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Fair Work Act 2009                                       1056585








s.156 - 4 yearly review of modern awards


Four yearly review of modern awards

AM2018/13: Aged Care Award 2010

AM2018/18: Children’s Services Award 2010

AM2018/26: Social, Community, Home Care and Disability Services Industry Award 2010.









11.02 AM, FRIDAY, 9 NOVEMBER 2018


JUSTICE ROSS:  Can I have the appearances in Sydney please?  Just keep your seat.


MS L SAUNDERS:  L Saunders for the IEU.  I think I need permission.


JUSTICE ROSS:  Look it's a mention.  Let's just see if we can get through it as quickly as humanly possible.


MR S BULL:  Bull.


MS N DABARERA:  If the Commissioner pleases Dabarera, initial N for United voice and with me is Bull, initial S.  Your Honour, we're also appearing for the HSU in relation to the Aged Care and the SCHADS Award.


JUSTICE ROSS:  Thank you.


MR M ROBSON:  Your Honour, may it please, Robson, M for the Australian Services Union.


MR B FERGUSON:  Ferguson, initial B for Ai Group.


MS S WHISH:  Whish, initial S for ABI and the New South Wales Business Chamber but also for the Australian Child Care Alliance just in relation to the Children's Services Award.


MS N SHAW:  Shaw, initial N for the AFEI.


MS A WADE:  Wade initial A for the Aged Care Employees, Aged and Community Services Australia.


JUSTICE ROSS:  Thank you.


MS J FIELD:  Field initial J for Aged Care Employers, Leading Aged Services Australia.


MR M WRIGHT:  Wright, initial M, also with the IEU.


MS A ARRABALDE:  Arrabalde, initial A appearing as an individual.


JUSTICE ROSS:  Thank you; no one else in Sydney?  Melbourne?


MR M PEGG:  Your Honour, Pegg initial M for Jobs Australia.


JUSTICE ROSS:  Thank you.


MS K WHISCHER:  Your Honour, Whischer initial K for the Australian Nursing and Midwifery Federation.


JUSTICE ROSS:  Thank you, and we have Ms van der Linden on the phone for (Business SA), is that correct?


MS E VAN DER LINDEN:  That's correct, thank you your Honour.


JUSTICE ROSS:  Anyone I've missed?  No?


We might leave the children's one for the end, because it's got a degree of complexity with the overlap question.  Let's go to the Aged Care Award first.  A report was published on 30 October.  There were indications given then about how long or how many witnesses were likely to be called.  There were subsequent submissions filed by United Voice on the 15th and HSU on the 15th confirming the various substantive claims.  I think at this stage; the issue is really about any comments on the draft directions.


MS DABARERA:  Your Honour, from the position of United Voice and the HSU, we don't take issue with the draft directions.  Your Honour also asked us to confirm whether the list of claims in attachment A was correct and I did want to correct that it's broadly correct, your Honour.  There is some detail in our sleepovers' claim in that our claim, in addition to the matters listed, was also to enable employees to refuse sleepovers.  That was put forward in our submissions dated 2 March 2015 and 28 July 2017.  That's now been reflected in our draft determination that we filed on Wednesday.


JUSTICE ROSS:  That's fine.  I can amend attachment A arising out of this to reflect those changes and I'll also note that you've filed the draft variation determination.  Anything else?


MS DABARERA:  On behalf of the HSU, the HSU advises that they're no longer pursuing the following claims.  One is allowances for employees who are the subject of unilateral employer imposed roster change.


roster change.


JUSTICE ROSS:  Is that one of the ones in attachment A?


MS DABARERA:  Yes, I believe so, your Honour.


JUSTICE ROSS:  Which one is it?  All right, it's the last one in dot point three.  Is that it?


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  Right, I'll take that out, yes.


MS DABARERA:  The HSU is also no longer pursuing increasing the minimum engagement period for four hours for part time and casual employees and that's the last dot point in attachment A.


JUSTICE ROSS:  Yes, all right.


MS DABARERA:  The HSU also - on behalf of the HSU we also say that there was some agreement in the Aged Care Award proceedings.


JUSTICE ROSS:  Is the joint report?


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  No, no, I'll come to the joint report in a minute, that's fine.  I understand both of you - well, the short point is you'd like us to make a decision about that sooner rather than later because some of your claims might be contingent and reagitated in the event that we're against you on the joint report.


MS DABARERA:  Your Honour, that was our position in relation to SCHADS.  In relation to Aged Care - - -


ion to Aged Care - - -


JUSTICE ROSS:  I'm sorry, I've confused the two.  Yes, what's the position on Aged Care?


MS DABARERA:  Aged Care, the joint report was actually endorsed by a decision of the Commission, but the exposure draft hasn't actually been updated to reflect that.


JUSTICE ROSS:  What was the decision of the Commission?


MS DABARERA:  Sorry your Honour, just a moment.


JUSTICE ROSS:  That's all right.


MS DABARERA:  Apologies your Honour, if I could just have a moment to check that.


JUSTICE ROSS:  That's fine, we can come back to that, but your short point is - so the variations have been made in the award, but the exposure draft has not been updated?


MS DABARERA:  The Commission confirmed that the joint report, as agreed to by the parties, was endorsed, as in those changes would be made.


JUSTICE ROSS:  Yes, sure.


MS DABARERA:  But the exposure draft hasn't been updated and the award actually hasn't been varied as yet.


JUSTICE ROSS:  Was the joint report - was the agreement to vary the award, or was it to have the variations incorporated in the exposure draft?


MS DABARERA:  My understanding was that - I would have to confirm that, your Honour.


JUSTICE ROSS:  Who is party to the joint report?


MR BULL:  I know we were, and also the HSU and obviously a number of aged care employers.


JUSTICE ROSS:  I assumed as much.  Well perhaps if we deal with it this way.


MR BULL:  We can send you an email on that.


JUSTICE ROSS:  Yes, just send correspondence identifying the parties to the agreement, the Commission decision and I'm assuming your request is that the award be varied and the exposure draft be updated.  What we would then do, once we receive that, assuming that's all right, we'd publish draft variation determinations, varying the award and we'll see if any issue arises from that.  But that doesn't really affect this hearing, it's just you're drawing it to my attention because we're here, so you may as well.  Is that the case?


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  Anyone else have anything to say about the Aged Care Award?  No need to say if you agree.  I only want to hear from you if you object to the draft directions or there's some error - because I think the substantive claims are only being pursued by United Voice and HSU in this award.  Anyone?


MS WHISH:  In relation to ABI and NSWBC, last directions we were asked to confirm whether or not we would be opposing all of the claims or some of the claims.


JUSTICE ROSS:  Yes, yes.


MS WHISH:  I can confirm that it is all of the claims that are still being pressed to day.


JUSTICE ROSS:  Right, anyone else?  No?


MS WADE:  Your Honour, the Aged Care employers concur with ABI.


JUSTICE ROSS:  Yes, anyone have a different view amongst the employer groups?  No?


Well, I'll update the attachment A, we'll take care of this consent position in the manner that I've indicated and we'll confirm the draft directions.  Nothing further for Aged Care?


Well, let's move to SCHADS, for want of a better description.  Bear with me.  The ASU, United Voice and HSU, well in essence, want us to reach a view about the consent position.  On the last occasion we published the report, who it is party to.  Ai Group wasn't party to it.  They were going to look at it and see whether they were opposed.  Does anyone oppose the consent position set out in the joint report?


MR FERGUSON:  Yes, your Honour.  Our position is for context.  Since that report was published, it seems to have given rise to some interest from industry.  As to the joint report, we've had a number of major employers come to us expressing concerns and asking that we oppose the report or elements of it.  We've gone through a process of - we're talking to them about that to try and sort of grapple with the precise nature of that opposition in terms of whether it's fatal to the thing or whether we can make some progress with the other parties.


The time period has not allowed us to finish that process, because there are some divergence of views, but they are major players.  We would like an opportunity to sort of finish that and we'll do that very promptly to see whether we need to press our opposition and whether we need to press opposition to all of it.  Some of the opposition seems to be quite serious.


For example, there's a level of concern about some of the increased cost that might flow from the variation and the extent to which that's funded under the NDIS.  But we need an opportunity to further develop that with them.  Their concern is that their interests haven't been represented in the deal to date.  I appreciate we've come late to this, but many of those organisations weren't even members before now.  But seeing it's now been put up on the website and they've seen it, they've called us.


We wouldn't be opposed to them working with the other parties to see whether our concerns can be addressed, but we're just not even in a position to put a concise proposition at the moment.  I don't wish to derail the whole proceedings.


JUSTICE ROSS:  Well, it won't derail the whole proceedings.


MR FERGUSON:  No, we appreciate we've come late, but it seems that they are serious concerns.  We want to try and provide as sufficient a voice for those as we can.


JUSTICE ROSS:  Which member did the conference that led to the joint report?  Anyone here recall?


MR ROBSON:  Deputy President Booth.


JUSTICE ROSS:  Well when are you going to be in a position to - - -


MR FERGUSON:  Two weeks, I really wouldn't expect more than two weeks to have a discussion with our parties to reach a firm position on it to engage with others.


MR BULL:  We would formally object to that.  There's been a process which has been open and transparent.


JUSTICE ROSS:  It doesn't matter.


MR BULL:  Noting our objection.


JUSTICE ROSS:  Yes, well but there's an application to vary the award.  You might have consented, but that doesn't mean the Commission is going to agree to it and we want to hear what everyone wants to say about it.


MR BULL:  I hear what you're saying, but there was an attempt to have a process that avoided this.


JUSTICE ROSS:  No, I think it's regrettable, there's no doubt about that.  I want to know who Ai Group's purporting to represent.


MR FERGUSON:  I have instructions to advise if I need to.  Do I need to?


JUSTICE ROSS:  You will need to.


MR FERGUSON:  Do I need to now?




MR FERGUSON:  Well so one of the organisations is Life Without Barriers, which is a very signification player.  Another one is Live Better.  I don't have instructions to divulge beyond those, but it seems that there is broader concern.  As I said to you - - -


JUSTICE ROSS:  Well, I'm not - whether you have instructions or not.


MR FERGUSON:  Well we are appearing in our own right in relation to it, but it's a serious issue.


JUSTICE ROSS:  But you're not appearing in your own right.  You only represent members who have an interest in this award.




JUSTICE ROSS:  Otherwise you don't have an interest in this award.


MR FERGUSON:  No, I appreciate that.  We do have the relevant interest, and as I said to you, I appreciate the other organisations aren't divulging their memberships either, but I appreciate it.  Look, we're not coming here without a membership, without a relevant interest.  As I said to you on the last occasion, we weren't certain we would need to be involved in it.  As I said, we want to have an opportunity to have discussions with them to make sure that they don't have a misunderstanding about any of the joint - - -


JUSTICE ROSS:  All right, by Friday, 4 pm on Friday 23rd Ai Group is to file a submission indicating which part of the joint report it proposes and on what basis.  Once we've got that we'll convene a conference of all of the interested parties and see whether the matter can be worked through.  If not, then on what basis do you want that issue determined?  That is, if it's contested, what I want you to think about is whether you want that contest heard and determined before we move to the main proceedings.


It needn't disturb any of the directions or any of the issues for this reason.  The unions have indicated that their consent to that position altered the view that they had about pursuing other substantive claims.  Well, the unions would have leave to file other substantive claims in the event that in whole or part, the joint report wasn't given effect to.


MR BULL:  That may be the case, your Honour, but I really would like to place on records the fact that the serious concerns of AiG and their concerns are always serious and they are repetitively serious, are imperilling a timetable.  We can amend the timetable and delay it and so forth.  But there is a point where, in what has been an imminently fair and transparent process, it creates impossibilities where we are in the process of attempting to marshal evidence for defined matters in dispute by the end of this year.


We have limited resources and we try and do a good job with what we have.  If we then have to then direct our resources to essentially nobble matters, new claims, it's fundamentally unfair.  AiG is an organisation with significantly more resources than United Voice and there is a point where they should not be afforded this privilege to - because they get people join their organisation to reagitate things in a process that has been going for five years.  Where in good faith we have participated in a process which was transparent, and the employers participated in that too.


MR ROBSON:  The ASU shares that view, your Honour.


JUSTICE ROSS:  Look, this isn't really an exercise for each of you to get off your chest your frustration with Ai Group, all right.  I understand the point.  The simply point is, your consent doesn't bind everyone in the industry.


MR BULL:  I know.


JUSTICE ROSS:  Others have an entitlement to be heard about a variation to termination giving effect to that consent.  The question is, how do we work that out and fit it into the program with as least disruption as possible and how do we not prejudice your position?


To the extent that you have in effect, traded off some claims for others in reaching the consent position, your position won't be prejudiced, you will be able to reagitate those claims if you wish.  We will seek to determine the matter as quickly as possible and we will have a conference files its material.  But I'm going to want to know exactly - I don't want the tail wagging the dog in other words.


If you come along with a couple of members and a few employers and a few employees and the rest of the sector is against you, then you're going to be up against it.  So, let's just see what you've got when the time comes and I'd be interested to know whether if those members were party of another organisation earlier and were therefore represented in this proceeding, in the conferences that led to the consent position, that will be a relevant consideration as well.


MR FERGUSON:  Look, we understand it.  It's issues of merit that they've raised with us and we would be advancing them on that basis, rather than just whether there was agreement.


JUSTICE ROSS:  Sure, yes.


MR FERGUSON:  We're not doing this lightly, and that's why I've set the extra period of time to make sure that we need to shore up these issues.


JUSTICE ROSS:  Yes, all right.  Anything else in relation to the directions that are dealing with the hearing of it, the filing of the material et cetera in respect of the claims we've got?


MR FERGUSON:  If we could make one constructive suggestion?  I think the way they're framed at the moment, interested parties that have filed material in support of their claims and then parties are able to respond to that material.  Perhaps if all interested parties were to file - in support of claims would file their material in one go.  Then all the parties opposing any of the claims were to file their material.


What we don't want to have is a situation where someone advances a claim, then a union comes along and files their material in support of that claim in reply to the first union's material.


MR BULL:  I don't understand that.


JUSTICE ROSS:  Neither do I.


MR FERGUSON:  The way it's framed is the interested parties to file evidence and submissions in support of their actual claims.  So, individual unions are mounting individual claims.


JUSTICE ROSS:  Yes, yes.


MR FERGUSON:  What we've had in some proceedings is that particular union moves their material, but then some material from another union in support of that claim comes on in reply to that.  If there's a third round it's not a problem, but we don't get an opportunity to respond to any of that material.


JUSTICE ROSS:  No, I'm not minded to change any of that.  There'll be liberty to apply.  If the issue arises, we can deal with it then, but we're not changing for an anticipated thing that may not happen.  I'd encourage the three unions, confer about your submissions.  Don't try and double dip because it won't be effective, because I'll sort it out if it happens.


MR BULL:  Well, we have been actually working in quite a coordinated manner.


JUSTICE ROSS:  No, that's fine.


MR BULL:  What Mr Ferguson - it's not going to happen in relation to the principal unions in relation to this award.


JUSTICE ROSS:  Yes, all right.  Anyone else?


MS DABARERA:  Your Honour, sorry.  I wanted to make some clarification about our claims.




MS DABARERA:  In respect of the claims in attachment A, again it's broadly correct, but there is some details in it.  With claim which was numbered S37, which is broken shifts.  There's an element of our claim which is not identified in the attachment.  Our claim was to ensure that employees who were receiving the broken shift allowance get paid the relevant shift allowance depending on what time they start or finished and that's been identified in previous submissions from March 2015 and May 2017.  We've reflected that in our draft submission filed Wednesday.


The last part was our claim which was numbered S51, to ensure that part time employees alongside our claim for casual employees receive overtime after eight hours.  That was again in a previous submission in May 2017 and reflected in our draft submission filed Wednesday.


JUSTICE ROSS:  Is that the second last dot point?


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  So what was the difference?


MS DABARERA:  So attachment A currently refers just to casual employees, but it was for casual and part time.


JUSTICE ROSS:  Yes, I see.  What change would you make to the fourth dot point, the broken shift clause?


MS DABARERA:  In addition to that, we would say and that employees who are working broken shifts get paid the relevant shift allowance, depending on the start and finish time.


JUSTICE ROSS:  In any event that's reflected in the draft variation determination you filed?


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  Nothing further?  All right, we'll confirm the directions in relation to that award and update the list of outstanding matters.


Let's move to the children's award.  Bear with me for a moment.  Just one second.  In relation to the report of 30 October, we've received the submissions from the individuals of 5 November, restating their two claims.  ABI confirming the claims listed are correct.  United Voice doing the same thing.


There are a couple of matters.  I think the parties - have the parties filed their draft variation determinations?


MS DABARERA:  We have, your Honour.


MS ARRABALDE:  Your Honour, we did as well.  We apologise for the format that we sent it in.


JUSTICE ROSS:  No, no, that's fine.


MS ARRABALDE:  But I think the core of it is there.


MS WHISH:  We did quite some time ago, but if it's useful I can arrange for that to be refiled.


JUSTICE ROSS:  It might be, just to make sure.  Thanks Ms Whish.


Look, the issue here that we spoke about the last time is the extent of any overlap with the equal remuneration proceedings and how that issue is to be handled.  Given that there were some of the claims which have a work value component which is being agitated in the other proceedings.  So, it's really that issue.  Unless anyone wants to raise anything else, but the idea was that we deal with Aged Care and SCHADS and that's probably going to be enough in the short term.  Children's would occur after that at some point.  Once we sorted out what this overlap issue is and how we're going to deal with it.  Thoughts?


MS DABARERA:  Your Honour, the position of United Voice is that we do not see our claims in this award review for that educational leader allowance and the responsible person allowance as overlapping with the ERO proceedings.  I'll just explain our reasons for that.


The first is that the IEU is ERO and now work value claim relates to teachers only and will be addressing the work value of teachers only.  Whereas our claims are for educators who are under the Children's Services Award as well.


The second is that the ERO claim is quite complex.  They're going to be looking at comparisons with primary school teachers and engineers as well.  It's a matter that's been pushed back already a number of times and we do have concerns about our allowances being pushed back with that.  If your Honour has a concern about similar matters being dealt with in different spaces, one avenue we thought might be appropriate is for our claim for responsible person and educational leader allowance in the Children's Services Award to be dealt with the substantive claims there.


But also for the claim for educational leader allowance and responsible person in the Teacher Services Award to be brought over and dealt with the Children's Services Award Claims.  That would mean that those claims, those allowance claims are only being dealt with once by the one Full Bench and wouldn't require duplication in that respect.  But they're quite discrete allowances.  There's only one educational leader in each centre and one responsible person at each time.  We see them as discrete allowances that don't actually overlap with looking at work value in the sector for teachers as a whole.


MS ARRABALDE:  Your Honour, if I could also add, I concur with what United Voice has said and I'd also like to add that I don't believe that it is a work value type of decision that needs to be made on this, but rather it goes to the heard of the modern award's objective.  It's something that's been missing from this award that needs to be included, rather than looking at work value.


JUSTICE ROSS:  Well, is the claim based on the responsibility exercised by these individual employees, that warrants an allowance?  Is that the essence of it?


MS ARRABALDE:  I believe it is.  So what happened was that there was some changes to the Children's Services legislation that looked at the whole of Australia and although the changes were also made at the time to the awards, the awards don't reflect the changes to the legislation for overseas children's services.


JUSTICE ROSS:  Well, I don't think we need to get caught up in the language, but that is a work value claim.  It might be a different work value claim to the one that's being run in the equal remuneration proceedings, but nevertheless.  Well, I'm not proposing to make a decision about the transfer of bits of it now.  I think we'll hear from what everyone else wants to say about it now, but I think the best way of dealing with that Ms Dabarera, would be for you to put it in writing exactly what you're seeking so that the parties in all proceedings, this one and the equal remuneration matter have an opportunity to say what they want to say about that before I make a decision about whether I transfer bits of it from one place to another.


But in any event, the short point is that look, it's not really overlapping with the substance of the ERO case and in any event the extent of any overlap about those allowances only deals with a subset of the claims in the Children's Services Award. You say it could be dealt with by simply transferring those allowances claims from the ERO proceedings to these proceedings?


MS DABARERA:  No your Honour, sorry.  To clarify there's proceedings for the Children's Services Award review.




MS DABARERA:  There's proceedings for the Children's Services Award review.




MS DABARERA:  There's a Teacher's Award review in the four yearly review.




MS DABARERA:  Then there's separately to that, the ERO.




MS DABARERA:  So, our position is that the award review matters are separate to the ERO and what's been looked at in terms of work value in the ERO is quite different.


JUSTICE ROSS:  All right.


MS DABARERA:  What we have in terms of our claims in the four yearly review of the Children's Services Award and the Teacher's Award - - -


JUSTICE ROSS:  All right, no that's all right.  Where's the Teacher's Award up to?


MS DABARERA:  It's currently on hold at the moment and the substantive claims haven't been heard.


JUSTICE ROSS:  Yes, I've allocated a Bench for it, so I'm not sure where - no mention yet?


MS DABARERA:  There's no directions, your Honour.


JUSTICE ROSS:  You say there's no overlap with the ERO, so we don't need to be worried about that?


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  You've got to sit the same claim in teachers.  It would be convenient for that part of the teacher's proceedings to be dealt with by this Bench?


MS DABARERA:  Yes, your Honour.  We would be okay with it being dealt with separately, but if there's a convenience for the Commission in terms of dealing with similar claims across different awards, we propose that they can be dealt with together.


JUSTICE ROSS:  Well, if you pop it in writing and I'll probably have a mention in relation to both awards, just to make sure I've got everybody covered.  If the Teacher's Award hasn't done anything yet, I'd be for adopting the most efficient process, so parties don't have to run their case twice.  It's really I want the parties to have an opportunity to think about how we might do that, what's the most convenient place for it, or if in fact there is different evidence and we'll find all that out and we'll deal with that.


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  That sort of deals with any overlap issue from your perspective, is that right?


MS DABARERA:  Yes, that's correct, your Honour.


JUSTICE ROSS:  Does anyone have a different perspective about the overlap with the ERO?


MS WHISH:  It might be useful for the Commission to know that a number of the parties did speak this week and came to essentially that point position that we think it should be heard independently of ERO.


JUSTICE ROSS:  All right.


MS WHISH:  That there might be some merit in the same Bench hearing the allowance related claims but that was purely because his Honour expressed not bombarding the ERO Bench with a number of claims from the Children's Services Award.  What we've realised since then is that there's the Children's Services Award proceedings.  The Teacher's Award proceedings and then the ERO work value proceedings.




MS WHISH:  What might be most useful is if there is some sort of childcare industry, but award specific proceeding, where claims that cross over between teachers and children.


JUSTICE ROSS:  Between teachers and children.


MS WHISH:  Because I note that you have the allowance claim from United Voice and the individuals, which is in both awards, but you also have ACA's claim which is identical in the Teacher's Award to the Children's Services Award.


JUSTICE ROSS:  No, all right.  I have a mention in both teachers and children's in the coming weeks and I'll have Ms Dabarera correspondence by then.  Ms Whish if you can provide correspondence identifying the other claims that are in common and then we'll get all the parties around a table and see what is the best way forward.


Are there many other claims in teachers, other than the ones that have a degree of overlap with children's?


MS WHISH:  I don't know, but what might be useful is certainly if we were able to provide all of the parties who are participating in the Teacher's Award with this information, it might come down to only a few parties that actually have a concern with long day care or preschool centres, as opposed to all of the other parties which might only be concerned with schools, and not the child care industry.


JUSTICE ROSS:  Sure.  Well, look I think the best way is to put it in writing, have a transparent process, we'll have another mention.  All the parties with an interest can express their view.  We'll look for the most efficient way of dealing with it, but I'm glad you brought it to my attention.  The thought of the Teacher's Full Bench launching off next week with directions, doesn't do much for me, so I'll get on to whoever the presiding member is on that Bench and say, look it's a bit fluid at the moment and if they can hold off while I work out what's going to be dealt with by which bench.


MS WHISH:  Certainly that would be the most cost effective mechanism for my client and I hope for everybody else.  We actually prepared some draft directions, if that's useful to circulate.


JUSTICE ROSS:  Well probably if you file them and then we'll make sure that everyone - by all means, circulate them yourself, but file the material so that anyone who is not here and anyone involved in teachers who's not here, has an opportunity to see what's being proposed and then we can discuss it at the mention.


MS WHISH:  The relevant part of the directions is probably that the reply evidence would be filed in March and I propose a hearing in April, which gives a nice gap before the ERO work value claim starts.  But it also means that these smaller allowance award-specific issues are heard before ERO and before the work value claim.


JUSTICE ROSS:  Well look, I'd encourage you to have discussions about the directions and I'll certainly try to accommodate any hearing dates the parties can agree on and we'll try and get it done as quickly as we can.


Anyone else that wants to - look, you'll have - there's no decision that's being made about the Children's Award and its programming at this stage.  I want to explore this issue of overlap with teachers.  We'll have another mention to deal with that and that mention will also settle the directions.  We'll use the directions Ms Whish files as a draft that people can comment on and we'll sort that out at the mention.


But does anyone want to say anything at this stage that other parties should take into account?


MS SAUNDERS:  I move your Honour to flag that the IEU's preference is if the allowance questions which don't have any overlap with the ERO, I agree with that.  If those claims in the Children's Services and Teacher's Award are dealt with together, our preference would be for it to dealt with as part of the Teacher's process.  But I think we can defer the discussions around that point.




MS SAUNDERS:  Largely because that's how we've prepared to run it, so it's not a strong view at this stage.


JUSTICE ROSS:  Might want to bear in mind that I can control the timing of the hearing of the Children's matter and it can be - I'll make every effort to provide the dates so it's heard in accordance with what Ms Whish has outlined as the directions and I can certainly commit to the decision being handed down fairly promptly.  I don't have much to do with the Teacher's Bench.


MS SAUNDERS:  Certainly.


JUSTICE ROSS:  I'm not sure when that is going to be - I'm not even sure who's on it.  I think - look, I constituted I think 16 substantive issue Full Benches.  At this stage I'm on the ones that are likely to take the longest and be the most contested other than teachers.  I think I'll be having a meeting with the presiding members on all the Benches, because we need to try and balance out, not tripping over each other.


It's difficult to tell, it's sometimes straight-forward with the unions, more complex with employer organisations which ones they have an interest in.  That may mean staging these matters.  I also don't want to trip over the ERO Full Bench or the annual wage review.  So that may mean that teachers is going to be more second half rather than first half of the year, but as I say, I don't control that at the moment.


MR BULL:  Can I just make one observation?




MR BULL:  The ERO, that Full Bench is not formally part of the four yearly review process, so it's a distinct application.




MR BULL:  I suppose it's a matter that may be an issue.




MR BULL:  Well, I suppose you'd have to deem it to be part of the four yearly review.


JUSTICE ROSS:  No I don't.  I'm not sure why.


MR BULL:  It just needs to be - - -


JUSTICE ROSS:  I'm just talking about resources.


MR BULL:  It was a thought bubble.  Sorry, I'll withdraw the thought bubble.


JUSTICE ROSS:  Yes, I'm just talking about the resources of the parties really.  We can theoretically hear all of these in February.  I've got enough members.  I can free them up and get it done, but it will kill you.  So, that's the issue that I'm trying to balance, bearing in mind, I'm also aware the Payment of Wages Full Bench has a bit of a way to go.  We're almost concluded on the standard clauses but we'll also have the annual wage review and principal parties are involved in that as well.


It's just trying to sort it out.  I'm really just sort of letting you know Ms Saunders, because there might be consequence if you're successful.  So it might be a case of being careful what you wish for because it might be a later hearing, that's all.


MS SAUNDERS:  Precisely, as I say, it's not a particularly strong view at this point.


JUSTICE ROSS:  That's all right, I just wanted you to take it into account when you do come to form your view.


MS WHISH:  If your Honour is considering whether to run the claims in their own child care services hearing of the teacher's hearing of the children's services hearing, it would be worth noting that the two to four witnesses that ACA proposes to bring will be the exact same witnesses and the exact same evidence in both, which is why I'm trying to - - -


JUSTICE ROSS:  Yes, you mean in both children's and - no, I appreciate there are three options, but I had more looked at really two, that is, whether the Children's matter proceeds as you've outlined with all the claims and it also hears the teacher claims that have a degree of overlap.  So it's either the Children's Bench or the Children's Bench proceeds with all its claims except the ones that have an overlap with teachers and we bump them to the Teacher's Bench.


It's probably going to be that, rather than the thought of a third Bench dealing with the two that are overlapped.  I'm not sure - it's a theoretical possibility; I'm just not sure what the merit of that would be particularly. But look, we'll talk about that at the mention.  If you could file whatever you want to file about this in a week and I'll have a mention - just bear with me for a moment.


Now I know before United Voice jumps up that I've got that as a reserve day for the hospitality matter, but I propose to have a mention in respect of the Children's matter and the Teacher's matter at 9.30 am on Wednesday 28 November.  Does that cause any problem for anyone?


MS WHISH:  Sorry to interrupt, your Honour, but you're just dropping out.


JUSTICE ROSS:  I was proposing to have a mention of the Children's Services Award and the Teacher's Award to discuss this matter of overlap and the material that will be filed at 9.30 am on Wednesday 28 November.


MS WHISH:  Thank you.


JUSTICE ROSS:  Does that timing cause any difficulty for anyone?  I can give you one o'clock that day if that's - - -


MS DABARERA:  No, that's suitable for us, your Honour.


JUSTICE ROSS:  All right, and if you file whatever you want to file - well, that will also give you a chance to have discussions amongst yourselves as well.  So, I won't bring it forward, but if you can file the material that - or your suggestion, Ms Dabarera and your suggestion Ms Whish and the draft directions by 4 pm on the 16th and we'll make sure that goes to all of those who have an interest in the Teacher's Award and in the Children's Award.


MS WHISH:  Thank you.


JUSTICE ROSS:  Anything further?  No?  Thanks very much.  I'll see you on - well, I'll be in Melbourne but I'll see you by video on the 28th.  Thank you.  All adjourned.

ADJOURNED INDEFINITELY                                                        [11.44 AM]