


Yes, towards the bottom of the page?‑‑‑Yes.


She's speaking about there's disparities in outcomes between different participants, depending on where they are located?‑‑‑Yes.

***        CHRISTOPHER RICHARD CHIPPENDALE                                                                             XXN MR ROBSON


This is in the context of independent assessments.  Do you understand what the Minister was talking about when she refers to independent assessments?‑‑‑Yes, I do.


Could you explain that to the Commission?‑‑‑Certainly.  There was a proposed change for participants, as they access the scheme or have their plans renewed, to have an assessment by some sort of health professional or allied health professional independent from their current service provider or current doctors or their own allied health professionals, the idea being that (a) they were independent and (b) they were sort of a standardised assessment, if you like, and the idea was to use those independent assessments across the board to give consistency and therefore kind of fairness and equity.  So, decisions about, you know, what's in people's individual packages for support.


Just going through the document, at page 32 again on the sheet, but page 36 if you're following on an Adobe PDF, Senator Reynolds again makes a statement.  Can you see there where she says that negotiating individual supports is a key driver of the inflationary effect of these packages?‑‑‑Is it towards the bottom of - - -


MR FERGUSON:  Perhaps if Mr Robson could describe where it is.  He might be attempting to do that now.


MR ROBSON:  Yes, of course.


JUSTICE ROSS:  Mr Robson, can I also make the observation, if there are parts of this you want to draw our attention to, you can tender the transcript and you can draw our attention to it in a submission, in oral submissions.  The witness - nothing is added to the evidence by having the witness taken to it and saying, "Do you see that?" and he says "Yes", so unless it's something to do with his statement, having the witness agree that there's something in this transcript that you want to draw our attention to doesn't seem to be advancing it much.


MR ROBSON:  Yes, of course.  I'll put the proposition to the witness.

***        CHRISTOPHER RICHARD CHIPPENDALE                                                                             XXN MR ROBSON


Mr Chippendale, I put it to you that when the NDIS Minister is making comments here about the sustainability of the scheme, what she's referring to is the types of supports that are funded by the scheme and the number of supports that are funded by the scheme and she's not making reference to the pay and conditions of the workforce?‑‑‑In this evidence, I'd have to - I think I'd have to read it in detail to answer confidently, but if it's helpful, I can say that there's a concern, I understand, from government and also within the disability sector, that the overall sustainability of the scheme is an issue, and there's a need, I think from government, to make sure that the overall funding envelope is met, you know, to get the scheme sustainable and operational.


I'll also put it to you that she's referring to the balance of supports for people with disability that are funded under the NDIS and by state-based services?‑‑‑Sorry, I don't - could you repeat the question?  I don't follow.


Look, I'll withdraw that question.  Can I take you to the second document we've given you?‑‑‑Yes.


On the first page it's got a title.  It says, 'NDIS National Workforce Plan 2021-2025'?‑‑‑Yes.


If you go to page 8, it identifies some of the workforce challenges faced by the sector?‑‑‑Yes.


It identifies at page 10 and 11 the number - at page 10, the number of - the number of employees that need to be retained in the workforce over the next three years to 2024?‑‑‑From page 10?




That number would be 213,000 workers?‑‑‑That's correct.


Yes, and if you go to page 11, the sector needs to - the sector needs to identify to attract 83,000 additional workers on top of the ones that it needs to retain?‑‑‑83,000 net, yes, that's what it says.


Could you tell - have you seen this document before, Mr Chippendale?‑‑‑I have, yes.


Do you know what it - could you explain what it is?‑‑‑I haven't looked at it in detail but essentially it's recognised in the sector that, as we've just said, there's a need for additional workers in the sector to give life - to support people under the NDIS, and there's a number of proposals in here from a range of different parties to get there, including workforce attraction strategies, some things providers can do, some things government can do.  So it's a strategy to, if you like, lift the profile of the workforce and be an attractive employer for people (indistinct) attractive employer.

***        CHRISTOPHER RICHARD CHIPPENDALE                                                                             XXN MR ROBSON


Who produced this strategy?‑‑‑I think it's the Department of Social Services (indistinct) - - -


Yes, and are they the department that's responsible for overseeing the NDIS?‑‑‑Well, the Department of Social Services does a number of NDIS related activities, workforce strategy being one and some of the police positions for the NDIS but separately there's the NDIA, the National Disability Insurance Agency which oversees the day to day operation of the NDIS.


Yes.  Can I take you to page 15?‑‑‑15.  Yes.


At the top there it identifies three challenges that the DSS report?‑‑‑Yes.


The second one of those is:


Variable and disconnected working conditions with more training opportunities, impact retention and quality.




The first challenge is that the poor perception of the sector and the unsupported entry pathways hinder attraction?‑‑‑Yes.


You can see below there that the DSS has identified that:


Disability support work is perceived to have low prestige, low pay and fewer opportunities for career progression.




One of the findings in it - in this plan is that:


Low and variable hours affect take home pay.


?‑‑‑Yes, that's what - yes, that's what it states.

***        CHRISTOPHER RICHARD CHIPPENDALE                                                                             XXN MR ROBSON


Yes.  So I put it to you, Mr Chippendale, that for all the challenges presented by the decision that you've identified in your statement, there's a countervailing problem for the sector that it needs to attract a new workforce, and the low pay caused by variable and irregular hours is one of the issues that needs to be addressed?


MR FERGUSON:  I object to that.  Your Honour - - -


JUSTICE ROSS:  Just wait.  Just wait.  Mr Chippendale, I'd ask you to - if you can leave the conference go into the - and reconnect into the waiting room while we deal with the objection?‑‑‑Leave and reconnect?  Will do.  Thank you.



<THE WITNESS WITHDREW                                                          [10.01 AM]


JUSTICE ROSS:  Yes, Mr Ferguson.


MR FERGUSON:  Just an objection on the basis of relevance.  It's not clear what relevance - - -


MR ROBSON:  Well, it's plainly relevant - - -


MR FERGUSON:  It was just in the context and I'll take it no further, the proceedings around the safety net where we'd say that that's not a relevant consideration.


JUSTICE ROSS:  No.  We'll put the question.  Ask Mr Chippendale to come back in.




THE ASSOCIATE:  We're just waiting for Mr Chippendale to re-join via Teams.  Just admitting Mr Chippendale now.


JUSTICE ROSS:  If you can re-put the question, Mr Robson.

***        CHRISTOPHER RICHARD CHIPPENDALE                                                                             XXN MR ROBSON


MR ROBSON:  Thank you, your Honour.  Mr Chippendale, you've identified a number of challenges for Life Without Barriers in implementing the Commission's decision.  Is it not true that there is a countervailing force that the sector needs to attract and retain workers, and one of the - in a very short period of time and one of the problems with attracting and retaining workers is low pay, caused by low and variable hours?‑‑‑I think there's some truth in that.  I think it's certainly true to say there's a number of factors affecting Life Without Barriers' operations, including the need to attract additional staff and there's a number of issues in that and, you know, pay is possibly and probably, from my position, one of those factors.


Yes.  Thank you, Mr Chippendale.  Can I take you to page 30 of the document?‑‑‑Of the DSS document?


Yes, of the DSS document?‑‑‑Yes.


I might actually take you to page 29, Mr Chippendale first.  At the top of the document it identifies initiatives that have been identified to remove red tape and encourage new service models and improve market information?‑‑‑Yes.


Then below it, it lists a number of identified measures.  And item 11, that says:


The sustainability and effective operation of the market will also be supported by continued improvement of the NDIS pricing approaches.




On page 30 there's a table and the second row in the initiative column it again says:


Continue to improve NDIS pricing approaches -


And so on?‑‑‑Yes.


There in 'How it will work' it says:

***        CHRISTOPHER RICHARD CHIPPENDALE                                                                             XXN MR ROBSON


The Australian government will continue to consider pricing approaches that improve the effective operation of the market of NDIS services and including it in markets and this will include a pricing project considered to improving pricing practice to the government, building market confidence, consumer choice and supporting workforce development.




So when you say in your statement that there's no certainty about whether pricing would be updated by the NDIA to reflect the changes that will be coming to the award, is it not true that this is just speculation, and that there's documentary evidence from the Department that's responsible for governance of at least part of the scheme that there will be quite an improvement?‑‑‑What you've pointed to there is a statement that the government will have a project to improve pricing arrangements.  To date, as I outlined in my statement, there's a number of concerns (indistinct) has around the current pricing arrangements, and to date a number of those concerns remained outstanding; so therefore the flow-on effect of this decision, it's not clear, and it's certainly not guaranteed, but I think, would be my judgment, that the government will flow on the - you know, the imposed costs into the - through the pricing system.


Yes.  Thank you, Mr Chippendale.  I have No further questions for him.


JUSTICE ROSS:  Is there any other cross‑examination of Mr Chippendale?  No.  Any re‑examination, Mr Ferguson?


MR FERGUSON:  No thank you, your Honour.  Nothing arising.


JUSTICE ROSS:  Thank you, Mr Chippendale.  You're excused?‑‑‑Thank you very much.

<THE WITNESS WITHDREW                                                          [10.07 AM]


JUSTICE ROSS:  Mr Robson, is it your intention to tender the documents you took Mr Chippendale to?


MR ROBSON:  Yes, your Honour.  I tender both documents.


JUSTICE ROSS:  The first is the Hansard of the joint standing committee on the National Disability Insurance Scheme proceedings of 18 May 2021, I will mark that exhibit ASU1.  The second document is the NDIS national workforce plan 2021 to 2025, it's dated June 2021, I will mark that exhibit ASU2.

***        CHRISTOPHER RICHARD CHIPPENDALE                                                                             XXN MR ROBSON




In relation to the remaining witness statements, I would mark the statement of Mr Christopher Nelson as exhibit AiG3.  I'm taking it that you're wanting to tender all of these, Mr ‑ ‑ ‑


MR ROBSON:  Yes, your Honour.  Thank you for that.


JUSTICE ROSS:  I will mark that one exhibit AiG3; the statement of Mr Craig McArthur as exhibit AiG4; and the statement of Mr Richard Cabrita as exhibit AiG5.





I think that's all of your witnesses, Mr Ferguson?


MR FERGUSON:  That is, your Honour.  Thank you.


JUSTICE ROSS:  And there's a witness from the AFEI.


MR WARREN:  Yes, your Honour, Warren ‑ ‑ ‑


JUSTICE ROSS:  It's a statement of Ms Kylie Lambert.


MR WARREN:  That's correct.


JUSTICE ROSS:  I will mark that exhibit AFEI1.



MR WARREN:  Thank you.


JUSTICE ROSS:  That concludes the witness evidence.  Can I turn to the issue of the hearing date in respect of remote response and damage clothing.  We indicated we would settle the hearing date during the course of the hearing.  The Full Bench is proposing to hear those matters at 9.30 am on Wednesday, 1 September.  Is there any issue or comment about the date?


MR FERGUSON:  No, your Honour, that's fine.


JUSTICE ROSS:  And Clancy DP will take you through his availability, I think, in the week commencing 16 August for a conference.  So I would ask the Deputy President to deal with that issue.


DEPUTY PRESIDENT CLANCY:  Thank you, your Honour.  The parties are asked to indicate whether they're available on Wednesday, 17 August(sic), I have availability all day; and also Thursday, 19 August I have availability until 1 pm that day.


MR FERGUSON:  Your Honour, Mr - sorry, Deputy President.  Mr Ferguson, if I ‑ ‑ ‑




MR FERGUSON:  ‑ ‑ ‑ I'm in other proceedings on the 17th and unavailable between 10 and 2.00, but I'm available on the 19th.




MR WARREN:  With respect to AFEI, your Honour, all those dates are fine with that organisation.




MR ROBSON:  Your Honour, Mr Robson for the ASU.  We're available at both of those dates.




MR REDFORD:  Your Honour, Ben Redford for UWU.  I seem to have the 17th as the Tuesday.  I think your Honour mentioned the Wednesday, I think that's the 18th.  I just wanted to check that that might not impact on the other parties.


DEPUTY PRESIDENT CLANCY:  It was the Tuesday or the Thursday, and the Thursday until 1 pm.


MR REDFORD:  I'm available on the Thursday, your Honour.  I have another commitment on the Tuesday.




MS SVENDSEN:  Leigh Svendsen from HSU, your Honour.  I can make myself available by moving things around on both dates.


DEPUTY PRESIDENT CLANCY:  Thank you very much.


MR SCOTT:  Deputy President, it's Mr Scott on behalf of ABI, ACSA, LASA, and the New South Wales Business Chamber.  Both of those days are suitable for us.  Thank you.




MR PEGG:  Deputy President, it's Mr Pegg for National Disability Services.  Both of those days are okay for us.


DEPUTY PRESIDENT CLANCY:  Thank you.  Is there anyone further who needs to indicate availability, please?  Thank you.  My proposal would be that we conduct a conference on Thursday, 19 August, commencing at 9.30 am.  Listing notice will be sent for that.


JUSTICE ROSS:  Can we move to the other matter that we indicated we would deal with as a preliminary issue, and this is Ai Group's proposal that - well, however one frames it - we not deal with it to finality.  I'm not quite sure what that means, but it's raising an issue about the broken shifts question, in particular the response from the unions regarding the application of shift penalties, and Mr Pegg's proposal that the broken shifts clause be limited to day workers.


I just want to get a bit more detail from Mr Pegg and the unions about their particular proposal before we invite comments in response to what Ai Group said.  Mr Pegg, you're proposing, as I understand it, that the broken shifts be limited to day workers.  I've taken that to the way you've framed your draft variation that if a day worker works a broken shift that is outside the span of hours, that is from 6 am to 8 pm, let's say their shift takes them till 8.30 pm, then that 30 minutes outside the span would be paid at overtime rates.  Is my understanding correct about that?


MR PEGG:  That's correct, your Honour.  That was how we read the effect of the decision, was that the new 25.6(d) would replace the current provision for shift penalties by saying that it's the relevant - the broken shift allowance in addition to any overtime or weekend rates that might apply.


JUSTICE ROSS:  All right.  And I take it the confining of the broken shifts to day workers, is that put on the basis that it broadly aligns with the evidence, which was that peak times for home care and disability support services were around the meal breaks and clothing and washing in the morning, and then during the course of the day at lunchtime and in the early evening.


MR PEGG:  In part.  There are two aspects, that's certainly a part of it.  The other part of it I guess is really just a technical reading of how the award currently defines day work and shift work.  So on reflection, and taking into account the AiG submission in reply, our proposal is perhaps not the most elegant way of putting it, because I think the term "day worker" has a common sense sort of meaning that is perhaps being stretched a bit.  But it's an attempt to - what we thought we were doing was to clarify that in any broken shift where the hours are worked outside of the span of hours, the overtime provisions would apply.


JUSTICE ROSS:  Yes, I followed the gist of the proposal.  Can I go to Mr Robson of the ASU.  Mr Robson, at paragraph 43, we have set out how you propose the draft determination be amended.  I want to get an understanding of how that would work in practice.  So, if we stick with the example I gave earlier, we assume that the broken shift provision has gone into the award with your variation and someone who is ordinarily a day worker might start at 10 in the morning, has a break in their shift and finishes their shift at 8.30 pm and they only had one break, they would be entitled to the loading, the shift loading, if I can put it - sorry, the broken shift loading, if I can put it that way.  Now, the portion that they work after 8 pm, let's say they work through until 8.15 pm, what's the effect of your change then?  What would they get paid under your proposal?  Mr Robson?


MR ROBSON:  I'm sorry, your Honour, were you speaking to me or Mr Pegg?


JUSTICE ROSS:  No, I was speaking to you.


MR ROBSON:  Apologies.


JUSTICE ROSS:  It's your proposal to vary the draft determination and your proposal is set out at paragraph 43.  My question for you is, if someone normally works during the day, they start a shift, let's say, at 11, it's a broken shift, there's one break in the afternoon and then they continue working and they finish work at 8.15 pm.  They are paid the broken shift allowance for the one break.  What's the effect of your change?  What else would they be paid?


MR ROBSON:  Yes, your Honour, now I understand.  So, it would depend on whether they were a day worker or a shift worker.  If they were a day worker in the example that you set out in the decision, they would be paid as they were in that example, and presumably finishing at 8.15 would be genuine overtime, you know, quite possibly someone would have - they would have been running late at the end of the day or - - -


JUSTICE ROSS:  Sure, but what do you mean if they're not a shift worker?


MR ROBSON:  Well, the award does create a difference between shift workers and day workers.  You have to be designated as a shift worker and you're only entitled to the shift penalties in clause 29 if you are a shift worker.  Now, we would say that in practice that hasn't meant very much because there isn't very much in the award to enforce that difference and, you know, most people working in the disability sector would probably be classified as shift workers, but under the Commission's proposal, as we read it, if you were a designated day worker working a broken shift, you would be paid the broken shift allowance and then, if you worked after the hour of - after 8 pm, which is outside of the span, you would then be paid at the overtime rate of pay.


JUSTICE ROSS:  Yes.  Mr Robson, it's not the Commission's proposal that it be confined to day workers; that's for Mr Pegg to provide clarification.


MR ROBSON:  Yes, and then the point of our proposal is that there are shift workers who work broken shifts, and this is clearly contemplated by the clause, this is why there is a reference to shift penalties in the current broken shift provisions, and what - - -


JUSTICE ROSS:  No, the reason why there's a reference to shift penalties is that's just a means of paying.  It's not - I don't follow how it says anything about that shift workers ordinarily work broken shifts, it just says payment for a broken shift will be in accordance with that.


MR ROBSON:  Yes, except that shift workers may work broken shifts under the award and certainly the evidence from our members if that they do.


JUSTICE ROSS:  Yes, but don't give evidence from the Bar table, Mr Robson.  If it's not before us - - -


MR ROBSON:  I'm sorry, your Honour, I would like to take you to the statement of Mr Tino Encabo that was filed in these proceedings.




MR ROBSON:  Do you have a copy of the court book in front of you because that's the document I'm going to be referring to?


JUSTICE ROSS:  No, I don't, you'll just have to take us to the paragraph and we'll look at that.


MR ROBSON:  All right.  Mr Encabo's statement has several attachments that describe his hours of work.  He regularly works broken shifts; he is a part-time worker and regularly accepts additional hours; he works sleepover shifts with periods of work before and after, and there are broken shifts in the day and he works broken shifts at times that would be shifts.  The example that you asked for, your Honour, in the Issues paper would be Tuesday 16 October 2018, and this is in attachment A to Mr Encabo's statement.  There Mr Encabo works from 3 pm to 6.30 pm with one client.  His next shift starts at 7 pm where he works until 10, and then he works a sleepover shift.  We just don't see any way that you could in any way fairly say that Mr Encabo working that pattern of work would be a day worker.


JUSTICE ROSS:  All right.  Well, if he's not a day worker and he's a shift worker, then he gets paid the shift loading, doesn't he?




JUSTICE ROSS:  Which is what he would be being paid before this case started.




JUSTICE ROSS:  So how would he be disadvantaged by confining the broken shift provision to day workers?


MR ROBSON:  Well, if it was very clear that a shift worker couldn't have their shift broken, it wouldn't - - -


JUSTICE ROSS:  No, no, how was it clear before that a shift worker couldn't have their shift broken?


MR ROBSON:  We're not saying that it is, we're saying that shift workers can have their shifts broken.




MR ROBSON:  The issue with - - -


JUSTICE ROSS:  But how is he worse off, is my point than the award provision before if the broken shift provision is confined to day workers?


MR ROBSON:  Well, he's not necessarily worse off, but, as the employers have submitted and given evidence, they will be restructuring their operations, so Mr Encabo may not be working that same pattern of work after the organisation has been restructured.  In this case, it's very difficult to identify what exactly happens to Mr Encabo, but - - -


JUSTICE ROSS:  But is he a shift worker at the moment?


MR ROBSON:  I'm not aware.  I haven't contacted him before today, but this certainly shows that there is a pattern of work in the industry where there are shift workers - - -


JUSTICE ROSS:  No, no, Mr Robson, what it shows is one witness and one witness's experience.  It doesn't show a pattern across the industry at all.


MR ROBSON:  We say there's a number of ways that employees would be worse off under Mr Pegg's proposal.  The first one would be that - well the first one would be Mr Pegg makes comparisons between payment of shift penalties and the payment of overtime for that portion of the shift that is worked after 8 pm?‑‑‑Yes.


That analysis leaves out the personal leave, the annual leave and other accruals that come with ordinary hours of work, and the numbers don't just quite add up, especially when a person is working a longer period of work and particularly so if there's a longer period of overtime that's worked after 8 pm.  That's going to cause problems in just a very practical sense when a person goes on annual leave.  Those ordinary hours - those hours or work that have regularly been worked and paid as overtime won't be paid when someone goes on annual leave, and it's quite likely that they'll see a drop in their income.


JUSTICE ROSS:  Yes, but I don't see how any of that's changed by Mr Pegg's example or by the payment of overtime for work performed after 8 pm.  If they're day workers then at the moment ordinary hours is defined as hours worked between 6 am and 8 pm.


MR ROBSON:  Yes, that's quite right.


JUSTICE ROSS:  Then the fact that they work till 8.30 and they might work regularly to 8.30 and they're paid overtime for it, well that's got nothing to do with Mr Pegg's proposal.  That's how the award works at present.


MR ROBSON:  But I suppose, your Honour, the position where we're coming from is that we don't necessarily believe that that's what the award says at present, that overtime is payable when a part-time employee, in particular, works beyond the span of hours.  Those hours could be worked as additional hours at the ordinary rate of pay and I think Mr Pegg's proposal - I suppose if the award is varied so that a shift worker cannot work a broken shift, then that isn't a problem but the question will be how will those hours of work that are being rostered after 8 pm be dealt with.  Because there are shift workers who work broken shifts, who do work after 8 pm.  Will those broken shifts be - will they be - will those employees be changed that they're only day workers, or will they be working continuous hours?


JUSTICE ROSS:  Well, on Mr Pegg's proposal there'd be - as I understand it, there'd be a couple of observations.  One, the provisions in relation to broken shifts in what is proposed to be 25.6 would only apply to day workers.  There would be no provisions dealing with broken shifts for afternoon or night shift.  That is no constraint on the working of broken shifts in afternoon or night shift, and that was the position prior to these proceedings.  It's the position in the award at the moment.  There is nothing to stop a broken shift in an afternoon shift worker or a night shift worker.


MR ROBSON:  Yes, I understand.


JUSTICE ROSS:  Mr Pegg's proposal doesn't change that.  It's just confining our decision to day workers.  It's difficult to see how the unions can complain about that in circumstances where you didn't make the claim to change anything for afternoon or night shift workers, in respect of their broken shifts.


MR ROBSON:  Well, I'm sorry, your Honour, I don't think that's - I don't think that's true.  Our claim concerned everybody who worked a broken shift and - - -


JUSTICE ROSS:  Yes, but it only changed it in relation to the morning, the payment of the shift loading if you commenced prior to 6 am.  That was the only change.  So in other words, your claim would have changed nothing for someone who worked an afternoon shift.


MR ROBSON:  Yes, but the unions have made various claims.  The ASU claimed for a loading on top of the shift loading.


JUSTICE ROSS:  Sure, yes.


MR ROBSON:  The HSU made a claim that would have changed how the shift penalties are calculated on particular shifts that would be worked but also imposed a number of restrictions on how a broken shift should be worked.  That certainly was not made and Ms Svendsen can speak to this in more detail than me, but that claim certainly was not made so that there would be restrictions on how shift work - broken shifts could be worked by day workers but not by night shift workers.


JUSTICE ROSS:  Well, maybe we go back to your claim and we could consider removing the loadings that we've proposed and simply agree to the morning shift provision that you wanted.  That most of the employer organisations were supporting.


MR ROBSON:  So firstly, your Honour, that wasn't the ASU's claim.  Our claim was for an allowance on top of the existing loadings, a percentage.  Certainly I think - - -


JUSTICE ROSS:  And we've rejected that for the reasons we gave.


MR ROBSON:  Indeed, and the HSU also made a claim for a broken shift allowance.


JUSTICE ROSS:  Well, even if you did we'll accept the other union's position in relation to the morning shift's start time.


MR ROBSON:  Yes, sir, and that's the proposal that we've made.  What we've identified in our submission is that there is problem in the draft determination as put to us by the Commission and leaving aside Mr Pegg's submissions for the moment, where it didn't seem to us that the intention from the Commission's decision was to remove the payment of shift penalties and public holiday penalties to an employee working a broken shift.


JUSTICE ROSS:  Well, it was our intention that you wouldn't get both.  If you were a day worker in the example I've given and your work finished at 8.30, you wouldn't get both the afternoon shift payment and the broken shift penalties.


MR ROBSON:  Right.  Well, I suppose the - look, I suppose the problem then with the draft determination, if that was the Commission's intention, is that it appears to exclude the night shift penalties in total.  So it doesn't deal with the rate of pay for a worker working an afternoon or a night shift, and also doesn't deal with minimum engagements or the number of breaks that may be worked by someone.


JUSTICE ROSS:  No, that's true because almost all the evidence was about day work, and the breaking of shifts during the course of a day.  That is between 6 am and 8 pm.


MR ROBSON:  Well, sir, we may have misunderstood the decision.  (Indistinct) - - -


JUSTICE ROSS:  Well, the decision's just responsive to the evidence, Mr Robson.  You've pointed to one witness but the bulk of the evidence about broken shifts was referring to it between the span of hours, 6 am to 8 pm.  The examples outside the span of hours were the exceptions and the evidence broadly was that people were required to work with various breaks at around particular meal times, because that was when the demand was from clients, particularly disability services and home care.


I mean part of the problem, frankly, is that you've got three unions with vastly different claims in this space and apparently no discussion between them, or any attempt to rationalise their positions.  And now we are where we are.  Well, Mr Robson, what you've outlined just sort of highlights the fact that well, we may need more time to consider the broken shift matter.  Certainly on the basis of one witness' experience, I don't know how we can make a decision based on that.  Ms Svendsen, you want to say something?


MS SVENDSEN:  Yes, your Honour.  I was just - I'm just - I'm trying to get my head round this.  So you've - is it your intention, the intention of the Commission, that broken shifts can only be worked by day workers and that somebody who worked from - - -




MS SVENDSEN:  Okay, so - - -


JUSTICE ROSS:  Listen, and neither is Mr Pegg's proposal confining broken shifts to day workers.  It simply seeks to regulate broken shifts for day workers.


MS SVENDSEN:  Okay, so - - -


JUSTICE ROSS:  Our focus was on day workers because that followed the evidence.  I can't recall the unions making any large point about people working night shift and working broken shifts; it was mainly around the people who were working during the day between 6 am and 8 pm.


MS SVENDSEN:  I hear what you're saying about that, about the evidence.  I'm wondering about if people are rostered, though, as a normal process to 9 pm or 10 pm, and there is some evidence that people are certainly working those shifts, although some of those are not provided - some of those are in the other case - I can think of Scott Quinn in the part-time and casual case, and I don't have the reference at the moment, and he was certainly working in the evening regularly.  Regardless of that, what happens if you are doing that?  Is the intention that they aren't broken shifts or is it the intention that someone who is a shift worker would still receive shift penalties?


JUSTICE ROSS:  If someone is a night shift worker, for example - bear with me for a moment.  So, they're an afternoon shift worker, they finish at 11 pm each night and they work a broken shift.




JUSTICE ROSS:  Well, nothing would change for them.  If you adopted Mr Pegg's proposal, they would still be paid the afternoon shift loading and they could be working a broken shift, there's no limitation on the capacity for the employer to roster them on a broken shift now.


MS SVENDSEN:  I think that's not being adhered to.


JUSTICE ROSS:  What isn't being adhered to?


MS SVENDSEN:  Not rostering them on broken shifts.


JUSTICE ROSS:  No, no, I didn't say that they couldn't be rostered on a broken shift.  My point is they can be rostered on a broken shift.


MS SVENDSEN:  Okay.  I'm sorry, your Honour, I believe that - my perception is that the draft determination doesn't enable what you've just described.  It would seem to me that it doesn't say that - it doesn't deal with, therefore, shift workers and a broken shift and - - -


JUSTICE ROSS:  No, no, it doesn't.




JUSTICE ROSS:  The reason it doesn't is that wasn't the focus of the case.


MS SVENDSEN:  Yes, but I understand what you say - - -


JUSTICE ROSS:  The focus of the case and the evidence was on day work.


MS SVENDSEN:  I understand what you're saying about that.  My concern is how we do deal with the issue if workers are working broken shifts.


JUSTICE ROSS:  Sure.  My point is that, well, now that you've raised that concern, that means that we're going to need to hear evidence about the pattern of working for afternoon and night shift workers.  I would say that we have discussed the issue of public holiday penalties and that was an inadvertent omission.  We did not intend to remove the public holiday penalties, but we had not turned our mind to the position of someone on afternoon or night shift because that wasn't the focus of the evidence.  We had turned our mind to someone who is working a broken shift as a day worker and they shouldn't get the benefit of both the broken shift penalties we were proposing and the afternoon shift penalty, for example, if they happen to work until 8.15.  Mr Ferguson?


MR FERGUSON:  Sorry, yes, your Honour.  If I could just tentatively assist with raising one issue for you, just so that we're all on the same page.  I think one of the controversies about the operation of the award that seems to be revealed by Mr Pegg's submissions is the operation of clause 29.4 of the shift work provisions and its interaction with broken shifts.




MR FERGUSON:  I think this is the issue.  It seems that the parties are all of the view that shift work can be done in broken shifts and Mr Pegg proffers a view that that's a product of the broken shift provisions, which clearly contemplate shift workers working broken shifts, but 29.4 requires that - - -


JUSTICE ROSS:  Yes, I see.


MR FERGUSON:  So it seems to me there's - - -


JUSTICE ROSS:  Yes, I follow.  I'm not sure the broken shift clause does contemplate.  It's simply dealing with payment for a broken shift and talks about with penalty rates and shift allowances in accordance with it.


MR FERGUSON:  Which I think it drew to our attention the fact that there might be some - I don't want to label it now, but some anomaly in the terms of the award currently.


JUSTICE ROSS:  Well, I'm not sure about that because 29.4 seems clear and 29.4 would prohibit the working of broken shifts in respect of afternoon and night shifts


MR FERGUSON:  I understand, which is why we suggested we would want to give some further consideration to this, just because there appears to be an obvious tension between two parts of the award.  One provides for a payment for shift work being undertaken on broken shifts, another provision - - -


JUSTICE ROSS:  No, no, it doesn't provide for a payment for shift work.  That's not what 25.6(b) provides.  It provides payment for a broken shift.




JUSTICE ROSS:  And it defines what a broken shift means in 25.6(a) and the payment is provided by reference to the shift allowance, but it's only a mechanism for referring - for calculating the payment.  And then you've got the express term in the shift work clause that says shifts - and it must be afternoon, night and public holiday shifts because they're referenced in 29.2(a), (b) and (c) - are to be in one continuous block.


MR FERGUSON:  No, I understand the issue, and the reason why we hadn't wanted to express a sort of comprehensive view about this is whether the intentions or the reference to "shift" was meaning to pick up ordinary hours as opposed to other hours, and the fact that the payment would only be triggered potentially by a span of hours, or might be triggered by a span of hours, outside of the ordinary hours - - -


JUSTICE ROSS:  What payment are you talking about?


MR FERGUSON:  The shift work payment that was calculated pursuant to 25.6(b) by reference to clause 29.




MR FERGUSON:  If those shifts finish after 8 or after midnight, they seem to be outside the spread of hours possible for the day worker, and I would have thought that perhaps the contemplation of a shift within the text of the award was a pattern of ordinary hours as opposed to overtime hours.


JUSTICE ROSS:  It doesn't say that.


MR FERGUSON:  I'm extrapolating it out from, I suppose, the ordinary treatment of these things in awards, but I understand - - -


JUSTICE ROSS:  I wouldn't be dealing with the ordinary treatment of anything in (audio malfunction).


MR FERGUSON:  I painfully agree, but that's why we formed the view that we probably needed to give some serious consideration to this proposal.




MR FERGUSON:  I also have concern, but I don't have evidence, which is why I would want to engage with the industry, that this might be happening to some degree in practice.  I'm just not sure.




MR FERGUSON:  That's why we thought - - -


JUSTICE ROSS:  Yes, but it can't be driven by whether it's happening or not.  I think you have to start with what does the award mean as it is.


MR FERGUSON:  We agree, but what might be a relevant and appropriate and necessary variation might need to take into account the operating requirements of the industry.


JUSTICE ROSS:  Well, no, you'll have to make an application to vary the award if you don't succeed on the construction argument.


MR FERGUSON:  I understand, which is why we thought these issues that have arisen sort of late in the day required careful consideration and some further discussion.




MR FERGUSON:  That's all - - -


JUSTICE ROSS:  Yes.  Mr Redford?


MR REDFORD:  Yes, your Honour, look, it does appear that whee perhaps we might have landed is that the request that's been made by the Ai Group to make further submissions and potentially lead further evidence on this matter now seems appropriate.  Certainly, from our point of view, we had not contemplated that this award might be varied to create a regime where a person - an employee who is a day worker, whatever that means, has the benefit of a broken shift arrangement in which they can't work a broken shift with more than one break in it, or two in a unusual circumstances and with their consent.  But an employee covered by the award who is a shift worker, whatever that means, could work a broken shift with one, two, three, four, five, six breaks in it, whatever the case may be.  We hadn't contemplated that scenario ‑ ‑ ‑


JUSTICE ROSS:  Well, what I have - the exchange with Mr Ferguson would suggest on the reading of 29.4 you wouldn't have to contemplate that because broken shifts can't be worked by afternoon or night shift workers.


MR REDFORD:  Indeed, your Honour.  And again a scenario that we hadn't contemplated.


JUSTICE ROSS:  Yes.  Does anyone else wish to be heard on this question about whether we should deal with this matter today or provide more time?


MR WARREN:  Your Honour, on behalf of AFEI, can we indicate ‑ ‑ ‑


JUSTICE ROSS:  Just before I go to you, I might just go to Mr Scott.


MR SCOTT:  You, your Honour.  Yes, I did wish to be heard in relation to this issue, and it's to support the proposal that was put forward by Ai Group.  I was keen to make submissions in support of it, but I think given the last 20 minutes of exchanges, I doubt that it's necessary to make submissions because I think it is apparent that these are pretty fundamental issues that do require further consideration, rather than trying to deal with some of these matters on the run today.


So I support the proposal to deal with this matter separately, and I would suggest that the directions that are being set in relation to remark or response, and damage clothing clauses would be a useful forum for this issue to be ventilated, given that these directions includes both a conference and hearing.


JUSTICE ROSS:  Yes.  Let's just tease that out for a moment.  I think the first position, the starting point is how are broken shifts currently worked in the award - under the award - not about whether people are breaching the award or not, but what does the award currently mean; so submissions around that issue, or as part of the same set of submissions, really, but parties would be saying:  well, this is what the award means at the moment, for whatever reasons, and you said it out; and then what you want to say about the - I think we've heard enough about the quantum, you don't need to revisit the quantum of the allowances, let's just - everyone has put whatever they want to say about that.


Let's just focus on the question of the union proposal in respect of shift work, and Mr Pegg's proposal in respect of confining our determination to day workers, and that work outside the span, 6 am to 8 pm, ordinary hours worked outside that span would be paid for at overtime rates.


We've touched on the public holiday matter.  I've indicated that that was inadvertent.  You may want to deal with that in your submissions as well.  That may, presumably from the point of view of the employers, might be said to provide more support for the moderation in the allowances that we're proposing, or you may want to say something else about it.


But I can indicate that from our perspective it wasn't a deliberate decision; whereas it was a deliberate decision to - in respect of it, you know, because we had only contemplated day workers really, because that hadn't been - that had, you know, been the focal point of the evidence.  It hadn't been our intention that for a day worker who happened to work for half an hour or so after 8 pm on a particular day, it wasn't our intention that they would then be paid the broken shift allowances, and in addition be paid the afternoon shift penalty for the entirety of their shift.


We certainly didn't intend - sorry, we did intend that they not get both.  We hadn't turned our mind to afternoon shift workers or nightshift workers because that wasn't where the case went.  From the issues raised by the unions and, you know, that's - if you adopted - if you simply looked at the clause 29.4 in isolation, then you might form a view that broken shifts can't be worked in afternoon and night shift, so on that view the unions' point doesn't arise.


But there is a broader construction argument open that Mr Ferguson has alluded to about the interaction between 25.6 and clause 29.  But I think that's probably the first matter the parties need to give some thought to as well in their submissions.  Mr Redford, you've got your virtual hand up.


MR REDFORD:  Thank you, your Honour.  Just as a suggestion, we're in your Honour's hands about this, but what might be added to the list of matters your Honour has outlined for further submission and debate is the definition of day worker and shift worker, because I would suggest that if - and subject of course to what happens with clause 29.4, if Mr Pegg's proposal was adopted, I would suggest that what happens is some considerable pressure gets put on what a day worker, as opposed to a shift worker is under the award, and that might need clarification for Mr Pegg's proposal to work.


JUSTICE ROSS:  Yes.  I'm not wanting to put Mr Pegg in the frame for this, but our conception really was that however one defines it, but someone who is not a shift worker working afternoon or nightshift, in other words someone whose main work is performed between 6 am and 8 pm.  That was the worker that we had directed the draft determination to because as I say, that was where the evidence was, broadly.


So Mr Pegg might want to - even if he resiles from his:  is it confined to day worker or not, I think confining the clause to day workers is an issue that's now a live one and that parties need to address, so I think that's one of the considerations.  And from that, Mr Redford, it would flow as a matter of logic would have to define what a day worker is in that context.




JUSTICE ROSS:  What about Mr Scott's proposal that parties follow the - we add this to the directions in respect of remote response and clothing allowance - or damage clothing?  Does anyone have an objection to that course?


MR REDFORD:  No, your Honour, that makes sense from the UWU's perspective.  I don't want to speak to the other unions, but that makes sense to me.


JUSTICE ROSS:  That would probably mean, you know, you could discuss that at the conference before Clancy DP as well if there was scope for any discussion or narrowing of the issues in that forum.  Does anyone else wish to be heard about adding the matters that we discussed this morning onto the directions?


MR WARREN:  Your Honour, on behalf of AFEI could I indicate that we align ourselves with what the AiG has been saying.  We are concerned that this issue of restricting broken shift workers to day workers is a new issue, and it was not considered by AFEI to be part of the case.  We understand what your Honour has said about where the evidence went, but it wasn't any part of any application, and we would need to address it in far more full terms, and so to that extent - - -


JUSTICE ROSS:  Mr Warren, on one view of it, one interpretation of the award you can't work a broken shift on an afternoon or a night shift anyway, so as a matter of logic it would be confined to day workers.


MR WARREN:  We understand the conflict between what is the shift provision spelled out in the shift work clause, but the other issue is of course, in the broken shift clause, it specifically allows broken shifts to be worked in accordance - for social and community service employees and it directs under the clause that the Commission has in its draft determination deleted, it directs the penalty specifically to clause 29.


So it seems, on that interpretation, that the penalties available in clause 29 are available to broken shift workers, and that shift workers are allowed to be broken shift workers if they are working social and community service employees undertaking disability services.  Because it only refers to clause 29 with respect to the payment of penalty, which on one construction would certainly allow those broken shifts to be worked as shift workers, either afternoon or night shift, and because it provides a penalty for it.  And that's another construction that we (indistinct).


JUSTICE ROSS:  Sure.  Well, that's - Mr Ferguson's made the same.


MR WARREN:  Yes, and we support that view but we certainly would look to putting far more further submissions with respect to the provision that NDS is now suggesting and look, on the face of it we're opposed to that suggestion.  But we would certainly welcome the opportunity to necessarily call evidence or put submissions.


JUSTICE ROSS:  Well, my question was whether there's any objection to ABI's proposal that the directions we've already issued be expanded to include these matters that we've just been talking about.


MR WARREN:  Yes, and that would seem appropriate in this case, your Honour.


JUSTICE ROSS:  All right.  Does anyone have an objection to the course that's been outlined?  No?  All right.  Well, that's the course we'll adopt and we'll issue a statement to that effect later today.


Let's return - so you can take it you don't need to canvass the issues we've been discussing which will remove a significant part of the discussion around broken shifts, and we'll go to the unions first to answer the questions posed in the summary of submissions document and also to identify any points of clarification, or any corrections or amendments to the summary of their submissions in that document.  We'll turn to that issue first.  Which of the unions wants to lead off?  Mr Redford, Mr Robson, Ms Svendsen, which of you is going first?


MR REDFORD:  Your Honour, it's Ben Redford for the UWU.  We don't have any points of clarification to raise in relation to the matter in which our submissions have been summarised in the summary.  I think that was your Honour's sort of first question perhaps.  So perhaps before then turning to address the questions posed in the summary, I might pause just to allow the other unions to respond to that first question that you've posed.


JUSTICE ROSS:  No, I think we'll just deal with one union at a time and go through the questions and any clarification you want to make and then we'll move onto the next thing.


MR REDFORD:  Okay, your Honour.  So what we're then dealing with is the questions posed in the summary 1 through 22.  Is that right, your Honour?


JUSTICE ROSS:  Yes, it is.


MR REDFORD:  Right.  So the first question, your Honour, I think relates to the matter that we've just been discussing.


JUSTICE ROSS:  That's right.


MR REDFORD:  So I won't deal with that.  The second question appears to relate to the matter that we've just been discussing, so I won't deal with that.  The third question is a question for NDS and to some extent relates to the matter that we've just been discussing.


The fourth question, your Honour, relates to a proposition that's been put by Ai Group in its submissions that in relation to what I'll describe as the two break broken shift arrangement, that the award should provide for a standing agreement to be reached between an employer and an employee, to give effect to the working of such a broken shift.  Whilst that matter to some extent relates to the matters that we've been discussing, your Honour, perhaps it's nevertheless a matter that I could say something about - - -


JUSTICE ROSS:  Yes, I think it's a discreet question.


MR REDFORD:  Yes, your Honour.  In relation to that matter, the UWU's submission is that the Commission's finding that an employee's consent to work a two break broken shift should be obtained on each occasion was a matter that the Commission decided.  It wasn't a provisional view, and that therefore it's not appropriately a matter for further submissions, and that we oppose the proposition made by the Ai Group, and that an employee's consent should be required on each occasion that a two break broken shift is worked.


Noting particularly, your Honour, that there was evidence and the Commission noted in its decision that the circumstances in which such a two break broken shift might be worked would be unusual. So that's what we have to say about that, your Honour.


Question 5 relates to the matters that we've just been discussing.


JUSTICE ROSS:  What do you say about the other change proposed by Ai Group, which is at paragraph 11?


MR REDFORD:  I'm just checking that, your Honour.


JUSTICE ROSS:  Sorry, it's not at paragraph 11.  It's - bear with me, paragraph 31.


MR REDFORD:  Sorry, your Honour, is that paragraph 31 of the Ai Group's submissions?


JUSTICE ROSS:  No, of the background paper.


MR REDFORD:  Sorry, your Honour.


JUSTICE ROSS:  That's all right.


MR REDFORD:  Yes, sorry, your Honour.  I did not understand the Ai Group's submissions on that matter, I must say.


JUSTICE ROSS:  We might just get Mr Ferguson to clarify what the provision's directed at.




MR FERGUSON:  Look, the crux of the issue that we were trying to address was the application of the new minimum payment provisions in the context of currently engaged employees.  So what we had in mind was the circumstances of an employee that might have been employed for a period of less than an hour, as the terms of their initial engagement, as agreed in accordance with the award.  So a person who may be, under their engagement, working one hour, or broken shift arrangements that involve one hour on either part of the broken shift ‑ ‑ ‑


JUSTICE ROSS:  That doesn't seem to be - it seems to be broader than that, the proposed variation.


MR FERGUSON:  Well, yes, the idea is that whether it's - it would be broader than that, but I think the initial catalyst was that particular, as we saw it, unfairness.


JUSTICE ROSS:  Yes, but why would we grant the provision you're proposing there in those terms when it just says that that would allow you to circumvent the minimum engagement period in its entirety


MR FERGUSON:  And that wasn't the intention, and of course the Commission is not bound to grant a remedy in the terms that we proposed.  The intent was to create a transitional arrangement, if you will.


JUSTICE ROSS:  Isn't that what ABI seeks to do?


MR FERGUSON:  I think they recognised the same problem but came at it from a different perspective, and I think there is a temporary sort of arrangement.  I will confess I didn't quite understand ABI's solution.  But what our proposal is, in simple terms, is that - and it was intended to be a provision that operated in the context of currently engaged employees, and I think the drafting may not make that clear.


JUSTICE ROSS:  Even if it was the currently engaged employees, that would also circumvent the minimum engagement term.


MR FERGUSON:  It would in the sense that if an employee wasn't prepared to work for the full two hours, they wouldn't receive the minimum payment.  But I think that is one of the issues that falls, in our view, from utilising a minimum payment provision as opposed to minimum engagement, if you use that term, in that you've got currently employed individuals who an employer would have no capacity to require to work for the full duration of the two hours.




MR FERGUSON:  And in our view there's an unfairness from that that falls from that where people have engaged employees in accordance with the current terms of the award, the arrangement has been struck on that basis, and that we weren't seeking to remove, you know, the insertion of the two hour minimum payment provision in the award, but we were trying to include a mechanism that aligns the realities of the current arrangements with - create some incentive to aligning the current engagement of employees with the new requirements of the award.


It seems to us entirely unfair that somebody could just have the benefit of the two hours without any corresponding compulsion to work for - they're being paid.  That may mean that that creates a reciprocal incentive on employees to cooperate with employers if there are changes to working patterns that are implemented as a result of this decision.  But otherwise, as I said, without taking it further, we think there's this potentially unfair outcome in some contexts.


JUSTICE ROSS:  All right.  So we've heard the explanation, Mr Redford.


MR REDFORD:  Well, thanks, your Honour.  Can I say, though, that I was conscious of the fact that the Ai Group made a submission in relation to employees who may currently have an arrangement in which they work less than the new minimum payment provision contemplates.  I was conscious of the fact that Ai Group made a submission about that and made a proposal about that, and Mr Ferguson has just spoken about that; and also conscious of the fact, your Honour, that the ABL also addresses that issue, but comes up with a somewhat different solution.


I thought that the matter referred to in paragraph 31 of the summary might have been a proposal to address the scenario in which a person working a broken shift, for example the first block being one hour, and then a break, and then the second block being another hour, and then a break; couldn't be said to be working less than the minimum payment arrangement because the first block of time is of one hour and the second block.


So I thought that was what this provision was intended to address.  And if it was, what we would say about that is that it's unnecessary, and that clearly a broken shift of, for example, your Honour, two hours worked as I've described in a block of an hour, with a break, and then another block of an hour, complies with the minimum engagement provision in relation to the two hour minimum engagement provision; and that the proposal made in paragraph 31 is not necessary, your Honour.


JUSTICE ROSS:  When you say it's not necessary, Mr Redford, let's assume that you have a part-time employee that has got an agreed pattern of work at the moment, and let's assume that pattern involves three shifts of one hour during the course of a day; or one hour in the morning, two hours in the afternoon, let's keep it simple, with a break in between.  Are you suggesting that the employer would not be able to say to the employee, "Well, that one hour in the morning, we now want you to work two hours because that's what the minimum payment term provides."


MR REDFORD:  I'm just suggesting, your Honour, that if that shift arrangement remained in place, that is that the employee works a total of three hours, where the first hour is worked in a single block of one hour, with a break, and then another two hours later, that's not a breach of the minimum payment provision ‑ ‑ ‑


JUSTICE ROSS:  No, it's not, but the employer is required to pay for two hours' work when under the current agreement they're only working one hour.


MR REDFORD:  I see.  I wouldn't have said that either, your Honour.  I wouldn't have said that in relation to that first block of an hour, that the employer is obliged to pay the employee two hours, because the shift is three hours.


JUSTICE ROSS:  No, it's not, not under the decision we've made on minimum engagement, it's not.


MR REDFORD:  All right, your Honour.  We didn't read it that way.  We didn't read it that every block of time worked in a broken shift has to be at least, in the case of the two hour minimum payment regime, two hours.  But if that's - that may require clarification in the award if that was the case.


JUSTICE ROSS:  I'm not sure why it would, but that's really the exact issue that Mr Ferguson is raising and that ABI is raising.  Is that broadly right, Mr Ferguson, that your concern is that - and I might say, Mr Redford, it doesn't need clarification because the draft variation determination at 10.5 makes it clear that:


Part-time and casual employees will be paid for the following minimum number of hours at the appropriate rate for each shift or period of work in a broken shift.


MR REDFORD:  And that's my point, your Honour.  And perhaps had I referred to the draft determination I might have made the point more clearly.  But that's my point, is that a broken shift which involves a period of work of less than two hours, if the total number of hours worked across the course of the shift meets the minimum payment period, doesn't violate the new minimum payment period provision.


JUSTICE ROSS:  Well, it's not how I read it, Mr Redford.  And the point Mr Ferguson has raised, it's not how he reads it either, and it's not how it's expressed.  So I don't know how you arrived at that position, but nevertheless.  But, Mr Ferguson, the problem that you've got is that if you've got a part-time employee, say, and your agreed pattern of hours is that they work each Wednesday a broken shift with one hour in the morning and two hours in the afternoon, the problem then facing employers is:  well, that was fine at the time we entered into it because we only paid you for the hours you worked.  Now we would have to pay you a two-hour minimum payment for that one hour in the morning, and that's unfair.  Is that the nub of it?


MR FERGUSON:  That's the number of it precisely, your Honour.  And I think we proposed two ways of addressing it.  One was a variant on effectively excluding currently employed employees entirely from the application of the new minimum payment provisions unless they had reached an agreement with their employees to sort of change their hours in line with new requirements; and then perhaps a less extreme proposition, but a temporary one, in that on each occasion, really, they wouldn't receive the benefit of the minimum payment unless they were prepared to work the corresponding amount of time.


JUSTICE ROSS:  Well, I suppose a variant on that is they could be required to work a minimum of two hours and leave it at that.


MR FERGUSON:  And the reason we thought that probably not appropriate is the realities of work in this industry, and I think there's been evidence about very short shifts and so forth - - -


JUSTICE ROSS:  No, I know, but we have heard that evidence and we have made the decision about minimum engagements.  You would be treating current employees less advantageously than future employees.  So, it's not so much trying to get around the problem that you've identified, it's trying to resist the idea of a minimum payment term at all for current employees.


MR FERGUSON:  Well, I think the subtlety is we had intended it only if they were requested by the employer to work.  We would accept that there might be circumstances where an employer wouldn't have the work but they would nonetheless require them to engage some short shift.  There wouldn't be a way out of the new obligation in those instances.  What we were really seeking was that if there was the work, that there be some incentive on the employee to cooperate, given that we might be dealing with a situation where contractually they just don't have to and under the award there's no compulsion, and so we had been trying to be moderate in that proposition.  We had thought about the engagement point, but just because of the realities of work in this sector, we think the Commission was right to leave it to minimum payment provision rather than minimum engagement, but - - -


JUSTICE ROSS:  Yes, but it's whether - on your view, they wouldn't have an entitlement to the minimum payment if you didn't have any work for them beyond the one hour.


MR FERGUSON:  No, that's not our intention.  Our intention with the wording is it would only be if they were requested to work and they didn't that they wouldn't receive the minimum payment.


JUSTICE ROSS:  Yes, all right.


MR FERGUSON:  That's the intention only in those discrete circumstances, and I will just say this for convenience now.  I think, as we understand it, the difference with our position and the ABI (indistinct) client's position is that we aren't seeking some that is sort of time-limited because it doesn't seem that this is a time-limited problem in the context of existing employees.


JUSTICE ROSS:  All right.  Anything further on that point, Mr Redford?


MR REDFORD:  I think that the difficulty I have found myself in is, firstly, not understanding the original submission and then, secondly, I still think that two issues are being rolled into one, namely, the issue about an employee currently being in an arrangement where they work less than the minimum payment provision, for example, a one-hour scenario, and then, two, this situation in relation to the broken shift, but the fundamental proposition we make is that there shouldn't be a variation made as proposed to undermine the new minimum payment provisions, which would provide for, in the case of the two-hour arrangement, a two-hour minimum engagement, and that should not be able to be undermined, your Honour.


JUSTICE ROSS:  All right.


MR REDFORD:  I'm just conscious, your Honour, too, that on my screen, there looks like there are hands up in relation to the other unions, but did you want me to simply continue or did you want your Honour to hear from the other unions on this point?


JUSTICE ROSS:  No, I just want you to continue and finish and then we will move to the others.


MR REDFORD:  Yes, thanks, your Honour.  I think I was up to the sixth question, your Honour.


JUSTICE ROSS:  Yes, that's for the ASU.


MR REDFORD:  Yes.  The seventh question I'll defer to the ASU's submissions on that matter, your Honour.  We support the proposition.  On the eighth question, it may be, your Honour, that the HSU's submissions will go to the matters we were discussing prior to when I commenced, including that definitional aspect of a day worker and a shift worker, your Honour, so I won't deal with that.




MR REDFORD:  There is an unnumbered question that appears next in the summary.


JUSTICE ROSS:  Yes, I think we've dealt with that question.


MR REDFORD:  Yes.  The next question, question number 9, is the sort of question that I suggested to some extent got wrapped up in the discussion we've just had.




MR REDFORD:  And that is the proposition that the award should permit an exception to the minimum payment regime in respect of an employee who is currently working less than the minimum payment arrangement.  There are two propositions.  One is made by the Ai Group and the other is made by ABI.  We oppose both of them, your Honour.  Certainly in relation to the proposal made by the Ai Group, we say that in relation to this proposal, which would allow an existing employee who's working less than the minimum payment provision to continue to work less than the minimum payment provision should not be permitted.  It undermines what was a decided view expressed by the Commission in the decision, that is that - - -


JUSTICE ROSS:  That's fine, Mr Redford, you have already made that submission about Ai Group.  What do you want to say about ABI?


MR REDFORD:  In relation to the ABI proposal, I think the ABI proposal is essentially a transitional provision, but what it does, I think, your Honour, is allow an employer to give an employee a unilateral direction to amend their roster with seven days' notice.  We think that that proposition is unnecessary, your Honour.  What will invariably happen as a result of this proceeding is that there will be some delay between the final decision and the operative date and, during that time, employers and employees will have the opportunity to consult and put in place whatever arrangements are necessary to deal with the new award provisions, and that period of time should be all that is necessary for employees and employers to put in place those new provisions.  We don't see the need to put in place a specific arrangement such as the one that ABI has proposed.


If the Commission was moved to do something along the lines of what ABI proposes, we do suggest that a period of seven days to make a direction of this kind is not a sufficient period of time for an employee's roster to be altered in that way and that a longer period of time should be provided, and any such arrangement should also specifically refer to an obligation that there be consultation with the employee about it.  But, as I say, our primary submission on this matter is that it's not necessary.


JUSTICE ROSS:  All right.  Mr Scott, I might put you on notice that when you come to make your oral submission, if you can go to why we've got seven days in circumstances where there will be a time period between the making of the order and - well, on your submission, the time period would be significant, until at least 1 July next year - why in those circumstances it's only seven days provided.


MR SCOTT:  Yes, your Honour.


JUSTICE ROSS:  Thank you.  Yes, Mr Redford?


MR REDFORD:  Question 10, your Honour, is in relation to the proposition that a one-hour minimum engagement be provided in relation to staff meetings and training.




MR REDFORD:  There are, broadly speaking, two propositions made, your Honour.  One is that a staff meeting or training arrangement that occurs at a workplace, that it be permitted that the minimum payment in relation to that be one hour, but there is also a proposition made by Ai Group, and I think supported by AFEI, that staff meetings and training that occur in a remote setting not involve a minimum payment at all.


JUSTICE ROSS:  That's not the Ai Group's submission.  I think they say - I see, no minimum payment if it's online, but if it's physical attendance then a one hour minimum.  I think that's fair proposition isn't it?


MR REDFORD:  Yes, yes.  Yes, your Honour.


JUSTICE ROSS:  So it's the online no minimum payment that you're particularly objecting to in theirs and you're objecting to the broad proposition that there be a one hour minimum engagement for attendance, which is put, I think, by ABI and in part by Ai Group.


MR REDFORD:  Yes, that's right, your Honour.




MR REDFORD:  I would just say for completeness that in our submission the proposition that no minimum engagement apply in relation to the remote style of training or meeting should be rejected by the Commission but if the Commission was against us on that, the matter could be dealt with in the context of the remote response matter, which is going to be the subject of a conference, your Honour.


The next question, your Honour, is question 11 and this is the question about whether employer agreement should be required in relation to the scenario in which - - -


JUSTICE ROSS:  Over shift swap, yes.


MR REDFORD:  Yes.  In relation to that matter, your Honour - sorry, your Honour, if you could just bear with me for just a second.  Yes, your Honour.  So the proposition that - we understand the proposition that is made, that is that there should be employer approval over a proposed roster change in relation to a shift swap.  We accept the logic in the submission made by the NDS on that matter and I think Ai Group make a similar submission, your Honour.


JUSTICE ROSS:  All right, thank you.


MR REDFORD:  I think that's question 12 in fact, your Honour, which is the Ai Group position on that same question.




MR REDFORD:  In relation to question 13, your Honour, which is ABI's proposals about client cancellation and particularly the issue about whether or not client - the client cancellation clause should be activated, both in terms of the cancellation of an entire shift and also part of a shift.  I'm just going to - I won't make submissions to you about that matter, I will just defer to the ASU in particular because I understand Mr Robson's going to put, if he hasn't done already, a proposed clause in relation to that matter to you.  We support that proposition that will be made.


Question 14, your Honour, is about the same matter, that is the client cancellation clause, but it relates to the Ai Group's proposals about that matter.  If I could summarise Ai Group's submissions about this matter this way, Ai Group in effect make three propositions.  One is that the client cancellation clause should be able to be activities, including in circumstances where only part of a shift is cancelled.  What I'd say about that is the same as what I've said about the ABI proposal, that is I'll defer to what the ASU have to say about that.


The second thing Ai Group say is that in relation to the client cancellation clause and the concept of make-up time, your Honour, that the minimum shift - the minimum payment provision shouldn't apply to the make-up time arrangement.  We oppose that proposition.  That will be an undermining of the minimum payment provision which is the subject of a decision of the Commission.  When working a make-up shift, the minimum payment provision should apply, your Honour.


The third proposition made by Ai Group is that in relation to a client cancellation scenario where, excuse me your Honour, where part of a shift is cancelled, which might result in, in effect, a broken shift, your Honour, that the broken shift allowance shouldn't apply.  We oppose that submission, your Honour.  The disutility intended to be compensated for by the broken shift allowance that occurs in relation to a broken shift will occur in a situation in which an employee has part of their shift cancelled if, for example, they have to work part of their shift and then stop and, for example, go home and then travel back to work to recommence their shift.  So we oppose that submission and we say that the broken shift allowance should apply in that circumstance.


Question 15, your Honour, is - it relates to the ASU's submission on, I think, double-dipping.  What the Commission's described in its decision as the double-dipping issue.  I'll defer to the ASU's submissions on that matter, we support those submissions, your Honour.


Question 16, your Honour, is a question again about the client cancellation clause and the idea of replacing the term 'shift' with the term 'service'.  Again I think to deal with the situation in which only part of a shift becomes cancelled by client cancellation and again the ASU will provide a proposed clause to deal with this matter, your Honour, and we support that clause.


Question 17, your Honour, if you'd just bear with me.  Question 17, your Honour, relates to a proposal made by ABI to in effect clarify the operation of the new clause 28.1.  Sorry, not a new clause 28.1 but the clause 28.1, your Honour.  What I would say about that, your Honour, is I understand the sentiment of the proposal.  That is I think it just is intended to make the clause read in a clearer way but I would reserve our rights to make further comment about that matter in the context of that broader discussion  we're going to have about how overtime might work in relation to day workers and the definition of day workers and shift workers, your Honour.


JUSTICE ROSS:  No, I think this is your opportunity to make whatever comments you want to make about this one.


MR REDFORD:  Yes, fair enough, your Honour.  Well, we don't oppose the proposal insofar as it's just intended to clarify the operation of the clause.  It doesn't change the meaning of the clause.  In that regard we don't oppose it.


Question 18, your Honour, is about the proposed new regime in relation to increasing guaranteed hours for part-time employees.  If you just bear with me for just a second, your Honour, I will address you on that.  Your Honour, this question relates to the various proposed changes Ai Group has made in relation to the Commission's draft determination on this matter.  I would summarise Ai Group's submissions about this matter in this way.  I think there are five matters raised by Ai Group in relation to the draft determination.


The first matter raised is that the draft version of what would be clause 10.3(g) does not contemplate a scenario in which an agreement may have already or previously been reached to vary the employee's guaranteed hours pursuant to clause 10.3(e) of the award, which is the clause that allows hours to be varied.  That's the first proposition Ai Group makes.  In relation to this, we say we don't really understand this submission, your Honour.  It wasn't apparent to us how it is that clause 10.3(g) is drafted in such a way as to not be able to deal with a situation in which an employee's hours had, since the commencement of their employment, been varied to create a new guaranteed hours, your Honour.  So, in relation to that first proposition and the amendment proposed, we don't see it being necessary.  If an employee's hours had been varied under clause 10.3(e) then those hours become their new guaranteed hours and it's those hours that are the subject of the new clause 10.3(g).  So, from that perspective, there doesn't seem to be a need to vary what's proposed to deal with that.


The second submission, your Honour, made by AiG is that the trigger for the new clause to be activated is simply that the employee works more than their guaranteed hours for at least 12 months and so it doesn't require that the additional hours being worked according to some sort of pattern that could presumably be made permanent because they're regular.  The submission contends that the award should provide that to qualify to activate the clause, the employee should have regularly worked hours, ordinary hours, in addition to their guaranteed hours, which are constituted by a pattern of hours which, I think they say, without significant adjustment could be continued to be performed by the employee.  But the Ai Group's submissions also acknowledges that the kind of request that the employee is permitted to make under this new proposed clause is one which would vary their guaranteed hours to, and the clause says, your Honour, reflect the ordinary hours regularly being worked.  I think what Ai Group suggests is that that first part of the clause is in contradiction to the second part of the clause, which refers to ordinary hours regularly being worked.


We say in relation to this, it is not contradictory.  It makes sense.  The specific request that the employee is entitled to make is one to vary or increase their guaranteed hours to reflect the ordinary hours being worked.  The first part of the clause, which, you know, in effect says if an employee is working more than their guaranteed hours, they can make their request, is informed by the second part, which envisages that the request would be to have the additional hours that are being worked reflected in the arrangement.


Your Honour might be aware the clause that's being proposed is, in fact, similar to clauses such as the one in the Hospitality Industry General Award, which provides - it's slightly different, that clause, but it provides simply that if a part-time employee has regularly worked a number of ordinary hours in excess of their guaranteed hours for at least 12 months, then they may request in writing that the employer agree to increase their guaranteed hours.  That's simply what that clause - it's clause 10.8 of that Hospitality Award - says, your Honour, and there is no problem with the operation of that wording in practice; in fact, the draft determination proposed in relation to this award is slightly tighter than that.


Clearly, a request under this provision can only be granted on business grounds if there are hours available to be provided, and such a matter, being informed in part by the hours worked in excess of the guaranteed hours over a 12-month period, including the manner in which they are being performed, your Honour, and in this regard, we agree, your Honour, in principle with the submission made by ABI on this matter that the Commission should not narrow the ways in which an employer and employee can reach agreement on increased guaranteed hours for the employee, which is at paragraph 100 of the ABI's submissions, your Honour.  So, we don't agree with Ai Group's proposed amendment to the proposed clause in relation to that matter.


The third submission made by Ai Group on this matter relates to the proposition that a request could be made under this provision, conceivably could be made repeatedly with whatever frequency, or at least the clause doesn't prohibit a repeated request being made under the clause, and so Ai Group proposes that a request could only be made once every six months under the new proposed clause 10.3(g).  I note, your Honour, ABI makes a similar submission as well.


We say in relation to this that there is no need for such an overly prescriptive approach to what is essentially a facilitative provision.  We suggest there is no real sense to the proposition that an employee would, if their request is refused on reasonable business grounds, sort of belligerently keep making their requests over and over again.  Again, just referring by way of example, your Honour, to the Hospitality Awards, which contain a similar provision, they contain no such time-based limitation.  We say it's just not necessary to vary the clause in the manner contended.


The fourth set of things that Ai Group say about this clause is that some small amendment should be made to the note, most notably to specifically include employees performing disability services work, to the definition, mentioning a lack of continuity of funding, et cetera.  Various parties say things about this, your Honour.  I think ABI agrees, I think NDS may say the note might be deleted in its entirely to avoid confusion, but I think HSU have some things to say about it as well, your Honour.  We don't think the amendments proposed by Ai Group are necessary, but we don't intend to make any further submissions about that note, your Honour.


The fifth and final submission made by Ai Group is that a further clause is necessary to reflect an agreement to vary the guaranteed hours under clause 10.3(g) because, in effect, the new guaranteed hours are the new guaranteed hours for the purposes of clause 10.3(c).  And that what Ai Group proposes is that it specifically provide that those hours could then be further amended by consent.


The proposition made here, your Honour, also uses the term 'ordinary hours' as opposed to guaranteed hours and in any event we say that may cause some confusion.  In effect, mixing up those terms guaranteed hours and ordinary hours, but more importantly, your Honour, we say the variation is unnecessary.  If proposed clause 10.3(g) is activated and an employee's guaranteed hours are increased, they become their new guaranteed hours.  That's clear.  It's also clear that then those hours could be varied by consent in accordance with 10.3(b).  So there's no need, your Honour, we say to make that change.


That's what we have to say in relation to question - I think that was question 18, your Honour.


JUSTICE ROSS:  Yes, then there's an unnumbered question in relation to Ai Group's proposal which is - well it's really a submission.


MR REDFORD:  Yes, I think this might relate to what I might describe, your Honour, as the voluntary overtime proposal.




MR REDFORD:  Yes, I might defer to the ASU to make submissions about that matter, your Honour.




MR REDFORD:  Question 19 is in relation to submissions made by AFEI and I think this is the issue around - I think if I can put it this way, your Honour, the problem that may arise if a person is asleep and gets woken up.


JUSTICE ROSS:  Yes, it's just simply seeking to remove the word 'continuous' in the clause.


MR REDFORD:  Yes.  Your Honour, we sort of struggle with this.  I mean we understand the point, I'm just not sure that the removal of the word 'continuous' doesn't then create more problems in that, you know, perhaps an employer could seek to comply with the clause by providing a couple of periods of sleep amounting to eight hours, which are interrupted by breaks.  Which is, as I understand it, not what's intended.  What's intended is as best as possible the employee gets an uninterrupted sleep period of sort of eight hours.  So we would oppose the removal of the word 'continuous' but what I would say, your Honour, is we're open to discuss what solution there might be to the problem raised if there's a sort of inadvertent scenario in which the employee wakes up during the eight hours sleep.


Question 20, your Honour, relates to a proposal made by Ai Group just to ensure that the new entitlement to an additional week of annual leave when eight shifts - when eight sleepover shifts are worked during a year.  That that new arrangement be clarified to reflect that those eight shifts should be - should occur within a block of 12 months.  We understand that proposition and we don't oppose it.


Question 21 is the same question as is posed in question 19, I think.  That is this scenario again where an employee is woken up during the eight hour period of sleep and what I would say about that is what I said about question 19.  Then the final question, your Honour, question 22, relates to the hour (indistinct) and I'll defer to the submissions of the HSU about that matter.


JUSTICE ROSS:  All right.  Thank you.  It might be a convenient time to take a 10 minute break and we'll resume at five minutes past 12, and then we'll go to the remaining union submissions.

SHORT ADJOURNMENT                                                                   [11.52 AM]

RESUMED                                                                                              [12.06 PM]


JUSTICE ROSS:  Mr Robson, are you happy to go next?


MR ROBSON:  Yes, your Honour, I will go.  I will take the same format ‑ ‑ ‑


JUSTICE ROSS:  Just before you - yes, if you do, just before you start, there's no need to explain the context of the question or what a particular party might be seeking, it's really your response to it that we're after.  I think we will move through it much more quickly if we just focus on the question and answering the question that has been put.  Thanks.


MR ROBSON:  Yes, understood.  Sir, the first point would be - where there's a response from us - would be at question 4, which is the ABI proposals around how to deal with minimum engagements, and employees already have an agreed pattern of hours.  The ASU understood the draft determination to provide that the minimum payment of two hours for a disability worker would apply to each engagement in the day in a broken shift, and certainly would apply to any employee who would be covered by the award.


It's certainly our understanding that the issue identified by AiG and by ABI that there will be employees who have agreed patterns of hours that are different from those that will be permitted by the award once the variations come into effect is the case.  What we say, though, is that the solutions provided by both AiG and ABI are much less than desirable.


To address the AiG proposal, first there's the proposed clause that would say that someone employed before a particular date - you know, the minimum payments would not apply to them unless they agree to vary their hours.  That essentially is a way of trying to avoid the application of the minimum payment to existing employees and would fundamentally set in stone existing working arrangements, you know, potentially for an unlimited period of time.


It's just another way of trying to get around the decision, and certainly we say it's inconsistent with their submission that there should be an operative date that is at least 12 months after the final decision is made, but no earlier than 1 July 2022.  If this clause were adopted by the Commission they really wouldn't need a transitional arrangement of any great length.


The majority of the workforce could continue - you know, employees in the workforce could continue working, you know, working their hours until they're offered new ones by their employer.  We would - sorry, your Honour?  We ‑ ‑ ‑


JUSTICE ROSS:  Sorry, Mr Robson, it's just to put Mr Ferguson on notice that - just as to the point you've raised, that if the submission of the employers was acceded to and there was a significant time between the decision, the order, and it coming into effect; so if you take the position that the operative date was 1 July next year, for example, then Mr Ferguson, on your proposal, what would stop employers continuing to reach agreements on one-hour minimum engagements, and 15 minutes, et cetera, up until 1 July; and then for that cohort of employees, despite the fact the employers were on notice that there would be a minimum engagement provision coming in, they could engage people on a less advantageous basis, in other words seek to manipulate the arrangements and get the benefit of shorter engagement periods.


So if you give some thought to that, but that's - look, that's what I've taken was one of the points you were raising, Mr Robson, that well they'll have plenty of time and in that time they can address the sort of issues that's been raised.  In any event, sorry I interrupted you, please continue.


MR ROBSON:  No, my apologies, Ross J.  Yes, that's quite right, your Honour.  If they need an extensive period of time to implement the decision, making these variations would be inconsistent with that we're saying.  The second proposal put by AiG would be that if a person had an existing agreed pattern of work and one of those engagements or shifts was less than the minimum payment, you wouldn't be paid that work unless you agreed to undertake that amount of work.


Again, that really just freezes the situation that - you know, that existed before the variation was made for an unspecified period of time, and it really leaves it in the hands of the employer when they want to come around and start asking their employees to do that work.  It's the evidence from, you know, the AiG's witnesses that they are, you know, reviewing the decisions, they do - they are considering restructuring their business.  That's what we say would be the appropriate response to this.


There are changes in hours of work in this industry regularly.  A circumstance identified by employers in their submissions in the original proceedings was when a client leaves a disability or a home care business, it might be because funding arrangements in the broader community sector have change that would mean the program is different or something similar.  That will all include part-time employees who have agreed patterns to the work that need to change.


Your Honour, employers are entitled to restructure their businesses, they can propose alternate patterns of work, alternate agreed hours to their employees and there's no evidence from AiG or indeed ABI, and I'll come to their proposal, that employees in the sector won't agree to work different patterns of hours.  Especially when the alternative is that if the pattern of hours that they currently work is not what's required by the employer, well there's a redundancy situation there and there's a consultation process again even beyond the major change or the roster change consultation provisions of the award.


In the final circumstance, if someone isn't willing to accept a different pattern of work and we'd say that only would be in circumstances where there's a genuine need to keep that working pattern or there's a reason why what's being offered to them isn't suitable, there is an entitlement there to allows people; a) notice to find alternative work but then also the severance payments in the award and the NES that will assist them, you know, to survive during that period.  Essentially what - and that's really what shouldn't happen.


It's probably useful while I'm on this point to address ABI's proposal which is that for a certain period of time employers should be able to unilaterally change an employee's hours of work.  This applies to part-time workers and there will be for many part-time workers, there will be a real reason why they've agreed to the pattern of hours that they've worked, and they will probably accept additional hours voluntarily, but there will be times that they simply just won't accept them.  So that could be child care arrangements, they could have medical issues that they need to address, they could be caring for elderly person or indeed they could have alternate employment and they've re-negotiated the patterns of work with both employers that are suitable.


Now in being able to change those patterns of work at seven days' notice without consultation is both unfair to the employee but it's liable to create chaos in the industry as, you know, employers trade off, you know, exchange patterns of newly imposed working patterns without consultation.


JUSTICE ROSS:  I understand what you're putting, Mr Robson, but we're sort of caught between two problems aren't we?  That if we accept your submission and don't do anything then it's conceivable that there would be unfairness visited on some employers, whereby under an existing part-time arrangement agreement an employee's regular pattern includes a number of short shifts of one hour or less, which was permitted under the award of is permitted under the award at the moment, and for which they would now be paid two hours work.


Everyone employed after the operative date of the order, well no employer will be entering into agreements for part-time work arrangements for one hour shifts, they'd all be for a minimum of two hours because of the minimum payment periods.  So you have one group of employees being treated different to another.


That's also an issue with Mr Ferguson's proposal that into the future some employees would be treated differently. If the employer didn't have the or didn't - there's no real obligation on the employer to do anything.  If they decide not to, you know, just reach the view that well, we're not going to - we can get away with the one hour minimum engagement for that employee, we're not going to offer them an additional bit of work to lift them up, or you're going to end up with two classes of employees.


It doesn't - I mean at some point we have to move everyone on to the same sort of system and you think it'll be worked out just by discussion between the employee and the employer.


MR ROBSON:  No, sir.  Your Honour, I think it'll be worked out by discussion and in marginal cases by redundancy.  I think one of the problems of the employer's submission about their weakness in the face of an employee who refuses to change their hours of work is that hours of work already change and the availability of work already changes in this sector.  I would have to ask them what they do in a situation where the clients in the disability or home care sector leaves their organisation leaves their organisation and so an agreed pattern of work that currently would have been tightly tied to that service - - -


JUSTICE ROSS:  No, no, I follow the argument and we've certainly made findings about the willingness of employees to change rosters and to work additional hours to accommodate the dynamics in the sector.  As I understand your submission, that material is evidence of these matters being worked through in a practical way between the employer and the employee without any need for coercive power.


MR ROBSON:  Absolutely, and in the end if there's a pattern of work that the employer no longer requires because they've restructured their business, and that might be that, you know, they've changed the way they've provided their services, they've changed the way that they want to structure their rosters, and an employee is unwilling to make an agreement to fit themselves into that structure, they would be redundant and they can be made redundant.




MR ROBSON:  I'll leave it there.  Going through there's another proposition in - above question 4, which goes to the minimum payment where AiG proposes that the minimum payment shouldn't be applied where an employee is required to attend - where he's not required to attend a particular workplace.  Sorry, I have misphrased that.  The requirement to provide a minimum payment in accordance with this clause only applies in circumstances when an employee is required by the employer to attend a particular workplace.  We oppose that, your Honour.


The discussion over minimum payments in this award, AiG didn't raise this issue during the substantive proceedings.  It's a substantive issue that we haven't had an opportunity to put on evidence about.  AiG - - -


JUSTICE ROSS:  Sorry, Mr Robson, can you just help me and take me to the paragraph in the background paper where the point AiG - - -


MR ROBSON:  Yes, of course.  Paragraph 38.  And you can see there that AiG proposes to include a clause within 10.5.




MR ROBSON:  Yes.  Essentially this would mean that if they - they don't tell you where your workplace would be, or potentially allow you to - and I think the example in the case that's obvious is working from home - the minimum engagements wouldn't apply.  Although, you know, if you're directed to work from home, perhaps it does.  Like, there is an ambiguity there.


But in any case, this is a new issue that has been raised at a very late stage of the proceedings.  It wasn't contemplated within the original case.  It was open to AiG to run evidence on this point if it wished to advance it.  They shouldn't be allowed to do so now.  Going through the paper, I will note question 5 deals with the issue that has been referred today to the conference.  Question 6, your Honour, we've been asked to provide a draft determination.  I apologise, that isn't ready yet, but it will be filed with the Commission before the close of business today.


JUSTICE ROSS:  Yes.  That might be also folded into a discussion about the application of broken shifts to afternoon and night shift to ensure everyone has an opportunity to consider the point that you're raising.


MR ROBSON:  Of course.


JUSTICE ROSS:  But if you could file it, that would be helpful, Mr Robson, then it would be subject to the directions that have been issued already in respect of the damaged clothing and remote response (indistinct).


MR ROBSON:  Yes, understood.  And we wouldn't have expected anyone to make a comment on it today without having seen it.


JUSTICE ROSS:  All right.


MR ROBSON:  Going through again, the next - I'm just going through the issues paper as the questions arise.  The next issue comes to the issue of minimum engagements for the minimum payment and training.  Mr Redford has dealt with that in detail, and we don't intend to say much more other than that we also oppose the minimum engagements.


We don't think that the evidence that has been filed justifies a separate or different minimum engagement for training, and certainly the same reasons that say any work should be subject to a minimum engagement apply to training or staff meetings.  And importantly, the evidence from the employer associations that has been filed about the operative dates says that there will be substantial changes to the way the work is organised in the industry.


I think there would be merit in waiting to see if there has been any impact on training or team meetings by the minimum payments, and the restrictions on broken shifts for day workers.  It certainly says to me that if work has been restructured and employers are expected to structure longer periods of work, there may be alternate ways of organising training that are available, and it's probably worth seeing if it has been an impact.


Continuing on, dealing with roster changes, we agree with the NDS submission about employer approval for shift swaps.  It seems reasonable, and we do acknowledge that there are reasons why an employer would want some control over that.  Sorry, your Honour?


JUSTICE ROSS:  No, no, that's fine.


MR ROBSON:  In terms of the competing draft determinations, we prefer NDS's to AiG's.  Which brings us to section 4, which deals with client cancellation.  There has been a number of proposals advanced by the various parties to amend it.  We intend to make some submissions today in response to ABI and AiG, and we may file a draft determination if that's necessary.


The first issue is the one raised by the Commission about the use of the term "shift".  We do agree with the parties that - AiG and ABI - that there is a problem with limiting application of a clause to part - to just a shift.  But what we say is that the client cancellation clause should only be applied to that part of the shift which is affected by the cancellation.


So if it's the entire shift that has been cancelled, then that should be cancelled; but if it's two hours of the day, if it's an hour of the day, only that part should be cancelled and subject to the make-up time and other provisions.  I'm sorry, your Honour, did you have question?




MR ROBSON:  Thank you.  And so what we propose at subclause (f)(i)(B), rather than referring to a rostered shift or the affected part of the shift, we would use both of those, but then describe them as the affected working time, because the rationale advanced by this clause by the employers was that clients in the home care and the disability sector cancel their services, that meant that there would be a portion of an employee's working day for which there was no work for them to do, and there would be no compensation that could be claimed by the employer.


This is a fairly significant flexibility offered to the employee - employer.  It's effectively a way to unilaterally reorganise and employee's working time, and it really should be narrowly focused on that area of the day where the employer is experiencing that problem that they've identified, so - - -


JUSTICE ROSS:  Can I just take you to the draft variation determination.  Which particular - it was (f)  ‑ ‑ ‑


MR ROBSON:  (f)(ii)(B).


JUSTICE ROSS:  Yes, and what would you say - what words would you put in there?


MR ROBSON:  We would say - let me go to my notes, your Honour.  We would say that the clause should read:


Cancel the working time affected by the cancelled service.


And that "affected working time" should be a defined term ‑ ‑ ‑


JUSTICE ROSS:  ‑ ‑ ‑ put in brackets after that, "affected working time".


MR ROBSON:  Exactly, your Honour.


JUSTICE ROSS:  And then you flow that through the rest of the clause.  Is that the idea?


MR ROBSON:  Yes, that's right.  Yes, indeed.  So AiG has made the submission that an employer should be able to completely change an employee's work for the entire day.  That might - you know, the cancelled shift might be all the work that they have that day, and that's fair enough, but that's actually not likely.  It's likely only to be part of a day, and it's really only that part literally affected by the cancellation.


JUSTICE ROSS:  Yes, okay.


MR ROBSON:  Moving through, ABI says that they have changed their position on clause (f)(vi).  This is the clause that provides that:


The make-up time arrangement cannot be used where the employer is permitted to charge the client in respect of the cancelled service.


We maintain the submission that we made during the proceedings and in our outline of submission filed this week, that really if an employer has been able to charge their funding body for that employee's working time, the employee shouldn't be put to the inconvenience of having their working hours reorganised when the hardship to the employer is limited; especially when, you know, that employer has the opportunity to find alternative hours during that person's already contracted working time.  There's nothing about the cancellation of a service that says that an employer can't find something else to do and really employers should have pressure put on them to think about ways that they can use their employees' time when it's available to them.


Again moving through with the ABI proposals to amend the draft determination, going to (vii)A, this is where they propose that make-up time should be provided on seven days' notice or a lesser period by agreement with the employee, we oppose that.  We think that there's a significant problem with an employer being able to cancel an employee's shift and then reorganise that work essentially on notice.  We say that's unnecessary and there's a much smaller variation to the clause that accommodate, I think, almost all of the issues raised by Australian Business Industrial, which would be to change the reference from clause 25.5(a), which is only a limited part of the rosters clause, and amend it to simply refer to clause 25, which is the ordinary hours of work and rostering clause.  That would allow that make-up time to be rostered as normal and, particularly, your Honour, I would like to draw your attention to 25.5(d), which deals with change in roster.


ABI is right, that a roster needs to be displayed on a fortnightly basis, and that needs to be posted at least two weeks before the commencement of the roster period, but under 25.5(d), seven days' notice - a roster can be changed at seven days' notice under 25.5(d)(i) and, again, there's an exception to that at (d)(ii) where it can be amended at any time to enable the service of the organisation to be carried on where the employee is absent due to or on account of illness or in an emergency.  So, there is still an option to roster that make-up time to fill in for sick leave somewhere.  That's still available to the employer.


JUSTICE ROSS:  What's the difference then between ABI's proposal that you can be rostered to work make-up time on seven days and 25.5(d)(i)?


MR ROBSON:  Well, I suppose the significance will come when I come to my submissions on their proposed variations for the remainder of 7, but what we say is that rather than a special call-out that allows it to be rostered on seven days' notice and on a lesser period by agreement, the existing rostering provisions of the award should apply and it should refer to 25 rather than a more narrow reference such as 25.5(a).


I think where my submission becomes particularly relevant is that ABI proposes at (vii)(C) to delete the words:


The employer must consult with the employee in accordance with clause 8A regarding when the make-up time is worked.


They want to keep that, but then they submit that the following words, "prior to rostering the make-up time" should be deleted.


What we are saying, your Honour, is that the normal rostering provisions of the award should apply to make-up time, it should be able to be posted in the fortnightly rosters; a seven-days' notice of shift variation is another way to do it, shorter in the limited circumstances prescribed by the award and, of course, as voluntary additional hours, which can be worked at any time, but there should be consultation beforehand, and that's what we say is significant.


JUSTICE ROSS:  Yes.  Mr Scott, when we come to you, the question that's raised by the amendment that Mr Robson is currently going to is if you remove the words "prior to rostering the make-up time", what value, if any, is there in the consultation?  The decision has been made, the employer has rostered the employee and then consults about it?


MR SCOTT:  I'm happy to take it on notice, but I'm equally happy to deal with it now if it assists Mr Robson in terms of dealing with it.  I'm in the Commission's hands.


JUSTICE ROSS:  Okay, yes.


MR SCOTT:  I can see the words "prior to rostering the make-up time" in our proposed drafting is to delete that.  The rationale for that is to remove the reference - it's effectively a consequential amendment given that we've said, "Well, we don't think it needs to be placed on the roster two weeks in advance", so we're simply wanting to effectively move the reference to rostering.  I accept that an unintended consequence of our drafting is that it suggests that you could consult after a decision has been made.  That's not the intention.  We would have no issue with a further tweak to that wording or that clause to say, "You must consult prior to a decision about when the work will be done."  It's just simply that idea that it's consulting prior to putting it on the roster.  That's the reason why we took it out, is we're saying, "Well, we don't think it should be put on the roster", not, "We want to allow consultation after a decision is made", if that makes sense.


JUSTICE ROSS:  No, I follow.  All right, thank you.  Yes, Mr Robson, go on.


MR ROBSON:  Yes, thank you, your Honour.  Just briefly in reply to what Mr Scott has just said, I don't think our proposal take it out of - prevents Mr Scott or any employer represented by him from doing what they suggest, which is that it could be rostered at seven days, but it also doesn't prevent it from being included on the fortnightly roster or, indeed, being worked as additional hours that are agreed, and I think it simply helps if we adopt our proposal that it identifies how work is getting into that employee's working time.


Probably the next thing to call out, the thing that we are really having issue with here is in (vii)(A), the phrase in the parentheses which says "(or a lesser period by agreement with the employee)"  We think there's going to be an undue amount of pressure put on employees to agree to shorter periods.  There's no obligation to make written records of that agreement.  I imagine ABI is going to make a submission that if that is suggested to them, that would be unnecessarily burdensome.  We say, you know, let the normal rostering provisions apply, consult with the employee before it's being changed.




MR ROBSON:  And, of course, it's been noted in our submissions we propose a new (E) at (vii).  I'm happy to take any questions from the Bench, if necessary, but I think we've spoken to it in our submissions sufficiently.




MR ROBSON:  Thank you.  This brings me to AiG's submissions about the interaction with the minimum payment period and the interaction with the broken shifts clause.  Now, we think that this is only likely to come up in a very rare circumstance and that would be where an employer requires an employee essentially to work make-up time.  So, if your service has been cancelled and you just perform alternate duties, the issue doesn't arise.  If your employer is simply making the payment to you for that time, well, if you've been rostered, if you've been, you know, given your hours of work that are in accordance with the award, where you've been paid the minimum payment.  And, you know, that - in those circumstances we don't see that there's any particular issue that arises.


In the case where someone requires some form of make-up time, I can understand that there is some concern there that that could be considered a broken shift, and especially in light of our submission that there should be payment at a later period that reflects the time that you worked at that time.  We don't think that cancellation should enliven the broken shift allowance.  You know, we would agree that there's not necessarily the same level of disutility and I note that there's a level of disagreement between the ASU and UWU on that point.


What we say should be done is just leave that alone and then look at the time where the hours of work are actually worked.  So, you know, what we say there is that if you are rostered to work your make-up time in a way that creates a broken shift, you should be paid the broken shift allowance.  Whatever is appropriate and the rules around structuring broken shifts should apply in those circumstances.  Whatever those may be.


Similarly with the minimum payment, we agree with the UWU's submission that not applying the minimum payment period to the make-up time is just going to cause more problems that it solves.  I think our submission will also be that it'd be very difficult to identify this phase of the proceedings when there's likely to be a significant change to the working patterns in the industry that have what those periods of work that were cancelled will be.  It's very possible that a 15 minute payment for a cancelled service, an employer's not going to bother to cancel that and, you know, would make up time somewhere else.  They may just provide someone with alternative duties.


For longer periods it's going to be easier to fit that into a period that fits the minimum payment and certainly there's nothing in the client cancellation clause decision that says there's somewhat less disutility for a person who's shift has been cancelled, who's having their make-up time rostered, that says that there shouldn't be some compensation for the disutility of working a broken shift.


So if the - you know, the shift is rostered with one break and that's how it ends up with the make-up time, that allowance should apply.  If there are two breaks, that wouldn't happen in a day because there is make-up time rostered.  The employer should still be required to seek agreement and that that allowance should apply.  We don't think there's any distinction between the cancelled time being made up and just the ordinary hours of work being rostered.


Going through to some of the proposals about part-time hours.  Looking at ABI's proposals, we agree with UWU that, you know, the proposals (indistinct) - - -


JUSTICE ROSS:  Which question are you on?


MR ROBSON:  - - - for the scope of the - - -


JUSTICE ROSS:  Which question are you on, Mr Robson?


MR ROBSON:  Apologies, your Honour.  Question 17, your Honour.




MR ROBSON:  So looking through the amendments proposed by ABI, I agreed with ABI that (g)(i) the agreement that - the change that's been proposed there, to increase the guaranteed hours.  We say - sorry, sir.


JUSTICE ROSS:  No, I haven't said anything.


MR ROBSON:  I think I'm used to the etiquette of someone going off mute when they're about to ask a question this time, your Honour, so that's why I've been pausing.


JUSTICE ROSS:  No, no, that's fine.


MR ROBSON:  We agree it should refer to their guaranteed hours.  Going to the example, we don't agree with the amendments they have proposed and we do agree with NDS's submission that the example is of very little value and should be removed.  Reasonable business grounds we agree are well understood and really will reflect the circumstances of individual businesses and an example is less helpful than it seems.  We agree - - -


JUSTICE ROSS:  What about the changes in (vii) - (viii) rather?


MR ROBSON:  We're opposed to that as well.  We don't see the need for it and we don't think there's any evidence that people are going to make repeated vexatious requests for an increase to their hours of work.  There may be circumstances that justify a request being made at shorter intervals.  You know, an example might be an employee in the - in a funded community sector organisation makes a request in one financial year, in the next very soon after, within six months, a new funding announcement is made and actually that employee's additional hours are now - you know, there is guaranteed funding for that work.  We don't see any reason why they shouldn't be allowed to go and ask and have those hours made permanent.


Just referring to the variation proposed at paragraph 216, your Honour.  This is where ABI proposes to clarify the drafting in respect of overtime for day workers.  We agree that that should read in the case of day workers for work done outside the span of hours under clause 25.2(a).  Actually no, I apologise, your Honour, we disagree with that, we think that adds greater confusion and we wouldn't support that.


Moving through to question 18, which deals with Ai Group's proposed changes.  In particular, when we're looking at the definition of eligible part-time employee, the ASU's already made a submission that we're concerned about the impact of this clause, particularly in the disability sector.  We'd oppose any change to the draft determination that narrows the hours that can be considered, and we don't see that there's any need for the definition proposed by AiG.  It overly complicates the clause and unfairly limits the hours that can be considered and the number of employees who can make requests.


I suppose that only leaves the issue of the operative date but there are not questions from the Commission to the ASU or any of the parties in that section.  We propose to make submissions about that at the next hearing, if that's appropriate.  Or I could take you to the documents that we tendered today.


JUSTICE ROSS:  No, you're not making submissions at the next hearing, so it's confined to the issues we've raised.  We're not going to keep pushing everything into the next hearing.


MR ROBSON:  No, sir.  Well, what we say about operative days is that there are two - there are two significant points for the submissions the employers have made.  The first is that they say they need to significantly restructure their operations and that's why they need an extensive period of time to implement the decision.  What we say to that is they've been on notice of the substantive parts of the decision since May this year, and certainly should be able to start planning and considering it.  And from looking at the evidence, the significant points are the minimum payments and the structure of broken shifts for day workers.  That has certainly been settled to this point.


There is - 12 months or more is far too much time to do it.  We agree that there is some merit in - having seen (indistinct) evidence in extending the period of time, but we say it shouldn't be any later than 1 January 2021.  That seems to strike a reasonable balance between the operative date of the decision, the original time the decision was made, and gives plenty of time for employers to consult and make decisions with their employees.


And then the second point that has been emphasised by the employers in their submission to justify the operative date being pushed back beyond 1 July 2022 is the funding arrangements.  What we say is the proposition that there is no guarantee of additional funding for these arrangements is untrue, it's speculation.


If your Honours could turn to the NDIS Workforce Plan, I think it's relevant to this consideration because it is uncertain, we agree, but certainly workforce issues are something that the federal government is thinking about; it's something that employers in the sector are thinking about; and there's a significant challenge facing this industry in the coming years.


So this is the NDIS National Workforce Plan for 2021 to 2025.  It has been prepared by the Department of Social Services, the federal department, and its purpose is to explain the initiatives the federal government is going to take to support the sector and support the NDIS to provide the services that it is expected to provide.


There are a number of initiatives that have been identified.  There's an important focus on training and skills development; there's a focus on cutting red tape and easing the bureaucratic burden that has been placed on employers; but also significantly there is a focus that is being put on attracting workers to the sector; the working conditions that mean people don't want to work in the sector; and there is an acknowledgement that funding arrangements need to be reviewed and changed.


So when the employers give evidence that there's no indication that funding arrangements will change, that's not true.  And in fact there is a significant amount of review and consultation and consideration of funding arrangements that apply to the disability sector at least.  I don't represent workers in the home care sector and don't have any submissions to make on those.


But it's simply untrue to say there is nothing being said to employers or to unions or to anyone that says that funding arrangements won't be changed or supported or reviewed in the coming four years.


This comes to some of the points that I took Mr Chippendale to, and I think this plan sets them out in a way that's quite useful.  At page 8 the plan summarises the number of participants the Department of Social Services estimates are in the system to date, that's 450,000, which is a significant increase from the number of people in the NDIS system when these proceedings started, and that's going to increase by about 50,000 participants by 2024.


That's going to mean that the workforce will need to increase from 270,000 people to 353,000 people, which is not an inconsiderable number of workers to recruit.  And there are significant barriers to that, one of which is the problem identified at page 10, which is they expect 213,000 workers to leave the sector.  213,000 workers over four years out of an existing workforce of 270,000.  That is not a sign of a workforce that is stable; it's not a sign of a workforce that can provide skilled, experienced, high-quality care to people with a disability; it's one of the highest turnover rates in Australia.


And as the department has identified, and as we've made submissions on and filed evidence to support, one of the significant problems for employees are low rates of pay; and there's a connection with those low rates of pay and the low and variable hours worked by employees.


So while the employers are making their submissions that there are difficulties with implementing higher minimum payments and there are difficulties with implementing many of the beneficial variations proposed by the Commission or determined by the Commission, there is a countervailing issue facing the sector, which is that it needs to keep its workforce.  And the low pay and conditions provided by the SCHADS award, which cover the majority of the people working in the sector, are one of the problems.


So even as the sector needs time, it doesn't need that much time; and it probably can't afford to be given that much time.  I'm finished with my submissions, your Honour, if there are no questions for me.


JUSTICE ROSS:  Mr Robson, what do you say in response to Ai Group's submission about the ERO, question 21 - I'm sorry, 22.


MR ROBSON:  Twenty-two.  Let me go to that question.  We would be happy to see that heading amended to say, "Final ERO percentage."


JUSTICE ROSS:  We might deal with this issue by exception, that is that in the parties to follow you, if anyone opposes the Ai Group's submission in relation to the ERO they should let us know, otherwise we will assume that everyone is content to adopt the change.  All right.  Thank you, Mr Robson.  We will go to the HSU.


MS SVENDSEN:  Thank you, your Honour.  Largely I would say that our responses have already been dealt with by ASU and/or UV, so I will indicate where we agree in the first instance and don't need to make any further comments, and then add anything else that I think needs to be said.  I think ‑ ‑ ‑


JUSTICE ROSS:  Ms Svendsen, I wonder if you might approach it the other way.  We will assume that you agree with everything they've said, and if you just focus on what you want to add or where you adopt a different view.


MS SVENDSEN:  All right, I can do that.  Please bear with me as I find the bits that I think I might need to add to.  I will make a brief comment in relation to the NDS proposal in relation to - no, I will wait till I get there.  I'm sorry.  I apologise.  The minimum training proposal:  there's a training - part of the training proposal - there's two parts to that training proposal that are made by at least ABI and AiG and - actually I think made by AEFI - no, not made by AEFI - in relation to there being no requirement for minimum engagement where the employee is not attending the physical workplace.


Part of that is actually in relation to, I believe, the training rather than just attendance at meetings or other things, and therefore the issues that Mr Robson raised in relation to working from home.  I understand that the - we understand that the concept around people being required to undertake e-learning, and that it's less disruptive to somebody's life, but the principal issue is around payment for undertaking required training, and there are a number of modules that are being proposed and there is no reason why they can't be added to other shifts to be rostered during their work time or a staff meeting expectation that people stay on and do that and therefore you have a minimum engagement time, and I just don't think there's any reason to alter or vary the minimum payment periods in such a way as to provide for multiple exceptions that anyone can think of.  It's another way of undermining the provisions for minimum payment.


I think Mr Robson has dealt with that one.  There are submissions in relation to returning the make-up time from the six weeks proposal, the provisional view that the Commission made, back to the three months.  I think that the alternative that are put in relation to scheduling make-up time in relation to using the roster provisions that Mr Robson has proposed are the ones that we prefer.  we have discussed this jointly.  We think that the concept of using the existing rostering provisions deals with the issues that are raised about two weeks and the month before you can roster something, so I'm not going to add anything to that, except to say that we support the proposal that ASU is putting and the draft determination that they will be putting that provides for the provisions 25.5 to apply more globally instead of narrowly and allows the full breadth of consultation and appropriate provisions in relation to roster provisions to continue in relation to rescheduled shifts or part thereof.


This is harder than doing it the other way, your Honour.


JUSTICE ROSS:  If it would be quicker, do it the other way.


MS SVENDSEN:  No, it's not quicker.  There's a question at 15 in relation to the proposal put by ASU concerning the amount payable in respect of work actually performed, whichever is the greater, which is their addition to that clause and we support that.  We think the principle of make-up time after a cancellation, that's something that was - I remember being part of earlier discussions, but my memory in this case is a little disjointed given the number of years that it's been running over.  I don't have any further comments to 18.


I think the question around 233, 234, which is a proposal by Ai Group in reply, that this matter is going to be dealt with much more by - no, wait a minute.  No, sorry, I'm wrong, this is around a proposal in relation to the agreement in writing and that ASU and UWU have actually proposed the alternative that any agreement not in writing would be additional hours not reached and therefore would be paid at overtime rates.  That reflects, as is indicated in the clauses, the submission of both parties that it reflects current provisions in other awards, including the Nurses Award and other healthcare awards and aged care awards, which actually also deal with the sorts of matters around changing shifts and requirements to fill shifts, et cetera.  We would actually support that proposal.  It is not an unusual one, it is not unheard of before and it already operates and operates well.


I would just say in relation to the 24-hour care proposal, while I acknowledge that the issues raised in relation to AFEI concerning the sleep issue, and there is a proposal by ABI - or NDS? - no, NDS, in relation to the sleepover period as well, I think that while AFEI indicates the removal of the word "continuous" is their proposed variation in relation to this provision, I think that the clause itself actually provides for an employee to be afforded the opportunity to sleep for a continuous period.  Opportunity to sleep for a continuous period doesn't say it will be granted or it will be available to them, it is an opportunity rather than a hard and fast dictation, so I'm not sure that that's particularly necessary.


The NDS proposal in relation to payment if that period of scheduled sleep is interrupted is definitely one that we think should apply and it is then consistent with the sleepover provisions more generally in the award and maybe that's what we should be looking at adopt.  I certainly think that that consistency is a good idea, not a bad idea.  It also deals with the issues that are raised by AFEI that people may not be able to sleep through.


We have no objection to the AiG proposal to clarify the issue around the yearly period in respect of which their annual leave accrues.  That is consistent with the shift work provisions and expanding that in that area.


I would concur with Mr Robson's issues raised in relation to the operative date.  I just say that the focus by the employers generally is on the system consultation - system changes that will be required, changes to their business.  They talk a lot about employee consultation and client renegotiations that will have to be undertaken.  They also talk about the need to commence funding and submissions or lobbying around the funding model.  I concur with Mr Robson's submissions in relation to NDS' planning around this issue and that there is no evidence that they won't be actually responding to these matters, and while I note the annual minimum rate rise wasn't incorporated this year, I suspect these are bigger changes and they are going to do them all together but there's certainly information to suggest that they are already commencing looking at all of those things.  Most of this information is not new.  We don't deny that it's a significant change and we don't deny consultation requirements are substantial and that they need to be undertaken.  But there has been four months to date since the decision has been taken.


Ms Leonard this morning said that she had not - they had not undertaken or commenced any processes in relation to that, despite the fact that the organisation was aware of the decisions.  The most contentious or the most - the biggest changes that people are going to have to deal with are clearly the minimum hours and the broken shift provisions, and the implications from those two things.  They are determined matters.


The matters that we are - the matters that we are asking - are talking about.  It's no use shaking your heads at me guys.  The matters that we're talking about in fact are matters in relation to payment, not matters in relation to whether or not we will have a new broken shift provision that is for one break or two breaks, and not matters that relate to whether or not we will have a two hour minimum payment period that is applicable to each period of a broken shift.


They are the decided matters, there is no reason why an employer could not have started processes around looking at least the processes that they need to change about development of the - about development of the instructions they need to provide to their IT systems.  I mean all of those things are matters that they need to do and that decisions have been made around.


The final building block that is required for those systems from an IT perspective, I can tell you now because it's a building block and they all add together like Lego, is that - and I do actually have some experience in that area so I know.  The building blocks mean that you then have to plug in what are the calculations for what the payment is or rate of payment is whether - I admit the shift allowance stuff's now become a bit unclear about whether a person is entitled to those things.  But they're building blocks.


They're not the premise that broken shifts would be one or two periods or that we will have changes to broken shifts and that we'd have minimum engagement clauses going forward.  So there are things without a doubt that people could start - that's starting to apply or starting to work on and that the minimal evidence that we have in relation to that is only Ms Leonard today, but suggests that people are just waiting and hoping that everything will go away.


I think that the time to date does need to be taken into account in looking at the operative date further on, and support ASU's submissions that 1 January is a reasonable extension.  That's all I'd like to say in relation to these matters.  Thank you, your Honour.


JUSTICE ROSS:  All right.  Thank you.  We'll adjourn now and resume at - just bear with me - at 2.15.  Can I ask - well particularly ABI, Ai Group and AFEI just to reach an agreement on who's going first and we'll see you at 2.15.  Thank you.

LUNCHEON ADJOURNMENT                                                            [1.15 PM]

RESUMED                                                                                                [2.16 PM]


JUSTICE ROSS:  Thank you.  Is there an agreement about who goes next?


MR FERGUSON:  There is, your Honour.




MR FERGUSON:  I think the agreement with the order just says Ai Group followed by ABI, followed by AFEI, followed by NDS.


JUSTICE ROSS:  Okay, thank you.


MR FERGUSON:  So I propose lead off just by answering the questions that we were specifically directed to answer.  The first is question 1, I think that's subsumed within the position that seems to have been reached in relation to broken shifts and shift allowances.




MR FERGUSON:  In any event, we've addressed it in our supplementary submissions at paragraphs 14 to 23.  I think the next question is question number 7 which is page 13.  For my benefit it's the issue around the ASU proposal that travel between locations be prohibited or the overtime attached to that if it's during a meal break.


I think the first concern we would have with that is that in our view - submission, an award can't contain a prohibition on an employer requiring an employee to undertake some sort of type of work.  It is not a matter that falls within the scope of section 139 or any other power to include award term dealing with the matter.  To put it simply, there couldn't be an award clause prohibiting an employer from directing somebody to travel.


JUSTICE ROSS:  Yes.  No, I'm not sure that because they say that overtime should be payable until an employee is allowed a meal break free from travel, they seem to be contemplating that they can direct them.  It's a bit like the 10 hour break between shifts.


MR FERGUSON:  Yes, and I'll come to the payment issue perhaps then so I think the short point is we don't have a draft variation, so I might be jumping at shadows.  But the way it was framed at paragraph 53 and that might be the product actually of the summary rather than the submissions, is that we understood that there was a proposal there be prohibition against giving a direction.


JUSTICE ROSS:  I think I'd said to the ASU during the course of their submission that this matter would be folded into the other issues associated with the broken shifts.  So it'll be in the second part.  They're going to provide, I think, a draft determination later today and it'll go through the same process as damaged clothing and remote response.


MR FERGUSON:  Yes, that circumvents one of the submissions that ultimately land on is that we would be wanting an opportunity to engage in - to consider and engage with members in order to do that.




MR FERGUSON:  The point I'd then just raise for the benefit of all parties is the extent to which this issue's already adequately - potentially adequately addressed through clause 27.1(b), which provides that:


Where an employee is required -


And this is clause 27.1(b) of the award:


Where an employee is required to work during a meal break and continuously thereafter they will be paid overtime for time worked until the meal break is taken.


JUSTICE ROSS:  I suppose the question is in travel time it's not regarded as work time at the moment.  They're simply told where their next appointment is.


MR FERGUSON:  Yes, I think that's the - in some contexts it would be work and some it won't, so I understand the complexity but undoubtedly that clause has some work to do. I don't know if I'm making sense or if I'm rushing too quickly there, your Honour.


JUSTICE ROSS:  No, no, you're not rushing too quickly.  It's - - -


MR FERGUSON:  Some employers structure work such that the travel is undertaken in the course of their duties, if I can call it that.  So that it, you know, where they bundle the shifts, for example, and they pay them for all time and all work is undertaken at the direction of the employer.


JUSTICE ROSS:  Yes, in other cases you might, for example, there might be a two hour engagement with one client and then they're told where their next engagement is but they're not paid for the travel between the two.


MR FERGUSON:  Yes.  Or necessarily required to travel directly between the two but that's the complexity.  If it's being referred off I won't - it's probably not efficient to - - -


JUSTICE ROSS:  Yes, I see what you mean by if they're not travelling directly.




JUSTICE ROSS:  Okay.  Which it is being referred off, so.


MR FERGUSON:  Yes, so I won't take it further.  That takes me to question 8, so I think actually question 8 is caught up with the broken shifts, shift allowances issue as well that we deal with in our supplementary submissions anyway at 14 to paragraph 23.  That's page 16.  So I won't say anything further on that unless there are questions.


That then takes me to question 10, your Honour.  That's - what we say about the ABI and AFEI submissions - position in relation to minimum engagement payment for training.  I think we're content to just rely on our submissions at paragraph 12 to 27.




MR FERGUSON:  The next is question 11, which is the shift swap issue, page 29.  I think in substance Ai Group and NDS say the same thing.  We're content with their wording or ours.




MR FERGUSON:  The next is question 13, page 35 and it's the ABI proposal around client cancellation.


JUSTICE ROSS:  I'm sorry, which one's that?


MR FERGUSON:  So it's question 13, it's dealing with the client cancellation issue and the ABI proposal.




MR FERGUSON:  We support the ABI proposal. In substance, it's the same or substantially the same as ours but we deal with this issue at paragraphs 232 to 239 of our submission.


JUSTICE ROSS:  Does that mean you're supporting it in lieu of yours or do we have to deal with both?


MR FERGUSON:  I think the difficulty is we deal with some additional issues as well in our submissions, so you'll need to refer through our submissions but we support their position on that specific one.


The next issue is question 15 which deals with client cancellations and this is the ASU's proposition about the rate of pay which would apply in relation to make-up time, or whether it should get the greater or the both.  We oppose the position put by the ASU.  The short point is that we say that the rate of pay, the applicable penalty that should be applied would be the one that would be attached to working at that particular time, because that penalty would be the appropriate compensation for the disutility of that particular activity.  Put simply - - -


JUSTICE ROSS:  Yes, so they shouldn't get a windfall if it's - if the employer's in receipt of a greater amount as a result of the client cancellation of arrangements.


MR FERGUSON:  That's right, and that would be what is necessary because in the context of - as contemplated by section 138, because there's compensation for disutility actually incurred.  So that's the windfall point, your Honour.


JUSTICE ROSS:  Yes.  Okay.


MR FERGUSON:  So that then takes me to question 16.  I don't have a page reference, I'm just going to flick through.  It's the NDS proposed amendments to the wording relating to client cancellation.  I think the crux of it is we don't think that the replacement of the word 'shift' with reference to service is necessary.  The clause essentially deals with the cancellation of work or shifts by the employee, not the service by an - that's actually provided.  We don't think that that element of the NDS proposal is necessary.


JUSTICE ROSS:  And if you deal with it by part of a shift or the portion that's subject to the cancellation, you'll probably deal with the same issue.  Is that the point?


MR FERGUSON:  Yes, but you could describe it as part of the shift or anything - - -




MR FERGUSON:  So you don't need to use the term service and bring a new concept in.  Their subsequent point about replacing the term make-up shift with make-up time probably does have some merit.  I'm not sure there's a lot in it but we would support that amendment.




MR FERGUSON:  It might be convenient now to deal with some of the union submissions in relation to our positions around client cancellations and engagement of some of the other provisions.  We do say, firstly, that it is quite critical that an employer be able to cancel a shift, an entire shift at their prerogative and not necessarily just the part of the shift that connects with the service that's cancelled.


I think our submissions deal with this in some detail but it's beneficial (indistinct) practical considerations.  I think there was evidence, for example, about bundling of shifts, that people potentially put clients, you know, on the back of each other and people, you know, planned a roof almost for a client - for an employee.  You can see, you know, the obvious problem if, you know, part of that day's bundle of shifts gets cancelled.  That is the start - the first client.  All of a sudden there might be an obligation to pay for a greater amount of travel time if the work is structured that way by that particular employer.


It might be, frankly, disruptive to the way they've structured that day's work for the employee.  So we say it's appropriate that the employer have that prerogative to cancel that entire shift, subject to all safeguards and so forth in it, so there'll be a make-up time type arrangement.  But for practical reasons that flexibility is important.  The second point we raise is in relation to the application of minimum engagements and minimum payments.  Again we say it somewhat undermined utility of affording this flexibility around client cancellations to employers if those two new elements are triggered by a client cancellations, and there's an unfairness in that element when it is an event that occurs entirely outside the employer's control.


I think some examples of how, you know, sort of frankly obviously unfair or perverse outcomes would flow from that are useful to consider.  Think for example an employee that has a three hour shift consisting of perhaps three one-hour services.  If the middle client cancels and the other elements of the award were to apply, the employee would end up with two two-hour minimum engagements and the payment of a broken shift allowance.  So as a consequence of the cancellation of one client, they end up with a windfall gain where they get paid for four hours' work instead of three.


JUSTICE ROSS:  Yes, but that's associated with your point about being able to replace the entire shift.  How does it relate to the working of the make-up time?  If you had a one-hour service cancelled, it doesn't mean you have to roster the employee only for one hour for the make-up time.  Why couldn't you bundle that one hour with other work?


MR FERGUSON:  I think the make-up time point is a separate issue, and it is an issue, but I think the point I was trying to make there, perhaps not clearly, was the unfairness that can flow from the application of the minimum engagement ‑ ‑ ‑


JUSTICE ROSS:  I see, yes.


MR FERGUSON:  ‑ ‑ ‑ and the broken shift allowance in that, you know, you lose an hour, and suddenly technically you meet the - you know, you've only got a one-hour engagement on either side of the cancelled client.


JUSTICE ROSS:  Sure, but if you're able to cancel the whole shift.


MR FERGUSON:  Well, cancelling the shift would provide one part, I suppose - one way of alleviating that sort of unfair outcome on the employer.  I mean, it would result potentially in clients that may not be able to be serviced if it was cancelled at such short notice, which might have significant implications for people with disabilities and other people that are dependent on employees.


And we would suggest that this mechanism would not be a catalyst for employers, unnecessarily or without cause, being forced to cancel work for people who are dependent potentially on the services they provide; but I appreciate the point that an ability to cancel the shift would be one way of avoiding that - you know, as we describe - perverse outcome whereby if you lose one client, and suddenly you get the windfall gain of an extra hour and a shift allowance.


So we would certainly say that if you were against us on the proposition that client cancellations not trigger the application of the minimum engagements and broken shift allowance, that it's crucial that that ability to cancel the whole shift is retained.  But as I said to you, there could be some quite negative consequences for the efficient performance of work, and implications for those dependent on services, so we would say you should resist that course.


But coming to the make-up point that your Honour has raised, I think the ASU essentially say that, well, the ability to cancel work, if I can call it that, though, should be confined to a period that accords with the service.  I think what might fall from that is that you end up only being able to cancel very small parts of a shift in some instances.


That then has a bearing, I think, on the utility of the make-up time arrangement in that if you're only allowed to cancel a small part of the shift, it seems somewhat unfair, in our submission, that when you roster the make-up time, you would need to somehow provide them with extra work for the full two hours.  Again it's sort of undermined utility of the arrangement.


And I don't know that the evidence establishes that in all of these instances an employer will just be able to allocate other work alongside the work that's rostered in a make-up time context, and I don't think that resonates with the reality is that in some instances employers don't have the full two hours to fill.  And I think some of our evidence goes to that, the evidence that we've led in these proceedings.


JUSTICE ROSS:  Which evidence?


MR FERGUSON:  I might come back to you, your Honour.  That then takes me to question 17.  I will come back to you on the evidence point if that's convenient, your Honour.




MR FERGUSON:  I can give you a specific reference.  Sorry, I'm just looking through the document.  This is our response to the proposal advanced by ABI.  We propose their specific amendments in relation to 10.3(g)(i), and we would rely on our submissions at paragraphs 179 as to why our position should be advanced or preferred.  We don't oppose their proposed amendments to the example.


JUSTICE ROSS:  I'm sorry, which part - when you're opposing 10.3(g)(i) - - -


MR FERGUSON:  ‑ ‑ ‑ pages 170 - paragraphs 170 to 179.  We don't oppose their suggested example.  We support their amendments to clause 10.3(g)(viii), and to subparagraph (b), so (viii)(b).  In relation to (viii)(b) their position in that regard is essentially the same as ours, and that's dealt with at paragraphs 176 to 179.  And we support their proposed amendments to 28.1(a).


In terms of question 19, which relates to 24-hour care, we don't have any submissions to advance in relation to the AFEA proposal.  In relation to question 21, which is again pertaining to 24-hour care, we don't have any submissions that we advance in relation to the NDS proposal.  I think a matter I should return to is the interplay between minimum engagements and currently employed employees.


JUSTICE ROSS:  Yes, I wanted to hear you about that, and also the ASU's submission on operative date, and the reference to the workforce report.


MR FERGUSON:  Yes.  In relation to the proposals, I think as I said to you, we had conceived of these as measures to transitional arrangements in the sense that they were mitigating the unfair impacts on existing workforces in dealing with that particular issue.  I'm very conscious of the matter your Honour raised, which is that it might be that - you didn't use these words, but it could be open to employers to sort of gain the system by working within any flexibilities we create.  That's not our intent.  I think one - - -


JUSTICE ROSS:  No, look, I suppose - I'm sorry, Mr Ferguson.  The other issue is that it's not really transitional.  Well, it may be, but it has got no time period.  It would apply to current employees for however long they remained in employment.  And you just look at the sort of levels of complexity that might build into your rostering arrangements.


You will have some of your workforce - leave side the unhappiness it might create within a workforce where some have the benefit of a minimum engagement term and others don't, but there's also the sort of rostering in complexity.  But your transition period doesn't have an end date.


MR FERGUSON:  No, it doesn't, and I will just work through that.  I think the first issue, even if this was not your Honour's main concern, what I was going to suggest was that they only apply to employees who were employed at a date that accords with the date of any determination of this issue, so that, you know, an employee effectively wouldn't have advance notice, so there would just be a line drawn, a clear line.


JUSTICE ROSS:  No, I follow you, yes ‑ ‑ ‑


MR FERGUSON:  ‑ ‑ ‑ be manipulated.  I think the timing issue, I understand the issue, it's not a transitional arrangement in the common sense that, you know, it's time-limited, but it, nonetheless, now will be a transitional arrangement for moving towards this new entitlement, and the difficulty with trying to put a time on it is that unless the parties reach an agreement on some other arrangement, all things would remain equal in the sense that pursuant to the agreement or contract which has been struck between the parties, depending on what it says, there is simply no ability for an employer to require someone to work the time that they have to pay, and so we have tried to strike mechanisms that incentivise employees to agree to work or to agree to the new arrangement, but, nonetheless, we still say it is unfair that an employer be forcibly be required to pay people that they can't actually expect a person to work, and I don't think a time limit type issue fixes that because while undoubtedly the evidence is that many employees are agreeable to working extra hours and so forth, I'm not sure that the evidence can be said to establish that all employees will agree to change their permanent working arrangements in the manner that's contemplated by the award so as to get past this issue.


We say that, yes, there is some issue in that there will be this dichotomy of different conditions applying to some workers, it will lessen over time, of course, but that it's still warranted.  I understand the issue, your Honour, about complexity with rosters and so forth.  Ultimately, though, that's a matter that individual employers can choose to grapple with in different ways and they may choose to make whatever decision they have to make if that complexity is too much in their specific context.  It may depend on matters such as the level of turnover in their staff and so forth and how many employees agree, and if the evidence the ASU points to is right and the people are agreeable, then the burden might not be particularly significant.


But what we would resist and we say the Commission should resist is an outcome whereby - which I think is what the ASU was advocating for - that it's just left to employers to take, you know, what would be a very undesirable to have to terminate employees and to make them redundant.  We don't think the award should be driving the termination of employees.  There are obvious cost issues - - -


JUSTICE ROSS:  Yes.  It occurs to me that there may need to be a consequential amendment to 10.3, part-time employment, in any event, to condition the agreement as to the regular pattern of work such that it's subject to the minimum engagement.  As the casual term is, for example, in 10.4(c), it identifies the minimum payment provision as well.  But I understand the problem.  That's not the issue, it's which of the alternative solutions as put forward is the least offensive, might be the best way of putting it.




JUSTICE ROSS:  Or the least disruptive or the one that's most likely to - but I understand the problem and I understand what you say about the severance pay and the rest of it.


MR FERGUSON:  Yes, and I won't labour that point.  For various reasons, we say it wouldn't be desirable to - - -




MR FERGUSON:  I think the difficulty we have is some of these concerns about our proposals are necessarily just because of the manner in which it has unfolded, it's being ventilated now, so while we may think about other ways, it's difficult to proffer any without engaging with members first, and I've sort of done - rushed proposals on the run.




MR FERGUSON:  But it is a very significant issue that we're trying to - that we've identified.




MR FERGUSON:  I think your Honour understands.




MR FERGUSON:  I think in relation to minimum engagements, the other issue that needs to be thought through is our proposition, if I can just describe it in short form, that the minimum engagement provision should not apply to an employee who is not working at a designated workplace or a particular workplace.  Effectively, we're saying that if, for example, somebody is able to work where they choose, just work from home, there is no force to the proposition that those two-hour minimum engagements should apply, and, look, our reasoning for that, in part, is drawn from the reasoning of the Full Bench as to the justification for the two-hour minimum payment provisions, which we have dealt with quite carefully and in detail in our submissions, but that reasoning, as we see it, falls in large part about the need to compensate for attendance at a particular workplace, and we say that just doesn't hold in the context of an employee that's not required to actually attend a particular workplace.


Now, the unions object and say, "Well, this is a new claim" and so forth.  I think we say that the Commission should grapple with the substantive merits of that matter and this issue rather than being distracted around those procedural issues.  I might take the point that they themselves have made various claims, but this is the first opportunity that we have had to respond to this specific proposal from the Full Bench, or decision, this outcome, if you will, and so we see this as a live issue.


JUSTICE ROSS:  Yes, but that's the difference, isn't it, that we have determined this issue and you are now wanting to engage with how we have determined it, and why shouldn't that be the subject of a variation application once we make the order?


MR FERGUSON:  I will come to that.  I think the point we were making, and I don't want to get stuck with procedural matters myself, is that we are responding to, obviously, through our claims originally, we (indistinct) to be projected for various reasons.  We didn't - I accept the criticism that we didn't get into this issue in that context, but it seems to us, and it's been raised with us, that it is an issue and we are raising it at this stage now.  We say that you shouldn't go through that process of just leaving it to a party to make an application, perhaps, but if a cogent reason for reconsidering this issue is ventilated - - -


JUSTICE ROSS:  But where does that begin and end?  It's whey - we'll never finish the review of this award on that basis.  We've been going for years because the same thing happens every time we decide something.  There's always someone quibbling with some decision and that's what you're doing.  File an application.


MR FERGUSON:  Yes.  I'll move on.  The next issue is the interplay between the remote response matter, if it will, your Honour, in the sense that the parameters for what is remote response work is somewhat uncertain.  Obviously, one of the matters the Full Bench has determined is that that should be defined.  But, if the Full Bench were to discretely find that the two-hour minimum payment provision should apply to everything, then, to an extent, it creates a different problem in that suddenly all of this remote response work, and it's uncontentious, it's not contentious that short periods of work away from a designated workplace happens, but if this minimum engagement issue is determined now, then suddenly a two-hour minimum engagement would apply to all of that work, which would be, we say, a very inappropriate outcome.


JUSTICE ROSS:  We have made it clear we were going to determine the remote response work today, but, at the request of the parties, it's been put off.  We have formed no view about how that operates and you are free to argue in that context that it ought not apply because we're dealing with a discrete topic.


MR FERGUSON:  And it may be a sequencing issue, your Honour, in the sense that we, as you see from our submissions, we were ourselves prepared to run the remote response issue, but we don't cavil with the merit of putting it off to another set of proceedings.  It may be that the scope of the remote response definition is the way in which this issue could be resolved from our perspective, but what we resist is a proposition that the minimum payment provisions necessarily - well, our primary submission is - and you may be against us - but our primary submission is that, as a matter of merit, you should find that there should be an exemption in the manner we have described because of the cogency of what we are saying.  Then the remote response issue may be a way for dealing with what should instead apply, and that could be dealt with, you know, in the not too distant feature anyway, but we don't think - sorry, your Honour?


JUSTICE ROSS:  No, I wasn't saying anything.


MR FERGUSON:  Okay.  I think I saw a flash.  The other element we would say that you need to take into consideration is the importance of a stable modern award system also as part of - section 134(1) speaks against the proposition that (indistinct) should be left to a separate proposition once this issue has been ventilated.


JUSTICE ROSS:  But it also speaks to the proposition that we have decided this issue and we shouldn't be entertaining your argument in the course of these proceedings and you should be put to the task of filing an application to vary.


MR FERGUSON:  I understand and we will obviously consider our position on all of that.  We raised it because it was raised with us as an issue.  It may well be that working from home and working remote issues have grown in significance since the time of these proceedings were run.  Obviously they were run prior to the pandemic, prior to much of Australia being subject to health orders to accommodate working from home arrangements to a significant degree.  We contest those issues obviously (indistinct) but I understand what you're saying.  We're raising it because it was a real issue and we think there is (indistinct) to our arguments.  I don't take it further.


I think that then does squarely bring me to the operative date issue, your Honour.  I think if I can deal with it this way.  Really, the broad thrust of the union's submissions in opposition to the case, the significant case that we've mounted in support of our proposal, is that, as I understand it, employers could or should have done more to get themselves ready to comply with the provisionally determined operative date, given the decision was handed down in May.


I think the difficulty with that proposition is there is evidence from a number of employers, and I'll come to the evidence more squarely, employer witnesses in these proceedings that we're relied upon that are squarely saying that they can't comply before 1 July next year or later and giving accounts for why.  But the unions have elected not to put any of the - any cross-examination around why they could have or should have done more to those witnesses.


Now we say they shouldn't now be able to advance submissions that say that the employers could have done more when they've made no effort to advance that sort of line of cross-examination.  Because the uncontested evidence is that the employers can't comply with the  provisionally proposed date.


JUSTICE ROSS:  Well, not the employers, the witnesses that you put in.


MR FERGUSON:  I think that's right, your Honour.  The witnesses that we advanced but they are significant employers and that is the best evidence you have about the - the Full Bench has - - -


JUSTICE ROSS:  It doesn't mean that we have to extrapolate it to every employer in the sector. The fact that a few may not be able to do it until the end of next year, what does that mean?  That we shouldn't be doing it until the end of next year?


MR FERGUSON:  I understand the force of that.  I think we say that when the Full Bench considers the detail of what we've advanced in terms of submissions and evidence, it depicts the nature of the problem the employers are faced.  Part of that goes to, which I think is uncontentious, that these reforms are quite significant in that they're going to require potentially, and I think this has been accepted, employers potentially restructuring their operations, potentially their workforces and we'd say the evidence demonstrates that some employers are going to have to also make changes to their systems.


It gives the Bench a picture of the complexity of that sort of process that will be visited upon some employers, which I accept it can't be established that it accounts - you know, that it will be visited everywhere.  But we say it should be sufficient reason for the Full Bench to adopt the course we have proposed of saying 12 months from the date that all these issues are determined.


I say 12 months because - not because we're trying to delay the implementation of the decision that we may not have been supportive of, but we're trying to give employers a clear window from once there is some certainty as to what the suite of changes will be, so that they can make those sort of changes in a considered and coordinated manner, rather than a piecemeal matter.  Given that there is the potential for, you know, some of the matters that have been contested to be changed to a result in variations that aren't yet known.  We say that can alter the decisions that employers might make.


We say ultimately employers should know the suite of changes and then to be given that reasonable window, and we say the evidence that's before you demonstrates why, at least for some employers, that is crucial and actually necessary if they're able to comply with the award.  I won't take you to the specific references but it was in particular the evidence of Chris Neilson, Richard Cabrita and Aleysia Leonard that go to the timeframes.  An issue I might come back to later with specific references if that's convenient, your Honour.




MR FERGUSON:  But the other side of the coin and look, our submissions are detailed about the operative date issue, I don't intend to narrow them.  But your Honour raised the issue of funding.  I think the other element of this is that we say there are going to be very significant costs implications potentially for many employers that would flow from elements of these decisions, and if they were to fall sort of out of that budget side they won't be accounted for by organisations.  For that reason, at least a date of 1 July next year, not earlier, would be appropriate.


JUSTICE ROSS:  Have your clients raised with the funding agency these changes?


MR FERGUSON:  Yes and there is evidence from Chris Chippendale that this issue was raised from our Life Without Barriers witness, that this issue was raised with the NDIA.  I think the point is that there is an intent amongst members to press the funding relief in relation to this issue, but essentially they seek a window to do that.  It accords with the logic I think from the last set of proceedings where the Full Bench, I think ultimately, you know, held of course that the funding constraints are determinative of the matter but the transitional arrangements are part of the remedy for that issue, in that effectively it gives the government an opportunity to address any deficiencies in the funding.


Now from our perspective, we say we need time to lobby.  The difficulty with that is at the moment we still don't have certainty around what all of the changes will be.  It then becomes quite a complex undertaking to work out what changes you would make to your operations to mitigate some of the adverse implications, and then as a result what level of sort of cost issues fall from that.  So that is why we press for a significant period of time or that is part of the reason, and it doesn't seem that there's any possibility that the funding (indistinct) that's happened but it seems in terms of looking at, in the NDIS context, for example, and there are various funding regimes and we deal with that in the various witness evidence.


It doesn't seem like it's contemplated that there'll be any review that will culminate in a change before 1 July next year.  But in answer to your question squarely, yes, that witness evidence establishes that we've raised - that one of our members has raised it with the NDIA.  I can't on my feet tell you how many others have, but I can tell you that there is an intent to make sure that this issue is understood.  That's part of our reasoning for the position we've adopted, your Honour.


JUSTICE ROSS:  Okay.  Thank you.


MR FERGUSON:  But in relation to the ASU's submissions, what we do say is there is certainly no certainty that any of these matters will just be dealt with by the government and by funding reforms.  That's why we want this window to press for that issue to be considered and taken into account.  Unless there are any specific questions, they're the submissions, your Honour.


JUSTICE ROSS:  Thank you, Mr Ferguson.  I think you were going to come back to me with some references to the evidence.  You can do that at a convenient time once we're through the other submissions.


MR FERGUSON:  Yes, that's what I intend to do.  Thank you very much, your Honour.


JUSTICE ROSS:  Thanks.  Mr Scott, are you up next?


MR SCOTT:  I am, thank you, your Honour.  I'll go through the summary document in terms of the questions.  I think the first question of relevance for my clients is question 4, which deals with the minimum engagement issue, in terms of the transitional proposals that have been put.  There seems to be three elements in relation to the part of the background document that deals with question 4.  If I can just work through those.


The first submission I want to make is in relation to paragraph 23 of the summary document and there's a proposal advanced there by Ai Group in relation to dealing with the two break broken shifts and the Full Bench decision indicates that they would be - there would need to be an agreement on a per occasion basis.  My clients support the Ai Group proposal at paragraph 23.  It seems to be a reasonably sensible, practical proposal.  The reason I say that is because there's some curious interaction between clause 10.3(c) and the requirement that you agree with a part-time employee to fix a regular pattern of work; and then this proposed requirement that you reach agreement to work a two-break broken shift on a per-occasion basis.


I think that it's fair to say that there may well be - and under clause 10.3(c) there will be agreed - or employers and employees may well agree on a fixed pattern of work on an ongoing basis.  And we say if that agreed pattern includes a two-break broken shift, then we say that that would be appropriate on an ongoing basis, rather than there then being this additional requirement to obtain consent on a per-occasion basis.  So that's our submissions in relation to that issue.


The second part of question 4 relates to this transitional issue on minimum engagements.  And, your Honour, I take from the previous discussion that the Full Bench is alive to the issue.  I think there's really two questions here.  The first is:  should there be a transitional clause to facilitate a process whereby existing employees who currently work shifts of a duration less than the proposed new or the foreshadowed new minimums, a process to transition that working arrangement to an arrangement that complies, or will comply, or be consistent with the new minimum engagement regime.  We say there should be.


And then if your Honours agree with that first question, then second question really is:  well, what form should the clause take.  There's two proposals before the Full Bench.  I think it's fair to say that neither are perfect.  In terms of - if I just deal with the ABI clause first, and I might just take you to - I think it's paragraph 87 in the summary document.  Paragraph 87 extracts our client's proposed clause.


I think it does work in terms of the mechanics.  I think there may be a couple of issues that need further consideration.  The intention here I think is quite apparent, which is that an employer should effectively be able to increase the duration of certain shifts that are below the foreshadowed minimums prior to the commencement of the - or as at the commencement of the new changes.


One of the issues that arises is that the wording that we've proposed talks about an increase of any shift or portion of work that's less than the applicable minimum engagement.  I think one of the unintended things that falls out of that drafting is that it may - it appears to allow an employer to increase a shift beyond the minimum.  So for example someone might be working a one-hour shift and it seems to allow the employer to say, "Well, we're now going to make that an eight-hour shift."


That's not the intention.  The intention is merely just to bridge the gap between the current minimums and the - or the absence of minimums and the new minimum.  So I think that's quite a workable fix there.  The second issue, your Honour, that you raised was about the seven days' notice.  I think that's a fair criticism that the ASU raised about the clause, which is that really it's interrelated to the proposed commencement date.


And so I accept that if there's a deferral to the commencement date to some - you know, 1 July next year for example, it may be appropriate for an employer to give an employee more notice.  I think another fair criticism perhaps is that it doesn't contemplate a consultation process.  I think each of those things can be resolved reasonably easily.  But I just want to then turn to the AiG proposal.


JUSTICE ROSS:  Just before you do, Mr Scott.  The other proposition would be that any such transitional arrangement should be time-limited, that you just - it operates for a period of, for example, three months after the provisions come into effect, and then it disappears from the award.  Because it adds - why would it be necessary to have it as an enduring provision in the award, point number 1; and 2, it focuses the attention on the implementation immediately after the provisions come into operation.  Why would you need more than a couple of months?


You're obviously going to be trying to change it, otherwise you're going to be paying for work that's not being performed, if I can put it that way.


MR SCOTT:  I don't disagree with the comments about whether the clause should be transitional or whether it needs to be permanent.  My starting point would be that I would imagine that's capable of being a transitional provision.  But I think why I was wanting to turn to the AiG proposal is because I think it addresses an issue that the ABI clause doesn't, and I think there's this kind of tension between - or there are a couple of options potentially.


Do you resolve it or facilitate it by way of the employer implementing it by way of notice; or do you deal with it by way of the parties reaching agreement.  And I think in that respect the AiG proposal, which is extracted - well, the clause extracted at paragraph 30 - has some advantage to the ABI proposal.  The reason I say that is ‑ ‑ ‑


JUSTICE ROSS:  You could end up with a hybrid, Mr Scott.  You could end up with a clause that requires the parties to consult, to endeavour to reach an agreement, and then once they've done that, the giving of notice - if there's no agreement, then the giving of notice by the employer.


MR SCOTT:  I don't disagree with that with this one caveat, and that is that the issue that AiG has raised, I think it is a real issue, and hence my turning to their clause.  Many employees will have their working hours enshrined in employment contracts.


The difficulty with what your Honour has proposed just a moment ago is that if the award has a clause that, you know, has consultation, endeavours to reach agreement, and if no agreement can be reached, there be a notice period by which the employer can issue the relevant change; that may work from an award perspective, but if there's a scenario where employees have working hours enshrined in a contract, those hours of course can't be changed without the agreement with the employee, and we may have that strange tension ‑ ‑ ‑


JUSTICE ROSS:  Sure, that might be the legal construct, but it's not the practical reality.  And we're not talking about senior executives here.  So the notion that there's somehow going to be a large common law contract dispute just seems a little fanciful.  And in fact the same issue would operate against a number of other clauses that are being proposed as well.  What if you've got an existing contract of employment on make-up time?


We've got no evidence of any contracts of employment before us, would be point number 1; and 2, you know, what does that mean?  You can never change anything going forward, you've always got to red-circle existing employees.


MR SCOTT:  I take your Honour's comments, and I think ABI's position is there needs to be some clause and some mechanism for transitioning.  There are two proposals that are perhaps imperfect.  There is scope to merge the two, or tweak them, or come up with a better clause, and I think that's entirely doable.  I've made the submission in relation to contract.  I think the extent of that issue - well, we don't know, but I maintain that it is an issue.


The AiG clause does deal with that because it deals with it - it kind of attacks the problem from another angle, which is effectively to say, well, if there hasn't been a facilitative agreement under clause 10.3(c) or (e), or whatever the clause is, your Honour, then the new minimum engagements don't come into effect, and so that practically will operate as an incentive for employees and employers to sensibly agree on these matters, and it also allow that sensible agreement to operate not only at an award level but also at a contract level.


So, the AiG proposal does solve both problems.  I accept that one of the criticisms that could be levelled at it is that there's no transitional kind of time-based limitation on the clause and I think that, again, may be something that can be resolved with a drafting amendment, but the AiG proposal at clause 30 does resolve, or does have the effect of resolving, the concerns around contracts, so, in that respect, it does have that advantage.


I have heard what Mr Ferguson said about the redundancy issue that was raised with the ASU and I echo those submissions about the inadequacy of simply letting the concept or the construct of redundancy deal with the issue.


The third element that is raised in the summary document under question 4 is an issue around the minimum payment for training.  I might just defer my submission until I deal with question 10 because it is dealt with there in terms of the issue.


I just note, your Honour, question 7 around the meal breaks, that has been deferred, so I won't address that issue.




MR SCOTT:  Question 9, your Honours, appears to repeat the issues that I have just addressed under question 4.


JUSTICE ROSS:  It does, yes.


MR SCOTT:  If I then turn to question 10, which is around this issue of minimum engagement for training and staff meetings.  My clients press our submissions in relation to there needing to be some accommodation to the minimum engagements for staff meetings and training.  We have outlined in our written submissions the reasons for that.  I don't propose to say anything further about that, but I do just want to make some observations about the AiG proposal.


Your Honours, the AiG proposal that I am referring to is at paragraph 38 of the document.  Your Honour, I have heard what you have said about, perhaps, the procedural elements of what AiG have put.  Can I indicate that we support the proposal put by AiG at paragraph 38 of the document.  It is effectively an alternative formulation to that that's been put by my clients in these proceedings.  I think there's some real logical force to their proposal, notwithstanding the concerns or the comments your Honour has made about procedure.


Now, the rationale for minimum engagements is, of course, to ensure a reasonable amount of income is earned by employees where they engage in those associated activities in terms of working a shift, getting ready for work, travelling to work, incurring travel costs, et cetera.  In that regard, I will just indicate that the AiG proposal is in fact more confined than the ABI proposal in the sense that what they have put forward would not apply where employees are required to physically attend the workplace, and I accept it might not be confined in other areas, but it is confined in that regard.


Noting what your Honour has said about procedure, if your Honours are not inclined to accede to the Ai Group proposal, my submission would be that it's appropriate to allow the parties or grant leave to the parties to deal with this particular issue in the context of the discussion on remote response work because it is clearly interrelated, it's talking about a particular activity that's done away from the workplace, and we would say that the fact that it might have been an alternative formulation to the ABI proposal shouldn't prevent Ai Group or the parties generally from progressing the issue in the context of remote response.  I just wanted to make that submission in that regard.


JUSTICE ROSS:  Mr Scott, if we accede to your submission that the variations operate from 1 July, well, why can't an application be made shortly after we have made it and you can run a proper case in relation to that issue with evidence?  Why isn't that open to Ai Group?


MR SCOTT:  Well, your Honour, I think it clearly is open to Ai Group, but just from an efficiency perspective - - -


JUSTICE ROSS:  Well, no, from an efficiency perspective, everyone is saying it's in everyone's interests that we resolve the order so you know what you're going to take to the funding bodies, and including an Ai Group submission, I might say.  They include the note that we should, to use the vernacular, get on with it and hand down a decision quickly, and then, almost at every turn, there's some other issue that someone wants to raise, so we're never going to get to the end point.  I am not persuaded by the efficiency proposition.  I just don't see how their rights are affected if - look, I accept that that assumes that we accede to prospectivity in relation to the order, so I think the two issues are related to that extent.


MR SCOTT:  Well, I won't press the efficiency point, your Honour, but can I just make this observation.  The remote response clause is a live issue in these proceedings.  There's now directions in respect of progressing that and I hear what your Honour says and my clients whole-heartedly support the prospect or the notion that this matter comes to finality as quickly as possible, but in the context where one of the live issues is the definition of remote response work, I don't necessarily see why Ai Group or any other party couldn't go to that conference and say, "Well, here's our proposed definition of remote response work and it includes staff meetings and training done remotely."  I don't say that to be difficult, but I'm not necessarily - I don't necessarily accept that Ai Group would need to make a separate application, your Honour.


JUSTICE ROSS:  Sure, well, parties can go to the conference and say whatever they want.  I don't think you're going to get a result on remote response work in any event.  I doubt if you'll end up with an agreement.  We couldn't get an agreement on damaged clothing at the last conference, so my expectations of a consent outcome are zero on the remote response proposition.  But you can certainly engage with the unions and it may be that there's a basis on which you can persuade them and then bring something back.  I'm not seeking to confine what you might discuss at the conference or what you might want to advance.


MR SCOTT:  If the Commission pleases, I hear your Honour's comments.  I'll move on.


Question 14, your Honour, client cancellation, we have advanced in our written submission some proposed amendment to the drafting in the draft determination.  I note that Ai Group have also advanced some alternative drafting.  The Ai Group drafting looks uncontroversial, but I'm conscious that there's likely, or there appears to be, some degree of overlap between the respective parties' drafting.  One issue that the AiG drafting picks up which our clients hadn't was the notion of changes or rescheduling services as opposed to simply cancellations.  We support the AiG's submission in respect to that issue.


If I just turn to the first issue that we raised in our submissions about client cancellation, and that is around the way in which make-up time is organised.  We have indicated that we have concerns with the proposed requirement that make-up time be rostered in accordance with clause 25.5(a).  We have gone through the calendar in terms of the logistics of how that works in the context of a six-week period.  And we've proposed effectively that the clause allow make-up time to be worked as quickly as reasonably practicably, and that it should be able to be done on seven days' notice.


My understanding of the submissions from the ASU was that they don't necessarily think that wording prevents that from occurring, and so that's heartening.  We do have some residual concern around whether the drafting makes that clear.  But it seems from that submission that there's no substantive opposition to the idea that an employer can roster make-up time on seven days' notice.  So it's just a matter of ensuring that the drafting allows for that.


The second issue relates to the notion of where an employer is permitted to charge.  I think it has been described as the double dipping issue.  Just in relation to the funding concerns that have been raised or the funding issue that has been raised, I think the Full Bench has made it clear throughout these proceedings that the funding considerations are relevant, but not a determinative factor.  We say that the relevance of funding and the weight to be attributed to funding has to cut both ways.


The Bench has made it clear that funding cannot be relied on to automatically decline claims that result in unfunded costs, and so equally we say that funding can't be relied on to then automatically decline claims that might result in employers, you know, achieving some revenue that might not be - that may go beyond funding.  So I just make that submission in relation to this idea of windfall gains.  I would also just make the submission that ‑ ‑ ‑


JUSTICE ROSS:  I suppose the related submission, Mr Scott, is that if this goes in, then the funding agency might restrict providers' capacity to make those claims.


MR SCOTT:  That may well be the case, your Honour, and obviously it's something that parties can really only speculate on.  But I think in circumstances where the Full Bench in the May decision made factual findings to the effect that the NDIS pricing regime was deficient, I just pause on the ASU submission about windfall gains for employers.  If that's hypothetically possible, it would be a very modest windfall gain in a context where the Full Bench of this Commission has already made a factual finding that the funding is deficient or inadequate.  So I think it needs to be viewed in that context.


JUSTICE ROSS:  Yes, okay.


MR SCOTT:  If I move to question 15.  My clients are not opposed to the ASU drafting proposal there.  Question 16, whilst ‑ ‑ ‑


JUSTICE ROSS:  This is the proposal that the employee get the amount that would be payable for the work or the cancellation fee, whichever is the greatest?


MR SCOTT:  That's right.  The relevant part of the summary document, in terms of the item that I'm saying my clients don't oppose, is the drafting at paragraph 200.  It seems to be that the clause contemplates that where there is a cancellation of a service, the employee can be redeployed at the same time as the service was scheduled, and can do alternate duties.


JUSTICE ROSS:  Yes.  No, I see.  Yes.


MR SCOTT:  And so I think there's this notion that - there is this notion that if you're redeployed at the same time, you get paid the higher of what you would have been paid for the cancelled service, or the work that you performed; and the ASU proposal is that that notion carry on in relation to the make-up time down the track.  And so we say that we don't oppose that.


In relation to question 16, we're not opposed to the NDS proposal.  I think the Ai Group have put similar drafting forward.  I think both parties' drafting seems fine.  I think the AiG drafting in this respect might be slightly preferable in terms of the language that's used, but I know that my clients have also addressed this idea of shift or portion of a shift in our submissions as well.


If I can turn to question 18.  This relates to the review of hours for part-time employees.  My clients have put forward some drafting, which we press; AiG have also put forward some drafting.  It does deal with one matter of mechanics, I think, that is important, and it's to the effect that if an employee is regularly working additional hours, and there's a review process, and the employer cannot unreasonably refuse the request to increase their hours, those increased hours need to be capable of fitting into the parameters of clause 10.3(c).


So in other words, clause 10.3(c) requires part-time employees to have a fixed, regular pattern of work, with some prescription going down to starting and finishing times and days of the week.  And so there needs to be that regularity of the additional hours in order to conform to clause 10.3(c).  I think that's the submission that AiG have put, and we support that.


In relation to question 18(b), I'm referring that to - I think it's the one after question 18.  This relates to the ASU proposal around having some standing agreement with employees around additional hours.  We're opposed to that.  Our position in relation to that is that the Commission has already rejected a claim for overtime being payable for part-time employees where additional hours are worked, and it appears that the ASU are now seeking to create effectively a similar outcome through a different means.


We're opposed to that, and we would raise some procedural concerns about that form of variation in circumstances where it was put for the first time on Wednesday - Tuesday, sorry, your Honour.  In relation to question 19, we agree with and support the AFEI submission at 235 and 236 of the document.  In relation to question 20, that seems uncontroversial.  I think the union parties have indicated as much.  We support the proposal by AiG just around the shift worker leave entitlement.


Question 21 is a proposal by NDS.  It does relate to the proposal by AFEI that I just dealt with under question 19.  Our position is that we support what has been put by AFEI.  Question 22 deals with ERO.  We're comfortable with what the Ai Group have said about that.  So, your Honour, unless there's any questions about those matters, I will just make some brief submissions about the operative date.


JUSTICE ROSS:  Certainly.


MR SCOTT:  I'm conscious that we've put quite detailed written submissions in in support of a deferred commencement.  My clients are pressing for no earlier than 1 July, or the first full pay period after 1 July 2022.  A range of submissions have been put forward in support of that.  There is an evidentiary basis for some of those submissions, and I think Mr Ferguson was turning to some of those parts of the evidence that was filed by AiG.  It's notable that the union parties accept the significance of the changes that will come about by reason of the May decision.  It's also notable that no union party has seriously challenged any of the submissions that have been put by the employer parties in support of a significant deferrable period, with some very limited exceptions, and so your Honour the unions only seek to cavil with what the employer parties have put in two ways.


The first was that there was some dispute about whether or not NDIS or NDIA will respond to the matters and the time in which it takes them to do that, which is of course speculative by all parties, save that there is some evidence that indicates the NDIA's intentions on dealing with funding and that's put in my client's written submissions as well as other employer parties.  The best evidence at the moment is that the NDIS has no intention to implement any further changes to its pricing until 1 July 2022.


The second area where I think the unions sought to challenge the employer's submissions on the deferral was that there's some dispute as to the weight that should be given to the last four months since the decision, so the period between 5 May or 4 May, sorry, and to date, and the extent to which that period could constructively be used by  employees in the industry.  I think it's readily accepted that obviously employers will have been able to do some planning, given some consideration to the types of changes that it might need to make during the last four months, but it's really the time period after the final decision is handed down, and that's the really critical part where payroll systems can be overhauled, consultation can occur with the workforce, consultation and discussions can occur with clients.


The bulk of that work simply cannot be done until there's a final decision and I think it's entirely appropriate and reasonable for employers in the industry to wait before starting to tweak their payroll system.  So we accept that the last four months some work could be done and my view on the Life Without Barriers evidence is that they have established a working group and they've been very busy on that front.  But the more critical work to actually implement the changes cannot be done until the final decision is handed down.


I think the only other thing I'd say is I think there was a submission or an observation from Ms Svendsen of the HSU where she acknowledged in relation to the shift allowance issue, that that issue that was ventilated this morning is an issue of some significance, and it potentially goes to fundamental issues around the operation of the award.  I just - I would observe that that type of issue is the very reason why it is appropriate and employers should not be criticised for waiting to see the outcome of this proceeding before the start tweaking payroll systems and rostering and all that kind of - all of those steps.


That's what I wanted to say about the deferral period, unless there's any questions your Honours.


JUSTICE ROSS:  No, thank you, Mr Scott.  Mr Warren, you're up next.  You right, Mr Warren?  You need to take the mute off.  No, you haven't taken the mute off.  You need to unmute yourself.  You need to unmute yourself.  Can you hear us, Mr Warren?  Nod if you can hear us.  We can't hear you.  Right, now.  No, we still can't hear you.  Just out of interest, can anyone else hear Mr Warren?


MR FERGUSON:  No, your Honour.




MR ROBSON:  No, your Honour.


JUSTICE ROSS:  No, you'll have to log out and log back in, Mr Warren, we can't - might be a bug in the system at your end, I don't know.


MS LO:  Your Honour, this is Ms Lo from AFEI, if it assists we're happy for NDS to go now and then we can go after NDS.


JUSTICE ROSS:  Yes, sure, sure, we'll do that, thank you.  Mr Pegg, you're good to go?


MR PEGG:  Yes, your Honour.




MR PEGG:  Give me just half a moment to get organised.  So I think in the interests of efficiency I'm not going to repeat a lot of what's been said already by the other employer parties so far.  Excuse me.


JUSTICE ROSS:  You want to be careful coughing in these difficult times, Mr Pegg.


MR PEGG:  Yes, I apologise.  I'm going to question 4 and that links it with question 9 as well.  I don't think that we have anything to add to the submissions of AiG and ABI, just double-checking that.  I'll move on.  I think that probably the next significant issue that's not related to broken shift for us to respond to comes up at question 10.


We would endorse the observation that there is an issue around minimum engagements where - so there is an issue around minimum engagements for remote work or for working from home, that's been discussed at length, we don't have anything to add other than to say that we support the submissions of AiG and ABI on that.  In relation to the client cancellation issues the first issue is around the terminology and use of the word 'shift'.  We don't oppose the alternative wording provided by other parties on this matter.  We take the - we accept the comments made by AiG about introducing the term 'service' as introducing a new concept and that referring to parts of - part of a shift or period of work might be more useful, but I think broadly the employer submissions are saying the same sort of things in relation to that matter.


We've got nothing to add to the submissions already made in relation to double-dipping.  We note the point made by ABI regarding the desirability of avoiding having award terms that link too closely or too tightly with funding arrangements and the specific funding arrangements, and we've seen in the history of these proceedings in fact that the funding environment around client cancellations have changed significantly over the last two years.


We support the proposal from AiG at paragraph 177 of the statement - of the summary that allows for rescheduling of services as a sensible elaboration on what a client cancellation might include.


Then moving to overtime for part-time workers - yes, your Honour.


JUSTICE ROSS:  What do you say in relation to question 15?


MR PEGG:  Just one moment.


JUSTICE ROSS:  At paragraph 200.


MR PEGG:  No, sorry, I skipped over that.  We don't oppose that.  We think that's a reasonable proposal from the ASU.  I think it's consistent with the sorts of submissions that were made during the proceedings about how this would operate.  So, moving to the review of guaranteed hours, the issue there around reasonable business grounds to refuse, we had proposed two options.  One is simply to not have examples.  Really all that's behind that submission from us is that sometimes to list is to exclude and putting in examples can have an effect of unnecessarily limiting how people read the clause, but, on the other hand, equally, there are arguments in favour of having examples to give guidance as to what is needed, and so, if there were to be an example, we simply propose removing reference to particular sectors, such as home care and disability, because the example given could equally apply across the sector.


We don't oppose the draft provisions provided by ABI at paragraph 215, including the additional provisions around where employees have refused previous offers, et cetera.


In relation question 18, the AiG's proposed changes, we don't oppose those changes either, including the issue around ensuring that any agreement that's made needs to be able to comply with clause 10.3(c).


We join the other employers in opposing the ASU proposals around overtime being paid at penalty rates for part-time employees where there's not an agreement in writing to work additional hours.  We see that as a new claim going beyond what we should be dealing with here today.


Question 19, the AFEI proposal regarding the sleepover part of a 24-hour care shift, we don't oppose their proposal.  We have also put in a submission that takes a slightly approach, but we don't oppose the AFEI proposal as an alternative approach to that.


We also support the Ai Group's - this is question 20 - the Ai Group's proposed wording in relation to the additional week of leave accruing during the yearly period in respect of which their annual leave accrues.


We have got no objection to the draft relating to the equal remuneration order.


I turn now to the operative date issue.  Again we support what has already been said by AiG and ABI in relation to this.  I will just make a few additional comments.  Firstly, I should say NDS have written to the NDIA seeking to engage on the funding applications arising from this decision and, as far as I am aware, nothing has, as yet, come out of that.  The NDIA, as has been mentioned by other parties, has stated that they will be conducting a review of pricing between August and December of this year.  So far as I am aware, that hasn't yet commenced.  NDS, as a peak industry association, one of the things that industry bodies do on a regular basis is lobby government around funding issues and they do that because they have some optimism that they can influence the outcome, so we certainly don't accept that it's a given that funding can't be adjusted to assist employers in relation to the costs arising from this decision, but we also know from hard experience that it's not something that happens overnight and there certainly are no guarantees.


JUSTICE ROSS:  Presumably, Mr Pegg, the first thing they will ask you is whether there's any order or any legal obligation arising from the May decision.  So, from your perspective, do you think they are likely to engage with you until there is an order?


MR PEGG:  I think an order is a really critical thing because that's what gives clarity as to what it is that needs to be funded.  So, the big cost issues arising from the decision, things like broken shift allowance and how the penalty rates would apply, are unclear at this point, so that's certainly an issue.  I mean, I don't want to say that our hands are completely tied - of course we can talk in generalities - but in order to be able to come up with concrete pricing mechanisms that are actually able to work, there needs to be an order.  That's certainly the case.


JUSTICE ROSS:  Yes, okay.


MR PEGG:  I would also just comment on the evidence presented by the ASU this morning in relation to the NDIS workforce strategy, and I just make the observation that where that report talks about pricing at all, it really just uses words along the lines of "continuing improvements into how the pricing operates" or "continuing improvements in approaches to pricing" and it says nothing about quantum of funding, it says nothing about meeting labour costs.  It could simply be part of reducing red tape.  I don't think there's a whole lot that can be taken from that.


I would also like to respond to the proposition put by the unions that, well, given that the timelines are already starting to push about a little bit, January would be an appropriate alternative operative date.  1 January would be a really difficult date for implementing a number of the changes proposed under the decision.  It's Christmas/New Year downtime and, administratively, a really bad time to do that.  So, just on that matter alone, we would be arguing that the date needs to be pushed further out still, even on the unions' arguments.


Finally, just to wrap up, I think I really need to emphasise that the change management - for those providers who do a lot of broken shift and those providers who have been utilising short periods of engagement, the change management process is very significant, it's going to affect the patterns of work for individual employees, they need to be consulted with and brought along, but also, importantly, the existing arrangements reflect agreements reached with the clients, and those clients will need to be approached one by one - can't do an across the board thing - they will need to be approached and negotiations entered into with each individual client and their carers and advocates to rearrange timetables as necessary to fit the new operating environment.


It's not that these things can't be done, it's just a very time-intensive, exhaustive process and at a really difficult time for the parties, particularly with the pandemic, at least for the rest of this year.  So, we would really like to stress that in addition to the other issues raised by employers round payroll systems and so forth, just managing the staff and client aspects of this is likely to take a long period of time and a lot of work.


Unless there are any questions, I think that concludes our submissions at this point.


JUSTICE ROSS:  All right.  Mr Pegg, can I ask you, you put forward as an option that the split shift limitations and the payment of the allowance only apply in relation to day workers.  I take it by "day workers" you mean persons whose ordinary hours are worked between 6 am and 8 pm.  Did you do that on the basis that you had read the award as not permitting split shifts in respect of afternoon and evening shifts?


MR PEGG:  Yes, sort of.  It was on the basis that, taking into account clause 29.4, which essentially defines a shift as being a continuous shift, I took the view that clause 25.6 regarding broken shifts, where it provides for payment of shift work penalties aligned with the finishing times of those shifts, was in a sense an exception or set up an exception that if you were working a broken shift as an afternoon shift, it's an exception to clause 29.4, but it's on the basis set out in 25.6.


So the proposal is partly just a definitional one, that by definition broken shift workers are day workers because they're not shift workers, so it's in a sense that day worker is the default category; and if you don't meet the definition of shift worker, you must be a day worker.  And as I indicated in my comments this morning, the language gets a bit clunky there because it looks a bit odd for somebody who's working through to 11 pm.


But the result of that is that the draft determination therefore makes sense, that the payments that the employee gets for working a broken shift, in addition to the broken shift allowance, would be any overtime or weekend rates that might apply, and presumably public holiday rates; instead of the shift penalties, which have been replaced by the new payment provision.


So it was partly - so the current award - to sum up, the current award, we would say where somebody works a broken shift that might meet the definitions of an afternoon shift or a night shift, but which are broken rather than continuous, clause 25.6 currently provides a mechanism for payment of a penalty rate that happens to align with the shift penalties.  And that gets replaced in the draft determination.


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


MR WARREN:  Can you hear me now, your Honour?




MR WARREN:  Wonderful.  Sorry, I had to go back out and come back in again.  If I could address the questions firstly that the Commission has put to us.  There appears, just by the consent position with respect to deferral of broken shift, nothing really comes through until question 7, and that's the proposal by the ASU.


AFEI does not oppose the concept of being paid overtime if the person was working during their meal breaks, but provided that meal break and the travel is limited to meal break in a travel and not the normal sort of - or the type of breaks that occur with the employee travelling from location to location if it wasn't a meal break.  While that's clearly stated, that's fine.


With respect to overtime applying on a meal break from travel, we say that's unnecessary.  We note the exchange between yourself and Mr Ferguson, and his reference to paragraph 27(1)(v) of the award, it's unnecessary as it's already cited in that provision that a person will be paid overtime for working during their meal break.


JUSTICE ROSS:  Mr Warren, I think that issue is also going to be the subject of the further proceedings.


MR WARREN:  I imagine it would be caught up in it with the ‑ ‑ ‑


JUSTICE ROSS:  It will be, and I mentioned that to Mr Ferguson when he was dealing with it.


MR WARREN:  Thank you, your Honour.  I will move on, then.  I note the - there's more broken shifts there.  The shift swap provision - no, sorry, to start with, the Ai Group submission with respect to it being unnecessary with respect to the ASU's proposal on clause 10.3(g), we support the AiG's submission with respect to that ‑ ‑ ‑


JUSTICE ROSS:  Which are you on now?


MR WARREN:  It appears as though it's locked in question 9.  It's at paragraph 82, the ASU's proposal with respect to 10.3(g), and AiG have put forward a supplementary submission on that in their paragraphs 31 to 35.  We support that provision or that submission.  With respect to question 11, the NDS's shift swaps provision, AFEI agrees with that proposition.  And indeed we not the Ai Group's provision with respect to that, and the shift swap provision there.


The notification, I think it's probably in question 14, your Honour, with respect to the notification of change of shifts or change of roster, we note ABL has put forward a proposition with respect to the notification period being reduced to seven days.  AFEI doesn't oppose that, and we note indeed the period of broken shifts worked within the period of - deferred can be worked within a period of three months.  We agree with that proposition by ABL.


In question 14, we agree with that proposition.  Question 15, that's on the cancelled shift provisions.  AFEI's position is that the payment should be for the shift actually worked.  So if there is a cancelled shift and it moves to a more expensive shift for the employer, then clearly the employer pays the more expensive shift; but if it moves to a cheaper shift, then the employer pays the cheaper shift.  So payment should be limited and should be directly connected with the type of shift performed.


The proposals in question 17, ABL have put forward a number of suggested changes to the review of guaranteed hours.  In large measure AFEI agrees with them, except for the provision in (g)(i) where in the current draft determination the words "reflect the ordinary hours regularly being worked" have been deleted by ABI(sic) and have put in this notion of guaranteed hours.


Currently the draft determination provides that the guaranteed hours need only reflect the additional ordinary hours, and ABL have introduced this notion of guaranteed hours.  The AFEI's concern there is that there could become - the overtime hours are counted, that they could become guaranteed hours, and we would oppose that.


JUSTICE ROSS:  I don't follow how that - you can request that you vary your agreement and increase - the guaranteed hours, in effect it's - are the agreed regular pattern of hours.


MR WARREN:  The concern there is, your Honour, that by calling them merely guaranteed hours, there may be some hours within that that may be regularly worked as overtime; and AFEI's position is that the wording used by the Commission by reflecting the ordinary hours should be maintained, and that makes it clear that you don't include overtime hours in that.  That's the position of AFEI on that and the reasoning for it.


JUSTICE ROSS:  I don't understand that at all.


MR WARREN:  Well, once when ‑ ‑ ‑


JUSTICE ROSS:  Because you are in fact - hours that have been worked as additional hours, it's then getting your agreed regular pattern of work amended so that the hours you've been working as additional hours are included in your agreed hours.


MR WARREN:  Additional ordinary hours, your Honour.  Additional ordinary hours.  But if there have been a pattern for overtime hours to be worked, they should not be included in that provision to in effect guarantee the employee to the future the overtime.  That's the reasoning behind it.  And that's why the wording that has been suggested in the draft variation proposed by the Commission, which spoke in terms of ordinary hours regularly worked, bearing in mind of course that those ordinary hours can vary throughout the year and the ordinary hours that the employee commences working at the start of the year may change and may still be ordinary hours.


JUSTICE ROSS:  Yes, I don't think repeating it's helping my understanding of it.  I'll ask Mr Scott to respond in a moment.


MR WARREN:  I'm sorry, your Honour.  I'm having a difficulty obviously seeing why the wording should be put in as guaranteed hours and should not remain the same as the Commission's ordinary hours.  However, if I could move to question 18, the Ai Group's proposal is accepted by and supported by the AFEI and question 19, that's the proposition put by AFEI.  I note the support that has been proffered towards that and in further support of that proposition with respect to putting the word 'continuous' in the clause, I note the evidence of Ms Lambert, AFEI1, that was tendered this morning and gives a simple explanation as to what can occur on a 24 hour care shift.


I just interpose here, your Honour, and note that a 24 hour care shift is not a sleepover shift but it's a 24 hour care shift, and indeed Ms Lambert indicates the type of interruptions that can occur whilst an employee may be having a sleep.  I note particularly in clause 50 and 51 she puts forward the proposition with respect to the opportunity to have an eight hour sleep, indeed many employees - care workers may get 10 hours sleep in one hit.  So I note that the provisions and the support give to those suggested provisions by AFEI by the other employer groups.


Question 21, yes, that deals with that and 22, that's with respect to the ERO, we support the Ai Group's submission and I think your Honour earlier on this proceedings indicated that absent any opposition to it, that would be where it would sit.


Could I now turn, your Honour, to the operative date.  I note Ms Lambert's evidence with respect to the issues of operative date and the concerns that her organisation has, and indeed it's important to note of course that a large proportion of her workforce are not engaged on work which is government funded, and one looks at the - in paragraph 7 and paragraph 8 of her evidence, AFEI1, 57 per cent of the provision of her employees are 24 hour care people, and they're with clients on a 24 hour period providing one on one personalised care.  She notes the very low profit margin that she has in her organisation.  It's a not for profit organisation, that doesn't mean necessarily that in any way it's totally - it is funded by the government.


In paragraph 16, she talks of the two parts of her business.  The first part, the hourly and overnight care which represents 43 per cent of the business and of which 45 per cent in the last financial year was funded and the other - obviously the other 55 per cent was unfunded and was obviously funded by clients, or the organisation, not government funding.


She speaks in paragraph 20 of the funding not covering the anticipated increases in costs and relates there to broken shift allowance, minimum engagement, client cancellation payments, damaged clothing allowance and a lot of those matters as we know have been put forward to a future hearing time.  I note particularly her evidence at paragraph 26.  She speaks of the most significant funding change to government funding starts in September 2021, where home care providers will now be paid in arrears and this could mean waiting months to be paid for services attended, and the concern that she has with respect to operative date.


Just with respect to operative date, your Honour, I note in the Commission's document the summary of submissions, there's a typographical error and it's a reasonably important one in paragraph 253, it's put that:


AFEI submit that the operative date should be no later than July 2022.


Indeed, in paragraph 14 of the AFEI's submissions it says 'no earlier than', and that's a fundamental difference.  We further note that the AFEI in their submission notes that:


Not all employers in the sector receive government funding for a significant amount of their services.


That is obviously supported by Ms Lambert's evidence. It's not just a question of knocking on the government's door to obtain funding as was clear as other employer advocates have already put, and the difficulty associated with that.  A major proportion of Ms Lambert's business is not government funded and a major proportion requires either her organisation to bear the cost or their clients to bear the cost, and the consequences of putting up the prices and losing clients and the consequences that will have on her business.


It's clear, in our submission, that the operative date of the significant changes to the award should not be earlier than 1 July next year and at best 12 months from the date of the decision being handed down.  We note, of course, the unfortunate delay which is going to occur with respect to broken shifts and other matters, but we're hopeful that that can be dealt with as a matter of some speed.


Unless the Commission has any further questions of me, otherwise those are the submissions of AFEI.


JUSTICE ROSS:  Thank you.  I might get you, Mr Scott, just to respond.  I think Ai Group also don't support ABI's proposed amendment to (g)(i).  Did you want to say anything about that?


MR SCOTT:  Yes, thank you, your Honour.  I think the complexity here lies in this kind of tension or distinction between the notion of increased hours or increasing hours and the idea of regularity or the pattern of work.  In our written submissions we deal with the issue at paragraphs 99 to 103, which really sets out the logic behind why we propose a tweak to the draft determination.  What we say there in paraphrasing is the mischief that the Commission or the unions were wanting resolved and remedied was this idea that there might have been some structural incentive in the award for employers to set ordinary hours for part-time employees artificially low and then take advantage of the ability to then offer them additional hours up to 38 without overtime.  ABI and ACSA and LASA and my group of clients put forward this review mechanism as an alternative proposal to remedy that issue.  That's the genesis for the proposed variation and the draft determination.


The Full Bench decision effectively and I think it's referenced in the Ai Group's submission, but I won't take your Honours to it, effectively says that where employees are working additional hours that they could then have a review process and there could be an agreement to increase their hours.  One of the - what we say is potentially an unintended consequence of the drafting that's been put forward in the draft determination, is that the language suggests that the agreement then needs to reflect the ordinary hours regularly being worked.  What we have said in our submission is, well, the parties, effectively, should be free to discuss amongst themselves a scenario where you say, "Okay, well, you have additionally worked an average of eight hours over and above your agreed hours.  We will contemplate and seek to reach agreement on increasing that."  Now, we don't think there needs to be - we don't think the clause needs to limit the way in which parties can reach agreement about increasing hours to only reflect the ordinary hours regularly being worked.  We say that it should effectively allow the parties to reach agreement to increase their hours.


The AiG have raised the point, and I think this is a valid one and so I want to endorse it, the difficulty with my kind of suggestion of let's have this expansive ability for parties to reach agreement on increased hours, it then obviously needs to be conditioned by the requirement at 10.3(c), and 10.3(c), for a part-time employee, as your Honour will know, builds in this notion of fixed pattern of work and there needs to be regularity.


So, my view is that our drafting is appropriate.  I can understand the issue that has been raised, but what I would say is, if, for example, there is a proposal to increase somebody's hours, if the proposal results in a scenario where those hours aren't worked regularly, then that would provide a reasonable business ground for the employer to say, "I'm sorry, I can't bump you up by eight hours because whilst you have worked an additional eight hours over the course of the year, those eight hours aren't with such regularity that it fits a pattern of work under clause 10.3(c), but perhaps, as an alternative, we can bump you up by four hours because we know that we can give you a shift which is predictable and regular and does then meet the requirements of 10.3(c)."


That is what my clients have put forward in terms of trying to rectify that issue, but we do endorse my understanding of what the AiG have put, which is any increase naturally will need to constitute a regular pattern of work because otherwise it is in conflict with 10.3(c).


Those are my submission, your Honour.


JUSTICE ROSS:  Thank you, Mr Scott.  I know there are a number of other individual employer, or persons representing individual employers, in the conference.  I wanted to ask the question whether there is anything you wish to say or whether you are content.  If you don't wish to say anything, I will assume that you are content to rely on the submissions that you have already filed.  If anyone amongst that employer group wishes to say something, if you can use the raised hand function.  If you can't find that, then just unmute yourself and bring yourself to our attention.  Anybody?  No?  All right, I can't see anyone and I'm not hearing anyone.


Is there anything that any of the other union parties or any other party wishes to say in response to what has been put?  The same rules applies, if you can use the hand-up function or say what you want to say.  Yes, Mr Ferguson?


MR FERGUSON:  Should I give the Full Bench the references to the evidence?


JUSTICE ROSS:  Yes, certainly.


MR FERGUSON:  The first issue was references in our filed evidence going to the period of time required in relation to the operative date issue, and the evidence I would refer the Full Bench to is, firstly, in the statement of Chris Nelson at paragraphs 87 to 88.




MR FERGUSON:  Then the statement of Richard Cabrita, paragraph 115.




MR FERGUSON:  Then the statement of Aleysia Leonard, paragraphs 106 to 107.  That's dealing discretely with the conclusions, if you will as to the operative date and the time required.




MR FERGUSON:  Then I was going to come back to, as I recall, in relation to evidence that we have advanced that establishes short periods of work, or short tasks, if you will.  I refer the Full Bench to the evidence of Richard Cabrita at paragraphs 24 to 26 and Aleysia Leonard at paragraphs 29 to 31, which talks about certain short task and short shifts.




MR FERGUSON:  Frequencies.  I also make the observation, if I may, that at paragraph 232(1) of the decision, the last decision of the Full Bench, the Commission made a finding that short shift engagements are very common in home care and disability sectors and some are engaged for only 15 to 30 minutes.




MR FERGUSON:  That's it, your Honour.


JUSTICE ROSS:  All right, thank you.  Mr Redford?  No?


MR REDFORD:  Sorry, your Honour.


JUSTICE ROSS:  Did you want to say something?


MR REDFORD:  Yes, if your Honour pleases, just two quick points from me.  One, in the UWU written submissions and in the submissions filed by the other unions, we raised the issue of travel time and the short proposition was that that matter also be the subject of the conference that's been listed.  We just haven't had an opportunity to address you on that submission, but we make that submission that travel time be included in the matters being dealt with in the conference.


The other quick pointed I wanted to make, your Honour, was I must say I think I took the invitation to make submissions about the matters raised as questions in the summary of submissions too literally and because there wasn't a question on the issue of operative date, I didn't address you on that matter, your Honour.


I just wanted to make two very quick points about that matter, if I might, because your Honour can imagine that the UWU supports the submission that have been made by the other unions on this matter, so I won't repeat them, but just two quick points.


One is just to clarify the point that we make in relation to the time the parties have had since the May decision to consider that decision and again to implement those matters that were decided matters in that decision.  There's been some things said about the evidence that's been put before the Commission today, including it not having been put to witnesses as to whether or not they have begun to implement things arising from the May decision.  About that, we just say, whilst it was put to one of the witnesses that her organisation hadn't done anything to implement the decision, and she conceded that it hadn't, it's not really the point, your Honour.  The point is not a particularly controversial one; it is simply that one of the matters the Commission should consider in relation to the operative date of the order that it makes in this matter is the fact that a number of the significant matters were decided by the Commission in May, and that that time period, the time period between May and whenever the order is made, should be taken into account.  That's simply the point, your Honour.


The other quick point I wish to make in relation to the operative date is this, and it's just to refer your Honour to one of the principles we say the Commission should take into account in considering the operative date, and that is a principle that came from the Penalty Rates transitional decision, your Honour, and I can provide your chambers with the specific reference to this principle, but it's the principle that the Commission in that matter referred to when - it was dealing with a submission made by the unions to delay the operation of the decision the Commission had made in that matter.


The Commission made the point that what had happened was that it had found that, in that case, the Sunday penalty rates were no longer consistent with the Modern Awards Objective, and so, therefore, there was some - and these weren't the words used, your Honour, but there was some level of urgency or compulsion with the Commission in implementing that decision once it had been made, and that, in my submission, is the position the Commission finds itself in in this matter, namely that it has found that a number of significant matters in t his award are not consistent with the modern awards objective, and therefore it needs to balance the need to rectify that up against the other matters that we concede are relevant to the question of the operative date.  They're the comments I wish to make, your Honour.


JUSTICE ROSS:  All right.  Thank you.  Anybody else?  No.  All right.  If there's nothing further, as I indicated, we will issue a short statement on Monday confirming the timing of the conference and the next hearing.  Now we will adjourn.  Thank you.

ADJOURNED INDEFINITELY                                                            [4.17 PM]



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