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Fair Work Act 2009                                                    








s.156 - 4 yearly review of modern awards


Four yearly review of modern awards





10.00 AM, MONDAY, 14 FEBRUARY 2022


Continued from 29/10/2021



THE ASSOCIATE:  Ms Hinchcliffe, I confirm that you appear on behalf of the Department of Social Services?


MS S HINCHCLIFFE:  Yes, that's true.


THE ASSOCIATE:  Ms Svendsen, you appear on behalf of the HSU this morning?


MS L SVENDSEN:  Yes, sorry.  For the Health Services Union.


THE ASSOCIATE:  Thank you.  And Mr Ward for ABI and New South Wales Business Chamber?


MR N WARD:  (Indistinct)


THE ASSOCIATE:  Thank you very much.  Ms Langford for National Disability Services?


MS K LANGFORD:  Yes.  Thank you.


THE ASSOCIATE:  Thank you very much.  Mr Christodoulou from Greenacres?




THE ASSOCIATE:  Thank you very much.  Ms Walsh for Our Voice Australia?  Ms Walsh, it appears that your audio isn't working.  We may seek to rectify that in just a moment as well.  We will just finish on the appearances.  Is anyone for Endeavour Foundation on the line?


MS K BOULTON:  Yes, Kirrily Boulton from Endeavour Foundation.


THE ASSOCIATE:  Thank you very much.  And Ms Livsey for Activ Foundation?


MS J LIVSEY:  Yes, I'm here.  Thank you.


THE ASSOCIATE:  Thank you very much.  And Mr Kemppi, you will be appearing on behalf of the ACTU?


MR S KEMPPI:  Yes, thank you.


THE ASSOCIATE:  Thank you very much.  Ms Walsh, in regards to your audio, we will get one of - my colleague in chambers will give you a call in just a moment, and we will probably seek to dial you in to the directions hearing ourselves.  So if you just bear with us, we will give you a call in one moment.  Hi, Ms Walsh.  This is Hatcher VP's associate Erin.  We've just added you back into the hearing.


MS M WALSH:  Thank you very much.


THE ASSOCIATE:  Can I confirm if there's anyone else who has joined in the last five minutes whose appearance I haven't mentioned?  May I just confirm the number starting 0418 who has just joined the directions hearing?  Can I just confirm the appearance.


MS WALSH:  Yes, it's Mary Walsh from Our Voice Australia.


THE ASSOCIATE:  Okay, sorry.  The other mobile, 0476, can I confirm the appearance?


MS J CAIN:  Yes, it's Janelle from AED.


THE ASSOCIATE:  Thank you very much.  Janelle, could I please get your surname?


MS CAIN:  Yes, it's Cain, C-a-i-n.


THE ASSOCIATE:  Thank you very much, parties.  I will just remind everyone to ensure that they are muted if they're not addressing the Full Bench.  We will now see if they're ready to be dialled in.  Thank you.  Vice President, can I confirm you can hear me?




THE ASSOCIATE:  Saunders DP, I confirm you can hear me?




THE ASSOCIATE:  And Cambridge C, I confirm you can hear me as well?




VICE PRESIDENT HATCHER:  I will take the appearances, please.  Mr Ward, you appear for ABI and the New South Wales Business Chamber?


MR N WARD:  Yes, I do, your Honour.


VICE PRESIDENT HATCHER:  Ms Langford, you appear for National Disability Services?


MS K LANGFORD:  Yes, I do, your Honour.


VICE PRESIDENT HATCHER:  Mr Christodoulou, you appear for Greenacres?


MR C CHRISTODOULOU:  Yes, your Honour.


VICE PRESIDENT HATCHER:  Ms Walsh, you appear for Our Voice Australia?


MS M WALSH:  I do, your Honour.


VICE PRESIDENT HATCHER:  Ms Boulton, you appear for the Endeavour Foundation?


MS K BOULTON:  Yes, I do, your Honour.


VICE PRESIDENT HATCHER:  Ms Livesey(sic), you appear for Activ Foundation?


MS J LIVSEY:  Yes, I do, thank you, Hatcher VP.


VICE PRESIDENT HATCHER:  Ms Cain, you appear for AED?


MS J CAIN:  No, I don't appear for AED, that's Ms Kirsty Wilson.  She sends her apologies, she's still trying to get on.


VICE PRESIDENT HATCHER:  Okay.  Are you here on behalf of AED?


MS CAIN:  Yes.


VICE PRESIDENT HATCHER:  What's the difficulty with Ms Wilson?


MS CAIN:  She's having trouble accessing the meeting.


VICE PRESIDENT HATCHER:  All right.  Mr Kemppi, you appear for the ACTU?


MR S KEMPPI:  Yes, Vice President.  Thank you.


VICE PRESIDENT HATCHER:  And Ms Svendsen, you appear for the HSU?


MS L SVENDSEN:  Yes, thank you, Vice President, I do.


VICE PRESIDENT HATCHER:  Have I missed out anybody?


MS S HINCHCLIFFE:  Yes.  It's Suzanne Hinchcliffe for the Department of Social Services.


VICE PRESIDENT HATCHER:  (Indistinct).  We just might have to wait for a second until we can find out what's going on with Ms Wilson.  Just give me a second.


THE ASSOCIATE:  Ms Cain, this is Hatcher VP's associate.  Because the AED didn't confirm an appearance with us for the directions hearing this morning we actually don't have a contact number for Ms Wilson to get on to her.  Would it be possible for you to send a contact number to the Vice President's chambers as soon as possible so we can try and dial her in ourselves?


MS CAIN:  Yes, I can get her number to them.


MS SVENDSEN:  Vice President, it's Leigh Svendsen from HSU.  We did talk last week, and Kirsty wasn't sure she was going to be able to get on because she's still in the States.  I have been asked to lead the union and AED response this morning, and Mr Kemppi and I spoke to her, as with Ms Cain.  I think that she would be reasonably happy for us to proceed, and she did tell me in an earlier text not to wait for her.


VICE PRESIDENT HATCHER:  All right.  So in respect of the matter referred to in paragraph 10 of our statement of 31 January, that is these jurisdictional issues, Ms Svendsen, are you in a position to give us an outline of the position of those when the time comes to it?


MS SVENDSEN:  Yes.  We have talked about exactly what those jurisdictional points are, and I can actually give you an update.


VICE PRESIDENT HATCHER:  All right, we will come to that.  So the parties will have seen our statement of 31 January, and hopefully the parties have had the opportunity to peruse the report of the trial which was carried out.  There are a number of issues which we need to deal with today:  first of all a program for the finalisation of the matter; secondly - and in doing so it might be useful if the parties can indicate whether we have correctly identified the issues in paragraphs 9 and 10 of the statement, or whether there was other issues we need to look at; and then finally there's the matter in paragraph 11 of the statement, that is whether a conference, or even just discussion between the parties would serve any purpose.


Mr Ward, do you want to start off?


MR WARD:  Your Honour, might I come in a little later.  I apologise, I'm having some technical difficulties at my end.  If you could perhaps go to another party.  I just need about five minutes to sort out a little technical problem I've got with my machinery.


VICE PRESIDENT HATCHER:  All right.  What about Ms Langford.


MS LANGFORD:  Thank you, your Honour.  We're actually - I'm keen for Australian Business (indistinct) and Nigel Ward to actually have his statement first, because we actually do want to come in behind his statement, prior to a previous conversation we had the other day.


VICE PRESIDENT HATCHER:  All right.  Perhaps I will then leave the employer interests until Mr Ward can return, and I will switch to you, Ms Svendsen, if you're going to lead off for the employee interests, and also for AED.  Your microphone is off, Ms Svendsen.


MS SVENDSEN:  The sales version again.  Your Honour, thank you very much.  We are still - I guess, from the point of view of ACTU, AED and HSU we are still assessing the full report.  We are very anxious not to rush things at this stage.  We understand that it has been a very lengthy process and that it has been going on now technically since 2013, not even 2014.  We've had more than one report into the kind of framework for a supported wage system within AEDs over that period of time.


We're still coming to terms with the report and trying to get to the depths of it and figure out what we need to know, and how we would respond to this.  We think that it contains a lot of information.  We need to really look at and interrogate that information.  We may even need to seek other documents or ask for more information around methods and assumptions and those sorts of things that have gone into the trial because we have not been a part of the trial conversations ongoing as we were going to be restricted in how we responded to that, and we didn't understand what the implications of that might be going forward.


So we decided not to participate by signing any confidentiality agreements during that process.  So we well may need to be seeking other documents to finalise our response and/or to make our response in relation to the process and the report.


VICE PRESIDENT HATCHER:  Sorry, Ms Svendsen, can I just clarify what you've just said.  When you say 'prepare your response', do you mean prepare your case, or work out what your position actually is?


MS SVENDSEN:  Both.  I don't know that we have a case or that we are going to attempt to say anything about that, your Honour.  But we would, I guess - I guess in saying that, we would suggest that there is actually further submissions and evidence - potentially evidence, anyway - in relation to the outcome of the trial.  I don't suggest that we're going to run a whole new case or any of those matters, and that's leaving aside whether or not there are going to be further jurisdictional argument, but just in relation to our response to the report itself.


And no, your Honour, I don't know that we actually know yet where we're going to land on that, and we still - we believe that we still need some other information in relation to finalising that response.  We're happy to propose what we mean about that if you would like me to go to that now, or before Mr Ward speaks, but it's a bit either way.


We were proposing that we use some of the timetable that's still ahead of us, but to modify what actually happens in relation to that.


VICE PRESIDENT HATCHER:  In the event that we decide to make directions for the filing of further submissions and evidence, and taking into account everything you've said, how long would you want to be able to do that?


MS SVENDSEN:  We would suggest that 20 May is receipt of further evidence and submissions by everyone.




MS SVENDSEN:  That in-reply would be 10 June; and that the 15th to the 19th would be further hearing if necessary.




MS SVENDSEN:  No, sorry, August.




MS SVENDSEN:  I can pop that into the chat if you like.


VICE PRESIDENT HATCHER:  No, that's all right.  And as to the matter in paragraph 11 of the statement, that is whether there would be any utility in having a conference?


MS SVENDSEN:  In relation to that, I think there is always utility in having a conference.  I'm never opposed to having a conference.  But I would suggest that we don't need a conference in the next couple of weeks.  Again I think it's about us getting to grips with the full report and even - and maybe in that conference we can have some of those matters that where - questions that we have answered, instead of getting documentation.  So I'm not suggesting, you know, out to the end of April either.


VICE PRESIDENT HATCHER:  All right.  And in respect of AED, what's the position with any jurisdictional issues?


MS SVENDSEN:  Sorry, Janelle sounded like she was about to answer that question.


MS CAIN:  No, I was just saying that I'm not speaking on behalf of AED, I'm just taking notes.  And Kirsty sends her apologies, she won't be joining.


VICE PRESIDENT HATCHER:  All right.  What can you tell us about that, Ms Svendsen?


MS SVENDSEN:  What I can tell you about that is that again that they are still fully assessing where they would go in relation to it, but they're not backing away from the jurisdictional arguments at this stage, but they will give you a better answer to that question when they have properly assessed the report.


VICE PRESIDENT HATCHER:  I don't think, with respect, that those jurisdictional issues have much to do with the contents of the report, do they?  I mean, the Federal Court proceedings were launched before - obviously long before the report was issued, and raised much broader issues about any form of wage structure ‑ ‑ ‑


MS SVENDSEN:  That's very true, your Honour.  AED acknowledged that it's unlikely that they're going to drop their jurisdictional objection to the double whammy of both - of the methods that are being proposed in relation to this, that people are assessed twice, not once.  And yes, they are likely to proceed with those, but they're not absolutely saying they are right now.


VICE PRESIDENT HATCHER:  All right.  Mr Kemppi, do you want to add anything at this stage?


MR KEMPPI:  No thank you, not at this stage.


VICE PRESIDENT HATCHER:  All right.  Mr Ward, are you ready to proceed?


MR WARD:  Yes.  Sorry, your Honour, I'm just working off two machines this morning for some reason, which is beyond my technical capability.  Can I just say a small number of things in regard to the statement and Ms Svendsen's observations.  We've already been consulting with our clients' members since the report was released.  And while we haven't finalised that yet, we're well through that consultation in terms of those members' initial views arising from the report.


From our perspective we think it's a little premature to be talking about further evidence at this stage.  We think it would be more productive to actually involve ourselves in conferences.  I'm ever optimistic that some of the issues could be narrowed, refined, or actually resolved in conference between the parties.


In relation to issues, I think the issues raised by the Full Bench at paragraph 9 of its statement are issues that would be useful to discuss in conference.  And I note that at paragraph 10 the Full Bench indicates that that list is not exhaustive.  I think it would be useful for any party participating in a conference that any directions require the party to add any further matters to be subject of discussion at conference prior to the conference occurring.


So at this stage we would actually be more supportive of a conference approach, an opportunity to discuss the matters in paragraph 9, and any other issues.  I will indicate to the Full Bench now that we probably have at least two other issues arising from the report.  Perhaps with some irony, one may very well go to trying to resolve Ms Svendsen's double whammy concept.  We think that would be the prudent approach to adopt.


As to the jurisdictional issue, we're quite happy to spend our time in conference to see if we can narrow some practical issues.  If ultimately we face a full scale on all fronts jurisdictional argument, we will deal with that at the time, but we think we should spend some time more practically in conference at this stage.


VICE PRESIDENT HATCHER:  All right.  Is that the only direction you seek, the conduct of a conference?


MR WARD:  That would be the only direction we would seek, relating to the holding of a conference, and any filing of material for further issues prior to the conference occurring.


VICE PRESIDENT HATCHER:  All right.  Is there any possibility that even if agreement can't be reached between everybody, that at least the employer interests can come up with a common response or position or proposal in light of the report outcomes?


MR WARD:  Your Honour, it's my anticipation that that is exactly what will occur.  Ms Langford and myself have been involved in discussions about the report from the outset.  Those employers who are individually representing themselves are either members of my clients, Ms Langford's organisation, or both, so we are endeavouring to make sure that whatever we bring to the conference, either as issues or as how they should be addressed, would be done so in a unified position from the employers.


VICE PRESIDENT HATCHER:  All right.  Thank you.  Ms Langford.


MS LANGFORD:  Thank you, your Honour.  I would like to really adopt what Mr Ward has actually said.  We are really keen to proceed to conference and look at the next steps forward, so at this point that's the position we would like to adopt and have on record.


VICE PRESIDENT HATCHER:  All right.  Thank you.  Mr Christodoulou, Ms Boulton or Ms Livesey(sic), do you have anything different you want to say?


Mr Christodoulou:  No, your Honour.


MS BOULTON:  No, Vice President.


MS LIVSEY:  No thank you, Vice President.


VICE PRESIDENT HATCHER:  All right.  Ms Walsh.


MS WALSH:  Yes.  After reading the report and consulting with our executive, we would like to try and narrow the differences.  It is obvious from the report that neither the family carers, and indeed many of the supported employees really understand these issues.  If we are going to get the message through to them, we need to narrow the points of differences so that we do not raise unnecessary concerns within the workers, their families, and support networks.


We therefore would like to consider further conferencing, conciliation, meetings where we can actually hopefully narrow those points.  And we have developed a concept plan which we would be happy to provide to all parties should the Commission decide to go down that conference path.  We support that.  We believe there are issues that can be narrowed, should be narrowed.  We are concerned about many of the points raised in the report, and we would like to actually have those more defined so that we can actually provide those to our membership without raising undue alarm.


So really all we want is for further conferencing with the related parties; and as part of that we would like to put forward a concept plan from our perspective prior to that, and as soon as it is required.  Thank you.


VICE PRESIDENT HATCHER:  Ms Hinchcliffe, do you wish to say anything?


MS HINCHCLIFFE:  I have nothing further to add, thanks.


VICE PRESIDENT HATCHER:  Ms Svendsen, do you wish to reply to anything that has been said?


MS SVENDSEN:  Only this, your Honour:  I think that as I indicated, we have no objection to conferences.  We just don't think that anything more formal should happen before around about mid to late May.  So we're happy, absolutely happy to engage in some conferences.  As I indicated, I think that it will serve to answer some of the questions that we have as well so that we can go through those issues and narrow anything that - if anything is left for us to debate about - and we can come back to you at a later date if we think we need to proceed with the sort of directions I proposed.


VICE PRESIDENT HATCHER:  Perhaps I will just ask you, Ms Svendsen and Mr Ward, would you prefer the conference to be conducted by a Member of the Bench or somebody who's not on the Bench?


MR WARD:  Your Honour, from our perspective we would have a preference for a Member of the Bench, and would take no objection to that.


MS SVENDSEN:  Neither would we, your Honour.


VICE PRESIDENT HATCHER:  All right.  Thank you.  Does any party wish to raise anything further?  All right.  The Full Bench will consider what has been put, and we will issue some directions in due course.  Thank you for your attendance.  We will now adjourn.

ADJOURNED INDEFINITELY                                                          [10.41 AM]