Epiq logo Fair Work Commission logo






Fair Work Act 2009                                       1056888






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Social, community, home care and disability services (SCHADS)




9.41 AM, TUESDAY, 16 APRIL 2019


Continued from 15/04/2019



JUSTICE ROSS:  I might deal, firstly, with the amended clause that's been filed by the ASU?  Has everyone got a copy of that, is there any objection or any issue taken with the application to file the amended clause?  No.


I understand there are still the issues you maintain about the clause itself, but in relation to the witness evidence, have you been able to resolve the issues between you and, if not, we'd want to hear you about them, in relation to the four statements, then we'll adjourn shortly, determine those and then come back and start with the first witness?


MR FERGUSON:  No, we haven't, your Honour, there's not a large number though.


JUSTICE ROSS:  Yes, all right.


MR FERGUSON:  We raise some objections, firstly in relation to Nadia Saleh.


JUSTICE ROSS:  Bear with me for a moment?




JUSTICE ROSS:  We might get you to deal with them in the order that they are going to be appearing.


DEPUTY PRESIDENT CLANCY:  Your Honour, I'm just wondering, in Melbourne here we've got Ms Ruchita in the courtroom, do you want her out?


JUSTICE ROSS:  Yes.  It might be, if there are any witnesses in Sydney as well, if they wouldn't mind waiting outside, thank you.


MR FERGUSON:  There's no objection to Ms Ruchita.  Then in relation to Nadia Saleh, there's an objection in relation to paragraph 17, second sentence.


JUSTICE ROSS:  Just bear with me a moment?  Yes?


MR FERGUSON:  Opinion, as to the proper basis.


JUSTICE ROSS:  Well, you can ask the witness about what the basis is for that assertion, can't you?


MR FERGUSON:  I can.  I find it difficult to see how it could be anything other than an opinion, given the way it's constructed.


JUSTICE ROSS:  Well, I suppose we don't know, until you ask the question.  I take your point if it's simply her opinion and it isn't by reference to any document or any study, the it wouldn't be admissible.  But the short point is, I don't know.  It's expressed as a statement of fact, but you can ask the basis of that fact.  She's not saying, "In my opinion most" - if she says, well, in her experience, it's her opinion.


MR FERGUSON:  If it was just based on something that was in another document, and so forth, it wouldn't be based on her own experience in any event.


JUSTICE ROSS:  Well, we don't know.


MR FERGUSON:  Unless she's - well, I won't press it.  But unless she's gone to the houses - - -


JUSTICE ROSS:  No, no, but you should ask the witness the question and then renew your objection at that point, and we can deal wit it.


You understand, Mr Robson, in the event that it is the witness' opinion, the witness isn't put forward as an expert, so it wouldn't be admittable if it's simply her opinion that most of her clients speak - or "our clients" she said, so she's seeking to speak for the employer as a whole, unless there's some factual basis for that, it wouldn't be admittable.


MR ROBSON:  Yes, sir.




MR FERGUSON:  Paragraph 23, in the third last sentence.


JUSTICE ROSS:  Yes.  What does it start with?


MR FERGUSON:  "If I speak my client's language I am able to build trust with my Arabic speaking clients and their families better than my colleagues who do not speak Arabic."  It's the "better than my colleagues who do not speak Arabic", is an opinion, as opposed to whether she's better than - as to how effective they are, as opposed to any actual observation about what they're doing.


JUSTICE ROSS:  So there's no objection if a full stop is put after "their families" - - -




JUSTICE ROSS:  - - - it's the "better than my colleagues"?  What do you say about that?


MR ROBSON:  Well, I say that she is a qualified practitioner in this area, she has long-standing experience in the sector.  She's also a manager of a team.  I think that she's able to say, from her experience doing the work, whether you are better able to do it speaking the language that the client speaks, or not, which is what the sentence goes to.  If there's a question about her ability to give that opinion and my friend doesn't think that she's qualified, he can ask her questions to establish that.


JUSTICE ROSS:  All right.  Well, we'll come back and deal with that.  Yes?


MR FERGUSON:  I was just going to say, in relation to that, I don't know that there's any evidence about how she observes the other people in their roles.


JUSTICE ROSS:  No, there isn't, but - - -




JUSTICE ROSS:  Anything further?


MR FERGUSON:  Yes, sorry.  In relation to 40.




MR FERGUSON:  The first and second sentences, it's opinion without proper basis.  Speculation and submission.


JUSTICE ROSS:  On the face of it, it is a submission and opinion.  She's not speaking as to a fact, which is what witnesses are supposed to do.


MR SCOTT:  I'm fine with striking that out, sir.


JUSTICE ROSS:  All right.  So we won't read para 40.


MR SCOTT:  I believe that's the first, and - - -


MR FERGUSON:  First two sentences.


JUSTICE ROSS:  Sorry.  Yes, I follow.  Yes, the first two sentences in 40.


MR FERGUSON:  Then we're dealing with Natalie Lang.




MR FERGUSON:  In relation to paragraphs 12, 13 and 14, it appears to all be hearsay, I'm not sure whether first or second hand.  None of it can be tested, with the added difficulty in that it appears to be relaying conversations between people who may be named Colin, Emily and Karen, we don't really know.  We don't know their last names, we don't know where they actually work, so there's no way for us to test any of this with the witness.


JUSTICE ROSS:  Well, it really goes to weight, doesn't it, given that you're not able to test it?


MR FERGUSON:  It does.  Well, it also goes to the fairness of that material being received, and so we say it's not properly admissible.  There's no reason why these people couldn't have, presumably, come and given evidence themselves, about these views.  It is hearsay and shouldn't be admissible.  But to the extent certainly not bound, we'd still say it's a matter of fairness.  According to the rules of evidence, it's a matter of fairness, it shouldn't be heard.


JUSTICE ROSS:  Well, if we are minded to strike it out we'd also provide the ASU with an opportunity to call those witnesses directly, and they'd do that on another day and file the statement on their behalf.  So as long as you know that would be the - fairness would cut both ways.  So do you want to reflect about that, and how do you want us to deal with it?


MR FERGUSON:  It's always a gamble there, your Honour.


JUSTICE ROSS:  Life's a gamble, Mr Ferguson.


MR FERGUSON:  It may be a matter for weight.


JUSTICE ROSS:  Red or black?


MR FERGUSON:  Yes.  I also intend to finish this review.  Well, we won't oppose it going in, as long as we have the ability to make a submission about the weight.


JUSTICE ROSS:  No, you can certainly make submissions as to the weight we should apply to it.  The last witness?


MR SCOTT:  We have another objection, in relation to the statement of Natalie Lang, paragraph 7.


JUSTICE ROSS:  Paragraph 7?


MR SCOTT:  Yes, the first two sentences there.


MR FERGUSON:  Thank you, I missed that.


JUSTICE ROSS:  Yes, I see.


MR SCOTT:  So we say that that's opinion and really just a submission.


JUSTICE ROSS:  It looks a lot like a submission.


MR ROBSON:  It is a submission, sir.


JUSTICE ROSS:  Okay, we'll delete the first two sentences.  Anything else, Mr Scott?


MR SCOTT:  Sorry, paragraph 20 as well, we say is a submission.  It doesn't seem to deal with any real fact.  Look, it's a submission so.


JUSTICE ROSS:  All right, well, we'll delete 20.  You can make the same submission.


MR SCOTT:  Of course.


JUSTICE ROSS:  The last witness?


MR FERGUSON:  Mr Bacchiella, paragraph 24, the final sentence.  It seems to be pure speculation.  There's no indication on what basis, other than speculation.


JUSTICE ROSS:  We can't speak on behalf of the funders.


MR ROBSON:  No, but he can speak on his experience of the funding arrangements in the sector.


MR FERGUSON:  If it's about contractual arrangements, then it's his interpretation or his opinion interpretation, then we'd object on that basis.  The unions could have included that material so we could interpret it.  But that's not what the statement provides anyway.  That's not the evidence.


JUSTICE ROSS:  What's not the evidence?


MR FERGUSON:  It appears to be just speculation, as I see it.  I'm not saying that there's some sort of contractual arrangement requires it.


JUSTICE ROSS:  I don't know.  It sounds like it's here saying there's some sort of contractual arrangement.


MR FERGUSON:  That is being what he's averting to, then that's my second concern, is that it's just his interpretation of that we can't actually test that.  It's an opinion as well.


JUSTICE ROSS:  Yes.  So, that's paragraph 24.  Well, he's the CEO.  Wouldn't he know what the contractual arrangements are and couldn't you ask him that question?


MR FERGUSON:  All CEO's could read contracts accurately.  You'd just be getting his interpretation.


JUSTICE ROSS:  No, he would, but I'd want a copy of the contract and I'd give my interpretation of it.


MR FERGUSON:  And that's my secondary concern is that if that's where this actually headed.


JUSTICE ROSS:  Well, it might be and he can provide the contract and you can each make your submissions about it.  Is there any problem with that?




JUSTICE ROSS:  All right.  Anything else with him?


MR FERGUSON:  Paragraph 27.  The whole paragraph appears to be opinion and speculation or a submission.


MR ROBSON:  I think that this is evidence that Mr Bacchiella is qualified to give.  He is an employer in the sector.  He's expressing his direct experience of being able to - his direct worry about not being able to provide the services.


JUSTICE ROSS:  Well, certainly the last sentence speaks to the benefit to his organisation.  Why can't - why isn't that admissible?


MR FERGUSON:  It's speculation about what the benefits might be if he paid an allowance.  There's nothing he's actually giving evidence about.


JUSTICE ROSS:  He's the CEO.  I mean, we've heard evidence that you've called from people who run businesses saying what the benefit is of a claim to their organisation.  That's all this is.  How is it any different?


MR FERGUSON:  It just seems to me, it's very speculative to say what an allowance might do.  It's difficult to see what that's - - -


JUSTICE ROSS:  You could ask him about that.


MR FERGUSON:  But it's difficult to see how he could possibly give any evidence about that other than his views about what impact an allowance might have on the minds of other people.


JUSTICE ROSS:  I think there is more force in your argument where he's seeking to make broad assertions about the sector and the benefits to the sector.  That's what he's canvassing in the first three sentences.  But the last sentence he's talking about - and one of the factors we're obliged to consider is the impact of a claim on employers.  Well, he's an employer.


MR FERGUSON:  I struggle to see how it is more than speculation, but perhaps if we can visit our right to make submissions about weight on that last sentence.


MR ROBSON:  Can I bring that up next time Mr Ferguson leads an employer witness who says that one of our claims is too expensive?


JUSTICE ROSS:  Well, yes but.  Look, I think you can do what you want, but if Mr Ferguson wants to lead evidence.  But I understand - - -


MR FERGUSON:  It's not really - it's not really a - - -


JUSTICE ROSS:  We'll consider paragraph 27 and what we do with it and we'll come back and let you know.  Did you have anything Mr Scott?


MR FERGUSON:  The final one is 28, the last sentence, which is obviously a submission.


JUSTICE ROSS:  Yes, well.


MR FERGUSON:  We question the relevance of what one person thinks.


MR ROBSON:  I suppose all evidence in these proceedings from lay witnesses is illustrative of - - -


JUSTICE ROSS:  No, no, but it's - - -


MR ROBSON:  It's the only evidence we've got from any employer about employer's attitudes to this draft variation.  I think it's directly relevant to these proceedings.  As I said, all lay witness evidence in these proceedings, is illustrative.  We've brought a frontline worker, a frontline manager and a CEO to give evidence from people working in the sector and we've made Natalie Lang available to give evidence from a broader perspective based on her experience as a union official.


I think this is fully admissible.  In any case the laws of evidence don't apply.  The Commission can inform itself as it sees fit and since it has an employer in front of it, I think it should find out what that employer thinks about this variation.


JUSTICE ROSS:  Well, we'll think about that too.  I'm assuming there's no objection to the first sentence?




JUSTICE ROSS:  Yes, it's the second sentence in 28.


MR FERGUSON:  Yes it is.  Without going through it, it's not a popularity contest.  It's again one member, one employer who likes it.  It doesn't really - - -


JUSTICE ROSS:  That might be a submission you want to be careful about too, Mr Ferguson.


MR FERGUSON:  It's the specifics.


JUSTICE ROSS:  Mr Scott - do you have something?


MR SCOTT:  Just on other, your Honour.  Paragraph 17.  The objection is to the whole paragraph.  It's really a submission and it's the witness' opinion.  It may be that the bulk of the first two lines be struck out and then there be a new sentence starting "If we were to turn back everybody that came into the service."


Now that may be - I'm comfortable with that, if your Honour is minded to strike out the first part of the paragraph.


JUSTICE ROSS:  How would the structure of the - how would it read?


MR SCOTT:  The first two lines be struck out up to where it says "if were to turn back" and I think that's a typographical error.  I think it's mean to say "if we were to turn back".  If the second part of that paragraph be left there as a proposition that it seems to be the witness' opinion, it is speculative.  But it seems to be the witness' opinion that if we were to turn our back on people, well, they may end up in Centrelink.


I mean, I object to that on the basis of speculation, but - - -




MR SCOTT:  The first part of it is just an opinion about the broader society.


JUSTICE ROSS:  No, no.  Bhat's not the bit I'm struggling with.  Well, there are two things.  I don't think we should rewrite a witness' statement.  So, if we do come to a view about it, and we do say it would be admissible on the basis that you've restructured it, the ASU would need to put that to the witness and see if the witness is content with that.  Otherwise, if your objection is upheld, the whole paragraph would be struck out.


But my other point is, just the grammar of it being - if you adopt the - "if we were to turn back everyone that came to the service", well, on what basis - what's the connection to the claim?


MR SCOTT:  Yes, I take your point, your Honour.


JUSTICE ROSS:  Well, if we were to turn them back - - -


MR ROBSON:  Your Honour, just to simplify matters, I'll strike that entire sentence.  We don't - - -


JUSTICE ROSS:  Strike the entire para?




JUSTICE ROSS:  Okay, all right, thank you.  That solves that problem.  We have - is it Mr Bacchiella?  Is that how you pronounce?


MR ROBSON:  Bacchiella.


JUSTICE ROSS:  Bacchiella, sorry.  We have to consider the objections to paragraphs 24 last sentence.  Paragraphs 27, 28.  With Saleh, we've got paragraph 23.  I think those are the only ones we've got left.  So, we'll adjourn for 10 minutes or so and come back and let you know what we'll do.  Thanks.

SHORT ADJOURNMENT                                                                  [10.01 AM]

RESUMED                                                                                             [10.11 AM]


JUSTICE ROSS:  Please be seated.  We'll just go through the objections.  In relation to the Saleh statement, paragraph 23, we don't propose to uphold the objection.  It can be - the witness can be questioned about it in cross-examination.  We would make the observation that there is no stated basis for the opinion and accordingly we would give it very little weight as it stands at the moment.


Mr Bacchiella, paragraph 24, the last sentence we would not uphold the objection.  The witness can be asked in cross-examination the basis for that opinion and if it is another document then that can be called for and submissions made in relation to it.  In relation to paragraph 27, we uphold the objection to sentences 1, 2 and 4.  That would leave the sentences:


The allowance would help me recruit and retain skilled and qualified staff.  The benefit of my organisation of having community languages paid an allowance under the award would far outweigh the cost.


Those two statements are speaking in respect of Mr Bacchiella's own business.  The other statements have been - the objection's been upheld because he's purporting to speak more broadly on behalf of the sector.  We do not uphold the objection in relation to paragraph 28.


Just in passing, Mr Ferguson, I might remark that during the penalty rate case, almost every single employer witness statement included a statement in exactly the same terms.  So - - -


MR FERGUSON:  I think I ducked that case.


JUSTICE ROSS:  Yes, but in an effort to have consistency I think we'll adopt the same approach.  It is of course the opinion of one employer and as has been conceded, you know, it is what it is.  It's not purporting to represent the position of all employers covered by the award and you can make submissions about that.  Nothing further on the witness statements, so are you ready to call your first witness?  Is it Ms Luchita?


MR ROBSON:  May I use the stand, your Honour?


JUSTICE ROSS:  Sure.  Yes, sure, of course.  You'll just have to wrestle it off Mr Ferguson.


MR ROBSON:  Dr Ruchita.


JUSTICE ROSS:  Dr Ruchita, thank you.  Yes, of course.


MR ROBSON:  She is mononymous.


JUSTICE ROSS:  All right.


MR ROBSON:  I call Dr Ruchita.


MR SOUTH:  She's being brought in now.


JUSTICE ROSS:  Thank you.


THE ASSOCIATE:  Please state your full name and address?


DR RUCHITA:  (Indistinct) Ruchita, (address supplied).

<DR RUCHITA, SWORN                                                                   [10.20 AM]

EXAMINATION-IN-CHIEF BY MR ROBSON                               [10.20 AM]


MR ROBSON:  Dr Ruchita, you prepared a witness statement in these proceedings, dated 14 February 2019, is that correct?‑‑‑Yes, please.


It has four attachments?‑‑‑Yes, please.


Do you have a copy of that statement in front of you?‑‑‑Yes, I do.


Excellent.  Can I please take you to attachment B?  This is a letter to you from Mia Advigovic, Chief Executive Officer of inTouch?‑‑‑Yes, please.


That has three pages, the first page that starts, "Dear Ruchita", the second page that's there starts with, "Salaries are paid fortnightly", and the third page starts with, "Examine"?‑‑‑Yes, please.


That's an incomplete document, is that correct?  There's a page or two missing there?  If you look at - - -

***        DR RUCHITA                                                                                                                             XN MR ROBSON


JUSTICE ROSS:  I think we can take it it's an incomplete document, what do you want to do about it?


MR ROBSON:  That was the only document available.  This was what you had?


JUSTICE ROSS:  Just hang on a sec.  Is any point going to be taken about it's an incomplete document?




JUSTICE ROSS:  No?  Well, let's move on.


MR ROBSON:  All right, thank you.  Do you say that the witness statement is true and correct, to the best of your information, knowledge and belief?‑‑‑Yes.


I tender the statement, dated 14 February 2019, your Honour.


JUSTICE ROSS:  All right.  I mark that exhibit ASU1.



Dr Ruchita, there's just some questions from the other representatives for you, if you just stay there for a moment.

CROSS-EXAMINATION BY MR SCOTT                                       [10.24 PM]


MR SCOTT:  Dr Ruchita, my name is Kyle Scott, I'm a lawyer for a number of employer associations, can you hear me okay?‑‑‑Yes, please.


Now, I'm just going to ask you a number of questions, so I understand from your statement that you speak Hindi, Punjabi, and Urdu?‑‑‑Yes, please.


If I can ask you some questions just about the different roles that you've held, which are set out from paragraph 9 of your statement?  If I can take you to paragraph 10, you say there, from 2009 to 2013 you worked as a health promotion worker?‑‑‑Yes, please.

***        DR RUCHITA                                                                                                                              XXN MR SCOTT


And you say, further down in the paragraph, "This included information and referral services for health promotion, language support to Indian women during group work, and health services?‑‑‑Yes, please.


And you say that you used, in that role, Hindi, Punjabi and Urdu for your group work for Indian women?‑‑‑Yes, please.


So do I take it there that in that particle role the language skills that you used, you used those skills as a core part of your role?‑‑‑My (indistinct) group, yes.


Then your second role, in paragraph 11, you say in June 2012 you started work at inTouch?‑‑‑Yes, please.


At paragraph 12 you say, "My first role there was as a casual bilingual facilitator and community leader"?‑‑‑Yes, please.


Can I just clarify, was that one position or are they two separate roles?‑‑‑It was one position.


Can I take you - the last sentence of that paragraph, paragraph 12, you refer to two annexures.  So it says there, "Attached and marked annexure B is a copy of the position description for the bilingual facilitator at inTouch", and then it says, "Attached and marked annexure C is a copy of the position description for the community leader at inTouch", if I have a look at those documents, and I take you to them, at annexure B and C, they appear to me, - I'll just make sure you've got the document in front of you?


JUSTICE ROSS:  Which one?


MR SCOTT:  The first one is dated 8 May 2012 and it refers to offering you the position of bilingual facilitator, Indian community?‑‑‑Yes, please.


Then the second one, marked attachment C, dated 3 September 2012, it says, "I am pleased to offer you the positon of community leader", for a particular project?‑‑‑Yes, please.


I take it, from the dates of those two documents, that you started the respective work at different times?

***        DR RUCHITA                                                                                                                              XXN MR SCOTT


JUSTICE ROSS:  You might need to just elaborate on that a little bit.


MR SCOTT:  One's dated September and the other is dated May, is that right?‑‑‑Yes.  So in respect of the first document that I've taken you to, which I understand is attachment B, that document is dated 8 May 2012, can you see that?‑‑‑Yes, please.


Was that the time or the date at which you started that particular job?‑‑‑I was offered this role on 8 May but I started this position in June.


Okay, thank you.  The document that's attached and marked attachment C, can you see that that's dated 3 September 2012?‑‑‑Yes, that's addition to that role.


So when you say, "That's addition to that role", can you just explain what you mean by that?‑‑‑So while working as a bilingual facilitator I was given this additional role to run another project for the better access and (indistinct) system.


Thank you.  Just bear with me one moment?‑‑‑Yes.


So in respect of the bilingual vacillator role, if I can take you to the second page of attachment B, which starts, "Salaries are paid fortnightly"?‑‑‑Mm.


Can you see the fourth dot point down from the top of the page it says, "Period of employment"?‑‑‑Yes.


So it says there, "From 4 June until conclusion of the evaluation of project, in April/May 2014"?‑‑‑Yes, please.


Are you aware of the basis upon which you were employed in that role?  For example, were you employed on a casual basis?‑‑‑Yes, that was my casual role.


So the subsequent role, the community leader role, was that also a casual position?‑‑‑Yes, please.


Is it correct to say you were paid separately for the hours you worked for those two positions?‑‑‑I can't remember exactly.

***        DR RUCHITA                                                                                                                              XXN MR SCOTT


That's okay.  In respect of the bilingual facilitator role, I take it that your ability - the fact that you are bilingual and your ability to speak different languages was a core part of that role?‑‑‑Yes, please.


Can the same be said about the community leader role?


JUSTICE ROSS:  Just ask the complete question, was it a core part of - - -


MR SCOTT:  Yes, sorry.  I'll rephrase that.  In respect of your position as community leader, would you agree with me that your - the use of your languages, other than English, was a core part of your work, when you were performing that role?‑‑‑I can't remember, because that's a - like not since 2012, so I can't remember.  But the purpose of that project was to run that program for Indian community, that I can remember.


Yes.  And if I take you to page 2 of attachment C, there's a heading, about halfway down the page, saying - which reads Project Background, can you see that?‑‑‑Yes.


There's the second sentence, under that subheading, reads, "The project will select one community leader from each of the three culturally and linguistically diverse communities; Turkish, Indian and Sudanese"?‑‑‑Yes.


So I take it that you were the Indian - you were the appointed Indian community leader?‑‑‑That's right.


So do I take it that that role involved communicating with members of the Indian Community in that relevant area?‑‑‑Yes please.


Then if I take you back to your statement, paragraph 13, you talk about here your current role.  This is your fourth position as set out in your statement.  Is it correct to say that you are still in your current role as a family violence case manager?‑‑‑Yes, I am.


You say there at paragraph 13 that this includes providing cultural and emotional support along with providing language support to your clients.  Is that right?‑‑‑Yes please.


I take it that the use of your non-English languages is a core part of your role today?‑‑‑Yes, it is.

***        DR RUCHITA                                                                                                                              XXN MR SCOTT


Thank you.  Can I just take you to paragraph 18 of your statement please?‑‑‑Yes.


You make some observations there about the use of interpreters and you say the first sentence there is:


At inTouch we use interpreters and translators where we do not have a worker who speaks or writes in a particular community language or if that worker is unavailable.


Is that right?‑‑‑Yes, that's right.


Further down you state that - you refer to many Indian women speak Hindi, Punjabi and Urdu, but they don't all speak those three languages.  There's other members of the Indian community who will speak languages such as Tamil or Bengali?‑‑‑Yes, Tamil, Gujarati, Tamil Kumarati or any other Indian language, yes.


Yes, and you say that where you're dealing with Indian women who speak one of those languages which you don't speak, you engage the assistance of interpreters.  Is that right?‑‑‑Yes.  Yes, that's true.


Do I take it that if InTouch was to employ someone who spoke one of those languages such as Tamil or Gujarati that you would then not need to use the interpreters, the professional interpreters?‑‑‑That's right.


Thank you Dr Ruchita.  No further questions from me, your Honour.


JUSTICE ROSS:  Any further questions from any other of the employer advocates?  No?  Any re-examination?


MR ROBSON:  No, your Honour.


JUSTICE ROSS:  Right, thank you for your evidence Dr Ruchita.  You're excused?‑‑‑Thank you, your Honour.

<THE WITNESS WITHDREW                                                          [10.34 AM]


Next witness?

***        DR RUCHITA                                                                                                                              XXN MR SCOTT


THE ASSOCIATE:  Please state your name and address for the Commission.


MS SALEH:  Nadia Saleh (address supplied).

<NADIA SALEH, SWORN                                                                 [10.35 AM]

EXAMINATION-IN-CHIEF BY MR ROBSON                               [10.35 AM]


MR ROBSON:  Ms Saleh, you prepared a witness statement in these proceedings dated 14 February 2019?‑‑‑Yes.


That statement has four annexures?‑‑‑Yes.


Thank you.  You have a copy of that statement with you?‑‑‑Yes, I do.


Do you say that witness statement is true and correct to the best of your information, knowledge and belief?‑‑‑Yes, it is.


Your Honour, I tender the witness statement dated 14 February 2019.


JUSTICE ROSS:  I'll mark that exhibit ASU2 noting that the first two sentences at paragraph 40 have been redacted.


CROSS-EXAMINATION BY MR FERGUSON                              [10.36 AM]


MR FERGUSON:  Ms Saleh, my name is Mr Ferguson.  I work for an employer body called the Australian Industry Group and I have a small number of questions.


Can I just ask you to turn to paragraph 13 of your statement?  I think you there describe your role as the Manager of Child, Youth and Family Services.  That's your current role; is that correct?‑‑‑That's correct.


***        NADIA SALEH                                                                                                                            XN MR ROBSON

***        NADIA SALEH                                                                                                                     XXN MR FERGUSON

At paragraph 14, you say attached and marked annexure C is a copy of your job description for that role.  Is that right?‑‑‑Yes.


That you're classified as a social communities' service employee level 8.3, grade 6 and that you're full time.  Can I just ask you to turn to annexure C?  If you turn to annexure C, you can just see there, it's actually for the position of service manager and it's for a permanent part time employee.  Is this your job description or is this someone else's job description?‑‑‑Initially when I start this position it was part time.  Now I am full time.


The title has changed and the hours, but it's your position otherwise?‑‑‑I'm still the manager full time.


I mean from looking at that and what's set out in your statement, is it right to characterise your role as involving a mixture of sort of client-facing work as well as managerial or other administrative work involving managing a team and managing functions of the operation?‑‑‑Correct.


Is it right that you only use your Arabic language skills in relation to the client-facing work?‑‑‑I do use my language skills according to the needs, not only Arabic.


What other language skills do you have?‑‑‑As a manager, I will be required to assist as required, but in terms of Arabic, I can speak many Arabic languages.


But do you use your language skills, if I can put it that way, every day?‑‑‑Mostly every day, yes.


You say mostly every day.  Is there some pattern to your use, or is it - - -?‑‑‑According to needs.


But it's not like one day a month or something that you don't use it, or there's no pattern as such?‑‑‑No.


So it can vary from week to week, the number of days that you would use your Arabic language skills?‑‑‑I do use my language skills on a daily basis.  As I stated, according to the needs of the client accessing our community.

***        NADIA SALEH                                                                                                                     XXN MR FERGUSON


Most days, but not every day.  Is that right, just to be clear?‑‑‑Most days.  Like nearly every day, but not all day.  When we talk about - as a manager, I will be assisting according to needs.


So assisting colleagues by speaking Arabic to them?‑‑‑Assisting colleagues at times if there is a need.  To better understand specific culture, yes.


It seems to me that that it's your use of Arabic is an integral or essential part of your job.  Would you agree with that?‑‑‑That's correct.


It's in your view, a normal part of your duties?‑‑‑As a community worker and a service manager, if I am required, yes, it will be part of my duties.  Once again, that's according to the community needs.


Have you been instructed by your employer to use Arabic in the course of your work or is it a decision you make on your own initiative?‑‑‑I am employed by an agency and I will be instructed according to the agency's needs.


Yes, and have they instructed you to use Arabic in the course of your work?‑‑‑Yes, I would say so.


Do some of the agency's clients speak Arabic as well as English?‑‑‑The clients sometimes they may speak a little English and other clients they are fluent.


So some clients are fluent in both English and an Arabic language?‑‑‑At times, yes.


In that case what language do you speak to them in?‑‑‑Can you please repeat the question?  What do you mean by that?


In the circumstances where they are fluent in both Arabic language and English, what language do you speak to them in?‑‑‑If they're fluent in English, I will be speaking English.


Is it you that makes that assessment about which language to use, in the context of individual clients?‑‑‑Once again according to the needs of the individual.

***        NADIA SALEH                                                                                                                     XXN MR FERGUSON


Based on your assessment?‑‑‑It's not based on my assessment.  The client will determine if they would prefer me to speak in Arabic or English.  Initially the conversation will start in English.  If the client needs Arabic, I will be speaking to them in Arabic.


Is it a judgment call on your behalf or you accommodate their preference in one of the other situations?‑‑‑According to the client's needs.


I'll just take you to paragraph 17.  You there say that only about 30 per cent of the population speak only English at home.  I take it that's not based on your own observations of what people in their own homes?‑‑‑The recent census in 2016 had shown us 62 per cent of the household members they do speak English.  Non-English speaking but only around 30 per cent English speaking at home.  And our client needs have showed us that the population, the majority of the population are from non-English speaking background.


Yes, so just to be clear, thank you for that.  So the view that 30 per cent of the population speak only English at home is based on Census data that you've reviewed.  Is that right?‑‑‑That's recent 2016 Census.


2016 Census data.


JUSTICE ROSS:  Can I just clarify.  Is that observation about the 30 per cent, are you talking there about Riverwood or more generally?‑‑‑Yes, your Honour, that's Riverwood.  That's the recent Census had showed us that - like those that speak English at home, there was English 30 per cent and over 60 per cent non-English speaking parents.


Thank you.


MR FERGUSON:  I'll just take you to paragraph 31 very briefly.  You there say - I'm starting from the third paragraph:


We often rely on community language speakers from other services at the Riverwood Community Centre to help us.  For instance, other services at the Riverwood Community Centre often ask me to help them by using my community language skills.  For instance, it's common for the aged services team to ask for my help working with Arab speaking clients who have trouble speaking English.

***        NADIA SALEH                                                                                                                     XXN MR FERGUSON


I take it that in your role you sometimes using your language as a substitute for an interpreter.  Is that right?‑‑‑At times interpreting may cost us additional cost, which may put some restriction on our funding but however, depends on the needs of the client.  At times, like, if it's related to domestic violence, sexual abuse or other sensitive issues, I will be asked by the other service manager to assist in that area.


So is it your evidence that because of either costs or because of the nature of the issue, you use your language skills as a substitute for an interpreter?‑‑‑It's the cost but also it's about being able to understand the needs, and also it's about being able to support.  At times we have accessed interpreters but they were not appropriate to meet the needs of individual clients.


Because of your use of language skills you're able to avoid - your organisation's able to avoid using interpreters.  That's your evidence?‑‑‑Additional - to avoid additional cost, yes.


Those are the questions.


JUSTICE ROSS:  Any other questions in cross-examination for the witness?  Any re-examination?

RE-EXAMINATION BY MR ROBSON                                           [10.46 AM]


MR ROBSON:  Yes, your Honour.


JUSTICE ROSS:  Just before you do I should just check with my two colleagues whether they have any questions for the witness.  No.  No.  Right.


MR ROBSON:  Ms Saleh, you were asked about how you decide whether or not to use your community language skill when dealing with a client.  Could you explain to the Commission how you make that decision?‑‑‑The decision will be determined by the client.  If the client unable to communicate effectively in English, they would state normally can you please speak in Arabic, and that's what I will do.


So how would you open a conversation with a new client to determine what language you needed to speak with them?‑‑‑When I meet the client I will be meeting them and greeting them in English, and they will say can you please speak in Arabic, I need to better understand.  Especially at times when they're talking about sensitive and complex issues.  If there is limitation on their communication ability I will be asked to speak in Arabic, and that's what I will do to better support the clients.

***        NADIA SALEH                                                                                                                          RXN MR ROBSON


So partly it's a request but also you will - partly it's a request?‑‑‑By the client and when there is a need I will be there to support in Arabic, yes.


So when you say when there is a need, does that mean that sometimes you enter into a conversation with a client in English and then determine it would be better to continue that conversation in Arabic?‑‑‑Because the client would have asked me can you speak in Arabic, yes, that's right.


You were asked questions about how you use your communicate language skills in your work.  Could you explain how you use your community language skill to assist your - the people in the team that you manage?‑‑‑My skills would be assisting the team in better understanding the cultural background and also if there is any specific barriers, in order to meet the client's needs.


Do you ever assist an employee you manage to speak in a language that they understand?‑‑‑I would sometimes support them with training as required and also support them to better understand if there is any sensitive issues, yes.


No further questions.


JUSTICE ROSS:  Nothing further for the witness?  Thank you, you're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                          [10.49 AM]


JUSTICE ROSS:  Next witness?


THE ASSOCIATE:  Could you state your full name and address for the Commission please?


MS LANG:  Yes, it's Natalie Lang and we are at Level 1, 39-47 Renwick Street, Redfern.

<NATALIE LANG, SWORN                                                              [10.51 AM]

EXAMINATION-IN-CHIEF BY MR ROBSON                               [10.51 AM]


MR ROBSON:  Ms Lang, you prepared a witness statement in these proceedings, dated 18 February 2019, is that correct?‑‑‑That's correct.

***        NATALIE LANG                                                                                                                          XN MR ROBSON


You have a copy of that statement with you?‑‑‑That's correct.


Do you say that the witness statement is true and correct, to the best of your information, knowledge and belief?‑‑‑I do.


Your Honour, I tender the statement, dated 18 February 2019.


JUSTICE ROSS:  I'll mark the statement exhibit ASU3, noting that the first two sentences in paragraph 7 have been removed, and paragraph 20 has been removed.




CROSS-EXAMINATION BY MR FERGUSON                              [10.52 PM]


MR FERGUSON:  Ms Lang, my name is Mr Ferguson, from the Australian Industry Group.  I have a mercifully small number of questions?‑‑‑Wonderful.


You give evidence about the operation of the Community Language Allowance Scheme, in federal and local government - in the context of federal and local government employees, and in the context of New South Wales government sector employees, I think?‑‑‑That's correct.


I was just going to ask for you to be handed a document?‑‑‑Thank you.


I'll just ask you to take a moment to quickly look at it.  This document was taken from the Multicultural New South Wales website, described as a Community Language Allowance Scheme Handbook.  Have you seen this document before?‑‑‑No, I have not.


Can I take you to page 3 of that document?  Under the CLAS scheme, as it operates in New South Wales, is it right that there's both a higher and lower base level allowance?  Sorry, I'm not taking you to the document, I apologise, I'm just using to ask a question.  In the New South Wales scheme is there both a higher and base level quantum of the allowance that's payable, to the best of your knowledge?‑‑‑Sorry, you've taken me to page 3 of the document - - -

***        NATALIE LANG                                                                                                                   XXN MR FERGUSON


Sorry, I apologise, I'm - - -?‑‑‑I can see from the document you've taken me to it does detail that there is.


Yes.  I apologise for taking you to the document, just from your own knowledge, are you aware that the scheme operates so that it provides for two levels of hours, a base level and a higher level of hours?‑‑‑Well, it's here in the document that you've taken me to, Mr Ferguson.


I appreciate that, but without looking at the document, did you recall - - -


JUSTICE ROSS:  Well, it's a bit late now, isn't it?


MR FERGUSON:  I was just - what I was trying to do - - -


MR ROBSON:  Your Honour, objection, this is - - -


JUSTICE ROSS:  Okay.  Were you aware, before you read the document, there were two levels?‑‑‑I'd have to look back over my notes, but in preparing my witness statement I've looked at both the local government practice and the state government practice and tried to form a view about the most appropriate practice for our sector and I would have to wrack my memory as to which one had a two-tiered scheme, but I would reflect that one did.


All right.


MR FERGUSON:  Do you agree that the higher level is payable when staff have achieved qualifications of NAATI interpreter level and above?‑‑‑Again, Mr Ferguson, where you've taken me to the document it does say that.


Is that your understanding of how the scheme operates?‑‑‑Well, once again, Mr Ferguson, where you've taken me to the document it does say that.


JUSTICE ROSS:  What difference does it make what the witness' understanding of how the scheme operates, isn't it how does the scheme operate that's important?


MR FERGUSON:  Yes, sorry.  Is that how the scheme operates in New South Wales?‑‑‑I apologise.  I understand you perhaps not intended to take me to the document first, but you have, so now I'm reflecting on this.

***        NATALIE LANG                                                                                                                   XXN MR FERGUSON


MR ROBSON:  Your Honour, I have to object.  We haven't seen this document before, are we just going to go through the document and ask the witness if it's been read?  What's the relevance?


MR FERGUSON:  My apologies.  What I was asking was whether this document reflects an accurate - accurately what - the way the scheme operates, in practice?‑‑‑


MR ROBSON:  Well, the witness hasn't had an opportunity to read it, how would they know?


JUSTICE ROSS:  That's true.


MR FERGUSON:  Well, I'm only taking them to one very small paragraph and finding out whether the criteria for the eligibility for the higher level is as reflected in this document?


MR ROBSON:  Well, it's a handbook, we haven't had an opportunity to read it.  We don't know what the context of that particular paragraph is.


MR FERGUSON:  Let me put the document aside then.  In New South Wales, to be entitled to the CLAS allowance, must an employee have achieved, to be entitled to the higher level allowance, must an employee have achieved qualifications of NAATI interpreter level and above?‑‑‑I apologise, I'm not meaning to be facetious, Mr Ferguson, but you have taken to the document, I've read that now to be in the document, it's a bit difficult for me to be able to answer these questions saying, "Please put the document aside", where it's in front of me.


Do you know if that's the way it works, based on your own knowledge?‑‑‑I have not had an opportunity to properly review this document or consider it in the context.


I can tender the - - -


JUSTICE ROSS:  Yes, sure.  Look, I'm - I want to know how it operates anyway, so one of you is going to have to put documentary material about how the scheme operates.  If this is the document, then it's the document.

***        NATALIE LANG                                                                                                                   XXN MR FERGUSON


MR FERGUSON:  I'll tender it if its the fastest way home, as long as there's no - I was just trying to establish its relevance.


MR ROBSON:  Well, the scheme's established through industrial regulation, I don't know what the handbook is.


JUSTICE ROSS:  You haven't put any evidence about the industrial regulation, other than the limited material at paragraph 21.  If you're contesting this, you'll have an opportunity to read it, and then it you say it's not right, that's not how it works, then you can say, "That's not how it works".  But it's not an objection to it being tendered.  You'll have an opportunity to comment on it.  Where did it come from?


MR FERGUSON:  It was from the Multicultural New South Wales website.  We were just trying to work out what the schemes were.


JUSTICE ROSS:  All right, we'll mark it exhibit AiGroup1.



MR FERGUSON:  In the circumstances, no further questions.


JUSTICE ROSS:  Okay.  Look, you may not be able to assist me with the question, Ms Lang, and if you can't then I'm going to ask Mr Robson to get the material from somewhere?‑‑‑Of course.


You say, in paragraph 17, that, "The Community Language Allowance Scheme is an allowance paid to qualified state, federal and local government employees", is that a scheme that only operates in New South Wales, or does it operate nationally?‑‑‑Your Honour, I'm the branch secretary for New South Wales and the ACT - - -


I know?‑‑‑ - - - so my understanding is of the New South Wales operation and that it applies.

***        NATALIE LANG                                                                                                                   XXN MR FERGUSON


All right.  Well, the question to you then, Mr Robson, is, are we here talking about, and I appreciate the witness you've called will have knowledge of how it works in New South Wales, but are you drawing our attention to the fact that there is a Community Language Allowance Scheme that operates nationally, or is it the New South Wales scheme that you're referring to, albeit, as I understand Ms Lang's evidence, the New South Wales scheme operates to pay an allowance to qualified federal, state or local government employees, at least who work within New South Wales.


MR ROBSON:  Can I take that on notice, your Honour?


JUSTICE ROSS:  Sure, yes.  You might have a chat with Mr Ferguson and see if you can sort out an agreed position in relation to it.  If there are other industrial instruments that regulate it, as you say, it's got, in Ms Lang's statement, or you may be able to assist with this, Ms Lang, you say, "For example, the PSA service award provides the following allowance".  Are there other industrial instruments in New South Wales that provide such an allowance?‑‑‑Yes, your Honour, the local government awards also provide for the allowance.


Perhaps if you can provide, through Mr Robson, copies of any other state instruments that you're aware of that provide for the allowance.  For that matter, Mr Robson, if there are any federal instruments that provide a similar allowance, if you can provide those as well.  All right.


THE WITNESS:  If I may, the reason we've looked to the local government award, as well as in relation to the comparability of the work that's performed and the nature of the work being that whilst local government and community services often provide services such as youth services.  So, it is similar in the sense of the work being similar.


JUSTICE ROSS:  All right, but in any event, that can be the subject of any submissions once the instruments are available to us and the parties can say what they want to say about the relevance of it.  I'm just trying to get a handle for the moment around where such an allowance is paid, under what sort of scheme is it paid, is it in New South Wales or is it national, that sort of thing that's all.  The advocates can sort out presumably, an agreed position in relation to that.


Anything arising?  Any further cross-examination of the witness.


MR ROBSON:  No, sir.


JUSTICE ROSS:  Any questions from my colleagues?  No?  Any re-examination?


MR ROBSON:  No, sir.

***        NATALIE LANG                                                                                                                   XXN MR FERGUSON


JUSTICE ROSS:  All right.  Thank you for your evidence Ms Lang.  You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                          [11.02 AM]


The next witness?


MR ROBSON:  I call Lou Bacchiella to the stand.


JUSTICE ROSS:  Just before we swear the witness, can you remind me where we ended up on paragraph 17?


MR ROBSON:  It was struck out.


JUSTICE ROSS:  Was it struck out in its entirety?


MR ROBSON:  In its entirety.


JUSTICE ROSS:  That's fine.


THE ASSOCIATE:  Could you please state your full name and address for the Commission.


MR BACCHIELLA:  My name is Lou Bacchiella (address supplied).

<LOU BACCHIELLA, AFFIRMED                                                  [11.03 AM]

EXAMINATION-IN-CHIEF BY MR ROBSON                               [11.03 AM]


MR ROBSON:  Mr Bacchiella, you prepared a witness statement in these proceedings dated 13 February 2019?‑‑‑That's correct.


You have a copy of that statement with you?‑‑‑Yes, I do.


Do you say that witness statement is true and correct to the best of your information, knowledge and belief?‑‑‑Yes, it is.

***        LOU BACCHIELLA                                                                                                                     XN MR ROBSON


Your Honour, I tender the statement dated 13 February 2019.


JUSTICE ROSS:  I'll mark the statement of Lou Bacchiella exhibit ASU4, noting that paragraph 17 of the statement has been struck out and the first, second and fourth sentences in paragraph 27 have been struck out, such that paragraph 27 now reads "The allowance would help me recruit and retain skilled and qualified staff.  The benefit to my organisation of having community languages paid as an allowance under the award, would far outweigh the cost."




CROSS-EXAMINATION BY MR FERGUSON                              [11.05 AM]


MR FERGUSON:  Yes.  Good morning Mr Bacchiella, my name is Mr Ferguson from the Australian Industry Group.  I have a number of questions for you.


Your organisation is a migrant resource centre.  Am I right to assume that your service provides assistance to people from a broad range of backgrounds?‑‑‑Yes, that's correct.


At paragraph 11, you identify the three most common languages spoken by your clients.  What other languages are spoken?‑‑‑It's a much, much broader range.  I think at last count, we have around 24, 25 languages among our staff.  But certainly within the community, it's Chinese speakers.  We're starting to see more emerging communities from Africa and various languages obviously spoken in those groups.  Also a growing south Indian, or subcontinent population and again, there's a myriad of languages.


Just in numerical terms, do you know how many different languages are spoken by your clients?‑‑‑By our clients?  I'd be guessing here, but it's quite a broad range.


Yes, well, look, can I put it this way?  Is it right that it's many more languages than are spoken by your staff?‑‑‑Yes, that's correct.


Do some of the clients you work with speak English as well as another language?‑‑‑Yes, they do, but the bulk of our work tends to be with newly arrived migrants, so they have limited English competence.

***        LOU BACCHIELLA                                                                                                              XXN MR FERGUSON


Where they do speak both, English and have another language, a first language if you will, which language do your employees speak to them in, if they're competent in both?‑‑‑If they're competent in both, it's on a case by case assessment.  If the person feels more comfortable speaking in their mother tongue, that's how they proceed.  Otherwise, they're given the option to speak English.


So a case by case assessment based on the client's preference?‑‑‑Yes, yes.


Do they ask the client which language would you prefer?‑‑‑Yes, they do, yes.


I'll just take you to paragraph 12.  You there say it's in the second sentence, the complex case work that's involved in migrant settlement and family services requires community language speakers and we engage with clients in the language to try and build rapport and trust.  Would you say then that the use of community languages is an essential and integral part of the job of your employees?‑‑‑Yes, it is.  As I say in the following sentence, it's case work is pretty much predicated on building a trust and rapport and in matters that are often complex and sensitive, it is important that that rapport is struck and the best way to do it is within the same language - by using the same language.


For those that have community language skills, is the use of those skills part of their normal duties?‑‑‑They do, yes they do.


They're using those skills I take it, to have quite complex conversations with the clients?‑‑‑Yes.


For those employees who are bilingual workers, is there a regular pattern to their use of the language in the course of their work?  I say that, for example, do they use it every day?‑‑‑Yes, they do.  It's - I often get a sense of the clients that come into the office and they are using it every day.  At reception they use it every day, but also in the case work - it's used daily.


For those case workers that are bilingual, would they all use their secondary language every single day?‑‑‑Every day, yes.


Have you ever had a bilingual employee refuse to use their second language in the course of their duties?‑‑‑Not to my knowledge, no.

***        LOU BACCHIELLA                                                                                                              XXN MR FERGUSON


Do you require them to use it?  Can you direct them to use it?‑‑‑No we don't direct them to use it.  I think it's just the preferred mode of communication by the clients and therefore we recruit staff that reflect the local demographics as much as we can.


Thank you.  I just take you to paragraph 19.  You there refer to the cost of interpreter services needing to come out of your organisational budget.  Let me understand, what is your organisational budget?  What do you mean by that?‑‑‑Our funding comes from a variety of sources; commonwealth, state and state funding, and we also receive small amounts from club grants and councils.  Our funding is around $5.5 million a year across a range of different programs.


I understand that.  Just in terms of your organisational budget you there refer to, am I right to assume that that budget is an amount of money that your organisation has accrued or possesses?‑‑‑Through grants.


Through grants?‑‑‑Through grants, yes.


Must it be utilised on those particular work or is it - - -?‑‑‑Yes, absolutely, yes.  Applied purely within those programs.


So it's not money that you have any discretion to spend for other purposes?‑‑‑No.  No, it's not, no.


So the costs of interpreters need to come out of a particular grant.  Is that right?‑‑‑Out of those grants, yes.


So in paragraph 19 you say:


Certain funding contracts stipulate that interpreter services need to come out of the organisational budget.


What does that mean then?‑‑‑Well, every time there is an instance where we use an interpreting service we are billed for that service and that amount is assigned to that particular funding program.


To that particular contract.  Is that what you mean?‑‑‑Yes.  Yes.


So does that - if a contract doesn't provide for payment, that's what I understand - I'm taking you to mean - - -?‑‑‑No, it doesn't, no.  It did in years gone by but no longer.  So if I can give an example.

***        LOU BACCHIELLA                                                                                                              XXN MR FERGUSON


Yes?‑‑‑In our settlement area our current funding program does not cater for interpreting, whereas previously it did and this is something that we are advocating for to the funding - - -


Where do you get the money for the interpreting service from?‑‑‑Well, we are given an amount of money and we just have to make do with what we have.


It's not directly attributable to something specific.  You just have to make an assessment?‑‑‑No, no, I mean if the client requires an interpreter or if we require an interpreter to be brought in then we have to pay that money out of that particular program's budget.


When you say budget, that's out of the amount of money that comes from that particular fund?‑‑‑That's right, from that funding pool, yes.


You don't have any fund other than what's specifically tailored to particular - - -?‑‑‑No.  No.


Take you to paragraph 24 and the first sentence.  You refer to funding restraints and you say that:


I'm unable to offer my employees the award rates of pay and conditions due to funding restraints.


Are you in effect saying you simply can't afford to pay more than award rates because there's nothing more than that provided for in any funding?‑‑‑Well, currently we can't so we're allocated a certain amount of money, that goes towards paying wages and any related program costs.  We don't have the liberty to provide any form of incentive payments or anything above and beyond what we get - what we have via the award, you know.


Can I take it that the funding contract doesn't say that you're prohibited from paying your employees more?‑‑‑No, that's correct but I think the reality is that being in community services it's not flushed with a lot of money, so we're limited to what we can pay.


The last sentence there you say:

***        LOU BACCHIELLA                                                                                                              XXN MR FERGUSON


If the award changed our funds would be obliged to increase funding to reflect the award to cover that cost.


On what basis do you say that?‑‑‑Look I liken it to the equal remuneration order in bringing the award into the modern award, where government funding bodies provide a supplement to cover the ERO, and I believe it's over an eight year period due to expire in 2020. So that's one way that the - if this could be organised in a similar manner where these allowances are factored into the funding.


Say they'd be obliged to, is it in reality your hope that governments will pay - - -?‑‑‑That's my hope, that is my hope.


That is - it is only a hope?‑‑‑Yes.


There's no other basis on which they'd be obliged to?‑‑‑No.


No further questions.


MR SCOTT:  Your Honour, if I can ask - - -


JUSTICE ROSS:  Certainly.

CROSS-EXAMINATION BY MR SCOTT                                       [11.16 AM]


MR SCOTT:  Mr Bacchiella, my name's Mr Scott.  I appear on behalf of four employer associations.  I just have a few questions for you.  You were asked a question about how often your staff use their community language, and I think the effect of your response was that they use it every day.  Is that right?‑‑‑Yes.


Would you agree with me that that position would reflect the nature of your organisation as a specific migrant resource type organisation?‑‑‑That's correct, yes.  If I may, can I just clarify something?


Sure?‑‑‑When I say our staff, that does not include back end admin staff but certainly front line services like case workers, reception areas, they'd be using the language on a daily basis.


Yes, and at paragraph 6 you in describing the work of Metro Assist you say that:

***        LOU BACCHIELLA                                                                                                                      XXN MR SCOTT


We service culturally and linguistically diverse communities.




Is it the case that that's effectively the focus of your organisation?‑‑‑Very much so.  While some of our programs are specifically for CALD communities, so our settlement program for example is such.  We also have the Brighter Futures contract with Family and Community Services, which is specifically a multicultural Brighter Futures program. There are a number of mainstream programs as well, however we tend to attract people of culturally and linguistically diverse background by virtue of our reputation, the organisation and also the referrals that are made to us by Centrelink and other welfare agencies.


So I just want to make sure I understood because I missed a small fraction of your response.  Is it the case that certain aspects or certain functions of your business or your organisation are more mainstream services?‑‑‑Some, yes.


At paragraph 7 of your statement you set out some or perhaps all of the services and programs that you provide.  Can I just ask you is that an exhaustive list of the programs that you provide?‑‑‑Yes and within that there are a number of subprograms.  So if we look at financial inclusion, for example, we provide financial counselling, tenant advocacy and advice, no interest loans and emergency relief.  So they're the subprograms within that.


Are those services provided to primarily or exclusively members of the community from culturally and linguistically diverse - - -?‑‑‑Not that particular program, no.


So that's an example of a more mainstream program that you run.  I take it you're familiar with the Social Community Homecare Disability Services Award?‑‑‑Reasonably.


Takes a while to get that out.  I'm not going to grill you on it but I take it that your organisation Metro Assist, is not a registered provider under the National Disability Insurance Scheme?‑‑‑Not at this point.


Do you operate under the Homecare government framework?‑‑‑No, no, under the community area.

***        LOU BACCHIELLA                                                                                                                      XXN MR SCOTT


So is it fair to say that your organisation has a strong focus on communities which are culturally and linguistically diverse?‑‑‑Yes.


Can I put a proposition to you, is it correct that you would not describe your organisation as a mainstream service provider?‑‑‑That's a complex question because - and the complexity lies in that we were a market resource centre providing settlement support services initially, and over the years we've broadened the scope of the organisation to a far more inclusive organisation.  So I think as I said earlier, it's purely by reputation that we attract people of culturally and linguistically diverse backgrounds.  However, there are some programs which are specifically focused on, called Migrant Communities, and others that are open to everyone.


I think that's all my questions.  Thank you very much.


JUSTICE ROSS:  Any other questions by any other employer advocate?  Any questions from my colleagues?  No?  Any re‑examination?


MR ROBSON:  Yes, your Honour.

RE-EXAMINATION BY MR ROBSON                                           [11.21 AM]


MR ROBSON:  At paragraph 24 of your statement you say:


However, if the award changed our funders would be obliged to increase funding to reflect the award to cover the cost.


You were asked if that was a hope rather than something that you know?‑‑‑It is a hope.  It's an aspiration.


Or, rather, is it an expectation based on past experience?


JUSTICE ROSS:  Well, you're leading the witness and you're not here to cross‑examine the witness; you're re‑examining.


MR ROBSON:  Could you tell us about your past experience with previous award variations and funding?


JUSTICE ROSS:  Well, no.  He told us about the ERO.

***        LOU BACCHIELLA                                                                                                                  RXN MR ROBSON


MR ROBSON:  That's the only one I can refer to, basically, the ERO.


That experience, is that how you formed that opinion?‑‑‑Yes.  I would hope that it would be the - that it could be the same, otherwise it would put a strain on our finances, but also if we didn't have it, it would put an equal strain, I'd imagine, in our payment for interpreter services.  That would not only be a cost in itself, but also affect the quality of the work that we provide.


You were asked about your budgets and interpreting.  Can you explain what happens to your budgets if you have to use interpreters?‑‑‑Well, the amount - we put aside an amount for wages within each of the program areas.  We also put aside an amount of money for any project costs.  It's difficult at this point to assess what the full impact of interpreter costs might be, because we do have bilingual staff and that is a - I'd say it's a pretty big cost saving to the organisation.  If we were to trade away our bilingual staff and have to rely on interpreters, that would be quite an impact financially but also in the way we work and the effectiveness of our case work.


How does using bilingual workers affect your budget?‑‑‑Look, at the moment it doesn't impact greatly on our budget.  I did a quick check of how much we have spent up to and including the third quarter of this financial year on interpreter services and it's around $7000, which is not a huge amount.  I put that down to the fact that we do have bilingual workers who can fulfil that role, so I think having staff with those skills is a significant asset to us as an organisation, but, importantly, for the outcomes for our clients, as well.


No further questions.


JUSTICE ROSS:  Any further questions for the witness?


Thank you, Mr Bacchiella.  You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                          [11.25 AM]


JUSTICE ROSS:  Does that complete the witness evidence?


MR ROBSON:  Yes, your Honour.


JUSTICE ROSS:  I'm told by my associate that you have some material that you're proposing to tender.  Is that material that's referred to in your submission?

***        LOU BACCHIELLA                                                                                                                  RXN MR ROBSON


MR ROBSON:  Yes, indeed.


JUSTICE ROSS:  All right.  Are you going to particularly take us to any part of it?  The reason I ask is that our colleagues in Melbourne - how is he going to see the material if you're going to take it - - -


MR ROBSON:  Yes.  I understood it was filed with our submission.






JUSTICE ROSS:  Yes, okay.


MR ROBSON:  I had shared it with your associate today in advance.


JUSTICE ROSS:  Yes.  You might talk to my associate when we break about which particular documents you're going to take us to so that we can advise Deputy President Clancy.


MR ROBSON:  Yes, your Honour.


JUSTICE ROSS:  All right.  So what has arisen from Ms Lang's evidence and how you might go about that, I'll also provide you with a document which sets out the provisions or references in modern awards which are translators and interpreters.  A number of those deal with occasional interpreting.




JUSTICE ROSS:  I would ask you to discuss amongst yourselves - it can either be during the break or after the close of today's proceedings and you can let me know tomorrow - just what short directions might be agreed between you about (1) the filing of the information that we have sought about how the Community Language Scheme works and also about state and any other instruments that you're aware of that provide for it; so the filing of that material and then an opportunity for anyone to comment on it.


They can also comment on the extracts from modern awards that we'll provide you with and we'll post on the web site, then an opportunity briefly to reply to whatever anyone else says.  Okay?  Let's try and do it reasonably quickly.  I appreciate we have got Easter and Anzac Day next Thursday.  That's causing me a source of frustration that everyone seems to think that there are no working days next week, but if you can agree on how you manage that and we can deal with it by written submission.


Now, it's 11.30.  We have read the submissions.  There are a couple of questions we want to put to you and obviously, Mr Robson, you will want to respond to what the employers have said in relation to your claim.  Can I get some indication of how long you think you're likely to be in oral submissions?


MR ROBSON:  Look, your Honour, no longer than 20 minutes I think.


JUSTICE ROSS:  All right.  Well, I don't think it will take too much longer than that in reply.  Look, it might be preferable - subject to the views of the parties - if we adjourn until 12.00 just to give you a chance to sort yourselves out and to see what you wanted to say about the witness evidence, and then we can commence with oral argument then and we'll be finished by 1.00.  Is that a suitable course or - - -


MR ROBSON:  Could we start at 12.30?  I need to return to my office.  I've got a minor disability that makes it difficult to write with a pen in a legible - - -


JUSTICE ROSS:  No, no, that's fine.  We can come back at 12.30.  We will just go through until we finish.  Is that convenient for everyone?


MR ROBSON:  It is.


JUSTICE ROSS:  Okay.  Thanks very much.

SHORT ADJOURNMENT                                                                  [11.29 AM]

RESUMED                                                                                             [12.35 PM]


JUSTICE ROSS:  Please be seated.


MR ROBSON:  Thank you your Honour.  If it pleases.  We were asking the Commission to find that the SCHADS Award does not provide a fair and relevant minimum safety net because it doesn't recognise or remunerate the use of community language skills by award-dependent employees in the course of their duties.


What we have seen today is that community language skills are vital to the social and community sector.  These skills are not translation or interpretation.  They are the application of social and community sector disciplines in a language other than English.  The evidence of Nadia Saleh, Lou Bacchiella and Dr Ruchita is that increasingly, services are required to provide culturally relevant services both through demand and through funding arrangements.  This includes services in the client's first language.


The evidence shows that employees who possess community language skills are to be employed in a variety of positions throughout social and community services and are called on to utilise these skills on an as-needs basis in addition to what are the normal duties for a person in that position.


Employees in the same classification, but without community language skills, are paid at the same rate as those who use community language skills in the course of their duties.  Employees who use their language skills are not remunerated for it.  Many award-dependent SACS employees are low paid workers.  Additional income is relevant to their needs and living standards.


Additionally, the evidence of Lou Bacchiella, the only employer to give evidence in these proceedings is that skilled and experienced staff leave his organisation because of the low rates of pay he's able to offer.  They often leave for the public sector and local government.  These industries offer better rates of pay and additional benefits like a community language allowance.  We note that the industrial regulation will be dealt with later. An award variation is the only way to deal with this matter.  Bargaining is very rare in the social and community sector, because employers are funded by the award, not by any additional amount.


If the Commission accepts that the SCHADS Award doesn't meet the modern awards' objective, it must then decide if the clause proposed by the ASU is necessary to achieve that objective.  We say that it does.  It is the most minimal response possible to the problem presented to the Fair Work Commission.  It solves the problem and does little more.


I'd like to reply to the employer's submissions.  Various employer groups have raised a number of technical concerns about the drafting of the clause.  Rather than respond individually, I'll take you through the draft clause.


In essence, the variation provides additional remuneration to employees who use community language skills to provide services to speakers of languages other than English or who use sign language to provide services with hearing difficulties.  This service is intended to be paid to front-line staff who use these skills as an adjunct to their normal duties.


This means that the skill must not form part of the normal duties of an award-dependent employee in the recipient's position, but must be an additional duty performed for the employer.  For example, this clause would not apply to those engaged as translators or interpreters because their language skills are not adjunct to their normal duties.  There is no one else in an organisation who is engaged as an interpreter in a language who - - -


JUSTICE ROSS:  Is there an interpreter clause or classification in this award?


MR ROBSON:  I can't recall off the top of my head sir.


JUSTICE ROSS:  Well, if there isn't, why do you need that?  Why do you need something to draw a distinction?


MR ROBSON:  Well, it's because the employers have been asking, is this not work that could be done by an interpreter or seeking to draw a comparison with interpreting work.  We're making the point that what this intends to do is remunerate people who apply social and community services disciplines in another language.


The clause provides that the duties covered including one-on-one, straight-forward communication of information.  This wouldn't apply to the translation of documents that would be relied upon in legal proceedings.  It would not be used for people interpreting in a formal setting, like the Fair Work Commission or a court room.  It is used for people who are applying social and community disciplines in another language.  They're doing duties for their employer that add value but are not currently contemplated by the classifications.  So I suppose, your Honour, what we're saying is that the issue of interpreting is not what this clause is targeted at.


There are two levels of remuneration proposed by the - provided by the proposed clause.  The base level allowance is provided to staff that use their language to meet occasional demands, and the second level is a higher allowance paid to employees who use their skill on a regular basis.  We note the submission of the AiG regarding the nature of the allowance.  We say that the amended draft determination deals with that issue.  It confirms that the allowance is a wage (indistinct) allowance tied to the award's standard rate.


COMMISSIONER LEE:  Can I just clarify that my understanding of your amendment would be that on the current rates the lower rate is now higher than what was in the original.  So it'd be now $47.04 would be the lower rate and the higher rate would be $70.56.


MR ROBSON:  Yes.  Now my understanding is that this is because the original clause was filed in 2017.  It was - well, it was always intended to be tied to the standard rate and that was what the calculation looked like in 2017.  There was an error in the draft in the clause that didn't make that complete, and I think there was an intention to have the draft determination look like the exposure drafts which have formulated things as dollar values rather than as the percentages of the standard rate.


The base level allowance is 4.9 per cent of the standard rate and is paid where the employee uses their language skill to occasionally provide services using their community language skill.  This is equivalent to a sleep over allowance at 25.7(d).  We say this is appropriate because this is a - we were looking in the award for a value that the award has placed on being able to provide services and be able to do it, but not necessarily always respond.


The higher level allowance is 7.35 and that's 1.5 times that of the base level allowance.  This reflects the greater contribution to the employer by employees who use their skill more regularly.  We propose that this allowance should be a weekly allowance because this is less administratively burdensome than paying the allowance per occasion.  The evidence before you is that people are using these skills regularly and so this is easier to administer than recording how it should be paid by occasion.  Again, employees who are paid the allowance must document their use of community language skills.


Additionally, employees who are required to use community skills in the performance of their duties will be provided accreditation from a language or a signing agency by their employer.  Do you have any more questions about the operation of the clause, your Honour?


JUSTICE ROSS:  How are they going to provide accreditation from a language or a signing agency.  It's a matter for the agency, isn't it?


MR ROBSON:  Well, they would, I suppose, purchase it or put persons through the course.


JUSTICE ROSS:  I don't think you can purchase it.  Put the person through what course?


MR ROBSON:  Well, there are numerous courses being - sorry, there are courses available to accredit people in community language skills.  This is a requirement that we say will be seen in the industrial regulation - - -


JUSTICE ROSS:  We don't know anything about those courses.


MR ROBSON:  Well, I'll come to that later.




MR ROBSON:  And if you'd like me to take that on notice I can provide you information about it.




MR ROBSON:  Thank you.  Several employer groups have raised the issue of the quantum of these allowances.  AiG has even asked if it is fair for employees who have grown up speaking a language to be paid for using it in their work.  I have handed up a case, it's Industrial - it's from the Industrial Relation Commission of New South Wales.  It is Local Government State Award 1997, application by the Federated Municipal Shire Council Employees Union of Australia, New South Wales Division for a variation re clause 11 use of skills and other matters [2000] NSWIRComm 108, and I'd like to take you to paragraph 27.  This is the only part of the judgment I'll take you to at this time.


JUSTICE ROSS:  We don't have a copy of it.


MR ROBSON:  I handed it up.  Apologies.


JUSTICE ROSS:  Paragraph?


MR ROBSON:  27, sir.




MR ROBSON:  There Schmidt J said:


I particularly take the view that it is both disingenuous and wrong for a council to suggest that employees who, for instance, are asked if they possess community language skills and whether they would be prepared to assist residents who have difficulty speaking, or understanding English, and are later called upon to provide such assistance are not entitled to any payment for such work because they are not required to perform it and are merely volunteering to do so.  That this attitude is persisted with at a time of increasing numbers of residents who require such assistance and in circumstances where councils must increasingly meet legislative obligations to provide such assistance is difficult to understand.


We say that this view remains relevant today.  It is unfair to expect employees to have these skills, to ask them to use these skills but not to remunerate them for it.  The allowance remunerates employees who use community language skills to practice their professional discipline.  The quantum reflects the significant matters that social and community services employees deal with, including domestic violence, child abuse, drug abuse and homelessness.  The application of their community - the application of their professional skills in a different language to English certainly is valuable.


Moving through, ABI asks in its submissions why accreditation should come before the payment of the allowance and why it shouldn't be a prerequisite.  We say that this is unfair and doesn't meet the circumstances of the industry.  Workers in the sector are low paid and those who would be entitled to this allow have probably been educated through their community or through having been born overseas, then learnt English as a second language.


JUSTICE ROSS:  Well, why is that relevant to whether or not they get the accreditation before the allowance?


MR ROBSON:  Well, I suppose the evidence we've shown is that this is a skill that's been required by employers.  It's a skill that people acquire not through going to university or going through a language course.  It's a skill that they have - - -


JUSTICE ROSS:  Sure, I get that but why is that - why does that stop them getting accredited?


MR ROBSON:  Well, they're - I suppose it's the cost.


JUSTICE ROSS:  But you've got the reimbursement or at least I think that's what that clause is directed at.


MR ROBSON:  Well, that's not currently award entitlement.  So if employees were able to get reimbursed for accreditation then surely that's appropriate but - - -


JUSTICE ROSS:  Well, isn't that 20.10.7?


MR ROBSON:  Yes, but I think this clause is drafted contemplating that currently.  Employees have been asked to use this skill.  They're not being required to seek accreditation so their skills is not being recognised through any - - -


JUSTICE ROSS:  No, but none of this makes any sense because 20.10.7 as I had read it, where they're required to use their community language skills in the performance of their duties and hence would get the allowance, the employer is to arrange accreditation.




JUSTICE ROSS:  Right, well - but the point raised by ABI is well, and you can still deal with the cost point, is that well why shouldn't they be accredited before they get the allowance?  There's no sequencing here.  That's the point.


MR ROBSON:  Well, the sequencing is the employer requires it and then the allowance was paid and if they're requiring it then they take steps to ensure that there is accreditation.  I think this - I think I'm losing you, your Honour.


JUSTICE ROSS:  Yes.  No, I don't think you're repeating the argument is going to - doesn't increase its merit.




JUSTICE ROSS:  I still don't understand why would you have the accreditation point - why have you got it in your draft at all?  If you say it's not necessary to get the allowance, why have you got it there?


MR ROBSON:  Well, it's to ensure that the skills that these workers are using are not just remunerated but they're recognised through formal qualifications.  This is a sector that's spent far too long relying on the workers soft skills without recognition.  This will assist people to get recognition for their skills.  I suppose if you had - if you had to - if you pressed me on it, I would say that - we say that the allowance should be paid and if the obstacle to it is the clause about accreditation, then that should be deleted.  The issue in the industry is that people have these skills; they don't have the money to get accreditation, they didn't go to university - - -


JUSTICE ROSS:  Look, I understand the cost point.




JUSTICE ROSS:  But I also understand ABI's point is that - and it's a problem that's raised by Ai Group - you don't define what a community language skill is.  Well, accreditation gives you that because it would presumably - and I do want to get more information about the accreditation process for community language skills.  I understand how it works for interpreters.


You don't define what a community language skill is, so they're not assessed as having a skill.  Well, isn't it just going to lead to disputation?  An employee will say, "Well, I've got the skill and I use it", and the employer can reasonably ask, "Well, demonstrate you've got the skill."  At least with accreditation an external agency, an independent body, has assessed that employee as having a requisite level of skill.


The employer also provides greater certainty for both parties.  They know, "Well, here it is.  I've got the accreditation.  I meet the requirements.  I'm required to exercise the skill in my work.  I should get the allowance."


MR ROBSON:  Well, then we say that accreditation should be reimbursed with an employee when the employer requires the skill.  If that then becomes the basis on which the allowance is paid, that's the way it should apply.


JUSTICE ROSS:  All right.


MR ROBSON:  Again, going through the issue of interpreters which has been raised - - -


COMMISSIONER LEE:  Sorry, just before you go on, looking paragraph 72 of that New South Wales decision you provided, the clause proposed by the judge in that case is set out at that paragraph and then at the bottom of that page, where paragraph 72 is, it has got the subheading "Community language and signing work".  Over the page it starts at (vi).


I'm just looking at that.  It looks like - aside from the 20.10.7 in your amended draft - that's pretty much where you got the wording for this draft determination.  Would that be a fair statement?






MR ROBSON:  The issue of interpreters has been raised.  There is a submission that the proposed clause would reduce the employment of translators and interpreters in the sector.  I think the evidence of Lou Bacchiella contradicts that.  Interpreters and translators are used where they're appropriate, but again this clause deals with the use of a language other than English in the practice of social and community sector disciplines, whether it's family violence case work, youth case work.


These are not skills where an interpreter is necessarily going to assist the work that is being done; by introducing a third person who doesn't have the training.  It's not going to help build trust with a client and in some cases - and this is the evidence of Ruchita - interpreters don't necessarily have the values necessary to carry out this work and will give clients advice or information that is directly contradictory to what the case worker is attempting to give the client.


Again, NDIS submits that this allowance should be delivered through enterprise bargaining.  However, it also submits that funding constrains the ability of social and community services to bargain over matters.  This is correct.  This is a sector where wages and conditions are set by reference to the SCHADS Award.  The statement of Natalie Lang in her evidence discusses attempts to bargain for this and they have failed.


The award needs to be fair and relevant to the circumstance.  It needs to provide a fair and relevant safety net of minimum terms and conditions.  We know "relevant" means it does have to be adapted to the industry and in this one where - unlike many others - award dependence is not a feature of something internal to it, but to the nature of the external source of income, it then becomes important to - then there may actually be room for clauses like this to be included in the award.


Finally, there have been submissions about the cost of this proposal.  We say that the potential cost isn't a relevant consideration.  The funders take industrial regulation as they find it and they fund for that.  The issue of the clause in general should be decided on its industrial merit.  Thank you, sir.  That's all I intended to say.


JUSTICE ROSS:  Thank you, Mr Robson.  Who is going first for the employers?


MR FERGUSON:  Ai Group has already filed a comprehensive submission.  I won't go through that in detail.  I do want to touch upon the draft determination a little bit because it's relevant to more that I'll say.  We have gone through and set out the range of deficiencies that we say exist within it.  We say they are so fundamental that they go to the heart of the claim and they're not things that can just be altered through minor wording, tweaking, without fundamentally altering the claim.


If I can just touch upon this issue of the definition.  Obviously one of the points we've made is it's not clear when somebody will be performing a community language skill for the purpose of this clause so as to entitle them to the amount.  It seems that the general intent of the clause is though that it's only people who are performing it as an adjunct to their normal role; that's something additional to their normal role.  The nature of the work seems to be that it's simple use of language skills.


We're left looking at 20.10.4 and 20.10.5 to try and glean some understanding of this, but it's said that such work involves an employee acting as a first point of contact for non‑English speaking service users or service users with a hearing difficulty.  It's only that first point of contact.  Then at 20.10.5:


Such employees convey straightforward information relating to services provided by the employer, to the best of their ability.  They do not replace or substitute for the role of a professional interpreter or translator.


When you look at the clause in its totality, it seems that it's only directed at dealing with this specific narrow use of these additional skills, not just at any use of a language skill.  I say that because it's obviously difficult to understand and draw the line as to when it will attract a payment, and there is likely to be disputation about that, but also because there seems to be a bit of a disconnect between the evidence advanced, as well, in support of the proposition.


If we think about the evidence that has been advanced, we have got two employees who are bilingual and clearly use their language as a core or normal part of their role - it's integral to their roles - and they are using it for quite complex purposes.  It's not the sort of use that this clause is directed towards.


JUSTICE ROSS:  Where does that take us?  If they're using it as an integral part of their work and it's not remunerated within the classification structure, that sounds like an argument for an allowance that reflects where it's used as an integral part of their work.


MR FERGUSON:  Well, the first thing is I don't think it's accepted that it's necessarily remunerated for within the award.  I don't think the unions have made out a case for that.  We are dealing with - - -


JUSTICE ROSS:  They don't have to make out a case for it.  It's not listed in any of the classification definitions or indicative tasks - - -


MR FERGUSON:  I don't know that the classification is specific about the particular language that's used.  It talks about - - -


JUSTICE ROSS:  That's my point.  It doesn't say anything about - - -


MR FERGUSON:  It doesn't necessitate a particular proficiency, which is an issue that has been raised with us, in English or in another language.  It talks about written and verbal skills, and there may be some situations where it's used - - -


JUSTICE ROSS:  No, my point is it doesn't say a second language is an indicative task or anything like that.


MR FERGUSON:  No, and I'm not sure that it necessarily provides for an exhaustive list of all - I would have to have consideration of the award, your Honour, but I'm not sure it is exhaustive in its identification of all the tasks that people perform.


JUSTICE ROSS:  Well, to the extent that you want to argue that it's already comprehended within the wage rate that those with a second language would exercise that skill, you're going to need to make that point.  You're going to need to make that case out.  That's referred to obliquely in ABI's and I've got a question for ABI about what's the evidentiary basis for that assertion, and I've got the same question for you.


If you say that for those witnesses, you're making the point the use of community language skills is an integral part of their work, my question to you is, well, is that contemplated within the existing classification structure?


MR FERGUSON:  I'd need to think about that.  I think the difficulty is, we've been dealing with a specific case in these proceedings, not looking at the issue generally.


JUSTICE ROSS:  Well, we're doing a review.  We can look at the issue generally, if we want to.


MR FERGUSON:  I understand that, but when we're of course dealing with the evidence and so forth, we've made decisions about cross-examination, what we'll put in reply, what would be relevant to these proceedings, based on the claim that's in front of us.


I don't mean that to sort of side-step the issue.  There might be a bigger issue.  But there is of course, nothing in the award that has been put in contest.  No one has said that the rates are inappropriate from a work value sense and require reassessment.  This was a narrow claim for a new allowance dealing with, as we understand it - - -


JUSTICE ROSS:  For an allowance which implicitly is for work that is not contemplated within the minimum rates of pay, paid for the classification levels.  Otherwise, how do you get an allowance?  If it's already contemplated, well, there's no addition.


MR FERGUSON:  No, no, I see that.  I think the point I'm saying is, the claim was for a particular type of work and the evidence as it is, doesn't really give us a clear picture of the extent to which there is a need for this sort of work, this low-level language transcribing skills.  It talks about the complexity and so forth - well, it talks about clerks, for example, performing that sort of function.


JUSTICE ROSS:  You're the one who has adduced the evidence that it's an integral part of their work; not the union.


MR FERGUSON:  But I think that's the way it's been characterised by them.


JUSTICE ROSS:  Well, that's the way you've characterised it.


MR FERGUSON:  And in part to demonstrate the difficulty with drawing the distinction between what is a normal duty and what is an adjunct duty.


JUSTICE ROSS:  Sure, that's just language.  That's just an issue about the way the claim is framed.  It doesn't detract from a proposition that people - certainly the witness evidence is that they use their community language skills.  That provides a benefit in the way they perform their work.


MR FERGUSON:  In our written submissions we didn't contest that the broader statements say that.


JUSTICE ROSS:  No, I know.


MR FERGUSON:  I think the difficulty is obviously, we've - well, we've rightly addressed the specific case that's here.  Now, I appreciate that it's a broad-ranging review and your Honour's not bound, or the Commission is not bound to grant a remedy in the terms sought.  But it's hard- - -


JUSTICE ROSS:  No, no, but - sure.  But ABI has raised the point that it may be comprehended within their minimum rates.  Well, that's the question I want you to answer.


MR FERGUSON:  Look, I don't have an answer for that and we didn't go so far as to say that.  I think we make the point that it's not been established what has arisen.


JUSTICE ROSS:  I don't care.  It's been raised and I'm asking you the question.  You can take it into account in the filing.  You don't need to gallop to it today.




JUSTICE ROSS:  But the evidence does highlight that it's an integral part of their work.  You've drawn the distinction between adjunct and integral.  ABI's raised the question that it may be already comprehended.  And if ABI is right about that, that the use of community language skills was taken into account and already comprehended within the minimum rates, well, that appears to be a complete answer to the claim.


MR FERGUSON:  I will take it on notice, so that I can't answer that question on my feet.




MR FERGUSON:  I don't want to run through all the arguments without thinking it through, either.  We will look at that.  But I think when you say - well, sorry I'm not putting it to you.  When you look at the evidence and it's an essential part, what the evidence is, is that there are two employees who work in services that are obviously particularly involved in multicultural communities and that in that specific narrow context, there are - - -


JUSTICE ROSS:  When else would you use community language skills, unless you were involved with a multicultural client base.


MR FERGUSON:  But these are particularly multicultural client bases.  The evidence of Ms Saleh, I think her name is - I've forgotten it now, talked about the Riverwood, as an example, where it's particularly a multicultural client base.  Now - - -


JUSTICE ROSS:  Why does that make a difference?  If you've got one client or if you've got - it might come down to how frequently are you likely to encounter it, but we're a multicultural society.


MR FERGUSON:  And of course, that is true in lots of industries.  People covered by lots of awards in the course of their work, now perform some involvement with multicultural communities and they may use secondary languages if they have them, to facilitate that.  I'm not sure that this industry is necessarily an island to itself in that regard.


We've got witnesses - evidence from two witnesses that use it heavily because their particular service is involved in that, but it doesn't necessarily - or it doesn't establish that that is representative of what occurs across the entire spectrum of the sector.


JUSTICE ROSS:  Sure, but it would never be representative.


MR FERGUSON:  Not lay evidence, but other evidence - of that nature, but other evidence could be led - I mean, I haven't thought through - - -


JUSTICE ROSS:  Well, is there any government report on the extent of multiculturalism in the client base?


MR FERGUSON:  The only evidence that we take into - and I'll struggle to find it now, but it's in relation to the proportion of participants in the NDIS.


JUSTICE ROSS:  Paragraph 293 of your submissions.


MR FERGUSON:  Then you're better than I am.


JUSTICE ROSS:  Yes, but that doesn't tell me - that says eight per cent of active participants identify themselves as being from a different background.  But what proportion does the NDIS client base form of the overall coverage of this award?


MR FERGUSON:  Again, I don't know and none of this is based - - -


JUSTICE ROSS:  Well, see, that's the problem, it doesn't.  If you look at the aged care report, workforce 2016, which is in evidence in these proceedings as well as the aged care proceedings.  I think it's referred to by the HSS in their submission.  It provides information about the cultural diversity - well, certainly of the employees.  I can't recall whether it provides it more generally of the client base.  But you would think there would be some - I mean we're drowning in government reports.  There must be one that's sort of relevant to this.


MR FERGUSON:  There may be, and I can't see the reports.  It may be that there are specific sectors of this diverse industry, if I can call it that, that have different points.


JUSTICE ROSS:  Sure, yes.  But my point is really NDIS is a part of it.


MR FERGUSON:  I agree.


JUSTICE ROSS:  But we don't even know how big a part, so I'm not sure what we make of - - -


MR FERGUSON:  I think the issue is that in the absence of a solid evidentiary case, well, at least material assisting you to make some clear determinations in relation to these sorts of decisions, the appropriate course of action would be to decline to make the variation to the award.  Adopting the approach that those proposing the variation should establish that it's necessary and call evidence in support of their factual propositions in support of their claim.


It's a review - it's the Commission's review of (indistinct).


JUSTICE ROSS:  That's right.


MR FERGUSON:  But we understand also, that there's a specific claim advanced.


JUSTICE ROSS:  Sure, but if we're not happy with the state of the evidence we'll seek to call more from either your clients or ABIs or somebody else's.


MR FERGUSON:  No, of course, but it may well be that another course of action that is open as well, is to look at the material advanced.  Look at the totality of difficulties with the claim and to say that - to reach a conclusion that there is no justification on the material advanced that a variation should be made.  It doesn't necessarily - on the face of it we say that there's not enough that's been advanced to warrant a further enquiry into this issue.


That doesn't foreclose the issue being dealt with at a later time.  There would obviously also be potentially practical impediments from the Commission, moving its own motion to keep souring this sort of information.  But I understand you're not precluded to.


JUSTICE ROSS:  I don't think there's any practical impediment for us sourcing it.  In fact, I think we'll be increasingly doing that because we're not getting the evidence on the points.


MR FERGUSON:  Bigger issue perhaps, your Honour.  We do, outside of that evidentiary point, make another observation about why it's not warranted in terms of the fact that there's no criteria for when someone should receive it and so forth.  There's no ability for employer control et cetera.  I won't take you through.


JUSTICE ROSS:  No, no, I understand the practical issues that have been raised by both yourself and ABI about the clause.  I mean, I note its history from the New South Wales one, but by way of illustration and I don't think it's necessarily one that you've picked up, and you've addressed the impact on employers, understandably.  But 20.10.6 "Such employees shall record their use of community language skills".  Well, why?  And how's that going to work?  Are you going to have a timesheet - - -


MR FERGUSON:  Well, I'm not even sure.  So, the employee - I don't know how you'd necessarily have to include that sort of provision, unless you connected it to the payment and then brought in through 142.  But they record it but there's no stated obligation to give it to the employee.  It raises all sorts of issues.




MR FERGUSON:  I mean, it's the same thing when you move into the accreditation.  I must say, we did not read 20.10.7 as dealing with the reimbursement issue.  We didn't read it as requiring an employer to cut the costs and so forth.  We were frankly, somewhat confused by it.


JUSTICE ROSS:  It's the only way I could make sense of it, because "shall provide the employee with accreditation from" - well, plainly they can't provide the accreditation in a literal sense, that's a matter for agency, so what other work could it do but the employer somehow facilitates the process and presumably that's by paying for it.  I agree, it's certainly ambiguous about what it's directed at.


MR FERGUSON:  And what the agency would be, and it leaves unanswered questions about costs and everything else.


JUSTICE ROSS:  No, I agree, which is why I've asked, well, how does it work?


MR FERGUSON:  The claim is, as it seems, that it's not to be that - the eligibility to the allowance isn't dependent on getting the accreditation.  That's not the deliberate intent.


JUSTICE ROSS:  No, no, no.  That's ABI's point and that's the sequencing.


MR FERGUSON:  Yes, but if the intent is that it's actually - well, it's stated to deliver an accreditation.  I think the other point I must raise is I'm not sure awards have the power to include terms under 139 that are just designed to give people accreditation.  Perhaps moving away then from the clause, unless there are questions about our various observations - sorry, one other point I'll make.  This went more to an issue of detail perhaps, but the base level allowance is based on occasion demands.  The occasional demands is defined to mean that there is no regular pattern of demand that necessitates the use.  That's put against 10.3 - - -




MR FERGUSON:  - - - where it is more regular.  I think the issue that's missing is when you specifically define "occasional" you remove from any contemplation the frequency - or any contemplation of frequency.  All that's required is a pattern; it ends up being quite workable.  It seems to us that as soon as there is a pattern of any sort you get the base level, but it might be that - - -


JUSTICE ROSS:  So it might be once every three months, but that would be sufficient to establish a regular pattern.


MR FERGUSON:  Yes, or the evidence today that it might be that somebody works it every day, that's the regular pattern, and you get the base level but you don't get the higher one because there is a pattern.  I think it's not the ordinary meaning of "occasional", but they've tried to define it to - and they haven't included frequency in any assessment, if that makes sense.  I don't think that was well made out in our written submissions.  We referred to it.


The other thing I will point out is that at 20.10.4 there is now a change to - the employee identifies the employee's area of inquiry.  I don't know what that means and I don't think it's clear on the words.


JUSTICE ROSS:  I understand that there is sort of a natural tendency for advocates to pick over the bones of a claim and attack the parts of it.  I don't think you need to go through it.  For my part, I share the concerns about some of the ambiguities in the claim, but we're still left with the core issue of, well, is this something that's used; is it something that should be remunerated in some way or another; is it already comprehended with the wage rates or is it not?  Those are the broader questions, so - - -


MR FERGUSON:  I think this is where - and you may not be with me - we were saying that the deficiencies in this particular context as opposed to some of the other matters that arise in the review are just such that we don't even know what the claim is.


JUSTICE ROSS:  You're looking at it from the point of view of this is a claim and this is somehow an interparty proceeding, and it's not.  I know that's the approach Ai Group takes, but - - -


MR FERGUSON:  Not interparty - and I appreciate the distinction you're making, and I'm not - - -


JUSTICE ROSS:  Yes, but it looks a lot like it.  I know it's a claim, et cetera, sure, but there's an issue raised and if we think there may be some substance in it, then we're not certainly bound by the form in which it's sought or anything of that nature.


MR FERGUSON:  I won't take it further.  I think ours wasn't going just to the form; in terms of the substance.




MR FERGUSON:  There seems so much confusion even around that, but I won't take it further.  The Commission can enact its own motion in relation to the issues.  In terms of the funding, I do want to say something else about the evidence that was advanced in relation to funding and I think it's the general position of the parties.  I hesitate to put this, but it seems to almost be common ground between ourselves - at least the HSU - that many employers - the ability to pass on any additional increase that's not funded, is non‑existent.


That certainly seemed to be the evidence of Mr Bacchiella today, that he couldn't pay anything beyond the current award rates unless there was some alteration to the funding arrangements.  I think in the context of these proceedings generally the issue of funding will be a significant one for this Full Bench.


JUSTICE ROSS:  Sure, but - - -


MR FERGUSON:  It was in the ERO case.


JUSTICE ROSS:  - - - if we decide there is merit in any of the claims, as we've indicated we would say that and then there would be a further opportunity around the implementation of it; but it can't be the case that because it's a funded sector, the Commission should never grant any claim that has a cost implication.


MR FERGUSON:  And we don't go that far, but equally it can't be the case that the funding considerations aren't taken into consideration at all.  Now, obviously the reality is - and, look, we will say more about this in the course of the proceedings generally and we've said a lot in our submissions about it.  The risk is that if the reality is accepted, I think this is a sector that's dependent on funding or it's certainly what the Full Bench in the ERO case in 2011 - and that if there are significant unfunded increases, that that can have implications for employers but also for employment.


JUSTICE ROSS:  Sure, but you can't give us any information about whether increases will be funded or not.  My point is if we decide on an issue in principle there will be a second process and we will invite the funders to participate in that process, and ask them the question, "Are you going to fund it or are you not?"  It won't be much more complicated than that.


They aren't here now and you can point to the difficulty, but you're speculating as much as you were criticising the witness for speculating the other way that they would be obliged to fund.  You're saying, well - you know, the thrust of your case is, well, if there's no funding component to it, it will have service implications.  I understand that, but it's the missing bit; you don't know (1) whether we're going to find in favour of any of the claims - but, if we did, you don't speak for the funders.




JUSTICE ROSS:  Nobody here does.  You know, we would obviously want to know what they're going to say.


MR FERGUSON:  And I appreciate that.  I think I had been at pains to point out that they are relevant considerations which I don't think I'm hearing any argument - - -


JUSTICE ROSS:  Well, the impact on employers is a relevant consideration, no question about that.


MR FERGUSON:  The impact that that could have on employees and employment, and so forth.  Obviously we point to some material in relation to our treatment of NDIS that raises issues around the extent to which it now compensates adequately.  You're right, we can't speculate any more than they about what might arise, other than the fact that there is no evidence that it will be funded.  I say that in answer to the unions' claims and it's a general theme that I expect will be advanced which is, well, if you vary the award it will just happen.


Now, it may be that a process that says, well - and we have some provisional attraction, there's some industrial merit to it, but what happen - and we invite submissions - does enable some consideration of that, but that's distinct from one that is just a process about phasing in of the introduction.  I think that that's- - -


JUSTICE ROSS:  Maybe, maybe not.


MR FERGUSON:  Yes, well, that - - -




MR FERGUSON:  There are different - in might depend in part on what response is evoked from that, but obviously we just want to raise those sorts of issues.  On that similar vein, I think our submissions in chapter 4 go to pains to point out all the claims that are advanced.  We have done that in this round of submissions simply to assist the bench and provide sort of the totality of claims, but obviously in the context of the review we're looking at specific claims that, you know, have individual financial complications.  Potentially this review will have a cumulative effect.


If you're looking to seriously grant significant financial claims in individual terms, I think there is a need to have regard to the cumulative impact of the review on employers.  There was a submission about - I think an assertion that Ai Group is saying that people shouldn't receive this additional amount just because they have grown up speaking the language.  I think the point we were actually making there was there is less justification for this in circumstances where somebody hasn't gone to the expense of undertaking training or accreditation and so forth in order to acquire this sort of - - -


JUSTICE ROSS:  How do you distinguish?  If you take that argument to its logical conclusion, then the allowance is paid for someone who didn't grow up with a second language but went to university and learnt it; they would get it.  It's really the level of skill and whether you're exercising it, and it provides a benefit to the employer.  Why does it matter how you come about it?


MR FERGUSON:  I think we were simply drawing analogies in our submissions between first aid‑type situations and maybe they're not analogous in the sense that people have gone through a specific training and accreditation system and then that has resulted in a justification arguably - I won't now deal with that - for an allowance.  All we would say, I think, is that there is perhaps less force in a situation where somebody just naturally has this skill and some people naturally have English.  Some people naturally have other languages, both of which are used in different situations.


COMMISSIONER LEE:  But that's about accreditation.  If someone does the first aid course, they'll bring some skills to that course.  They will have to learn others and at the end of it they will pass the test to show that they know those skills.


MR FERGUSON:  I think it's about accreditation and trying - that perhaps the analogy is not as strong as we've made out in some sense, because obviously learning a language is not necessarily akin to doing a first aid course.  I won't press that further.


COMMISSIONER LEE:  Well, I'll leave it there.  Only to the extent that some will come to a qualification like that with some skills and some will come with none and some will have some language skills and will learn the rest at university and some will be entirely proficient from speaking it at home.


MR FERGUSON:  That's right.


COMMISSIONER LEE:  I'm not sure how you differentiate it.


MR FERGUSON:  I don't intend to press it further.  I think the view would just be that where people are just utilising a naturally acquired skill, that's going to be less force to the proposition that fairness would dictate some additional remuneration for it.  I don't think we put it higher than that.


There was some submissions today around the need to assist - to attract employees to the sector from the public sector and so forth.  In our submissions, we've gone to pains to point out that in our view, it's not the role of the awards to lure employees from one sector to another, be it between industries or between private and public sector employment.  I don't need to traverse that in detail, unless there are any questions about it.


Those are the submissions unless there were any other questions.


JUSTICE ROSS:  No, I don't.  Mr Scott.


MR SCOTT:  Thank you.


JUSTICE ROSS:  Well, you've already heard one of the questions, so.


MR SCOTT:  Can I deal with that, your Honour?


JUSTICE ROSS:  Just before you do, I did have another question for Mr Ferguson.


Can I take you to 293, sorry Mr Scott.


MR SCOTT:  No trouble.


JUSTICE ROSS:  To 300.  I'm not sure I follow this argument around the 157 point.


MR FERGUSON:  I think it applies with less force now.  Where it was being advanced as an all purpose allowance, it seemed to us, and there was no real articulation for why it was an all purpose allowance, that there seemed to be very little distinction between potentially increasing minimum award rates and just inserting a separate allowance that was payable for all purposes.


JUSTICE ROSS:  So we're clear, I've taken it that it's a term under 139(1)(g)(ii).  So it's an allowance for responsibilities or skills that are not taken into account in rates of pay.  I thought that was what was - - -


MR FERGUSON:  At the time when we were advancing this, I think it was still characterised as expense related in some parts, but there was no articulation.


JUSTICE ROSS:  Well, it doesn't really matter; it can go on roman one.


MR FERGUSON:  Yes, and I think there is - - -


JUSTICE ROSS:  My point is, it has to be somewhere in 139 and that seemed to be where it was.  But of course, the definition of minimum wages doesn't include such allowances.


MR FERGUSON:  We make the point that we're not saying that the Commission didn't lack the power.


JUSTICE ROSS:  No, no.  I just don't follow how 157 is relevant to this at all.  You seem to be suggesting that it was an attempt to subvert 157 and I didn't follow the argument.


MR FERGUSON:  We thought that by seeking it as an all purpose, it was payable almost in a manner akin to a minimum wage.  It is different and I appreciate that.


JUSTICE ROSS:  Is it the short point that it's not pressed?




JUSTICE ROSS:  That's fine, that's fine, yes.  Thank you.  Sorry, Mr Scott.


This is really the point that I was raising at 8.7 I think it is, of your - am I right about that?


MR SCOTT:  That's right, 8.6 is an oblique reference.




MR SCOTT:  I accept what your Honour said there.  So, I think the current - - -


JUSTICE ROSS:  Well, you say in 8.7 I'm sorry, "The capabilities which are the subject of the application may indeed have been taken into account in the determination of wages in the industry and that's the - because of course, if that's right, well, that's the end of the issue, really.  Because 139 - the section I took you to in 139 is predicated on its for skills or something that's not contemplated in the minimum wage rate.


MR SCOTT:  That's right and I think the current position seems to be that you have one party saying - making an assertion that this particular skill has not been taken into account in the creation of the classification structure et cetera.




MR SCOTT:  And you have other parties, or my clients again, on the other hand, putting an assertion to you that well, we don't know; it may have been.


JUSTICE ROSS:  Yes, you're not putting it as strongly as the counter.  But really, I just want to find out what was there.  I don't think the answer is well, there were people back when these rates were set that exercised these skills.  What I'm - because you know, who knows whether that establishes the causal link to whether they were taking into account.  What I'm really seeking is, is there some sort of decision or proceeding where there is evidence that this is something that is a tangible answer to this issue.


MR SCOTT:  I understand what your Honour is searching for.


JUSTICE ROSS:  I don't know whether it's part of the ERO proceedings or not.


MR SCOTT:  It may be and I think the position will need to be today, that we'll have to take it on notice.


JUSTICE ROSS:  Of course, no, no, yes, yes.


MR SCOTT:  My answer today is well, we don't know.  I don't think it's something that's necessarily easy to find out which is why we haven't - - -


JUSTICE ROSS:  Well, if it's any consolation I don't know either and I don't think it will be easy to find out either.


MR SCOTT:  That's right, so I may find someone other than myself to go looking.  But we'll take it on notice and to the extent that we can find something we'll obviously raise it.




MR SCOTT:  I think absent that, the position will be, well, we have assertions going both ways.


JUSTICE ROSS:  Well, we've got the award and the classification structure.


MR SCOTT:  That's right.


JUSTICE ROSS:  The starting position is if it's not mentioned there, well, that's an indication that it wasn't taken into account.




JUSTICE ROSS:  That indication can be displaced by - - -


MR SCOTT:  By something more express.


JUSTICE ROSS:  By something that indicates to the contrary.  Then that's fine.


MR SCOTT:  I accept that and I think to the extent that we are not able to come up with something that indicates to the contrary, I think the position is, as your Honour suggested, which is that the classification structure doesn't mention anything.  So, I think in those circumstances, it would be safe for the Commission to proceed on the basis that the particular skill that's being discussed today, does not form part of the classification structure and is not contemplated by the minimum rates.


JUSTICE ROSS:  Yes.  That's not the complete answer to the issue and to the merit, but at least that knows where we are as a starting position.


MR SCOTT:  Yes, and the potential threshold issue - the Commission can be safety satisfied as to that threshold issue.  So, we accept your Honour's comment about the oblique reference to that and we'll take it on notice and see what we can find.


JUSTICE ROSS:  No, that's fine.  Look, if you can have the discussion with Ai Group and the ASU about just how the timing might work, it probably makes sense if you allow enough time so you're dealing with all of these issues.  But I'm interested - or the document that Ai Group tendered, it may be within there, some definition of community language skill and how does that operate; how does that scheme operate.  What's the overlap between that scheme and the coverage of this award, at least in New South Wales?  That's the thing that I don't quite - can't draw the dots on Mr Ferguson, at the moment.


I don't know whether there are any other - look, it wouldn't be - I wouldn't say it would be rare, but it would be odd if there's a scheme in the largest state and it's not operating in some form or another in another state.  It may be there are different things.  But how that relates to the coverage of this award, I'm not sure about.


I don't know how it links with the funding question; who funds that allowance.  The other issues are around - well, Mr Robson makes the assertion that there are courses in this and accreditation arrangements.  Well, again, those ought to be things that aren't the subject of factual contests.  So, we need to try and get the factual basis around that right.  It's a separate process about what everyone says about that.  You need to build that into your timetable.


MR FERGUSON:  Just one issue, I think the initial discussion was around contemplation of industrial instruments that deal with these issues.




MR FERGUSON:  Where I think it might be, Mr Robson, is probably closer to this than I, that some of these schemes operated or had origins outside of industrial instruments.


JUSTICE ROSS:  I'm sure - that might be right, yes.


MR FERGUSON:  Because there was a public sector arrangement, so it's dealing with - I'm going to say over-award, but that might not be the right terminology.  It's just something outside of the industrial instrument.


JUSTICE ROSS:  I've got no idea how it intersects with the people who - the employers who are covered by this award, how does it work and what's the scope of it?  All right, thanks.  Mr Scott.


MR SCOTT:  Your Honour, if I can turn to a question that was posed earlier about whether there's any data or statistics about how many clients or customers or participants may be in the scheme and the number of employers and the employees who might be required to have these particular skills.  The best evidence before the Commission seems to be the Future Ability Project Report 2016 which was filed by the ASU.




MR SCOTT:  If it's convenient, and I don't propose to take your Honour's to it unless you'd like to.


JUSTICE ROSS:  No, just the reference would be fine, thanks Mr Scott.


MR SCOTT:  There's a summary of key findings at page 9 of that report.  Now I haven't looked in detail as to the sample size.  I understand it's a project whereby a number of organisations were interviewed.  I think it was a relatively small number.  I think it's about 60, 65.  I'm not sure whether that's relevant to this particular data, but it says here it's estimated that 10 per cent of people with disability in Australia are expected to be eligible for funded support under the NDIS.  25 per cent of these people will have been born overseas and 14.8 per cent born in non-English speaking countries.


It then goes onto talk about for every - - -


JUSTICE ROSS:  Quite a lot of calculation you need to apply to get to the - - -


MR SCOTT:  Yes, sorry, I realised the first statistics actually had no relevance.


JUSTICE ROSS:  No, no, that's fine.


MR SCOTT:  For every hundred Australia-born service recipients, there were only 15 overseas born recipients.  In the NDIS trial sites, only 4.3 per cent of those approved for an NDIS package in 2015 identified as being from a culturally and linguistically diverse background.




MR SCOTT:  So that's perhaps the best statistic.




MR SCOTT:  We're looking - so obviously this is in the disability service sector under the NDIS, but the data is 4.3 per cent of participants under the NDIS, identify as being from that particular background.


JUSTICE ROSS:  I suppose - look, in some ways, and we still don't know the NDIS proportion of the SCHADS Award coverage completely, but in some ways, it works both ways.  In the sense that if there are - let's say from that and the other data sources, one deduces that some percentage - five, 10 per cent of the client base of employers who are covered by this award, don't have English as their first language, et cetera, well, that probably goes to the cost impact of it.


The smaller the percentage, the smaller the cost because the employer won't require someone to exercise such a skill, or they won't be required to do it, if it's very few in your clients.  It might be higher - the point you were making before Mr Ferguson - it might be higher in some service providers because of the nature of their service.  But for others, there may be no cost at all.  It would depend on the type of service and the target group and the client base.


MR SCOTT:  Yes, and we don't cavil with any of that.  I think that's absolutely right.  I think this should be uncontroversial, but I imagine that it's about the demographic.


JUSTICE ROSS:  It might the only thing Mr Scott, so knock yourself out.  Yes.


MR SCOTT:  It's obviously going to be - the demographic of the particular area in which the employer is based is going to be relevant.


JUSTICE ROSS:  Yes, yes, true.


MR SCOTT:  I think if I can adopt my very basic understanding of market economics.  If you take a particular demographic, for example, south west Sydney where we heard from the employee from Riverwood.  Presumably the position is that there is a correlation between the number or proportion of customers, clients, participants in that particular area from a culturally and linguistically diverse background.


There'll be a correlation from that cohort or between that cohort and the cohort of the potential employee pool.  You'll have a correlation between the customers with those backgrounds and the workforce because of course, the demographic in that particular area, presumably is what it is.


I don't necessarily know whether that helps or hinders, but I think it's right that in some parts of Australia the employment cost for employers will be very little, if anything, because that will represent the demographic.  And in others the cost will be significantly greater.




MR SCOTT:  If I can just make some observations about the evidence.  Your Honour has already touched on this.  The two employees who gave evidence this morning, certainly my submission is, which is evident from the cross-examination is that they would not be eligible to receive the entitlement under the award.  Now the proposed variation is framed as only applying to those employees who perform - use their language skills as an adjunct.  Those two employees of course did not meet that criteria.


Your Honours raised the point a moment ago about well, if there are employees out there who were performing these skills as a core part of their role, why should they not be entitled to such an allowance?


JUSTICE ROSS:  In some ways it's a stronger merit case than someone who uses it as an adjunct.  An adjunct, as you've both gone in search of the dictionaries, rather suggests it's not something of particular value.  Whereas, if it's as the witness has demonstrated, they're using it really as a core part of their toolkit.


MR SCOTT:  I think that's right and the submission that we think is evidence is that there's perhaps no logical reason to distinguish between someone who uses it as a core part of their role and someone who uses it as an adjunct to their role.  However, in respect of the employees who use it as a core part of their role, and Dr Ruchita was one where she had - one of her roles was bilingual facilitator.  Now that was essentially an essential part of that role.


JUSTICE ROSS:  But there aren't going to be too many people, you would think, who have that specific a - - -


MR SCOTT:  Position description.


JUSTICE ROSS:  Well, yes, look if we take the NDIS.  Now I know, extrapolating that is a bit problematic but if you take it within that core, well, there's not going to be the demand for people in that sort of role, as bilingual facilitators, if you like.  Given the proportion of the client base, that don't have English as a first language.


MR SCOTT:  I think that's right.  To a degree, it cuts both ways, but what we have here, in respect of Dr Ruchita, presumably she would not have been able to do some of the roles that she had, because they were - those roles by their nature required non-English speaking skills.


JUSTICE ROSS:  If you wanted to be a community leader, and it's the Indian community, if you don't speak Indian languages, it would be a challenge.


MR SCOTT:  That's absolutely right.  So, in some respects, the fact that she has those skills make her eligible in order to perform the role.  So in some respects, she's more employable in respect of those particular jobs.


COMMISSIONER LEE:  If I can just kind of deal with the evidence.  So, firstly there's two employees who on their current drafting, don't get the allowance.


MR SCOTT:  The employer who we heard from today, runs a very specific and I'll describe it as a niche business, targeting and servicing culturally and linguistically diverse communities.  The first thing and I think it goes without saying, but I'll say it nonetheless.  That business is not a good representative business of the broader SCHADS industry.


JUSTICE ROSS:  Do we have - I'm not quarrelling with that proposition, but do we have something that tells us what the broader SCHADS industry looks like?  Is there a description in the ERO case or something like that?


MR SCOTT:  I mean the best that I can do today, your Honour, is that this particular report refers to ethno-specific and multicultural organisations and draws a distinction between those and mainstream and disability service providers, whatever that may mean.


JUSTICE ROSS:  I'm really looking at what is the diversity of the entities that are covered by the award.


MR SCOTT:  I think the answer to that is there's a huge diversity.  The ASU's submission helpfully sets out different subsectors of the particular industry.


JUSTICE ROSS:  Yes.  I'm just trying to get a handle on well, how many might be in each subsector.  What does it - because that - I don't doubt, just based on the ASU's submission and how it lists the subsectors, that you're right about the employer who gave evidence?  It is within one of those sub‑sectors and couldn't be extrapolated to all of them, and I don't think the ASU is trying to extrapolate it to all of them.


Look, there may have been - it has been a little while since I read it, but the ERO case may have set out some of the structure of the industry.  Sure, it might have changed since then, but there might be something that attracts the change.  Perhaps if you can give that some thought in terms of the background material and hopefully the parties will be able to agree about how one might describe it.


MR SCOTT:  I will certainly do that, your Honour.  You have just made the reference to the background material.  I've neglected to deal with that.  Can I just make one observation about that.




MR SCOTT:  There were two documents that were effectively an industry profile - - -




MR SCOTT:  - - - based on the ABS census material.  Some of that data - and I think it's in the first document - was specific to two industry sub‑sectors in the (indistinct) codes.  The second document had a fair bit of data or material which was at the much higher division level of health care.


JUSTICE ROSS:  Yes, because the ABS only provides information about those things at the division 1 level.




JUSTICE ROSS:  It was the same issue in aged care.  You end up with knowing what the broader level is and you could work out how many people are employed in the particular sub‑sector you're interested in.  It may be the best evidence we have, but it's certainly not direct evidence of what are the issues or those features in the industry or the sectors covered by this award.  That's true, we don't.  It is at a broader industry level.


MR SCOTT:  If I could make two observations.  The first one, just to close that loop, what we say about that division level data is that it's of very limited value in this context.




MR SCOTT:  The second observation is there will be data and publications out there specific to the disability sector, like this one, and there will be data and publications out there specific to home care or aged care and whether they break that down between residential and non‑residential.




MR SCOTT:  So there will be some reasonably decent data, but again it's specific to those sub‑sectors.


JUSTICE ROSS:  Well, not only that, but the Workforce 2016 data about the aged care does split it by residential and home care; but what is covered by this award and what is covered by the Aged Care Award?  The Aged Care Award seems to cover both of those.  Certainly residential aged care and the personal care does cover a bit of home care or care in their residence because that's the way the funding seems to have changed.


MR SCOTT:  I'm not sure about the funding, but in respect of the first proposition that there is some crossover between residential and home care in the context of the Aged Care Award - - -




MR SCOTT:  - - - my instructions are that that is not the case.


JUSTICE ROSS:  You say it's just limited to residential?


MR SCOTT:  It's limited to residential and last week during the Aged Care hearing we went to clause 4.3, and the definition in that coverage provision about what the aged care industry was.  I think at the end of that definition - I don't have it in front of me, but there's some reference to "private residence" and I think that's where the confusion arises.


JUSTICE ROSS:  Without boring the rest of you about the Aged Care case, but the whole mobile telephone allowance was directed at people who don't work within a residence and provide a service delivery in a client's home.


MR SCOTT:  Well, that's one of the reasons why we opposed it.  I will qualify that in two ways.




MR SCOTT:  I think that's possibly a misrepresentation of the claim, although - - -


JUSTICE ROSS:  No, no, the claim is broader.




JUSTICE ROSS:  But it seemed to shrink a bit during the course of oral argument.


MR SCOTT:  The submissions were that it was focused on home care.




MR SCOTT:  We immediately resist that because we say home care is not covered by that award.




MR SCOTT:  The claim as framed and the submissions talked not about people performing work in private residence and home care, it talked about employees who worked away from essentially the main office location.




MR SCOTT:  I think there may have been some confusion about, well, they're talking about home care, where I think they were talking about in a residential aged care facility, maybe a large - you know, may be spread over some area and obviously they do go and provide personal care to people in their residential residences.  That's not nice phraseology - - -


JUSTICE ROSS:  In their units within a residential aged care facility.


MR SCOTT:  That's right.




MR SCOTT:  So we say that that's not home care within the meaning of and within the understanding - - -


JUSTICE ROSS:  But maybe the easiest way through is, as you say, you'll look at the data sources, talk to the others.  It may be that you don't agree about it, but we would still like to know what each of you says about - for example, in the Workforce 2016 report it's neatly segmented into the residential and the home care, and it does provide data for both.  So to the extent you're right and that's agreed that the home care section is under the SCHADS Award, then that does provide some interesting data about the employee profile and the operators into that sector.  It also provides it over time.




JUSTICE ROSS:  Now, that might be one piece of the puzzle.  I'm interested in, well, how many pieces of the puzzle are there and what data do we have on each piece.  We'll see how we go with that.


MR SCOTT:  I think the starting point is the ASU's submission where - there is a section there which effectively lists all the various sub‑sectors.


JUSTICE ROSS:  There is, yes.


MR SCOTT:  It doesn't go beyond that, but obviously the question as to what data exists for each of those, we'll have to go and have a look.


JUSTICE ROSS:  Yes, and we'll have a look, too, and let you know if we find anything, as well.


MR SCOTT:  Yes.  If I can just close off the aged care issue of coverage, to the extent that there is a reference to private residences, my instructions are that the Aged Care Industry Award effectively and historically has been an institutional award.  Now, we don't use that phraseology any more, we talk about residential aged care, but the reference there to "private residence" is in the context of you live in your private residence in an aged care facility as opposed to you live in your private residence and you have a home care service provision.


JUSTICE ROSS:  Okay.  Look, I think what we will do is when we get the transcript we will extract what you have just said and put it to United Voice - - -


MR ROBSON:  That's concerning.


JUSTICE ROSS:  - - - for the opportunity for them to say something because they're not represented.


MR ROBSON:  And no doubt I will then clarify what I've just said.


JUSTICE ROSS:  We'll correct the transcript.


MR SCOTT:  That's right.


JUSTICE ROSS:  But, look, the essence of your point as I understand, you're saying there is a delineation between the Aged Care and the SCHADS Award.  Aged Care is focused on residential care, SCHADS is looking at home care and support.




JUSTICE ROSS:  It's that issue.  I just want to see whether there is any contest and ultimately and presumably will be resolved by examining what the coverage clauses are in the two awards.


MR SCOTT:  That's right.  If I can move on, it talks about language skills.  The assertion is that the community language skill is of value to employers.  I think that's relatively uncontroversial.  Now, of course there may be some employers who don't value that, but I think the answer to that is if they don't value it, they don't require the employee to use it - - -




MR SCOTT:  - - - in which case the allowance is not triggered.


JUSTICE ROSS:  It follows from your earlier point there will be some - depending on the geographic location, the demographics of that area and the type of service, there may be no occasion to - - -




JUSTICE ROSS:  - - - utilise a community language skill or a signing skill.


MR SCOTT:  That's right.  I think there was an attempt to draw some analogy between a first aid allowance and a community language skill allowance, and perhaps others.  The best analogy I think is borne out at the evidence.  There is a number of references throughout the witness statements of the two employees to both language skills and cultural skills.




MR SCOTT:  The proposition I'm advancing is that a community language skill is effectively a life skill and it may be one of a number of life skills that employees may have.  Indeed these particular witnesses, I don't think it's controversial to say they also no doubt hold cultural skills and their evidence - and I'll briefly take you to it.  Dr Ruchita at paragraph 14 says:


It's important to understand the cultural dynamics of these communities.


She says at paragraph 15:


Understanding their culture is important.


Ms Saleh says at paragraph 24:


My community language skills come from being a member of the Lebanese community.  This means I have a better understanding of the issues impacting on families from my community than an outsider.


At 27 she indicates that:


At times I have observed the difficulties around lack of understanding of specific cultural diversity and sensitive issues.


At 27, Ms Saleh says:


It's also easier to build trust with somebody when you speak their language and understand their culture.


So the first proposition is no doubt being able to speak the same language as the person you're dealing with helps you build rapport.  But we say that's not what - some of these cultural skills are also obviously helpful and of assistance.  Now if you follow that logic, if the Commission's minded to insert a community language skill allowance, well, why would it not then also insert a cultural skills allowance, where people have cultural skills and we can develop a definition of what cultural skills are.  There doesn't seem to be any evidence about the difference in value between the two.  Indeed that may vary from situation to situation.


Can I also then follow that with some other analogies in different parts of this sector, because of course the draft determination is not just going to apply to, you know Metro Assist.  It's going to apply to a range of others.  The award covers services that provide drug and alcohol rehabilitation.  Now there's no evidence before this, I'm conscious of that but there's - employer place a value in this industry on employees with lives experiences, and what you'll find in the various sectors where there's a drug and alcohol rehabilitation services, employees who have some lived experience with drug and alcohol issues.  That is a life skill.  I don't know whether it's necessarily a skill but it's a - - -


JUSTICE ROSS:  Life experience, yes.


MR SCOTT:  It's a life experience and that is of value to employers, and equally if you take services around prisoner rehabilitation, again that's another example where employee's lived experiences are of value and we see many employees and many employers where people with those lived experiences are of value, and were work in a - we say they are better analogies of the particular issue we're dealing with today.  So we don't necessarily say - and I haven't advanced this in anything in writing but I rhetorically ask the question; what's the difference between someone with a community language skill and someone who may not speak a second language but has a vast knowledge of cultural issues, and are able to culturally assimilate and - - -


JUSTICE ROSS:  As it were speaks the language of the client, even if it's not - it's still in English but - - -


MR SCOTT:  Absolutely.  So you can have two individuals who speak English and yet they have some affinity and they can build rapport because they have some cultural - - -


JUSTICE ROSS:  Some shared experiences, yes.


MR SCOTT:  - - - connection, that's right.  And equally with the others.  Now I'm not advancing necessarily the slippery slope argument of saying well, you put this in and then there's then some precedent for a merit basis for all of these others.  What I'm saying is having a community language skill is no different to any of those.  It is one of a number of a life skills that employees have.  Employers will naturally be attracted to employees who can bring particular skills, which may be of value to their employees.


If you follow that through in terms of the NDIS and the disability space, the reforms around increased control and choice on the part of the participants means that participants will naturally say I have an interest in a particular thing.  I have a particular hobby.  I'd like to have my supports provided to me by people who have some shared connection or shared experience, or shared life experience.  Another thing - yes, to give yet another example, it may be something like an employee in the disability sector spent 10 years in the defence force, and that's a life skill whereby there may be employee - sorry, not employees.  There may be participants who have a particular interest in military history who will be attracted to that person.  So I just said that I won't advance it as a slippery slope argument but I'm rapidly changing my view on that.  That's the submission.


If I can move to - and I've heard what your Honour said about the technical issues, the drafting issues and of course it's far easier to stand and criticise someone else's drafting than it is to draft it yourself and I'm very conscious of that.  My friend described some of the issues that my clients were raising as technical issues.  We say they go well beyond that.  We say and Mr Ferguson made the point, they're really fundamental issues but I've heard what your Honour said as to - to the extent that there's some merit, there's nothing preventing the Commission from reformulating the drafting in any way that it considers appropriate.


One thing that hasn't been ventilated.  It's been ventilated in writing but I think it's worth ventilating orally.  There's a reference to - at 20.10.3 to the allowance being payable according to when the skills are used, and my friend's indicated that it's a weekly allowance.  We've raised some issue in writing as to what does that mean according to when the skill is used.  Does that mean every week you look back and say did the employee use the skill for that week?  Or is it that once the employee commences they start using the skill, they've met the test, they get it from there on?  You know, like how does it work, with pay cycles and of course to the extent that there's - the clause is intended to work whereby employees at the end of every pay period have to look back and say did you use it?  Did you use it regularly?  Did you use it occasionally?  Okay, we'll pay you this amount.  That's patently unreasonable for employers in terms of administrative burden.


We've dealt already today with the fact that the accreditation needs to be a pre-condition on payment but notwithstanding that, we say that to shift the burden of the cost of accreditation to employees is just unfair and unreasonable, and it goes beyond section 138.  The other - and to give perhaps a perverse example, an employer would be left with the cost of an employee - of accreditation in circumstances where an employee comes to them during an interview and says I've got all these skills and the employer says great, I'll hire you.  I'll send you off to accreditation because I want to use them, and the employee fails the accreditation.  Is there some reimbursement whereby the employee pays for the cost of the accreditation in which they failed?


The other issue is this kind of interaction between interpreters and translators and employees, and the clause and I perhaps don't understand the rationale for this, but the proposed drafting says that they do not replace or substitute the role of professional interpreters and translators, and yet the evidence we heard this morning was - - -




MR SCOTT:  - - - it's great.  It's great to have employees who use language skills because we can avoid the cost of translators and interpreters.  I'm not sure what the union's seeking to achieve in terms of that but I won't say anything more about that.  Unless there's any specific questions in terms of anything we've put, those are my submissions, your Honours.


JUSTICE ROSS:  Thank you, Mr Scott.  Anything in reply, Mr Robson.  Sorry, yes, AFEI.  Just check the - okay, no, they're working, it's fine.


MS SHAW:  They're working?




MS SHAW:  Thank you.  I guess, as outlined in our submissions we oppose the changes sought by the ASU and rely on our submissions.  There are two further important points that AFEI wish to emphasise today.  Firstly the impact of the allowances on the rates of the award.  So for example the regular use allowance would result in a level 3, pay point 1, with an advanced certificate plus community language skills, receiving a higher weekly rate than a level 3, pay point 3 employee with a three year degree, and a level 3, pay point 4 employee with a four year degree.  It would also result in a level 1 pay point 1 employee with community language skills being paid more than a level 2 pay point 1 employee.  A level 1 employee may be an initial recruit who may have limited relevant experience.


The Commission should take into account in determining whether the variation would result in a fair and relevant safety net and we say it doesn't.  Secondly, language is fundamental and a means of communication and an important aspect of humanity.  It is just as much a skill to be able to communicate in English as it is skilled to be able to communicate in German, French, Arabic or any other language.  The need for communication skills, whether that be in English or another language, is an important aspect of all roles and could even be an inherent requirement depending on circumstances.


The classifications already compensate a person for using written and oral communication skills, and acquired skills and knowledge in the discharge of their duties.  Although we don't have direct evidence of the community language skill being taken into account in a decision, as a threshold issue the Fair Work Commission may not find that there is any basis for the award - for awarding an allowance at all, if employees are already compensated for the use of community language skills in their ordinary weekly pay.


We have identified a number of clauses in the classification sections of the award that directly go to the use of communication skills or skills required to assist that they have developed through their use in the industry.  I can just go through those.  I have a copy of the award.


JUSTICE ROSS:  What might be - given that issue is going to be agitated in your written submissions - is when that timetable comes out if you identify which of the particular award clauses you say implicitly, or however strongly you want to put it, recognise what is sought to be compensated for in this allowance and then other parties can respond to the written submission and we can deal with it that way.


MS SHAW:  Yes, sure.  That's all we have to say.


JUSTICE ROSS:  All right, thanks, Ms Shaw.  Sorry, Mr Pegg.  So the first point is around - it goes primarily to the quantum that's being sought and the levels, and as I understand it the essence of it is that if we were minded to grant an allowance we need to be conscious of the existing classification framework in determining what the level of that allowance should be, and the level sought as you have illustrated would push someone from a diploma above someone with a degree, and you say that's a disproportionate increase - - -


MS SHAW:  For that skill, yes.


JUSTICE ROSS:  - - - and doesn't fit within the relativity structure within the award.  Is that the - - -


MS SHAW:  Yes.  I mean for example - - -


JUSTICE ROSS:  So is that - so it goes from, was it a diploma to a four year degree?


MS SHAW:  Yes, under the Level 3 if you have got a four year degree you have to start at pay point 4.  So someone who is just a certificate Level 3 would - we just do these off the modern award rates - would get $984.26 a week with that allowance, and if you were a Level 3 pay point 4 you get $979.60 a week.  So there is a bit of a difference there, but I mean also between Level 1 and Level 2 you could have a Level 2 person supervising that Level 1 and that Level 1 person is getting paid more than them with that because they can use their - or they use a second language.


JUSTICE ROSS:  Yes, okay, I follow.  Thank you.  Mr Pegg?


MR PEGG:  Primarily we rely on our written submission which is quite brief and a number of the points I would have made today have already been covered, but just two quick things I might add.  Firstly, picking up on AFEI's submission the classification definitions in this award are pretty generic and they do define different levels of communication skills required to carry out the duties, and we would say that from the evidence today that a lot of these workers, it is an inherent requirement of their job that they exercise these language skills.  It's already covered in the communication skills.


JUSTICE ROSS:  Just picking up on that point it bumps into a point Ms Shaw raised.  It may be that if - there will be a lot of ifs in this sense - if we are persuaded by the merit, if we're persuaded to give an allowance it may be that it doesn't necessarily apply to all levels.  Picking up your point some levels have higher communication skills as an inherent requirement for the level, and the lower levels don't, and the point that you're looking at, Mr Scott, that it may be that it's more nuanced than we had been sort of working on the assumption.  It's not a sort of binary thing, they were taken into account or they weren't.


It may be on the point about the difference in the classification structures and the definitions, it may be that there's an argument that it was taken into account or it is taken into account in the higher levels, because there's a point of distinction between the descriptors there and the lower descriptors.  But that's something you can think about, because I rather think that your search is going to be a bit fruitless, trying to find how rates are set.  I tried exploring a couple of other awards and it's a fascinating exercise.  So, Mr Scott, I wish you well in that.


MR SCOTT:  It's one way of describing it.


JUSTICE ROSS:  But I just don't want to rule out that other argument.  You might want to give some thought to that, Mr Pegg, and develop that point and, Ms Shaw, when you're identifying what the descriptors are then that might come out of your submission as well.


MR PEGG:  Yes.  So for example at Level 4, which should be a degree qualified front line case worker, the classification definitions talk about specialised skills or skills of a specialised nature to enable them to perform their duties.  That's where I would think an interpreter might go who has got university training in that kind of thing.  Whereas a Level 2 which is where a disability support worker might sit, a certificate qualified worker, if their first language is a non-English language that classification definition talks about basic oral and written communication skills in order to perform their duties.  So that's what we would say.


I think in response to one question that came up this afternoon, I don't want to be held to it, but my recollection is that the ERO case does have evidence around workers exercising language skills.  I need to check that, but I think the ERO case is worth looking at.


Just the final point, again just responding to issues that came up about the nature of the sector, there is a large amount of evidence that was submitted in the ERO case, but it was quite clear that a problem in the sector is a lack of evidence, because the ABS data is too broad, but one development since then is the ACNC is a good source of data about the social welfare and charitable sector generally.  That's all I wanted to add.


JUSTICE ROSS:  I will invite you when you come to put in the additional material in submissions to develop those points and direct us to particular reports that you think would be of have some assistance.  All right.  Thank you.  Anything in response?


MR ROBSON:  No.  I think anything I would say now would be covered in the written submissions.


JUSTICE ROSS:  All right.  Bearing in mind the written submissions aren't sort of at large they're really going to be confined to - if we run through them - the material we have provided about what's in modern awards, and (1) whether the information is accurate, (2) what's the relevance of it to this.  There is the issue around the industrial instruments, other industrial instruments that may have a reference to it.  There's the information around the community language allowance scheme that Mr Ferguson provided, the exhibit AiGroup1, and that's around, well, not only how does it work, but how does it intersect with employers who operate under this award, and are there like schemes in other states, and what are their sort of funding arrangements or their intersection with the funding arrangements.  In other words who pays for that allowance.


The issues that have come out of the course of oral argument around, well, to what extent are community language skills comprehended within the classification structure, that can be both an argument based on the classification definitions and on past cases, including the ERO case, and the last point is around the data that's available for the sector, for the sector covered by the award.


We know of the Workforce 2016 report that will give us some information about the home support work, and our starting proposition would be the ASU's descriptor of the industry, but how do we match data sources against that descriptor and those subsectors.  Obviously I think if you follow - whatever you end up coming up with by agreement will be fine by us, but it would seem to make sense if you follow a let's get the data sources and all the factual information right, then have a process where you will be able to each say what you think about that, what follows from that and how does it bear on the issues that are in front of us, and then some opportunity to reply.


MR ROBSON:  Well, then look, the only additional thing I'd add is I think there's been a significant amount of argument about the evidence given by Ruchita and Nadia Saleh about whether those were core parts of their duties.  It's been focussing on the words 'adjunct' in our draft determination.  All we would say is the word adjunct does not do what we say it should do.  We don't necessarily need it to be in there.  A different word that does what we intend it to do is better.


JUSTICE ROSS:  Well, I think the - so an issue of principles becomes if you get to the point that on the basis of all of it, it's not comprehended in the wage rates and there's some desire to do something, well, it's partly the issue Mr Scott raises.


I understood what you're trying to do is somehow delineate interpreting where that's what you're engaged for.  Whereas what you're looking at is someone who is engaged to deliver - well, a classification within the award, but as part of their duties performs this other function.


MR ROBSON:  That's it.


JUSTICE ROSS:  I mean, for myself I see the force in the employer arguments about the use of the word adjunct, is an unfortunate expression.  I don't think the issue is going to rise and fall necessarily on the use of that word.


MR ROBSON:  No.  I just want to emphasise that point, is that the principle we are making, is the one you've outlined.


JUSTICE ROSS:  Yes, I mean it does raise the sort of point that ABI raises.  It's a bit odd that you say it's not just to get rid of these interpreters, where in fact, it looks as if that's exactly what it's supposed to do.


MR ROBSON:  Well, I think again - - -


JUSTICE ROSS:  And that's in fact the benefit that you're positing to the employers, is that well you don't have to get - it's both a benefit to the client because you get a more - it probably goes beyond the cultural.  It's a more informed conversation because you've got someone who's skill in whether it's domestic violence or whatever it might be, whereas an interpreter won't have that contextual consideration.


I had the same reaction as ABI had.  I just couldn't work out why you were somehow excluding it.  It didn't make much sense to me.


MR ROBSON:  I suppose the point of interpreter and again, we take on board your points about the drafting of the core words.  But an interpreter is a person with a skill for taking what one person is saying and then translating it accurately into what another person is saying.  So that two people can have a conversation who don't speak the same language.


A translator is someone who can take a written document and then turn that into a written document in another language and there's a qualification and there's a scheme behind that, that you could be confident that that document means what it meant in the original language and when that person is speaking between them, you know that the thing that the person on the other side of the interpreter is saying, whether it's on the phone or face to face, is what you're hearing.


The work that we're trying to capture is where a person actually practices their discipline in a community language.  Or, and I think this goes more to what the base rate is, is when they would provide assistance to another person.  There's a difference between that level of interpretation task or that translation task and joining in a conversation where yes, you are helping people communicate, but your value to that conversation is not your ability to flawlessly translate one word to another.  It is the fact that you can speak to that person, even if you're only there on an ad hoc basis, in their own language and practice your particular discipline in that language.


I suppose when ABI says this is about life skills, I think they're missing the point.  Like a language is not a life skill.  It's not the same as having an experience.  It's not the same as an interest.  It's not the same as a background.  A language is an actual skill.  It is something that you can be good at or bad at.  I take on board your point about accreditation and certainly, I think we need to reconsider our position on that.


The background to our claim is that there are a significant number of people in our membership who are using their skills at the moment without accreditation.  They have come to us saying we want to see some recognition for our work.  maybe we need to reformulate what our claim is.  But these are - apologies, I've lost my train slightly.


But these skills are not, as I've said, they're not sort of inherent.  They don't just come out of nowhere.  In many cases you could argue that the additional value that this worker is doing, is the fact that they have learnt English.  Nadia Saleh goes into that in her statement, that she came to this country in the early 90's, speaking Arabic.  Went to an English language class, so she is a person whose first language is Arabic.  She has learnt to speak English.  She practices her discipline and she actually gave evidence in the equal remuneration case over a significant period of time, which gives her extensive skills.


It's also important to note in relation to the classification issue raised by AFEI, that the classifications in this award are not rigorously tied to qualifications.  Like an example I'm familiar with is the Children's Services Award where there is a specific qualification for someone with a certificate III.  Then there's an associate level and a diploma level.


But going through the classification structure, even at higher level classifications, there is scope for people without formal qualifications.  So, if you went to B(viii) - B, which is pre-requisites for the highest SACs classification, (iii) says "Less a formal qualification and the acquisition of considerable skills and extensive and diverse experience, relative to an equivalent standard".


Drawing on the point my friend made about people working with prisoners or drug and alcohol workers, your experience may be your entryway into the sector.  It may give you some knowledge that is more accessible.  I don't want to go into the particular classification of where that work would sit.  Certainly, I know it's been an issue of dispute from time to time.  But if you can look at the highest classification in this award for these types of workers and it says less formal qualifications.


This is not a sector that relies on qualifications to judge work and then apportion them to the level.  A level eight employee is a significant - like a serious person.  If you look for the classifications, this is senior officers, exercise managerial responsibility.  Provide advice to the professional employees, the employer the committee or the board of management.


This could be a person running a service and still be an award dependent employee.  They even then don't need to have a formal qualification to be there and to be classified at that level.


JUSTICE ROSS:  But when you look at the qualification levels.  If you take the point AFEI raised well, on your current allowance that can effectively mean that a person would be supervised by someone else who's getting lower money.


MR ROBSON:  Well, I don't think that's true given the operation of the ERO.


JUSTICE ROSS:  Well, let's not - - -


MR ROBSON:  But I think that's the reason why it requires further submission.


JUSTICE ROSS:  Well, let's not get into the intersection with the ERO.  I might invite you to have the discussion with AFEI and see if you can - it shouldn't be an issue of contention because the rates are there and just test out the proposition and see whether the ERO puts it in the light.  But it's an important issue to try and sort out.  See how you go.


If you can't agree, then at least put in what each of you think is the position.


MR ROBSON:  All right.


JUSTICE ROSS:  There was something I was going to raise at some point is the - how the rates work with the ERO, but I think we've got enough trouble with one allowance claim without raising how that works and when it comes to an end, what happens and all the rest of it.


MR ROBSON:  Yes, well, hopefully we're not finishing this after that ceases to become a problem.  So look, I suppose those are the points that I wanted to raise at this time.  I don't think I've got anything further to say.


JUSTICE ROSS:  Nothing further?  Well, thank you very much and I look forward to seeing the product of your labours in relation to the classifications.  We'll adjourn.

ADJOURNED UNTIL WEDNESDAY, 17 APRIL 2019                   [2.21 PM]



DR RUCHITA, SWORN...................................................................................... PN525

EXAMINATION-IN-CHIEF BY MR ROBSON............................................... PN525


CROSS-EXAMINATION BY MR SCOTT....................................................... PN540

THE WITNESS WITHDREW............................................................................ PN588

NADIA SALEH, SWORN.................................................................................... PN591

EXAMINATION-IN-CHIEF BY MR ROBSON............................................... PN591


CROSS-EXAMINATION BY MR FERGUSON.............................................. PN597

RE-EXAMINATION BY MR ROBSON............................................................ PN634

THE WITNESS WITHDREW............................................................................ PN644

NATALIE LANG, SWORN................................................................................ PN647

EXAMINATION-IN-CHIEF BY MR ROBSON............................................... PN647


CROSS-EXAMINATION BY MR FERGUSON.............................................. PN653

EXHIBIT #AIGROUP1 HANDBOOK FROM MULTICULTURAL NEW SOUTH WALES WEBSITE............................................................................................................... PN685

THE WITNESS WITHDREW............................................................................ PN700

LOU BACCHIELLA, AFFIRMED.................................................................... PN709

EXAMINATION-IN-CHIEF BY MR ROBSON............................................... PN709


CROSS-EXAMINATION BY MR FERGUSON.............................................. PN715

CROSS-EXAMINATION BY MR SCOTT....................................................... PN760

RE-EXAMINATION BY MR ROBSON............................................................ PN778

THE WITNESS WITHDREW............................................................................ PN792