PN1

JUSTICE ROSS: Good afternoon. Can I just indicate who I believe I've got on the phone in respect of this matter. In no particular order, Mr Bull from the UWU; Ms Moussa from VAU; Ms Thomson from AFEI; Ms Fisher, from APIA; Ms Biddlestone from the SDA; Ms Bhatt and Mr Ferguson from Ai Group; Mr Pullin and Mr Richards from the Victorian Hospitals Industrial Association; Mr Harris from the Pharmacy Guild; Ms Wischer from ANMF; Mr Pegg from NDS; Mr Clarke from the ACTU; Mr Robson from the ASU; Ms De Vecchis from ASMOF; Mr O'Donnell from the Australian Dental Association Limited; Ms Liebhaber from the HSU; Ms Bailey from Leading Age Services Australia; Mr Arndt from ABI; Ms Baulch from APESMA; Mr Skulley observing from Workplace Express. Have I missed anyone? No? Well, I don't suppose you would know if I have left someone out who isn't there.

PN2

If I can recap in relation to this issue briefly. We had a conference in respect of the applications for pandemic leave in the various health sector awards on 14 April. I published a statement on 15 April summarising the outcome of the conference. Since that time some 10 applications have been filed relating to the awards which are the subject of this conference. On 28 April we received correspondence from the ACTU proposing a timetable in respect of the applications that had been filed.

PN3

Briefly, the timetable provides the applicants to lodge with the Commission any lay witness statements by 4 pm on Wednesday, 6 May, and to lodge any expert reports or statements by 4 pm on 11 May. Any persons opposing the application were to lodge witness statements and expert material by the earlier of 18 May 2020 or seven days after the day on which the ACTU lodges notice with the Commission informing it that it has lodged all the evidence it wishes to rely on. The matter be listed for a conference on 19 May and for hearing on the 25th.

PN4

Since that correspondence I've received correspondence from ABI - or was copied in with correspondence from ABI to the ACTU. The short version is complaining that the time provided for those opposing the claim to file material was insufficient and, as I understand it, seeking a variation to the proposed directions so that those persons opposed to the applications would lodge material by 8 June 2020.

PN5

Look, part of the difficulty - I should say, Mr Clarke, I'm not a fan of the proposed direction that says seven after the day on which you lodge notice. I think it's better to provide a clear date. It makes it a little bit hard to work out what ABI has said in response, but, in any event, the short point is I think, Mr Arndt, you were seeking four weeks after the applicants file their material. Is that right?

PN6

MR ARNDT: That's the short point, your Honour.

PN7

JUSTICE ROSS: Okay. AFEI has filed a note supporting your position. Can I hear from any of the other employer organisations before I go to the ACTU about its position.

PN8

MR FERGUSON: It's Mr Ferguson, your Honour.

PN9

JUSTICE ROSS: Yes.

PN10

MR FERGUSON: For our part, we're supportive of the position put by the other employer parties, but I must say from our perspective we're not certain that we would need the full four weeks, but we probably can't reach a clear view about that until we have seen all the material. We had proposed another way might be to have a directions hearing shortly after the material came in, but if the employer parties say they need four weeks, we're not going to argue against it.

PN11

One other constructive point though we wanted to raise was I think given the nature of the matter and the number of parties in particular, it might be prudent to require directions for filing of submissions, or at least an outline of submissions, just so that - - -

PN12

JUSTICE ROSS: No, I agree with that, Mr Ferguson. It was one of the issues I wanted to raise about the proposed directions. In my view they should be amended to require the filing of at least an outline of submissions.

PN13

MR FERGUSON: Yes.

PN14

JUSTICE ROSS: Okay.

PN15

MR FERGUSON: But as to timing, once we saw the material and had an opportunity to consult with the members about it, we would then make an assessment. I think seven days on any measure would be far too short to allow those steps, you know, to consult and then consider a reply.

PN16

JUSTICE ROSS: Yes.

PN17

MR FERGUSON: We're not sure we would need four weeks, but we can't commit to less until we have seen the material.

PN18

JUSTICE ROSS: No, I follow.

PN19

MR ARNDT: Your Honour, Arndt, from ABI and the Australian Chamber here. Just to clarify, the four‑week proposal from our correspondence - the intention was that that would include replying with an outline of submissions.

PN20

JUSTICE ROSS: Yes.

PN21

MR ARNDT: You know, the proposal would be that we would get everything done in a timeline and then move on from there.

PN22

JUSTICE ROSS: No, I follow. All right. Pharmacy Guild?

PN23

MR HARRIS: Your Honour, Harris. No, I am following along the leads of the other employer associations on this one.

PN24

JUSTICE ROSS: Thanks, Mr Harris. The Victorian Hospitals Industrial Association?

PN25

MR RICHARD: Yes, your Honour, it's R. Richards. We would agree with the other employer organisations on that one and would follow what they have proposed.

PN26

JUSTICE ROSS: All right. The PHIA?

PN27

MS FISHER: Your Honour, yes, we would follow the other employers' recommendations, too.

PN28

JUSTICE ROSS: Mr Pegg?

PN29

MR PEGG: We probably wouldn't need the full four weeks, but we certainly expect that the employer organisations would, so we don't oppose the employer - - -

PN30

JUSTICE ROSS: All right. Is there any other employer organisation who takes a different view?

PN31

MR O'DONNELL: Your Honour, Mr O'Donnell on behalf of the Australian Dental Association. Just to note that we share the position put forward by the Australian Business Lawyers and the other employer groups.

PN32

JUSTICE ROSS: Okay. Can I go to you, Mr Clarke, bearing in mind that - if I can start with your draft, just the structure of it for the moment, not the timing. I would rather you just merge (1) and (2), so you can provide any witness statements upon which you wish to rely by a certain date and you would also be filing an outline of submissions by that date. What would that date be? Presumably 11 May?

PN33

MR ARNDT: Yes, your Honour.

PN34

JUSTICE ROSS: I don't see any utility in separating it by witness statements or expert reports. All your material by 11 May, including an outline of submissions. What do you say to the employer proposal that they then want a period of four weeks after 11 May - well, subject to the point Mr Ferguson raises, which I think that puts you around 8 June. I might not be right about that, but do you have the same calculation, Mr Arndt?

PN35

MR ARNDT: I think that's right, your Honour.

PN36

JUSTICE ROSS: Yes. Well, anyway - okay. What do you say about that, Mr Clarke?

PN37

MR CLARKE: Well, I think it needs to be remembered that the context of what we're seeking is a response to a public health issue that isn't going to go on forever. The schedule itself in its current form would probably disappear a few days after the hearing if we weren't successful. I think it's currently due to expire on 30 June (indistinct) seeking to amend.

PN38

We're trying to get arrangements in place at workplaces to deal with this pandemic before the pandemic is over because we're prohibited by the Act from getting a retrospective order to address this and probably ‑ ‑ ‑

PN39

JUSTICE ROSS: Yes. No, I appreciate that.

PN40

MR CLARKE: (Indistinct).

PN41

JUSTICE ROSS: Yes, I'm not sure - I follow the urgency argument, but I'm not sure about the time line argument. Can you just - you said it would expire by 30 June. Is that because the nature of the application ‑ ‑ ‑

PN42

MR CLARKE: Well, the nature of the applications, subject to one thing, is to really require that a category of workers be paid for a type of leave for which it has already been determined they're entitled to. We don't anticipate that there would be an enormous factual dispute in relation to the material we're putting forward. It's really a broader kind of merits facts which would be addressed on submissions, and the usual criteria, and a value judgement that needs to be made in relation to that.

PN43

You know, if we put forward an excerpt that says: this is the virus and this is how it's transmitted, and this is how it works, and this is why people who do particular tasks are more likely to contract it or spread it than others; and we have lay witnesses who say: this is the type of work I do; it's difficult to imagine that there's going to be an enormous dispute about that, except in terms of: well, how many times a week do you clean somebody else's kitchen; or how many - Do you know what I mean. We might have to descend into that.

PN44

So I wasn't anticipating that there would be an enormous effort to respond to significant factual disputes. I could be wrong about that. But the other point I would like to make is that notwithstanding what was said in the first conference about this, to not concern ourselves too much with the grounds, we've provided far more detailed grounds so as to put the employers on notice as at the date we filed those applications, which I think was between the 16th and the 17th, depending on which application (indistinct) exactly how it was with the map of the case.

PN45

And so it's not the case that the employer has sort of been forced to sort of sit on their hands and sweat until they see our material. The case theory, if you like, is reasonably well disclosed by the grounds that we provided a couple of weeks ago. And, you know, I think four weeks - to say now that four weeks was required is probably a bit unreasonable.

PN46

I note that the alternative proposal is to bring the matter on pretty much immediately, if I understand Mr Ferguson or (indistinct) correctly after our material has been received, and deal with what the Commission considers an appropriate date then.

PN47

JUSTICE ROSS: Well, what do you say about that proposal, that on the filing of your material by 4 pm on 11 May, that the matter be listed for directions the following day?

PN48

MR CLARKE: I think that that is - that's probably a more reasonable proposition than to assume, in the context of an award variation, it's only going to operate for a matter of months or weeks, that we need a whole month (indistinct).

PN49

JUSTICE ROSS: Mr Arndt, I must say that seems to - that commends itself to me as well. You won't - I understand why you've sought further time, and no doubt out of an abundance of caution have sought four weeks. But really the amount of time you need will depend on the sort of evidentiary case that you feel you have to meet, so it will depend on the extent to which you disagree with the material that's filed. So wouldn't it be better to wait until the union material is filed?

PN50

In the meantime of course there's nothing to stop you. As Mr Clarke indicated, the applications outline the nature of the case to be put, and there would be nothing to stop you starting your preparations now. But why would we necessarily lock in a four-week period at this stage?

PN51

MR ARNDT: I can't argue against any of that logic, your Honour. Just for the record, our clients haven't been sitting on their hands, and they have been working to progress this as it can in relation to the information that we know now about the claim. I can't speak against the prospect of - the fact that we won't really know how long things are going to take until we see the material.

PN52

So I agree, we've made our best effort to do what is in our view a very expeditious four weeks, given the nature of the claim, but I wouldn't stand against setting the time line once we know the evidentiary case to be met. The only thing that I might just kind of I guess raise as a possible difficulty if an expert is to be called, necessary preparations would probably have to commence prior to the deadline being set, so to speak. But without knowing what the response is going to be, it's going to be difficult to really frame that report prior to the deadline being set, if you know what I mean.

PN53

JUSTICE ROSS: Yes. You can hardly add your expert - you wouldn't know what they're responding to. Well look, the time line that I had indicated for the filing of the ACTU material, 11 May, is of course you would have to file it by that date. If in fact the unions are able to file it earlier - for example, and I'm not urging this course by any stretch, but the directions that the ACTU had proposed had material to be filed - or lay evidence to be filed by 6 May, and then any expert evidence by the 11th.

PN54

It may be that the unions form the view either they can get an earlier expert report, or it's not necessary to call an expert, and they're ready to go on 6 May. My proposition was that as soon as the applicant's case is lodged, then there would be a conference shortly, or a mention shortly after that at which these issues could be ventilated.

PN55

So I suppose the point you raise, Mr Arndt, is really sort of making the broader point that at this stage it's just not feasible to set in stone how long or what sort of period would be a reasonable balance between the various interests for the filing of the reply materials.

PN56

MR ARNDT: I think that's right, your Honour. I mean, we had a crack with four weeks. That may turn out to be - you know, if they were the orders made, and depending on what the evidence was filed, that may be - you know, it may be appropriate or may not be. So we were just minded to try and strike a balance which was as expeditious as possible, but also had in mind the fact that this is a significant case that will have - you know, will bear upon a number of awards, a number of industries, and will have - we intend at this stage, at least, to produce some - you know, a material case in opposition to it.

PN57

JUSTICE ROSS: Yes, okay. If I can summarise where we're up to, the proposal would be that the applicants would file any witness evidence and an outline of submissions by no later than 4 pm on 11 May. Upon the filing of that material, the Commission would hold a mention in respect of the matters and determine the subsequent directions and the hearing of the matter. Mr Clarke, Mr Arndt, Mr Ferguson, do I take it from what you have said that you're not resisting that course?

PN58

MR FERGUSON: It's Mr Ferguson, your Honour. We're not resisting that course, but one practical suggestion: if you have the mention at least two days after the material comes in just so that people have both read it and then hopefully formed a considered view about what they actually need.

PN59

JUSTICE ROSS: Yes, look, I would make sure that it wasn't - you know, if it came in at 4 o'clock, it wasn't going to be held at 5 o'clock. It depends a bit on availability, but I understand the desire to make sure that you have had the opportunity to look at it and give it some thought.

PN60

MR FERGUSON: Yes. If we do need to engage with any members quickly, we can reach a more considered view about how much is actually necessary.

PN61

JUSTICE ROSS: Sure.

PN62

MR CLARKE: Can I just add in relation to that, your Honour, in terms of what the timing of the interval, if you like, might be. These other matters that the (audio malfunction) have concerned (audio malfunction) pandemic, have come on very quickly from the first document being lodged to in fact the final hearing, so a couple of days to actually read the material before having a direction is something (audio malfunction)

PN63

JUSTICE ROSS: I can't hear you, Mr Clarke.

PN64

MR CLARKE: We are concerned that there shouldn't be too much time between us filing our material and having the matter called on for conference.

PN65

JUSTICE ROSS: No, I appreciate that. No, that's fine. I have understood what you have all said. I'm just not going to give you a definite answer about whether it's going to be two days or what it is. It depends on when it comes in and availability, but I understand the thrust of what you're both saying. The employers will want an opportunity to look at the material and you want to make sure that it's not too long a period of time lest it drags out the timetable overall.

PN66

MR CLARKE: That's right, having regard in particular to the way that other matters relating to the pandemic have been programmed for - - -

PN67

JUSTICE ROSS: Well, except that most of those have been by consent or have involved a significant element of consent.

PN68

MR CLARKE: Yes, that's understandable.

PN69

JUSTICE ROSS: Does anyone else want to say anything about the proposal? Is anyone opposed to the proposal might be the quicker way home. No? All right. I will publish a short statement arising from today and a further mention will be held after the applicants have filed their material. If there is nothing further, I will adjourn. Thank you.

ADJOURNED TO A DATE TO BE FIXED [1.30 PM]