PN1

JUSTICE ROSS: Could I have the appearances please? Let's just start from the end. If you keep your seat because the cameras might have trouble tracking you around.

PN2

MR ROBSON: May it please, Robson for the Australian Services Union. With me on the back bench is my colleague, G South also for the Australian Services Union.

PN3

JUSTICE ROSS: Thank you.

PN4

MS L DOUST: Yes, your Honour, I appear for the - or I seek permission for the HSU. My name's Ms Doust, initial L. With me is Ms Liebhaber from the HSU. She's just to my right.

PN5

JUSTICE ROSS: Thank you.

PN6

MS N DABARERA: Your Honour, if the Commission pleases, Dabarera, initial N, appearing for United Voice, and at the second bar table with my colleague Ms Bolton.

PN7

JUSTICE ROSS: Thank you.

PN8

MR B FERGUSON: If the Commission pleases, Ferguson, initial B, for the Australian Industry Group and with me at the bar table is Ms R Bhatt.

PN9

JUSTICE ROSS: Thank you.

PN10

MR K SCOTT: If the Commission pleases, Scott, initial K, seeking permission to appear on behalf of Australian Business Industrial, the New South Wales Business Chamber, Aged and Community Services Australia and Leading Age Services Australia, and behind I have my colleague, Ms Tiedeman.

PN11

JUSTICE ROSS: Thank you. Mr Pegg?

PN12

MR M PEGG: If the Commission please, Pegg initial M and I seek permission to appear on behalf of National Disability Services.

PN13

JUSTICE ROSS: Thank you. AFEI?

PN14

MS N SHAW: If the Commission pleases, Shaw, initial N, for AFEI.

PN15

JUSTICE ROSS: Thank you, Ms Shaw.

PN16

In relation to for the applications for permission to appear, do I take it that they're put on the basis of having regard to the complexity of the matter it would be dealt with more efficiently if permission were granted?

PN17

MS DOUST: Yes.

PN18

JUSTICE ROSS: That's true in each case?

PN19

MR SCOTT: That's right.

PN20

JUSTICE ROSS: And are the applications opposed by any party?

PN21

MR FERGUSON: No.

PN22

JUSTICE ROSS: No?

PN23

MS SHAW: No, your Honour.

PN24

JUSTICE ROSS: Look, because the Bench is split in Melbourne and Sydney, it's difficult for us to confer in relation to it, so we'll each give our decision individually. I would grant permission to appear to each of those who have sought it on the basis that having regard to the complexity of the matter it will be dealt with more efficiently.

PN25

DEPUTY PRESIDENT CLANCY: I grant permission.

PN26

COMMISSIONER LEE: I concur with the statement of the President.

PN27

JUSTICE ROSS: Right, so we'll grant permission on that basis. Can I just take you to the statement of 8 April and there's the timetable there, and as you know today we're dealing with - we're starting with some procedural matters and then with the United Voice claims that are identified there, Ms Dabarera. As the statement indicates United Voice is not leading any witness evidence in relation to claims we're dealing with today. You have three witness statements but my understanding is they're going to be in relation to the - what we've described loosely as the second tranche of the proceedings. Is that right?

PN28

MS DABARERA: Yes, that's correct, your Honour.

PN29

JUSTICE ROSS: Right. Just going to the second tranche. At attachment B to the statement of 8 April there's a list of outstanding claims. There is also in United Voice's submission of 4 February - bear with me for a moment. I remember reading it, Ms Dabarera, but it said in effect that you're reserving your position to launch off with some other claims, and I suppose the first question is to you but then I'll ask more generally two questions. One, is the list at attachment B accurate and complete - well, accurate as far as it goes and then secondly, are there any other claims? So perhaps if we deal with you first because I can recall you made a statement too.

PN30

MS DABARERA: I believe that was in our statement, sorry, our submission on 15 February we noted that we may be pursuing other claims in respect of matters that had been dealt with in the joint report. The only matter we have decided to pursue from within that range is the travel time claim which we made some further submissions about, which is S2.

PN31

JUSTICE ROSS: Yes.

PN32

MS DABARERA: In respect of attachment B, the list of outstanding claims, there are a few corrections to that. So S19A paid travel time, that is not a claim that United Voice pursuing, that's the joint position on travel time contained within the joint report, which is separate from S2, which is the variation that United Voice is pursuing.

PN33

JUSTICE ROSS: Well, what do I do with S19A?

PN34

MS DABARERA: We can delete it given that - - -

PN35

JUSTICE ROSS: Is anyone pursuing that? No.

PN36

MS DOUST: I'm sorry, we pursuing something that has that number but in accordance with our submission - - -

PN37

JUSTICE ROSS: You've got S19?

PN38

MS DOUST: Yes, S19.

PN39

JUSTICE ROSS: It's a different one.

PN40

MS DOUST: I'm sorry, I thought you said 19.

PN41

JUSTICE ROSS: I might have but I meant S19A.

PN42

MS DOUST: I'm sorry.

PN43

JUSTICE ROSS: The one that Ms Dabarera had referred to. Paid travel time. So that one can be deleted?

PN44

MS DABARERA: That's correct, your Honour.

PN45

JUSTICE ROSS: Are there any other corrections that you have to the list?

PN46

MS DABARERA: As I mentioned at the last mention, S49 was withdrawn, the variation.

PN47

JUSTICE ROSS: Yes, yes, that's right.

PN48

MS DABARERA: In respect of minimum engagements, we don't have a claim for minimum engagement periods but we do support the HSU's claim.

PN49

JUSTICE ROSS: Which is claim what?

PN50

MS DOUST: S10 I think.

PN51

JUSTICE ROSS: S?

PN52

MS DOUST: 10, I think.

PN53

JUSTICE ROSS: So that's not on the list.

PN54

MS DOUST: It appears in italics just above the heading "HSU claims" in attachment B.

PN55

JUSTICE ROSS: Yes, all right. S10 minimum engagements and that should come under HSU.

PN56

MS DOUST: Yes.

PN57

JUSTICE ROSS: Anything else from you, Ms Dabarera?

PN58

MS DABARERA: No, your Honour.

PN59

JUSTICE ROSS: No. All right, we may as well go to the HSU. Is that an accurate reflection of your list if we put S10 in there?

PN60

MS DOUST: I'm sorry, S45 which refers to excursions.

PN61

JUSTICE ROSS: Yes.

PN62

MS DOUST: That's not an HSU claim.

PN63

JUSTICE ROSS: Right.

PN64

MS DOUST: I've got my doubts about S50 and S54, your Honour.

PN65

MR FERGUSON: I'm just looking at summary document, your Honour, that says S54 was withdrawn.

PN66

MS DOUST: No, S50 is correct, your Honour.

PN67

JUSTICE ROSS: S50 is correct. S54 is out?

PN68

MS DOUST: Yes, correct. Just one moment. Yes, that's out.

PN69

JUSTICE ROSS: So the rest of it's okay?

PN70

MS DOUST: Yes.

PN71

JUSTICE ROSS: Nothing to add?

PN72

MS DOUST: Subject to S10 which is minimum engagements.

PN73

JUSTICE ROSS: Yes. No, no, sure.

PN74

MS DOUST: Yes.

PN75

JUSTICE ROSS: The ASU?

PN76

MR ROBSON: Yes, your Honour. S36 is correct, we're pursuing that but also noting that we'll be supporting United Voice's claim S2.

PN77

JUSTICE ROSS: Yes, sure. Yes, I know, that's fine.

PN78

MR ROBSON: We'll be filing evidence and submissions in support of that.

PN79

JUSTICE ROSS: You will be or you have?

PN80

MR ROBSON: We will be.

PN81

JUSTICE ROSS: Right, well we'll come to when you might be doing that and - well, let's come to it now. When are you planning on doing that?

PN82

MR ROBSON: Yes, sir, so there's been some discussions with the employer parties.

PN83

JUSTICE ROSS: Right, well in that case we will come back to that. Let's just check ABI's list before we go too much further.

PN84

MR SCOTT: It's correct in the sense that it has all of the items. I'm just conscious - the claims that my clients are pursuing are as set out in the draft determination. Now item 1 of that deals with ordinary hours or work which is listed there. Item 3 deals with a variation to the roster clause. I'm conscious that there's no change of roster reference there but - - -

PN85

JUSTICE ROSS: Well, is it easier just to say that ABI's pursuing the variations set out in its draft determination of X day?

PN86

MR SCOTT: Yes, absolutely.

PN87

JUSTICE ROSS: What was the date?

PN88

MR SCOTT: It was filed on 2 April.

PN89

JUSTICE ROSS: Everyone has that.

PN90

MR SCOTT: Yes.

PN91

JUSTICE ROSS: So you're pursuing the variations set out in that draft determination.

PN92

MR SCOTT: Yes.

PN93

JUSTICE ROSS: Right. Sorry, you were saying that there had been some discussions with the employer parties. Is that generally about the programming and those sorts of issues?

PN94

MR SCOTT: Yes, sir.

PN95

JUSTICE ROSS: Is there some agreed position about all of that?

PN96

MR SCOTT: No, but I think we're close. I might leave that to ABI because they've come to us with a written proposal.

PN97

JUSTICE ROSS: Right. Well, look, if you're close do you want to deal with it now or do you want to come back to it? As long as we deal with it at some point during these three days, I'm not troubled by the when.

PN98

MR SCOTT: I've circulated something in the form of proposed draft directions. It may assist I think and it may be more efficient if I hear from the parties in the lunch break as to what their positions are and if are close we hopefully can be in a position to put something that's agreed.

PN99

JUSTICE ROSS: When you say - yes, when you say during the lunch break that sort of assumes we might be coming back after lunch. I'm not entirely sure about that but in any event - - -

PN100

MR SCOTT: Or over night.

PN101

JUSTICE ROSS: - - - at the conclusion of the hearing today, because bearing in mind the limited number of claims and no evidence we're likely to get through it before the luncheon adjournment. But you'll have a discussion at the end of - at a convenient time today and see where you go with that.

PN102

MR SCOTT: I'm content with that.

PN103

JUSTICE ROSS: Right. Tell me does the - have the discussions progressed to not only the directions but does that deal with how many days are likely to be required and any preference for when the hearing would take place?

PN104

MR SCOTT: What I've circulated is it has some dates for the filing of evidence and submissions and they're couched as being no earlier than X date. But I think those dates may be flexible depending on when a hearing is set. I think on the kind of dates and the timelines that I've mapped out, I think the hearing will be no earlier than August on our proposal and so I think whether it's August, September may largely depend on the availability of the Bench.

PN105

JUSTICE ROSS: I think we could do August. I mean, I'll check that. You might just give my associate a copy of it when we break and the Bench will have a discussion about our availability and try and give you the earliest date in that timeframe; and so we'll at least be prepared if you come back with some agreed position about where you're up to, and if it's not agreed then we'll make a decision about what we do.

PN106

MR SCOTT: Yes, and just in terms of the question you raised, your Honour, what I proposed is that we have about five days for the hearing of evidence and dealing with the evidence, and then perhaps have a short break and have it part heard and then come back a week or two later and have a couple of days of closing submissions. Because I'm conscious that there may be a volume of evidence that we'll need to perhaps consider. Ultimately we're in the Bench's hands as to that, but that's what I proposed.

PN107

JUSTICE ROSS: All right, well, if you have the discussions and we'll hear from everyone at a convenient time.

PN108

MR FERGUSON: So about - - -

PN109

JUSTICE ROSS: Is there anything else on the list of claims?

PN110

MR FERGUSON: Sorry, just two things before - without going into any detail, just in relation to the dates of the Bench. I note there's a number of matters in - - -

PN111

JUSTICE ROSS: No, I'll look at the substantive hearings' calendar and take that into account. That's why I want to know when your current thinking is on the end time.

PN112

MR FERGUSON: Yes.

PN113

JUSTICE ROSS: And we'll fit in with what else is happening.

PN114

MR FERGUSON: On the current claims just one point of clarification. I think the statement talks about S51 variation to overtime clause being the subject of the proceedings this morning. I think when we looked at the summary document that potentially encapsulated a number of issues, but I think the parties are proceeding on the basis that the only contest today around overtime is the application of the casual loading to overtime.

PN115

JUSTICE ROSS: That's the basis on which I was proceeding as well and that's where the written submissions have landed also. So did anyone else have a different view about that? No? All right. Anything else by way of procedural issues? Can I raise one thing about tomorrow and the day after? In the proposed timetable that was attached to the statement it has got witness evidence starting at 9.30 say tomorrow, the HSU witnesses. Then submissions starting at two - - -

PN116

MS DOUST: Sorry, I think that should be Wednesday, your Honour.

PN117

JUSTICE ROSS: Yes, Wednesday. Yes.

PN118

MS DOUST: I hope.

PN119

JUSTICE ROSS: No, no, it's Wednesday. So let's take that as an example. It's the same thing tomorrow with the ASU's witnesses, that they start at 9.30 with submissions starting at two. I just want to put you on notice about you need to be a little bit flexible about this submissions starting at two proposition. I doubt if the cross‑examination will take as long as has been scheduled. I mentioned on the last occasion make sure you've got your witnesses available so we can move through them relatively quickly. We're not going to shift VC slotted times because that just becomes messy for everyone. So we have Hobart at 11 and Melbourne at 11.30. So that might mean we'll have for example in the HSU's case Farthing and then probably shortly followed by Sheahy - - -

PN120

MS DOUST: They'll be available in Sydney, your Honour.

PN121

JUSTICE ROSS: Yes, I know. Yes.

PN122

MS DOUST: Yes, sorry.

PN123

JUSTICE ROSS: Eddington will be available in Sydney or you're talking about the first two, Farthing and Sheahy?

PN124

MS DOUST: Farthing and Sheahy will be available.

PN125

JUSTICE ROSS: Yes, yes.

PN126

MS DOUST: And they will work - it's only the witness coming in from Hobart who's giving by way of video link.

PN127

JUSTICE ROSS: So Elrick is appearing in Sydney as well?

PN128

MS LIEBHABER: Yes.

PN129

JUSTICE ROSS: Not by VC from Melbourne as originally?

PN130

MS DOUST: No.

PN131

JUSTICE ROSS: If Elrick then can be available before 11 then we can probably get rid of the - and that may mean for argument's sake that the witness evidence is finished by 11.30.

PN132

MS DOUST: Yes.

PN133

JUSTICE ROSS: I'm not proposing to break until two is the short point. So we would provide a break after the witness evidence to allow people an opportunity to reflect on it and to think about it, but it's not going to be a three hour break. So it's more likely we'd take an early lunch break of an hour and a half or so. Look, you know, subject to what people want to say at the time. It depends a bit on what emerges from the evidence obviously, but it only occurred to me that you maybe might have been misled by the 2 o'clock start.

PN134

MR FERGUSON: Yes, in that vein I'll just let your Honour know that there's been some incomplete discussions around objections to evidence and that might have an impact on who's required for cross and so forth.

PN135

JUSTICE ROSS: Sure. To the extent possible, resolve those and we would probably deal with all of the objections in relation to, say, the ASU witnesses at 9.30 rather than when they're being tendered because we just want to hear what people - it's likely the same objection will take place across all four statements. And the same with the HSU, we'll try and clear up any objections and it may be that they can be either dealt with by not relying on a part of a statement or by a concession about a particular point. Okay? Anything further procedurally? No?

PN136

Let's then go to United Voice - and bear with me for a moment - and, look, we've obviously read the written material. Speaking for myself I've got a number of questions for the parties in respect of each of the claims. You don't need to - if the summary's inaccurate by all means draw our attention to that, and if there is a particular salient point that you want to emphasise or focus on, and then anything you want to say in response to what has been put against you.

PN137

Ms Dabarera?

PN138

MS DABARERA: Yes, your Honour. I wasn't planning to repeat our submissions but I will kind of raise important points and respond to the employer.

PN139

JUSTICE ROSS: Yes, that's fine. Just so you're aware of how I was proposing to do it is we'll deal with it claim by claim.

PN140

MS DABARERA: Yes.

PN141

JUSTICE ROSS: Or the first two are obviously related.

PN142

MS DABARERA: Yes.

PN143

JUSTICE ROSS: And so we'll hear from you and then hear from the employers as we go through each claim, okay?

PN144

MS DABARERA: Yes, your Honour. I am also mindful - I think I raised this at the last mention as well - that the HSU has some overlapping claims in respect of the 24 hour care clause and the overtime for casuals.

PN145

JUSTICE ROSS: Yes and look, as I indicated on the last occasion, probably the most convenient thing is for the employers to reply after the HSU has put its arguments in relation to those two issues. I do have some questions for the employer submissions about those issues, which I may as well put to you today and you can either deal with them today or take them on notice. They're not of any particular great moment but just by way of clarification.

PN146

MS DABARERA: Your Honour, before I start we are withdrawing one of our claims. So we're withdrawing S47 with is the variation to excursions clause.

PN147

JUSTICE ROSS: The TOIL clause, yes?

PN148

MS DABARERA: Yes. Yes, your Honour.

PN149

JUSTICE ROSS: Yes.

PN150

MS DABARERA: So I will first start with S44A which is the deletion of the 24 hour care clause. Clause 25.8, the 24 hour care clause in the SCHADS Award should be deleted as it permits an employer to require an employee to work 24 hours with payment for only eight hours. It is important when considering this to distinguish between the provision of a service in which a client is provided with 24 hours of care, which is a different issue to the use of clause 25.8.

PN151

Clause 25.8 is not required to provide 24 hours of care to clients. Generally a person requiring care over a 24 hour period would need a high level of care and care which is periodic in nature. For example perhaps the client needs assistance with eating or with going to the toilet. This type of care can't be provided in a block period of say four hours. There is a need for a home carer to be with a client for the whole period. In this sector it's sometimes referred to as live-in care. There are two main ways in which care over a 24 hour period can be provided.

PN152

The first is that one individual home care worker provides care for the whole 24 hour period, and this could be for up to two to three consecutive days. This is where clause 25.8 would be utilised. The alternative method is by which three separate workers could cover the 24 hour period depending on the level of care required. So where the client has a high level of care need, even over the night, this may be in three active shifts of eight hours each, or alternatively one employee may have a sleepover shift and the two others would have active shifts.

PN153

Both of these methods are utilised in this sector already and on our understanding it's the second method, which is the use of multiple employees and doesn't require the use of clause 25.8, which is more regularly used. It's our view that that method is more appropriate. Clause 25.8 doesn't meet the modern awards objective as employees do not receive adequate breaks, the employee may not receive adequate sleep and the employee is doing unpaid labour. We say this is inconsistent with the modern awards objective and also may be in breach of the Act, sections 63 and 323, as outlined in our submissions.

PN154

I won't go into our submissions further but I'll respond to some of the issues that the employers have raised. In respect of ABI and the New South Wales Business Chamber, one of the issues they raised in stating that where work above eight hours is performed then overtime will be paid. Whilst we do agree that that would be more appropriate than the current situation, clause 25.8 as it is does not state this, nor do the other award clauses provide employees with this certainty. For part-time employees, who are the bulk of home care employees, in other clauses within this award overtime only commences at either after 38 hours per week, which is clause 28.1(b)(i) or 10 hours per day, clause 28.1(b)(ii). So there is real ambiguity as to what happens once the eight hours of work is completed.

PN155

The current situation from - - -

PN156

JUSTICE ROSS: It's one thing for there to be ambiguity but isn't that addressed by providing clarity not by deleting the clause as a whole?

PN157

MS DABARERA: Your Honour, our issue is two fold. So one, the clause states that you do the eight hours of work, so there's an issue of what happens once it goes over that. Our second issue with the clause is that if an employee is required to be at the worksite for a 24 hour period, we say that whole period should be paid. Because currently they're required to be there without payment for a large bulk of that period.

PN158

That's the second issue that is raised by ABI about whether the 24 hour period is work, and ABI states that there are a range of provisions dealing with situations in which employees are required to be on call, on standby, or otherwise available. What we see as the notable difference in this circumstance is that if you're on call or on standby you're free to go about your day provided that you're ready and able to attend work with some ease and haste. But clause 25.8 requires that the employee is present at the home or with the client for that whole period, so they're not on call, they're at work. This is especially important to note in the context of home care employees not having a traditional office. So the client's home is really their worksite.

PN159

The other issue that ABI have raised is that there's no evidence - it's about the remuneration and they have said that there's no evidence about the value of the work that would justify any change to the amounts payable for the work, and that the Commission should in the absence of any evidence consider that a loading of 55 per cent provides appropriate compensation for the disutility. We say in this matter that it's not necessary to put in evidence as the need for change is self-evident. The disutility of working a 24 hour period is clear. An employee's ability to attend to caring responsibilities, spend time with family, get proper rest and attend to their own health will be negatively effected.

PN160

NDS in their submissions admits that the clause facilitates an employee working without the constraint of the break between shift provisions of the award. That's in paragraph 23 of their submissions, and we say that's the issue. Employees should have appropriate breaks between periods of work and clause 25.4 of the award provides that employees should have a 10 hour break between shifts or eight hours in particular circumstances. Clause 25.8 should not bypass that break provision.

PN161

NDS also proposes amending the clause to provide that the 55 per cent loading is payment for any additional work required for up to two hours with overtime payable for all work performed beyond that amount. We oppose this on the basis that I mentioned earlier, because all the time that an employee is required to be at a worksite is work and an employee should be paid for all hours worked.

PN162

AFEI argues that employees will be able to use smartphones or the internet - - -

PN163

JUSTICE ROSS: Isn't that the nub of the contest, that you say for any time when they're required to be at the location is to be regarded as work, even the employee may be sleeping, may not be required to physically perform work but is ready and willing and able to perform work if called upon to do so. But the employer argument is well, it's an analogous to an on call circumstance once you get - they're on the location, they're required to perform work when they're called upon to do so. That's their argument. It's really how you characterise the there for the 24 hour period.

PN164

MS DABARERA: Yes.

PN165

JUSTICE ROSS: Look, I just - I was interested in what do you see as the distinction between - leave aside the - I mean conceptually I don't mean what the clause says.

PN166

MS DABARERA: Yes.

PN167

JUSTICE ROSS: But between sleepovers and 24 hour care, what's different between those two things? What happens differently?

PN168

MS DABARERA: Well, under the current sleepovers clause you receive an allowance, so it's an eight hour shift and you receive - it's about $47.

PN169

JUSTICE ROSS: Yes.

PN170

MS DABARERA: Also if you're required to perform work within that time, so if you have to get up and attend to the client, you receive payment for that.

PN171

JUSTICE ROSS: What, a minimum of an hour for each time you're required to do that.

PN172

MS DABARERA: That's correct, your Honour.

PN173

JUSTICE ROSS: So you receive an allowance for your availability.

PN174

MS DABARERA: Yes.

PN175

JUSTICE ROSS: Then when it's called upon - but are you - but you're - but you're not paid for when you're not - other than for the allowance - I suppose it depends on how you conceptualise the 55 per cent loading and it might be put against you well, that's an analogous to an allowance and they've sort of - rather than the minimum hour they've said you'll be required to work eight hours over that period.

PN176

MS DABARERA: Well, what we say in response - - -

PN177

JUSTICE ROSS: I mean it's a different instruction, I accept that. I'm just trying to - and we don't really know much about, other than they have a long history, there's not much about how they were - were they arbitrated initially or inserted. Is it the subject of any arbitral decision at all about them or have they just jogged along for years without any consideration by anyone about how these are supposed to work?

PN178

MS DABARERA: What we would say in relation to that 55 per cent loading is, so that applies just to the eight hours of work and we say there's a 24 hour period there that needs to be paid.

PN179

JUSTICE ROSS: I know.

PN180

MS DABARERA: Whether that be, yes, by sleepover for eight hours of sleepover and then the other remaining 16 hours should be covered by separate employees doing shifts, where they would not - they wouldn't receive the 55 per cent, they would receive the appropriate shift loading. Whether that be the night or the afternoon shift loading. Yes, I do believe, your Honour, that that's the key issue between the employers and the unions in respect of that issue.

PN181

In respect of AFEI's submissions, there's an argument made that because employees will be able to use smartphones or the internet whilst at the client's residence, that this does not involve any productive benefit to the employer. We say that argument is without merit. So the services that provide this type of care offer this to the client as 24 hour care and obviously the presence of the employee is required to provide that care and the employer receives the benefit of that.

PN182

AFEI also refers to the case Broken Hill Town Employees Union v Broken Hill City Council.

PN183

JUSTICE ROSS: Is this Sams' DP decision?

PN184

MS DABARERA: Yes, your Honour, yes. We say this matter is different in that that's in the New South Wales jurisdiction which does not have the same requirements regarding the modern awards objectives, and it's from 2008 which is prior to modern awards coming into effect. The decision concerned the Aged Care Industry Broken Hill Award 2000, which is a consent award negotiated between the industrial parties and in respect of some matters which are unresolved Sams DP suggests that award negotiations continue to resolve those matters.

PN185

Secondly, when they were considering the 24 hour care within that decision, that provision did allow for the sleepover portion to be covered by the sleepover allowance within that award. So we say that's different to the clause as it is in the SCHADS Award 25.8, which there's no provision for sleepover allowance. Further, that decision is different in that the Commission in that decision was explicitly not considering the merit of the matter. They were considering the interpretation of the award and they say that in paragraph 35, and here we're considering the merit of the clause.

PN186

AFEI also puts that clause 25.8 is necessary to allow a person with a disability their rights under the Disability Inclusion Act 2014. We say that's not the case. It is possible to provide care over a 24 hour period via appropriate rostering. Many services already provide this arrangement and clause 25.8 is not necessary to provide that type of care. Your Honour, in respect of the 24 hour care clause that's what we have to say.

PN187

JUSTICE ROSS: All right.

PN188

MS DABARERA: Unless you have any questions.

PN189

JUSTICE ROSS: ABI summarises the arguments that are advanced in support. It struck me it's a convenient summary, if it's accurate, and that's really what I wanted to ask you. They do this at paragraph 6.4 of their submission of 5 April. Do you have any difficulty or do you take any issue with their summary of - - -

PN190

MS DABARERA: Your Honour, let me just bring it up.

PN191

JUSTICE ROSS: Sure.

PN192

MS DABARERA: Your Honour, that's generally correct. I would mention also that we've stated that the clause creates difficulties when considering the average hours of work for an employee and their ability to refuse overtime.

PN193

JUSTICE ROSS: Yes.

PN194

MS DABARERA: In respect of section 62 and 63 of the Act.

PN195

JUSTICE ROSS: Yes, okay. Can I take you to the background paper? It sets out at paragraph 21 - let me know when you're there.

PN196

MS DABARERA: Your Honour, I've found it.

PN197

JUSTICE ROSS: Okay. Your proposed amendment is the deletion of those words that appear to be struck out in red and they include 'or an excursion pursuant to clause 25.9.8' and you removed that. When you look at the HSU's consequential variation they also support the deletion of the 24 hour care clause and their consequential variation is set out at paragraph 29 of the background paper, and they're not proposing the deletion of the words 'an excursion pursuant to clause 25.9.8' and it's really whether we've made a mistake or your positions are different, and if so, why?

PN198

MS DABARERA: Your Honour, I think it's our earlier draft determination - sorry, so I think that paragraph is drawn from our earlier draft determination.

PN199

JUSTICE ROSS: Yes.

PN200

MS DABARERA: Our draft determination filed on 15 February corrected that.

PN201

JUSTICE ROSS: Okay.

PN202

MS DABARERA: So that only the 24 hour care clause section is deleted.

PN203

JUSTICE ROSS: All right. Thank you, so the position is the same for each of you.

PN204

MS DABARERA: Yes.

PN205

JUSTICE ROSS: Can I go to your submission at paragraphs 20 and following, and this is the interaction with section 62.

PN206

MS DABARERA: Yes.

PN207

JUSTICE ROSS: And you say in paragraph 22 that - so it's not inconceivable that an employee may be required to work more than 38 hours during the course of, you know, given the hours they've previously worked during the week, and then they have the 24 hour period. So it's conceivable they'll work more than 38 and enliven section 62. You say there, this is the second sentence in paragraph 22:

PN208

This clause provides no facility for the employee to refuse additional hours that may be required during the engagement.

PN209

But that's what section 62 does so why would the clause need to - - -

PN210

MS DABARERA: What we say in respect of that is in practical effect if an employee is at the client's home or with the client for 24 hours, and let's say they've provided eight hours of care and the client needs some further assistance, you know, like whether they need to go to the toilet or they need some assistance eating or whatnot, it's not practical that the employee would refuse that work and you wouldn't - you know, like I can't imagine most employees working would refuse that work. So that's the difficulty created.

PN211

JUSTICE ROSS: So it's not that the clause provides no facility for them to refuse additional hours, it's that the circumstances don't?

PN212

MS DABARERA: Yes, the practical circumstances.

PN213

JUSTICE ROSS: No, I follow.

PN214

MS DABARERA: Yes.

PN215

JUSTICE ROSS: Okay. At paragraph 34 you say that the clause 25.8 'is not apt to promote social inclusion to increase workforce participation'. I'm not sure I'm following that, bearing in mind that consideration is directed at increasing employment.

PN216

MS DABARERA: What we would say in respect of that, your Honour, is a lot of home care employees are under‑employed and would be actively wanting more hours of work. When you're in a 24 hour engagement you are actually only paid for a portion of those hours so - - -

PN217

JUSTICE ROSS: I see, so - yes.

PN218

MS DABARERA: Yes, so you're kind of - you can't go elsewhere. You have to be there.

PN219

JUSTICE ROSS: Yes.

PN220

MS DABARERA: Yes.

PN221

JUSTICE ROSS: Yes, but the argument is sort of that if you got rid of it then the alternative would be to roster three people on, on eight hour cycles.

PN222

MS DABARERA: Yes, that's correct.

PN223

JUSTICE ROSS: And that would increase employment.

PN224

MS DABARERA: Yes, or another rostering arrangement. But it would be more work for employees in the sector.

PN225

JUSTICE ROSS: All right. You also say in the same paragraph:

PN226

Leaving one employee for lengthy periods on duty dealing with complex interpersonal matters is problematic.

PN227

But doesn't the same thing happen with sleepovers? To the extent that I understand what's said against it, about the evidentiary basis for it, but to the extent you're right why doesn't the same thing arise in sleepover circumstances?

PN228

MS DABARERA: Sleepovers are a period of eight hours. So an employee can be required to work around that, so there can be additional hours before the sleepover or after the sleepover but you'd still have a break. So you'd still have a break of the 10 hours or the eight hours between the next shift.

PN229

JUSTICE ROSS: Right. Okay, that's all I had for you.

PN230

Do any of the other unions want to say anything in relation to this claim?

PN231

MS DOUST: We propose to deal with that on Wednesday.

PN232

JUSTICE ROSS: Yes, all right.

PN233

MR ROBSON: We support the United Voice and the HSU's claims. We don't have the amendments covered by this clause so we can't comment with anything further.

PN234

JUSTICE ROSS: Okay. I might deal with some short questions for some of the employer organisations and then I'm assuming you want to say what you want to say at the end of the HSU's submissions. Can I go first to ABI - bear with me for a moment. These aren't brain-snapping questions but to the extent you want to take them - - -

PN235

MR SCOTT: We'll see, your Honour.

PN236

JUSTICE ROSS: To the extent you want to take them on notice you can feel free to do that. Am I right in thinking that - if I go to your written submission it's paragraph 6.19 - is really the gravamen of your submission that:

PN237

Whilst this clause is not used on a daily basis by most providers it does facilitate the provision of a valuable service

PN238

et cetera, and is consistent with the CDC model and it should continue to do that. You've got the piece about the history of it and the rest, and you respond to the unions' propositions. But as for what's the merit about the clause, well, that's the merit.

PN239

MR SCOTT: That's right, and I think we've heard this morning in some of your Honour's questions about the distinction between sleepover and 24 hour. We say that there is a distinction between how the clauses are used, what they cater for, what circumstances they cater to and so what - I guess the nub of it for us is we resist the suggestion that the 24 hour care clause is unnecessary and can be removed, and the sleepover clause serves the purpose. We say that's not right. I think perhaps on Wednesday I can develop that further as to what the distinction is.

PN240

JUSTICE ROSS: Sure.

PN241

MR SCOTT: But yes, that's the nub of it. It has an important purpose and we can develop that.

PN242

JUSTICE ROSS: Just a general question. Is there - does anyone have any insight into the history of this other than the fact it's been in the awards and we've seen - I've read those submissions. But I'm assuming at some point it just went in by consent and there's not much discussion about what the purpose of the two provisions were or am I wrong about that and is there a useful authority that goes to the rationale for the two provisions? That's something that each of you can perhaps take on notice and - - -

PN243

MS DOUST: Can I indicate to your Honour that we're proposing to address the Bench on Wednesday on those issues in response, particularly to the ABI's submissions.

PN244

JUSTICE ROSS: Right.

PN245

MS DOUST: We think it is rather instructive when you look through the pre-reform awards as to precisely how this clause came out of that history. The short point being that although there were provisions about live-in housekeepers as such, it didn't appear that there was any real sort of weight of practice of single 24 hour clauses of this nature, that it was usually with a person who was living in on a permanent full-time basis and there was some other protections associated with the performance of that role.

PN246

JUSTICE ROSS: That might go to how we got from the pre-reform to the current provision.

PN247

MS DOUST: Yes, but I understand your Honour's asking about something different which is - - -

PN248

JUSTICE ROSS: Something slightly different, yes.

PN249

MS DOUST: - - - how did those clauses themselves get in. And in part the answer to that might be apparent once you look at the nature of the clause and you see that the sort of - the different role that's envisaged by those clauses, yes.

PN250

JUSTICE ROSS: Just back to ABI. At 6.24 you talk about - you accept that there's a degree of tension in the clause. This is about the - well what happens if they work more than eight hours, and then you go on to contend that the well, overtime clause would operate. Well, if that's correct then do you have any difficulty or would you have any difficulty if the clause was retained in varying it to include an explicit cross-reference to the overtime provision.

PN251

MR SCOTT: No.

PN252

JUSTICE ROSS: At 6.28, this is responding to a matter raised by United Voice about what United Voice contends is a lack of clarity around the phrase:

PN253

Where appropriate a bed in a private room will be provided to the employee.

PN254

I'm sure there's a good reason for it but I wasn't - why are the words "where appropriate" there? When would it not be appropriate? Because if you then look at - because I'm trying to read - this might be a search in vain but some sort of consistency running through the sleepover and the 24 hour care. If you look at the sleepover it says:

PN255

Employees will be provided with a separate room with a bed, use of appropriate facilities -

PN256

et cetera. I understand that sleepover may occur in facilities as well as homes presumably, but what's the rationale for 25.8(b) and why wouldn't it be something similar if the clause is retained to 25.7(c)?

PN257

MR SCOTT: Sir, I take your Honour's point that - - -

PN258

JUSTICE ROSS: Look I should say I'm raising it because it's raised in your submission, lest any of the rest of you get apprehensive that if we retain the clause we're going to wander off in a direction and make a variation determination. Speaking for myself, I think it would be unlikely that we do that without coming back to you, and it may also make the same point when Ms Doust goes through the history, once we consider all that material if we have a different view or we discover something different we'll bring it to the parties' attention. If we were to change the current clause I'd apprehend we'd be doing that on a provisional basis. But it's only that you raised the point and then when I look at 25.7 I'm just not sure why there's a difference.

PN259

MR SCOTT: Yes, I take your Honour's point as to the question about why the words "where appropriate" are there because I would imagine that in 95 per cent of cases of course it's a given that a bed in a private room would be appropriate. Now - - -

PN260

JUSTICE ROSS: It's also a bit - you know, it's just the language has got - to describe it as a lack of precision would be generous but - because it talks about they'd normally have the opportunity to sleep in the 24 hour period. Well, you'd hope so. When would it not be normal? Is it seriously envisaged by anyone that they'd be awake for 24 hours straight performing work? Yes, it's - - -

PN261

MR SCOTT: One thing that I can say is that - and I realise the consent package has fallen over but it's been filed and your Honours maybe generally aware of it. There was detailed discussion between the interested parties about these issues in the context of the sleepovers clause. Now that's fallen over and I'm not sure where we landed in terms of the proposed variations for sleepover.

PN262

JUSTICE ROSS: Look it's tricky for us in the sense that for myself, I'm not going to look at the consent package. If a party wants to advance it as if you're not with us on this, in the alternative you should look - we would go to that, that's a different proposition. But absent that submission, I don't think it's appropriate to look at a consent package that's fallen over. It would really have to be advanced by one of the parties here as an alternate position so that another party with an interest can respond to that. I think being generally aware of it, for myself I've not looked at it and I don't intend to unless a party draws my attention to it.

PN263

MR SCOTT: If I can reflect and get some instructions on that particular point.

PN264

JUSTICE ROSS: That's fine.

PN265

MR SCOTT: Because it may be that we can advance something in the alternative perhaps.

PN266

JUSTICE ROSS: Yes. Well, unless anyone else wants to say anything about this claim at this time, we can go to the - I think the variation of the overtime clause will be the next one, Ms Dabarera.

PN267

MS DABARERA: Yes.

PN268

JUSTICE ROSS: Because you're not pursuing the TOIL - - -

PN269

MS DABARERA: Yes, that's correct.

PN270

JUSTICE ROSS: I had a series of questions for you about that so.

PN271

MS DABARERA: I've managed to avoid that, your Honour.

PN272

JUSTICE ROSS: Yes.

PN273

MS DABARERA: So again I'll just talk briefly to it and respond to some of the employers' submissions. Clause 28.1(b)(iv) of the current award provides that:

PN274

Overtime payment is in substitution for the casual loading.

PN275

We seek to have those two loadings disaggregated on the basis that the loadings do not compensate for the same disutility. We say this is supported by a principle that came out of the penalty rates decision in which the Bench stated a preferred approach for this, aggregating the casual loading from penalty rates.

PN276

Overtime penalties are for the disutility of working long hours and should act as a disincentive to employers for rostering the same employee for long periods of time. Casual loadings are for the disutility of the nature of the employment and for lack of paid entitlements received.

PN277

In respect of the employers' submissions, firstly we respond to ABI and New South Wales Business Chambers' submissions. They have stated that there's a threshold issue - - -

PN278

JUSTICE ROSS: Just before we get to that, bearing in mind the shift in last week, my question was whether that's still pressed in those terms and what your position might be. So we might clarify that and then you can - - -

PN279

MS DABARERA: Yes, your Honour.

PN280

MR SCOTT: I think the short answer to that, your Honour, is we don't press it for the same reasons that were articulated last week. If I could perhaps just reserve my position to say otherwise at a convenient time, I've just haven't looked whether there's any difference in the drafting between these and the one in the Aged Care Award. I don't think there are, but I just don't want to shoot myself in the foot.

PN281

JUSTICE ROSS: No, no, that's fine. Yes, Ms Dabarera?

PN282

MS DABARERA: Your Honour, we were only going to briefly comment on that.

PN283

JUSTICE ROSS: That's fine.

PN284

MS DABARERA: Yes.

PN285

JUSTICE ROSS: You can do that now.

PN286

MS DABARERA: Yes.

PN287

JUSTICE ROSS: And ABI will confirm whether they're chasing the point and we'll hear from them about that later.

PN288

MS DABARERA: We simply say it's not a work value claim. We're not seeking to increase the casual loading. We're seeking to disaggregate the amounts, and there's no threshold issue. ABI also states that this claim was the subject of a decision in the two yearly transitional review.

PN289

JUSTICE ROSS: Yes.

PN290

MS DABARERA: And your Honour would have that decision number already. We say that's of limited reference. The Full Bench decision noted in paragraph 45 of that decision that nothing in that decision:

PN291

was intended to foreclose further consideration of this matter in the four yearly review

PN292

And that:

PN293

The four yearly review process may result in general and authoritative consideration of the issue at the level of industrial principles and, if so, that would provide a sound basis to revisit the issue in relation to the SCHADS Award.

PN294

And what we say is that the penalty rates decision does provide a sound basis to revisit this. AFEI states that there are significant distinguishing factors between the present case and the penalty rates case. We agree that there are differences in terms of the claims to be decided, however the key is that the Commission expressed a preference for the default approach generally and that's why we say it's relevant here.

PN295

AFEI also states that our variation could result in the over‑compensation of casuals. In respect of that we disagree. We say that the casual loading is for compensation for the nature of the work, specifically the inherent uncertainty of casual employment as well as paid leave entitlements, and this disutility exists for all hours worked by a casual. AiG also raises some of the similar matters that have been raised and also AiG and NDS also refer to funding arrangements, specifically the NDIS.

PN296

What we say in relation to funding is that NDIS applies in this sector but there's also funding for home care which is different. That's generally through the Home Care Packages Program or the Commonwealth Home Support Program, and also generally we say that funding in itself cannot determine the appropriate wages and conditions for employees. Regard must first and foremost be for the relevant considerations in the modern awards objective. We also don't think there's going to be a significant costs impact.

PN297

Casuals under this award receive overtime after either 38 hours per week or 10 hours per day, and especially in disability services and home care there's more under‑employment issues than a lot of overtime, and there aren't many casuals who would be working overtime. And further, it's within the power of the employer to roster effectively so that one employee is not working long hours and thus reduce overtime costs. Your Honour, unless you have further questions about that matter, that's what I was going to say.

PN298

JUSTICE ROSS: Can I take you to paragraph 23 of the background paper?

PN299

MS DABARERA: Yes, your Honour. I'll just bring it up. Yes, I've brought it up, your Honour.

PN300

JUSTICE ROSS: Are the strikeouts accurate or is this also a case where the shift loading - the capital A is - - -

PN301

MS DABARERA: That's correct, your Honour.

PN302

JUSTICE ROSS: What is correct?

PN303

MS DABARERA: Sorry, paragraph 23, the strikeouts are accurate.

PN304

JUSTICE ROSS: And what is the shift premium point then, or are we only dealing here with the casual loading issue?

PN305

MS DABARERA: Actually I apologise, your Honour, the strikeout in paragraph 23 is not accurate. So what we actually had in our clause is:

PN306

Overtime rates payable under this clause will be in substitution for and not cumulative upon the shift premiums prescribed in clause 29, shift work, and are not applicable to ordinary hours worked on a Saturday or Sunday.

PN307

So we only wanted to get rid of where it currently says in B, 'the casual loading prescribed in clause 10.4B'.

PN308

JUSTICE ROSS: All right. So capital A would remain?

PN309

MS DABARERA: Well, we formatted it differently but the - - -

PN310

JUSTICE ROSS: Yes, I see.

PN311

MS DABARERA: Yes.

PN312

JUSTICE ROSS: Yes.

PN313

MS DABARERA: Yes.

PN314

JUSTICE ROSS: Yes, all right.

PN315

MS DABARERA: I would note we do support the HSU's claim, but that's not our claim.

PN316

JUSTICE ROSS: No. Is this also something that the employer interests wanted to respond to after the HSU?

PN317

SPEAKER: Yes.

PN318

JUSTICE ROSS: Yes.

PN319

SPEAKER: Yes.

PN320

JUSTICE ROSS: All right. The last claim?

PN321

MS DABARERA: Yes. Yes, your Honour. So S57, variation to the public holidays clause. The intention - - -

PN322

JUSTICE ROSS: And is this - just so I'm - - -

PN323

MS DABARERA: Yes.

PN324

JUSTICE ROSS: And this is as set out at paragraph 24 of the background paper?

PN325

MS DABARERA: That's correct, your Honour.

PN326

JUSTICE ROSS: I'm glad we got one of your claims right. Okay.

PN327

MS DABARERA: Your Honour, the intention of this variation we seek here is to stop employers from varying the rosters of part‑time employees to avoid public holiday payments, as it has been highlighted as an issue by some of our members. The employer arguments in relation to this go around stating that rosters cannot easily be altered by the employers and that the proposed clause could be relied upon as an avenue for disputing roster changes. I'll just respond briefly to that.

PN328

What we say is that whilst clause 10.3 and clause 8A should provide protection from this scenario, the reality under this award is that part‑time employees especially in home care are - they're low paid and they're often under‑employed and they don't have a lot of negotiating power. Clauses 10.3 and 8A are not working as intended and some of our members have reported having their rosters changed.

PN329

JUSTICE ROSS: So some of your members have reported having the rosters changed in a manner inconsistent with 8A and 10.3, is that the point?

PN330

MS DABARERA: Unfortunately with 10.3 what we're finding is that there's a lot of non‑compliance with that clause within the sector.

PN331

JUSTICE ROSS: I suppose it sort of begs the question if there's non‑compliance with that provision, how is adding another one going to help and is it really a case of either notifying a dispute under one of the rostering provisions or prosecuting for breach of the award?

PN332

MS DABARERA: We think there's value in adding the specific clause we've put about public holidays to ensure that employees do receive their public holiday payments.

PN333

JUSTICE ROSS: But if you look at - for myself I'm not sure about - look, even accepting the objective it's just going to lead to an argument about whether the purpose of the alteration was for avoiding public holiday entitlements, and I'm here sort of thinking of the debate - and look, it's quite a while ago now but in the Federal Court around were they shifting employees for the purpose of avoiding entitlements under an award or were they doing it for some other operational reason which may have included the need to reduce their cost structure.

PN334

So when you start to look at purpose and intent an employer might say 'Well, it wasn't for the purpose of doing that. That's a consequence of it but it was for another purpose'. And I'm just not sure how you'd go about enforcing a provision in those terms.

PN335

MS DABARERA: Your Honour, our point is trying to resolve that issue that I've mentioned, so.

PN336

JUSTICE ROSS: Yes. Okay, and it's put against you that there's the issue about 'Look, there are existing award provisions that deal with these, the seven day notice requirement in 25.5, the variation to part‑time hours by agreement in 10.3 and clause 8A'. And it's also put against you that your submissions make assertions about practice but there's no evidence about the vice that you're trying to address.

PN337

MS DABARERA: We accept that we haven't put evidence in about it, that it is at the level of submission. In respect of 25.5D it does have the - there is a requirement to provide seven days' notice but under 25.5D(2) variations to a roster can be made at any time to enable the service of an organisation to be carried on where another employee's absent from duty on account of illness or in an emergency, and rosters can be changed with as little as - little notice, as little as - sorry, 5 pm the day before under the client cancellation clause.

PN338

JUSTICE ROSS: No, no, I get that but that's not going to give rise to the problem you're trying to address. The utilisation of that provision would mean someone would be rostered on to replace someone else. It wouldn't be their roster's been changed to avoid a public holiday penalty.

PN339

MS DABARERA: Well, with respect to the client cancellation provision, there are circumstances where that could be used to avoid having an employee work on the public holiday.

PN340

JUSTICE ROSS: Right. Anything else from the unions' side before I go to the employers, in relation to this claim? No? Right.

PN341

MR FERGUSON: We've dealt with this fairly succinctly in chapter 10 of our submissions. I think the strongest point is the evidentiary point in that there is absolutely no evidence called about the contention or to support the contention that there is a problem that employers are doing this, or even that employees are raising complaints or concerns about this. Absent some evidence to establish that sort of factual proposition, we say that the Commission just can't be satisfied concerning something like this into the award is necessary. It's not clear that there is a bias.

PN342

JUSTICE ROSS: Yes, I'm not sure that - I mean there are - I'm not contending this is such a case but there would be cases where simply looking at an award provision leads you to the view that well it's not fair and you can run a merit argument without the evidence. I suppose the issue here is that, as I've pointed out to Ms Dabarera, there are existing award provisions which regulate the manner in which roster changes can take place. It's not as if there's an absence of regulation. It's said there's this specific issue that needs to be addressed and your primary point is well in relation to that specific issue, there's no evidence that there is a problem that needs to be solved.

PN343

MR FERGUSON: That's right, your Honour. So your point about the fact that there are other provisions that may be already in play and where does it really take you to deal with this is one issue, but their case rests on a factual proposition that there is this problem - - -

PN344

JUSTICE ROSS: Yes, and I take it that you contest the factual proposition on that basis, we shouldn't rely on a Bar table assertion and treat it as evidence.

PN345

MR FERGUSON: That's right, your Honour. The other point is the issue I think has come up in the exchange between yourself and the union anyway is the extent to which this might simply result in disputes about the employers' purpose in making changes that they might be validly able to make under the award at the moment. It would be very difficult to try and work out what the purpose of the employer might be and whether it contravenes - - -

PN346

JUSTICE ROSS: Well, I suppose as Ms Dabarera says that I didn't take it they're wedded to the language of the provision. It's what it's directed at is what they are concerned about.

PN347

MR FERGUSON: But I suppose the other issue is if there's a misapplication of the current provisions, there's already avenues for addressing that. The obvious one is a dispute resolution.

PN348

JUSTICE ROSS: Yes, well that was the point I put as well. I follow that, yes.

PN349

MR FERGUSON: Really we don't take it any further than that. Just on the material, the Full Bench can't be satisfied that this additional clause is necessary.

PN350

JUSTICE ROSS: Yes, all right.

PN351

MR SCOTT: Your Honour, we've dealt with this claim at page 36 of our reply submission. At the risk of repeating what Mr Ferguson said I'm not sure that there's much else that I need to say about that.

PN352

JUSTICE ROSS: Right. Does anyone else with to say anything in addition to what they've put in writing? No? Probably just as well because apparently the microphones don't work in the second part, so if you did want to say something you'll have to come to the front. I'll just say for the record that you don't want to add anything to your written submission. This is the AFEI and the NDS. Does that deal with that claim? Anything else anyone wants to say about that? All right. There's nothing further at this stage of the proceedings, I don't think. Having heard United Voices' submissions in respect of its claims. With the employers to deal with two of those once the HSU has put its arguments. So tomorrow we'll have the ASU witnesses commencing at 9.30 and then their submissions in relation to claim S6, the community language skills. Anything further now before we adjourn? Yes, Ms - - -

PN353

MS DOUST: I think we'd like to be excused tomorrow, your Honour, if that's - - -

PN354

JUSTICE ROSS: Certainly. No, no, problem at all. That is for anyone who doesn't have an interest in that particular claim. You don't need to seek leave, you can come and go as you please, and if you can communicate to one of the other unions who will be present just in relation to the timetabling issues.

PN355

MS DOUST: Yes.

PN356

JUSTICE ROSS: If anything arises from that just so we get what your position might be. If there's a contest about it we will probably hear that contest on the Wednesday, so that you're hear for that.

PN357

MS DOUST: I think we might try to have some discussions now - - -

PN358

JUSTICE ROSS: No, no, now but - sure but if you're not able to resolve them - - -

PN359

MS DOUST: Yes.

PN360

JUSTICE ROSS: - - - just get someone else to put your view tomorrow.

PN361

MS DOUST: Yes.

PN362

JUSTICE ROSS: Right.

PN363

MR SCOTT: Sorry, your Honour, just in terms of the proposed directions for the tranche 2, I'm assuming that the Bench is content for the parties to deal with that tomorrow morning if we have some discussions this afternoon.

PN364

JUSTICE ROSS: Yes, yes. No, I wasn't planning on bringing you back.

PN365

MR SCOTT: No.

PN366

JUSTICE ROSS: See if you can have some discussions. In the meantime also have a look at the - and if you need any assistance just let my Associate know but I think the - on the Four Yearly Review page of the website there's a timetable thing that takes up Mr Ferguson's point. I wouldn't want you to all agree on dates and then find that there's another substantive case being heard on those dates, so see if you can - it may be that for some of them that haven't been listed yet, that we could - we can adjust it the other way. I can talk to the presiding member of that Bench about shifting it back a bit et cetera. So just have a look at that when you're thinking about it so you can balance the commitments of the parties to other matters.

PN367

MR FERGUSON: If I can just say the matters that will be of significant concern for the penalty rates case concerning the Hair and Beauty Award. The food manufacturing arbitration - - -

PN368

JUSTICE ROSS: Well, Lee C is on the hair and beauty matter so he won't be wanting to be in two places at once either. What's the other one?

PN369

MR FERGUSON: The food manufacturing.

PN370

JUSTICE ROSS: Yes. Has that been listed yet?

PN371

MR FERGUSON: Yes, I don't have the dates to hand.

PN372

JUSTICE ROSS: No, no, that's fine.

PN373

MR FERGUSON: But it's straight after and then water as well but there's a conflict there already.

PN374

JUSTICE ROSS: Yes. Well, it may be it can be brought slightly earlier or later or - but if a matter's already been listed I'd be - I think it'll stay where it is, so you can work on that assumption.

PN375

MR SCOTT: We'll run through Mr Ferguson's timetable in terms of those matters. Because I imagine you're in all of them, that's the issue?

PN376

MR FERGUSON: Yes.

PN377

MR SCOTT: We'll do that, thank you.

PN378

JUSTICE ROSS: Anyway, I'll leave you with that happy tasks. Thanks, we're adjourned.

ADJOURNED UNTIL TUESDAY, 16 APRIL 2019 [11.18 AM]