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Fair Work Act 2009                                       1058152






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Health Professionals and Support Services Award 2010




10.07 AM, THURSDAY, 14 MAY 2020


Continued from 12/02/2019



THE DEPUTY PRESIDENT:  Good morning everybody.  Thank you so much for joining the call and participating in a directions hearing.  We styled it as a hearing simply for the convenience of being able to place any procedural decisions that arise on the record so that the whole community can be made aware of those through the initial processes of posting these transcripts on our website, but perhaps I can just begin with everyone identifying themselves for the sake of the record.  There is no order of - please don't interpret my calling out of the organisations names as any order of preference, it's simply how they appear on my screen.  So for DHAA could I take appearances.


MS K MURPHY:  Thank you, Deputy President.  It's Katrina Murphy here and with me I have Dr Carol Tran, or virtually with me, sorry, Dr Carol Tran and also Mr Bill Suen.


THE DEPUTY PRESIDENT:  Lovely.  Thank you very much, Ms Murphy.  And for Optometry Australia?


MS M BROOKS:  Yes, thank you, Deputy President, my name is Brooks, B-r-o-o-k-s, initial MJ, of counsel and I appear with Ms Emma Dalley of Industry Legal Group.


THE DEPUTY PRESIDENT:  Very good.  Thank you very much, Ms Brooks.  And for ABI?


MS K THOMSON:  Thank you, your Honour.  It's Thomson, T-h-o-m-s-o-n, initial K, for ABI & NSW Business Chamber.


THE DEPUTY PRESIDENT:  Thanks, Ms Thomson.  And for ADA and ADPA?


MR B MILES:  Yes, your Honour, it's Miles, initial B, of counsel and also on the line should be Mr Wilkinson, Ms Bradburn and Ms Irving.


THE DEPUTY PRESIDENT:  I believe that's the case.  Shall we just ask for a shout out to ensure that they are indeed on the line.


MR D WILKINSON:  Yes, I'm on the line, David Wilkinson.




MS E IRVING:  Yes, I'm on the line, Deputy President.




MS J BRADBURN:  Yes, I'm here.


THE DEPUTY PRESIDENT:  And I suppose we should have done the same for the DHAA, Ms Tran and Mr Suen.


DR C TRAN:  Yes, Dr Tran here, I'm here.


MR B SUEN:  Bill Suen here, yes.


THE DEPUTY PRESIDENT:  And for Optometry Australia, Ms Dalley?


MS E DALLEY:  Yes, I'm here.


THE DEPUTY PRESIDENT:  Very good.  All right, it appears like we have everybody who had intended to appear appearing and I don't believe I need to deal with section 596 of the Act.  My recollection is that that matter has been dealt with in the earlier part of this, shall I say on the record saga.  It's certainly been a number of different appearances on different occasions and I am certain that permission to appear has been given, but we will take that as a given.  All right.


MS DOUST:  Excuse me, might I announce my appearance for the Health Services Union.


THE DEPUTY PRESIDENT:  I apologise.  Absolutely.  I am sorry, you weren't on my screen.  It's just one of those - we're tapped into our screens.  So, yes, please, go ahead.


MS L DOUST:  It's Ms Doust, that's D-o-u-s-t for the record, and Ms Leibhaber from the HSU in Melbourne is on the line as well.


THE DEPUTY PRESIDENT:  So let's hear from Ms Leibhaber as well, say hello.




THE DEPUTY PRESIDENT:  Thank you.  And thank you, Ms Doust, a tremendously reprehensible oversight not to have heard from you.  Thank you very much.  I have at the request of the presiding member Vice President Catanzariti convened this directions hearing just to settle the matter of the process or procedure that is to be followed to finalise this matter.  The Vice President did write to everyone to ask in amending directions as have been amended on a couple of occasions, but now I believe have been exhausted.  He asked the parties to indicate whether there were areas of factual conflict arising from statements that would give rise to a need for cross-examination so that we could consider how we will do that in the COVID-19 environment, and of course the proposition was put and you were asked to agree or otherwise to the extent that there weren't factual conflicts that the matter might be dealt with on the papers, which of course would not require us to make any further dates for listing, but if we need to cross-examine we will.  I think the most forwardly way of doing that would be the orthodox way which is just to hear from everybody in sequence about their view about that, and then if we've got unanimity that will be that.  If we don't we can figure out how we manage that.  So maybe DHAA, again this is just the order that I have on my screen, if you could, Ms Murphy, let us know your view about whether there are statements from anybody else in these proceedings that you seek to cross-examine on and what your view is about the matter being dealt with on the papers.


MS MURPHY:  Thank you, Deputy President.  DHAA welcomes the opportunity for the matter to be truncated without the need for hopefully days of arbitration.  We do wish to cross-examine one witness which is Mr Leszczynski from the Health Services Union specifically with regards to a couple of the precisions of his witness statements of 7 August 2019 and 10 April 2020.  Obviously not those aspects of his witness statements which go to whether the award should be indicative or not, because that matter has already been dealt with, but which specifically reference arguments of the DHAA.


THE DEPUTY PRESIDENT:  Very good.  Thank you for that.  We will go through everybody and then we will have an inventory of cross-examination and then we can decide how we manage that.  So thanks, Ms Murphy.  Optometry Australia, Ms Brooks?


MS BROOKS:  Thank you, Deputy President.  I am instructed that Optometry Australia are content to have the matter dealt with on the papers.


THE DEPUTY PRESIDENT:  Are there any witnesses that you seek to cross-examine?


MS BROOKS:  No, thank you.


THE DEPUTY PRESIDENT:  Very good.  ABL, Ms Thomson?


MS THOMSON:  Similarly, your Honour, we are happy to have the matter dealt with on the papers and don't intend to cross-examine.


THE DEPUTY PRESIDENT:  Very good.  And ADA and ADPA?  Mr Miles?


MR MILES:  Yes, your Honour.  Whilst there's some issues that go to a lack of foundation for certain opinions that are expressed and indeed a lack of evidence on matters related to that there doesn't appear likely to be any matter of credit arising from the evidence.  We don't intend to engage in the sniping that is evident in some statements, and I should add quite properly absent from the HSU's submissions, and on that basis I think the matter can be dealt with from our perspective without the need for cross-examination and therefore be dealt with on the papers.




MS DOUST:  Thank you, Deputy President.  Can I indicate this, that so far as the witness for Optometry Australia is concerned that witness is not required, so we don't require Optometry Australia.  Ms Irving has two witness statements that have been submitted by the ADA.  We had one objection to that that relates to the expression of opinion and we propose to make a request of the ADA about some further information, but we wouldn't expect dealing with that witness to be extensive or complicated.  Ms Bradburn isn't required from the ADPA.  The ADPA also filed a further witness statement yesterday afternoon which was Mr Brownley.  We don't expect there's going to be cross-examination required of Mr Brownley, but we haven't had an opportunity to get some feedback on his witness statement from our dental prosthetists members.  I doubt very much we will require him for cross-examination.


The area really where there is some prospect of cross-examination is in the evidence of the witnesses of the Dental Hygienists Association, and there's a number of those witness statements that are quite similar in form where we have or we would have objection to the opinions that are expressed in those witness statements, and depending upon the resolution of those objections we may then be required to do some cross-examination.  If the cross-examination is required, that is if the objections aren't resolved in our favour, it's still something that could be done well within the space of a day.  There's a few of them - no, there's 11 - but we don't expect the cross-examination will be extensive.


THE DEPUTY PRESIDENT:  Yes.  I think you have got two categories of submission there and one you share with Mr Miles which is objections in relation to statements and it might be convenient to deal with those in writing, so for me to give you a date by which those objections and reasoning for them are provided and then I can ask the Full Bench to rule on that on the papers, and quite quickly, and then you can communicate back as a result of that, how many witnesses you want, the witnesses on here (indistinct) won't concern them.


MS DOUST:  Yes, I was proposing to suggest that there be some sort of procedure for resolving that matter in advance of any hearing date so that those issues can be resolved if at all possible before bringing them because there's a lot.


THE DEPUTY PRESIDENT:  Yes.  Would 22 May be sufficient time for you to get those objections to us, and, Mr Miles, would that do for you as well?


MR MILES:  Yes, your Honour.


THE DEPUTY PRESIDENT:  So by 22 May and then I won't put a time limit on the Full Bench as our world - it will be as quickly as possible we will rule on those objections, and then we will propose a date for - an option would be to then propose a date - well, actually I think we would then need to hear back from you quite quickly about whether that ruling gives rise to the need for cross-examination.  So perhaps within a week of us ruling you let us know, not just whether but who, and - - -


MS DOUST:  Might I just - I'm sorry - - -


THE DEPUTY PRESIDENT:  That's all right.


MS DOUST:  Might I suggest, Deputy President, some facility if there's to be some objections to parts of the HSU witness statements if we have an opportunity to provide some response perhaps a week after 22 May or a relatively short timeframe.


THE DEPUTY PRESIDENT:  All right.  So that takes us to say the 22nd and the 29th, and then we have an unspecified period during which the Full Bench will consider all of that and then we will give you a fairly tight timeframe to come back with the names of the witnesses that you would seek to cross-examine.  But when we do do that, assuming we're still in if not lockdown then we're still in the circumstances where the Commission is not holding face to face hearings, do the parties have a view about - assuming that we do have to have cross-examination, obviously therefore it has to be a dialogue and it can't be done on papers, so it has to be synchronous.  We could either do that by this means which is a Skype telephone link which we have been using for appeal matters and perhaps some other members have been using for hearings, or we could use the Skype video link which is a little better for cross-examination because witnesses can be seen.  It's a little unstable, but to the extent it works it would be good and then in circumstances where it doesn't one can easily revert to the telephone.  Just in a general sense can I hear from anyone who objects to that process for the cross-examination.  There doesn't seem to be anybody who objects.  That's excellent.


Now, I can't give you a date for that because it rather depends upon the sequence of exchange of objections and our ruling, but I think it would be - we are trying to expedite this matter and get it done, so I would think we would be looking at something like early June, maybe the second week of June.  We will nominate a date.  We will obviously entertain reasonable requests on an alternative date.  We won't be able to accommodate everybody perhaps, but if it is in that second week of June then - I mean the other option which would give us I guess a timeframe to work to for the Commission as well, for the Full Bench, maybe we set a date now to try and accommodate everybody's availability in that second week of June and then it falls away if it's not needed.  How is that for an idea?


MR MILES:  That sounds appropriate.


THE DEPUTY PRESIDENT:  That means we don't get sort of a week out and then everybody's diary is full.  How would 11 June be, and I haven't conferred I must say with the other members of the Full Bench, but I am certainly available.  Sinead, am I definitely available?


THE ASSOCIATE:  Definitely.


THE DEPUTY PRESIDENT:  So what does everybody say about 11 June.  It will be as I said on Skype (indistinct) and we would strive for video and settle for telephone if we had to.  Anybody unable to do 11 June?


MR MILES:  Your Honour, I may be a little delayed that morning.  I'm just seeing an eye specialist who will undoubtedly put some drops in that will mean I am unable to focus for a few hours.


THE DEPUTY PRESIDENT:  Is that you, Mr Miles?


MR MILES:  Yes, sorry, your Honour.  That would certainly be resolved on the usual way by about 11 o'clock, so it's just if you're starting at 10, that's all.


THE DEPUTY PRESIDENT:  Why don't we go for a 12 noon commencement to give you some room to recover, and I think if we went through until 5 if we had to that's a fairly good expanse of time.  How would everybody feel about 12 until 5 on 11 June?


MS MURPHY:  That's fine.


THE DEPUTY PRESIDENT:  Then we would send out a link as we did today.  I don't know if anybody has experienced this before, but when you clicked on that link this morning you would have had, I hope you would have had the option to click on video, but perhaps you haven't, and you need to be using of course a laptop or an iPad with a camera, but as long as you click on the link and then your screen opens up and then there's options for video.  Then you click on that, and our experience has been that people without any previous use of Skype have been able just to use it.  It's a little clunky, you don't get everybody's picture, you only get the picture of the person who's talking, but that of course works for cross-examination.


So I think that would be the second best, but the best in the circumstances that we are confined.  So we will obviously issue some - I think it would be clean to issue some written directions after this and we will confer with the other members of the Full Bench about that date and obviously if it's not suitable for them I will propose another date, but if it suitable then we will deal with the objections in the way described and we may be able to put a wrap on this matter on 11 June and then a decision as soon as we can thereafter.  So is there anybody else who thinks I have missed anything, please tell me if I have.


MS MURPHY:  Deputy President, it's Katrina Murphy.  That sounds like a great way to proceed, thank you.


THE DEPUTY PRESIDENT:  All right, good.  There is something I wanted to actually chat with the HAA and ADA about, entirely separate and unrelated to this matter, but it's convenient that you're on the line, and it's more of an organisational matter than really a legal matter.  So, Ms Murphy, and perhaps Ms Irving and Ms Bradburn, would you be able to stay on the line after we terminate this call so I can have that conversation?


MS MURPHY:  Yes, absolutely.


MS IRVING:  Yes, not a problem.


THE DEPUTY PRESIDENT:  Very good.  All right, thanks everybody and we will proceed as described.


MS BROOKS:  Thank you, Deputy President.


MR MILES:  Thank you, your Honour.


MS DOUST:  Thank you.


MR WILKINSON:  Thank you, Deputy President, and good morning to everyone, thank you.


MS THOMSON:  Thank you very much.

ADJOURNED TO A DATE TO BE FIXED                                       [10.28 AM]