PN1

JUSTICE ROSS: Can I have the appearances, please.

PN2

MR S BULL: If the Commission pleases, my name is Bull. I appear for United Voice.

PN3

MS R LIEBHABER: If the Commission pleases, my name is Liebhaber, initial R. I appear for the Health Services Union.

PN4

JUSTICE ROSS: Thank you.

PN5

MR K SCOTT: If the Commission pleases, Scott, initial K, appearing for ABI and the New South Wales Business Chamber.

PN6

MS J FIELD: If the Commission pleases, Field, initial J, for Leading Aged Services Australia.

PN7

MS A WADE: If the Commission pleases, Wade, initial A, appearing for Aged and Community Services Australia.

PN8

JUSTICE ROSS: Thank you. No VC?

PN9

SPEAKER: No.

PN10

JUSTICE ROSS: Good. We issued a decision in respect of the substantive claims in this matter on 26 August and expressed some provisional views in that decision regarding dot point B4 in the current definition of the classification 'aged care worker level 4', a notation at the title of schedule B and some provisional views regarding the transitional arrangements to apply to the Saturday, Sunday and public holiday rates for casuals. Submissions were filed by ABI, the aged care employers, the HSU - including a submission in reply - and United Voice.

PN11

It might be convenient to deal firstly with the classification issues and then we'll come to the penalty rate transition. In relation to the definition of 'aged care worker level 4' - and I'm not dealing here with the notation in the title question, just with the additional dot point - my understanding from the submissions broadly is the unions support the provisional view, as does ABI.

PN12

The aged care employers have an additional proposed set of words and that's set out at paragraph 6 of their submission. It is proposed that the following amendment be inserted - bear with me for a moment. Our proposition read:

PN13

In the case of a personal care worker, holds a relevant certificate III qualification or possesses equivalent knowledge and skills.

PN14

We had -

PN15

and uses the skills and knowledge gained from that qualification in the performance of their work.

PN16

The aged care employers propose -

PN17

and uses all the skills and knowledge gained from that qualification.

PN18

I think that is the essence of the change, isn't it? Are you able to point us to any other provision in any other award that refers to 'all the skills and knowledge gained'?

PN19

MS WADE: No, sorry.

PN20

JUSTICE ROSS: All right. The reason I raise it is I think the provision as it appears there is consistent with its use in other awards and 'all the skills and knowledge' might be quite a high bar, because there might be a relatively minor component of a certificate III qualification that may not directly relate to the work and that would mean they wouldn't meet the criteria. Do the other parties have any view about the proposed change?

PN21

MR BULL: We would agree with the analysis that your Honour's questions appear to be making of the proposed changed by the aged care employees; that it's an unnecessarily high bar and the drafting as proposed is consistent with what is across modern awards. Also that these are broadly indicative matters; you don't have to have everything, but you have to have some of it.

PN22

MS LIEBHABER: Your Honour, we would agree with United Voice and what my colleague has just said.

PN23

JUSTICE ROSS: All right.

PN24

MS LIEBHABER: That's all.

PN25

JUSTICE ROSS: Do you want to say anything about it, Mr Scott?

PN26

MR SCOTT: No.

PN27

JUSTICE ROSS: All right. Is there anything further about that issue? No? Let's go to the notation proposed to be inserted at the title of schedule B. That was the note that says:

PN28

Any dispute about the classification of a particular employee may be referred to the Fair Work Commission in accordance with clause 9 of this award.

PN29

In respect of that matter, ABI submitted that the following words should be added to the note:

PN30

The Fair Work Commission may require an employee to demonstrate -

PN31

bear with me for a moment. That doesn't quite make sense. I might take you to that, Mr Scott, para 2.4.

PN32

MR SCOTT: Yes.

PN33

JUSTICE ROSS: It's missing a word there, I think - 'may require an employee to demonstrate to its satisfaction?'

PN34

MR SCOTT: Yes, that appears to be right.

PN35

JUSTICE ROSS: Right -

PN36

that the employee utilises the requisite skills and knowledge, and these are relevant to the work.

PN37

A couple of questions about that. You say that wording is taken from clause 3 of the Hospitality Award, but I couldn't find it. That might be more a reflection on me than on your submission, but where is it in clause 3?

PN38

MR SCOTT: I apologise, your Honour. I don't have a copy of the Hospitality Award - - -

PN39

JUSTICE ROSS: No, it's all right. It's all right. I've found it. It's the note under 'Appropriate level of training', the definition for that, yes. I don't know if that's still in the exposure draft.

PN40

MR SCOTT: I'm happy to check. I suspect it would be.

PN41

JUSTICE ROSS: I have no idea, but that's okay. All right. Is there anything further you wanted to say about that?

PN42

MR SCOTT: No, your Honour. We indicate at paragraph 2.5 of our submissions the basis upon which we say it's sensible that that be inserted. I will have to double‑check this, but my understanding at the time we prepared these submissions was that - I don't know whether that wording has been in the modern award since 2010, in the Hospitality Award.

PN43

JUSTICE ROSS: No, it has. You mean whether it was in there before?

PN44

MR SCOTT: That's right. I will stand corrected, but my understanding from memory was that that wording was not in the Hospitality Award from commencement in 2010. There was some variation to the classifications of the award at some point in time and that wording - - -

PN45

JUSTICE ROSS: Yes, it was on 4 December 2013.

PN46

MR SCOTT: I think that was the basis upon which that wording went in. Whether that was a result of a Full Bench decision or a single member decision of this Commission, it has obviously been considered in the context of that industry and that award.

PN47

JUSTICE ROSS: Yes.

PN48

MR SCOTT: A merit case was found by this Commission and it was inserted. We say the wording is fairly uncontroversial. On the basis that it has been put in another award, we say that it should be put in this one given that it's helping the parties - in circumstances where the classification structures are by their nature not always black and white, it's helping the parties to understand how to go about classifying employees.

PN49

JUSTICE ROSS: Have there been any disputes about the classification of employees in this award?

PN50

MR SCOTT: Well, none that I'm directly aware of. I suspect that there would have been.

PN51

JUSTICE ROSS: Let's not go on suspicion. Let's just go on if you're able to point us to any.

PN52

MR SCOTT: I'm not, no.

PN53

JUSTICE ROSS: Okay. All right. Thank you. Did the aged care employers wish to say anything about this proposal by ABI?

PN54

MS WADE: No, your Honour.

PN55

JUSTICE ROSS: All right. The unions?

PN56

MR BULL: We support the provisional view. It's supported by what has been a merit case. In some respects it's a duplication. It's just saying that there is a disputes process, but we think it's appropriate in terms of clarity and making the instrument useful and practical in its context. We maintain that the provisional view should be maintained.

PN57

JUSTICE ROSS: Do I take it from that you oppose ABI's additional wording?

PN58

MR BULL: Correct.

PN59

JUSTICE ROSS: All right. HSU?

PN60

MS LIEBHABER: Your Honour, yes, we also think that the wording in the provisional view is sufficient and the wording proposed by ABI is not necessary. Really it hasn't provided a sufficient basis for why it is necessary. Why just importing something from the Hospitality Award would be appropriate in this award hasn't been demonstrated, so we don't think that that should be granted.

PN61

JUSTICE ROSS: Okay. Thanks. Is there anything else on those two points? No? In relation to the transitional arrangements for the weekend and public holiday rates for casuals, United Voice and the HSU support the provisional view regarding those transitional arrangements, which essentially has them in two instalments from 1 December and the second and final one being from 1 July next year. The ABI submits that the changes should be implemented from 1 July 2020.

PN62

I take it, Mr Scott, you're seeking there be no phasing, but it deferred, as it were, until 1 July next year. The rationale for that, as I understand it, is the financial year budgeting arrangements and a deferral to 1 July next year would - you put that many of the businesses adhere to very tight budgets in each financial year and a deferral would assist them in that regard?

PN63

MR SCOTT: That's right. If I can elaborate on that. I put it on two bases. The first is as your Honour has indicated; the fact that the industry is undergoing a very difficult time at the moment from a financial perspective with the structural changes that are going on. Businesses at the moment are presently spending significant resources dealing with the Royal Commission, which of course is an appropriate thing for them to be doing, but that's undertaking a significant amount of time and resources at the moment.

PN64

It's firstly on the basis that this will be a cost imposition which is not budgeted and we say that in those circumstances and given what I've just said, it's appropriate that that be deferred until 1 July. The second basis upon which we say that is, in our submission, a deferral of the entire increase is a more appropriate and efficient thing for the Commission to do rather than bring it in on an incremental basis whereby there are two increases of smaller amounts.

PN65

The reason for that is that from a payroll perspective employers are effectively having to go through an overhaul - sorry, not overhaul. That would be stating it far too highly, but amending its payroll systems on two occasions rather than one.

PN66

JUSTICE ROSS: A relatively short space of time.

PN67

MR SCOTT: That's right.

PN68

JUSTICE ROSS: Yes.

PN69

MR SCOTT: So we say given the relatively small incremental increase for a certain class of employees in certain circumstances, our position is that we would favour - and our clients would favour - one increase at a deferred date rather than two incremental increases over a shorter period of time.

PN70

JUSTICE ROSS: Yes. Can I just go to the aged care employers. In your submission at paragraph 10 you rely on the StewartBrown report. Now, as the HSU says in its submissions in reply, we expressly didn't admit that material. Do I take it on that basis that you withdraw your reliance on that part of the submission?

PN71

MS WADE: Yes, your Honour.

PN72

JUSTICE ROSS: All right. You contend that - as has been put in part by Mr Scott - the aged care providers have already formulated and implemented their budgets for the current financial year. For that reason and also their financial constraints on them, you're proposing in effect a shifting of the phasing in; so the first instalment would be from 1 July next year and the second from 1 December next year. Is that right?--

PN73

MS WADE: That's right ,your Honour.

PN74

JUSTICE ROSS: All right. Is there anything you wish to add to that?

PN75

MS WADE: I think just to reiterate what Mr Scott has said, the industry has gone through massive reform this financial year with an introduction in the standards, the Royal Commission, increasing financial pressures, particularly regional and remote members. A large percentage of the industry is not for profit and reliant on concessional, you know, residents to fund their businesses. There isn't any more money, you know, in the kitty and we're pushing for more funding, but that hasn't appeared or eventuated yet, so that's our position.

PN76

JUSTICE ROSS: All right. Thank you.

PN77

MS WADE: Thank you.

PN78

JUSTICE ROSS: Anything else anyone wishes to say in relation to this?

PN79

MR BULL: I would just make the observation that my friend, Mr Scott, characterised the matter as a small incremental increase. There is also an issue of likely substitution in that it will alter choices which may make it even a smaller incremental increase. There is an absence of evidence as to the fact that it's going to somehow cause budgetary issues. I would simply put that a Royal Commission is not something which across an industry I would have thought would be a reason to say - I wouldn't place such strains on them. We are today, for example, appearing in the Royal Commission and it's work, but it doesn't blow your budget.

PN80

We would support the provisional view and if you are minded to depart from it, the alternative where the increases take place completely on 1 July would be the appropriate alternative - should you be minded to depart from your provisional view and we would urge you not to. That's all United Voice wishes to say.

PN81

JUSTICE ROSS: All right. Thank you.

PN82

MS LIEBHABER: Your Honour, from HSU's perspective we would just reiterate our written submissions. Given that the Full Bench in this matter has found that the award doesn't meet the safety net for casual employees, we think that the increases shouldn't be delayed any further than stated in the provisional view. We think that casual employees are - it's a flexible workforce. Employers have the option of putting on part‑time staff instead, so we would reiterate what was stated in our written submissions and support the provisional view.

PN83

JUSTICE ROSS: All right. Anything further?

PN84

MR BULL: Your Honour, I might just sort of - this is in relation to another matter. Unfortunately I am not going to be here at - I am just making my apologies.

PN85

JUSTICE ROSS: Sure. That's fine. I think you have put in a written submission already.

PN86

MR BULL: Triple booked.

PN87

JUSTICE ROSS: All right. Thank you. Look, we're conscious that it would be best to provide certainty about this issue as quickly as possible. We will endeavour to get down our decision in the course of this week if we can. Thanks very much. We'll adjourn.

ADJOURNED INDEFINITELY [9.53 AM]