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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1055691

 

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BOOTH
COMMISSIONER CAMBRIDGE

 

AM2014/286

 

s.156 - 4 yearly review of modern awards

 

Four yearly review of modern awards

(AM2014/286)

Supported Employment Services Award

 

Sydney

 

10.07 AM, WEDNESDAY, 14 FEBRUARY 2018

 

Continued from 13/02/2018

 


PN4281    

VICE PRESIDENT HATCHER:  All right, Mr Zevari.

PN4282    

MR ZEVARI:  Your Honour, there's just a couple of procedural matters to start with.  There are a number of witnesses from material filed by ABI, the Chamber and NDS who are not required for cross‑examination.  Are we - - -

PN4283    

VICE PRESIDENT HATCHER:  I was going to deal with all of the statements that - witnesses that weren't required for cross‑examination at the end of today so we'll - - -

PN4284    

MR ZEVARI:  Yes, we've got a schedule prepared for the purpose, your Honour.

PN4285    

VICE PRESIDENT HATCHER:  That's excellent.  All right, yes.

PN4286    

MR ZEVARI:  So we can deal with that later.  There is just one other document that we were looking to tender at this stage which there was some discussion about the DSS's wage supplementation funding model.

PN4287    

VICE PRESIDENT HATCHER:  Yes, hold on a sec, Mr Zevari.

PN4288    

MR ZEVARI:  I'm content to deal with this at the end as well.

PN4289    

VICE PRESIDENT HATCHER:  All right.  Is the first witness Kristian Dauncey, is it?

PN4290    

MR ZEVARI:  Yes.  Yes, your Honour.

PN4291    

VICE PRESIDENT HATCHER:  All right.

PN4292    

MR ZEVARI:  Yes.

PN4293    

VICE PRESIDENT HATCHER:  So are we calling him?

PN4294    

MR ZEVARI:  I believe so, yes.

PN4295    

VICE PRESIDENT HATCHER:  All right.

PN4296    

MR ZEVARI:  He's just outside, your Honour.

PN4297    

MR WARD:  I'll get him.  Sorry.

PN4298    

VICE PRESIDENT HATCHER:  Yes.

PN4299    

THE ASSOCIATE:  Would you please state your full name and address?

PN4300    

MR K DAUNCEY:  Kristian René Dauncey (address supplied).

<KRISTIAN REN DAUNCEY, SWORN                                          [10.10 AM]

EXAMINATION-IN-CHIEF BY MR ZEVARI                                [10.10 AM]

PN4301    

VICE PRESIDENT HATCHER:  Mr Zevari.

PN4302    

MR ZEVARI:  Thank you, your Honour.

PN4303    

Mr Dauncey, we haven't met.  My name is Sina Zevari.  I appear in these proceedings on behalf of Australian Business Industrial and the New South Wales Business Chamber.  Could you please just confirm that your name is Kristian Dauncey?‑‑‑Yes it is.

PN4304    

And your care of address is 977 Burwood Highway, Ferntree Gully, Victoria?‑‑‑That's correct.

PN4305    

Have you prepared a statement in these proceedings dated 25 October 2017?‑‑‑Yes I have.

PN4306    

And does that statement run to seven paragraphs?‑‑‑That's correct.

PN4307    

You've got a copy of that in front of you?‑‑‑I do.

PN4308    

Are there any corrections you wish to make to that statement?‑‑‑No.

PN4309    

I seek to tender that, your Honour.

***        KRISTIAN REN DAUNCEY                                                                                                           XN MR ZEVARI

PN4310    

VICE PRESIDENT HATCHER:  All right.  The statement of Kristian Dauncey dated 25 October 2017 will be marked exhibit 41.

EXHIBIT #42 WITNESS STATEMENT OF KRISTIAN DAUNCEY DATED 25/10/2017

PN4311    

MR ZEVARI:  Mr Dauncey, Mr Harding - - -

PN4312    

VICE PRESIDENT HATCHER:  I'm sorry, that's to be exhibit 42.

PN4313    

MR ZEVARI:  I beg your pardon.  Yes.

PN4314    

Mr Harding will now ask you some questions.

PN4315    

VICE PRESIDENT HATCHER:  Mr Harding.

CROSS-EXAMINATION BY MR HARDING                                 [10.11 AM]

PN4316    

MR HARDING:  Yes, thank you, your Honour.

PN4317    

Mr Dauncey, if you could have a look at your statement.  I see at paragraph 3 you say that in 2016 Knoxbrook adopted the supported wages system, yes?‑‑‑Yes, that's correct.

PN4318    

And it did so after you'd been utilising the BSWAT tool to conduct wage assessments?‑‑‑Yes, that's right.

PN4319    

And your evidence is that there was an increase in the wages bill for your employees at 359,668 per annum?‑‑‑Correct.

PN4320    

And if I could show you a document please - well, before I do, can I just ask you a question.  Do you say that the 359,000 represents the full effect of the wages bill increase compared with BSWAT?  Is that the evidence?‑‑‑It is a change from BSWAT to supported wage for our supported employees.

PN4321    

Yes?‑‑‑And it includes superannuation and on-costs a worker.

***        KRISTIAN REN DAUNCEY                                                                                                     XXN MR HARDING

PN4322    

VICE PRESIDENT HATCHER:  Mr Dauncey, can you convert that into a percentage increase in your wage bill for supported employees just roughly?‑‑‑Off the top of my head I'd say 30 to 40 per cent, closer to 40 per cent.

PN4323    

Thank you?‑‑‑Yes.

PN4324    

MR HARDING:  Okay, if I can hand you this document please?‑‑‑Thank you.

PN4325    

Now before you go through the pages just let me take you through it bit by bit, Mr Dauncey.  This is the annual report of Knoxbrook.  Do you recognise this document, at least the front page to begin with?‑‑‑I do, yes.

PN4326    

And it's the annual report for the last financial year, yes?‑‑‑Correct.

PN4327    

If you turn the page there's a report from a Paul DeStefanis, and he's your financial controller?‑‑‑That's correct.

PN4328    

And what he tells us is that - well, I'll go over the page and the last page that I've got on the document, page 17 of the annual report, is your income statement for the year ended 30 June 2017?‑‑‑Yes.

PN4329    

Okay, well if you turn back to Mr Stefanadis' report, DeStefanis, and he tells us that Knoxbrook Enterprises made a combined loss of 338,298 compared to a surplus in the previous year of 480,963.  Do you see that?‑‑‑I see it.

PN4330    

And that is a loss arising from all the operations that Knoxbrook operates, yes?‑‑‑Yes, that's right.  Consolidated, yes.

PN4331    

Okay, and he says that the surplus to deficit is attributed to a bequest from an estate of Joyce Emily Jackman which was taken up in the 2016 accounts.  So that's accurate?‑‑‑Yes.

PN4332    

He also tells us that you've had a bit of a bumpy year in terms of sales?‑‑‑It was, yes.

PN4333    

Yes.  You don't say that in your statement though, do you?‑‑‑No.

***        KRISTIAN REN DAUNCEY                                                                                                     XXN MR HARDING

PN4334    

No.  He also tells us in fact that the employee benefits expense was 756,000 higher than last year due to the move from BSWAT, which is higher than you have reported in your paragraph 4?‑‑‑I agree with you.

PN4335    

MR HARDING:  Which then - yes.

PN4336    

VICE PRESIDENT HATCHER:  So which is the correct figure?‑‑‑The latter of the two, yes.  I'll have to review the 756.  The 359,668 per annum is after the discussions with Paul DeStefanis in putting that together, so for this particular statement here.  So it may be a misstatement in our annual report, I'm not sure.

PN4337    

MR HARDING:  Well, he's the financial controller isn't he?‑‑‑He is.

PN4338    

If you turn the page the benefits expense, which is the fourth line down, you're reporting an increase in benefits expenses of 5,847,000 in 2016 to 6,604,000 in 2017.  Now I know you haven't got a calculator in front of you but can I tell you I've done the maths and that comes out to 756,974?‑‑‑I believe you're right, yes.

PN4339    

And can I also suggest to you that the percentage increase from 2016 to 2017 is in fact 11 and a half per cent?‑‑‑Okay, so looking at this, what we haven't separated out is our supported employees from all our other staff.  There's more than just what you see in front of you here.  At Knoxbrook we also have day services and individual life supports as well.  So with the 756,974 part of that would include our employees including new sales reps and that sort of thing that happened that year.  So there's a whole range of new positions that we created in that year and looking at it, 359,668 is the increase in wages due to the move from BSWAT to supported wage.  The difference between the two I put it to you is because of the increase in staff head count for the business itself to make sure that we could bounce back from Masters, yes.

PN4340    

Mr Dauncey, Mr DeStefanis has attributed the 756,974 in the annual report entirely due to the move from BSWAT?‑‑‑That's the way it reads and that's an error.

PN4341    

So the 40 per cent you have no evidence of that.  That's just a number that you've plucked out of the air in answer to his Honour's question?‑‑‑If you - if I was to provide you with more detailed financials where we record wages by division and by supported employees and all other staff you'd see the 359,668.  It's not reported in the annual report as a separate line because we see all people as being staff.

***        KRISTIAN REN DAUNCEY                                                                                                     XXN MR HARDING

PN4342    

So we're to treat the annual report as an error and we're just to focus on the 359,668 but you don't tell us any of the data that goes along with that, do you, in your statement?‑‑‑Happy to provide it.

PN4343    

Well, I'm just asking you what your statement says.  Now in paragraph 6 of your statement you have - - -

PN4344    

VICE PRESIDENT HATCHER:  Sorry, do you want to tender that, Mr Harding?

PN4345    

MR HARDING:  Yes I do, your Honour.  Sorry.

PN4346    

VICE PRESIDENT HATCHER:  So extract from the annual report 2016/2017 for Knoxbrook Incorporated will be marked exhibit 43.

EXHIBIT #43 EXTRACT FROM THE ANNUAL REPORT 2016/2017 FOR KNOXBROOK INCORPORATED

PN4347    

MR HARDING:  Thank you, your Honour.

PN4348    

At paragraph 6 of your statement, Mr Dauncey, you refer to a situation which was causing significant problems where you don't think you can apply the modified SWS to supported employees, new supported  employees?‑‑‑That's right.  I'm happy to be corrected on it but that's how I understand the - yes.

PN4349    

Okay, well the AED which I represent has proposed to the Commission that the award be modified to allow an employer to pay an employee the productivity that they demonstrate, whether that's up or down.  Would that satisfy your concern?‑‑‑That would be welcome news to us.

PN4350    

Would that satisfy your concern?‑‑‑I'll just re-read the statement if I can - the paragraph.  It would satisfy my concern with people who currently receive the $84 a week minimum who work generally speaking eight or - eight to 16 hours per week, yes.

PN4351    

Thank you.  No further questions.

PN4352    

VICE PRESIDENT HATCHER:  Any re‑examination?

PN4353    

MR ZEVARI:  No, your Honour.

***        KRISTIAN REN DAUNCEY                                                                                                     XXN MR HARDING

PN4354    

VICE PRESIDENT HATCHER:  All right, thank you for your evidence, Mr Dauncey.  You're excused and are free to go.

PN4355    

THE WITNESS:  Thank you.

<THE WITNESS WITHDREW                                                          [10.21 AM]

PN4356    

VICE PRESIDENT HATCHER:  So Ms Zadel, are you calling the next witness?

PN4357    

MS ZADEL:  Yes.

PN4358    

VICE PRESIDENT HATCHER:  All right, so that's Nicole Fitze?

PN4359    

MS ZADEL:  Nicole Fitze from Civic Disability Services.

PN4360    

VICE PRESIDENT HATCHER:  All right.  Thank you.

PN4361    

THE ASSOCIATE:  Would you please state your full name and address?

PN4362    

MS N FITZE:  Nicole Cherie Fitze (address supplied).

<NICOLE CHERIE FITZE, AFFIRMED                                         [10.22 AM]

EXAMINATION-IN-CHIEF BY MS ZADEL                                  [10.22 AM]

PN4363    

VICE PRESIDENT HATCHER:  Ms Zadel?

PN4364    

MS ZADEL:  Ms Fitze, could you please confirm your full name and address?‑‑‑Nicole Cherie Fitze (address supplied).

PN4365    

And what is your current position and place of work?‑‑‑I'm general manager of human resources at Civic Disability Services.

PN4366    

And have you made a statement in these proceedings?‑‑‑Yes.

PN4367    

And is that the statement dated 21 November 2017?‑‑‑Yes, correct.

***        NICOLE CHERIE FITZE                                                                                                                 XN MS ZADEL

PN4368    

And has that statement been signed by you?‑‑‑Yes, correct.

PN4369    

And that includes an annexure made of three different documents.  Is that correct?‑‑‑Yes.  Correct.

PN4370    

And have you got any changes that you would like to make to the statement?‑‑‑No, not at this time.

PN4371    

And is the statement true and correct to the best of your knowledge?‑‑‑Yes, correct.

PN4372    

Nothing further.  I tender that statement and Mr Harding will now have some questions for you.

PN4373    

VICE PRESIDENT HATCHER:  All right, the statement of Nicole Fitze dated 21 November 2017 will be marked exhibit 44.

EXHIBIT #44 WITNESS STATEMENT OF NICOLE FITZE DATED 21/11/2017

PN4374    

VICE PRESIDENT HATCHER:  Mr Harding?

CROSS-EXAMINATION BY MR HARDING                                 [10.23 AM]

PN4375    

MR HARDING:  Yes, thank you, your Honour.

PN4376    

Ms Fritze(sic), if I can take you to an exhibit which you've added to your statement which I think is the first annexure which is an extract from what's referred to as the Pearson report.  Are you familiar with that?‑‑‑Yes.

PN4377    

Have you got a copy of your statement?‑‑‑I haven't got a copy of that part of the statement but can you?

PN4378    

We'll just see if we can organise one for you?‑‑‑Thank you.

PN4379    

You've got it?‑‑‑I've got one.  Yes, that is in - - -

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4380    

Okay, well the second annexure is a copy of the Pearson report and I think there's page numbers for the annexures which appear on the top right‑hand corner.  Do you see that?‑‑‑Yes, correct.

PN4381    

And I assume by you putting this in your statement you're recognising this as an accurate description of the Civic Industries tool.  Is that right?‑‑‑Yes, correct.

PN4382    

And the first part of the statement on page 1, part of the report you've annexed on page 1 tells us about the history and the development of the tool, and then on page 2 of the document?‑‑‑Yes.

PN4383    

And paragraph 3.5 it tells us the content and the structure of the tool and then there's a sort of subparagraph 1 "Determine wage level"?‑‑‑Yes.

PN4384    

Do you see that?‑‑‑Correct.

PN4385    

And this says that there is a wage level allocated to each task.  Is that right?‑‑‑Yes - well, it's our matrix within that section, very similar to the Greenacres tool document.  So the first thing we do is, yes, grade the task.  Is it a level - grade 2 or a grade 3 task in the award and then it aligns into that matrix of skills into an A, B, C, D task of the tasks that's broken up into multiple facets.

PN4386    

So you've just mentioned grade 2 and 3 of the award and then you say you allocate the task to one of these wage levels?‑‑‑Yes, so one singular job could have a task in - from A to E because of the severity of the skill set required for each individual component of the task broken down.

PN4387    

And so you apply A to E for both grades 2 and 3 of the award?‑‑‑Yes.  Yes.

PN4388    

And so on that sense you will pay a pro rata amount of whatever the grade 2 or 3 rate is?‑‑‑Yes.

PN4389    

At the relevant wage level, right?‑‑‑Yes, correct.

PN4390    

But to the classification descriptions for A,B,C all the way up to E, do they remain constant no matter which grade of the award you apply?‑‑‑Yes, correct.  It's only if we introduce a new skill or a new task that isn't - wasn't in that original skill set that we reassess it to say "Okay, well which category would it align to?" and we insert it.  That's the modifications we've done since the original Pearson's report.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4391    

So there has been modifications since the Pearson report?‑‑‑Yes, only to add on to additional components.  Like I said, those additional skill sets which our tool allow for.

PN4392    

Now if you go to the next page which is page 3 using the numbering on the top right?‑‑‑Yes.

PN4393    

And point 6 right at the bottom of the page, output is part of the tool?‑‑‑Yes, correct.

PN4394    

And how do you measure output?‑‑‑Output's below average, average or above average.  That's deemed at the time of the costing of the job that it comes in with regards to the job being costed per second per product or per quantity, and then that goes into the wage assessment tool and is measured through observation through the employee with regards to where they sit within that measurable framework for that task.

PN4395    

So is that done in an abstract way?  So for instance if you've got the job you need to determine the output?‑‑‑Yes.

PN4396    

So you measure the employee's output against a checklist.  How do you determine their output when you've got the job that you've allocated?‑‑‑It's part of one of the observational documentation that it makes up the wage assessment tool.  So yes, it's done through observation by the supervisor to say "Okay, are they counting?"  So if the average is one box per hour then if they're doing more than one box per hour then they become above average.

PN4397    

Well, average is a comparative concept, you'd accept, wouldn't you?‑‑‑No, because it's measurable versus the quantity that you're calculating.

PN4398    

How do you determine the benchmark?‑‑‑The benchmark's based on the costing tool of how much it costs the average person.  So output measure, the average of measure point to do the job, is say if it was when we time to cost a job it's one box per hour, that's the average.

PN4399    

And how do you establish the initial timing for the job?‑‑‑We actually run through the job tasks to cost it and break down the tasks.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4400    

Yes, I understand that's the process that you utilise when you get a job how you determine what you're measuring against.  So do you use a non-disabled person to - - -?‑‑‑So the able - no.

PN4401    

No?‑‑‑No.

PN4402    

What do you use?‑‑‑We use the manager or the sales managers in the past, because the average person is based on a - any person.  It's not based on the capacity of the disability person.

PN4403    

Okay, so you get someone from your management team to do the job?‑‑‑Costing the job, yes.

PN4404    

So you use the phrase "costing the job".  Just so I'm clear, so this is at the time of you making a bid for a job?‑‑‑Yes.

PN4405    

You get one of your sales - one of your managers?‑‑‑Yes.

PN4406    

To do the tasks that you think will be necessary for the job, that goes into the costings that you propose to the person that you're seeking to have the work from.  Is that right?‑‑‑Under the labour component, yes, correct.

PN4407    

And on that basis you determine whether the employees ultimately who have to do the job are average, above average or below average?‑‑‑Correct.

PN4408    

Now then on pages 6 and 7 of the Pearson report, utilising the numbering that we've discussed, there is a scoring that identifies how you work out the wage rate?‑‑‑Yes, correct.

PN4409    

And that's an accurate assessment or an accurate description?‑‑‑Yes, that formula's still correct.  Yes.

PN4410    

The way I read this, so in relation to the performance of the work which  would be the task skills that the employee is demonstrating, the maximum that they could get in terms of you know, value under this scoring mechanism is 50.  Is that right?‑‑‑No.

PN4411    

At wage level E?‑‑‑No, that’s not correct.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4412    

No?‑‑‑There's people on E that are at full capacity rate, the 18.81.

PN4413    

Okay, so you say - but 50 is the number.  Because I'm looking at the formula at the bottom - at the top of page 7?‑‑‑Yes, correct.  So that - so from 1A to E is up to 50 and in 2 the task matrix is also scored another 50 per cent so it's the top two above plus 50 plus 50 is a hundred, and then the last two, training, behavioural and output are - well, training and behaviour are minus deductions or zero no loss of deduction, and output then balances that measure of the tool by other deduction or additional.

PN4414    

Let's just stick with the example that's on page 7.  So this is an assumed employee who's operating at wage level C and for that classification they get a number of 30 for - - -?‑‑‑Plus 20, yes.

PN4415    

Plus 20?‑‑‑So that 20 is in reflection to the point 2 of the employee tasks came from there and that's additional 50.

PN4416    

So you could in that circumstance have an employee getting a hundred per cent of the - - -?‑‑‑In both those - - -

PN4417    

- - - award wage because there's no deductions for training or behaviour management?‑‑‑Yes, correct, and we do.

PN4418    

Is that the way to look at it?‑‑‑Yes, correct, and we do.

PN4419    

VICE PRESIDENT HATCHER:  So what does WLC stand for?‑‑‑Workplace - WLC the workplace - - -

PN4420    

MR HARDING:  It's not there.

PN4421    

THE WITNESS:  I don't know, sorry.

PN4422    

VICE PRESIDENT HATCHER:  But that's representing number 2 on page 6 is it?‑‑‑Yes, correct.  The task skill set, sorry.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4423    

MR HARDING:  Okay, just so I can understand paragraph 1 and 2 of the scoring, so you determine their wage level so that's a fixed thing where you've decided the job that you have is to be inserted at wage level C, as in sticking with the example.  Is that right?‑‑‑Yes, correct.

PN4424    

And then you either add but you don't deduct for employee task skills?‑‑‑No, because that task skills framework is aligned like I said for the example with the soap box just the first step of the soap box, making the box, is a lower level scored task than actually being able to read and write the English variation of the box and do a four or five point step task versus a one step point task.  It carries more percentage weighting in skills.

PN4425    

And that skills assessment is done by you and based on your assessment of the job that you want rather than the individual.  Is that right?‑‑‑It's - yes, it's done on an individual job and we build - they're the same training guides, those task skill sets are the same training guides we then train to progress the staff up within sliding scales to score higher within a wage assessment tool.

PN4426    

All right, so you could have a situation in which despite the fact that you've classed the job at level C by virtue of your assessment of the task skills of that employee or that job, and I think it's that job, but correct me if I'm wrong?‑‑‑The job, yes.

PN4427    

It's that job?‑‑‑And then we compare that against the - - -

PN4428    

You would only pay them at A by virtue of - or they would only get an additional 10 for instance if you classed it at A?‑‑‑Yes, they would get additional 10.  Yes.  So for that example you're referencing it was a 30 so it was a C, so therefore the task skill set was an additional 20.  So it was - it would've been a two or three step task.

PN4429    

And you're applying this to people with intellectual disabilities?‑‑‑Yes, correct.

PN4430    

That's quite complex, isn't it?‑‑‑We have a speech - on staff who helps me write Easy Read training sessions and we use sign language where appropriate with our Auslan staff as well, and hold information sessions and we have tools such as "How do I Get a Pay Rise?" and that sort of thing.  So if you break it down into Easy Read an employee does understand that if I'm part of - got the task A which is folding a box, if I want a pay rise I know I've got to learn the task B, which is putting the soap in the box.

PN4431    

Then you've got the training and  behaviour management deductions?‑‑‑Correct.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4432    

And they're just numbers, minus 45 or minus - for high, and minus 25 for medium?‑‑‑Mm‑hm.

PN4433    

What's the magic about that number, those numbers?‑‑‑So the documentation behind those that we capture for instance sakes for the behaviour, a high support client that triggers large amounts of time off floor, for example may have a psychotic episode and take at least two hours of staff time to de-escalate, give a PRM and isolate them from the area is a higher behavioural task within - score within the wage assessment tool.

PN4434    

And another employee might have - - -?‑‑‑None.

PN4435    

Well, they might have none but they might - I mean high describes a range, doesn't it?‑‑‑Yes, so within our policy we describe what those definitions actually interpret.  That was one of the improvements I made in my employment time since this Pearson report.

PN4436    

But you haven't put that into evidence, those documents?‑‑‑Not our internal policy, no.

PN4437    

No?‑‑‑Because it's not part of the tool.  It's internal policy of that definition for that very reason.

PN4438    

Okay, and despite the variation you might experience with an employee in relation to their support, their training and support needs, you would apply a single score of minus 45 if you assess them in the high category?‑‑‑Yes, and the same thing, I introduced a definition for that too.

PN4439    

And in relation to behaviour management levels the same logic applies; if you're in category high you get a single score notwithstanding whatever the behavioural needs are or behavioural issues are of a particular employee.  Is that accurate?‑‑‑Sorry, can you repeat that?

PN4440    

Again behavioural management is ultimately a matter of the individual employee isn't it?‑‑‑Yes, correct.

PN4441    

And within the range of experiences that might fit into high on your definitions, there is a single score of minus 25?‑‑‑Yes, for that period.  Yes.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4442    

You're aware, aren't you, that the Commonwealth has a scheme for assisting ADEs in relation to behaviour management?‑‑‑Yes, correct.

PN4443    

And these are the - - -?‑‑‑We have clinical staff on staff too.

PN4444    

I'm sorry?‑‑‑We have clinical team on staff too that we can access.

PN4445    

Okay, and they're called the DMIs?‑‑‑Yes, correct.

PN4446    

And the DMIs range from level 1 which is for the least amount of support?‑‑‑Yes.

PN4447    

And DMI 4 which is the most?‑‑‑Yes, correct.

PN4448    

And the DMI levels require an ADE to assess the individual employee?‑‑‑Yes, correct.

PN4449    

According to a range of criteria pertaining to how they might behave at work?‑‑‑Yes, correct.

PN4450    

And on that basis the ADE, in your case Civic, receives funding to assist with respect to that individual?‑‑‑Yes, correct.

PN4451    

But notwithstanding, you make a further deduction from wage for the behaviour of the individual?‑‑‑Because it's loss of performance time.  So if that performance was in a normal job or in my job it wouldn't be tolerated and you wouldn't actually probably hold a job at all any more.

PN4452    

But the purpose of providing that assistance, isn't it, is to assist the employee to remain on task and manage their behaviour?  This is the assistance of the Commonwealth funds?‑‑‑The set amount, the DMI set amount.  Yes, it's to assist a lot of things.  Yes.

PN4453    

Yes, that's right, and so the purpose of that behaviour - of that funding is to assist the employee to remain productive.  Do you accept that?‑‑‑Yes, correct.  But when that outweighs the amount that they give you, where does that balance come?

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4454    

I don't know.  I'm just asking the questions.  But what you've done in relation to point 5 is to make a singular deduction of minus 25 for all employees who hit the high category.  Yes?‑‑‑Yes, sorry.

PN4455    

And there's no assessment, is there, of the individuals - the impact of the individual behaviour on production, is there?‑‑‑Yes, that's what I just explained.

PN4456    

Well, you might have a range of behaviours and there might be a range of impacts on production.  Do you accept that?‑‑‑Yes, I can.

PN4457    

And the DMI levels assist Civic to deal with the range of behaviours that an individual might experience?‑‑‑To a capacity, yes.

PN4458    

Yes, and for the purposes of the high category there is a singular deduction of minus 25 regardless of the individual's behaviour.  Do you accept that?‑‑‑No, it's not irregardless.  It is in regards to their behaviour.

PN4459    

Now can I take you - you've also annexed a certified agreement to your witness statement and this is an agreement made some time ago in 2004.  Do you see that?  It's on page 10 of your - using the numbering system that we've described.  Yes?‑‑‑(No audible reply)

PN4460    

And do you say this is still operating at Civic, this agreement?  You still utilise this agreement?‑‑‑No - in what sense?

PN4461    

Because it contains quite a detail about how the classifications that you utilise operate.  Is the intention, is the reason you've attached this agreement, to explain to the Commission the detail of those classifications, and I'm referring you to for instance page 80 of the statement, page 80 of the annexure?‑‑‑Yes, correct.

PN4462    

So these are the skills matrices that are utilised to determine whether someone fits into A, B, C, D and E?‑‑‑Yes, correct, and that were referenced in the Pearson report.

PN4463    

Yes, and you still utilise these?‑‑‑Yes, they're the components that I've said that we've expanded due to additional business models coming in.

PN4464    

There's reference to a category F in this agreement.  Is that still a category?‑‑‑In what page are you?

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4465    

Page 56?‑‑‑Yes, to my knowledge.  If it's under the - 56.  56 of the agreement?

PN4466    

Page 56 of the numbering that I have in the top right.  Have you got that?‑‑‑Yes.  Yes, correct.

PN4467    

And it's the first paragraph of page 56?‑‑‑Yes, correct.

PN4468    

And it just tells us that:

PN4469    

These employees are assessed in accordance with clause 4.2 as having a high level of performance -

PN4470    

You mean higher than level E -

PN4471    

- may be paid a wage in accordance with the range contained in level F.

PN4472    

Yes?‑‑‑Yes, correct, that's what it says.

PN4473    

And that's what it says but I'm just asking you whether this is actually how it applies in practice.  Is that how you apply it?‑‑‑Yes it is in regards to - yes.

PN4474    

Because the Pearson report doesn't mention a level F?‑‑‑Yes, correct.

PN4475    

But your agreement does?‑‑‑Yes, correct.

PN4476    

So as a matter of practice do you still apply level F?‑‑‑Yes, that would be - yes, our forklift drivers.

PN4477    

Okay, and it refers to clause 4.2 which starts on page 32 using the numbering system and, just for fairness, on the third paragraph under clause 4.2 there's reference to "level F contained in Schedule A" and it says:

PN4478    

It provides a mechanism for individual employees to achieve increases in remuneration based on the performance at a higher level of skill.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4479    

Yes?‑‑‑Yes, correct, that's what it says.

PN4480    

And then on the next page on page 33 there's a bunch of dot points and there's:

PN4481    

Following assessment, a wage rate will be determined by the organisation within the wage range contained in level F.

PN4482    

?‑‑‑Yes, correct.

PN4483    

And I'm sorry to skip through all the documents - the pages, rather, but if you now skip through to page 55?‑‑‑Yes, correct.

PN4484    

There's a table.  Do you see that table?‑‑‑Yes.

PN4485    

And then F appears at the bottom and that range is from 12 per cent of the award rate to a hundred per cent?‑‑‑I didn't write that original document so I can't comment on that but I can comment on the matter that as the current tool stands, the F category people are usually on or around from memory recall about anywhere between 80 to a hundred per cent.

PN4486    

Of the award rate?‑‑‑Yes.

PN4487    

VICE PRESIDENT HATCHER:  So Ms Fitze, these percentages in the table you've been taken to, are they the minimum rate you'll get at each wage level regardless of what your deductions might end up in your score?‑‑‑No, not - the formula's not as simple as that and it has evolved obviously since that time.  So our minimum rate now is about 13 per cent.

PN4488    

So you don't use these percentages any more?‑‑‑No.

PN4489    

Right?‑‑‑The percentage is rounded up to a more accurate percentage.  They're probably a little bit higher than those percentages now.

PN4490    

But you still do have minimum percentages?‑‑‑Yes, the 13 per cent.

PN4491    

And what about level E for example?‑‑‑I wouldn't know what that minimum percentage is off my - the top of my head, sorry.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4492    

But there is one?‑‑‑Yes.

PN4493    

So even if your deductions took you lower you'd get some minimum percentage?‑‑‑Yes.

PN4494    

Thank you.

PN4495    

MR HARDING:  So the formula operates on the basis you do the formula but if it turns out the formula is - just for argument's sake if we look at level E, if the formula came out at less than 35.6 per cent you'd get 35.6 per cent for level E?‑‑‑Yes, correct.

PN4496    

Now if I could just take you to the next page, schedule B, which starts on page 57 and as I understand this - and you might have to explain it a little bit further in relation to the description of how the formulas work, but we see on page 58 the first category is level E and under the formula that attracts a number of 50?  I'm looking at page 58?‑‑‑Yes, correct.

PN4497    

And so how do the KPIs then relate to - well, I withdraw that.  For a particular job that you consider to be at level E, you slot that job into the level and then the KPI is utilised to describe, to determine where the individual employee is assessed at.  Do they form the work skills component?‑‑‑Yes, correct.  Sometimes a job can be slotted into more than one section because we may have to break it down in order for the capacity for it to actually be operational.  So the - like I said with the box, the box part would be in a lower scale but the more complex part of the jobs with the multiple for four, five or six step task would be at the higher scale.

PN4498    

And what do you pay the worker in that situation?‑‑‑Whichever task they actually learn to progressively do.

PN4499    

So if you have a job that - using your example, putting the soap in the box is at a higher level.  Is the expectation in that situation that the worker will put the soap in the box?‑‑‑At the - yes, that's the minimum.  Yes.

PN4500    

And if they put the soap in the box after making it they get paid at the high rate.  Is that right?‑‑‑No, they get - that's the classification scale that the job's been measured at.  So their career progression would be then to learn the next step and progress up to the next stage.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4501    

And what rate of pay do you - how do you determine their rate of pay then?‑‑‑By the formula of the matrix.

PN4502    

Okay, so which classification?  When you say higher, you putting the soap in the box, is the soap in the box at a higher wage level on your scale?‑‑‑No, it's the lowest.  It's the lowest.

PN4503    

Okay, so they're just different tasks that fall within the same wage level?‑‑‑The complex would be running the machinery at the end of the chain.

PN4504    

Right?‑‑‑The F task would be moving the forklift or running the machine or operating the machinery.  So you can't have that as one hobby job task.  It has to be broken down because everyone is never going to be able to learn to do - how to - hold a forklift licence, and it's got to be reasonable and fair and actually achievable for our guys to progress.

PN4505    

So when you use the language of a job, you conceive of a job as in the case of using the example of the soap box, making the box, putting the soap in the box and running the machinery?‑‑‑No, it's - there's a multitude of full stages throughout the job.  That's just from one extreme to the other extreme.

PN4506    

Right?‑‑‑The job is delivering the actual customer's demand of the actual whole product from start to go.

PN4507    

Yes, well that job in an ordinary enterprise would have a number of cooks, wouldn't it?  I mean you'd have someone who's making part of the product, someone who's selling the product, someone who's marketing the product before it finally gets to the end user?‑‑‑Yes, which is why it's slided scaled into those sections accordingly.

PN4508    

But the job you're asking a worker to do depends - if for instance making the box is what you want the worker to do, they do that job.  That's the job you've asked them to do?‑‑‑Well, you're talking about productivity of the full plan, ideally we'd like them to be able to do all of it from end to go and then we wouldn't have to separate it.

PN4509    

Ideally, but in the end you've got the workforce that you have and you've got to work out how you allocate that workforce?‑‑‑Yes, the production team.

PN4510    

According to the skills and abilities that that workforce has?‑‑‑Yes, correct.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4511    

Right.

PN4512    

VICE PRESIDENT HATCHER:  So just staying with that example on the production component you've talked about, is that something that you can envisage that a single person non‑disabled could do from start to finish?‑‑‑Yes, correct.  We do actually have able bodied staff that are on the full rate that are casuals that come in season to run the overtime, out of hours or Saturday shift to get the production done if we do need it, and they run the whole progression, and I can physically run the whole progression by myself.

PN4513    

All right.  Thank you.

PN4514    

MR HARDING:  So with this series of classifications in schedule B you've got them divided up into packing and assembly and mowing crew.  These represent the major functions that your organisation performs?‑‑‑The main business operations.

PN4515    

Yes, the main business operations, and let's just take the example of the packing and assembly.  You've talked about how you could break down that function into a range of tasks in your evidence.  Yes?‑‑‑Yes, correct.

PN4516    

Would you accept that a task in that production, in the packing and assembly function, if I can use that language, one task would be labelling?‑‑‑Yes, correct.

PN4517    

Another task could be folding?‑‑‑Yes, correct.

PN4518    

Another might be stacking?‑‑‑Yes, correct.

PN4519    

They're each individual tasks?‑‑‑Yes, correct.

PN4520    

And in relation to for instance gardening, one of them might be using a mower?‑‑‑Yes, correct.

PN4521    

Is that an individual task?‑‑‑Yes, correct.  Versus a ride‑on mower would be a different task.

PN4522    

Yes, a ride-on mower would be a different task because it has more parts to it perhaps.  Is that right?‑‑‑Or skill level.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4523    

Yes?‑‑‑Yes.

PN4524    

Basic labouring, would that be part of what you might have in gardening?‑‑‑Yes.

PN4525    

Yes, that's a task?‑‑‑Yes, correct.

PN4526    

Re‑potting, that's something that you would do?‑‑‑Not so much, no.

PN4527    

Okay sticking with the documents, your certified agreement, on page 59 there is the level D KPIs?‑‑‑Yes, correct.

PN4528    

And also the competencies, and let's just look at the fourth column under packing and assembly which is headed "KPI"?‑‑‑Mm‑hm.

PN4529    

The first dot point - second dot point is that the individual can work out what action needs to be taken to keep machines functioning, which may include fixing it or calling a technician?‑‑‑Yes, correct.

PN4530    

Is that accurate?‑‑‑Yes, correct.

PN4531    

That implies that the worker would have reasonably independent work practices?‑‑‑Yes, correct.

PN4532    

Yes, with very little need for supervision?‑‑‑For that component of the job, yes.

PN4533    

Yes, and at about the fifth point down:

PN4534    

Is able to set up a work station for themselves and others.

PN4535    

?‑‑‑Yes, correct.

PN4536    

And then if you skip down to page 60 which is the next page on mine which we're talking a level C now and that gives us 30 points?‑‑‑Yes.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4537    

A KPI for level C for packing and assembly, the eighth point down, "They work consistently without supervision".  Yes?‑‑‑Yes, correct.

PN4538    

And all these are built into your assessment of the task skills for the work that's done?‑‑‑Correct.

PN4539    

Yes, so you've got the level of supervision built into the task skills and therefore that's reflected in the number that's assigned, be it 40 or 30.  Yes?‑‑‑Yes, correct.

PN4540    

And then you've got another component in your formula that assesses behaviour.  Aren't you doubling up?‑‑‑No, because the secondary parts of the behaviour is as per explained.  It's with regards to downtime of the overall performance.  Agreed supervision being able - being component to - this is based on competencies so the KPI competency being able and capable of doing it is difference to a performance measure where they're having a psychotic episode and they're totally broken down with the performance measure, or they're showing - exerting extraordinary behaviours within the workplace which is becoming totally disruptive.  That doesn't take away from competency level of that being able to do the task.

PN4541    

The point that I've taken you to at level C says:

PN4542    

Works consistently without supervision.

PN4543    

?‑‑‑Supervision and behaviour management are two different things.

PN4544    

Well in the end you're only interested in the production.  If you get the same production from a worker working without supervision, what does it matter?‑‑‑But I just explained to you on the occurrences where it doesn't, so you're not.

PN4545    

VICE PRESIDENT HATCHER:  So to make level C when you're working you can perform the task without direct supervision, that is someone telling you how to do it?‑‑‑Yes, correct.

PN4546    

But if you have behavioural which requires downtime and behavioural support, that will then deduct from the score you get?‑‑‑Being competent.  Correct, your Honour.

PN4547    

Yes.  Thank you.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4548    

MR HARDING:  And just in terms of the assessment of down time, when is that assessed?  I mean because you've ultimately got a formula that you apply to determine a rate of pay and I think you review wages annually. Is that right?‑‑‑Or as a new job.  If someone progresses into a new job, yes.

PN4549    

So at each annual review you make an assessment, do you, for the whole year?‑‑‑Based on the documentation that has been collected for the whole year, correct.  So for down time it would be possibly suspensions, it would possibly be file notes because that's all file noted in accordance with our requirement to file note the client behaviour.  It could be medication records for how many PRMs we have administered, which reflects a down time.  So if someone's administered a PRM for, say, Valium it's going to take them a good 20 to two hours to get back into the workforce.

PN4550    

What's a PRM?‑‑‑It's a prescribed required medication.  It's usually SA drugs.

PN4551    

So your assessment process involves using documents that collect things like PRMs and then making, drawing an inference about how much production time you might have lost through the - is that right?‑‑‑Their performance, yes.

PN4552    

Yes?‑‑‑From their performance which also can escalate to wanting to go home or needing to go home for medical treatment.

PN4553    

It might or might not, but you just derive an inference, do you, based on the fact that there has been medication administered?‑‑‑The number of times which will derive the number of down times which is - goes into the formula of the file notes, how many disruptions, how many medication incidents has there been.  Because that links with an incident report and derives the - leads into well, therefore it's not consistent any more, that framework of whether it's high, medium or low.

PN4554    

Again based on the documents that you have about how an individual - about that individual throughout the year.  You don’t measure the actual production loss arising from the individual's behaviour, no?‑‑‑When you say that, what do you mean by that?

PN4555    

Well, the basis as I understand it for how you - for including behaviour management in your formula is because you infer that there is an effect on production arising from that behaviour?‑‑‑Yes, correct.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4556    

But you don't collect documents or data about the actual production loss from the individual.  You collect documents about whether they've been suspended or whether they've been administered medication of a particular kind?‑‑‑And the file note of the - file notes is a document itself as well which prescribes the time the manager interacted with the client when the occurrence occurred, if it wasn't a medication incident or it wasn't something else.

PN4557    

Yes.  Yes?‑‑‑So if they wandered off for say 20 to 30 minutes and came back, that would be a down time and file noted.

PN4558    

I'm going to dispose of - I don't need those attachments any longer but if I can take you back to your statement.  You express some concerns about the SWS in your statement from page 7.  Yes?‑‑‑Yes, correct.

PN4559    

But because you use the Civic Industries tool it's correct to say that you have little experience in your organisation of the SWS.  Is that correct?‑‑‑Yes, that's correct.  That SWS example was in our open employment services in mainstream employment outside of the Civic Industries branch.

PN4560    

Yes, and your concern as expressed in 75 is that the comparator or the benchmark used was flawed?‑‑‑Yes, to an extent.

PN4561    

Because they used someone who I think you say at paragraph 80:

PN4562    

Full duties of a receptionist are greater than what would be the case for the individual who is assessed.

PN4563    

?‑‑‑Yes, they deemed that the receptionist answering the phones wasn't a task to be measured.

PN4564    

Yes well - - -?‑‑‑Which is the primary task.

PN4565    

Okay, well there's evidence in this case that the proper way in which the SWS is administered is to compare the actual duties performed by the worker with those actual duties performed by a benchmark person without that disability.  Yes?‑‑‑That's correct and that's what he did, however the tasks in which he chose were not the primary tasks of the person.

PN4566    

In which case that would be an error in the administration of the SWS?‑‑‑I'm just explaining my experience.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4567    

Yes, and in paragraph 82 you say:

PN4568    

Another example of behaviour that is not accounted for in the SWS

PN4569    

So the evidence that you're giving about this is that you say this behaviour, that is walking away from a task, it doesn’t form part of the SWS assessment?‑‑‑To my knowledge, no.  Does it include down time?

PN4570    

The evidence is that it does.  If you walk away from a task, the clock keeps going and that forms part of - - -?‑‑‑But only in the assessment not in a live environment.

PN4571    

What does that mean?‑‑‑So when the assessment's actually carried out it's for when an assessor comes in, not for the 12 month period of when they have walked away from the task.  So at the time of assessment they know - they can sit down and they'll be tuned in and doing an assessment and won't walk away.  But in average we have employees that will walk away two to three times a day which isn't taken into measure into the SWS tool.

PN4572    

The evidence is that there has been modifications adopted to the SWS including the ability of an employer to collect historical data about productivity that would capture that information.  Would that satisfy your concern?‑‑‑I would still have to see it in practice for that component, how does that formula then calculate.  How does it impact the formula?  You can collect evidence but how does it impact the formula?

PN4573    

It would represent 50 per cent of the assessment.  So in other words there would be a point in time assessment assessing productivity on a date and that would be 50 per cent of the assessment, and the other 50 per cent would be the historical data collected by the employer?‑‑‑So it's the same as our way of assessment, assessing the person's behavioural performances within the workplace.

PN4574    

They're both assessments of productivity, Ms Fitze, but - - -?‑‑‑But you just said it encapsulates the data.

PN4575    

Well, maybe if I can just explain it more correctly?‑‑‑From the down time.

PN4576    

Both the historical data and the SWS point in time are still assessments using the SWS methodology and the evidence is that the SWS methodology would capture a person who wanders off?‑‑‑It may capture it but how does it impact the scoring?

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4577    

The historical data forms 50 per cent of the wage assessment and the point in time forms the other 50 per cent?‑‑‑So that's higher than our wage assessment tool?

PN4578    

VICE PRESIDENT HATCHER:  I think we've reversed the process?‑‑‑I'm trying to understand is - you're saying that's - in the SWS it's valued at 50 per cent and in ours we're valuing it at - what did we say?  It was minus - - -

PN4579    

MR HARDING:  No, no.

PN4580    

DEPUTY PRESIDENT BOOTH:  And Mr Harding, you'd have to introduce the 20 per cent factor as well if you were to give the complete picture, wouldn't you?

PN4581    

MR HARDING:  The 20 per cent?

PN4582    

DEPUTY PRESIDENT BOOTH:  Yes.

PN4583    

THE WITNESS:  Yes.

PN4584    

DEPUTY PRESIDENT BOOTH:  And if the disparity is greater than 20 per cent the historical data is not taken into account.  You'd have to tell the witness that.

PN4585    

MR HARDING:  All right, well I'll tell you that.

PN4586    

VICE PRESIDENT HATCHER:  Might it be easier to show the witness the variation to the award?

PN4587    

MR HARDING:  Yes, that might be helpful.  I'm not sure I've got one with me.  I'm not sure I've got a copy to hand up to the witness, your Honour.

PN4588    

VICE PRESIDENT HATCHER:  No, sorry - - -

PN4589    

MR HARDING:  I'm not sure - I haven't got a copy for myself either.

PN4590    

COMMISSIONER CAMBRIDGE:  I've got it.  You can borrow mine if you want.  You can borrow this one.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4591    

VICE PRESIDENT HATCHER:  Just hand that to Mr Harding.

PN4592    

I just have another witness you can give the witness too.

PN4593    

MR HARDING:  Thank you.

PN4594    

Just for clarity I'm not comparing the SWS to your tool, okay?  We're just focussing on some modifications to the SWS that will form part of the award, them having been approved by this Commission.  If I could draw your attention to D.5 which is on page 5 of the document I think you should have?‑‑‑Page 3, the assessment of capacity?

PN4595    

Yes, D.5?‑‑‑It's page 3.

PN4596    

Okay?‑‑‑Yes.

PN4597    

We've got different page numbering, and this tells us how:

PN4598    

Productive capacity.  The employee will be assessed in accordance with the SWS.

PN4599    

And first it tell us that it will be done by an approved assessor, having consulted the employer and employee.  Yes?‑‑‑(No audible reply)

PN4600    

And then D.5.3 tells us how the productive - - -?‑‑‑I don't have a 5.3.

PN4601    

D.5.3?‑‑‑I don't have that.

PN4602    

VICE PRESIDENT HATCHER:  I think we might have given somebody the wrong document.  Just hold on.

DISCUSSION RE DOCUMENT                                                        [11.16 AM]

PN4603    

THE WITNESS:  Yes?

PN4604    

MR HARDING:  Hopefully we're all on the same page?‑‑‑Sorry, yes.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4605    

So D.5, have you got that?‑‑‑Yes, correct.

PN4606    

And D.5.3, if you could just read through that for a moment?‑‑‑"The approved assessor will"?

PN4607    

Yes, so what it tells us is:

PN4608    

The approved assessor will assess the productive capacity of the employee having regard to -

PN4609    

And then (a) tells us the elements and:

PN4610    

Workplace starter represents 50 per cent -

PN4611    

and the other 50 per cent is represented by:

PN4612    

data collected by the approved assessor in accordance with the Supported Wage System.

PN4613    

That's the point of time assessment?‑‑‑Okay, that's what it says, yes.

PN4614    

Yes and her Honour the Deputy President has pointed out that in D.5.4 that if there's a 20 per cent disparity between the productivity assessed, combining workplace data and the point in time data, the point in time data is to be preferred?‑‑‑Yes, that's a summary of what that says.  Yes.

PN4615    

Okay, so the purpose of the modifications is to enable an employer to collect workplace data pertaining to - of the productivity of an individual worker over a period of time and bring into the calculation of wages there the individual's productivity over a period rather than just focussing on a single point in time?‑‑‑Correct, according to that.

PN4616    

Well, this will be the system applying to ADEs?‑‑‑Well, not what I saw in practice back when I saw it assessed.

PN4617    

No, I'm not asking you about what you saw?‑‑‑Yes.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4618    

I'm just asking you about a concern you've expressed in your evidence about the way the SWS operates, okay, as you understood it to be.  There's some - - -?‑‑‑As I observed it to be at that point in time.

PN4619    

As you observed it to be, and there's some changes that have been made for ADEs.  My point - the question I wanted to ask you is with the insertion of historical data that enables the individual's productivity to be captured over time, does that satisfy your concern about distortions arising from a point in time assessment?‑‑‑Yes, correct.

PN4620    

Thank you.  No further questions.

PN4621    

COMMISSIONER CAMBRIDGE:  Could I just ask this; it strikes me that the way you use the formula endeavours to address an issue where if you had two employees and over whatever period of time they produced exactly the same output but one of the employees had an ongoing requirement for these PRMs to be administered and all sorts of other things, that even though at the end of the day or the year or the month they produce the same number of boxes of soap the costs of dealing with the employee that you had to administer the PRMs to is significantly greater than the one you didn't have to administer them to?‑‑‑Yes, that could be a summary.  Yes.

PN4622    

So the formula tries to adjust the wage rate for the person reflective of the costs associated with having to deal with their particular difficulties.  Is that right?‑‑‑That's the - I don't believe that was the intention of it.  it's with regards to both people can be competent at the same task at the higher - at the beginning of the assessment tool but he loss of production of the person - they wouldn't - there's no way - - -

PN4623    

Well, it's not really a loss of production is it?  Because in the example I'm trying to give, the measurement of the output over whether it's a day or a week or a month or a year, the same number of boxes of soap are packed?‑‑‑They can't - that can't be possible if they're not there to pack them.

PN4624    

No, but if the person that goes off with the PRMs is actually physically faster at doing it when they're on it you could get the same actual output figures for the two people but the costs for the employer to actually deal with the PRMs and all the associated issues is going to be far greater I would have thought?‑‑‑Yes I can see your perception on that.  Yes.

***        NICOLE CHERIE FITZE                                                                                                         XXN MR HARDING

PN4625    

VICE PRESIDENT HATCHER:  So in that - - -?‑‑‑I don't - reality of factuals, I can't prove or say yes or no to that but - - -

PN4626    

COMMISSIONER CAMBRIDGE:  It's an application of - it's a sort of a practical theoretical - - -?‑‑‑The - they're supposed to add up.  Yes, I can see your theory of the practice of the tool.  Yes.

PN4627    

VICE PRESIDENT HATCHER:  So in that scenario would the tool produce different or the same wage rates for those people?‑‑‑I would hope that - - -

PN4628    

That is, would they have the same deductions or they'd have different deductions?‑‑‑They would have different deductions but the person would have additional weighting, higher weighting at the front end because they're above or at that bottom end.

PN4629    

Yes?‑‑‑Their output level is about average so the score should theoretically come out the same for them but in just different areas of the tool.

PN4630    

COMMISSIONER CAMBRIDGE:  Well, you can only get a maximum of 10 per cent, 10 points extra for your - - -?‑‑‑Output.

PN4631    

- - - your productivity, for your output.  This has got output because productivity is another measurement.  But you can get minus 25, can't you, for your behaviour?‑‑‑Correct.

PN4632    

It's a net loss if you're a bad behaviour, even if you can put out as much as the other person?‑‑‑Correct, if that's the way you would(sic).

PN4633    

VICE PRESIDENT HATCHER:  Any re‑examination, Ms Zadel?

RE-EXAMINATION BY MS ZADEL                                               [11.17 AM]

PN4634    

MS ZADEL:  Just a couple of short questions on re‑examination just on a point of clarification.

PN4635    

What's your understanding of the DMI funding; what is it intended to cover?‑‑‑The DMI funding, it's intended to cover training, the behaviour management and the funding of the employment assistance for that person for a - in essence to extend as part of the wages.

***        NICOLE CHERIE FITZE                                                                                                              RXN MS ZADEL

PN4636    

Thank you, and can I also take you to the annexure to your witness statement and to page 72?‑‑‑Of the?  Sorry, what am I on?

PN4637    

This is the annexure to your witness statement, the list of documents that are numbered - - -?‑‑‑Yes, 72.  72, yes, the procedure.

PN4638    

Can you please explain what that document is?‑‑‑That's the current practice of the tool, our internal procedure of the current practice of the tool.

PN4639    

Your internal procedure, and can I take you to page 86?‑‑‑Yes, correct.

PN4640    

And can you please explain what's set out on that page?‑‑‑The - 86 is the training and support, the definitions that were referenced before with regards to the scoring and the behaviour management component of the scoring card and the definitions and the scoring.

PN4641    

Thank you, Ms Fitze, and there's no further questions.

PN4642    

VICE PRESIDENT HATCHER:  Yes, all right.  Thank you for your evidence, Ms Fitze, you're excused and you're free to go?‑‑‑Thank you, your Honour.

PN4643    

COMMISSIONER CAMBRIDGE:  Can I have that draft determination back?

PN4644    

THE WITNESS:  Do you want that back, yes?

PN4645    

MR HARDING:  Was that yours, Commissioner?

PN4646    

VICE PRESIDENT HATCHER:  That's mine, that one.

PN4647    

THE WITNESS:  Whose property was that?

PN4648    

COMMISSIONER CAMBRIDGE:  That's mine.  I think you've got it, Mr Harding.

PN4649    

MR HARDING:  I do.  Well, I'll give it back to you.

***        NICOLE CHERIE FITZE                                                                                                              RXN MS ZADEL

PN4650    

VICE PRESIDENT HATCHER:  Don't get the wrong one.

<THE WITNESS WITHDREW                                                          [11.19 AM]

PN4651    

VICE PRESIDENT HATCHER:  So the next witness is Mr Brantingham.  Who's actually calling him?

PN4652    

MR WARD:  Your Honour, this is the unusual witness in that he actually filed a statement - sorry, I withdraw that, he filed a submission which had some assertions in it.  I think you granted leave to cross‑examine.  I'm going to assist the Commission in doing that, if I may.

PN4653    

VICE PRESIDENT HATCHER:  All right.  Thank you for that.  All right, what we'll do is we'll adjourn for a short period and we'll arrange to get him on the telephone.

PN4654    

MS ZADEL:  Your Honours, apologies, just on a point of procedure.  HWL Ebsworth would like to be excused for the remainder of the afternoon.

PN4655    

VICE PRESIDENT HATCHER:  Yes, you're excused.

PN4656    

MS ZADEL:  Thank you.

PN4657    

VICE PRESIDENT HATCHER:  We'll now adjourn.

SHORT ADJOURNMENT                                                                  [11.20 AM]

RESUMED                                                                                             [11.30 AM]

PN4658    

VICE PRESIDENT HATCHER:  Right, Mr Ward?

PN4659    

MR WARD:  Thank you, your Honour.  I call Mr Brantingham.

PN4660    

VICE PRESIDENT HATCHER:  Sorry, we'll commence the oath first.  Sorry, I was a step ahead.

PN4661    

So Mr Brantingham, are you there?

***        NICOLE CHERIE FITZE                                                                                                              RXN MS ZADEL

PN4662    

MR M BRANTINGHAM:  Yes I am.

PN4663    

VICE PRESIDENT HATCHER:  All right, well the court officer is just going to administer the affirmation to you and then Mr Ward is going to introduce your statement into evidence.

PN4664    

MR BRANTINGHAM:  Okay.

PN4665    

THE ASSOCIATE:  Could you please state your full name and address?

PN4666    

MR BRANTINGHAM:  Mark Brantingham.  My business address is 6 - 8 Shelley Road, Moruya, New South Wales 2537, Australia.

<MARK BRANTINGHAM, AFFIRMED                                         [11.30 AM]

EXAMINATION-IN-CHIEF BY MR WARD                                   [11.31 AM]

PN4667    

MR WARD:  Mr Brantingham, can you hear me?‑‑‑Yes I can.  Yes, it's not loud but I can hear you.  Yes.

PN4668    

My name is Nigel Ward.  I'm just going to ask you some very basic questions, if you could just listen?‑‑‑Go for it.

PN4669    

Your name is Mark Brantingham?‑‑‑Correct, yes.

PN4670    

And you live at 68 Shelley Road, Moruya in New South Wales?‑‑‑It's 6 - 8 Shelley Road.

PN4671    

Six to eight?‑‑‑And no, that's my business address.  Yes.

PN4672    

Right, that's your business address.  Thank you?‑‑‑Yes.

PN4673    

And you're the CEO of Yamaru?‑‑‑Yomaro, yes, correct.

PN4674    

Right, we're doing very well so far, sir.  Doing very well.  And on 20 November 2017 you filed a signed letter of some nine paragraphs to the Fair Work Commission in this matter?‑‑‑That's correct.

***        MARK BRANTINGHAM                                                                                                                  XN MR WARD

PN4675    

Do you have a copy of it with you?‑‑‑Yes I do.

PN4676    

To the best of your knowledge and belief is it true and correct?‑‑‑Yes.

PN4677    

Your Honour, I'd seek to have that marked.

PN4678    

VICE PRESIDENT HATCHER:  All right, I'll call it a letter to the Commission signed by Mark Brantingham dated 20 November 2017, will be marked exhibit 45.

EXHIBIT #45 LETTER TO THE COMMISSION SIGNED BY MARK BRANTINGHAM DATED 20/11/2017

PN4679    

MR WARD:  Mr Brantingham, a gentleman by the name of Mr Harding who appears for AED Legal is now going to ask you some questions, sir?‑‑‑Sure.

CROSS-EXAMINATION BY MR HARDING                                 [11.32 AM]

PN4680    

MR HARDING:  Mr Brantingham, can you hear me?‑‑‑Yes, I can hear you.

PN4681    

Thank you.  My name is Malcolm Harding as it's just been said, and I have a number of questions arising from your statement but I also want to speak to you a bit about some documents that I have available but you may not at your end, and therefore we'll go through them and see how we go in terms of identifying them.  Can I perhaps start though with your letter which in paragraph 6 - well, before I go there, I withdraw that.  Firstly, can I just clarify that you utilise the Yemaro tool as the basis for wage assessment in your organisation?‑‑‑Yes, the Yomaro tool.  That's correct, yes.

PN4682    

And in paragraph 6 of your statement you're saying that you're not concerned that the SWS or modified SWS would put your wages up overall because the Yomaro tool pays above award anyway.  Is that right?‑‑‑Yes.  Yes, basically.

PN4683    

But then you say in the last sentence that you're concerned that if you're forced to use the SWS it would unfairly distort wages and make some of your best employment ventures unsustainable.  Do you see that?‑‑‑Correct.

PN4684    

But you don't utilise the SWS now?‑‑‑No.

***        MARK BRANTINGHAM                                                                                                          XXN MR HARDING

PN4685    

Because you've got it embedded in an enterprise agreement?‑‑‑We have our tool in an enterprise agreement, that's correct, yes.

PN4686    

And it's correct to say, isn't it, that on your evidence you anticipate that even if you had to apply the SWS you'd be still paying higher rates of pay by reason of your enterprise agreement?‑‑‑I don't know exactly but from anecdotal evidence I would - I have compared ours to some organisations that did go to the SWS and the indication was that our average wage is about the same as theirs.

PN4687    

Have you got a copy of your enterprise agreement?‑‑‑Yes I do.

PN4688    

Perhaps if I could distribute copies for the benefit of the Bench and the parties.

PN4689    

And this is an enterprise agreement made in 2016?‑‑‑Correct.

PN4690    

In fact came into operation in 2017 I think?‑‑‑No, 2016.  August 2016.

PN4691    

Well, okay.  This is a copy of the agreement we have as a section that has an undertaking under section 190.  Do you see that?  Is that part of your document?‑‑‑Sorry, I'll just - are you on the first page, or?

PN4692    

The first page of the document that I have which may not be the same as yours.  But if you can't see it we'll skip it and we'll move on?‑‑‑Yes.  No, I can't see that.  Sorry.

PN4693    

Okay, so the next page of the document I have is entitled "Yemaro Incorporated Enterprise Agreement 2016" and then there's an arrangement and then there's a number of clauses that go from one to 19.  Do you have that as the index of your - - -?‑‑‑Yes I do.  Yes, got that.

PN4694    

All right, and then if you could flick through to page 11 of the document that you have.  My document has a clause 12.  Does yours?‑‑‑It does, yes.

PN4695    

And it has got "Supported employees' rates of pay"?‑‑‑Yes, correct.

PN4696    

And clause 12.2 states that the rates of pay are based on a percentage of grades 3, 4 and 5 of clause 14.2 of the award?‑‑‑That's correct, yes.

***        MARK BRANTINGHAM                                                                                                          XXN MR HARDING

PN4697    

And the award is defined in the agreement as the Supported Employment Services Award, isn't it?‑‑‑Yes.

PN4698    

So you'd accept, would you not, that the rates of pay that you pay under your enterprise agreement are based on grades 3, 4 and 5 rather than grade 2?‑‑‑According to what's written here, yes.

PN4699    

Yes?‑‑‑Yes.

PN4700    

And as I understand it according to clause 12.2 levels 1 to 5 of those contained in clause 11 of your agreement, which set out some classifications, correspond with - I withdraw that.  You say in the last sentence:

PN4701    

There are a growing range of duties being performed at Yemaro that can be termed complex and these duties would normally attract a classification of either grades 3 or 4 under schedule B of the award.

PN4702    

Is that intended just to declare that the duties that you might have that you describe as complex would ordinarily be paid under grades 3 or 4 of the award, but you're paying higher rates by virtue of your enterprise agreement is how we read that?‑‑‑Well, I don't know, to be honest.  I probably don't fully understand what you're asking me.

PN4703    

Right, well 12.3 tells us:

PN4704    

The rates of pay for levels 1 to 5 are based on a percentage of the award rate paid at award grade 3.

PN4705    

Do you see that?‑‑‑Yes.  Yes, I can see that.  Yes.

PN4706    

So that's pretty clear, isn't it, that at a minimum you're paying under this agreement at grade 3 of the SESA award?‑‑‑Yes, a percentage of that grade 3.  That's correct, yes.

PN4707    

And then - we'll go to the percentages in a minute - and the last sentence tells us that at levels 6 and 7 you're paying 40 per cent of the rates of pay applicable to grades 4 and 5?‑‑‑Yes.

***        MARK BRANTINGHAM                                                                                                          XXN MR HARDING

PN4708    

And the 40 per cent number is pretty significant in the Yomaro tool, isn't it?‑‑‑I don't know what you mean by that question, sorry.

PN4709    

Okay, we'll just put that agreement aside for the moment.  Can I tender that, your Honour?

PN4710    

VICE PRESIDENT HATCHER:  Yes, so the Yomaro Incorporated Enterprise Agreement 2016 will be marked exhibit 46.

EXHIBIT #46 YOMARO INCORPORATED ENTERPRISE AGREEMENT 2016

PN4711    

MR HARDING:  Now I'm going to take you to a document which you probably don't have in front of you but it has been given in evidence in this Commission and is referred to commonly as the Jenny Pearson report.  Are you familiar with that document?‑‑‑No, I'm not.

PN4712    

Let me just put to you some of the things that she has said in describing the Yomaro tool and see whether you agree with them.  Okay?  We'll see how far we get, and I'm referring to page 78 of the Pearson report which is annexed to Ms Wilson's statement at tab 1 I think.  Ms Pearson says - and this document I might add was written in 2006 - that a key feature of the Yomaro tool is it is tied into a section of the Clothing Trades Award, the section for slow and disabled workers, therefore a special award did not have to be written.  Now that's no longer the case, is it?‑‑‑It was - actually I have documentation here from 2001 from the Textiles Clothing and Footwear Union who created our tool and the enterprise agreement that talks about the reason why they actually did create our tool, which was that they felt it was a better way of doing things than assessing a percentage of the Clothing and Footwear Award.

PN4713    

Okay, so that confirms that back in the day, 2001, that there was a linkage made between your tool and the Clothing Trades Award?‑‑‑That is correct, yes.

PN4714    

But that linkage, the linkage is now with the SESA award?‑‑‑Yes, that's correct.  Yes.

PN4715    

All right, then this description then goes on to say:

PN4716    

The employee is aligned with the job under the award and that if they -

PN4717    

that is the employee:

***        MARK BRANTINGHAM                                                                                                          XXN MR HARDING

PN4718    

- can do the job they get the associated pro rata of award pay.

PN4719    

Is that an accurate description?‑‑‑They're aligned with the job in our skills list which is in the enterprise agreement, which is in the tool.

PN4720    

Okay, clause 11?‑‑‑So I wouldn't - when you say the award I'm not sure what you mean.

PN4721    

The award that Ms Pearson would have been referring to is the Clothing Trades Award but your evidence is that the correct award is the SESA award, but you do it under the enterprise agreement anyway.  Is that your position?‑‑‑Yes, that's correct.

PN4722    

Under clause 11?‑‑‑Yes.

PN4723    

And so nonetheless is it accurate to say that there is an alignment made between the employee and one of the jobs that you have classified in clause 11 of your agreement?‑‑‑Yes, in the enterprise agreement.  That's right, yes.

PN4724    

So if an employee can do that job they get paid a pro rata amount of the award?‑‑‑That's correct.

PN4725    

Of the rate of pay in the agreement?‑‑‑Yes, of the - yes, that's right.

PN4726    

I'm now taking the witness through to page 83.  We'll see how far we get with that - of the Pearson report.  Now the Pearson report has a description of classification levels and percentages of the award and I wanted to just confirm with you whether or not this is still accurate, under the Yomaro tool as it's recognised in the SESA award which still forms part of the SESA award.  So what the document that I have in front of me tells me is that there are seven levels in the Yomaro tool?‑‑‑Mm‑hm.

PN4727    

Is that correct?‑‑‑That's correct, yes.

PN4728    

And level 1 there's a fixed percentage of 21.61 per cent of the rate of pay?‑‑‑I haven't got those figures of exactly what level corresponds exactly to what percentage, sorry.

***        MARK BRANTINGHAM                                                                                                          XXN MR HARDING

PN4729    

Well, the description then says:

PN4730    

Once an employee reaches 40 per cent of the award rate of a particular skill level they can move up to the next level.

PN4731    

Is that still an accurate description of the Yomaro tool?‑‑‑That is probably how it was established in - when it was first established, but I am not familiar with the technical details.  I - yes.

PN4732    

Of the tool?  You're not familiar with the technical details of the tool?‑‑‑No, of the alignment and the percentages of - because we have a tool that basically has set rates for the different levels that were developed by the union and we follow that strictly.

PN4733    

But the 40 per cent appears in your agreement as well?‑‑‑Yes.

PN4734    

Doesn't it?‑‑‑Yes.  Yes.

PN4735    

Do you know the basis for why 40 per cent is fixed as the maximum that could be paid under each wage level?‑‑‑I don't know, but I mean there is actually no limit to how much a person can be paid.  We have supported employees on a full award wage here.

PN4736    

And are they paid under the Yomaro tool?‑‑‑They are, however when they go above the seven levels we would then - the - there's about four employees we have that are actually aligned to grade 3 or 4 in the SESA award, in the SESA.

PN4737    

So what are the - - -?‑‑‑And they're paid the full amount of that award.

PN4738    

Okay.

PN4739    

VICE PRESIDENT HATCHER:  So Mr Brantingham, just on this point, if you just go to the 2016 enterprise agreement?‑‑‑Yes.

PN4740    

On page 19 there's a schedule A?‑‑‑Yes that - yes, got that.

PN4741    

So do I understand that rather than looking at percentages you're just paying the dollar amounts specified in that schedule for - - -?‑‑‑Exactly.

***        MARK BRANTINGHAM                                                                                                          XXN MR HARDING

PN4742    

- - - the seven levels?‑‑‑That's correct and also I'd just like to clarify that the enterprise agreement each year has percentage rises in it which have gone up a lot faster than the award as well.  So - yes, so this is the best thing to go off.

PN4743    

Thank you.

PN4744    

MR HARDING:  If I could then take you to the letter that you've provided to the Commission.  Before I ask you some questions about this, are you a qualified SWS assessor?‑‑‑No.

PN4745    

No, and you've given some evidence on page 2 about the SWS, yes?‑‑‑Yes, that's correct, of my submission.  Yes, yes.

PN4746    

Of your submission?‑‑‑Yes.

PN4747    

But you yourself haven't had any experience of using the SWS?‑‑‑No, I would clarify I was really commenting on what Paul Cain had stated in relation to the SWS.

PN4748    

Yes, but you criticised Mr Cain's paragraph 74 as deeply flawed?‑‑‑Yes.

PN4749    

And you then give some evidence about how that flaw is to be illustrated by reference to two work roles at Yomaro, yes?‑‑‑Yes.

PN4750    

But you yourself have not had any experience of how the SWS applies or works, do you?‑‑‑No, again I said I was - that comment was really made in reference to what Paul Cain had stated.

PN4751    

Thank you, no further questions.

***        MARK BRANTINGHAM                                                                                                          XXN MR HARDING

PN4752    

VICE PRESIDENT HATCHER:  Mr Brantingham, can you just describe the nature of the work and the products produced by your supported employees?‑‑‑Yes, sure.  So we have a reasonably large enterprise that makes cleaning cloths for Bunnings and it's a really - it's a fantastic enterprise because it allows - we buy second-hand towelling and there's a whole lot of different tasks.  One is cutting the towelling, one is using the overlocking sewing machine to overlock the edges, then there's a bagging - there's a clipping process, you've got to clip the threads off it and then those products have to be weighed and they have to be bagged, and we palletise them and we send them off to Bunnings around the country.  So that's one of our enterprises.  We have a wholesale nursery as well in Ulladulla and we have quite a reasonably sized cardboard and plastic recycling enterprise who run out of two locations.  We actually go and pick up cardboard, we process it in our yard and it gets sent off to Sydney for  to the mills, and we have some other smaller - we have a grounds maintenance enterprise for going out and do - we look after a lot of the lawns in the local area and we also collect secure documents for shredding and so we have an industrial shredding machine here that some of the employees really enjoy using, and we also make survey pegs as well so we've got a - it's only a reasonably small venture but we supply the local council and the landscapers.  So there's painting and cutting work in that, involved in that.  That's probably the main enterprises that we operate.

PN4753    

And how many supported employees do you have in total?‑‑‑About 100.

PN4754    

All right.  Thank you.  Any re‑examination?

RE-EXAMINATION BY MR WARD                                               [11.50 AM]

PN4755    

MR WARD:  Just a few, your Honour.

PN4756    

Mr Brantingham, it's Nigel Ward again?‑‑‑Yes.

PN4757    

In your evidence when you were being asked questions by Mr Harding I think you said that the tool was created by the union?‑‑‑That's correct.

PN4758    

And by created do you mean that they - did they write it for you?‑‑‑Yes, originally the union was like heavily involved with Yomaro so it was done in negotiation with Yomaro, but the union was - were - had the technical expertise, yes.

PN4759    

Okay, and - - -?‑‑‑So the union's been involved ever since in every iteration of the tool.

PN4760    

His Honour the presiding member asked you some questions about what you do and you gave some evidence about work providing material to Bunnings?‑‑‑Yes.

***        MARK BRANTINGHAM                                                                                                                RXN MR WARD

PN4761    

How did you describe that?‑‑‑So we get - we buy recycled towelling from a commercial laundry and so there's various work tasks that then follow on.  So there's a - there's actually a sorting task and then there's a cutting task, so the towels have to be cut to a small size to make a cleaning cloth, and then the cut towel goes to the overlockers and the overlockers that  -they will just sew, overlock each of the four edges of the towel and then from there it goes to some of our team who are - they are really good with clippers and they clip the loose threads on the edge of the towels and then - - -

PN4762    

And Mr Brantingham, how would those people be classified under your enterprise agreement?‑‑‑Yes, so to give you a bit of an idea, so level - probably - a lot of the guys that are doing the clipping of the edges would be classified at level 2 or level 3 if that's all they can do.  Some of the people obviously move between the different tasks and will do a mixture of the tasks.  So if people are on the overlocking sewing machines they would be classified at level 4 or 5.  Did you want more information?

PN4763    

Only if you have it, sir?‑‑‑Yes, and people that are use - able to use the weighing machine and the bag - there's - because it's actually a heat sealing bag machine, they will - they're up around level 5 and possibly 6 if they can use the cutting machine as well.

PN4764    

Thank you very much.  No further questions.

PN4765    

VICE PRESIDENT HATCHER:  All right, thank you for your evidence, Mr Brantingham.  You're now excused and you're free to go which means you can simply hang up the phone?‑‑‑Okay.  Thank you very much.

PN4766    

Thank you?‑‑‑Okay.

<THE WITNESS WITHDREW                                                          [11.52 AM]

PN4767    

VICE PRESIDENT HATCHER:  All right, that's all the witnesses we have, is your understanding?

PN4768    

MR WARD:  Yes, your Honour.  Yes.

PN4769    

VICE PRESIDENT HATCHER:  Can we proceed to mark the balance of the parties' statements of witnesses who were not required?

PN4770    

MR WARD:  Your Honour, what we've done to try and make this easier is we've prepared a schedule of all of the statements that were filed but weren't required for cross‑examination, and for the present purposes we numbered and compartmentalised them depending on whether or not they were ADEs or carers and the like.  Can we hand that up?  It might be easier to deal with it this way.  I'll just quickly describe what's in front of you.  On the first page is the list of managers and the like from ADEs.

***        MARK BRANTINGHAM                                                                                                                RXN MR WARD

PN4771    

It gives it a number, it gives a name, it explains their position and the organisation, it identifies whether or not it was a simple statement or a statement and annexures and then the date it was filed, and then there's for convenience a column with exhibit number.  If you turn the page we then go to parents and carers and for present purposes we've followed the same path but redacted the names.  That goes over to the next page.  Then there is a list of supported employees.  One is not redacted because they consented to their name being made public, the rest are redacted, but they follow the same approach.

PN4772    

VICE PRESIDENT HATCHER:  Sorry, the document I got doesn't have any redacted names.

PN4773    

MR WARD:  Your copy's not redacted I think.

PN4774    

DEPUTY PRESIDENT BOOTH:  No.

PN4775    

VICE PRESIDENT HATCHER:  But do the other parties need - have redacted copies, do they?

PN4776    

SPEAKER:  Yes.

PN4777    

MR WARD:  Yes.  Yes, I think that's right, your Honour.  Yes.

PN4778    

SPEAKER:  Yes.

PN4779    

VICE PRESIDENT HATCHER:  Yes, all right.

PN4780    

MR WARD:  Yes, so I'm in your hands as a matter of efficiency.  We can simply run down the list on the right‑hand side and mark them.

PN4781    

VICE PRESIDENT HATCHER:  I'm more inclined just to check once there's nothing else, simply to do this in chambers and then send the parties a copy of the document in an appropriate form.

PN4782    

MR WARD:  If the Commission pleases.  Yes.

PN4783    

VICE PRESIDENT HATCHER:  Are you content with that, Mr Harding?

PN4784    

MR HARDING:  Yes.

PN4785    

VICE PRESIDENT HATCHER:  All right.

PN4786    

MR WARD:  And - - -

PN4787    

VICE PRESIDENT HATCHER:  Sorry, we'll just let Mr Ward finish and we'll get to you, Ms Walsh.

PN4788    

MR WARD:  And, your Honour, there has been a lot of questions from the Bench about the level of support provided by the Commonwealth to move from BSWAT.  We've located a document of the Australian Government Department of Social Services.  I'd seek to tender it if it will assist the Bench.  Can I apologise; it was like finding a needle in a haystack, this document.  We only ended up with one copy and it's actually marked up in a couple of places.  It doesn't say anything, but just be aware in its original form it wasn't marked up.

PN4789    

VICE PRESIDENT HATCHER:  Have you shown this to Mr Harding?

PN4790    

MR WARD:  I'm about to do that now.

PN4791    

VICE PRESIDENT HATCHER:  How are we going, Mr Harding?

PN4792    

MR HARDING:  Yes, if the question is whether we consent to tender that.  The answer is yes.

PN4793    

VICE PRESIDENT HATCHER:  Sorry, all right.

PN4794    

MR WARD:  Sorry, I'll put it all away.  He got consumed by its content no doubt.

PN4795    

VICE PRESIDENT HATCHER:  All right, the document headed "Australian Government Department of Social Services Supported Employment Sector Funding Support" will be marked exhibit 47.

EXHIBIT #47 DOCUMENT HEADED "AUSTRALIAN GOVERNMENT DEPARTMENT OF SOCIAL SERVICES SUPPORTED EMPLOYMENT SECTOR FUNDING SUPPORT"

PN4796    

MR WARD:  Your Honour, that closes our case.

PN4797    

MR HARDING:  Your Honour, there's a couple of matters I need to attend to before we finish today.

PN4798    

VICE PRESIDENT HATCHER:  Yes.

PN4799    

MR HARDING:  In closing my case I have been informed we omitted to tender two statements from witnesses who weren't required for cross‑examination.

PN4800    

VICE PRESIDENT HATCHER:  Yes.

PN4801    

MR HARDING:  Ms Peggy Eagles and Ms Kate Last, and we would seek to tender those statements.

PN4802    

VICE PRESIDENT HATCHER:  All right, well again we'll do that administratively.

PN4803    

MR HARDING:  Yes.

PN4804    

VICE PRESIDENT HATCHER:  So Mr Ward, can you send my chambers a soft copy both redacted and unredacted of the list you've given us?

PN4805    

MR WARD:  Yes.

PN4806    

VICE PRESIDENT HATCHER:  We'll incorporate that into a total witness list.

PN4807    

MR WARD:  Yes.

PN4808    

VICE PRESIDENT HATCHER:  We'll add obviously Ms Eagles and Ms Last's statements and the parties should get that later today.

PN4809    

MR WARD:  If the Commission pleases.

PN4810    

MR HARDING:  And there's one final matter which is that in answer to I think your Honour asked Mr Cain for some documents arising from a question he gave in cross‑examination.

PN4811    

VICE PRESIDENT HATCHER:  Yes.

PN4812    

MR HARDING:  We're in the process of gathering those documents and we ought to be in a position to provide them today, at the end of today or tomorrow morning.  But we'll certainly provide the ABI with copies.

PN4813    

VICE PRESIDENT HATCHER:  All right.

PN4814    

MR WARD:  Well, can I just say this.  I have no idea what's in them or how prejudicial they are to our case.  If I could get them this evening that would be greatly appreciated.

PN4815    

VICE PRESIDENT HATCHER:  Yes, all right.

PN4816    

MR HARDING:  Well, we certainly won't be tendering them in the absence of the ABI being able to see them first.

PN4817    

VICE PRESIDENT HATCHER:  Right.  Thank you.

PN4818    

And Ms Walsh, you have an issue to raise?

PN4819    

MS WALSH:  Yes.  Thank you, your Honour.  Our submissions to the Commission actually looked at inserting what we called a Rights for Work clause.

PN4820    

VICE PRESIDENT HATCHER:  Yes.

PN4821    

MS WALSH:  And also the word "nominee" to be added.  Now I've had discussions with Leigh, with Ms Svendsen, but all I have is a document that is - well, there has been one provided to the Commission.  We've had no input or discussion with any of the other parties in relation to it, whether there are any objections or anything of that nature.  So I just would like to tender it but I only have one copy, and the other one is another document that was provided to the Commission.  Again I only have one copy for the other parties, and that actually explains our role as family carers.

PN4822    

VICE PRESIDENT HATCHER:  So just dealing with those one at a time.  So the first one is your proposal for the Rights at Work clause?

PN4823    

MS WALSH:  Yes.

PN4824    

VICE PRESIDENT HATCHER:  But do we already have that in its latest iteration?

PN4825    

MS WALSH:  Probably not in its latest iteration because we have assumed rightly or wrongly that the word "nominee" could be inserted.  The current award uses the word "guardian, carer, representative, if any" and we feel that in modernising the award we need to actually include the name "nominee".  In this particular document we have inserted the word "nominee" where we think it fits, but that is as a matter for the other parties to actually consider.

PN4826    

VICE PRESIDENT HATCHER:  And have you given copies of that to the other parties to look at?

PN4827    

MS WALSH:  No.  They were sent and included in the submissions to the Fair Work Commission, but I have one copy here.

PN4828    

VICE PRESIDENT HATCHER:  I'll receive it.  I don’t think we need mark it as an exhibit but what we'll do is we'll get it copied and distribute it in some form to the other parties.  So just - - -

PN4829    

MS WALSH:  And the other one is - - -

PN4830    

VICE PRESIDENT HATCHER:  And the next one is a document you want to tender?

PN4831    

MS WALSH:  Yes, and there are about eight or nine others that actually go to I guess our case for - - -

PN4832    

VICE PRESIDENT HATCHER:  Eight or nine other documents?

PN4833    

MS WALSH:  Eight or nine separate documents.  Some of them are quite - are not - some of them are just one pagers, some of them - I have copies of them all.

PN4834    

VICE PRESIDENT HATCHER:  Are they all about the role of Our Voice Australia or they're about different issues?

PN4835    

MS WALSH:  No, they are about how the issues that have been discussed here today actually - I guess our position on the issues discussed and our input as to why family carers needed to have input into this modern award, and it's based on history and current circumstances.

PN4836    

VICE PRESIDENT HATCHER:  All right.

PN4837    

MS WALSH:  I'm happy to provide a copy of each to you, your Honour.  The issue of the "ADE Wage Just for Sight" has already - it has already been discussed by other parties.  There is a document which we historically provided to this Commission in its real form back in 2001.  It is currently still relevant.  So I'm happy to provide them to the Bench.  We have copies for your consideration as to whether or not you think they are relevant and whether or not you think that the copies we have should be distributed to the parties.

PN4838    

VICE PRESIDENT HATCHER:  All right, well the first thing is why don't you just hand up the documents as a bundle?

PN4839    

MS WALSH:  Yes.

PN4840    

VICE PRESIDENT HATCHER:  So we'll treat them as one document, so I'll hand that back and we'll just put them together with that as a bundle.  My initial assessment of that document is it's more in the nature of a submission than evidence.

PN4841    

MS WALSH:  Right.

PN4842    

VICE PRESIDENT HATCHER:  But I just want to see what the other documents look like.

PN4843    

MS WALSH:  We've done copies, your Honour, so.  The first document is our statements, our witness statements, 55 of those.  We don't have them in redacted form.  The Commission has them in unredacted form and I would be referring to some of those, not many, but some during our closing submission.

PN4844    

VICE PRESIDENT HATCHER:  All right, well they'll be marked as exhibits, Ms Walsh.  We'll do that administratively and add it to the list which you'll get later today.  So you don't need to worry about those.

PN4845    

MS WALSH:  So I don't need to re-provide those.

PN4846    

VICE PRESIDENT HATCHER:  No, no.

PN4847    

MS WALSH:  We do not have permission from the submitters to use their names publicly so we would need to use the - - -

PN4848    

VICE PRESIDENT HATCHER:  Well just to be clear, they're statements that were earlier filed in the proceedings?

PN4849    

MS WALSH:  They have been filed with the Commission, yes.

PN4850    

VICE PRESIDENT HATCHER:  Yes, all right.  All right, we'll deal with that.

PN4851    

MS WALSH:  All right, and the others.

PN4852    

VICE PRESIDENT HATCHER:  Sorry, Ms Walsh, before we move on from the witness statements just so that for example Mr Harding, if you refer to a statement I understand which statement you're talking about, can we give them an acronym like their initials or something?

PN4853    

MS WALSH:  Certainly.  Whatever is relevant.  They are numbered.

PN4854    

VICE PRESIDENT HATCHER:  Yes.

PN4855    

MS WALSH:  In the submission to the Commission there was a summary document.

PN4856    

VICE PRESIDENT HATCHER:  Yes.

PN4857    

MS WALSH:  For the original 52 and then there were three more added under those.

PN4858    

VICE PRESIDENT HATCHER:  Yes.

PN4859    

MS WALSH:  So they are all numbered by page number but I agree with you that, you know, if there was a comment needed then, yes, I don't have a problem with them being - or we don't have a problem with there being an acronym of some sort.

PN4860    

VICE PRESIDENT HATCHER:  Right, reference to their initials?

PN4861    

MS WALSH:  I don't think that would be a problem, your Honour.

PN4862    

VICE PRESIDENT HATCHER:  All right.  Thank you.

PN4863    

MS WALSH:  Whatever is easiest for the other parties and particularly the Commission.

PN4864    

VICE PRESIDENT HATCHER:  All right.  Thank you.

PN4865    

MS WALSH:  And if I just give a collection of these to the court representative?

PN4866    

VICE PRESIDENT HATCHER:  Yes.

PN4867    

MS WALSH:  Right.  It will take a little time.

PN4868    

VICE PRESIDENT HATCHER:  Sure.

PN4869    

MS WALSH:  Could we do that afterwards?

PN4870    

VICE PRESIDENT HATCHER:  Well, I don't think there is any afterwards.

PN4871    

MS WALSH:  Is Mr Baker not - - -

PN4872    

MR HARDING:  That's excessively bleak, your Honour.

PN4873    

MS WALSH:  He's not being - okay, sorry, I wasn't aware that that other witness on the list is no longer coming.

DISCUSSION AT BAR TABLE WHILE BUNDLE OF DOCUMENTS BEING HANDED UP                                                                                                            [12.06 PM]

PN4874    

MS WALSH:  My apologies, your Honour, it's probably back at - the other two documents are probably back in the motel room.  To carry all this stuff around over such a long period of time, it has been difficult.  Thank you.

PN4875    

VICE PRESIDENT HATCHER:  Well, what - - -

PN4876    

MS WALSH:  There are two more documents to come that we will be referring to in our closing submission.  In fairness to the other parties I would like them to have a copy of that beforehand.

PN4877    

VICE PRESIDENT HATCHER:  Well, are you able to email them to us?

PN4878    

MS WALSH:  No, I can't.  I don't have those facilities.

PN4879    

VICE PRESIDENT HATCHER:  No?

PN4880    

MS WALSH:  I've got a mobile phone.  It's not on there, I'm sorry.

PN4881    

VICE PRESIDENT HATCHER:  Can you fax them?

PN4882    

MS WALSH:  No.

PN4883    

SPEAKER:  Could you fax them?

PN4884    

MS WALSH:  Sorry?

PN4885    

SPEAKER:  Could you photograph them and - - -

PN4886    

VICE PRESIDENT HATCHER:  Can you fax them?

PN4887    

MS WALSH:  No, I'm just in a motel room.  We can email them to you, your Honour.

PN4888    

VICE PRESIDENT HATCHER:  Okay.  All right.

PN4889    

MS WALSH:  I've just found out.

PN4890    

VICE PRESIDENT HATCHER:  What I'm inclined to do, Ms Walsh, is to treat this as a bundle of documents that form part of your submissions.

PN4891    

MS WALSH:  Yes.  Thank you.

PN4892    

VICE PRESIDENT HATCHER:  So I won't mark it as an exhibit.

PN4893    

MS WALSH:  Yes.

PN4894    

VICE PRESIDENT HATCHER:  We'll treat is a bundle as part of your submissions.

PN4895    

MS WALSH:  Yes.

PN4896    

VICE PRESIDENT HATCHER:  If you can email the last two documents or fax them or whatever.

PN4897    

MS WALSH:  Yes.  Yes.

PN4898    

VICE PRESIDENT HATCHER:  I'll add them to the bundle.

PN4899    

MS WALSH:  Okay.

PN4900    

VICE PRESIDENT HATCHER:  And they'll be treated as part of your submissions.

PN4901    

MS WALSH:  Now do I need to provide those, because I'll be referring to them?  Do I need to provide those to all the other parties?

PN4902    

VICE PRESIDENT HATCHER:  Well, if you send them to us we'll send them to the parties.

PN4903    

MS WALSH:  Thank you very much.

PN4904    

VICE PRESIDENT HATCHER:  All right, are there any other documents that need to be marked as part of any parties' evidentiary case?  No?  All right, we'll commence closing submissions at 10 am tomorrow and we'll now adjourn.

ADJOURNED UNTIL THURSDAY, 15 FEBRUARY 2018           [12.12 PM]


LIST OF WITNESSES, EXHIBITS AND MFIs

 

KRISTIAN REN DAUNCEY, SWORN.......................................................... PN4300

EXAMINATION-IN-CHIEF BY MR ZEVARI.............................................. PN4300

EXHIBIT #42 WITNESS STATEMENT OF KRISTIAN DAUNCEY DATED 25/10/2017............................................................................................................................... PN4310

CROSS-EXAMINATION BY MR HARDING............................................... PN4315

EXHIBIT #43 EXTRACT FROM THE ANNUAL REPORT 2016/2017 FOR KNOXBROOK INCORPORATED.............................................................................................. PN4346

THE WITNESS WITHDREW.......................................................................... PN4355

NICOLE CHERIE FITZE, AFFIRMED......................................................... PN4362

EXAMINATION-IN-CHIEF BY MS ZADEL................................................. PN4362

EXHIBIT #44 WITNESS STATEMENT OF NICOLE FITZE DATED 21/11/2017 PN4373

CROSS-EXAMINATION BY MR HARDING............................................... PN4374

RE-EXAMINATION BY MS ZADEL............................................................. PN4633

THE WITNESS WITHDREW.......................................................................... PN4650

MARK BRANTINGHAM, AFFIRMED......................................................... PN4666

EXAMINATION-IN-CHIEF BY MR WARD................................................. PN4666

EXHIBIT #45 LETTER TO THE COMMISSION SIGNED BY MARK BRANTINGHAM DATED 20/11/2017.............................................................................................. PN4678

CROSS-EXAMINATION BY MR HARDING............................................... PN4679

EXHIBIT #46 YOMARO INCORPORATED ENTERPRISE AGREEMENT 2016 PN4710

RE-EXAMINATION BY MR WARD.............................................................. PN4754

THE WITNESS WITHDREW.......................................................................... PN4766

EXHIBIT #47 DOCUMENT HEADED "AUSTRALIAN GOVERNMENT DEPARTMENT OF SOCIAL SERVICES SUPPORTED EMPLOYMENT SECTOR FUNDING SUPPORT"............................................................................................................................... PN4795