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Fair Work Act 2009                                       1056889






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, WEDNESDAY, 17 APRIL 2019


Continued from 16/04/2019



JUSTICE ROSS:  Before I get to the objections if there are any to the statements, there were a couple of preliminary matters I wanted to raise, and when we get to the objections it might be better for any witnesses present just to wait outside.  So, yesterday some issues arose that may be of interest to your client, Ms Doust.  One of the matters concerned a proposition put by ABI about the scope and coverage of the Aged Care Award.  There was a discussion about some additional material that was to be put in and an opportunity for comments to be made about it, and there was also an issue that arose around the joint report which set out the former consent position of some of the parties.


If I can deal with the last one first, and the others we'll highlight the relevant passages from the transcript so you don't need to wade through all of it; and we'll probably issue a short statement anyway about the materials we were seeking so there's no doubt about that, and I think the parties were going to have a discussion about the timelines for that.  So once you've done that and get back to us about that we'll issue directions.  The joint report thing came up this way, and if I'm verballing you, Mr Scott, you should get up and say that it's not quite right.  For present purposes it doesn't really matter whether it was you or how you raised it, really.


MR SCOTT:  I'm ready to rise.


JUSTICE ROSS:  Look, I had taken the suggestion to be that in dealing with this issue - and I've forgotten even what the issue was - - -


MR SCOTT:  Your Honour?




MR SCOTT:  If I can assist because I think I should have dealt with it in a different way and - - -


JUSTICE ROSS:  No, no, it's fine.


MR SCOTT:  And so I think - I can't remember the context but I raised the concern, and I think it was in response to some queries about the sleeping arrangements in the 24 hour care clause.




MR SCOTT:  And the proposition was, well, there's an inconsistency between the wording in the sleepover clause and the 24 hour care clause and I referred your Honours to the consent package.  What I should have done is refer your Honours to a claim that's on foot for hearing in the tranche 2 and I think it's a claim by the HSU.


JUSTICE ROSS:  Yes.  No - - -


MR SCOTT:  And so the reason I was raising that was there is a claim on foot regarding a variation to the wording in the sleepover clause.


JUSTICE ROSS:  Yes, yes.


MR SCOTT:  And so I agree that the consent package can be disregarded.


JUSTICE ROSS:  No, no, that wasn't what I was going to raise.


MR SCOTT:  I apologise.  I'll sit down.


JUSTICE ROSS:  So it's this, that there is a reference to the consent package and it's been clarified now so you don't need to worry about the contents.  The short point is this.  All the parties should proceed on the basis that we're not going to have regard to the consent package.  I've not read it, I don't propose to.  If a party wants to put that - they may have a primary position and if they want to advance an alternate position and that alternate position happens to be reflected in the previous consent package then by all means be at liberty to do that.


I raise it because I don't want anyone to proceed on some assumption that we might leap to the consent position as some fallback arrangement.  Look, we may get there through a different means.  I don't know what we'll do with the claims, but we won't be looking at it unless you direct our attention to it in the manner that I have indicated.  Okay?  So as for the other matters we'll raise them after we break on the witness evidence today, with more precision about what those issues were.


The other thing that I wanted to raise that really only came up - I think Mr Robson made a point in response to a point Ms Shaw had made.  You don't need to worry about the context.  The relevance for present purposes is this, because I know if I go into the context I'll either have Ms Shaw or Mr Robson objecting to it.  But it arises this way; that we published an information note - but they didn't raise this point but it comes up from one of the things they said - an information note on 9 April which attached a chart showing the wage rates of the different classifications.


I hadn't thought - well, I didn’t prepare the chart but I hadn't thought of the interaction between the Equal Remuneration Order and the minimum wage rates in the award, and that's an issue that I want the parties to look at, whether the chart accurately reflects the wage rates that employers in this industry have to pay as a consequence of the ERO order and the award.  I'm assuming that can be the subject of an agreement between you and I hope so because I struggled a little in reading the ERO order insofar as I'm not sure - it talks about the final payment being a percentage of the applicable minimum wage in clause 15 of the award.


I don't know whether that was clause 15 of the award as at the time the order was made, how is it worked in practice, and I certainly don't want to put myself to the trouble of calculating all those percentages and I'd much rather you did that.  And that will also avoid us having to come up with something, put it back to you, and have this endless iterative process about what should be a fairly simple proposition.  So if you can have a discussion.  Perhaps when you see - the gravamen of the other material that we were seeking was is there any common position about what does this sector cover?


I know that's the subject of some of the HSU's evidence but also are there relevant reports that might inform each part of, or at least substantive parts of the sector.  For example in the material I think the HSU has filed and in your witness material there is some data around the NDIS employment in that, there's some data around the aged care workforce in terms of the home support sector which would be covered by this award.  Is there any other data out there that might inform, provide broad contextual background?


So I think it was about that and there were a couple of other requests, and what I had put was - and I'll clarify precisely the request.  It's in the transcript towards the end - that if the parties can agree on when will they refer to that, that would be one date.  And then there would be another date where everyone can comment on that, the relevance of it, if any.  And a further date when they can reply to that, and I was anxious not to have any of that drift.


If it looks like it's drifting I'll just withdraw the request.  If we're going to be months doing it, well, we're not really interested.  So let's see how quickly - and we'll do our own search.  If we find something we'll let you know.  So let's see how quickly we can get it done, but as I say we'll provide a bit more clarity around that for your benefit, Ms Doust, when we get to it.


MS DOUST:  I appreciate that, your Honour.


JUSTICE ROSS:  With the tranche 2 matters has there been some further discussion about that?  Where is all that up to?


MR FERGUSON:  There have been some further discussions.  There's been a series of directions developed and I think the sticking point is the hearing dates as such more than the process.  I think those discussions aren't finalised and we know the Bench - we don't have the Bench's availabilities.  I think the issue is from Ai Group's perspective a series of almost consecutive Full Bench hearings and just have a little bit of a break.




MR FERGUSON:  Then there is a leave issue with union and other employer group advocates' availability.


JUSTICE ROSS:  Okay, we'll deal with that before the end of today and just require each party to identify their availability.  It may mean that Ai Group has to brief, if that's the only available option.  But we'll see how all that transpires.


MR FERGUSON:  At that time we'll speak to you about it or put a submission about the reason for that.


JUSTICE ROSS:  Sure.  Yes, yes.  Well, let's go then to the witness statements and are any of the witnesses present?


MS DOUST:  Yes, Mr Farthing.  He's the first cab off the rank.


JUSTICE ROSS:  Do you have any objections to Mr Farthing's statement?


MR SCOTT:  Yes, your Honour.


JUSTICE ROSS:  Mr Farthing, it might be better if you wait outside.


Do you want a moment to - have you had the - - -


MS DOUST:  No, we've exchanged views about the objection.  There's an objection to a paragraph on the basis that it's submission or argumentative.


JUSTICE ROSS:  All right.


MS DOUST:  We're content for it to go in on that basis and we think the Bench is probably equipped to - - -


JUSTICE ROSS:  Well, yesterday we removed submission parts of the statements.




JUSTICE ROSS:  So if you accept that it's a submission then it would follow that we'd remove it, and you can make the same submission.




JUSTICE ROSS:  But what was the paragraph?


MR SCOTT:  Twenty eight, your Honour.


JUSTICE ROSS:  Yes, well, I think is it common ground it's a submission?


MS DOUST:  Yes, your Honour.


JUSTICE ROSS:  All right, well, consistent with the rulings yesterday, we remove paragraph 28.  It's also I might say they're the same points that are raised, that have been raised already in submissions about the 24 hour shifts that have already been filed.


MS DOUST:  I accept that.  Your Honour, there's one further issue and that is that I asked for leave to ask this witness to address - well, I have a couple of questions briefly at the outset.




MS DOUST:  The changes to the - his analysis of pricing and costs at paragraph 19 and following of his statement.




MS DOUST:  'In light of the Budget'.




MS DOUST:  So that really needs to be updated I think to properly inform the Commission of the current state of play.


JUSTICE ROSS:  And is there any objection to that?


MR SCOTT:  No objection, but I must admit I haven't looked at in any detail the recent announcements about budget and the increases to the rates.  They were only announced I think about a week ago.  We were proposing to deal with that during tranche 2, in terms of the cross‑examination of the NDIS funding arrangements and the like.  We say that that evidence is clearly relevant to the matters - the claims that are on foot in the tranche 2 hearing.  So we were content to deal with it in that way.  If - - -


JUSTICE ROSS:  Perhaps we can deal with it this way.  If there's leave to ask the questions, if - and I know it's somewhat unusual, but it's because of the nature of the questions that have been foreshadowed that they are intended to reflect the outcomes of the budget - if on examination of the budget you have a different view, then firstly raised it with the HSU to see if it can be sorted out; if not, you'd have liberty to file a note about that issue.  You would need to do it within a relatively short timeframe, so by the end of next week you would have to do that, and if anything arises we'll worry about that when and if it happens.  Okay?


MS DOUST:  Can I just foreshadow as well - I'm sorry.


MR SCOTT:  That's fine.


JUSTICE ROSS:  I had a similar - a sort of related question, Ms Doust.  It's this, that in relation to each of these statements they obviously, as well as dealing with claims that we have before us now - 24 hours, the first date, et cetera - they deal with claims in the second tranche.




JUSTICE ROSS:  How is the evidence being put forward?  Is it - at this stage are you having them submitted and you rely on those bits that are directly related to the claims before us, or are you expecting the witnesses to be cross‑examined about all of the matters?


MS DOUST:  Well, the objections have certainly gone beyond the scope simply of the matters that are in the current tranche, and on that basis I had assumed that - - -


JUSTICE ROSS:  Yes, well, if the objections had gone beyond it, that's probably right.


MS DOUST:  That the employers were proceeding on the basis that they would cross‑examine as to all issues.




MS DOUST:  Can I just indicate this.  It might depend on whether or not the Bench anticipates issuing some sort of interim decision on this early tranche of issues - - -


JUSTICE ROSS:  I don't think it will be an interim decision.  It will be - we'll issue a decision on this tranche of clients.


MS DOUST:  Yes, all right.  If that's what the - - -


JUSTICE ROSS:  And we indicated that before.  I indicated that in an earlier mention.




JUSTICE ROSS:  Whether they're provision views or not will depend on our consideration of the claim, but we're not waiting until the whole case is finished.


MS DOUST:  Yes, certainly.


MR FERGUSON:  We had anticipated cross-examining on all issues.


JUSTICE ROSS:  No, that's fine.


MR FERGUSON:  We had prepared objections to all issues just thinking that we had - - -


JUSTICE ROSS:  No, I'm not raising it from my perspective.  I just didn't want the employer advocates to be under a misapprehension and then there to be a later issue where the HSU says well we rely on the statement of this person and you haven't thought to cross‑examine them about those issues; that's all.  But if you're prepared for it, that's fine, we'll do that.


MR SCOTT:  No, we're not.  There is that misapprehension, your Honour.




MR SCOTT:  Certainly my understanding was that - - -


JUSTICE ROSS:  But Mr Ferguson just said - - -


MR FERGUSON:  I may have not been clear enough, but I said we're not prepared to cross‑examine on all issues.


JUSTICE ROSS:  Well, have you made objections on all issues?


MR FERGUSON:  We were proposing to, thinking that - - -




MR FERGUSON:  - - - if once it was admitted into evidence - it might be my mistake - that we'd need to at that point raise the - - -


JUSTICE ROSS:  Once it's admitted into evidence and you've given the opportunity to cross‑examine on it, it's done.  You're not going to get another opportunity.


MR FERGUSON:  No, I understood that, but I thought we would have an opportunity to cross‑examine in relation to the other matters when those matters were brought on for hearing.  We obviously - - -


JUSTICE ROSS:  I think we can run the objections on those matters when it's brought on, you know.  Why would we - - -?


MR FERGUSON:  Look, I just tried to be efficient and identified everything.




MR FERGUSON:  But obviously we haven't prepared our case yet on the other matters, so we're not in a position to cross in relation to everything.


JUSTICE ROSS:  All right.


MR FERGUSON:  I can try and rationalise on my feet, if that makes sense.


JUSTICE ROSS:  Then we'll need to know - if we're looking at the claims currently before us, if you can identify which paragraphs of each statement you're relying on, and then everyone will know that those are the ones we'll consider on this occasion, and then we'll hear from them in the second tranche.


MS DOUST:  I think, certainly with the witnesses that are being called today, your Honour, their evidence goes beyond merely focussing on the issues and goes to bullying issues such as - - -


JUSTICE ROSS:  No, I - - -


MS DOUST:  - - - the make‑up of the industry and classification issues and so on.


JUSTICE ROSS:  Yes, I agree.


MS DOUST:  So we do rely on them more broadly.


JUSTICE ROSS:  But look, this is why I asked the parties to discuss the witness evidence and the cross‑examination, so you could sort out these problems without coming along today and telling us you've both got different apprehensions about it.




JUSTICE ROSS:  But the point, it is certainly easier when you are looking at - there's a heading, "Client cancellation," and the telephone allowances, well, those matters will not be, but - well, we'll deal with the - well, we can't even deal with the objections, because you don't know which bits are going to be relied on.  We'll stand the matter down for 10 to 15 minutes so you can have a conversation with those who are cross-examining and identify which parts of the statements you intend to rely on, and I would expect the general material would be sort of unexceptional.  In relation to the rest of it, it can be sort of divided by the subheading, where they relate to particular claims in the first and second tranche.




JUSTICE ROSS:  But we'll leave that with you.  If you need more time, if you can let my associate know.




JUSTICE ROSS:  Okay, we'll adjourn.

SHORT ADJOURNMENT                                                                  [10.00 AM]

RESUMED                                                                                             [10.26 AM]


JUSTICE ROSS:  Where are we up to?


MR FERGUSON:  If I can clarify, I think we are ready to proceed.  The one issue, which I might deal with on caution; the employed parties are prepared to deal with all the evidence that the union is going to rely on today for the purpose of these proceedings.  The view is though that we may need to seek to recall some of the witnesses for the second tranche - - -


JUSTICE ROSS:  Of course.


MR FERGUSON:  And I think that was part of our concern, is that they might not be available.


JUSTICE ROSS:  No.  It was made clear during the mention to the HSU that - my recollection, and it might have been one of the other unions - was that they didn't want to call their witnesses twice and were unsure about which ones, which claims they would pursue in the first tranche if that was the case, and they were given the option and they chose this course knowing that - and frankly, we aren't wanting to belittle the positions of the witnesses and their availability, et cetera, and most of them are union officials and it's not as if you're dragging a worker out of an establishment, so the inconvenience might be less than otherwise, but in any event you have made the decision.


MS DOUST:  I think we can call the HSU an establishment.


JUSTICE ROSS:  Let's not get into that.


MS DOUST:  No, we accept that the witnesses may need to come back, and in fact, your Honour, particularly with Mr Farthing we are proposing to get him to update the position on the budget issues.  It may well be by the time we come back to this Commission - - -


JUSTICE ROSS:  Yes, a good point.


MS DOUST:  - - - there's a further funding issue that needs to be reviewed in light of any further changes.


JUSTICE ROSS:  I should say I don't think we will be sort of endlessly holding a decision.  Once we have reached the decision we will publish it, because who knows, the political processes are beyond my capacity to foresee what any particular group will do at any particular time.  There may be some necessity to do that in the - - -


MS DOUST:  We will certainly be ready to do that if there's any new analysis that needs to be undertaken.  In the meantime, your Honour, can I just indicate that from the material that - amongst the HSU material in addition to the witnesses who are called today there is also the statements of Ms Thames and Mr Lobert that touch on the issues, and in particular the first aid allowance.


JUSTICE ROSS:  Is that the part of their evidence that you're - - -


MS DOUST:  Yes, although - - -


JUSTICE ROSS:  I don't have - I probably do somewhere - have them in front of me, but is their evidence of similar character, it covers some claims in the second tranche.


MS DOUST:  It does.  I can indicate in relation to those witnesses which parts really don't arise in the present context.  Can I ask whether the members of the Bench have the statement of Ms Thames in front of them?








MS DOUST:  A deal of it is background, but gives the Bench an idea of who the worker is and the nature of their employment, but with Ms Thames I think we wouldn't need to go to 20 to 22.




MS DOUST:  Yes, overtime and telephones, and with Mr Lobert paragraphs 18 to 21 that deal with telephones and overtime.  Otherwise they both deal with this question of the first aid certificate, and the other material is - - -


JUSTICE ROSS:  Contextual.




JUSTICE ROSS:  For present purposes - you will tender it at some point and we will mark those statements, but we will note that they won't be read in relation to the first tranche of claims in those paragraphs that you have identified.


MS DOUST:  Yes.  Is it convenient to tender them now?




MR FERGUSON:  Shall we deal with the objections in relation to all of the statements?


JUSTICE ROSS:  I don't have Thames or Lobert in front of me.  I will get those, but you can deal with the others.  How are you going to do this, are you going to object to just the parts we are dealing - firstly, Ms Doust, are you going to identify which paragraphs are not read for the present purposes?


MS DOUST:  The witnesses who are called today?




MS DOUST:  Yes, I can do that.


JUSTICE ROSS:  All right.  Let's start with Mr Farthing.  You do that and then we will ask what are the objections to the statement and we will deal with those.


MS DOUST:  For present purposes I don't think we need to go to 23 to 26 of Mr Farthing.  That's specifically on cancellation arrangements in the NDIS.




MS DOUST:  Whilst I think it's important to put the general material about the NDIS pricing structure that's probably not necessary to consider in the context of the current issue.  Do your Honours have Mr Eddington, the Tasmanian gentleman?




MS DOUST:  Not 55 and 56.




MS DOUST:  Mr Sheehy; not 11 to 16.


JUSTICE ROSS:  What about the split shifts and travel time?


MS DOUST:  Sorry, and 20 to 21.  No, we do think that that's something relevant for your Honours.  That's a very big part of the case and we think it informs the approach, particularly on 24 hour - - -


JUSTICE ROSS:  Yes, all right.


MS DOUST:  Sorry, with Mr Sheehy it was 11 to 16 and 20 and 21.


JUSTICE ROSS:  Yes.  Mr Elrick?


MS DOUST:  Not paragraphs 30 to 44.


JUSTICE ROSS:  All right.  So with Ms Thames it's not 20 to 22?




JUSTICE ROSS:  With Mr Lobert it's not 18 to 21.  Let's deal with any objections to the parts of their statement that are to be read first; then you can tender those and we'll mark them, and then we'll deal with the other four.  Ms Thames - any objections to that statement, bearing in mind we're not here dealing with 20 - or do you want to deal with all of them?  What do you want to do?


MR FERGUSON:  I'm in a position to deal with all of them.


JUSTICE ROSS:  Are you happy for that course, Ms Doust?


MS DOUST:  I'm content to deal with that now, your Honour.




MR SCOTT:  I'm content to deal with that.


JUSTICE ROSS:  All right.  Okay, Ms Thames - any objections to that statement?


MR FERGUSON:  Yes.  Paragraph 15.


JUSTICE ROSS:  Have you discussed these with Ms Doust?




JUSTICE ROSS:  All right.


MR FERGUSON:  Well, no, Ms Doust has been put on notice, your Honour.


MS DOUST:  I'm sorry, we've seen the objections, but I've only responded in respect of the witnesses who were called.


JUSTICE ROSS:  All right.


MS DOUST:  Or required for cross‑examination.




MR FERGUSON:  It's the third paragraph, starting with the words, "The $10.74 we receive for a broken shift isn't much compensation when you have to sit in your car twiddling your thumbs for an hour and a half," on the basis that it's submission or opinion.


JUSTICE ROSS:  Yes.  Ms Doust?


MS DOUST:  She's a worker that actually has to do that.


JUSTICE ROSS:  I think you can make the same submission based on the factual content.  Anything else?


MR FERGUSON:  Paragraph 16, the fourth sentence, starting with the words, "The company often roster," going on to say "the first (indistinct) client on either end of our shifts, because they're not paying for travel."




MS DOUST:  I'm sorry, if I might have leave when the witness is actually called then to deal with that and establish the basis.


JUSTICE ROSS:  Yes, that's fine.  Anything else?


MR FERGUSON:  Yes, paragraph 19 - hearsay.


JUSTICE ROSS:  Well, that's a matter for weight.


MR FERGUSON:  Nothing further.


JUSTICE ROSS:  Loaded?  No objections to loaded?


MR FERGUSON:  No objections to loaded.


JUSTICE ROSS:  You're in the same spot, Mr Scott?


MR SCOTT:  Yes, thank you, your Honour.


JUSTICE ROSS:  All right.  I think it's the first HSU exhibit - I might be wrong about that.


MS DOUST:  It's in fact a Thelma.


JUSTICE ROSS:  So Thelma Thames, we'll mark that exhibit HSU1.



And with Mr Lobert, exhibit HSU2.



The other witness statements will be tendered through the witness, but let's go through the objections.  Mr Farthing, I think we've dealt with.  Mr Sheehy?


MR FERGUSON:  Yes, an objection.  I'll just find it.




MR FERGUSON:  Paragraph 9, the last sentence, on the basis that it's hearsay.  It's hearsay discussions with unnamed members about the intentions of unnamed employers, and we say it obviously can't be tested from a fairness perspective at all and should be struck out.


MS DOUST:  Well, the Commission is not bound by the rules of evidence, but I'd ask for leave to get some detail from the witness.  This sort of hearsay from people who are officials of the unions reporting on what their members report to them is commonplace in the Commission.


JUSTICE ROSS:  All right.  Well, in the event that you're going to - that's a matter that arises, what, in this tranche or - - -?


MS DOUST:  Yes, I do think that this issue about work patterns and practices does arise in the context of - - -


JUSTICE ROSS:  Well, you have had the opportunity to get the detail and put it in the statement.  It's not in the statement.  It's a matter for you whether you want to cross‑examine on it.  At the moment, consistent with the view we've taken yesterday, we'd leave it in, but we would note, and you would make submissions about the fact that the number of members isn't identified, the employers aren't identified - - -


MR FERGUSON:  We're content to make submissions, and the submissions will be that that should be given no weight.


JUSTICE ROSS:  Okay.  Mr Eddington?  Sorry, Mr Scott, I'm not meaning to skip over you.  Did you have one about Sheehy?


MR SCOTT:  I did, yes - paragraph 19, I think it is, your Honour.




MR SCOTT:  It's really just a fairly generic submission there about what may or may not be a significant amount of money to some people that we don't know about.




MR SCOTT:  The submission can be put.


JUSTICE ROSS:  Yes, all right.  Nothing else for Sheehy?  All right, we delete it on the same basis, bring that with the others.  Eddington?


MR FERGUSON:  Yes.  There's a number of objections to paragraph 21.  The first is to the third sentence, starting with the words, "If an employee has to pay their own travel," going on to say (indistinct) to work, and can only have an engagement for one hour and so forth.  The objection isn't(?) based that it's opinion without a proper basis; opinion about whether it's uneconomical or not, without any factual assertion.




MS DOUST:  I could deal with that if I had leave to ascertain the basis of it.


MR FERGUSON:  It's the same.




MR FERGUSON:  Our view would be the same.  There has been an opportunity to provide a statement.


JUSTICE ROSS:  Yes, I agree.


MR FERGUSON:  Can we carry on and leave - - -


JUSTICE ROSS:  I'm not sure the objection is about the basis.  I think it's a submission that can be put by the union as well.  On that basis we'd delete it.  But that's the essence of the case really.


MS DOUST:  The final sentence though of that paragraph - I'm not sure whether your Honour was dealing with the entire - - -


JUSTICE ROSS:  No, I'm only dealing with that sentence.  I don't know what the - - -


MS DOUST:  The basis for that objection is hearsay and we'd press that stay in.


MR FERGUSON:  The final sentence?


MS DOUST:  Yes, sorry, the last - - -


MR FERGUSON:  So we were going to object to the next sentence, the fourth sentence, on the basis of opinion.  It's the same, it's connected to - - -


JUSTICE ROSS:  Yes, well, the same answer, yes.


MR FERGUSON:  And the last sentence on the basis of hearsay, but perhaps the answer there is weight.




MR FERGUSON:  Then 25.


JUSTICE ROSS:  Yes, just - so we've dealt with the last sentence on weight.  The third sentence, "If an employee has to pay for their own travel," et cetera, and the next sentence, that is, the cost of travel, are removed on the basis they're submissions, and they are related.




JUSTICE ROSS:  And the same submission can be made by the union.  The last sentence remains, on the same basis that we've ruled before.  Anything else?


MR FERGUSON:  Yes, paragraph 25.




MR FERGUSON:  The second sentence.  These employees did not wish to reveal their names, or the names of the employees, as they were fearful that their employment would be adversely affected, based on that it's hearsay or opinion.  We don't know which, but it's objected on both bases.


MS DOUST:  Your Honour, what's happening there at paragraph 25 and following is that this witness has gone through and set out the details for a series of members who have been given I guess a code description, A, B, C, D, E or F, and he's set out their circumstances of who it goes to, this question of working hours, working patterns - - -


MR FERGUSON:  Well, I might - - -


MS DOUST:  Maybe I can finish my sentence before you start speaking.




MS DOUST:  And the practices of the employers in the industry.  So he has gone through them one‑by‑one.  25 is introductory - - -


JUSTICE ROSS:  It's setting up the balance of it, yes.


MS DOUST:  - - - to that, and so we say that that and the balance of the statement is really in that category of hearsay that the Commission commonly receives from union organisers and the like about experiences of their members.


JUSTICE ROSS:  Are you objecting to the balance of it?


MR FERGUSON:  Yes, that's what I was trying to cut to the chase.  We will be objecting to paragraphs - - -


JUSTICE ROSS:  All of it on the same basis?  So that's right through to paragraph 50?


MR FERGUSON:  Well, 27 through to 50, on the basis that it is hearsay, but more than that; we say it's unfair to be received.  They don't even mention the name of the employer or of the parties involved.  It's just an assertion about employer X, employee A, or whatever it may be.  It's completely impossible to test in any sensible way.  There could have been another approach taken in terms of seeking confidentiality orders and so forth.  This is unfair, prejudicial to us, for this to be received.  We say that should all be struck out.


JUSTICE ROSS:  Well, we'll have a discussion shortly and adjourn and give some thought to that, and come back and tell you what we think.  Is there anything anyone else wants to say about it?  Ms Doust?


MS DOUST:  Only this.  My friend just talked about confidentiality orders and we did give some consideration to that issue when we were preparing this evidence.  Mr Eddington can give some evidence about the real concerns of the employees in this area who are working in a depressed area with few employment opportunities.  So he can give some evidence as to their real concerns, but as to confidentiality orders we would have thought that that wouldn't necessarily assist the employers unless they could go and in fact speak with the - - -


JUSTICE ROSS:  Yes, you'd have to go and talk to the employer and if the employer only employs four people - - -


MS DOUST:  Unless the employee was identified.


MR FERGUSON:  And we would have had discussions about what those orders might look like.  Obviously in the course of this review we deal with sensitive issues.


JUSTICE ROSS:  No, it wouldn't matter.  You would have to know - you want to know who the employer is so you can test the factual basis of the evidence.  You'd have to go to the employer, tell them 'There's evidence like this.  Is it true?' and if they've only got three employees and only one of them is a home care level 3 or 2 they're going to know who it is.


MR FERGUSON:  All of those factors are right.  That's possible, yes, your Honour.  I think that's right.




MR FERGUSON:  It still leaves us with the difficult position of not being able to test any of it.




MR FERGUSON:  I mean it could just be completely made up.


JUSTICE ROSS:  Well, you can cross-examine the witness about whether he has made it up.


MR FERGUSON:  Yes, I appreciate that.




MR FERGUSON:  Look, I can't put it higher than it is.  It's an obvious difficulty.




MR FERGUSON:  There's no way I can test any of it and in any event we'll make submissions about weight regardless.


JUSTICE ROSS:  We'll reserve on that and we'll come back and tell you about it.  We'll have a discussion amongst the three of us.  Anything else in relation to that statement?


MR SCOTT:  Yes, your Honour, paragraph 54.  The objection is to the entire paragraph including subparagraphs (a) and (b).  I think the first sentence is in the nature of hearsay and it may be that we don't press the objection there and make submissions as to weight.  But the second sentence on is effectively a submission.  It's opinion.  It's a little bit vague.  Paragraphs (a) and (b) go to the stated ambiguity.




MR SCOTT:  Which - - -


MS DOUST:  I accept they're submissions consistent with your Honour's - - -


MR SCOTT:  It's already in the submissions.


JUSTICE ROSS:  Yes, if the first sentence remains.




JUSTICE ROSS:  And on the basis that as you say it's hearsay but, you know, submissions can be made as to weight.  The balance of the paragraphs would be removed.  All right, anything else?


MR SCOTT:  No, your Honour.




MR FERGUSON:  Yes, your Honour.  Paragraphs 10 to 13 on the basis of relevance dealing with the process for classifying employees.  I'm just struggling to see how that is relevant to these proceedings.


JUSTICE ROSS:  Which paragraphs in particular?


MR FERGUSON:  Ten, 11, 12 and 13.




MS DOUST:  Your Honour, there's a consistent theme in our evidence that there's an incentive established in the award to classify employees as home care workers for work that might otherwise be disability work and that's a factor we'd ask you to take into account, particularly looking at the 24 hour clause which is relevant in respect of home care employees.


JUSTICE ROSS:  No, no, I understand that issue and that's dealt with in the evidence of another witnesses.




JUSTICE ROSS:  About the incentive and motive and all the rest of it.


MS DOUST:  Yes.  Yes.


JUSTICE ROSS:  But this doesn’t seem to go to that question.  I'm not sure what it - - -


MS DOUST:  The witness is saying at paragraph 10 'It's not always a straightforward task to advise about the appropriate classification' that there is this avenue of uncertainty if you like in terms of the - - -


JUSTICE ROSS:  Yes, but it's not going to the specific point that you're arguing.


MS DOUST:  No, not about the 24 hour clause.




MS DOUST:  But generally in terms of the way that those workers are classified.


JUSTICE ROSS:  There would be nothing to stop you saying that if this has been the experience of the union, that they've had difficulty in advising of the classifications because of some ambiguity, put that and take us to the ambiguity and the problem.




JUSTICE ROSS:  Because really the witness is relaying an experience with one member and I'm just struggling to see how it relates to the specific propositions that you're advancing.


MS DOUST:  Yes, I think one issue that I would want to address, but this is actually through Mr Farthing's, that there's a recent example of an employer doing this - engaging in this practice of classifying workers that are being paid for under the NDIS as home care on a much wider scale and - - -


JUSTICE ROSS:  And he's going to identify the employer?




JUSTICE ROSS:  And what claim is that relevant to?


MS DOUST:  I think it goes to the 24 hour clause because that's only available in respect of home care employees.




MS DOUST:  And we say there's an incentive created by the fact that you - - -


JUSTICE ROSS:  Okay, but what are we going to do with that?  I mean you're going to, what, seek leave to ask questions in the box, identifying the circumstances about a particular employer?  No one can cross‑examine on that effectively today.  If you were going to do it you should have put in a supplementary statement.




JUSTICE ROSS:  Or at least put the other side on notice.  So there are two options.  You can seek leave to put in a supplementary statement or you can bring the witness back, not in the second tranche but at some time in the next week or so.




JUSTICE ROSS:  And they can be cross-examined on that.




JUSTICE ROSS:  But I think it would be unfair to let you go into that level of particularity - - -


MS DOUST:  I'll get some instructions about how we want to proceed.


JUSTICE ROSS:  Yes, and just see - yes, all right.  So just to be clear, that's 10 to 11?


MR FERGUSON:  Ten to 13.


JUSTICE ROSS:  Thirteen, I'm sorry.  We'll come back with that.


MR FERGUSON:  And 26, just the first sentence:


The allowance for sleepovers and the disturbance of clause don't sufficiently remunerate for the work done overnight.


It's just a submission.


JUSTICE ROSS:  Yes.  Yes, that is a submission.  On that basis that would be deleted.


MR FERGUSON:  They're the objections for that witness.


JUSTICE ROSS:  Anything from you, Mr Scott?


MR SCOTT:  No thank you.


JUSTICE ROSS:  All right.  Is that it?


MR FERGUSON:  That's it.


JUSTICE ROSS:  So we're going to give some thought to Eddington, the objection at 25 to 50 and Elrick at 10 to 13.  So if you just give us 10 to 15 minutes to do that.


MR FERGUSON:  I apologise, is Wilcock relied upon as well?




MR FERGUSON:  No.  That's it.


JUSTICE ROSS:  All right.  We’ll be back in 10 minutes.  Thanks.

SHORT ADJOURNMENT                                                                  [10.52 AM]

RESUMED                                                                                             [11.04 AM]


JUSTICE ROSS:  Ms Doust, can we go to the statement by James Eddington the paragraphs of 25 to 50, in particular the statements attributed to the employees, on our reading of that that's largely directed at the broken shifts matter, is that right?




JUSTICE ROSS:  All right.  That's being heard in the second tranche.




JUSTICE ROSS:  On that basis given the quite specific nature of the evidence, it is not contested that it's hearsay, we think it would be unfair to admit it, so we would delete it.  We would give the union liberty to file witness statements from any of those employees or indeed any other employee that addresses the same issue, and deal with any confidentiality orders and matters as they're sought and arise.  We wouldn't publish them on the website until such time as you could redact the names when you file them and then we deal with it on the way through at a mention, and we will deal with the timing of when that might be when you can file them when we settle the directions and timelines for tranche 2.


In relation to Elrick we are not persuaded that either they're relevant and we note the hearsay component of 10 to 13 and we propose to delete those from the statement as well.  All right, can we call Mr Farthing.

<MARK FARTHING, AFFIRMED                                                   [11.08 AM]

EXAMINATION-IN-CHIEF BY MS DOUST                                  [11.08 AM]


MS DOUST:  Thank you.  Sir, is your name Mark Farthing?‑‑‑Yes.


Are you a senior policy adviser for the Health Services Union Victoria Number 2 branch?‑‑‑Yes.


You have been employed in that role since March 2016?‑‑‑Yes.

***        MARK FARTHING                                                                                                                         XN MS DOUST


Have you prepared a statement for the purpose of the proceeding before the Commission?‑‑‑Yes.


Do you have a copy of that statement with you?‑‑‑I do.


At the time of making that statement was it true and correct to the best of your belief and knowledge?‑‑‑Yes.


Thank you.  I tender that.



JUSTICE ROSS:  I note that for present purposes there's no reliance on paragraphs 23 to 26, and I think the previous ruling was to delete para 28.  I don't think there are any other matters arising from the objections in relation to the statement.


MS DOUST:  No.  Mr Farthing, can I just ask you to go to the calculations that are contained in the table after paragraph 21 of your statement?‑‑‑Yes.


Are any of those calculations going to be affected by the recent Federal Budget?‑‑‑Yes, they will be.


Can you explain how they will be affected by the budget?‑‑‑Certainly.  So in terms of each of the components, so the hourly rate, the amount of leave, those things, those salary on costs, those will stay the same for that particular price point, which is standard needs week day.  However, the price cap by the NDIA has been substantially increased, and the increase applies - the increase varies depending on the time of the day that the care is delivered, and also the level of the support worker and the complexity of the participant being served.  So on a level 1 week day, which is where I've made the comparison and done the analysis, that will actually increase by $6.22 per hour.


JUSTICE ROSS:  Is that from the $48.14?‑‑‑Yes, that is correct.  So the $48.14 is the current price cap from 1 July 2019.  It will increase by $6.22.  It will actually increase slightly further than that once the minimum wage case decision is known, because the NDIA will also apply indexation for that.

***        MARK FARTHING                                                                                                                         XN MS DOUST


Have those changes been - are they the subject of legislation to your knowledge, or have they been implemented administratively?‑‑‑They have been implemented administratively.


All right.  Do you have anything else in relation to that, Ms Doust?


MS DOUST:  Yes.  Is that the extent of the increases or are there further increases scheduled in the not too distant future?‑‑‑This was an unexpected ministerial announcement in relation to a variety of pressure groups arguing for an increase to the price.  So, you know, it's hard to say, there could be further increases as well.  What the NDIA - - -


JUSTICE ROSS:  Let's not speculate about the further - when you say it was the subject of ministerial announcement is there a document that sets it out?‑‑‑Yes.  So there is a document on the NDIA website.


Can you provide that through Ms Doust's instructors to her and she can tender that and provide it to the other parties?‑‑‑Sure.  Yes.


Anything else?


MS DOUST:  I am sorry, was that the conclusion of the answer to the question about the increases that are to occur in the future?‑‑‑So the - so those announcements that I just conveyed earlier of that $6.22 that has been announced.  Also as part of that announcement the NDIA noted that it would increase prices in alignment with the minimum wage case decision and consumer price index, as it does every year and has done for the last four years.


When does that occur, does that occur about July the 1st as well?‑‑‑Yes.  So the new price guide always take effect from 1 July.  There was a slight variation this year where a price guide was introduced midway through the financial year and came into effect from 1 February.


Yes, thank you.  Nothing further.


JUSTICE ROSS:  Thanks.  Cross‑examination?

CROSS-EXAMINATION BY MR SCOTT                                       [11.13 AM]


MR SCOTT:  Yes.  Thank you, your Honour.

***        MARK FARTHING                                                                                                                       XXN MR SCOTT


Mr Farthing, my name's Kyle Scott.  I'm the lawyer for a number of employer associations.  I just have a few questions for you.  So I understand that you've worked at the HSU Victoria No. 2 Branch since 2016, is that right?‑‑‑That's correct.


And prior to that you were employed as the senior national project officer in the HSU national office?‑‑‑That's correct.


And the national office is based in Melbourne?‑‑‑It was based in Sydney and then moved to Melbourne.


Do you remember when that move occurred?‑‑‑From memory it was late 2015 November - August 2015 to the best of my recollection.


Thank you.  And your current role, senior policy advisor, do I take it from that that your role does not at its core involve front line dealings with employers and employees.  Is that fair to say?‑‑‑I do participate in bargaining with employers' representatives and I do meet with employees.  It doesn’t form, you know, the core part of my role but it does in relation to, you know, research, policy, interrogating how policy changes are impacting members at the front line.


And at paragraph 7 you indicate your current role involves dealing with Victorian employers providing disability support services?‑‑‑That's correct.


And you helpfully set out a table over the page which is described as a table of the employers in the non-government not for profit disability support services sector with which the union has dealings on behalf of members?‑‑‑Which I have had dealings with on behalf of members, not necessarily the whole union.


Okay, and for your benefit I've counted those.  So there's 22 employers listed there and you also refer to one that's not in the table which is the Victorian Department of Health and Human Services.  So if I include that, that's a list of 23 employers.  So is it the case that your involvement in terms of front line dealing and bargaining and the like is confined to those 23 employers?‑‑‑It would actually expand slightly.  A lot of these employers that were listed in the table are part of a multi-employer agreement which numbers have been going up and down, and there are 36 current parties to that proposed multi‑employer agreement.

***        MARK FARTHING                                                                                                                       XXN MR SCOTT


So of those 36 parties you deal with 23 of them and perhaps a few more?‑‑‑Yes.  I mean, the reason I haven't included every single one of them in the table is that they weren't all present at the bargaining table, only a small - a group of employers, a subset of them.


So do I take it that your direct involvement with these employers was in the context of bargaining for a multi‑employer agreement?‑‑‑Not all of them.  So as I mentioned in paragraph 7, I identified specific employers where I'd had greater in-depth experience through consultative arrangements such as scope, EW Tipping, House with No Steps.


Sorry, I'm just looking for that.  Did you say paragraph 7?‑‑‑Paragraph 7.


Yes, I see?‑‑‑It's at the end of the paragraph.


I see.  So you've had the most in-depth experience with those three employers who are listed in your table of 23, 22?‑‑‑Yes.


Yes?‑‑‑As well as the Department of Health and Human Services.


Yes.  Thank you.  Are you in a position to tell the Commission how many disability support providers there would be operating in Victoria?‑‑‑No, and I don't think there would be any kind of accurate information available in the country on that, purely given the nature of the NDIS and the significant growth.  The number would be changing in a daily basis.  You could find it by going to the NDIS website and looking at the list of registered providers and it breaks it down by Victoria.


Sure.  Obviously I haven't seen that and we don't have that before us.  Would you expect that that list of providers would have more than the 30 - sorry, the 36 employers that you said are parties to that multi‑employer agreement?‑‑‑Yes.


And is that agreement in respect of disability services?‑‑‑Correct, yes.


And do I take it from your statement that your main area of focus is disability?‑‑‑Yes.


As opposed to for example home care?‑‑‑Yes.


Are you able to indicate how many registered home care providers there are in Victoria?‑‑‑I wouldn't have that information available right now.

***        MARK FARTHING                                                                                                                       XXN MR SCOTT


Are you aware whether there's a registered list?‑‑‑No, I mean home care fits more broadly under aged care policy which I'm not very familiar with.


Right, okay.  Do I take it then that you are not directly involved in dealing with employers in Victoria in the home care sector?‑‑‑Not directly.  I - as I make reference to in my statement I have encountered through discussions with colleagues and members about disability service providers who have misclassified, I would argue, disability support workers as home care workers, and that the distinction between a home care provider and a disability support provider is tenuous and ambiguous.


Sure.  Yes.  Just bear with me one moment.  So I take it then, just to close that loop, that it's not your evidence that you've been involved in every home care business in Victoria?‑‑‑No.


And the same would - if we look outside of Victoria the same would be the case?‑‑‑Correct.


Can I take you to paragraph 27 of your statement.  I take it the first sentence there 'In' your 'experience the 24 hour clause is not used by employers', I take it from your earlier answer that your work does not involve focussing on home care?‑‑‑No, it's disability largely.


Now the second part of that paragraph you refer to discussions with employees and employers in the sector and officers of the HSU, and you say that employers are not requiring employees to work 24 hour shifts.  Can I ask you are you able to indicate in terms of union density - and I'm not really referring to employee membership density but more in terms of involvement in businesses, are you able to indicate what proportion of businesses out there in the disability sector, the union, the HSU nationally has involvement?‑‑‑I wouldn't be able to speak on behalf of other branches.  Each branch operates fairly autonomously but within Victoria we operate across a wide range.  I wouldn't be able to tell you the number off the top of my head but I suppose it also relates to the characteristics of the disability sector that there are a large number of small providers, but the vast majority of employees are actually employed by a small number of large providers.


Sure.  Sure.  Do I take it there when you say you had discussions with officers of the HSU, you haven't spoken to every officer of the HSU nationally about the issue of 24 hour shifts?‑‑‑No, I've spoken to colleagues in the industrial team, organisers who themselves sit on, you know, national industrial officer reference groups.

***        MARK FARTHING                                                                                                                       XXN MR SCOTT


Thank you, Mr Farthing.  Nothing further from me.


JUSTICE ROSS:  Any re‑examination?  Anyone else?


MS DOUST:  Yes, sorry.



RE-EXAMINATION BY MS DOUST                                               [11.22 AM]


MS DOUST:  Is everyone done?  Thank you.


Yes, Mr Farthing, you were asked earlier on or the proposition was put to you you were not directly involved with employers in the home care sector and you answered along these lines 'Not directly'.  You referred - you have encountered I think disability service providers being misclassified as home care.  Can you tell me the instances where you've encountered that?‑‑‑Yes, so there was a service provider in Bendigo where it emerged that workers who were for all intents and purposes disability support workers who were providing care both - care and support to participants in the home, in their private homes as well as taking them out to the community, had been classified as home care workers and a colleague of mine in the industrial team identified this and came to a resolution with the service provider that those employees were misclassified.  That is one example.


Can I just stop you on that example for a moment and ask you this?  Was the work that was being performed by those workers work that was funded by the NDIS?‑‑‑Yes.


Thank you, and I think you were about to refer to another example?‑‑‑Yes, so a more recent example, which is very recent and still under review, is a service provider which is not listed in the table in my witness statement called Hireup.  HACC is classifying their employees as "home care workers."  They provide both a range of services to older Australians and people with disabilities, but are primarily focussed on NDIS participants.


Do you have any idea in that instance about the number of employees affected there or the amount of work affected?‑‑‑Not the number of employees.  It's a private company, so there are no public reports on the number of employees that are available, and it's more like an emerging web‑based platform, like an Uber for Care‑style provider.

***        MARK FARTHING                                                                                                                      RXN MS DOUST


I'm sorry, can you just repeat that?  I didn't - an emerging web‑based platform - - -?‑‑‑Yes, so using a website to match workers with the care recipients.


Yes?‑‑‑So similar to like the Uberisation I suppose, for want of a better term, of the sector.


Are you saying in relation to that example they're employees - - -


JUSTICE ROSS:  Just be careful you're not leading.


MS DOUST:  Well, can you tell me what it is - - -?‑‑‑So in relation to that example, it was as I said very recent, within the last couple of weeks, and there are emails going back and forward between Hireup and HACCSU, including other members of the industrial team, about precisely the type of work that is being done and identifying members who have performed work with Hireup to determine whether the classification is appropriately "home care" or Schedule B.  The point that I would make though is that on the website of this particular company, Hireup, it identifies the current NDIA price cap of $48.14.  Other NDIS documents explicitly state that for that particular price cap the level of the worker is assumed - the average level of the worker is assumed to be level 2.3 of Schedule B of the SCHADS Award.


Thank you.  Nothing further.


JUSTICE ROSS:  Nothing further for the witness?  Any questions from my colleagues?  No.  Thank you, Mr Farthing.  You're excused.

<THE WITNESS WITHDREW                                                          [11.26 AM]




MR FERGUSON:  Your Honour, just one issue.  Could I have (indistinct) the liberty to potentially advantage(?) for material or seek leave to have the witness recalled in the event that something fell out of the update?


JUSTICE ROSS:  In relation to the budget point?



***        MARK FARTHING                                                                                                                      RXN MS DOUST


JUSTICE ROSS:  Of course, yes, and indeed any of the other employer parties.  I think if we can get that ministerial statement, that might alleviate some of the issues and we'll see where we go with that.


MS DOUST:  I think, your Honour, that Mr Eddington is the next - - -


JUSTICE ROSS:  Oh, yes - sorry - - -


MS DOUST:  - - - or was scheduled to be coming in from Hobart - - -


JUSTICE ROSS:  Yes, well, why don't we deal with that first - Mr Eddington - yes, certainly.  Sorry, I lost track of time.


MR SCOTT:  Your Honour, I realise that ABI is the only employer party who has been listed as requiring this witness and the other two for cross‑examination.




MR SCOTT:  I have no questions for Mr Sheehy, and it may be the case that I have no questions for Mr Eddington or Mr Elrick.


JUSTICE ROSS:  Yes, in view of the way the things - - -


MR SCOTT:  That's right, yes.


JUSTICE ROSS:  When you say you may not, it would be helpful if we can find out whether you do or you don't.


MR SCOTT:  Yes, of course.  So no in respect to Mr Sheehy.  I'll just quickly have a look at the other two statements.


JUSTICE ROSS:  Why don't we stand down for 10 minutes to let you do that?


MR SCOTT:  Thank you.


JUSTICE ROSS:  And then we'll get the link-up in any event, because we'll at least tell him whether he's required or not, and - - -


MR SCOTT:  (Indistinct)


JUSTICE ROSS:  All right, we'll do that.  We'll adjourn for 10 minutes.

SHORT ADJOURNMENT                                                                  [11.28 AM]

RESUMED                                                                                             [11.40 AM]


MR SCOTT:  I apologise for the inconvenience, your Honour, but I have no questions for the remaining three witnesses who are in our schedule for today.


JUSTICE ROSS:  All right.  We won't go through the torture of doing the link to Tasmania, but my associate will contact the registry staff there to let Mr Eddington know that he is not required.





With the various redactions that we have made on the way through.  Does that complete the witness evidence?


MS DOUST:  Yes, it does.


JUSTICE ROSS:  All right.  As I indicated yesterday we might take the lunch break now and we will resume, subject to what anyone wants to say, at 1 o'clock.  How long do you think you would be, Ms Doust?


MS DOUST:  Perhaps an hour.


MR FERGUSON:  Not very long from my perspective, mainly reply.


MR SCOTT:  I think that's right for my clients as well, your Honour.


JUSTICE ROSS:  All right.  Could I raise one thing for you to - I hate the idea of you going off for an hour and 15 minutes and not doing anything.  To the extent that you're able to - you might be in a more difficult position with this, Mr Scott, because you represent a number of organisations, the others may not - I wanted to know how many employers covered by the SCHADS award you're representing, both Ai Group, AFEI - I am not after the names of these at this stage - AFEI and you, Mr Pegg, and you can do what you can in the time you have.


MR SCOTT:  I will endeavour to do that.  I am not sure I will be in a position to give you an answer for all four of my clients today, but I will give it a red hot go.


JUSTICE ROSS:  Yes.  Even if there's an estimate, it's really that that we want to try and take into account.


MR FERGUSON:  I may need some time to be more accurate with that, just given the way our membership is structured.


JUSTICE ROSS:  Except you have only got a member recently, so I would have thought you would have been in the easiest position.


MR FERGUSON:  We have acquired some very significant interests, but the broader membership there are smaller players throughout that aren't - - -


JUSTICE ROSS:  What prompted you to get involved - what are those members is really the - - -


MR FERGUSON:  So the industry came to us saying that there were problems, and we had raised - I think I (indistinct) the transcript one of our very large members had expressed a reservation and wanted a period of time to check whether we needed to raise a concern.  That public statement then I think resulted in other people.


JUSTICE ROSS:  As best you can I want to know how many you have.


MR FERGUSON:  I appreciate that.  Yes.


JUSTICE ROSS:  We will adjourn until 1 o'clock.

LUNCHEON ADJOURNMENT                                                        [11.45 AM]

RESUMED                                                                                               [1.02 PM]


JUSTICE ROSS:  How did you go in relation to the question?


MR SCOTT:  Yes, if your Honour wishes to deal with that now?




MR SCOTT:  The employer parties have just had a discussion.  I think the position is that most of the employer parties have the information that has been sought.  There seems to be a broad concern - and I don't want to speak on behalf of all the parties, but I may do that anyway, and they can correct me to the extent that I have misrepresented their position - there's a concern that the information that has been sought is of a commercially‑sensitive nature.  Some of the organisations - - -


JUSTICE ROSS:  That can be subject to a confidentiality order.


MR SCOTT:  Yes, sure.  So I think my clients, at least, are prepared to provide the information.  I don't have the information for all of my clients, but I'm happy to do so, subject to a confidentiality order.


JUSTICE ROSS:  Sure.  You can frame an order between you and - and I'll sign it.  I think you've applied for a confidentiality order in relation to one of your witnesses as well.  We're not dealing with that now, but we will do - - -


MR SCOTT:  In this matter?


JUSTICE ROSS:  Children's Services, sorry - yes, it's becoming a slight blur, but in any event, we'll deal with that.


MR SCOTT:  My friend has indicated that it may be subject to undertakings as well.  Perhaps the most efficient course is that we have a discussion and proffer some form of order.  I think there's a potential two options.  One is that the information be given in a confidential hearing, the transcript to be marked, "Confidential, Private Court room" - - -


JUSTICE ROSS:  Yes, we could certainly do that.


MR SCOTT:  I think there are two options.  One is that - - -


JUSTICE ROSS:  Well, the advocates - the union advocates can, if you give an undertaking not to disclose the information - it will become apparent why I'm seeking it shortly - but do you have any difficulty with doing that?


MS DOUST:  I'm a bit lost I must say, your Honour.  I'm sorry.  I had understood your Honour was asking about the numbers of employees - - -


JUSTICE ROSS:  I am, yes.


MS DOUST:  - - - that they represent?




MS DOUST:  And the numbers are commercial‑in‑confidence, or said to be commercial‑in‑confidence?


MR SCOTT:  That's right, yes.


MS DOUST:  Right.


MR SCOTT:  Yes, at least two of my clients, with perhaps more, are direct competitors in terms of the services that they offer.


JUSTICE ROSS:  But why is that a problem if you're just telling us how many members you have?  How many employees do you represent is what I want to know.


MR SCOTT:  Yes, I understand that.


JUSTICE ROSS:  And I don't necessarily - I don't need them split down, if that helps.


MR SCOTT:  Are you happy with the total number in terms of my four clients?




MR SCOTT:  Well - yes.


JUSTICE ROSS:  No, four organisations.


MR SCOTT:  I have four clients, yes.  In respect of ABI, I don't have the data for ABI now.  I have in respect of the NSW Business Chamber, perhaps a common theme in this hearing, is issues with data.




MR SCOTT:  I have a number.  It's not the complete number of members.


JUSTICE ROSS:  No, let's just get - I just want to get an order of magnitude really.


MR SCOTT:  Sure.  So between Leading Age Services Australia, Aged and Community Services Australia, and the NSW Business Chamber, but it's not exhaustive of the Business Chambers membership - - -




MR SCOTT:  - - - 848 is the total number.


JUSTICE ROSS:  Yes, okay.


MR SCOTT:  There will be a small degree of crossover, as you would expect in terms of overlap, but that is the global figure for those three clients that I represent.


JUSTICE ROSS:  All right, thanks.


MR FERGUSON:  In the interest of 10 employees, your Honour.




MS N SHAW:  I might need to seek further instructions.  They were wanting to give it on a confidential basis.


JUSTICE ROSS:  About the number?


MS SHAW:  About the number.




MS SHAW:  I was advised that it was commercially‑sensitive information.


JUSTICE ROSS:  On what basis?


MS SHAW:  Potentially to competitors, I believe.


JUSTICE ROSS:  Well, yes, I'm struggling a bit, but okay -Mr Pegg?


MR PEGG:  National Disability Services would have somewhere between 900 and 1000 employees covered by the SCHADS Award.


JUSTICE ROSS:  Okay.  As you've alluded to, it is about the data, and one of the ways of us informing ourselves in relation to the matters is to survey your members, and so I have for your convenience prepared a survey and it identifies some of the issues and gives us some information about some of the issues before us around the size, the sector, number of employees.  It asks, for example, to the extent they employ any casual employees, how many of them over a designated period work more than 38 hours a week or on a Saturday or Sunday, asks them a question about their funding arrangement, asks a question about the 24‑hour care shift.  There may be other questions.


It's set as a draft, and we propose to give all parties until 4 pm next Wednesday to make any comments on the questions.  We have sought to - we're not saying that the questions should be confined to the ones we have identified, but we have sought to limit the response burden and to make it as simple as possible to fill in, but we think there is a need to find out some information about the sector.  And we don't really require, and we don't even require you to do this, we certainly don't require you to compile any responses.  We just want the raw data back.  We will want you to identify on a confidential basis anyone who doesn't respond, because we may summons them and require them to give direct evidence.  Even in terms of the distribution of it, the Commission is content to distribute it ourselves and put it in a reply‑paid envelope and get it back, if you give us the names and addresses of the members.  But if you would prefer to do it directly, and no doubt all of you have mail out systems to members and you're able to get the material, so whatever way is the most convenient for you.


It's probably easiest for Ai Group, and I suspect AFEI, because you don't have many, but for the parties you represent, Mr Scott, there are more, and Mr Pegg, you have more, but I'm assuming you have a mail list as well that - and we can provide it electronically so that they can fill in whatever the form of the survey is at the end.  If you can say whatever you want to say about it by 4 pm next Wednesday, we'll make a decision about it and let you know.  Have a think about things such as - look, we have picked a four‑week period.  There's nothing magic about the period.  It's relatively recent.  It has got that going for it.  Sure, it might be more accurate to pick a 12‑month period, but I don't want the administrative burden on an employer who has to go through 12 months of records.


The breakdown of employees - I put contract employees in there because the Workforce 2016 report that has been tendered in these proceedings on aged care identifies that that's often used in this sector to cover - it's said to be used to cover skill gaps and shortages, and that's why that's there.  Rather than getting into a debate about whether someone is or is not a casual under the WorkPac definition, it's rather that they're in receipt of a loading and don't get paid leave.  And the 24‑hour care shift, well, that's really have they used it in the last 12 months, and if not - 12 months might be seen as being administratively too burdensome, but the evidence seems to be that it's not used that often and I thought if we just pick a four‑week period that might not be particularly useful.  There may be other questions.


It is said there's an evidentiary gap in relation to the first aid allowance.  I'm not sure how else one gets that information other than asking the question.  So you may want to give some thought to that as well.  And also give some thought to, well, what - I don't think it's a particularly complicated thing for someone to get the data.  As I say, we don't want you to compile it.  We just want you to send it in:  how many did you sent out; how many did you get back; who didn't respond, is really the nub of it.  Then we will put it together in a report that all of you can then comment on.  But have a think about well how long.  Once we finalise the survey instrument and you've got it, and you send it, you'll have a period to send it out and they must respond by a certain period.  With these things the natural inclination is always to ask for a long period.  I think that's a mistake.  Mainly it's a survey instrument.  They're either going to do something about it pretty quickly or they're not, and usually a follow up might be required, so give some thought to that, and discuss those things amongst yourselves, you may have a common position about them.  All right, Ms Doust.


MS DOUST:  Thank you.  Your Honours, we have three issues to deal with today; the 24 hour care clause.  The second is what I will refer to as the disaggregation of the casual loading, and the third is the first aid certificate renewal clause.


Can I deal first with the 24 hour care clause issue.  The HSU seeks the removal of clause 25.8 from the award.  This issue is dealt with in our submissions at paragraph 64 to 66, and the first contention there at 64 is that the clause is unclear and rarely used and it should be removed and extended periods of care dealt with in accordance with the provisions otherwise in the award.


As to the proposition about rarity the evidence from our witnesses is Mr Farthing, paragraph 27; Mr Eddington at paragraph 51, is not frequently used in Tasmania.  There's one employer with such a provision in their enterprise agreement.  Mr Sheehy at paragraph 10 is not aware of the clause being used, and Mr Elrick at paragraph 28 also not being aware of the use.


I concede what the Bench is doing by way of the survey, so obviously my comments at this stage are limited because none of that material has now been obtained, but on the evidence as it currently stands from four union officials who deal across Tasmania, Victoria and New South Wales and who would be expected to know of the practice there's no positive evidence of the use of the 24 hour shift clause as such.  The existence of a clause in an enterprise agreement by itself of course is not evidence that those shifts are necessarily being worked, nor is it evidence that they are being worked in accordance with the terms of the clause.  But there's really very little upon which the Commission could draw any conclusion as to this being a frequent or necessary practice within the industry on the evidence as it currently stands.


The second contention that we make is that when one looks at the clause the clause itself leaves employees open to exploitation.  It's inconsistent with the sleepover clause, and there's a great deal of uncertainty as to how it operates.  All of these criticisms of the clause are criticisms that can be made on the face of the clause, and I would ask your Honours to look at clause 25.8 if your Honours have a copy of the award in its current iteration.  I am not referring to the exposure draft at this stage.


JUSTICE ROSS:  Yes.  No, that's fine.


MS DOUST:  Just doing a comparison of 25.7, the sleepover clause and the 24 hour clause, the minimum shift length for a sleepover clause is eight hours.  For the 24 hour clause it's 24 hours.  In the sleepover clause there's effectively a right to rest - - -


JUSTICE ROSS:  I am sorry, the eight hours issue in the sleepover clause can you just elaborate on that, where is that?


MS DOUST:  Looking at (c), at 25.7(c):


The span for a sleepover will be a continuous period of eight hours.


JUSTICE ROSS:  Yes, all right.


MS DOUST:  And I will develop that because there is a provision about it being attached to other work, but in terms of the minimum it's eight and 24.


In the sleepover clause there's a right to rest effectively, which is protected by there being a minimum one hour payment at overtime rate where there's an interruption of that rest.  So that is something that is squarely acknowledged and recognised in that clause.


By way of contrast there is nothing in the 24 hour care clause that protects that capacity to rest over the 24 hour period, when one would think it was more important given the extended period during which the employee is required to be available for duty in the client's home.  As to being available for duty in a client's home we would say that almost without exception that would involve the worker being present at the client's home.  If not present then very nearby if one is to be available to perform care, and we say that is a level of burden on the employee that is far greater than one sees in on-call provisions in a number of awards of the Commission.


Just to illustrate what I say about the absence of any guaranteed right to rest in clause 25.8 one can imagine a scenario where under this clause the worker could be required to attend to some sort of care task for a half hour every two hours over the 24 hour period, or at such intervals that made it impossible to get the sort of rest that might be expected for an adult worker.


Can I just deal next with the minimum payment when we look at a comparison.  The minimum payment for - - -


JUSTICE ROSS:  Just before you go to that if we deal with the rest issue, what's the interrelationship do you say between the 24 hour care clause and the clause dealing with breaks in 27?


MS DOUST:  There is no interrelationship.


JUSTICE ROSS:  Why wouldn't they, if they work in excess of five hours, be entitled to the break, and if they're required to work through it be paid overtime?  The break clause doesn't seem to be expressly excluded from the 24 hour care clause.  The reason I raise it is I think ABI had, I think on Monday, although it's starting to blur a bit, and I think Mr Pegg's organisation addressed this as well, that the proposition that, well, addressing the proposition advanced by United Voice, I think, that 25.8 is silent if they work more than eight hours.  So what do they get paid if they work more than eight hours, and it's put back, well, the overtime clause would be applicable in those circumstances.  A bit of a debate from NDS's point of view.  The first two hours over eight would be paid at the 155 rate, and then time and a half on top of the 155 after two hours, as I recollect, but really for present purposes the point is if the overtime clause operates why don't the other clauses operate.  They're not excluded.


MS DOUST:  But if one looks at the meal break clause for example each employee who works in excess of five hours will be entitled to an unpaid meal break of not less than 30 minutes, and that's - - -


JUSTICE ROSS:  But where they're required to work during a meal break and continuously thereafter - and even - - -


MS DOUST:  The question is how one describes the work with the 24 hour shift.


JUSTICE ROSS:  No, I agree with that, I am just not sure, that's why I have asked the question.


MS DOUST:  I am sorry, I am directing it initially to the question about rest and whether one is guaranteed a rest break.




MS DOUST:  So the difficulties in terms of rest, even when one looks at clause 27 is this, that the first question is first of all when have you worked in excess of five hours, have you worked once you have done the first five hours of the 24, and if that's - or do you work only once you have performed the - - -


JUSTICE ROSS:  But either way - I accept that there are two ways of looking at it and I understand what you say about that, but let's say it's the eight hours and say then when you're at the five hour mark why wouldn't 27 kick in?


MS DOUST:  If the work that your Honour is referring to is the provision of eight hours of care - - -


JUSTICE ROSS:  Which is - yes.


MS DOUST:  And one could hit the five hour mark, 16, 17 hours - - -


JUSTICE ROSS:  No, no, I understand the practical problem.


MS DOUST:  - - - into the shift.


JUSTICE ROSS:  I'm just trying to work out assuming you do at some point.




JUSTICE ROSS:  Then - - -


MS DOUST:  All that one gets from 27.1 is a meal break of not less than 30 minutes.




MS DOUST:  So that doesn't give an opportunity, a definite opportunity for rest and repose in the course of that 24 hours.


JUSTICE ROSS:  And I suppose it begs the question about the operation of (c) as well.




JUSTICE ROSS:  And tea breaks.




JUSTICE ROSS:  And Saturday and Sunday work.  What happens if the 24 hour care shift is on a Saturday or a Sunday?




JUSTICE ROSS:  Does anyone have an answer to that?


MS DOUST:  We would say that - - -


JUSTICE ROSS:  If they're ordinary hours of work - - -


MS DOUST:  It says 155 per cent.  The word 'appropriate rate' is used there which is a different terminology to elsewhere so we would say that that must take into account the weekend loading in respect of those eight hours.  Yes.




MS DOUST:  But our point about the rests remains that - - -


JUSTICE ROSS:  I understand the fundamental point.




JUSTICE ROSS:  I was really just going to - - -


MS DOUST:  How it would operate in practice.


JUSTICE ROSS:  Yes, or what's the interaction between this clause and the other clauses?


MS DOUST:  There is little, and my point that I have yet to make about the way that this clause came to become part of the award is that it's sort of something that's been attached on, as often happened in award modernisation.  A bit sort of Frankenstein's monster, you know, these are the bolts in the neck, your Honour.


JUSTICE ROSS:  But your fundamental point about the breaks is that, well, you wouldn't know when it would arise because it's not going to be necessarily eight hours of continuous care.


MS DOUST:  No, and in fact if eight hours of continuous care was required then that could be satisfied with an eight hour shift.




MS DOUST:  And why would you roster for a 24 hour shift?  The reason for doing so is because you want someone to be performing work over that period, if this is in fact practice out there.  Yes, so what happens as between the sleepover clause and the 24 hour care clause is that the clause where there's a greater demand on the worker in terms of the extended hours and the burden of performance of the task has less protection for rest.  And that is an inconsistency that we say the Commission would think is extremely counter-intuitive, to put it at the lowest point.  In terms of payment for the work, what one gets in a sleepover clause is the allowance which is $47.04 per night, because that's calculated on the basis of the standard rate.




MS DOUST:  And I think there's an allowances sheet somewhere that the Commission can have access to.




MS DOUST:  And plus one gets at least - because of 25.7(f) one gets at least four hours' pay in addition, whether rostered or not.  So the minimum payment one could receive even working the minimum shift of eight hours would be, if you took home care level 3, would be in the territory of $137.89.  By way of comparison your eight hour payment at 155 per cent for the 24 hour shift for the same classification would be 281.64 so, roughly double even though in the sleepover shift one mightn't be required for the four hours, and there's a much more extended period involved.  What we say that creates is a perverse incentive for employers to use the 24 hour shift.


JUSTICE ROSS:  But isn't the answer or the argument against that is 'Well, your proposition is no one is using it' so if it's a perverse incentive it's not working very well.


MS DOUST:  It might not be but it shouldn't be there.  Really what it's offering employers is a bulk discount for tying up a worker for more hours, and that we say is contrary to the approach that's taken otherwise in the award where overtime is compensated with loadings which are designed in part to discourage employers from adopting those practices of working people for extended hours.  There's a - I'm sorry, your Honour?


JUSTICE ROSS:  No, no, I'm just musing.


MS DOUST:  I thought there was a question on the tip of your Honour's tongue.


JUSTICE ROSS:  No, no, no.


MS DOUST:  One can see as well there's an inconsistency between the sleepover clause and the 24 hour clause in terms of facilities.  For the sleepover clause there's the provision for a separate room, appropriate facilities and free board and lodging.  In the 24 hour care clause it only provides that there will normally be the opportunity to sleep and where appropriate a bed in a private room will be provided for the employee, and we don't think it's consistent to have, as we say, sort of a lesser facility for the employee who's being asked to do more rather than less.


So far as additional work is concerned, performing work additional to that which is contemplated in the clause, in the sleepover clause where there are interruptions - and these are at 25.7(e) - that work is paid at overtime rates on the basis of a minimum one hour.  With the 24 hour care clause there is no provision in respect of payment for work additional to the eight hours of care and the question as to whether or not any overtime would apply is a vexed one when one looks at the way in which overtime is calculated.


Looking at clause 28 one can see for a full‑time employee the measure is work done in addition to rostered ordinary hours on any day and the notion of ordinary hours isn't quite apposite in 24 hour care where the entire period - it seems to be a hybrid between working and not working during that period.  But at the very least we say the lack of clarity there is not consistent with the modern awards objective.  When one looks at part‑time and casual - - -


DEPUTY PRESIDENT CLANCY:  How could you say that, Ms Doust - sorry - if you're looking at 25.8(a)?




DEPUTY PRESIDENT CLANCY:  'The employee is required to provide a total of no more than eight hours of care'.




DEPUTY PRESIDENT CLANCY:  How do you say that's unclear in trying to read that with 28.1(a)?


MS DOUST:  We say that as a matter of reality there will arise occasions when an employee is called upon in the circumstances of a 24 hour shift to perform more than that work, just as they might during any other shift.  We think that there will be in those circumstances a great deal of can I just say moral pressure on the employee to perform the work in circumstances where they are providing personal care for a client in their home and - - -


DEPUTY PRESIDENT CLANCY:  But why wouldn't then the overtime provision operate from 28.1(a)(i)?


MS DOUST:  Because overtime is conditioned in that clause where it's a full‑time employee.  Overtime is conditioned there on the performance of work in addition to rostered ordinary hours on any day.  So the question arises as to which are the ordinary hours in a 24 hour shift, whether or not that is the entire 24 hours or whether or not that is the eight hours, and whether in fact those hours are rostered in any sense when the hours are being defined by reference to the care plan relevant to the client.  So that's the case for full‑time employees, and obviously in this industry there's a large number of part‑time and casual employees, and for those employees, overtime arises under clause 28.1(b), and there one has to exceed the 38 hours per week or 76 hours per fortnight to move into overtime territory, or time worked exceeding 10 hours per day.


JUSTICE ROSS:  Was it your submissions that gave that example of if the 24‑hour care shift was required towards the latter end of a part‑time employee's working week?


MS DOUST:  No, I think that was United Voice submissions on this issue.


JUSTICE ROSS:  Right, sorry.


MS DOUST:  And that went to the difficulty in those circumstances of protecting an employee's right to refuse additional work, if they had performed a certain number of hours already in the week and then were asked to perform a 24‑hour shift at the end of that period, and what might occur in those circumstances where the employee is asked to perform more than the eight hours of work that is contemplated in 25.8.


JUSTICE ROSS:  Thank you.


MS DOUST:  So those are the concerns about the way that the clause operates, and we say that it sits very inconsistently with the sleepover provisions.  We submitted in our written submissions that the clause does not meet the modern award objective, because it provides for remuneration at a discounted rate during a period that we say all rarely meets the definition of work.  We regard the entire 24‑hour period as being work performed by an employee, and so to allow for such an extended period of work without providing additional remuneration is inconsistent in particular with section 134(1)(da), which refers to that need for additional remuneration.  And we say that it is not necessary in order to deliver care to those requiring it around the clock to have a clause that entitles an employer to require these sorts of hours of work, and that rather than extending the employer a bulk discount for using an employee for more hours, employees should be compensated for the increased disutility and unsociability associated with having those extended hours at the disposal of the employer.  I think it's said in some of the submissions that employees are able to access their own phones and do some online shopping while they wait.  Well, that has all the attraction of spending time sitting in a doctor's waiting room, and we say the Commission wouldn't give that submission any real serious weight, looking at the modern awards objective.


Can we finally respond to the submission of the ABI at clause 6.6 to this effect, that provisions relating to 24‑hour care have been a common and important feature of industrial regulation in the SCHADS industry for many years?  That's probably a statement that conceals a great deal more than it reveals, I say respectfully, and I think it's important to explore the bounds of that statement by reference to the pre‑modern awards, and we've provided a folder of the relevant awards to the Commission.  Your Honours will see that the first document in that folder is an index, and you will see a reference there to all the documents that are included in the Dropbox folder, or in the hard copy folder, if the Members are fortunate enough.  The 13th document in that folder is the decision of the Full Bench of the Australian Industrial Relations Commission, as it then was, in 2009, as part of that award modernisation process, and it attaches - and this is at page 21 to that document - a list of the awards in the Social and Community Services Sector, which were the subject of that modernisation process.  Are the members able to locate that list?


JUSTICE ROSS:  And those are the instruments that are in the folder?


MS DOUST:  No, not all of those instruments are in the folder, because that's a vast number of instruments.  I'll get to that, your Honour.  If I can ask the Members of the Bench to go now to the 12th document in the folder?  That's a comparative table of the pre‑reform awards.


JUSTICE ROSS:  And you've highlighted the ones that are referred to in ABI's submissions in these proceedings?


MS DOUST:  We've highlighted it in taupe as to which of the ones referred to by the ABI, and we've made some notes in a right‑hand column about whether or not there was a 24‑hour care provision in the award, and the Commission would observe, having regard to those awards, that there's a large number of awards where no such provision existed.  The next observation we wish to make is that we don't think, with all due respect, that the awards relied upon by ABI in support of its case rarely include a 24‑hour clause in the terms of what now appears at clause 25.8, subject to one important exception that I'll go to in due course.  But can I ask the Members of the Commission to go first to the first award, which is document 1 in the folder, and this is the Charitable Sector Aged and Disability Care Services State Award 2003?




MS DOUST:  It's a NSW award.  Can I ask your Honours to look at page 26 of that document, and these are the page numbers that are in the top right‑hand corner of the page.




MS DOUST:  At clause 16 on that page, you can see there is a title, "Live‑in housekeeper - remuneration."




MS DOUST:  The short point to be made about this award is that it provided for the classification of live‑in housekeeper.  Those workers resided at a client's premises.  If you go over the page to page 27, one can see for grades 1 and 2 that the employee would be performing duties at agreed times of the day, that at grade 3 a greater level of availability is suggested, and there's an additional 3.5 per cent loading in recognition of the special pressures, responsibilities and client inherent in that grade 3 work.  Occupation at this role involved a penalty of between 30 per cent and 53.5 per cent on top of the classification rate.  So it's in the territory of the penalty that's associated with clause 25.8 of the current award, but there are some key differences.  One key difference is this:  for part‑timers performing this work, and they're referred to down on that page 27 at (ii)(A) 'Permanent part‑time employees' one can see down the bottom there just before (b) 'Casual employees', 'The minimum payment for work done under this paragraph shall be two days at the daily rate'.  So a part‑timer could really only be engaged for no less than two days, and if you scroll down through the casual - - -


JUSTICE ROSS:  Yes, it's a minimum payment of one day.


MS DOUST:  But one can see just above the heading - just above 17 'Work performed under this paragraph should be for relief, emergency and temporary purposes only'.  So a casual could only be brought in in circumstances of dire need, if you like, and there was an additional loading for casuals.  Now the important point about these roles is that under clause 32, which appears at page - no, sorry, can I ask you to go to page 30 first, the annual leave provision which is clause 19.  At (b):


Live-in housekeepers employed and paid as such shall accrue an additional week's leave for every 12 months of continuous service on a pro rata basis.


So there's that additional advantage.  Can I ask you now to go to page 41 of the document to clause 32?




MS DOUST:  So that deals with the live-in housekeepers and they're provided with full board and lodging free of charge.  So these roles in the main are either full‑time roles where there was someone living in on a permanent basis or if they were part‑timers there was a minimum of two days of work on that basis, full board and lodging provided.  Very different, we say, to having a general capacity to allocate an employee not otherwise living in premises to just be slotted in somewhere for 24 hours on end.


Obviously the situation of a live-in housekeeper where they have their own room, they have their own things in the room, they will no doubt have a bed to have a rest on, they'll have everything else they might need to take full advantage of any opportunity they have for repose. There's the capacity there to negotiate the times of day on which the work is performed such that there might be some sort of accord reached about hours on which the employee can be away from the premises and hours in which the duties are expected and so on.


Very, very different, we say, to what's provided for by clause 25.8 and there wasn't any general capacity under this clause to pick up your home care employees who are a different classification and to put them down to perform the 24 hour shift anywhere.  So we think there's a real difference between being in a live-in role and performing a 24 hour shift.


COMMISSIONER LEE:  Because this is a classification in its own right?


MS DOUST:  Yes.  Now, the next document in the folder is the Aged and Disability Care Services (State) Award, Charitable, Aged and Disability Care Services.  The provisions are if not identical then virtually the same and we make the same point about that.  It provided for a classification of live-in housekeeper and there were the same sorts of protections associated with the performance of that role.  Can we go to the third document which is the Community Services Home Care Service of New South Wales Care Workers Award 2002?  That applied to employees of the home care service of New South Wales.


If I can ask your Honours to go to page 28 of that document.  Under 19.3 - sorry, 19.3(1)(d) live-in housekeepers automatically went to grade 3 so they went to the highest classification.  If I can ask you to go now to clause 23 which is at page 34.  There's a clause there, 23.1:


Overnight care.  An employee other than a live-in housekeeper shall be paid the appropriate classification rate at ordinary time while staying overnight at a client's home but not actually working.  Payment for time actually worked shall attract the appropriate loading specified in clause 26, penalty rates for ordinary time or 27, Overtime, and 28, Public Holidays, of this award ...


So not in the same terms as the 24 hour clause in this award enabling that very extended period with no compensation for most of the period.  In this award - and I don't ask your Honours to go to it, but clause 35 involved - - -


JUSTICE ROSS:  We're still in the Community Services Home Care Service of New South Wales, or?




JUSTICE ROSS:  Right, yes.


MS DOUST:  And in that award at page 60 there's a reference to the loading for the classification of live‑in housekeeper under this award at clause 35 that those employees accrued an additional week's leave and part‑time employees - this is all at page 60 and 61 of this document - the part‑time employees attracted a 25 per cent penalty on top of the live‑in housekeeper loaded rate and had a minimum payment of two days at daily rate.




MS DOUST:  So there were some measures to ensure that these extended shifts weren't worked on ad hoc basis, if you like, or had that effect or would have that effect we say.  Can I go to the next document, the Community Services Home Care (ACT) Award?  This provides for a classification of live‑in housekeeper, this is at clause 16 and page 24.  The rates are analogous to that in the earlier New South Wales awards that I took your Honours to.  There was a top loading of 53.5 per cent on top of the base rate and again the classification of live‑in housekeeper accrued an additional week's annual leave a year.  This is at page 26 at clause 16.6.9 and at 16.6.8 it provides that all meals are either provided to an employee or reimbursed.


So in the event they weren’t provided, the employer was to reimburse reasonable amounts in respect of those meals, and we say board is presumed under this award.  So in addition to meals, lodging is presumed because that's the basis upon which the compensation rate - or that's what the rate is described as compensating the requirement to reside at the employer's home, and I think that's in the rates.  Yes, where the loadings are referred to in 16.6.4 there's a reference to the loading being in respect of the special pressures, responsibilities, et cetera, in the work of a live-in housekeeper, and the requirement to reside at the client's home and to perform work and so on.  It's apparent there that one is provided with a place to live as well.


The next award in that folder is the Disability Services Award South Australia, and there's provision in this award, or there's reference in this award to live-in arrangements at clause 1.6 at page 7 of that award, and at clause 1.6 one can see that live-in arrangements under clause 8.3 is a reserved matter.


So it's not clear that those arrangements ever really were refined to any extent, but the arrangements themselves in that award are at clause 8.3.2, and that is at page 56 of that document.  That had a provision in respect of employees who are required by the employer to live on the employer's or the client's premises other than sleepover and being excluded from other provisions of the award.  There the arrangement that's referred to is a live-in arrangement, it's not a right to roster for 24 hours or a right to allocate for 24 hours.  The Bench couldn't draw anything from it in the way of establishing any real sort of precedent or principle in respect of - certainly not in respect of 24 hour arrangements.


The next award is the Disability Support Workers Award - State 2003 Queensland, and at page 4 of that document one can see at clause 1.5.5 there's a reference there to a live-in arrangement.  Do your Honours have that, it's under the definitions, 1.5.5?




MS DOUST:  That's an arrangement where an employee is required to live in the same premises as a client for a period in excess of 68 consecutive hours, and so on.


An employee must be provided with full board and lodging whilst required to live in the same premises as the client.


Down the bottom of that definition:


This definition of live-in arrangement shall operate on a trial basis for a period of 12 months and the parties of the award will jointly report back to the Queensland Industrial Relations Commission during this period if necessary, but no later than 12 months.


So we make the same point that is made in relation to the South Australian award that this was at a perhaps undeveloped point at the time of the modernisation process.  But in any event under that award there was no general capacity to roster someone on for 24 hours of work at a discount rate.


I come to the outlier in these arrangements.  That's the Home and Community Care Award in Victoria, and that really seems to have been the only - that seems to have been where this clause is derived from, and that award has at clause 5.10 provision about 24 hour care, and one can see the clauses in similar terms to what is now being adopted in the award.


That became as I understand the common rule award in Victoria in the mid-90s an then became a common rule Federal award in about 2005.  I am unable to find anything where there has been some detailed consideration of the inclusion of the clause.


JUSTICE ROSS:  The order was made in transcript:  "Further to a decision issued by the Commission in transcript on 8 February 2001."




JUSTICE ROSS:  We will try and track down the transcript.  I did a number of these myself and they were usually reflecting consent positions reached by a collection of employers and the union, and I doubt if there will be much on that transcript.


MS DOUST:  I haven't been able to find anything, but I don't put myself forward as the most skilled person in this sort of area.  As I understand the position in that period the bulk of the employees performing home care were covered by agreements that covered the state departments, and I have been unable to find anything that goes to the operation of this award as such or the operation of the award clauses as such, but that definitely seems to be sort of the source of the clause.  We say it's very much an outlier when one looks to the bulk of the other provisions and certainly much less protection in that clause than obtained where there were other arrangements that contemplated an employee perhaps performing work across a 24 hour span, which I think is the highest one can put the live-in housekeeper.  That's at the higher grade.  There's a reference to availability there.  But we don't accept that the other awards really are on all fours with what ended up in the modern award as part of the modernisation process, and this probably wouldn't be the only example where disparate provisions end up in awards.


If the point is taken against us that perhaps the HSU didn't shout long and loud enough about it at the time, well, that might be a criticism to be made about what occurred at that time, but it's no answer, we say, to the proper application of the modern award's objective, particularly in the context of a four yearly review which is designed in part to ensure that these modern awards as part of that process of homogenising the awards are working appropriately and in accordance with the objective.


Can I finally just for completeness sake go to the last two awards.  There's a Miscellaneous Workers Home Care Industry State Award New South Wales.




MS DOUST:  That award like the other New South Wales awards earlier referred to includes at page 5 and following wage rates for the classification of live-in house worker, which involved a loading of between 30 and 53.5 per cent on top of the classification for a field staff worker.  So the level of loading is consistent with the earlier two awards that I took members of the Bench to.


The rate for part-time workers is one-fifth of the weekly rate with again that protection of a minimum payment of two days at the daily rate.  So there wasn't the capacity just to pick up employees and have them perform a 24 hour shift, and again in this award, and this appears at page 8, one can see at clause 5(j):


Accommodation is to be provided free of charge.  Live-in house worker shall not be liable to pay or contribute towards rent, board and lodging charges, fees or accommodation costs while living at the client's premises.  This includes charges for gas, electricity -


et cetera.  And consistent with the earlier award at clause 5(k), annual leave, a live‑in house worker employed and paid as such accrued an additional week's leave for every 12 months of continuous service.  So in a similar position to shift workers now, there was that recognition of entitlement to additional leave.


Finally, the Social and Community Services Employees State Award (NSW) had provision for a live‑in employee as well at clause 8.  Those employees - and this is at page 7 to 8 of the document - they contemplated that the employee would be provided with a place to live seven days of the week, so they actually lived on the premises.  That's at clause 8.1.  There were protections about having periods rostered off duty over a 28‑day period, so there was eight days in a 28‑day period.  But the employer could deduct under that award an amount in respect of board and lodging of $87.50 or 20 per cent of wages, and so again there, the 24‑hour availability, or working across a 24‑hour span, was something that was only contemplated in a situation where the employee was living on the premises seven days a week.


So to summarise - - -


JUSTICE ROSS:  What do you say about the last two awards, Disability Services Award (Victoria) 1999 and Social and Community Services ‑ Victoria ‑ Award 2000?


MS DOUST:  Yes, sorry, just a moment.  I'll just bring those up.  Yes, I don't think we referred to them, because they weren't relied upon by ABI, but I don't think that they include a 24‑hour clause in any event.  No, there's an on‑call allowance in that award.  Can we come back to that?  Yes, they were the two common rule Victoria awards, and I don't think they included anything relevant in the way of a 24‑hour clause comparable to the HACC Award.  So looking at those provisions in Queensland and South Australia, we say the arrangements contemplated live‑in workers, but they weren't fully developed.  Nothing we say there that's analogous to this 24‑hour clause.  In Victoria we do have that 24‑hour clause.  It's a bit difficult to understand how that came about and the rationale for that.  In NSW, as we have noted, those provisions about live‑in housekeepers, but associated with a number of different protections for those roles, which were an ongoing classification, taking on that obligation involved making an ongoing decision about living somewhere and having an ongoing relationship in that particular workplace, and importantly, in those NSW provisions, there was that recognition about the work being performed at the agreed times.  And there was the protection, of course, for part‑time employees in those NSW awards about a minimum for two days.


So what we now have under the award is a requirement effectively to work 24 hours, and I use the term "work" in the sense we've made that submission that one is required to be present and available over 24 hours at rates which are equivalent to live‑in housekeeper rates in NSW without the protection of board and lodging, without additional leave accruing, without that work being carried out in accordance with an established or agreed pattern.  Rather, what is happening is the work is not in the employee's own residence; they can't retire to their own space between tasks or leave the premises as they would be entitled if they were in a live‑in role, or go to their own room, and they're not provided with meals as a matter of right.  So we say this is a clause that's not consistent with the modern award's objective, and particularly when one takes into account how the sleepover clause operates to facilitate overnight care for clients.  If the clause is deleted, then reference to the clause in 25.7(a) should be deleted.  I think that's just a technical issue, and I think - - -


JUSTICE ROSS:  Well, I think that's common ground.  In the event you succeed on your deletion claim, the other variation would follow.


MS DOUST:  Yes.  Can I just make a few points in reply to the submissions of the employers?  The NDS at paragraph - paragraph 24 of the NDS submissions says that the clause restricts the amount of work to that prescribed by a care plan.  We're not sure that that's necessarily the case when one looks at the clause.  What is required is the employee is to be available for duty for a 24‑hour period.  The employee is required to provide the client with the services specified in the care plan.  It's not clear as to what else may be required of the employee in that period.  Then the limitation is the employee is required to provide a total of no more than eight hours of care.  So that's the total period.  So whether or not there are some other duties that may be required under this clause is uncertain.


I've dealt with the question of overtime, and that arises in the submissions of ABI at 6.25 and following.  We had submitted that there was a difficulty with the clause because of a lack of certainty about the hours of work or the hours during which the employee was required to perform the tasks.  The ABI responds to that by saying there is certainty because the worker knows the 24‑hour span.  That, we say, rather reinforces our argument about the nature of this arrangement involving effectively the worker being at work for that entire 24‑hour period.  I have already responded to the ABI's submission at clause 6.3.5 about on‑call arrangements.  We think this is very different to an on‑call arrangement due to that requirement of availability, and due of course to the nature of the work - someone is being called into a workplace to fix an IT system or something like that.  It's a rather different scenario to needing to be available to perform personal care for an elderly person or a person who may have a disability who falls within that home care stream.


It is put against us at 6.38 of the ABI's submissions that there's no evidence about the value of the work that's being performed by these employees.  We say the evidence is the hourly rates and the penalty rates that are otherwise prescribed under the award, that the Commission knows the value of the work that's being performed by workers under this award and there's no evidence required for the Commission to conclude that there is disutility for a worker associated with the requirement to be at the workplace and in a state of availability to perform work when called upon over a 24 hour period.


We say that just follows as a matter of principle, and when one looks at the provisions in this award that include penalties for overtime, weekend work and so on, that the disutility associated with those periods is accepted and is common ground.  We agree with the submission of United Voice about the decision of Sams DP in the Broken Hill Town Employees' case.  That was a case that did not involve his Honour determining the merit of a claim.  The task his Honour had there was one of award interpretation, but we don't think it's an answer to the submission that we make in respect of this clause.  Subject to whatever may come out of the survey process, those are the submissions that we have to make about the 24 hour clause.


JUSTICE ROSS:  The Queensland award you took us to.




JUSTICE ROSS:  Spoke about a review in 12 months.  Is there anything that came out of that?


MS DOUST:  I couldn't find anything about that either, yes.


JUSTICE ROSS:  We'll have a look and if we find anything we'll let everybody know.


MS DOUST:  Some of that is so long ago now, your Honour.




MS DOUST:  It's difficult to track down.


JUSTICE ROSS:  Are you - well, is any party aware of any arbitral decision dealing with anything similar to the 24 hour?  The only thing that - and it only occurred to me in the course of your submissions.  That was why it may have looked as if I was going to ask you a question.  But I think around 1998 I heard either an enterprise flexibility agreement or what was then called a non-union certified agreement involving the South East Ambulance Authority and they were putting in provisions for 24 hour shifts for ambulance officers.




JUSTICE ROSS:  And it was a public interest test and for various reasons my recollection is that it didn't succeed.  It might be reported in the IRs.  If we can find it we'll let you know.  I only remember it because of an exchange with counsel at the time when I raised the question 'Well, if I had a heart attack I'm not sure how enthusiastic I'd be about an ambulance officer turning up in the 23rd hour of his 24 hour shift'.




JUSTICE ROSS:  And the response was 'Well, you could take some heart from the fact that when you' - sorry, 'some comfort from the fact that when you got to the hospital it would be likely you'd be dealing with a resident who had been on duty for 36 hours'.




JUSTICE ROSS:  And I wasn't sure I was comforted that much by that proposition.


MS DOUST:  I think with heart attack it's hard to feel a sense of enthusiasm about anything.




MS DOUST:  So it may be a moot point.


JUSTICE ROSS:  And I wondered about whether - I can't think of any but certainly in the health sector junior doctors in particular work for extensive hours.  I don't know whether there's been any consideration of that or not.  I can't think of any and I certainly haven't been involved in any.


MS DOUST:  I think by the union there's been a great deal of consideration of the issue.




MS DOUST:  But I'm not sure whether there's anything that's been arbitrated on that.




MS DOUST:  On that issue, yes.


JUSTICE ROSS:  Look, if we find anything on either the transcript in relation to Simmonds C's point - and I'm not hopeful - and anything from the Queensland Commission, but it is going back a while.




JUSTICE ROSS:  And whether they've got the records or not.




JUSTICE ROSS:  We'll publish them and invite any comment.


MS DOUST:  Yes, I can say, your Honour, I've asked Ms Svendsen and I think if anyone would know about this history, she might.


JUSTICE ROSS:  Probably, yes.


MS DOUST:  And there's - so.


JUSTICE ROSS:  All right, and the other two?


MS DOUST:  Yes, the casual loading.  In the award at clauses 26 and 28 both the Saturday and Sunday penalties and the overtime penalties are expressed to be in substitution for and not cumulative upon the casual loading in clause 10.




MS DOUST:  Our point about these clauses of the award is simple.  It's this, that in the penalty rates decision the Bench referred to that Productivity Commission report and what the Productivity Commission referred to as the default approach where casual work always involves a loading of 25 per cent on the base rate on top of the rate that's otherwise applicable.  So that is whatever penalty or loaded rate applies in respect of the work having regard to the time or the extended hours, casuals should always have 25 per cent added on top of that.


And the rationale for the Productivity Commission approach was that in order to ensure that decisions about choice between permanent workers and casual workers was neutral, that there wasn't any sort of prejudice in favour of one or the other, the default approach should be adopted.  And that is the difference between the cost of having the work performed by one or the other always represents just the value of the additional entitlements.


So there can be no financial advantage for any employer in opting one way or another, and the Productivity Commission's recommendation was that the same approach be taken across all awards.  The Full Bench in the penalty rates decision observed - - -


JUSTICE ROSS:  Well, the Productivity Commission was only talking about a subset of awards.




JUSTICE ROSS:  And that's clear from the earlier part of the report.  I forgotten exactly the descriptor values, the HERC Awards or something like that.  But hospitality, entertainment et cetera, retail awards was the focus of the report.


MS DOUST:  Yes.  Nonetheless we think there's some issues of principle there that have some application here.  One point which is absolutely true in this instance is that which the Full Bench observed at 338 of the penalty rates decision, was that taking the default approach that a casual loading is paid to a casual in respect of all of their hours separately from any other penalty or loading has the benefit of simplicity, and I'm sure everyone in this room can recall occasions looking back at older awards and trying to figure out whether or not the loading was in addition to or calculated on top of other loadings.


So it has that advantage, and the Full Bench adopted that default approach in respect of the Hospitality Industry Award and it did so not because it determined there was any change to the value of the work, it was really a product of the application of proper industrial principle that that was the correct approach.  And we say on that basis the Full Bench should proceed on the same basis in respect of this award because in this award it's quite clear that the casual loading is accepted as being compensation for the loss of those other entitlements.


Ranged against us is the previous Full Bench decision.  We say that shouldn't be regarded as an impediment to so proceeding in this matter for a couple of reasons.  First, at paragraph 45 of that Full Bench decision - and I'm referring here to the Full Bench decision on the appeal from Watson VP's decision about these issues.  In that decision the Full Bench - and that's the decision of Hatcher VP, Smith DP and Lewin C in [2014] FWCFB 379.


First of all as our comrades from United Voice observed, that decision at paragraph 45 expressly indicated there that the Full Bench wasn't seeking to foreclose further consideration of the issue, and left the door open for 'a general and authoritative consideration of the issue at the level of industrial principle' and we think the penalty rates decision is just such a consideration of the issues.  So we don't think that there's anything in the Full Bench decision that said we have determined as a matter of the history of this industry and the application of principle in respect of this industry that this is how things should remain.


I think the other important observation to be made about that decision is that in the decision I think the Full Bench accepted in respect of - this applied to the SCHADS Award, and this is at paragraph 31:


We accept the ASU is able to demonstrate convincingly that the predominant position in the pre-existing awards and instruments was that casual employees were entitled to penalty rates for working ordinary hours on weekends, the same quantum as those applying to full-time and part-time employees in addition to the payment of casual loading.


So it wasn't the case that there was any recognition either at first instance - sorry, there certainly wasn't any recognition by the Full Bench that the approach that was taken by Vice President Watson was consistent with history in the industry.  Rather it was the opposite, that the ultimate conclusion the Full Bench reached was that it was open to the Vice President to reach the conclusion he ultimately did which involved the fact that there was a modest increase to the rate of the casual loading on the one hand, and on the other hand the removal of other penalties that applied in respect of the weekend work.


So we don't see that there is, or we submit there is no force in the submissions of the employers arising from those decisions and they don't present any hurdle for the Commission to take an approach consistent with what we say is proper industrial principle now.


Finally can I go to the issue of the first aid allowance, and this allowance appears at clause 20.4 of the award, and again what jumps out immediately on looking at that clause is the inconsistent treatment as between streams of employees.  So just looking at the clause 20.4(a) there's a weekly first aid allowance of 1.6 per cent of the standard rate.  That amount comes out to, for a full-time employee to an amount in the region of $830 a year.  If the Bench will just bear with me for a moment.  No, I think I have lost my allowances sheet.  Yes, the 1.67 per cent totals over the course of a year about 85 per cent of the standard rate.  That will come out to $830 in the course of a year.


For home care employees that allowance applies only, and this is apparent at clause 20.4(iii):


Where the employee is required by the employer to be in a given week responsible for the provision of first aid to employees employed by the employer.


So this needs to be someone who is responsible for giving first aid, not to their home care clients, but to other home care employees, and the evidence such as it is at this stage and what your Honours, members of the Bench, would know is that these are employees who on the whole are running around the countryside one off visiting clients in their homes and dealing with clients providing that sort of care.  So the occasion for the payment of that allowance to a home care employee would on that basis rarely, if ever, arise.  We think there is - yes, I am just looking at the allowances page associated with the award.  The amount per week for the first aid allowance is $16.03.


For other employees they're entitled to the first aid allowance where the circumstances in (i) and (ii) apply.  That's where they're required to hold a current first aid certificate, and there's some evidence about that being a common requirement across the industry amongst our witnesses.  Also an employee other than a home care employee is required by their employer to perform first aid at their workplace.  So that contemplates for example that a disability support worker going and working with a client in their home, attempting to put into place a care plan or a plan for that client that's designed to help them achieve their objectives under the NDIS, so trying to participate in the community or participate in employment, that sort of thing, that sort of worker is entitled to the first aid allowance.


A home care employee in the home of for example an elderly person, or in the home of a disabled person for the purpose of providing that sort of care in the home required to use first aid upon the client is in a different boat.  So we say on the face of it there's an inequity there in the treatment across streams of workers that are on similar - - -


JUSTICE ROSS:  But it's not seeking to vary that part of the clause.


MS DOUST:  No, we're seeking reimbursement for workers where they are - for the costs of obtaining that, or maintaining that certification, and we have suggested a new clause, and part of the reason we suggest that, and this is at paragraph 10 of our draft determination, is simply because 20.4 operates inequitably for home care employees who we say are unlikely to be entitled to any recognition of that expense and additional skill that they employ in the course of their work, that is likely to be required in their work, nonetheless there's no recognition unless it's used on one of their fellow employees.


We say they're in a very similar situation, both home care and disability worker employees, they're both working commonly in the home of the client, commonly with persons that have some level of vulnerability either due to age or disability in circumstances where they might be left responsible for dealing with a situation requiring some sort of medical attendance or first aid are likely to arise.  We don't see that there can be a distinction made between the two roles based on any proper principle.


I think the evidence in the material about the cost of a course is that it's in the territory of a hundred or $150 to do that sort of training each year.  So I think there was an objection taken earlier on to a paragraph in a witness statement about that being a significant cost for one of these employees.  It is of course a matter for submission, that particular argument, and the submission about that is this.  The evidence shows that there is a large number of employees in this area who are working part‑time.  They are working - particularly if they're in home care their rates of pay are very low.  One can see from the documents that the Commission circulated prior to - - -


JUSTICE ROSS:  Subject to what's said about the impact of the Employee Remuneration Order on those.




JUSTICE ROSS:  And I'm not sure about that.


MS DOUST:  But that's not applicable in respect of home care employees.  So for home care employees in particular they are at rates that on that material they are, even if one assumes that they're full‑time, at rates that generally are below that measure of two-thirds of median full‑time earnings and that's presuming they're full‑time, and so many of these workers as the other evidence shows are part‑time.  And we'll go to this in the second tranche but there's some evidence about this already in the material before the Commission; one feature of this work is that these employees are working extended hours to accrue by cobbling together bits and pieces of work time during the course of the day.


We say they're full‑time workers that are being paid part‑time effectively.  It's like this 24 hour clause.  That's a consistent theme in this case.  But there are a lot of these workers that are part‑time.  They're part‑time on rates that are minimum award rates.  There's a low rate of bargaining in the sector to provide for greater rates of pay.  In that context the requirement for those workers to spend a hundred or $150 themselves in order to update their First Aid qualifications is, we say, a very significant impost.  Yes, I think unless there's any further questions those are the submissions, your Honour.


JUSTICE ROSS:  All right.  Thank you.


MR FERGUSON:  Thank you, your Honour.  Ai Group is not addressing the 24 hour care clause just the penalty rates or the casual loading issue and the First Aid provision.  On both we've filed written submissions and we rely largely on that.  Now by way of reply dealing firstly with the casual loading issue raised by both unions, both unions place significant emphasis on the importance of the penalty rates decision.  We've addressed to some degree in our submissions but the short point is that we say that's not a general authoritative statement of the approach that should be taken in relation to the application of casual loadings in all the relevant senses across the award system.


It was a case dealing with specific awards and specific industries and all of the circumstances associated with that.  It was also a case that was involving at the same time consideration of reductions in certain penalty rates, which might have a relevant bearing on the comparable impact of inserting a casual loading.  But beyond that we say that the circumstances of this award are distinguishable on a number of grounds anyway.  The first is the history of the award, and in our submissions we have gone through the relevant decisions that dealt with the application of the casual loading to at least the overtime rates and the weekend penalty rates and I don’t think I need to take the Bench through those.


They were set relatively recently and we say they are sound decisions and those decisions, while they leave open the prospect of this issue being reconsidered in this review, they don't in any way infer that that's necessary or that it should occur and we say that it should not and that a case has not been made out departing from those decisions.  Certainly there was nothing in that decision that said it was the narrow nature of the 2-yearly review which gave rise to that outcome.


The other issue which we've been at pains to point out, and this is just one of many arguments but one that is very significant, is a concern that the NDIS funding arrangements for at least those employers who are operating under that scheme don't provide compensation that would enable employers to recover their costs if this variation was made.  They do not for example in - or the costings underpinning those arrangements do not contemplate casual loading on top of overtime rates and don't indeed contemplate overtime rates.


And the material that's been advanced by the union I think raises a very real concern about the extent to which employers are struggling - some employers are struggling to operate under that system and meet the current industrial obligations let alone a significant - - -


JUSTICE ROSS:  So they're not compensated for overtime at all, is that what you're saying?


MR FERGUSON:  Yes, the pricing, the assumptions as far as we can see from the material don't take into account in their modelling the payment of overtime rates at all let alone adding an additional 25 per cent loading on top of the overtime rates.  And the material - it is hard to get to the bottom of the costings at this stage and it may be a matter that's dealt with through the course of the broader proceedings in greater detail with the evidence that's advanced.  It is hard to work out all of it but you can quite clearly see that that doesn't seem to be a factor in the price caps that are set.


Now we say that is a very relevant matter for the Full Bench to have regard to because they are price caps.  It's not like another industry, that these employers can't necessarily work outside of this system.  So if there were to be the imposition that additional costs be imposed upon those employers there would be in some instances just no ability to recover those additional costs.  So in terms of fairness from the perspective of employers that is a key issue.


It obviously has an impact in terms of those elements in the modern awards objective that require you to take into account the impact on employers and employment costs, but also we would say on workforce participation in the sense that it may be that this has the very real impact of meaning that in some instances employers decline to provide services to Australians who may be some of the most in need individuals, but it also may mean that there is no or there is less employment, certainly less employment opportunities for some casual - - -


JUSTICE ROSS:  It might mean that part‑timers are used to work overtime rather than casuals.


MR FERGUSON:  And I'll come to the importance of casual employment to the sector as well in a moment.




MR FERGUSON:  But at the very least it may mean that there's an inability to utilise casual employees.  Now of course it's been raised - - -


JUSTICE ROSS:  The casual utilisation has dropped in the aged care sector of the industry certainly over the past five years on the workforce data.


MR FERGUSON:  And I'm speaking about the NDIS related issues.




MR FERGUSON:  And of course in the casual and part‑time employment case there was a finding that there is some evidence that at least some employers are now making increased use of casuals in response to the NDIS arrangements.  That is referenced in our material, but I can't put it higher than that, and of course what you can understand is that the shift to the one on one client servicing that's required under NDIS - and it's spoken in detail in the literature - creates a greater need for flexibility, which again I'll come to in a moment.


But it means that people can't escape the use of casual employment in all instances.  But look, in any event we say that is a very serious issue.  Now of course we don't know, and there's been I suppose some speculation in these proceedings more broadly about what might happen in relation to funding arrangements.  The important point is the Commission really needs to take things as they are now.


JUSTICE ROSS:  If we take things as they are now on your submission we wouldn't grant any of the claims because you can't get reimbursed.


MR FERGUSON:  And the difficulty is that's a serious consideration where there are claims about serious cost increases.  Now that may change.  This is - the price cap is only intended to be a temporary measure.


JUSTICE ROSS:  Well, that might be the position in any competitive industry where they can't afford to increase their prices to recover labour cost increases because of the competitive nature of the industry.




JUSTICE ROSS:  Are we to ignore - I understand what you say about the merit about the claims but are we to ignore the merit arguments and just focus on the fact that 'Oh, well, it's a government funded sector.  The government's not compensating for any increases therefore you can't give any'?


MR FERGUSON:  I don't think that the Bench is to ignore the merits of the claims more broadly.  It is of course a balancing act and I think, as difficult as this submission is to deal with, a need for caution and a conservative approach in weighing the merits of all of the claims is particularly important.  Because this is a sector that is different to the other sorts of sectors that you're alluding to in the sense that it's not simply market pressures and, you know, some employers losing out to the benefits of others and some pushing back on price.


There are caps on the prices that can be charged.  These employers can't do anything else, which makes it a much more pressing issue.  So all of these issues of course need to be weighed, but we'd say that this is a factor that in this instance would weigh in favour of not granting this claim and maintaining the conservative approach that was adopted in the 2-yearly review in relation to this issue which we're particularly dealing with.  Noting that there have been increases to the entitlements of casual employees in this context since the modern awards were first made, and in fairness, in that sense, we would say doesn't dictate a further increase at this time.  That doesn't preclude something - - -


JUSTICE ROSS:  What did the Benches in those cases say about this sector and the submission you're now advancing?


MR FERGUSON:  They went through - I don't think they dealt with the issue of the NDIS arrangements and so forth given the timing - - -


JUSTICE ROSS:  Did you advance the submission in those cases though?


MR FERGUSON:  We did not.  We were - not in that case at that time.  My other friends at the Bar table may be able to.  It was in a different context, and as I said, that is an issue here, that the NDIS is of course a profound development.  As I was putting, the decision pre‑dated the implementation to the NDIS, which is of course still being phased in and is in a transitional state itself.


The other point I would make on that, and I just refer to it in relation to the importance of casual employment, and I think it was put by United Voice that, at least in the context of their claim, it might assist in ensuring people roster people appropriately to avoid this issue arising, and I think your Honour has just put the prospect that perhaps different types of employment might be utilised.  I think one of the difficulties, and I'm advancing this from the Bar table, but I don't think it will be a contentious proposition, is that - - -


JUSTICE ROSS:  I wouldn't count on that, Mr Ferguson.


MR FERGUSON:  Well, yes, but I think it's one that will have logical force when you look at the material.  Obviously the way this works, you know, in particular instances you will have employees performing services that will assist people perform their life, so for example, an employee may be assisting a person with a spinal injury to perform their daily functions.  Their needs will vary from day‑to‑day as they want to undertake different activities in life, but the sorts of services and assistance that is being provided might be very intimate and very personal.  There would be a real need or justification for the same person as far as possible to be utilised by a service.  That's going to necessitate some changes in start times and so forth from that employee, and that's why it's not just one reason to put some colour to it, why it's not always assumed you can just insert a different type of employment.  But in any event, as we said, the shift to NDIS does enhance flexibility.  That's the intent, and to give clients more control, and that does, we say, create a greater need for casual employment, but certainly limits people's options to find alternate options.


The other point is one I've raised yesterday.  We say that the Bench in considering this claim and all of the other matters needs to have consideration to the cumulative impact of the various matters that have been pursued in the course of this review, if it's inclined to grant the claims.  Obviously we're now dealing with numerous claims that have real and significant financial impacts on employers potentially, and there is a need to view that as a whole when weighing the merits of each claim.  That's all the submissions I intend to advance on this issue, unless there are any questions.




MR FERGUSON:  And on the first aid issue, we're just content to rely on written submissions, unless there are any questions.


JUSTICE ROSS:  No.  Thank you, Mr Ferguson.  Mr Scott?


MR SCOTT:  If it's okay if I stand?


JUSTICE ROSS:  You could stand/sit, I don't mind.


MR SCOTT:  Your Honours, if I start with the 24‑hour care clause, the position of my clients is that we oppose the deletion of the provision, and we endeavour to assist the Commission's task in terms of reviewing the award and reviewing this particular clause by outlining a number of pre‑reform awards which we say have relevant provisions in it.  My learned friend has advanced that clause by taking your Honours to the relevant provisions and making some submissions in relation to those.  The position seems to be that, as you would expect, those instruments have differences in terms of the specific entitlements in terms and conditions that they provide to employees when performing that work.  The Victorian Award, which appears to be the precursor to the modern award provision that we have now, clause 25.8, was described as an outlier, and to the extent that that's true, my instructions are to put in the alternative a position that will by and large remedy any of those features which result in that provision being an outlier.  And I think this was the case on Monday, although I may be wrong - I think my memory is as blurry as yours, your Honour - but I think on Monday - - -


JUSTICE ROSS:  I wouldn't say my memory is blurry, Mr Scott.  Go on.


MR SCOTT:  I apologise.  I only say that because I'm pretty sure you said that about 15 minutes ago.


JUSTICE ROSS:  No, keep digging.


MR SCOTT:  On Monday I indicated that there may be some scope to obtain instructions in terms of the wording and the inconsistency in the sleeping arrangements between the sleepover clause and the 24‑hour care clause.  I have those instructions now.  My clients have no opposition to the language in clause 25.7 being effectively inserted into the 24‑hour care clause.  If your Honours bear with me and I'll find the relevant folder.  The specific part of clause 25.7 that I am referring to is 25.7(c), the second sentence.  It states:


Employees will be provided with a separate room with a bed, use of appropriate facilities, including staff facilities where these exist, and free board and lodging for each night when the employee sleeps over.


We say that there's no real controversy over those conditions, and we have no difficulty with those conditions effectively replacing the less precise wording in clause 25.8(b).  The second position, and I apologise, this is the one which I did have instructions on Monday to put, is that my clients have no opposition with clarification wording going into clause 25.8 to make it clear that to the extent that an employee is required to perform more than eight hours' work, then that work is treated as overtime and is paid in accordance with the overtime provisions at clause 28.


The third proposition or position that we put is taken from the Aged Care Award and the broken shifts provision in the Aged Care Award, which states to the effect that a broken shift can only be worked by agreement with the employee.  We have no difficulty with such a provision going into the 24‑hour care shift clause.  The fourth one, and I think is the final one, is there was some reference to those pre‑reform instruments having entitlements to an additional week's annual leave and effectively treating them as shift workers.  It appears that the position in relation to the SCHADS Award, at clause 31.2, which sets out the quantum of leave for shift workers, it doesn't explicitly contain any reference to employees working 24‑hour shifts or 24‑hour care shifts.  We have no difficulty with an amendment being made to that particular provision to make it clear that employees who are regularly working 24‑hour care shifts receive the additional week's leave.  So we say those four propositions or variations largely rectify many of the - and by no means all of the criticisms of the clause, but many of the criticisms of the current clause.


Given what I've just put, I won't go into any detail in terms of the submissions on the merit, but I will just make a few comments.  There was a question on Monday about the purpose of the clause, and I think your Honour took the parties to paragraph 6.19 of our submission, which effectively sets out my client's position in terms of the rationale and the purpose of the clause.  Certainly my understanding and my instructions are that the 24‑hour care clause is predominantly used in circumstances of respite, so that is where a particular individual lives independently and may have the primary care provided by a family member, for example.  The family member may wish to go on a holiday, and the alternative to an arrangement such as 24‑hour care would be for the particular individual to be put into a particular residential or an institutional facility, and as an alternative, the 24‑hour care clause provides the ability for an employee to come and effectively live in for that period.  In terms of the compensation, as your Honours are aware, it provides eight hours' pay at 155 per cent.  There will be some - I don't think I can put it that many occasions, but there will certainly be some occasions where the individual who is receiving the care is relatively independent, and so there will be cases where the employee who is there to provide the care may do significantly less than eight hours work.  He may simply be assisting with showering in the morning, assisting with dinner in the evening.


JUSTICE ROSS:  One difficulty with the proposition is that you're making an assertion that it's mainly used for respite care.




JUSTICE ROSS:  If that's the common position taken by the other employers then it raises a question of should it be limited to respite care.


MR SCOTT:  Yes, and certainly I am not saying that it's exclusively used for respite care, but that is a common scenario whereby it is used.  There's obvious force to the draft survey, and it may be that this is an iterative process and we will get some further instructions and further clarity arising from that survey.


JUSTICE ROSS:  Just while we are on the survey I should have mentioned before, but the list of the subsectors on the front page didn't come out of thin air, it came out of the ASU's submission, which ABI had largely adopted.  We are not suggesting those are the only subsectors of the industry, but there seemed to be an element of agreement between at least the ASU and ABI about that descriptor.


MR SCOTT:  I think that's right, your Honour.  Just before I move on there was a reference by my friend about the clause creating this perverse incentive to effectively roster people for a bulk discount, and I think as your Honour correctly pointed out their evidence seems to be that they're not aware of anyone using the clause.  So to the extent that there's some perverse incentive it's not working, and that I think is a credit to the organisations and the nature of the organisations that are operating in this space.


Unless there's any specific questions about the 24 hour care clause that is all that I was proposing to put.


JUSTICE ROSS:  No, that's fine.  I will come to the other employers and be putting to you whether you agree with ABI's four suggested changes to the clause or whether you take a different view.  No, not now but once you have finished.


MR SCOTT:  Yes.  If I move to the issue of rates of pay for casual on weekends and public holidays.  This was an issue that is similar to a claim that was run last week in the Aged Care Award.  It is similar in the sense that there was a previous decision during the two yearly review that dealt with this issue.  There was also a Full Bench decision.


The suggestion was that there's no real force in the Full Bench decision and that the finding was that they found, the Full Bench found that it was open to Vice President Watson to make the findings that he did, and that that does not amount to an endorsement of the findings of the Vice President.  We say - and it's extracted in our written submissions at paragraph 10.20 - and we say the sound rationale for the first instance decision that was made there was reference to the pre-reform instruments and the fact that there was a reduced loading in many of the pre-reform instruments.


We say that while there is obvious force in the default approach that's been referred to I advance rhetorically the proposition or the position that there is of course two ways to achieve the default approach, and of course that is to reduce the rates of pay for permanent and full-timers.  As put in the Aged Care Award the submission is that the default approach, and this is referred to by the Productivity Commission, is a general proposition.


There were clear findings made at first instance during the two yearly review as to the appropriate and fair and relevant rate of pay for casual employees on weekends and public holidays.  We say that the observations of the Productivity Commission do not displace that.


I am content to rely on our written submissions in respect of the United Voice claim relating to overtime rates for casuals, unless there's any questions, and in respect of the first aid certification renewal claim again largely content to rely on our written submissions save that there was reference earlier to many employees being part-time or casual in the context of the quantum of the first aid allowance.


There is also evidence before the Commission of employees in this sector in many cases having multiple jobs, and the concern of other employment.  It's articulated in our written submission, but we raise it further that in those circumstances there may be some practical difficulty with the proposed claim in the sense that if you have two or more jobs what's to prevent an employee from claiming reimbursement from two or more employers.  So to the extent that the Commission is minded to grant that claim we say that that's one aspect that should be addressed and rectified.


Other than those submissions, unless the Bench has any questions, those are my submissions, your Honour.


JUSTICE ROSS:  Thank you, Mr Scott.  Mr Pegg?


MR PEGG:  Yes, your Honour.  In relation to the first aid renewal we just rely on our written submissions, we don't have anything to add.  Just a couple of quick comments.  Firstly in relation to the 24 hour care claim in our written submissions we also pointed to the issue of whether overtime is applicable or not and put that that's easily fixed by an amendment.


We support the proposal from Mr Scott around clarifying the application of overtime and also using the clause 25.7 to guide wording around provision of a bed.  We don't have any opposition to the proposal, it would be by agreement.  We hadn't considered the proposal from Mr Scott around additional leave.  So we don't have a position on that at the moment, but those other three items certainly we think are a more practicable way of dealing with the issue.


Certainly the information that we have from NDS members is consistent with what has been said elsewhere that this provision isn't used widely, but it is used in circumstances of respite.  It is a useful provision that provides for flexibility, and one of the reasons we are told why clients like this sort of arrangement is it prevents having a revolving door of workers coming in through a 24 hour period and they just have continuity of care.


So I will move off the 24 hour care just to make one additional point regarding the casual loading and overtime.  It's just to come back to the point that Mr Ferguson made around funding and the potential impact of unfunded increases and the potential cumulative effect of the claims being heard in these proceedings.  Our members are predominantly in government funded services and we are keenly sensitive to these sorts of issues.  There is a balancing act.


If you take that argument to its logical conclusion, as your Honour pointed out, nothing would ever change in relation to industrial entitlements, but there does need to be some sense or prioritising of a lot of the more important issues.  But I think also we would point to the experience of the Equal Remuneration Order around the importance of being able to operationalise in the funding arrangements to deal with new award entitlements.


So in that case there were quite extensive negotiations between the parties and the Commonwealth Government in the first instance as to how those pay rates could be funded, particularly given the complex nature of the formula that was used; there's no simple formula that could be used, and that led to further negotiations between the Commonwealth and the states around how state funded programs would operate, and in the absence of those discussions the Full Bench at the time was certainly - let me rephrase that - the Full Bench at the time were clearly much more inclined to be dealing with the pay claims once there was some clarity about could this even be delivered in a funding sense.  So in the case of the casual loading and overtime, I don't think that's necessarily industrially a difficult thing to put a formula into, but as Mr Ferguson pointed out, the NDIS pricing just makes an assumption that work is done in ordinary hours.  So where overtime is performed, it's not clear under that funding regime how any funding could actually be factored in.  I'm not saying it's impossible, but it's not an easy thing to do.  So we just finish there.


JUSTICE ROSS:  Thank you, Mr Pegg.  Ms Shaw?


MS SHAW:  We rely on our submissions, but I just wanted to make one point about the weekend penalty and casual loading, and emphasise the difference between the penalty rates decision as far as the history.  It's significantly different with this issue, having last been considered in 1993 for the Hospitality Award, which was prior to the casual loading test case decision, and the issue was considered in 2014 by the Full Bench in regards to this award, which did have consideration of that decision.  So I think the history does play a big part in relying on that case and the big difference there.  In regards to the proposition for the 24‑hour care, I'd probably like to seek instructions just from our members.  I don't envisage there being too much pushback from that, and we do have a list of our members that use that clause, so we can do that pretty quickly and report back to the Commission on that.  That's all.


JUSTICE ROSS:  All right.  Mr Ferguson, did you have any - what do you say about ABI's proposed changes to the 24‑hour clause?


MR FERGUSON:  We don't advance any submissions in relation to that.  We don't have experience, or our members aren't members that utilise that clause.


JUSTICE ROSS:  Okay, thanks.  Ms Doust, anything in response?


MS DOUST:  Just a couple - - -


JUSTICE ROSS:  Also, do you contest what Mr Ferguson was saying is a Bar table statement?  So deal with that in your reply submissions as well.


MS DOUST:  Which statement was that?


JUSTICE ROSS:  Do you want to just do it again?


MR FERGUSON:  No, I was making a statement - - -


MS DOUST:  Made a few statements on this - which one - - -


JUSTICE ROSS:  No, there was one in particular that he said that there wouldn't be any contest.


MR FERGUSON:  There was one and I identified what it was.  I was talking about the fact that there is some need for casuals within this sector to provide some kinds of services, and I used the example of a person providing services to a person with a spinal injury and the need for starting times for that individual to fluctuate based on the life activities of that person and the time at which they would require care, and there's an obvious benefit to a consistent approach.


MS DOUST:  Right.


MR FERGUSON:  In terms of having the same person.  I didn't think it would be contentious that there would be some need for casuals within the NDIS sector - disability sector.


MS DOUST:  I'm not sure there's much I can do with that, your Honour.  I'm afraid - just from the Bar table and I'm not sure whether there's some sort of factual basis to contest it.  I mean, I think the observation we make generally is there's a couple of assertions been made from the Bar table about respite care and so on, and these are parties that had the opportunity to put on some evidence about the operation of the 24‑hour care clause knowing that the matter was in issue as a consequence of our claim.


Can I just deal with a couple of issues really quickly though?  The first is the question of costs that Mr Ferguson raised, and he referred to the position in terms of costs.  I think he might have referred to the position in respect of funding as being in some way speculative, and I don't think that's - about the increases - I don't think that's fair having regard to the evidence of Mr Farthing this morning, and we're in a position I think to file with the Commission the statement that he referred to, the statement from the Minister and the relevant link to the NDIA to show the increase.


JUSTICE ROSS:  Yes, I don't think that was where he was going to.  It was more that, as I understood it, that in considering the claims, we should give significant weight to the fact that this is a sector where - the NDIS sector - where the prices are capped and set.




JUSTICE ROSS:  And there is nothing in that formula that recognises or compensates for the outcome of these claims if any of them were to be successful, and nor is there any guarantee that the formula would be adjusted to reflect the outcome of these.


MS DOUST:  That's correct.  What we say about that, and I think this is probably consistent with what your Honour was saying, most industries don't vary the price of the service or the goods that you get from them depending on when it's provided or whether it's provided to you by a casual or a permanent employee, and so in that sense, operators that operate under the NDIS, which is only part of the way in which this award operates, are in the same boat as many other industries in that respect.  But there is another answer to that, and that is this:  one can see looking at the calculation of the rates in Mr Farthing's statement at paragraph 21 that on the current funding there's a margin of $8.88 per hour of face‑to‑face attendance, and that's $8.88 out of the NDIS price cap, and that's a margin that's calculated after all of those on‑costs and also supervision costs are added in.  That's a margin that's in the territory of 18 per cent of the funding.  So we say that, even on that basis, gives the employers in this area a deal of room to move.  What's to happen come 1 July is this:  there's going to be a 7 and a half per cent loading to that NDIS price rate, which will increase that margin significantly, because at the same time what will occur is that the rate will be tagged to indexation as well.  So any indexation and increases that happen as at 1 July will be accounted for, but in addition to that there's a top‑up.


JUSTICE ROSS:  I'm not sure at the moment I'd be that enthusiastic about an indexation clause, but - but it's not any increases.  It's indexed based on the CPI, and they take into account and they adjust for the - as I understand it - they will adjust automatically for the outcome of the annual wage review.


MS DOUST:  That will happen - - -


JUSTICE ROSS:  But there's no automatic adjustment for any other decisions.


MS DOUST:  No.  Sorry, that will be occurring adjusting for the wage review and those increases.




MS DOUST:  But in addition to those increases, Mr Farthing was talking about a 7 and a half per cent increase.  So there is, we say, a very significant increase of funding due into the NDIS with effect from 1 July, and so the margins that are already displayed in Mr Farthing's statement will be increased even further from those increases, and will increase that percentage margin from 18 per cent significantly.  So the margin is what the employer has to make a decision whether or not to employ a casual or otherwise.


Looking at this industry, one of the patterns is, first of all, we say, underemployment.  There are, you know, a large number of people employed in this industry who are not employed on a full‑time basis, and so that's one factor that needs to be taken into account by the Commission in dealing with the award, and that may be something that calls for some adjustment to the arrangements that are applicable to part‑time workers.  Newsflash - our argument is that the adjustments that need to be made are around minimum engagements, because those provisions provide the capacity for that cohort of employees really to be used as, in effect, a casual workforce without any loading, but that's not something we say that takes away from the fundamental principle about casuals not being deprived of the loadings associated with the unsociability and so on of working weekends or extended hours.  So it's a complicated picture where those other sides of it need to be taken into account, but we don't think that they tell against our argument on these penalty rates.  The - - -


JUSTICE ROSS:  Just before you go on, Mr Ferguson asserted and Mr Pegg agreed that the price is built on an assumption that all hours are ordinary hours.  I don't think we've seen any evidence about that, but that's the statement that was made.  So overtime hours are not contemplated in the price field as I understand it.  Have you got a view about that?


MS DOUST:  No, well, that seems to be apparent in the calculation that's in paragraph 21 of Mr Farthing's statement and one can see how the components are made up.  Of course when you're talking about casual loading in a sense that's contemplated for under this costing because there's components with annual leave, leave loading, personal leave, long service leave et cetera and so they're interchangeable.  So there's no particular head of costing casual but those two things are interchangeable.


JUSTICE ROSS:  I'll just have to take a short break.


MS DOUST:  I'm sorry, your Honour.

SHORT ADJOURNMENT                                                                    [3.13 PM]

RESUMED                                                                                               [3.20 PM]


JUSTICE ROSS:  I'm sorry about that, Ms Doust.  Where were you up to?


MS DOUST:  I hope I haven't caused the Bench too much distress with those submissions, that they were so bad.


JUSTICE ROSS:  No, I don't think it was a reaction.


MS DOUST:  I was just addressing the question of the costings and I was saying that because the costings factor in the on-costs of all the leave entitlements that effectively casuals are provided for in the way in which the cost of attendances under the NDIS are paid for.  It's really just that amount of money either goes directly to the employee by way of a casual loading or it goes into the employer's reserves to be paid out to a permanent employee down the track when they access their leave entitlements.  But there's no particular head of cost in there, casual loading, but that's the effect when one looks at the components of the price.


JUSTICE ROSS:  I'm not sure that's the effect because it's only a proportion of the casual loading that's referable to paid leave entitlements.


MS DOUST:  I accept that but it's certainly - it is a proportion so it's not that there's nothing in there that compensates in respect of the casual loading and to the extent there's any difference, one has the margin that's about to increase with some fairly significant increases come 1 July.


The other issue I wanted to respond to is that of the 24 hour clause being used for respite care, and what's put is that there's preference of the client to maintain the same worker.  There's a couple of points to be made about that.  The first is this, that there is nothing to stop the same worker being provided over 24 hours without the 24‑hour clause being in the award.  That level of attendance by the same worker could be facilitated by way of a sleepover period, and then an ordinary shift, which can be up to 10 hours, by agreement, and then after that overtime.  The difference is of course the cost of that, and the question is what is the appropriate safety net of conditions for that sort of impost on an employee, which we say is quite extraordinary.  So that's the first point to be made about it.


This clause is not necessary in order to achieve that.  Even if it was, we say this:  does one say that the preference of a client in relation to who deals with them is something that would be regarded as outweighing the important issues of employees being appropriately compensated and appropriately rested.  One would think that it can't be too great a burden for a client to bear to have two people dealing with them over the course of 24 hours.  But that preference wouldn't be regarded as something that must trump all other considerations in the task that is before the Commission in weighing up the clauses.  Those are the submissions, unless there are any questions that arise.


JUSTICE ROSS:  Thank you.  How do we deal with the tranche 2 directions, and how do we deal with the issues that were discussed yesterday around the factual matters?  I think the ministerial statement regarding the increase can be readily dealt with, that is, that the HSU will file it, will post it on the website, and will provide an opportunity for parties to comment on it.  But is there a solution to the other two things?  Ms Bhatt?


MS R BHATT:  Your Honour, if I might address you in relation to tranche 2.  The other matter I'll have to defer to Mr Ferguson.  I was either fortunate or unfortunate enough to not have been here yesterday, so he will deal with that matter.  But in relation to tranche 2, I have had some discussions with the various parties and we have endeavoured to reach agreement in relation to how tranche 2 might be dealt with.  Regrettably we have not been able to reach an agreed position, but we have developed some draft directions and I wonder if I might hand them up to the Bench.




MS BHATT:  Can I confirm that there's a copy available in Melbourne for Clancy DP?


JUSTICE ROSS:  Yes.  Thank you.


MS BHATT:  Thank you.  Putting to one side the specific timeframes that have been suggested, given that the directions are somewhat detailed, if I can just very briefly step the Bench through what they endeavour to do.  The claims are effectively categorised into three categories, the first being the claims that are advanced by ABI and other organisations represented by Mr Scott today; the second category being union travel time claims; and the third category being other claims advanced by the unions in respect of which those opposing the claims have not yet filed material in response.


The directions, to work backwards as it were, have been proposed on the basis that the matter not be listed before mid‑October of this year.  There are multiple reasons for the proposed date of the hearing, the proposed timing of the hearing.  The first is a real difficulty that Ai Group finds itself in on account of a number of other Full Bench hearings that have been listed, particularly in August and early September.


JUSTICE ROSS:  Just a sec, Ms Bhatt.  So it's ABI's contention that they not be before the 14th, or why is it in yellow?


MS BHATT:  It's a proposed date.  It's our proposal that the matter - well, perhaps I can deal with it this way.  14 October, at the earliest date for a hearing, is proposed on the following bases.  The first is that Ai Group is involved in a number of Full Bench proceedings that have been listed during August and early September, and then the second is that there are certain advocates appearing in the proceedings today, not for Ai Group, who are unavailable during mid to late September and early October up until 10 or 11 October.  I understand there are some leave arrangements from the union's perspective.


JUSTICE ROSS:  But then what's the issue in contest?


MS BHATT:  The issue in contest is that at least one of the unions, if not all, have a view that the matter should be called on in early September, notwithstanding the concern that Ai Group has.


JUSTICE ROSS:  But how can it be called on in early September if the agreed earlier directions provide for the last submissions to be filed on 20 September?


MS BHATT:  I'm not sure that that is agreed.


JUSTICE ROSS:  But I thought the earlier indication was that there was an agreement about the directions; it's just the hearing date.


MR SCOTT:  If I can assist.  There was agreement between the parties in respect of the dates in items 1, 2 and 3 in respect to the claims advanced by ABI and others, and those dates are reciprocated in items 4 and 5 and 6.  So those are the dates that my clients say are the earliest dates that should be set by this Commission in terms of my clients putting on its case.  It's evidentiary and - - -


JUSTICE ROSS:  All right.  I think rather than go around the table and everyone puts in their two cents worth, we'll issue short directions either tomorrow or next week just indicating - or just providing you with an opportunity to put in what directions you want.  You haven't been able to reach an agreement, so putting what directions you want and why, and we'll decide.  That's the easiest way forward, because only parts of the dates are agreed, and if the contest is as you say you can put in what you're proposing and why, and we'll (indistinct).  There's no particular urgency to deal with it today, because you can proceed on the basis that the agreed dates for filing are likely to be adopted, that is, the first tranche that you mentioned, Mr Scott.  So it's really only the latter bits, and if need be we'll call it on for mention.


MS BHATT:  I think the difficulty is that one follows the other to some extent, and because there hasn't been - - -


JUSTICE ROSS:  No, I agree, and the ones that follow the other are really probably from - well the replies to the United Voice travel claim and the dates for that suggest you can't have a hearing before 20 September.


MS BHATT:  But the proposed dates for filing have been suggested on the basis that the matter not be listed before mid‑October.  So I suppose when I said one follows the other, that was - - -


JUSTICE ROSS:  I see, chicken and the egg problem.




JUSTICE ROSS:  Yes.  I still - - -


MS DOUST:  I think - we take the same view, your Honour, which is that depending upon the dates the Bench is minded to allocate for the hearing, we think we'll be able to work backwards from there to agree some dates.


JUSTICE ROSS:  So is the short point then, you want us to make a decision about whether it's not before 14 October, as proposed by Ai Group, or it's an earlier date - and what are you proposing?


MS DOUST:  I think there was a week in September, 9 to 13 - yes, I think the 6th overlaps with the other Full Bench.  We had understood that dates between the 9th and the 13th were available in September, from having a look at that calendar yesterday.


JUSTICE ROSS:  No, but are those the dates you're proposing?




JUSTICE ROSS:  And that's the union position.




JUSTICE ROSS:  Do the other employers have a view?  I'll come back to you, Ms Bhatt.


MR ROBSON:  I'll add something here, and this is about the United Voice travel time claim.  I think that's extended by giving us a filing date on 21 June, when United Voice has been directed to file their material and evidence.


JUSTICE ROSS:  Look, don't worry about those dates.  I think that we'll decide the hearing date and then we'll give it back to you and you can sort it out amongst yourselves.  Working backwards, how are you going to accommodate it - I mean, that's the easiest way of doing it.


MR ROBSON:  Yes, we just don't need time after United Voice has filed - - -


JUSTICE ROSS:  No, it's fine - yes, that's fine.  We won't be deciding that without coming back to you.


MR SCOTT:  Our position, your Honour, is that we are available between 9 and 13 September but we are supportive of the Ai Group proposal to have the matter dealt with not before 14 October.  There's two reasons why we're supportive of that proposition.  The first is that their particular date accommodates some leave arrangements in late September and obviously that's academic if we have a hearing in early September, but the second and the main reason why we're supportive is that as I understand it, my colleagues are tied up in back to back Full Bench matters.


They've indicated to the parties that they will have a real difficulty being prepared for the hearing on the 9th to the 13th and so as a matter of general fairness to all parties, we say that it is appropriate that the dates which are suitable to all parties, being not before 14 October, be the dates that, subject to the Bench's availability, the matter be listed for.


JUSTICE ROSS:  All right.  Mr Pegg and Ms Shaw, are you basically in the same position as Mr Scott's outlined?


MR PEGG:  Yes, your Honour.


MS SHAW:  Yes.


JUSTICE ROSS:  Ms Bhatt, you were going to say?


MS BHATT:  That is the difficulty.  There are - - -


JUSTICE ROSS:  No, that is fine.  It is the narrower problem is we'll sort out the hearing date, we'll talk about that amongst ourselves, we'll get an answer to you well probably tomorrow morning, and we'll then leave it to you to come to a position about the directions that you can agree on to accommodate that and ask you to file a joint set of consent directions.  If you're not able to reach an agreement within a relatively short space of time, then I'll list that issue for mention and we'll see how we go.


MS BHATT:  Yes, I mean without wanting to labour the point, if the matter is listed from the 9th - - -


JUSTICE ROSS:  Without wanting to?  You're about to, is that what you're - - -


MS BHATT:  Only very briefly.




MS BHATT:  We're concerned that we will find ourselves in a situation, quite genuinely, where we won't have adequate time to prepare for these proceedings and it is not in the interests of the efficient conduct of this matter that we come back to your Honour at that point and ask for an adjournment at the 11th hour and it is out of that concern that we're raising the issue now.


JUSTICE ROSS:  Which are the Full Bench matters that you ‑ what are the Full Bench matters that you're in in October?  That is, before the not before 14, that are creating the problem?


MS BHATT:  There is no other matters listed in early October.  14 October was proposed to accommodate the leave arrangements of the ASU representatives.


MR FERGUSON:  I also understand the leave arrangements of ABI.


MR SCOTT:  Not for October, just for September.


MR FERGUSON:  Well - - -


JUSTICE ROSS:  You're not going away together but - - -


MR SCOTT:  Well, who knows.


JUSTICE ROSS:  All right, but - yes, okay.


MR FERGUSON:  Your Honour, I'm not saying very much about the 9th to the 13th and I would - acknowledging my leave arrangements.  I'll be ready then but I'm not going to contradict one of my union colleagues.  If they believe they can run the case then - - -


JUSTICE ROSS:  Okay.  Well, we'll give some thought to all of that, see how we go.  What about the issues we discussed yesterday and where they might go?


MR SCOTT:  Regrettably, despite Mr Robson and I saying that we would discuss it, we haven't had the opportunity.  Subject to availability, we intend to do that this afternoon - - -




MR SCOTT:  - - - and I think the parties are confident that we can put forward some - - -


JUSTICE ROSS:  That is fine.


MR SCOTT:  - - - consent directions for those matters.


JUSTICE ROSS:  All right, well we'll leave that with you ‑ ‑ ‑


MR SCOTT:  If the Commission pleases.


JUSTICE ROSS:  - - - and we'll get you a decision on the dates, yes, tomorrow morning, if at all possible.  Anything else?  No?  Thanks, we'll adjourn.

ADJOURNED INDEFINITELY                                                           [3.36 PM]





MARK FARTHING, AFFIRMED................................................................... PN1580

EXAMINATION-IN-CHIEF BY MS DOUST................................................. PN1580

EXHIBIT #HSU3 STATEMENT OF MARK FARTHING........................... PN1587

CROSS-EXAMINATION BY MR SCOTT..................................................... PN1602

RE-EXAMINATION BY MS DOUST............................................................. PN1634

THE WITNESS WITHDREW.......................................................................... PN1646

EXHIBIT #HSU4 STATEMENT OF ROBERT SHEEHY............................ PN1669


EXHIBIT #HSU6 STATEMENT OF WILLIAM ELRICK.......................... PN1669