Epiq logo Fair Work Commission logo






Fair Work Act 2009                                       1057329






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards

Social, Community, Home Care and Disability Services Industry 2010






2.08 PM, MONDAY, 14 OCTOBER 2019


JUSTICE ROSS:  Can I have the appearances, please.


MR M ROBSON:  Robson, initial M, appearing for the ASU.


MS N DABARERA:  If the Commission pleases, Dabarera, initial N, appearing for United Voice.


MS L DOUST:  Your Honour, Ms Doust, initial L.  I appear for the Health Services Union, with Ms R Liebhaber.  I think I was given leave on the last occasion - - -


JUSTICE ROSS:  No, you don't need leave.


MS DOUST:  Sorry, permission.


JUSTICE ROSS:  No, you don't need permission under the change in the rules.


MS DOUST:  Thank you.


JUSTICE ROSS:  It's a modern award matter.


MR K SCOTT:  If the Commission pleases, Scott, initial K, appearing on behalf of ABI, New South Wales Business Chamber, Aged and Community Services Australia and Leading Age Services Australia.


MR B FERGUSON:  If the Commission pleases, Ferguson, initial B, for Australian Industry Group.


MS S LOWE:  If the Commission pleases, Lowe, initial S, for Australian Federation of Employers and Industries.


MR M PEGG:  If the Commission pleases, Pegg, initial M, appearing for National Disability Services.


MS M TIEDEMAN:  If the Commission pleases, Tiedeman, initial M, on behalf of ABI and the New South Wales Business Chamber, Aged and Community Services Australia and Leading Age Services Australia.


JUSTICE ROSS:  Thank you.  Just before we get underway, I'm about to list a mention for 9.30 tomorrow in relation to the schedule.  The short point is this:  I think there are a number of gaps in the schedule that can be tightened up and also I'm not entirely sure why we're starting at 10 o'clock.  The first witness is scheduled for 10.30 on Wednesday, for example.  I think Mr Smith was going to be available at 2.30, so there should be space for a further witness after him.  On the Thursday, a witness has dropped out at 10.30.


It seems that, you know, there are spaces earlier in the week and then on the Friday afternoon all the ABI witnesses are jammed in.  Now, I gathered the parties were going to have a discussion - - -


MS DOUST:  Your Honour, I'm not sure that we're all working off the same timetable.


JUSTICE ROSS:  We're working off the one that we were provided last Friday.


MR SCOTT:  My understanding is there is a schedule which was circulated on Friday afternoon.  It may well have been revised since the mention last Friday before Commissioner Lee.


JUSTICE ROSS:  When were you going to tell us about it?


MR SCOTT:  I apologise.  The reason why there is a level of fluidity to the schedule is that the parties have had discussions regarding objections on the basis that if we can reach agreement on objections, certain witnesses won't be required for cross‑examination.  Those discussions are still ongoing as of five minutes ago.  There have been a number of witnesses who, as at discussions immediately prior to this matter being called, won't be required.  In short, there will be further movements in the schedule.


JUSTICE ROSS:  All right.


MR SCOTT:  We're working to try and revise it.  I had a discussion with Mr Bull this morning about seeing whether we could move witnesses from Thursday and Friday earlier in the week.




MR SCOTT:  What we can do this afternoon, if we can resolve which witnesses are required and are not, we will then look to circulate and file with the Commission a revised timetable; bearing in mind your Honour's comments, which is to make it as efficient as possible.


JUSTICE ROSS:  Yes.  Can I also suggest when you're doing that - often problems arise where you sequence witnesses not before a certain time.  Inevitably everybody overestimates how much time they need for cross‑examination and then we all sit around here for 20 minutes each time, and it all adds up.  It's more to have the witnesses available.


I appreciate it's a problem if we've already got a booked time for a telephone, a video - I get that we don't want to be fiddling with that, but if they're here then desirably get them all around the time that you would expect them to be called so we don't - - -


MR SCOTT:  We have done that, your Honour.  The discussion last Friday before Commissioner Lee was that all parties who were calling witnesses would arrange for their witnesses to be made available at least an hour before and in attendance at least an hour before the time that they were scheduled to commence.


JUSTICE ROSS:  All right.


MR SCOTT:  Just in relation to the proposed mention at 9.30 - - -


JUSTICE ROSS:  Well, I don't need the mention now, because it was only to berate you about the program.


MR SCOTT:  Yes.  One item of discussion a moment ago was that if we can have tomorrow commence from 9.30, it may be that we can deal with all the objections to the evidence scheduled to be heard tomorrow.  If we can deal with that, say, between 9.30 and 10 am, we can then run to schedule tomorrow with the first witness at 10.00.  We may re‑cut some of those times bearing in mind that I think two witnesses will no longer be required for cross‑examination.


We will work together to endeavour to have the most efficient process tomorrow so that we're not adjourning for 15, 20 minutes every couple of hours.


JUSTICE ROSS:  All right.


MR SCOTT:  If the Commission pleases.


JUSTICE ROSS:  We will start at 9.30.  Look, we will change the listing notice.  The objections that you will be running will be in relation to the witnesses that are presently on the schedule for tomorrow?  It's just with seven volumes of the court book, I don't want to go wading through it for a witness statement for someone later in the week.


MR SCOTT:  That's right.  The proposal that I had in mind was that we try and deal with objections to all evidence, but I think that may take an hour and a half, two hours.  If we try and deal with the objections each morning to the evidence that's being heard that day, that will allow the parties an opportunity to try and resolve as much as possible, which we've done today - or we're still doing today in respect of tomorrow's witnesses.


JUSTICE ROSS:  You may need to - at least speaking for myself - refresh my memory about how we dealt with some objections in the first tranche of this exercise because that might provide a guide to the parties as to how matters might be dealt




MS DOUST:  I think your Honour gave the unions a very liberal hand in the - - -


JUSTICE ROSS:  That's your recollection, is it, Ms Doust?


MR SCOTT:  I think the position, your Honour, was that - - -


JUSTICE ROSS:  I think Mr Scott is going to want to refresh his memory.


MR SCOTT:  I will, yes.  Thank you, your Honour.


MS DOUST:  He might, yes.


MR SCOTT:  I didn't sit down for a reason.  Your Honour, the Bench dealt with objections to the witness evidence and struck out quite a volume of material.  There was one statement where three pages was struck out, for example, so a fairly forensic approach was taken which cuts both ways in this matter given that ABI has seven or eight statements which we intend to rely upon.  That was the approach that was taken.


In terms of procedurally, I can't recall whether objections were heard at the time that each witness was to be dealt with - - -


JUSTICE ROSS:  No, I think it was heard at the beginning of the day.




JUSTICE ROSS:  But, look, I don't want to leave you with the impression that we've got necessarily a rigid view as to how these matters are going to be dealt with and we're certainly not bound by what we did in the first tranche.  If, for example, the parties were in agreement that material in statements which, properly characterised, would be hearsay or opinion evidence or submissions - if you were in agreement about that remaining but would be the subject of submissions about weight, then that might be an acceptable way to deal with it, as well.  If there is a contest - and, as you say, Mr Scott, will cut both ways.


MR SCOTT:  That's right.


JUSTICE ROSS:  That's always a problem with a party raising an objection because half their statement will be tossed out, too.


MR SCOTT:  Well, I would like to think we would keep more than half the statement.  I think the parties have been guided by the Bench's approach in tranche 1.


JUSTICE ROSS:  All right.


MR SCOTT:  We've taken that approach to the statements and we have reached accommodation in relation to a number of aspects.


JUSTICE ROSS:  All right.


MR SCOTT:  The parties have taken that approach and agreeing to what we can.  That's the approach that has been taken and I think we'll be able to accommodate quite a bit, but I'm yet to see the unions' objections to the ABI statement.  It may be that they don't have any.


JUSTICE ROSS:  All right.  Well, we will commence at 9.30 tomorrow.  Let's deal with the matter we have on this afternoon.  In our decision of 2 September 2019, we decided to vary the rates of pay for casuals working overtime and working on weekends and public holidays.  We set out at paragraphs 199 and 200 of that decision our provisional views in relation to the transitional arrangements that would apply in respect of those decisions.


We have received submissions from ABI, Victorian Hospitals Industrial Association, Ai Group, United Voice, including a submission in reply by United Voice, the HSU and a submission in reply, and the Australian Federation of Employers and Industries.  In no particular order, if we go to ABI's submission first, as I understand it the proposition is that rather than the changes taking place as foreshadowed in two instalments with overtime from 1 December and the other changes from 1 December and 2 July next year, you would propose that they all be deferred until 1 July next year?


MR SCOTT:  That's right.


JUSTICE ROSS:  And that all changes operate from that date.


MR SCOTT:  That's right.  Yes, your Honour.


JUSTICE ROSS:  You say that for the reasons in particular that you set out from paragraphs 2.5 through to 2.11 in the written submission.


MR SCOTT:  That's right, your Honour.


JUSTICE ROSS:  Is there anything you wanted to add to that?


MR SCOTT:  No.  I will make the same observation that I made in respect of another matter this morning - - -




MR SCOTT:  - - - which is that there is really two bases for it.  One is that having a deferral in total of the increase means that there is one adjustment to the payroll system rather than two if it's brought in incrementally.




MR SCOTT:  Then, secondly, our clients are seeking a deferral until 1 July for the basis that organisations are running very tight budgets and their cost increase has not been budgeted for this financial year.




MR SCOTT:  If it please.


JUSTICE ROSS:  All right.  Going to Ai Group, Mr Ferguson, your primary submission is that the increase in weekend and public holiday rates should be in two instalments - 1 July 2020 and 1 December 2020 - and that the commencement of the overtime rates for casuals commence 1 July 2020.




JUSTICE ROSS:  In the alternative, you propose - well, the alternative proposition is the same as ABI's.


MR FERGUSON:  Is the exact same, yes.


JUSTICE ROSS:  Yes.  You indicate in your written submission that you advance nine propositions in support of that, but I only got to six and I was wondering if you ran out of puff or - - -


MR FERGUSON:  I think it's seven and that may be the case.  Yes, I think you're right.


JUSTICE ROSS:  All right.


MR FERGUSON:  We might have rationalised.


JUSTICE ROSS:  Can I just go to two of those.  The one at paragraph 12 - - -




JUSTICE ROSS:  - - - you talk about the workforce restructuring.  This is primarily the substitution of casual labour for permanent labour.  You say in the last sentence:


It cannot be assumed that an employer's workforce will accept such a change.


Why would that change be the subject of consultation necessarily?


MR FERGUSON:  Well, if they had a significant casual workforce and they had skills and so forth that were beneficial to the employer, the first preference might be to offer them conversion to part‑time employment or full‑time employment if that was a possibility.




MR FERGUSON:  That would be something that could only be achieved through agreement with the individual.




MR FERGUSON:  Of course there would be a preference potentially to doing that than going to the labour market squarely.


JUSTICE ROSS:  Yes.  All right.  If you go to paragraph 15, you say:


It is foreseeable some employers will as a consequence of the decision elect to cease.


Well, is that simply speculation your part?  Are you suggesting that your members have indicated to you that they're going to cease the provision of some services to NDIS participants?


MR FERGUSON:  Part of the catalyst for our involvement was a concern over this sort of change and that the provision of some services to some clients might not be viable.  Now, I'm not suggesting that they necessarily will exit the field altogether of the provision of some services, but - - -


JUSTICE ROSS:  No, but my question is have your clients told you that they are going to cease the provision of some services to NDIS participants consequent on our decision?


MR FERGUSON:  The reason I'm pausing is I'm just trying to recall whether they said that that would be a position they would likely take in informing our opposition to the claim or if it was something that they would do consequent on the decision - - -




MR FERGUSON:  - - - as opposed to what they anticipated to be the outcome.  I need to refresh my memory as to whether it was the second.  I know that part our opposition was taken because people had said, 'Well, we would likely - - -'


JUSTICE ROSS:  Sure, but people say all sort of things while a claim is being agitated.  What I am interested in is do you have any evidence of any employer that you're aware of who has said they are going to cease the provision of some services to NDIS participants as a result of the decision?


MR FERGUSON:  I don't have any evidence of that and obviously there was no call for evidence to be led in relation to this.


JUSTICE ROSS:  There was no prohibition either.


MR FERGUSON:  No, no, no.  That wasn't trying to be cute.  There was a time frame and the position - - -


JUSTICE ROSS:  Do you want lead evidence of that though?


MR FERGUSON:  I would seek an opportunity to confer with those members as to whether or not we can put the position more firmly and/or lead evidence in relation to it.


JUSTICE ROSS:  All right.  You can let us know at 9.30 tomorrow about that.




JUSTICE ROSS:  Was there anything else you wanted to add to your written submissions?




JUSTICE ROSS:  No, all right.  AFEI?  Just bear with me for a moment.


MS LOWE:  AFEI proposes that the commencement date for the phasing in of the increased penalties for casuals working weekends and public holidays should be deferred and/or a longer implementation period provided.  The first proposal is for the first stage to commence on 1 July 2020, the second and final stage effective on 1 July 2021.  As an alternative, we propose the penalties increase by 5 per cent initially on 1 January 2020 with further increases of 10 per cent on 1 July 2020 and 1 July 2022.  The reasons for deferred implementation are set out in its written submissions dated 23 September 2019.  Unless the Commission has any further questions I've nothing further to add.


JUSTICE ROSS:  Right, thank you.  Mr Pegg?


MR PEGG:  No submission at all.


JUSTICE ROSS:  Nothing to say at all?


MR PEGG:  No, your Honour.


JUSTICE ROSS:  Right.  Who'd like to go first amongst the unions?  Ms Doust?


MS DOUST:  To deal with it, your Honour, just briefly.


JUSTICE ROSS:  I'm sorry, I should have asked.  There's nobody here representing the Victorian Hospitals Industrial Association and the submission they've filed?  No, all right.


MS DOUST:  Yes, your Honour, just briefly.  At paragraph 160 of course of the decision of 2 September, the Bench notes a finding that had been made earlier in its decision about a significant proportion of this workforce being low paid workers and that's a factor that we think should weigh heavily in the consideration about whether there should be a deferral of orders giving effect to the variation determined by the Full Bench and if so what period or what length.  In light of the Full Bench's disposition in its decision of 2 September 2019, the HSU wasn't going to stand against that but we do note that there are considerations that weigh in favour of bringing about this change as readily as possible.


Obviously it's implicit in the conclusion that the Bench reach that the award is not currently operating to provide a fair and relevant minimum safety net in respect of the compensation for casual employees, insofar as Mr Scott refers to the tight budgets of the organisations that he represents, I say this; that's something that the Bench would give little weight in the absence of any detailed costings and analysis of the financial position of the various employers that he represents.  It's a submission that's made with a great deal of generality, as against that we see there's a very great urgency to implement the change as speedily as reasonably practicable.


JUSTICE ROSS:  Thanks, Ms Doust.  Yes, Ms Dabarera.


MS DABARERA:  Your Honour, on behalf of United Voice we would support those submissions.  As we pointed out in our written submission the Commission has made a decision that the current award is not providing a fair and relevant safety net for these casual employees and we would say that the transitional arrangements outlined the provisional view on the transitional arrangements outlined in the decision are appropriate.  We would further note that the changes are in respect of casual employees and the employee does have a significant degree of flexibility in when and how casual employees are rostered.  Thank you.


JUSTICE ROSS:  Thank you.


MR ROBSON:  We support the submissions of the HSU and United Voice.


JUSTICE ROSS:  Anything in reply?




JUSTICE ROSS:  No, can't tempt you again Mr Pegg?  All right.  Nothing further, well we'll hear from you at 9.30 Mr Ferguson and we'll see the rest of you then as well.


MS DOUST:  Your Honour, I had proposed this afternoon to open the HSU's case but - - -




MS DOUST:  I promise I won't take long.  It's simply I think to outline the matters that still remain alive, in particular in circumstances where the Bench identified at the end of the decision of 2 September 2019 the claims that remain to be pressed.  I wonder if the Bench has a copy of that decision - - -


JUSTICE ROSS:  Almost certainly not, no.


MS DOUST:  - - - to hand.  Can I indicate this - - -


JUSTICE ROSS:  Is this the decision on 2 September?


MS DOUST:  Yes, it is.


JUSTICE ROSS:  Which paragraph?


MS DOUST:  It is attachment A which is at page 41 of the decision.


JUSTICE ROSS:  Right, yes.


MS DOUST:  I just wanted at the outset to outline the claims that remain alive and to give the Commission an overview of the HSU's case.  First of all, as to the claims that remain alive, if I can ask you to look at attachment A at page 41, do your Honours see there's a heading 'HSU claims'?




MS DOUST:  Above that appears the word 'minimum engagements' and that's not something that appears under the HSU claims but of course the question of minimum engagements is quite central in the HSU's case, and that was a claim that had number S10.  So that should be included in the claims still alive on the part of the HSU.


Working down the list, these are claims that have previously been withdrawn or abandoned.  This is the first claim, S16 amendments to various classification criteria?




MS DOUST:  S24, payment of wages.  That was a claim that a penalty be paid if the wages were paid late.  S28 and S32, variation to ordinary hours of work and rostering clauses.  S45 excursions and S54 shift work.  So all of those claims can go out of your Honours' considerations in terms of the next week or so of hearing.  Can I indicate this, a fundamental part of the claims for the HSU involves three different claims which we say are inextricably linked, that is minimum engagements, broken shifts and travel. That's S10, S19 and S35, and we say that these claims need to be analysed together, they're at the centre of the HSU's case and it's the combined operation of these provisions in the award; clause 10, clause 25.6, that operates to create inequity and possibility inequity in the conditions applicable to a significant portion of the workers covered by the award.  That is disability services workers and homecare employees.


The HSU's claim in respect of minimum engagements picks up from the decision of the Full Bench in the part-time and casuals case.  That's in [2017] Industrial Reports Volume 269 page 125, and in that decision the Full Bench noted - - -


JUSTICE ROSS:  Whereabouts?


MS DOUST:  I'm just about to tell your Honour.  At page 306, paragraph 399 it analysed the previous cases in both the State Commission and elsewhere in relation to minimum engagements and noted that:


The purpose of minimum engagements is to ensure that there's a sufficient amount of work and income to justify the expense and inconvenience associated with attendance.


Your Honours might recall that was a blanket claim by the ACTU for four hour minimum engagements across the board.  Of course the Full Bench there wasn't minded to institute that sort of minimum engagement as a blanket rule but did observe in respect of some of the evidence about work in the disability sector that the evidence of short shifts verged on being exploitative.  Exploitative of course being one of the terms used in the rationale in respect of minimum engagements.


The Full Bench there - and this is at page 312 of that decision, paragraph 406, referred to the instance of disability services worker, a Ms Patoy, who worked a shift of an hour and a half length which required travel of about an equal amount to perform and so it's in the context we say - it's in the context of that invitation from the Full Bench that this claim is advanced in the context of these proceedings, and that the Bench should examine the capacity under this award for there to be similar arrangements verging on exploitative when one looks at the amount of time needed to be devoted by an employer - sorry, an employee, to the performance of the particular work compared to the period of the remunerative work.


The Full Bench in that case also referred to the circumstances of a Mr Quinn and can I indicate this, we've included Mr Quinn's statement from the earlier proceedings in the court book, and we've also obtained an updated statement from him.  Mr Quinn's circumstances illustrate two different types of inequity that arise as a consequence of the absence of minimum engagements applicable to part-time workers under this award, and the unbridled capacity to break shifts during the course of the day.  So there's two different sorts of inequity there.  The capacity to have a very short shift where the amount of time and resources expended on attending for the shift well outweigh the value of the remuneration itself.  The other problem we say Mr Quinn's evidence identifies is that with the capacity to persistently break shifts during the course of the day, an employee can be left with dead blocks of time during the course of the day between remunerated work, and this is a concept that is examined in Dr Macdonald's paper as well.  The proliferation of dead time during the day when an employee is simply waiting around for the next remunerated period of work.


We've served a statement from Dr Macdonald who's a senior research fellow at RMIT and you'll find that in the court book, and that annexes a journal article she co-authored which is published in the Economic and Labour Relations Review.  She picks up on trends not just in Australia or she describes the trends not just in Australia but also in the UK in the provision of social care and records a number of insights in the international literature on working time and pay in this sector.


One particular observations she makes is about the excision of paid time and work time and that is something we say is a feature of the evidence in this matter, and this is a trend the Bench will observe even in the employer material, where the period of the client appointment is referred to as the shift.  So there is now, we say, in the way that the employers approach this issue a sense of equivalence between the period of time that is remunerated to the employer and what is regarded as work deserving of remuneration.


The second thing that Dr Macdonald notes is a trend internationally is high levels of unpaid work and will say that in the evidence before the Commission and just simply from an analysis of the award, one can see that with the absence of any minimum engagement provision relevant to this class of worker and with the capacity to operate with broken shifts, shifts can be broken at will, rendering travel time and the time lost to the worker between client consultations or appointments into unpaid or dead time.


Dr Macdonald refers to the work scheduled techniques that, 'drain waged time from the working day' and she refers to the devolution to workers of the risks of variable client demand.  Now that approach of devolving the risks to workers is also apparent in the employer material regarding cancellation.  One can see there that some employees frankly bemoan the fact that it is they and not the worker left to carry that risk.  So your Honour will see that in the HSU's case, each of the claims in respect of those provisions in the award are closely connected and that an analysis of each of the three and the way that they inter-relate is essential in order to deal with the problems that are identified.


Can I say in relation to Dr Macdonald, she's not been required for cross-examination.  However, our inclination was to provide her for the benefit of the Bench if the Bench wishes to ask any questions.


JUSTICE ROSS:  Is she currently in the scheduled for Thursday.  Is that right?


MS DOUST:  She is currently anticipated for Thursday.  I'm not sure her name appears in - I think there's different versions of the schedule we might be operating from but she's currently available on Thursday.


COMMISSIONER LEE:  I think for clarification, she's not on the schedule because at the mention on Friday it was made clear that she wasn't required for cross-examination - - -




COMMISSIONER LEE:  - - - but the Bench was to consider whether or not we would ask her to come in in order to ask her any questions and we haven't formed a view on that yet.


JUSTICE ROSS:  Thanks Ms Doust, we'll let you know tomorrow afternoon.


MS DOUST:  Thank you, I'd be grateful.  The next claim was numbered S50 and this is the claim for overtime payments for part-time and casual employees working beyond rostered hours or more than eight hours.  We say the evidence will show there is a striking incidence of part-time workers working hours additional to their contracted or predictable hours and the HSU claim in this regard is based upon the need for the Full Bench in considering the modern awards objective to take into account pursuant to section 134(da) the need for additional remuneration for working overtime and also for working unpredictable hours.


JUSTICE ROSS:  Just with the first sweep of changes, the ones that are interrelated.




JUSTICE ROSS:  There also appears to be an overlap then between the HSU's claims in relation to that matter and the claims of some of the other unions.




JUSTICE ROSS:  Are they in different terms, their claims?


MS DOUST:  Yes, they have been put in different terms.  I don't think the other unions in - - -


JUSTICE ROSS:  That's helpful.


MS DOUST:  - - - certainly not the UV I think makes the direct claim in respect of minimum engagements.  ASU doesn't have a claim in respect of minimum engagements.


JUSTICE ROSS:  No, but they've got a claim in respect of variation to the broken shifts.


MS DOUST:  Travel and broken shifts are certainly common to the other unions as well.


JUSTICE ROSS:  Common in the sense they're the same claim or the same topic?


MS DOUST:  Same topic.  The next claim is the claim for telephone allowance and we say the evidence will show it's an expectation particularly of homecare and disability services employees that they are in transit constantly for the purpose of their work, and the cost of remaining in communication with their employer and with clients should properly be considered costs associated with their work and compensated accordingly.  This was a claim at S19.


The next claim is the claim for uniform allowance or - - -


JUSTICE ROSS:  Is that the damage clothing allowance?


MS DOUST:  - - - claim for damaged clothing.  We say the evidence will show workers providing personal care services in the disability sector, in the home sector suffer greater wear and tear to their clothing by reason of the nature and conditions of their work.  That should be regarded as a cost associated with that work and also compensated accordingly.  Your Honours will have also seen the submissions that have been filed recently in relation to the question of recall to work and being on call.  The HSU's claim in respect of those provisions was designed to ensure that employees required to perform wok out of hours were appropriately compensated and the HSU filed a draft determination on 15 February 2019 which provided for a minimum one hour payment at overtime rates where such work was required.


JUSTICE ROSS:  The recent submissions you're referring to are ABI's, is that right?  The ones - - -


MS DOUST:  There was - yes, there was some submissions that came in from ABI and then some response submissions to those and in particular in the - - -


JUSTICE ROSS:  There were some ABI submissions filed on Saturday.


MS DOUST:  Not that recently.


MR SCOTT:  No.  Our submissions of Saturday dealt with client cancellation.  Didn't deal with remote response.


JUSTICE ROSS:  All right.


MS DOUST:  But the HSU filed a supplementary submission on this issue on 2 October and relevantly we conceded the sense in much of what the ASU had to say on this issue.  In particular, the ASU advocated a regime for compensation for out of hours work that adopted a differential approach to workers who had been rostered as on-call compared with workers who are recalled when no on-call.  That's something that wasn't part of our original submission or part of the draft determination but we see that there is good sense and logic to taking that approach.


The ASU also had some, we say, very helpful observations to make about the way in which the work should be defined and as to the obligation to perform work out of hours if called upon.  The final matter is the issue of - I'm sorry, no, the penultimate matter is the question of cancellation.  Your Honours will recall the award provides a cancellation clause in respect of home care workers, so that's limited to that cohort of workers.  The HSU's principal position, in this way it aligns with the position of United Voice, is that there should not be such a provision in this award.


The ABI seeks to expand the application of the clause to disability services workers and the HSU opposes that claim and says there is no warrant for any diminution of the conditions of this cohort of workers under this award.  The Bench should not be contemplating taking these workers back even a millimetre from the current position.  The only logical way, we say, this award should be dealt with should be with an improvement of their conditions.  But the HSU also contends that so far as the cancellation provision currently applies, it does not provide a fair and relevant minimum condition.


So far as there's an argument by ABI about extension of the clause to disability services workers, we'll take the Bench notwithstanding the view the bench expressed about the relevance for irrelevance of funding arrangements to its conclusion, we'll take the Bench to the evidence of Mr Farthing about recent changes or changes during the course of this year to NDIS funding which provide effectively for two clear days notice of cancellation to be given otherwise significant payments are to be made under the NDIS arrangements.


They might function to provide the Bench some further comfort in the approach that it takes on that question of funding.  The final question is sleepover.  The HSU's claim is simply for sensible provisions to ensure the personal security of workers who are required to sleep overnight at the workplace.  Those are the matters that still remain outstanding in the HSU's claims but I note there is one further issue that arises as a consequence of the 2 September decision and that is in respect of the 24 hour care clause where the Bench reached a conclusion that that clause, clause 25.8, didn't provide a fair and relevant minimum safety net but hadn't determined, or hasn't determined - sorry, but reached a provisional view which should be retained but wish to consider, I think, the question of remuneration or other conditions to apply to the performance of those shifts.  That is a matter that is still unresolved although it's ‑ ‑ ‑


JUSTICE ROSS:  Well interested parties are to confer in respect of those.




JUSTICE ROSS:  Have you done that?


MS DOUST:  As I understand it there's been some conciliation conferences where the matter's been, I think, mentioned but I don't wish to go too far into that.


JUSTICE ROSS:  Well until the process that's followed in paragraph 105 of the September decision's followed we won't be doing anything else because it's supposed to - there are supposed to be discussions, a joint report prepared setting out the extent of agreement and differences and submissions so it's with you not us at the moment.


MS DOUST:  Well I appreciate that.  I just wish to identify all of the issues that remain alive at this stage, your Honour.  From our perspective, those - the ones I've just outlined are the ones where there's something still remaining to be resolved.


JUSTICE ROSS:  All right.


MS DOUST:  Those were the matters I wish to touch by way of opening, unless there's any questions.


JUSTICE ROSS:  No, thank you, Ms Doust.  You're not going to leap up?  No?  We will adjourn shortly until 9.30 ‑ ‑ ‑






MS DABARERA:  Your Honour, we're prepared to do a brief opening as well.


JUSTICE ROSS:  Is there going to be anybody else?


MR ROBSON:  Yes, sir.


JUSTICE ROSS:  All right.


MR SCOTT:  Your Honour, if it's convenient, I'm not going to give an opening so you don't need to worry about that but could I just raise one matter if it's convenient, the attachment A that my learned friend took you to in the course of the opening.  There's a item there under the HSU claims, S45, relating to excusions which I understand is not being pursued but it wasn't one that Ms Doust identified.


JUSTICE ROSS:  I had it down as one she had identified and I crossed it out.


MR SCOTT:  Well I know, and not paying attention, your Honour, was - - -


JUSTICE ROSS:  Well let's check.  I mean, let's - - -


MS DOUST:  No, that's gone.  That's fine.


MR SCOTT:  Sorry, your Honour.


JUSTICE ROSS:  Ms Dabarera.


MS DABARERA:  Your Honour, I will be brief given there is some cross-over between the HSU and the United Voice claims.  We have five remaining claims in these proceedings and one claim, the broken shifts claim, has two parts to it.  Our first claim as to travel time, that's a claim that we also agree with the HSU that broken shifts, travel time and minimum engagements are very linked and they are some of the core issues that we believe these proceedings should deal with.


In respect of travel time, our current position - our position is that if an employer directs an employee to travel from one location to another in the performance of work then that is work and should be paid in accordance with the appropriate rate of pay.  We don't concede that it's not payable under the current terms and conditions of the award and we currently have proceedings before the Queensland Magistrate's Court in relation to this matter.


Our Queensland industrial officer, Mr Jared Marks, gives some evidence on this in a statement that we have filed.  Whilst we - - -


JUSTICE ROSS:  Where's the matter up to in the Queensland Magistrate's Court?


MS DABARERA:  Sir, at the moment there is a hearing set down for December to deal with a stay application from the employer representative, so the respondent in those proceedings has sought to stay that matter on the basis that the award is currently being reviewed.  We don't agree with that position but that's going to be dealt with in December and then there'll be evidence and submissions following that.


JUSTICE ROSS:  All right.


MS DABARERA:  Whilst we say that the current position is that travel time is payable, it is apparent to us that some employers do not heed this and we see value in having a specific and clear clause within the award to state this.


JUSTICE ROSS:  Sorry, can I just go back to the Queensland Magistrate Court matter.




JUSTICE ROSS:  What is the nature of the proceeding?


MS DABARERA:  It's an underpayment proceedings in relation to four employees.


JUSTICE ROSS:  I'm just trying to maybe understand the basis of the stay, because we wouldn't be varying retrospectively in the normal course.


MS DABARERA:  I understand, your Honour, and we also have difficulties understanding the basis of the stay application.


JUSTICE ROSS:  That's fine.


MS DABARERA:  In respect of broken shifts, we would support the HSU's submissions.  We think there are real issues with the current award in that it can result in some employees working multiple portions of a broken shift each day; sometimes in four or five different portions with long breaks in between.  The effect of this is that employees are essentially required to be available for long periods of the day in order to try and obtain some decent hours of work.


We have a second part of our broken shifts claim, which is that we say the shift allowance should be paid in accordance with the higher of the morning or the evening penalty - sorry, of the starting time or the finishing time of the shift, not just finishing time as is currently in the award.  We also have a mobile phone allowance claim, similar to the HSU.


We have filed a revised draft determination along with our submissions on 3 October 2019 to address some concerns that the employers raised in relation to the allowance.  However, our position stands that were an employee is required by the employer to use a phone for the purposes of work, then they should properly be reimbursed for that.  The evidence from our home care witnesses will show that they are required to use it in the course of their duties.


We have a claim for overtime for where there is a change of roster and seven days' notice is not provided.  The exclusions in clause 25.5(d)(ii) and (iii) don't apply.  We say this variation is necessary to provide employees with compensation for the disutility experienced by employees where there are unjustified and regular roster variations.


Our final claim is the uniform allowance; that is S2A.  That is a claim to ensure that employees are provided with an adequate number of uniforms so that they are not required to launder those uniforms more than once a week.  Certain types of work in this sector, such as home care work, can require intimate engagement with clients and uniform items can easily become unclean.  We say it is fair for an employee to have a clean shirt to wear for every day of work and having to constantly wash clothing becomes a drain on the employee.


In general, we participate in this process in the hope of improving conditions for employees, as we always do, but we have concerns that with this award in particular that it provides some very low conditions for workers who are having to be - as Ms Doust mentioned, especially disability support workers and home care workers who may have to be available for long stretches of time to try and obtain a few hours of work, who may be travelling at the direction of the employer unpaid between shifts and who could be working several broken shifts of short duration.


Modern awards should provide a fair and relevant set of conditions, decent hours of work and with decent shift lengths so that employees can have a decent standard of living.  We say this current award falls below the mark and that this four yearly review represents an opportunity to address these issues.  We will be calling five witnesses.  Two of the witnesses, Ms Sinclair and Ms Fleming, are currently home care workers.  One of the witnesses, Ms Stewart, was a home care worker until September.


The other two witnesses are union employees.  Mr Jared Marks, as I mentioned, is a Queensland industrial officer.  Ms Melissa Kode will give some evidence about funding and policy issues.  Thank you, your Honour.


JUSTICE ROSS:  Thank you, Ms Dabarera.


MR ROBSON:  Thank you, sir.  The ASU has three claims in these proceedings.  I will go through them now because while they do cover the same subject material as the other union claims, they are not necessarily expressed in the same terms.  I suppose the largest area of discussion in these proceedings is going to be around the broken shifts clause, 25.6.  We have a claim to put a 15 per cent penalty on broken shifts.  Where an employee works a broken shift, they will then be paid a 15 per cent loading.


I suppose you could consider our claim as being in the alternate to the HSU and United Voice claims which seek to regulate the broken shift in different ways.  We say the disamenity of the clause as it is now necessitates an additional payment and we would accept that if the clause was, I suppose, improved, if the disutility was reduced, then the loading that we were proposing also should be reduced.


We are supporting the United Voice paid travel time claim in their draft determination and again we echo the submissions made by Ms Dabarera.  Travel at the direction of an employer is work, but we also add that there is an equal remuneration argument.  If these workers were doing this under a different award, if they were in a male dominated industry, this would be paid working time and the award wouldn't permit the type of arrangements that exist in the industry at present which allow them to do that work unpaid.


Finally, we have a claim to vary the award to include a remote response term.  This claim was made in response to the ABI claim and we filed our draft determination on 23 September.  We agree with Australian Business Industrial that a clause of this sort does need to be included in the award.  However, there are significant issues with their clause.  Firstly, it creates no distinction between a period of time where someone is rostered to be on call and a period of time where someone is not.


What we propose, very briefly, is that there should be a scheme in the awards where if someone is called up out of the blue, there should be a penalty paid, they should get overtime rates; whereas if the employer is doing the right thing, building an on‑call roster, asking people to respond, then there should be a different arrangement with a lower rate of pay, but this still puts an imposition on people's lives and there's still an impact, so there should still be significant minimum engagements and the payment of overtime.


We also oppose the ABI claims regarding client cancellation.  Our interest in this claim has largely been with disability services.  We say there is no evidence of a need for it in the sector.  In particular funding arrangements in the sector mean that most cancellations, on the evidence put forward by the employers, would already be paid for by government or another funding body.  In this case it would create a perverse situation where an employee would be losing pay while the employer would still be funded for it.


In support of our application we have filed a number of witness statements from ASU members and we have also filed the expert witness statement of Dr Jim Stanford of the Australia Institute.  His statement regards the conditions in the disability sector and their relationship with the modern award.  You will hear his evidence, which discusses a difficulty in the sector of attracting the necessary number of skilled staff, the impact of that problem on client care and the relationship between the lower standard of conditions and the lower safety net set by the award, and the difficulty of attracting the type of skilled, experienced and qualified workers to the sector.  Thank you sir.  I'll finish.


JUSTICE ROSS:  Can I just go to the broken shift proposition.  I'm just struggling to understand the relationship between your claim and the other unions.  You said that your claim is for a 15 per cent penalty.


MR ROBSON:  Yes, sir.


JUSTICE ROSS:  You have taken a different approach; that is, a penalty rather than regulating the broken shift provision.  You then said that, look, the amount of the penalty might be lower - 10, 5 per cent or whatever - depending on what happens with the other unions' claim, so a degree of regulation may mean there is less disutility.




JUSTICE ROSS:  So the quantum of your claim reduces.  Am I understanding it correctly?


MR ROBSON:  Yes, that's correct.


JUSTICE ROSS:  Well, how will we know what your claim is going to be until we have determined the other claims?


MR ROBSON:  Well, sir, I suppose my point is that the unions identify a number of problems with the broken shift clause and I suppose each union has brought a different solution to that problem to you.  We have said that it should be compensated for.  Now, the Commission doesn't have to - if it finds that there is a problem in the sort of way we've set out, it doesn't have to adopt our solution.  It may choose another solution and so we'd acknowledge in that case that many of the - many of the elements of broken shifts that we say justify a 15 per cent penalty would no longer exist.  We'd still make the submission that there should be some type of additional compensation - - -


JUSTICE ROSS:  Well I suppose you won't know whether you make that submission or not until you know the extent of the regulation.


MR ROBSON:  Indeed, but you'd asked my friend Ms Doust about the relationship between the union claims.  I wanted to make it clear at this point that our claims aren't necessarily in opposition to each other, we've identified the same problems, we've got the same - our members experience the same concerns.  There are many ways to skin a cat, we've presented you with one.


JUSTICE ROSS:  Thank you.


MR ROBSON:  Thank you, sir.


JUSTICE ROSS:  Anything further?  Just before we go, there's one further matter we want you to give some consideration to.  At present this matter's listed for Monday to Wednesday of next week.  At the moment it looks as if the evidence will conclude this week.  Our present inclination is not to proceed with the listing dates for next week.  When you look at the volume of material I think the court book's in seven volumes and this isn't intended as a criticism but the sort of myriad of submissions and claims have shifted somewhat over the course of the journey, and at least speaking for myself I want to be very clear that I understand what's being sought in each case.  My preference would be to put that in some sort of background paper for the parties to look at it and make sure that we're right about what it is you're seeking and what it is you're relying on.


My apprehension is, at least from my perspective, is if it goes on to submissions on Monday I'm not going to have all the questions framed in my mind that I'm going to want to put to you and that doesn't mean I'd forget about the questions, it means I'd call you back later to answer the questions.  So that's one consideration that's sort of based on my own limitations to get across the material in the timeframe.


The second is that there's a degree of complexity in the range of evidence, we don't know how that might shift under cross-examination, and I think it'd be desirable to have some greater clarity about what findings people are seeking on that evidence and from our perspective by direct reference to the evidence itself.  It isn't going to be fair on any of the parties if we sort of finish the evidence at let's say 12 o'clock on Friday and say well we'll see you at two and you can start your submissions, or the following week for that matter.  Again, speaking from self interest if we were to do that I apprehend that the submissions would be fairly general in character.  It'd be something like the Commission would gather from all the evidence that it all supports our case and we'd be looking for something a bit more specific than that.


So give some though to that, see what process would work best for the parties.  I think we followed from memory a similar process in children's and teachers, for those of you who were here for that part of the journey, but it would involve at some point some form of background document from us capturing the claims, putting in the evidence.  We would seek from you what findings you seek in relation to the evidence, we'd include that in a background document and then we'd have an oral hearing.


It wouldn't be that we wouldn't be having an oral hearing because that's probably a more efficient way of responding to the submissions of others than doing it in writing, but just give some thought to that and what sort of timeframe and availability issues.  The first step in that process would be seeking from each of you what findings you're seeking to make on the witness evidence by reference directly to the transcript references, exhibits and the paragraphs which you rely on.  We'll see you at 9.30 in the morning.

ADJOURNED UNTIL TUESDAY, 15 OCTOBER 2019                     [3.09 PM]