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Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Health Professionals & Support Services Award, Nurses Award




1.17 PM, TUESDAY, 23 MAY 2017


THE VICE PRESIDENT:  We will take the appearances in Melbourne.


MS L SVENDSEN:  Svendsen, initial L, for the Health Services Union.  Thank you, your Honour.


MR A McCARTHY:  If the Commission pleases, McCarthy, initial A, for the Australian Nursing and Midwifery Federation.


MS E GUARINO:  If it pleases the Commission, Guarino, initial E, for the Chiropractors Association of Australia.


THE VICE PRESIDENT:  Thank you.  We will go to Newcastle.


MR K SCOTT:  If the Commission pleases, Scott, initial K.  I seek permission to appear on behalf of Australian Business Industrial and the New South Wales Business Chamber.


THE VICE PRESIDENT:  Thank you.  We then go to Brisbane.


MS L FISHER:  If the Commission pleases, Fisher, Lucy, on behalf of the Private Hospital Industry Employers Association.


MS K MURPHY:  If the Commission pleases, Murphy, initial K, for the Dental Hygienists Association of Australia.


THE VICE PRESIDENT:  Thank you.  We will then go to Sydney.


MR D WILKINSON:  Wilkinson, initial D, on behalf of the Australian Dental Association, if the Commission pleases.


MS R BHATT:  If the Commission pleases, Bhatt, initial R, appearing on behalf of the Australian Industry Group.


MS E PATTON:  If the Commission pleases, Patton, initial E, from Leading Age Services Australia Ltd.


MR G LIGGINS:  If the Commission pleases, Liggins, initial G, from Aged and Community Services Australia.


MR J MILJAK:  If the Commission pleases, Miljak, initial J, on behalf of the Australian Federation of Employers and Industries.


THE VICE PRESIDENT:  Thank you.  That completes the appearances.  On the last occasion we looked at the timetable and there were extensions to the timetable to put on the evidence and the submissions.  Are there any parties who are in default of the timetable at the moment?


MS BHATT:  Yes, Vice President.  It's Ms Bhatt here for Ai Group.  Before we proceed, I should say that we can't see Melbourne at all.  Your associate is in the room and I'm sure that is being addressed, but as long as your Honour is happy to proceed, I am.


THE VICE PRESIDENT:  Yes, I can see.  We'll fix up cameras.


MS BHATT:  All right.  Thank you, Vice President.  Ai Group, along with other respondent parties, were given an extension of time to file their material until yesterday.  Ai Group has filed submissions in reply in relation to the Nurses Award.  However, regrettably, we are not in a position to file our material in relation to the Health Professionals and Support Services Award.  We will not be filing any evidence.  I anticipate that we will be in a position to file our submissions towards the end of this week and we seek the Commission's leave to be able to do so.


THE VICE PRESIDENT:  Yes.  That won't be a problem, given the hearing date.


MS BHATT:  Thank you, Vice President.


THE VICE PRESIDENT:  Is there anyone else who has still got material outstanding?


MR WILKINSON:  Yes, Vice President.  Wilkinson, on behalf of the Australian Dental Association.  I had spoken to your associate, Josh Martin, this morning.  We have still got submissions in reply to be lodged and we had sought a little bit of an extension, as well, because we have witness statements that have not been concluded due to a Dental Congress being on interstate and haven't been able to finalise responses from those that are giving us evidence in witness statements.  We hope to have it all finalised by today.  We're working on those people now, to follow them up.  If not, it will be in the next day or so, if the Commission pleases.  Thank you.


THE VICE PRESIDENT:  Yes.  Anyone else?


MR LIGGINS:  Vice President, aged care employers are still trying to finalise some witness statements which we hope to have by the end of the week.  We just had difficulty in finalising them.


THE VICE PRESIDENT:  Right.  Anyone else?


MS MURPHY:  Vice President, Miljak, for the AFEI.  Similarly, we would just seek perhaps to the end of the week to be able to finalise our submissions.


THE VICE PRESIDENT:  Yes, okay.  All right.  I don't know what has happened then.


MS SVENDSEN:  It's Brisbane and Newcastle.  No, it's not, it's Newcastle and Adelaide.


THE VICE PRESIDENT:  Have we lost someone?


MS SVENDSEN:  Newcastle, we'll lost.  Adelaide, there was nobody there.


THE VICE PRESIDENT:  Right.  We seem to have lost Newcastle.


MR SCOTT:  I'm still here.


THE VICE PRESIDENT:  Very good.  Thank you, Mr Scott.


MS FISHER:  Your Honour, it's Brisbane here.  Are you able to hear us, because we can't see you at all now.


THE VICE PRESIDENT:  We can hear you.


MS FISHER:  Okay, fine.  Thank you.


THE VICE PRESIDENT:  We will see whether we can see you shortly.  What I propose to do then is that I'll extend the timetable for filing of material and I'll make it until Friday, 9 June, to avoid any problems.  What I would then like the parties to do is to have discussions amongst themselves in relation to the witness statements, particularly in relation to whether there are any objections to witness statements.  I will give a period of time.


I'll set this up a bit more formally as formal directions so that if the parties can have discussions and reach a landing as to which matters they want to have that are outstanding in terms of objections to evidence.  I will then refer the matter for a conference before Gooley DP to deal with those outstanding objections in relation to evidence.  If that can't be resolved, then obviously the Full Bench will have to deal with them thereafter, but hopefully following discussions between the parties and then a conference before Gooley DP, we can reach that landing.


Remember that we are running a modern award review and issues as to weight, for example, you can make that submission, but the statement doesn't go in.  You can make a comment and say, "Objection as to weight", et cetera.  It's ultimately a question of weight on some of these things without taking the objection as to its admissibility necessarily as being a killer point.  You know, in having your discussions be relatively practical in terms of reducing any objections that need to otherwise be dealt with.


Now that all the material is, in a broad sense, filed apart from a little bit of witness evidence, does that have any impact on anybody's view in terms of the hearing dates?  Is everybody satisfied?  I'll take silence as being satisfaction.


MS FISHER:  Your Honour, it's Lucy Fisher in Brisbane.  Just a query as to whether any thoughts have been given by the parties as to which award is going to be held first.  Like, there are four days in November and five in December.


THE VICE PRESIDENT:  I don't remember whether the parties had that discussion or if that's one of the things they were to discuss.


MS SVENDSEN:  We have had some informal discussions out of session with PHIEA and I, just this afternoon, advised Mr McCarthy of the content of those discussions which was loosely about the nurses' matters being probably shorter and that maybe starting with the nurses would be a better idea.  The Health Professionals has three matters that I think will be substantive, although the APESMA claim for a new classification is the most weighty.  I'm not sure if that's going to be listed separately or not.  I just make that point.


The other two matters in Health Professionals are the issues - plural - around the span of hours clause and the issue around the list of common health professionals; whether that is exhaustive or indicative.  At this stage I would suggest that the evidence and material that has been filed, it would suggest a maximum of a day each and I don't think it would take that long, frankly.


THE VICE PRESIDENT:  All right.  What I propose to do then is that in relation to making the directions, it will be referred to Gooley DP where she will deal with the objections.  At that point the parties should also finalise discussions in relation to the order of witnesses and the order of the hearing so we can move things along in a very smooth way.


MS SVENDSEN:  That would be good.


THE VICE PRESIDENT:  It would be good, when you do have those discussions, that you actually stick to them, not like recent events where parties turn up on day one and then one party decides to change the order of witnesses and it puts everybody out.  Please bear that in mind, when you reach an agreement on the order of witnesses, that we do try to stick it to.  Any other interlocutory matters that people wish to raise?


MS BHATT:  Vice President, if I may, we're of course quite content for the programming of the hearing to be the subject of discussions between the parties in any conference or prior to any conference before Gooley DP, but I think that in order to have that discussion an assessment needs to be made by the relevant parties as to which of the witnesses, if any, will in fact be required for cross‑examination.  I think that will colour to a very significant degree how the matter is to be programmed and the number of days of hearing that might be required.


THE VICE PRESIDENT:  Yes.  I take that as a given that the parties, if they don't wish to have any cross‑examination, would ordinarily tell each other as part of that conference process.


MS BHATT:  If I can ask this, Vice President:  is there any view as to when the matter might be listed for conference before Gooley DP in a loose sense?


THE VICE PRESIDENT:  It would not be until after the expiry of, first of all, the timetable for the material, then two or three weeks after that to allow the parties to have formal discussions.  I would imagine that we're talking about July dates.  Not before July.


MS BHATT:  If the Commission pleases.


THE VICE PRESIDENT:  That gives plenty of opportunity to have those discussions and reach a landing.




THE VICE PRESIDENT:  We don't start the hearing until 27 November, in any event.  All right.  Anything else?  I will see you all at the hearing.  The Commission is adjourned.

ADJOURNED UNTIL MONDAY, 27 NOVEMBER 2017                [1.28 PM]