TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
JUSTICE ROSS, PRESIDENT
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
Social, Community, Home Care and Disability Services Industry Award 2010
10.30 AM, THURSDAY, 27 MAY 2021
JUSTICE ROSS: It's Justice Ross. We might get underway. If I can indicate the appearances for the employer and union bodies, I have Ms Svendsen from the HSU, Mr Redford from the UWU, Mr Robson from the ASU. From the employer organisations, from Mr Pegg from MDS, Ms Bailey from Leading Aged Services, Mr Ferguson and Ms Bhatt from Ai Group, Ms Lowe and Mr Lin from the AFEI, and Mr Scott from ABI. There are also a range of individual disability service providers. I don't propose to go through all of those.
Mr Pegg, I gather they've expressed an interest because you forwarded the conference details to them. What we might do with the hearing is ensure that it's live-streamed, because our system can't cope with, you know, 40 of your people jumping on to a Teams thing, and it's not really sensible to then let everybody speak through the issues. They can put their position through you.
So we'll make sure the hearing is live-streamed that way anyone with an interest can come into it rather than running the risk of sort of overwhelming the IT system. Have I missed any of the union or employer organisation representatives? No?
As you know, the purpose of the conference was to discuss the three issues that are set out in the agenda document that was published on the 25th. I'd indicate that the conference may not go that long this morning. As you're probably aware, we're awaiting an announcement on lockdowns in Victoria, and there are a range of things I've got to do in relation to that.
The main purpose in putting these matters on a conference agenda was to encourage the industrial parties to have some discussions around the issues, was to see if you can have a discussion amongst yourselves with a view to - bearing in mind the provisional views that we have expressed. If we were to retain those provisional views, and parties will have no doubt various positions on whether the provisional view should be maintained, but to the extent we can, we want to try and facilitate discussions between you.
To that end Ai Group has circulated a proposal to address the clothing allowance matter, and I think that's, without commenting on the merit of the particular proposal, because I haven't had a chance to read it, and I'll invite Ai Group to take us through it, but can I say that's exactly the sort of approach that I'm looking for in this conferencing process, that parties will put forward, on a without prejudice basis, without prejudice to where they may go in their submissions, what they are proposing for other parties to consider, so that we can try and narrow some of the issues before we get to the submission and hearing stage.
So, I propose to go through or invite Ai Group to go through that, see if there are any preliminary comments from the other parties, and then see if we can get some volunteers to come up with something on the remote response recall to work space, and then provide that to other parties.
I intended the conference really only to kick off the direct dialogue between the parties. Once you've had an opportunity to get into some of these issues, if you think Commission facilitation might help you go further, then please just get in touch with my Chambers, and we'll organise that fairly quickly. We'll do it on an as needs basis.
Mr Ferguson or Ms Bhatt, can I go to you to go through the proposition that you've advanced on a without prejudice basis? I take it that it's been circulated to the employer and union organisation parties?
MR FERGUSON: It has, your Honour, to the employers yesterday in the hope we might've sort of reached a landing jointly, but to the unions just this morning. We didn't reach a sort of a joint position with the employers.
Before I get to it, can I just raise a couple of general points about the conduct of the conference, your Honour?
JUSTICE ROSS: Yes.
MR FERGUSON: Very briefly. I think we had proposed, and I think from your comment you anticipate this as well, that these discussions would just be on the basis of without prejudice we'd put these sorts of proposals that we need to facilitate discussions. And I think discussions with the other parties, and it was probably a shared view, at least amongst the employers, that, you know, we have these discussions in a sort of exploratory manner, but that all parties would have some further time to consult with their membership.
JUSTICE ROSS: Of course.
MR FERGUSON: (Indistinct) reached a landing on anything. We had been going to propose in the interest of encouraging frank exploration of these issues that we go off record, but given the number of the parties that might not be appropriate, your Honour.
JUSTICE ROSS: Yes. We won't be doing this with the same number of parties again, I can assure you of that.
MR FERGUSON: Yes. And, look, we can have some separate discussions anyway to try and develop these issues, your Honour.
JUSTICE ROSS: Sure.
MR FERGUSON: Before we get into these issues I'll just also note that we have acceptance of the document for remote response, but we didn't share it given the lateness in which we'd settled it, but we can do that at a later point or during the process.
JUSTICE ROSS: Yes.
MR FERGUSON: In terms of the damaged clothing issue, I'll just walk through the document if I can. We proposed sort of seven proposals. One is that any sort of obligation should only apply where the extent of the damage, if you will, or the soiling, means that it's necessary to replace the clothing or to have the clothing professionally laundered. So I think what we're trying to aim at there is that the obligation to reimburse, or to make some sort of payment, shouldn't apply where it's just the ordinary wear and tear or dirtying of clothes that can be just cleaned in the regular manner.
JUSTICE ROSS: Can I just ask on that, Mr Ferguson, replacement as opposed to mending? What if it's a tear that can be mended, is that not contemplated?
MR FERGUSON: I think the way we have contemplated that is that it wouldn't be necessary to replace it.
JUSTICE ROSS: No, no, I follow that, but does that mean if an employee has - you know, often you can go to a drycleaner and you can say, "Look, there's a tear here", or "Buttons have been ripped off, can you replace those?" is that - are you suggesting they couldn't get reimbursed for that or ‑ ‑ ‑
MR FERGUSON: No, I think ‑ ‑ ‑
JUSTICE ROSS: ‑ ‑ ‑it would only be if was to be replaced?
MR FERGUSON: Yes, we hadn't thought of that particular scenario, your Honour. I think we picked up some wording from the decision, but that might require some further consideration.
JUSTICE ROSS: Yes.
MR FERGUSON: I think you're right there. I'll just keep sort of going through them, your Honour, unless you think there's a reason to pause.
JUSTICE ROSS: Thanks.
MR FERGUSON: The second point is that it should require reimbursement of expenses that were reasonably incurred. Now, I think what we were trying to capture here in part were issues around, for example if someone was using a particularly - or wearing a particularly expensive item of clothing, that the obligation shouldn't necessarily for example extend to reimbursement for replacement of like for like, so if there was some sort of designer clothes and so forth I think an award obligation to require replacement of that particular item would be excessive. Now, we haven't landed on a solution to that problem, but it should only be reimbursement of expenses that were reasonably incurred.
The next point, point 3, is that it should only apply where the damage or soiling occurs in the course of the employee's employment. Now, the simple proposition there is it wouldn't occur to anything that arises, you know, during travel to or from work.
And then point 4 is that it would not be payable if the employee had failed to comply with the direction from an employer to wear specific clothing, so particular types of items, or particular protective equipment, if complying with those would've meant that the person's clothing wouldn't have been damaged or soiled.
And the corollary of that is if they were offered specific PPE, and they declined to use it, and that's the reason why their clothing wasn't protected, then the employer in those circumstances again shouldn't be liable for any of the relevant costs.
In point 5, there's two limbs to this, we say the employer shouldn't be liable if the damage or soiling is caused by either the employee's negligence or their misconduct. So in terms of negligence, I think just trying to develop that a little further: if an employee engages themselves in a way that you're not taking due care in relation to the way they go about a task, and that results in the foreseeable damage to their clothing, then the employer shouldn't be liable for picking it up there. If there is some sort of, you know, misconduct then the employer shouldn't be (indistinct). I think the example, practical example, given to us was an employee engaging in fighting with another person and that resulting in the tearing of their clothing during their employment. Clearly, we would say it's not reasonable to make the employer pay in that scenario.
JUSTICE ROSS: How does that fit with para 141 of the decision, where we're not attracted to a variation that touches on negligence, et cetera?
MR FERGUSON: I thought - I'm just going to the decision - but that picked up the negligence reference from the manufacturing award - - -
JUSTICE ROSS: Yes.
MR FERGUSON: - - - which if memory serves, it's under that award the employer is only liable where the damage flowed from the employer's negligence.
JUSTICE ROSS: Yes, but how practical is it that employees get into a fight or a scuffle, tear clothing, they make a claim under the allowance - the employer just doesn't pay the claim. What happens then? I think there is sort of a sense in which - and it's a bit like the reaction in the decision to some elements of the union's claim that they seem to be going to circumstances that, it's conceivable, but I think if we're trying to cover every possible thing what is the - is there any suggestion anywhere, in any clothing allowance, where people have been fighting there's been a dispute over whether they get paid the allowance?
MR FERGUSON: I'm not sure of any disputes. Our position was a product of consultation with the industry and the scenario has arisen. It was with members. I'm not instructed to share that at the moment, your Honour.
JUSTICE ROSS: Well, it's actually become an issue and if it's viewed about - they wanted to be paid and they were fighting, I just find that hard to believe. I can't imagine how we'd deal with that dispute, frankly. I mean it's surely got to be in the course of their employment. They're performing their duties and their clothing is soiled. That's really what we're looking at.
MR FERGUSON: I think - - -
JUSTICE ROSS: In no sense is a fight performing your duties.
MR FERGUSON: That is probably taking it to the most extreme form of misconduct. It was a real one and in that instance the employer had a practice of absent any obligation of reimbursing people and it was sought and the employer, as I understand it, said no as you might expect, your Honour, from your response. We are just trying to make sure that there is no award obligation inadvertently might pick up those sort of situations where it would obviously just be unreasonable to expect the employer - now, our form of words might not be right. I mean, I think we need to make it simple and easy to understand.
JUSTICE ROSS: Yes.
MR FERGUSON: That's the difficulty, I think, with putting forward a principle at a high level without trying to complicate things. But it is put to me that these sorts of issues do arise.
JUSTICE ROSS: They don't at the moment because there is no award provision at the moment.
MR FERGUSON: I think that's right. I'm just talking in terms of where the damage arises. I understand your point, your Honour. This is in the context of an over award thing.
JUSTICE ROSS: I've just put you on notice that if the issue is pressed you'll need more than - you've had a discussion with some members and it's an issue. We'll need evidence so just bear that in mind about that. I want to see the scope of a practical problem before we launch off in a particular direction. I'm interested in how it's in other awards and other circumstances of course. But I think simplicity is desirable. I accept there is always a balance between simplicity and certainty in trying to cover as many particular scenarios as you can and we'll see where we go. All right, you say you've had a chance to have a discussion with that with the other employer bodies? Is that right, Mr Ferguson?
MR FERGUSON: I think it would be overstating to say we've gone into detail. We met to try and caucus how we might respond and I think it became clear that we weren't going to be able to get into the drafting and so forth of it in time for this conference, unfortunately. That's why we circulated this, to try and advance things.
JUSTICE ROSS: Okay.
MR FERGUSON: But ultimately we didn't get there.
JUSTICE ROSS: All right. I might just invite any of the other employer bodies if they wanted to make any comment on our group proposal at this stage and then I would go to the union interests.
MR FERGUSON: There were just two more, your Honour.
JUSTICE ROSS: I'm sorry, yes. Sorry, Mr Ferguson.
MR FERGUSON: Your Honour, I'll deal with them very quickly. One is just that an employer should not be liable if the damage or soiled clothing was worn in breach of a direction from the employer not to wear that particular type of clothing. We could capture that in a broad way, perhaps. Then there should be some sort of evidentiary element to it in the sense that the employee would obviously need to provide evidence that would satisfy a reasonable person that the actual expenses were incurred and that the damage occurred and so forth. That is all, your Honour; thank you for that.
JUSTICE ROSS: All right. The other employer organisations - anything you want to say at this stage?
MR SCOTT: Your Honour, it's Kyle Scott here on behalf of ABI (indistinct). I think from our perspective it's a very helpful document. We appreciate (indistinct) preparing it. We haven't had a huge opportunity to look at the detail but I think at a higher level it appears to be uncontroversial. It appears to be sensible. We might give it some more detailed consideration and perhaps have some further constructive input but at a very general level I think it appears sensible and uncontroversial.
JUSTICE ROSS: Okay. Mr Pegg or AFEI or Leading Aged Services?
MR PEGG: Your Honour, it's Michael Pegg for MDS - same here. We are generally supportive of the principles that have been outlined. I think they provide a good starting point for the drafting task.
JUSTICE ROSS: Okay, thank you. AFEI? Mr Lin?
MR LIN: Apologies, your Honour. I think my colleague is experiencing some technical difficulties.
JUSTICE ROSS: Okay. Ms Bailey?
MS BAILEY: Thank you, your Honour. Mr Scott has already put forward our thoughts adequately on this subject so we have nothing further to add.
JUSTICE ROSS: Thank you. Can I go to the union parties for any initial reaction from them? I appreciate you've only sort of got it this morning but it's really an invitation to say whatever you want to say now but also I'd encourage you then to discuss the matter amongst yourselves and then engage with Ai Group and no doubt Ai Group will similarly engage with the other employer interests. Who would like to comment on it?
MS SVENDSEN: Your Honour, it's Leigh Svendsen from HSU. I'll give a comment: we actually have discussed this and we had prior to the Ai proposal a slightly more simplified - in the sense that we thought the consideration should include damages relating to more than incidental damage, although we didn't go to the concept of whether it was necessary to replace or have it professional laundered. We have a couple of other matters we want to kind of talk about - that it should arise in the ordinary course of work and that proof of replacement or dry-cleaning expenditure, et cetera, must be provided. So to some extent, we already have some of those matters that Mr Ferguson has - Ai have raised and sent to us this morning.
We have a couple of questions, I guess, around the sort of things that are in the proposal by Ai that while we understand the concept of reasonably incurred, we believe we would need to probably identify what that might mean. I acknowledge that this award covers a huge range of types of employees and employment circumstances.
When we first raised this, we were focused on aged care and disability workers, who are likely to have their clothing damaged in the normal course of their employment. And soiling is likely to happen that would not require replacement or necessarily even professional laundering, and, you know, we might need to think a little bit about, and we talked a little bit about this in relation to people who are not required to wear uniforms in provision in home care, not provided, not required, not given - you know, there's not really a process for it, but those people, given the work that they do, will usually have a form of clothing that they tend to wear at work that will be easily washed and all of those sorts of things, but because there's no requirement for them to wear a uniform, or any provision of a uniform, they're actually excluded from laundry allowance, and maybe we should actually have a little bit of a think about that in terms of soiling because they're much more likely to get their clothes soiled and they're much more likely - I mean, if they were working in a residential facility, then they would be wearing some form of clothing, not a uniform often, and they would therefore get a laundry allowance, and they, you know, make their uniform.
So, just putting that to one side, that's the concept that we were looking at principally, but I note that we could be talking about a legal - no, probably not a legal service, but we certainly could be talking about professional services and a suit getting soiled, and, you know, that's where laundry or dry cleaning is going to come in, but the reality is that for the people in aged care and disability it's unlikely to be about dry cleaning, and it's unlikely to be about that kind of requirement. It's also going to be inexpensive wear because you want to be able to chuck it in a hot wash, because frankly as a qualified nurse and who's actually had literally shit and vomit down the front of their uniform, that is exactly what you want to do with those clothes, and that's the sort of thing that those people are going to be wearing, and that was the aim of the stuff that we were looking at.
So, while we understand some of the issues that are raised by AiG, you know, failure to comply with the direction to wear specific clothing, I'd like to know why it's not provided, so I think that 4(a) is a bit of an issue if it's a non-provided clothing item. And I think (6) is kind of the same issue, so there's some stuff around that that we would need to go into.
Negligence and misconduct, while we understand the concepts being raised, I think that they are - you know, that would be - we sort of think that they're dealt with by other provisions that, you know, negligence and misconduct about any aspect of somebody's work, whether it ends up with damaged clothing or any other matter, not doing reports properly or whatever it happens to be, I don't know, that's all dealt with in relation to performance management, refusal - I mean, you don't get leave entitlements if they arise out of - I mean, you don't get lots of things if they arise out of negligence and misconduct as a general course of what is, you know, covered by the award. So, I'm not sure that there's a necessity to provide that as a separate clause given that misconduct and negligence are essentially dealt with by performance management, dispute settlement type provisions anyway, but that's another thing.
And certainly the reality, again going back to the people that we were most focused on, but also some other areas I could think of, residential youth care, where clothing is much more likely to be damaged by an assault on an employee rather than - and I'm not suggesting that they're necessarily deliberate actions by those clients either, but, you know, that's actually much more likely, or an employee happening to break up or protect another client, or whatever that happens to be, and we absolutely are happy with the concept of proof of evidence.
We had distilled it down to three points that the damage relates to more than incidental damage to an item of clothing, that it should arise in the ordinary course of work, and that proof of replacement, dry cleaning, whatever, needed to be provided, but we also had in the back of our mind that the issue that I raised early in relation to laundry for some particular areas of work that aren't currently covered by the laundry allowance in a sense of that ongoing laundering. I think that's what we've got to say at the moment.
JUSTICE ROSS: Thanks, Ms Svendsen. Was there anything that either Mr Redford or Mr Robson wanted to add to that?
MR REDFORD: Nothing from me, your Honour.
JUSTICE ROSS: Thank you.
MR ROBSON: Thank you, your Honour. Just one thing to say, and it sort of builds on something Ms Svendsen has already said, but from our perspective one of the most important things would be to build a clause that covers the breadth of people working under this award. Obviously, and from our interests, this would be ranging from people in disability care, who would be, you know, usually directed not to wear uniforms by their employer, because of the intention to normalise the setting that the person, the participant is in, ranging through to people who might be covered by this award but have a requirement, because of their jobs, whether it's in, say, something like child contact services, or a legal centre, where this is a risk of damage or soiling of the clothing because of the types of people they're coming into contact with, who aren't necessarily wearing, you know, the type of clothing you might be doing if you're doing personal care. And so that's the only thing we'd want to add to what Ms Svendsen said.
JUSTICE ROSS: I think there's a couple of things that give rise to some food for thought, I think, in the discussion that's taken place. There's broad agreement that, you know, the expenses that are reimbursed there has to be proof. I think there's a reasonableness broadly, assessment around that. I think it's in the course of employment where the soiling, et cetera occurs. I think in the course of employment at least my preliminary view is that probably addresses the fighting scenario, because that wouldn't arise in the course of employment.
I think there's one issue that I'd invite all of you to just reflect on for a minute, as you've currently put it, Mr Ferguson, it's where the clothing is professionally laundered that they're reimbursed. That might give rise to more claims than are necessary, in the sense that under the current clause if it's soiled and it needs to be perhaps heavily laundered or soaked or whatever, but under your clause if the employee did that at home and applied, you know, anti-soiling agents and the rest of it to it, they'd get no reimbursement, but if they took it to a dry cleaner they'd get reimbursement, which seems like an odd sort of unintended outcome. It may result in employers being out for more expense than might be necessary, because there's no other avenue open to the employee.
I don't have a ready solution. I certainly am not attracted to the idea of an employee coming up with, in each instance, their estimate of what it cost them to launder a piece of heavily soiled clothing using their own facilities. I think that just, you know, invites regulatory burden and disputes. But it may be that you can come up with - and, look, this is not something that I've given any thought to, it's really just reflecting on what Ms Svendsen had said. But if as you say your clothes are heavily soiled and you then wash them; you wash them by themselves, usually, if they're that heavily soiled. What do we do with that? If there is nothing for the employee they might just put them in a plastic bag and drop them off at the dry cleaner and give you a receipt and a bill for 20 bucks, whereas it might be that you can agree that if they're doing - it's still the proof issue. That might mean they take a photo of the soiled clothing, provide an explanation and then they show you a photo of it after it's clean. But it may be that some smaller, flat-dollar amount is payable in those circumstances that avoids the regulatory need to go through the exercise. It's not without a degree of proof.
I think there might be unintended consequences with sort of pushing people to have their clothing - they only get reimbursed for anything if it's so bad the clothing has to be replaced or professional laundered. It's difficult to make an assessment about the "ought to be professionally laundered." If they take a photo and it shows it's soiled, I'm not sure how you resolve that sort of dispute in practice, that's all. I'm raising, it really, just inviting you to reflect on the discussion. I think there is a measure of agreement that is pleasing around the issue of proof and I think there would be an expectation that the reimbursement would have to be reasonable. But there are still some gaps and some issues. I think the course of conduct issue assists you in trying to manage abhorrent behaviour and claims.
But I think some of the issues just need perhaps a bit of reflection and further discussion between the various parties. Anything you want to say at this stage, Mr Ferguson?
MR FERGUSON: Your Honour, I think I agree with that general observation in the sense that the conversation has been helpful and I think we can give it some further thought in light of the issues that have been raised by Ms Svendsen. There's possible other ways for addressing this. We're not - we hadn't intended to further the cause of the dry-cleaning industry. We can reflect on it and see if we can come up with something that addresses the underlying issue I think Ms Svendsen is trying to raise in a practical way for everyone. It does sort of suggest that course we suggested at the start - or your Honour suggested at the start - of perhaps further discussion after this conference between the parties directly.
JUSTICE ROSS: Yes. I would certainly encourage Ms Svendsen to send you what she had in mind. I don't want to be too hard on the dry-cleaning sector, Mr Ferguson. They're going through enough trouble at the moment.
MR FERGUSON: That was my concern. But I think there is more commonality in it perhaps than - in our respective positions - than I thought at first blush. I think we can be productive.
JUSTICE ROSS: Thank you very much. I wanted to - - -
MS SVENDSEN: Your Honour, can I just - sorry, your Honour, it's Leigh Svendsen.
JUSTICE ROSS: Yes.
MS SVENDSEN: I just wanted to make a comment: we do have some notes about that which I will send to you - to everybody - but I thought that it might be helpful before I sent that off for Michael Behan and myself to have a quick chat after this and add anything that we want to say to you about yours or something that we might want to add to this for the next discussion before I send it and then I'll get it out to everybody.
JUSTICE ROSS: All right, thank you. If I can go to the remote response recall issue - we reached the conclusion that it was necessary to include an award term. We identified some of the features of that, mainly by reference to ABI's initial claim. We've expressed some provisional views around how the minimum payment issue might work. I think this is an issue that would be assisted if there were proposals exchanged about how to give effect to that sort of framework. On a without-prejudice basis in respect of the provisional view element, which talks about the minimum payment duration, dependent on when the work is performed, but it's probably something that is not that helpful discussing it in the abstract. It's a bit like with the clothing discussion; I think it will crystallise people's thoughts if they see something in relation to it.
Look, Mr Scott, given that - well, I'm not holding you entirely responsible - but given you started this and in many ways the Bench's decision is responding, accepting elements of your claim and responding to other parts of it, I wonder if you've given some thought to how that might be put into the form of an order.
MR SCOTT: Thank you, your Honour. Firstly, I should note that I was hoping and my clients were hoping to be a in a position to have already circulated some form of document because I'm conscious that paragraph 738 of the decision bears a reference there to ABI being asked to do something prior to today and unfortunately we just haven't been in a position to do that. But I can confirm that we have given it some thought. The employer parties had a discussion earlier this week about this issue. Certainly, (indistinct) your Honour (indistinct) to circulate the puzzles on a without-prejudice basis to give effect to the decision. We can certainly do that. I'm happy and I'm able to respond to the issues raised in (indistinct) and 738. If it's helpful - although I note your comment, your Honour, that sometimes it is difficult talking about these things in the abstract. But I'm certainly happy on my part to talk through what we say is the appropriate rate of pay in certain circumstances.
But perhaps before I do that can I just make a couple of observations about it and I think the first is I'm conscious that we've adopted this appropriate rate of pay terminology partly at least because it is a phrase that is used in a few different parts of the award. But I'm conscious that in the context of the award review there is a range of decisions that Full Benches have handed down around terminology and minimum hourly rate and ordinary hourly rate and the specific meanings behind those phrases. If may be the case that we haven't properly considered the terminology in the context of (indistinct) decisions. The second observation is I'm very conscious that the rate of pay is linked to the minimum payments under the remote response rate. Certainly, my client's position is going to be that they're linked and in circumstances where the Bench has adopted in part ABI's proposal but has expressed a provisional view that higher minimum payments should be made.
That provisional view is of course a live issue. My clients may well want to be heard on that issue. So I just note that the rate is linked to the minimum payment and the quantum at the end of the day the term needs to be fair and relevant in terms of the amount of money or the dollar figure that is ultimately paid to employees when they perform remote response work. So I think they're linked and it's a little bit difficult to kind of hang the flag to the mast in circumstances where the minimum payment is still a live issue. Reflecting on the decision and the Bench's provisional view around minimum payments, I think at the outset our client's position is that the appropriate rate should be the minimum rate of pay, bearing in mind that what we would say is the relatively modest disutility where employees are undertaking remote response work because for the most part that remote response work is a two or three-minute phone call.
I'm conscious of the minimum payments and the fact that the dollar figure may well be quite substantial and we would say potentially disproportionate to the work that's undertaken under this utility, so, I think your Honour the Bench was asking ABI to reflect on what the appropriate rate would in fact be having regard to the current terms of the award. I'm happy to go through that now for the different classes of employees, but what we say may be the appropriate rate, having regard to the current terms of the award, is not necessarily the same issue as to what we may now say should be the rate of pay under the remote response regime in circumstances where there's a provisional view on minimum payment that departs from my client's proposal, if that makes sense, your Honour.
JUSTICE ROSS: No, no, it does make sense. And the Full Bench noted that - well, we agreed that there is an inter-relationship between the minimum payment period and the rate of payment. Highlighting the appropriate rate was not so much an attempt to sort of revisit the ongoing battle about how we were referring to these things in ordinary terms, et cetera. I could see Mr Ferguson getting anxious when that - the thought of revisiting those issues. It wasn't so much that, it's just that it gives rise to an ambiguity, and it was more trying to understand what did you mean by it. But, I readily accept that there is an inter-connection between minimum payment and rate of payment. We've said that expressly in the decision, so I think it's probably more useful for you to focus on, well, if the provisional view were adopted then this is what we say the rate should be, or if your preferred position, if it's different from the provisional view, then what do you say the rate should be, is probably going to be more productive.
And I think, look, I'll invite anyone else to make any preliminary comments in a moment. I think that it's likely the most productive way forward on this is if ABI proceeds to develop its proposal, perhaps with some commentary, Mr Scott, for the benefit of the parties, so you can inform them either how your proposals links back to the observations in the decision, or if anything requires explanation, and then encourage direct dialogue with the other parties, and then if there's a request for facilitation, we'll organise that.
Can I just invite, firstly, the other employer parties, if there's anything they wish to add, and then I'd go to the union parties.
MR FERGUSON: Your Honour, I might kick off, if that's all right.
JUSTICE ROSS: Sure.
MR FERGUSON: I just note, we've developed a document, which we'll share with the others after this call, which sort of succinctly set out eight issues that we saw were the issues of principle that might be useful to think through before we got into the drafting, but I don't - unless you have a different view, your Honour, I don't propose to sort of take everyone through those now, even though we could do it succinctly, and I don't, because this has already been the subject of quite a lot of conferencing previously.
JUSTICE ROSS: Yes.
MR FERGUSON: There were sort of days of conferencing that underpinned the culmination of those proposals that were advanced. I think it might be that we provide that document, and we read that, and then against the guidance that the Full Bench has provided, that that might be a catalyst for parties to development a separate discussion.
Unless you think there's merit in trying to further the conversation now, we won't go through it. For my part I think the issues are complex, and that all of it inter-related, and probably better dealt with through direct discussions with us then seeking the assistance of the Commission.
JUSTICE ROSS: No, no, that's fine. And I don't - I mean, look, if anyone has any proposals or issues they want to share in relation to any of these issues that are still to some extent in contention, then they should feel free to do that. Anyone else from amongst the employee group? No?
MS LO: Thank you, your Honour, this is Ms Lo from AFEI. Apologies for earlier, I've been experiencing technical issues, but I've jumped on now. We also have identified some issues through consultation, which we're happy to share with the other parties prior to reconvening for our next conference, so we'd be happy to share that. But, at this moment, we have nothing to say until we see ABI's proposals.
JUSTICE ROSS: Thank you.
MS LO: Thank you.
JUSTICE ROSS: Anyone else? No, all right. I should ‑ ‑ ‑
MR JONES: Your Honour ‑ ‑ ‑
JUSTICE ROSS: Yes.
MR JONES: ‑ ‑ ‑my name is Mitchell Jones. I'm an employer. I have just a question in relation to employees that will be communicating in online messaging type forms rather than just via phone call with their employers. Has that been considered by the Commission and as part of the submissions from other groups?
JUSTICE ROSS: That really falls within the definition of remote response work, and would, on the face of it, be comprehended by ABI's proposed definition in the initial proceedings where it talks about respondings to phone calls, messages, or emails. So, online messaging would be within the purview of messages.
MR JONES: Thanks very much.
JUSTICE ROSS: That's all right. Just before I go to the unions, without unduly wishing to confine the scope of your discussions, let me tell you what we're not doing; we're not going to be revisiting matters where we've expressed a view about, it's not a provisional view. For example, here we've said a shorter minimum payment should apply in circumstances where the employee is being paid an on-call allowance. We're not revisiting that proposition.
We say that it's necessary to include an award term dealing with remote response work. That's the decision we've made. So, just to the extent you've gone away and consulted and your members don't like, it, well, I'm afraid, you know, that's - the unions are in the same position, we've rejected a number of their claims. We're bringing this process to an end. We are not re-litigating matters that we have determined. This is about narrowing and determining and concluding. We are not going to - that's why I haven't put in the reply submissions, et cetera, you can seek leave, you can apply if you want to vary directions, but we're going to have a hearing, then we're going to issue a decision, and then we're going to close it off. So, you need to focus on that's the reality, I'm not going through another 12 months of an iteration on the SCHADS Award.
So, just be mindful of that when you come back. I'm conscious of Ms Lo's comments that her members have got some feedback on some of this. I imagine they do, but we've determined parts of this, and there are only parts of it that we're looking to finalise before we make variations.
Can I go to the unions in relation to remote response, and whether there are any initial thoughts that you had?
MR ROBSON: Yes, your Honour, Robson, for the ASU. There's a few points we'd just sort of raise now. We're certainly happy to see what ABI is willing to work out, and, you know, speak to them about that, outside this forum.
And I suppose the two points that are particularly important from the ASU's point of view: (1) the issue of the appropriate rate, we had understood that to mean, in arbitration, to mean the way it's been used in the award so far, which has to been to simplify the complexity between the different rules that apply to overtime for part-timers and full-timers. And from our perspective it doesn't really matter what the minimum engagement is for remote response work, it just can't always be paid at the minimum rate of pay. It's very likely that this clause would apply to full-timers who are already working their 38 hours in a week, or part-timers who'd potentially already done 10 hours in a day, and I suppose we wouldn't see a reason why, if someone had already worked the hours in a period of time, that would entitle them to overtime if they were working from their work location, why that should be paid at a minimum rate of pay out of hours.
And then just additionally, and this is something that's arisen I think since we concluded the hearings, what we wouldn't want to see is this clause being used in place of coming to actual rostered hours of full-timers or part-times, if they're in a working from home situation, and that's really an issue for drafting, and I don't think any of the employers would want to see this to be the way that you roster work where someone is not at a physical work location. So those are the two issues that we would just want to put the employers on notice about now.
JUSTICE ROSS: Can I make a comment about the appropriate rate? The Bench has made it clear that there is an interrelationship between the minimum payment period and the rate of payment. It's not our intention to hold ABI to appropriate rate as they advanced it at the time of their claim. We have not accepted their claim. So in changing it, the construct of it, they're entitled to now come along and argue what the rate of payment should be at the relevant times. So I don't want you to think that people are confined about that issue because they were advancing the idea of appropriate rate based on what it meant in the award in the context of their particular claim. We don't propose to hold them to that because we're not acceding to their particular claim, so yes.
Your point is well made. If someone has worked 12 hours or whatever, then how does that bear on the rate of payment and that sort of goes to additional disutility arguments, I guess. But let's see what they - the employers have heard the point and there may be scope for a rate of payment that is slightly more nuanced, depending on the circumstances. You know, it's not completely the appropriate rate proposition that might have been originally advanced. It might depend on the particular outcomes. Look, I think just bear that in mind, Mr Robson. I don't want us to get into a debate about - well, ABI originally said appropriate rate and they're stuck with it. You can take it that's not our view. We'll look at that issue on the merits. We'll listen to what you and your colleagues have to say and what the employers have to say about that.
I think we've made that point, really, by saying that we acknowledge there is an interrelationship between minimum payment period and the rate of payment. We've not determined the minimum payment period yet. We've just expressed a provisional view in relation to that. We'll see what everyone says, okay? Mr Redford or Ms Svendsen?
MR REDFORD: No, your Honour - happy to look at documents that will be forthcoming and have some discussion.
JUSTICE ROSS: Okay.
MS SVENDSEN: Nothing further to add at this time, your Honour, thank you.
JUSTICE ROSS: Look, the remaining issue is around the travel time claim. But on reflection on that, I think that discussion is probably better had after the other elements that impact on it - minimum engagement, et cetera are fully determined and any issues about that are dealt with. We've published the draft variation determination and our views in respect of those matters. I think to do - we're making the observation that the three issues are interrelated, which everyone accepted during the course of the proceedings. But the issue of minimum engagement, broken shift and travel time impact on each other. So really, all we're saying here is that, look, the changes we make in respect to minimum engagement and broken shifts may impact on the parties' perspectives around travel times.
It may be less of an issue than it was when there were no decisions on minimum engagement and broken shift. So in that space, I just want you to think about, reflect, on that and reflect on the changes in minimum engagement and broken shifts that have been identified in the decision and it may be something that can be revisited in the light of experience, that once the changes are made around minimum engagement and broken shifts and they've operated for a period, that parties have liberty to have the matter called back on and can pursue a particular outcome in relation to travel time. It was really - in raising the issue we're really saying that there is an interconnectedness. We're not sure what the impact of the minimum engagement, broken shifts changes that have been canvased would have on the travel time position, and that being the case, we've parked it for the moment. So that is really the purpose of bringing that to your attention.
It's not that we're - we're not rejecting any particular proposition. It's just that the circumstances have changed and if we vary the award in the manner that has been proposed then that would seem to be a different context to the one where the travel time claims were originally pursued. That's all. So unless anyone has any questions around that issue, I'd invite the unions - or Ms Svendsen is going to respond to the others in relation to the clothing proposition. I'd encourage you to have further discussions about that in the light of conversation that has taken place. Mr Scott is going to look at a drafting remote response. Mr Ferguson is going to circulate some issues of principles in that space and the parties can engage directly on those issues. Once you've had an opportunity to do that, if you think a conference would be of assistance, then we're happy to organise that and just get in touch.
Was there anything finally before we adjourn? Any questions or any issues? No? You can use the little hand function. I can never find it on mine but I'm sure you're much more technologically adept at this than I am. All right, nothing further? It's just been announced we've gone into seven days' hard lockdown here. So I'll just get on and organise what that will mean for our day-to-day work activities. Thank you very much. I'll adjourn.
ADJOURNED INDEFINITELY [11.26 AM]