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Fair Work Act 2009                                       1057247






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Health Professionals and Support Services Award 2010




10.10 AM, FRIDAY, 23 AUGUST 2019


THE DEPUTY PRESIDENT:  Good morning everybody.


MS MURPHY:  Good morning.


THE DEPUTY PRESIDENT:  Let's just take appearances for the record.  Where would we like to begin, perhaps from the left-hand side or your right-hand side.


MS MURPHY:  If the Commission pleases, Murphy, initial K, for the Dental Hygienist Association of Australia.  With me I have Dr Carol Tran who is the Queensland Director of the Dental Hygienist Association.  If the Commission pleases.


THE DEPUTY PRESIDENT:  Yes, thank you, Ms Murphy.  Is it Mr Williamson?


MR MILES:  Mr Miles.




MR MILES:  I seek permission to appear.


THE DEPUTY PRESIDENT:  I apologise, I was wearing my reading glasses.  I do know you.


MR MILES:  Mr Wilkinson's next to me and appearing with me.  I'm seeking permission to appear for the Australian Dental Association.


THE DEPUTY PRESIDENT:  Yes, very good.  Just before we move on, back to Ms Murphy.  Any submissions in relation to Mr Miles' appearance?


MS MURPHY:  The DHAA has no objection, your Honour.


THE DEPUTY PRESIDENT:  Very good, thank you.  So in your appearance you might also indicate - - -


MR McCARTHY:  Mr McCarthy, appearing on behalf of the Medical Imagining Employment Relations Group and we've no objection to Mr Miles.


THE DEPUTY PRESIDENT:  Very good, you anticipated my point.  Thanks, Mr McCarthy.  Ms Liebhaber in Melbourne on the VC?


MS LIEBHABER:  Yes, if it please the Commission, Liebhaber for the Health Services Union.


THE DEPUTY PRESIDENT:  Thank you, Ms Liebhaber, and I believe we have Ms Thompson on the phone from Newcastle.


MS THOMSON:  That's correct, your Honour, and I've previously been granted permission to appear in these proceedings on behalf of ABI and the NSW Business Chambers.


THE DEPUTY PRESIDENT:  Very good, well we might deal - and do you have a view about Mr Miles' appearance?




THE DEPUTY PRESIDENT:  Ms Liebhaber, any submissions about Mr Miles' appearance?


MS LIEBHABER:  No, your Honour.


THE DEPUTY PRESIDENT:  Right.  Mr Miles, do you just want to say a few words to me about section 596 and why I should give you permission?


MR MILES:  Yes, given the Federal Court's view that the matter should be explicitly addressed.  We say permission should be granted because the matter raises some complexity in relation to the actual construction of the award and whilst the complex legislative framework, the approach is largely settled.  It's still a broad approach with - in which the Commission needs to make a value judgment based on balancing various considerations that don't necessarily point to a consistent direction, which is why we submit that it'd be more efficient with legal representation to focus on the real issues in the review.


THE DEPUTY PRESIDENT:  Yes, thanks, Mr Miles.  Nobody wants to comment on that, because you've all indicated you have no objections.  So I've obviously turned my mind to this prior to coming on the Bench and I do consider that this question of coverage is one that is on the more - on the complex end of the spectrum in relation to modern award review matters, and in fact would feel the Commission would be benefitted by legal counsel addressing the Commission on some of the principles relating to coverage.  For that reason, pursuant to section 596(2)(b) I believe my discretion is enlivened and I think that it would be appropriate to exercise it in favour of Mr Miles, and indeed just for completion Ms Thomson as well.  Permission is granted to both Mr Miles and Ms Thomson to appear.


Now my Associate may have foreshadowed and obviously subject to the parties' view but I think it might be just better for us to talk in conference about the various, or the range of issues associated with the timetable and hearing of the matter and particularly the scope of the matter given that the ADA's application for 2 and 3 September being vacated was on the basis of needing more time to prepare a more comprehensive submission.  So I think I'd like to know not actually what the submissions are from everybody but just generally what everybody thinks about scope, and obviously scope as per the original directions, or if there's some change of scope.  I think that'd be easier to do in conference and I'll obviously be happy to come back on the record at the end once we've reached a landing on timetable.


Ms Thomson, that means we'd move the phone to the Bar table so that you could be involved and Ms Liebhaber it just means that we'd have to be making sure we kept looking up at the VC and including you in our discussions but we'd go off transcript so we can have a free flowing conversation.  Any party have a concern with that approach?  No.  Very good.  All right, well the Commission will be adjourned for a short period whilst we go into conference.

OFF THE RECORD                                                                             [10.15 AM]

ON THE RECORD                                                                               [11.15 AM]


THE DEPUTY PRESIDENT:  Thank you.  Well, thank you everybody.  For the record I'd like to indicate that I've had a conference with the parties on the procedural matters arising from this modern award review and the forthcoming hearing in relation to some outstanding matters from the Commission's main decision if you like of 3 December 2018.  One procedural matter is the date of the hearing and it's been agreed that a single day or two days, depending on another procedural decision, in the week commencing 2 December, subject to the parties right to raise concerns about witnesses' availability with the Vice President's chambers, the presiding Catanzariti VP.  That will be the week within which the hearing proceeds.


A new set of directions will issue providing the opportunity for any interested party to make submissions and any party to respond to submissions, and that timetable will whilst not agreed specifically in the conference flow from the choice of the date for hearing and ample time will be available within the next three months for that to unfold.


The more vexed procedural matter relates to the directions of 20 June 2019 in which Catanzariti VP directed that interested parties file submissions, witness statements and other material upon which they seek to rely in relation to two matters set out as follows:  a) whether the occupations of dental hygienist and oral therapist should be covered by the award and; b) whether the list of common health professionals contained in schedule C of the award should be indicative or exhaustive.


During the conference we have discussed the merit or otherwise of sequencing the hearing and decision in relation to those two matters rather than dealing with them simultaneously and in particular the DHAA has indicated that it's a small voluntary association of employees and would find it onerous to participate in a hearing that dealt with both matters simultaneously and would be advantaged by the second matter, that is the list of common health professionals being dealt with first, a decision being made and then if appropriate a further hearing and decision after that on the matters of dental hygienist and oral therapist.  The ADA and the MIEAA are neutral in relation to that.


Ms Thomson, I didn't hear from you and I'm sorry if I - I hope I didn't exclude your opportunity to speak but I do expect to be butted in.  I didn't hear a view from you on that but I'm going to assume you were neutral as well, unless you tell me otherwise.


MS THOMSON:  Yes, that's right, thank you, your Honour.


THE DEPUTY PRESIDENT:  The HSU, on the other hand, has a strong alternative view that the matters are appropriately dealt with together, and I've indicated to the parties that I'll need to confer with the other members of the Full Bench and the Bench as a whole will make a procedural decision about that, and it will be evidence from the directions that are issued but it will also as a matter of courtesy by conveyed by way of email.


I'll just check in with the parties whether they'd like to make any submissions on the record about that.  I feel I heard clearly what the respective merits of both propositions were and can convey those to my colleagues to allow us to make an informed decision.  Since it's in effect an interlocutory decision I didn't consider that we needed to make a hearing of it and a formal decision but obviously I'll give the opportunity of all the parties to say something about that now.  Perhaps Ms Murphy, if you just want to confirm whether I've correctly outlined the case and enhance it in any way you wish.


MS MURPHY:  Your Honour, you have correctly outlined the case and the DHAA would request the Commission's consideration of the sequencing we suggested given that the organisation is composed of volunteers, including the directors and is an organisation of employees.  Thank you, your Honour.


THE DEPUTY PRESIDENT:  Thanks, Ms Murphy.  Anybody else want to say anything about that?


MR MILES:  Deputy President, we're content with the summary  that you've outlined.


THE DEPUTY PRESIDENT:  Thank you very much.


MR McCARTHY:  No, thank you.


THE DEPUTY PRESIDENT:  Thank you.  Ms Thomson, anything you'd like to say about that?


MS THOMSON:  No, thank you, your Honour.




MS LIEBHABER:  Deputy President, I think you've summarised the HSU's position but we do not feel that the DHAA will be unreasonably prejudiced by having the two matters heard together.  On the other hand, if our witnesses are required to be recalled twice for two separate hearings, we think that would cause us inconvenience and so we - our preference is that the matters are heard together.


THE DEPUTY PRESIDENT:  Very good.  Well, that's - obviously I and the record will convey that clearly to the other members of the Full Bench.  What brought us here today, it'd be remiss of me not to mention and to give the ADA an opportunity to say something about, was the concern by the ADA that the question of coverage of dentists had been, if indirectly, raised by the HSU and that they'd need more time to address that.  How we've dealt with that in conference is to clarify that the HSU is not seeking explicitly to incorporate dentists but takes the view that the list of common health professionals is only indicative and that it follows that any health professional is covered and support - health professional and health support service and employee is covered by the award.  That nevertheless raises for the ADA concerns and they intend to address those concerns in the hearing, whether it be by way of a sequenced approach or an integrated approach.  Is there anything else you'd like to say about that, Mr Miles?


MR MILES:  No, Deputy President.  Again, you've conveniently summarised it.


THE DEPUTY PRESIDENT:  Good, thank you, but just to confirm for the record that the directions that will issue will not explicitly reference dentists.  They'll either be the directions as they currently are of (a) and (b) or they will be the directions with only (b).  That will be the two choices.  Is there anything that anybody would like to add this morning?  No, no takes.  Well, thank you very much for coming along and we'll see you on the next occasion.  Commission is adjourned.

ADJOURNED INDEFINITELY                                                        [11.23 AM]