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Fair Work Act 2009����������������������������������������������������








s.156 - 4 yearly review of modern awards


Four yearly review of modern awards





9.00 AM, TUESDAY, 22 MARCH 2022


Continued from 14/02/2022



VICE PRESIDENT HATCHER:  I will take appearances.  Mr Ward, you appear for ABI and the New South Wales Business Chamber?


MR WARD:  Yes, I do appear.


VICE PRESIDENT HATCHER:  Ms Langford, you appear for National Disability Services?


MS LANGFORD:  Yes, I do, your Honour.


VICE PRESIDENT HATCHER:  Mr Christodoulou, you appear for Greenacres?


MR CHRISTODOULOU:  Yes, I do, your Honour.


VICE PRESIDENT HATCHER:  And, Ms Boulton, you appear for Endeavour Foundation?


MS BOULTON:  Yes, I do, your Honour.


VICE PRESIDENT HATCHER:  Mr Kemppi, you appear for the ACTU, the HSU and the UWU and the AED Legal Centre; correct?


MR KEMPPI:  Yes, Vice President.


VICE PRESIDENT HATCHER:  Ms Gruschka - if I have pronounced that correctly - you appear for the Department of Social Services?


MS GRUSCHKA:  That's correct, thank you, your Honour.


VICE PRESIDENT HATCHER:  I indicate that Ms Walsh from Our Voice Australia has indicated she wishes to appear, but, for some reason, we can't make contact with her, but, in the event that she makes contact, we will add her in immediately.


The Full Bench has read the parties' position papers and we might ask some questions about them, but, obviously, the purpose of today is to path a procedural path forward for the completion of this matter.  Can I start with you, Mr Ward.


MR WARD:  You can, your Honour.


VICE PRESIDENT HATCHER:  What do you say we should do next?


MR WARD:  Well, I have to say I'm probably a little confused in this sense: we had approached where we are through this lens, that the Commission had made a preliminary decision on 3 December 2019 and we had understood that we were effectively in a part of the process where we were reflecting on the trial to implement, in effect, the decision of 3 December 2019 and that the position papers were really designed to allow us to go into conference to see if we could narrow the differences between the parties in that process.


Where we appear to be at this juncture is somewhere markedly away from that in that - and I say this respectfully and, hopefully, we haven't got it wrong - it would appear that the unions simply want to have an opportunity to reventilate their original argument.  It appears that AED Legal want to effectively suggest you don't have power to do very much at all.


I have to say we are not entirely sure where we are now in the process in light of how we understood where we are and what we have read from the other parties.


VICE PRESIDENT HATCHER:  Well, obviously, I think, Mr Ward, we are on a track to finalise this matter in the light of the Full Bench's previous decisions and the outcome of the report.


At the last directions hearing, there was some interest expressed by parties as to whether some sort of conference process would be productive, and I think the position paper process was designed to elicit the parties' positions.  I must say, speaking for myself, that I can't see any prospect, having regard to the parties' positions, that a conference would lead to any agreed outcome and, in fact, on one view, the parties' positions are exactly the same as they were four or five years ago.  Anyway, if any party wishes to persuade us to a different approach, they can do so, but having regard to those matters, Mr Ward, what do you say we should do next?


MR WARD:  Can I just simply concur.  Well, let me answer that slightly differently.  We had approached the position paper more by way of statements of inquiry or conversation rather than necessarily articulating what we might describe as hardened positions.  I think that is a slightly different approach from the one we might have taken in the proceedings earlier.  So, we approached the position paper with an open mind and a point of inquiry.


As to whether or not there is any utility in having a conference, I am inclined to take your Honour's view that there probably isn't any utility in a conference.


On that basis, we think that the approach that should be taken is likely to be this, and I say this respectfully to the Full Bench, that it would be useful for the Full Bench to articulate, having made its decision on 3 December 2019, what it believes is left to be answered, and then there will obviously need to be further submissions and possibly evidence in regard to that.


The reason why I put it that way is it is open to debate whether or not the Bench want to rehear part of the case, and I think the Bench need to inform us as to where they believe they are at in the process based on the 3 December 2019 decision and the programming will then flow from that.


VICE PRESIDENT HATCHER:  All right.  I think we indicated in our previous statement what we considered to be the main issues arising from the report.  There's obviously issues arising.  I mean parties can raise or identify whatever issues they would like in the report, but, again, speaking for myself, it seems to me to be two main issues:  first of all, whether the wage rates in the proposal are appropriately set having regard to the cost outcome to ADEs and having regard to our findings that, obviously, the Commission has no desire to put ADEs out of business; and, secondly, whether, having regard to some of the comments in the report, whether greater certainty can be attached to a new classification structure, but, of course, that is not intended to prevent any party raising any issue that it wants to raise.


Can I just pause there, Mr Ward.  Ms Walsh, I note you have appeared, so we note your appearance.


MS WALSH:  Thank you.


VICE PRESIDENT HATCHER:  All right, so go on, Mr Ward.


MR WARD:  Your Honour, I think, from our perspective, if those are the issues, we probably aren't in a position today to tell you exactly how we wish to proceed, but clearly we will obviously make further submissions on those matters and likely call further evidence on those matters.


If, on the other hand, there is a different case to be answered, i.e. the ACTU and the unions want to reagitate their original case, then obviously we will need to consider how we reply to that.


VICE PRESIDENT HATCHER:  Yes, all right.  Okay, thank you.  Do any of the other employer representatives wish to say anything different to Mr Ward or to supplement what he has said?


SPEAKER:  No, your Honour.


VICE PRESIDENT HATCHER:  All right, Mr Kemppi, I will turn to you now.  Perhaps you can address this in two parts.  First of all, can we start off with the unions' position.  Am I understanding that the unions wish to agitate the position which has previously been dealt with in the December 2019 decision?


MR KEMPPI:  That's correct, Vice President, we do wish to agitate the position around whether or not the A and B classifications should be included.  We seek to agitate that in a number of ways, partly with regard to the report itself, which appears to be, I suppose, consistent with the exercise, but also partly with respect to the general merits, and that is, of course, in addition to the jurisdictional considerations that are raised by the AED.


VICE PRESIDENT HATCHER:  Just explain to me, does that involve reagitating issues the Commission has already determined?


MR KEMPPI:  It may well.  I can't speak for the AED on that point.  I'm afraid I don't have comprehensive instructions on that point, but I should flag that it may involve that, given that the decision was a provisional decision, as we understand it.


VICE PRESIDENT HATCHER:  So why should we entertain listening to a case that we have already heard?


MR KEMPPI:  In our view, the report may provide some substance to some of those issues.




MR KEMPPI:  Some further substance, we say.


VICE PRESIDENT HATCHER:  All right.  And in relation to the  - again you may not be able to help us, but I know we said the position papers should be relatively brief, but, speaking for myself, I am not sure I even understand what the matters raised in the AED Legal Centre's submissions actually are.  Can you assist us in that regard?


MR KEMPPI:  Potentially.  Do you mean no longer the position paper but we're talking about the jurisdictional objection?


VICE PRESIDENT HATCHER:  Yes.  I have read it, but I don't understand it, to be perfectly honest.  Can you help us in that regard?


MR KEMPPI:  I'll be honest and say I probably couldn't advance the cause much more greatly, except to say that, as I understand it, the issues are similar to those that have been previously advanced in another jurisdiction and essentially focusing on the potentially discriminatory nature, but, that said, I don't think I could advance the case beyond your reading, Vice President.  The unions, treating this as the AED's objection, had intended to make up our own mind about which aspects we would support and the way in which we would support it.


VICE PRESIDENT HATCHER:  All right.  Mr Kemppi, is there any reason why we shouldn't make directions to set the matter down for a final hearing?


MR KEMPPI:  We say that there isn't.  What I can speak to, though, on the topic of directions is that it's the preference of the AED, as I understand it, to have the directions split, if the Commission is minded to do so, in other words, to deal with the jurisdictional objection first and then to deal with the substantive matter.


VICE PRESIDENT HATCHER:  How would that work?


MR KEMPPI:  In essence, by calling for submissions on the jurisdictional matter and then determining that, then proceeding on the question of substance, i.e. whether or not to include A and B, et cetera, as a merits based question that is.


VICE PRESIDENT HATCHER:  All right.  Anything further, Mr Kemppi?


MR KEMPPI:  No, thank you, Vice President.


VICE PRESIDENT HATCHER:  I might turn to you next, Ms Walsh.


MS WALSH:  Thank you.  Can you hear me?  I have had some issues with my technology.  Are you able to - - -


VICE PRESIDENT HATCHER:  Yes, we can.  Ms Walsh, you missed the beginning of this, so I just perhaps should recap a bit for your benefit.  Again, the Full Bench has read the parties' position papers.  I indicated, and, again, speaking only for myself, that it doesn't appear for me, having regard to the various positions of the parties, that there is any prospect, or any real prospect, that a conference process would result in any progress towards agreement and, therefore, it seems to me that the next step should be to progress this to a final hearing.  What do you say we should do next, Ms Walsh?


MS WALSH:  Well, our position paper has been put out there, but we would seek, before we move to a final hearing, if that is your determination, then we would seek to lodge two documents, if we could, in relation to a technical issue in the AED and union parties' position paper, and we think that if we are moving to either reconciliation or a final hearing, then that point needs to be clarified before we move to that situation, and our own position paper, of course, would not be able to be completed with the underlying documents until we are fully aware of what the social security position would be because much depends on how the government is going to react to that.


I apologise for being late, but we've had a bit of a family emergency medical thing here this morning and so, consequently, you know, I do apologise for the inconvenience that that may have caused to all parties.


So, yes, recapping on that, if that is the decision of the Bench, then we are comfortable to move with that, provided the other parties support that.


Our position in relation to the gradings, some of the confusion around that has been delineated and perhaps the final hearing will resolve it.


I would agree that we seem to be poles apart in how we may be able to narrow the differences, so, yes, we would have no objection to a final hearing, if that is the determination of the Bench, and in the best interests of the employees, but we do seek prior to that, and as soon as possible, to lodge those two documents.  Thank you.


VICE PRESIDENT HATCHER:  Sorry, Ms Walsh, I didn't quite understand something you said there.  You made reference to a social security decision.  What is that a reference to?


MS WALSH:  Sorry, the federal government, the position of the federal government.




MS WALSH:  I don't know and, perhaps, with respect, perhaps I have missed that this morning, but where the federal government will sit in relation to the report is - I don't know if I've missed it this morning, I apologise and I will find out - but much of how we go forward depends, I believe, on the position of the federal government in relation to what is an obviously significant wage increase for the sector for the services to actually manage without becoming financially unsustainable.


That, I guess, precludes us from making a final determination on behalf of the workers, their families and carers because we don't know the position of the federal government.


VICE PRESIDENT HATCHER:  Ms Walsh, I haven't turned to the department yet, so we will hear from then in a second.


MS WALSH:  All right.


VICE PRESIDENT HATCHER:  But, Ms Walsh, I want to make two things clear.  First of all, we haven't made any decision about the path forward yet, that's why we are asking the parties, but I am just giving you provisional views so that you can respond.


MS WALSH:  Thank you.


VICE PRESIDENT HATCHER:  The second thing - and again this needs to be made absolutely clear - is that the purpose of the wage rates indicated in the Commission's previous decision and statements is to have something that we can trial, but the Commission has not made a decision about wage increases or what wage rates should be set and, if any party wishes to make submissions about that, we are going to hear that.  So, you shouldn't proceed on the assumption that the Commission has made up its mind that the wages are going to be at some particular level or that there's some particular outcome that's going to follow from what has already happened.


MS WALSH:  Thank you for that clarification.


VICE PRESIDENT HATCHER:  All right, thank you.  Ms Gruschka?


MS GRUSCHKA:  Thank you, your Honour.  Your Honour, the purpose of our appearance this morning is to essentially request that the Commission grant permission for the  department to provide submissions in this matter.  The department has variously been involved in (indistinct) over a number of years, including conducting and funding a trial, for which I understand a report has now been provided to this Commission.


There are some matters that the department feels that it would be able to assist in terms of informing the Commission on some issues relating to the implementation of the proposed approach of the Full Bench in respect of its provisional decision regarding the current supported wage system assessments and the national panel of assessors, what the proposed approach might mean for the supported wage assessment tools and the national panel of assessors, but also responding to queries or submissions that have been made by other parties in their position papers most recently that have been directed or mention the department's involvement or what the department's involvement might be in respect of implementation.


So, there's a few practical issues that the department feels it could assist the Commission with by providing some submissions.  I don't envisage that that would necessarily delay or impede the Commission from making directions to proceed to final hearing, we would just ask that we be granted permission to provide submissions before a final hearing is conducted.


VICE PRESIDENT HATCHER:  All right, thank you.  You can assume that the department will have that opportunity in any directions we make.


Can I just throw this out there, whether any party thinks there would be benefit in making the key person, or a key person, involved in the preparation of the report available for cross-examination?


MR KEMPPI:  Thank you, Vice President.  If I may avoid giving a completely definitive answer to that, we would say that that is something that we had canvassed internally.  We have identified some questions that we might like to ask of the person who wrote the report.  Whether that take the form of cross-examination or questions up front, we're fairly flexible on, and subject to, I guess, finalising what those questions might look like, yes, that's something we would be quite interested in.


VICE PRESIDENT HATCHER:  All right.  Well, if I can turn to you, Mr Ward, in the event that we decide to make direction for a final hearing, without pinning you down, what's the sort of time scale that would be workable for the employers?


MR WARD:  Your Honour, I am mindful of my personal commitment in the aged care work value case when I answer that, which causes me some difficulty over the next six to eight weeks.  I don't think we would be ready to proceed to a hearing - we would probably need at least 12 to 16 weeks, and the reason why I am saying that is I'm not going to be available to work with the sector probably for the next eight, given the aged care hearing, so I am thinking - - -


VICE PRESIDENT HATCHER:  The next eight weeks, did you say?


MR WARD:  Yes, I'm going to be out pretty much for the next eight weeks, there or about, so we would probably need something after that sort of period, so I'm thinking if the matter was set down in 12 to 16 weeks, so that the timetable could be worked backwards and, obviously, I could have other people help in preparation.


VICE PRESIDENT HATCHER:  All right, thank you.  Do you think it's likely that we would be hearing further evidence from your perspective?


MR WARD:  I think the answer has to be 'Yes', your Honour, if only on the capacity to pay issue.  If it's only on that, the answer would be 'Yes' because I don't - I say this with some care - there's clearly at least one party in these proceedings who is going to take every point in every issue and probably take everything up to the Federal Court, but to the extent that we need to explain to the Commission the economic impact of the decision and the question you are facing, I think it would be reasonable for the Commission to have some further evidence at least on that.


VICE PRESIDENT HATCHER:  All right.  There is obviously already a lot about that sort of thing in the report.


MR WARD:  I understand that.


VICE PRESIDENT HATCHER:  And, again speaking for myself, I don't think I need a lot of persuasion to say that a 50 per cent wage increase would cause difficulties for any employer, let alone ADEs, but, all right, I understand.


Mr Kemppi, is it likely that your organisation would like to call further evidence?


MR KEMPPI:  Yes, it's potential that the unions will call further evidence, but I would say it's fairly - it's more likely than that given that the AED will call further evidence.


VICE PRESIDENT HATCHER:  What sort of evidence might that be?


MR KEMPPI:  That's still to be determined, but I understand it might go to issues like outcomes and comparisons between certain workers in terms of the application of the A and B classifications, the nature of the work that's done, those sorts of issues.


VICE PRESIDENT HATCHER:  All right.  Mr Kemppi, given the approach that appears from your position paper, would it be an appropriate course to ask - because, in effect, you are asking for an abandonment of the entire approach taken to date - would it be appropriate for your organisations to go first in terms of the merits case, leaving aside the jurisdictional issue?


MR KEMPPI:  We would be happy with that course, subject to, obviously, the timelines that are landed on that.  For the avoidance of doubt, we do say 'abandoned' in some aspects, being the A and B classifications, but we don't say abandon the course on the SWS.


VICE PRESIDENT HATCHER:  All right, does anyone else wish to add anything about the procedures we might adopt from hereon?


MR WARD:  Your Honour, I might just - - -




VICE PRESIDENT HATCHER:  I will let Mr Kemppi go.


MR KEMPPI:  Thank you.  I just wanted to say at the previous mentions, we did indicate a timeline that could look something like 20 May for further evidence and submissions, 10 June for reply and in about August 15 to 19 for the hearing, perhaps with some slight modifications, given that some time has now passed, but we would be pretty comfortable with a timeline that looked a bit like that, and I believe that might fall roughly within Mr Ward's parameters.


VICE PRESIDENT HATCHER:  All right.  If the unions went first, Mr Ward, would that suit your convenience?


MR WARD:  Yes, that would be satisfactory, your Honour.


VICE PRESIDENT HATCHER:  All right.  Did you want to add anything?


MR WARD:  I did want to say in relation to AED Legal, I do suffer from the challenge your Honour has in that I'm not entirely sure what their submission means, but we would be very reticent to suggest that you should split the case.  We think, if it's going to be heard, it should be heard all together.  It's not as if there's some discrete and delicate jurisdictional point that needs to be dealt with first, so we think that you shouldn't be splitting the case, it should just be dealt with as it rolls.


VICE PRESIDENT HATCHER:  Yes, all right.  Anything further?


MR CHRISTODOULOU:  Yes, your Honour, Mr Christodoulou here.




MR CHRISTODOULOU:  In relation to the submissions that might be made by Commonwealth in these matters, I think it's been indicated that they wanted to put some matters to the Bench before the directions are issued.  I think that's what I might have heard, but I could be wrong.


It would be useful for the parties to understand the Commonwealth's position in relation to particularly its capacity to fund the SWS assessments on an ongoing basis, given they are $1200 per an assessment and that has to be done every year for the workforce - that's a pretty big cost - and, secondly, any additional funding supplementation for the wage outcome.  I would be interested in knowing what the Commonwealth position is on that prior to us having to make our submissions.


VICE PRESIDENT HATCHER:  All right.  Ms Gruschka, is it likely that the Commonwealth is going to make submissions about either of those matters?


MS GRUSCHKA:  Your Honour, the Commonwealth can make some submissions about the cost of administering the SWS assessment tool.  We are not in a position to make submissions on any funding supplementation, as far as I am aware.  That would be a matter for policy and I couldn't speak to that any further.


In terms of the observation in respect of what the parties would like to understand from the department prior to proceeding to prepare their evidence, it would be my respectful view that we could put on our submissions in, you know, two or three weeks' time and then the timetable could start running for the parties to prepare evidence leading up to the hearing, if that assists.


VICE PRESIDENT HATCHER:  All right, thank you, that does assist.  Anything else anybody wishes to raise?


MR WALSH:  Your Honour, it's Our Voice here.  I just am still seeking permission to lodge the two documents.  In relation to the technical point raised by AED and the unions, I think it's important that, from the perspective of the workers, their families and carers, we need to clarify that issue, and then I agree totally with the position, I guess, advanced by Mr Christodoulou in relation to getting some idea from the department.  Our only issue at the moment is if we can have permission to lodge those two documents as soon as possible to clarify that point so that we can actually advise our workers, their families and carers.


VICE PRESIDENT HATCHER:  All right, we have heard you about that, Ms Walsh.  We will consider.  Obviously your organisation will have the opportunity to make submissions.  We will just have to consider at what stage in timing that should occur.


MS WALSH:  Thank you very much.


VICE PRESIDENT HATCHER:  All right, we thank the parties for your attendance.  We will consider what has been put and we will now adjourn.

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