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Fair Work Act 2009                                       1056833






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Social, Community, Home Care and Disability Services Industry Award 2010









9.43 AM, WEDNESDAY, 20 MARCH 2019


THE COMMISSIONER:  All right, I'll the take appearances.  I'll start in Melbourne, please.


MS R LIEBHABER:  Commissioner, Liebhaber, R, for the Health Services Union.


THE COMMISSIONER:  Thanks, Ms Liebhaber.


MR M PEGG:  If the Commission pleases, Pegg, initial M, (indistinct).


THE COMMISSIONER:  Sorry, can we just - all right, just be careful of having documents and things near your microphone, because we get a lot of feedback.  Sydney?


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


THE COMMISSIONER:  Thanks, Ms Dabarera.


MR M ROBSON:  If the Commission pleases, Robson, initial M, for the ASU.


THE COMMISSIONER:  Mr Robson, thank you.


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


THE COMMISSIONER:  You need to get a microphone closer, Mr Ferguson - couldn't hear you.


MR B FERGUSON:  Ferguson, initial B, for the Australian Industry Group.  Is that better?


THE COMMISSIONER:  That's better, thanks.


MS N SHAW:  Shaw, initial N, for AFEI.


THE COMMISSIONER:  Thanks, Ms Shaw.  We'll go to Newcastle.


MR K SCOTT:  If the Commission pleases, Scott, initial K.  With me is Ms M Tiedeman for Australian Business Industrial, New South Wales Business Chamber, Aged & Community Services Australia and Leading Age Services Australia.


THE COMMISSIONER:  All right.  Thank you, and Adelaide have joined us.  Who's there in Adelaide?


MS E VAN DER LINDEN:  If the Commission pleases, van der Linden, initial E, and with me is K van Gorp, and our apologies for being a little bit late.


THE COMMISSIONER:  That's all right.


All right, so this matter was listed for mention and the driver for that was correspondence received that was sent to his Honour Ross J on Friday 15 March by Mr Scott and it referred to the hearing that's listed for 12 April, and I think if I can summarise the eight points that were made the essence of it was that Mr Scott was proceeding on the basis that there was an agreed package that, notwithstanding that, other aspects of claims have been introduced by way of submission that they were not expecting in light of the agreed package and queried whether the HSU were in a position to do so; and ultimately sought a relisting for mention so that the status of the consent package could be clarified and determine what, if any, other directions might need to be made to deal with other substantive claims.  So that's where we'll start.  Mr Scott, what do you want to say?


MR SCOTT:  Thanks, Commissioner.  Look, I think we've set out in some detail the basis upon which my clients have sought for the matter to be relisted, and I think there's two aspects to the proceeding at the moment which is of some concern to my client, or my clients, sorry.  The first is that we're now faced with claims from the HSU which were not foreshadowed back in November last year.  So the HSU filed a member draft determinations in February and it includes at least three claims that the union had previously agreed to withdraw those claims, which was an element of the consent package that was made back in May 2017.  So the first aspect is that there are at least three additional claims for which our clients were not aware were being made and are now having to deal with on the hop, if you like, in terms of preparing reply materials for those claims and - - -


THE COMMISSIONER:  Well, can I just - - -


MR SCOTT:  - - - the second - - -


THE COMMISSIONER:  Okay, just to pause there for a minute.  You were on notice that the HSU were, notwithstanding agreed - the consent position that was a consent position.  It may not be a consent position now but isn't it the case that the - so you were aware that the HSU was straying from what you thought was the consent position on 15 February when they filed their materials.  Is that right?


MR SCOTT:  Look, it did take us some time to review the materials.  You'll appreciate, Commissioner, that the three unions filed folders' worth of material on 15th and 18th February so I must admit it did take my office some time to become aware of the fact that the HSU were pursuing previously withdrawn claims.


THE COMMISSIONER:  It's not an issue for me whether you took some time to read what they sent in.  I'm asking you, you were on notice, weren't you, from the 15th or 18th February that the deal that you thought you had perhaps - or, you know, perhaps it's still there.  I don't know.  I'll hear from the HSU later.  But you were aware that they were pursuing those matters from the 15th and/or 18th February.  Is that right?


MR SCOTT:  That's right.  But the fact that those claims were being pursued was on record from 15 February.




MR SCOTT:  Now as soon as my office became aware of the fact that there were these claims being pursued we immediately wrote to all of the unions seeking some clarity as to the situation and the status of the consent package.


THE COMMISSIONER:  When did you write to them?


MR SCOTT:  If you bear with me.  7 March we wrote to Ms Svensden of the HSU.  We received a response later on the 7th of that day from Ms Svensden.  We then responded in more detail on the morning of 8 March, again seeking some clarity as to the status of the consent package.  The email that we received from the union wasn't unambiguous so we then communicated again on 8 March.  We had no response from the union and I followed up with them again on 12 March again seeking clarity.  I received an email from Ms Svensden of the HSU on 13 March indicating that the HSU does not regard itself as having walked away from the consent package, hence my ongoing confusion with the status of the matter.


I then responded yet again to the union on 14 March again looking to get some clarity and foreshadowing that if there was no clarity, you know, coming from our communications that I foreshadowed that the matter may need to be, or my clients had the view that the matter may need to be relisted for mention, and then I believe we sought and requested that the matter be relisted for mention on the 15th.  So the chain of correspondence I have between the union involves a number of emails between 7th and 15th March, or 7th and 14th March before the matter was sought to be relisted on 15 March.




MR SCOTT:  So I can assure you, Commissioner, that we have notwithstanding the delay in us initially identifying the situation we took immediate steps to seek some clarity.  Look, I think it seems clear to me now that the consent package has fallen over.  Whether you know - not looking to - well, avoiding the question as to who has walked away from what consent package, because there seems to be some conjecture as to whether the employers walked away or the employees walked away or the unions walked away, the reality seems to be that the consent package has now fallen over.


And so from my clients' perspective there's two issues of concern.  The first was the one I ventilated which was that we're now dealing with - now that we do seem to have some clarity we're now dealing with claims that previously were not foreshadowed.  And secondly an element of the consent package was that my clients agreed to withdraw certain claims.  Now if the consent package is no longer on the table my clients will be seeking - and I do have some instructions my clients will be seeking to ventilate some of those previously withdrawn claims.


Now that obviously causes some concern in terms of the hearing that's listed for 12 April and the practicality of my clients being able to pursue those matters at this late stage, and obviously that's regrettable, it's unfortunate.  But it's the situation that at the very least we appear to be in, subject to hearing from the HSU and getting some confirmation that that is the case.


THE COMMISSIONER:  Okay.  So the state of the directions that we have is that that are attachment B to the directions sent on 13 November 2018.  That's right, isn't it?


MR SCOTT:  Look, Commissioner, I don't have them in front of me but I understand that there was amendment to the directions made in February or late January whereby the unions sought an extension of about four weeks to file their material.  So under the relevant directions at the moment the employer parties or the respondents to the unions' claims are required to file their submissions and materials by 5 April in advance of a 12 April hearing date.




MR SCOTT:  And so obviously in order for my clients to be pursuing their claims we're going to need a period of time to file draft determinations and then have an opportunity to put our materials on.


THE COMMISSIONER:  So what is your proposed timetable, Mr Scott?


MR SCOTT:  I don't have a specific timetable proposed but in rough terms it would be that my clients have a period of, say, seven to 14 days in order to formulate the claims that they wish to run and to file draft determinations and then thereafter there will need to be a period of around about six weeks to allow my clients to prepare submissions and endeavour to obtain evidence in support of those claims so from where I'm standing, the numbers don't add up in terms of being able to maintain the 12 April hearing date.  I think the other thing that's worthy of mention is that there is some interrelationship or there will be some interrelationship between the claims that my clients will press and the claims that are on foot by the union.


So to the extent that the Commission in the past has had arbitrations involving part A and part B, I'm not sure that we can have a situation here where the unions run their claims as part A of a proceeding on 12 April and that there be some later part B of the proceeding, given that the fact that the claims are going to be intermingled and directly competing against each other.




MR SCOTT:  So in a nutshell, Commissioner, without wanting to say it, my client's view is that the hearing on 12 April will need to be vacated.


THE COMMISSIONER:  Okay.  I might go to United - sorry, to Ms Liebhaber from HSU next, since your organisation is I guess named as the major culprit in this.  So what's the situation, Ms Liebhaber?  Is the consent package still intact?  What are you pursuing?  Do you say what Mr Scott says?  Stand up when you're addressing the Commission.  Thanks.


MS LIEBHABER:  Commissioner, we (indistinct) we file our submissions in accordance with the directions.  We (indistinct) have the opportunity to do so and didn't.  We strongly oppose the idea, given an extraordinarily long and additional amount of time.  We don't believe that they worked (indistinct) were foreshadowed but came to be withdrawn around the joint agreement listed.  It was mentioned in the mentions in October and November that the unions had withdrawn - that all parties had withdrawn claims around the joint report who is also understanding that there would be some - as I understand there would be some complication around the joint report for submission (indistinct).


Unfortunately it became clear on 8 February that there were serious issues with the agreement, that AIG, who previously had not had an interest in these proceedings, came into the proceedings and that parties had changed their view.  From our perspective, (indistinct).  So we would like, from our perspective, to file those additional claims based on the claims you have withdrawn.  I also note that the sweep over claim that Mr Scott chose to - that was specifically discussed in the conciliation.  The issue was around the question of security and what that meant and Commissioner Lee - my recollection of that conciliation talked about having that carved out, to be able to be heard.


So AI definitely had notice that the sweep over issue would be heard and from our perspective, that was what our submissions went towards (indistinct) sweep over claim.  So (indistinct) have had an opportunity to file submissions.  They have an opportunity to file submissions in reply, if you don't think that the dates should be changed to accommodate them and we also note that it's taken a month for them to read our submissions, which - we don't think that that's acceptable that they should be allowed extra time.


THE COMMISSIONER:  Okay, so you think the directions - and I've got the amended directions here, that was referred to, 4 February - that those directions should stand, is your position?


MS LIEBHABER:  Yes, Commissioner.


THE COMMISSIONER:  Yes.  Well, look, we'll go back to the other employer orgs.  Mr Pegg, what do you want to say?


MR PEGG:  Commissioner - - -


THE COMMISSIONER:  You can stay seated.


MR PEGG:  We also seek clarity about the status of the joint report.  Part of the basis of those matters that were originally settled was that they were priority matters so from our point of view, some of the - a number of the matters that were in that joint submissions from priority claims for (indistinct) services.  So if in fact that deal has fallen over, then we would be wanting to be able to pursue those claims again because (indistinct).  So it's not just a matter of claims the union's brought.  The substantive issues in that joint report run to the priority issues for us.


THE COMMISSIONER:  All right.  Has the deal fallen over, Ms Liebhaber?


MS LIEBHABER:  To be honest, Commissioner, I think the status of the joint report is unclear.  I don't think the (indistinct) necessarily fell over but seeing that (indistinct) that the - what we believed was the understanding of all parties around travel time claims, (indistinct) see that in the conciliation there was quite a departure from that understanding from employers' perspective.  That was essential to the (indistinct).


THE COMMISSIONER:  Well, let's put it another way - is there any elements of the consent package which remain agreed to?


MS LIEBHABER:  I think there were some elements in the package that were agreed.  But we did consider (indistinct).  I don't think - the employers can't have it both ways.  They can't want the consent package to remain but be able to water down some of the agreements that are reached and some of the points.


THE COMMISSIONER:  Well, but you also see it as a package so the summation is, isn't it, that the package no longer holds?


MS LIEBHABER:  Yes, Commissioner, that might be the case.


THE COMMISSIONER:  That would appear to be the case, so there is the clarity, Mr Pegg.


MR PEGG:  Sorry?


THE COMMISSIONER:  There is no package.


MR PEGG:  So that makes an issue for us - a number of the substantive items in that package remain things that we would want to pursue and so that is obviously how - - -


THE COMMISSIONER:  Wasn't that clear on 15 February when the HSU said, "Well, this is what we're pursuing?"  For myself, as a member involved in the conciliation, it was fairly evident that fractures emerged in significant components of the package and my recollection of where we left matters was that the parties would simply file in accordance with the directions as to what they wanted to pursue.


MR PEGG:  I don't think that is the impression that I took.  The impression that I took was that it was a bit up in the air and at the beginning of the process, when Australian Industry Group first intervened, the understanding that we had was that subject to how the matter proceeded, all parties would reserve their rights in relation to joint proposals - - -




MR PEGG:  - - - depending on where it all ended up.




MR PEGG:  So there was always - certainly our perception was that it was a parallel process or a separate process to the other substantive claims as listed in the directions in November.


THE COMMISSIONER:  I don't know how you get to that point, Mr Pegg.  There are claims that are pursued, and there are claims that are not pursued.  Some of them may or may have not been pursued, because they were part of the package.  If the package isn't there, then it might be that those claims are being pursued again, and all parties are free to abandon their positions in that environment and do what they want to do.


MR PEGG:  So it's a timetabling problem.  So from where we've got to in conciliation in relation to the joint proposals up till this morning, it hasn't been clear whether any or some or all of that package still remain.  So the timetabling for us to lodge submissions and evidence in support of the claims that we might want to still pursue, there has been an absolute lack of clarity about how we do that.  Our understanding of the directions to date have been the substantive claims were as per the (indistinct) that's attached to the original directions, and the submissions are due on 5 April for any parties who want to respond to those claims.  But that's separate to what we're trying to do with the joint submission, trying to either salvage it or (indistinct).


THE COMMISSIONER:  Yes, but there's no separate directions dealing with the joint submission, is there?  I mean, correct me if I'm wrong.  I'm not sure that there is though.


MR PEGG:  I'm just harping back to the original hearing before Ross J.  The issue came up with that (indistinct).  What happens if the (indistinct) joint proposal falls apart, or what happens if it falls apart and then will parties have the right to re‑agitate claims made (indistinct).




MR PEGG:  And the discussion of that point was that these were being dealt with separately.




MR PEGG:  At the moment we proceed with the substantive claims that hadn't been settled as part of the total package.  That's what the current process (indistinct).


THE COMMISSIONER:  I see.  All right.  Mr Ferguson?


MR FERGUSON:  Yes.  From our perspective, we had I suppose shared in the concern about there being some confusion around the precise status of the joint report.  When we received the union's material, it seemed evident enough that the HSU were clearly pursuing a separate claim, some matters which had previously been the subject of the joint report.  So it seemed that they had at least stepped away from relying on that document, at least entirely.  I think part of our confusion was I think the United Voice's material seemed to take a different approach, and they seemed to press or rely upon the joint report as though it's still a continuing proposal that is relevant to these proceedings.




MR FERGUSON:  So we've seen that those parties were at loggerheads.  We were uncertain of course what view the employer parties were going to take.  From our perspective, when the conciliation ended, it seemed to us at the time that we were making good progress towards at least narrowing some of the differences, but that we hadn't got there because we had run out of time and that, you know, ultimately we hadn't reached a resolution, as such, on that.  We sort of sought to have some discussions with the other union parties at least to see whether a resolution could be reached.  We weren't confident that one could be.  So we've been sort of proceeding on the basis that we might have to respond to the joint report in some way or another because it was put in issue by at least United Voice, and that we would have to respond to what we observed were additional claims from the HSU at least, and we've been endeavouring to sort of prepare on that basis.


It seems to me, if I recall correctly, that when this matter was first listed, it was envisaged that in the event that the joint position fell over the parties would be given an ability to re‑ventilate claims or perhaps to seek liberty to re‑ventilate claims.  I can't recall precisely which, and that on that basis if employer parties - you know, if others now say that the joint document is being walked away from, the employer parties should be given an opportunity to ventilate their claims.  From our perspective, we would obviously want to know what claims they're raising and what material they're advancing in support of that before we are put to the task of continuing to prepare for the case, because I'd make the assumption that there is a degree - as Mr Scott has said, early interaction or interconnectedness between the various issues, and that seems obvious enough from the conciliation proceedings.  So we're in a predicament now where we've got these hearing dates scheduled rather imminently, but we don't know the full variety of matters that will be in contest.


So it seems to us that there is some force to Mr Scott's proposal that that timetable should be vacated and a new timetable set down.  From our perspective, I think we would also say that we are endeavouring to work within the current timetable to respond to the materials that have been put on by the union, but that timetable has been significantly truncated, I think.  It was pushed back by something like a month at the union's request.  We're hoping to be able to accommodate it, but it may be, given the volume of material that has been advanced, that we might ultimately have needed to seek some further time, but we didn't want to do that lightly or unnecessarily.  Of course, that concern would be addressed if Mr Kyle's position was adopted.  So it seems to us that there does need to be some new timetabling of the matter.


The other observation I'd make is that I think the matter is currently listed for something like five days, all consecutively, but there seems to be quite a significant volume of material that has already been put on, and I just query whether it would be practical to deal with all the evidence, and then to move into closing submissions within that timeframe in any event, especially given that there's only a short timeframe - or a separate issue perhaps - there's only a short timeframe between the filing of the reply material and the commencement of the hearing.  So it may well be that if the parties are now putting on significant new proposals in response to the union's material, which it could be, I just query whether those dates would be workable in any event.  But ultimately, from our perspective, we think there's force to what Mr Scott is putting about the need to revisit the timetable.


THE COMMISSIONER:  All right.  Ms Shaw?


MS SHAW:  Yes, I don't think we need - we're kind of on the same page as the other employer parties.  Our understanding was kind of unclear of the status of the report where it was left, and we were kind of hopeful that we could maybe have a lot of the issues sorted out and just deal with some of those issues that both parties were separated on.  But also our understanding was that if it was to fall over, then parties would be given the opportunity to put further claims about the award.  So we would be supporting Mr Scott.


THE COMMISSIONER:  Yes.  Ms Dabarera?


MS DABARERA:  Yes, Commissioner.  Our position when we filed our submissions was that we were hopeful that the joint report was not going to fall over, although it was quite ambiguous at that time.  We filed on the basis that the joint report was still (indistinct), and we reserved our right in our submissions to pursue the further claims that we had withdrawn in the circumstances that the joint report fell over.  On the basis of some discussions that have occurred between ABI and the unions, which Mr Scott referred to earlier, the correspondence in March, it's apparent to United Voice that the employers are moving away from key aspects of the joint reports, particularly the travel time claim, and we see that as a package.  We wouldn't agree to the joint report in the circumstances that the travel time matter was withdrawn or diluted, in a sense.


So because of what became apparent within those discussions, we are considering filing some further material regarding the travel time matter, including supplementary - of the three witness statements we have filed, we're considering filing two supplementary witness statements from two of those witnesses regarding travel time.  We think it's a - it's quite a significant concern that the travel time matter appears to have fallen over.  We don't think it's necessary to push the hearing dates back.  I think it has been flagged that the travel time matter is a concern and has been on note that that in particular is a concern, so we don't think it's necessary to push the hearing dates back, and we're willing to file within the reply dates.


THE COMMISSIONER:  Willing to file what, your additional witness statements?


MS DABARERA:  Supplementary statements from the two witnesses that we've already filed statements from.




MS DABARERA:  But they would be brief supplementary statements.  They wouldn't be more than one or two pages but going specifically to the travel time matter.


THE COMMISSIONER:  All right.  So you oppose any amendment to the directions?


MS DABARERA:  We do, Commissioner.




Mr Robson?


MR ROBSON:  We share the views of the HSU and ASU.  We filed our submissions unclear about the status of the joint report, hopeful that agreement could be reached but acknowledging that there seemed to be some new disagreement about the meaning of parts of it.  Certainly we took the joint report as a package so nothing was agreed until it was all agreed, and again we reserved our rights to file further claims if and when the joint report fell apart.  It appears to have done so now.  We think our claims can proceed on 12 April.  If there is some need for the employer parties to run further claims I think that could be scheduled later, but I think we do need some clarity about the claims that have been filed in accordance with the directions.


THE COMMISSIONER:  So you say on 12 April deal with the union claims and evidence in support and then consider if there's a need for further hearings after that?  I mean at the moment the listing is just for the Friday, further listed for hearing on 15 April to 18 April if required.  Is that what you're saying, Mr Robson, that your suggestion is that the Friday the 12th be used for the union advancing their claims whether they're part of a consent package or not - the chances are they're not - putting on evidence in support of those?


MR ROBSON:  Well, Commissioner, what we're saying is that there are claims that were filed in accordance with the directions.  We don't know if there are going to be further claims from the employer parties or from the union parties.  We think those claims should be heard in accordance with the directions and if the employer parties do have additional claims well, I think they need to explain what they are and justify why they need to be heard.  And if they do want to bring further claims, as we've noted in our submission on 15 February we reserve our right to file additional claims if the joint report has genuinely fallen over.




Sorry, I've overlooked Adelaide.  What do you want to say?


MS VAN DE LINDON:  Thank you, Commissioner.  Look, we share the views of the other employer parties.  We believed that the joint report although some areas were still in contention, that it was still on foot, and the employers have proceeded on that basis.  Business SA doesn't have any claims at this point that were withdrawn but we do believe that the employers should be given the opportunity to file any additional claims which were previously withdrawn on the basis that the joint report was going ahead.




MS VAN DE LINDON:  So I guess we support what ABL have put forward.


THE COMMISSIONER:  All right, well, we have a delightful lack of consensus.


Any responses from - anyone else want to say anything?  I'm going to adjourn briefly and consider that matter.


MR FERGUSON:  Mr Ferguson here.




MR FERGUSON:  Just in relation to what United Voice has put, our real concern - - -


THE COMMISSIONER:  I can't hear you, Mr Ferguson.


MR FERGUSON:  Sorry.  Sorry, I'll move the mic back.  In relation to what United Voice have put we're just concerned that they're now proposing to put material on perhaps in response to the union claims or to supplement their current material.  We had in the original directions expressed a concern that the way the directions were worded might leave it open to the unions to do that.  I think there were some assurances from the unions that they wouldn't and that the President indicated I think that he would sort it out if they did.


It's obviously unfair for the unions now to put on further material in support of one of the claims at the time the employers put on their reply.  We should have all - know all the material that we're responding to before we're required to provide or prepare our material.  So again we think that if they're to press that and it's to be accepted that would probably add further weight to the need to revisit the timetable.


MS DABARERA:  Commissioner, can I say in response to that our material in regards to travel time is not in reply to the HSU's material.  We had an original claim in relation to travel time.  Our material and the reason we're looking at putting on supplementary statements from two of our witnesses is because of the correspondence of last week, specifically one of the letters from ABI on Thursday 14 March which indicated to us that the consent position had fallen over, and it was at that point that we determined that we should consider putting on supplementary statements.  So it's not in reply to the HSU's material.


THE COMMISSIONER:  All right, it's a bit difficult to maintain the position that the timetable should remain but you think that you should be able to amend the position because the consent position's fallen over and you've only just become aware of that, isn't it?


MS DABARERA:  Well, if we do file this material the two witnesses who've filed - the two witnesses that we're going to file additional material from or are considering filing additional material from have already filed on the issue of broken shifts, and the issue of travel time relates quite closely to that so we don't see this as being - you know, adding substantially a lot in terms of what the employers would have to respond to.  We're happy to look at filing earlier but we are just mindful that we just have to prepare that.


MR FERGUSON:  Sorry - - -


THE COMMISSIONER:  All right.  Look, I just put this proposition to all of you.  It seems to me that there's likely going to be the need for some further time allocated in light of the consent position no longer holding force.  But I'm struggling with the notion that we can't proceed on 12 April on some basis where there's presumably a large amount of claims that were always being pursued, were known to all the parties and were always going to be the subject of some contest irrespective of the consent position.  Isn't there some element - and I will come back to you, Mr Scott, on this - isn't there at least some components that can be - because as you all know I'm fairly familiar with this award and I don't accept the argument that the whole lot is connected.  There are definitely, if you like, severable tasks that could be dealt with surely?


MR SCOTT:  Commissioner, I'd have to have a closer look at all of the claims.  My first thought is that notwithstanding an initial view that surely some of the claims are not interrelated, the reality is in my view that despite on first glance not appearing to be interrelated ultimately when you dive into the detail they are.  And so for example if you look at minimum engagements, broken shifts, travel time, they're all clearly interrelated when you get to the evidence and the submissions as to the merits of pursuing a shorter or longer minimum engagement, restrictions on broken shifts, whether there needs to be some compensation for travel time between broken shifts.


Now perhaps sleep overs jumps out at me as being something that may be more easily hived off and dealt with separately.  But I think virtually all of the others, even things like client cancellations, most of the evidence is going to be around the reforms in the space of the NDIS and so I think it's going to be difficult - and we had this experience three years ago now where one of my client's claims around part‑time employment was hived off to the Common Issues Casual and Part‑Time Employment Full Bench, and now my view certainly is that looking back now that claim should have been and would have been better run and the bench would have been better able to deal with that claim and that's no criticism of the bench.  But the claim would have been more effectively dealt with in circumstances where that particular issue and that particular clause of the award was looked at not in isolation but looked at holistically in the context of what all the other surrounding provisions that all do bear on each other.  So it may be possible to hive off some of the claims but if I just respond to some of the submissions that we've heard, briefly, it's a little but baffling to me that we can sit here today and hear from the HSU - having heard today from the HSU saying clearly the consent package has fallen over.


For the last three weeks my client has been trying to get some clarity and on each occasion we get a little bit of information but no certain - no definitive response that the consent package has fallen over and then I hear a submission today saying that my client had an opportunity to pursue the claims that they wanted to pursue and that is plainly wrong, when we have a look at the fact that an element of the consent package was that my client agreed to withdraw claims.  So the earliest time at which my client was on notice that they could have pursued those claims was 15 February.


But even today we're hearing from parties, including some of the unions, saying today on 20 March that their understanding was that the joint report was still on foot.  So I'm not making any criticism to the other party.  It's a difficult situation and there's been uncertainty across the board since late last year but the reality is there are a number of parties - not just my clients - who had agreed to withdraw claims.  As a matter of procedural fairness, if the consent package has fallen over, there needs to be a sensible timetable set down where parties can ventilate their claims and it seems that what I'm hearing is the unions saying my clients had their opportunity to pursue their claims and we somehow chose not to.


Yet we hear a submission from one of the unions saying now that they're aware that the joint report has fallen over, they might want to pursue some claims for which they haven't (indistinct) what they are and we hear that one union wants to - sorry, I withdraw that.  We hear that one of the unions is considering filing two witness statements.  They're not indicating whether or not they will or not.  They're just claiming they might and they're claiming that they might file those on 5 April in support of union claims going to a hearing on 12 April.  5 April is of course the deadline for the employer parties to file materials in response.


So to be frank, I'm baffled as to how that timetable is workable from the perspective of providing all parties with some procedural fairness.  Now, in terms of where we're left with and the hearing dates - well, the hearing date because my understanding is the matter is only listed for one day - - -


THE COMMISSIONER:  That's right.


MR SCOTT:  - - - on 12 April, there is potentially two options for use of that date and I think it's sensible that that date be utilised efficiently.  The first option is potentially if the parties are supportive, converting that date into a day of conciliation to see whether some of these issues can be resolved.  Now, given our track record I'm not seeking that the matter be for conciliation on that date because I have no confidence that we'll get anywhere.  But that is obviously one option.  The second option is - as, Commissioner, you flagged - seeing whether one or more claims could be dealt with discreetly if the Commission forms the view that they're not related to some of the other claims.


Now, my client's view is that this award is begging for a holistic review and it's not best-served by doing that dealing with clauses in isolation and that has been our experience by having run a claim (indistinct) proceedings - - -


THE COMMISSIONER:  Yes but, Mr Scott, perhaps you're misconstruing what I'm saying.  I understand obviously the whole award will get looked at.  Parties will be in a position to make submissions about, well, you know, "Bench, if you change this particular award clause we say it will have this effect on the other award clause and you need to bear that in mind."  That's all fine.  But you don't run the case about the award change in toto.  The fact is that you will all have to run your positions in respect of specific claims for changes to particular clauses.


I'm just canvassing whether - surely some of those could be - and it may well be I'm assuming that there will be evidence of particular folk that just go to those key issues.  But, look, it might be too complicated.  I'm just loathe, given the difficulties of pulling full benches together, I'm just loathe to not use that day.


MR SCOTT:  I appreciate that, Commissioner, and I accept that we can use the day.  We should.  I'm just being candid in my views as to whether it's practical and to take the example I gave of a sweep over, which seems to be - the one that comes to mind has been potentially a set of issues to some of the others which all intermingle.  Now, in relation to the sweep over claim, or the sweep over, my clients had (indistinct) for the sweep overs which was agreed to before I started (indistinct).  Each one of the issues that I have instructions to press in terms of reventilating the previous withdrawn claims so even in relation to sweep overs, my clients would be pressing a variation and there needs to be some process by way - you know, that allows them to file a draft determination and file submissions and evidence in support of that.


Unfortunately we are not in a position to do that on the 12th.  But perhaps there is some other clauses which I'm overlooking - some other clauses or some other claims - that can be dealt with on the 12th.


THE COMMISSIONER:  Yes, who is that, sorry?  Ms Liebhaber, yes?


MS LIEBHABER:  Mr Scott, we also - the HSU also have sweep overs that we reserve our right to pursue.  We withdrew that from the joint report and do not include our claim sweep overs in our submission but only reference the sweep overs around insuring provision of security and what that means.  So I don't think that Mr Scott can say that he was disadvantaged in that way because he was at the conciliation on 8 February.  We discussed the sweep over clause and that issue around what security meant while (indistinct) provided the sweep over.  I just wanted to make that clear.


THE COMMISSIONER:  Yes, I just don't know that we're reserving our rights.  It's on, you know?  At the moment it's on so you are either pursuing things or you're not, right?


MR SCOTT:  Commissioner, it's Mr Scott here.  I don't want to descend into tit for tat but just in terms of the sleep over claim, again, I mean, that is just wrong in terms of saying the only issue in dispute was this notion of security.  Now, putting aside the without-prejudice discussions around the joint consent package what I'm referring to is a claim which is set out in the joint report whereby my clients had a claim to vary the clause to allow sleep overs to count as a break between shifts in certain circumstances and subject to certain conditions.  It's item 39 at annexure B of the joint report.


That is the sleep over claim that I'm referring to which my clients wish to press so it's not correct to say that the only issue relating to sleep overs is this notion of security.  That relates to the joint consent package which I think the HSU have told us is off the table but again, it's not really clear, Commissioner.


THE COMMISSIONER:  Well, let's just get that clear.  I think that, as I heard the HSU position earlier, Ms Liebhaber, you just need to be clear what it is - - -


MS LIEBHABER:  I just - - -


THE COMMISSIONER:  Is the consent package still there or is it gone?


MS LIEBHABER:  From our perspective it was a joint package and if it can't be agreed with (indistinct) then it's gone.


THE COMMISSIONER:  SO it's a fact, is it, you agree with the proposition that your - this is not about a blame thing but your union is pursuing matters that are, well, inconsistent with the consent package?


MS LIEBHABER:  Well, after the outcome of the conference on 5 February we wanted to make sure that those claims that we withdrew from the consent package whilst (indistinct) they would still be in consideration so that is why we filed those claims and we filed them according to directions.  But there were other claims, such as we also had a claim to increase the sleep over rate which we have withdrawn around a consent package.  That is something that we may intend to pursue, but we didn't have the time to prepare (indistinct) this matter.  So that was also something they withdrew.


The second issue that we pursued in our submissions was directly referring to the matters that were discussed at the conference on 8 February around what the employers were hired to provide, and what was meant by the term security.


THE COMMISSIONER:  I mean, can we get to this point today at least?  In circumstances where what I'm hearing is we're all reserving our rights because the entire - you have all said the package is a package and if we don't get all aspects of the package then the package can't hold.  That's right, isn't it?  If anyone disagrees with that proposition say so now.  No.  And in circumstances where it is clear that no side has everything that they want as part of the package, it follows then that there is no package; there is no consent position that's being advanced.  Is that right, or wrong?  I will put it to you this way.  I think that that's the only conclusion that can be reached.  Does anyone want to say anything different to that?  Okay.  Well then I will consider what we do on that basis if there is no consent position, and that you will be prosecuting matters on that basis.  I accept that that does alter the position.  We can spend some time considering at what point you should have all known that that was the position.  It would have been good if you had sort of got your heads around that a bit earlier.  For myself, I thought it was pretty well emerging as a reality around the time of the conferences before me.  But against that, I accept that we did leave it on the basis, as someone said, there was some element of up‑in‑the‑air in that you were still going to get together and try to form some sort of consent position, but that hasn't occurred.


I'll just go back to the conciliation proposal, which I can't say excites me greatly, but Mr Scott has raised it as a prospect for 12 April.  Is there anyone else interested in engaging in further conciliation about this matter?  I'm not saying that this is something that we will do, but I just want to hear any views about that idea.


MR FERGUSON:  Commissioner, Mr Ferguson here.  Just firstly, going back to that question about whether the 12th could be used for some other - - -


THE COMMISSIONER:  I can't hear you, Mr Ferguson.


MR FERGUSON:  Going back to the question about whether the 12th could be used to deal with some issues.




MR FERGUSON:  I share some of Mr Scott's concerns that at least some of the evidentiary or merit‑based arguments might be common to many claims.




MR FERGUSON:  It's hard to say conclusively to all.




MR FERGUSON:  But to many, and that why I'm a bit concerned that just splitting it up might not be a particularly efficient way to deal with it.




MR FERGUSON:  In terms of the conciliation, we would be amenable to engaging in further conciliation.  As I said, I think we're making progress in narrowing the scope of things we're arguing about, in the sense that we might have had less to argue about in the context of particular clauses that were being advanced, and it seems to us that that might be a realistic goal and it might be that some of the further claims that are now being, you know, ventilated, or possible claims might be narrowed, if we could reach a level of agreement.  But from our perspective, we're prepared to again engage in that constructively and do work around that, but it depends on whether others are taking the view it's an all or nothing type situation.  Because that's where, from my perspective, I understand that the deal fell apart, is that people have the view that we had to reach agreements that were on absolutely everything, or nothing was going to be a consensus.  So I think if people are maintaining that view then there's probably not much utility in it, but if people are wanting to at least narrow the differences then we would be prepared to participate.


THE COMMISSIONER:  Yes, okay.  I think that's probably right that if there's any utility in it, it will be to narrow the scope about what it is you are arguing about.  Any other employer views about that?


MR PEGG:  Yes, Commissioner.  I think we would have some interest in conciliation of how confident we are that we can get (indistinct).  It just strikes us that we're able - this is a clear sticking point in where we got to on 8 February - a large part of the deal is salvageable if we could figure out how to get past the one big sticking point.  So from our point of view - - -


THE COMMISSIONER:  The big sticking point being - - -?


MR PEGG:  The travel time.




MR PEGG:  So from our point of view, if there's some prospect of salvaging some or all of the deal through further conciliation, we would prefer that to having to contest a whole - - -


THE COMMISSIONER:  Run every point.


MR PEGG:  - - - (indistinct) additional claims.  At this point, I'm not certain about what the consequences are, obviously since conciliation, but we would certainly be open.


THE COMMISSIONER:  Well I think success - I agree with what I think Mr Ferguson is saying that success would probably be measured by being able to narrow the differences, and that would be the objective, but I don't hold up much prospect, having been involved in two, that you will actually be able to completely reach agreement, but anything is possible.  Other employer views on whether conciliation would be a useful activity on Friday 12 April?  If not - - -


SPEAKER:  We're willing to participate in the conciliation on 12 April if it goes ahead.  I think we've got concerns, as everyone else does, as to how far we'll be able to advance.  Having said that, I think it is worth the go in comparison to the alternative.  If we can reach agreement on at least some of these areas, it would certainly be beneficial in the long run as far as timing goes.


THE COMMISSIONER:  Yes.  Any other employer views?


MS SHAW:  AFEI would be open to further conciliation about it.  I guess the thing will be, as Ferguson said, is if the parties it's all or nothing, then there's probably no point, but if - we would be happy to try and narrow those issues down and just have further discussions on those.


THE COMMISSIONER:  Yes.  Any other employer views?  No?  So Ms Liebhaber, your views about conciliation on 12 April?


MS LIEBHABER:  Commissioner, our view that we've got the package, the joint package, is (indistinct) as a package.


THE COMMISSIONER:  There is no package.  We've just crossed that river, haven't we?


MS LIEBHABER:  In that case, I don't think there is value in conciliation on the basic pieces of the package (indistinct) - - -


THE COMMISSIONER:  The purpose of the conciliation, I'll say it a third time, would be to narrow the differences between you.  I don't think it's about trying to put the package back together.  It's clear that that's fractured.


MS LIEBHABER:  We'd be willing to (indistinct), but you know, the main issue is travel time (indistinct) and that could (indistinct).  I just raise that (indistinct) about that clause, and that was the main (indistinct).


THE COMMISSIONER:  Yes.  Might be able to maybe reduce the amount of differences perhaps over that clause just to one or two things, you would agree?


MS LIEBHABER:  (Indistinct).  I suppose my concern is that (indistinct).


THE COMMISSIONER:  Well that's just a matter for discussion in the conciliation, isn't it?  All right, anything else you want to say?


MS LIEBHABER:  (Indistinct).




MR ROBSON:  Commissioner, we're open to conciliation, again sharing the doubts of the other parties about reaching agreement on the total package.  I would say what might assist us to at least narrow the issues, if there's any value to that.  If anyone who intended to file additional claims had filed them - draft determinations at least, well ahead of 12 April, that I think would make it clear to the parties participating where everyone was going with what they would take to arbitration rather than talking about agreements that were made three years ago nearly now, that seem to be evaporating.




MS DABARERA:  Commissioner, from the point of view of United Voice to be honest with you, Commissioner, we don't think that it would be useful to have a conciliation.  In the last two conciliations there's been a lot of disagreement around the issue of travel time and that's something that we're not looking at accepting a watered down version of.  If the Commission determined there was to be a conciliation obviously we'd participate but we don't think it's useful and we think we should continue with pursuing the claims to arbitration.




Any other views from anyone about anything?  No, all right, I'm going to adjourn for 15 minutes or so, have a think about this and we'll resume at 11 am.

SHORT ADJOURNMENT                                                                  [10.46 AM]

RESUMED                                                                                             [11.17 AM]


THE COMMISSIONER:  Thanks, everyone.  I have considered the submissions that the parties have made this morning.  I have determined that the amended directions that were made in Melbourne on 4 February 2019, which provide for the interested parties to file evidence and submissions in support of their claims on or before 4 pm Friday, 15 February 2019, interested parties to supply submissions and evidence in reply on or before 4 pm on Friday, 5 April, with the matter to be heard on Friday, 12 April will not be amended.  Those directions remain on foot.  Parties are expected to comply with them.


The hearing on 12 April remains listed.  The Full Bench will consider any procedural issues that may arise as a result of the matters that have been raised at the mention hearing today at that hearing on 12 April.  That is the determination.  The matter is concluded.  Thank you.

ADJOURNED UNTIL FRIDAY, 12 APRIL 2019                            [11.18 AM]