Fair Work Logo Merrill Logo






Fair Work Act 2009                                       1055480






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Health Professionals and Support Services Award 2010




10.14 AM, MONDAY, 11 DECEMBER 2017


Continued from 28/11/2017



VICE PRESIDENT CATANZARITI:  Yes, we'll take the appearances.  We'll start in Melbourne.  We'll start with you and go all the way down.


MS M ANTHONY:  If the Commission pleases, my name is Anthony, initial M, and I appear on behalf of APESMA.


VICE PRESIDENT CATANZARITI:  Thank you, Ms Anthony.  Ms Doust?


MS L DOUST:  Yes, if the Commission pleases, I seek permission to appear on behalf of the HSU in this matter.




MS DOUST:  I'm sorry, with me is Ms Leibhaber.




MR G BOYCE:  If the Commission pleases, Boyce, initial G, seeking permission to appear for the aged care employers and also the Australian Dental Association, in respect of the Australian Dental Association, Mr Wilkinson.  David Wilkinson is here.  In Sydney for aged care employers, Mr Mark Helm and Mr David Reid.


VICE PRESIDENT CATANZARITI:  All right, thank you.


MS J BANDARA:  If the Commission pleases, Bandara J.  I'm a solicitor appearing from HMB Employment Lawyers.  I seek permission to appear for Chiropractors Association of Australia National Limited.




MS L HEPWORTH:  If the Commission pleases, Hepworth L, on behalf of the Private Hospital Industry Employers' Associations.




MS L FISHER:  If the Commission pleases, Fisher L, also for the Private Hospital Industry Employers' Association.


VICE PRESIDENT CATANZARITI:  Thank you.  We'll go to Brisbane.


MS K MURPHY:  If the Commission pleases, Murphy, initial K, for the Dental Hygienist Association of Australia.  I have with me Adina Carr, initial E, also for DHAA.




MR MCCARTHY:  Thank you.


VICE PRESIDENT CATANZARITI:  We'll go Sydney.  No one else in Brisbane, is there?  No.  Sydney.


MR T McCARTHY:  If the Commission pleases, McCarthy T, Medical Imaging Employment Relations Group.  Your Honours, I'm here to make a short statement after which I would like to be excused. A


VICE PRESIDENT CATANZARITI:  Yes, McCarthy, we'll go to you in a minute then, yes.


MR MCCARTHY:  Thank you, your Honour.


MR K JACK:  If it pleases, Jack, initial K, for the Australian Federation of Employers and Industries.  With me is my colleague, Glaister, initial T.  And I might just note as well, your Honours, that throughout the day only one of either myself or my colleague will be here.  Thank you.


VICE PRESIDENT CATANZARITI:  Thank you.  Thank you, Mr Jack.  We then go to Newcastle.


MR K SCOTT:  If the Commission pleases, Scott, initial K, seeking permission to appear on behalf of Australian Business Industrial and the New South Wales Business Chamber.  I have with me my colleague, Ms Thomson, initial K.


VICE PRESIDENT CATANZARITI:  Thank you, Mr Scott.  Is there any objection to any of the legal appearances?  Permission to appear is formally granted on the record.  Just before we start, and we'll hear from Mr McCarthy in a moment, and then before we start just one observation.  Given that the previous direction hearing set a notional timetable for submissions, that was based on an environment when the matter seemed to be wider in terms of how it was going to run.  It has narrowed considerably with the number of witnesses now being sought for cross-examination.  I would ask the parties to consider overnight whether there can be some reduction in the timetable.  We have done that in the related matter and so it would be nice to, sort of, cut out some of the weeks and therefore it would lead to a speedy decision making.  If there is no agreement, obviously, we'll stick with the current timetable.  It would be preferable to, sort of, reduce the generous timetable that is currently set.  So we'll hear from Mr McCarthy first and then we'll have the other opening submissions.  Yes, yes.


MR BOYCE:  Your Honour, have we got the appearances in Brisbane?


VICE PRESIDENT CATANZARITI:  Yes, we did the Brisbane appearances.  Sorry, I thought I had Ms Murphy.  She already spoke.


MR BOYCE:  Yes, sorry.




MR BOYCE:  Thanks.


VICE PRESIDENT CATANZARITI:  I know she spoke because I've circled her in blue which means she has already spoken.  It's probably the way the screens operate, Mr Boyce.




VICE PRESIDENT CATANZARITI:  All right.  So we'll hear from Mr McCarthy first.  Yes, Mr McCarthy.


MR MCCARTHY:  Your Honour, I can be very, very brief.  My reason for appearing this morning is because there was an invitation, in effect, to be able to make a short opening statement or submission and to do so, I was going to take you to Medical Imaging Employment Relation Group's submission of 9 June 2017 and specifically to page 2.  And I was going to read to you what was on page 2 which set out MIERG's requests, a summary of those requests, the reasons for MIERG making those requests.  But, your Honour, given the timetable and given the fact that I would be reading to you something which has actually been published on the website, that is Medical Imaging Employment Relation's submission of 9 June, I don't think there is any purpose in me doing so and wasting your time.  So, your Honour, I would be looking to be excused.


VICE PRESIDENT CATANZARITI:  Mr McCarthy, we will take those submissions and happy for you to be excused.


MR MCCARTHY:  Thank you, your Honour.


VICE PRESIDENT CATANZARITI:  All right.  So going to the rest of the opening submissions, is there an agreed batting order?  If not, it will just be one after the other.  Well, Ms Anthony, it looks you will start, one after the after.


MS ANTHONY:  If the Commission pleases, I appear on behalf of APESMA and we'll speak for a few minutes only today to introduce and provide a context to our application to vary the Health Professionals and Support Services Award 2010.  We will rely on our submissions filed on 17 March 2017 and we will file comprehensive written submissions by Friday, 23 February 2018.


VICE PRESIDENT CATANZARITI:  Or subject to a change in timetable.


MS ANTHONY:  Subject to a different date to be agreed upon.  If the Commission pleases, APESMA commenced its representation of translators and interpreters in 2011 when a group of translators and interpreters approached our organisation seeking industrial representation for its members.  We surveyed our translator and interpreter members and conducted research into the language services industry.  We quickly came to the view that translators and interpreters experienced relatively substandard working conditions and that this situation had serious implications for our society as a whole, given the critical role translators and interpreters play in all areas of our community, but particularly in the health sector.


APESMA identified a lack of coverage or regulation of the industry by industrial instruments.  We reviewed the existence award coverage situation and confirmed that the Health Professionals and Support Services Award 2010 covered interpreters but only as an industry award.  As interpreters appeared as indicative roles in the classifications in Schedule B to the current award which necessarily defined interpreters as being support services employees.


APESMA came to the conclusion, the existing coverage provided by the award was inadequate as the way that interpreters work it means that an interpreter can often perform interpreting work in a health industry setting in the morning, but then provide interpreting services in, for example, a legal setting in the afternoon.  The same interpreter will be award covered for his or her work in the morning, but not covered by the award for the afternoon work.  To address this anomaly, we first considered whether translators and interpreters might be covered by the Professional Employees Award 2010, a modern award which covers many of APESMA's members in professional occupations.


The coverage clause of that award, however, limits coverage to employees performing professional engineering and professional scientific duties or employees in the IT industry, quality auditing industry or the telecommunication services industry.  APESMA also considered whether the Miscellaneous Award provided coverage to this group.  However, we also ruled that option out as firstly the coverage clause of the Miscellaneous Award restricts coverage to employees in the classifications of the award who are not covered by any other modern award.


Firstly, we noted that interpreters are covered by another modern award, the Health Professionals and Support Services Award.  And, secondly, the classifications clause of the Miscellaneous Award defined employees covered by that award as having advanced trade qualifications or as subprofessional employees.


We further considered whether it would be appropriate to seek to have a new modern award made providing occupational coverage of all employees in the language services industry.  But the operation of section 163(2) of the Act, made it clear that an application to vary this award would be a more appropriate application to pursue.  Section 163(2) states:  "The Fair Work Commission must not make a modern award covering certain employers or employees unless the Fair Work Commission has considered whether it should instead make a determination varying an existing modern award to cover them.


For this reason, APESMA decided to pursue the current application to vary the Health Professionals and Support Services Award such that translators and interpreters are moved into the list of common health professionals which are currently listed in Schedule C to the current version of the award.  APESMA will rely on evidence to substantiate that translators and interpreters are professionals and belong in the health professionals stream of the award.  And that while 70 to 80 per cent of the work of interpreters is performed in the health industry, interpreters and translators are required to also work in other industries and, therefore, occupational coverage by the award would mean that this group of individuals will achieve award coverage for all the work they perform which will provide greater certainty in the industry, not just for employees but for employers in the language services industry as well.


VICE PRESIDENT CATANZARITI:  Just so I follow that, do you say that if we make this variation, translators will all - or interpreters will all be in this award and nowhere else?


MS ANTHONY:  That is our submission.  Nowhere else in any modern Federal award.


VICE PRESIDENT CATANZARITI:  Any other modern award.


MS ANTHONY:  Yes.  APESMA seeks to rely on the evidence of five witnesses.  We have submitted the five witness statements to the Fair Work Commission previously and they have been previously published on the Commission's website.  If the Commission pleases, I seek to tender the witness statements into evidence without having the witnesses present to give sworn evidence as during correspondence exchanges amongst the parties prior to today's date, no other parties have expressed a wish to cross-examine the witnesses or have objected to the witness statements being tendered into evidence.


I should mention that Australian Business Lawyers on behalf of Australian Business Industrial and the New South Wales Business Chamber Limited have indicated in correspondence that those parties do intend to object to the admission of one of our witness statements, that of Nicki Baras.


VICE PRESIDENT CATANZARITI:  All right.  Well, just let's slow it down a bit.  I take it you've had discussions with the employer groups about as to whether they're objecting to the variation as such.


MS ANTHONY:  To our overall application?


VICE PRESIDENT CATANZARITI:  Yes, to sort of put into the modern award, this modern award, this category.


MS ANTHONY:  There have been submissions.


VICE PRESIDENT CATANZARITI:  I want to make sure it's exhausted or whether there should be a further conciliation in relation to that aspect.  Is it exhaustive?


MS ANTHONY:  Your Honour, are you referring to whether the coverage by the Health Professionals Award and whether the review of whether there is coverage by any other award have been exhaustive?


VICE PRESIDENT CATANZARITI:  No, no, whether it's going to be contested in these proceedings, whether that item is exhausted.


MS ANTHONY:  The coverage by Schedule C of this award has been discussed and that issue, yes.  In relation to APESMA's involvement in the process and in relation to that issue about the exhaustive coverage, we have really taken the approach that while that issue is before the Commission, we have left it really in the hands of the Commission and the parties who are arguing that issue.  So I wouldn't say that we have had any agreement and that I would say that that matter is in dispute.


VICE PRESIDENT CATANZARITI:  It might be in dispute in a technical sense.  But let just ask Mr Scott.  What's the view of the ABI Business Chamber?


MR SCOTT:  Your Honour, with respect to whether discussions have been had and exhausted, I think if I focus on that question, I think the truth is that there have been fairly minimal discussions about the application and these proceedings other than the fact that the parties have filed materials seeking a change and opposing a change.  So in answer to that question, as far as I'm aware, there haven't been a lot of discussions in terms of the relevant industry parties about the merits of the claim and whether it could be resolved in another way.


VICE PRESIDENT CATANZARITI:  Is there any other employer group that has had a view on this?  Yes.


MS HEPWORTH:  Commissioner, your Honour, Linda Hepworth on behalf of Private Hospitals, we strongly oppose the application by APESMA and our details are contained in our submissions of May.


VICE PRESIDENT CATANZARITI:  You understand the argument you are going to face - - -


MS HEPWORTH:  Absolutely.


VICE PRESIDENT CATANZARITI:  - - - that there is no other modern award that fits.


MS HEPWORTH:  Absolutely.


VICE PRESIDENT CATANZARITI:  And whether this is the right modern award.  And what we're unlikely to do is leave a group of people award-free.


MS HEPWORTH:  Our view is it sits perfectly within this award under the support services definition where it is at the moment.  It's already there.  We don't believe it's a health professional.


VICE PRESIDENT CATANZARITI:  So your argument is that it should be called something else in the award.


MS HEPWORTH:  It already is.


VICE PRESIDENT CATANZARITI:  Yes, that's what I mean, as distinct from it not being in the award.


MS HEPWORTH:  Correct.




MS HEPWORTH:  Thank you, your Honour.


VICE PRESIDENT CATANZARITI:  You heard that submission, Ms Anthony.


MS ANTHONY:  Your Honour, that submission has previously been made in the written submissions that have been filed to date, I think by a couple of employer groups and - - -


VICE PRESIDENT CATANZARITI:  But you see the difference in the twist in the submissions.  I mean, one thing, you opened by saying it wasn't in the award.  In fact, the argument is going to be how it fits in the award as distinct from not being there at all.


MS ANTHONY:  I guess the reason that we have made the application is that we have a group of people who are not award covered for a fair portion of the work that they do.  So if they're not actually working in a health industry setting, they're not award covered.


VICE PRESIDENT CATANZARITI:  For the balance of their time is what you're saying, that in the morning they're covered by the award, in the afternoon they're not.


MS ANTHONY:  That is correct.


VICE PRESIDENT CATANZARITI:  How does that sit with you, Ms Hepworth?


MS HEPWORTH:  Our concern, obviously, is with this modern award and how their support service role assists the physios, assists doctors interpret between a patient.  Our view in this award is that the health professional is truly someone who influences the outcome for a patient.  We see the interpreter as acting as a messenger between the two and the support services entitlement and definition - - -


VICE PRESIDENT CATANZARITI:  Sorry, whoever is ruffling papers, could you please stop.  Thank you.


MS HEPWORTH:  Sorry.  And we see that the support service definition actually covers this beautifully.  How it might service them outside of the health environment if they're not interpreting with patients, I don't have a comment.




DEPUTY PRESIDENT BOOTH:  Ms Hepworth, if the applicant agreed that the occupation was to sit in the support services stream but still sought to have a coverage provision that meant that that particular classification would, as it were, travel with those translators and interpreters if they moved around other industries, would you be opposed to that?


MS HEPWORTH:  No, that would be fine, thank you.


VICE PRESIDENT CATANZARITI:  Ms Anthony, you should consider that answer.


MS ANTHONY:  We will, your Honour, and we would be happy to pursue those discussions if that was a possible outcome.


VICE PRESIDENT CATANZARITI:  That would resolve part of the litigation it seems, what Ms Hepworth just said.


MS ANTHONY:  From our point - - -


VICE PRESIDENT CATANZARITI:  And the witnesses aren't being called for cross-examination which is another problem.


MS ANTHONY:  The issue about whether the individuals - I don't believe there is a dispute that they're, in fact, professionals.  I think the dispute is about the fact that they are health professionals and that's about, I think, whether they fall specifically within the list in the current award.  But we would be very happy to pursue that discussion and it hasn't been considered to date and we can have those discussions.  We would still seek in the meantime to be in a position to tender our witness statements.


VICE PRESIDENT CATANZARITI:  Yes, that will go without a doubt that will follow.




VICE PRESIDENT CATANZARITI:  But it may well be that between now and when the submissions are finalised in the matter, that is the timetable, that that issue becomes resolved and we don't have to rule upon it and I think Ms Hepworth, and what's fallen also from the Deputy President, would make it clear there is a way around that particular part of this matter.


MS ANTHONY:  Thank you, your Honour, we'll certainly consider it.


VICE PRESIDENT CATANZARITI:  Ms Hepworth, you will have those discussions.


MS HEPWORTH:  Yes, your Honour.


VICE PRESIDENT CATANZARITI:  We will then formally deal with your witness statements and the objection by Mr Scott.  Let's go to those witness statements.


MS ANTHONY:  Yes, if the Commission pleases, the first three witness statements that I seek to tender are the subject of orders that were made by yourself on 20 March 2017 that the witness statements, APESMA1, 2 or 3, be kept confidential and not published otherwise than in redacted form.




MS ANTHONY:  I have three sets of our five witness statements that I seek to hand up.




MS ANTHONY:  Sorry, I will add that following application by ABI and New South Wales Business Chamber, access to APESMA1, 2 or 3, was granted to ABI and New South Wales Business Chamber.  I believe that was in June of 2017.


VICE PRESIDENT CATANZARITI:  Now, just remind, the (indistinct) is to the substance, not to the name, is that right?  So we can identify who gave the statements?


MS ANTHONY:  I believe that the order was, in fact, to the names and the addresses and that it be confined - - -


VICE PRESIDENT CATANZARITI:  Yes, I'm just trying to work out (indistinct) for the record.  So which of the statements is objected to?


MS ANTHONY:  So the statements are marked at the top of the - the one that's objected to is number 5 which is Nicki Baras and that's not the subject of the confidentiality order and the first three which are entitled exhibit APESMA 1, 2 and 3, are the ones that are the ones with the confidentiality order.


VICE PRESIDENT CATANZARITI:  So we will have exhibit APESMA 1, exhibit APESMA 2 and exhibit APESMA 3.





VICE PRESIDENT CATANZARITI:  Number 4 is not subject to a confidentiality order?


MS ANTHONY:  That is correct.


VICE PRESIDENT CATANZARITI:  So that will be the statement of Michael Morgan, will be exhibit 4.



VICE PRESIDENT CATANZARITI:  And then let's deal with exhibit 5.  What's the objection, Mr Scott?


MR SCOTT:  Your Honour, the objection is primarily due to the fact that this particular statement was filed about a week and a half ago.  It was filed on, as I understand it, 28 November.  I believe it was then published on the modern award website on 1 December which was the date upon which my client saw this statement.  Your Honour will recall that the timeline for filing evidence-in-chief in this matter was March this year.  Reply evidence and submissions was then due in May.  That timeframe was then extended to June for reply evidence.  There was then a process before Gooley DP in relation to dealing with objections to evidence and that took place throughout August and September.  On 13 October, your Honour held a mention or a report back and on that occasion, my friend, Ms Anthony, indicated that there was one further witness statement that was due to be filed and that was the statement of Mr Morgan which was filed at the end of October.  Now, my clients didn't object to that particular statement and don't object to that statement, but in relation to this most recent statement which was filed, you know, on 28 November, it's come very late in the day.  So primarily the objection is based on that.


VICE PRESIDENT CATANZARITI:  I understand lateness, but we're not deciding the case today.  Is there any substantive objection?  Have you had instructions on any substantive objection to the material?


MR SCOTT:  There is, your Honour, and if the Bench is minded to admit the statement into evidence today, my clients press an objection in relation to paragraph 6 and it's the second half of that paragraph, your Honour.  It's the last two sentences.  It starts:  "As a result."  And if your Honour has that particular paragraph, the basis of the objection in relation to the second half of that paragraph is that the witness purports to be giving evidence on behalf of the industry at large and other than being opinion and speculative in nature - - -


VICE PRESIDENT CATANZARITI:  No, I follow, Mr Scott.  Is that the only objection to the material?


MR SCOTT:  Yes.  Well, the primary position is that the entire statement should not be admitted, but I hear what your Honour said.  That is the only specific objection in relation to the statement.


VICE PRESIDENT CATANZARITI:  Yes.  Ms Anthony, what do you say about paragraph 6?


MS ANTHONY:  We'd be happy to strike the offending - I think it was from that - - -




MS ANTHONY:  - - - the offending part of that paragraph.


VICE PRESIDENT CATANZARITI:  All right.  What we will do, Mr Scott, is that the objection is made good.  We will strike out that part of paragraph 6 and we will admit the statement of Nicki Baras.


MR SCOTT:  If the Commission pleases.





MR SCOTT:  If the Commission pleases.


VICE PRESIDENT CATANZARITI:  That's your evidence?


MS ANTHONY:  If the Commission pleases, that is our evidence.  We will file comprehensive submissions by the agreed timetable if there is a change.  And I would seek to be excused.


VICE PRESIDENT CATANZARITI:  Excused?  You are excused.


MS ANTHONY:  If the Commission pleases.


VICE PRESIDENT CATANZARITI:  But not excused from speaking to the other parties about the timetable overnight.


MS ANTHONY:  I would be very happy to do so, your Honour.




MS ANTHONY:  Thank you.




MS DOUST:  Thank you, your Honour.  Your Honour, I had some comments to make by way of opening about the HSU's position in this matter and I expect they will take in the region of 15 or 20 minutes if that's convenient.




MS DOUST:  There are four matters that are the subject of a claim by the HSU.  They are these.  First of all, the span of hours clause.  Sorry, just excuse me for a moment.  Second, if I can use general terminology, the health professionals who are covered by the award.  This is the question about whether or not the list of common health professionals is exhaustive or indicative, but it does require some consideration of associated provisions in the body of the award.  The third is the question of weekend penalty rates and whether or not they are payable to shift workers.  And the fourth is the question of the substitution of public holidays by agreement.


Now, before I go to briefly outline our position in relation to each of those, can I say that each of the claims that have been made by the HSU are directed to ensuring that the modern award meets the modern awards objective, in particular, they are directed to ensuring that the award provides a fair and relevant minimum safety net of terms and conditions, taking into account those matters that are listed in section 134(1) of the Act.  The members of the Bench will find there is a draft determination setting out the operative variations required to give effect to the HSU's claims and that appears at attachment A to the HSU's submissions of 17 March 2017.  Can I indicate that the clause numbers which are referenced in that attachment are the clause numbers that appear in the exposure draft that's been circulated in this process.


So just dealing initially with the question of the span of hours clause, that appears currently in clause 24 of the modern award and the corresponding clause in the exposure draft is clause 8.  The amendments made by the exposure draft are really just drafting in nature, I think, with an attempt to try and make the provisions clearer.  But the Bench will observe just going to clause 24 of the modern award if the Bench has it before them.




MS DOUST:  The first subclause which is currently clause 24(1) is a clause that has general application and it provides that the ordinary hours for a day worker are to be worked between 6 am and 6 pm on a Monday to Friday.  And reading the various subclauses that follows, it's clear by a process of elimination that this span operates principally in respect of what are seven-day a week, 24-hour a day operations.  That is hospitals and principally under this award, private hospitals.  What then follows are a number of spans specific to particular sectors of the industry.  So after we have the Monday to Friday, six to six span, established as the general span, there's a span for private medical, dental and pathology practices at clause 24.2.  They have the span of 7.30 am to 9 pm on a weekday and 8.00 until 4.30 on a Saturday.  That now appears at clause 8.2(b) of the exposure draft.


We then have, over the page, private medical imaging practices with two spans in clause 24.3 and these now appear at clause 8.2(c) and (d) of the exposure draft.  They are the so called five and a half day practice span with a span of 7 am to 9 pm, Monday to Friday, and 8 am to 1 pm on a Saturday, whereas the seven-day practice span has a span of 7 am until 9 pm, Monday to Sunday.  It's the HSU's contention that the erroneous approach to the development of this clause as a whole is writ large here rather than having a span of hours defining a range of standard work hours outside of which shift penalties are attracted, these clauses simply reflect the preferred working hours of the relevant practice as is demonstrated by the development of two spans depending upon how long the practice wishes to operate.  We say this is really a case where the tail is wagging the dog.


There is yet another span in clause 24 which is physiotherapy practices.  Their span is 6 am to 6 pm, Monday to Friday.  They're at clause 24.4 and they also have 6 am to 12 pm on Saturday.  In broad terms, the HSU says this on the question of spans that it is to be remembered that nothing about a span of hours prevents an employer from operating its business at such times as it wishes to cater to its clients or otherwise meet its particular circumstances.  The span of hours operate, we say, by interacting with the definition of shift worker which is currently in clause 3 of the award.


VICE PRESIDENT CATANZARITI:  Just so I follow this - - -


MS DOUST:  I'm sorry?


VICE PRESIDENT CATANZARITI:  Just so I follow this - - -




VICE PRESIDENT CATANZARITI:  The only variation in the modern award from the current modern award is that clause of clause 8, the private medical imaging practice, seven-day practice, is a new clause.  That's not currently in the modern award.


MS DOUST:  I'm sorry, you're comparing the exposure draft?


VICE PRESIDENT CATANZARITI:  Yes, so that's an exposure draft.




VICE PRESIDENT CATANZARITI:  But it's not in the existing modern award.


MS DOUST:  No, in the existing modern award there's a five and a half day practice and - - -


VICE PRESIDENT CATANZARITI:  Yes, so this is a change.  What I'm trying to work out is where your objection is in relation to that or anywhere else in the current modern award.


DEPUTY PRESIDENT BOOTH:  Perhaps the question you could respond to, Ms Doust, is whether you apprehend any substantive difference between the exposure draft and the current modern award.


MS DOUST:  No, no, it's not.  It's not the exposure draft that's the issue.  It's the approach generally to have a number of spans with specific spans for each area.


DEPUTY PRESIDENT BOOTH:  It's the tail - - -


MS DOUST:  Wagging the dog.


DEPUTY PRESIDENT BOOTH:  - - - or, rather, the tails, a dog with many tails.




DEPUTY PRESIDENT BOOTH:  Which is rather than unfortunate visual image.


MS DOUST:  Was it Cerebus?  Did Cerebus have many heads or many tails?


DEPUTY PRESIDENT BOOTH:  Now you're stretching my classical knowledge, Ms Doust.


MS DOUST:  Well, I don't have any at all, Deputy President.  And to answer your question or what I hope is your question, Vice President, it's not that we say that the exposure draft has translated what currently appears in the award in a way which is problematic.  It's that proliferation, we say, of separate spans for separate areas which we say is indicative of the award coming to reflect, rather than a fair and relevant minimum standard, a preferred standard across various sectors and preferred by the employer.


COMMISSIONER CRIBB:  Could I just indicate that my memory of the reason for the different spans is it reflected the prevailing pre-reform award that existed around Australia at the time.


MS DOUST:  I think that's a matter that I wouldn't accept precisely.  It's probably something that's better addressed in some detailed submissions, but we think to some extent what this reflects is evidence about what was the particular practice within the sector of the industry.


COMMISSIONER CRIBB:  As reflected in the awards that the Commission was dealing with.


MS DOUST:  Modernising, yes.






COMMISSIONER CRIBB:  In terms of modernising.


MS DOUST:  Yes.  Well, there has been in this process and you'll see in the proceedings currently before the Commission there is also now claims for further separate spans.  We say when one looks at them and you can see the variation and the unusual hours which are defined, that this has moved away from what is proper work to be done by a span which is, as I have already intimated, it's about defining the scope outside of which shift penalties should properly be payable.  At what stage are hours recognised as having an unsociable character that attracts an additional payment and to what extent should an industry based and occupational based award provide for different treatment depending upon who your employer is at a particular time.  Those are the issues we say arise in respect of spans.


DEPUTY PRESIDENT BOOTH:  So an argument that if you have a blank sheet of paper, it would be an easier argument to deal with them than undoing what is obviously something that's grown up over the years and the undoing, of course, we will be told, I'm sure, has significant cost consequences.


MS DOUST:  Yes, I accept that's all part of the argument.  Yes, we say that history provides a burdensome yolk in this case which is productive of differential treatment which isn't warranted when one has regard to fundamental principles.  Might I just finish on that issue just by taking your Honours and Commissioner to the relevant provisions.  Can I ask you to turn to clause 3 of the award?  One can see there the definition of shift worker.  So this is where span starts to have some work.  Shift worker is defined there as an employee who is regularly rostered to work their ordinary hours outside the ordinary hours of work of a day worker as defined in clause 24.  So the adjustment of a span is really a judgment about who is entitled to the payment of shift penalties.


This also feeds into another submission that the HSU makes and I'll come to that in due course.  But if one looks at clause 26 of the award currently in respect of Saturday and Sunday work, one can see the penalties there, the weekend penalties or the weekend loading is payable in respect of day workers as defined.  So not in respect of shift workers.  Can I say, the further argument that we call in aid in respect of spans is this, that the provision of extended spans to various industries or sectors of the industry, sorry, various sectors or areas of practice, by reference to their preferred practice or existing practice The arbitration of that is the minimum safety net in the award eliminates an incentive for those employers to engage in collective bargaining to have to engage in the process of compromising or negotiating that their workforce is about those matters.  Can I highlight two other matters that are provided within the HSU proposal?


DEPUTY PRESIDENT BOOTH:  Just before you - - -




DEPUTY PRESIDENT BOOTH:  Are you going onto a different topic, Ms Doust?


MS DOUST:  No, this is still on the question of span and still on the question of the drafting of clause 8 which is in respect of span.  The HSU proposal also includes a provision for the hours of work of a shift to be continuous except for meal breaks with only one shift within 24 hours.  In other words, the safety net is continuous shifts and if an employer wishes to work split shifts, that should be a matter that is the subject of some form of bargaining.


DEPUTY PRESIDENT BOOTH:  Can I just ask a question before you go too far away from the notion of the ubiquity or the preferred ubiquity of a span?


MS DOUST:  Yes, yes.


DEPUTY PRESIDENT BOOTH:  Are you aware of any other Full Bench in any other award modernisation matter in this round of award modernisation that's had to deal with a similar question?


MS DOUST:  No, not that I can point you to at the moment, Deputy President, but might I come back to that question?  There probably is something beyond my field of knowledge and I think - - -


DEPUTY PRESIDENT BOOTH:  I ask because it's shaping up as a real decision of principle, one that you're asking us to make.


MS DOUST:  Yes, yes.


DEPUTY PRESIDENT BOOTH:  I wonder how it would affect other modern awards and whether other modern awards also have differential spans depending on the particular sector practice area as you put it.


MS DOUST:  Yes.  Well, it's interesting because for the sake of a comparison, I looked at the coal mining industry, the Black Coal Mining Industry Award to see what had happened there and certainly in that award span is no longer a concept.  It appears it's simply been identified various times of the day when one's labour attracts a loading for afternoon shift or night shift.  That probably recognises that if one was to set a span in that industry which like hospitals is a genuinely seven-day, 24-hour operation in, I think, the majority of cases, there would be a degree of artificiality about that and the only point in identifying a span really is to mark out the points in time after which or before which one's work is seen as being at an unsociable time or in truth warranting rate of payment because of the time at which it's worked.  So that's really the function of span.  So when one looks at the question of span, one has to look closely at how it interacts with entitlements to other penalties such as shift loading, but also weekend loading penalties.


DEPUTY PRESIDENT BOOTH:  So looked at through the lens of an individual employee, the question is if the purpose is to do, as you say, to identify those hours of work that should attract an unsociability premium.


MS DOUST:  Yes, yes.


DEPUTY PRESIDENT BOOTH:  Then what difference does it make as to whether they work in a radiographers or a chiropractic or a physiotherapist or a public hospital?


MS DOUST:  Yes, or private hospital, I think, which is more commonly the case under this award.


DEPUTY PRESIDENT BOOTH:  So it makes it more like a penalty rates argument, doesn't it, in terms of the evidence and argument that would be advanced.


MS DOUST:  Yes, yes, but we say with additional spans now being sought, it's become clear that the impetus behind the spans is simply the convenience of the employer rather than an analysis of the value of the work at those various times.  So it's a penalty rates argument, but not identified as such, in effect, that the claimants for the new span are making.


DEPUTY PRESIDENT BOOTH:  Well, you've given us something to think about already.


MS DOUST:  I wouldn't want to impose too greatly.


VICE PRESIDENT CATANZARITI:  Well, they might have a lot of difficulty on expanding the span.  So there's a separate issue of changing what is already there to creating something which is new.


MS DOUST:  I accept that that's one argument that's available or one perspective that's available in respect of the spans.  But we certainly identify that when one currently looks at those span provisions, there's a disturbing inconsistency there that doesn't appear to be sit with, we say, fundamental principles.  The other, can I just indicate, I dealt with the additional changes sought under the HSU's draft, the first of which was ensuring continuity of shifts rather than split shifts.  The second is that in the HSU draft, we have proposed that afternoon and - sorry.  Yes, can I ask whether the Bench has the HSU's submission of 17 March 2017 and attachment A to that?




MS DOUST:  So you will see that hand in hand with the proposed change in respect of the span of hours is a proposed clause 18.3.  This is on the second page of the draft determination which then identifies when afternoon shifts and night shifts occur and also identify penalties respectively of 12.5 per cent and 15 per cent for those shifts and that's consistent with the Nurses' Award.


That was all I proposed to say about the span argument at the moment which is by far the largest part of my opening.  But the second issue is that of health professional coverage and the HSU submits that the list of common health professionals which is currently contained in schedule B of the award is an indicative list rather than an exhaustive list and because there is - I'm sorry, it's currently in schedule C of the award and we say that the schedule should be amended to make it clear that the list is indicative rather than exhaustive.  It in broad terms - - -


VICE PRESIDENT CATANZARITI:  How does that actually work in practice?  We change it so this is an indicative list.  What does that mean?


MS DOUST:  It means that one doesn't have to be in a role that is specifically referred to in that list in order to be a health professional who is covered by the award.  One simply has to be a health professional.  Now, the basis for that argument is this, and I put this in broad terms, first, this award is an industry and occupational award.  Coverage in the modern award is prescribed as follows.  Just looking at clause 4.1 of the modern award, one can see that subject to the exemptions that follow at 4.2 and following, employees falling within the classifications in clause 15 of the award covered and this is the case for a health professional.  Whether or not the health professional is employed within the industry, that's clear from 4.1(b).


Now, just going to clause 15 of the award which is at page 19 of the current modern award, one can see there that sets out the wage rates in respect of health professional employees, levels 1 through to 4, and it sets out the various pay points within those levels and the rules for progression within the pay points.  And turning to clause 13, one can see there that all employees, that's including health professionals, must be classified according to the structure and definitions set out in Schedule B which is the classification definitions.


Just going to Schedule B, the health professional employee definitions appear at B(2) which is at page 50 onwards and one can see there, there's a schema which provides the criteria for the classification of employees amongst the levels by reference to their level of experience, autonomy, the complexity of their role and the specialisation of their level of skill, amongst other things.  There is no relevant change in the exposure draft to this schedule that I can see, save that it's now become Schedule A to the exposure draft.


The Bench will note that at B(2) under the heading "Health professional employees definitions", there's a preamble which says:  "A list of common health professionals which are covered by the definitions is contained in Schedule C, list of common health professionals."  Turning to Schedule C, one simply sees a list.


VICE PRESIDENT CATANZARITI:  Doesn't the word "common" actually mean it's indicative, on one view?


MS DOUST:  Quite, yes.


VICE PRESIDENT CATANZARITI:  As in being exhaustive?


MS DOUST:  Yes, as in, I'm sorry, indicative, as opposed to exhaustive.




MS DOUST:  Yes, in distinction from exhaustive.  We say Schedule C is not an exhaustive list of health professionals and the reasons why we say one wouldn't regard that list as exhaustive are these, in brief.


VICE PRESIDENT CATANZARITI:  But what I'm saying is, if that's right, there's no need to amend it.


DEPUTY PRESIDENT BOOTH:  Has there been a dispute about it?  Has somebody, for example, who is called a something or other, being excluded.


MS DOUST:  Yes, it does appear to be in dispute in these proceedings.


DEPUTY PRESIDENT BOOTH:  But in practical terms, has there been any dispute that you know of where somebody has sought to be covered by this award, but their employer said:  "No, you're a flower arranger, you're not covered by this award"?


MS DOUST:  I don't think we have evidence of those specific sorts of disputes, but it's certainly clear from material that the parties have filed in the proceedings that that is an approach that has been taken.  For example, the material of the Dental Hygienists Association of Australia contends that oral health professionals are not covered by the award and we say for the reasons already - - -


VICE PRESIDENT CATANZARITI:  Where are they covered?  They are award-free.  Is that their argument?


MS DOUST:  I think so.  I think, yes.  Yes, that seems to be the argument as I apprehend it.




MS DOUST:  Just in brief, our argument - - -


VICE PRESIDENT CATANZARITI:  So their argument is - - -


MS DOUST:  I'm sorry.


VICE PRESIDENT CATANZARITI:  Their argument is as long as you keep having a name that's not in the list, we're award-free?


MS DOUST:  Precisely.




MS DOUST:  And level of creativity - - -


VICE PRESIDENT CATANZARITI:  Yes, well, in the health industry you can be as creative as you like.


MS DOUST:  I think the evidence we propose to call goes to that, that names can be changed slightly, although the functions are much the same and one can come up with an entirely new descriptor and it's not simply creativity.  There are, of course, regular changes in technology that will shift the precise boundaries of the field of research and the field of work that's being done, but we say that the award should - - -


VICE PRESIDENT CATANZARITI:  But you would say, looking at them, they're still health professionals and support service people.


MS DOUST:  Precisely.  We say that the award's occupational coverage is of health professions or health professionals, not specific named professions.  Second, we say consistent with the modern awards objective and the approach taken by the Commission in making modern awards, as a general rule employees should be covered by awards.  Third, we say there is no other sensible explanation of the use of the word "common" in Schedules B and C, other than this wasn't attempting to - this list wasn't attempting to exhaustively list every single profession that was covered by the award.  These were just some of the groups that were more well-known or greater in number.  Your Honours and Commissioner, the HSU has filed a witness statement of Alex Leszczynski in this matter and it relies upon his evidence and his evidence goes to the issue of the proliferation of different descriptors in the health professions.  He'll be called today to give that evidence and he'll be available for cross-examination.


VICE PRESIDENT CATANZARITI:  But he is the only HSU witness required for cross-examination.


MS DOUST:  Yes, he is.  He is.  Turning to the third area of the HSU's case, that is the question of weekend penalty rates.  Can I ask the Bench to turn to clause 26 of the modern award and I think I took the members of the Bench to that a few moments ago.  And one can see there that there's a weekend penalty provided for day workers for work over that weekend period between midnight Friday and midnight Sunday.  Clause 26.2 makes it clear that that is a loading which is on top of casual loading and the analogous provisions appear at clause 18.1 of the exposure.  The HSU contends that the limitation of that penalty to day workers is anomalous, unfair and contrary to the modern awards objective.  We say it's simply not defensible that someone who is ordinarily rostered outside the span should be paid less for working on a Saturday or Sunday than someone who is ordinarily rostered within the span.


The HSU's proposal also includes the elimination of the inconsistency in weekend penalties in the area of medical imaging which is clear in the provisions about span.  What we say is this.  A shift worker's Saturday night should not be valued less than a day worker's Saturday morning.  Health professionals or support services employees in the health industry should be treated as suffering the same disability or inconvenience as a consequence of working on weekends and that doesn't differ depending upon if one has worked afternoon or night shifts during the course of the week.


Finally, the final issue is short in compass and that is in respect of public holiday substitution and this concerns clause 32.1 of the modern award and the analogous provision is at clause 23.3(b) of the exposure draft.  That clause provides at 32.1 for substitution of a public holiday without the agreement of the employee.  So it allows unilateral substitution at the behest of the employer and the HSU contends that the provision contravenes the entitlement in section 114 of the Act to be absent on a public holiday.  The employer may request substitution of - the employer may request an employee to work on a public holiday and the employee may refuse the request if the request is not reasonable or if their refusal is reasonable.


But we say giving the employer the capacity to substitute involves an abrogation of the entitlements in section 114 which is part of the NES.  How that operates as a consequence of the Act is that the provision in the award would not have effect to the extent it's inconsistent with the provision in the NES, so we say that the maintenance of a provision which is contrary to the terms of section 114 is likely to be productive of confusion and disputation.


DEPUTY PRESIDENT BOOTH:  Ms Doust, are you aware of other modern awards that have a similar unilateral substitution clause?


MS DOUST:  Can I add that to the list of matters to come back to your Honour about?


DEPUTY PRESIDENT BOOTH:  Once again, I am apprehending almost a common issue.




DEPUTY PRESIDENT BOOTH:  Even though it's a bit late in our cycle of this particular modern award review to create new common issues.


MS DOUST:  Yes, yes.


DEPUTY PRESIDENT BOOTH:  But it seems like again a matter of principle that you're referring to.


MS DOUST:  Yes, yes.


VICE PRESIDENT CATANZARITI:  Isn't clause 32.1 the substitution only dealing after you have reached agreement to work a public holiday?  So it's not about - it's not about - the preliminary step at 114 is:  "The employer may request the employee to work on a public holiday if the request is reasonable."


MS DOUST:  Yes, yes.


VICE PRESIDENT CATANZARITI:  So that's not offended by this clause.  I'm trying to work out where the tension point is because I don't readily see the tension point between the section and the substitution clause because the employee has already decided to work and so the only argument between the parties is what will be the substituted day.


MS DOUST:  I don't think that I necessarily agree with you, your Honour, as to the way in which 32.1 might be read.


DEPUTY PRESIDENT BOOTH:  Of course, the exposure draft hasn't been plain-languaged, so maybe that might be - - -


VICE PRESIDENT CATANZARITI:  Clause 32, the first bit, of course, says you read that - these are additional provisions on substitution.




VICE PRESIDENT CATANZARITI:  And we're really focussing on what is different.




VICE PRESIDENT CATANZARITI:  And you have already reached an agreement that you are going to do the public holiday.  You have to have agreed to work the public holiday before you get to 32.1.




VICE PRESIDENT CATANZARITI:  It will be a matter for submissions, ultimately, but - - -


MS DOUST:  I think, ultimately, it will be a matter of submissions, but we think there's probably at least some people who would read that as meaning where there is no agreement at all about the public holiday.


VICE PRESIDENT CATANZARITI:  If that's the case, then it may be a redrafting exercise as distinct from a problem.


DEPUTY PRESIDENT BOOTH:  If it were the case that there was agreement that it was as Catanzariti VP has interpreted it, would the HSU accept that interpretation and would that change your application?


MS DOUST:  Can I reserve my position on that?  At face value, I can see that it might meet the concern if it leaves unaffected that capacity to refuse in accordance with section 114 of the Act, refusal on reasonable grounds or refuse reasonably or refuse an unreasonable request and I'm not sure that I would necessarily accept that this doesn't interfere with the entitlement as a whole.


VICE PRESIDENT CATANZARITI:  I guess what we're saying is subject to the other employer parties agreeing that's what should happen, if we got to that stage where they agreed, we then fixed it up, would you then change your position?  But we haven't got to that stage.


MS DOUST:  I would need to get those - I would need to get those instructions.




MS DOUST:  But it does seem to me that that's an area perhaps to have some discussion.




MS DOUST:  Now, those were the matters that I wanted to say by way of opening.  Can I indicate, I think the Bench might have seen some correspondence from the parties about the how the matter is expected to proceed this week.  It appears to us that there is every expectation that the witnesses will be concluded within today and tomorrow.  Today, I think the morning has been reserved for opening statements and then there is two witnesses from the Dental Hygienists Association and after that Mr Leszczynski from the HSU.  Tomorrow, I think there's three witnesses from the Australian Dental Association and Mr Fisher from the Chiropractors' Association of Australia.  So I think there's some optimism that we will be concluded by tomorrow.




MS DOUST:  I think everyone is looking happy at the Bar table.


VICE PRESIDENT CATANZARITI:  When we go into opening, you put your statements in at that stage, rather than now.


MS DOUST:  It's just Mr Leszczynski and he is being called because he has been required for cross-examination.


VICE PRESIDENT CATANZARITI:  Yes, I'm just wondering whether you want to do it then or now.


MS DOUST:  I'm happy to do it when he arrives, Vice President.


VICE PRESIDENT CATANZARITI:  I think we will do all your statements - well, the only thing you will need to probably formally tender will be the draft determination that you seek, et cetera.


MS DOUST:  Yes, yes.


VICE PRESIDENT CATANZARITI:  So if you (indistinct) all the material because at the moment the only material actually in the proceedings are the APESMA material.




VICE PRESIDENT CATANZARITI:  So we'd like to have formally all the competing documentation.


MS DOUST:  We certainly rely on the written submissions that have been filed, but I wasn't - did you propose to give them a marking?


VICE PRESIDENT CATANZARITI:  I would like to give markings formally of the draft determinations, et cetera.


MS DOUST:  Yes, yes.


VICE PRESIDENT CATANZARITI:  It's readily easy for people when they're then writing their final submissions, they can comment on what's actually been tendered.


MS DOUST:  Yes, yes.


VICE PRESIDENT CATANZARITI:  All right.  Thank you.  We will take a morning tea adjournment.

SHORT ADJOURNMENT                                                                  [11.23 AM]

RESUMED                                                                                             [11.43 AM]




MS DOUST:  I'm sorry, Vice President.  Could I just take you to one thing just to round off the issue that we were discussing just before the Bench broke and that is the question of public holidays.  Can I also refer the Bench to subsection 114(3) of the Act which talks about there being provisions for substitution by agreement.




MS DOUST:  I'm sorry, 115(3).


VICE PRESIDENT CATANZARITI:  Yes, it's not that.  Where are you?


MS DOUST:  It's over the page.


VICE PRESIDENT CATANZARITI:  Yes, may include terms:  "Right of employee to agree on a substitution."






MS DOUST:  Just to complete the picture in terms of the NES provisions about agreements, I think that's probably why we say something that gives the employer the right to determine the day of substitution would be contrary to that as well.




MS DOUST:  Thank you.




MR BOYCE:  Thank you, your Honour.  I will just deal firstly with the aged care employers and the only variations sought by aged care employers is that contained in their 15 July 2015 submissions and it's the mirror provision in respect of the Nurses' Award which is to - - -


DEPUTY PRESIDENT BOOTH:  Mr Boyce, we might not have those submissions.  We have got - I have got, anyway, in my list, 17 March and 7 June, from aged care employers.




DEPUTY PRESIDENT BOOTH:  You just said a July date.


MR BOYCE:  15 July 2015.


VICE PRESIDENT CATANZARITI:  They're not in my index either, so there's a - - -




MR BOYCE:  They are on the website, but I can - - -


VICE PRESIDENT CATANZARITI:  They haven't made our folders.


MR BOYCE:  Right.  Yes, I don't have a copy, but I have - - -


VICE PRESIDENT CATANZARITI:  Don't worry, we'll fix that up and add those to our folders.


MR BOYCE:  Thank you.  So just to explain, it's to vary - - -


VICE PRESIDENT CATANZARITI:  That's different to the submissions of March.


MR BOYCE:  I believe so, yes.  There was some dropping off.


VICE PRESIDENT CATANZARITI:  In any event, you said there's only one issue outstanding for aged care.






MR BOYCE:  It's to vary clause 8.3(b), rostering of the award.  Currently, there is a requirement for an employer to give seven days' notice of a change in roster, even where the employee agrees.  So this simply allows where the employee agrees, less than seven days' notice can be provided with change of roster to the employee.


VICE PRESIDENT CATANZARITI:  What's the objection to that from the union?


MR BOYCE:  There isn't any objections to it on any of the material that I have seen.




MR BOYCE:  And that's reflected in the - - -


VICE PRESIDENT CATANZARITI:  So who is the relevant union spokesperson on that?


MR BOYCE:  I would have thought it's the HSU.


VICE PRESIDENT CATANZARITI:  Yes.  Well, Ms Doust, you might get some instructions about that if there's no objection to that clause.


MR BOYCE:  Certainly, in the - - -


MS DOUST:  I am surprised to hear that, Vice President, but I'll clarify our position.


VICE PRESIDENT CATANZARITI:  Yes, clarify that because, as I understand, it's simply saying the current clause is seven days' notice and the proposed clause is unless by agreement.




VICE PRESIDENT CATANZARITI:  Which on one view it would seem okay if it's by agreement.


MS DOUST:  Yes, we may nonetheless have concerns about it creating an environment where there's some sort of pressure.


VICE PRESIDENT CATANZARITI:  Yes, I follow what can happen in the field is different to the spirit of a clause.


MS DOUST:  Yes, I think that's - and I think similar issues were canvassed in the Nurses Award matter, so I'll clarify what our position is and see.


VICE PRESIDENT CATANZARITI:  Yes, thank you, Ms Doust.  Yes, Mr Boyce.


MR BOYCE:  And, your Honour, there are four statements that are tendered in respect of this variation which were also tendered in the Nurses' Award 2010, but is it appropriate to formally tender these in these proceedings as well?


VICE PRESIDENT CATANZARITI:  There is no cross-examination being sought.




VICE PRESIDENT CATANZARITI:  So we might as well then tender those ones.  Which ones are they?


MR BOYCE:  There's a statement of Karen Foster which is dated 25 July 2016.


VICE PRESIDENT CATANZARITI:  Yes, I think we're not going to do it now for this reason.  The way the files have been put together, it would appear that they have been left in the other folder and not transposed into this part of the matter.




VICE PRESIDENT CATANZARITI:  So between now and tomorrow we'll deal with that issue.


MR BOYCE:  Thank you, your Honour.  So other than that, I rely upon the submissions of 15 July 2015 as explaining the variations and the evidence that supports - sorry, the variation and the evidence that supports it.




MR BOYCE:  2015.














MR BOYCE:  No, they should be 15 July 2015.


DEPUTY PRESIDENT BOOTH:  That's a long time ago.


COMMISSIONER CRIBB:  Yes, I have got that.




DEPUTY PRESIDENT BOOTH:  That can't be right, though, can it?  How can you have diminished the claims over time, retrospectively?


VICE PRESIDENT CATANZARITI:  So you're relying on 2015 submissions for something that's different to 2017?


MR BOYCE:  Sorry, our original claims were filed in 2014.


VICE PRESIDENT CATANZARITI:  Yes, but you then made submissions in 2017 which were wider, then you reduced your submissions.  So shouldn't there be a different document that's later in time?


MR BOYCE:  I don't have the - - -


VICE PRESIDENT CATANZARITI:  The 2015 document would be more expansive.


MR BOYCE:  One would have thought.


DEPUTY PRESIDENT BOOTH:  There's certainly more proposed variations in the - - -


VICE PRESIDENT CATANZARITI:  Yes, and the 2017 stuff is more - - -






MR BOYCE:  Yes, the 9 June 2017 is really just dealing with responses to the HSU claims.




MR BOYCE:  And the 17 March 2017, two pages - - -




MR BOYCE:  - - - is just pressing the clause 8.3 as set out in our submissions of 15 July 2015.  So, as I understand it, in 14, we had a couple of variations in the original application.  Then in 15 July 2015, we reduced those to just this one variation.  And then the rest is really just either replies or restating the position as far as 15 July 2015.


VICE PRESIDENT CATANZARITI:  Yes, so in the 17 March 2017, the only thing you are pressing is the rostering variation.




VICE PRESIDENT CATANZARITI:  So you can rely upon that as a submission, really.


MR BOYCE:  Yes, well, it's just a reference back to the earlier submissions, yes.  I think it was just as a result of a call by the Commission to clarify what is being pressed and what's not.


VICE PRESIDENT CATANZARITI:  What's being pressed.


MR BOYCE:  Those are my submissions for aged care employers.




MR BOYCE:  Now, in respect of the Australian Dental Association, it's case is - I'll just hand these back to Ms Doust.


MS DOUST:  Thank you.


MR BOYCE:  It's case in this matter is one of opposition to the HSU claims, the first one being this issue of coverage, exhaustive versus indicative, and there's, I suppose, two views on the impact of that.  One is that there's no change so that certain individuals were always covered and it would have a retrospective effect going back to when the relevant award was made.  The other is that it is a substantial change and seeks to expand the coverage.  My submission is that - and it appears as though the way the HSU has gone about it is to effectively say it's an ambiguity or uncertainty issue that needs to be resolved, therefore, it's a clarification issue, meaning that the coverage issue has always applied to health professionals across the board from the beginning of the time the award was made by the Australian Industrial Relations Commission which would be concerning, in my submission, particularly for dentists who my client represents being covered all the way back because obviously they have always assumed they are award-free.  And that assumption or that position, in my submission, is soundly based having regard to the history of the award and the various contests hat were made in respect of the award right back to 2008 in terms of the award modernisation process.


The Full Bench is obviously aware that during that process the Commission had a very difficult task and also made awards not necessarily supported in terms of every single clause in those awards by reasons or even by reference or mention of those particular types of variations.  But one then looks at the underlying submissions that were made in terms of the contest between the parties before the Commission and the ultimate result and needs to determine whether a particular issue was accepted or rejected.  Now, this claim as to coverage is something that the HSU has been pursuing since 2008.  There is no disputes or evidence before the Commission that there is any issue as to this coverage.  They purely rely upon it as an issue of ambiguity or uncertainty.  But when one has regard to the nature of the contest going back to 2008, clearly this is an exhaustive list, not an indicative list, and I would just take you to - - -


VICE PRESIDENT CATANZARITI:  So what would you suggest?  That every time there is a new title, that the HSU then seeks to vary the classification structure by way of application to vary?


MR BOYCE:  Yes, well, there's two ways they could go about it and they haven't done either.  One is that they have an indicative list but have a set of exclusions.  Or the other is they have an exhaustive list and every time there is a change in terms of professional qualifications or skills or a new classification emerges or a new profession emerges or professions get merged between existing health professionals, then they come along to the Commission and they say:  "Here's the evidence.  This classification or this health professional used to be subject to these various qualifications.  They have now merged into something else or changed into something else or something new has come along completely and we therefore seek to include them as to the list of common health professionals."  But to simply have general, "Any health professional is covered by this award", in my submission, creates problems both going forward, but also creates significant problems looking back.


VICE PRESIDENT CATANZARITI:  It would only create stuff looking back if the amendments were made retrospectively and that would be whilst possible in some modern awards we have, but (indistinct) retrospectively we have looked at them more carefully in the review, on this case, it would actually be quite unlikely because that would open people for whatever reason have been award-free for a number of years suddenly being told that they are exposed under the award in a backwards - with backpay claims and other things may flow.


MR BOYCE:  Yes, well, that would be a substantive variation.


VICE PRESIDENT CATANZARITI:  That would be, indeed, substantive.


MR BOYCE:  As opposed to an issue of - - -


VICE PRESIDENT CATANZARITI:  But I don't sense the union is seeking any retrospectivity on this clause.


MR BOYCE:  Well, it depends how it's framed.  They haven't really addressed that particular issue other than to say everybody is covered and the Commission needs to resolve that by putting the word "indicative" into the current Schedule B of the exposure draft.


DEPUTY PRESIDENT BOOTH:  Mr Boyce, you're probably too young to have participated in award restructuring in the 1990s, but my recollection, and my gruelling work associated with some manufacturing awards was that the whole purpose of removing tasks and descriptors of jobs was to create a skill based classification structure that had a set of descriptors that was able to be applied to revolving and emerging industries and occupations.  Are you aware of whether this issue that is in contest here has ever been looked at in that light?  For example, manufacturing awards largely - I might be wrong about this because I don't look at awards in a lot of detail at the moment, but whilst some of them might have some indicative tasks identified, they generally don't have exhaustive lists that require you to read both the name of the role and then apply it to a hierarchical skills based classification structure.  So I'm just wondering if you're aware of the history of this appearing in this award other than what you have said which is that there was a rather unsatisfactory birth of this award some time ago.


MR BOYCE:  Yes, I'm vaguely aware of the principle, your Honour, in terms of, you know, classifications in terms of - I mean, if you look at the support stream, that's I think consistent with what your Honour is talking about in terms of a general list of skills and duties and responsibilities and then indicative classifications or job titles.  But that's, I think, the industry aspect of the award as compared to the health professionals side which is more occupational based.  The difficulty there doesn't appear in the occupational side of the health professionals to have that type of classification structure there already which makes it difficult to, I suppose, translate what's there in the support stream into the health professionals side.


DEPUTY PRESIDENT BOOTH:  So apart from dentists, are there any other identifiable occupations in contest that the employers say are now award-free and would potentially be caught by this variation were we to make it?


MR BOYCE:  So effectively the award covers in terms of dentists or dental practice, it covers dental assistants and dental technicians in the support stream and it covers dental therapist in the health professionals stream.  So they're named health professionals.  The other two are indicative titles in the support stream.  What the Australian Dental Association submits are not award covered and should not be award covered are dentists and dental hygienists.  Now, in terms of dental hygienists, we support the Dental Hygienists Association in terms of their application to maintain exclusion from the Health Professionals Award.


Then the only other emerging classification that arises is what's called an oral health therapist and they are a mix between a dental therapist and a dental hygienist.  So it's sort of a merged classification that's come about.  It's set out in the evidence of Eithne Irving as to that new classification.


DEPUTY PRESIDENT BOOTH:  So they're currently award-free, you say.




DEPUTY PRESIDENT BOOTH:  And you wouldn't want them to be drawn in by this variation.




DEPUTY PRESIDENT BOOTH:  But doesn't that actually underpin the reason why having an exhaustive list creates rigidity and inflexibility in an award and doesn't allow for the evolution and development of an occupation or an industry?


MR BOYCE:  Well, in my submission, in this case it's appropriate because an oral health therapist is a mix between a hygienist who is award-free and a therapist who is currently covered.




MR BOYCE:  But that would have to be looked at, in my submission, on a case in a respect of an application to cover that type of emerging health professional.


VICE PRESIDENT CATANZARITI:  So your argument is that there should be an application which deals with classification by classification?  So there should be an application specifically for the oral health therapist saying, well, that's because there already is a dental therapist in the award because it's a hybrid position, the Bench needs to look at, effectively, the work they do and see whether it fits in.


MR BOYCE:  That's correct.  Or the other approach is you have exclusions and, I suppose, it's the employers who come along and say, "We want to form part of the exclusion", as opposed to the union falling into the - making application to fit into the original list.  So I just want to do just some general backgrounding.  The submissions of the ADA are those of 9 June 2017 and they're quite comprehensive by Mr Wilkinson from Wentworth Advantage on behalf of the Australian Dental Association.  I don't propose to read those, but I do rely upon them and I would like to take the Full Bench to some of those submissions.


Firstly, at paragraph 13, there is a reference there to the preliminary jurisdictional issues decision 2014, FWCFB 1788.  And just turning over to paragraph 18, there is a summary there of, effectively, the findings of the Full Bench in that decision which in conducting the review that regard be had to the history of the award, the previous decisions of the Full Bench of the Commission or the Australian Industrial Commission being followed unless there is sound reasons for not following them.  And significant changes to modern awards should be supported by reference to the statutory framework with probative evidence.


Just with those principles in mind, the ADA then comes over at clause 20 of its submissions on page 7 to deal with the construction arguments and then, secondly, to the history.  Now, as part of this review, I think construction arguments are interesting but they're not binding this Full Bench in terms of what a clause means, but they are relevant, in my submission, to linkages with the history more so than, sort of, a straight-out come from those construction arguments.  Can I just take you over to page 15 which is paragraph 44.  Paragraph 44, it's a replication of the HSU's submission back in 2008 and there in the extract at 39, the HSU sets out its submission that it's prepared a classification structure to cover the entire health and medical services industry.


At 45, it's clear that the application was to have an award that covers all health professionals in Australia.  And then in 46, it identifies that the HSU put together a proposal hybrid award, bearing in mind that the Dental Association at that time put forward its own award for the dental industry which was rejected and dentists were caught up in the Health Professionals Support Services Award - or, sorry, what the various classifications were.  And then at 47, there is an extract here again from the HSU:  "The streams cover all types of workers required to deliver health services to patients in the modern multi-disciplinary health services environment."  It then goes down to various streams and at item 5 is dental and medical officer streams where they seek to include doctors of medicine and dentists registered and performing work within those fields of expertise.


48 is a list that the HSU prepared in respect of various health professionals to be included.  Some of those made it into the award, some of them didn't.  Now, then just turning over to page 23 of the submissions at 63, paragraph 63, referring to the Full Bench decision in Re Award Modernisation 2009, AIRCFB 345, the award proposed by the HSU was rejected.  There were significant issues about the AIRC's power to cover classifications that in the past had no history of coverage.


Then in 65, there was an application granted to the Dental Hygienists Association of Australia to have the profession of dental hygienist removed from Schedule C to the award.  The AIRC expressly granted that application and in doing so, all they did was remove dental hygienists from Schedule C.  So there was no express exclusion of them, but the manner in which they did in terms of removing it from the final draft was simply to take them out of Schedule C.  So the reasons underpin Schedule C in terms of dental hygienists.  Now the HSU is back again, some nine years later, seeking, in my submission, to run what it ran in 2008 and failed on the basis of an argument that now there is some sort of clarity required to what is already there.  In doing so, they're really trying to go behind those decision or ignore the history of those decisions.  When one looks at the history of the awards prior to award modernisation, there are no dentists covered by any of those awards, Federal Awards or NAPSAs.  And that's, in my submission, the position that should be maintained.


Now, just moving now onto the span of hours issue which is the other matter that the Dental Association opposes.  Ms Doust took your Honours to clause 8.2 of the award - or the exposure draft - in terms of the span of hours.  And I think what is most telling when she took you to that clause is when she took you to 8.2(a), she said the span of hours there, which is, "6 am to 6 pm, Monday to Friday, unless otherwise stated", she made the admission in her submission that that is hours of work for work for a multi-disciplinary health professional in a hospital setting, and that's correct.


The rest of the clause is not for a multi-disciplinary health professional in a hospital setting.  It's for private practices.  Now, again, the award history that's set out in the submissions highlights that in terms of dental practices, private dental practices, NAPSAs and Federal Awards, they have had those differing spans of hours for many years.  Again, bearing in mind that the Commission was conglomerating one award for all health professionals trying not to increase costs for employers, but also trying to maintain existing levels of award coverage, it was tasked to come up with an award that tried to suit everyone and in doing so, in my submission, it took the correct approach to span of hours by identifying different private medical or dental practices within the health system and putting their hours in that they have customarily observed.


The submission was made that there has been an erroneous approach to the development of this clause.  Well, the clause, if you have a look at the decisions of this Commission and the AIRC, have been very well considered.  They are not erroneous at all.  Again, this is a provision that the HSU sought back in 2008 and we're all back here again, and we're all back here again with one witness statement, Mr Alex Leszczynski.  The four year review has been going on since 2014.  His witness statement says absolutely nothing about span of hours.  There is absolutely no evidence at all about span of hours and, in my submission, that's the fastest road home for this Full Bench is to say, well, there is just no evidence of any change since the Australian Industrial Relations Commission made this modern award to be effective on 1 January 2010.


Then there was a comparison between health professionals and coal mining employees which, in my submission, is completely the wrong comparison to make.  And a submission that a span of hours clause won't stop an employer in terms of how they operate their business.  Well, these employers have signed leases in shopping centres and in small medical villages where the doctors open on a Saturday, the dental practices open on a Saturday, the physiotherapist practices open on a Saturday.  That's their main business.  I think Ms McKenny's statement identifies that 70 per cent of - in terms of their practice - appointments are made online and 95 per cent of those appointments that are made online are made for out of hours times.  So when people finish work or seek medical treatment on a Saturday.


So the interference that the HSU would cause by having this clause adopted would be to significantly impact upon public services that are provided and there would be costs and the employer would either have to wear them in terms of those extra shift penalties or pass them onto clients.  Obviously, people can run 24 hours, seven days a week, but significant considerations given that 55 per cent of a dental practice's costs are labour costs, are going to be issues such as shift penalties and overtime and whether it's worthwhile staying open beyond 6 pm at night to provide possibly an emergency service or a public service to people who need that dental care when the costs are higher.


Yes, and Mr Wilkinson reminds me that these are all costs to the community that have to be born.  So those are my submissions for the Australian - - -


DEPUTY PRESIDENT BOOTH:  Mr Boyce, just before you finish that point about the span of hours, when I asked Ms Doust about looking at the individual employee or looking at the principle around the span of hours through the lens of the individual employee, do you know of decisions that set out the principles which have informed the Commission in its decisions around span of hours also taking into account the circumstances from the industry or the kind of business and it's interaction with its market and its consumers as informing the appropriate span of hours?  Is that a principle that has been, you know, espoused?


MR BOYCE:  I'd have to look at that up.  Certainly, Mr Wilkinson was able to find the Graphic Arts Award has different spans of hours depending upon whether you're working in, like, in a newspaper printing - on a newspaper printing press versus working in a private printing agency and those sorts of things. But I would have to look at any decisions and maybe some of the decisions of the retail industry and those things.


DEPUTY PRESIDENT BOOTH:  And hospitality, perhaps.




MR D WILKINSON:  If I may, Commissioner, Deputy President, the Graphic Arts Award in actual fact and the printing industry looks not directly or specifically at the individual span of hours, but the types of arrangements of engagement after shift and then talks about particular people in that industry and how they might be affected and how the span may be varied.  That's what it is saying.  So, thank you.


DEPUTY PRESIDENT BOOTH:  It might sound like an esoteric point, but the term "ordinary", is it to be seen from the point of view of the employee of what is ordinary for a citizen in the world or is it ordinary for that industry or occupation?


MR BOYCE:  Yes, I would assume it's a mix of both, but obviously there's different spans of hours in different industries and there's no sort of set or uniform span that the Commission has adopted in the award modernisation process, but I would have to - I'm sure there's decisions around that I can find.




MR BOYCE:  Thank you.




MS BANDARA:  Thank you, your Honour.  We rely on our submissions dated 17 March 2017 and 22 May 2017.  I would like to expand on those very briefly this morning or this afternoon.  In short, the Chiropractors' Association of Australia seeks a variation to the span of hours in clause 24 relevant to the private chiropractic industry and amendments to ensure that ambiguities associated with when overtime and other penalties apply are resolved.  Amongst other things, it is the Commission's function to ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions and in doing so, must take into account the considerations set out in section 134(1) of the Fair Work Act.


However, while these considerations inform the evaluation of what might constitute a fair and relevant minimum safety net of terms and conditions, they do not necessarily exhaust the matters that the Commission might properly consider to be relevant to that standard.  The Commission is entitled to conceptualise those criteria by reference to the potential universe of relevant facts.  Relevance being determined by implication from the subject matter, scope and purpose of the Act.  It is open to the Commission to have regard to the historical context as well as the contemporary context in exercising its function.


The historical context in this case, we submit, is particularly compelling.  Prior to the introduction of the modern award, chiropractors were essentially award-free.  Although, most businesses operated outside of traditional business hours, including evenings and Saturdays to accommodate working patients, chiropractors were not entitled to evening or weekend penalties and shift work was not a feature of the industry.  During the award modernisation process, submissions, as you have heard, were made for various private practices which reflected the underlying awards and needs of the sectors.


The Full Bench when publishing the award stated that whilst some rationalisation had taken place, it sought to maintain specific spread for those sectors.  Unfortunately, the chiropractic profession who up until this time were effectively award-free, were unrepresented in the award modernisation process and as a result their needs were not ever specifically considered.  Chiropractic practices ended up being lumped in the general span of hours contained in clause 24 which prescribes ordinary hours of work as being between 6 am to 6 pm on Monday to Friday.  This span of hours did not and does not reflect the standard operating hours for the chiropractic industry and is, therefore, we say, not relevant to the chiropractic profession.


I would like to just pick up on an additional point from my learned colleague earlier this morning in relation to the general span by way of elimination applying for businesses that operate in a 24/7-hour environment, and that the other spans are for private practice.  We say that we fit more within the private practice scheme of things than the 24/7-hour operation.  We will present evidence that demonstrate most private chiropractic practices open Monday to Friday between the hours of 7 am, not 6 am, and 8 pm, and on a Saturday between the hours of 7 am and 2 pm.  These hours are largely dictated by the needs of patients to access care outside of their own usual working hours.


There is an expectation, we say, within the community for health care service to operate at such times and we submit these are the contemporary circumstances that prevail in the chiropractic industry.  We further submit that the adoption of the general span of hours was a substantial deviation from the status quo and has been problematic for the chiropractic industry in several significant ways, including, in particular, that it led to the anomalous position of many chiropractors and their support staff being deemed shift workers.  Again, we have already heard about these points this morning, but I would like to continue on and make our submission as to why this is an issue.


So this position arises because the current definition of a shift worker contained in clause 3.1 of the award deems an employee in the chiropractic industry who is regularly rostered to work past 6 pm on Monday to Friday and/or on Saturday as a shift worker.  It should be noted that on Monday to Friday most chiropractic practices only operate until between 6 pm and 8 pm and, therefore, such employees will work the majority of their hours in ordinary hours and not traditional shift hours.  The consequence of this, we say, is that employees in the chiropractic industry rostered to work even as early as, say, 6.15 pm, where all but 15 minutes of their working hours is within ordinary hours, are categorised a shift workers and entitled to receive a shift work loading for their entire shift.


We submit this is unfair for several reasons.  Firstly, many other employers covered by the award are not required to pay shift loadings to employees who work beyond 6 pm because their span of hours is tailored to their part of the industry and, therefore, covers evening work which puts them at an advantage as compared to the chiropractic industry.  Secondly, chiropractic employers are having to pay shift loadings to employees who work in what would be considered normal trading hours for the profession and hours that are not traditionally thought of as shift hours.  Such entitlements never previously existed and this puts them at a distinct disadvantage as compared to other parts of the industry whose ordinary hours include hours beyond 6 pm.


Thirdly, there is the regulatory burden associated with calculating specific payments owed to an employee for working shift work and this is not insignificant in the circumstance of the chiropractic industry which is dominated by micro and small businesses.  And, lastly, it's unfair, we say, to treat all shift work the same.  Employees who work the majority or all of their hours outside of the general span of hours for a day worker are compensated in exactly the same way as an employee who might work only up to two hours outside that span and who, critically, would not be working shift work if they were employed in the private medical, dental or pathology or imaging practice for that matter.


Then in contrast, when employees in a chiropractic practice are working on a Saturday, they're potentially not receiving any additional benefit which is unfair.  This situation arises because clause 26 of the award only prescribes weekend penalties for day workers and all employees in the chiropractic industry that work on Saturdays are deemed to be shift workers, so they're not, strictly speaking, entitled to any additional remuneration unless the shift finishes or commences after 6 pm.  Again, in contrast, other health employers are incurring the Saturday penalty because their span of hours includes Saturdays and that, again, demonstrates unfairness in the award as a whole.


In 2012, the CAA sought to address these issues and was one of a number of parties that sought to vary the award as part of the interim review.  A joint position was advanced to effectively rationalise the span of hours provision to better reflect the needs of private practices and to resolve this shift work anomaly for good.  The variation was not made on the basis that it was substantive and better suited to this four yearly review.


The chiropractic industry has now been operating under the award since 2010 without having had any proper input into key terms such as the span of hours.  We submit that a variation to include the span of hours sought for the chiropractic industry is necessary to achieve the modern award objective, to ensure a fair and relevant minimum safety net.  The variation, amongst other things, ensures that the award remains relevant to the chiropractic industry and addresses present unfairness with the way the award applies to the health industry.  It will likely reduce the overall employment cost of business, reduce the regulatory burden associated with having to administer and calculate shift work loadings and make the award simpler and easier to understand by removing the confusion we say that exists surrounding pay rates, working Saturdays and evenings in the chiropractic industry.


We respectfully disagree with the submission that the span of hours provision is already confusing because it prescribes multiple spans.  Each of the spans is clear as to which part of the industry it applies to.  We also disagree with the submission - I think this will actually answer part of the questions that have been put forward this morning - that it is inappropriate for an award to attempt to meet the varied needs of its subsectors.  There is actually nothing unusual about this.  For example, the General Retail Industry Award prescribes a standard span which is then divided, I guess, you would say, or varied for different subsectors of the retail industry.  For example, newsagents, video shops and retailers whose trading hours are simply stated to be different to the normal span.


That being said, we do not and have never opposed a rationalisation to the span of hours provision.  We oppose the HSU's specific submissions to rationalise the span of hours provision because the particular span being proposed is not appropriate to the hours which would be typically regarded as normal working hours for the chiropractic and other health professionals operating in private practice.


I would actually just like to refer - we didn't make submissions in relation to this point officially, but we did by way of correspondence back in May 2016 put forward a position to alter the definition of private medical, dental and pathology practice to encompass - sorry, and I can give you that correspondence.  I have it with me.  To alter that definition so that it covered private practice in a more appropriate way than to specifically be limiting it to that.  We can see that a rationalisation could take place whereby there was a span that was appropriate for the 24-hour, seven day a week operations and a span that was appropriate to private practice.  These are the two major parts of the award that this award is trying to cover and we see that while one span may never be appropriate to everyone, there is certainly opportunities within this award to rationalise, to come to a position where instead of having five or six or seven different subsectors being covered that we could narrow that down somewhat further.


DEPUTY PRESIDENT BOOTH:  Maybe I could ask you a question now I've caught you in the page turning.  The 2012 interim review where you said there was a common view on the part of the employers about what the span of hours should be.  Is that proposal consistent with that which you said you had corresponded to the Commission about or is it different?


MS BANDARA:  Somewhat consistent, I would say.  So the 2012 review, the proposal was similar insofar as it would have effectively altered the definition of private medical and dental, but it was one span that applied to private practices.  It was greater than what the chiropractors are seeking now and what we say is the contemporary circumstances applying in our industry.  We don't have the evidence to put forward for the span that operated to 9 pm, but as I think - if I turn - I can tell you exactly the submissions that were made.  For one span - sorry, I apologise, I might have to find that and revert back to you.  I can't see it immediately there.


DEPUTY PRESIDENT BOOTH:  It doesn't seem like on this occasion there has been a meeting of the minds amongst the employers, nor has there been, really, an attempt to come to an agree outcome across the award.


MS BANDARA:  I would say there was at earlier stages of the proceedings, but there was one party who was in minor operation so it didn't proceed on the basis of a joint proposal.  Yes, so as we understand, the opposition to our variation is not based on the particular span being sought as being unreflective of our industry, rather it is based on the argument that such a change is a slippery slope which may lead others to seek their own span and, therefore, further convolution of clause 24.


Our response to this is effectively each case should be determined on its merits and in this case the change is necessary.  I would also like to make a point in relation to why the span of hours are that we are seeking is 7 am to 8 pm, Monday to Friday and on Saturdays.  We have touched on it previously.  These spans are dictated largely by when most patients access the services and so that's outside of their own working hours.  It's our view that in making an assessment on this variation, the explanatory memorandum to the Fair Work Act actually guides us in relation to this in saying that the Commission would take account of changes in community standards and expectations and that the terms and conditions would be tailored as appropriate to the specific industry or occupation covered by the award.  I can point you to the reference being paragraph 5.18 of the explanatory memorandum.  My apologies, I didn't bring it with me.  We say on the basis of what is the community expectation to be able to access chiropractic services outside of their own working hours insofar as our variation expands the span, it's entirely consistent with the purpose behind the Act.


In relation to claims we have raised with respect to ambiguities in the award, we simply note that we advocate for some provisions to be incorporated into the award to make it clear when allowances and penalties apply.  We don't understand there has been any opposition to those particular proposals.


And one last brief point before I will finish is just in relation to the claims by the HSU about the need to encourage collective bargaining, the section 134(1)(b) consideration.  We have made some points in our written submissions in relation to that, but I would like to just reinforce those because in the context of chiropractic practices, this factor, we say should not weigh against granting the variation.  Employers within the chiropractic industry are predominantly, as I have said, micro or small businesses, and collective bargaining is unusual in such settings.  There is no real capacity for this issue to be addressed by way of collective bargaining and with the way that the better off overall test is being applied, we can't see a way where an agreement would be approved that didn't compensate for the shift work loadings in any event, so that's all we would like to say in relation to that and that's all I have, unless there is any questions or comments.




MS BANDARA:  Thank you.




MS HEPWORTH:  Thank you, your Honour.  We refer to and rely on our submission in reply dated May 2017 in this matter.  We agree with a number of the parties involved in these proceedings that changes to this award are necessary in order to achieve the modern awards objective.  Contrary to comments that have been made this morning, this award does not accommodate the fair and efficient rostering of a working environment that is operational 24/7, such as private hospitals.  Of key concern to our industry is the fact that this award distinguishes between a day worker and a shift worker by specifying when each can work and what penalties each can expect to receive.  Employees are identified as either a day worker or a shift worker based on the way they are regularly rostered to work their ordinary hours.


There is no definition as to what "regularly" means in the award which in itself is problematic.  Should a day worker and a shift worker work together on the same shift and day, they are to be paid differently.  Equal pay for the same work at the same time is not applicable under this award which is contrary to the modern awards objective.  For example, only a day worker can be paid a weekend penalty if they work on a Saturday or Sunday.  If a shift worker works on a Saturday or Sunday, they aren't entitled to be paid the weekend penalty.  They are paid the shift penalty if they finish their shift between 6 pm and 8 am or commence their shift between 6 pm and 6 am.


If their weekend shift should be from, say, 7 am to 3 pm, it actually appears under this award that the shift worker is not entitled to the shift penalty either.  If a day worker works outside of the ordinary hours of a day worker, Monday to Friday, 6 am to 6 pm, they are not entitled to a shift penalty, only the shift worker who works those same hours is entitled to a shift penalty.


The term "day worker" was not common in the majority of previous awards applicable to private hospitals and in the context of a 24/7 operating environment, we believe the use of this term has generated ambiguity and confusion, particularly in regard to shift and weekend penalties.  The modern awards objective talks about the need to provide additional remuneration for employees working on weekends and employees working shifts.  The current award does not consistently accommodate this requirement.


In private hospitals, the traditional roster is a rotating 24/7 roster which shares the shifts and weekend work amongst employees based on patients' needs.  Flexibility is needed to roster employees with the required skills at the required time and to then pay them appropriately for the shift work they are doing rather than the title they may have been given when they were appointed.


Subject to the modifications proposed in our submission in reply of May 2017 and, in particular, the necessity to retain the ability to work split shifts which currently exists, the HSU's proposal in relation to the clauses that deal with this matter which is span of hours, ordinary hours of work, Saturday and Sunday work and shift work, will, we believe, provide for a fair and consistent approach for all employees with equal remuneration paid for the same work being performed at the same time in environments that are operational 24/7.


The only other submissions we wish to mention at this time are the aged care employers' submission which relates to the rostering, clause 25 in the modern award, which we agree will provide for a fairer approach to rostering by giving the employee the ability to agree to a roster change at short notice.  I also confirm our objection to APESMA's submission to classify interpreters as health professionals.  And, finally, as detailed in the HSU's submission under "Agreed Matters", we also understand that the amended overtime and unpaid meal breaks clauses have been agreed to by the parties.  Thank you.


VICE PRESIDENT CATANZARITI:  Thank you.  We will go to Ms Murphy in Brisbane.


MS MURPHY:  If the Commission pleases, the Dental Hygienist Association of Australia Limited is Australia's peak professional national organisation of dental hygienists and oral therapists - oral health therapists in Australia.  It was established in 1991 and it has established affiliations internationally.  It has 1500 members currently of dental hygienists and oral health therapists.  It is the only professional association which represents both of those occupations.  It has a structure of having committees in every state and territory of Australia.


The DHAA relies on its written submissions of 29 April 2015 and 21 August 2015.  That submission included a copy of the organisation's successful application to the Australian Industrial Relations Commission which was referred to by my colleague, Mr Boyce, to vary the award.  That submission was made or, rather, that application to vary the award was made in 2009 as a consequence of the award originally listing the occupation of dental hygienist in the list of common health professionals.


There was no application made at that time to remove the occupation of oral health therapist from the list because it wasn't on the list.  Had it been on the list, the application from the DHAA would have included the occupation.  So as a consequence - and I was the advocate at the time, I should add.


So, therefore, it's reasonable, as Mr Boyce stated, given that the application was successful and the application from the DHAA included significant submissions and also survey evidence that the change that was rendered was to remove the occupation of dental hygienist from the list, it's reasonable to determine, therefore, that the list was and is intended to be exhaustive.  But I will later in my comments turn to the notion of the definition of "common".


Further submissions were made on 5 November 2015, 2 August 2016, 17 March, and our most recent submission of 22 May 2017.  We, of course, also wish to rely on the signed witness statements of Dr Mel Hayes and Dr Carol Tran, made 13 March 2017.  Your Honour, shall I tender those statements of witness evidence now or wait until Dr Hayes takes the stand?


VICE PRESIDENT CATANZARITI:  No, we will wait until they take the stand and then we will tender it.


MS MURPHY:  Thank you, sir.  I have a further document which I sent to Mr Martin yesterday which goes to clause 21 of Dr Hayes' witness statement which relates to survey data.  Would I be able to tender that now as evidence?


VICE PRESIDENT CATANZARITI:  No, tender that at the time the witness is called.  But, presumably, that's been served on all the parties?


MS MURPHY:  No, it hasn't been.  I'm not sure whether it has been by Mr Martin this morning.


VICE PRESIDENT CATANZARITI:  It's not up to Mr Martin, my associate, to be serving material.  Any material you file at the Commission should have gone to the parties, but we will make those arrangements over the luncheon adjournment for that to happen.


MS MURPHY:  Thank you, your Honour.  So the DHAA makes its submission in opposition to the submissions of the Health Services Union, specifically, 28 January 2015, 4 March of the same year, and 16 July of the same year, notwithstanding that at paragraph 22 of that same submission, the HSU acknowledged that dental hygienists were, in fact, removed from award coverage by the 2009 decision.  The DHAA opposes the HSU's characterisation of a list of common health professionals as indicative rather than exhaustive.  The fact that the list is exhaustive means that any occupation not listed in the schedule is unambiguously and unequivocally not covered by the award.  It is intended to be a simple straightforward list.  By way of anecdotal evidence, I have been the national advocate of the DHAA since - - -


VICE PRESIDENT CATANZARITI:  Sorry, we can't take anecdotal evidence in opening.


MS MURPHY:  I'll make a submission, sir.  My submissions I - - -


VICE PRESIDENT CATANZARITI:  Make a submission, yes.


MS MURPHY:  My submission is that the Fair Work Ombudsman regularly misinterprets whether dental hygienists are award-free or covered by an award.  As a consequence, the DHAA sent a copy of that decision to the Fair Work Ombudsman's offices approximately two years ago and refers to them regularly.  It is difficult for any employer and difficult for any employee not to be able to understand whether their occupation is on the list or not unless they know for sure that the list is reliable.  Consequently, it's submitted that the list needs to be exhaustive.  To make it indicative means that it's ambiguous and modern awards are by virtue of the Fair Work Act meant to be non-ambiguous.  Therefore, the HSU's argument that it is ambiguous to have the list being exhaustive simply doesn't make sense.


The submission of the DHAA is that these proceedings must not result in any ambiguity with regard to the current award-free status of both of the occupations of dental hygienist and oral health therapist.  To do so is to disturb the status quo of their award-free status.  And, further, it would operate to the detriment of dental hygienists and oral health therapists.  The witness evidence of Dr Carol Tran and Dr Mel Hayes describes the prejudicial outcomes to the two occupations of any change to their current status or, indeed, by the likely consequential confusion of dental industry employers which would be caused by a finding that the list is indicative rather than exhaustive.


The DHAA maintains now the same reasons that it did in 2009 and as my colleague, Mr Boyce, foreshadowed, didn't really expect to be doing another round of this given that in 2009 it seems that the Full Bench indicated quite conclusively that the list was exhaustive and, therefore, in rendering and determining dental hygienists to be award-free, merely took dental hygienists off the list.  However, do we find ourselves here again and, of course, we rely on that decision of 2009.


Also in relation to the comments made by Mr Boyce from the ADA, the DHAA agrees that if a party believes that the award's list of common health professionals becomes out of date because the name of an occupation changes, because a work value matter needs to be determined, or any of the other usual matters which all of us are familiar with, then the usual process of an award variation is open to parties and it's reasonable to expect that an employee association or indeed any party would go through the usual process to seek to have the award varied and deal with any opposition to such an application.  Of course, the Fair Work Act confers this power to be done at any time, not just in the context of the modern award powers of the Fair Work Commission in the four yearly review of modern awards.


I am now going to turn to the comment about the meaning of "common", sir, that you made in relationship to 3.2 of the current award which states a list of common health professionals which are covered by the definitions is contained in Schedule C, list of common health professionals.  The DHAA's submission, and the simple definition from the Oxford Dictionary supports this, is that while there may be other definitions of the word "common", such as relatively large numbers, not rare, or denoting the most widespread or typical species of a class.  Another very common definition of the word "common" which applies in this case is that "common" means shared by, coming from or done by two or more people, groups or things.


For example, problems common to both communities, belonging to or involving a whole of a community, you would say, use the expression "common land".  Another expression is:  "A shared humanity is the common currency."  In fact, Booth VP used the expression "common issues" earlier today to denote exactly that, a commonality.  The commonality in the list is that they are all covered by the award and there is nobody on that list which is award-free.  To suggest that it means something else such as these are the most frequently found health professionals, with respect, I don't think that there are very many aromatherapists found in Australia.  I don't think they are one of the most common categories of health professionals.  And there are others similarly on the list.  The list is exhaustive.  To suggest otherwise merely renders uncertainty and further ambiguity and it goes against the decision of the Full Bench in 2009 with regard to dental hygienists.  In our earlier submission - - -


VICE PRESIDENT CATANZARITI:  Just before you continue, for Mr Boyce and yourself, there appears to be a misunderstanding that you think that because something in the past is in the past, we can't look at it when we do a modern award review.  Now, if that's the proposition being put, Mr Boyce - I don't think it is, but Ms Murphy seems to be saying it even stronger - you can change things during a modern award review.


MR BOYCE:  Well, of course, yes.


VICE PRESIDENT CATANZARITI:  So it's not of much use to us to have submissions which are suggesting that because something happened years ago it stuck.  I mean, the most recent modern award review decision that I have released is horticultural, the horticultural bench, and significant changes occurred in that modern award review, quite different to what it was in previous Full Benches, and we went through all the principles in that decision and I draw your attention to it which says:  "A modern award review does allow a Full Bench relooking at it in the current day to look at matters differently."  So any view that suggests, well, it was looked at once, that's the end of the ballgame, that's not what a modern award review is about.  I am sure you are not saying that, Mr Boyce, but just so we're clear on it, that is the position.


MS MURPHY:  Thank you, sir.  Can I clarify my position?




MS MURPHY:  That's not what I am saying.  In echoing and referring to the 2009 decision, which in fact was first mentioned in these proceedings by AI Group, not DHAA, but it was referred to in AI Group's submissions, my point is merely this.  To say that it is represents a substantive change, I am fully aware, sir, that it was within the provisions and - - -


VICE PRESIDENT CATANZARITI:  But, Ms Murphy, you can have substantive changes in a modern award review.  That's the simple point I'm making.


MS MURPHY:  I do understand that, sir.  That's the point of the 2014 proceedings, as I understand it, to address in submissions for substantive changes.  My points merely go to trying to assure the Full Bench that this is a substantive change and would potentially render dental hygienists and oral health therapists and dentists to be covered by an award and they never have been before.


DEPUTY PRESIDENT BOOTH:  Well, you are on that point, the 2009 decision that you refer to, did that have reasoning attached to it?


MS MURPHY:  Yes, it did.


DEPUTY PRESIDENT BOOTH:  What were the reasons why it was considered appropriate?  I don't mean to ask you to be exhaustive, but just the key reasons why it was considered appropriate to remove dental hygienists from the award.


MS MURPHY:  That the dental hygienists had presented evidence to indicate that overwhelming dental hygienists did not wish to be covered by an award and considered it to be prejudicial and, secondly, that dental hygienists were traditionally award-free.


DEPUTY PRESIDENT BOOTH:  Those things are process reasons.  What was the inherent prejudice that an award would visit upon a dental hygienist?


MS MURPHY:  The inherent prejudice is that dental hygienists are currently on pay rates many, many, many times higher than the award rates.  That's the first thing.  The second thing is the current classification structure of the Health Professionals Award - and it hasn't changed substantively since 2009 - does not suit the needs of dental hygienists in that dental hygienists and oral health therapists do not acquire administrative or managerial responsibilities of any type in a typical dental practice and the Health Professionals Award in terms of reaching classification levels - and, of course, I understand it's a minimum rates award - simply, dental hygienists and oral health therapists would potentially be classified as level 2 under this award which is not reflective in any way of their specialist skills and abilities.


DEPUTY PRESIDENT BOOTH:  Anything to do with the mode of working, the other provisions of an award that tend to, you know, drive people to be working at certain times and not at other times?  Is there anything else like that?


MS MURPHY:  No, Vice President, it's got nothing to do with that.  So currently what occurs is that dental hygienists and oral health therapists negotiate their own terms and conditions by way of individual contracts.  Some are covered by enterprise agreements in the larger organisations.  Mostly, they are not, though.  And in terms of negotiating their own terms of contracts, terms and conditions in contracts, they're provided with assistance from the Dental Hygienists' Association by way of an industrial relations advice line which was established in 2003 and in addition to that, the Dental Hygienists' Association and the ADA maintain a consultative arrangement about any problems that occur.


The arrangement works very well and dental hygienists and oral health therapists consider that they wish to maintain the status quo and to become covered by this award after so many years would represent a significant negative disruption to their current terms and conditions and arrangements and ways of working.  They currently have a great deal of autonomy and a great deal of satisfactory ability to negotiate what they want, when they want, how they want it.


VICE PRESIDENT CATANZARITI:  Ms Murphy, did you say that some dental hygienists are covered by enterprise agreements or did you mean to say that?


MS MURPHY:  I did say that.


VICE PRESIDENT CATANZARITI:  If they are covered by an enterprise agreement, they have to be measured by an award to get an agreement through, so how did that occur?


MS MURPHY:  I assume that it was done in relationship to the nearest equivalent award, sir.  I haven't been successful to date in obtaining the Form S17 for those particular enterprise agreements.  The ADA may be aware of that, but it's certainly not on the basis of them being covered by an award.  As you would know, of course, respectfully, sir, you can have an enterprise agreement with an indicative award used as the BOOT test for the purposes of the BOOT test.




MS MURPHY:  So this issue of whether the list is exhaustive or not is the sole issue of the Dental Hygienists' Association of Australia.  But, in particular, our concern and our reason for being here today is to ensure dental hygienists and oral health therapists retain their traditional and current status of being award-free.  If the Commission pleases.


VICE PRESIDENT CATANZARITI:  Thank you.  Mr Jack, are you going to be long?


MR JACK:  I'll just be a couple of minutes if it please.


VICE PRESIDENT CATANZARITI:  Yes, go ahead.  We'll do that before lunch.


MR JACK:  Thank you, your Honour.  So AFEI's position was stated in our 2016 submission and hasn't changed substantially from then.  We are predominantly concerned with the claims by the HSU.  We are not proposing any changes ourselves, however, we are opposed to the scaling back of hours of work for private practices.  We also are opposed to extensions of coverage to the award which have been put forward by the HSU.  In relation to the other matters that have been raised, we reserve our position on those and we may make our position clear in our written submissions when they fall due.


VICE PRESIDENT CATANZARITI:  All right, thank you.  We will take the luncheon adjournment.

LUNCHEON ADJOURNMENT                                                         [12.57 PM]

RESUMED                                                                                               [2.07 PM]




MR SCOTT:  Thank you, your Honour.  If the Bench doesn't mind, I might stay seated because I think if I stand up, the camera screen seems to cut off my head.


VICE PRESIDENT CATANZARITI:  Yes, and you are tall, Mr Scott.


MR SCOTT:  That's right, Vice President, thank you.  By way of background, can I start by indicating that the New South Wales Business Chamber and Australian Business Industrial has quite a broad interest in these proceedings and the reason for that is that those particular organisations represent a large number of businesses throughout New South Wales and interstate, both within the health sector and also outside of the health sector.


Having regard to the applications that are being moved in these particular proceedings, our clients' interests really are focused on two particular claims and they are, firstly, the claim by APESMA to seek to include interpreters and translators into the Health Professionals Award and then, secondly, the claim by the HSU to adopt a standardised span of hours provision.


Both of those claims are opposed by the New South Wales Business Chamber and ABI and my clients filed fairly comprehensive submissions in relation to these two claims on 23 May of this year.  I will just make a couple of brief observations in relation to those two specific applications.


If I start with the APESMA claim, as I understand the claim, APESMA are seeking to have the Health Professionals Award pick up coverage of all interpreters and translators in the federal IR system across Australia irrespective of who those interpreters and translators are employed by and irrespective of whether or not those particular individuals perform any work in the health sector, if I can call it that.


It should go without saying that it's a significant variation and a significant application that is being made, and particularly when the Commission is asked to alter the coverage of modern awards, in our submission, that task should be undertaken with a degree of caution, largely due to the consequences if the application was to succeed.  In this particular case, and I think it's slightly regrettable, I think the consequences of the APESMA application, if it was to succeed, is largely unknown.


VICE PRESIDENT CATANZARITI:  Their argument, Mr Scott, they are saying there's nowhere else for them to go and this is a nice landing spot.  Isn't that really what the point is, and they are saying the majority of translators and interpreters, as I heard this morning Ms Anthony say, she said about 70 or 80 per cent of them work in health.


MR SCOTT:  Ms Anthony did indicate that.  Now, there is no evidence in that respect and the enquiries that I have made in the sector, and of course my clients haven't filed any evidence in these proceedings, but I'm not sure that that kind of submission can be necessarily accepted as fact.  Your Honour, I think in respect of the first question, I think this is the easiest and the quickest way of achieving the APESMA objective, which is to have one modern award apply to all interpreters and translators across the country.


The application seems to be put on the assumption that there's a problem that needs to be addressed and that problem seems to be an assertion that interpreters and translators fall through the cracks of the modern award system.  Unfortunately, the analysis in that respect seems to be lacking in the submissions and the material that is filed, and I say that because, of course, the coverage of modern awards, as they relate to each other, is relatively complex, but it seems to be the case that there are two modern award that my clients have been able to identify that do have classifications for interpreters and translators.


The first is, of course, the Health Professionals Award, but the second seems to be the Aged Care Award, and Ms Anthony seems to have overlooked that first issue, which is to the extent that aged care employers in the country are employing interpreters, those interpreters fall within the coverage of that award and the APESMA claim seems to be seeking to effectively move those individuals from the Aged Care Award across to the Health Professionals Award.


The second issue that should be ventilated, and I think it will be, certainly by my clients in closing submissions, is the fact that there's a Miscellaneous Award which, certainly on my clients' reading, would seem to pick up a large number of interpreters and translators where the relevant industry in which they work and the award that covers that industry does not contain classifications for interpreters.


APESMA seems to be operating on the basis that the Miscellaneous Award classifications, for some reason, can't pick up interpreters and translators and that is something that is certainly disputed by my clients, and my clients will deal with that in some detail in closing.


To kind of round that out, my clients aren't convinced that there is a problem that needs to be resolved, but we accept that there may theoretically be some employees who perform interpreting work and translating work in Australia for whom there is no obvious or there's no modern award applying to them.  Unfortunately, I am not sure that, based on the quality of the evidence in these proceedings, a factual finding could be made to that extent and that's why I say that theoretically that may be the case that certain employees fall through the cracks of award coverage.


The question then seems to be:  what is the solution to that?  Of course, APESMA have put forward one solution that they believe is appropriate.  My clients disagree with that and, in very simple terms, the basis for that disagreement is this:  interpreters and translators are not health professionals; they may work in the health sector from time to time, a large number may well work in the health sector, although there is no evidence on that.


To put interpreters and translators in the list of common health professionals is problematic, firstly, because it defies logic because they are not health professionals and, secondly, it will, in my submission, create a huge amount of confusion across the interpreting and translating industry because there are no doubt interpreters and translators working in Australia employed in the private sector for various businesses who have no connection whatsoever with the health sector and the variation would, effectively, expect an employer who is employing an interpreter or a translator to look at the list of 122 modern awards and try and identify which award might be the relevant one and to somehow click on the Health Professionals Award thinking, "Oh, this might have some relevance to this particular employee I'm employing" and scroll through the long list of common health professionals and, lo and behold, there's an interpreter and translator there.  That is not going to happen, particularly for small businesses.  They are not going to do that.


The Modern Awards Objective speaks to a simple and easy to understand modern award system.  If we hide interpreters and translators somewhere in the list of common health professionals and expect businesses to go through that award and find that particular classification, in circumstances where that business has nothing to do with the health sector, I think that's stretching the imagination and so, from my clients' perspective, they have a real fundamental issue with the way in which this apparent problem is seeking to be addressed because it's not simple and it's not easy to understand and it's illogical.


VICE PRESIDENT CATANZARITI:  We follow that.  Really what you are saying is the better course is that those that work in the health industry are in the health industries and those that fall in the cracks can go to the Miscellaneous Award?


MR SCOTT:  To a degree, I think that is right, your Honour, subject to this.  As the Bench will know, modern awards are created largely along industry lines and when we are dealing with modern award coverage, the starting position is to ask ourselves what industry is the employer in.  Once we work that out, we have a look at the particular classifications and see whether the employee in question falls within those classifications.  Interpreters and translators may well be employed in a huge number of industries across Australia.  Export, trade, documentation and immigration  just comes to mind as being a particular sector which may employ translators or interpreters.


To circle back to your particular observation, if there is an employer for which a modern award is the industry award and there are no classifications in that particular industry award for translators or interpreters, it may be that they are award free, it may be that they fall within the Miscellaneous Award.


The only other submission I make is in relation to this particular industry in terms of interpreting and translating businesses, many of these businesses operate as agencies where they on-hire interpreters and translators to whoever needs them.  Most of the modern awards in the coverage provisions have an on-hire subclause which says that when you labour hire or on-hire an employee into a particular industry, it picks up the coverage of that particular industry for that work.


As my submissions, circular as they are, may tend to indicate, award coverage is a complex issue and the application on foot needs to be taken with a degree of caution because the way in which APESMA are seeking to resolve the issue has some very, very obvious difficulties, and that is the basis for our opposition to that claim, your Honour.


DEPUTY PRESIDENT BOOTH:  On that, did you look into the coverage of translators and interpreters when they are working for government, because I would have thought government was a very big user of translators and interpreters?  Would they perhaps not be covered by a government award?


MR SCOTT:  I suspect they would, Deputy President.  I didn't specifically look at that other than, based on my initial investigations, it seems to be the case that both the health sector and the justice sector are the two main areas where interpreters and translators are used.  In respect to the modern awards that cover the public sector or the judicial sector, it may not be the Fair Work Act that governs those particular institutions.  To the extent that it is, there may be a modern award that covers that work.  I can't say that I have looked at that.  What I can say is it seems that APESMA have not looked at it either, and that's the concern, I guess.


VICE PRESIDENT CATANZARITI:  I will make this observation for the record.  APESMA is not here.  This is a modern award review and, unlike adversarial litigation, in the modern award review, the Bench needs to be assisted by material, so parties really should work on the basis that if there's no material, it makes it difficult to make any finding and the claim is not made out.


On the other hand, if there is material, it is incumbent on the parties to assist the Bench to really be seeking out that material.  It does strike me that the curious position that Ms Anthony has raised this morning would be that those working in health, which is the matter before us, would be covered and when that same person does work somewhere else, they are not going to be covered, and that is problematic.  So, whilst this Bench will not be dealing in that sense of saying, "Well, it should go to the Miscellaneous Award", that wouldn't be the way we deal with it.  It may be referred to the Miscellaneous Award Bench to deal with it if that's the way the material emerges, but the parties should, in doing their submissions, lead as much material as possible, and probably your organisation is one of the best placed to do so, Mr Scott.


MR SCOTT:  I accept that, your Honour.  I hear what you are saying and, of course, in the context of these proceedings, efforts were made to lead reply evidence.  As the Bench no doubt would be aware, that is somewhat difficult to do in industry-wide proceedings where there's no particular vested interest of individual organisations, but with respect to the questions around award coverage and government awards and other public sector awards, we certainly are placed to do that and I take your Honour's comments on board and we will endeavour to do that and have some discussions directly with APESMA in the coming months to see whether a more satisfactory position might be able to be reached in respect of their application.


If I can just briefly touch on the HSU claim in relation to the standardised span of hours, there are obviously industry-specific bodies here who have a particular interest in their subsector of the health industry.  It strikes me that the union application seems to be - there's a large number of spans of hours and there's no rhyme or reason as to why they are set in the way that they are, other than potentially historical reasons, so they seem to be seeking, for simplicity more than anything, a standardised span of hours.


In terms of assisting the Bench, what we say to that is, of course, the overarching objective under 134 is to ensure that modern awards provide a fair and relevant minimum safety net of terms and conditions, the emphasis on that being "fair and relevant".  Now, it is not clear to me whether the union is saying that the multiple spans of hours are unfair or not relevant, but that is the particular question that the Bench needs to grapple with and, for our part, in our submission, we see no basis to depart from what has been established because we would assume that those spans of hours were set with some logic in mind and that they are relevant to the particular subsector.


I think it has already been canvassed this morning, but our view is the award does not have to have one standardised span of hours.  Of course, award modernisation distilled a large number of pre-reform awards into 120-odd modern awards, but within those modern awards, there can be scope to have more tailored arrangements for particular sectors.  Many modern awards have those.  For span of hours, for example, the Graphic Arts Award has already been mentioned; another one is the Laundry and Dry Cleaning Award.


In summary, we don't really see any basis to move away from the established spans of hours that have been set, but, in saying that, to the extent that there are issues with some of them, or one or more, then I think that should be addressed looking at the particular span of hours itself and engaging with what the issues are with that particular span rather than simply saying, "The easiest thing to do is to have one."


Unless there's any further questions, your Honours, those are my submissions in opening.


VICE PRESIDENT CATANZARITI:  Thank you.  We will then move into the HSU case.  Ms Doust, just before you do that, the other material - you were going to tender the draft determination, presumably?







MS DOUST:  Thank you.


VICE PRESIDENT CATANZARITI:  Any other material apart from Mr Leszczynski's statement?


MS DOUST:  No, the others are just submissions and I am not sure whether you - - -


VICE PRESIDENT CATANZARITI:  No, we don't need to have those.


MS DOUST:  No, then it's just Mr Leszczynski's statement.  Can I just ask whether the Bench has copies of that?


VICE PRESIDENT CATANZARITI:  We do have that, yes.


MS DOUST:  We had anticipated Mr Leszczynski would be called after the dental hygienist witnesses.




MS DOUST:  We are not opposed to him going first - in fact, we would rather like that - but I wouldn't want to cut across anyone.


VICE PRESIDENT CATANZARITI:  I was just looking at a document from Mr Murphy which had the order of being your witness first.


MS DOUST:  I am happy to proceed in that way.  I think he's just down the hallway, Vice President, so if my instructor might be excused to locate him.


VICE PRESIDENT CATANZARITI:  Yes, we will proceed with Mr Leszczynski first.


MS DOUST:  Thank you.


MR BOYCE:  Your Honour, can we deal with objections first?


VICE PRESIDENT CATANZARITI:  You haven't had any discussions about objections?


MR BOYCE:  No, but they are not significant, they are just - - -


VICE PRESIDENT CATANZARITI:  The normal course in these matters is objections should be discussed between the parties before we waste court time, and I'll indicate it now, with the other witnesses, can we try to ensure that procedure tomorrow?  Yes, what are the objections to the statement while he is on his way?


MR BOYCE:  The overall objection is really not to strike out the provision but to just limit it to submission or opinion, and that's paragraphs 8, 9, the words "as a result" in paragraph 11, the last sentence of paragraph 11.


VICE PRESIDENT CATANZARITI:  The objection is that they are really opinions and they should be treated as that?


MR BOYCE:  Opinions or submission, yes.


VICE PRESIDENT CATANZARITI:  Do you have a view about that, Ms Doust?


MR BOYCE:  And 21 is the other one.


MS DOUST:  Sorry, which part of 21?


MR BOYCE:  Just the whole of 21.


MS DOUST:  All right.  Look, 21, I am content to leave as an opinion, the same for the last sentence of paragraph 11.  I think it as just the words "as a result" at the start of paragraph 11?




MS DOUST:  That I think my friend has identified as objectionable.  Happy to strike that and just leave it going to the change of name.


MR BOYCE:  It is the last sentence of 10.


MS DOUST:  I'm sorry, I didn't hear that one.  Might I have leave to ask you about the basis for expressing that opinion, Vice President?


VICE PRESIDENT CATANZARITI:  Yes, I am happy for that.


MR BOYCE:  I think he - - -


VICE PRESIDENT CATANZARITI:  It is simply saying two groups of people have got the same name and there's confusion.  What is the problem with that statement?  He is the senior industrial officer and he says to a Bench something's called twice.


MR BOYCE:  He already says that.  It's really just his opinion.  I just thought it could be a submission, that's all.


VICE PRESIDENT CATANZARITI:  I will allow that in actually.  Yes, what else do you have, Mr Boyce?


MR BOYCE:  The last sentence of 9.


MS DOUST:  We are happy to leave that as opinion.




MR BOYCE:  And again 8, really the words "would logically" and "would likely", it's just a submission.


VICE PRESIDENT CATANZARITI:  It is his opinion, so are you saying that is a matter of submissions?




VICE PRESIDENT CATANZARITI:  Ms Doust, are you comfortable with that?






MS DOUST:  I call Mr Leszczynski


THE ASSOCIATE:  Please state your full name and address.


MR LESZCZYNSKI:  Mr Alexander John Leszczynski, (address supplied).


EXAMINATION-IN-CHIEF BY MS DOUST                                     [2.30 PM]


MS DOUST:  Your name is Mr Alex Leszczynski; is that correct?‑‑‑Leszczynski.


Thank you.  You are a senior industrial officer employed by the Health Service Union, Victorian No. 3 Branch?‑‑‑Correct.


Have you prepared a statement for the purpose of the proceeding before the Commission today?‑‑‑I have.


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


Do you say that that statement is true and correct to the best of your belief and knowledge?‑‑‑I do.


I tender that.





MS DOUST:  Mr Leszczynski, can I just ask you to go to paragraph 10 of your statement, please.  You have expressed an opinion in the final sentence that:


The fact that there were two groups of health professionals called Play Therapists caused confusion.

***        ALEXANDER JOHN LESZCZYNSKI                                                                                             XN MS DOUST


What do you base that opinion on?‑‑‑When the issue first - I first became aware of the issue, I actually spoke to one of the office holders of what was then called the Australian Association of Hospital Play Specialists, which is now the Association of Child Life Therapists Australia, and when I was speaking to them about the reason for the name change, that is the reason they gave me for the name change, that there was some confusion between the two groups of employees, so that was part of their rationale for changing the name of the professional association as well as changing the name of the profession.


Thank you.  Nothing further.


VICE PRESIDENT CATANZARITI:  Who is going to be asking questions?  I know you are, Mr Boyce.




VICE PRESIDENT CATANZARITI:  Anybody else going to be asking questions of this witness?


MS MURPHY:  Your Honour, I will be.


VICE PRESIDENT CATANZARITI:  Yes, and you will as well?


MS BANDARA:  We reserve our rights.


VICE PRESIDENT CATANZARITI:  You are reserving your rights?


MS BANDARA:  Yes, just in the event that anything is led that wasn't part of the witness statement.


VICE PRESIDENT CATANZARITI:  Apart from that, everybody else - Mr Scott, are you going to be asking any questions of this witness?


MR SCOTT:  No, thank you, your Honour.



***        ALEXANDER JOHN LESZCZYNSKI                                                                                             XN MS DOUST


MR BOYCE:  Thank you.

CROSS-EXAMINATION BY MR BOYCE                                         [2.32 PM]


MR BOYCE:  Can I just clarify your last name?‑‑‑Leszczynski.


Thank you, Mr Leszczynski   Can I just show you a copy of the award?‑‑‑Yes.


VICE PRESIDENT CATANZARITI:  Perhaps my associate, Mr Boyce, will take it from you.


MR BOYCE:  I have just opened it up and it's at the definition of "private medical, dental and pathology practice"?‑‑‑Yes.


Do you see that?  You are aware of that definition?‑‑‑Yes.


In terms of all of the annexures you identify at the back dealing with the various classifications that you say have arisen and been left out of the award?‑‑‑Sorry, are you talking about in the modern award or in my statement now?


In your statement?‑‑‑Thank you.


None of those relate to any of those practices, do they?‑‑‑I'll just need to check.


VICE PRESIDENT CATANZARITI:  I am not sure I'm following this myself.  Can you tell us what we are looking at?


MR BOYCE:  Your Honour, he has got a number of annexures where he - - -


VICE PRESIDENT CATANZARITI:  Yes, I have got those.  You have given him a copy of the award.  What are you asking him to do, compare the award with his statement?


MR BOYCE:  I am asking if any of them fall into a private practice - any of those classifications fall into or relate to operators of private practices.

***        ALEXANDER JOHN LESZCZYNSKI                                                                                          XXN MR BOYCE


VICE PRESIDENT CATANZARITI:  Any of the operators of private practice - what - in the award document?


MR BOYCE:  If any of those classifications that he is identifying fall into this definition of private practice.


THE WITNESS:  I suppose it would partially depend on how you want to define "specialist practice".  For example, Eastern Palliative Care is a specialist practice that deals with palliative care, so I think there's a strong argument that the massage therapist's position description would fall under the specialist practice there.


MR BOYCE:  Eastern Palliative Care, that's a private business?‑‑‑It's a not-for-profit.


Other than that, is there any position that doesn't arise through the hospital system?‑‑‑The paediatric occupational therapist, I actually - Inspiring Possibilities - it isn't specific as to - yes, it's not specific.


VICE PRESIDENT CATANZARITI:  What page are you on in your statement?‑‑‑Sorry, it's in the annexure.


Yes, what page?  The pages are numbered at the bottom?‑‑‑Sorry, yes, pages 12 and 13, your Honour.  I think the paediatric occupational therapist, the employer, Inspiring Possibilities would again potentially fall under specialist practice in the definition of the modern award.


MR BOYCE:  The fact is, though, you know nothing more about that document - what do you call it - is that Annexure 3?  The printing is just - - -


VICE PRESIDENT CATANZARITI:  On the top of page 12.


THE WITNESS:  It's Annexure 3, yes.


MR BOYCE:  You have just printed that out of SEEK, you know nothing more about it than what is written on the paper?‑‑‑Correct.

***        ALEXANDER JOHN LESZCZYNSKI                                                                                          XXN MR BOYCE


You talk about your experience and knowledge as a senior industrial officer with the Health Services Union, Victoria No. 3 Branch in paragraphs 2 and 3.  It is the case, is it, that all of your experience is limited to Victoria?‑‑‑I wouldn't say "all".  I mean, I do have interaction with my colleagues in other states, but the overwhelming majority, yes.


In terms of your case before the Commission in these proceedings, it is the case, isn't it, that the health professionals listed in schedule C is already an indicative list?‑‑‑I would say it is an indicative list.  I suppose part of the reason for that is if you actually go to schedule B of the award, it talks about, "A list of common health professionals which are covered by the definitions is contained in schedule C."  If the list was meant to be a definitive list, it would say, "The list of health professionals which are covered by the definitions contained in schedule C", so, yes, I think it's an indicative list.


You think it's an indicative list, but your case is that it's really just an issue of ambiguity/uncertainty that needs clarification; is that right?‑‑‑Yes, that's my view, yes.


It is on that basis that the evidence you bring is to deal with that issue of ambiguity/uncertainty?‑‑‑Largely, yes.


Have you approached any of the employer organisations in respect of seeking to have these classifications inserted into the award, the ones that you say are not currently listed in schedule C?‑‑‑No.


So you don't know their views on whether they would agree to accept these individual classifications you identify or not?‑‑‑No, I'm not.  Sorry, I would say that in terms of the child life therapist issue, it is an issue that came up in negotiations for our recent public sector agreement.  The employers were represented by the Victorian Hospitals Industrial Association.  They did not contest that the reference to play therapists should include a reference to child life therapists in negotiations, but in relation to the specifics of the award, including those in the award, no, I have not had any conversations with employers in relation to that.


The one employer you have approached accepted that that classification should be included in that award without objection?‑‑‑That's not what I said.


Sorry, the agreement?‑‑‑Yes, and it was also the employer was an employer association, so a registered organisation under the Act.

***        ALEXANDER JOHN LESZCZYNSKI                                                                                          XXN MR BOYCE


Yes.  It is also the case, isn't it, that in terms of a majority of these roles that you have annexed to your statement, they are all covered by enterprise agreements to the extent that they can be identified on the documents at least?‑‑‑Women's Health East, yes; Eastern Palliative Care, yes.  In terms of Annexure 3, the Inspiring Possibilities, I am not aware of them being covered by an enterprise agreement, but again that's not to say that they are not.  In terms of the - if we go further to the clinical coders, Hollywood Private - sorry, I've skipped one - Mater, I am not a hundred per cent sure whether they are covered by an enterprise agreement or not.


Hollywood Private Hospital, Ramsay Health Care, I don't think that is in Victoria, but I suspect that they would be covered by an enterprise agreement; St Vincent's Hospital in Melbourne would be covered or is covered by an enterprise agreement; Melbourne Health is covered by an enterprise agreement; Calvary is covered by an enterprise agreement; New South Wales Government, Health, Western Sydney Local Health District, I believe they would be covered by a New South Wales award, and I think that's it.


MR BOYCE:  You don't say to this Commission, do you, that any of those title changes or those position descriptors have been written by any employer, to your knowledge, to avoid award coverage so that they fall outside of schedule C to the award?‑‑‑Not that I'm aware of.  I haven't had any conversations with them in relation to that, so I'm not aware of that, no.


Would you also agree that there's other ways to go about coverage in schedule C that the union might adopt?‑‑‑There may be.  I'm not aware of them.  In terms of when I was with the finance sector union, I was involved in award modernisation - that was in the initial award modernisation process.  Look, there may be ways; I'm not too sure of the specifics of that.


Would you agree one way would be to vary the award for individual classifications to bring them in and add them into the award?‑‑‑Potentially.  If the Act allows that, potentially that would be one way.


Another way would be to have a list of exclusions to the award?‑‑‑Same answer as previously:  potentially, if the Act allows that.


Are you saying you haven't considered either of those things in making this application to the Commission?‑‑‑I haven't been the person who has been largely involved in the process.  It's obviously been the national office of the Health Services Union.  They are the ones who have been involved in the applications to the Commission.  While I have had input into them, I haven't been the one who has made those decisions.


Were you involved in the 2012 award review proceedings?‑‑‑No.

***        ALEXANDER JOHN LESZCZYNSKI                                                                                          XXN MR BOYCE


You were present, though, when those hearings were happening in the union in 2013?‑‑‑Yes, I would have been present at that point, yes, in the union, not at the hearings.


Yes.  Were you aware of those proceedings at all?‑‑‑I had some awareness of them, yes.


There was no application by your union in those proceedings to expand or to suggest that coverage was ambiguous or uncertain; do you recall?‑‑‑I can't recall.


It is the case, isn't it, that the reason you agitate this issue of coverage is because it was something that was brought to your attention through the technical drafting process?‑‑‑Sorry, could you repeat the question again?


MS DOUST:  I object.  The foundation isn't made out.  There is no evidence that this witness is agitating, as the question suggests.  He is being asked to answer why he is agitating something and there is no evidence it is his actual agitation as opposed to the union's.




MR BOYCE:  Well, that's the union's submissions in one of the submissions, that the reason they raise it is because it was raised as a technical issue and I am just seeking to confirm that with the witness.


Is it the case that this issue came - and I ask you as a representative of the union in your capacity as senior industrial officer - that the issue of coverage arose because it was pointed out to you that there's potentially an issue of ambiguity/uncertainty as to whether it's an indicative list or an exhaustive list?


MS DOUST:  I object again.  I am just not sure how the Commission is assisted by asking this witness, who hasn't been involved in advancing the case, about those sorts of matters.


VICE PRESIDENT CATANZARITI:  He has been asked this time in his role.  It has been narrowed.  He can either say what he knows or doesn't know, Ms Doust.


MS DOUST:  Sure.

***        ALEXANDER JOHN LESZCZYNSKI                                                                                          XXN MR BOYCE


THE WITNESS:  Sorry, can you repeat the question again?


MR BOYCE:  In your role with the union as a senior industrial officer - been there since 2013 - you are giving evidence in these proceedings in support of the union claim.  Isn't it the case that the reason why you seek to run this coverage issue is because it was raised as a technical drafting issue by the Award Modernisation Team at the commencement of this four-yearly review?‑‑‑I'm not aware of whether it arose because of that.  There was discussions between myself and national office in relation to the ambiguity in the award, an ambiguity that I myself became aware of when I was involved in bargaining, but whether that arose from the award modernisation processes in 2013, I can't say.


It is the case, isn't it, that your union hasn't sought to make a variation application outside of the review process to resolve ambiguity or uncertainty in relation to this provision of the award?‑‑‑I can't answer that question - to clarify - because I don't know.


Are you aware that your union has previously sought to deal with this issue and interpret the award in the manner that you say, which is that it's an indicative list, not an expansive list?‑‑‑I am not aware of any sort of specifics in terms of proceedings before the Fair Work Commission.  As I indicated earlier, there had been discussions between myself and people in the national office of the Health Services Union in relation to the ambiguity in the modern award.


What do you say is the basis of the ambiguity?  Do you say either it hasn't been dealt with by the Commission previously, or it hasn't been dealt with properly, or do you say it has been overlooked?


MS DOUST:  I object again.  It is just really going to an argument about - submissions about the construction of the award and I think cross-examining any person about that doesn't assist the Commission.


VICE PRESIDENT CATANZARITI:  I just say, Mr Boyce, it's not really useful, but if you wish to ask the question, I will allow the question.


MR BOYCE:  Thank you, your Honour.


VICE PRESIDENT CATANZARITI:  Bear in mind my earlier comments that this is not an adversarial litigation, it's an award review and we are trying to get the best available information.

***        ALEXANDER JOHN LESZCZYNSKI                                                                                          XXN MR BOYCE




THE WITNESS:  Sorry, could you repeat the question?


MR BOYCE:  In terms of - you are aware of the union's claim and how it is put before the Commission.  I am just seeking to clarify it because there's some ambiguity around the argument you have put.  Do you say the Commission has never dealt with the issue previously, or do you say the Commission hasn't dealt with it properly, or do you say the Commission has overlooked the issue?


VICE PRESIDENT CATANZARITI:  Well, it's "to your knowledge".


MR BOYCE:  To your knowledge?‑‑‑To my knowledge, I'm not sure which of those three.  All I know is that in terms of - the issue was raised with me by the national office of the Health Services Union in relation to there being an ambiguity in the modern award.  It's an ambiguity that, through bargaining, I became aware of and, I suppose, effectively, that's my knowledge in terms of the ambiguity in the modern award, yes.


In terms of the coverage of dentists specifically, what do you say dentists would fall into in terms of the classification structure in the award?‑‑‑Sorry, are you asking me do I think dentists would fall within the coverage of the modern award?


Sorry, yes, do you?‑‑‑I don't see there's anything in the modern award or the Act that would exclude them from coverage.


Have you ever raised an issue or had a dispute about the coverage of a dentist as an employee covered by the award?‑‑‑No, our branch of the union doesn't cover dentists.


Your branch of the union, as far as your evidence is concerned, you've got no evidence in relation to dentists whatsoever?‑‑‑No.


No further questions.


VICE PRESIDENT CATANZARITI:  Thank you.  Anything from you?


MS BANDARA:  No, your Honour.

***        ALEXANDER JOHN LESZCZYNSKI                                                                                          XXN MR BOYCE


VICE PRESIDENT CATANZARITI:  Ms Murphy, any questions?


MS MURPHY:  Yes, your Honour.

CROSS-EXAMINATION BY MS MURPHY                                      [2.49 PM]


MS MURPHY:  Mr Leszczynski, I am sorry, I can't see you very well.  I am Katrina Murphy representing the Dental Hygienists Association of Australia.  Further to your answers to Mr Boyce's question about potential alternatives, you said, I believe, "if the Act allows it" with regard to alternatives to coverage for the child life therapists, which you were concerned about about not being covered under the award, so can I just ask you to just confirm what you mean by that?  Are you not aware of the proceedings to vary an award under the Fair Work Act?‑‑‑I am aware that you can vary modern awards in terms of - unfortunately, I know that there are some potential changes to the award modernisation process that is being proposed in parliament.  I am not too sure where those are up to currently.  I am aware, obviously, that modern awards can be varied; I'm not too sure where the process is in terms of what the legislation currently allows and whether there has been any further changes to the legislation, as has been proposed.


No, Mr Leszczynski, I am talking about the normal process for varying an award, which is unrelated to the four-yearly review of modern awards, which is available to any parties, including the HSU, at any time.  Are you aware of those provisions to vary the modern award?‑‑‑I am vaguely aware that there are provisions in relation to varying the modern award.  In terms of the specifics of the Act and the evidence and the threshold issues that you need to get over to do that, I am not aware of the specifics.  That sort of process is dealt with by the national office of the Health Services Union.  I work in the Victoria No. 3 Branch.


VICE PRESIDENT CATANZARITI:  Ms Murphy, how does this assist the Bench, the line of questioning?  The Act is there.


MS MURPHY:  The line of questioning - - -


VICE PRESIDENT CATANZARITI:  It doesn't - the failure - - -


MS MURPHY:  Sir - - -


VICE PRESIDENT CATANZARITI:  Ms Murphy, I am talking, thank you.

***        ALEXANDER JOHN LESZCZYNSKI                                                                                        XXN MS MURPHY


MS MURPHY:  Thank you, sir.


VICE PRESIDENT CATANZARITI:  The failure by the HSU to prosecute or not where they wish to vary is a matter for submissions.  It is not useful for this Bench in an award review, where we are trying to work out whether or not the matter should be amended because of ambiguity, to ask this witness how the Act operates.  Mr Boyce - - -


MS MURPHY:  So may I - - -


VICE PRESIDENT CATANZARITI:  Mr Boyce has already exhausted the line of questioning in relation to this witness' understanding.


MS MURPHY:  What I am trying to determine is in relation to the witness' comments and statements in clauses 10 and 11, which obviously he is very concerned about, whether he made those statements in his witness statement without being aware of other provisions which were available to the union.


VICE PRESIDENT CATANZARITI:  If you are going to put a specific question about what he said in his statement, then you should put it fairly.  That is not the question - - -


MS MURPHY:  I am unaware of which part of the question - - -


VICE PRESIDENT CATANZARITI:  That is not the question you asked him, Ms Murphy.


MS MURPHY:  All right, I'll put it another way, sir.


If you were aware, and there is another provision in the Fair Work Act which exists now to vary the award to include child life therapists, why do you think that determining that the list of common health professionals is indicative rather than exhaustive is a better way of guaranteeing award coverage for child life therapists?


MS DOUST:  I object.  There is no prior evidence that this witness regarded it as a better way and, with all due respect to my friend, I don't think a question along the lines of what she has asked is really something to put to a witness, nor is it something that will assist the Commission.

***        ALEXANDER JOHN LESZCZYNSKI                                                                                        XXN MS MURPHY


VICE PRESIDENT CATANZARITI:  Yes, I will allow the objection.


MS MURPHY:  With regard to child life therapists, did you have discussions with child life therapists, Mr Leszczynski?‑‑‑I had a discussion with one of the office holders of the - sorry, I'm just trying to find the actual name of the - the Association of Child Life Therapists Australia.


Have you had any discussions with the Dental Hygienists Association of Australia?‑‑‑Have I had any discussions?  No.


Has anybody, to the best of your knowledge, in the HSU had any discussions with the Dental Hygienists Association of Australia?‑‑‑I'm not aware of any, but I haven't had any discussions with my colleagues in the national office as to whether they have had discussions with the Dental Hygienists Association of Australia.


I have no further questions, thank you.


VICE PRESIDENT CATANZARITI:  Thank you.  Anyone else?  Any re-examination, Ms Doust?


MS DOUST:  Just briefly.

RE-EXAMINATION BY MS DOUST                                                  [2.54 PM]


MS DOUST:  Mr Leszczynski, a little while ago, Mr Boyce asked you about one of the attachments to your statement and you were referring to Inspiring Possibilities?‑‑‑Yes.


Can you just explain to the Commission who Inspiring Possibilities are, please?‑‑‑They seem to be an employer that employs health professionals.  I note that their position description talks about being registered with the NDIS, so I suspect that in part they provide disability services to people with disabilities.


Thank you.  Nothing further.


DEPUTY PRESIDENT BOOTH:  Mr Leszczynski, may I ask you a question?‑‑‑Yes.

***        ALEXANDER JOHN LESZCZYNSKI                                                                                          RXN MS DOUST


You referred earlier to conducting enterprise bargaining negotiations and the current form of the award causing difficulties or complexity.  You didn't use those words, but that's the impression I got.  Could you give us a greater sense of the difficulties encountered in enterprise bargaining as a result of the award?‑‑‑Look, I suppose one example would be massage therapists.  Of all places, it's Eastern Palliative Care who we have a position description for there.  They employ massage therapists as part of the services they provide to people who, unfortunately, are terminally ill.


I suppose one of the issues that did come up when we were sort of negotiating and when we were looking at things like the better off overall test is, well, are massage therapists covered by the modern award, because if you go to the list of common health professionals, it doesn't actually refer to massage therapists but it does refer to remedial masseuses.  So, the question is:  do massage therapists - are they the same as remedial masseuses or not, or are they separate?  So, potentially, that is an issue that, you know, did come up and we were sort of having discussions around that enterprise bargaining.


I'm just trying to think if there's any others that have sort of come up.  Look, yes, I mean, the other one which I suppose does come up at times is clinical coders.  In my statement, I refer to a little bit about the history of clinical coders as well as the history of health information managers, and I suppose health information managers used to be referred to as medical record administrators.  Their professional association changed their name and changed the name of the profession from health information managers - from Medical Records Administrators Australia, I think it was, to the Health Information Managers Association of Australia.


From my involvement in enterprise bargaining, one thing that constantly comes up is that it's a very specialised profession and there is a significant shortage of health information managers out there.  What has often happened is that you have had clinical coders, who historically have not been degree-qualified, whereas health information managers have been degree-qualified, and because there's such a shortage of health information managers, it's not uncommon for employers to actually, if they can't get health information managers, to get clinical coders, and I suppose when we negotiate enterprise agreements that cover health information managers, invariably the issue of clinical coders comes up.  Even though a lot of clinical coders are not degree-qualified, they are often paid the same as health information managers, so the issue comes up as to should they be included in an award that covers health professionals, because our branch of the union covers health professionals and so that's one of the issues that comes up.

***        ALEXANDER JOHN LESZCZYNSKI                                                                                          RXN MS DOUST


I suppose the other issue that comes up is if it's decided that they would be incorporated, it would be covered by the enterprise agreement, for BOOT purposes, are they covered by the health professionals classification structure and rates of pay or are they covered by the support services classification structures and rates of pay?


To me, those are two examples of where issues come up with - you know, the fact that there is an ambiguity in the current modern award in relation to health professionals, you know, those are two issues that have come up.


DEPUTY PRESIDENT BOOTH:  Thank you very much.


VICE PRESIDENT CATANZARITI:  Anything arising?  Thank you, you are excused?‑‑‑Thank you, your Honour, thank you, Commissioner.

<THE WITNESS WITHDREW                                                            [2.59 PM]


VICE PRESIDENT CATANZARITI:  Ms Murphy, we will go to your witnesses.


MS MURPHY:  Sir, the Fair Work Commission staff member is not in the room at present.  Would Ms Aznocar be able to - - -


VICE PRESIDENT CATANZARITI:  They are on their way, Ms Murphy.


MS MURPHY:  Thank you, sir.


MR SCOTT:  Your Honour, it's Mr Scott from Newcastle.  I am just wondering if I could be excused for the remainder of the witnesses this afternoon?




MS BANDARA:  Your Honour, the same applies for the CA, if we may?


VICE PRESIDENT CATANZARITI:  Thank you, Ms Bandara.  Anyone else seeking to be excused?


MS DOUST:  I would like to ask, Vice President, but I think I have to stay.



***        ALEXANDER JOHN LESZCZYNSKI                                                                                          RXN MS DOUST


DEPUTY PRESIDENT BOOTH:  I think you might have to.

<MELANIE JANE HAYES, SWORN                                                  [3.00 PM]

EXAMINATION-IN-CHIEF BY MS MURPHY                                 [3.00 PM]


MS MURPHY:  Please state your full name and address for the court, thank you?‑‑‑Melanie Jane Hayes, (address supplied).


Dr Hayes, do you have a copy of your witness statement with you?‑‑‑No.


No?  Sir, we will just give Dr Hayes a copy of her witness statement because I intend to refer to it.


VICE PRESIDENT CATANZARITI:  Ms Murphy, is it both witness statements you are giving or just one?


MS MURPHY:  Sorry, sir?


VICE PRESIDENT CATANZARITI:  Are you giving two witness statements or just the one?


MS MURPHY:  There are two witness statements today, one from Dr Hayes and one from Dr Tran and I also wish to tender as evidence the survey data that I referred to earlier today as part of Dr - - -


VICE PRESIDENT CATANZARITI:  No, the Commission has in its possession two statements of Dr Hayes, one dated 13 March 2017 and one dated 9 June 2017.  Are you putting both in or just the one?


MS MURPHY:  The second one, sir, I confirmed with the Commission that it was an amendment, the second one, and it was published as an amendment.


VICE PRESIDENT CATANZARITI:  Yes, so that is replacing it?  In other words, we are not going to look at it all?  Okay.


MS MURPHY:  No, sir, you are going to look at the most recent one, with respect.

***        MELANIE JANE HAYES                                                                                                              XN MS MURPHY




MS MURPHY:  Thank you, sir.


MS DOUST:  Can I just indicate, Vice President, I am reluctant, given the comments you made earlier about objections, but I do have a couple of objections to the statement, but I haven't yet raised them with Ms Murphy.


VICE PRESIDENT CATANZARITI:  You have not had any discussion with Ms Murphy?


MS DOUST:  No, I'm sorry, I haven't.  I had understood these witnesses would be here in Melbourne today.  I have got the wrong end of the stick on that, I'm afraid.


VICE PRESIDENT CATANZARITI:  Are your objections more than just going to submissions?


MS DOUST:  It's in that nature.  For example, paragraph 4, the first sentence includes an assertion about people being covered by the award and I think that's a conclusion really.  That appears as well, in my submission, at paragraph 18.  Paragraph 23 is relevance.  That's about a change.org petition about the status of dental hygienists, and the final one is that the final sentence of the final paragraph, paragraph 24, is an opinion or conclusion and the basis is not disclosed, and this is not a person that has any apparent expertise.


VICE PRESIDENT CATANZARITI:  How long is your cross-examination going to be of this witness?


MS DOUST:  I would say about 20 minutes.


VICE PRESIDENT CATANZARITI:  The difficulty we have this afternoon is we have to finish at 4 o'clock for another listing.


MS DOUST:  I wouldn't see any of my questioning would take either of these witnesses beyond 4 o'clock.


VICE PRESIDENT CATANZARITI:  But there are two - Ms Murphy has two witnesses to go through.

***        MELANIE JANE HAYES                                                                                                              XN MS MURPHY






MS DOUST:  Ms Tran is considerably briefer and my questions of her will be much - - -


VICE PRESIDENT CATANZARITI:  Perhaps we will take a short adjournment to allow you to have a discussion with Ms Murphy about the two witness statements to see if you can narrow the objections.




VICE PRESIDENT CATANZARITI:  Thank you, the Commission will adjourn.

<THE WITNESS WITHDREW                                                            [3.04 PM]

SHORT ADJOURNMENT                                                                    [3.04 PM]

RESUMED                                                                                               [3.18 PM]


VICE PRESIDENT CATANZARITI:  Yes, Ms Doust, how did we go in resolving the objections?


MS DOUST:  Thank you.  I am not sure we made much progress in resolving anything apart from paragraph 5, where I think my friend is content to have the opinion that is expressed in the first sentence about coverage restricted to the witness' understanding.




MS DOUST:  The reason we raise the issue, we accept that there was the decision in 2009 about dental hygienists, but to the extent there's an attempt to assert by way of evidence that oral health therapists don't fall within the award, that really does - it really raises what is the ultimate issue for the Commission to determine.



***        MELANIE JANE HAYES                                                                                                              XN MS MURPHY


MS DOUST:  And that is the issue that also arises in paragraph 18, but we didn't reach any accord in respect of that paragraph.  There is the assertion there that that remained award-free and what was it that resulted in that remaining award-free.


VICE PRESIDENT CATANZARITI:  Yes, that's the core of the case, but anyway.


MS DOUST:  Yes.  Paragraph 23 about a change.org petition, it could be anyone signing up to that, Vice President, and we don't think that that assists the Commission to determine the issues here about what is the appropriate terms of this award.


Finally, the final sentence of paragraph 24:


Inclusion in the award would have a negative impact on dental hygienists' and oral health therapists' ability to negotiate such wages.


It is a conclusion or opinion which isn't made clear by reference to the witness having any particular expertise or specialist knowledge about this area and the basis isn't disclosed.  It's just pure assertion.


VICE PRESIDENT CATANZARITI:  All right, Ms Murphy, let's go through them one by one.




VICE PRESIDENT CATANZARITI:  In relation to paragraph 4, I understand you are content with the change in paragraph 4?


MS MURPHY:  That is correct, sir.


VICE PRESIDENT CATANZARITI:  How would you like that to read?


MS MURPHY:  Sorry, sir?


VICE PRESIDENT CATANZARITI:  Tell me the wording you want in there.




My current understanding is that none of DHAA members are covered by the Health Professionals and Support Services Award.


VICE PRESIDENT CATANZARITI:  Yes, all right.  Let's go to paragraph 18.


MS MURPHY:  Sir, as I attempted to explain to my friend just now, paragraph 18 is a historical reflection and is a question of fact.


VICE PRESIDENT CATANZARITI:  It doesn't come from this witness.  The fact that it was included in part of the proceedings, no doubt you will lead the relevant material that was in the Commission at the time.


MS MURPHY:  Yes, but - - -


VICE PRESIDENT CATANZARITI:  It's not something that - it doesn't come through a witness.  I will strike out paragraph 18.


MS MURPHY:  Sir, with respect, the - - -




MS MURPHY:  Paragraph 23, which relates to paragraph 24, Dr Mel Hayes is both the former president and the chief executive officer of the DHAA, so in terms of her knowledge of the views and the pay rates and the employment conditions of dental hygienists and oral health therapists, her knowledge is extensive.  She has been involved in - - -


VICE PRESIDENT CATANZARITI:  Ms Murphy, paragraph 23, the objection is taken to the fact that it is as petition on change.org.


MS MURPHY:  Yes, that's right.


VICE PRESIDENT CATANZARITI:  Where is the material and the foundation?  It has got nothing to do with the knowledge of the witness.


MS MURPHY:  The material has been served, sir, and the relevance - - -


VICE PRESIDENT CATANZARITI:  That's not the basis of the objection.  The objection is anybody can get onto change.org.  How can you qualify the cohort to make sure that it is a legitimate cohort of people as in the traditional surveys that are used and before the Commission?


MS MURPHY:  I would suggest, sir, it might be worthwhile to actually ask Dr Hayes to explain how the petition - - -


VICE PRESIDENT CATANZARITI:  She is not an expert on survey design, Ms Murphy.  In many cases before the Commission which I have been involved in, when we are talking about surveys, there's a person who talks about the survey and what the basis and foundation is.  You do not get it from this witness.


MS MURPHY:  Sir, it's described as a "petition".


VICE PRESIDENT CATANZARITI:  Yes.  Is she the author of the petition?  What are her qualifications to put together a petition?


MS MURPHY:  Sir, I doubt whether many trade unions would have qualifications to put together a petition.


VICE PRESIDENT CATANZARITI:  Ms Murphy, being argumentative with the Bench is not a useful answer to my question.


MS MURPHY:  Sir, I am trying to explain why I think it's relevant information, sir.  I am not in any way attempting to be argumentative.


VICE PRESIDENT CATANZARITI:  Yes, it's not going to be allowed in.  It is struck out.


MS MURPHY:  Thank you, sir.


VICE PRESIDENT CATANZARITI:  And the objection to paragraph 24, which deals with the survey, is the last part of it.  What do you say about the last part of 24?


MS MURPHY:  I can say in relationship to that that knowledge about pay rates is something which is directly within the realm of the CEO of the DHAA, who is the person that we have in front of us.


VICE PRESIDENT CATANZARITI:  That is not what the sentence is referring to.  It says:


would have a negative impact on dental hygienists' and oral heath therapists' ability to negotiate wages.


MS MURPHY:  Yes, sir.  I am unclear what the objection is, sir.  I remain unclear.


VICE PRESIDENT CATANZARITI:  Well, I didn't draft the sentence.  I am unclear understanding the sentence as to how this witness can say that including something in an award would have a negative impact on the ability to negotiate wages.


MS MURPHY:  I can explain, sir, what it means.


VICE PRESIDENT CATANZARITI:  No, you can't explain.  It is the witness who has said this.  What is the foundation for the sentence because that - - -


MS MURPHY:  Sir, I don't know how to answer you.  Unless she gets a chance to give her explanation in some detail, and I actually do know what she is going to say because I am aware of the data that is behind this in the DHAA IR advice line.  There has been an IR advice line run about pay rates and issues of industrial relations issues since 2003, which we keep statistical records of, so - - -


VICE PRESIDENT CATANZARITI:  Ms Murphy, you are aware in these proceedings that you get an opportunity to put on witness statements.  The traditional path is you put on a witness statement and you get a limited right to supplement your evidence.  Now, if you are going to embark upon asking further questions to enlighten it, you then seek leave of the Commission and you explain why it is we didn't have a witness statement which goes into the detail that is in that sentence.


MS MURPHY:  Well, thank you, sir, I would seek leave of the Commission to allow Dr Hayes to provide further details in relationship for her evidence that she has to support the second sentence of clause 24.  Since there is a problem with the survey, I am prepared to delete the first sentence and would seek leave from the Commission to ask Dr Hayes to expand upon her reasons for the inclusion of the second sentence.


VICE PRESIDENT CATANZARITI:  There is no problem with the first sentence of 24.  That is not objected to.  It is the second sentence that is objected to.


MS MURPHY:  I think the first sentence is objected to, unless I misunderstood.






VICE PRESIDENT CATANZARITI:  The first sentence is not objected to.  It is the second sentence.


MS MURPHY:  Okay.  So - - -


VICE PRESIDENT CATANZARITI:  It is the second sentence.  This person is saying that they have the ability to make a statement that inclusion in the award would have a negative impact on dental hygienists' and oral health therapists' ability to negotiate such wages.  That is a very broad brush statement from a witness.


MS MURPHY:  Sir, would it be reasonable to alter that to say that that is Dr Hayes' view and be prepared to ask her to provide further evidence for that view and my friend can cross-examine her on the reasonableness or not of that data.


VICE PRESIDENT CATANZARITI:  I am happy for her to say it is her view that including something in the award would have a negative impact.


MS MURPHY:  I am happy with that, sir.


VICE PRESIDENT CATANZARITI:  And then there is no need to have supplementary questions on that because that is her view.  Put that way, it's a bit different to what it currently says, Ms Doust.


MS MURPHY:  Thank you, sir.


MS DOUST:  My submission ultimately about that is if it is  put as the witness' view, it has extremely limited relevance.


VICE PRESIDENT CATANZARITI:  Yes, I understand that, but put as the witness' view, it's different.  We will amend paragraph 24 to say:


In my view, inclusion in the award would have a negative impact on dental hygienists' and oral health therapists' ability to negotiate such wages.




VICE PRESIDENT CATANZARITI:  All right.  We haven't had your witness verify her statement, so could you do that, Ms Murphy.


MS MURPHY:  Thank you, sir.

<MELANIE JANE HAYES, RECALLED                                          [3.27 PM]



MS MURPHY:  Dr Hayes, could I please ask you to verify that you have prepared that statement in front of you for the purposes of today's proceedings, which is the four-yearly review of modern awards, namely the Health Professional and Support Services Award?‑‑‑Yes.


Can I ask you to verify that that statement is true and correct to the best of your knowledge?‑‑‑Yes.


Can I also confirm that you understand the amendments that have just been made to the best of your knowledge?‑‑‑Yes.


Thank you.


VICE PRESIDENT CATANZARITI:  Do you tender that document?


MS MURPHY:  Sorry, sir, yes.  Of course, I ask permission to tender the signed witness statement of Dr Melanie Hayes as part of the evidence for the DHAA.





MS MURPHY:  Thank you, sir.  Sir, can I just confirm that you are not going to allow me to tender as evidence the survey?

***        MELANIE JANE HAYES                                                                                                              XN MS MURPHY


VICE PRESIDENT CATANZARITI:  I am not allowing you to tender whatever is the petition.  If that is the survey, then that's tendered.  I thought they were two different documents.  The survey is attached, so that's tendered.


MS MURPHY:  There are, in fact, two different documents, sir.




MS MURPHY:  May I ask Dr Hayes to explain the documents?


VICE PRESIDENT CATANZARITI:  I have allowed the survey in.  What is the basis - what do you want her to explain?


MS MURPHY:  I want her to explain how the survey came about and the process that was utilised with regard to the survey.




MS MURPHY:  Dr Hayes, could you do that?  Could you please explain how the survey came about and what process you used to implement that survey?‑‑‑Yes.  So we represent dental hygienists and oral health therapists and when they were aware that there was an application to see them covered by an award, they contacted us and told us that, you know, this was of concern to them, and so we decided to do a member survey to collect some information from our members about their current employment status, whether they did want to retain their award-free status or not.  So, this survey was conducted between 1 June and 31 August this year and probably the most important fact to come from the survey was the fact that 97.5 per cent of our members that responded to the survey indicated that they did want to maintain their award-free status.


VICE PRESIDENT CATANZARITI:  How many people were surveyed?‑‑‑There were 300 and - - -


This only deals with the response rates, Dr Hayes?‑‑‑At the time the survey was sent out, we had approximately 1000 members.


You circulated this to 1000 people and you got a response back from 367?‑‑‑That's correct.

***        MELANIE JANE HAYES                                                                                                              XN MS MURPHY


Thank you, Dr Hayes.


MS MURPHY:  Dr Hayes, can you confirm, in relationship to your role as chief executive officer of the DHAA and immediate past president of the DHAA, how industrial relations matters are organised for the Association?‑‑‑So we have an industrial relations advisory service for members, so if they have any industrial relations concerns or issues that they would like some guidance on, they get in contact with our industrial relations advice team through a portal on our website.  So, it is only available to our members.


Thank you.  Can I ask you, with regard to the occupation of oral health therapy, when did that occupation first commence?‑‑‑So the first training of oral health therapists commenced in the year 2000.


Would you describe the occupation as a new profession?‑‑‑I would say it's recent, yes.


Was the occupation in existence prior to the 2009 proceedings?‑‑‑Absolutely.


What is the difference between a dental hygienist and an oral health therapist?‑‑‑So a dental hygienist performs preventive procedures on patients of all ages; an oral health therapist can also perform those duties that a dental hygienist can, but they also have additional scope to do fillings and extractions on baby teeth.


Your profession is what, personally?‑‑‑I'm a dental hygienist.


Can I ask you, bearing in mind the amendments that have been made to your statement, your personal view, as a dental hygienist, in relationship to you and you only, how, if dental hygienists were made respondent to this award, how you think - think - not factually but think - it might impact upon you?‑‑‑I think that potentially it would impact on the profession's ability to negotiate their employment contracts.  At the moment - if I can refer back to the survey - we looked at the current rates of pay that our members enjoy and negotiate in practice at the moment and the majority of practitioners can negotiate hourly rates of in excess of $50 an hour.  My personal view and my concern is that if we were covered by a Health Professionals Award, the award rate would be much lower than the rates that they can negotiate and also that their ability to move through the different classifications would impair their ability to earn higher hourly rates.

***        MELANIE JANE HAYES                                                                                                              XN MS MURPHY


Why do you say that their ability to move through the classifications would be impaired; what do you mean by that?‑‑‑So my understanding is that to get to level 3 of the classification, it requires some level of administration or supervision in that role and hygienists and oral health therapists are clinicians and that's what they are trained to do, is to clinically care for patients, and generally do not aspire to be in administrative or supervisory positions.


Thank you, I have got no further questions, your Honours, at present.



CROSS-EXAMINATION BY MS DOUST                                          [3.34 PM]


MS DOUST:  Dr Hayes, hello, it's Ms Doust here, I appear for the HSU.  I have just got a couple of questions for you.  In your statement, you say that the DHAA has got 1377 members; is that correct?‑‑‑We currently - we currently have over 1500 members as of today.


Thank you.  How many of those are dental hygienists?‑‑‑I don't have those exact numbers in front of me.  My estimation would be that 60 per cent are dental hygienists.


In the territory, I think - is that about 900 are dental hygienists?‑‑‑I guess so, yes.


Are the balance oral health therapists?‑‑‑Yes, that's correct.


Do I understand you correctly, you are not a qualified oral health therapist yourself?‑‑‑No, I am registered as a dental hygienist.


You don't practise as such, as an oral health therapist?‑‑‑No, I do not.


Am I right that you never have?‑‑‑Correct.


Do you have any interest in any practice where you employ such persons?‑‑‑No, I don't.


I think you said that the first course in oral health therapy was in 2000?‑‑‑That's correct.

***        MELANIE JANE HAYES                                                                                                              XXN MS DOUST


That was at the University of Queensland, wasn't it?‑‑‑Yes.


That was a course - at that stage, it was offered as a further year to add to dental therapy qualifications in order to, effectively, upgrade the qualification; is that a fair description?‑‑‑No, that is not my understanding.


Are you saying that that was a Bachelor course that was offered in the year 2000?‑‑‑Correct.


Currently the situation is - I think there's about 10 universities that offer a Bachelor degree course that qualifies a person to practise as an oral health therapist?‑‑‑Was that a question?


Yes, I am just asking you to confirm that is your understanding as well?‑‑‑Yes.


Within the training that is provided for oral health therapists is incorporated the training that is provided for dental therapists; that's correct, isn't it?‑‑‑Not really.


Are you saying there is no overlap between the profession of dental therapy and the profession of occupational health therapist?‑‑‑I'm a little bit confused by the terminology, but I think what perhaps you're trying to say is that the oral health therapist is a combination of dental hygiene and dental therapy, which, although for a lay person looks as though it's the case, people that are involved in the education of oral health therapists would say it's a more holistic approach; it's not simply combining dental hygiene and dental therapy.


You say, do you, that in the process of developing the new profession of oral health therapist, the concepts in relation to the division of roles have changed; is that fair?‑‑‑Correct, yes.


But you accept this:  the profession of oral health therapist is one which is built substantially upon the previously existing profession of dental therapist?‑‑‑I would say it was equally built on the professions of dental therapist and dental hygienist.


There's currently - you accept this - about 3000 dental hygienists and oral health therapists registered with the Dental Board of Australia?‑‑‑Correct.

***        MELANIE JANE HAYES                                                                                                              XXN MS DOUST


It is the case, isn't it, that oral health therapists were only recognised as a registered profession by the Dental Board in 2010?‑‑‑I would disagree with that statement.  The Dental Board only came into effect in 2010, but prior to that, state and territory regulatory authorities were recognising oral health therapists.  We actually have registration data on oral health therapists as early as 2006.


Just going back to your members, if I might, are any of them employers?‑‑‑It's impossible for me to say, but I would say there probably are a few.


Do you know if there's any of them that classify themselves as independent contractors?‑‑‑I wouldn't know.


Let me just ask you about dental hygienists, if I might.  You agree with me they can work in a number of different contexts?‑‑‑Correct.


They can work in private dental practices?‑‑‑Yes.


And they can also work in aged care facilities and hospitals?‑‑‑Yes.


Of your membership, how many work respectively in those two areas?‑‑‑It would be impossible for me to guess that figure.


You are not able to say what proportion work in those respective areas?‑‑‑No.


You are not the only body, are you, that has oral therapists - I'm sorry - the DHAA is not the only body which has oral therapists amongst its membership?‑‑‑That's correct.


The Australian Dental and Oral Health Therapists Association also has oral therapists as members as well, doesn't it?‑‑‑That's correct.


I just want to ask you about your IR advice line.  That is an advice line that is provided by Ms Murphy - is that correct - or she provides the services after members make an initial call?‑‑‑That's correct.


Is Ms Murphy retained on an ongoing basis by the organisation to provide advice when matters are referred along?‑‑‑Well, she's retained for the work that she does, yes.

***        MELANIE JANE HAYES                                                                                                              XXN MS DOUST


To provide that advice to members?‑‑‑Yes.


Does she also provide advice to the organisation about the approach it should take in matters such as these before the Commission?‑‑‑Often the DHAA board of directors will seek the advice of Ms Murphy on such matters and sometimes she may bring matters to our attention that we maybe previously haven't been aware of.


Has it sought Ms Murphy's advice in this matter about the approach that it should take in respect of these proceedings?‑‑‑Sorry, can you ask the question again?


I am sorry, it was probably a bit convoluted.  Has the DHAA sought the advice of Ms Murphy in respect of the approach it should take in these proceedings?‑‑‑Yes.


Thank you.  I just want to ask you, in paragraph 9 of your statement, you refer to "sham contracting" being an issue in your industry?‑‑‑Correct.


Can you tell me about the sorts of matters involving sham contracts that are the subject of your members' enquiries?‑‑‑Well, I don't personally respond to industrial relations enquiries that come through our IR advice line.


Are you unable to enlarge upon the sort of content of any of the categories that you have put in paragraph 9 of your statement?‑‑‑Well, I guess I would go so far as to say that with sham contracting, it's related to members being forced to move away from their permanent or part-time or casual positions and into contracting positions where contracting actually isn't a suitable position to be in.


Are you saying that based on your discussions with members about that?  I thought you were unable to tell me about them a moment ago?‑‑‑I certainly have conversations with members on a weekly basis about different issues, but I often refer them off to the IR advice line.


It is the case, isn't it, there's nothing in the award that would impede members from trying to resolve a sham contracting problem, is there?‑‑‑I don't think so.


So far as your members' wages are concerned, have they increased in recent years?‑‑‑Not to my knowledge.


How long have they been stable for?‑‑‑Probably the last 10 years at least.

***        MELANIE JANE HAYES                                                                                                              XXN MS DOUST


When I say "stable", are you saying that they have remained at the same level or have they only kept pace with CPI during that period?‑‑‑I'd say that they've kept pace across the last 10 years.


Have there been any marked decreases over that period?‑‑‑Not to my knowledge.


No marked decreases when, in 2006, dental hygienists came under the award?‑‑‑I'm not sure what you're referring to.  To my knowledge, the profession of dental hygienist has been award-free.


You are aware, aren't you, that they were included on the list in about 2006?‑‑‑In a specific state of Australia or - certainly not Australia-wide.


But you are unable to point to any particular decreases in the last, say, 15 years; is that correct?‑‑‑I said 10 years.


Ten, yes.  Thank you.  Can I just ask you this:  you agree you have a current safety net of the minimum wage, don't you?‑‑‑Yes, agreed.


When that increased last year in July, did you notice your members' wages go down at that stage?‑‑‑Not to my knowledge.


You agree that the minimum rates under the award are well in excess of the safety net of the federal minimum wage?‑‑‑Yes.


You are able to tell me now, aren't you, the award rate that would apply to your members if they were covered by the award?


MS MURPHY:  Objection, your Honour.  I don't think she needs to be aware of those things off the top of her head.  If she could be given a copy of the award, I am sure she would say.


VICE PRESIDENT CATANZARITI:  Ms Murphy, she can say she doesn't know the answer.  She is asked a question.


MS MURPHY:  Thank you, sir.

***        MELANIE JANE HAYES                                                                                                              XXN MS DOUST


THE WITNESS:  Yes, to be honest, I don't know the exact rate off the top of my head.


MS DOUST:  Dr Hayes, I want to suggest to you there is no logical reason why an increase to the safety net rate applicable to your members would drive their wages down.  You would have to accept that, wouldn't you?‑‑‑I don't really understand what you are asking me.


You can't point to any provision in the award that would have the effect of driving the wages or conditions that your members are able to negotiate down from where they currently stand, can you?‑‑‑Well, only their ability to negotiate those wages that they currently enjoy in practice.


Yes, but you can't point to any provision of the award that would drive those wages down, can you?‑‑‑Only the fact that they couldn't go through the classification system and get beyond a certain point.


None of that would prevent your members from engaging in negotiations to get wages that would reflect what the market determines is the rate for their work, would it?


MS MURPHY:  Objection.  That's just a statement, your Honours.


VICE PRESIDENT CATANZARITI:  It's not a statement, Ms Murphy, it's actually a question.


MS MURPHY:  Well, can you rephrase it as a question, please?


MS DOUST:  I am content to leave it there, Vice President.


VICE PRESIDENT CATANZARITI:  Anything further, Ms Doust?


MS DOUST:  No, thank you.




MS MURPHY:  Sir, I would like to ask one further question.

***        MELANIE JANE HAYES                                                                                                              XXN MS DOUST



RE-EXAMINATION BY MS MURPHY                                             [3.49 PM]


MS MURPHY:  You were asked several questions with regard to educational qualifications and degree status of oral health therapists.  What was your role prior to being president, or when you were president of DHAA, what was your occupation, where have you worked?‑‑‑I was a senior lecturer at the University of Melbourne.


Are you familiar then with how degrees work?‑‑‑Yes.


Is it part of your expertise?‑‑‑Yes.


Thank you, no further questions.


DEPUTY PRESIDENT BOOTH:  Might I ask you a question, Dr Hayes?  Can you hear me well enough?  I believe - I'm not generally regarded as soft-spoken, but apparently I haven't been able to be well heard by the transcript providers, so can you hear me?‑‑‑I can.


Very good.  I am just interested in the occupation or the role of dental therapist.  I wonder if you can tell me if there still is a registration for dental therapists in the relevant registration board?‑‑‑There is, yes.


Is there still at least one course, or more than once course, being conducted by an educational institution for the dental therapist role?‑‑‑No, there is not.


Is the job title or the role of dental therapist now redundant or would there still be some dental practices who have a dental therapist?‑‑‑There certainly are still some registered dental therapists that are working, but I would say it's a profession that is declining in numbers because they don't have any new graduates.

***        MELANIE JANE HAYES                                                                                                           RXN MS MURPHY


The "Other" category in your DHAA members' survey, would that contain, do you think, some dental therapists, and given that we have got, I think, 70 per cent of the respondents were dental hygienists and about 25 per cent were oral health therapists, it doesn't leave much room, but is that where the dental therapists would have fallen had they replied to the survey?‑‑‑I think so.  I think, from memory, the people that fell in the "Other" category were dental hygienists that perhaps also had another qualification in either dental therapy or dental prosthetics, or even dental hygienists that had become dentists, so, yes.


Is it the case then that the oral health therapist occupational role has really overtaken the dental therapist role?‑‑‑I would argue that it's a different role to the dental therapist's role, so I don't know that "overtaken" is the correct way to phrase it.


Then what was the dental therapist's role, or what is the dental therapist's role, for those few remaining dental therapists?‑‑‑So dental therapists provide fillings and extractions for children.  They tend to work primarily in the public sector.


Children beyond babies, because you mentioned that oral health therapists do fillings and extractions on baby teeth?‑‑‑Well, "children", I perhaps should have said.


So the fillings and extractions that oral health therapists do are also done by dental health therapists; is that right?‑‑‑Generally speaking, yes.  There's slight variations in scope of practice at different universities, but, as a general rule, yes.  There are some oral health therapists that can place fillings in adult teeth.


Before the time of oral health therapists, what would the proportionality have been in the industry as between dental hygienists and dental therapists?‑‑‑It's probably impossible for me to say.  That would have occurred before the year 2000 and I was probably still in high school at the time, so I don't know.


I would be correct in concluding that there is a minority of professionals in the field that are now called dental therapists?‑‑‑Correct.


Thank you.


VICE PRESIDENT CATANZARITI:  Anything arising?  Thank you, you are excused.

<THE WITNESS WITHDREW                                                            [3.53 PM]


VICE PRESIDENT CATANZARITI:  We will now call Dr Tran?


MS MURPHY:  Sir, there's no staff in the room at the moment.

***        MELANIE JANE HAYES                                                                                                           RXN MS MURPHY


VICE PRESIDENT CATANZARITI:  They are on their way, Ms Murphy.


MS MURPHY:  Thank you.

<CAROL TRAN, AFFIRMED                                                              [3.55 PM]

EXAMINATION-IN-CHIEF BY MS MURPHY                                 [3.55 PM]


THE ASSOCIATE:  Please state your full name and address.


MS TRAN:  My name is Carol Tran, (address supplied).


MS MURPHY:  Dr Tran, have you got a copy of your witness statement in front of you?‑‑‑Present here.


Can you please confirm that you have prepared that signed statement for the purposes of today's proceedings, which are the four-yearly review of modern awards in relationship to the Health Professionals and Support Services Award of 2010?‑‑‑I can confirm this.


Can you also confirm that the statement is true and correct to the best of your knowledge?‑‑‑It is true and correct.


Your Honours, I would like to tender the witness statement as evidence, please.


VICE PRESIDENT CATANZARITI:  DHAA2.  Any objections, Ms Doust?


MS DOUST:  Paragraphs 4 and 5, they are the witness' view.  It's the same type of objection to the objection that I took in respect of the last witness.  I think her view is of very limited relevance and to the extent there is an opinion here, the basis is not disclosed.


VICE PRESIDENT CATANZARITI:  Yes, I will allow the paragraphs on the basis that they are her view and ultimately it is a matter for submissions as to the weight.  Thank you.


MS MURPHY:  Sorry, would you mind repeating that, sir, what you just said?  I didn't quite catch it.

***        CAROL TRAN                                                                                                                             XN MS MURPHY


VICE PRESIDENT CATANZARITI:  The transcript will show what I said, but I said something like this:  "I will admit paragraphs 4 and 5.  They are her views and it is ultimately a matter of submissions as to whether or not they are relevant and the weight to be given to them."


MS MURPHY:  Thank you, sir, I didn't hear - the word "omit" was cut out in the microphone.  Thank you for that clarification.


VICE PRESIDENT CATANZARITI:  "Admit."  Anything further, Ms Murphy?


MS MURPHY:  Sorry, sir?


VICE PRESIDENT CATANZARITI:  Any further questions of this witness, Ms Murphy?




Dr Tran, could you please confirm your occupation?‑‑‑I'm an oral health therapist.


Can you state what your qualifications are?‑‑‑I hold a Bachelor of Oral Health from the University of Melbourne 2008; I also hold a PhD from the University of Queensland from 2017.


Are you a member of the DHAA as an oral health therapist?‑‑‑Yes.


Or in some other capacity?‑‑‑No.  Sorry, I'm also - - -


VICE PRESIDENT CATANZARITI:  Ms Murphy, do not ask her questions that are in her statement.


MS MURPHY:  Thank you, sir.


VICE PRESIDENT CATANZARITI:  In paragraph 6, she actually says she is a member.


MS MURPHY:  Thank you, sir.

***        CAROL TRAN                                                                                                                             XN MS MURPHY


Do you hold a position within the DHAA?‑‑‑Yes, I do.


What is that position?‑‑‑I'm a director, part of the DHAA.


What does that mean?‑‑‑That means I represent the members' interests, part of the government body.


Thank you, I have got no further questions at this time.




MS DOUST:  Thank you.

CROSS-EXAMINATION BY MS DOUST                                          [3.58 PM]


MS DOUST:  Dr Tran, is it correct that your qualification equips you to work either as a dental hygienist, a dental therapist or an oral health therapist?‑‑‑So, an oral health therapist is both a dental therapist and a dental hygienist combined.


But on the strength of your qualification, you would be entitled to get registration in any of those professions, wouldn't you?‑‑‑Yes, that would be correct, if I choose to practise in one stream.


Do you hold one of those multi-registrations with the Dental Board or do you just have a singular registration as an oral health therapist?‑‑‑I have a singular registration as an oral health therapist.


You are currently employed across three practices, you say.  Can I ask you, are those three practices part of a single business or are they different businesses?‑‑‑Different businesses.


Thank you.  Are you the only oral health therapist in each of those practices?‑‑‑No.


There are other oral health therapists at each of those practices?‑‑‑Yes.


Are there any dental therapists in any of those practices?‑‑‑No.

***        CAROL TRAN                                                                                                                             XXN MS DOUST


Have you ever worked as a dental therapist?‑‑‑Yes.


When did you work as a dental therapist?‑‑‑I worked as a dental therapist in 2009 under Latrobe Community Health Services in Moe, country Victoria.


Do they have an enterprise agreement that covers them?  Are you familiar?‑‑‑I believe they did at that stage, yes.


Just in respect of your rates of pay, are you paid a flat rate of pay for all hours worked?‑‑‑Yes.


Do you get paid anything additional for weekends?‑‑‑No.


How long has your pay been at its current rate?‑‑‑Eighteen months.


Was 18 months ago when you had your most recent increase?‑‑‑No, my most recent increase would have been six weeks ago.


Congratulations?‑‑‑Thank you.


Can I ask you, have you suffered any pay decreases in the last couple of years?‑‑‑No.


Just in terms of your remuneration package, are you given paid sick leave?‑‑‑No.


Do you get paid annual holidays?‑‑‑No.


Do you get paid public holidays?‑‑‑No.


Are you engaged actually as an independent contractor?‑‑‑No.


Sorry, you say you are employed but you don't get annual holidays or public holidays or sick leave?‑‑‑Yes, that's correct, as a casual employee.


Are you a casual?  I see.  You are casual at all three practices, are you?‑‑‑Correct.

***        CAROL TRAN                                                                                                                             XXN MS DOUST


You have got a view that your ability to negotiate favourable wage rates and conditions would be compromised if you were covered by an award or by - I'm sorry, your view about that is any award, particularly the Health Professionals Award - is that right?‑‑‑Yes.


What provision of the Health Professionals Award do you say would compromise your ability to negotiate the current rates that you have?‑‑‑Well, as an oral health therapist in private practice, you are performing clinical services the majority of the time; it's very rarely you will have administrative responsibilities.  So, after reading the HPSS, if you look at what the lists of duties are, then we wouldn't be any longer than level 2; we wouldn't be able to move up to management roles is what the award does state.


You are aware, aren't you, that the award provides minimum rates?‑‑‑Yes.


Are you aware of the relevant rate under that award?‑‑‑No, not currently.


Are you aware of the minimum rate that is prescribed by law currently in respect of your employment?‑‑‑Yes.


What is that?‑‑‑That would be under the minimum wage award, I would believe.


What rate is that?‑‑‑I believe that would be $22 an hour.


As a casual?‑‑‑Yes.


That has increased from time to time in the last few years, hasn't it?‑‑‑I do not follow that coverage.


Have you noticed any pattern of your wages coming down when that federal minimum increases?‑‑‑No, I have not.


This is the case, isn't it:  your rates of pay aren't going to be adversely affected by an increase to the legal minimum rate of pay to which you are entitled; that's right, isn't it?‑‑‑So your question would be would my rates of pay be affected if the award was to come into place?

***        CAROL TRAN                                                                                                                             XXN MS DOUST


No, I am asking you this - I will put it another way.  It is illogical, isn't it, to say that your rates of pay would be driven downwards if the legal minimum was driven upwards?  Do you accept that proposition?‑‑‑Not necessarily because if this award was to come into place, then potentially, as an employer in private practice, they could possibly put that award, that "This is an oral therapist's award salary, so therefore this salary would be what you would be entitled to receive."


What I want to suggest - - -?‑‑‑So this potentially could drive down the rate.


What I want to suggest to you is that is entirely speculation on your part, isn't it?


MS MURPHY:  Sir, that's not an appropriate question.  I object.


MS DOUST:  I thought it was appropriate.


VICE PRESIDENT CATANZARITI:  Yes.  Do you press the question, Ms Doust?


MS DOUST:  I would, yes.


VICE PRESIDENT CATANZARITI:  Do you press the question?




VICE PRESIDENT CATANZARITI:  Yes, I will allow the question.


Do you want the question repeated, Ms Tran?‑‑‑Yes, please.


MS DOUST:  What I want to suggest to you, Dr Tran, is that it is entirely speculative on your part to suggest that your ability to negotiate your rates will go down by a legal increase to the minimum rates payable to you?‑‑‑That would be my personal view, yes.


Nothing further.


VICE PRESIDENT CATANZARITI:  Any re-examination, Ms Murphy?

***        CAROL TRAN                                                                                                                             XXN MS DOUST


MS MURPHY:  No, thank you, sir.


VICE PRESIDENT CATANZARITI:  Thank you, Ms Tran, you are excused.

<THE WITNESS WITHDREW                                                            [4.05 PM]


VICE PRESIDENT CATANZARITI:  The Commission is adjourned.

ADJOURNED UNTIL TUESDAY, 12 DECEMBER 2017               [4.05 PM]

***        CAROL TRAN                                                                                                                             XXN MS DOUST



EXHIBIT #APESMA1 CONFIDENTIAL STATEMENT.............................. PN728

EXHIBIT #APESMA2 CONFIDENTIAL STATEMENT.............................. PN728

EXHIBIT #APESMA3 CONFIDENTIAL STATEMENT.............................. PN728



EXHIBIT #HSU1 DRAFT DETERMINATION............................................. PN1158

ALEXANDER JOHN LESZCZYNSKI, AFFIRMED................................... PN1204

EXAMINATION-IN-CHIEF BY MS DOUST................................................. PN1204


CROSS-EXAMINATION BY MR BOYCE.................................................... PN1227

CROSS-EXAMINATION BY MS MURPHY................................................. PN1300

RE-EXAMINATION BY MS DOUST............................................................. PN1325

THE WITNESS WITHDREW.......................................................................... PN1337

MELANIE JANE HAYES, SWORN................................................................ PN1348

EXAMINATION-IN-CHIEF BY MS MURPHY............................................ PN1348

THE WITNESS WITHDREW.......................................................................... PN1377

MELANIE JANE HAYES, RECALLED........................................................ PN1448



CROSS-EXAMINATION BY MS DOUST...................................................... PN1478

RE-EXAMINATION BY MS MURPHY......................................................... PN1546

THE WITNESS WITHDREW.......................................................................... PN1563

CAROL TRAN, AFFIRMED............................................................................ PN1567

EXAMINATION-IN-CHIEF BY MS MURPHY............................................ PN1567

CROSS-EXAMINATION BY MS DOUST...................................................... PN1597

THE WITNESS WITHDREW.......................................................................... PN1646