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Fair Work Act 2009                                       1057690






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


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




9.38 AM, WEDNESDAY, 11 MARCH 2020


DEPUTY PRESIDENT CLANCY:  Thank you.  I'll just mention that the President is unable to sit with us this morning.  We have had some discussions with him this morning and the parties can be assured that he will be across the material that's being filed this morning, in due course.  So I'll just start by taking appearances, please.


MS E DOUST:  Yes, thank you.  I appear for the HSU in the matters.  With me is Ms Liebhaber, initial R.




MS DOUST:  Thank you.


MR M ROBSON:  Thank you, sir.  Robson, initial M, for the ASU.




MR S BULL:  If the Commission pleases, my name is Bull, initial S.  I appear for the United Workers Union.




MR BULL:  Thank you.


MR K SCOTT:  If the Commission pleases, Scott, initial K, appearing for ABI, and New South Wales Business Chamber, Aged and Community Services Australia, and Leading Aged Services Australia.




MR B FERGUSON:  If the Commission pleases, my name is Ferguson, initial B, for the Australian Industry Group.  With me at the Bar table is Ms Bhatt, initial R.


DEPUTY PRESIDENT CLANCY:  Thank you, Mr Ferguson.  Yes.


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




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


DEPUTY PRESIDENT CLANCY:  Thank you, Ms Lo.  Now, the parties have helpfully provided the Bench with their written responses to the questions raised in background paper 2 and 3 that were highlighted in the most recent statement by the Full Bench.  What we thought we would do is - perhaps you will appreciate we haven't had the opportunity to read through them in their complete form before we've commenced today, so what we'll ask, we'll start with the union parties for each of the representatives to cover off any points they want to highlight amongst those written answers and take it from there.  And we've got some specific questions that we want to address but we'll come to those after going through those, noting that the union paper is a joint one.  I'm not sure how you want to - or if there's any way you want to do that.


MS DOUST:  Yes.  Thank you, members of the Bench.  Can I just indicate this.  I don't propose to address the Bench orally other than in response to any questions that arise from the submissions that have already been made and from our response to the background paper this morning.  There's one matter that's outstanding and that is that the first question to the background paper, or the first question in background paper 3, you might recall asked the parties to indicate whether or not the schedule at attachment 1 of that background paper required any additions or corrections, and that was a schedule of the parts of evidence that were relied upon by the parties in respect of each of their claims.  In that schedule there are some parts where the HSU evidence, or it's not identified in the schedule that the HSU relies upon certain witness statements and we're working currently on our document to supplement attachment 1 to make it clear where there are statements or passages of transcript and the like that the HSU relies upon in respect of its particular claims.


We apprehend that it's principally been covered already by reference to other unions in those matters where there's some overlap.


COMMISSIONER LEE:  So this is in background paper 3?


MS DOUST:  Background paper 3, attachment 1 - - -


COMMISSIONER LEE:  All right, yes.


MS DOUST:  Contains the schedule setting out the evidence - - -


COMMISSIONER LEE:  The evidence relied upon.


MS DOUST:  The parties rely upon in respect of each of the claims.




MS DOUST:  And the HSU will provide a supplementary document - - -




MS DOUST:  To answer that question as to whether or not that schedule is complete.


COMMISSIONER LEE:  Right.  What's the expected timeframe for that?


MS DOUST:  During the course of the day or overnight, that sort of timeframe.






DEPUTY PRESIDENT CLANCY:  Because there are some that seem to have very - - -


MS DOUST:  We're already well advanced - - -




MS DOUST:  I can indicate, yes.


DEPUTY PRESIDENT CLANCY:  I'm just looking at the minimum engagement claim you've made that's on page 68.




DEPUTY PRESIDENT CLANCY:  There's references there.  But there are other claims that there aren't - - -


MS DOUST:  Yes.  So it's just a matter of us going through that carefully to ensure that that reflects all of the evidence that the HSU has relied upon.


DEPUTY PRESIDENT CLANCY:  All right.  Okay, thank you.  Well, we'll work through any matters arising out of the papers that have been filed this morning, and then circle back on some other matters.  Mr Robson?


MR ROBSON:  Yes, thank you, Deputy President.  We intend to take the same approach as the HSU.  We won't add anything to our submissions unless there's a question from the Bench.  We are in the same position as the HSU but we're still going through the schedule to background paper 1 and we would be in a position to file this afternoon or overnight.


DEPUTY PRESIDENT CLANCY:  The schedule for background paper 1 - - -


MR ROBSON:  Sorry, background paper 3, your Honour.


DEPUTY PRESIDENT CLANCY:  Background paper 3, sorry.


MR ROBSON:  All right, yes.


COMMISSIONER LEE:  And so you'll also be in a position to file that no later than tomorrow?


MR ROBSON:  Yes, sir.




DEPUTY PRESIDENT CLANCY:  So everyone doesn't adopt the same approach.  We don't know whether we've got questions yet because we haven't read through in their entirety, each of the submissions that have been filed this morning late, so - but again if there's anything you want to highlight from what you've filed, you're welcome to do so.


MR BULL:  We are relying on the fact that the submission is a joint submission so we don't propose to - unless there's particular questions in relation to matters in the submission, in order to summarise it we would aim to, like our colleagues, respond to questions.  We did only receive the (indistinct) material this morning.  Would it be of assistance to maybe have an adjournment so that the material can be read, and reconvene in perhaps an hour or so, or - well, we might find ourselves at that point, your Honour.


SPEAKER:  That would assist us too because we literally have only got it about ten minutes before the proceedings this morning commenced.


DEPUTY PRESIDENT CLANCY:  All right.  Has everyone got each other's materials now, while we're at it?






MR SCOTT:  I think that's right, Deputy President.  We've circulated out supplementary submission, or our further submission this morning.  We haven't handed up a copy and it hasn't been filed electronically so it may be that your Honours don't have a copy.  So I'm happy to hand that up this morning if that's - - -




MR SCOTT:  You have?


DEPUTY PRESIDENT CLANCY:  We have yours, yes.


MR SCOTT:  Thank you.


DEPUTY PRESIDENT CLANCY:  Any matters you want to raise?  No?


MR SCOTT:  Just in terms of the matters that the union parties have raised, we have identified in our written document a number of items of evidence that are not in the attachment to background paper 3, so we have listed those.  It's quite an extensive list in that written submission.  The only other thing that I'd like to just highlight is on page 2 of our written submission.  It relates to supplementary question 5.  Just bear with me and I'll turn to the background paper.  So this is a question that arises on background paper 2, supplementary question 5 on page 6 of that background paper.  And the question is in relation to a joint union contention that the nature of the work required to be performed by employers in the sector had not undergone fundamental change.  We fleshed this out in our written submission but there just appears to be somewhat of a - either a misunderstanding or a mischaracterisation of what the relevant parties' submissions have been there and it arises from an initial submission that was put by my clients and then the unions were responding to that submission and then the question arises.  And the proposition that my clients put was that the operating environment had fundamentally changed.


In response to that the unions had indicated, and I'll purport to summarise the response but at least, in part, their response said, well, certainly the work being performed by the employees has not undergone fundamental change.  So, of course, that's a slight departure from the submission that we put and the proposed finding that we invited the Commission to make.  But then arising from the supplementary question 5, it seems to be directed - it seems to mischaracterise the union's intention because it's prefaced on the joint union's contention that the nature of work required to be performed by employers in the sector has not undergone fundamental change.  Now I don't know whether that's simply a typographical error but I just wanted to raise it because it may be able to be clarified or fleshed out further today by the parties.  The parties seem to be at odds in terms of what we're talking about.  So in our written submission we've articulated in a little bit more detail what we meant by the operating environment and we're talking about the environment in which employers are organising their businesses and dealing with external and internal influences.


It is not the case that my clients were attempting to say that the work performed by the employees had undergone fundamental change.  No doubt it has changed and it will continue to change and evolve, but ultimately at the core the work is still for disability support workers or for home care workers.  The work is still personal domestic, yes.


COMMISSIONER LEE:  You're focusing more on the change in the funding regime and to the extent that that's driven - - -


MR SCOTT:  That's right.


COMMISSIONER LEE:  With more consumer preference and operational requirements that flow from that?


MR SCOTT:  That's right.  So we weren't directing our submission at the specific work being performed by the employees but just the operating environment and the flow on consequences for the employees of organising work, rostering and so forth.  So I just thought it would be helpful to raise that.




MR SCOTT:  Otherwise content to rely on that in the submission.




MR SCOTT:  Thank you.


DEPUTY PRESIDENT CLANCY:  I think, if I can just bob up at this point, supplementary question 4 also contained a reference, and this is in background paper 2.  There's a question there about a significant amount of employers covered by the award being part-time employers.  And I think it seems clear from the context - - -




MS DOUST:  That that was a typo, as well.


DEPUTY PRESIDENT CLANCY:  Yes.  Yes.  Thank you.  Mr Ferguson?


MR FERGUSON:  Yes, we also have responses to the questions in the background papers to hand up to the Bench.




MR FERGUSON:  Thank you.  If I just take the Bench very briefly to background paper 3's response, you'll see there that we've commenced a process of identifying omissions in the table attached to that background paper identifying the evidence that we've relied upon, and we're in a similar position to the unions though.  It seems to us that there are quite a large number of omissions of evidence relied upon by Ai Group in the table but we just haven't been able to complete that process in respect of all of the claims.  We were going to seek a little while longer to complete that process, ideally until early next week, although it may be, of course, if the hearing doesn't run the full two days that we can bring that forward to the end of this week.  But beyond that I wasn't going to emphasise any of the content of this submissions.


DEPUTY PRESIDENT CLANCY:  So, in essence, you're in a similar position as the HSU and ASU, that you seek to update the attachment to the background paper 3, in terms of the - - -


MR FERGUSON:  That's right, yes.  Yes, just in respect of the evidence, and I don't believe there will be anything contentious in that material.  Ideally, a little bit longer in terms of the time required.


DEPUTY PRESIDENT CLANCY:  Yes, thank you.  Mr Pegg?


MR SCOTT:  Sorry, Deputy President - - -




MR SCOTT:  If I can just jump up.  Whilst I've indicated that our submission answers the question, if I can avail myself of the opportunity of having a look with fresh eyes at our list just to make sure that that's accurate, given that it seems that most of the parties intend to do that.


DEPUTY PRESIDENT CLANCY:  Yes, belts and braces, yes.  Thank you.  Mr Pegg?


MR PEGG:  I don't propose to elaborate too much further on the submission that we've filed this morning, other than to just follow up on a point raised by Mr Scott around the supplementary question number 5 and the nature of the work.  I represent the Disability Services.  Our position is quite clear that we don't for a moment think that the fundamental nature of the work has changed.  What has changed is the environment and the way in which work needs to be organised, and so in particular, the way in which work is timetabled.  And that's what is behind a large part of the issues that are in contention in these proceedings.  So it's just to sort of emphasise that point.


DEPUTY PRESIDENT CLANCY:  All right.  Thank you.  Ms Lo?


MS LO:  Thank you.  AFEI filed the response to background papers 2 and 3 this morning, and I've distributed the hard copies to all interested parties.  I'm happy to answer any questions arising from the (indistinct) material.


DEPUTY PRESIDENT CLANCY:  Yes, all right, thank you.


MS LO:  Thank you.


DEPUTY PRESIDENT CLANCY:  We intend to mark each of the papers or the submissions that have been filed today, which we'll do now.  I'm just trying to recall where we're at in terms of exhibit numbers, so just bear with us.


MR SCOTT:  Deputy President, if it assists, I think there's a list of the exhibits at attachment A of the first background paper released on 6 January.


DEPUTY PRESIDENT CLANCY:  Yes.  Now just in terms, given that it's a joint submission of the unions, does any union have a preference as to what exhibit - the HSU is out in front with 31.  Would you like to keep that lead, protect that lead?


MS DOUST:  We're not troubled about the marking, Deputy President.




MR BULL:  We're neck and neck with the ASU.  We've got nine or ten and so that (indistinct) but fairness.  It's not a race from my perspective.  We're comfortable with (indistinct) of any union.


DEPUTY PRESIDENT CLANCY:  All right.  Well, I don't want to cause any problems between the ASU and the UWU, so I'm going to give it to the HSU.  It'll be HSU32.



MS DOUST:  It's so ironic, Deputy President.


DEPUTY PRESIDENT CLANCY:  Yes.  In terms of ABI's submission and supplementary questions of today's date, that will be ABI14.



The Ai Group will be AiG2.



NDS - - -


MS DOUST:  Is that background paper 2, Deputy President, for AiG?  There were two.


DEPUTY PRESIDENT CLANCY:  Sorry, it's another joint one.  I beg your pardon.  Yes, and then for 3 it will be AiG3, background paper 3, thank you.



For the NDS it will be NDS4.



And for AFEI, I believe it will be AFEI1.



All right, at this point given the timing of each party receiving each other's materials it might be opportune to stand the matter down so that the parties can view the other submissions and make any oral submissions they wish to make after that.  What do the parties consider to be a useful period of time to allow that to happen?  We're here all day, so - - -


MS DOUST:  Perhaps an hour, Deputy President?  An hour?


MR SCOTT:  Yes, I think that should be suitable.


DEPUTY PRESIDENT CLANCY:  All right, well, what we'll do is, we'll check in with the parties at 11 a.m. and if there's a requirement for further time at that point, we'll deal with it then.  And there may be rooms that the parties can use in the meantime if they need to have separate work spaces.  So we'll adjourn until 11 o'clock.


MS DOUST:  May it please the Commission.

SHORT ADJOURNMENT                                                                  [10.00 AM]

RESUMED                                                                                             [12.14 PM]


DEPUTY PRESIDENT CLANCY:  Thank you.  How do the parties want to proceed?  We'd go as we went before?


MR BULL:  I might go first quickly.  I'm going to briefly address two matters where the employers have touched upon matters specific to the United Workers Union.




MR BULL:  But I'm trying to be brief and focussed and not going over matters that have already been traversed.  One issue which I thought would be useful to address briefly on just the matter raised by NDIS, and they are questioning a finding, which is finding number 12 in background paper 3, and that's on page 13, and it's just the - under the NDIS travel time is claimable:  providers can claim up to 30 minutes for the travel time spent travelling to each participant in city areas; up to 60 minutes in regional centres.  I think it's important just to - and similar matters apply in relation to home care agreements, and the issue of travel time is that there is some complexity, but the employers under both the NDIS and Home Care are more in the driver's seat, so to speak, than anyone else, in the sense that travel time is claimable under the NDIS and Home Care, but it's an issue of having it in the agreement.  So it first of all needs to be negotiated between the customer and the provider, and then there's an issue of the employer principally making a positive decision to ensure that the facility which the agreement provides is then applied, and there was evidence, for example, in Home Care that some providers waived it and so forth.  So this is in relation to the NDIS response at question 3 on page 2 of their document where they challenge finding 12.  They say it neglects to take into account that funding is only available where a client agrees to use some of their funding package for this purpose.  That is correct that it's about putting it in the agreement.  There is funding available for it.  That's perhaps the broad point I wanted to make in relation to that submission by the NDIS.


The other matter which I thought I might raise briefly is - - -


DEPUTY PRESIDENT CLANCY:  The point is the funding might be there, but the NDIS submission is the client has to agree to it.  Absent the agreement, presumably the submission flows that it won't be funded then to the employer.


MR BULL:  Well, there's not a facility for their - in this particular case, that's correct - but it's just the complexity of the relationship.  I thought it was useful to qualify statements about there is no funding.  There is a clear capacity for funding, and there needs to be I suppose something done - and once again, if the award is varied to make it more abundantly clear that time travelled is work, then that places incentive to the employer to ensure that agreements made have the facility for travel time to be paid.


DEPUTY PRESIDENT CLANCY:  Presumably, Mr Pegg, isn't that the answer that the service provider would say if we're providing you this service, just be aware that you'll also be required to agree to the component of travel being covered?


MR PEGG:  I think the point of our response is simply - it's not an automatic funding that's available.


DEPUTY PRESIDENT CLANCY:  It's not automatic, yes.


MR PEGG:  So what goes into a service agreement is going to be dictated by commercial considerations about competition from other providers and what they're offering as well as, I think we heard in some of the employer witnesses, welfare considerations around the circumstances of the individual client.  So the point we're making is simply it's not simply that the problem has been fixed by a change in the price guide and that money automatically flows.  That's as much as we're saying.


DEPUTY PRESIDENT CLANCY:  Yes, but presumably - well let's work on a scenario if it was to be compensated everyone who is a provider then knows that.  Then the reaction to that might well be that all providers say, well - to a particular client - to provide that service some of your funding will be required to compensate for the travel, and it may be - you know, someone who's in a regional or remote area might find that every provider says that to them.


MR PEGG:  It would clearly become an additional factor to consider in the commercial judgment about what kind of agreements to enter into.


MR BULL:  Yes, so perhaps - - -


DEPUTY PRESIDENT CLANCY:  Just to draw - sorry, Mr Pegg, while you're kind of still there - just to draw that out further, that commercial judgment, but you're really then saying that providers would be taking into account whether another provider was going to put that same proposition to their client as to whether or not they require some component of the price that was available to go towards travel.


MR PEGG:  I think part of the profit‑making is that where a client agrees to that, they're taking away funds away that would have been available for further service delivery to them.  So clients have an incentive to not agree, or to resist that.  So in an area where there is competition between providers - I'm now just hypothesising - but, you know, one provider has more travel involved to deliver the service versus another one, then there's a competitive advantage to the one that's closer by to be able to negotiate, you know, a different package.  So again, the point is it's not an automatic flow on of the funding.  It's certainly a factor, and the change to the price going - I think we've acknowledged in other submissions, it's clearly - you know, it has shifted the pressure on employers in this context.


MR BULL:  Perhaps that's the point, you could never eliminate the fact that there will be the possibility of commercial incentives between providers to minimise certain costs and so forth.  The point we are making is that it's a complex choice.  There is clear capacity for this cost to be internalised within relationships and so forth, and part of the purpose of clarification, and the variations in relation to travel time, is to ensure that there's a more fixed signal, if you like, in relation to the necessity to ensure that when employees travel for work that it's a cost which is included within the service which is provided, and the funding arrangements in both cases already anticipate that.  It's just a bit indistinct, and the award facilitates the indistinctness.


The second matter I was going to raise is just an issue with AFEI has raised - it might be two matters.  It's on page 6 where they deal with - - -


DEPUTY PRESIDENT CLANCY:  Page 6 of their submission?


MR BULL:  Their submission, sorry, and it's just employees are routinely expected to use their own car to travel in‑between work sites, and this is criticised on the basis that it's far too general and that there is only some employees - some employees rather are provided with a vehicle for work and so forth.  But look, the point I would make is that we're dealing with I suppose - this is a safety net instrument; the fact that there are employers who provide entitlements and conditions which are significantly above the safety net is, frankly, to be expected and occurs in all sectors.  There was clear evidence that - particularly home care workers at least; there are individual statements and so forth where they use their own vehicle - you have the fact that the award has a travel allowance, which is an allowance designed to compensate individuals for use of a personal car and so forth to travel.  So that is - I think it's irrelevant the precise composition of car use within the sector; it's the fact that it's obviously a possibility and it's about designing an appropriate entitlement to ensure that low‑paid or persons paid modestly are appropriately compensated.


The second is a matter raised by AFEI on page 7, and it's B10, and it talks about the non‑payment of travel time creates a disincentive for employees to stay in the sector, particularly in relation to home care workers where all but those at level 4 comfortably, we say, fit within the characterisation of the work being low‑paid.  It just seems a context that if you are in a work which is low paid and you can go and do the same work, or you can get paid the same money and not have that expense, having to incur the expense of maintaining a car or paying for bus trips and so forth, that it's a disincentive in not being paid for that at the time that that's occurring.  Those are the few matters that we wanted to raise in response to the material that has been filed today.  Thank you.


DEPUTY PRESIDENT CLANCY:  I've got a question for you.  What's the intersection, if any, between your position on the travel time - which I understand is to be paid at the applicable hourly rate of the employee concerned, is that correct?


MR BULL:  That's correct.  It's just ordinary time, or time.


DEPUTY PRESIDENT CLANCY:  Yes.  What's the intersection between that and the claim you have for a minimum engagement of three hours if, for example - well, have you a position on this?  And it would be for all the unions.  If that - was the HSU maintaining its claim for a travel allowance at 0.78 per kilometre?




DEPUTY PRESIDENT CLANCY:  Right.  Because what I'm grappling with is in dealing with - is there going to be some overlap between a union claim that requires there to be a minimum engagement of three hours and then someone who is travelling between client engagements within that three‑hour period - how is that to be compensated?  Let my friend deal with that one.


MS DOUST:  I can deal with it from our position.  You will see, Deputy President, that part of our claim, the claim for travel allowance to make clear that that allowance covers all travel, and that an approach isn't taken whereby employers say your first trip of the day you don't get paid travel allowance; your last trip of the day, or trips where there's a break to the shift, that they aren't compensated.  So travel allowance - our claim for travel allowance is something that's in a somewhat different position to the question about whether or not the time spent travelling should be paid.


DEPUTY PRESIDENT CLANCY:  Yes, I understand that, but - - -


MS DOUST:  So they're distinct, yes.


DEPUTY PRESIDENT CLANCY:  Yes, but if the UWU claim is for time, travel to be compensated at ordinary time, and then there's a minimum engagement of three hours, does that leave it open for travel to be compensated twice, so to speak?


MS DOUST:  Double dipping?




MS DOUST:  I wouldn't have thought so if one has a provision in the award that makes it clear that travel time is work time, travel between clients, and that there's also a period of minimum engagement.  I don't see that those two conflict or create a dual source of entitlement there.


DEPUTY PRESIDENT CLANCY:  So is that how you frame it, Mr Bull?


MR BULL:  I agree with - yes, it's just time.  So a minimum engagement is the minimum that an employee can be engaged.  Travel simply becomes time.  So if you have 30 minutes travelling between clients, that is one - you know, that's part of the minimum engagement.


DEPUTY PRESIDENT CLANCY:  Part of the minimum engagement of three hours.


MR BULL:  Yes.  Look, in some respects it makes the minimum engagement easier, because there will be this time where you can connect up bits theoretically.




MR BULL:  So you will have - you know, if you have - going from job‑to‑job currently under the more extreme situations, some employers will - you will have broken shifts where they are in effect travelling.  So if you have - - -


DEPUTY PRESIDENT CLANCY:  Yes, I understand that.  It's just - so your position ultimately would be that the travel allowance would only apply where the minimum engagement doesn't pick up travel during the minimum engagement?


MR BULL:  There's two things:  travel allowance and treating time travelled as work are quite distinct, and travel allowance is principally a reimbursement allowance when the - - -


DEPUTY PRESIDENT CLANCY:  I understand that, but you want to calculate it according to a time‑based payment, don't you?


MR BULL:  Correct.


DEPUTY PRESIDENT CLANCY:  So your claim is for there to be two calculations on a time basis?


MR BULL:  Well, the travel allowance has got a kilometre rate and so forth - but I told my friend the HSU allowance is a motor vehicle allowance.  But in relation to minimum engagements and our view that travel time should be paid - - -


DEPUTY PRESIDENT CLANCY:  Yes, I understand the HSU.  I'm asking about your position, because you seem to have two - an allowance that's based on time plus a minimum engagement, which would presumably cover the same period of time.  So I don't know how you're going to frame that in terms of a proposed determination.


MR BULL:  In relation to travel time - and we have been quite candid in the sense that there is a possibility that currently travel time is payable under this award, at least in relation to once you go to your engagement and anything within the shift, and that's being clarified in the Queensland Magistrate's Court as we speak; the proceedings are going rather slowly - on one level are plain in relation to paid travel time.  They could be characterised as clarification of what may well be the case.  I don't see any conflict or inconsistency between a minimum engagement and having clarification of what will be part of that minimum engagement.  So if you have a three‑hour minimum engagement, that - frankly, one way employers would solve the problem is that you bunch up engagements so that the breaks are the travel between the clients and it's all a continuous pattern of work.


DEPUTY PRESIDENT CLANCY:  Yes, but if that was the case, say you had a minimum engagement of three hours and the first engagement was a half hour, and then someone had to travel for 20 minutes and then do another engagement of one hour, under that scenario would there be one payment or two - under your scenario?


MR BULL:  Well, if it's continuous, be we haven't - if it's a three‑hour minimum engagement, doing the maths in my head, we haven't quite got there - - -


DEPUTY PRESIDENT CLANCY:  Yes, well I understand you get the three‑hour minimum engagement, but are you also claiming then that travel period, in accordance with the hourly rate of pay?


MR BULL:  Yes, between the first and the second.


DEPUTY PRESIDENT CLANCY:  All right.  So it's a double payment.


MR BULL:  No, it's not a double payment, because we say if you're travelling for work that's just work.


COMMISSIONER LEE:  Perhaps if I - maybe I'll give you another example.  In the situation where there's a three‑hour minimum engagement, that's now the - that becomes the minimum a person is engaged.  Person A is engaged for one hour - I'll probably stop using the word "engagement;" it's a bit confusing.  They go and see a client for an hour, but then travel for the second hour and see another client for another hour.  There's our three hours.  The effect of your claim is they would be paid the ordinary rate, assuming it was within ordinary hours, for that three hours, correct, and be paid no other payment?


MR BULL:  Correct.  If they use their own car, I think there's a - - -


COMMISSIONER LEE:  Is that the answer to the question?


MR BULL:  I beg your pardon?  Yes, that's the principle - - -


COMMISSIONER LEE:  They wouldn't be paid any other payment?


MR BULL:  Yes.


COMMISSIONER LEE:  And for person B, that person works for one client for three hours, doesn't do any travel, they would also be paid for three hours?


MR BULL:  Correct.


COMMISSIONER LEE:  Yes.  So person B in that situation would be better off than person A, who has expended money travelling between two places, albeit they're being paid at the ordinary hour - - -


MR BULL:  That's correct, but the point about minimum - - -


COMMISSIONER LEE:  Is that the intent of how your claim operates?


MR BULL:  Well, the point about minimum engagement is they also - they create sort of parameters for choices of employers.  So if an employer wants to essentially roster or engage someone for what is two hours' work when they have to have a minimum engagement of three - - -




MR BULL:  Minimum engagements have a beneficial role, if you like, in terms of the broad structure of work, in that they provide incentives to try and bunch work up into - - -


COMMISSIONER LEE:  So the answer to the question is yes?


MR BULL:  Yes.


COMMISSIONER LEE:  All right.  Thanks.


MR BULL:  Any other matters that I can assist with?


DEPUTY PRESIDENT CLANCY:  Just to confirm for all the union parties, what's the position on telephone allowance?  Is it now that the UWU claim is adopted?




MR BULL:  There was a recent draft in that - - -


MS DOUST:  We support their position, Deputy President.




MS DOUST:  I think we've indicated that in one of our submissions, and I'll try and track that down to take you to it presently.


DEPUTY PRESIDENT CLANCY:  Yes.  Thank you.  Thank you, Mr Bull.


COMMISSIONER LEE:  I've got a couple.


DEPUTY PRESIDENT CLANCY:  You've got a couple?


COMMISSIONER LEE:  Yes.  Mr Bull, so ABI at paragraph 64 of what they've put in today - - -


MR BULL:  Is that their document, Commissioner?




MR BULL:  ABI, yes.  I don't understand how the Stewart Brown report is particularly relevant to telephone allowance.




MR BULL:  Are you talking about ABI14?


COMMISSIONER LEE:  Yes.  That's the document that they handed up today, and I'm referring to - - -


MR BULL:  The exhibit number, sorry?


COMMISSIONER LEE:  Exhibit number ABI14, paragraph 64.


MR BULL:  64, sorry.


COMMISSIONER LEE:  They've offered an amendment to clause 25.8.  I just wondered if you had any views about that.  This is a question that we're wanting every union to respond to.


MR BULL:  Well, it's still - I suppose, you know, our position is well‑known, that it's - - -


COMMISSIONER LEE:  I know what your position is.  Have you got any reaction to that proposed amendment?


MR BULL:  So hours in excess of eight are overtime hours.  It really depends - well, it's an improvement, but that would still allow what we say are unremunerated work within a 24‑hour shift.  There's obviously a point where if there was - I think it's nine or 10 overtime hours, you would effectively have hours covering 24, but it's mathematically nowhere - it's still - the fundamental problem is that they would still be, we say, unremunerated work.




DEPUTY PRESIDENT CLANCY:  Can I ask you about the - I guess the broad proposition that ABI raised when we kicked off this morning, which relates to supplementary question 5, and probably the easiest way to deal with this is to have a look at the ABI submission at paragraph 7, and Mr Pegg made some reference to this sort of fundamental issue, and it might be that some of the confusion was generated by the use of the word "employers" as opposed to "employees."  I mean, equally the question is arguably irrelevant whether it's employers or employees, but let's just ask the question in respect of employees, so if we can imagine that supplementary question 5 was work required to be performed by employees.  You will see there the ABI say they accept that the work undertaken by employees has not fundamentally changed, that they're doing the same or similar work.  But I then just want to jump across to paras 9, 10 and 11, and again this will be a question that I will ask all unions to respond to, because it would just be helpful to understand what's the remaining nature of the dispute about this particular contention, because I think, as Mr Pegg sort of put it pretty well this morning, it would seem to be the driver of a significant amount of what's in the dispute in respect of the claims made.  So ABI have sort of put it, again assuming that the question was framed in respect of employees, they have put what they say the findings should be at 9, 10 and 11.


If you jump across to NDS4, if you pull up a copy of that, and this might be one that you need to have a bit of a think about, but it's an important point, supplementary question 5.  They deal with that on that first page, and you will see that - in particular I'm interested in, towards the end, of what's put in respect of that question:


The massive increase in individualised funding arranged between clients provided in those sectors has resulted in fragmentation of work.  It's for this reason that all the parties in this matter have been being preoccupied with matters such as broken shifts -


et cetera.  It's really to what extent that the unions cavil with those - either of those propositions.  Obviously we'll make a landing on it - the Bench will, one way or the other, but I'm raising it now because there was some confusion I think generated by this, and whether it was around - - -


MR BULL:  We've put as a group - my friend might be best placed to - - -


MS DOUST:  I'm happy to cavil now, if the invitation's open.  I think in response to that I'd say that there's a couple of distinct concepts that need to be thought about clearly.  The first is the funding arrangements for the work.  That's something that I think the Bench has got a fairly good handle on now, and all of the parties have a fairly good handle on that, and we've made it clear in our submissions that we rely upon the observations of the Bench in the 2 September decision as to the force of those arrangements in a modern award review and whether or not those arrangements determine what are fair and relevant minimum standards.  So that's one thing, funding arrangements.  The other thing is the work in fact required or performed by the workers.  So there you're looking at what are the tasks, what are the attendances, the appointments, what's the nature of the work, and what's the distribution of that work over the course of a day, and that's another concept we think that's relevant in this matter.  And the third concept is this, that the approach that employers take to organising the work, so whether or not they engage people on a full‑time basis, on a part‑time basis, whether they engage them for short periods of time and then break the shifts and so on.  So we think those things need to be considered separately.


As to the actual work, when you're talking about what is it that's being required by clients, what is it that's being performed for clients by the services, what we say is striking about the evidence in this matter is the absence of evidence from the employers showing that that fundamental demand in respect of the services has changed since the funding arrangements, and one way we illustrate that point is by reference to the evidence of Mr Miller, and this is at court book 4411 where he sets out his graph showing that over the course of the day how many hours or workers we require to perform the work, and you can see it starts off low; at midnight reaches a peak I think between about 6 and 9; goes down again during the middle of the day, and peaks again in the afternoon sort of heading towards dinnertime.  We accept that as a matter of reality in this matter the funding arrangements deliver to individual clients the capacity to seek services in an irregular fashion, that they're not necessarily bound to attending at the same location every day and so on.  But what we say is striking about this case is that the employers haven't shown by reference to detailed evidence about what's going on in the services that there has been this drastic variation in what's being asked of them, the services that they've performed, or the times of day that it's being performed.  So there's no evidence that all of a sudden we've got people who, you know, want us to come and do something for them at 3 am, or that sort of thing.  There just simply isn't the evidence about that.  So far as the employer evidence goes to that question, it's really only ABI that has entered the field on that.  What we have is assertions about:  this is all driven by client need and client demand, but nothing in the way of detail.


So we don't think there's an evidential basis to show that there has been some drastic transformation in the types of services that are being delivered to people or the times of the day at which those services are being delivered, and it certainly hasn't been quantified.  So we accept, by virtue of the funding arrangements, there's the capacity for that change.  Has it actually been demonstrated by evidence?  No, and it's striking that in the submissions of the employers, what's pointed to in support of this proposition is the evidence of Dr Stanford, and we think when you read his evidence through, when he's talking about fragmentation, he's talking about work organisation, not the nature of the service that's being performed and required and its distribution over the course of the day.  So that's how we see those issues, and that's our response to what NDS has said in response to supplementary question 5.


DEPUTY PRESIDENT CLANCY:  So perhaps if I re‑frame that as it's accepted that there has been a fundamental change in the funding arrangements by NDIS.




DEPUTY PRESIDENT CLANCY:  Do you agree with that proposition?




DEPUTY PRESIDENT CLANCY:  But despite - and you would agree that there is a capacity now under those arrangements for clients to demand more discrete and individualised services?




DEPUTY PRESIDENT CLANCY:  But the evidence, you say, in this case is such that they have simply failed to do so, and the way in which services is demanded are fundamentally unchanged.


MS DOUST:  I don't think we can put it as high as that they're fundamentally unchanged, but - - -


DEPUTY PRESIDENT CLANCY:  There has been little change?


MS DOUST:  Sorry?


DEPUTY PRESIDENT CLANCY:  There has been little change?


MS DOUST:  The change hasn't been quantified.  So there hasn't been a basis demonstrated for saying it's suddenly all different.




MS DOUST:  In fact, when you look at Miller - sorry, at Mr Miller's statement, you see well actually there are some fundamentals here about the nature of these services.  One of them is meals, and that hasn't changed greatly in the last however many years, and there's no evidence that it has.  So we have those peak times, and that still appears to remain real sort of staples of the work.  To the extent there's some variations around the outside of that picture, nobody has drilled down to show the extent to which there's people asking for one‑off half‑hour appointments at 11 o'clock at night or 4 am or whatever.  That hasn't been quantified, hasn't been demonstrated, which we say it's incumbent on the employers to do.  They came here knowing exactly what this case was about, and they've got all of the data in their hands.  They're the ones that can demonstrate the nature of demand now and they've not done it.  Had they done it, we might then have entered into the argument along these lines:  well, you're running a service, you know the funding you can recover; if someone's asking for a service at 3 am, why don't you start negotiating with that person about their timing or start imposing some loadings or penalties upon the offering of work at that time.  So we would have an argument about the extent to which employers are compelled to deliver services on demand, if you like.


There are two choices we say are relevant in this matter, and the first choice in respect of funding, and this goes to the issue of travel that Mr Pegg just went to before.  It is fundamentally a business choice for employers to say we are going to choose to forego funding that we could possibly insist upon in these circumstances.  We could say to the client we're not going to do that service for you unless you agree to terms where we can recover some money for it, so you have to enter into that agreement so we can recover some money.  So that's a choice by employers.  If employers make a choice to offer a discount, that is a business decision and that's not something that should be laid at the feet of employees.  But the second choice is this:  if the Commission goes with the employers' pleas here and says well, okay, we'll proceed on the basis that you shouldn't be pushed to recover that potentially available funding, then as we sort of circle the sink hole and move ever downwards in terms and conditions for these employees.  So if the Commission sets terms and conditions that place the appropriate pressure on employers, we say it's likely that they will insist on recovering the funding that's potentially available.  If they choose not to, let that be on their own heads, not visited upon the terms and conditions of the employees.




MS DOUST:  That was the extent of the cavilling, just mine.


DEPUTY PRESIDENT CLANCY:  That's fine.  Thank you.  Well, we can move now to any further comments you have, Mr Robson or Ms Doust.


MS DOUST:  I'm happy to proceed.  If I can remain with the NDS paper, can I ask you to turn to page 2 of the document where the NDS refers to question 4 about the findings proposed by the HSU?  It's about two‑thirds of the way down the page.




MS DOUST:  The comments that I just made are apposite to that part of the NDS submission.  We highlight the absence of any evidence from NDS that employers don't require such agreement from their clients, or can't insist on such agreement from their clients.  So the submission that has been put is simply, well, you can't get that unless there's agreement that NDS hasn't entered the field of saying we haven't been able to secure such agreement, or we've decided not to insist on such agreement, or anything along those lines.  Mr Miller doesn't address that.  Sorry, and I think just on the question about the distribution of work, Mr Moody, whose statement - or the relevant passage of his statement is at court book 4405.  At paragraph 53 of his statement he refers to "the concentration of work at the beginning and the end of the day for a period of two to three hours", and that period of peak time is relevant in considering, we say, the minimum engagement possible here.


Just turning over the page to the third page of the NDS submission, a challenge is made to the HSU's contention really about the operation of the award in respect of broken shifts.  Can I make clear the regulation that we say is notably absent from this award is the regulation of the number of breaks that may be carried out to a shift during the course of the day and the length of the breaks, and this is illustrated - if the Bench sees the supplementary statement of Mr Miller that was provided to the Commission after the last tranche of hearings in October.  You might recall he provided a brief statement where he attempted to quantify the proportion of broken shifts that were used by his organisation, and he defined a "broken shift" as a shift that had a break in it exceeding one hour, begging the question why such a definition was required and adopted unless it was the case that the organisation was customarily breaking shifts for a lesser period than that, and it's those sorts of breaks, the stopping of the clock between successive appointments, that's the real vice that we are seeking to address with the variations that the HSU has sought, and the minimum engagement goes in some part to that because it guarantees a minimum period of work, which we say can't be separated, even if in the period - in the three‑hour hour period that we contend for, there is some period between client appointments.


In answer to question 14, the NDS refers to the need to take care with the conflation of the term, "shift", and "client appointment."  We also think care needs to be taken in distinguishing those two matters.  But can I just ask the Bench to go to the material that is referred to there, and that is in the background paper 3, and it's at page 32 of that paper.  Can I ask whether the Members of the Bench have that handy?




MS DOUST:  So under paragraph 3, on page 32, one can see the evidence that was relied upon in making the assertion that shifts of a very short length are required and are utilised by employers.  It appears to be suggested there, by the NDS, that perhaps what's occurred in this evidence is that there's been some sort of confusion about whether or not the periods referred to are a shift or they are a client appointment.


Can I make this observation?  First of all, NDS didn't cross-examine these witnesses with a view to suggesting that their evidence, in this regard, involved some sort of confusion.  Second point to be made is this, Mr Erick and Mr Eddington are experienced industrial officers and the Commission would think they appreciate that distinction quite readily and understood the subject matter of the proceeding.  But can we also refer the Bench to the evidence of Mr Shannahan, he was the gentleman from, I think, the Coffs Harbour area, the relevant passage is at PN2920 of the transcript on 18 October 2019.


Now, Mr Shannahan talked about the need for very short appointments and he clearly linked those short appointments, the appointment of, I think, 15 minutes or half an hour he was discussing in that context, with the inability to meet minimum engagements.  So I don't think there's really any doubt, on the evidence here, that there is both the incentive and the ability for employers to roster shifts of such brevity.  So they've got the ability, they have motive and this evidence shows that this is a practice that is, in fact, employed.


Now, I go next - - -


DEPUTY PRESIDENT CLANCY:  Just above that, in the NDS document it says:


A proposed finding is incorrect, so the award does not regulate the generation of a broken shift as there is a 12 hour span set by clause 25.6(c) of the award.


Do you agree with that?


MS DOUST:  Yes, that is the stand.  How that is at all adapted to dealing with the vice that we say is illuminated by the evidence in this matter we don't see that it really helps a great deal, but we concede that consequence.


DEPUTY PRESIDENT CLANCY:  You agree that - and isn't this partly where the confusion is, that a broken shift, one broken shift can have a span of 12 hours and then it may well be that witness evidence, like the ones that you've just taken us to, will refer - when they were referring to, "I have worked -", take Elrick, for example, giving evidence of shifts as short as 15 minutes.




DEPUTY PRESIDENT CLANCY:  There might have been a number of those what he calls shifts within one broken shift.


MS DOUST:  Yes.  That wasn't what Mr Elrick was taken to.




MS DOUST:  So no attempt was made to suggest to Mr Elrick, "You're confused about what constitutes a shift there".


DEPUTY PRESIDENT CLANCY:  Right.  Okay.  All right.


MS DOUST:  That's our difficulty, that one can't leave the witnesses go and then say, later on, after we've been deprived of the capacity to re-examine, that, "They must have meant something different".  This is something where, inevitably, fairness demands that a proposition like that - - -


DEPUTY PRESIDENT CLANCY:  Okay.  So your proposition is, again just thinking of Mr Elrick as an example, that what we should find from that is, when he was referring to shifts, that as short as 15 minutes that someone was engaged just to do 15 minutes work on a day and nothing more.


MS DOUST:  Yes.  And he says, "Well, they were actually paid for 45 minutes", so thankfully someone had the decency to realise that 15 minutes was too great an ask.  But we say, even on the basis that 45 minutes is paid, that's still well short of the sort of standard that's discussed in the Part-time and Casuals Case of what's exploitative.


That exploitation - the exploitation that's discussed in the Part-time and Casuals Case is put in that instance, there's a discussion about a disability services worker who attended regularly on a Sunday morning and, I think, had to drive 45 minutes each way to do an attendance of, it might have been an hour and a half or two hours.  And the Bench said, "You need to be given enough work to make it worthwhile".  All of the disutility that's involved in getting oneself ready for work, travelling there, and so on, travelling back, well that disutility is compounded where you have multiple breaks, because there's multiple periods during the day, not just the travelling back and forth, but there's periods between work that can't be effectively used.


So that's the context in which we think exploitation has to be seen, that if there are successive periods, during the course of the day, that you consider those down times between shifts as part of the - the overall equation of exploitation, as it were, just in the process of measuring what is a fair and relevant term for the minimum amount of work that needs to be offered to an employee.


Now, just if I might go to AiG's response, which is at AiG2, Response to Background Paper 2, Can I just indicate this?  The response to what was supplementary question 5 of Background Paper 2?


DEPUTY PRESIDENT CLANCY:  Sorry, which question?


MS DOUST:  This is the response to question 5.  It's supplementary question 5 in Background Paper 2.




MS DOUST:  This is AiG's response to that Background Paper.  It's on the first page.  The observation that we would make is this, AiG is purported there to make some assertions, based on feedback that it's had from employers, in respect of these proceedings.  Of course, AiG didn't call any employer witnesses in this matter.  So the weight that the Commission would give comments about feedback that's been received, which we don't have any opportunity to test, we wold say is little, if any, weight.  That's all I have to say in response to that paper.


Just in response to AiG's response to Background Paper 3, this is the document that's now AiG3, if I can ask the Bench to go to page 4, where AiG deals with the HSU submission that:


Possession of a functioning motor vehicle is all but a pre-condition of the work of disability support and home care workers.


The contention is made that HSUs submissions are inconsistent because, in the first sentence there, they quote the HSUs submission about the requirement for a vehicle appearing in the contract of employment.  Then we say, later in the submission, that that possession of a vehicle is all but a pre-condition.


We did use the words 'all but' and there was a wealth of evidence, in this matter, of course, none called by AiG, about the requirements for employees performing this work.  There were truck loads of evidence about employees using their own vehicles to go back and forth to visit clients and so on.


So to quarrel with that submission, we say, really misses the point.  The point is really this; whether or not it's 100 per cent of employees who are required to have a vehicle in order to perform this work, or even if it was only 20 per cent, it would still be appropriate for the Commission to provide appropriate fair and minimum terms to regulate the requirement to use that vehicle and to provide appropriate fair and relevant minimum terms to compensate employees where such use is required of them.


Can I turn now to the AFEI submission?  At page 3 of that document AFEI responds to supplementary question 5.  I've dealt with this in my submission previously, in response to what is in the NDS response to the Background Papers.  We say it was open to employers to deal with this question by calling some evidence that showed the detail of the distribution and demand for their work.  AFEI called none.


If I can ask the members of the Bench to go to page 8 of the AFEI submission?  As to what appears at B16, I repeat the submission that I've just made about the question of the requirement to travel, using the employee's own vehicle.  The fact that some employees aren't required to use their own vehicle isn't, we say, any answer to the claim.


If I can ask the members of the Bench to consider the argument or the submission at B17, on that page?  The point is taken about the regularity of the location of travel for these workers and whether or not that's predictable.  Reference is made to the evidence from Ms Waddell that she had her first and last client in her own suburb.  Can I say this?  The point we make here is to highlight the distinction between the travel that is carried out by these workers and the sort of travel that's required for most workers, in the course of their everyday work.


So for most working people the task of travel involves getting up, going to the same location day in and day out at the same time.  Now, I accept there's obviously variations of that for people that have different sorts of shift arrangements, but there will be a certain regularity of going to the same location and knowing what traffic is like, what the means of transport available are to and from wherever you are and wherever your work is.


That, we say, is very different from these workers who aren't going to the same place of work day in and day out, who might have to go to a number of different locations in the course of any day, week, month, so on, and at different times.  So that's sort of fundamentally different to the experience of most workers.


If I can turn to paragraph B18?  It's suggested there that Ms Waddell's evidence doesn't support a finding that, particularly for workers in regional areas, considerable distances may be required to be travelled.  The members of the Bench might recall Ms Waddell was cross-examined with a view to establishing that in more recent times she had a number of clients who were somewhat closer to her.


Now, none of that means, as is suggested here, that she didn't undertake the very considerable amounts of travel, in the course of her work previously, and she referred to occasions when she had to travel a distance of something like 250 kilometres in a day.


Now, the fact that the witness didn't do that on every day doesn't mean that that didn't happen.  So the suggestion that evidence about days when she wasn't required to do that means that the finding we contend for isn't supported or isn't available, I think, misunderstands the nature of the sort of findings or the way in which findings are made.  The later evidence doesn't contradict the earlier evidence of Ms Waddell.


Can I ask the members of the Bench to turn to page 11 and, in particular, the response at B37?  Issue is taken with the use of the term 'exploitative' in the findings urged by the HSU.  What's put in response to that is that Mr Elrick says that some workers enjoyed working broken shifts.  Can I just make plain, the term 'exploitative' there is used to pick up its use in that Casual and Part-time Employment Case, which we've referred to in our earlier submissions, where the Bench spoke about that equation between the remuneration that's provided to an employee and the amount of associated time and work that was taken, in order to be able to perform the work and whether or not the work was sufficient to outweigh that over time.  That's the sense in which 'exploitation' is used there.  We say workers don't need to be prostrating themselves in tears for that to be an appropriate description.  It's fundamentally a description of the relation of the - of the employment and of the working time.


Can I turn then to paragraph B41, which is on the same page?  AFEI there refers to employer's attempts to maximise work time of employees engaged on broken shifts, and so on.  Yes, we accept there was some evidence that employers accepted that that was the appropriate practice and we accept that there was some evidence from employers who said they endeavoured to do so.


Our point, in relation to this matter, is that the evidence didn't go to showing how successful those efforts were.  They didn't quantify or provide any real analysis or detail about the minimum shifts that are provided, or working hours, in the course of a day.  They didn't quantify, in any real detail, the number of breaks and I say that's a criticism that applies to Mr Miller's supplementary statement, because he self-defined what a break was, to provide only a limited picture of the position, at Endeavour, for the Commission.  Of course, the question that he was asked, about the minimum periods that were provided to employees, something that the Commission might have thought would be easily able to be provided, it didn't provide that information in the supplementary statement.


So the Commission doesn't have evidence of any efforts that have been made succeeding so we say, so far as the minimum engagement clause would work, it would provide the necessary level of compulsion to ensure that that occurs.


If I turn now to the ABIs submission, which is ABI14, or the ABIs response to the questions.  I just have one comment to make about that.  At paragraph 40 there's a reference there to the evidence of Mr Quinn, about how frequently he returns home during the course of the day and asking the Commission to draw an inference about how far away from his home Mr Quinn is.  We say the Commission doesn't need to enter into the realms of speculation, Mr Quinn gave some evidence about this.  He said that his appointments were between one and 20 kilometres from his home, and that is at court book page 3052 at paragraph 10.


Now, how one could suggest, when one looks at Mr Quinn's evidence and, in particular, his diaries and the whole of his statements, that he's not required to undertake substantial travel is, in my submission - well, how that submission can be made is elusive to us but we say that when one looks at Mr Quinn's statement and, in particular, the details of his working days and the sort of travel he undertakes, I wouldn't say that that's an insignificant amount of travel between - that he carries out, in the course of a working day.


His diaries illustrate the proposition that we put, in this matter, about the way in which this work might be organised to the detriment of employees who are covered by the award.  One can see, with his work, those patterns of having an engagement and then a down time period of an hour or so and then coming back for another hour and a half and then being off again.  So over the space of many, many hours in the day he's able to accumulate full-time hours and the Bench would have no hesitation in thinking that having to spend so many hours over the course of the day in order to accumulate what's full-time hours is a much more disadvantageous position for an employee than being able to work all those hours in a continuous period or, alternatively, simply having one break of a definite period, on a regular basis.


Those were the responses to the supplementary documents produced by the employers this morning, but we rely upon our response to the background paper, which has now been marked and is HSU32.


Can I just, while I'm on the question of exhibit numbers, might I just ask the Bench, if you have the Background Paper from 6 January this year available and if I can ask you to look at page 120?


DEPUTY PRESIDENT CLANCY:  One hundred and twenty.


MS DOUST:  At the top of that page, that's the end of the HSU exhibits, it appears that both Ms Wilcock and Mr Lobert share HSU27 and Ms Thames and Eddington share 28.  If those numbers were distributed sequentially, that would take us down to HSU32, which would then lead us to the HSU33 in the submission that we filed yesterday, the responses to the Background Paper filed yesterday.  I don't know whether that's something that can be rectified immediately, but I just bring it to the Bench's attention.


Might I say, I'll just make this point further, in relation to the question of travel and that's this.  There's, of course, already a provision in the award providing for payment of a travel allowance, that's at clause 20.5 of the award.  That deals with use of motor vehicle in the course of the employee's duties.  At 20.5(a) there's the rate of 78 cents per kilometre.  That's an amount that we say is directed to compensating an employee for fuel, wear and tear on the car, maintenance, insurance, other on costs.  So that's what that's directed to.


We don't see that there's any tension between receiving that allowance, in respect of use of the vehicle for the purpose of work, at the same time as one is receiving the wages for the performance of hours of work.  So that's the distinction that we make in terms of travel allowance.  And we say that the issue of travel allowance, in our draft determination, we've sought for travel allowance to be addressed to cover all of that travel.  So we say from their place of residence to the location of any client appointment to their place of residence, from the location of any client appointment and between the locations of any client appointments.  So any of that travel.


Now, that's directed to addressing circumstances where such allowance is not afforded or recognised for employees carrying out the first trip of the day, out to see the first client, we say that is a use of your vehicle, on the employer's business, you should be paid for that travel.  That covers the trip home at the end of the day that, again, is just returning, in your vehicle, from carrying out your employer's business.  As to (c), between locations, on the basis of the most direct route, we say if your shift is broken and you're sitting out in the field waiting for the next appointment, you should, nonetheless, be compensated for the use of your vehicle between the two appointments, on the basis of a direct route.  So if there is a lengthy break and the employee decides to go home or do something else, they bear that expense, but they should be compensated - - -


DEPUTY PRESIDENT CLANCY:  Yes, between the client and client.


MS DOUST:  Yes.  That's how the allowance claim is at that end.  So we don't see that as, in any way - that doesn't - that's not in substitution for being paid wages for any period - - -


DEPUTY PRESIDENT CLANCY:  Sure.  So, in that sense, your answer to the person A and person B proposition I put to Mr Bull earlier, is different, isn't it?  Person - I can't remember which one it was, person A or person B, but we had one hour work, one hour of travel, one hour of work and then the other person just did three hours with one client.  Your answer is that person A would still be paid for the three hours.


MS DOUST:  They'd both be paid three hours and they'd be paid for their travel in accordance with the amount of travel that they undertook.  They'd be paid a travel allowance.




MS DOUST:  So there's no inequity in those circumstances, because the allowance is compensation for costs ‑ ‑ ‑


COMMISSIONER LEE:  Cost of the vehicle, yes.


MS DOUST:  ‑ ‑ ‑ effectively, on the way in which they're calculated under the award.  So that's the basis on which we put it.




MS DOUST:  The minimum engagement period, well, there might be travel during the course of that, and that would be considered as time worked during that period, and so you'd be paid for that as if that's work time - and when I say the words "as if", I mean you would be paid for it because it is work time.  If you're being sent out and you're going to one place and then the next, we regard that as all part of the work, yes.


COMMISSIONER LEE:  Sure, but your client's position is that you would also be paid the vehicle allowance.






MS DOUST:  So one's for the car, one's for your work.


COMMISSIONER LEE:  One's for the cost of running the car, one's for the time spent at work.




MR BULL:  That was also our position.






COMMISSIONER LEE:  Well, that's not what you said, but if that's your position now ‑ ‑ ‑


MR BULL:  No, well, you're paid for time worked, and I was referencing the travel allowance which is in the current award.  If there were out of pocket expenses, so to speak, incurred, you would get back - well, theoretically you get the out of pockets if it's paid travel, or ‑ ‑ ‑




MR BULL:  ‑ ‑ ‑ on our claim, travel to the first place of work.


COMMISSIONER LEE:  You now agree.  In any case, you agree with what was just put by ‑ ‑ ‑


MR BULL:  There's no significant difference.


MS DOUST:  And, Deputy President, if I can just address the issue earlier about the mobile telephone claim.




MS DOUST:  That appears at paragraph 274 of the union joint submission dated 10 February 2020.  So there the HSU addresses that we adopt the UWU claim, so we're content for them to take the lead and we support that claim.


DEPUTY PRESIDENT CLANCY:  So is it paragraph ‑ ‑ ‑


MS DOUST:  274, which is ‑ ‑ ‑




MS DOUST:  ‑ ‑ ‑ at the top of page 49 of that submission.




MS DOUST:  Thank you, Deputy President.


DEPUTY PRESIDENT CLANCY:  Anything from you about paragraph 64 of ABI 14?


MS DOUST:  Might I come back to that, Deputy President?


DEPUTY PRESIDENT CLANCY:  Sure, yes.  The other question I just had, where the ABI - or the ABI has floated the arrangement of three per cent of the hourly rate being applied as a motor vehicle allowance.




DEPUTY PRESIDENT CLANCY:  Now, as I understand it, the union parties don't support that, but is that on the basis of other aspects of how that sort of an allowance works?


MS DOUST:  There is already an allowance in the award, which is the 78 cents, I think, a kilometre.


DEPUTY PRESIDENT CLANCY:  So you're just content for that to be reframed to ‑ ‑ ‑


MS DOUST:  I think we're content for that to apply generally.  I believe that may be consistent with the Tax Office standard, or something like that, the 78 cents.  I think that's something that's commonly used, but I might just check up on that.  I think that's right.


DEPUTY PRESIDENT CLANCY:  Yes.  All right, thank you.


COMMISSIONER LEE:  Just before we move on, can I just make this observation about - and I'm just going to pick on ABI here but it will be a comment that goes to everybody, but if you just look at ABI 14 paragraph 13, and I'm just using this as an example, but I think ABI falls foul of the same problem, and that is, it's just not going to do for us that it says Witness Statement of Joyce Wang.  We want to know what paragraphs, is there cross‑examination that you refer to?


I'm raising this now - Deputy President and I discussed this in the break, and we expect the President will be wanting to see exactly what it is that you're referring to.  Stewart Brown, referring to just that report as a whole, well, that doesn't help us.  What part?  Is that clear enough?  We've already canvassed there's going to be a further opportunity for those who haven't been in the position - I appreciate, and particularly with reference to the ABI and picking on you, this was all done fairly quickly and it would not necessarily be possible, but since we will be affording some period of time; we'll discuss what that period of time will be, we do want to have that particularity in respect of the documents and so on.


MR SCOTT:  I hear what your Honour's saying.  Just one point that comes to mind which I'll air now, for better or worse, is that I apprehend that the position will be that we rely on the entirety of the Stewart Brown publication, for example, and we'd be loath to say we only rely on sections of it, yet what we've done in terms of the November and February submissions is that in the November submissions we've articulated some 90 findings that we've invited the Commission to make, and in advancing those findings we have referenced those, for the most part, with specific aspects of the materials.


So I'm conscious, in terms of the efficient conduct of these proceedings, that in circumstances where the parties have collectively articulated in excess of 200 proposed findings by reference to specific parts of the evidence, I'm just not sure ‑ ‑ ‑


COMMISSIONER LEE:  That's okay.  So in other words, we should go back and look at what particular parts you referred to in earlier submissions, and that you shouldn't be put to the task of doing it again.  I understand that ‑ ‑ ‑


MR SCOTT:  I think that's right.


COMMISSIONER LEE:  ‑ ‑ ‑ if that's the proposition.  All right.


MR SCOTT:  I think that's right, because otherwise it's going to be a hugely time intensive task going through each statement or each document and saying, "Well, we rely on these paragraphs for this claim, we rely on some other paragraphs for this claim."  We rely generally on the whole thing for the vibe of the matter, and then ‑ ‑ ‑


COMMISSIONER LEE:  That's what we're trying to avoid, yes.


MR SCOTT:  Well, the submission that I'd put is that all of the material before the Commission does go - and, you know, subject to other caveats I've made ‑ ‑ ‑




MR SCOTT:  ‑ ‑ ‑ saying certain evidence is totally irrelevant or certain evidence should be disregarded and has no weight, but at a general level all of the evidence is broadly relevant to the issues in the proceedings, and so I apprehend, and I can give it some further thought, that our response will be to come back and say we rely on all of it for the vibe, for the general findings that we've articulated, and we have already referenced specific parts of the evidence in support of the specific findings that total 90.


COMMISSIONER LEE:  Look, for myself, I mean, I think that that would be fine, and if everyone is to do that, to say, "We don't need to do it again, because we've already done it.  We refer you to this particular submission that we earlier made and what we directed you to there", that's fine.


MR SCOTT:  Yes, okay.  Thank you, Commissioner.


COMMISSIONER LEE:  Probably saved all your colleagues a bit of work there, and your opponents.  Does anyone else want to say anything about that particular procedural point?


MR SCOTT:  I might just close that off.  I think what I'll do is go away, give some consideration to the list and reflect on what I've just said, and it may be that I come back and say, "Well, actually, we can do better than what we have", or, "We want to do better than what we have already."




MR SCOTT:  But the response may simply be that, "Look, we've advanced 90 plus findings.  They're referenced to specific parts ‑ ‑ ‑"


COMMISSIONER LEE:  Yes.  "We've already done it.  Have a look at this bit."  That's fine.


MR SCOTT:  That's right.  If the Commission pleases.


DEPUTY PRESIDENT CLANCY:  And if it hasn't been done, it's got to be done, but if you say you've done it and you can point to it ‑ ‑ ‑


MR SCOTT:  It may be that, yes, I stand or fall based on what we've already done, and perhaps we haven't done it.


DEPUTY PRESIDENT CLANCY:  All right.  Mr Robson?


MR ROBSON:  Yes, thank you, Deputy President.  I think I'd just like to draw the Commission's attention to something that I think has been missed from the United Workers' Union's draft determination, and I think it comes from the use of the word "travel".  There appears to be some confusion arising about the payment of the allowance.  There's a reference in their draft determination at their proposed 25.7(a).  The final sentence says, "The travel allowance in clause 20.5 also applies."


If you look at clause 20.5 of the award, there is an allowance there entitled "Travelling, Transport and Fares."  I think given that we've been dealing with travelling time and the UWU claim is that that time would be paid as ordinary - well, as hours of work at the applicable rate of pay, but noting down the bottom that clause 20.5 might also apply, and there are a number of different arrangements there.


20.5(a), that's the .78 cents.  That's a reimbursement for the use of a private motor vehicle in the course of their duties, but then again, there's also provisions (b), (c) and (d) which deal with other types of travelling on duty.  So I think the purpose of that reference is not to create a separate allowance but simply to refer to the existing allowance in the award which would apply if someone was travelling in the course of their business.  Most likely, on the face of it, this would be the use of a private motor vehicle, and of course that interrelates with the HSU's claim for that to be paid on the way to and from work.  That's the only point I want to address there.


I'd like to turn to supplementary question 5, in particular in AFEI's responses to background paper 2.  That's page 3 of their submission filed today at paragraph A2.  There's been some discussion about the relative positions of Australian Business Industrial and AiG and the unions.  It does appear that some employer parties do actually dispute that the nature of the employees' duties have changed over time.  What I'd like to draw out here is - again, I don't think this is a - this is not a submission that the Commission would agree with, in particular the third sentence, which says:


While certain tasks performed by disability/home care workers, e.g., client personal care, housekeeping, shopping, accompanying on recreational outings, et cetera, have remained the same, clients are now being able to request a much broader range of services to be delivered in a manner and a time of the client's choosing.


I think there's an issue here where the difference between home care, which is its own sector with its own stream in the award, and disability services, is being elided(?).  What's listed there would properly be described if that was only the work that was being performed as home care work.  That fits into the classification stream.  Most of the work - most of the descriptions there are for personal care, but there's also descriptions that would apply to a handyperson, and that's probably a historical factor.


I think what's missing in the submission, and we want to emphasise, is that disability services comes from the social and community stream.  It's not simply an accident of history that it is there, and the nature of disability services work and its distinction from home care was the subject of a witness statement filed by the ASU in these proceedings, the statement of Judith Wright, which is found at page 14 and 15 of the court book.


The important thing to emphasise here is that there is an element of welfare support work that is found in disability services that is not found in home care work.  Really, a good example of this you'd find in Mr Encabo's statement found at page 1137 of the court book at paragraphs 12 through 17, and what I think these paragraphs do is emphasise that the nature of this work has never been simply the provision of personal care but rather about building capacity and supports.  So not simply assisting somebody with hygiene, but then assisting them to develop that ability to look after themselves further.


This work has remained fundamentally the same since before this award was made, before the NDIS.  The purpose of the NDIS is not to change the nature of that work, not to change the skilled nature of that work and not to introduce novel factors, but simply to allow people with a disability to assume control over that for themselves.


I think it's relevant at this point to go to the submissions of People with Disability Australia which can be found at page 4779, in particular paragraph 7, which is actually at 4780.  I think that paragraph is particularly relevant, because we don't often hear the perspectives of the recipients of services provided by people covered by the award in this review.


There it makes the point that the purpose of the NDIS is to transition from a system of government funding that historically created supply by funding for supply but instead creating demand, and this is necessarily building some changes, but it's not changing the nature of the work that's being done.  Again, I'm going to come to - and I think this is relevant for NDIS's proposition around the nature of negotiated funding arrangements, but I'll come to that after this.


At paragraph 10 what they say is that people with a disability must not be characterised as unreasonable, unpredictable or irrational people who expect to have their preferred staff on call, and again, this is the purpose of the NDIS.  It is not to create a system where services can be provided at any time, it's not to create a special category of support worker who can be, you know, whipped about at the whims of the person with a disability, it's to put a person with a disability on a point of equality with anyone else purchasing a good or a service in a regulated market.


Going down the page, at paragraph 16 - and again, I'll explain why this is relevant to NDIS's submissions - People With Disability Australia submit that the proposed changes, I believe referring to the employer claims:


Will potentially create a category of worker who is offered insecure employment with less protection specifically because they work with people with a disability, the inference being that the people with disability somehow will still require something different than others in the community and cannot be served by mainstream style supports.


I think this comes to the heart of the disagreement between the unions and the employers over paragraph 5, and perhaps it's something that needed to be drawn out, which brings me to NDS's submissions.  On page 2 of 3, in response to question 2 from background paper 3, they say:


Proposed finding 7 of the ASU neglects to take account that the funding is only available where the client agrees to use some of their funding package for this purpose rather than for time spent delivering a service to themselves.  The result is that the employer does not have an unfettered ability to receive the payment for such time.


We say that simply puts them in the position of any person providing a service or selling a good on an open market, and I think, coming back to the People with Disability Australia submissions that people with disability are not irrational and not making unreasonable demands, simply demanding that they be treated equally, this, I think, emphasises the point about commercial arrangements.


Yes, there will be competition between different services, but where doesn't that exist in our market‑based economy?  Yes, clients of a service will have specific demands, but the challenge for NDS's members, the challenge for disability service providers, is to adapt to that rather than to force the costs or even the burden of adapting to a new system onto the employees, which is what we say that their proposed claims are doing.


I think I'm finished with proposed finding 7.  I'd like to respond to the paragraph above, proposed finding 3, NDS's submission there.  They say that proposed finding 3 asserts that unpaid time is controlled by the employer, but the evidence does not go to employer control and only demonstrates that there are various mixes of paid and unpaid time during a broken shift.


I agree with the employer's submission, and I believe AFEI, AiG and ABI have made a similar submission, that this is not necessarily a time where the employer can direct an employee to do what they want to, but that is not what we're getting to here.  What we mean I think is summarised at paragraph 54(c) of Dr Stanford's expert report, and there he says - and I'll bring you the court book reference in a second.  Page 1442 and following.  At the top of page 1443 Dr Stanford says:


Since time between portions of broken shifts typically occurs at suboptimal locations and times of day, thus preventing workers from experiencing the full value of their leisure time.


This is the point that we are drawing out here, and it's in the context of our claim for a penalty rate to compensate people for dis‑utility.  Simply, it's not that this is time that the employer - this is not time that an employer is able to direct a person to do anything.  It's not a time, you know, that necessarily forms part of paid work, otherwise we'd be claiming for it to be paid time.


This is time where how the employer has structured the employee's day, how the employer has organised their work, has impinged on their free time, has impinged on their leisure time and has created a higgledy‑piggledy of unpaid time interposed between periods of paid work which simply cannot be treated as leisure time, and that's the evidence that's been given by our witnesses but also the HSU and United Workers' Union's witnesses, that while they may be able to do ostensibly as they please in that period, they still must be at the next location in time to start work.


This is not a sufficient period of time to engage in a leisure activity or necessarily pursue any errand that they choose, and it does extend the working day by increasing the amount of time they need to be available to their employer to work, and in that way, as Dr Stanford says, effectively reduces their hourly rate of remuneration.  I think at that point, unless there are questions for me, I am finished.


DEPUTY PRESIDENT CLANCY:  We might use this as an opportunity to take a break.  It's 2 o'clock now.  How long would the parties ‑ ‑ ‑


MR SCOTT:  2.30?




MR SCOTT:  There's no problem with that.


DEPUTY PRESIDENT CLANCY:  All right.  We'll adjourn and resume at 2.30.  Thank you.

LUNCHEON ADJOURNMENT                                                           [1.55 PM]

RESUMED                                                                                               [2.34 PM]




MR SCOTT:  I was the next cab off the rank.  I'll start by dealing with the unions or the joint unions' response for submission that was handed up this morning or filed this morning.  A number of observations I want to make about that and either afterwards or in the course of, I'll make some other general observations about the evidence and the proposed findings.


Page 1 of the unions' submission and in relation to supplementary question 2, there's an invitation to clarify or confirm their position in relation to the issue of the proportion of employees covered by the SCHADS award that are low paid.  The issue is dealt with in the 2 September decision, so the tranche 1 decision.  There's a reference there to paragraph 160 of that decision, and there's an underlined and bold reference to the last part of that paragraph where the Full Bench indicated in that paragraph that as mentioned earlier, a significant proportion of employees covered by the SCHADS award may be regarded as low paid.


It's relevant to note that the substantive aspect of that decision that dealt with this issue is set out further up in that decision.  It's paragraphs 44 to 47.  The decision looked at the issue in some detail, referenced the relevant data sets and came to the conclusion at paragraph 47 that based on this data, a proportion of employees covered by SCHADS award may be regarded as low paid.


So, that was the conclusion that's set out in the 2 September decision at paragraph 47.  It's relevant to note that at paragraph 160, the position seems to be framed slightly differently in the sense that the Bench references the earlier part of the decision and then says:  "A significant proportion of employees covered by the SCHADS award may be regarded as low paid."


I suspect that's a convenient attempt to summarise the more substantive paragraphs or passages of the decision higher up in paragraphs 44 to 47.  My submission is that weight should be afforded to, or regard should be had to the paragraphs 44 to 47, because that seemed to be the substantive finding of the Full Bench, having regard to the data.  So, I don't think that the phrase significant or the term significant at paragraph 160 should be given any more weight than the finding at paragraph 47 which was that:  "A proportion of employees covered by the SCHADS award may be regarded as low paid."


I think the issue and the reason why this has been articulated and has arisen through the background papers is that the union's position seemingly has been that they've taken this finding and have submitted that the finding stands as authority that a significant proportion of employees covered by the SCHADS award are low paid.  They seem to reference the 2 September decision as authority for the proposed finding or the submission that a significant proportion of employees are low paid.  That's a mischaracterisation of the finding in the 2 September decision.


If I can take your Honour's to page 6 of the union's submission in response to question 5 of background paper 3.  They indicate that they challenge some of the AVO findings.  I might just made this more generic observation or submission before I look at the individual findings.  As I indicated earlier, the parties through the last couple of rounds of submissions have articulated the proposed findings that they've invited the Commission to make and parties have had an opportunity to respond to those findings and indicate which ones are challenged and which ones aren't.


It's reasonably apparent from those submissions that some or all of the parties, and I don't mean this as a criticism and I include my clients in this.  Some of the parties have put these findings in absolute terms and certainly, our response to some of the unions' findings is to come back and say well, we don't accept that the evidence supports a finding in such absolute terms that all employees travel by motor vehicle or whatever the case may be.  All shifts are short or employers adopt particular practices in relation to broken shifts.


The observation and the submission that I'm wanting to make is that in the context of these proceedings and the four yearly review, the evidence is obviously helpful in providing the contextual background for the issues in dispute.  There's evidence before the Commission from employers, from employees, from academics and other experts.  It's helpful to pain that picture, but ultimately, none of the evidence will go to a point where the Commission can make absolute findings about what every employer or every employee does out there.  So I think that's an important observation to make.


The union, in responding to some of the findings that our clients have proposed, have purported to challenge the findings or have indicated that they challenge the findings.  This is articulated in our reply submissions.  In indicating that they challenge the findings, there's a number of occasions where, in doing so, they don't necessarily disclose any basis for the opposition.  They don't indicate that the evidence that we've identified and relied upon in support of that finding, they don't indicate that they challenge that evidence.  They don't advance other evidence that seems to indicate a contrary finding.


In a number of respects, or in relation to a number of the proposed findings their submission states that they urge caution on the Commission.  Not because they necessarily challenge the evidentiary foundation for the proposed finding that we've advanced, but because they seem to be concerned about the consequences of that finding being made by the Commission.  In a number of parts of their submission they say well, the Commission should be cautious before adopting this finding because it appears to lay the foundation for a particular submission being made, or it lays the groundwork for some other conclusion down the track.


What we say is, in circumstances where the unions have put those submissions in purporting to challenge or challenging our proposed findings, the Commission should disregard or give very little weight to the basis for that challenge.  So, in other words, in our submission, or reply submission, we've gone through those findings in a table form and have indicated that where the unions purport to challenge it, they don't actually articulate the basis for it; they just say they don't agree with it, or they raise concern or they say the Commission should exercise caution.


We've indicated that the finding has not seriously been challenged in the sense that they haven't challenged the evidence underpinning it all, advanced other evidence that would paint a difference picture.  I guess in that context, what we say is, where that has occurred, the findings that my clients have invited the Commission to make should be made.


The more recent submission that my clients filed on 26 February has an attachment to it which I think there's 92 or 93 proposed findings that have been advanced by my clients.  We've gone through and effectively assessed the status of those findings by reference to what the other parties have said about them.  Whether the parties have challenged them, and if so, the basis for the challenge.  If you have a colour version, you'll see that it's been colour coded green, where the finding hasn't been challenged or hasn't seriously been challenged or there's no proper basis to support a challenge.  So, what we say, is those findings that haven't been challenged, there's no reason not for those findings to be made by the Commission.


I think it's something like 70 out of the 90 odd proposed findings that our clients have advanced that haven't seriously been challenged, so those should be made.


If I turn back to page 6 of the union's submission of today, they indicate at paragraph 20 that no challenge is made to the first dot point.  In relation to 21, the unions appear to agree that times spent travelling between locations may vary.  That's another example your Honours, of where the finding as put is not challenged.  They've agreed with the finding and then provided some commentary about some other things or some relevant considerations that they say.  But the point is that from a forensic perspective the finding has not been challenged; they've agreed.


Paragraph 22 is in the same nature.  They make an observation that the finding at the third dot point appears to proceed on some assumption.  They make some submissions about the capacity of employers to manage the scheduling of work.  But the key point is the finding hasn't been challenged.  If it's convenient I'm happy to go to the background paper and cross-reference it against what finding they're referring to, but for convenience, unless your Honour's prefer me to do that, I won't.


In respect of paragraph 23, the ABI finding or contention is that employees often undertake non-work related activities in breaks between work during a broken shift.  Now, the unions - it's not necessarily clear whether they agree or disagree with that finding.  They haven't said that they disagree.  What they've said is that, or they've made a reference to the evidence that has been relied upon by my clients in support of the finding and they've criticised the evidence.  They've said the evidence doesn't support the finding being made.  But they haven't said that they challenge the proposition.


We accept in relation to this finding at least that the evidence is fairly thin in the sense that there's not a lot of evidence before the Commission about employees undertaking non-work related activities in the breaks between work during a broken shift.  At least part of the reasons for that is that it would seem to be self-evident.  The unions will say well, and they have said this and I don't disagree with it.  They've said that well, not all of the time in the break can be used by the employee to do what they want.  There's travel time, there's getting from point A to point B, there's potentially some administrative time.  They might be in an inconvenient location; they might be far away from home.


We accept all of that, but again, we think the Commission can make that finding in the context that the unions haven't - there's no any employee evidence that says I do not undertake non-work related activities during any break of any broken shift.  I never undertake non-work related activities.  As a matter of common sense, employees will do a range of things during the break, most of which will be non-work related activities.  Some of it might be work related activities, some of it is travel, undoubtedly.  And that's borne out paragraph 27, the unions indicate that "Although employees may make some use of the broken time between engagements for their own purposes, a significant proportion of the downtime may be either lost to the employee for various reasons."


So, even at paragraph 27, the unions are effectively acknowledging that employees may make some use of the broken time for their own purposes.  It shouldn't be controversial.  The controversy might be, well the degree to which, or the proportion of which time is used for non-work versus work related purposes.


At paragraph 28 they refer to the proposed finding at the sixth dot point.  They don't challenge that.  If I move to question 7, it's a question about the alternative variation proposed by ABI.  This relates to the kilometre allowance that our client's have advanced as a potential solution to the issue of travel time.  Now, our position in relation to travel time is that the unions proposal is not workable.  We've outlined pretty detailed submissions identifying all the issues with it.


The unions have not, at any point in time, engaged with the issues that we've raised.  They haven't addressed them at all.  There's some references here to paragraphs of their submissions and this is at 32.  They say they oppose the variation that our clients have put forward. They say they've dealt with it in detail in their previous submissions and they reference a bunch of submissions.


I'll do this in a painless way, rather than take you to the relevant parts.  But I've looked at the relevant parts of those submissions that they've referred to and it is apparent that they just don't engage with the issues that we've put.  The default position seems to be with the union that travel is time worked.  Travel should validly be time worked.  They advance the arguable position that it already is the time worked under the construction of the existing award, but they say that travel is time worked and should be paid as such.  But again, they don't engage with the issues that we've raised.


Again, a good example of this, paragraph 33 over the page.  33(d) they say:


Finally, the submission that the union's travel time proposals are unworkable cannot be sustained.


They don't say why, they just say we're engaging in a beat-up saying it's unworkable, but it actually is.  It is workable.  They say the evidence before the Commission is that employees in the home care sector and in disability services have regard to travel time when rostering employees.  Seems fairly uncontroversial.  They've adopted methods of recording work travel for the purposes of paying the travel allowance.  I take that to be a reference to the kilometre reimbursement under the award, and presumably, or a common way of doing that would be that employees keep a log book of their kilometres so that they can claim reimbursement.


They acknowledge that some employers may change how they organise work if the union's proposal were adopted.  They also reference at other points the fact that some employers, and the evidence before the Commission is that some employers already do pay something in respect of travel time.  There was varied evidence on that point and there was evidence of varied practices.  So some paying, some $15 lump sum broken shift allowance.  It was expressly in the enterprise agreement intended to compensate for travel.  There were some other slightly more complex arrangements.  CASS was the employer that had a particular formula for determining that.


With respect, the fact that certain employers have different practices out there, does not somehow make the union's proposal suddenly workable.  The employer practices are different to the union's proposals, so I'm not sure that the fact that there's some existing practices to remunerate employees, results in a finding that the union's proposal around travel time has no issues.


DEPUTY PRESIDENT CLANCY:  What's your position then, ultimately?  You've raised this arrangement that was in the ACT award and the NSW State award.  Is that an alternative you're pushing, or?


MR SCOTT:  There was a question in the most recent background paper which we've answered in our submission and I'm just going to go to that, because I want to express it accurately.


DEPUTY PRESIDENT CLANCY:  I think your answer is yes.


MR SCOTT:  That's right.


DEPUTY PRESIDENT CLANCY:  Well, if you can elaborate on that I suppose.


MR SCOTT:  I thought we were slightly more delicate, and I think we were in a draft and then we went back to, yes.  So, in answer to that question, it's not - it hasn't been put as a variation by our clients which we're pursuing.  There's no draft determination from our point in saying you should do this.  What it is, is it's a response to a union proposal which our clients say is unworkable.  We've articulated in previous submissions - - -


DEPUTY PRESIDENT CLANCY:  Which union proposal?  Because we've - well, how is it unworkable if you're saying it's referenced to time travelled between clients and theirs is, as well?  It's just a different rate that would be applied to that.


MR SCOTT:  My understanding is that neither union proposal is calculated based on kilometres.  Unless I - and I take it on notice if I'm wrong.  But my understanding is both union proposals around travel time is that the time spent - and I'll try and articulate this in a more fulsome way.


There's two types of work that we're talking about.  There's a continuous shift and there's a broken shift.  In respect of the continuous shift, so a six hour shift from start to finish, it naturally follows that if there's any travel in that six hour period, it is time worked.  The issue only arises in the context of a broken shift where employees are travelling during that break.  The two union proposals, I think it's the HSU proposal which deals with travel time in the context of the broken shift's clause.


The UWU proposal, from memory at least, doesn't necessarily deal with it in the context of broken shifts, they simply have a proposal which says any time spent travelling is paid and it's time worked.  So, my understanding at least is the two union proposals are both in respect of - are both proposing that employees be paid for their time spent travelling.  The HSU, as I understand it, have a proposal to extent the existing kilometre reimbursement allowance to travel from home to the first engagement and from the last engagement home.




MR SCOTT:  Yes, yes.  At least from my client's position, in-between, we don't - our position is that if you're travelling in-between, it would be naturally paid anyway, because the kilometre reimbursement allowance talks about travelling in the course of your duties.  So, in the context of a continuous six hour shift, you're travelling in the course of your duties. In the context of a broken shift, if you're travelling during the break, the kilometre allowance is still payable because you're travelling in the course of your duties, assuming you go the direct route.


DEPUTY PRESIDENT CLANCY:  Well, yes, the parties can have disputes about that in the usual way.  Then why put up the 3 per cent?  Is there an hourly rate for each kilometre travelled between clients?


MR SCOTT:  So, we're not seeking to disturb the existing kilometre reimbursement allowance.




MR SCOTT:  Of 78c per kilometre.  Presumably the intention of that provision is to reimburse employees for petrol, wear and tear, maintenance of their motor vehicles.  It's set presumably, consistently with the ATO position on cost of maintaining a motor vehicle.  What we're proposing is in lieu of the two union proposals that travel time be paid as an hourly rate, is that rather than travel time be paid at an hourly rate, it be paid in some other way, in the form of an allowance at 3 per cent of the hourly rate per kilometre.  We've taken that straight from a couple of pre-reform awards.


My understanding is that if you do the maths, it roughly works out to be the hourly rate.  It's intended to compensation not for the wear and tear of your tyres or your petrol or anything else, it's intended just to compensate for the fact that you have to spend time travelling.


COMMISSIONER LEE:  Can I - while you're thinking?




COMMISSIONER LEE:  So, is the New South Wales State Award and the ACT Award, were you in a position to know what the - how to describe - the industrial provenance of those provisions.  You know, were they something that I'm sure in a very sophisticated way, but were picked up in a room and brought into the Commission and stamped?  Or is it something that was the subject of some arbitral proceedings or?


MR SCOTT:  The short answer is I don't know.


COMMISSIONER LEE:  Don't know, yes I'm sure.


MR SCOTT:  We haven't looked into the history of it.  What we do know though, is that that provision or something similar to it, is something that's common place within enterprise agreements in this sector.  We've referenced that in one of our submissions that - and we've given as a footnote, some examples of enterprise agreements.  My understanding is that that kind of formulation is in a temperate EA in the aged care or home care industry that has done the rounds and has been in practice in the context of enterprise agreements for some time.


In terms of the history or the provenance, in terms of whether it was a consent arrangement or whether it's been tested, I don't know.  Certainly, I'm not going to say that it's perfect, but the difficulty is we've raised - there are legitimate issues with the unions' proposal.  We've raised them in these proceedings.  I think their difficult issues to answer, so I'm not being critical of the unions, but they haven't engaged in the issues.


COMMISSIONER LEE:  I'm not criticising you for raising these as ideas, but obviously the Bench, if we were to go along this road in any way, we would have to have an understanding of how it came to be.  I mean, you just made the comment that from the Bar table, you get no prisoners for doing it, the conjecture really that the maths roughly works out the same, well that may or may not be right.  It might depend, as the Deputy President and I were discussing earlier - the Deputy President was correctly pointing out to me these would vary if there was congested traffic as opposed to a free highway in the country and all those sorts of things.


Like all these things do, it raises a lot of questions.  Sorry, and just to finish, it might be some of the answers to those questions lie, and if there is anything in what led to them being put into those awards in the first place.


MR SCOTT:  I accept that and to the extent that provisional views are expressed by the Bench, then there perhaps can be a further round, dare I say it, a further round of answering some of these questions.  But given that it wasn't a proposal that we were advancing in our own right.




MR SCOTT:  It was something that we said look, I'm repeating myself - but there's issues with the unions' proposals.  Unless they can be solved in a workable way, then the only other thing that we know of, that might work, is this.


COMMISSIONER LEE:  What about this, yes.


MR SCOTT:  That's as high as I can really put it today, at least.


COMMISSIONER LEE:  I mean again, the other key point, I mean I think there'd be little doubt that the level of complexity versus simplicity of any provision would be - speaking for myself, obviously something that significant regard would be paid to, to the extent that a provision is simpler, is better, the better it meets the modern award objective, arguably.  Is better able to be enforced and complied with because people understand it, record keeping is less difficult et cetera, et cetera.


Again, the question arises is, on one view, on the face of it, this is a simple provision.


MR SCOTT:  I'm not sure whether your referring to my client's provision.


COMMISSIONER LEE:  Yes, sorry, yes.  Sorry, I am referring to your client's provision, provided there was no dispute about the kilometres travelled and so on.


MR SCOTT:  Certainly, my client's position is that - and it's articulated in our written submissions, is that we have no philosophical objection with employees being compensated or remunerated for time spent travelling between client engagements.  The difficulty is in the context of a broken shift provision which expressly says the shift can be broken and it breaks it up into paid work, unworked and unpaid time.




MR SCOTT:  Employees are travelling in what the award says is unpaid time.  The unions' proposal is oh we just call it paid time.  It's not clear whether they're deeming it paid time, or whether it is paid time.  They've said today well, it is paid time but the clause says that they're deeming it paid time.  It raises a range of issues which we've expressed that unless they can be resolved we say that they're proposal can't succeed.  But not withstanding that thought, given our philosophical position on it, we've said well, we have no difficulty with them being paid, but it needs to work.  It needs to not have these huge issues.  So, we've advanced it on that basis.


There was a discussion earlier today about fundamental change in the industry, or fundamental change of the work.  What I'll say now, I made some general observations about the proposed findings and the fact that most of them can't be put in absolute terms and a lot of the dispute between the parties around the findings going back and forth, is that well you put that in absolute terms; we disagree with it.  In the nature of the review proceedings, industry based proceedings, the findings will naturally - most of the findings will naturally be generalised because you can't say every employee does this, or every employee does that.


In terms of the evidence and I refer to a lot of the evidence is of a general nature about the operating environment.  I said we rely on all of that evidence that goes to the vibe of the industry or the operating environment of the industry.  There's lots of rabbit holes that we can go down when we look at the submissions of the various parties.  This idea of fundamental change is one of those rabbit holes.  Before I go down it, what I'll say is that at a broad level, it's not particularly relevant, because we can look at forensically what is the change and is it fundamental or is not fundamental.


But ultimately, the task of the Commission is to look at the award and say is it meeting the modern award's objective?  Is it providing a fair and relevant safety net?  The evidence is instructive and it's useful, but ultimately, most of the claims, if not all of the claims before the Full Bench in this matter, will be granted or dismissed based on merit arguments having regard to some of the evidence.  But whether Mr Steiner travels 100 kilometres or 200 kilometres on a day to day basis, is not going to - the outcome is not going to turn on forensic matters arising from the evidence like that.


In relation to this issue of fundamental change, there was a discussion about fundamental change in demand for the services and one of the union parties submitted that there was no employer evidence that the demand has changed.  There was a discussion about whether or not there's been drastic variations in services, times, days et cetera.  The reality is, if we're talking about change, it's correct and the unions identify this in one of their submissions.  It's not necessarily - the Commission is not necessarily in a position to make a finding as to whether or not there's been fundamental change or not, because there's no evidence about, or there's very little evidence about what occurred prior to the relevant reforms.


So there's no baseline data as to say well this is what used to happen, this is now what happens.  When I say there's no evidence of that, there's some general evidence but not in the detail.  So, the evidence is that prior to the reforms, there was a block funding arrangement which meant that a service provider got a pile of money from the government and they had greater control as to how they spend that in delivering services to people.  A lot of the services were group services, so it may be that six individuals are taken on a particular outing for three or four hours.  The employer had the ability to say well, this is the service that we're providing to you, here it is.


The reforms and the move towards that individualised funding model, that is where the fundamental changes occur, because the individuals now have a greater level of control and choice as to - in terms of expressing what they want from their providers.  It's true that employers, they're not compelled to provide the services; they're not compelled to provide the services at the time or the place or for the duration that their client wants, but of course, most of these mission-based organisations are set up to precisely do that.  The motivations or the goals behind the reforms are to provide services to these individuals in a way that they want it.


So, there's been this discussion about open market and the fact that there's - you know, it's a competitive market and employers need to make decisions like most other businesses in an open market.  That's partly true, but it's not true because under the NDIS, it's not an open market; there's price regulation.  The NDIS or the NDIA say to employees and service providers, you can't charge more than this. So, there's a transition towards more of a competitive environment, but ultimately, the principles of open markets don't necessarily, or can't be applied to the sectors that we're talking about.


There was some criticism by the unions of the Miller statement and the further Miller statement about the way in which - and I think this arose after the 15 October hearing where the Commission requested some of the witnesses to provide some further information about the break-down of broken shifts and some data on how many breaks are there between - in each broken shift, and some criticism of the Miller statement.  There's no mention whatsoever of the further Mason statement.


So, there's a further statement of Wendy Mason.  It was filed on 25 November.  It doesn't suffer from any of the same problems that the further Miller statement suffers from.  So, when the unions say well, there's no employer evidence about the duration of services, broken shifts, the number of breaks, fluctuations, cancellations, there's certainly evidence of how many broken shifts occur within Baptist Care over a one month period.  There's evidence of the proportion - for each of those broken shifts how many breaks there are in the shifts.  There's evidence before the Commission from a range of employers and businesses about the number of cancellations that they suffer from, or that they receive in delivering their services.


It may be the case that the Commission can't make a finding that there's been fundamental changes from pre-reform to post because we don't have the ability to compare apples with apples, because those same employees haven't said well, prior to 2013 these are the number of cancellations we had in a given month, look at how it's increased.  But you've got evidence from the employer saying it has increased.  Cancellations are happening on a daily basis, and a lot of this really shouldn't be controversial, and again, I'll go back to the vibe of the evidence.  But the evidence of Dr McDonald, the evidence of Dr Stamford, the evidence broadly speaking, all of the reports that are before the Commission, they all talk about the fact that these reforms are significant.


The NDIS has been referred to as the most significant reform since Medicare.  It should go without saying that it's going to create huge changes within the operating environment for employers.  You've had employers say that.  So, I caution against the Commission looking at every piece of evidence and searching for the golden piece of evidence from an employer that allows it to make some significant finding.  That said, we proposed a bunch of findings, 92, 93, 70 of them have not been challenged, so those findings certainly can be made.


That's all I wanted to say about the recent submissions, or the submission from today.  In terms of our claims, our client's claims, we've got three claims on foot.  Unless there's any questions from the Bench about our submission from this morning?




COMMISSIONER LEE:  I'll just draw our attention back to the addressing the concerns about part time employee hours.  I understand that - is this one of your claims or just an approach you put forward?  That is the review of part time hours to be taken.


MR SCOTT:  It is in the same category as the kilometre travel time issue, which is that we're not actively advancing it as a claim.  What we're doing is in the context of responding to the union claim which is to effectively seek to remove the existing arrangement where part time employees can work additional hours up to 38 without overtime being attracted.


We've said look, if the concern of the unions is that employers are setting part time hours artificially low, and somehow benefitting from this notion that well, we'll set your hours at 15, you'll probably work 28, no overtime is applicable.  There's no real incentive for us to set it at 28, because what happens if we can only provide you 26, so we'll set it at 15, knowing full well that you'll most likely accept the additional hours.  That seems to be the issue.


What we've said is, the union's proposal is not the best way of solving that issue.  This review of part time hours provision that we've floated, gets the job done.  It solves the problem without any adverse consequences or any material adverse consequences for employers or employees.  The adverse consequence for employees is that if additional hours are paid at overtime rates, well employers will do everything they can to avoid having to pay overtime because they're running businesses and there's funding restrictions and naturally, they'll source the cheapest labour that they can find.  If casuals are cheaper to work that shift than a part timer, then they'll do that.


So, the union proposal, one of the consequences of it is that it will actually harm these employees, because they'll lose the opportunity to work additional hours because the employer won't offer them, because the employer knows that they've got to pay overtime rates.  So, this review mechanism, it's similar to the notion of casual conversion and reviewing or considering whether or not it's reasonable to convert an employee from casual to permanent.  It's obviously different, but it's kind of notionally the same of conceptually the same that it's an annual process whereby you sit down with an employee and say well, when you commenced employment with us, we offered you a part time contract of 15 hours because we weren't sure about the peaks and troughs of work that we had for you.  It's now abundantly clear that you're working 25 hours every week.  That work is really predictable, that work is really regular, that work is essentially guaranteed, so we will now bump you up to 25 hours a week.


Alternatively, the conversation will be, well look some weeks you work 18, some you work 32, some you work 25.  Have a discussion about whether the employer can increase the number of guaranteed hours.  It's again, something that's been taken from enterprise agreements in this sector.  Presumably those enterprise agreements have been negotiated with some of the unions here today and it seems to get the job done.


I'm content to rely on our written submissions in relation to both our claims and the union's claims, but it might assist the Commission, and what I was intending to do was just to go through and confirm what our position is in relation to the various claims, at the very least.  So, our clients have three claims on foot.  The first relates to the change of roster clause, which is 25.5(b)(ii).  The second relates to client cancellation and the third relates to remote response work.


In relation to the rostering proposal, and these are set out in a further amended draft determination that was filed on 10 February.  I think we had an amended draft determination filed on 15 October.  The only reason for filing the further amended draft determination in February was that it was at the invitation of the Commission arising from the background paper process.  The draft determination was only tweaked in relation to the issue that the Commission had raised.  Otherwise the proposals hadn't changed.


The proposal in relation to change of the roster clause, certainly our submission is it's a relatively - should be a relatively uncontroversial proposal.  It's broadly consistent with a decision that arose in the review of the Nurse's Award which is referenced in our submission.  The current provision 25.5(d)(ii), provides the following.  I should take a step back.  25.5(a) I think is the provision that says rosters must be set 14 days or two weeks in advance.  25.5(d) then says that:


However, a roster maybe altered at any time to enable the service of the organisation to be carried on where another employee is absent from duty on account of illness or in an emergency.


The focus here is that the terms absent from duty on account of illness or in an emergency.  Now what we propose to do which consistent with the Nurse's Award decision, is just expressly reference the sum of the forms of leave that are provided for in the award such that rather than having on account of illness, you say well on account of personal carer's leave, on account of compassionate leave, on account of domestic and family leave, on account of ceremonial leave, et cetera.


AiG raise and validly raise an issue in the sense that in us translating that across, the words "on account of illness" dropped out.  So we effectively replaced the words illness with the forms of leave provided for in the award.  AiG raised the issue that well, you have actually confined the ability for the employer to cancel - to change rosters in certain circumstances because it won't always be the case that an employee, when they are ill, are exercising paid personal carer's leave.


For example, if an employee doesn't have any entitlement or any accrual, they've exhausted their entitlement, then it will unpaid leave.  But the employee is still ill and equally, the other issue is when an employee might be on Workers Compensation.  It certainly wasn't our intention to confine the clause in that way.  It can be resolved quite simply by putting the words after all the various forms of leave as provided in the award, add the additional words "or on account of illness".


It seems to be a proposal that general merit.  The unions are opposed to it and the basis for that seems to be well,  you haven't filed any evidence in support of it and we say well, that's true, we haven't.  But consistent with the legislative framework for the review and the authorities which are largely agreed between - or are agreed between the parties.  The Commission released a document on 12 April setting that out.  Where a proposal is a merit-based proposal and self-evident, then there's no need for any evidence.  I'm not necessarily sure what evidence from employers or employees or anyone else would actually be filed in support of that.  It's just a merit-based argument.


In relation to the client cancellation clause, this again set out in the further amended draft determination from 10 February 2020.  Your Honours will be familiar that the award already has a client cancellation clause.  It's limited to the home care stream, or to home care workers.  What we seek to do is extend that to the disability services stream and disability support workers.  There's no good reason why it shouldn't be extended.  The disability sector is just as exposed as the home care sector to client cancellation events.


Indeed, due to the funding arrangements with the NDIS, disability providers are actually more hamstrung than employees in the home care sector, when they're dealing with client cancellation events.  So, as a just general logical proposition, there's no common sense reason why there's a client cancellation clause limited to home care and does not apply to disability.  In seeking to extend it to the disability sector, we've proposed a more robust clause, an arrangement whereby make-up time has worked.  It's significantly more beneficial for employees than the existing client cancellation clause.


At least some of the unions acknowledge that it's an improvement on the existing clause and yet they're still opposed to it.  Or to more accurately convey their position, they're happy for our clause to apply to home care because it's an improvement on the current home care cancellation clause, but they're opposed to it extending to disability, and we've made some observations in our previous submissions about the credibility of adopting that position.


If I turn to our third and final proposal, it relates to remote response.  This issue has been a moving feast throughout these proceedings which Commissioner Lee has presided over many conciliation conferences.


COMMISSIONER LEE:  I've been at a few feasts, yes.


MR SCOTT:  Now, as I understand it, there's two proposals on foot.  There's the proposal by my clients and there's a proposal by the unions, or one of the unions.  The key difference seems to be the scheme of remuneration or payment to be applied to the work that we are intending to capture.  Our most recent submission probably put it best in terms of trying to summarise the issues for the Commission to grapple with.  There's really three issues here for the Commission to determine.


Firstly, what's the type of work that the parties are seeking to regulate?  Secondly, does the existing award appropriately regulate that work, and if it doesn't, what terms and conditions should apply in relation to the work?  There seems to be general support, notwithstanding my friends from Ai Group.  There seems to be general support or general consistency in terms of the type of work that's looking to be regulated.  Certainly, my client's position is that the award as it currently stands doesn't adequately regulate the work.  I take it from the unions' position that that's agreed by them.


So, really the issue is what terms and conditions should apply in relation to the work.  There's two proposals before the Commission.  I'm consent to rely on our written submissions in support of ours.  If your Honours just bear with me, I'm just turning to the union claims and just wanting to circumvent today.  So if you'll just bear with me, I'll just see whether there's anything in particular I need to say.


What I will say is, and this arose before the lunch break in respect of one of the questions from Deputy President about the intersection of minimum engagements and travel time.  I think there may have been some confusion about how the unions' claims interrelated or related to each other.  The reality is, that a lot of the union claims that they're pressing in this matter do overlap and they're of a cumulative nature.  So, if we're talking about minimum engagements as an example, if the Commission grants a minimum engagement for part time employees, or increases the minimum engagement for casual employees, that will, in many cases resolve some of the concerns around travel between broken shifts.  I'm not saying it will resolve everything, but it will address that issue.


There's more than one way to skin a cat in terms of resolving some of the concerns or some of the issues with the award.  The unions have kind of gone for the - and I'm not saying this in a critical way, but the reality is they've gone for an either/or approach, particularly around broken shifts where the HSU have proposed some restrictions on the way in which broken shifts can be worked, both in respect of minimum engagements but also in the limiting the number of breaks that can be worked in a broken shift.  And the ASU have taken the slightly or have taken a different approach which is to propose a 15 per cent broken shift loading on the basis that there's disutility associated with working a broken shift.  It should go without saying but the reality is if some of the union claims are granted then the merit for some of the others immediately falls away.


COMMISSIONER LEE:  For example, if we exceeded to, just to pick a number out of the air, don't panic anybody but minimum engagement of two hours for part-timers, presuming it was expressed to also cover components of work within broken shifts that they would also have to be two hours, but that would skin that cat.  Is that kind of what you're saying?


MR SCOTT:  That's right, that's right, because the ASU broken shift loading of 15 per cent claim - I'll rephrase that.  The HSU are attempting to - are seeking changes to the broken shift clause that would limit or minimise any disutility associated with working a broken shift.




MR SCOTT:  The ASU are not trying to do that, they're just saying well the disutility's there so compensate it with a 15 per cent loading, and what my submission is well you obviously don't do both because if you address the disutility through the HSU proposal the merit for the ASU falls away.  And conversely if you grant the ASU claim then the HSU, the merit for those proposals falls away.  So there is more than one way to skin a cat but the claims are of a cumulative nature and I think my client's position in relation to some of them has been a little bit difficult because - and we've articulated in our submission our position around minimum engagements and we've said well, we don't oppose the introduction of minimum engagements for part-time employees.  And yet the position - that position might not be the case if a 15 per cent broken shift loading is applied and if other restrictions on broken shifts are granted.


So we've taken a position which is that some of these things are sensible and in our submission are the best way of resolving the issues, but I don't want the position to be that well Mr Scott supported this so we'll do it but we'll also grant all these other claims.  Because obviously our position on one thing is conditional on other things not happening.


COMMISSIONER LEE:  Yes, understood.


MR SCOTT:  So just in respect of minimum engagements, our client's position just for abundant clarity is that we're not opposed to the introduction of minimum engagement for part-time employees provided that they're consistent with the quantum of the minimum engagement for casual employees, as currently stated in the award.  From a logical perspective there's no reason why - - -


COMMISSIONER LEE:  Which remind me discriminates between the different sectors doesn't it?


MR SCOTT:  That's right.  So homecare, the minimum engagement for casuals is one hour. Disability, minimum engagement two hours, the broad SACS stream three hours.  So our position is that we're not opposed to those minimum engagements being applied to part-time employees.  The one caveat on that is that we're proposing a carve out that there be a one hour minimum engagement for employees attending staff meetings and training, and that's on the basis that under the current regulatory system; i.e. the NDIS and Homecare and some of the funding constraints, the training's not funded.  There's no real adequate - or to the extent that it's funded, it's inadequate and so employers are being squeezed and staff development or training is going out the window.  If in order to have a monthly staff meeting you've got to apply a two or three hour minimum engagement well employers just won't do it.


In relation to broken shifts, again we've taken a reasonable position in the sense that whilst we're opposed to the union's claims, that's both the HSU and the ASU broken shift loading, we don't oppose certain elements of it.  So we don't oppose the introduction of the requirement that broken shifts only be worked where there's mutual agreement between the parties.  We don't oppose the proposal that the existing payment for employees when working broken shifts, that is where working a broken shift, a shift penalty arises and it's based on the finishing time of the shift.  The union's proposal is that that shift penalty be paid based on either the starting time of the shift or the finishing time, whichever results in the greater loading.  In our view that's uncontroversial.


We've also indicated that we're not opposed - and this is in relation to limiting broken shifts to one break and two portions of work.  Now the evidence before the Commission is that there's clear peaks and troughs in the timing of demand for service and the times of the demand; a peak in the morning and a peak in the evening.  There's also evidence about a third peak to a lesser extent but still a third peak in the middle of the day.  The union proposal is to minimise or to limit the broken shifts to two portions of work and one break.  Our client's aren't opposed to a clause that would permit an employee to work a broken shift with more than two portions of work by agreement, so what we're saying there is the standing proposition is one break.


COMMISSIONER LEE:  Yes, but you could agree couldn't you - - -


MR SCOTT:  You can agree the two breaks, three breaks, four breaks and there might not be specific evidence about this but the reality is that there's three peaks in demand for services.  There are employers in the sector who will do a shift in the morning, a shift in the middle of the day and then a shift in the evening.


COMMISSIONER LEE:  There is some evidence of that, Ms Dowse took us to it this morning.


MR SCOTT:  The HSU proposal would effectively prevent an employee - it would prevent the employee from picking up a portion of work even in circumstances where they want to do it.  I've largely addressed the overtime for part-time employees around, you know, additional hours up to 38 without the payment of overtime.  We say that the review of part-time hours provision that we've advanced solves the problem without all the unintended - or intended or unintended - without the adverse consequences for both employers and employees.


There's also a claim for overtime where employees work in excess of eight hours per day.  We've addressed in our written submission why that's inconsistent - well firstly there's very little evidence that would support that.  Secondly, it's inconsistent with most of the modern awards and the modern award system out there.  Our submission refers to the Health Professionals Award, the Nurses Award, the Support Employment Award, the Local Government Industry Award, to demonstrate that this is out of sync with the Genuine Modern Award system for people in the caring industry.


I've largely addressed the travel time claims in the sense that - I'm content to rely on our written submissions and the position quite simply this.  We've identified the issue, at no stage have any of those issues been addressed.  There's no solutions for it.  We've proffered something that's workable.


If I can just touch on the community language allowance provision.  Our most - and I made this - I prefer not to do this given the time but I might take you to our most recent submission.




MR SCOTT:  26 February.  It's page 25 of that submission, it's part (e).  We spent a bit of time setting up the background and the chronology and we have a bit of a spray in terms of the way this matter's evolved.  In short, the position is that the ASU advanced the clause back in February 2019 for a new community language allowance.  Our clients filed evidence - sorry, filed submissions in April 2019 outlining the raft of issues with the clause.  There was then a hearing in April 2019.  The union - the ASU having had the benefit of both my client's submission and the Ai Group's submission and other employers' submissions about the problems with the clause doubled down, didn't seek to change it but advanced it.


The 2 September decision has effectively said well, the Bench didn't make a decision in relation to the claim, the claim got hived off into a conciliation conference and process.  Bear with me because I want to make sure that I'm accurate.  It's not until 7 February 2020, so a month ago, that the union has advanced a brand new clause.  So after my client spending a year dealing with the initial clause, the ASU having the opportunity to revise its position.  In fact in April it did revise the position, it filed an amended draft determination but didn't address any of the issues.


We're now 12 months later dealing with an entirely new clause.  The union has advanced it on the basis that it narrows the issues in dispute and it certainly narrows some of the issues, but it also expands some of the issues as well.  That's set out in paragraphs 142 - sorry 159 and 160.  148 to 158 we say how it's different.  159 to 160 we say that it extends or expands the issues in dispute. Paragraph (1) of 160 to 166, we effectively put the application or the submission that as a matter of fairness for our clients the ASU shouldn't have - it shouldn't be given the opportunity for a second bite of the cherry, in circumstances where all the parties here have spent a year arguing about a clause, they had the opportunity to change the clause and advance something alternate.


A year later they've thrown this in at the 11th hour, and we're now dealing in closing submissions about an entirely new clause.  They seem to rely on the evidence from April last year in support of this clause.  The submissions that they've put in support of it are certainly not extensive.  We've responded identifying our position in relation to it.  That's at 167 to 177 of our submission.  So I put the application that the ASU should not be permitted to re-agitate and re-run its case 12 months later.  Notwithstanding that I make some observations and submissions about that.  I'm content to rely on it in writing.  There's very little submissions in support of it, I'll make that observation.


Unless there's any questions, that's all I propose to say if the Commission pleases.


DEPUTY PRESIDENT CLANCY:  Thank you.  Yes, Mr Ferguson.


MR FERGUSON:  Thank you, your Honour.  Unless there are questions, I only propose to deal with five issues.  The first arises from the answers to the supplementary questions provided by ABL this morning as the answers to the background paper, and the first relates to question 6.  That's the question about whether ABL are actually proposing their alternate travel payment provision.  We've sort of briefly addressed that in our answers to that background paper as well.  Really the crux of what we're saying is if they're going to actually propose this as a payment and it appears they now are, and we now know that with certainty, and the Bench is potentially attracted to it, the appropriate steps would be to give the parties a further opportunity to consider the matter, from our perspective consult with the relevant members and then potentially respond further before any definitive decision is made about it.


I say that on the basis that on the face of it I can see some attraction to that if you accept that something has to be done over that proposed by the unions, but I don't say that it's necessarily a sort of innocuous provision.  We know from our experience in other industries where there are requirements, for example, to record kilometres travelled and to convert that to a payment, that there are all sorts of administrative costs at the very least associated with that.  Costs of setting up payroll systems and they're not insignificant.  They've been the source of great controversy in other sectors, particularly the road transport sector.  But then there's potentially administrative costs with checking sheets if you're going to do it by hand as to how you would measure those sorts of issues.


Of course there's an actual cost just flying from the claim straight out depending on how you interpret the provision.  I say that depending on how you interpret the provision because there's probably some examination of the word consecutive that needs to be undertaken.  For example, is it just a payment that would attach with your travelling immediately from one - and directly, from one client to the next or is it just the case that this will be payable whenever you've got two clients that you're visiting on the same day; i.e. is it payable when you don't even travel directly to the client.  The only point we're making there is it probably does require some further examination and we'd want that opportunity, and we say that fairness will dictate that.  That's that issue unless there are any questions.


DEPUTY PRESIDENT CLANCY:  Just the - I mean you said it's now a claim.  I think Mr Scott turned himself inside out saying it wasn't a claim.


MR FERGUSON:  Well, maybe - - -


DEPUTY PRESIDENT CLANCY:  What he was saying is if we're going to go somewhere on this look at that.


MR FERGUSON:  I think that's right.  I think it's just been elevated above the point where it was sort of floated to if you're going to go down this path that's what we would propose, as I had understood the position.  We would be supportive of that.  But it is only in that - you know, in the context of that caveat that if there was an issue that would be one remedy that would be available, but I had understood that they were supportive of that if there was a view that something had to be done.


DEPUTY PRESIDENT CLANCY:  Yes, I think that's right.


MR FERGUSON:  We didn't have that level of certainty - well we certainly didn't apprehend that they were at that level of support for it before then, and just in that claim obviously the framers of this background paper weren't either.


DEPUTY PRESIDENT CLANCY:  Your submission is that it's better than the union's position but there might be some complex - there might be some problems with it.


MR FERGUSON:  Yes, it seems on the face of it to be better and we've hurriedly since the release of the paper started to engaged with industry but I'm not sure that it's entirely palatable and we just want to give that some though.  But I say that not wanting to necessarily come down with a position that, you know, we would prevail against it.  We'd want to consider it further.  So the proper course of action would be if the Bench was potentially attracted to it to reach a provisional view expressing that but giving the parties another opportunity to respond to them.  I say that there's probably issues of detail at the very least that would need to be worked through in terms of the framing of the wording and so forth.


Can I say a similar issue arises in relation to ABL's response to question 11, which is the further alternative proposal if I can put it that way.  That was the proposal relating to the mechanism for varying a part-time employee's hours.  Now again on the face of it you can see how this may be less problematic than the union's initial claim in relation to the requirement of additional overtime hours and so forth, but if it was to be seriously entertained by the Bench if the Bench thought that it had some attraction, we'd simply want the opportunity to further consider that, consult with members and then respond accordingly.  It may well be that industry raises issues that we're not privy to and again on a cursory review of the provision itself one suggests that there might be some questions about how it operates just on the wording of the provision.  But I don't think there's merit necessarily going through all of those issues now.  Again, we say the course that is the proper approach is to adopt the same course as with the last provision.




MR FERGUSON:  Next issue I want to deal with is the HSU's challenge to our response to question 5 of the background paper.  I don't want to elevate this to a major issue.  The simple proposition is we were asked a question, we've endeavoured to respond to it in the only way we could, after consulting with members.  The union's position is we'll give that no weight.  I think the crux of it is that they didn't file any evidence in these proceedings, so don't give that any weight, but I note they don't seem to have actually cavilled with the truthfulness of what we have put there, and assume that counsel's clients are well and truly familiar with practices in the industry, and our view would be that if there isn't some serious challenge to the content of what we are asserting, that the Commission can rely upon that content.  It is not particularly controversial.


Essentially what we are saying, and I will paraphrase somewhat, is that in times gone by, some of the services - just some - might have been delivered in a group or community context or environment, for example, clients may have come to pottery classes.  Swimming lessons was another example provided that were organised in a group environment.  Since we have had the shift to NDIS with the focus with the focus on individual client delivery and client control over their activities, there is a far greater degree to which individual disability support workers, for example, are actually now taking individuals to the activity they want to take, rather than corralling them into some collectively organised activity.  It is not a big point.  We are raising it because there was a question.


COMMISSIONER LEE:  I think it has been done to death, personally, that issue, but the concession is made that there's been the change in the industry in terms of the rights, if you like, of individuals to do certain things.  The factual dispute is, the unions say, that that's true but nothing has happened, nothing changed, or rather, I should say, there's no evidence that anything has changed, it's supposition.  That's the guts of it.


MR FERGUSON:  I think that's right and, as I said, I think some of the services, nothing in terms of the actual activities of the employees, if that's what the question was truly directed to, that may well be the case.  We were just raising the context that in some specific scenarios, as a matter of fact if not in the evidence, there might be some subtle changes, and I would be surprised if that was challenged.  It is not a very significant point and we're not really raising it for any purpose ourselves.


The next point I want to raise is just a small point in relation to travel.  There were some questions from the Deputy President to the UWU, if I recall, about how the provision that says that time would be treated as time worked, if you will, interacts with specific other provisions in the award, or with claims, more appropriately.  I just want to make the point that in our submissions, particularly our submissions of 16 September, we have gone into great detail about all sorts of problems with how the proposed travel provisions would operate and, in particular, with how this provision around treating time as time worked would give rise to difficulties with how that would interact with other elements of the award, and I take the Bench particularly to page 933 of the court book.  I don't take you to it now, I just draw y our attention to that page and specifically to paragraphs 63 and 64 of the submissions.


Just to give you an indicative example, the provisions around types of employment are quite prescriptive around part-time employment, for example.  They have specific rules about who is a part-time and there's assumptions around irregularity of hours.  Now that is going to be a real problem if, all of a sudden, time spent travelling, which in our submission is not currently regarded as time worked, is to be treated as time worked because, all of a sudden, you might have a part-time employee rostered to perform their usual or typical number of client facing hours who are also working a highly variable number of travelling hours, if you will.


Then that raises a question about whether they are still a part-time employee.  How do those hours get counted?  Are they ordinary hours?  There are all sorts of issues that flow from that, and the point that we have made - it is similar to one Mr Scott has made - is we have raised these issues long ago, none of them have been answered by the unions, and we say that really strikes at the heart of whether this claim can be entertained.  Beyond that, we are content to rely on those written submissions.


The last point I want to respond to is in the union's response to Background Paper 2 and specifically in relation to a matter that arises at paragraph 38 of that response.  In short, they there cavil with a finding that we propose that some employers endeavour to prepare a roster in a way that maximises their employees' working time and/or minimises the time their employees spend travelling to and from their clients.


Without taking you through all of the detail, they refer to the evidence of Dr Stanford and the evidence around the incentive to allocate work in an efficient way that minimises unproductive time being an indirect incentive and they talk to the phenomenon or the fact that it is evident that across the industry there are a significant number of employees that are working or have worked patterns that do not minimise their unproductive time.


I suppose the reason I respond to this is it seems to raise what is one of the central contests between the parties in these proceedings and that is the extent to which employers can, as a matter of fact, actually schedule the work so that it overcomes the concerns that the unions are pointing to about excessive breaks between shifts or excessively short shifts or unpaid travel time and so forth, and really it brings into focus the fact that the unions' claims, certainly in relation to travel time, broken shifts and minimum engagement, really rest on the assumption that if you just remove some of the award's current flexibilities by including the specific provisions they propose, well, employers will just respond by changing their practices and rostering people in a way that conforms with their proposals.  They are proposals that we say are very significant changes to the way the industry works currently.


In reply, certainly in broad terms, an element of our position and that advanced by others is, well, those proposed restrictions would be totally at odds or out of step with what employers need, the flexibility they need in order to meet the demands of the industry and it just wouldn't be workable or feasible.


In think, in truth, there's a more nuanced position which probably needs to be reflected compared to what both parties have put and that is undoubtedly some employers do offer a greater level of certainty to their employees in terms of less variability in the hours.  They don't reflect these situations.  Some employers are able to do that and that might in part be because of the service they are offering, they might be offering service in a group home and so forth, and it might be because, truthfully, there are not always the same obstacles, but there will be sometimes.  I am just trying to unpack that.


COMMISSIONER LEE:  You have just picked a couple of things out.  It might also be because some employers are better organised and turn their mind to it and find a way to do it.  It might be that as well.


MR FERGUSON:  That's a possibility but - - -


COMMISSIONER LEE:  These are all "might, might, might'.


MR FERGUSON:  That's right.  There's not necessarily evidence of that.  What there is, we say when you look at the material and you think about it logically, there are clear reasons why some employers will not be able to arrange and schedule work in the way that the unions are proposing.  Now the first one - - -


COMMISSIONER LEE:  We're back at the key factual dispute.


MR FERGUSON:  We are, but the first proposition that we would advance is when you have regard to the nature of the NDIS and the entire regime that that's implemented, it makes it clear that it sets up an environment in which employers won't have a free hand in relation to the scheduling of these sorts of issues.  At the very least, it sets up a market environment which impinges upon their ability to just unilaterally decide how client services are going to be schedules, at the very least, and, of course, it does that with deliberate intent of empowering clients to have greater control over these sorts of issues.


The second issue is there are specific factors that are in the evidence that suggest that employers won't be able to necessarily just roster things in a way that accord with the new proposed award clauses.  Firstly, you look at the fact that there are peaks in demand.  Now that, in itself, will be a barrier to people potentially scheduling work in the way the unions are proposing.  Secondly, you look at the need for continuity of the same disability support worker working with an individual client.  That again is an objective that might be a barrier to avoiding these sorts of breaks and unproductive periods of time.


I suppose what we are saying in broad terms is that it's the characteristics of the individual clients or of the specific service that is being provided that are going to represent a barrier to employers just sort of scheduling people consecutively.  They are going to cause or necessitate some breaks and some unproductive time in the scheduling of work, and I don't think that can be avoided or that it is seriously contested that there are those factors at play.


We say that that reality should sort of temper or reduce the Commission's willingness to implement these sort of sweeping or significant changes without clear evidence that they are workable, that the industry can implement them, and what we haven't seen from the unions is a parade of witnesses who are working in the context of, you know, supporting individual clients who are working these full, consecutive eight-hour days, or even three-hour minimum engagements or not broken shifts.  We haven't seen that evidence either and, as such, we say there is no basis for assuming that this is a workable arrangement or that employers are just electing not to make every effort to accommodate employee preferences.


COMMISSIONER LEE:  What do you say about the ABI proposition - sorry, I withdraw that - the ABI submission that they are not opposed, in terms of regulating the number of breaks in broken shifts to a standing proposition that there be one break but individuals could agree to two, three or four breaks?


MR FERGUSON:  We wouldn't be supportive of that proposition.  It is our view that there is a need for a greater number of breaks.  I think the evidence reflects that there is up to five breaks taken in some instances.  I think we have cited that in our material.  I can't recall where it is.  I think, on its face, the fact that there are these number of breaks in the shifts being utilised does support the proposition that that's necessary, absent some clear evidence that it isn't.


The only other proposition I want to say is we are not, in asserting this, saying that the clients are unreasonable or that they are making unreasonable demands.  Undoubtedly, there will be many clients that work with providers to try and reach a mutually agreeable position on these sorts of issues, but, as I have said, the circumstances of some clients will just necessitate that there are limits on what they can agree to.  I would ask the Bench to think about the circumstances, for example, of a person with a disability, a severe spinal disability, they want to get ready for the start of their day.  Now there are going to be limits on their willingness to push that back in order to suit the scheduling requirements of a particular provider.  If that provider specialises, say, in that area of disability, there are going to be difficulties for them because they are going to have a peak in the morning.  That's a logical proposition that I don't think can seriously be cavilled with.  As I said, we don't say that it's unreasonable but that there are genuine barriers to employers operating within the framework that is being proposed and we can only respond to the framework that is proposed and that is one that removes a great deal of flexibility.


Those are the submissions, unless there are any further questions.




MR PEGG:  I just have a few brief points to raise.  Primarily we rely on our written submissions in relation to most of the issues that we are dealing with.  I just wanted to pick up on a couple of things that have arisen today.


The first one is, at the risk of prolonging a discussion about supplementary question 5, just to make the observation I actually think we are in furious agreement about many things about what is or isn't happening.  The unions' own evidence from witnesses such as Dr Stanford and Dr Macdonald, it aligns quite neatly with general evidence from our witness Mr Moody about the general nature of the industry.  There is change occurring, at least in the disability sector, and the key change is the growth in individualised supports.  That is not to say, and I think a couple of my colleagues have made the same point, it's not to say that there aren't areas of work that remain pretty stable, but the growth area, the expansion of the NDIS is in relation to people with disability who previously didn't have access to services because their disabilities weren't so severe as to require institutionalised care and so forth.


The joint unions' submission that was filed this morning, if I can take you to paragraph 75 - this follows on from just the general observations about the industry - and they make the point about the growth in employment and the likelihood of - sorry, the growth in employment but also making the observation that there's a high level of turnover and also that counterintuitively, despite very significant growth year to year, the average hours of work performed by workers has decreased.


We say that is exactly the big picture workforce strategy issue that the NDS is concerned about, that changes to the operating environment are driving an arrangement of work that employers are struggling to build full-time jobs or to increase hours of work.  Where we differ with the unions is the remedy, and so that is just as a general comment about where we're coming from in these proceedings.


Really the only final point that I wanted to make in closing relates to the travel time issue and just to clarify the position of NDS.  Again, it's a similar position to that put by Mr Scott in relation to some of the proposals that his clients have put.  We have, for example, proposed looking at the use of minimum engagements as a way of addressing some of the issues around the interrelated problems of broken shift and travel time.  Just to clarify, that is put as a proposal dependent on which of various variations were being considered, if variations were needed to the award.  It is not put as a claim, it is put as a minimum engagement in some circumstances may cover off on a number of interrelated issues that we are trying to deal with in these proceedings.


Beyond that, unless there are questions, that is the end of our submissions.




MS LO:  We are content to rely on our written submissions, but there is just one point that I would like to raise today, being in relation to the overtime for part-time employees working additional hours claim.  The unions criticise, at paragraphs 40 to 44 of their response filed this morning, the evidence relied upon in the AFEI's proposed finding that there are employees who work part time because it suits them.  We emphasise that the rationale for the introduction of part-time employment in modern awards is set out in the casual and part-time employment case, specifically at paragraphs 86 and 97 and I have got the case reference should the Commission want this.  In that decision, the Commission took into account the employment of women with family responsibilities.


The evidence in these proceedings is that part-time employees want to work additional hours and this proposed finding is not disputed by the unions and, in fact, they say that they agree with those proposed findings, subject to reservations arising from Dr Stanford's evidence.  There is also evidence in these proceedings showing the consequential effect of the proposed variation, which is that the claim would not only have significant detrimental impact on organisations but also on the ability to offer part-time employment as a result.


Due to the identified consequences of this claim, we urge the Commission to exercise caution in making the proposed variation.  To vary the award in this way, as highlighted by ABL, would have a substantial impact on both employees who prefer part-time work and have no desire to work full time and employees who need the flexibility that part-time employment arrangements offer.


Unless the Commission has any questions, that's all I propose to say.


DEPUTY PRESIDENT CLANCY:  No, thank you.  Is there anything in reply that any of the union parties want to raise?  Yes, Ms Doust?


MS DOUST:  Yes, thank you, Deputy President.  Can I turn first to the proposal to adopt a payment for time or a payment for travel by reference to the kilometres travelled on the basis that one is being paid 3 per cent of the ordinary rate and this was the alternative proposal that was floated by Mr Scott.


The reason we say that is an undesirable approach is this.  It will necessarily advantage someone who is carrying out their driving in an area where they're able to drive along more quickly.  What that means in reality is that workers in the country will be able to earn money in accordance with such a provision more quickly than workers in the city.  It's probably apparent why the employer might be more attracted to that approach when you think about the relative numbers of people in urban areas than those in rural or regional areas.


One unattractive feature of adopting such an approach is, we say, that there is a disincentive for safe driving.  In other words, it incentivises those workers in the city who might be inclined to be stuck in traffic or more limited in the speed that they can travel, to try and get to their destination more quickly.  The fundamental vice we seek to address by a provision that ensures that time spent travelling is compensated is, that that activity which we say is work, is not being compensated as work.


One gets compensated for work, ordinarily in this industry on the basis of the time that it takes to perform the work.  So that's why we say that travel time should be regarded as time worked and should be compensated as such.  That's why we say you shouldn't adopt an approach of paying for the work by reference to the kilometres that the employee manages to chew through in the time available.  Pay be reference to the amount of that worker's time or a notional amount of that worker's time that is taken up in order to perform the work for the employer.


Mr Scott at one stage said the immortal words that he cautioned the Commission against looking at the evidence in the matter.  We of course suggest that the Commission should look closely at both the evidence, not just the vibe, the evidence, but also what's very important in this matter is the absence of evidence.  It's the absence of evidence that we say is particularly telling this matter and that's a point that we say is very apparent.  When Mr Ferguson addresses the Commission and asks it to consider some hypothetical spinal injured person and the approach that they would take to the performance of their work and tries to advance that hypothetical person in opposition to claims that have been made by the unions and have been on foot for years.  And he tries to say that that should provide an impediment in the Commission in properly regulating the manner in which work is performed in this industry.


In our submission, those sorts of claims from the Bar table are just an invitation to the Commission to engage in speculation and conjecture.  The AiG has had ample opportunity to put on an evidential case to this Commission about how the circumstances of its members would prevent it from being able to offer appropriate minimum periods of work.  It has elected not to do so.  In those circumstances the Commission should not be reaching conclusions that align with what AiG urges - should be concluded by the Commission.


But just returning to Mr Scott's submission, he said this, that in respect of the cancellation clause, "in fact, employers are more hamstrung in disability than home care by cancellations".  That is a submission that in my submission is entirely contrary to the evidence before this Commission about the changes to the cancellation entitlements of employers in the area of disability and the capacity to claim funding where services are cancelled.  There is no basis for urging the Commission to reach the conclusion that employers offering disability services are in some way in a more difficult position than home care employers.


Now Mr Scott also said in relation to minimum engagements that they should be consistent with the award as it currently stands for casuals.  A one hour minimum engagement for a home care employee.  We say that the Commission could not seriously reach the conclusion that it is appropriate and a fair and relevant minimum standard for an employee to be expected to get up, get themselves ready, travel and attend work to perform an hour's work to receive compensation, that if it's regulated by the award, will be in the region of $20 or, you know, perhaps slightly more.  That could not seriously be considered anything other than exploitative.  We say one just has to look at that provision to see how starkly that point is illustrated.


Mr Scott also suggested that there be the capacity to have more than one break with agreement.  He said in order to facilitate the sort of worker that works the morning shift and then the middle of the day shift and then the event shift as well.  The difficulty with his submission, or the difficulty with adopting the approach he contends is this.  First of all, this Commission couldn't seriously think after having heard all of the evidence in this matter, that these employees are in some position to bargain with their employers about the hours that they work or the arrangements of their shift during the day.


The evidence of the level of under-employment that the employees are suffering from, their desire for additional work, the sorts of terms and conditions they're subject to.  None of those really put them in much of a position to be negotiating in those circumstances.  But if there is the capacity under the award for more than one break, what will be enabled is precisely the sort of situation that Mr Ferguson talked about.  There should be five breaks in a day.  If there's the capacity to have more than one break with agreement, then there will be five breaks.  That is the position currently - I think the evidence showed up to seven.


Now again, I would say this Commission could not seriously be thinking that there could be an appropriate basis for allowing employers to break a shift up to five time during the course of the day.  That is just so far beyond, in my submission, what could be regarded as a fair standard as to beggar belief that is being articulated as a serious position.  But, that is the sort of vice that unregulated capacity to break shifts enables.  Perhaps the circumstance where someone does have a legitimate desire to work three periods of work in a day, that would seem to be the exception rather than the rule here and the tail shouldn't be wagging the dog in terms of regulating that practice.


If I can turn to Mr Ferguson's submission, again I ask, where is the evidence of the pottery classes and the swimming lessons of which he speaks?  Where is the evidence from the employers who no longer offer such classes and who only offer one-on-one swimming lessons and pottery coaching?  There is no evidence.  So, for Mr Ferguson to say that to a far greater degree there is now a different type of work, there simply isn't the evidential basis to say that.  It's available to some degree for there to be individualised types of attendances.  But in order to suggest that this is occurring to a far greater degree, there needs to be some sort of sense of the extent to which this occurred before and the extent to which it occurs now.


Now, that is something, that is evidence that is plainly in the hands of employers and they have elected not to bring that evidence about those sorts of patterns.  Simple assertions that we're now driver by client demand, that sort of thing doesn't, in my submission, provide a proper foundation for concluding now that all of the work is entirely fragmented and individualised and cannot be managed or bundled in any way.  In fact, the evidence shows that there are some employers attempting to do so and succeeding to some degree.


I also note this, this fell from Mr Ferguson in his submission.  "Time spent travelling is not currently treated as time worked."  That's really been the union's case.  We say that time spent travelling is work time.  It is travel that is being carried out for the employer's business and should be compensated as time worked.  Now, our submission generally about what the AiG says is this.  If employers want to come to this Commission and contend that it is impossible for them to do certain things to organise their work, to meet minimum engagement standards and so on, it's incumbent upon them to bring some evidence of that.  In the absence of evidence, the Commission would not, would not exceed to their contention that it is impossible for employers to do so.  That's just not demonstrated on the evidence.


If I can turn to Mr Pegg's submission?  He referred to the parties being in heated agreement.  Obviously, the tone of my voice betrays the extent of our agreement.  But he did refer in his submissions about the responses to question 5 to the nature of the industry.  In my submission, one can't - sorry, one needs to see the - you can't see the industry as it's been practised in the last few years in isolation from the industrial regulation.  We say it's the terms of the award that have enabled work to be arranged in the patterns in which it currently appears to be worked.


So, one can't take the award out of that picture and say that there is something essential and fundamental in the nature of home care work and disability services work where it will always be like this.  The award obviously plays a role because it creates or fails to create certain incentives or compulsions for employers to manage their work in certain ways.  We embrace the comments you made Commissioner earlier on about some employers may be somewhat better in managing the way in which they organise their operations and that's what needs to be incentivised by the regulation that's provided in the award.


Now finally, AFEI referred to the evidence in the part timer's case about women with family responsibilities participating in the workforce through part time work and the like and observed that part time employees want to work additional hours.  What we say is that when one looks at the entirety of the evidence and also the vibe of the evidence, one can see that there is a market trend in this area, not of employees because they have more interesting things to do or other responsibilities, working part time in this area.  Part time seems to be the prevalent mode of work that is offered.


There's a strong trend of employees desiring and working additional hours to the part time hours that they're actually performing.  So the Commission wouldn't walk away from the evidence in this matter, thinking that somehow that part time workers in this area are being given some capacity to participate in the workforce to the convenient extent that suits their other obligations.  Rather, this is the proceedings tell a tale of workers who are under-employed and who would all be, or in the main would be seeking further hours if they were available.


So, those are the matters in reply.


DEPUTY PRESIDENT CLANCY:  You were going to give some thought to paragraph 64 of the ABI submission or answers to the supplementary questions.  The amendment to the 24 hour clause.


MS DOUST:  Just one moment.  I think our submission is that nothing in that causes us to flee from the position that we've advanced on the 24 hour clause, which we've dealt with in earlier iterations of the submissions.  I think in our submission of 10 February and the reply submission of 26 February.


DEPUTY PRESIDENT CLANCY:  Do you think it's an improvement on their proposal or worsens it from your point of view?  That was probably my main point of interest.


MS DOUST:  Yes.  Currently, can I just make this observation?  Currently, the clause provides that employees are to be paid at 155 per cent.  So, what would happen if this clause was adopted is that there would be time being paid at 155 per cent.  Then greater than eight hours, one would be paid at a lesser rate, so time and a half, so 150 per cent.  We can't see the rationale for that.  Frankly, one would have thought, if one's going to adopt an overtime provision in these circumstances, then there should be a penalty which involves a step up from the rate that is being paid if one wants to get the worker to work more hours than are contemplated by the clause.


Rather, what's provided here is that for the first two hours the rate drops back.  It almost creates a perverse incentive to just work the worker for the 10 hours over that period, rather than the eight hours of the work that's contemplated by the clause.  So, that's one vice that we see in that particular provision.




MS DOUST:  Yes, there's also a question here, and I think we've raised it in our earlier submission, which is about the capacity of an employee in those circumstances to decline to perform the additional work and that's something that in our provision, I think we fed into the draft clause to ensure that that is clear.


I think those are the only matters I need to say in response to that clause.


DEPUTY PRESIDENT CLANCY:  Thank you.  Anything from you, Mr Bull or Mr Robson?


MR BULL:  I have got nothing further I want to add, thank you.


MR ROBSON:  I will be brief, Deputy President.  Just in terms of Australian Business Industrial's roster change claim, they say that they need to advance no evidence in support of this because it's logical and they say that it is simply a change that has been made in another award and it should be adopted into this one also.  The reference for that decision is [2018] FWCFB 73747 and, in that case, the employer party advanced four witnesses in support of their variation.  In fact, the variation they were seeking was the ability to change rosters by mutual agreement.  It appears that the Commission wasn't persuaded to make the variation in that form but, based on the evidence that they heard, they were persuaded to make another variation.


We haven't seen the evidence that would support the proposed change in this claim, we don't know the differences between the nurses award and this award that would either say that we should follow or not follow that decision.  Really I think, without evidence, this variation just cannot be made.


Again following that, in response to submissions about client cancellation from Australian Business Industrial, really the issue there comes back to a previous discussion about employers needing to negotiate service agreements under the terms of the NDIS price guide that are financially sustainable.  The evidence from the employers is that the majority of cancellations are occurring within 48 hours of the time of service.


Going to the NDIS price guide, and I shall take you to the correct part, that is page 2807 onwards.  That's not the current one?  In any case, under the terms of the price guide, I don't think there is any controversy that it is two clear business days' notice.  I don't think the employers have established that there is a particular problem that needs to be solved.  If their evidence is that cancellations occurring within this time, the majority of them should be able to be claimed and, in this case, we reiterate our submission that it is unfair to put the cost of that on the employee rather than the employer.


Again, I think in relation to Australian Business Industrial's remote response claim, we continue to rely on our submissions.  However, we do dispute that there is broad agreement between the parties.  I draw your attention to our submissions of 10 February - and this is in response to AiG's reply submissions to our submissions - from paragraph 74 onwards.  Our claim deals strictly with the recall to work overtime.  Any other situation where a person worked away from a particular workplace, whether it's a client's home or the employer's premises, would continue to be covered by the other terms of the award.


Where ABI's draft determination differs is that it would provide for, or it doesn't just deal with a recall to work overtime, it deals with a situation where the employer is excused from arranging ordinary hours in the manner provided by clause 25.1, it would excuse an employer from rostering those hours, according to 25.5, and would not form part of a part-time employee's regular pattern of work.  So, it's essentially a way of avoiding significant parts of the regulation of ordinary hours of work and overtime under the award simply because an employee doesn't work at a client's premises or their employer's premises but they would do it from home.


Going on, in terms of our claim for a community language allowance, we believe that we have dealt with the merit of the proposal in our submissions from last year.  We note the Commission's decision that our filing of an amended draft determination is in accordance with the directions of the Commission.  We are in a position to have our claim determined in April and the Commission has, in the nature of an administrative review, had further questions, we have responded to those questions and provided a changed draft determination, and I would note that many parties have amended their claims as they have proceeded.


That is all I have to say.  Thank you, sir.


MS DOUST:  Can I just rise, Deputy President, just to address the 24-hour clause question briefly?




MS DOUST:  That was the one I last addressed.  Can I just say this:  I should withdraw what I suggested earlier on about the ABI's proposal not including the capacity for an employee to reasonably refuse to do greater than eight hours' work.  As I understand it, that is part of their proposal and that is something that we think is an essential requirement of the 24-hour clause.  Just to highlight the difference between the parties in respect of the 24-hour clause, we contended in our draft clause for employees to be paid over the 24-hour period for 16 hours at that rate of 155 per cent.  So that's the difference between the parties.


The unions have also incorporated - and the position of the unions is set out in the Commission's report dated 14 November 2019.  Yes, I think we included it in our joint submission of 10 February as well.  But the other significant difference between the parties was that the union clause included a provision about the arrangements for sleep facilities which largely mirrored what we sought to regulate sleepovers generally.  There is also a provision in our draft clause about interruptions to that sleep, so there's some provisions around guaranteed rest time over the 24-hour period.


In short, what that means is that the amendment proposed that appears at question 19 isn't something that we say would be regarded as satisfactory by the Commission because we say it doesn't address the question of remuneration appropriately and doesn't address the facilities for taking proper rest over that period.


There is also a difference between the parties as to how the working of such shifts should be regarded for the purpose of the shift worker definition, but the short answer is we don't grab what is set out at paragraph 64 and say we are happy to accept that.




MS DOUST:  Thank you, Deputy President.


DEPUTY PRESIDENT CLANCY:  Can I just confirm, I think some of the parties have done it in terms of having provided their answers to the questions ahead of today, they have provided it in Word form.  If any party hasn't provided it in Word form to the President's Chambers, if you could do so.  That way, we can post them on the website and it also helps us in dealing with them.  I note some parties have, but I just don't know whether all have.


Secondly, we just need to settle upon with you, if the parties are intending to file any additions or corrections to attachment 1 in Background Paper 3, what period of time is sought by the parties.  Any bids?


MR ROBSON:  Tuesday?




MR ROBSON:  We can endeavour to do it more quickly but - - -


DEPUTY PRESIDENT CLANCY:  Everyone happy with that?  All right, so by 4 pm on Tuesday 17 March.  Again Word and PDF would be appreciated, thank you.  All right, we thank the parties for - - -


MR SCOTT:  Sorry, Deputy President, I am loath to rise, but the unions have just made some submissions in relation to a couple of my client's claims of which it would be remiss of me if I didn't reply.  I will be three minutes.  I have two points, but they are important.


Mr Robson has made some submissions in relation to the roster change clause that our clients have proposed.  He referred to a nurses award decision and referred to the fact that one of the proposals there was that there be a provision allowing roster changes within seven days by agreement between the parties.  Our proposal has something to that effect as well.


It is important to note that - well, there's two points.  The first is that 25.5, which imposes the obligation to conveniently make accessible a roster at least two weeks before the commencement of the roster period, doesn't apply in respect of casual or relieving staff, and that's at 25.5(c).  So, the change in roster provision that then follows at 25.5(d), which provides the ability of an employer to change a roster in certain circumstances, it logically follows that it doesn't apply to casual employees given that there's no obligation to post the roster in respect of casual employees in the first instance.  The provision which my clients are seeking, which is that a roster can be varied by agreement within that seven-day period, it doesn't disturb the current position in respect of casuals.


The second point is, in respect of part-time employees, it also doesn't disturb the current position.  Clause 10.3(e) - I will take a step back.  Clause 10.3(c) is the obligation to agree on a fixed pattern of work with part-time employees upon commencement and you agree on that pattern in writing.  10.3(e) then states:


The agreement, pursuant to clause 10.3(c), may subsequently be varied by agreement between the parties in writing.


The current award position is that employers and employees can agree to vary a part-time employee's pattern of work, so once the roster is set two weeks in advance, at any point in time, an employer and a part-time employee can agree in writing to vary that.  So, our proposal that there be inserted a clause at 25.5 around roster changes saying that the roster can be changed within the seven-day period by agreement between the parties also doesn't disturb the existing position in respect of part-time employees.  It is no change in respect to part-timers, it is no change in respect to casuals.


It is only a substantive amendment in respect of full-time employees.  Full-time employees under clause 25 effectively have a guarantee of 38 hours that are required to be worked across five days in shifts not exceeding eight hours.  To the extent that the proposal is that an employer and an employee can change a full-time employee's by written agreement, we see no force to an argument that that somehow is unreasonable in circumstances where a full-time employee has the benefit of 38 hours per week that can only be worked across five days.


The submission that it somehow is a huge change is plainly wrong.  The submission that there needs to be a huge amount of evidence or evidence in support of the claim, we say, misses the point about the nature of the review and is inconsistent with the legislative framework for the review because we say the proposal is one of sound merit.


The second issue is in relation to - - -


DEPUTY PRESIDENT CLANCY:  So you say that because there's the guarantee of 38 hours and any agreement is going to be subject to that, then the agreement will necessarily have to accommodate that requirement, the change that is agreed will have to accommodate that requirement?  Is that what you say?


MR SCOTT:  That's right.  There's only so much that you can agree to change in respect of the full-time employees' hours.  It may be that they are rostered 9 am to 5 pm with a lunch break Monday to Friday and that roster is posted on the noticeboard a fortnight out.  It may be that you can agree and say, "Well, full-time employee, can we vary the roster such that you work six hours on one day and make it up with some additional hours on the following day, or that we change your starting or finishing time?"  There's only so much that can be changed because, at the end of the day, they are still working and guaranteed to work 38 hours across five days. So, the scope of the change that can actually be made, firstly, can only be made by written agreement and, secondly, the scope is relatively confined.


In terms of looking at the protections for various classes of employees, there's far greater protection for full-time employees, and if you just follow that through, if you are already allowed to agree in writing with a part-time employee to vary their hours, and part-time employees have less protection than full-time employees because they don't have the benefit of 38 hours, then how does it not logically follow that you should also be able to engage in those arrangements with full-time employees?


The second issue is in relation to client cancellation.  I made a submission earlier that the existing clause applies to home care and that we seek to extend it to disability and that there is a greater merit basis for extending it to disability as compared to home care.  My learned colleague has disputed that and has effectively indicated that that is wrong.  We respectfully disagree.  The home care funding arrangements and the home care regulatory arrangement is such that home care employers have a greater capacity to impose cancellation terms.


The requirement effectively is that if you are a home care provider, you create your terms, you have to publish them on the My Aged Care website and so you are free to create a cancellation term and provided that is entered into contractually with the participant, there's your cancellation term.


Under the NDIS, there is quite a prescriptive regime and some limitations on an employer's capacity to charge cancellation fees, and the clearest explanation of that is in our 10 February submission in response to question 49 of the Background Paper, and it is relevant to note that since the October hearing, there has been a new price guide, a new NDIS price guide that has been released.  It was effective 1 December 2019.  We have extracted, on page 63 of our 10 February submission, the relevant parts of it.  It is correct to say that employers can charge cancellation fees where there's a short notice cancellation.  That is defined, in short, where there's a no-show.  So an employee arrives at the client's home, for example, and they don't answer the door.  Or where, for the most part, the cancellation occurs less than two clear business days before the service.


So where there's a short notice cancellation which is - from most services - it's two clear business days then an employer can charge they can only charge 90 per cent of the fee associated with activity.  And this is a new requirement under the price guide.  'Providers are only permitted to charge for a short notice cancellation or a no-show if they have not found alternative billable work for the relevant worker and they are required to pay the worker for the time that would be spent providing the support.'


So what we have is an Award which doesn't permit an employer to change the roster inside seven days and the employer and the NDIS or the disability field can only charge for a cancellation if the cancellation occurs two clear business days before the service.  And Mr Robson is right.  The evidence before the Commission is the majority of cancellations do occur in the two days before the service.


So it's correct to say that the employers in the disabilities phase can charge a cancellation fee or can charge 90 per cent of the fee in respect of quite a number of the cancellations.  The difficulty for employers and this is where our proposal is really focusing is the time between two days before the service and seven days before the service.  So outside of seven days the roster can be changed.


So if a client gives 14 days' notice there's no issue or eight days' notice there's no issue, the roster can be changed.  If the client gives one day's notice, not a huge issue because under the NDIS price guide employers can charge a short notice cancellation.  But what happens where a client gives four days' notice?  The employer doesn't have the ability to change the roster but they can't charge.


So it's the window between two days prior and seven days prior where the employer is hamstrung because they can't charge under the NDIS pricing regime but they can't change the roster.  That is where the merit of the client cancellation clause in the disability sector sits.


And that's not the case in home care because employers, subject to general competitive pressures and so forth employers can set their cancellation terms.  'If you cancel at any time I don't care when, I'm going to charge you 100 per cent.'  They can do that.


Now they don't, because obviously there's competitive pressures but the NDIS is far more prescriptive in terms of what the employers can charge for.  So the claim is designed to address the window of two days to seven days prior to the service.  What happens to the cancellations there?  Our proposal, we say, is fair and reasonable in terms of coming up with a scheme whereby the employer is not stunned and where the employee can either be redeployed at the same time, doing other work, or if that's not practicable, there can be some reasonable make-up time arrangement.


It's a significant improvement on the current client cancellation clause that only operates in respect of home care.  Those are the matters I wanted to deal with.


MS DOUST:  Can I just deal with that briefly?  Because my friend's only gone into the detail there now.  A couple of quick points to be made.  First of all, the argument that he makes is not one for rolling a cancellation clause out for disability.  It's really an argument for getting rid of it in home care, in my submission, that's the tenor of that evidence.


The second point to be made about this is the weight of the evidence was that all of these employers have got truckloads of additional part-time hours that they require to be filled.  So the scenario of having a worker who you can't usefully use is an entirely imaginary one, in my submission, having regard to the evidence in this matter.  Those are the relevant matters I wish to say in response to that.


MR ROBSON:  Look, just on the issue of client cancellation the thing that Mr Scott forgets is that it's not two days, it's two clear business days - no, you didn't, you said two days - and let's think about what clear business days mean.  That means the day the service is provided doesn't count as a day's notice because that's not a clear day.  Then you have two days and then you have the notice day.  That's how it works.  That's what they're entitled to do.  So if someone had a service on a Monday, they couldn't give notice on a Friday, expecting them not be charged for it.  That's not clear.  That's not two clear business days' notice but I will leave it and perhaps it's addressed in our submissions.  In relation to Mr Scott's submission that the Commission should have just sort of take it easy about the roster variation claim, these claims have been run in awards such as this since award modernisation.  And this was recognised in the nurses' decision which somehow has escaped Mr Scott's notice.


MR SCOTT:  Your Honour - - -


DEPUTY PRESIDENT CLANCY:  This is getting a bit snappy at this stage.  I don't know that anyone is really advancing anything at this stage.  I'm not - - -


MR SCOTT:  Well, they've had an opportunity.  The nurses' decision is referenced in our written submissions.  Your Honours can go and read it.


DEPUTY PRESIDENT CLANCY:  How long are you two going to keep going at this?


MR SCOTT:  Well, I'll sit down but it's - - -


MR ROBSON:  If I hadn't been interrupted I'd be finished.


MR SCOTT:  You had your chance.


MR ROBSON:  We have.  So look, sir, we've dealt with this at paragraph 19, 20, and 21 of our submissions of the 16 September.  In that we reference both the Nurses' Award decision and the Aged Care decision from Award Modernisation.  That was cited favourably by the Full Bench in that case.


In both circumstances the Full Bench has noted a concern that part-timers who want to ensure that their employment is not jeopardised by declining a direct request from a supervisor to work additional non-rostered hours at ordinary rates shouldn't be placed under that compulsion.  That's why a roster change caused by mutual agreement within seven days hasn't been accepted in similar awards in the past.  That's why it doesn't exist in this award at present.  And in the absence of evidence in support of the claim it just shouldn't be made.


COMMISSIONER LEE:  Just the one question.  The proposition that was put by Mr Scott that under the revised guidelines there's no capacity to get recompense for client cancellations between two and seven days, so there's no problem after seven days, no problem in the 48 hours.




COMMISSIONER LEE:  But what you agree with that?  Disagree with that?  Or don't know?


MR ROBSON:  I think it depends on the type of the notice and in any case if there's - if an employer is unable to claim for it, they're bigger - they're institutional.  They're better able.  And they've got the relationship with the client themselves.  They're better able to bear the cost and take action to mitigate it.  The employee can only work the hours that they're rostered to work.  They cannot schedule the client's service.  That's in the employer's capacity.


COMMISSIONER LEE:  I'll take that as you don't know.  You don't know if that's right or not.


MR ROBSON:  I don't know.




DEPUTY PRESIDENT CLANCY:  All right.  Thank you.  We'll adjourn now and we'll await any further submissions on the evidence by 4.00 pm on Tuesday the 17th.  Thank you.

ADJOURNED INDEFINITELY                                                           [4.56 PM]




EXHIBIT #ABI14 ABI SUPPLEMENARY SUBMISSION AND QUESTIONS OF 11/03/2020................................................................................................................................. PN101

EXHIBIT #AIG2 AI GROUP SUPPLEMENTARY SUBMISSIONS AND QUESTIONS, BACKGROUND PAPER 2................................................................................. PN102

EXHIBIT #AIG3 AI GROUP BACKGROUND PAPER 3............................. PN105

EXHIBIT #NDS4 MDS SUBMISSION AND QUESTIONS............................ PN106