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Fair Work Act 2009                                       1056873






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards

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









9.30 AM, TUESDAY, 9 APRIL 2019


JUSTICE ROSS:  Good morning.  Can I just run through my list of the appearances and then if there's anyone I've missed, if they can say something.  In no particular order; Business SA Ms van der Linden, Ai Group Mr Ferguson, ASU Mr Robson, United Voice Ms Dabarera, ABI Mr Scott, AFEI Ms Shaw, NDS Mr Pegg and the HSU Ms Svensden.  Have I missed anybody?  No?


The purpose is to see whether any of you had any issues with the statement that we issued yesterday, which sets out the proposed programming in respect of this matter.  It's based on the witnesses required for cross-examination, their availability and the preferences of particularly the ASU and HSU as to when their witnesses would be dealt with.  It seemed convenient to divide the case, as it were, into the claims by the three unions and deal with each collection of claims separately.


Does anyone have any concerns or want to comment on the program?  If we deal first with United Voice, then go to the ASU and then the HSU.  Ms Dabarera.


MS DABARERA:  Yes, your Honour.  The programming is suitable for United Voice, keeping in mind that there is some crossover in the claims of United Voice and the HSU, but nonetheless we're happy to make submissions on Monday as the programming stands.


JUSTICE ROSS:  All right, thank you.  No, I appreciate there's a degree of overlap and you can identify that in the course of your submissions and I can leave it - no, I think it's probably better if your claims are the same, if the employers respond - for example, if there's a claim of United Voice's that is in exactly the same terms as a claim by the HSU then the employer should reply to both United Voice and the HSU after the completion of the HSU's submissions, all right?  Thank you, Ms Dabarera.  Let's go to Ms Svensden from the HSU.


MS SVENSDEN:  Thank you, your Honour.  The programming's fine by us.


JUSTICE ROSS:  Thank you.  The ASU, Mr Robson.


MR ROBSON:  Thank you, your Honour.  The programming's fine for us as well.


JUSTICE ROSS:  All right.  ABI.


MR SCOTT:  Thank you, your Honour.  The programming is suitable for us.  The only issue that I was going to raise was having the ability to deal with the United Voice claims that are identical to the HSU's claims on the Wednesday after the evidence, but you've already indicated that that will be available.  That was the only issue I was going to raise, your Honour.


JUSTICE ROSS:  Yes, I think that's the most efficient way of dealing with it.  It saves you saying the same thing twice.


MR SCOTT:  Yes, and there may be something borne out of the evidence on the Wednesday (indistinct) - - -




MR SCOTT:  - - - United Voice claims that are identical.


JUSTICE ROSS:  Yes, indeed.


MR SCOTT:  Thank you.


JUSTICE ROSS:  Thank you.  AFEI.


MS SHAW:  It is suitable for us.  What I would note is that I know we were meant to get back to you on Friday but AFEI does have questions for the witnesses that have been called, but we don't propose it would take a substantial amount of time.


JUSTICE ROSS:  All right.  Just bear in mind where multiple parties are going to cross-examine a witness, I'd encourage you to have a discussion amongst yourselves so the witness isn't effectively cross-examined three times about the same issue.


MS SHAW:  Yes, we'll have (indistinct) - - -


JUSTICE ROSS:  Right.  Thank you.  And Ai Group.


MR FERGUSON:  No particular issues.  Can I say (indistinct), your Honour, the times that are allocated for the witnesses, are they just indicative times with the view being that, say, all the witnesses would be there in the morning and if we can move through them more quickly - - -


JUSTICE ROSS:  Of course, yes, of course.


MR FERGUSON:  Just so that no one thinks that the witnesses just come at 11 and so forth and we have that sort of 15, 20 minutes - - -


JUSTICE ROSS:  No, no, certainly.  I'd encourage both the ASU and the HSU - look, probably if I go to the HSU for a moment, if you can make sure your two Sydney witnesses are available at 9.30.  We'll keep the Hobart VC at 11 and the Melbourne VC at 11.30 because it's just - it's a bit more difficult to move video conferencing around.  It may mean that we have a break after Mr Chi - the second of the HSU witnesses.


Similarly with the ASU's witnesses, Mr Robson we'll deal with the VC one at 9.30.  If you could make sure your witnesses are available at, say, quarter past 10 in Sydney because look, I've gone on the estimates that have been communicated but I doubt very much if we're going to take that amount of time to finish them.  It just saves everyone, including the witnesses, sort of sitting around unnecessarily.


MR ROBSON:  Of course.


JUSTICE ROSS:  Does that deal with your point, Mr Ferguson?


MR FERGUSON:  Yes, just another point and just a question - - -


JUSTICE ROSS:  Just before we get to that, I think Ms Svensden was going to say something.


MS SVENSDEN:  Sorry, your Honour, I was just going to say that was fine with us and you've dealt with the only concern that we had which was exactly the video link-in times being difficult with the other Commission (indistinct) so, yes, that's fine.


JUSTICE ROSS:  Yes.  Thank you.


MS SVENSDEN:  That's fine, we'll have everybody there.


JUSTICE ROSS:  Thanks.  Yes, Mr Ferguson?


MR FERGUSON:  Just one issue I think flows from splitting up these matters and also splitting up these claims from the other outstanding claims is that I understand the hearing dates will be used for making sort of claim specific arguments and dealing with claim specific evidence.  There might be some common issues in the evidence and the arguments that flow around in particular the operation of the funding arrangements and their relevance to the claims.  Am I right to assume that - - -


JUSTICE ROSS:  If that issue's relevant to the determination of these claims then yes, we would deal with it.


MR FERGUSON:  Yes, I just wasn't sure if it was a case of a decision ultimately handed down in relation to all claims.


JUSTICE ROSS:  No, I think we'll deal with it - look, as presently advised and that may - look, I'm not wanting to lock anything in stone but I must say my intention was to issue decisions in relation to these matters, then move on to the next matters.


MR FERGUSON:  Okay, then (indistinct) in the nature of the claims, issues around funding and so forth might be, even the subject of evidence from employers in the next round.




MR FERGUSON:  But look, it may not, you know, it's just one matter to be raised but it's probably common to all.  We'll see how it unfolds.


JUSTICE ROSS:  Yes.  Well, you might identify which particular claims give rise to particular funding issues.




JUSTICE ROSS:  If for example the weekend work, the casuals issue, then I'm not sure - I mean that sort of seems the most obvious one.  I haven't looked closely at the others.  They may rise to some funding issues as well but just identify what they are.  It may be - look, one course we may take is determine the issues in principle and then deal with the implementation timing together with the second tranche of matters.  That depends a bit on - I'm keen to get these - all of these matters determined as quickly as possible so I'd encourage you to have discussions.


I mean we'll deal with it at 10 o'clock on Monday but I'd encourage you to have discussions amongst yourselves about - well, what directions are necessary in relation to the outstanding claims.  They're in attachment B.  I'm going to want to know from - well if we go to the ASU, may as well raise it now Mr Robson.  You foreshadowed at the mention last week that you were proposing to call evidence from your union in support of the telephone allowance claim being advanced by others.  Now I'm not sure whether you still intend to do that.  I sort of got the impression that the answer to that might be no but I'm not sure.


MR ROBSON:  No, no, sir, I was referring to the travel time allowance.


JUSTICE ROSS:  All right.  Well which - - -


MR ROBSON:  Sorry, the travel time claim.


JUSTICE ROSS:  No, no, that's fine.  Well whichever one it is, the paid travel time, the United Voice claim?




JUSTICE ROSS:  All right, well a question for you then is well when are you proposing to file that material?  Because look, there's no need to answer it now but you see the question I'll have for the unions is this; have you filed everything you want to - well number 1; is this an accurate list of the outstanding issues, is there anything else?  I'll come to - remind me to come back to United Voice S49, the one that's highlighted but 1, is this the list of outstanding issues.  I will be asking ABI the same question.  Secondly, have you filed all the material you wish to file in support of those claims and the third proposition is well, who hasn't filed reply submissions to this material and when do you propose to do that?


MS SVENSDEN:  We'll consider that for Monday certainly.  You want that given to you on Monday?


JUSTICE ROSS:  Well because I want to set down the hearing dates and the directions for the second part of this case.  But I do want you all to discuss it amongst yourselves to see if you can reach an agreement about convenient times for the hearing and the timetable.  I also might ask because look, I haven't been through each one of these claims in any detail or the material you've filed, but I'm going to want an indication of what the range of witness evidence is in respect of these matters as well.  But that's the sort of level of detail that will go to the number of hearing days that might be necessary, and I would probably leave that to you to discuss it amongst yourselves, rather than imposing a timeframe.  See how far you can get, if you need some time well we can make the room available at 9.30 and you can let my Associate know if you're all ready to go at 10 or if you want some more time to discuss the programming issues.  But I want that resolved as soon as we can.  Everyone okay with that?


SPEAKER:  Just one point of clarification on that, your Honour.  In relation to seeking an indication from the unions as to whether or not they're going to file additional material, is that - - -


JUSTICE ROSS:  No, no, it's not an invitation.  If they've already filed their material - if they're already filed their material then that's all they need to tell me.  Now the ASU's raised an issue about its witness evidence, well that's going to delay the hearing of the case and I'm going to want to know how quickly they can do that and what it looks like.  Then I want to know - well, ABI for example, where is it up to with its claims, when is it proposing to file any material it wishes to file?  Then the material in reply.


SPEAKER:  A lot of work has gone into dealing with material that's been filed and I just was concerned that there might be - - -


JUSTICE ROSS:  No, no, I'm not - - -


SPEAKER:  (Indistinct) material.


JUSTICE ROSS:  Yes, well I want to get it on as quickly as we can, so if we can bear that in mind and we'll see how we go.  Can I raise one issue, United Voice has a claim at S49 which is characterised as a variation to correct a cross-referencing error.  Is - - -


MS DABARERA:  Your Honour, can I mention that we actually withdrew that claim.




MS DABARERA:  Yes, we withdrew it in our submissions filed on 15 February.


JUSTICE ROSS:  Right, that's why it might be highlighted, that's fine.  Is there anything else?


SPEAKER:  Just in relation to the list of outstanding claims, can we address you on Monday whether there's any, you know, (indistinct) at all.  We've just had a quick look through it.


JUSTICE ROSS:  Of course.


SPEAKER:  It's been put to me that perhaps it's not quite accurate.


JUSTICE ROSS:  No, no, that's fine.  It was the best I could do on the material I had.  It's not - it's intended to be a draft list and I do want the parties to identify it and as Ms Dabarera has said, it may be that some of them have been withdrawn.  Look, in terms of the union claims it would be helpful if you can also identify which claims are in essentially the same terms.  That's the point I was going to with Mr Robson.  Okay?


SPEAKER:  Yes, thank you, your Honour.


JUSTICE ROSS:  Anything further?  No?  Then I will see you all at 10 am on Monday.  Thank you very much.  I'll adjourn.

ADJOURNED UNTIL MONDAY, 15 APRIL 2019                           [9.46 AM]