Epiq logo Fair Work Commission logo






Fair Work Act 2009                                       1057944






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


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




1.00 PM, THURSDAY, 9 JULY 2020


JUSTICE ROSS:  Good afternoon, it's Ross J here.  I think I have on the line Ms Liebhaber for the HSU.


MS LIEBHABER:  Yes, your Honour.


JUSTICE ROSS:  Mr Robson for the ASU.


MR ROBSON:  Yes, your Honour.


JUSTICE ROSS:  Mr Pegg for the NDS.


MR PEGG:  Yes, your Honour.


JUSTICE ROSS:  Ms Tiedeman for ABI.


MS TIEDEMAN:  Yes, your Honour.


JUSTICE ROSS:  Mr Ferguson for Ai Group.


MR FERGUSON:  Yes, your Honour.




MS LO:  Yes, your Honour.


JUSTICE ROSS:  Thank you.  Well, you're all aware of what it's about.  We issued a statement on this issue around the - or on 7 July relating to the HSU's request on behalf of the other unions in the proceedings, for the Full Bench in the SCHADS matter to have regard to the report of Dr Kortless and Dr Van Taun, which the HSU says is an updated version of the June 2017 report.


I've reviewed the material before the Full Bench.  There is correspondence from the ASU about the evidentiary material upon which it relies and it relies on the earlier version of this report in relation to its broken shifts claim.  It's not clear what the other union parties are relying on the earlier version of the report form, so perhaps if I can start with the unions first.  What do you want us to draw from this updated reported and what claims does it relate to?  HSU first.


MS LIEBHABER:  Yes, your Honour.  From the HSU's perspective I think it's relevant in terms of our claims around arrangements of working hours around the broken shifts and minimum engagement claims particularly.  There's a section in the report relating to arrangement of working hours.  I don't have it in front of me but - so I can't remember the precise wording but it would be - I think it quite related to the claims and it provides a snapshot of the industry and other issues that we're sort of facing which were similar to the survey done in 2017.  So broadly speaking that's why we think it's relevant.




MR ROBSON:  Yes, your Honour.  Broadly the same as the HSU relates to our claim regarding broken shifts, but we'd also say it's relevant to employer claims that effect the organisation of work, in particular the ABI proposal for an allowance for on-call work.  There's several sections of the report; section 3, working time, in particular unpaid work, particularly relevant to both of those specific claims and indeed some of it supports the findings of Dr Stanford, particularly that policy at section 5.  That's what we have to say it would be relevant for.


JUSTICE ROSS:  All right.  Well, I propose to go to each of the employer organisations.  There are two things I want you to address.  Firstly, whether you oppose the Full Bench having regard to the updated version of the report and why that would be.  Secondly, if the Full Bench were to have regard to the report then what directions do you say should be issued in order to deal with any procedural fairness concerns that you may have.


Can I indicate that if we were to have regard to the report and we were to issue directions, then it's likely the first direction would be to require the unions to identify with greater precision which parts of the report they rely on and for what purpose.  In other words, what findings are we to draw from the report or what arguments do they say particular aspects of the report support.  So with that introduction can I go to you, Mr Pegg.


MR PEGG:  Yes, your Honour.  In relation to your first question we oppose this report being taken into account, purely on procedural grounds that we've gone through a very lengthy process of hearings and evidence in this review.  We don't think it's fair to be - for any party to simply be able to continue to produce further evidence post those hearings, unless there's some compelling reason.  Given that this is basically an update of the 2017 report (indistinct) the findings are interesting for all sorts of purposes but I don't think they amount to a compelling case for being taken into account in these proceedings.


In relation to your second question despite our opposition the Bench was minded to have regard to this report then yes, we'd be seeking directions that following the unions identifying what they're relying on and their reasons that (indistinct) be given an opportunity to make written submissions and potentially an opportunity for a hearing to cross-examine (indistinct).


JUSTICE ROSS:  Thank you, Mr Pegg.  Can I just - before I go to the other employers, can I make this observation to the HSU and the ASU, that if we were to have regard to this report then I think it's likely that the Full Bench would also provide the various employer interest with an opportunity to file any updated material that wasn't available at the time of the proceedings.  So any material as at and up to 30 June this year, to give them the same opportunity that you're asking be afforded to each of you.


Can I go to Ms Tiedeman.


MS TIEDEMAN:  Thank you, your Honour.  In relation to your first question, we do oppose the report being introduced for a number of reasons.  The timetable has concluded which I guess I'm echoing what Mr Pegg said but it would be unfair to extend it some six months beyond when final materials were to be filed, and as Mr Pegg said we have been, I guess, going through this process for a really long time.  Secondly, we say there's no compelling reasons being put by the union parties as to why this evidence is necessary and will assist the Commission in its decision further than what's already been filed.  It's not clear what is - there's just no compelling reason as to why it should be filed.


We don't consider that the report will assist the Commission in its decision of the matter given how similar it is to the report that was filed in 2017.  Like Mr Pegg says I'm sure that there are interesting things to be taken away but I just don't think that the compelling reasons are there.  Finally, I was going to say it is unfair to the employer parties but I note what your Honour's just said and we would be seeking that we have an opportunity to put on any evidence once we've heard from the unions I guess for updated material on behalf of the employer parties.


JUSTICE ROSS:  Thank you, Ms Tiedeman.  Mr Ferguson.


MR FERGUSON:  Yes, your Honour.  We have similar concerns to the other parties.  I would just emphasise the point that there's been, you know, an exhaustive timetable for exchange of materials and parties have expended their limited resources responding to the material that was put on in accordance with that timetable, and there is a real unfairness now making us respond to an ever revolving sort of case.


The second thing is it's also inappropriate just to have regard to one piece of material outside of that timetable that the unions think is appropriate, and there's a, you know, a limit to the utility of receiving that sort of information because it's not going to give the Commission necessarily a balance picture to the contemporary circumstances.  And of course, you know, baring some further directions there'd be an unfairness in terms of the extent to which we could test the material.


Turning then to your second question, your Honour, I think obviously if that was to be received we'd want a period of time to put on any material in reply to that, be it submissions or evidence, but also we say that we should also - the employers generally should be afforded an opportunity to put on any other material that they think is relevant and shouldn't just be the unions that have that opportunity.


JUSTICE ROSS:  No, no, I take that last point and at least speaking for myself, if we were to afford the unions the opportunity then it seems to me that fairness would require that the employers be given a general opportunity.  And also if we were to have regard to the updated report then you would be given an opportunity to say what you wish to say about it and if you wish to cross-examine the authors of the report then that opportunity ought to be afforded as well.


MR FERGUSON:  Yes, I appreciate that and if - certainly at the very least if there is some contention that it reinforces the value of any of the evidence of the other witnesses we'd want the opportunity potentially to require them for re-examination as well.  Or if there's anything else that falls from the material that necessitated recalling any of the witnesses obviously we would want that opportunity.


JUSTICE ROSS:  Thanks, Mr Ferguson.  From AFEI?


MS LO:  Thank you, your Honour.  In answer to your question we also (indistinct) this proceeding for the reasons stated (indistinct) Ms Liebhaber dated (indistinct) May.  As to your second question, if it's in your mind to consider the additional material the opportunity for permission to be made and for the material to be tested would need to be considered.  I'd just like to add that as stated by the other employer parties, this has been a lengthy process and not at all conducive to the finalisation of the four yearly review of this award where the parties have already been provided with an extensive opportunity to put their case.


JUSTICE ROSS:  Yes, thank you.  Can I go back to the HSU and the ASU.  Can you identify what is the - is there any difference in the material in the new report versus the report that's already before the Full Bench?  What's - other than obviously it's a year later, but does it show us anything different?


MR ROBSON:  I might answer that, your Honour.




MR ROBSON:  I think the first thing to say is that this is a much larger survey.  This report's based on a much larger survey than the initial report.  There are - - -


JUSTICE ROSS:  There are 1500 disability support workers that their information's analysed in the 2017 report.


MR ROBSON:  Yes, sir.  So a larger and we say a much more representative survey than the original one.  We say that it's important to have regard - it's not simply a year later.  This survey concluded in March this year.  It's three years later after almost everything has transferred - in the disability sector has transferred over to the NDIS system.  So this is a very large snapshot of what the sector looked like in March 2018, and we say that that's important for the Commission to have regard to.  I think one of the issues in the submissions or much of the controversy through these proceedings has been what will the sector look like after the transfer.  You know, are some of the features that exist in the transition from existing funding arrangements to the NDIS simply features of that transition or are they more permanent problems.  What we say is that this very good evidence of what the sector looked like now not 2017, and the Commission would have a lot more certainty with regard to this report about the nature of the sector if this were relied on.


JUSTICE ROSS:  All right.  If we were to - just to avoid - to come back to this group.  If we were to admit the report and we were to issue directions to address the procedural fairness issues, as I've indicated those directions would seem to have a number of elements.  One, the unions filing a short submission identifying what they seek to draw from the report.  What findings they want to make, what they say the report shows.  Secondly, the employer parties being given an opportunity to adduce any updated material up to 30 June this year in relation to the material they've filed.  There may be other reports, statistical data, something of that nature.  Three, the employer parties would be given an opportunity to respond to what the unions say is to be drawn from the report and also if they wish to cross-examine the authors of the report.


So there are those three elements.  There'd also be an opportunity for a union reply to the employer response.  Obviously unions would need to be given an opportunity to comment on any material that's filed by way of updating material by the employer parties.  So if we go through that, if that was the position, what would be the timeframes attaching to each element of that?  With the unions, what would be the timeframe to file a short submission relating to the report, identifying what they want to draw from it?  How long would you need for that, Mr Robson, Ms Liebhaber?


MR ROBSON:  I haven't consulted Ms Liebhaber but I should believe two weeks from Monday.


MS LIEBHABER:  Yes, your Honour, I think that would be the same from us.  I think a period of two weeks would be sufficient.


JUSTICE ROSS:  All right, and then can I go - perhaps starting with ABI and NDS - - -


MR FERGUSON:  Your Honour, can I raise one issue before we get to timeframes, it's Mr Ferguson.




MR FERGUSON:  We would suggest that the employers - it wouldn't be appropriate for employers to be limited to just providing updated material in the nature of reports and so forth, in the sense that if there was any new issues that arise from the report, you know, the changed material that was being advanced, employers should have liberty to put on any sort of material.


JUSTICE ROSS:  No, it would be rebuttal material to the report.  If it's any sort of material then you have to ask the question as to was it available to you to do this at the time of the proceedings.  It's not a general - I'm not proposing a general reopening of the case.


MR FERGUSON:  I think - and I won't take it further than this, your Honour, but in essence employers have responded to the case that was advanced at that time.  Now (indistinct) of this material but if a different case is advanced it would be unfair to limit our ability (indistinct) - - -


JUSTICE ROSS:  No, no, you should have an opportunity to put in rebuttal material to the report and the unions' reliance on the report, is point number 1.




JUSTICE ROSS:  That would include a capacity to cross-examine the report's authors and if there is other material by way of updating that you want to provide then you should be able to provide that also.  There are two elements to what's being looked at.


MR FERGUSON:  Yes.  The specific issue I have in mind is that there's specific employers mentioned in the report and I don't have instructions - - -


JUSTICE ROSS:  No, no, I - yes, look they may not even be your members so - - -


MR FERGUSON:  Well, I don't - - -




MR FERGUSON:  I don't have instructions - - -


JUSTICE ROSS:  No, no, but that's by way of response to the report but when you say any material, it's not - that's not what is envisaged here.  It's what you want to say about the report and if that involves calling witnesses who are mentioned in the report or can rebut some statements in the report then that's within the scope of that exercise.


MR FERGUSON:  Then I'm satisfied, your Honour.


JUSTICE ROSS:  Yes.  Now that's one part of what I'm looking at.  T hat is rebuttal material to the report and the unions' reliance on it, to be clear.  That's one aspect.  The other aspect is if there are other reports or data that the employers wish to rely on by way of updating, then that would be envisaged as well.  So if I can go to NDS and then ABI about how long would you need after the unions file their material to respond?


MR PEGG:  Your Honour for NDS, I would anticipate we would want at least two weeks but I'm conscious that we wouldn't stand in the way of the other employer parties proposing a longer timeframe, so I don't really know how they would be wanting to approach this but I think at this point it looks to me like two weeks would be sufficient for us to respond to the - - -


JUSTICE ROSS:  Well, bearing in mind if the Full Bench goes down this path whatever timeframe we put in place there would be liberty to apply.  Because (indistinct) - audio malfunction) or for what purpose, or which parts of the report they're seeking to rely on.  Until you know that it's difficult to make any assessment but I would anticipate that you would be afforded at least the same amount of time as the unions are being afforded.  Ms Tiedeman.


MS TIEDEMAN:  Thank you, your Honour.  Yes, I would ask that we're afforded at least two weeks but yes, not knowing exactly what they rely on it may be that we need longer, some three to four weeks to respond but we won't know - - -


JUSTICE ROSS:  No, I follow that.


MS TIEDEMAN:  - - - until we see what they file.


JUSTICE ROSS:  No, I follow that.  Yes.  Is your position the same, Mr Ferguson - - -


MR FERGUSON:  We're sort of guessing (indistinct), your Honour, as long as there was liberty and it may be that some significant period is required - - -


JUSTICE ROSS:  No, no, I agree.  It's very much dependent on what the unions what to say about it, as to the time you'd need.  No, I follow that.


MR FERGUSON:  Yes, and there may need to be some engagement with relevant parties.




MR FERGUSON:  As long as there was liberty, your Honour.


JUSTICE ROSS:  No, there would be liberty in any event.  Ms Lo, are you in the same position?


MS LO:  Yes, your Honour.


JUSTICE ROSS:  All right.  Well, I think I understand the position of each of you and I'll order the transcript.  The transcript will be published.  I'll confer with my colleagues on the Full Bench and we'll advise you in due course, probably early next week as to the course of action we propose to take.  Thank you all for your attendance and I'll now adjourn.


MR FERGUSON:  Thank you.


MS LIEBHABER:  Thank you.


MR ROBSON:  Thank you, your Honour.

ADJOURNED INDEFINITELY                                                           [1.26 PM]