PN1

JUSTICE ROSS: Could I have the appearances, please?

PN2

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

PN3

JUSTICE ROSS: Thank you.

PN4

MS R LIEBHABER: If the Commission pleases, my name is Liebhaber, initial R. I appear for the Health Services Union.

PN5

JUSTICE ROSS: Thank you.

PN6

MR B MILES: If the Commission pleases, Miles, initial B. I seek leave to appear for the Aged Care Employers.

PN7

JUSTICE ROSS: Thank you.

PN8

MR K SCOTT: If the Commission pleases, Scott, initial K, seeking permission to appear on behalf of Australian Business Industrial and the Australian Business Chamber.

PN9

JUSTICE ROSS: Thank you.

PN10

MR SCOTT: With me is my colleague, Ms Tiedeman.

PN11

JUSTICE ROSS: Thank you.

PN12

MS S LO: If the Commission pleases, Lo, initial S, appearing for Australian Federation Employers and Industries.

PN13

JUSTICE ROSS: Thank you. Ms Field.

PN14

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

PN15

JUSTICE ROSS: And Ms Wade - - -

PN16

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

PN17

JUSTICE ROSS: Thank you. Are there any other appearances in Sydney or in Melbourne? All right, just wondering why I had someone from the SDA on the sheet. Let's deal with some preliminary matters first. The permission to appear applications - do I take it they're put on the basis of having regard to the complexity of the matter, that it will be dealt with more efficiently if permission were granted?

PN18

MR MILES: Yes, your Honour, that's the primary submission. I also bring the bar table experience in the enforcement of awards both from an applicant and from a respondent perspective that may assist in terms of some of those issues.

PN19

JUSTICE ROSS: I'm not sure the test turns on the particular characteristics of the individual representatives.

PN20

MR MILES: No, I'm not suggesting it does.

PN21

JUSTICE ROSS: All right, yes?

PN22

MR SCOTT: Your Honour, the application is put on the basis of the complexity of the matter before the Commission and the fact that due to that complexity it would be more efficient if legal representation is granted.

PN23

JUSTICE ROSS: Thank you. What is the position of the other party?

PN24

MR BULL: We have nothing to say. It likely will assist the Commission to have other participants represented by experienced lawyers.

PN25

JUSTICE ROSS: All right, thank you. Ms Liebhaber, do you anything to say?

PN26

MS LIEBHABER: We have nothing to say.

PN27

JUSTICE ROSS: This is slightly tricky. Can I indicate that we might individually indicate whether we are minded to grant permission. I will grant permission on the basis that has been put. In my view it would, given the complexity of the matter, enable it to be dealt with more efficiently.

PN28

COMMISSIONER LEE: I concur with the view expressed by the President.

PN29

DEPUTY PRESIDENT CLANCY: I am also persuaded.

PN30

JUSTICE ROSS: Thank you, we will grant permission on that basis. Can I just, before going to this application filed last Friday, go through some other material. In terms of what we have before us, we have a submission by United Voice of 18 January 2019. Attached to that is a document on the future of employment from the Future of Employment and Skills Research Centre, Productivity Commission Inquiry report on caring for older Australians, Productivity Commission research paper on digital disruption. We have a submission from the Health Services Union dated 23 January 2019. We have submissions from ABI, dated 20 March 2019, a submission by the aged care employers, that is Aged and Community Services Australia and Leading Aged Services Australia dated 25 March 2019 and a submission by AFEI dated 22 March 2019.

PN31

Are we missing anything in relation to the submissions? Does that cover it? That's what we're focusing on, that material? I know there is a longer procedural history but if we're looking at the submissions relating to the claims that are currently before us that seems to be it. Is there anything else?

PN32

MR BULL: I sent the Commission some material, additional material and mobile phones, which was essentially some extracts from Choice, which is a consumer advocate.

PN33

JUSTICE ROSS: Yes, that's touched on. The other parties have got it because I think that's - - -

PN34

MR BULL: Was it? Yes, sorry.

PN35

JUSTICE ROSS: Yes, being ABIs - well, look, we'll run through some preliminary points and then have a break and I might just get you to have a chat to my associate just so I've got that material.

PN36

MR BULL: I did send it to the Commission but I've got a copy.

PN37

JUSTICE ROSS: I'm sure you have but I just don't have it with me.

PN38

COMMISSIONER LEE: That's the material you sent on 8 April?

PN39

MR BULL: That's correct.

PN40

JUSTICE ROSS: All right, I'll just try and dig up a copy of that. We have also published a few statements, one of 5 April and one of 8 April this year. Attached to the statement of 5 April - it draws attention to a summary document which identifies the relevant claim, summarises the submissions and the relevant procedural history. I also attaches a profile of the aged care industry based on census data and a summary document outlining the legislative framework relevant to the review. When we start the proceeding proper the parties will be invited to comment on each of those and further, another document was published on 8 April. It also is a background document on data on the Aged Care Award and you will be invited to comment on that as well.

PN41

That material is intended to facilitate the hearing so that hopefully we don't need to spend too much time on matters of background. In the statement of 5 April, if I can go to you, Mr Scott, we put two questions. The first question, which we will hear this preliminary issue about the witness statements from the SCHADS matter shortly. Then we will adjourn for 10 or 15 minutes to consider whatever is put about that and in the meantime, I want to direct the parties' attention to those two questions. The first asks whether any party disputes the background to clause 23.2 of the Aged Care Award, which is canvassed in ABI's submissions. The second question is directed at ABI and the reason I want to try and clear that up is to see whether we need to spend any time in debate on it.

PN42

You take a threshold point that turns on the drafting that is advanced.

PN43

MR SCOTT: Yes, happy to address that now, your Honour. I think there may be some misapprehension as to - and it may be as a result of how we set it out but just to your point, I'm not sure that the matter necessarily turns on the drafting although we comment that the way it's been expressed in the draft determination is curious. Our proposition is that it's not the matter or the form but it's actually the effect and so what we say is that the effect of the variation is to increase the rates of pay on weekends and to introduce a casual loading.

PN44

JUSTICE ROSS: Well, in the same way as - you're suggesting that's work value. Well, the penalty rates decision reduced the rates of pay without a work value inquiry. The retail matter increased the weekend penalties for casuals without a work value inquiry and ABI was involved in those.

PN45

MR SCOTT: Yes, and I - sorry, I shouldn't have hesitated. What was I getting to was our thinking has developed somewhat.

PN46

JUSTICE ROSS: All right.

PN47

MR SCOTT: So it was raised as a threshold issue. We have given it some further thought and I think the issue turns on whether what is happening is a variation or a setting of minimum wages. So that is as set out - - -

PN48

JUSTICE ROSS: I see.

PN49

MR SCOTT: - - - subsection (4) of 284 and I think the position is that either way, 156(3) is not triggered so what we say is that if it's the case that what is happening is a casual loading has been set on weekends then 156(3) has no work to do because it doesn't apply when the Commission is setting modern award minimum wages. If what is happening is that the wages are being varied, 156(3) would have work to do but I don't think it can be said that the variation or the proposed variation is varying the casual loading on the weekend because one currently does not exist.

PN50

JUSTICE ROSS: Yes.

PN51

MR SCOTT: So it turns on the characterisation. The claim can be seen as setting a casual loading or varying a weekend penalty. Either way, I think by reason of 284(4) 156(3) is not triggered but we say that it's relevant so that is our position in respect of that.

PN52

JUSTICE ROSS: In what sense is it relevant?

PN53

MR SCOTT: Well, the principles of work value are relevant where the Commission is being asked to vary rates of pay at a particular point in time, whether it be the ordinary rates of pay or a weekend rate of pay so we say that where there is a claim before the Commission to vary a rate of pay at a particular point in time there needs to be some assessment as to the value of the work.

PN54

JUSTICE ROSS: All right, so it's not a matter of legislative force that you have to.

PN55

MR SCOTT: No.

PN56

JUSTICE ROSS: It's that you should have - well, in this particular circumstance - the time in which the work is performed and those sorts of issues, relevant matters and their work value considerations and they have a bearing on the outcome of this case.

PN57

MR SCOTT: That's right.

PN58

JUSTICE ROSS: I follow.

PN59

MR SCOTT: There is a decision to that effect. I think it was in the pastoral award. I can take you to it later perhaps - - -

PN60

JUSTICE ROSS: No, that's fine.

PN61

MR SCOTT: Yes, there is a decision saying it may not apply but there is some relevance and it's a consideration.

PN62

JUSTICE ROSS: All right.

PN63

MR SCOTT: If it pleases.

PN64

JUSTICE ROSS: All right, thank you. We'll invite the parties to comment on question one when we resume, having dealt with the threshold point. Can I also put United Voice on notice that the three documents you've attached, speaking for myself I'm going to want to know with greater specificity what findings you want us to make based on those documents and by reference to which paragraphs. There are some general statements made in the submission but I'm seeking more clarity about that issue. In particular, I don't propose to read the digital disruption research paper in full. I want to know what its relevance is to the matter that's before us, okay? So we will come back to that when we resume.

PN65

Can I go to United Voice's application filed, I think, late on last Friday, the substance of which is to seek to admit the statements of three of the witnesses in the SCHADS proceedings, Belinda Sinclair, Dionne Fleming and Trish Stewart. In this matter, on the basis that it's said that they're relevant to the telephone allowance claim, as I understand it in terms of the grounds in your form F1, the gravamen of the proposition is that - is in paragraph 5. You say there is a substantial and sufficient similarity between the work performed by the three witnesses and the work performed under the Aged Care Award such that that evidence is probative to the review of the Aged Care Award. Is that the - - -

PN66

MR BULL: That is a correct characterisation of the critical point to our application.

PN67

JUSTICE ROSS: Can I take you to paragraph 12? I just wasn't sure what paragraph 12 of your application meant. I follow the rest of it.

PN68

MR BULL: Well, my understanding is that in relation to the other evidence, the three witnesses in the SCHADS proceedings, that's been put over to a date to be set so there is the possibility - - -

PN69

JUSTICE ROSS: All right.

PN70

MR BULL: - - - that if the participants of this proceeding were to respond to that evidence in some matter that can be afforded that possibility. I'd note that in the SCHADS proceedings none of the participants had addressed any statement evidence to that material. So what I'm saying is that if the Commission is minded to agree to our application there is a possibility or more than a possibility any issues that the other parties or participants raise about procedural fairness and not having an opportunity to respond can be accommodated.

PN71

JUSTICE ROSS: All right. Is there anything further you want to say in support of your application?

PN72

MR BULL: I take it that I don't need to go through it because it's obvious - I apprehend that it's been read and digested and so forth. What I would say I relation to the issue of substantial similarity there is an issue raised by AFEI by the fact that there isn't concurrent coverage.

PN73

JUSTICE ROSS: Well, they actually dispute that there are substantial and sufficient similarities between the two awards.

PN74

MR BULL: Well, it's not about the awards, it's the type of work covered, which is what makes the evidence which has been filed in the other proceedings potentially useful and probative in these proceedings, and our telephone allowance, this is addressing the merits of the claim but it's useful in relation to this application. It's principally directed to personal care workers covered by the Aged Care Award. So it's not an allowance which is intended to have wide application in relation to persons covered by this award. It's dealing with a segment - - -

PN75

JUSTICE ROSS: But that's not the claim.

PN76

MR BULL: I beg your pardon?

PN77

JUSTICE ROSS: The claim doesn't limit it to any segment.

PN78

MR BULL: No because - well, work changes and it's not assumed that for example people who are working in a more conventional nursing home type environment will necessarily have any need or be directed by their employer to have a mobile phone. Where the substantial similarity lies - and I'll just take you to the definition of aged care industry which is at page 4 of the current award:

PN79

An aged care industry means the provision of accommodation and care services for aged persons in hostels, nursing homes, aged care, independent living units, aged care service departments, gardens, settlements, retirement villages or other residential accommodation facilities.

PN80

The classifications then have care workers, and they're broadly similar to the category - well, the classifications of the three witnesses in the SCHADS Award and essentially these are persons who provide varying levels of care in people's home and so forth. It's part of the evolving nature of this sector in that, you know, the government has made a decision to facilitate care at home rather than in institutional settings. That's where I say there's substantial similarities in relation to the work.

PN81

So I assume that if you look at the definition of aged care industries - industry, rather - it encompasses what one would describe as sort of nursing homes and facilities that are either closed to essentially older persons living in assisted living or stratas and so forth, and it's at that lower end that there is substantial similarity. They'll be getting home care services which are basically identical to the types of services that the SCHADS Award provides to disabled persons and so forth.

PN82

So that's the point we say there's substantial similarity where that evidence is probative, and the other issue is that the participants have raised this issue and we say if the Commission is to make a proper assessment of the claim it's useful to have access to this other material as it will facilitate the best possible decision in relation to this award. So that's the overlap basically.

PN83

JUSTICE ROSS: All right.

PN84

MR BULL: It's the care workers. They're also the principal area of coverage that we have in relation to this and the other award and, if you look at the classifications, they talk about working individually and so forth and that's where the need for the phone arises. Because they're not in a conventional office. They're on the road, so to speak, going from house to house.

PN85

JUSTICE ROSS: Right.

PN86

AFEI, you filed a submission also on behalf of Aged and Community Services Australia and Leading Age Services Australia. We've had an opportunity to read that. Is there anything further you want to say or anything you want to say in response to what Mr Bull has put orally?

PN87

MS LO: Yes, your Honours and Commissioner. In addition to the letter dated 8 April 2019 we'd like to confirm that a matter was heard before President Ross J on 22 October last year, it had filed witness statement evidence in support of their telephone allowance and classification definitions claim and the two day hearing had been listed by the Commission based on its understanding.

PN88

As your Honours have mentioned previously, United Voice filed their submissions on 18 January 2019, however no witness statements were filed in support of their claims for either the telephone allowance claim or the classification definitions claim; and to request the Commission to inform itself of the statements of three witnesses filed in a review of a different award on the day of the hearing itself is not acceptable, taking into consideration United Voice's indication back in October that it would file witness statements.

PN89

JUSTICE ROSS: Well, more so last Wednesday when I had the matters on for mention and asked the question then, there was to be no witness evidence either.

PN90

MS LO: That's correct. And, yes, United Voice have been given the opportunity from October until January to formulate their claim and given ample time to produce witness statements.

PN91

JUSTICE ROSS: Yes, all right.

PN92

MS LO: Thank you.

PN93

JUSTICE ROSS: What do you say about this overlap issue that Mr Bull has raised?

PN94

MS LO: So referring to the letter, AFEI along with Aged Community Services Australia and Leading Age Services Australia, we jointly dispute that there is substantial and sufficient similarity between the Aged Care Award and the SCHADS Award.

PN95

JUSTICE ROSS: And what about the work that's being performed by these three witnesses versus work that's performed under the Aged Care Award? Do you contest the overlap there as well?

PN96

MS LO: We do.

PN97

JUSTICE ROSS: All right.

PN98

Anyone else?

PN99

MR MILES: Yes, your Honour, I won't touch on the matters that Ms Hu has raised. The Commission's heard those and will deal with them. We would make the point that the statements were prepared on 16 or 17 January of this year. The material from Choice is dated November of last year. That the circumstances require an explanation as to the delay as to why it is that they did not seek to lead these previously, particularly in circumstances where their application concedes that the Commission's required to ensure that no party is denied procedural fairness, and granting the application would necessitate giving the other parties the opportunity to put on material in response which would delay at least that part of it.

PN100

JUSTICE ROSS: Yes, well, Mr Bull has dealt with that issue and said you can put on material in response when we deal with it in the SCHADS matter.

PN101

MR MILES: That's a separate application to join the two matters which have to date been run quite independently. There's been no application to join the matters, and in relation to what's asserted as to be the overlap we say this is essentially a similar argument to that that Clubs attempted to run by saying that 'Well, our employees are engaged in hospitality and therefore the determination and the evidence about hospitality should cover our circumstances without the need to produce separate evidence'.

PN102

We say there are significant differences between the work that's performed between the home care sectors and those covered by this award, and indeed it's the existence of the separate award is done because of that distinction and that there are important differences between a fixed and mobile work location based on - and the work associated with that.

PN103

JUSTICE ROSS: All right.

PN104

MR MILES: And it comes out in terms of aspects in relation to rosters for example where the rosters that these witnesses attach to their statements show them attending a wide variety of people's houses, travelling some hundreds of kilometres per week just based on the motor vehicle allowance that they receive. We say there would need to be actual evidence that there is some similarity, and given the submissions made at paragraph 6 of United Voice's submissions from 18 January that talk about:

PN105

All of the work of personal care workers and recreational lifestyle activities officers taking place remotely ....

PN106

It should have presented no difficulty for them to bring evidence of some representative sample of such people.

PN107

JUSTICE ROSS: All right.

PN108

Mr Scott?

PN109

MR SCOTT: Thank you, your Honour. I think I'll start with the question that was posed to AFEI which is the overlap in terms of the nature of the work.

PN110

JUSTICE ROSS: Yes.

PN111

MR SCOTT: And I think it should be uncontroversial that in one sense even though the nature of the work is very similar in that it's personal care work for many of the employees employed under both awards, the key distinction though between the two awards is that the Aged Care Award, this award which is the subject of these proceedings, is a residential setting award, and Mr Bull took you to the relevant part of the coverage and I think read out the definition of aged care industry.

PN112

So this award covers employees working in the residential aged care sector. That is nursing homes, retirement villages. The evidence that Mr Bull is urging the Commission to take into consideration is evidence from three employees employed under the SCHADS Award. Those three employees are home care workers, and so that's where the nature of the work is vastly different. You're dealing with employees who are home care employees, they're working at particular clients or customers' places of residence so they're travelling from one person's residence or one customer's residence to the next.

PN113

You can understand perhaps the argument about mobile phones when you're dealing with that nature of work. But the work here is in a residential setting so we say that the nature of the work is different and markedly different in that respect, and so my clients I guess would be questioning the value and the probative value of the evidence that Mr Bull is urging the Commission to take into account. Now, section 590 empowers the Commission and confers broad discretion for the Commission to inform itself in any manner it sees fit. But that power needs to be read consistently with sections 577 and 578, and if I can take your Honours to 577.

PN114

There's no need to get it but I'll just take you to it now. It talks about the Commission, and it's an obligation on the Commission to perform its functions and exercise its powers in a manner that is fair and just and is quick. And we say - and we cavil with Mr Bull's application or the United Voice's application, and I think it's at paragraph 18 of his application where he says that it's expedient that the Commission to take this evidence into account. We cavil with that. We say, well, it's quite the opposite. The matter's listed today for hearing.

PN115

It's not expedient for the Commission to wait some months to take into account evidence that will be the subject of cross‑examination at a date that's not yet listed, which requires parties to attend that hearing and deal with matters that are said to be relevant to this proceeding. We say the relevance and the weight of the evidence that's sought to be introduced is of marginal value, if any, and we say that on balance the Commission should determine that the evidence won't really assist these proceedings given the different nature of the work.

PN116

COMMISSIONER LEE: So can I just be clear on the coverage point. You say that any aged care work that is done in the home by virtue of the fact that it's done in the home brings it within the purview of the SCHADS Award? Is that the submission?

PN117

MR SCOTT: Well, that's my understanding. I can take instructions but my understanding is - and when this award was made and when the two awards were made, home care was initially going to be dealt with in the Aged Care Award and there was subsequently an application whereby it was hived off and it was put into the SCHADS Award as a stream. So my understanding at least is this is very much a residential aged care award. The coverage and the definition of the industry talks about residential settings. So, subject to instructions, that's my understanding.

PN118

MR MILES: Commissioner, if I might address your question in this way just by taking you to the SCHADS Award. It has a definition of:

PN119

Home care sector which means the provision of personal care, domestic assistance or home maintenance to an aged person or a person with a disability in a private residence.

PN120

COMMISSIONER LEE: Yes.

PN121

JUSTICE ROSS: All right, anything in reply?

PN122

MR BULL: Look, I'll just reinforce that there's a level where residential accommodation is a very broad term, and that's obviously a person's home. It doesn't need to be a sort of a suburban house or a flat. It can be a strata in an organised retirement village setting, and these persons will, because of the way that the government's chosen to structure funding, be able to access home care packages and they'll be getting - the workers will be providing very similar services and doing similar jobs under both these awards. There's a level of fuzziness in the categorisation of home care workers because of convergent developments in relation to the government - the way the government has chosen to fund both areas.

PN123

JUSTICE ROSS: All right, look, we'll adjourn until 11 o'clock and give some thought to this and we'll come back and let you know what our answer is.

SHORT ADJOURNMENT [10.45 AM]

RESUMED [11.05 AM]

PN124

JUSTICE ROSS: United Voice has made an application that we admit three witness statements filed in the SCHADS proceedings in the matter before us, and take them into account in our consideration of their telephone allowance claim. United Voice asserts that the work performed by the three witnesses is similar to work performed under the Aged Care Award. We note that this assertion is not supported by any evidence and is contested by the various employer interests. In the circumstances we are not satisfied that the three witness statements are relevant to the present proceedings.

PN125

MR BULL: If the Commission pleases.

PN126

JUSTICE ROSS: We are also conscious of the late notice and the previous opportunities afforded to United Voice to lead evidence in these proceedings and on that basis we have decided not to grant the application.

PN127

We do propose to provide United Voice with two options. It can either proceed today with oral argument and we can hear and determine its claim. The second option is we are conscious that the telephone allowance in the SCHADS matter, the claims are in substantially the same terms in substance to the matter before us in this matter, that's claims S19 and S21, and the will be heard in the second tranche of the SCHADS claims.

PN128

If United Voice is of the view that it would be in a position and wishes to call evidence from aged care employees, that is employees covered by the Aged Care Award, then we would give consideration to deferring our consideration of this aspect of the proceedings before us today and hearing those at the same time as the SCHADS second tranche in relation to those telephone claims. But that would be dependent on providing the employer interests with an opportunity to file any material in response and sufficient time to consider any such evidence. So if you can give some thought to whether - and let us know before you get to it. If you want a short adjournment now we are content to do that and you can think about whether you want to go on today or call evidence later.

PN129

MR BULL: Can we have perhaps a 10 minute adjournment?

PN130

JUSTICE ROSS: Sure.

PN131

MR BULL: Thank you.

SHORT ADJOURNMENT [11.08 AM]

RESUMED [11.23 AM]

PN132

MR BULL: We will proceed today. Thank you.

PN133

JUSTICE ROSS: All right. I've had the opportunity to have a quick look at the material you had filed that you indicated before. All right. Who would like to go first?

PN134

MR BULL: Are we answering questions or talking to the document?

PN135

JUSTICE ROSS: Well, it's really up to you. I mean, I will ask questions on the way through, but if you deal with - you can deal with them sequentially. We can deal with telephone allowance, then we've got 4, personal care worker level 4, broken shifts and the casual claim. However you want to divide them.

PN136

MR MILES: Before my friend commences, perhaps we can just deal with the Choice material, just to confirm at least from the aged care employers perspective and I understand the other employers are the same. We have no objection to that material. There's some issues about how it assists the Commission and we will address those in submissions, but I don't think it's material that needs to be objected to.

PN137

JUSTICE ROSS: Thank you.

PN138

MR BULL: I put a caveat when I sent it to the Commission. I posted it on the Internet, because it's sort of - you know, it's selling stuff so to speak. I didn't know whether it was appropriate for the four-yearly review web site to be a billboard. I was going to make a brief opening it that will assist the Commission.

PN139

JUSTICE ROSS: Sure.

PN140

MR BULL: I was just going to make some, I suppose, general statements about this is an important modern award. It deals with a significant area of the economy in Australian society. The sector has undergone significant change since award modernisation. There has been introduction of new funding models which also traverse the SCHADS sector. These sectors can be described as more deregulated, diffuse and subject to greater competitive pressures in relation to labour costs and I would agree with the characterisation in the summary document as the work being described as low paid. The area is important, principally due to demographics. The fact that there is an ageing population or rather a greater proportion of the population is older and you would be aware of significant debate and so forth concerning the funding in this area. So it's a significant and critical modern award.

PN141

The sector is expanding with greater focus on home care and competition between providers which is a feature of the deregulation or a neo-liberal approach to the manner in which the sector operates, which wasn't quite the case when the award was originally made.

PN142

There are many competitive pressures which are often deflationary in relation to wage costs. The people that we represent tend to be the home care workers and the lower paid persons covered by this award and we say that some of those pressures have shifted costs and reduced their conditions and incomes.

PN143

It is also a sector which is predominantly female and the broad characterisation within the general, if you like, collection of considerations that comprise the modern award objective that there is a - the gendered profile sector can suggest that there is a gendered undervaluation of the work which is of some relevance. It is a consideration that just sits there.

PN144

An object of the review should be to address that the work is precarious and low paid. Our claims nibble around at that, but they do in substance deal with some of those issues. The telephone allowance, we say, deals with what is or can be a significant cost being shifted on to persons who earn, if they are a full-time employee, $45,000 a year and that's not appropriate.

PN145

I made some comments about - I'm not going to go over the overlap with the SCHADS Award and the overlap is in the nature of the work and there is broad - the direction in which this area is heading is that people are being maintained longer in their homes; the government broadly - the policy is directed towards keeping people out of institutionalised settings, because it is cheaper and also it accords with what most people want. They want to stay in their home for as long as they can.

PN146

That means the home care workers, the persons who deliver care and so forth under this award, the SCHADS Award, as a percentage will increase and the review should be mindful that, because at the time the award was made these issues were in gestation and now it's clear that that is the direction that these sectors are heading. I'm going to make some broad comments about the funding model is what is called "consumer-directed care" or "person-centred care". I can produce that in a document if that would assist the Commission. It is really just sort of a summary of recent government proposals concerning the manner in which the sector is funded and so forth. It's apropos of a general submission that the sector is becoming more diffuse and there are competitive pressures on labour costs. The home care, the individualised style of delivery of services is becoming a greater feature of the sector. That is all I wanted to say as a sort of response to the background document. I don't know whether anyone else was to say anything.

PN147

JUSTICE ROSS: Well, what we will do is I will hear from you in relation to all your claims and everything you want to say and then the HSU, then we will hear from the employers. You can take it that we've read the material. It's really whether there is anything by way of supplementation you wanted to say or anything you wanted to particularly highlight and the directions didn't provide for the unions to file written submissions in response to what the employers have filed, so it's really your opportunity to address those.

PN148

MR BULL: I can do that now, if you want?

PN149

JUSTICE ROSS: Sure.

PN150

MR BULL: Is it okay if I sit down? Because it might be easier, I am going to do through documents.

PN151

JUSTICE ROSS: Sure.

PN152

MR BULL: I apologise for this. We have filed two rather lengthy government reports and I am sure you have better things to do than read them.

PN153

JUSTICE ROSS: I've actually read the "Caring for older Australians." The "Digital disruption" one, I just wasn't sure where to start.

PN154

MR BULL: That really is put on the basis that it includes smart phones as part of digital disruption. So if you go to page 17. I have only provided - it's a discussion paper and it simply just includes - it's on page 17. It talks about - or rather page 18, the Internet and supporting infrastructure such as broadband software and associated hardware which includes smart phones. So that technology is seen as part of that trend. I don't know whether the Commission can take judicial notice of the fact that in 2010 smart phones weren't as commonplace as they are now. I have more or less made that submission.

PN155

In relation to the other document, that's the "Caring for Older Australians." The principal bits of that that are relevant are - that's a summary document. There is a section on - my Roman numerals are very good. XL, which is - anyway, Roman numeral XL.

PN156

JUSTICE ROSS: Yes. Has this got the heading, "Formal carers"?

PN157

MR BULL: The formal workforce, and that's apropos, I suppose - a general submission about the desirability in the aged care sector to have recognition of skills and skills pathways in relation to the classification claim.

PN158

JUSTICE ROSS: What finding do you want us to make on the basis of that section? So this is the bit under the heading, "Formal workforce".

PN159

MR BULL: Well, you don't have to make a finding from it, because it's evidence. I think the general - - -

PN160

JUSTICE ROSS: The purpose of evidence is so that you can make a finding. I am just wanting to know what you are - - -

PN161

MR BULL: The finding is that it's supportive of our claim to adjust the classification, because it will provide greater incentive for persons covered by this award to undertake training and it's a desirable outcome for some of the reasons noted in this report that there's an adequate skills training, it leads to greater retention and so forth.

PN162

And I have also referenced this document in the submissions, so it's partly just providing a reference. The quote which is referenced in the submission is probably the principal material that I would say is just supportive of our submission and it's a document.

PN163

In relation to the other article, which is the one which is titled "Attraction, retention and utilisation of the aged care workforce" generally suggests that document is useful. It provides a recent summary of issues in relation to the aged care workforce. It's from last year and, once again, it is supportive of our - the finding we ask you to make that the variation in relation to the classification claim is consistent with the modern award objective because it will assist in providing for a skills pathway for aged care works, who are lower paid and perform critical work in Australian society.

PN164

JUSTICE ROSS: Yes.

PN165

MR BULL: So I might just deal with - I am mindful that there has been a comprehensive submission and that all the material has been obviously read. I will just make some general observations about the telephone allowance claim.

PN166

JUSTICE ROSS: Sure.

PN167

MR BULL: The first is just reinforcing that there is no telephone allowance of any description in this award. Now, I am not suggesting that every award has to contain a telephone allowance, but many do in the absence of any provision for reimbursement of employer-directed expenses associated with being directed to use a telephone, which these days is generally a smart phone is, we would say, a gap in the fair and relevant safety of terms and conditions that the award is intended to provide.

PN168

I make a general statement that the absence of statement evidence in the terms of witnesses does not necessarily equate with a lack of merit, but this Commission can and should determine matters on the force of argument and it's specialised knowledge. You would be familiar with the gratuitous comments in the Full Bench Federal Court penalty rates decision where it highlighted that this is a specialist Tribunal and it's perfectly appropriate that it uses its specialist knowledge to make decisions in the area of its speciality, and that appears as you may recall at the end of the decision. That was the Federal Court comprising five judges.

PN169

I note that there is, to a certain extent a generic quality to a telephone allowance. It is not something that is peculiar to aged care. It's not like having a noxious (indistinct) allowance in the Real Estate award. There are many different sectors that in different ways will utilise telephones and the fact that there are many such allowances and other awards is a point, we say, that assists making up the merit case for the inclusion of an allowance in this award.

PN170

The allowance is intended to be principally focused on personal care workers who go about the community and will not have an office in the conventional sense or they are not working in an aged care facility. They will be going from place to place and that there is an obvious need in certain circumstances for those persons to be contactable by their employer. There is also a need to contact the client who they are intending to provide services to.

PN171

Once again, it's not asking the Commission to make some extraordinary finding that personal care workers covered the by the Aged Care Award will be dealing with older people, so that there is an obvious need if a recipient of care is not answering their door, it would appear that it would be useful often for the worker to have a mobile phone on them so that they can ring and check that the person is there or inform their employer that there is a problem and so forth. There is a myriad of common sense reasons why an employer may choose to direct an employee to have a phone. An examination of the classifications where they all talk about working individually is the principal justification for that submission.

PN172

It should be - once again the low paid nature of the work is that the main cohort of personal care workers is grouped around the level 3 and 4 classification. These are workers who are paid, if they're just paid the full‑time base rate, 43,000-odd to forty three and a half. So they can't be described as grandly paid, and if they're living in a capital city or nearby one can also I think come to the conclusion that facing an additional expense of having to fully maintain a phone is a matter which would interest this Commission in setting the relevant and fair safety net of terms and conditions.

PN173

There's a number of existing allowances which the Commission has noted in the summary document. Probably - and I'm not resiling from the draft determination we have filed and I'm happy to talk to that more, but the Real Estate Industry Award I would say contains an allowance which is quite a good one in terms of accommodating various contingencies and possibilities. One of the problems with this area is that it's an area of evolving technology where it does change quickly, prices change and so forth. What was expensive five years ago is now relatively inexpensive.

PN174

Phones, you can apparently get an adequate smart phone for around $150-odd. If you want to go upmarket you can pay $2,000. You can get a plan for as little as $15 a month and I would reinforce that it is principally a reimbursement allowance, although it's a hybrid. The proposal we have is a hybrid one because it's not just - it's about also providing choices to the employer. If you look at the way it's been drafted, the employer - first of all the entitlement is essentially triggered by the employer directing an employee to use a mobile phone.

PN175

So it's not going to happen unless there's a direction that for the performance of work duties the worker needs to have a mobile phone. The employer's then given an opportunity to provide a mobile phone and cover the costs of any subsequent charges or refund the cost of purchase and subsequent charges on production of receipted accounts. So whether or not the allowance actually - the entitlements arises is principally the employer is in the driving seat so to speak.

PN176

Just addressing in summary some of the issues raised by the other participants. We don't agree that employees will be claiming refunds for phones already purchased. It's intended to deal with a direction that they must have a phone. So it's not - the drafting may need some finessing but it wasn't our intention that it's going to provide a sort of windfall gain for employees to drag out old receipts and charge their employer the thousand dollars that they paid for their iPhone 5 two years ago. And as I've noted, that it's the employer who triggers the allowance by requiring the employee to use a phone.

PN177

If the employer essentially sort of does it in a foolish manner giving the employee carte blanche to buy the most expensive phone and plan on the market, that's a matter for the employer. There would be I'd say room within the allowance as drafted for some managerial prerogative in relation to the direction to buy a phone. I see no reason why there couldn't be within individual employees some policy about what is the phone to buy.

PN178

JUSTICE ROSS: What happens if the employee leaves the employment and you've just reimbursed them a thousand dollars for the cost of a smartphone?

PN179

MR BULL: They leave?

PN180

JUSTICE ROSS: Yes.

PN181

MR BULL: But you could say that about a lot of allowances in modern awards.

PN182

JUSTICE ROSS: No, I don't think you could. Most allowances are paid weekly but this is the cost of purchase would be reimbursed and then if they leave the following week?

PN183

MR BULL: Well, that could be finessed I suppose in terms of the drafting. As I said it provides two choices. The second one is a reimbursement and there is the refund of the cost of purchase and subsequent charges. Obviously subsequently charges would cease when the employee stops being an employee. So the other thing is the current structure of plans - and this is where it becomes difficult - most plans amortise the capital cost of the phone through a plan. So you sign up, I understand, a Vodaphone or whatever and you have the $50 plan for two years and they give you a phone.

PN184

So if that were the case that would deal with the problem you've just indicated because once the employee leaves, subsequent charges obviously wouldn't be able to be claimed because they'd no longer be an employee.

PN185

JUSTICE ROSS: No, sure if the cost of the phone is amortised over a period, but that's not how all plans work.

PN186

MR BULL: No but - well - - -

PN187

JUSTICE ROSS: And it's not the way the claim's framed either. It envisages cost of purchase. So it envisages the circumstance where you buy a phone and you pay as you go.

PN188

MR BULL: I agree with that and once - I've said it can be finessed and I would say that - well, many of the claims of the employer groups I think are sort of - it's a lopsided approach to the claim because it's principally triggered by a decision made by the employer, and I would have thought that it can be supported by directions or policies in relation to what is an appropriate phone to buy.

PN189

COMMISSIONER LEE: In the ABI submission at paragraph 3.11 they say the evidence on smartphone and mobile phone ownership is to the effect that 83 per cent of Australian adults already have a smartphone and 96 per cent own a mobile phone. Is there any - what do you say about that? That's the state of the evidence. It's quoting an Australian Communications and - - -

PN190

MR BULL: It's not inconsistent with, I think when I looked at this issue, what is the case. I can't say it's wrong but - - -

PN191

COMMISSIONER LEE: You don't disagree with it?

PN192

MR BULL: It doesn't appear to be - I concede it's probably correct. One of the problems is dealing with the fact that, you know, it's a sort of cost shifting arrangement where once upon a time these things were generally paid for by the employer. Now because they're ubiquitous it's just assumed that you'll have one but then you'll use it for work. So we say there should be some sort of allowance that deals with the fact that it is a tool of trade in effect and that the employer shouldn't be riding, especially in relation to someone who's earning $43,000 a year, shifting what we say is a cost that should be attributed to the employer on a low paid employee. And this is in relation to - once again I come back to it's a direction to have one. If a person is part of that 83-odd per cent, has one and uses it during work, that's their business. It's when the employer says 'You have to have one'.

PN193

COMMISSIONER LEE: Well, the 83 per cent is about the smartphone. 96 per cent is in reference to mobile phones. So if this statistic is correct it's only going to be on four per cent of occasions that a person who's being engaged would not have a phone already.

PN194

JUSTICE ROSS: In fact it would be less than that because if you look at the age demographic it may be those who are not in the workforce or of working age that don't have a mobile phone.

PN195

MR BULL: I say that if they've already got one then you can't refund the cost of purchase, because they've purchased it. There would be a small group that wouldn't have one and would have to purchase it. But it would still be relevant in relation to subsequent charges on production of receipted accounts and it wouldn't be a particularly grand amount probably. But we say it's appropriate that there be some consideration in this modern award for the fact that phones are being used in the job. And as I have indicated probably a more evolved one is the one in the Real Estate Award which provides probably - and I apologise to the Commission, I didn't go through every single modern award but that one seems to be structured probably in a better way.

PN196

On page 26 of the summary document - and it contemplates plans - there's an agreement in writing on a reasonable reimbursement payable to the employee for the use of the employee's mobile phone in the course of employment provided that such reimbursements will not be less than 50 per cent of the cost of the employee's monthly mobile bill up to a maximum of $100, and it deals with prepaid mobile plans and so forth. As I said there's a problem with - because this is an area which is changing. Presumably prepaid plans and plans will still be the case, but the mobile phone allowance in the Real Estate Industry Award, you know, seems superior to the one we have drafted.

PN197

Unless there's any further questions that's all I was going to say about the mobile phone allowance. I was just going to move on to the classification claim. Do you want me to talk about the work value issue? We clearly say that the work value matter, it's about clarifying what we say is an ambiguity or error in the classification structure. The claim concerns personal care workers graded at level 3 and 4.

PN198

JUSTICE ROSS: Three and four or just four?

PN199

MR BULL: It will theoretically concern somebody who might be a level 3 and if they've got a Certificate III it may then mean that they're more appropriately classified as a level 4. So that's I suppose the area of classification structure.

PN200

COMMISSIONER LEE: Why would it stop someone who's a level 2 with a Cert III, if your application was granted, being classified as a four?

PN201

MR BULL: I believe - no, because if you look at the classifications there's insufficient similarity between the classifications. There's significant similarities in the level 3 and the level 4s such that there will be people who are level 3 - and that begs the problem which the variation is meant to address. That I am instructed that there are people with Cert III sitting forever on the level 3 classification when the employer can arbitrarily not progress them to level 4 even though they have the appropriate trade qualification. And the classifications, if you look at them they're in page 51 of the award, they're broadly similar. There's a significant difference with level 2 and if the employee is properly classified, a level 2 couldn't jump to a level 4 should you agree to our variation. And once again it's principally directed towards the personal care worker stream.

PN202

JUSTICE ROSS: The indicative tasks for level 2 are the same as level 4 - sorry, not the indicative tasks, the dot points 'An employee at this level'. You see the five dot points under level 2? Well, they're the same as the dot points under level 4. What are the differences?

PN203

MR BULL: For example in level 2 it's limited.

PN204

JUSTICE ROSS: Where?

PN205

MR BULL: In level 2 it's medium.

PN206

JUSTICE ROSS: I see.

PN207

MR BULL: So there are differences.

PN208

JUSTICE ROSS: All right, 'limited, 'medium'. Yes, right.

PN209

MR BULL: They're all rather like a lot of classification structures, they can be perhaps a little bit subjective.

PN210

JUSTICE ROSS: No, no, but the first dot point's the same. The second dot point I take the point, limited versus medium. The third dot point, that seems to be the same. The next dot point.

PN211

MR BULL: If you're a clerk given very (indistinct) skills.

PN212

JUSTICE ROSS: 'Interpersonal and/or arithmetic skills'.

PN213

MR BULL: Look, I agree there's a broad level of similarity but level 3 and level 4 there's more commonality between those two levels than level 2.

PN214

JUSTICE ROSS: All right. Do I take there are sort of two elements of the claim? The first is that instead of being required to hold a Certificate III it's the fact that you hold it. So in other words it's not that the employer requires you to have a Certificate III, it's the fact that you've got one that would lead you to being classified as level 4, assuming you've got the other competencies that are mentioned? So there's that element to it and there's the second proposition it's not just holding a relevant Cert III qualification 'or you possess equivalent knowledge and skills gained through on-the-job training'.

PN215

MR BULL: Yes, well, I agree with the first proposition you put to me.

PN216

JUSTICE ROSS: Yes.

PN217

MR BULL: So it's supposed to be a proper threshold.

PN218

JUSTICE ROSS: Yes.

PN219

MR BULL: So it's supposed to reward and - - -

PN220

JUSTICE ROSS: Yes, once you've got the qualification you're at that level.

PN221

MR BULL: Yes, and that's - - -

PN222

JUSTICE ROSS: Yes. Yes.

PN223

MR BULL: That's the intent because one of the problems we'd see is - - -

PN224

JUSTICE ROSS: No, no. Yes. No, no, I follow why.

PN225

MR BULL: - - - there's no threshold.

PN226

JUSTICE ROSS: Yes.

PN227

MR BULL: The second one was, that was amended to essentially not create the perverse situation where people who are currently at level 4 but don't have a Cert III would then drop down to level 3. So it in a sense preserves the employer prerogative to decide to recognise someone at a certain level despite not having formal qualifications.

PN228

JUSTICE ROSS: What's put against you is an argument by the aged care employers based on the Australia Qualifications Framework and as I understand the argument it's that, well, there is a method under that framework for competency testing based on acquired skills and knowledge and you go along to, I think it's a training provider and you're assessed and you're certified as being at level three. So that is the argument that's put. Well, there is a mechanism for doing this and that's the mechanism.

PN229

MR BULL: Isn't obtaining the level three certificate that process?

PN230

JUSTICE ROSS: Well, that's really the point, isn't it?

PN231

MR BULL: I don't see how that's - I don't understand the sense in which that - - -

PN232

JUSTICE ROSS: Well - - -

PN233

MR BULL: - - - is put against my client.

PN234

JUSTICE ROSS: - - - why do you need to possess equivalent knowledge? If you possess equivalent knowledge and skills you just go along and you get the certificate. That's the proposition as I understand it that's being put.

PN235

MR BULL: Well, I will just reiterate what I said earlier - the reason it was drafted in that manner was to not create the perverse situation where persons who didn't have the formal qualification - - -

PN236

JUSTICE ROSS: But the point is they can go and get the formal qualification based on their competence. So if they haven't taken that step they could take that step in the event that your first claim was granted and then an employer for whatever reason wants to move them from that level down to the level below, they could simply go and obtain the cert III because they would have equivalent knowledge and skills gained through on-the-job training. I'm just not sure how that second bit fits in with the competency-based qualification framework, that's all, and that's really as I understand it. I mean, I'll be corrected if I'm wrong when we get to the employer side of the argument but I understood that to be their submission or one of their submissions against this claim.

PN237

MR BULL: It's a rather vicious submission in the sense that - I can't profess to be an expert but the competency-based training scheme, once again I reinforce that these are not particularly highly-paid employees.

PN238

JUSTICE ROSS: You keep saying that but that doesn't - you still need to advance a merit argument. I understand these employees are low paid and we put out that document which demonstrates that point.

PN239

MR BULL: Well, the merit argument is principally outlined in the submission and it centred around providing career pathways and recognition of skills and I could go over what has been put in the submission but that is the principle merit argument. The other issue, we say, is that the current structure doesn't actually have a threshold so it's got a classification structure where rather than - and classification structures should broadly deal with things that adhere in the duties of the employee rather than provide decisions for employers and my instructions are that the way that this sort of progression from level three to level four currently works in practice is that if the employer doesn't want to recognise that a cert III qualification is required the level three never progresses to level four.

PN240

So there are apparently loads of people sitting on level three with certificate III qualifications and they don't progress and I would say as a matter of merit that is an inappropriate way to structure a classification structure because it is actually dealing with choices made by the employer, not things in relation to the work. That is what a classification structure should really be about. That's just a sort of, I suppose, conceptual or fundamental problem with these words which appear innocuous. That apparently is the practical effect of them. If you accept our variation there will actually be recognition. There will be a threshold. Currently there is no threshold. It's entirely at the discretion of the employer as to whether they require this particular qualification.

PN241

There are many awards. The SCHADS award, the way it's' structured, has the holding of the qualification triggers the change in classification and so forth. I'm going to go quickly through some of the issues raised by the participants. ABI has talked about thresholds. I've probably dealt with that. The additional words that knowledge and skills - as I said, that's intended to deal with the fact that there may be people who, for whatever reason, don't have the formal qualification and that shouldn't be an impediment for them being classified at level four. One of the issues that we raise in the submission is that there was - seemed to be an intention at the time the award was made that there would be some equivalency made between the level three in the SCHADS award, which requires a certificate III - - -

PN242

JUSTICE ROSS: Is this your submission at para 38?

PN243

MR BULL: Yes.

PN244

JUSTICE ROSS: Just take me through that.

PN245

MR BULL: This involved accepting the broad proposition that there is similarity in the work covered by the two awards and that this seems to be acknowledged when these awards were made.

PN246

JUSTICE ROSS: Well, where does it say that? It's just making the observation it's the same rate as for a similarly-qualified aged care employee level four in the Aged Care Award. They both mention the cert III. I'm just not sure - what's the point you're deriving from that? Is it the case in the SCHADS award that it's sufficient if you hold the cert III that add the level?

PN247

MR BULL: It's indicative but not exclusive of the qualification required in this level.

PN248

JUSTICE ROSS: Whereabouts in the SCHADS award?

PN249

MR BULL: E3.5 in the SCHADS award.

PN250

JUSTICE ROSS: All right, indicative but not exclusive that the qualification required at this level is an - - -

PN251

MR BULL: - - - is an accredited qualification to a position at the level cert III and/or knowledge and/or skills gained through on-the-job training commensurate with the requirements of work in this level.

PN252

JUSTICE ROSS: But you're not seeking that. So on the one hand you're arguing that they're the same and you're relying on the AIRC Full Bench and on the other hand your claim is for a different outcome to that, which is an E3.5 in SCHADS?

PN253

MR BULL: I wouldn't characterise it like that. We say that there is an intended sort of relationship between those two levels that in the SCHADS award, a person with a cert III should generally be qualified at the 3.5 level. The pay is identical to the level four. I mean, there's a further pay point above the first one in the SCHADS award.

PN254

JUSTICE ROSS: But your claim is different to the SCHADS award.

PN255

MR BULL: It's not identically drafted, I agree with that. It's a more rigid classification in the sense that if you hold the cert III qualification or possess equivalent skills you should be classified at level four.

PN256

JUSTICE ROSS: Which award are you talking about now?

PN257

MR BULL: This is the prose variation to the Aged Care Award. There is a difference between, "is required," and being an indicative. An indicative is slightly more mandatory than is required. Our principal concern is the manner in which the classification is drafted at the moment essentially places the issue of whether the relevance of the cert III qualification within the area of the employer's prerogative and that's not appropriate. The other issue is that there is general - all the participants realised this issue of, "It's not clear. There will be disputes." As a general matter, of course there will be disputes. There is potential for disputes about classifications. Classifications are inherently, on some levels, fuzzy things. As you would know, all modern awards have to have dispute clauses. Having industrial disputes is considered a critical part of our system so simply saying that there is some level of potential disputation is not an argument against our proposal.

PN258

Our proposal is actually one which would avoid disputation because it is a relatively hard threshold. Within the context of the broad merit arguments that we have outlined in our submission about the desirability of recognising skills for retention and the inherent utility of persons doing this work having qualifications, there is desirability in having a harder threshold than simply something which is indicative. But indicative is superior to, "is required," because, "is required," is placing the matter in the hands of the employer, which we say is a fundamental problem. You may not want to accept the solution that we've presented but I would suggest that we have identified a matter which is a proper object of review but I don't need to go over the fact that this is a review.

PN259

It's not a parties process and so forth. You can say the solution that we've proposed is rubbish but I would not say that the problem that we've presented can be so easily dismissed. The manner in which the current classification is framed is inappropriate and requires review and the arguments about disputes and so forth are frankly sophistry and that could be said frankly pretty much every classification structure within the modern award system. If there is anything else, anywhere else I can be of assistance that is all I principally want to say at the moment.

PN260

JUSTICE ROSS: All right, thank you.

PN261

MS LIEBHABER: Your Honour, Deputy President, Commissioner, the Health Services Union advances three claims in these proceedings, which are outlined in our written submissions filed on 23 January 2019. That includes the claim for the telephone allowance, a claim to insure that minimum engagement provisions apply to broken shifts and that casual loading be paid in addition to weekend and public holiday penalty rates. So I will rely on those written submissions but just make a few points today in response to the arguments raised by the New South Wales Business Chamber, AFEI and aged care employers. In relation to the phone allowance claim, I think my colleague, Mr Bull, has covered off a lot of the points but I'll just add a couple of small points. We believe it's appropriate to insert a phone allowance into this award which reflects the contemporary use of mobile or smart phones in the workplace.

PN262

It's appropriate in the aged care sector and we note that the allowance would not apply to every employee with a mobile phone, only where this is required and directed by the employer for carrying out their work. So we disagree with ACE's submission in paragraph 9 which states that the claim does not meet the definition of an allowance in section 139(1)(g) of the Fair Work Act. The proposed allowance is only to be paid to employee who are required to use a mobile phone for work purposes and it does constitute an expense incurred in the cost of employment. I will also just note that ABI advanced an argument that because phone use is tax deductable that the tax deductibility system covers phone use and we say that this has little relevance for employees on low incomes who will earn below or close to the tax-free threshold.

PN263

This should be kept in mind in relation to this sector as the Aged Care Industry Profile published by the Commission shows a high proportion of employees in the aged care sector are part-time or casuals. Approximately 60 per cent work less than 34 hours a week, 30 per cent work less than 24 hours a week. Someone working such few hours on the award wage is likely to be earning below or close to the tax-free threshold so the point about costs borne by employee able to be covered by the tax deductibility system is not persuasive or relevant. Also I will say that if the Commission is minded to insert a phone allowance in the award the wording of the draft determination could be reviewed to take into account some of the concerns raised as to what happens, for example, when an employee leaves.

PN264

I think there could be a slight amendment to deal with those kinds of situations and some of these concerns around clarity. But we don't think that should be a reason to dismiss the claim. I'll move on to our claim around minimum engagements applying to broken shifts. I refer to ABI's submissions in paragraphs 4.15 to 4.17 of ABI's reply submission. They refer to the 23 March 2010 Full Bench decision concerning the Aged Care Award. We say this decision is not relevant or persuasive authority in relation to the claim. As ABI acknowledged, the claim was an attempt - was a claim from then LHMU, now United Voice, to attempt to preserve conditions from a Western Australian award on a transitional basis. At the outset of that decision the Full Bench clearly set out that it would take a very limited approach in making new, transitional provisions.

PN265

That is explained in paragraphs 3 to 5 of that decision, which also quotes the 26 June 2009 statement of the Australian Industrial Relations Commission Full Bench. So that decision did not provide detailed reasoning on the merits of the LHMU's claim around minimum engagement. It appeared to reject the claim because of the narrow scope it had around making transitional arrangements and preserving entitlements from pre-modern awards on a transitional basis and the jurisdictional scope of that review was different to the current four-yearly review. It had a narrower focus. It should also be noted that the LHMU's claim was different from the claim we are advancing. It was a claim - that claim was to increase the minimum engagement to a three-hour minimum engagement, as well as the two-hour minimum engagement for each portion of a broke shift.

PN266

But the decision did not give detailed reasonings on the separate aspects of this claim so it is not clear what the decision - the decision is not clear on the issue of the two-hour minimum engagement and therefore we say it's not useful in deciding this matter. We also do not agree with the submissions of the employer parties that it's necessary to provide evidence of widespread abuse or misuse of a provision to demonstrate that it's open to abuse and that it should be varied. We say such evidence shouldn't be necessary. If it's clear from the wording of the clause that it's open to abuse or that it fails to provide an appropriate safety net, consistent with the modern award's objective.

PN267

As the Commission has noted in its document, "Other legislative framework to the review", in paragraph 13 of that document, quoting from the penalty rates case, "Some proposed changes are obvious as a matter of industrial merit and in such circumstances it is unnecessary to advance probative evidence in support of the proposed variation. We think that is relevant here.

PN268

The current broken shift clause in the Aged Care Award, if read in the way that the aged care employers AFEI and ABI appear to interpret it, means that an employee can be rostered for multiple short shifts over a 12-hour period. AFEI in paragraph 1.40 of their submissions in reply appear to endorse this idea of employees working multiple shifts or portions of shifts that are under one hour.

PN269

We say that it is clear that such rostering practices do not provide an appropriate safety net for employees and do not meet the modern award's objectives and should not be encouraged or enabled in the modern awards system.

PN270

And finally, I will just turn to our claim for casual loading. It seems that ABI no longer pressed the threshold issue, so I won't go into that. We don't think any issue arises. We don't think this can be characterised as a work value application. In relation to the background of the provision, we do not agree that the HSU has conveniently ignored the history of the provision as stated in ABI's submissions, but we say that the background that they have provided has little relevance to the claim. Again, it is based on that 23 March 2010 decision which dealt with a different application by the LHMU to vary the award.

PN271

It was for a permanent change rather than a transitional one, but still that decision in paragraph 3 outlines that it has - that it would take a limited approach to granting substantive claims. That decision was made less than a year after the award was created and so the Full Bench made clear that it would take a limited approach to granting such substantive claims.

PN272

So we say the scope - - -

PN273

JUSTICE ROSS: Where did it say that?

PN274

MS LIEBHABER: Let me bring that up. So paragraph 3, the decision - - -

PN275

JUSTICE ROSS: They are referring to their statement.

PN276

MS LIEBHABER: It refers to the earlier statement of 26 June where, "The Commission would be unlikely to alter substantive award terms so recently made after a comprehensive review of the relevant facts and circumstances."

PN277

We also not that that application - I think the vast majority of applications in that process were deal with by written submissions. In contrast, the penalty rates decision is a more recent decision. It was made as part of the four yearly review. It's a thoroughly considered decision and we say that precedent from the penalty rates decision should be followed over that earlier decision made under the Workplace Relations Act.

PN278

That was all I was planning to say, unless there are any questions?

PN279

JUSTICE ROSS: No. Thank you. Do you have an agreed batting order on your side?

PN280

MR MILES: Yes. I think it's in order of where we are located.

PN281

JUSTICE ROSS: Sure.

PN282

MR MILES: If that would be convenient.

PN283

JUSTICE ROSS: Certainly.

PN284

MR MILES: Your Honour, Deputy President and Commissioner, in terms of the matter that the Commission has asked for responses on, aged care employers are content that the background document conveniently summarises the issues in review and the arguments or submissions made. It doesn't purport to be comprehensive, but we think it hits the highlights. We are not aware of any modern award providing for payments in relation to telephones that aren't identified in the usefully summarised attachment setting those out.

PN285

In relation to the aged care profile, we note that this has been looked at on a number of occasions including consideration of the future of Australia's aged care sector workforce in which the ABS made some submissions, noting that whilst the diverse range of industries and occupations makes it difficult to identify or define the current composition of the aged care workforce, but that was qualified in an important way by saying workers providing residential care can be identified with a reasonable degree of accuracy and indeed in the material provided from the Commission it appears to be based on the classification 8601, which is the Aged Care Residential Services which ABS has given other evidence about being reasonably accurate and allowing the positive identification of aged care residential services.

PN286

JUSTICE ROSS: Is there another document?

PN287

MR MILES: No. I am referring to material that we didn't end up filing just in response to having looked at it. I think that the submission that I am making is that we are content with the material put by the Commission is a reasonable approximation of this award.

PN288

JUSTICE ROSS: All right.

PN289

MR MILES: It may not be able to be achieved in all awards, but in this award the material seems to be a reasonable approximation and reflects what we understand to be the demographics of those working in the industry.

PN290

JUSTICE ROSS: Of course, there is not data at the aged care residential services industry class level or there doesn't seem to be, in respect of casual employment. The nearest we can get to seems to be health care and social assistance.

PN291

MR MILES: Yes.

PN292

JUSTICE ROSS: That suggests that casual employment, as a proportion of all employment, is lower than for all other industries.

PN293

So for example, the extent of casualisation in this sector, health care and social assistance is less than appears in all industries. So it's not as great, for example, as in hospitality, retail and the like. Do you quibble with that if you then extend that proposition to the aged care residential services sector?

PN294

MR MILES: No, your Honour. That is consistent with my instructions and to our understanding of the industry. Whether it precisely aligns is a different matter, but in broad terms we think that's an accurate statement.

PN295

JUSTICE ROSS: Yes.

PN296

MR MILES: I was going to make the point on that point that the Census doesn't assist too much in that regard in that it defines part-time employees as being less than 35 for the week previous to the survey.

PN297

JUSTICE ROSS: And it also doesn't really tell you casuals fall in part-time as well, because it's really - - -

PN298

MR MILES: They could indeed fall in full-time, given the way in which the - it's based purely on the hours worked in the week previous that's it's difficult to make any sort of meaningful distinction from that particular data.

PN299

JUSTICE ROSS: Are you clients able to obtain information from their members about - for example, the proposition has been put or the assertion has been made that the way the classification structure works is that there are, as I will quote "loads of people at level 3 with a Cert III qualification." And rather than deal with a battle of assertions, you will either accept that or you won't. If you don't, then I don't know what we make of it, but are you able to make inquiry of the members of the two organisations about what is the reality in their businesses at least. Are they able to get that information? Perhaps it is something you can raise with them during the break, but I would be interested in something a bit more concrete around that issue.

PN300

MR MILES: We did have some discussions about that in relation to various aspects of the evidence and part of the difficulty that we face as employers is that saying that it doesn't apply is problematic to put in that sense without knowing where these multiple people who are said to exist. The first we have heard of that is today, that there is - - -

PN301

JUSTICE ROSS: I also accept that an employer is not necessarily going to know whether an employee has a Cert III qualification unless the employee has bought it to their attention.

PN302

MR MILES: And they've been specifically required to have it. Yes. Or, as you say - - -

PN303

JUSTICE ROSS: It may be whether they've not been required to have it, they just have it, but they just haven't told their employer.

PN304

MR MILES: Yes. They may have not been required but they've brought it to the attention - yes.

PN305

JUSTICE ROSS: Yes. Is there any data on qualification levels in the sector generally. Do any of these multiple reports take you to - you know, for example, there are a couple of hundred thousand people employed in the aged care sector. Of them, 10 per cent have a level 3 qualification, et cetera. Is there anything remotely going to objective facts about how that works?

PN306

MR MILES: There is a report and I believe it is a parliamentary report from my recollection that went to this issue. The problem is that it is - I don't think - and the reason we haven't bought it forward as evidence is because it didn't seem to come to any conclusion that we thought was going to be of any great assistance to the Commission.

PN307

JUSTICE ROSS: But leave aside whether it comes to any conclusion. Does it set out any of the facts?

PN308

MR MILES: That's the point in that regard, that they identified the difficulties with it in matters such as I have just referred to as the ABS submissions to that - to the future workforce being the difficulties in tracking through some of that data; that they weren't able to locate or provide any concrete information about that and it was more anecdotal evidence as to what those qualifications were.

PN309

JUSTICE ROSS: Yes.

PN310

MR MILES: Similarly, aged care employers are content that the document entitled, "Legislative framework" incorporates the major matters. We think those points were fairly well settled and there doesn't appear to be any great difficulty with it. Perhaps the only additional matter that we might raise, and it's a minor one, is the need to have regard to the contemporary circumstances in which an award operates, which was one of the statements made in the most recent annual wage review as at paragraph 23 and we're nearly a part of that.

PN311

JUSTICE ROSS: Yes. I am not so sure - in this context, I think, you need to be careful about how you deal with the word "relevant", because of the observation in the penalty rates review Full Court decision.

PN312

MR MILES: Yes.

PN313

JUSTICE ROSS: So yes. And I am not sure in the end it is necessarily going to help us determine this claim or these claims.

PN314

MR MILES: No. The reference to the contemporary circumstance was more about - and I can put the submission in a different way, which was by looking at the large variety of ways in which the Commission has dealt with the question of phone allowances under awards, where there is one, demonstrates that they've actually taken into account what the requirements in that industry typically are in order to be able to come up with what is considered to be some appropriate arrangement for dealing with the extent to which an expense is incurred.

PN315

And like many of these allowances there is no - we don't suggest some (indistinct) of perfection that there needed to be some highly precise way of calculating it, but it needs to be at least a genuine estimate as to what some expense has been incurred, particularly in circumstances where people already have a phone and at best you are talking about some marginal cost in relation to it.

PN316

Unsurprisingly, we don't take any issue with the background to the aged care award that's been set out by Australian business. I don't think I need to deal with the section 156 question.

PN317

JUSTICE ROSS: No.

PN318

MR MILES: I didn't intend to read our submissions. Your Honours have clearly engaged with that and what I wanted to do was just simply look at some of the submissions that have been made this morning. We have made the point about home care and the arrangements as to which award applies, in which there has been, we say, no real engagement to talk about how there are particular employees who are required to have a phone that are covered by this award.

PN319

And I think the mobile phone issue, I think has been adequately fleshed out. Perhaps if I could turn to the question of the personal care worker claimed by the United Voice.

PN320

JUSTICE ROSS: Yes.

PN321

MR MILES: Which is that if a person is not required to have the skills of a Certificate III< we don't see how undertaking training to do that provides any incentive for people in terms of development of their work performance.

PN322

Now, we can have a debate about whether people are required, but given the assertions as to the large numbers that are supposedly out there, that we've been unable to ascertain - - -

PN323

JUSTICE ROSS: What do you say about that proposition? Because it's put that what happens in practice is that there are lots of people at level 3 who have Cert III qualifications.

PN324

MR MILES: It's put, but we don't have any way of testing that evidence, because it's certainly not our understanding of that practice.

PN325

JUSTICE ROSS: And what is your understanding of the practise?

PN326

MR MILES: We don't understand there to be large numbers of employees having Cert III who are stuck at level 3 and not required to use it. It's not something that we are aware of.

PN327

JUSTICE ROSS: If we go to - I am curious about the difference in the classification definitions between the Aged Care Award and the SCHADS Award. And particularly at E3.5 of the SCHADS Award, it's an indicative, but not exclusive of the qualifications required at this level. Do you see - what is your position about, well, why not put a similar thing in the Aged Care Award? The rates of pay are the same. There's certainly some similarity with the balance of the indicative task. Why not express it that way?

PN328

MR MILES: There is quite a deal of difference in relation to the way in which the actual classifications are structure, however, in that when you look at E3 generally, whilst accountability and extent of authority is perhaps whilst more wordy is perhaps of a similar concept, as is the judgment and decision making.

PN329

JUSTICE ROSS: Yes.

PN330

MR MILES: It certainly goes into far greater detail at E3.3 as to - - -

PN331

JUSTICE ROSS: Sure, but then again, they are sort of indicative but not exclusive tasks.

PN332

MR MILES: No, but having identified the sort of tasks that people might use in relation to it as to whether it then - the requirement to press E3 perhaps then flows from that. One of the issues that comes up in, as I understand my instructions, is in relation to dispensing medications, being one of the areas in which a Certificate III is considered to be the appropriate qualification.

PN333

JUSTICE ROSS: Right and where - - -

PN334

MR MILES: But that is not dealt with in that way in the Aged Care Award structure generally.

PN335

JUSTICE ROSS: No. But where is it dealt with in the SCHADS Award? Is it one of the indicative tasks in E3.3?

PN336

MR MILES: No, because the home care work is perhaps different from that applying from a residential aged care facility and people attached to a residential aged care facility.

PN337

JUSTICE ROSS: It just seems curious to me that - and look, it's a review. One option for us is to just do a complete review of all the classifications, definitions, in aged care.

PN338

MR MILES: Yes. Yes.

PN339

JUSTICE ROSS: And go on inspections and find out what people actually do.

PN340

MR MILES: Yes. It's the - - -

PN341

JUSTICE ROSS: I'm not sure how enthusiastic you would be about that necessarily.

PN342

MR MILES: Yes.

PN343

JUSTICE ROSS: But you might want to think about the E3.5 and what your position is about inserting a similar proposition into the Aged Care Award in lieu of the claim by United Voice.

PN344

MR MILES: We still have the - - -

PN345

JUSTICE ROSS: But if you can give some thought about that over the luncheon break and we'll come back and hear you about that and the other employers.

PN346

MR MILES: Yes. Let me just make a note of that.

PN347

JUSTICE ROSS: Sure. Was there anything you wanted to - I mean you deal with the other claims in your written submissions. Is there anything further you wanted to say about those two? These are the HSU - - -

PN348

MR MILES: Yes, there is. I was working through some notes of what's gone through.

PN349

JUSTICE ROSS: Sure.

PN350

MR MILES: In that, yes, we take issue with the idea that working individually means that you're necessarily working outside of a facility. People can work individually within it.

PN351

JUSTICE ROSS: And that's in the context of what claim?

PN352

MR MILES: In terms of this is still in the context of the personal care worker.

PN353

JUSTICE ROSS: Yes. Yes.

PN354

MR MILES: You had raised with United Voice, put to him some of the - a summary of what the submissions of aged care employers was in relation to the recognition of prior learning.

PN355

JUSTICE ROSS: Yes.

PN356

MR MILES: And, yes, we agree that that covers what we're - or accurately summarises what we're trying to submit, in that the whole purpose of the recognition of prior learning was so that people were not tied to their current employer, and I'm basing this on my past recollection, but that it was that they then had a transferable and recognisable skill. That meant that whichever employer they went to was able to see that they had the certification that showed that they had these particular levels, and it's been some time.

PN357

I seem to recall it developing out of, if I remember correctly, boilermakers and other metalworker tradesmen who had the skills but not done the apprenticeship and were then being paid, and then a whole process of going through to develop the recognition of their trade qualifications in that sense. And out of that grew the concept 'Well, it shouldn't be about what training process you've done to get the skills but rather whether you have the skills' and that's the appropriate way, we submit, in terms of trying to recognise those skills such that they're transferable to other employers and there's no doubt or dispute as to whether they have those.

PN358

In terms of broken shifts we simply make the point that the HSU claim just ignores the fact that the award doesn't allow an employer to simply roster people to work broken shifts. What it requires is the consent of the employee and we say that's a very important qualification in terms of whether they're prepared to consent and in what circumstances to particular shifts. And it's on that basis that we say that the lack of evidence of abuse of that process is relevant because we say that is an important way of containing and ensuring that it's dealt with in a manner that's appropriate for the employee.

PN359

There's then other requirements if the person happens to be part‑time in terms of the arrangements that need to be put into place for those hours. But we say there's simply no basis on saying that arrangement, the existing arrangement, is somehow not providing an adequate safety net for people.

PN360

DEPUTY PRESIDENT CLANCY: Mr Miles, do you have anything further to say to paragraph 35 of your written submissions? Is there - - -

PN361

MR MILES: Sorry, Deputy President, I just need to turn to it.

PN362

DEPUTY PRESIDENT CLANCY: Is there anything you've got to say on the incidence of broken shifts in the industry?

PN363

MR MILES: That's more about not so much - paragraph 35 is not so much about the current incidence but some concerns raised about the future direction in relation to consumer directed care in terms of the capacity of individuals to want to have services provided at a time that suits them that then can create further scheduling difficulties for a residential facility.

PN364

If a person wants to have a shower at a different time or, you know, to have dinner earlier or later or what have you, can create - and it's just I think reflective of some understandable nervousness on the part of employers as to without having it worked into it, the fact that this is on the horizon that it's - and people are not quite sure how that's going to impact upon the way in which they deliver these services.

PN365

JUSTICE ROSS: Do you have any information, or perhaps you can seek instructions during the break, about the incidence of broken shifts at the moment? How widespread is the usage of them?

PN366

MR MILES: I will seek some instructions. We do have some information in relation to that, but.

PN367

JUSTICE ROSS: It's by agreement but is there any record ever kept of how the agreement is reached?

PN368

MR MILES: I haven't gone to that level of detail in terms of the information we've sought as to whether that's got to be in - - -

PN369

JUSTICE ROSS: All right.

PN370

MR MILES: I don't recall off the top of my head whether the award says it has to be in writing. I don't believe it does.

PN371

JUSTICE ROSS: Perhaps you can take that on notice as well.

PN372

MR MILES: Yes.

PN373

COMMISSIONER LEE: Similarly can - you wonder how that's interpreted as to whether or not a, if you like, a standing consent could be obtained at the commencement of employment that broken shifts would be worked. How is it being applied in that sense?

PN374

JUSTICE ROSS: We just want to get some feel for how this thing works in practice.

PN375

MR MILES: Yes, I understand the question. In terms of how usefully I can answer that I'll need to consider that over the break.

PN376

JUSTICE ROSS: All right. Is now a convenient time to?

PN377

MR MILES: Yes.

PN378

JUSTICE ROSS: All right. Can we get an indication of how much longer you're likely to be? We will probably spend a bit of time responding to other questions but leave that aside, how much are you - - -

PN379

MR MILES: Well, perhaps given it's ten to, if I could perhaps spend five minutes dealing with the penalty rates issue?

PN380

JUSTICE ROSS: Sure.

PN381

MR MILES: And then that's aside and all I've got to do is respond to the matters you've raised.

PN382

JUSTICE ROSS: All right, certainly, yes, and then we might get an indication from the others about how long you're likely to be.

PN383

MR SCOTT: Your Honour, I think probably between 30 and 60 minutes.

PN384

JUSTICE ROSS: All right.

PN385

MS LO: I won't take long at all.

PN386

JUSTICE ROSS: All right. Thank you.

PN387

Please go on, Mr Miles.

PN388

MR MILES: We see the casual loading claim as being very much akin to the claim made by Clubs to reduce the casual loading in the - sorry, the weekend shifts payments and simply try - and by saying that the penalty rates decision was in some way a precedent. We say it entirely mischaracterises the nature of that decision. It was a long and difficult process extending over, as I understand, some 39 days of evidence, that evidence was not - - -

PN389

JUSTICE ROSS: It seemed longer, Mr Miles.

PN390

MR MILES: Yes. And that evidence was not generic in any sense but specific to the particular industries that were being considered, and going into great detail as to the impact of those shift penalties both on employers and employees, which is one of the requirements of the Act for this Commission to take into account. And it was in that circumstances that the criticism of Clubs was made, was that it's simply not sufficient to say 'Well, we're all in hospitality and we'll just take that evidence and that will apply to us', and that was rejected unambiguously by the Commission and we say the same approach should be taken here.

PN391

It's simply not appropriate to say that some penalty rates should be increased because of a theoretical approach. We don't disagree with the principle. We say it needs to - that the Act requires you not to set simply some principle approach but to actually apply it and consider how that's going to affect this industry and this - or the people covered by this award in relation to - - -

PN392

JUSTICE ROSS: When you say you don't disagree with the principle, what principle are you not disagreeing with?

PN393

MR MILES: The principle that casual loading and shift penalties deal with different things.

PN394

JUSTICE ROSS: Yes.

PN395

MR MILES: It's - - -

PN396

JUSTICE ROSS: Or casual loadings and weekend penalty rates deal with different things. Yes.

PN397

MR MILES: Yes, sorry, I may have confused it.

PN398

JUSTICE ROSS: Yes. No, no, that's fine.

PN399

MR MILES: But yes, you're right. The issues around weekend penalty rates are not the same as the issues around the reasons for casual loading.

PN400

JUSTICE ROSS: So it's not suggested that the casual loading either generally or in this award is intended to compensate for the disutility of weekend work? The point is that you need to look at the impact of if the claim was granted in this particular industry.

PN401

MR MILES: Yes, I think it's difficult to say in terms of the circumstances under which the modern awards were drafted because of the way in which they were put together was not - and I intend absolutely no disrespect to the people involved. It was a monumental task to do, that just didn't lend itself to great deals of, you know, intricately detailed reasonings as to each particular aspect.

PN402

JUSTICE ROSS: Yes.

PN403

MR MILES: But reflecting broadly the longstanding history of those industries.

PN404

JUSTICE ROSS: And looking at the weight of the pre‑reform instruments.

PN405

MR MILES: Yes.

PN406

JUSTICE ROSS: And making some balance in the judgment about what should go in a modern award.

PN407

MR MILES: Yes, I mean it was a very difficult task to - particularly where you had state based awards, and the explicit requirement under the Act was that there be no state based awards.

PN408

JUSTICE ROSS: Yes.

PN409

MR MILES: And you somehow had to meld these things into a single award. I don't mean any disrespect in terms of the enormity of that undertaking. But having undertaken that and come with a particular approach, to want to review an aspect of it in isolation without any evidence about the impact of that, we say is the flaw with the claim and that if they want to review the weekend penalty rates and how they're arranged and compensated generally, then that's a matter we would need to address and to go through that process. It's not one we encourage the Commission to go down. We're conscious of the enormity of the work involved in that approach, but if it's to go down that path then that's what we say should occur in that respect. Unless you have any questions on the penalty rates that was as far as I intended to go with that.

PN410

JUSTICE ROSS: All right. Thank you. Is now a convenient time?

PN411

MR MILES: Yes, your Honour.

PN412

JUSTICE ROSS: All right. We'll adjourn until 2 pm. Thank you.

LUNCHEON ADJOURNMENT [12.54 PM]

RESUMED [2.05 PM]

PN413

JUSTICE ROSS: Mr Miles?

PN414

MR MILES: As is so often the case, the questions are illuminating in that I had been looking at a particular government report that is what I thought my instructors had been referring to. But it turns out there's actually a different report that deals with many of the issues that the Commission has been - identified through the ABS data, which is there's a report commissioned by the Department of Health that looks at the aged care workforce at 2016. It's dated March of 2017 and it deals with quite a few relevant aspects.

PN415

What I would propose to do with the consent of the Commission is to tender this, albeit late. I propose that whilst I'll speak to it briefly now, I think it may be of benefit to the Commission and to the other parties if there's a short document identifying what we say are the pertinent aspects of what is after all a 248 page report, and then of course giving the unions and the other employers the opportunity to respond in relation to that.

PN416

JUSTICE ROSS: And when do you think you'll be in a position to do all of that?

PN417

MR MILES: I can send the report virtually instantly. In terms of actually going through it, it would depend on whether we were going to sit through until tomorrow. It doesn't seem that likely from where we're at today.

PN418

JUSTICE ROSS: I think that's unlikely, yes.

PN419

MR MILES: Which means that I should be able to get it done this week I would have thought.

PN420

JUSTICE ROSS: All right, so if you can provide the short summary, the other parties will have that by say 1 pm on Friday.

PN421

MR MILES: Yes.

PN422

JUSTICE ROSS: The other parties will have an opportunity to say whatever they wish to say about that by 4 pm next Wednesday. I'm assuming it just gives you some information about the employment profiles, that sort of thing?

PN423

MR MILES: Yes, conveniently referring to for example one of the questions I was asked about, the extent of people who hold a Certificate III.

PN424

JUSTICE ROSS: Yes.

PN425

MR MILES: And so it actually deals with not just people in the industry but it looks at particular occupations within that. So it talks about personal care assistants with other personal care workers. Mr Bull quite rightly points out that it doesn't distinguish between what grade those people are at but it does identify that there are some two‑thirds of the people have a Certificate III in Aged Care, and there are some further people who seem to have a disability related qualification, typically a Certificate III in Disability.

PN426

JUSTICE ROSS: Do we have any figures on how many people are classified at the different levels under the award?

PN427

MR MILES: Not that I'm aware of.

PN428

MR BULL: Does my friend have the name of the report because we can - - -

PN429

MR MILES: Yes, it's entitled 'The Aged Care Workforce of 2016'. It's published by the Australian Government Department of Health on March 2017.

PN430

JUSTICE ROSS: Well, if you can send - - -

PN431

MR MILES: And I'll email it to the Commission and to the parties.

PN432

JUSTICE ROSS: Yes.

PN433

MR MILES: As soon as convenient.

PN434

JUSTICE ROSS: All right. All right, thank you.

PN435

MR MILES: The other aspect that we spoke of was in relation to the extent of casuals used in the workforce and there's a table that sets out the extent of casual as opposed to permanent full‑time and permanent part‑time being - the full‑time arrangements being for personal care workers being at 8.9 per cent, permanent part‑time being at 80.3 per cent and the casual or contract amounts being at 10.8 per cent. So they lump contract, which I'm assuming is some sort of fixed-term arrangement, rather than necessarily casual, but it does at least give an indication as to how that is broken up, which is perhaps a bit clearer.

PN436

JUSTICE ROSS: All right.

PN437

MR MILES: It appears there are probably likely to be some other aspects that may assist the Commission so I'll deal with those.

PN438

JUSTICE ROSS: All right.

PN439

MR MILES: In terms of questions I've been asked, I was asked to consider in relation to E3.5 of the SCHADS award, whether that should simply be copied across. I think one of the concerns arising from the Royal Commission is about the extent to which the care provided to people in facilities is meeting community expectations and one of the concerns of aged-care employees is about a focus on qualifications rather than the care that is provided and the manner in which it is provided. It's easy to state that, however, and we are struggling to articulate how that wold translate into a classification structure. In following the questions and responses in relation to the structure, there is certainly some difficulty in trying to identify the distinctions between a level three and a level four, which perhaps flow through from people's understandings of previous awards that applied and where people have fitted in accordance with that rather than necessarily being followed through on to the current structure.

PN440

I think I made the point that one of the aspects that is distinct is not merely 3.5 but in terms of 3.3 is far more prescriptive in terms of E3.3 being far more prescriptive about the types of work that's performed at a particular level. One of the difficulties is that is not an industry in which there is some statutory requirement to have a particular qualification in order to perform particular work so that you can't - it's not necessarily tied in that sense. I think what I'm doing is identifying the problem rather than perhaps assisting the Commission in identifying a solution and I apologise for that shortcoming.

PN441

COMMISSIONER LEE: Can I just raise an issue just examining this relationship between this type of skill level in this award with the SCHADS award - - -

PN442

MR MILES: Yes.

PN443

COMMISSIONER LEE: - - - which we've canvassed to some extent. We have established that the aged care employee level four rate at $837.40 per week currently is exactly the same as the lowest point of the - or the first rate point for home care employees under the SCHADS award, that's right?

PN444

MR MILES: The home care level three of the SCHADS award is equivalent to the personal care level four. Is that the - - -

PN445

COMMISSIONER LEE: That's it. That's the proposition.

PN446

MR MILES: As I understand the awards, yes, that's the - - -

PN447

COMMISSIONER LEE: Yes, but there is a second pay point in the SCHADS award of $863.10. The means by which one gets to that second pay point appears to be not by promotion to level but by satisfactory performance over 12 months and so on and - - -

PN448

MR MILES: Yes, the usual reference to pay points is, as I recall, being a 12-month basis rather than any other - - -

PN449

COMMISSIONER LEE: - - - yes, and satisfactory performance under any performance plan, those types of provisions. At $863.10 it's getting close to an aged care employee level five, certainly significantly more than aged care employee level four. So it's a point of interest for me, at least, as to how one reconciles that in a relativity sense. I know that I'm just focusing on the cert III and there may be other aspects to the classifications which explain the difference but it's quite a difference and one gets there after only 12 months.

PN450

MR MILES: Perhaps if we take a step back and look at the differences between a residential care facility, broadly speaking, and the home care - work performed by those, is that in a residential care facility there is usually - it's a group environment. I don't mean to suggest that it's necessary to the extent of a nursing home but it's an establishment that has a number of aged care people or aged people who then get care provided by a range of people. I think the report that I just referred to identifies staff ratios are about 0.7 staff employed for each person. That's not the total not at any one time but - - -

PN451

JUSTICE ROSS: Is that the subject of any sort of regulatory framework that requires so many people per - - -

PN452

MR MILES: Not that I'm aware.

PN453

JUSTICE ROSS: Is there any regulatory framework at all?

PN454

MR MILES: There are certainly regulatory frameworks but they are focused around the standard of care and there is assessments as to the standard of care provided rather than about the number of people that are - - -

PN455

JUSTICE ROSS: So unlike, for example, childcare, which is regulated by ratios for particular age groups, it's outcome-regulated so you need to meet certain care standards and that's subject to inspection and the like.

PN456

MR MILES: Yes, as I understand the inspector will come in and they will talk to residents of the facility who will then give them certain answers and they might say, well, as to whether the staff are available to deal with their concerns that then prompts further lines of inquiry about whether there is actually sufficient because it's - whilst in a general sense children of a particular age fall into a particular care need, clearly some children are going to need more care than that but in a general sense that's true - that's not true of an aged care facility because even at a particular age people don't fit into neat categories, depending entirely on what their - the reasons why they're at that facility, whether it's mental or physical or other.

PN457

JUSTICE ROSS: But there are different levels of facilities, aren't there, that cater for different ranges of needs?

PN458

MR MILES: Yes, indeed, and within those you would expect there to be different levels of staffing arrangements, depending on the extent of those needs. Some of them are facilities ranging from being quite independent people who have access to staff at that facility who are able to provide some assistance, whether it's in showering activities or daily living or having it through to ones who are in some sort of high-care arrangement. But the function of having a group of aged people who - whether it's a large or a small group, depending on the facilities, there's clearly ranges in that as well but then they are serviced by a group of staff. The personal care workers have access to more senior and experienced and qualified people.

PN459

It might be the registered nurse or an enrolled nurse or facility manager, et cetera, in the event that they see something that's troubling them. It's that level of assistance that is not there in a home care sense.

PN460

JUSTICE ROSS: I follow the argument about - it's a group working environment but is there any requirement to have a registered nurse?

PN461

MR MILES: I think that would depend on the facility rather than the nature of the - - -

PN462

JUSTICE ROSS: So if it's a high dependency facility there's a requirement for a registered nurse. What's the - - -

PN463

MR MILES: I would need - - -

PN464

JUSTICE ROSS: We can't find the legal framework that relates to any of this.

PN465

MR MILES: That's something I would need to take on notice and to respond to.

PN466

JUSTICE ROSS: All right.

PN467

MR MILES: In fact, your Honour, let me just make a note of that.

PN468

JUSTICE ROSS: Because I'm assuming there's a funding model in place, there's some form of licensing, and I just want to get a feel for where do I find out about all that?

PN469

COMMISSIONER LEE: It might be that the staffing requirements turn on the administration of pharmaceuticals and what level they are, whether they're - what schedule they are.

PN470

MR MILES: Yes, and it's also dependent on as I understand it the nature of those pharmaceuticals. So it's one thing for a personal care worker to be providing medications that are in what might be described as a blister pack where, you know, the medications that are to be taken - - -

PN471

JUSTICE ROSS: Yes, a Webster-pak. Yes.

PN472

MR MILES: - - - at 2 o'clock are in this pocket.

PN473

COMMISSIONER LEE: Yes, that's the reference to schedule - - -

PN474

MR MILES: As opposed to, you know, some scheduled drug that needs to be administered by a nurse or other qualified professional. And while there's quality standards around the provision of those medications they're quite different to the medical assessment that might be undertaken by a nurse or maybe in administering those, in administering different medications. So I think the point that I was trying to identify there was the extent of independence of the home care. It's not to say that they're completely without support. There's obviously, you know, other people they're able to turn to, but they need to be far more independent than in a group environment where there's others who are able to assist if required. I was asked specifically about the question of broken shifts and - - -

PN475

JUSTICE ROSS: Just the incidence, yes.

PN476

MR MILES: Yes. As best as we've been able to ascertain it's not particularly prevalent in residential care facilities and certainly not in a regular basis, but rather where broken shifts are worked on an informal basis to meet ad hoc arrangements rather than being of some sort of standing arrangement that you always work these particular shifts. At least as far as we've been able to ascertain, and that the consequence of that level of ad hoc nature and informality is that there's not a level of formality around the - certainly currently as we understand it in terms of the agreement.

PN477

It's not something that's set out in writing in the same way that a part‑timer's regular hours need to be done. And I've already touched on the concern that there may be a need for greater prevalence based on the consumer-centric quality standards which is part of the regulatory framework that I think we need to assist the Commission with. Unless I've skipped over anything I think they were the points that you'd asked me to respond to on.

PN478

JUSTICE ROSS: All right. Thank you, Mr Miles.

PN479

Mr Scott?

PN480

MR SCOTT: Thank you. Just a few preliminary matters before I dive into the submissions in respect of the claims. Earlier this morning in respect of the work value threshold issue that was raised I mentioned a decision in the Pastoral Award whereby there was some observation about the relevance of those work value principles where section 156(3) did not apply. I have a copy of the decision and I can provide the reference to it. I don't propose to take your Honours to it, but it's a decision of 24 December 2015. I'm surprised, your Honour, you don't recall because it dealt with the very fascinating issue of crutching rams and stags.

PN481

JUSTICE ROSS: Yes.

PN482

MR SCOTT: And the rates applicable to that work, and the relevant passage in that decision was between paragraphs 41 and 46 whereby the AWU were seeking to increase the rates. The submission put by the union was that it did not constitute a work value case and at 45 the Commission found that it did constitute a work value case, or section 156(3) was enlivened, and at paragraph 46 the Full Bench observed that:

PN483

For completeness we would observe that even if section 156(3) did not apply to the current claim that would not necessarily mean that work value considerations were irrelevant to our consideration of the claim. It would seem to us that such matters may well be relevant to the establishment of a safety net of fair minimum wages.

PN484

So that was the relevant decision that I referred to this morning. The citation is [2015] FWCFB 8810. In the United Voice's opening submissions there was some reference to the funding arrangements in this industry and the funding constraints and I'm conscious that my client has filed some material recently in the SCHADS Award proceedings that may well be relevant to that particular issue. There's two publications published by StewartBrown and I've had your associate print those in the break.

PN485

Now, they were filed earlier this week in relation to the SCHADS Award because there's financial data in respect of the home care stream which is dealt with by that award. But it occurred to me that the material was also relevant because it contains some financial data about the residential aged care industry. I appreciate it's late in the piece, and I've provided a copy to the union parties. They're seeing it for the first time, I understand. It's put forward on the basis that it appears to be relevant and, given the matters before this Commission, it would seem that it will assist the Commission in determining these matters.

PN486

I don't put it any higher than that and I wasn't intending to make submissions on it. But it may fall into the same category of the document that my friend, Mr Miles, referred to a moment ago and the same arrangements perhaps could be made for the union parties to - or, sorry, for my client firstly to file a short submission addressing the relevance of the document and then the union parties to have the opportunity as well within the timeframes that your Honour has already established for the document that Mr Miles has referred to.

PN487

JUSTICE ROSS: But it's not a capacity to pay case. I mean, that might be relevant to the implementation of any claim if granted but doesn't the granting of the claim depend on its merit, intrinsic merit?

PN488

MR SCOTT: Well, I certainly - - -

PN489

JUSTICE ROSS: Otherwise the obverse would apply, that if the industry was doing swimmingly then we could just grant anything.

PN490

MR SCOTT: Yes, and I certainly wouldn't cavil with that proposition.

PN491

JUSTICE ROSS: Yes.

PN492

MR SCOTT: That these claims should be dealt with on their merits.

PN493

JUSTICE ROSS: Yes.

PN494

MR SCOTT: In the context of doing that and considering the modern awards objective, section 134(1) factors, we say that there's obviously objectives there, or factors or considerations there going towards employment costs and the like. The claims or at least some of the claims advanced today are monetary claims in the sense that if granted they will impose a monetary cost on the employers. So we say that that's of course relevant under section 134. But in terms of the data around the financial performance of the sector I'm not sure whether it's a capacity to pay argument.

PN495

I don't think it is but what we'd say is the Commission in applying its statutory functions and considering the claims where there's a monetary impact, the circumstances in the industry are relevant. And so we've heard from Mr Bull this morning that there are funding constraints that are - and certainly my submission is that the industry is under significant structural reform and that there are financial stresses in the industry. It's a matter as to how much weight the Commission places on that consideration but we say that it is a relevant consideration, but it's certainly not a threshold issue.

PN496

JUSTICE ROSS: So you're proposing that you'll put a short document in saying what you want to derive from these by lunch time on this Friday, and then anyone else with an interest in commenting on what you say can do so by 4 pm next Wednesday?

PN497

MR SCOTT: That's what I'm proposing, if it pleases the Commission.

PN498

JUSTICE ROSS: And if there's liberty to apply in the event that more time is needed by any respondent or you raise an issue that might travel beyond what you've outlined?

PN499

MR SCOTT: I'm certainly content with that and it's certainly - the reason why it's being done today is that there was nothing in the union's materials going towards funding or funding constructs. So it didn't - so my clients dealt with the union claims as they were, as they were advanced. But it was only this morning in Mr Bull's opening where the funding issues were raised that it occurred to me that this would seem to be a relevant document for the Commission's consideration, and it's a matter for the Commission as to determine what weight, whether it's relevant. It seems to be relevant. It's just a question of weight, and happy to put in a short document outlining what we say are the findings or the facts that can be derived from the document. If I just - - -

PN500

JUSTICE ROSS: There's another document, a judgment of Bradd J. What's the significance of that?

PN501

MR SCOTT: Yes, so it's relevant to the classification claim and so I was proposing to take your Honours to it, and I'm happy to deal with it now but it may be more convenient I think, certainly for me, to deal with it when turning to the classification claim.

PN502

JUSTICE ROSS: Sure. That's fine, yes.

PN503

MR SCOTT: But it relates to holding versus required to hold a qualification.

PN504

JUSTICE ROSS: Yes. Yes.

PN505

MR SCOTT: Just in terms of the background documents and the background papers that were published by the Commission, we have no issue with any of the material there. So it seems to be uncontroversial and we don't wish to comment any further on those materials. So I turn to firstly the unions' claims for the mobile phone allowance. What I propose to do is just make some high level submissions in terms of summarising the submissions that my clients have put in writing and then turning to some of the matters that have been raised today and responding to those.

PN506

What we say about the mobile phone allowance claim is that it's an ambit claim. It's a claim firstly to introduce an allowance into an award which previously has not existed, so it's a new claim in that sense. But I say it's an ambit claim because there's been no attempt to confine or seek to confine the operation or the application of the allowance to any reasonable extent. There's been no attempt to condition it or qualify it to work related expenses. On its face it requires employers to reimburse or pay the purchase cost of a mobile phone and to pay all subsequent charges and costs in relation to the use of that mobile phone regardless of what proportion of use or cost relates to work versus personal use.

PN507

The ambit nature of the claim is then compounded by the fact that there's just no probative or relevant evidence on foot that would support the claim being granted. In terms of the issues I think it can be said that there's a range of problems and a range of issues with the proposed variation. Many of those have already been ventilated today and many of those are contained in our written submission. But in summary form the first issue is that the obligation to provide mobile phone or refund the cost of purchase, there doesn't seem to be any exemption for where an employee already owns a phone.

PN508

So it provides a mechanism whereby an employee can say 'Well, you require me to use a mobile phone. I'll have a second mobile phone'. The second issue is that there's nothing to prevent the employee from seeking reimbursement of the purchase cost - and Mr Bull mentioned this and certainly I accept that it wasn't the intent, but there's nothing to prevent reimbursement of something that was purchased years before employment commenced provided that there's a receipt. There's no limitation on the costs which are required to be borne by the employer, so there's been no attempt as I said to condition it to reasonable work related costs.

PN509

There's a range of other issues which are in our written submissions and your Honour quite rightly raised the issue of what if the employee leaves in the first or second week after being given a thousand dollar phone. One of the real fundamental issues with the proposal is that the idea of a mobile phone allowance is inherently problematic when compared to other allowances because the material that's been filed demonstrates the difficulty of trying to apportion the costs. And so the material that was filed on Monday by the United Voice, which I'll describe it as the Choice material, the Choice material demonstrates of itself that the cost of a handset can vary from $129 to up to a thousand dollars and presumably above a thousand dollars because that document is only talking about phones that are up to a thousand dollars or less than a thousand dollars.

PN510

So there's this wildly varying range of potential upfront costs. The clause doesn't provide any control or managerial prerogative despite what my friend has said this morning. There is no managerial prerogative for an employer to say to an employee 'You have to go and purchase this phone' and Mr Bull suggested that it could be dealt with by way of workplace policy. I don't know how that fits within a scheme of the modern award, because of course policies are going to be read subject to an award provision.

PN511

The third document that was filed which is titled 'How to Find the Best Value Mobile Phone Plan' - so I just dealt with the upfront purchase costs. In terms of the ongoing costs this document again demonstrates there's a huge degree of complexity in terms of the arrangements when someone buys a phone, and I don't profess to be an expert other than the fact that I have a plan and I pay it. But there's a range of various different ways in which you can have a phone and you can pay for a mobile phone. So you can have a plan, you can be prepaid. The article itself says:

PN512

This will help you work your way through the maze of mobile phone plans to make sure you choose one that gets the best value.

PN513

So over the page it talks about you can have a minimum monthly service charge, you can have limits on the number of calls, texts and data. A plan can include the cost of a handset or it might not. It can have infinite talk and text. It can have unlimited capped plans and the document goes on, and I'm sure most of us or all of us here will have a mobile phone, we'll all have plans. We all understand that plans are different, and so the difficulty with dealing with this particular issue by way of an allowance is that even if the Commission was minded to confine the claim to something that reflected the work related costs and a reimbursement for a work related cost, how do you do that?

PN514

If someone has a $99 plan and it's 2 Gig of data and unlimited calls and the employee makes 10 phone calls that month, how do you apportion the cost? And just to draw a distinction between this particular issue and something like the motor vehicle allowances in modern awards, there's some science behind motor vehicle allowances. There's ATO guides, there's models for reimbursement of fixed and running costs of a motor vehicle based on engine capacity, the price of fuel et cetera. You get to a number of 78 cents per kilometre which reflects the reasonable cost of maintaining and using a motor vehicle.

PN515

The same type of mechanism cannot be done here, in my submission. Sorry to jump back and forth. I just have a large folder that I need and then don't need. Can I take you to the background paper that was issued which has the range of mobile phone allowances as an attachment. So it's the background document of 5 April published by the Commission, and very helpfully at attachment A the background paper sets out the various awards for which a mobile phone or a telephone allowance is - the awards that contain one.

PN516

Now there's 17 awards that are listed there. When you take out the state public sector instruments and the enterprise awards you're down to 13. So the first observation that I'd like to make here is that contrary to the submission that was put this morning that many awards have these types of provisions - well, you can argue about what many is but, in my respectful submission, 13 awards of 122, the submission that I'm putting is that these provisions or these allowances or entitlements are very uncommon in the modern award system.

PN517

If you then turn to the particular awards that contain an allowance, there's a few things that can be drawn from the list and there's a few different categories of awards. So the first two relate to air pilots and aircraft cabin crew. The first award talks about where an employee requires a pilot to have a telephone at their residence. The next one talks about an employee requiring a regional cabin crew member to have a telephone. So we say that in respect to those first two categories, quite clearly directed at a very specific set of people; pilots who are perhaps not working, if a pilot calls in sick presumably they want to get in touch with a pilot pretty quickly to come and fly the plane. Equally with cabin crew members.

PN518

Number 4, the Animal Care and Veterinary Services Award only applies to veterinary surgeons, so again very specific in terms of the people it captures. Items 5, 8 and 15, they're the Contract Call Centres Award, the Market and Social Research Award and the Telecommunications Award, we say well in respect of the Contract Call Centres Award, the very core of that job and the very core of that industry is phoning people and speaking to people on the phone. As is the case with the Market and Social Research Award, and presumably there is industry specific reasons why the Telecommunications Services Award has a telephone allowance in it, because their employers own the network presumably.

PN519

In respect - there's a few awards which are in the kind of port, stevedoring, marine towage area. They're quite specific when you actually consider the terms, so item 7 the Marine Towage Award talks about an employee who's required by their employer to telephone for orders and I don't necessarily know what that means but it seems quite specific to marine towage. Equally item 11, Ports, Harbours and Enclosed Vessels Award talks about an employee required by their employer to telephone for orders, or an off duty employee required to ring for orders. The Stevedoring Industry Award, again talks about to telephone for allocation. So they're quite peculiar, specific entitlements that are relevant to that particular industry.

PN520

The bulk of the remaining awards - so that's the health professionals, social community services et cetera, when you consider those they're limited to circumstances where an employee is on call. So it's notable here, the Aged Care Award doesn't have any provisions dealing with on call, it doesn't have an on call allowance, so again they need to be viewed in that context. I note the United Voice or the union's claim in this respect sets out categories of circumstance and it's - on call is one, but it's broader than that and talks about just generally the performance of your duties.

PN521

The only one that really stands out and I'm not surprised that Mr Bull latched onto this one, is the Real Estate Industry Award. Now that's at item 12. It's quite clearly a more sophisticated clause than all of the others. It's a more recent provision but it's relevant to note that this provision came about in January 2018 as part of the four yearly review. So there's a decision of Hatcher VP, Asbury DP and Gregory C in January 2018, whereby - which led to the implementation of this particular provision and - - -

PN522

JUSTICE ROSS: Do you have the reference for that?

PN523

MR SCOTT: I do and I can hand a copy up if it helps.

PN524

JUSTICE ROSS: Yes, thank you.

PN525

MR SCOTT: So it's [2018] FWCFB 354, and the relevant part of the decision which deals with this particular variation is paragraph 29. This provision was part of an agreement between the parties. At paragraph 29, which is on page 8, it indicates that:

PN526

The parties have discussed those provisions further and have agreed to their inclusion in the REI Award subject to some minor modifications.

PN527

It lists a range of things and there is a motorcycle and mobile telephone allowance which is listed about halfway down paragraph 29. My understanding is that the Commission then went on to ratify those agreed variations. Again, in my submission each of the 13 or 17 award provisions in the attachment tabled to the background document can be distinguished, either by reason of the specific industry in which they operate, the specific class of employees to whom they capture, the specific circumstances of the work being on call, or they've been made by way of an agreement between the relevant parties. Of course the Commission and a Full Bench of the Commission has ratified that agreement, but in these circumstances we have a contested claim and so we say that the incidents of these types of provisions need to be viewed in that light.

PN528

So in respect of the mobile telephone allowance claim we say that a merit basis has not been made out. There's no real mischief or problem that's been properly identified, there's no evidence of employees being forced to go out and buy mobile phones. There's no evidence of a cost there. The evidence is the cost can vary widely depending on which phone and which plan is entered into. The claim goes well beyond what's necessary and as currently drafted certainly it offends section 138, but to the extent that it doesn't offend section 138, my clients can't see how you can get around the fact that how do you apportion costs given the arrangements that are in the market at the moment.

PN529

Unless there's any questions in respect of that claim, if I can turn to the classification claim. At the outset can I just indicate that my client's view is that this variation or the propose variation is based on a misconstruction of the award and of the relevant passage of the award, and if you just bear with me and I'll get the relevant part of the award and I can turn to that.

PN530

The submission that's put and was put this morning was that at B4 of the award, which deals with the classification for an aged care level - aged care employee level 4. The words in the case of a personal care worker "is required to hold a relevant certificate III". The proposition that was put is that the words "is required" effectively provides employers with a discretion to - well to decide whether or not they will require that certificate. So in other words they have managerial prerogative to say for this employee we will require it but for this one we won't.

PN531

We say that's not the proper interpretation of the classification structure. We say that the words "is required" does not mean whether or not the employer requires it. We say that a proper construction is whether the nature of the role and the duties requires the qualification. Because the classifications are all about the nature of the work, the duties that are being undertaken and so when read properly in that context, the phrase there is talking about whether or not the nature of the work requires the qualification.

PN532

JUSTICE ROSS: Doesn't that rather suggest that E3.5 might be a better formulation?

PN533

MR SCOTT: Well given what I've just said, I accept that there may well be a good argument that there's some ambiguity here as to what exactly that classification or that passage is talking about. E3.5 of the SCHADS Award was only raised for the first time today. I've had a quick look at it but I'm not necessarily in a position to give a fulsome submission or view as to the appropriateness of that. What I can say is that based on a quick review of it, it's very different the way it's all set out, not just E3.5 but the entire classification structure. It talks about the wording, it uses the phrase "indicative". My clients don't necessarily have any huge objection to that type of language.

PN534

What I can say is - and again I'm sorry you'll have to just bear with me while I find the relevant document. We hadn't looked at the SCHADS Award classifications in any real detail but we did have a quick look at just some of the other classification structures in some of the other awards more broadly. The reason we did that was we wanted to get a sense as to whether there was any consistency across the classification structure in terms of how the classification structure talks about whether if the employee holds the qualification, whether they're required to hold it et cetera. We haven't looked at all of the modern awards but certainly looking at a sample, there doesn't seem to be any real consistency in the way in which the awards deal with this issue, and if I can just give you a few examples.

PN535

The General Retail Industry Award at B4.3 talks about an employee who's completed an appropriate trades course or holds an appropriate Certificate III and:

PN536

Is required to use their qualifications in the course of their work.

PN537

We say that's an appropriate form of words in a classification structure. It's not appropriate that the test be whether or not you hold something, you know hold some formal qualification. The test needs to be whether you hold it and you use it and you're required to use it in the course of your work, in performing your duties.

PN538

So the General Retail Industry Award has that form of words. The Telecommunications Award has the same type of language. Some of the airline awards, the Airline Operation Ground Staff Award talks about:

PN539

A qualification so as to enable the employee to perform work within the scope of this level.

PN540

So there's different formulations there which we say are appropriate. Why we say the union's proposed variation is not appropriate is that it hinges everything on whether or not you hold a certificate, and that should not be the relevant test. The relevant and the fair and relevant test should be what you do, the nature of the work, the nature of the duties, the complexity of the work and whether or not in order to perform the work that you've been employed to do, you're required to use that qualification.

PN541

If I can take you to the Amusement Award, which obviously is not a similar or comparable industry but it feeds into the decision that I handed up relating to Pet Porpoise Pool. There's a classification - the Grade 8 of the Amusement Award is framed as being an employee at this level is an employee:

PN542

Who possess qualifications or experience such as advanced engineering or technical skills.

PN543

This is comparable we say to the union's - sorry the United Voice claim where it talks about "Do you hold a qualification?". So the decision of United Voice v Pet Porpoise Pool, it's a local court decision of 2013. It was in the context of an underpayment claim. The relevant parts of that decision - I understand Your Honours have a copy. The relevant passage starts at paragraph 18 and at 18 it sets out what I was just reading which is Grade 8 of the classification structure, and you can see there it refers to an employee who possesses qualifications. There's a range of all propositions there, so you can be one or the other or the other.

PN544

At paragraph 20 it sets out the United Voice contention which is effectively that the employee possess the qualifications, such as advanced engineering and therefore was classified as a Grade 8. The employer's contentions are set out at paragraph 21 and 22 and the contentions seem to be that in this particular award the intent of the classification structure was it was progressive and in order to be a Grade 6 you had to meet 1, 2, 3, 4, 5 and 6. In this case the employer has classified the employee as a level 4 based on the nature of the work that the employee was required to perform.

PN545

The local court in this case and the relevant part is 23 and 24. In essence at 23 the local court found that the person held a qualification, it fell within Grade 8, so the employee was a Grade 8 employee. Really, in my respectful submission, did not seem to give any real consideration to the actual work that the employee was performing. So we say that decision is an example of the problem if the United Voice proposal was put into the award, which is that you then have this system which is hinged on do you hold a qualification? Okay, you're a Grade X.

PN546

In response to some of the matters raised this morning, firstly the suggestion was that the proposal was to clarify an ambiguity. We reject that, we say it's not about clarifying an ambiguity, it's a substantive change to the way in which the structure works. There was a suggestion that it would only impact employees at level 3 and we reject that as well. I think it's quite clearly open that level 2 employees and level 3 employees, if they were to go and get a particular qualification, would automatically become a level 4 employee.

PN547

There was an acknowledgement this morning from my friend from United Voice that the classifications should effectively be linked to duties, and that's in a nutshell where our submission is in respect of this. It should be linked to the duties being undertaken rather than the qualifications.

PN548

In respect of the SCHADS Award classifications, as I said earlier I'm not sure that I'm in a position to provide a fulsome response but - - -

PN549

JUSTICE ROSS: Perhaps you can do that on the timeframe you've already indicated and if there's any reply that can be given next week in accordance with the timetable as well.

PN550

MR SCOTT: Yes, if the Commission pleases.

PN551

JUSTICE ROSS: Because it does seem like on your construction of the current provision there's a degree of ambiguity in the way it's currently framed.

PN552

MR SCOTT: Yes, I accept that. I think just in terms of summing up that particular claim, it's clear that if the claim was to succeed there would be a significant costing position on employers, whereby level 2, level 3 employees will suddenly come forward with the certificate, notwithstanding that the work they're doing is not at a Grade 4 level. One thing that hasn't been - - -

PN553

JUSTICE ROSS: Well I suppose - well we don't really know the cost is the short point - - -

PN554

MR SCOTT: That's right.

PN555

JUSTICE ROSS: - - - because we may know based on this other material how many people in the sector have a Certificate III but we don't know at which level they're currently classified.

PN556

MR SCOTT: That's right, so the costs cannot be quantified. One thing I'm not sure has been mentioned - - -

PN557

JUSTICE ROSS: It's reasonable to assume - well on Mr Bull's submission that they would not be insignificant because he says there are loads of people who currently have a Certificate III who are not classified at that level.

PN558

MR SCOTT: Yes. Regrettably, and this is no criticism of any party but there's just no evidence on foot about it, so it's difficult to make any clear findings. The only other thing I'd note is that within the classification structure of the Aged Care Award, from level 2 to level 7 - sorry if you have a look at the indicative tasks at level 2, for example, one of the indicative tasks is personal care worker Grade 1, and so what the classification structure has is that within each of the levels, there's separate grades of personal care worker. So for example, personal care worker Grade 1, there's an indicative task or duty for a level 2. Level 3 has a personal care worker Grade 2. Level 4 has a personal care worker Grade 2 and so on.

PN559

The existing award contemplates that personal care workers can fall across a range of levels and so indeed there will be personal care workers level 1 and 2, who will be under the current level 4. I say that because it's indicative or it's evidence for the fact that there will be personal care workers who do quite basic personal care, who won't be at that level 4, so if they go off and get a Certificate III, suddenly you're paying a much higher rate for work that is not of that nature.

PN560

If I then turn to the HSU claims and I'll do it firstly with the broken shifts provision - sorry broken shifts claim. Again with this, there seems to be an apparent disagreement on the construction of the provision, and I say that because my friend for the HSU cavilled with one aspect of our reply submission, and the relevant part of it is 4.14 to 4.16. This was picked up because in the HSU submission one of the grounds relied upon in support of a variation was that it clarifies an ambiguity and it gives effect to what was intended, in essence. In our reply submissions, from 4.14 onwards, we say there is no merit to the suggestion that the HSU claim will make the award simpler. Quite to the contrary. To the extent that there is any ambiguity, it should be clarified to make it clear that the intent is that the minimum engagement provisions apply to the entire broken shift rather than to portions of it.

PN561

In support of that proposition, at 4.15 we refer to the decision of the AIRC which is [2010] FWAFB 2026. That decision talked about a claim - I think it was by aged care employees in Western Australia to insert a particular transitional provision into the award and the claim was declined. We weren't raising that in respect of the merits of the argument. We were raising that in support of the proper construction of the award.

PN562

We say the award position at the moment is that the minimum engagement provisions do not apply to each portion of the broken shift, so to the extent that the HSU is advancing some different construction, we reject that. That particular passage and those paragraphs of the submission weren't going to the merits of the claim.

PN563

I will deal with the other two issues or grounds that were raised by the HSU in support of the claims. The first one was there is an ambiguity and you should vary it in this way, and I've dealt with that saying that that construction is not correct. The second is they raise, in effect, a disutility argument and what we say there is, well, we reject the extent of the disutility that they're alleging. The reality is there is just no evidence before this Commission.

PN564

This Commission is being asked to change the minimum engagements for broken shifts based on some assertion that the current arrangements do not properly compensate employees. It's nothing more than a submission. There is no evidence on foot and what hasn't been raised is the fact that the broken shifts provision includes a shift loading be paid where a broken shift is worked. We say that the current award operates reasonably and the suggestion that there needs to be more compensation or that it doesn't operate appropriately should be rejected, given the absence of any evidence to that extent.

PN565

JUSTICE ROSS: Where is the provision of the shift penalty for working a broken shift?

PN566

MR SCOTT: It's at 22.8(c).

PN567

JUSTICE ROSS: Yes.

PN568

MR SCOTT: 22.8(c) says:

PN569

Payment for a broken shift will be at the ordinary pay with penalty rates and shift allowances, with shift allowances being determined by the commencing time of the broken shift.

PN570

JUSTICE ROSS: Yes, but you don't necessarily - it depends when the broken shift is worked as to whether you get an allowance.

PN571

MR SCOTT: That's right.

PN572

JUSTICE ROSS: There are other broken shift provisions in a number of other awards where you get a premium for the mere fact that you've worked a broken shift, irrespective of when it's worked.

PN573

MR SCOTT: That may be the case. I'm not aware of those awards. The award that I am aware of is the SCHADS Award which has a similar provision, except save that it's a loading based on the finishing time of the shift; but neither the SCHADS Award nor this award has a loading that your Honour is referencing, which is a loading regardless of when the shift is worked that you get some broken shift loading. I wasn't putting that as a proposition.

PN574

JUSTICE ROSS: All right.

PN575

MR SCOTT: I was merely saying that it may trigger a shift loading.

PN576

JUSTICE ROSS: Depending on - - -

PN577

MR SCOTT: The starting time.

PN578

JUSTICE ROSS: Right.

PN579

MR SCOTT: Where an employee is working a broken shift, they are effectively treated as a shift worker.

PN580

JUSTICE ROSS: How does that work? If you go to clause 26, bearing in mind 26.1, the second sentence:

PN581

Provided that employees who work less than 38 hours a week -

PN582

which presumably will be people who work broken shifts because they're casuals or part‑time -

PN583

will only be entitled to the additional rates where their shifts commence prior to 6 am or finish after 6 pm.

PN584

Under this, if you're a part‑timer and you're not commencing - bearing in mind it's based on commencement time with a broken shift - you would have to commence before 6 am before you got anything.

PN585

MR SCOTT: That may be the case. When I say I wasn't aware of that, the way in which that operated, I hadn't turned my mind to the fact that there is this limitation on the operation of the shift allowances depending on whether you work less than 38 hours a week. I'm not sure what the rationale is for that, quite frankly.

PN586

JUSTICE ROSS: No.

PN587

MR SCOTT: Just lastly in relation to this broken shifts claim, there is again an assertion that the claim is necessary to avoid exploitation. That's quite a prejudicial submission. It's unsupported by the evidence, so unless there is evidence to support it, we say that the Commission should not be moved by that submission and should reject it. Mr Miles has taken you to a number of existing safeguards regarding broken shifts. They can only be worked by agreement; they can only be worked by casual and part‑time employees and so on.

PN588

JUSTICE ROSS: Presumably they can only be worked during ordinary hours; within the span of hours.

PN589

MR SCOTT: Yes. 22.8(a) requires that a broken shift be over a span of no more than 12 hours.

PN590

JUSTICE ROSS: Well, how does it work with 22.2?

PN591

MR SCOTT: I would apprehend that there's nothing explicit at 22.8 that says broken shifts must only be worked during ordinary hours.

PN592

JUSTICE ROSS: So by individual agreement they can avoid the span of hours provision in 22.2 and the minimum engagement provisions relating to part‑timers and casuals?

PN593

MR SCOTT: I'm not aware that that can be done by individual agreement.

PN594

JUSTICE ROSS: But isn't that what a broken shift might do?

PN595

COMMISSIONER LEE: By entering into an individual agreement to work a broken shift.

PN596

MR SCOTT: Well, my understanding of the requirement that an employee agree to a broken shift is that unless the employee agrees, then they can't be rostered - can't be engaged to work a broken shift.

PN597

JUSTICE ROSS: Yes. So by individual agreement they can work a broken shift.

PN598

MR SCOTT: Yes.

PN599

JUSTICE ROSS: And a broken shift can be worked outside the span of hours.

PN600

MR SCOTT: Yes, and I think - - -

PN601

JUSTICE ROSS: And is not subject to the minimum engagement period in respect of both parts of the broken shift. You say it's subject to it overall.

PN602

MR SCOTT: That's right.

PN603

JUSTICE ROSS: But not in respect of the individual parts.

PN604

MR SCOTT: That's right. It would seem to be the case that by agreement a broken shift can be worked. The broken shift will be subject to one minimum engagement. As to the question of whether a broken shift can be worked outside of ordinary hours, I can't see anything in 22.8 that prevents a broken shift being worked outside of ordinary hours, but I would imagine - subject to having a look at the other provisions - that if the work is performed outside of ordinary hours, that it would trigger some overtime or penalty rate.

PN605

I may need to take the question on notice or deal with the issue once I've properly had a look at it, because I must admit I didn't realise the shift loading issue was operating in the way that it does. 25.1 deals with overtime rates, for part‑time and casual employees at 25.1(b). I can't see anything there that says work performed outside the span attracts overtime, so I'm not sure, that may be elsewhere in the award.

PN606

JUSTICE ROSS: It appears - the span is defined in 22.2 and the - 25.1 - - -

PN607

MR SCOTT: I must say, I mean most modern awards will have a span of hours - - -

PN608

JUSTICE ROSS: Yes and - yes.

PN609

MR SCOTT: - - - whereby working outside the span it attracts some form of premium.

PN610

JUSTICE ROSS: Yes.

PN611

MR SCOTT: I had assumed this award to operate in that way. I'm not sure whether it does or not.

PN612

JUSTICE ROSS: It talks about rostered work done in addition to their rostered ordinary hours and the ordinary hours are hours to be worked between 6 am and 6 pm. So maybe that's how you get there.

PN613

MR SCOTT: And 25.1(b)(iii) has the usual provision for part‑time employees, which is all time worked in excess of their roster hours and maybe that's what your Honour was referring to. So it may be that if I could have an opportunity to have a proper look at the relevant provisions of the award.

PN614

JUSTICE ROSS: Sure.

PN615

MR SCOTT: We might be able to shed some light on it.

PN616

JUSTICE ROSS: Well, if there's not a penalty applicable for working outside the span, why have a span?

PN617

MR SCOTT: That's a great question.

PN618

JUSTICE ROSS: So you must have to give it some work to do. I suppose, yes, you can add that to the list, Mr Scott, and we'll see what everyone else wants to say about it.

PN619

MR SCOTT: Yes, I'll do that, your Honour. If I can move to the HSU claim relating to the casual loading. I think the issues have been largely ventilated today.

PN620

JUSTICE ROSS: Yes.

PN621

MR SCOTT: In our reply submissions we refer to the Full Bench decision from 2010 which we say properly considered the fair and relevant rate of pay for casuals performing work on weekends. They expressly said that at paragraph 59 of that decision which is extracted in our written submissions.

PN622

JUSTICE ROSS: Sorry, what was the paragraph?

PN623

MR SCOTT: Fifty nine and it's the Full Bench decision of [2010] FWAFB 2026. I have copies if your Honour doesn't - - -

PN624

JUSTICE ROSS: No, that's fine, I've got a copy. Thank you.

PN625

MR SCOTT: At paragraph 59 the Full Bench considered the issue and said:

PN626

Having regard to the regulation in this area in particular the incidence of some form of penalty payment to casuals for weekend work, we think the LHMU has made out a strong case for change. Nevertheless the position under the relevant award-based transitional instruments is by no means uniform. In particular we note that in many of those instruments the casual loading is lower than the loading in the modern award. In the circumstances we consider that it would be fair to adopt the LHMU's alternate position and make provision for casual employees to receive the relevant weekend penalty rates in substitution for the casual loading.

PN627

So we say the matter was considered and expressly in that passage the Full Bench indicated their view that it would be fair to implement that particular formulation. We say that there's nothing that's been put forward to depart from that Full Bench decision. The only thing that seems to have been put forward to depart from that is this idea of the default approach that comes from the Productivity Commission and it was considered in the penalty rates decision.

PN628

The submission in effect seems to be the HSU didn't consider or didn't deal with or didn't contain within their submissions any reference to the 2010 Full Bench decision because they say it's of no relevance. However they say the penalty rates decision was more recent and therefore is somehow more relevant and that to the extent that there's two competing Full Bench decisions the penalty rates decision should prevail. And it's quite clear that the 2010 decision was dealing squarely with this issue.

PN629

The penalty rates decision was looking at a number of awards in the context of those awards, had before it a range of evidence and submissions. It was a very detailed case as your Honours would be aware, and this idea of the Productivity Commission default approach, now the Productivity Commission called it a default approach. That's not to say that it is the default or the prevailing view across - or the prevailing position across the modern award system. It's been called default for whatever reason, and I think there's some force to it.

PN630

The Productivity Commission has said 'This maintains relativities'. But it's not default in the sense that that's how the majority of modern awards are structured, and so we say that it's of course relevant but the position in this award - the position in this industry needs to be considered in the context of the industry, the history of the pre-reform regulation et cetera. And just lastly, although I indicated this morning that section 156(3) doesn't apply to this particular claim, again we press the point that it is of some relevance.

PN631

The idea that this Commission should be asked to - in effect the claim is to increase by 25 per cent the rate of pay for casuals on weekends and public holidays, and it's been put forward with no evidence, merely on the basis that 'Oh, it accords with the default approach that the Productivity Commission have said something about and it accords with the way in which this Commission in other industry awards have adopted the position'. We say that's not a proper basis to effectively increase the rates of casuals by 25 per cent on the weekend. A proper case needs to be made out. The value of the work does need to be considered. It hasn't been advanced in that manner and so we say that claim should be dismissed. Unless there's any questions?

PN632

JUSTICE ROSS: Thank you.

PN633

MR SCOTT: If it pleases.

PN634

JUSTICE ROSS: Ms Lo?

PN635

MS LO: Your Honours, Commissioner. AFEI relies on its written submissions in reply dated 22 March 2019 and we have nothing further to add to what has already been raised by the employer parties. Thank you.

PN636

JUSTICE ROSS: All right. Thank you. Anything in response?

PN637

MR BULL: Just a few matters. I'll try and be brief. Sorry for sitting, it's easier when I'm referring to documents to sit. Just in relation to this argument about I call it the disaggregation of the loadings, and Mr President and Commissioner, you sat through the entire process. I have sat through some of it. But my characterisation of the comment about the discussion that the Productivity Commission's default approach and so forth wasn't something which was traversed in any detail in the evidence. It was a matter which arose in the decision, which the Commission is entitled to do that, but it wasn't a matter of contest.

PN638

That particular case was about applications to reduce penalty rates and it was also a case concerning not just the hospitality sector but also the retail sector. So an attempt to sort of quarantine whatever principle can be extracted from that case to a particular sector is inappropriate and inconsistent in the manner in which that particular five member Full Bench produced that principle. The only comment I'd make is that when something is the default approach it means that it's the approach adopted unless a good reason or a reason of substance is provided to depart from the default approach.

PN639

I would say that our opponents have not provided any reason. They've just said 'Don't do it'. That's not a reason to depart from what is a default approach, and the general principle is the idea that the casual loading compensates for the lack of NES entitlements. A penalty in relation to Saturday work compensates for the disutility associated with working on the weekend. So I think there's a mischaracterisation. It's legitimate for us to put to you that it's appropriate to apply that principle in relation to this award because it's articulated as a default approach, and there really hasn't been a good reason why there should be a departure from it.

PN640

Now, in relation to what I said about funding, I should perhaps clarify I wasn't talking about money, I was talking about the structure in which the money is delivered, which may appear like a fine distinction but it's a distinction of some significance. And it's obviously a difficult thing to do in relation to setting industrial instruments and there's a fiction(?) in which you can't guarantee, especially in sectors like this which are heavily reliant on government funding. Funding will vary according to budgets and so forth and if the instrument is going to be in an Act to endure for some time it's impossible to set the instrument according to what is current funding.

PN641

What I was suggesting is the manner in which the funding is delivered, which is this consumer directive care is relevant to consideration of this review. So I wasn't saying it's about the dollars. It's about the structure in which the dollars are now delivered. And you can't make any judgments because you can't predict in a government funded area, what the future budget will be. And in relation to dollars, the difference between the level 3 and the level 5, I think, is $9.80 per week.

PN642

Every claim until it's accepted in this process, can be given the pejorative term, "ambit" because all participants come here wanting something which they may not get. You could solve, in many respects, the problem raised by simply adding the words, "as agreed," in relation to the second sub-section, in relation to our draft. And I've never sought to present our draft as necessarily perfect. So you could, for example, just talk about the refund and the costs of purchase, and so forth, and the subsequent charges on production of receipted accounts, as agreed. That would provide greater control.

PN643

If you look at what is the commonest form of these allowances in modern awards, which talk about installation of landlines, they are in a similar sense, uncapped. And they're not doubt structured when there was greater regulation and constellation of phones and so forth. So when you have installation there was a relatively finite cost. Thirteen awards with telephone allowances is, I think, legitimately many. I think an honest appraisal of the selection is that there is no general consistency and there's a number on the healthcare care sector which appear anomalous when you look at this particular award.

PN644

In relation to the classification claim that is required I think the only person who can require something is the employer. So we would obviously, if you're not attracted by the drafting, what is in the SCHADS Award would be preferable to what is the current award.

PN645

JUSTICE ROSS: In views on what Mr Scott raised about the wording in the Retail Award, to the effect of, used in the course of their work?

PN646

MR BULL: There is 123 modern awards. Those are the words in that particular award. What I was going to draw your attention to is if you look at, for example, a cook in the Aged Care Award, a cook seems to be – that's a classification where there is this hard progression from level 3 to level 4. So if you're a cook without trade qualifications you're at level 3. If you have trade qualifications you're at level 4. And in a practical sense they're doing identical jobs. And the level 3 may be because of skill and interest in being a cook, better than the level 4 cook, but under the Aged Care Award if you're a cook and you get a trade qualification you become a level 4. We are unashamedly pushing a position which is, we believe it's desirable and consistent with the Modern Award's objective for an personal care worker with a certificate III qualification to be classified at the level 4 grade within this award. And there's various other reasons, the relativity's arguments, and so forth, that we've outlined in our submission which I won't reagitate.

PN647

Those are the brief matters that I thought I could usefully raise now in reply and unless there's any further questions I don't propose to say any more.

PN648

JUSTICE ROSS: All right, thank you. Ms Liebhaber, do you want to say anything?

PN649

MS LIEBHABER: Just to make a quick point about broken shifts. Again, just in response, we're not necessarily saying that the broken shift is widely used but that doesn't mean that the clause shouldn't be looked and reviewed if necessary, and we say that it should. And the point around the safeguards that are currently in the award, we say aren't sufficient. While there is the provision for that agreement needs to be made between the employer and the employee, we think there's still a requirement that it's still necessary to have the minimum engagement provision as a necessary minimum in that clause to protect against exploitation.

PN650

As we discussed, the majority of employees in the sector are part-time. The reasons why employees will agree to working shifts that can be – employees can be pressured and that provision around agreement doesn't take that into account. So we still think that's important. Apart from that, that's all I have to say.

PN651

JUSTICE ROSS: All right, thank you. We will await the filing of the written material. You're about to get to your feet, Mr Miles? Is there something you want to – no? All right.

PN652

MR MILES: No, I just had to - - -

PN653

JUSTICE ROSS: Just stretching? We'll await the further material in line with the directions we have made as to the timeframe and then we'll make a decision based on all of the material. Thank you, we'll adjourn.

ADJOURNED INDEFINITELY [3.28 PM]