PN770

THE COMMISSIONER: Good morning or good afternoon. Have a seat. Ms Svendsen and Mr Robson, Mr Reid, Mr Brown, Ms Chan.

PN771

MS CHAN: Sorry, I moved.

PN772

THE COMMISSIONER: Then ‑ ‑ ‑

PN773

MS SVENDSEN: Mr Blake.

PN774

THE COMMISSIONER: ‑ ‑ ‑ Mr Blake in Melbourne. Can you hear me, Mr Blake?

PN775

MS SVENDSEN: Probably not without the mike.

PN776

THE COMMISSIONER: Can you hear me, Mr Blake?

PN777

MR BLAKE: Yes. Good afternoon, Commissioner. I can hear you.

PN778

THE COMMISSIONER: That's good. Thank you, for your correspondence. Has everyone got a copy of the summary of proposed substantive variations which was updated on 24 February? No? Luckily for you there's one I prepared earlier.

PN779

MR ROBSON: Lovely. Thank you very much.

PN780

THE COMMISSIONER: Anyone else?

PN781

MR REID: I might take a copy. Thank you.

PN782

THE COMMISSIONER: Just because they're free everyone wants one.

PN783

MR REID: Thank you.

PN784

THE COMMISSIONER: You're fine.

PN785

MR BROWN: I'll grab one as well, Commissioner. Thank you.

PN786

THE COMMISSIONER: Mr Blake, you have yours?

PN787

MR BLAKE: Yes, I do, Commissioner.

PN788

THE COMMISSIONER: All right. I just thought we'd start getting some clarity about where we're at. I'm going to start with United Voice. So that will be your correspondence and relating that back to the summary paper. So I understand that in respect of 2(a) that's S6 as per the summary; is that right?

PN789

MR ROBSON: Yes. That's correct.

PN790

THE COMMISSIONER: In respect of 2(b) I'm not sure what that relates to.

PN791

MR ROBSON: That's the telephone advice payment for mobile that we discussed last time.

PN792

THE COMMISSIONER: Is it part of ‑ ‑ ‑

PN793

MR ROBSON: Actually, no. I'm sorry, Commissioner, that's a mistake. That's not a claim. That should be withdrawn.

PN794

THE COMMISSIONER: Okay.

PN795

MR ROBSON: I'm getting myself confused with the SCHADS Award.

PN796

THE COMMISSIONER: I thought that might be the case.

PN797

MR ROBSON: Yes.

PN798

THE COMMISSIONER: So that's gone. Then 2(c) is S16?

PN799

MR ROBSON: Yes. That's correct.

PN800

THE COMMISSIONER: And 2(d) is S21; yes?

PN801

MR ROBSON: Yes. That's right as well.

PN802

THE COMMISSIONER: Turning to the HSU, Ms Svendsen. So you've confirmed you're pursuing S2, S4, S5 and S7.

PN803

MS SVENDSEN: Yes, Commissioner.

PN804

THE COMMISSIONER: So that's all clear enough. First query I had was my notes on S4 from last time around were, "No need to consider, deferred to part-time and casuals Full Bench". Of course, there's been developments on that front.

PN805

MS SVENDSEN: Yes, there have. And I actually was looking further down the list and, I mean, I've not had any time in the four-and-a-half days I've been back to consider the implications of the casual Full Bench, part-time Full Bench matter as it relates to what is identified in S4, which is that casual loading be paid in addition to weekend/afternoon shift penalties, that sort of stuff, that's – no, not afternoon shift penalty. Weekend ‑ ‑ ‑

PN806

THE COMMISSIONER: Shift allowances and weekend and public holiday rates.

PN807

MS SVENDSEN: Yes, it's actually – sorry, now, wait a minute, let me just clarify my brain.

PN808

THE COMMISSIONER: Yes.

PN809

MS SVENDSEN: Our intention is to pursue the issue of payment of casual loading in addition to weekend rates of pay and public holiday rates of pay.

PN810

THE COMMISSIONER: So it's in addition to Saturday and Sunday rates of pay.

PN811

MS SVENDSEN: And public holiday rates of pay. Because at the time I wrote this I've actually looked at it and now I feel like I don't know the answer any more because that's what's happening this week. I knew which of those had applied to for this award. I'm pretty sure it applies to both. I went back through it and the 25 per cent loading is specifically excluded by the two clauses, and therefore we'd be pursuing that to be ‑ ‑ ‑

PN812

THE COMMISSIONER: So it's not an ambiguous issue that you wanted to clear up?

PN813

MS SVENDSEN: No.

PN814

THE COMMISSIONER: There's no doubt it doesn't apply.

PN815

MS SVENDSEN: No. It actually says "instead of casual loading".

PN816

THE COMMISSIONER: Yes. Yes.

PN817

MS SVENDSEN: So, yes, we would be ‑ ‑ ‑

PN818

THE COMMISSIONER: But to what extent? To the extent that it was referred to the other Full Bench?

PN819

MS SVENDSEN: This is one that wasn't.

PN820

THE COMMISSIONER: It's not a matter of pursuing it under various Full Benches obviously, so ‑ ‑ ‑

PN821

MS SVENDSEN: No. This actually wasn't. I mean, it noted that it was referred to the casual Full Bench because it was casual loading, and I have a feeling that it was intended to be, but some of the matters in the awards that were referred off to Full Benches in the early proceedings, because that was the casual Full Bench, didn't actually get picked up by the casual Full Bench to be dealt with.

PN822

THE COMMISSIONER: Sure.

PN823

MS SVENDSEN: I think that this falls into that category, that there was a discussion in other awards that we also cover about going to that Full Bench but it's never been discussed, never been scheduled, never had any directions and the issue has not been dealt with by that Full Bench. Whether there was any intention for that Full Bench to reconvene and deal with those additional matters that were listed I have no idea. I'm assuming not and I'm just running it as an award matter.

PN824

THE COMMISSIONER: Yes, okay. So assuming that, yes, that Full Bench is not going to deal with it ‑ ‑ ‑

PN825

MS SVENDSEN: Yes.

PN826

THE COMMISSIONER: ‑ ‑ ‑ then you'll press it here.

PN827

MS SVENDSEN: Yes.

PN828

THE COMMISSIONER: Okay. That's clear enough. Then you've ruled out in your paragraph S8, S13, S14, S18 and S20.

PN829

MS SVENDSEN: Yes.

PN830

THE COMMISSIONER: So then I just wanted to go through what's the status of – there's five that I just wanted to query; five claims. So I'll start with S10, rostering.

PN831

MS SVENDSEN: That was previously withdrawn.

PN832

THE COMMISSIONER: Was it?

PN833

MS SVENDSEN: Yes. Mind you, I have to be honest and say I'm not sure whether it was withdrawn in these proceedings or in something similar.

PN834

THE COMMISSIONER: Okay. Yes. I've got no record of it being withdrawn here, so ‑ ‑ ‑

PN835

MS SVENDSEN: But it is, and we aren't pursuing that.

PN836

THE COMMISSIONER: Is S11 and S12 the same?

PN837

MS SVENDSEN: I don't know how I missed these as I went through the other day.

PN838

THE COMMISSIONER: That's why I'm doing this exercise, just to be sure ‑ ‑ ‑

PN839

MS SVENDSEN: That's exactly right. Thank you very much.

PN840

THE COMMISSIONER: ‑ ‑ ‑ that they don't come back in later.

PN841

MS SVENDSEN: We won't be pursuing S11 at this stage and this was the one I was really meaning in relation to the minimum engagement provisions, S12. I note that the Bench indicated in the part-time casual matter that minimum engagements might be appropriate in specific awards dependent on a few matters. I've had absolutely no chance to look at that, whether we would pursue it. If we did it would not be for four hours, I think, but it is ‑ ‑ ‑

PN842

THE COMMISSIONER: It would be for three?

PN843

MS SVENDSEN: Yes. I really can't answer that question given that I haven't had a chance to analyse that Full Bench decision and consider it.

PN844

THE COMMISSIONER: So S12 is in the maybe category?

PN845

MS SVENDSEN: Yes, it is.

PN846

THE COMMISSIONER: Just bear with me. I've got a note next to it from last time, "See AiG subs 16 January '17". Yes, so the note in the AiG summary was:

PN847

To the extent that the HSU's claim relates to casual and part-time employees, this will be determined by the casual and part-time common issues Full Bench. The ACTU has sought the introduction of a four year minimum engagement for all such employees in the very vast majority of awards including the Aged Care Award.

PN848

MS SVENDSEN: Yes. It was. But the ‑ ‑ ‑

PN849

THE COMMISSIONER: Then it's dealt with, isn't it?

PN850

MS SVENDSEN: No, but the Bench actually indicated although, as I say, I'm saying this very brief, yes, reading.

PN851

THE COMMISSIONER: You've got to get across it. Yes. Yes.

PN852

MS SVENDSEN: That it might be appropriate in individual awards to consider minimum engagements. So I actually want to look at that only for that reason. I understand that it is re-visiting the same issue without any doubt, but it's for that purpose that I'm actually looking at it.

PN853

THE COMMISSIONER: So the question is whether the Full Bench opened the door for individual applications.

PN854

MS SVENDSEN: Yes. Yes.

PN855

THE COMMISSIONER: And sort of made some general pronouncement about maybe it's appropriate.

PN856

MS SVENDSEN: Yes.

PN857

THE COMMISSIONER: It would depend on the circumstances. So when do you expect to be able to make a landing on that?

PN858

MS SVENDSEN: Give me a couple of weeks. Just that I've got a public holiday here in the next week. No, the week after. Monday week.

PN859

MR REID: It's the 25th. Yes.

PN860

THE COMMISSIONER: And S17?

PN861

MS REID: That's actually the same as S4.

PN862

THE COMMISSIONER: It is, isn't it?

PN863

MS SVENDSEN: Yes.

PN864

THE COMMISSIONER: Yes. So for the purposes of this I'll say that that's withdrawn.

PN865

MS SVENDSEN: Yes.

PN866

THE COMMISSIONER: Dealt with under S4.

PN867

MS SVENDSEN: Yes. S19, which we didn't make any comment on ‑ ‑ ‑

PN868

THE COMMISSIONER: Yes.

PN869

MS SVENDSEN: ‑ ‑ ‑ but I just need to kind of check what ACSA is now saying in relation to that it was an agreed position in relation to the change to ceremonial leave, which is varying Aboriginal to Aboriginal and Torres Strait Islanders. I'm not hundred per cent sure, David, if you're actually saying that's opposed now?

PN870

MR REID: No.

PN871

MS SVENDSEN: Good. All right. Then I ‑ ‑ ‑

PN872

THE COMMISSIONER: No, to the contrary I thought. Yes.

PN873

MR REID: Yes.

PN874

MS SVENDSEN: Yes.

PN875

THE COMMISSIONER: Yes. So that's an agreed ‑ ‑ ‑

PN876

MR REID: That's an agreed position.

PN877

THE COMMISSIONER: Yes. So it might be the only agreed position.

PN878

MS SVENDSEN: There are actually some I think that aren't listed in the substantive issues that we kind of agreed on, aren't there?

PN879

MR REID: And we made some changes in the exposure draft.

PN880

THE COMMISSIONER: I know. I'm just being facetious.

PN881

MS SVENDSEN: Facetious.

PN882

THE COMMISSIONER: So who's carrying that? I mean, someone needs to put in the proposed variation. Who is going to draft the proposed variation?

PN883

MS SVENDSEN: It's actually in the exposure draft.

PN884

THE COMMISSIONER: Is it? That's good. Excellent work. Mr Blake, any comments from you about any of that before I go to the employers?

PN885

MR BLAKE: In relation to the substantive provision document?

PN886

THE COMMISSIONER: Just in terms of the claims; whether you've got a position of ‑ ‑ ‑

PN887

MR BLAKE: Sure.

PN888

THE COMMISSIONER: ‑ ‑ ‑ supporting particular claims or anything really.

PN889

MR BLAKE: Yes, Commissioner. In ‑ ‑ ‑

PN890

THE COMMISSIONER: If you could just bring your mike close to you.

PN891

MR BLAKE: How is that?

PN892

THE COMMISSIONER: That's much better. Yes.

PN893

MR BLAKE: Commissioner, I've been provided with some notes by Mr McCarthy about what our principal position in relation to the substantive variations document. I'm happy to go through that very briefly to let you know what our thinking is at the moment.

PN894

THE COMMISSIONER: Yes.

PN895

MR BLAKE: In relation to S1, the telephone advice payment; my understanding is we're still awaiting a proposed variation to be provided by the aged care employers. We currently are opposed to the introduction of that provision into the Aged Care Award, but we are open to have some discussions about the matter once we see the draft determination. To some extent, Commissioner, it will be dependent on whether the on-call allowance, which is a claim by the HSU, is included in to the award ‑ ‑ ‑

PN896

THE COMMISSIONER: Yes.

PN897

MR BLAKE: ‑ ‑ ‑ and that's something that we'd support. The other principal matters are S9, rosters. We're opposed to the changes as sought by the aged care employers as we understand them, but we await, once again, a draft determination. And in relation to S21, which is a proposal by United Voice to amend the existing classification structure for personal care workers we support that proposal.

PN898

THE COMMISSIONER: Yes.

PN899

MR BLAKE: Commissioner, that's in broad terms our position at the present time.

PN900

THE COMMISSIONER: Excellent. Thanks, Mr Blake. Just looking for the employers' document. So just confirming ACSA and LASA still pursuing the telephone advice payment, and have you drafted a clause? Is there any proposed clause that ‑ ‑ ‑

PN901

MR REID: No. As of today, no.

PN902

THE COMMISSIONER: No.

PN903

MR REID: No, Commissioner, but we'll have to file ‑ ‑ ‑

PN904

THE COMMISSIONER: In accordance with the directions that stand.

PN905

MR REID: Directions, yes.

PN906

THE COMMISSIONER: S5; now that's the HSU claim. How might I understand the position on that?

PN907

MS SVENDSEN: You mean in relation to what we've indicated?

PN908

THE COMMISSIONER: No, I'm asking the – I understand your claim. You want a phone allowance for employees who are required to use their phone for work purposes including but not limited to on-call. The note from ACSA says, "We may pursue this issue as it applies to on-recall/recall allowances". I just don't know what that means.

PN909

MR BROWN: I think that was in relation to telephone advice payment, Commissioner; how we've worded that in or how we incorporate the use of the phone and someone actually being on-call.

PN910

THE COMMISSIONER: That's how you envisage your claim.

PN911

MR BROWN: Potentially.

PN912

THE COMMISSIONER: So there's an overlap; is that what you're saying?

PN913

MR BROWN: Potentially.

PN914

THE COMMISSIONER: Between S1 and S5?

PN915

MR BROWN: Yes. So from my understanding is that when we talk about on-call, there's two types of on-call; one sort of holding yourself in readiness to come back in to work.

PN916

THE COMMISSIONER: Yes.

PN917

MR BROWN: Then on-call as in physically able to be reached by phone.

PN918

THE COMMISSIONER: And give advice over the phone?

PN919

MR BROWN: Correct.

PN920

MR REID: Yes.

PN921

THE COMMISSIONER: Yes. See my recollection is, but I might be wrong about this, and probably am, but I thought that you were mainly interested in - the conversation we had last time the employers were mainly interested in a mechanism for payment for people to be on-call, probably in a very literal sense, in the sense that if they weren't going to go anywhere they were simply going to be able to be contacted to say whatever it is that they needed to be asked; advice or so on.

PN922

MR REID: That's correct, Commissioner. Yes. Our understanding is.

PN923

THE COMMISSIONER: That's what S1 was about?

PN924

MR REID: Yes.

PN925

THE COMMISSIONER: Yes.

PN926

MR REID: But I suppose the confusion is, you know, on-call, you know, whether that means physically.

PN927

THE COMMISSIONER: Typically it means that in most – well, it's not much to do with the Nurses' Award, it means you can be contacted to come back, so you've got to stay around. You can't go away very far, and have to be in a position to turn up for work. But that's not – so that's where I'm a bit confused how that intersects with S5.

PN928

MR ROBSON: So we talked about inclusion of a phone allowance, Commissioner. So when you say on-call/recall allowance, you mean as in hold yourself in readiness and come back in to work if required?

PN929

MS SVENDSEN: Are you asking me?

PN930

MR ROBSON: Yes.

PN931

THE COMMISSIONER: Only because you're the HSU rep here. It's your claim. Other than that no other reason.

PN932

MS SVENDSEN: I believe return to work is being called on the phone as well to answer calls and to work. I mean, undertaking work remotely by phone or email is still work.

PN933

THE COMMISSIONER: Sure, okay.

PN934

MS SVENDSEN: If there's a requirement to be available to do that you still aren't free.

PN935

MS CHAN: But can I confirm whether potentially similar to what occurred in SCHADS if HSU may be open to considering the operation of using both a telephone work or a remote response allowance as we called it in SCHADS, and I guess differentiating that from on-call/recall as in the physical recall.

PN936

MS SVENDSEN: There's a possibility. I mean, we'd certainly enter into a discussion about it.

PN937

MS CHAN: Sure.

PN938

MS SVENDSEN: Let's be clear about that.

PN939

MS CHAN: Yes.

PN940

THE COMMISSIONER: Yes.

PN941

MS CHAN: So I think that's what potentially – that's what I mean.

PN942

MR BROWN: That's clarified quite a few allowances, Commissioner all kind of rolled up into the one claim.

PN943

THE COMMISSIONER: Yes.

PN944

MS SVENDSEN: Partly that's because, you know, initially – well, firstly this award doesn't actually have an on-call allowance. It doesn't have one.

PN945

THE COMMISSIONER: Yes. Yes.

PN946

MS SVENDSEN: Secondly, things have moved substantially in terms of everyone's position since 2014 when the initial claims were kind of outlined.

PN947

THE COMMISSIONER: They're just dropping like flies. It's a stamina – it's a marathon.

PN948

MS SVENDSEN: It's hard to – I know, absolutely. You have to go – and you kind of go to write something and then you think, "I've got no idea what I wrote". It was two years ago, and it's too close to three other awards, and you have to go right back to the beginning to even figure out what you've been talking about sometimes.

PN949

THE COMMISSIONER: Sure. I get the point. So there's a potential intersect between S5 and S1.

PN950

MR REID: S1, yes.

PN951

THE COMMISSIONER: Yes.

PN952

MR REID: As Margaret articulated it, Commissioner, is how we would probably want to press.

PN953

THE COMMISSIONER: Yes. You might be open to that, Ms Svendsen. Thanks for that. Just while I'm on that though, Mr Blake, S2; do the nurses have a position on that?

PN954

MR BLAKE: We support the inclusion of an on-call allowance in to the award, Commissioner.

PN955

THE COMMISSIONER: Consistent with the Nurses' Award type of provision?

PN956

MR BLAKE: Yes.

PN957

THE COMMISSIONER: Yes.

PN958

MR BLAKE: I reserve my comments on the amounts that would be payable under the on-call provision, but I certainly support the introduction of the clause and how it would operate ‑ ‑ ‑

PN959

THE COMMISSIONER: Yes.

PN960

MR BLAKE: ‑ ‑ ‑ in the Aged Care Award as being consistent with the Nurses Award. Commissioner, whilst S5 in relation to the phone allowance for employees required to use their phone for work purposes is a matter that has been raised by the HSU, can I just note that it seems to our union it would be very difficult to have such a provision in the award in the absence of an on-call arrangement otherwise it suggests that employees would be required to carry their phone at all times in respect of a requirement to be contactable at all times, and I think this would be inconsistent with the approach that where you are required to be available to be contacted out of your normal rostered hours there's some on-call arrangement in place that allows that to happen.

PN961

THE COMMISSIONER: Yes. Yes. Yes.

PN962

MR BLAKE: So I just note that it seems to me potentially S1, S2 and part of S5 are linked to some extent.

PN963

THE COMMISSIONER: Yes. Yes, I see.

PN964

MR BLAKE: Thank you.

PN965

THE COMMISSIONER: Yes. Your concern would be to the extent that the payment of an allowance to offset the cost of a person buying their own phone or maintaining it then invites general right of the employer to contact them in the absence of an on-call arrangement. That's the concern?

PN966

MR BLAKE: That's correct, Commissioner.

PN967

THE COMMISSIONER: Yes.

PN968

MR BLAKE: It's in recognition that the employer wishes to contact them from time to time.

PN969

THE COMMISSIONER: Yes.

PN970

MR BLAKE: That's normally dealt with through an on-call arrangement.

PN971

THE COMMISSIONER: Yes. Yes, I understand. Thank you. So where are we? S9, rosters you're still pursuing.

PN972

MR REID: Yes. We'll have a clause pursuant to that.

PN973

THE COMMISSIONER: So just out of interest is this - just let me see where that's – that's set out in your submissions, 1 March?

PN974

MR REID: Yes. That's correct, Commissioner. I think it refers to clause 22.6 but it's now 14.4.

PN975

THE COMMISSIONER: For the part-time employment claim that was originally there that's gone, is it?

PN976

MR REID: Yes, I believe so.

PN977

MS SVENDSEN: I believe it should be. I believe it is.

PN978

MR REID: Yes.

PN979

THE COMMISSIONER: Yes.

PN980

MR REID: Yes, that's correct.

PN981

THE COMMISSIONER: So, yes, I'll wait to see what happens with the variation, but the interest will be how does that intersect with particularly part-timers and the requirement currently that they have to agree their hours on commencement, and it also talks about, if I recall, a pattern of work, and there's been many a dispute about the intersection between that and the roster provision with a Full Bench recently seeking to clear that up about which one prevails over the other. But I'm just raising that. I can't quite recall the name of the Full Bench decision. One of the parties at the table might recall it. I think Hatcher VP might have been the head of the Bench. It was an appeal and I will locate it when we have a – well, we might have a break, but in essence the way I read the decision it's indicating that the roster provision, and, look, I apologise, it might've actually been in respect of the SCHADS Award but the provisions are pretty much the same, but the roster provisions can't be used to trump, if you like, that requirement to have an agreed pattern of work. That's a very truncated version of what that dealt with, but they spent some time constructing on that point of construction.

PN982

MS SVENDSEN: I think it is the SCHADS Award, Commissioner. Off the top of my head it was a decision that inserted the provisions in the SCHADS Award arising out of the 2012 variation application by ASU.

PN983

MR ROBSON: No, that's a very, very brief decision.

PN984

MS CHAN: No, that's ‑ ‑ ‑

PN985

MR ROBSON: That's, like, two words.

PN986

THE COMMISSIONER: No, it's an appeal. It was an appeal decision. It must have been on a 739 on a construction point and somehow the award ‑ ‑ ‑

PN987

MS SVENDSEN: Yes.

PN988

THE COMMISSIONER: I'll find it. Anyway I'm only raising it because it will be the first point it's crashed into, I'd imagine.

PN989

MR REID: Yes.

PN990

THE COMMISSIONER: In terms of anything you want to do in that space to the extent that it – because all I've got is your three lines there, and your note, and I read it as a broader right of the employer to flex rosters, but you need to be alive to at least that particular issue, and how does that intersect with the existing provisions. Okay?

PN991

MR REID: Thank you, Commissioner.

PN992

THE COMMISSIONER: You oppose S10 rostering, but that's previously withdrawn. We got that clear today.

PN993

MR REID: Right. So that's ‑ ‑ ‑

PN994

THE COMMISSIONER: Your opposition has been so powerful that it's just vanished. S13 and S18 HSU have withdrawn which leaves you with vigorously opposing United Voice on S21 which is expressly supported by the ANMF, and they the HSU, I take it?

PN995

MS SVENDSEN: Yes, Commissioner.

PN996

THE COMMISSIONER: Ceremonial leave we've dealt with. Yes, and you note that you weren't pursuing that because it's agreed.

PN997

MS SVENDSEN: Yes.

PN998

THE COMMISSIONER: Yes. That's all clear enough. We've got some draft clauses from Ms Svendsen for two of the provisions. We can have a talk about those. When we put this conference down and scheduled it I think, from recollection, we were envisaging that we might have a few more draft variations to actually talk about, but at this stage we don't.

PN999

MR ROBSON: I actually have. Apologies for not sending it before, and I only got them ticked off before I came down here, but I do have some things that I can give the other parties for discussion but I think based on the comments from the last conference it may be a little moot but ‑ ‑ ‑

PN1000

THE COMMISSIONER: In terms of?

PN1001

MR ROBSON: Draft clauses.

PN1002

THE COMMISSIONER: Why would it be moot?

PN1003

MR ROBSON: I think the opposition to our claims was quite overwhelming and solid.

PN1004

THE COMMISSIONER: Don't let that dissuade you. You're entitled to make your claim and ‑ ‑ ‑

PN1005

MR ROBSON: It's not going to stop us making our claim, but it may make discussion ‑ ‑ ‑

PN1006

MS SVENDSEN: Discussion moot.

PN1007

THE COMMISSIONER: So have you got this electronically or we can get it down to Mr Blake?

PN1008

MR ROBSON: No, I don't have it on me electronically, I'm sorry.

PN1009

THE COMMISSIONER: Mr Blake, have you got a – well, what we might do is scan it, I'll get it down to you, or you're happy just to ‑ ‑ ‑

PN1010

MR BLAKE: I'm happy just to listen to the comments of the United Voice and the employers.

PN1011

THE COMMISSIONER: Conversation. Yes.

PN1012

MR BLAKE: If I can, please.

PN1013

THE COMMISSIONER: Very well. Yes. Just yell out if there's anything you want clarified. Let's start with this. So 18.3(a) is the same as the exposure draft but has an additional (iii) which reads:

PN1014

An adequate number of uniforms and has a number of uniforms that allows an employee to work their agreed hours of work in a clean uniform without having to launder work uniforms more than once a week.

PN1015

MR ROBSON: Yes.

PN1016

THE COMMISSIONER: That's the change.

PN1017

MR ROBSON: The issue here being they might not have been provided with enough uniforms and being expected to launder them multiple times in a week which is, you know, quite expensive as opposed to being provided with enough uniforms to get through a normal pattern of work.

PN1018

THE COMMISSIONER: Sure.

PN1019

MR ROBSON: Yes.

PN1020

MR REID: As I recall, Commissioner, the last time we convened there was a considerable debate around it. The meaning of the word "adequate" wasn't ‑ ‑ ‑

PN1021

THE COMMISSIONER: Yes. We've already got the word "adequate" in the exposure draft.

PN1022

MR REID: Yes.

PN1023

MS SVENDSEN: It kind of clarifies it by saying not having to launder through the week.

PN1024

THE COMMISSIONER: Although ‑ ‑ ‑

PN1025

MS SVENDSEN: Unless you expect everyone to wear the same uniform every day for five days.

PN1026

THE COMMISSIONER: But won't there be disputes about that? Isn't – what's that?

PN1027

MS SVENDSEN: I would have thought that disputation would be fairly low given that it defines not having to launder, and if you're working four shifts a week, then four uniforms is clearly the provision that's being requested, and the only caveat might be to that, I'll be fair and say that, you know, if you've got a pair of pants you're not going to have five pairs of pants. Probably you're going to have maybe two and clean tops, but, you know, clearly clean shirts are going to be worn every week. I mean, every day you go to work, so I wouldn't have thought that would have been terribly difficult to deal with. The current provision just says "an adequate number of uniforms" without any information what adequate might mean.

PN1028

THE COMMISSIONER: Yes, it does.

PN1029

MS SVENDSEN: This actually clarifies the word adequate in a way that ‑ ‑ ‑

PN1030

THE COMMISSIONER: It says "appropriate to the occupation".

PN1031

MS SVENDSEN: Yes.

PN1032

THE COMMISSIONER: Which again would be subject to some interpretation, but I'm not sure that ‑ ‑ ‑

PN1033

MS SVENDSEN: Not referring to the current dispute about suits in security staff in Sydney are we, Commissioner?

PN1034

THE COMMISSIONER: No. No, I wouldn't dare do that. So, yes, I'm just not sure that it – again, just preliminary review, but I'm not sure that the extra words do any – I'm not sure about the extra work that they do.

PN1035

MR ROBSON: I think it explains what adequate means. I think the problem with just the word "adequate" is that it leaves it up to say, you know, the interpretative power of the reader to make a decision about what adequate means whereas I think this provides a good guide to it. I think it's flexible enough to accommodate different uniforms and different workplace practices. But really if someone – like, I think this is what an interpretation of what an adequate number of uniforms would be without being too specific about the workplace, and I think Leigh is right; it would mean, you know, you can leave your pants a little dirtier than you wear your top. But if you're presenting as a professional person with a clean shirt every day that is going to get dirty because it is a caring profession and it's just the nature of the work. This shows a person who reads the clause a very quick way or it quickly helps them to understand what adequate means.

PN1036

MS CHAN: But is it not slightly inconsistent with the second dot point in (i) which is that so far as we're talking about 18.3(a)(i) and (ii) I guess that the obligation is actually on the employer to launder the uniform in that circumstance, and that it's only when we move down further ‑ ‑ ‑

PN1037

MR ROBSON: Yes.

PN1038

MS CHAN: ‑ ‑ ‑ that we start talking about a uniform allowance, et cetera.

PN1039

MR ROBSON: Yes.

PN1040

MS CHAN: So I'm not sure if that's necessarily necessary in circumstances where the employer already is providing an allowance. I mean, I ‑ ‑ ‑

PN1041

MS SVENDSEN: It's an alternative.

PN1042

MS CHAN: ‑ ‑ ‑ appreciate where my friend is coming from.

PN1043

MS SVENDSEN: Yes, absolutely. I mean, the alternative – the clause then goes on, as we know, to provide the alternative that if the uniform isn't supplied and/or laundered then a uniform allowance and a laundry allowance applies and you're right and, you know, as a bounce point when I was working full-time and my uniforms were laundered but they were provided for me, and it wasn't in the day when you wore scrubs, I had eight uniforms because they didn't launder them as frequently as every second day I was at work, and I was working five days a week. But I could also be working 10 days straight.

PN1044

MR ROBSON: So, like, I think 18.3(a) really establishes what the entitlement is that the laundry allowance and the uniform allowance deviate from – and I think really it's a definition of adequate for the purposes of this clause, and that seems to be the appropriate place to put it.

PN1045

MS CHAN: Just a bit concerned about the once a week because there may be organisations who may, for instance, launder more than once a week, in which case ‑ ‑ ‑

PN1046

MR ROBSON: It will be more than adequate.

PN1047

MS SVENDSEN: Which is why it's not, you know, full-time means five uniforms or full-time means – so I think there are plenty of – I mean, the problem arises not where the employer is laundering the uniforms.

PN1048

THE COMMISSIONER: I mean, the exposure draft has amended what was there which was just free of cost. There was nothing about appropriate to the occupation.

PN1049

MS SVENDSEN: Yes. But we must have put that in another award. Didn't we have a discussion about it in this point with this continuous ‑ ‑ ‑

PN1050

MR ROBSON: No, I don't think so.

PN1051

THE COMMISSIONER: You need to have a look at the history. I will be. So how did we end up with that because there's already been an agreement which has probably come out of the technical and drafting?

PN1052

MR ROBSON: Yes.

PN1053

MS SVENDSEN: It's come during it anyway. Yes.

PN1054

THE COMMISSIONER: Yes. Yes.

PN1055

MS SVENDSEN: I think we actually discussed it in more than one award again.

PN1056

THE COMMISSIONER: Sure. And it's found its way in to others. Yes. So ‑ ‑ ‑

PN1057

MS SVENDSEN: The other thing is we, you know, we've, as a group, participated in more than one award, so then, you know, the discussion flows through into the next conference.

PN1058

THE COMMISSIONER: Yes. So I'm just wondering whether there was a level of consensus on this. Maybe not in this place and in respect of this award, but perhaps another, and that's again another issue; if you're going to disturb it here it might have implications elsewhere.

PN1059

MR ROBSON: Yes, of course.

PN1060

THE COMMISSIONER: So can we just leave it on – so employers are opposed to that, as I understand it. ANMF have you got a view, Mr Blake, on this one or agnostic?

PN1061

MR BLAKE: No, we have no view on this at the moment, Commissioner. Thank you.

PN1062

THE COMMISSIONER: Thanks. So I'd urge you just to have a think about – I want you to have a look at what's occurred elsewhere and whether ‑ ‑ ‑

PN1063

MR ROBSON: Of course.

PN1064

THE COMMISSIONER: ‑ ‑ ‑ in the context of that you still want to pursue it. But obviously up to you if you do. So sleepovers; is this a rewrite or can you take us to what really has changed?

PN1065

MR ROBSON: It's not a complete rewrite but it is a partial one. Apologies, I'm not quite as up to speed on this one again as I was before. So, look, I think some of the bigger changes; 15.3(a) changing the span from not less than eight and not more than 10 will be a continuous span of eight hours. That's a significant change. A clear statement that:

PN1066

An employee may refuse to perform work other than in an emergency. For the purposes of this clause an emergency is any unplanned occurrence or event requiring prompt action.

PN1067

15.4, change in the way people are paid for work; to prescribe that it will be paid ‑ ‑ ‑

PN1068

THE COMMISSIONER: Sorry, isn't that the same? What's different about that?

PN1069

MR ROBSON: Rather than having different ways of paying full-time, part-time and casual employees, a statement that everyone will be paid overtime with the minimum payment of one hour.

PN1070

THE COMMISSIONER: No, no, the emergency bit. What are you saying is different there?

PN1071

MR ROBSON: "An employee may refuse to perform" is different words from "no work other than that of an emergency nature will be required to be performed during a sleepover". I don't think a legal change there is significant but I think it changes the way it sounds, and I think it would give a person reading that a sense that they're able to refuse to do work rather than the passive, "you're not to be required". So that ‑ ‑ ‑

PN1072

THE COMMISSIONER: So it's the same entitlement, you've just re-ordered it?

PN1073

MR ROBSON: Re-arranged how it's spelt out. Talking to the industrial officers from our branches I think one of the problems I think with a lot of the award is when things are expressed passively, "no work other than that of an emergency nature will be required to be performed during any sleepover" doesn't read to the employees, or the person – the employee reading the award without advice that this is something that they can rely on, and it's apparently something that in discussions with employers sometimes gets missed. You know, employees say, "I didn't know that I was able to refuse". You know, I did look at the award, which people do, expressing it as a more direct right to refuse may assist.

PN1074

Then 15.4(a) again a significant rewrite of the payment for time worked during a sleepover rather than different arrangements for pay for full-time, part-time employees and casuals. A prescription that all time worked during a sleepover will be paid at the overtime rate. That's as it is for full-time employees. For the part-time employees it's a small change. I suppose not a small change, but it's a change from the current arrangement which was basically that they'll be paid overtime in excess of 11 hours – sorry, in the total number of hours on any day by a full-time employee are in excess of 11 hours where there are no full-time employees, or in excess of 38 hours in one week or in excess of 76 hours in a fortnight. And, again, a change for casual employees to make sure that they're paid overtime where presently they wouldn't be paid until they'd worked in excess of 38 hours in a fortnight.

PN1075

I think the problem here, and especially for casual employees, is that this is time away from a person's home which is not treated as working time. It is, you know, an imposition on people's sleep patterns. It does need to be remunerated appropriately.

PN1076

THE COMMISSIONER: What's your view on that?

PN1077

MS CHAN: That's quite a substantial change. I would imagine that the employers would be vigorously opposed.

PN1078

THE COMMISSIONER: Agreed.

PN1079

MR REID: Agreed.

PN1080

THE COMMISSIONER: Yes. So keep going.

PN1081

MR ROBSON: No changes until we get to – and then the rest of the clause, I think, continues as is in the exposure draft. Then our final claim is the change to classification for aged care employee level 4.

PN1082

THE COMMISSIONER: This says you get paid whether you're using it or not.

PN1083

MR ROBSON: Eighty per cent of people working in the industry have one.

PN1084

MS SVENDSEN: Employers won't, in terms of what peak bodies say and about their own members at forums like National Aged Care Alliance and elsewhere then they won't actually consider people without at least Cert III, often Cert IV, but then on the job they say they're not required to have it, so therefore it's not paid.

PN1085

MR REID: I think we revert to - the employers revert to it's you pay for skills required not acquired.

PN1086

MR ROBSON: We say that this skill is being required but, you know, I suppose this has been used to potentially acquire from the workers without paying them for it, and this is a problem in the industry.

PN1087

MS SVENDSEN: Like saying you're employing a registered nurse but not paying them for the qualification.

PN1088

MR ROBSON: Or rather you only employ someone as a registered nurse but then not pay them for a qualification.

PN1089

MR REID: If they're not performing the work of a registered nurse? I mean ‑ ‑ ‑

PN1090

MS SVENDSEN: Don't let's get into that argument because then you actually get into a registration argument with AHPRA.

PN1091

MR REID: Yes.

PN1092

MS SVENDSEN: Because they're still required to meet their scope of practice requirements and their legal requirements and we will vigorously pursue wherever we find a registered practitioner being employed as a personal care worker without qualifications.

PN1093

MR BLAKE: Commissioner, could I just ‑ ‑ ‑

PN1094

THE COMMISSIONER: Yes. Yes, Mr Blake?

PN1095

MR BLAKE: I didn't hear some of what was said, but I understand you're talking about the proposal around the appropriate rate for an aged care employee with Cert III.

PN1096

THE COMMISSIONER: Yes.

PN1097

MR BLAKE: Yes. Commissioner, my recollection is that this was an issue dealt with fairly comprehensively by a Full Bench in around 2012. It might've been the 2012 review in the hospitality industry. Commissioner, I'm happy to go and pull out the decision and circulate it.

PN1098

THE COMMISSIONER: Yes.

PN1099

MR BLAKE: But essentially I think the Full Bench held that in the modern award wages structures across all modern awards that a Cert III rate was the C10 rate, and that aligned with the relevant classification structures whether required by the employee to have a Cert III or not. I am sort of going just on my memory at the moment, Commissioner, but I understand that that was a very similar situation to what is being discussed here today, and it may provide some clarity to the parties as to what the approach of the Commission has been.

PN1100

THE COMMISSIONER: Yes. At least in that case.

PN1101

MR BLAKE: Yes.

PN1102

THE COMMISSIONER: So this is about, as I understand it, employers say if we – well, if you've advertised the job that you held yourselves out as needing a Cert III then they'll pay it, and I don't think there's any controversy about the C10 rate. That's fine. But it is about the notion that they say that they may want to engage someone to do a job for which they don't require the Cert III, the person has a Cert III, they don't see that they need to pay for it. Is that ‑ ‑ ‑

PN1103

MR BLAKE: No, Commissioner, that view is irrelevant quite frankly. If the person holds the Cert III and was employed as a personal care worker under the Aged Care Award they're entitled to be paid at a particular level. Whether the employer requires it or not I think is simply irrelevant.

PN1104

MS CHAN: I think that's the issue and ‑ ‑ ‑

PN1105

MS SVENDSEN: Margaret, I don't think Nick will be able to hear you.

PN1106

MS CHAN: Sorry. But I'm not quite sure that that's the issue at the moment, because the current award says that's only where they're required to hold the qualifications. That's kind of the whole debate at the moment. We're wanting to change the words to where somebody actually holds that particular qualification. I appreciate that you don't have obviously the draft that Michael has prepared and circulated around the room in Sydney.

PN1107

MR ROBSON: These are just pulled from our submissions from 2015.

PN1108

MS CHAN: I thought so.

PN1109

MR ROBSON: They've been available for two years. But, look, I think the argument continues. Like, the majority of workers in the industry have them. You know, it's a soft requirement. It's an unspoken requirement of getting a job as an aged care worker. It is something that people joke about, you know, when they have delegates meetings, that we all have the Cert III, you couldn't get a job without one, and yet they continued to be paid at the level below Cert IV. It's something that's, you know, I think fairly significant and there's a problem in the award that needs to be corrected. I don't think this is a difference between a skills acquired and skills required issue. These people are applying these skills in daily work. I agree that the difference between a – like, the registered nurse issue is probably not the best metaphor but I think as all metaphors go it is a fairly good one.

PN1110

This is something that people are using in their daily work and the differences in duties for a personal care worker between level IV and level III aren't substantial. It is basically having a Certificate III. I'm actually not sure there's that much of an argument beyond that. Yes. Like, they're identical classifications; they're common classifications. The majority of people in the workforce have a Certificate III. You know, to be honest, with that level of – that many people holding the classification, you know, there's much less work for aged care employee level III to do, and to say that it's about skills required as opposed to skills acquired seems a little – I'm not sure quite what the word I could say, but there's something problematic about that argument.

PN1111

THE COMMISSIONER: How significant is this in terms of the impact if it was agreed, or it was granted, and it's the ‑ ‑ ‑

PN1112

MR BROWN: I'd say it would be significant, Commissioner, because you'd have people who hold the certificate and may not actually be required to use it all of a sudden be re-classified at a level above what they're currently ‑ ‑ ‑

PN1113

THE COMMISSIONER: Yes. I know what the theoretical problem is. I'm asking about the practical proposition. So if, as a matter of practicality, there's hardly any of those people, so to a certain extent what the unions are putting is, well, you know, they're doing the work anyway, if I hear what they're saying correctly, it will have limited impact to the extent that you'll be engaging people with Cert III to do Cert III work generally, whether it's explicitly put or not. So for some people no doubt they would have been assessed and have been classified below, but have you got any sense out in the real world what the impact might be? It's okay if you don't.

PN1114

MR BROWN: I don't know, Commissioner.

PN1115

THE COMMISSIONER: But that's one of the things to look at I think. You know, sometimes these things they may – you're right in a theoretical context. It appears significant and in a practical sense it may not be. I don't know. Or you might come back and say it's even worse than we thought. I don't know. But you know what I'm saying?

PN1116

MR BROWN: Yes.

PN1117

THE COMMISSIONER: It might be ‑ ‑ ‑

PN1118

MR BROWN: Yes, we'd have to go back to our members.

PN1119

THE COMMISSIONER: You've got to go back to members, I think, and ask, you know, well – because you might find that overwhelmingly they say, "Well, look, yes, well, that's right, generally we're paying at these rates in any case", or they'll pass out and, you know, writhe around on the ground and say, "We'll no longer be financial members of your organisation if you lose this case", I don't know, but ‑ ‑ ‑

PN1120

MR BROWN: In any case, Commissioner, the way aged care is going there won't be any money at all, have to sell up.

PN1121

MS SVENDSEN: I don't think you're doing as badly as NDIS, let's be truthful.

PN1122

THE COMMISSIONER: Yes. Thanks for that. I've got some drafting from you, Ms Svendsen. You've been up all night doing this?

PN1123

MS SVENDSEN: Yes, cut and paste is really hard. I was jet-lagged.

PN1124

THE COMMISSIONER: Yes.

PN1125

MS SVENDSEN: Not jet-lagged, sleep deprived.

PN1126

THE COMMISSIONER: So on-call.

PN1127

MS SVENDSEN: I actually used the nurses provisions principally because it is an award that applies in the sector, rather than drafting a completely different clause.

PN1128

THE COMMISSIONER: Yes. So are these the current rates post the 2017 ‑ ‑ ‑

PN1129

MS SVENDSEN: No probably not actually which might be what Nick has picked up. I can't remember whether I took it from the current award. No, they wouldn't because I've taken it from the exposure draft. So, yes, the rates wouldn't be the current rates.

PN1130

THE COMMISSIONER: Yes. That was generally the nurses provision with what changes?

PN1131

MS SVENDSEN: There aren't any changes in this one.

PN1132

THE COMMISSIONER: Okay. So we're sort of back at S5 and S2 and so on. Where are the employers on on-call? Attracted?

PN1133

MR BROWN: Just so I'm clear, so this proposed on-call allowance, Leigh, is this for holding yourself in readiness to come back to work?

PN1134

MS SVENDSEN: Yes.

PN1135

MR BROWN: Yes.

PN1136

MS CHAN: I think those words need to go in that.

PN1137

THE COMMISSIONER: Although it doesn't say that.

PN1138

MS SVENDSEN: I mean, on-call, but I'm not differentiating between people doing work remotely or on the employer's premises. When you say return to work I think picking up the phone and dealing with matters for work is returning to work.

PN1139

MR BROWN: Okay. We'd have different ideas to that.

PN1140

MS SVENDSEN: We might put that differently then. Physically returns to the employer's premises or a location as, I guess, directed by the employer.

PN1141

THE COMMISSIONER: How does the provision apply in the Nurses Award, Mr Blake?

PN1142

MR BLAKE: In relation to the on-call/recall?

PN1143

THE COMMISSIONER: Yes. So the draft that I'm looking at, or we're all looking at, which Ms Svendsen has cut and paste from the Nurses Award it's just the on-call allowance. So two subparagraphs, the first subparagraph:

PN1144

An on-call allowance is paid to an employee as required by the employer to be on-call at their private residence or at any other mutually agreed place. The employee is entitled to receive the following additional amounts –

PN1145

Then there's a table with the relevant amounts ranging from 19-odd dollars to $33 depending on whether it's Monday to Friday, Saturday or Sunday which is an amount per 24 hour period or part thereof, and then (ii) is just a mechanism for determining the on-call period. So the discussion is revolving around – so the employers' query is well, how does this work? We only pay this if you're – if I heard correctly, some interest in this is on the basis that you actually come back to work; is that the ‑ ‑ ‑

PN1146

MR BROWN: Yes, I believe so. That's where I think the confusion is. Leigh has a differing - she has differing opinion as to what on-call would be to the employers.

PN1147

THE COMMISSIONER: Would be, yes.

PN1148

MR BROWN: We're just trying to talk through just exactly what that is.

PN1149

THE COMMISSIONER: Yes.

PN1150

MR BROWN: And come up with what idea as ‑ ‑ ‑

PN1151

THE COMMISSIONER: Then of course you have ‑ ‑ ‑

PN1152

MS SVENDSEN: This clause doesn't actually deal with recall to work; it deals with the on-call allowance.

PN1153

MR ROBSON: So this says, "holding yourself ready". You know, block out a period of time that you would otherwise be free to do as you please to, you know, either answer phone calls or answer emails, you know, those type of things or return to work.

PN1154

THE COMMISSIONER: Yes. Given it's come out of the Nurses Award I just wanted to ask Mr Blake. So that's the gist of it, Mr Blake? We're just interested in your experience as to how it applies under the Nurses Award.

PN1155

MR BLAKE: Correct, Commissioner. There's really a two-part provision; the on-call really is about the rostering arrangements and requirement for people to be on-call and available to be contacted, and they are paid an amount for 24 hours depending on the day of the week.

PN1156

THE COMMISSIONER: If I understand what the employer buys for that in respect of the on-call is the right to know that the employee will answer the phone at the private residence or the agreed mutual place.

PN1157

MR BLAKE: That's correct.

PN1158

THE COMMISSIONER: Yes.

PN1159

MR BLAKE: The employee will be contactable for the purposes of being recalled to work. That's the purpose. There is no other purpose, Commissioner, for being on-call. If you're contacted you are to be recalled to work. In practice that could happen in one of two ways; you either return to the workplace at the request of the employer to undertake the duty you're required or alternatively the matter is dealt with over the telephone because you are able to effectively resolve the issue in that manner, but they're both recalled to work essentially under the Nurses Award.

PN1160

THE COMMISSIONER: Yes. So even if you – your interpretation of how the Nurses Award applies, in your experience, is that if you contact someone who is on-call, because they're on-call they get paid the allowance because they're on an on-call roster.

PN1161

MR BLAKE: Yes.

PN1162

THE COMMISSIONER: If no one rings them they still get that allowance. That's how it works?

PN1163

MR BLAKE: Yes. That's correct.

PN1164

THE COMMISSIONER: Yes. Then if I'm the employer and I ring them I may – well, it follows that I have a right to recall, the way the on-call and recall provisions work together in the Nurses Award.

PN1165

MR BLAKE: That's correct.

PN1166

THE COMMISSIONER: Yes. Of course, if you actually get physically recalled and you go back into the workplace then there's no doubt you get paid whatever moneys flow from that.

PN1167

MR BLAKE: I think it's a minimum of – I don't have the award in front of me. I think it's a minimum of three hours.

PN1168

MS SVENDSEN: Three hours.

PN1169

THE COMMISSIONER: Yes.

PN1170

MR BLAKE: If you are recalled to work.

PN1171

THE COMMISSIONER: Yes. If you're not recalled, which is a possibility; I ring the employee, as the employer, and say, "Look, I really just want to know where you left the keys", at a minimum, or it might be that I ask some complicated question about a particular client, and I'm on the phone to you for some time about, you know, what their particular needs are or something, and this can happen in your industry, you're the person I need to talk to, because you were with them on the shift all day, and you know what they ate, or whatever, then how do you say the nurses provision operates in those circumstances?

PN1172

MR BLAKE: Commissioner, I would need to check, but my understanding is that you are paid for a recall where you are responding to something via telephone, and the minimum payment is one hour, I understand, but I can double check that.

PN1173

THE COMMISSIONER: Yes.

PN1174

MR BLAKE: Let me just clarify that. I don't believe that you're paid for an hour every time the telephone rings, but you must receive a minimum payment of one hour. If the telephone rings again 15 minutes later you don't get another hour.

PN1175

THE COMMISSIONER: You don't get another hour. Yes.

PN1176

MR BLAKE: I'd wish to clarify that and just check that, but that's my understanding without having in front of me.

PN1177

THE COMMISSIONER: No, no, that's okay. It's just for the purposes of discussions. So just in terms of where – there will be some mutual interest in this somewhere. What is it that the employers are looking for?

PN1178

MR BROWN: We're just interested to see – we'd have to go back to our members to find out if on-call arrangements are even ‑ ‑ ‑

PN1179

MR BLAKE: Sorry, Commissioner, I can't hear.

PN1180

THE COMMISSIONER: Yes.

PN1181

MR BLAKE: Sorry.

PN1182

MR BROWN: We have to see with our members if aged care employees, if it's actually quite common for them to be placed on-call, and even if they had a telephone if they were to be contactable for advice. So at the moment I guess we'd be opposing what the HSU has put forward but we'd need some time to go back to our members and get a better idea of how this may impact them.

PN1183

THE COMMISSIONER: So you think sort of having the capacity to have people available to take calls on a formal roster it happens in the industry?

PN1184

MR BROWN: I believe it may happen, but I'm not sure if that would happen for the aged care employees. You might be looking at more your senior nurses such as, you know, your deputy director of nursing or your director of nursing, or even you'd have, you know, your care managers, your very senior managers ‑ ‑ ‑

PN1185

THE COMMISSIONER: Yes.

PN1186

MR BROWN: ‑ ‑ ‑ who aren't necessarily covered under the award.

PN1187

MS CHAN: That's not to say we won't give it consideration entirely.

PN1188

THE COMMISSIONER: Yes. Yes.

PN1189

MS CHAN: But I think if we were to agree to an on-call allowance I think there would be some parameters that we might need to put around it.

PN1190

THE COMMISSIONER: Yes.

PN1191

MS CHAN: Also the wording.

PN1192

THE COMMISSIONER: Just breaking it down, so the thing that you're interested in is this ability to deal with the ringing up of people at home and getting advice, and so the query will be if – and obviously you've heard what Mr Blake said about – and I know his experience in the Nurses Award, probably more than most, with the notable exception of Ms Svendsen, the issue would probably be, you'd think, well, if there's a provision that's already operating and I'm on an award that's got parallel operation you'd have to have a good look at, well, how would we prosecute a clause that was radically different from that? It might be a little bit different because of your particular circumstances, but, you know, I think you'd need to think that through. Yes. If it operates to the way that – and, again, I heard Mr Blake say he's not sure about this, but that one hour type provision, so the chances are you could ring a few times and still only be paid the hour, as long as you're only ringing 10 minutes at a time.

PN1193

MR BROWN: I believe we dealt with this in the SCHADS Award, the telephone – like, that might be the – that was consented to, wasn't it?

PN1194

MS CHAN: Yes. That was on the basis that there was already an on-call allowance in that award though, so the position again is slightly different.

PN1195

MS SVENDSEN: And that was a package of issues.

PN1196

MR ROBSON: Yes, a pretty substantial package.

PN1197

MS SVENDSEN: A very substantial package. Yes.

PN1198

MR ROBSON: I think award changing in significant ways.

PN1199

THE COMMISSIONER: Is there any capacity to look at the package in respect of this one?

PN1200

MS SVENDSEN: There's capacity to talk about everything, Commissioner.

PN1201

MR ROBSON: Yes.

PN1202

MS CHAN: I think particularly in relation to this issue there is some capacity for more discussion.

PN1203

MR BLAKE: Can I just say, Commissioner, that in respect of looking at the package it has to include the HSU's proposal that an on-call allowance is included in the award. I don't see how you could have a telephone advice payment or a requirement that employees have a phone for the purpose of being contacted in the absence of having something ‑ ‑ ‑

PN1204

THE COMMISSIONER: Yes. No, and you made that point clearly before. I think what I'm hearing said is that the on-call allowance was already in the SCHADS Award, and so the package has been built around that. Yes.

PN1205

MS SVENDSEN: Loosely. I think that was one of – well, I think it was probably – yes, it was one of the – to be blunt, there were actually more substantial issues, and this was probably one of the secondary issues, but it was part of the package, and it was a significant part of the package. I'm not trying to undermine that, but I think the other issues were probably more significant than this one.

PN1206

THE COMMISSIONER: Yes.

PN1207

MS SVENDSEN: But I think that, you know, kind of the other thing within this award is that in fact Mr Blake is right that it's not just - I mean, those provisions actually go together, but there's probably a need to look at the recall provisions too, because they really only deal with defining recall for overtime, which arguably any recall for work is, but it might not necessarily be. So it just needs to be possibly looked at in its totality as opposed to anything else, and maybe that would be therefore appropriate for us to exchange some drafts about some of the things that we're most focused on, and if the employers can come back with stuff that they're more focused on that would be good.

PN1208

THE COMMISSIONER: You're less focused on recall, as I understand it, to the extent of physical recall, but you're interested in recall to the extent you are recalling employees to give advice on the phone? That's your major interest.

PN1209

MR ROBSON: Yes.

PN1210

THE COMMISSIONER: Yes. I guess that goes back to the comment I made that, well, if there is a scheme for that in another modern award, and then if you've dealt with something similar in the SCHADS that's probably the first place to start.

PN1211

MR ROBSON: I would say though again it did form part of package and there were some – you know, this came through in support of our union because of other things in that package that overcame some fairly substantial internal objections to the telephone allowance. I think there was a lot of fear about this type of thing changing the recall provisions, so I think again, and this is a little difficult for me to spend my last day at United Voice, but I know that there would have to be some other changes I think to go along with it to secure our agreement.

PN1212

MS SVENDSEN: Which, Commissioner, means we won't see him in these proceedings again, but we will see him in SCHADS again, probably.

PN1213

MR ROBSON: Maybe.

PN1214

MR BLAKE: Commissioner?

PN1215

THE COMMISSIONER: Yes.

PN1216

MR BLAKE: Can I just clarify one point? I found the nurses provision for on-call/recall, and the minimum period for recall is three hours, and it doesn't distinguish between returning to the workplace or dealing with a matter by some other means, so my previous comment about one hour in the Nurses Award appears to be incorrect; it's three hours minimum.

PN1217

THE COMMISSIONER: Okay.

PN1218

MR BLAKE: Thank you.

PN1219

THE COMMISSIONER: The employers are excited by that news.

PN1220

MR BLAKE: I'm sure.

PN1221

THE COMMISSIONER: Thanks for that. I think Ms Svendsen is right, it's a matter of looking at the clauses when you've actually drafted them. Damaged clothing allowance, which is ‑ ‑ ‑

PN1222

MS SVENDSEN: I actually have had a thought about this, and there are other ways around it, but the provision that we're looking at is it's slightly modified from the Health Professionals Award provision, but it is the Health Professionals Award provision.

PN1223

THE COMMISSIONER: Sorry, I'll just ‑ ‑ ‑

PN1224

MS SVENDSEN: As Commissioner Lee would know, it comes out of the Health Professionals Awards in old awards in Victoria and agreements in Victoria. The problem for us arises in the uniform allowance actually because of the word "required", and ANMF and us were involved in proceedings in Victoria in relation to an agreement that has exactly the same wording, and the words "required to wear a uniform", so where an employer requires an employee to wear a uniform is actually the problem in the uniform clause. If you must, I mean, like, effectively. So the reality essentially is that in this industry, as in most of the caring industry professions that deal with this, is if you're not required to wear a uniform you still effectively develop your own uniform, and they're not clothes that you generally wear elsewhere because they do get inevitably at least soiled by blood, faeces, urine, vomit on a regular basis, and, I mean, can be damaged as well, but that's a slightly different issue. So you effectively develop your own uniform but you're not provided with any funding for that if the employer doesn't require you to wear a uniform. So this is the alternative.

PN1225

THE COMMISSIONER: So happy with that clause?

PN1226

MR BROWN: No, not particularly, your Honour.

PN1227

MS CHAN: I believe we might have had a bit of a discussion, I'll call it that, at the last conference about obviously the words "any damage and soiling" and, you know, how far you take the meaning of that particular phrase, whether it's just a little bit of soiling, or substantial soiling.

PN1228

THE COMMISSIONER: Which clause would it add to, or is it just a new provision, in terms of the exposure ‑ ‑ ‑

PN1229

MS SVENDSEN: I would actually place it with the uniform clause.

PN1230

THE COMMISSIONER: Which is?

PN1231

MS SVENDSEN: The uniform allowance clause.

PN1232

MS CHAN: 18.3.

PN1233

THE COMMISSIONER: Yes, 18.3.

PN1234

MR ROBSON: What's the basis for the exclusion of hosiery?

PN1235

MS SVENDSEN: What do you think the basis for the exclusion of hosiery is? Everybody wears them if they're not wearing pants anyway, so they damage them all the time. It's just ‑ ‑ ‑

PN1236

MR ROBSON: Fair enough.

PN1237

MS SVENDSEN: Yes. You can't wear stockings without putting your foot through them after the third wear.

PN1238

MR ROBSON: Yes, fair enough.

PN1239

THE COMMISSIONER: Mr Blake, just for your benefit the proposed clause from the HSU reads as follows:

PN1240

Where the employer does not provide or require an employee to wear a uniform and in the course of their employment the employee suffers any damage to or soiling of personal clothing or other personal effects excluding hosiery the employer will be liable for the replacement, repair or the cleaning of the clothing or personal effects provided immediate notification is given of the damage or soiling.

PN1241

MR BLAKE: Commissioner, I can say no more than say that we would support. That seems to make sense to us, if the employer doesn't require the employee to wear a uniform, and the supply and then cleaning of those uniforms are dealt with in the award to wear their own clothing and that's damaged then the employer should make good the damage. We support the provision.

PN1242

THE COMMISSIONER: Thanks, Mr Blake. How does that intersect, Ms Svendsen, with 18.3?

PN1243

MS SVENDSEN: Just as I've described in terms of "requires". So 18.3(a)(i) is where the employer requires an employee to wear a uniform. The uniform allowance is then subject to payment at 18.3(a)(iii) as an alternative to (a)(i), and it kind of goes back to that requirement. Given there's actually a decision that says a uniform allowance doesn't apply where an employer doesn't require an employee to wear a uniform, and it's a Federal decision clearly.

PN1244

THE COMMISSIONER: Yes.

PN1245

MS SVENDSEN: Albeit not about an award. As I said, if the uniform and laundering allowance apply to somebody where the requirement to wear a uniform didn't exist then that would cover it as an alternative but it doesn't, or at least it doesn't as far as that earlier decision goes.

PN1246

THE COMMISSIONER: But an opportunity would be 18.3(iii) is construed that way would deal with it?

PN1247

MS SVENDSEN: The opportunity would be that if you actually changed uniform and laundry allowance to being applicable regardless of the requirement and payable where the employer wasn't laundering or providing then that would be fine. That would be an alternative way of dealing with it.

PN1248

MS CHAN: If I might just comment, the employers aren't opposed to the principle of potentially replacing, repairing or cleaning clothing, but it is around some of the threshold as to when any allowance or such payment might actually kick in, so I think that's where the concern is. So let's say somebody is a prolific sweater for instance, you know, sweat is heavily in their polo shirt for instance, you know, is that soiling in the circumstances? Does this allowance become payable then? I think that's what we're concerned about, because putting in parameters to make some ‑ ‑ ‑

PN1249

MS SVENDSEN: If you actually do it the other way and if it was a uniform and you weren't laundering it you'd be paying a laundry allowance, so regardless of whether they sweated profusely or whether they had bodily fluids all over them from somebody else the outcome would still be the same. You're paying a laundry allowance and therefore you're dealing with the cleaning of that uniform, but the caveat, at least as far as I can see, and particularly given, as I said, the previous decision, then they're not required to provide that laundry allowance if they don't require them to wear a uniform.

PN1250

MS CHAN: Yes, and we appreciate that.

PN1251

MS SVENDSEN: So that requirement to wear a uniform precludes, "If we don't require you to wear a uniform, you can wear what you like, so we won't pay you a laundry allowance either". You don't pay a uniform allowance and you don't pay a laundry allowance. So the laundry allowance, the laundering part, is fairly easy to conceive that, you know, it doesn't matter what it's soiled with in a sense would be my contention. But, as I said, you can deal with it a completely different way and remove the requirement to wear a uniform, so where a uniform is not provided or laundered regardless of requirement to wear a uniform the uniform allowance and laundry allowance were payable that would be fine. Damaged clothing allowance goes away.

PN1252

THE COMMISSIONER: Yes.

PN1253

MS CHAN: I think we would have to go back and consult with our members about the ‑ ‑ ‑

PN1254

MS SVENDSEN: Fair call.

PN1255

MS CHAN: ‑ ‑ ‑ potentially might be more accountable.

PN1256

MS SVENDSEN: I'm not suggesting you don't. In fact, I think that it is growing in the minority that not require – we went through a period where we decided that normalisation meant no uniform and now we got into a period of normalisation meaning kind of corporate style uniforms with mix and match and everybody is not in, you know, exactly the same clothes, and the principal, probably the principal thing happening in the sector is that people are wearing a uniform of sorts, and therefore uniform allowances would trigger. So I'm not sure that ultimately the impact would be huge, but it is for those people who aren't required to wear a uniform at the moment.

PN1257

MR BROWN: I'm just thinking as well just in terms of damaged clothing allowance, talking about the quantum as well. Say I'm wearing a jacket, cashmere wool, something nice, it gets wrecked. How do we mediate ‑ ‑ ‑

PN1258

MS SVENDSEN: I've got to say, like, as a nurse you went out of uniform in 1986, I've got to tell you the last thing you wear is something nice.

PN1259

THE COMMISSIONER: But you might. But you might.

PN1260

MS SVENDSEN: Yes, only if you're an idiot.

PN1261

THE COMMISSIONER: Sure. They're out there.

PN1262

MS CHAN: You'd probably learn quickly, but ‑ ‑ ‑

PN1263

MR BROWN: Yes, first and last time.

PN1264

THE COMMISSIONER: But this is a ‑ ‑ ‑

PN1265

MS SVENDSEN: It is.

PN1266

THE COMMISSIONER: It's too open-ended. You couldn't sensibly apply this. The idea of expanding the operation of the uniform and clothing deals with your issue about having some sense of control over what it is, but it's worth you having a look at that.

PN1267

MS CHAN: I think we'll drop that one and come back to it.

PN1268

THE COMMISSIONER: Yes.

PN1269

MS SVENDSEN: Yes.

PN1270

THE COMMISSIONER: That's all the clauses that we have. I'm just not sure the extent to which we can have a further debate about the conceptual - but the rubber is sort of hitting the road. I'm not sure how much we can do sensibly but it's up to you. You've got the time.

PN1271

MR BROWN: Commissioner, we'd have to go back to our members and probably get a better idea and actually draft some determinations as well for discussion, so time would be spent better doing that.

PN1272

MS CHAN: Given draft determinations are due to be filed by the end of the month.

PN1273

THE COMMISSIONER: Yes, you must have them filed by the end.

PN1274

MR REID: In both of our cases, Commissioner, we've just had sort of major staff upheaval so we sort of – it might be our fault but we apologise for that.

PN1275

MS SVENDSEN: Excuse me to be falling into the "My God, I can't remember what's going on trap", have we got dates listed for this?

PN1276

MS CHAN: Further conference dates or just directions ‑ ‑ ‑

PN1277

MS SVENDSEN: No, hearing dates.

PN1278

MR BROWN: No.

PN1279

MS CHAN: No, not to my knowledge.

PN1280

MS SVENDSEN: We haven't got – no, good. Okay.

PN1281

MR REID: But we'll certainly endeavour to produce something before the direction then.

PN1282

THE COMMISSIONER: Yes.

PN1283

MS SVENDSEN: I'm happy to have some – I'll send you something with Melissa's, who will be dealing with it from Aged Care, her email address will be included so that you can see, and we can have some further, at least email, discussions. It might advance things a little bit.

PN1284

THE COMMISSIONER: I'll circulate that Full Bench decision that I was talking about. It was actually waved at me in a section 739 matter where Mr Eddington of the HSU was appearing last week.

PN1285

MS SVENDSEN: I just sent James an email. Okay.

PN1286

THE COMMISSIONER: But I've just got to go back to that file and I'll find it. Mr Blake, you're going to circulate something?

PN1287

MR BLAKE: Yes. I was going to track down the hospitality Full Bench decision.

PN1288

THE COMMISSIONER: Yes, about Cert III. Yes.

PN1289

MR BLAKE: I think it was in the 2012 award matter.

PN1290

THE COMMISSIONER: Yes. That would be great. Thank you.

PN1291

MR BLAKE: I will circulate that.

PN1292

THE COMMISSIONER: The directions have to be met, in the absence of applications to have some extension, which you will be required to make and give reason for, if you wish to do that, which may or may not be granted in the usual fashion. I'm imagining that we would then perhaps on one or maybe more occasions, if necessary, have a - I'd imagine, my colleagues on the Bench will be expecting there to be another red hot go to try and resolve as many items as possible, and it's clear that, at least in terms of some of the claims, there's overlap, certainly in respect of the on-call and recall, there's some mutual interest but not perfect, but you may be able to get to a stage where you at least have agreement about part of a variation but not all of it. So ‑ ‑ ‑

PN1293

MS CHAN: Commissioner, I imagine the President would probably be eager to list the matter for hearing following the filing of draft determinations and the like on the 28th. Are you potentially aware of or what we might be looking like in terms of the timeline and the further opportunity for conferencing?

PN1294

THE COMMISSIONER: The point I was going to make is we can set a timeline to a certain extent. So it won't be a matter of, "There's no time to have any further conferencing". There will be an interest in that, but there will also be an interest in just bringing this process to an end one way or the other. So I think probably the best position might be to at least set aside one more session of this group for, I would think, maybe a few weeks after the deadline to file, and that would enable the parties to have some discussions themselves once you've all got a chance to look at what it is that you would like to put into the award. Is that a sensible way to proceed?

PN1295

MS CHAN: We're certainly amenable.

PN1296

MR BROWN: Yes.

PN1297

MS SVENDSEN: Yes.

PN1298

MR ROBSON: Yes.

PN1299

THE COMMISSIONER: So you're required to file in two weeks' time, aren't you, on the 28th?

PN1300

MR REID: Yes.

PN1301

MS CHAN: Is late August okay for everyone? That gives us, say, three or four weeks ‑ ‑ ‑

PN1302

MR ROBSON: Could I have some ‑ ‑ ‑

PN1303

MS CHAN: ‑ ‑ ‑ to have any discussions amongst ourselves once we've seen each other's draft determinations.

PN1304

MR ROBSON: I think just because we're going to have to deal with the availability of a different person; he was meant to be here today but he was off with a cold. You might I think ‑ ‑ ‑

PN1305

THE COMMISSIONER: I'm looking at 21 August which is a Monday.

PN1306

MS SVENDSEN: I'm going to be away.

PN1307

THE COMMISSIONER: Are you ever in this country?

PN1308

MS SVENDSEN: I'm in the country. I'm in Port Douglas. Only that day. Well, not quite.

PN1309

THE COMMISSIONER: The 22nd?

PN1310

MS SVENDSEN: Yes. No, and it won't be Mel either, because we've got a joint – we've got a caucus on a disability, so ‑ ‑ ‑

PN1311

THE COMMISSIONER: Twenty-third is my last offer.

PN1312

MS SVENDSEN: Yes. Yes, the last offer is good for me.

PN1313

THE COMMISSIONER: Twenty-third?

PN1314

MS CHAN: Twenty-third is fine.

PN1315

MR ROBSON: Yes.

PN1316

THE COMMISSIONER: Mr Blake?

PN1317

MR BLAKE: I think that should be okay, Commissioner, yes.

PN1318

THE COMMISSIONER: Very well. We'll go for a - we like to start a bit later, so you can get in from Port Douglas or wherever you are.

PN1319

MS SVENDSEN: Yes.

PN1320

THE COMMISSIONER: Can we start at 10?

PN1321

MS SVENDSEN: That would be lovely.

PN1322

MS CHAN: Is 10 o'clock all right?

PN1323

MS SVENDSEN: We can start – yes, that's fine.

PN1324

MR ROBSON: 10 o'clock.

PN1325

THE COMMISSIONER: Yes. The parties are to – I won't be issuing anything further. I might issue something just saying that the parties are expected to have further discussions about the proposed amended clauses prior to the conference on the 23rd. Because I'd really like that day to try and crunch as much as we can. Okay?

PN1326

MS SVENDSEN: Yes. Sounds good.

PN1327

THE COMMISSIONER: Okay, Mr Blake? Anything?

PN1328

MR BLAKE: Nothing from me, thank you.

PN1329

THE COMMISSIONER: Final ruminations? No? Thank you, all.

PN1330

MS SVENDSEN: Thank you.

PN1331

MR ROBSON: Thank you, Commissioner.

ADJOURNED UNTIL WEDNESDAY, 23 AUGUST 2017 [1.37 PM]