TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1056483
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
10.00 AM, MONDAY, 22 OCTOBER 2018
JUSTICE ROSS: Can I have the appearances please?
MR M ROBSON: Robson, initial M, for the Australian Services Union.
JUSTICE ROSS: Thanks.
MR BULL: If the Commission pleases, Bull, for United Voice. I keep mispronouncing my colleague's name.
MS N DABARERA: If the Commission pleases, Dabarera, initial N.
JUSTICE ROSS: Thanks, Ms Dabarera.
MS J FIELD: If it pleases the Commission, Field, initial J, for Aged Care Employers.
JUSTICE ROSS: Thank you.
MS S WHISH: If it pleases the Commission, Whish, initial S, on behalf of ABI and NSWBC.
MR B FERGUSON: If the Commission pleases, Ferguson, initial B, for the Australian Industry Group.
MS N SHAW: Shaw, initial N, for AFEI.
MS S LO: Lo, initial S, for AFEI.
JUSTICE ROSS: Thank you. In Melbourne?
MS R LIEBHABER: If the Commission pleases, Liebhaber, initial R, for the Health Services Union.
JUSTICE ROSS: Thank you.
MS K AWAD: If the Commission pleases, Awad, initial K, for Jobs Australia.
JUSTICE ROSS: Thank you. So we've received submissions from the ASU, HSU, United Voice and Jobs Australia. I'll deal with the issues raised around the joint report in a moment but ASU confirming that it continues to press the items listed in the revised summary of proposed substantive variations. Those are S6, S7 and S36, and that those variations should be added to the list of claims in attachment A. What we'll do is prepare a revised attachment A in relation to this award picking up each one of these comments and adding the relevant claims, and also including a reference to the joint report.
HSU seeks to correct attachment A to remove their proposition that they're seeking to replace references in the award to terms such as appropriate rate and ordinary rate of pay with minimum and hourly rate. They raise the issue of the joint report and in addition to the claims listed in attachment A to the statement, they seek a minimum engagement period for all full-time, part-time and casual employees of three hours, to ensure that the casual loading is paid in addition to other shift allowances, weekend and public holiday rates, and a range of other claims that they identify.
Jobs Australia confirms it continues to pursue the items in the revised summary of the proposed substantive variations, in particular item S42 and S58, and those matters should be added to the list. United Voice makes the same point as the HSU about the appropriate rate issue and draws attention to the joint report. We'll take a couple of steps. One is to prepare a revised list of claims being pursued in relation to this award. Two, attaching the joint report.
Do I take it that all the parties represented here are party to that joint report and you still support it? Anything changed?
MR FERGUSON: The Australian Industry Group is not. I note that we're still receiving instructions from key members as to our level of engagement with this matter.
JUSTICE ROSS: All right.
MR FERGUSON: But we're not a party to it.
JUSTICE ROSS: All right then. What we'll do is when we publish the consolidated list of claims with the joint report, then we'll seek confirmation. If any party opposes it, I'd be interested as to who you represent in this matter as well at that time. That is if you oppose the joint report, I want to find out who it is and what the concerns are. We'll confirm that on the joint report before the Bench makes any decision about it, or even to consider it and whether we've got any questions about it.
What we won't do is just leave it hanging; we'll come to a view about it one way or another and you'll know that before the case runs. That way in the event, as I think United Voice mentioned, they've abandoned a couple of claims in the to and fro process that led to the joint report. If the joint report is not going to be accepted then you might want to consider additional claims. The same position may be taken by the employer interest. We'll try and get some clarity around that as soon as we can.
In terms of the sort of various claims, they're essentially pressed by United Voice and the HSU, some additional jobs by Jobs Australia. Who would like to go first as to how long it's likely to take, what sort of case is likely to be advanced?
MR BULL: We think five to six witnesses, so probably three or four days.
JUSTICE ROSS: Ms Liebhaber?
MS LIEBHABER: We expect approximately six to 10 witnesses. Yes, we'll probably estimate four five to days, maybe.
JUSTICE ROSS: In addition to Mr Bull's four to five days?
MS LIEBHABER: No, I think instead of Mr Bull's suggestion.
JUSTICE ROSS: Jobs Australia?
MS AWAD: We would estimate probably two to three witnesses and maybe a couple of days.
JUSTICE ROSS: In addition to the five days or do you think yours can be encompassed within the five days the others are mentioning.
MS AWAD: Most likely within the five days.
JUSTICE ROSS: All right, so somewhere between 15 and 18 witnesses all up and probably within a five day time frame. What about the timing? Any view about that? Any proposed directions in relation to that?
MR ROBSON: Your Honour, I note the ASU is likely to bring five to 10, in particular, depending on the Jobs Australia's claim to vary the classifications. We haven't seen what that is, but that maybe quite significant for us, so we might bring a larger number of witnesses in response.
JUSTICE ROSS: So that will be evidence in reply?
MR ROBSON: Yes.
JUSTICE ROSS: In relation to your three claims?
MR ROBSON: We would probably bring somewhere between five and 10, depending on what we can find.
MR BULL: I might indicate that we, the HSU, the ASU and United Voice will have a meeting and we'll try and - - -
JUSTICE ROSS: Yes, that would be helpful.
MR BULL: Well, none of us frankly want to do more - we don't want to overlap and sort of overwork it, so to speak.
JUSTICE ROSS: Sure.
MR BULL: If we can coordinate things to minimise the number of witnesses from our point of view. Obviously, the same witness can frequently give evidence about multiple matters. This has been distributed. We did also prepare a draft timetable. Some of the employer parties have seen this.
JUSTICE ROSS: I'll read it out anyway.
MR BULL: I think at some stage we've filed draft determinations.
JUSTICE ROSS: But again, yes.
MR BULL: It's just a blur of - - -
JUSTICE ROSS: No, no, sure. We'll make sure - so the draft variations contemplate that any party seeking a variation would file their submissions and witness statements by 17 December. Any material in reply by 11 February and the matter would be listed for hearing in March.
What I indicated in relation to the first matter in the list today was that I would look at the available dates and having regard to those two matters and the indications that have been given about the likely duration of the hearing and publish draft directions in relation to both matters. That I'd do that by close of business Monday next week, 29 October. We would meet again on Friday 9 November at 11am to discuss those directions.
It may be in relation to this matter - the other thing I should have mentioned in the earlier one - and I'll look at the same comments that I made Ms Whish about the earlier matter and 11 February apply here. I need to find out when the dates of the hearing is and I'll work backwards and try and give you as much time as I can. That will also apply to the ASU of course if they're putting material in reply.
We'll try and move that 11 February date a bit, but it depends a bit on when the hearing - if the hearing is not going to be until perhaps the third, fourth week in March, then there's not much requiring replies by 11 February. We could give you until at least end of February. So, we'll have a look at that.
You'll see the draft. I don't really want to get involved in a debate about it now. Wait until you see it and then we'll finalise it on the 9th. This may be an award also, where we separate - that the hearing may be in two parts. We deal with all of the witness evidence and then we have a break and we come back to submissions about what you want to say about the witness evidence.
It's a bit different in the other matters because there aren't that many witnesses. Here, if you've got perhaps 20 or 30 witnesses, I don't think it would be reasonable to list the hearing on consecutive days, so we finish the witness evidence and then the following day you're on your feet telling me what findings I should extract from the witness evidence and et cetera.
I think it's more likely we'd hear all the evidence, there would probably be some directions about filing what you want to say, each of you about the witness evidence and referring to it and the transcript references, et cetera. Give you some time to do that. Then we would come back for short oral argument in closing.
This matter probably lends itself more to that process than trying to battle through. You finish the witness evidence on one days and you're on your feet the next. But we'll see what the joint discussions lead to and if we can get an overall estimate of the number of witnesses, that will give us a better idea.
MR BULL: There seems to be quite a bit of overlap with the union claims.
JUSTICE ROSS: I'm sorry?
MR BULL: There seems to be quite a bit of overlap.
JUSTICE ROSS: Yes, there is.
MR BULL: The witnesses would be similar witnesses. So obviously, it's in our interests. We will get on and we'll try and do it in an efficient manner so we don't end up having 20 witnesses.
JUSTICE ROSS: Yes, it also depends on the number of witnesses that are likely to be filed in response to whatever you say, and that's a bit difficult to estimate at this point. The directions will also set out when the draft variation determinations are to be filed.
Anything else that anyone want to agitate now? No? Any particular dates in March create a particular problem for any of you?
MR BULL: It will be well before Easter, won't it?
JUSTICE ROSS: When's Easter?
MR BULL: Early April, I think.
JUSTICE ROSS: Yes, it'll be before Easter, I think. Ms Whish, birthday?
MS WHISH: Just as late as possible, your Honour.
JUSTICE ROSS: Sorry?
MS WHISH: Just as late as possible in either February or March.
JUSTICE ROSS: No, no, I think that'd be fine, yes. Well, I'll try and balance as late as possible with Easter and yes, have a think about the idea of evidence and then a break and come back. It's a bit difficult to take that much further at this stage. The draft directions won't deal with it. It will just deal with the filing of materials and the hearing days but - and it's also, look it's also something we don't need to particularly make any decision about this year. We can wait until all the material's in, have a mention at some point next year and once you've seen the first tranche of the material you can let me know what you think it's likely to be. We'll need to have at least one mention and probably two on the filing of the material and then the filing of the reply material, just to find out which witnesses are going to be cross-examined, how long, where they're from, those sorts of issues. Nothing else? Right, thanks very much, I'll see you on the 9th.
ADJOURNED UNTIL FRIDAY, 09 NOVEMBER 2018 [10.44 AM]