PN1

VICE PRESIDENT CATANZARITI: Thank you. We'll take the appearances. Yes, why don't we start with Ms Murphy?

PN2

MS K MURPHY: Thank you, so Murphy, initial K, for the Dental Hygienist Association of Australia, if the Commission pleases.

PN3

VICE PRESIDENT CATANZARITI: Thank you. Mr Wilkinson?

PN4

MR D WILKINSON: David Wilkinson, D, for the Australian Dental Association and The Australian Dental Prosthetists Association. Thank you.

PN5

VICE PRESIDENT CATANZARITI: Thank you. Mr Miles?

PN6

MR B MILES: Yes, Vice President, I seek leave to appear or to continue my appearance for the Australian Dental Association and the Dental Prosthetists Association.

PN7

VICE PRESIDENT CATANZARITI: Thank you. Mr Miles, your appearance is continued. Ms Liebhaber?

PN8

MS R LIEBHABER: Yes, I appear for the Health Services Union and with me is Ms Lisa Doust, our counsel.

PN9

VICE PRESIDENT CATANZARITI: Yes. There you are. Yes, you disappeared for a moment there, Ms Doust. You're back on screen, Ms Doust, thank you. And ‑ ‑ ‑

PN10

MS L DOUST: I'm sure everyone is happy about that, Vice President.

PN11

DEPUTY PRESIDENT BOOTH: We most certainly are, Ms Doust.

PN12

VICE PRESIDENT CATANZARITI: And, finally, Mr Leszczynski.

PN13

MR A LESZCZYNSKI: Yes, thank you, Vice President. Mr Leszczynski, first initial A, from the Health Services Union.

PN14

VICE PRESIDENT CATANZARITI: Thank you, Mr Leszczynski. So that is all the appearances. We'll now do the housekeeping next. So I've gone through the material and I think at this point the appropriate thing will be to deal with all the witness statements and mark them, and what I might do, unless there's any objection, is we'll put as exhibits, even that the people are coming in a bit later, so it just makes it a bit easier to flow, so they'll have an exhibit now and then they'll be formally tendered when they come later. And that's Carol Tran and Michelle Kuss, I think are the two coming in later, plus obviously Mr Leszczynski is going to give evidence earlier. So is that a convenient course to go through each of the witness statements now and mark them? All right. So if we ‑ ‑ ‑

PN15

MS MURPHY: Yes, Vice President.

PN16

VICE PRESIDENT CATANZARITI: Thank you. We'll do the witness statement of Carol Tran, which will be DHA1.

EXHIBIT #DHA1 WITNESS STATEMENT OF CAROL TRAN

PN17

The witness statement of Michelle Kuss, which will be DHA2.

EXHIBIT #DHA2 WITNESS STATEMENT OF MICHELLE KUSS

PN18

Cheryl Day, DHA3.

EXHIBIT #DHA3 WITNESS STATEMENT OF CHERYL DAY

PN19

Amy McDermott, DHA4.

EXHIBIT #DHA4 WITNESS STATEMENT OF AMY McDERMOTT

PN20

Kay Bull DHA5.

EXHIBIT #DHA5 WITNESS STATEMENT OF KAY BULL

PN21

Allison Taylor DHA6.

EXHIBIT #DHA6 WITNESS STATEMENT OF ALLISON TAYLOR

PN22

Susan Melrose DHA7.

EXHIBIT #DHA7 WITNESS STATEMENT OF SUSAN MELROSE

PN23

Christina Zerk DHA8.

EXHIBIT #DHA8 WITNESS STATEMENT OF CHRISTINA ZERK

PN24

Lyn Carman DHA9.

EXHIBIT #DHA9 WITNESS STATEMENT OF LYN CARMAN

PN25

Benjamin Marchant DHA10.

EXHIBIT #DHA10 WITNESS STATEMENT OF BENJAMIN MARCHANT

PN26

Samson Chen DHA11.

EXHIBIT #DHA11 WITNESS STATEMENT OF SAMSON CHEN

PN27

Now, just confirming. Ms Murphy, I think that's all your witnesses?

PN28

MS MURPHY: Yes, that's correct, Vice President. Thank you.

PN29

VICE PRESIDENT CATANZARITI: Apart from the witnesses, is there any other particular - somebody has dropped out. People will be dropping in and dropping out. I think Ms Doust may have dropped out again, but hopefully she'll be here in a second.

PN30

Is there any other material that you wish - yes, Ms Doust again. Thank you, Ms Doust, you've come back again. Is there any other material, Ms Murphy, that you want formally tendered as such? We've got obviously the full book, but if there's something specifically you want tendered?

PN31

MS MURPHY: Vice President, all of those witness statements.

PN32

VICE PRESIDENT CATANZARITI: Yes, they're in all, yes.

PN33

MS MURPHY: I want to have - okay. And in relationship - all of the previous submissions that are in the book.

PN34

VICE PRESIDENT CATANZARITI: Right.

PN35

MS MURPHY: Do you want me to go through each of those?

PN36

VICE PRESIDENT CATANZARITI: No, if we can do it an easy way and say the actual digital book that has been produced for everybody we can make that lot as a - even though it repeats the witness statements we can make that exhibit 1. So everything in there will be put into evidence. Do you feel comfortable with that? All right.

EXHIBIT #1 COURT BOOK

PN37

So let's go to Mr Leszczynski's statements that he's putting through, his own statement, HSU1.

EXHIBIT #HSU1 WITNESS STATEMENT OF ALEX LESZCZYNSKI

PN38

Gregory Roche HSU2.

EXHIBIT #HSU2 WITNESS STATEMENT OF GREGORY ROCHE

PN39

Anastasia Stokapuche HSU3.

EXHIBIT #HSU3 WITNESS STATEMENT OF ANASTASIA STOCKAPUCHE

PN40

Craig Whitehead HSU4.

EXHIBIT #HSU4 WITNESS STATEMENT OF CRAIG WHITEHEAD

PN41

Anthony Barros HSU5.

EXHIBIT #HSU5 WITNESS STATEMENT OF ANTHONY BARROS

PN42

And I think that's the statements I have there. And I also have a statement filed by Optometrists Australia which I'll put in as OA1.

EXHIBIT #OA1 STATEMENT BY OPTOMETRISTS AUSTRALIA

PN43

Mr Leszczynski, is there anything you want to add further in terms of statements or commentary?

PN44

MR LESZCZYNSKI: Vice President, no. I mean, obviously during the course of these long running proceedings I think I've actually provided three different witness statements to the Commission. There was one in, I think it was, 17 March 2017, there was one some time last year, which seems like an eternity ago, and then there was one from April this year.

PN45

VICE PRESIDENT CATANZARITI: Yes. And all those statements are in, all right. So, all statements are in.

PN46

MR LESZCZYNSKI: Yes.

PN47

VICE PRESIDENT CATANZARITI: So that's the evidentiary basis. Ms Doust, Ms Liebhaber, anything further you want to add apart from what we've just done with Mr Leszczynski's statement?

PN48

MS DOUST: Nothing, Vice President, save to say that we had filed a number of objections in relation to the evidence and we note that they've already been dealt with on a ruling of the Commission.

PN49

VICE PRESIDENT CATANZARITI: Yes.

PN50

MS DOUST: So that affects some of the material that's in the court book.

PN51

VICE PRESIDENT CATANZARITI: Yes, that is so. All right, now, before Ms Doust ‑ ‑ ‑

PN52

MS LIEBHABER: Vice President ‑ ‑ ‑

PN53

VICE PRESIDENT CATANZARITI: ‑ ‑ ‑I get you to - Yes, before, Ms ‑ ‑ ‑

PN54

MS LIEBHABER: Apologies.

PN55

VICE PRESIDENT CATANZARITI: Yes.

PN56

MS LIEBHABER: Sorry, there was a also a bundle of pre-modern awards that was attached to the 10 April submissions which aren't in the court book but they haven't been tendered yet, so ‑ ‑ ‑

PN57

VICE PRESIDENT CATANZARITI: If they're in the court book, which I called exhibit 1, that includes everything.

PN58

MS LIEBHABER: But they weren't included in the court book.

PN59

VICE PRESIDENT CATANZARITI: If they're not in the court book then it's not included, so we're just double checking they're not in the court book.

PN60

DEPUTY PRESIDENT BOOTH: I'm looking at the online ‑ ‑ ‑

PN61

VICE PRESIDENT CATANZARITI: On the online version we're looking at.

PN62

DEPUTY PRESIDENT BOOTH: The digital version. I thought we were ‑ ‑ ‑

PN63

VICE PRESIDENT CATANZARITI: Yes, I thought they were.

PN64

DEPUTY PRESIDENT BOOTH: ‑ ‑ ‑ intending to have everything in there.

PN65

VICE PRESIDENT CATANZARITI: That was the objective was everything was supposed to be in the online court book.

PN66

MS LIEBHABER: Yes, but it seems they might've been left out.

PN67

DEPUTY PRESIDENT BOOTH: Just bear with us, I think, Ms Liebhaber, because then we can actually ascertain whether this is the case.

PN68

VICE PRESIDENT CATANZARITI: The court book was updated very recently.

PN69

MS MURPHY: Vice President, if I may assist, I believe in the court book that was issued yesterday a bundle of modern awards that was submitted by Ms Liebhaber is there.

PN70

VICE PRESIDENT CATANZARITI: That's what I thought. I had a recollection it was yesterday, the 27th.

PN71

MS MURPHY: Yes.

PN72

VICE PRESIDENT CATANZARITI: But just double checking if that's right. Have you got the most recent electronic book, Ms Liebhaber?

PN73

MS LIEBHABER: Yes, I do.

PN74

VICE PRESIDENT CATANZARITI: And we've got the statement of Mr Leszczynski and then behind that there are a whole lot of agreements and awards I think.

PN75

MS LIEBHABER: Yes, I believe those were the attachments to that statement. But the bundle of awards are actually included in our 10 April submissions, and they refer to that submission, but they just seem to have been left out of the book.

PN76

VICE PRESIDENT CATANZARITI: We'll have that fixed anyway, but it's on the transcript that you want that material included, so it will be included, all right. Is there anything else missing from the evidence?

PN77

MR MILES: Vice President, I note that the statements that the Commission has ruled on haven't been included in the bundle, but I'm assuming they've been admitted in any event.

PN78

VICE PRESIDENT CATANZARITI: Sorry, what ‑ ‑ ‑

PN79

MR MILES: Yes. No, the ‑ ‑ ‑

PN80

VICE PRESIDENT CATANZARITI: Do you mean the schedule to objections has not been included formally into the material?

PN81

MR MILES: No, the schedule has.

PN82

VICE PRESIDENT CATANZARITI: Yes.

PN83

MR MILES: Sorry, Vice President, the schedule has been included, the statements referred to in it have not been included. I'm assuming they're before the Bench and you don't need to include those separately in the court book.

PN84

VICE PRESIDENT CATANZARITI: They're included by way of a live link in the system which Deputy Booth is putting up on the screen, which you can't see, but they're all included. All right, any other housekeeping matters on the evidence?

PN85

What I think we'll do next is we'll do Mr Leszczynski and the cross-examination thereof, then after that the Bench may have some questions before the next two witnesses so we'll do them then about the submissions themselves and clarification points, and then we'll do the final two witnesses at 6 o'clock.

PN86

All right, we'll have Mr Leszczynski in the virtual witness box.

<ALEXANDER LESZCZYNSKI, AFFIRMED [4.19 PM]

EXAMINATION-IN-CHIEF BY MS DOUST [4.20 PM]

PN87

VICE PRESIDENT CATANZARITI: Thank you, Ms Doust.

PN88

MS DOUST: Yes. So is your name Alex Leszczynski?‑‑‑It is. My full first name is Alexander, but I'm generally known as Alex.

PN89

And are you employed as a senior industrial officer with the Health Services Union, Victoria, Number 3 Branch?‑‑‑I am.

PN90

And have you prepared a statement for the purpose of the proceedings before the Commission which is dated 10 April 2020?‑‑‑I have.

PN91

And do you have a copy of that statement before you?‑‑‑I do.

PN92

Is that statement true and correct to the best of your belief and knowledge?‑‑‑It is.

PN93

Thank you. I tender that.

PN94

VICE PRESIDENT CATANZARITI: Yes, that will ‑ ‑ ‑

PN95

MS DOUST: I note that it's already been marked.

PN96

VICE PRESIDENT CATANZARITI: ‑ ‑ ‑ be HSU1.

PN97

MS DOUST: Thank you. That's the evidence of the witness, your Honour.

PN98

*** ALEXANDER LESZCZYNSKI XN MS DOUST

*** ALEXANDER LESZCZYNSKI XXN MS MURPHY

VICE PRESIDENT CATANZARITI: Thank you. Ms Murphy?

CROSS-EXAMINATION BY MS MURPHY [4.21 PM]

PN99

MS MURPHY: Thank you, Vice President. Mr Leszczynski, and I apologise if I'm not pronouncing your surname correctly, can I address first your statement of 10 April 2020?‑‑‑Yes.

PN100

Actually, sorry, I'll withdraw that. I'll go first to your statement of 7 August 2019, and go to paragraphs 25 to 26 of that statement?‑‑‑Yes.

PN101

Sorry, Vice President, can I just make a comment here, in the copy that I've got in front of me I've got the paragraphs 25 and 26 as struck out, but I don't think that's correct. Can I just ask for confirmation on that?

PN102

DEPUTY PRESIDENT BOOTH: We'll have to go back to our document to see.

PN103

VICE PRESIDENT CATANZARITI: Yes, we've just got to check that.

PN104

DEPUTY PRESIDENT BOOTH: Give me a minute. Unless it happened in a previous proceeding.

PN105

VICE PRESIDENT CATANZARITI: It could've happened earlier on, so ‑ ‑ ‑

PN106

DEPUTY PRESIDENT BOOTH: Let's just see if it's dealt with. I don't think that Mr Leszczynski's evidence was dealt with in that schedule of objections from memory. I'm certain it wasn't because it was ‑ ‑ ‑

PN107

VICE PRESIDENT CATANZARITI: Ms Doust, do you have any recollection of that being struck out?

PN108

MS DOUST: None, Vice President, but that doesn't meant that it didn't happen.

PN109

VICE PRESIDENT CATANZARITI: No, I know. We're just ‑ ‑ ‑

PN110

DEPUTY PRESIDENT BOOTH: Yes, it's not dealt with in the schedule of objections.

*** ALEXANDER LESZCZYNSKI XXN MS MURPHY

PN111

MS MURPHY: And I do apologise for saying this at this moment but I did send an email to chambers some time ago and I hadn't received a response, and I only noticed today that I hadn't received a response, so I apologise for not picking it up earlier.

PN112

VICE PRESIDENT CATANZARITI: So is there an objection to the paragraph now, Ms Murphy? Do you want a ruling on it, because you're about to ask questions on it?

PN113

MS MURPHY: No, I don't want a ruling on it, Vice President. Just it was a query as to whether it was struck out. Given this statement is quite ‑ ‑ ‑

PN114

VICE PRESIDENT CATANZARITI: It's quite old.

PN115

MS MURPHY: Or relatively ‑ ‑ ‑

PN116

VICE PRESIDENT CATANZARITI: I mean, we're happy to ‑ ‑ ‑

PN117

MS MURPHY: And I ‑ ‑ ‑

PN118

VICE PRESIDENT CATANZARITI: It may have been dealt with previously.

PN119

MS MURPHY: So, no, I'm happy to proceed.

PN120

VICE PRESIDENT CATANZARITI: We'll work on the basis that those paragraphs are back in, Mr Leszczynski?‑‑‑Thank you, Vice President.

PN121

MS MURPHY: Thank you, sir. Mr Leszczynski, in relationship to paragraph 25 you say:

PN122

I'm aware that in previous modern award proceedings in the Fair Work Commission the Dental Hygienists Association of Australia applied to have the Fair Work Commission vary the award to remove the reference to Dental Hygienists from schedule C of the award, and that the grounds advanced by the DHAA in support of their application largely related to the fact that the dental hygienists have not been historically covered by industrial instruments apart from in Victoria and award coverage would result in certain disadvantages to the occupation.

*** ALEXANDER LESZCZYNSKI XXN MS MURPHY

PN123

?‑‑‑Yes, that's in my statement.

PN124

Yes. Mr Leszczynski, in terms of your knowledge of the two professions has there been a change in circumstances in terms of potential disadvantage since 2009 when that award variation was sought and obtained?‑‑‑What two professions are you referring to, dental hygienists and I'm assuming it's one of ‑ ‑ ‑

PN125

Oral health therapists?‑‑‑Yes. I'm not aware of a change in their circumstances, no.

PN126

And with regard to paragraph 26 of your statement:

PN127

While I can't comment on dental hygienists specifically I can indicate that I don't believe that award coverage necessarily results in disadvantages to other professions. Sonographers are an example of this.

PN128

Why do you say that you can't comment on dental hygienists specifically?‑‑‑Because I'm not aware of the specific circumstances of dental hygienists and I suppose I can't predict what would happen in relation to dental hygienists specifically.

PN129

Thank you. And do you have - can you comment on oral health therapists with regard to advantage or disadvantage from award coverage?‑‑‑No, not specifically other than, you know, as I indicated, you know, my view is based on what I have seen with other health professions that them being covered by the award does not result in disadvantage to them, so sonographers are an example of that. Another example from a Victorian perspective is in relation to art therapists. Historically art therapists were not covered in the pre-modern awards in Victoria for health professionals. They are covered by the Health Professionals and Support Services Award now. As a result of them being covered by the award that has actually not resulted in disadvantage to them. To the contrary I actually think it has actually resulted in better outcomes for them because the fact that they're now covered by the award and it clearly recognises the whole profession has meant that when we are bargaining for them we can refer to them as being a health profession similar to other health professions.

*** ALEXANDER LESZCZYNSKI XXN MS MURPHY

PN130

In relationship to that statement, and then I'll return to the comment that you made about sonographers, are you saying that there's a connection between award coverage and recognition of a health professional, or a health profession?‑‑‑Not necessarily, but I think that having them in the modern award as listed as a health profession makes it quite clear that they share similarities to other health professionals and as a result of that, you know, that can result in - when it comes to enterprise bargaining in particular, recognition that their rates of pay should be commensurate with other health professionals who are also award covered.

PN131

Do you mean commensurate to other health professionals as per the rates under the award for the purposes of enterprise bargaining?‑‑‑Not necessarily to the award. For enterprise bargaining the rates of pay we always negotiate are significantly above the rates of pay in the modern awards, so, for example, in our public sector agreement, the most recent one that we negotiated, art therapists, were included. For the first time the grade 2 new full rate of pay - weekly rate of pay for a full-timer is about, I think, $1792 a week, and generally that would translate to somewhere in the modern award health professional level 2. You know, those rates of pay - I can't recall what those modern award rates of pay are but it's my broad recollection is that those are significantly less in the modern award.

PN132

Thank you. And returning to sonographers, which you comment on in some detail in your witness statement, what classification would sonographers be currently classified as under the Health Professionals Award?‑‑‑They are health professionals and so there's obviously the four different levels for the health professional classification in the modern award, so it will all depend on the individual circumstances at which level they would be classified under the award.

PN133

And so in terms of your direct experience is it possible for sonographers to be classified at level 4 under the Health Professional Services Award?‑‑‑Yes. Look, there would definitely be sonographers who would be classified at level 4 under an award. I suppose the comment I made in my statement is that in most circumstances sonographers, even once they are newly qualified, are paid significantly above the award rates.

PN134

If we focus though on not the over award rates, but on what classification they would be under, under the Health Professionals Award, what is it about a sonographer which enables them to be classified at level 4?‑‑‑If they meet those level 4 requirements in the modern award descriptor, and I suppose, sorry, I can get that modern award up if that is helpful.

PN135

It would be helpful?‑‑‑So a health professional level 4 in the modern award the descriptor talks about:

*** ALEXANDER LESZCZYNSKI XXN MS MURPHY

PN136

A health professional at this level applies a high level of professional judgment and knowledge when performing a wide range of novel, complex, and critical tasks, specific to their discipline. An employee at this level: (i) has a proven record of achievement at a senior level; (ii) has the capacity to allocate resources, set priorities and ensure budgets are met within a large and complex organisation; (iii) may be responsible to the executive for providing effective services and ensuring budget/strategic targets are met; (iv) supervises staff where required; and (v) is expected to develop/implement and deliver strategic business plans which increase the level of care to customers within a budget framework.

PN137

Yes, so would you say that level 4 under the award requires some level of managerial or at least organisational responsibility? And is that why sonographers are being classified at that level?‑‑‑For any sonographers who are award covered and are classified at level 4 they would have to meet those requirements. And, look, you know, generally speaking, yes, I would sort of say that a sonographer who is classified at level 4 under the modern award would be - you know, as it says someone who is at a senior level has the capacity to allocate resources, you know, supervise the staff, so, yes, you would generally expect someone at a level 4 to be a fairly senior employee with quite significant responsibilities including managerial responsibilities.

PN138

Mr Leszczynski, clearly in your expertise you do a lot of work in the public sector, but you're also very familiar with enterprise bargaining with this award. A very well qualified health professional who had no supervisory responsibilities or budget allocation responsibility or managerial responsibility, where do you think they would be classified in this award?‑‑‑It will all depend on where they - in terms of the duties they're performing and where they would fit, and the - you know, as I said, I think broadly level 4, you know, talks about someone who supervises staff when required, you know, has the capacity to allocate resources, so, you know, generally I think that'd be a level 4 employee, whereas level 1, 2 and 3 don't have that same - that sort of requirement, so someone who doesn't have those level 4 requirements, doesn't meet those level 4 requirements could be classified at level 1, 2 or 3 depending the exact work that they're doing.

PN139

Where do you think somebody who has a Diploma but not a Degree is classified under this award? And I ask you that question because the relevance to these proceedings is that some dental hygienists have a Diploma and not a Degree? In fact, quite a lot do?‑‑‑They could be classified as a health professional. So the health professional level 1 references such qualification. So it doesn't specifically reference an undergraduate Degree for example or a post-graduate qualification, it talks about new graduates, you know, or such qualifications. So to me I don't think that someone having a Diploma would exclude them from being a health professional under the modern award.

PN140

Can I get you - because you've got the award online there, can I get you to have a look at definitions?‑‑‑Yes.

*** ALEXANDER LESZCZYNSKI XXN MS MURPHY

PN141

And specifically in terms of whether that provides any assistance as to where somebody without a Degree might be classified?‑‑‑Sorry, which definitions? Sorry, are you talking about in the schedule?

PN142

I am - sorry, I'm just seeing if I can - just a second. No, I'm talking about paragraph 2. Can you still hear me, Mr Leszczynski?‑‑‑Yes. Yes.

PN143

Okay?‑‑‑Yes.

PN144

Paragraph 2, so the end of - specifically about paragraph 2 where it says:

PN145

undergraduate 2 (UG 2) means an employee with a diploma or equivalent.

PN146

?‑‑‑I can see that, yes.

PN147

So bearing that in mind in terms of the definitions where do you think somebody with a Diploma would be classified? Do you think it's possible to classify them above level 1?‑‑‑Yes, the level 1 - the reference - and I'm assuming you're referring to clause 17.2 of the enterprise agreement, which is health professional employee level 1, has the starting points for various qualifications. So UG 2, which is the one you were just referring to, starts at pay point 1, if you've got a three year Degree, you start at pay point 2, if you've got a four year Degree you start at pay point 3, pay point 4, pay point 5. So the relevance of the UG 2 qualification which includes a Diploma is in relation to where someone who's coming out as a new graduate would start. It doesn't mean from my perspective that they are stuck at level 1 for all eternity. It will depend on that nature of the work they're doing. If they start to do work that is on the level 2 - the level 2 better describes than level 1, then there would be nothing stopping someone with a Diploma from going to level 2, level 3, or level 4.

PN148

So you don't think a Degree is an impediment to moving through the classification structure?‑‑‑A Degree or Diploma you mean?

PN149

No, a Degree. So you're saying your view in terms of moving through the classification structure right to the top can be achieved under this award without a Degree?‑‑‑Without an undergraduate - a three to four year Degree, yes, I don't see that as a hindrance to someone moving through the classification structure. Unless ‑ ‑ ‑

PN150

Okay?‑‑‑Yes, that's fine.

*** ALEXANDER LESZCZYNSKI XXN MS MURPHY

PN151

I'm hoping you're right of course. So, now, in relationship to the comment that you made - you made some comments about enterprise agreements in the public sector relating to sonographers, and with regard to the sonographers, and, again, comparing them to dental hygienists and oral health therapists, because that, as I understand it, is the point of the comments that you're making, do you see if dental hygienists and oral health therapists remained award free that that would be an impediment to enterprise bargaining, and if so, why?‑‑‑Sorry, could you repeat that question again?

PN152

Yes, I could. Your statement makes a number of references to sonographers and enterprise bargaining in the public sector. In relationship to these proceedings, do you think that if dental hygienists and oral health therapists remained award free that that would be an impediment to enterprise bargaining in the private sector?‑‑‑To be honest, I haven't really given that a lot of thought. You know, from my perspective the advantage of award coverage is that it provides a higher safety net, so obviously even people who are not award covered still have a minimum rate of pay that applies to them, which is the national minimum wage, so the award coverage provides them with a higher minimum rate, minimum safety net, as well as all the other provisions that are provided for in awards that are not provided for for people who are covered by the national minimum wage. So from my perspective I would sort of see being award covered as being advantageous to bargain in -whether it be public sector, private sector, not for profit sector, because effectively the minimum rates and minimum terms and conditions that would apply to those employees would be better under the award, which means there would be a higher better off overall test threshold to get over than if someone was just covered by the national minimum wage.

PN153

And do you acknowledge though, I think it's a question of fact, that the proposed award rates in the Health Professionals Award are significantly lower than actual wage rates for dental hygienists and oral health therapists?‑‑‑I haven't looked at that in any great detail, so I can't comment other than I note that you've made submissions in relation to that. I cannot challenge that evidence or those submissions.

PN154

Thank you. And, again, with regard to enterprise bargaining, so of course there's no statutory impediment to award free employees engaging in enterprise bargaining, and if there was a situation where dental hygienists and oral health therapists remained award free and dentists remained award free, and of course dental assistants are currently covered under the Health Professionals Award, is there any impediment to an enterprise agreement being made to cover an entire dental practice, or indeed a number of dental practices, if a large corporation owned them - if the status quo - or at least DHA maintain ‑ ‑ ‑

*** ALEXANDER LESZCZYNSKI XXN MS MURPHY

PN155

VICE PRESIDENT CATANZARITI: Ms Murphy, are you asking him this - Ms Murphy, before you ask that question, it seems to me you're potentially straying in what is the expertise of the witness. I mean, he's here giving a statement, if you're asking about only what is the coverage of enterprise agreements et cetera at large that's a matter of submissions and how the Fair Work Commission operates. I'm not sure whether it's the right - I'm taking objection from the Commission's perspective as to whether it's going to assist us in what we have to decide.

PN156

MS MURPHY: Vice President, I appreciate what you're saying. I am actually referencing one of the core elements of the Health Services Union submission that's relevant to dental hygienists and oral health therapists which is they had a view that it would be very difficult, if not impossible, to have an enterprise agreement covering a dental team with the impediment being that some were not covered by an award and some were. But that wasn't specifically in Mr Leszczynski's statement.

PN157

VICE PRESIDENT CATANZARITI: No, it was not.

PN158

MS MURPHY: It was in the submissions, so I'm happy to withdraw the question.

PN159

Thank you, Mr Leszczynski. I have no further questions. Thank you very much.

PN160

VICE PRESIDENT CATANZARITI: Mr Miles, do you have any interest, and if so what's the basis of your interest in asking a question of Mr Leszczynski?

PN161

MR MILES: I have an interest, but no questions to ask, Vice President.

PN162

VICE PRESIDENT CATANZARITI: That's good then. Thank you. That's easy enough. Ms Doust, any re-examination?

PN163

MS DOUST: No. Thank you, Vice President.

PN164

VICE PRESIDENT CATANZARITI: Thank you, Mr Leszczynski, you're excused from this part of the proceeding giving evidence?‑‑‑Thank you, Vice President.

<THE WITNESS WITHDREW [4.42 PM]

*** ALEXANDER LESZCZYNSKI XXN MS MURPHY

PN165

VICE PRESIDENT CATANZARITI: So before we adjourn to 5 o'clock for the next tranche of witnesses, we're going to deal with any questions the Bench has for clarification based - in relation to the submissions that have been filed. I might ask Booth DP?

PN166

DEPUTY PRESIDENT BOOTH: I just wondered, and forgive me if the answer to this is discernible from the detail of your submissions, but I wondered whether we could have a very clear expression from all parties about the form in which the award would be changed were their submissions and evidence to be accepted and their preferred outcome of this matter be achieved so that we know exactly the form that the award would be required to be changed if they were successful in their case.

PN167

VICE PRESIDENT CATANZARITI: And maybe, Ms Doust, you're not in a position for example to do that now. You want to take that question on notice and some supplementary submissions form each of the parties can come in after.

PN168

MS DOUST: Yes. I wonder if me might deal with it that way, because I think there's a few issues I'd like to go back and revisit in my submission, and perhaps collect it in a more efficient manner than speaking to it now.

PN169

VICE PRESIDENT CATANZARITI: If we could have that by this time next week.

PN170

MS DOUST: Yes.

PN171

VICE PRESIDENT CATANZARITI: And any other party can put in anything further they wish to add after today.

PN172

DEPUTY PRESIDENT BOOTH: I mean, it might be simple enough or certainly be attractive to us I think if it were in the form of a draft order, so what would be the order that the Commission would issue if you were successful in your case.

PN173

MS DOUST: Yes.

PN174

MR WILKINSON: Speaking from the perspective of Dental Association and the Dental Prosthetists Association, it would really be I think a consequence from the Commissioner's decision late last year to change the nature of the award from being an indicative list to being a list that then requires some identification of professions that are excluded, would be for dentists and dental prosthetists to be in that list of professions that are excluded from the coverage of the award, in the same way I think it's agreed in terms of medical practitioners not being covered by this award.

PN175

VICE PRESIDENT CATANZARITI: Yes, I think we follow. You would want a specific exclusion. That's how you would see it if the argument was successful in your ‑ ‑ ‑

PN176

MR WILKINSON: Yes, I think that flows from the nature of the Full Bench decision from 2019.

PN177

VICE PRESIDENT CATANZARITI: Yes. I think we'd still be assisted seeing it in a draft form to reflect your interest.

PN178

MR WILKINSON: Of course.

PN179

VICE PRESIDENT CATANZARITI: And that would apply to everybody.

PN180

MS MURPHY: And, Vice President ‑ ‑ ‑

PN181

VICE PRESIDENT CATANZARITI: Yes, Ms Murphy.

PN182

MS MURPHY: Vice President, it's Katrina Murphy, I presume we should prepare two draft orders?

PN183

VICE PRESIDENT CATANZARITI: Yes.

PN184

MS MURPHY: Because there are two occupations.

PN185

VICE PRESIDENT CATANZARITI: Yes, it applies to everybody. This request applies to all parties and all by next Tuesday.

PN186

Is there anything further the parties wish to raise before we adjourn till 6 o'clock? Thank you. Okay, we'll adjourn.

SHORT ADJOURNMENT [4.46 PM]

RESUMED [6.03 PM]

PN187

VICE PRESIDENT CATANZARITI: What we will do is we'll formally make the pre-reform awards exhibit 2, so there's no doubt about those.

EXHIBIT #2 PRE-REFORM AWARDS

PN188

We'll now turn to the first witness. Thank you, Ms Murphy.

PN189

MS MURPHY: Thank you, Vice President. Vice President, do you wish Ms Kuss to cease her call?

PN190

VICE PRESIDENT CATANZARITI: Yes, we only want one in and one out, so ‑ ‑ ‑

PN191

MS MURPHY: Yes.

PN192

VICE PRESIDENT CATANZARITI: Who's going first, Ms Murphy?

PN193

MS MURPHY: Dr Tran is going first, Vice President.

PN194

VICE PRESIDENT CATANZARITI: Dr Tran, okay. Thank you.

PN195

MS MURPHY: Ms Kuss, could you please disengage the call?

PN196

MS KUSS: Yes, sure.

PN197

VICE PRESIDENT CATANZARITI: Okay, we'll call ‑ ‑ ‑

PN198

MS MURPHY: Thank you. May I speak?

PN199

VICE PRESIDENT CATANZARITI: We'll get Dr Tran in. We'll get Dr Tran sworn in. Thank you.

PN200

MS MURPHY: Thank you.

PN201

THE ASSOCIATE: Dr Tran, before you provide evidence could I please ask you to state your full name and address?

PN202

DR TRAN: My name is Carol Tran, (address supplied).

<CAROL TRAN, AFFIRMED [6.05 PM]

EXAMINATION-IN-CHIEF BY MS MURPHY [6.05 PM]

PN203

VICE PRESIDENT CATANZARITI: Thank you, Ms Murphy.

PN204

MS MURPHY: Thank you. Dr Tran, could I please just request - and with the Full Bench's understanding, I'm having some audio problems here and also there's a severe storm in the background, so I'm just going to ask Dr Tran to please speak up.

PN205

Dr Tran, could you please state your full name?‑‑‑Carol Tran.

PN206

And your current positions, Dr Tran?‑‑‑So currently the vice president of the Dental Hygienists Association of Australia, national. I'm a research fellow and lecturer at the University of Queensland. I am also a private practice oral health therapist in special periodontal practice in Brisbane. I'm also an accreditation team member and examiner for the Australian Dental Council as well.

PN207

Thank you, Dr Tran. And you have made a statement in these proceedings?‑‑‑That's correct.

PN208

Do you have a copy of that statement in front of you?‑‑‑Yes, I do.

PN209

You've actually made two statements in these proceedings, one was dated 9 June 2017 and is it correct that the other one is dated 27 February 2020?‑‑‑That's correct.

PN210

The signed statement of 27 February 2020 contains an annexure; is that correct?‑‑‑That's correct.

PN211

Dr Tran, do you say that your statement is true and correct to the best of your belief and knowledge?‑‑‑Yes, that is correct. It is true.

PN212

And, Vice President, I tender that with the annexure and I note it's already been named DHA1.

PN213

VICE PRESIDENT CATANZARITI: DHA1. Yes, that's correct.

*** CAROL TRAN XN MS MURPHY

PN214

MS MURPHY: Dr Tran, how do you think that award coverage if that occurred in regard to your ‑ ‑ ‑

PN215

VICE PRESIDENT CATANZARITI: Wait on. Wait on. Wait on, Ms Murphy ‑ ‑ ‑

PN216

MS MURPHY: ‑ ‑ ‑profession will impact you personally?

PN217

VICE PRESIDENT CATANZARITI: ‑ ‑ ‑you haven't sought - if you're going to - this is your witness and you're going to now want to lead supplementary evidence you need to get permission to do so, right? Because ordinarily ‑ ‑ ‑

PN218

MS MURPHY: I request the permission.

PN219

VICE PRESIDENT CATANZARITI: ‑ ‑ ‑it's evidence-in-chief and you would ‑ ‑ ‑

PN220

MS MURPHY: Sorry, Vice President, could you repeat that?

PN221

VICE PRESIDENT CATANZARITI: Ordinarily it's evidence-in-chief and if you now wish to go beyond those witness statements you'll need to tell us why that is and what is the basis of it, because Ms Doust needs to be on notice about it.

PN222

MS MURPHY: Your Honour, what I'm seeking to do is to address the comments in the rulings of the panel with regard to weighting of Dr Tran's evidence. And also the comment that the Full Bench made with regard to the accepted ‑ ‑ ‑

PN223

VICE PRESIDENT CATANZARITI: Wait on, please. I don't think you should do that in front of the witness. We'll ask - if the witness would like to go off while I hear what your argument is.

PN224

MS MURPHY: Thank you.

PN225

VICE PRESIDENT CATANZARITI: And can the witness go off, please. Turn yourself off, Dr Tran. We'll have to get Dr Tran ‑ ‑ ‑?‑‑‑Turn this off?

PN226

We'll have to get you back on, Dr Tran?‑‑‑No problems.

*** CAROL TRAN XN MS MURPHY

PN227

Thank you.

<THE WITNESS WITHDREW [6.09 PM]

PN228

VICE PRESIDENT CATANZARITI: Dr Tran has gone. Ms Murphy ‑ ‑ ‑

PN229

SPEAKER: Could I ‑ ‑ ‑

PN230

VICE PRESIDENT CATANZARITI: Yes, who's that?

PN231

SPEAKER: Sorry, it looked like she hadn't hung up. She - you know, but it looked like - she has actually hung up, my apologies, Vice President.

PN232

VICE PRESIDENT CATANZARITI: Now that's a hung up sign, right. Ms Murphy, if you are going to endeavour to deal with it in this way, there are a few problems with it. I mean, the witness has given their evidence, there's been an issue about objections taken previously, rulings have been made on those objections by Booth DP, most of which are talking about matters of weight. It's not an attempt when it's a matter of weight to re-interrogate the witness. So if you're going to do this on the next witness we would need with some precision what further evidence you are leading, and it's evidence that you're leading, so that we are in a position to work out whether you should be permitted to do so.

PN233

MS MURPHY: Yes. Thank you, Vice President. The permission that I'm asking in that event is to specifically address the comments that were made in the ruling with regard to Dr Tran's evidence, issues that would go to weight. So, for example, (indistinct) (5) the ruling was that the Full Bench considers this speculative, 'however, we'll admit it and treat it as opinion enabled to be tested in' ‑ ‑ ‑

PN234

VICE PRESIDENT CATANZARITI: In cross-examination. Yes, not by you.

PN235

MS MURPHY: Okay. So ‑ ‑ ‑

PN236

VICE PRESIDENT CATANZARITI: You're leading evidence-in-chief, right.

*** CAROL TRAN XN MS MURPHY

PN237

MS MURPHY: Yes, I understand that, Vice President. Are you stating that I'm not able to ask Dr Tran any questions that go to addressing the weighting, for example, there was also an issue which went to the relevance of the article that was submitted as an annexure?

PN238

VICE PRESIDENT CATANZARITI: Normally it's a matter as to whether ‑ ‑ ‑

PN239

MS MURPHY: And her ‑ ‑ ‑

PN240

VICE PRESIDENT CATANZARITI: ‑ ‑ ‑we view it as being relevant. You'll need to actually articulate what the questions are and we'll rule on it question by question, right. It's not a free for all in the way you're doing this, Ms Murphy. And Ms Doust is entitled to object to each of those questions.

PN241

MS MURPHY: Okay. I'll ‑ ‑ ‑

PN242

VICE PRESIDENT CATANZARITI: So I think that's what I'm - Ms Doust, you understand what I put?

PN243

MS DOUST: Yes, I hadn't quite followed the questions that were going to be asked, but I do think there could be a problem if there's a deal of new evidence now sought to be adduced, and ordinarily I'd have the benefit of a witness statement ‑ ‑ ‑

PN244

VICE PRESIDENT CATANZARITI: Yes.

PN245

MS DOUST: ‑ ‑ ‑giving me notice of the evidence to be adduced.

PN246

VICE PRESIDENT CATANZARITI: And, Ms Murphy, that's so. I mean, ordinarily you knew what the rulings were, and you could've put on a supplementary witness statement if you thought you needed to do so. The leading of oral evidence is usually for clarification, not in the format that you're doing it, but I think the most efficient way will be to probably do it question by question I think.

PN247

Are you happy with that?

PN248

DEPUTY PRESIDENT BOOTH: Yes.

PN249

COMMISSIONER CAMBRIDGE: Yes.

PN250

VICE PRESIDENT CATANZARITI: That's the best we can do, I think, in the circumstances. So you'll ask the question, the witness will not answer the question until Ms Doust determines whether she's objecting to the question.

PN251

MS MURPHY: Yes, Vice President.

PN252

VICE PRESIDENT CATANZARITI: I'll just see whether we can get the witness back on easily or whether we have to adjourn. Just one second. We can stay here and we'll get Dr Tran back on. And I will explain to Dr Tran the process we're going to follow.

PN253

Ms Murphy, are you proposing to do the same thing with the second witness?

PN254

MS MURPHY: No, Vice President.

PN255

VICE PRESIDENT CATANZARITI: All right.

PN256

MS MURPHY: Just with Dr Tran.

PN257

VICE PRESIDENT CATANZARITI: We'll adjourn while we're sorting out the technology. Thank you.

SHORT ADJOURNMENT [6.15 PM]

RESUMED [6.18 PM]

<CAROL TRAN, RECALLED [6.19 PM]

EXAMINATION-IN-CHIEF BY MS MURPHY, CONTINUING [6.19 PM]

PN258

VICE PRESIDENT CATANZARITI: Dr Tran, when you were not on screen we reached an arrangement that Ms Murphy will ask you questions but you are not to answer the questions until I see whether or not there's an objection to that question by Ms Doust. So you'll hear the question then I'll work out whether the question will be allowed to be answered or not. Thank you, Ms Murphy, ask your questions.

PN259

MS MURPHY: Thank you, Vice President.

*** CAROL TRAN XN MS MURPHY

PN260

Dr Tran, what qualifies you to be able to compare a dentist t an oral health therapist as you do in your witness statement?

PN261

VICE PRESIDENT CATANZARITI: Ms Doust, any objection to that question?

PN262

MS DOUST: No, Vice President.

PN263

VICE PRESIDENT CATANZARITI: Ms Tran, you may answer that question?‑‑‑I practise as an oral health therapist in private practice. I work alongside dentists on a day-to-day basis and have done that for the past 15 years of my life practising.

PN264

MS MURPHY: Dr Tran, what qualifies you to be able to draw conclusions from the article that's attached as an annexure to your witness statement?

PN265

VICE PRESIDENT CATANZARITI: No objection. Proceed to answer that question?‑‑‑I'm an oral health therapist. I'm also a research fellow within the University of Queensland. I practise alongside dentists and work alongside with them for the past 15 years, so I also teach within the dentistry and oral health programs at the University of Queensland, so I see on a daily basis how they are educated as well working alongside them on a day-to-day basis, as well as me teaching them the material as well.

PN266

MS MURPHY: Dr Tran, what qualifies you to make comments as you do in your witness statement comparing an oral health therapist to a dental therapist?

PN267

VICE PRESIDENT CATANZARITI: Yes, proceed to answer that question?‑‑‑To compare myself as an oral health therapist to a dental therapist I work in private sector. I'm a qualified oral health therapist. I have also worked in public sector as a dental therapist before in Victoria.

PN268

MS MURPHY: Dr Tran, why is there some similarity in the wording of your witness statement to those of Michelle Kuss, Cheryl Day and Amy McDermott?

PN269

VICE PRESIDENT CATANZARITI: Any objection, Ms Doust?

PN270

MS DOUST: No.

*** CAROL TRAN XN MS MURPHY

PN271

VICE PRESIDENT CATANZARITI: No. Go ahead, Dr Tran?‑‑‑These statements were prepared as quite last minute, so my witness statement was provided as an example to help the association put forward these statements.

PN272

MS MURPHY: Thank you, Vice President. I have no further examination-in-chief.

PN273

VICE PRESIDENT CATANZARITI: Thank you. Ms Doust?

CROSS-EXAMINATION BY MS DOUST [6.22 PM]

PN274

MS DOUST: Can I just ask you, Dr Tran, so is that your form of words in paragraph 4?‑‑‑Yes, they are.

PN275

Were you the person who drafted that paragraph?‑‑‑Yes.

PN276

And do I take it that before filing it did you send it on to other members of the DHAA?‑‑‑Yes, I did.

PN277

Did you suggest that they write statements in similar terms?‑‑‑No. No, I did not.

PN278

How is it do you think the DHAA has ultimately filed statements that include words identical to yours? Do you have any idea about that?‑‑‑I am unsure about that, but I had given the advice that this can be used as a sample statement. If they wished to use that, that's fine.

PN279

Tell me this, the DHAA, that's a company registered under the Corporations Act, isn't it?‑‑‑That's correct.

PN280

It's not an organisation of employers or employees registered under the Fair Work Registered Organisations Act?‑‑‑No.

PN281

It doesn't display its rules on its website, does it?‑‑‑What do you mean by rules, sorry?

PN282

It doesn't have a set of rules that's displayed on its website by which someone can look at them and determine whether or not they're entitled to be a member?‑‑‑That is displayed on our website I believe. We do have a code of ethics on our website as well.

*** CAROL TRAN XXN MS DOUST

PN283

No, I'm asking you about the rules of the organisation. Are you clear as to what I'm asking you?‑‑‑Sorry, could you clarify regarding what about the rules? The rules of membership?

PN284

Yes, does the organisation have a set of rules?‑‑‑Yes, we do.

PN285

They're not displayed on your website, are they?‑‑‑I believe they are.

PN286

What do you say that the rules provide about obtaining membership of the DHAA?‑‑‑The rules are that you're a registered dental practitioner in Australia. Registered by - I mean you're registered on AHPRA.

PN287

And are you able to indicate to me whereabouts on the website the rules of the organisation are displayed?‑‑‑Did you want me to take some time now to find this for you?

PN288

No, I'm asking you in your capacity as an office holder as to whether or not you have knowledge about such a document if it exists?‑‑‑Yes, that document does exist.

PN289

When was the last time you consulted it?‑‑‑I believe that it would've been 2017 or 18 when we reviewed our constitution.

PN290

Is there any reason why the rules haven't been included in the organisation's evidence before the Commission?‑‑‑I wouldn't have thought that'd be relevant to this.

PN291

Well, they might show the basis on which people are entitled to be members of the organisation or contribute to the decision making, mightn't they?‑‑‑We are quite consultative with our members at all times. We provide annual surveys with our membership in terms of what the views are of the association, so we do regular surveys with our members.

PN292

That's not what I was asking you, Dr Tran. Let me ask you this, you have a three-year Degree; is that correct?‑‑‑I have a three-year Bachelor's Degree and then I have a PhD as well.

PN293

You have a Doctorate in your field?‑‑‑That's correct.

*** CAROL TRAN XXN MS DOUST

PN294

And you've practised as an oral health therapist since 2009?‑‑‑That's correct.

PN295

In terms of your professional knowledge would you regard yourself as being at the highest level of your profession?‑‑‑I believe so, yes.

PN296

Would you regard yourself as a senior member of the profession?‑‑‑Yes.

PN297

Recognised in the profession?‑‑‑Yes.

PN298

And with a proven record of achievement?‑‑‑Yes.

PN299

Can I ask you what classification do you think you would fall under in the Health Professionals Award?‑‑‑Being a clinician as an oral health therapist practising in clinic with my current range of duties that I practise now I believe I would be at level 2.

PN300

You're currently working, aren't you, at Brisbane City Periodontics?‑‑‑That's correct.

PN301

Can I ask you, are you the only oral health therapist in that practice?‑‑‑No.

PN302

There are others are they? How many others?‑‑‑There are two others.

PN303

And can I just ask you, the periodontists in that practice, are they the owners of the practice?‑‑‑Yes. It's a group partnership arrangement.

PN304

Are you privy to their remuneration?‑‑‑Yes, I am.

PN305

You know what each member of the practice earns?‑‑‑The figure would not be completely accurate, but I am aware of how they are remunerated, yes.

PN306

No, no, I wasn't asking you how they're remunerated, I'm asking you, are you privy to the remuneration of all of the partners in that practice?‑‑‑No.

PN307

Do you know - would you be able to say what it is at the moment?‑‑‑They usually will take a commission of what the ‑ ‑ ‑

*** CAROL TRAN XXN MS DOUST

PN308

I'm not asking you that, Dr Tran, I'm asking you whether or not you're privy to the remuneration of all of those partners?‑‑‑No.

PN309

So you couldn't say at the moment the weekly or annual rate of any of the members of the practice?‑‑‑No, I could not say that.

PN310

Your rate is an hourly rate, isn't it, $55 per hour?‑‑‑That's correct.

PN311

Does that vary depending upon the service that you provide?‑‑‑No.

PN312

So it's $55 for any hour of work?‑‑‑Yes.

PN313

Regardless of the sort of treatment that you provide?‑‑‑That's correct.

PN314

And so it isn't correct then, is it, in paragraph 8 to - I'm sorry, let me just go back for a moment. How long has your rate been at $55 per hour?‑‑‑Two years.

PN315

What were the circumstances - sorry, just before it becoming $55 an hour, can you tell me what rate it was?‑‑‑It would've been at about $50 an hour.

PN316

Can you tell me what the circumstances were that led to the increase?‑‑‑So I began to show that I could perform clinically, that I had increased by patient retention rate, I increased my billable hours as well for service (indistinct) in my time there, so therefore my argument was that I should be remunerated at a higher rate.

PN317

So you approached your employers did you and asked for an increase?‑‑‑Yes, that's correct.

PN318

And were those things that you've just listed the matters that you raised with your employer about getting an increase?‑‑‑Sorry, could you repeat that?

PN319

The matters that you've just referred to that you could perform clinically, that your billable hours I think had increased and so on, were those the matters that you relied upon in support of your increase?‑‑‑Also patient satisfaction rates as well was taken (indistinct) and my rebooking rate.

*** CAROL TRAN XXN MS DOUST

PN320

Did you meet any opposition from your employer when you asked for the increase?‑‑‑They had said they would not make a decision on that day, they would go away and discuss that with their partnership before they would get back to me.

PN321

Did they put any arguments to you as to why your rate shouldn't increase?‑‑‑No.

PN322

No mention of the national minimum wage that applied to your employment?‑‑‑No.

PN323

Just to clarify in respect of your remuneration you're not paid on a percentage basis of your billings, are you?‑‑‑Not myself but there are others in the profession that do.

PN324

If you just confine it to your circumstance if that's what I ask you about, please, Dr Tran. So when you say in the last sentence of paragraph 8 that you're remunerated on clinical performance and revenue generated I want to suggest to you that's not correct, is it?‑‑‑I disagree.

PN325

You were in fact remunerated with an hourly rate of pay, aren't you?‑‑‑That is correct.

PN326

And it doesn't vary from day-to-day or week-to-week depending upon the view of your performance on that day or week, does it?‑‑‑It will vary according to my annual review.

PN327

It doesn't vary according to the revenue you generate in any particular week, does it?‑‑‑On a yearly basis that's reviewed.

PN328

All you're saying is that you'll be reviewed and you might get an increase if you're regarded as meeting targets and the like?‑‑‑Yes, which is similar to a dentist.

PN329

It's similar to a large number of employees in the workplace, isn't it, Dr Tran?‑‑‑That's your opinion.

*** CAROL TRAN XXN MS DOUST

PN330

Could I just ask you this, you mentioned before that you would be a level 2 health professional under the award. Can I just ask you why would you not regard yourself as being at level 3 given what you've accepted about your level of expertise and your role?‑‑‑My level of expertise would not be recognised in private practice. They're recognised within the profession. In my private practice I see patients on a day-to-day basis. My research and my other roles aren't relevant to private practice. So looking a bit more about level 3, level 3 suggests that there is a lot of supervision that is associated with this role. In private practice as an oral health therapist in specialist practice I do not do any supervision whatsoever.

PN331

Can I suggest this to you, you'd independently apply professional knowledge and judgment, wouldn't you, to your work?‑‑‑That is always consulted with a periodontist.

PN332

Are you performing novel, complex or critical tasks specific to your discipline?‑‑‑No.

PN333

You're performing basic tasks?‑‑‑Yes.

PN334

Are you working in an area that requires a high level of specialist knowledge and skills?‑‑‑No, I don't believe I am.

PN335

Are you actively contributing to the development of professional knowledge and skills in your field of work?‑‑‑At private practice, no.

PN336

Just going to the question of the award rate of pay, what rate of pay do you say would apply to you if you were covered by the award?‑‑‑Somewhere between $30 and out to $34 appointment for (indistinct).

PN337

Can I suggest this, given the argument that you put to your employer - can I just ask through the Bench if there's any person who's not actually playing a speaking role at the moment ‑ ‑ ‑

PN338

VICE PRESIDENT CATANZARITI: To mute their phone, yes.

PN339

MS DOUST: ‑ ‑ ‑who doesn't have their ‑ ‑ ‑

PN340

VICE PRESIDENT CATANZARITI: Mute their system. Yes, they've got a note of that, Ms Doust. There is some feedback happening, but hopefully people have now muted their system.

*** CAROL TRAN XXN MS DOUST

PN341

MS DOUST: Yes, sorry, I was just hearing every sentence I said back immediately. Do we still have Ms Tran - Dr Tran? Dr Tran, given the argument that you made for your increase two years ago, can I suggest that if your employer sought to decrease your rate of pay you would be able to meet that with an argument about all of the matters that you told me earlier about your performance, wouldn't you?‑‑‑I would not agree with that.

PN342

Are you suggesting that if your employer said, "I'd like to decrease your rates to the award rate", you wouldn't point your employer to all of the things that you argued in favour of your most recent increase?‑‑‑I believe that if the award was coming through and my employer had asked me for that, regardless of whatever I could argue, my current salary would go down. There would probably ‑ ‑ ‑

PN343

Do you understand the question that I'm asking you, Dr Tran?‑‑‑There would be an argument but I believe that argument would be very tough to discuss.

PN344

You've received no argument against the increase that you asked for, did you?‑‑‑No.

PN345

And you haven't had any discussion with your employer that you point to where your employer is minded to try to decrease your rate, have you?‑‑‑No.

PN346

And your employer hasn't indicated anything to you about award coverage likely leading to your employer wanting to decrease your rate?‑‑‑That'd be correct.

PN347

I'll just ask you, you're employed by two other practices apart from - is it Brisbane City Periodontics?‑‑‑Yes, at the time of the submission I was employed by three others - sorry, two others, but since then I have only got one employer now.

PN348

What basis are you engaged by them?‑‑‑In terms of the current employer that I am on?

PN349

Yes?‑‑‑So I am a permanent part-time employee.

PN350

How many hours per week?‑‑‑It would be about 27 hours.

PN351

So how many hours are you at Brisbane City Periodontics?‑‑‑Twenty-seven hours a week.

PN352

The other employer?‑‑‑I do not have any other employers now.

*** CAROL TRAN XXN MS DOUST

PN353

But you did have one other employer; is that right?‑‑‑Yes.

PN354

Until recently?‑‑‑Two other employers.

PN355

On what basis were you employed by them?‑‑‑I was employed as an oral health therapist.

PN356

Yes?‑‑‑What other details did you need, sorry?

PN357

Part-time employee or on some other basis?‑‑‑Part-time employee.

PN358

How many hours in each case?‑‑‑It would be somewhere between eight to 12 hours a week.

PN359

In each case?‑‑‑Yes.

PN360

And could I just ask you, in the first one that you've referred to what was your hourly rate?‑‑‑The first one referred to would be $60 an hour.

PN361

And the second one, what was the hourly rate?‑‑‑It was also $60 an hour.

PN362

Over what period were you earning that rate in those practices?‑‑‑One year period.

PN363

You finished with them in recent months, did you?‑‑‑Yes.

PN364

Just tell me something, you said you'd worked in the public sector in Victoria. Am I correct that was about 12 years ago?‑‑‑That's correct.

PN365

So since then you haven't had any work experience in that sector?‑‑‑No.

PN366

So you haven't worked as a dental therapist recently in that sector?‑‑‑No.

PN367

Can I just ask you have you ever worked in the United States of America?‑‑‑No.

PN368

Have you taught in the United States?‑‑‑No.

*** CAROL TRAN XXN MS DOUST

PN369

Have you done any research project in the United States?‑‑‑No.

PN370

Have you ever received any dental treatment in the United States of America?‑‑‑No.

PN371

So your experience and knowledge of the practice of the dental profession in the United States of America is, can I suggest, extremely limited?‑‑‑I believe that a teeth service of dentistry is very similar in the United States compared to Australia as well.

PN372

Just going to the other two practices that you were working at recently is this the case, in those positions were you privy or not privy to the remuneration arrangements of the dentists within the practice?‑‑‑I am privy in terms of how they were remunerated but I could not comment on a figure, how much they were remunerated on.

PN373

Let's just be clear about this, when you say you're privy to how they're remunerated you're not privy to any of their contracts, are you?‑‑‑No.

PN374

You don't sit in on their performance reviews where there's discussion about the basis on which they're reviewed or remunerated, do you?‑‑‑No.

PN375

So far as there are dentists within your current practice who are partners in the business I presume that they hold regular meetings of the partners to determine the direction of the business?‑‑‑I believe that's the case, yes.

PN376

But you don't participate in those meetings?‑‑‑No.

PN377

Are there any employed dentists in Brisbane City Periodontics?‑‑‑Yes.

PN378

How many?‑‑‑I believe there would be three others.

PN379

And in the other two practices you worked in recently how many employed dentists overall?‑‑‑I believe there would be 12.

*** CAROL TRAN XXN MS DOUST

PN380

So what I want to suggest to you is this, your opinion at paragraph 15 making the comparison between private sector oral health therapists and employed dentists is based on a limited cohort of people within the industry, isn't it?‑‑‑No, I don't believe that is correct. I have worked 15 years as an oral health therapist. I have worked in Victoria and Queensland in public sectors, that would probably amount to over 100 dentists that I have dealt with.

PN381

And how many of those do you say have been employed dentists?‑‑‑The majority of them.

PN382

Thank you, Dr Tran?‑‑‑Thank you.

PN383

VICE PRESIDENT CATANZARITI: Thank you. Any questions, Mr Miles?

PN384

MR MILES: No. Thank you, Vice President.

PN385

VICE PRESIDENT CATANZARITI: Before Ms Murphy re-examines I'll ask a question or two. Dr Tran, if I'm reading your statement correctly you graduated in 2008?‑‑‑That's correct.

PN386

That's your undergraduate Degree?‑‑‑That's correct.

PN387

So when you say in answer just a minute ago that you've been working as an oral therapist for 15 years, is that correct?‑‑‑Sorry, my maths is very bad. I will apologise for that. I have been in my undergraduate Degree, I also was working clinically as well.

PN388

You were working paid clinically during your undergraduate Degree?‑‑‑It was unpaid.

PN389

Yes, okay. That's quite different to - so is that where you did your public sector experience?‑‑‑I also - so public sector, yes, in my undergraduate Degree, but I also worked in public sector for one year when I graduated.

PN390

So your public sector experience then to qualify that is limited to one year in the public sector after you graduated?‑‑‑That's correct.

PN391

So your statement should be read in that context that really 11 of the 12 years of practise have been in the private sector?‑‑‑That's correct.

*** CAROL TRAN XXN MS DOUST

PN392

Thank you. Thank you, Ms Murphy, re-examination? Ms Murphy, can you unmute yourself?

PN393

MS MURPHY: I do apologise, sir. Thank you.

PN394

VICE PRESIDENT CATANZARITI: Are there any questions in re-examination?

PN395

MS MURPHY: Yes, I have one question, sir.

PN396

VICE PRESIDENT CATANZARITI: Go ahead

RE-EXAMINATION BY MS MURPHY [6.52 PM]

PN397

MS MURPHY: My question is, Dr Tran, with regard to paragraph 13 Ms Doust asked you whether your experience with regard to dentistry in the United States amounted to having visited the United States or directly experienced dental treatment in the United States. What is your experience or qualification to be able to compare and apply American literature to Australia?‑‑‑I have a PhD in dentistry. I am also a research fellow within the University of Queensland. Because of this I have (indistinct) literate in this area. Comparing these two I can tell you right now they are very similar.

PN398

Thank you, Vice President. I have nothing further.

PN399

VICE PRESIDENT CATANZARITI: Thank you. Dr Tran, you're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [6.53 PM]

PN400

VICE PRESIDENT CATANZARITI: We'll now take a short adjournment as we set up for the next witness.

SHORT ADJOURNMENT [6.53 PM]

RESUMED [6.56 PM]

PN401

VICE PRESIDENT CATANZARITI: Thank you. Ms Kuss is there. Thank you. We'll have her sworn in.

*** CAROL TRAN RXN MS MURPHY

PN402

THE ASSOCIATE: Ms Kuss, before you proceed to give evidence, could you please state your full name and address?

PN403

MS KUSS: Michelle Suzanne Kuss, (address supplied).

<MICHELLE SUZANNE KUSS, AFFIRMED [6.57 PM]

EXAMINATION-IN-CHIEF BY MS MURPHY [6.57 PM]

PN404

VICE PRESIDENT CATANZARITI: Thank you. Ms Murphy?

PN405

MS MURPHY: Thank you, Vice President. Ms Kuss, could you state your full name again, please?‑‑‑Michelle Suzanne Kuss.

PN406

And your current positions, Ms Kuss, please?‑‑‑I'm a clinical dental hygienist practising in a specialist periodontal practice. I am a practitioner member of the South Australian Dental Board Registration and Notification Committee and I'm a director and treasurer of the National Dental Hygienists Association of Australia.

PN407

Thank you, Ms Kuss. You have made a statement in these proceedings. Is that correct?‑‑‑Yes, I have.

PN408

Do you have a copy of that statement in front of you, Ms Kuss?‑‑‑Yes, I do.

PN409

Is it dated 27 February 2020?‑‑‑Yes, it is.

PN410

It has been signed by you. Is that correct?‑‑‑Yes, it has.

PN411

Ms Kuss, do you say that your statement is true and correct to the best of your belief and knowledge?‑‑‑Yes, I do.

PN412

Vice President, I tender that statement - no, of course, it's already been ‑ ‑ ‑

PN413

VICE PRESIDENT CATANZARITI: Yes, exhibit DHA2.

PN414

MS MURPHY: ‑ ‑ ‑ admitted into evidence as DHA2.

*** MICHELLE SUZANNE KUSS XN MS MURPHY

PN415

VICE PRESIDENT CATANZARITI: Yes.

PN416

MS MURPHY: As per my previous commitment, Vice President, I have no examination‑in‑chief.

PN417

VICE PRESIDENT CATANZARITI: Thank you.

PN418

MS MURPHY: I'll hand over to Ms Doust.

PN419

VICE PRESIDENT CATANZARITI: Ms Doust?

CROSS-EXAMINATION BY MS DOUST [6.59 PM]

PN420

MS DOUST: Yes, thank you. Ms Kuss, can you hear me okay?‑‑‑Yes, I can.

PN421

Thank you. I just want to ask you about the process you undertook of preparing your witness statement. Can I ask you, how did you go about preparing it?‑‑‑I used a template which was provided, because it - due to time constraints. So I've edited a template.

PN422

When you say edited, who provided you with the template?‑‑‑Dr Carol Tran.

PN423

And when you say edited, it's in fact the case, isn't it, that you picked up parts of her statement word for word and reproduced them in your statement?‑‑‑I have used some of that and I've applied it to my own circumstances.

PN424

Well, just if you can explain to me how it is that, for example, paragraph 5, you did any application to your own circumstances when that is identical to that same paragraph in Dr Tran's statement?‑‑‑I'm in complete agreement with that statement so I didn't see any need to change it.

PN425

You didn't think that your role as a witness was to express your own opinion independently in your witness statement?‑‑‑I think I have in some areas.

PN426

And that is word for word what Dr Tran says at the same place of your statement, is it?‑‑‑I believe so. If it was on the template, then yes.

PN427

Tell me this, you're the treasurer of the DHAA?‑‑‑Yes.

*** MICHELLE SUZANNE KUSS XXN MS DOUST

PN428

When you qualified as a dental hygienist in 1996 I presume you were awarded a diploma at that stage?‑‑‑Certificate.

PN429

Sorry. Was that after two years of study at that point?‑‑‑18 months.

PN430

In terms of your professional knowledge, do you think you're at the highest level of your profession at this stage?‑‑‑Yes, I am.

PN431

A senior member of the profession and recognised as such?‑‑‑I believe so.

PN432

Can I ask you, have you worked in the private sector throughout your career?‑‑‑I have mostly worked in the private sector. I've worked in the education sector, which exposed me to working in - the clinics that the students work in are in the public sector.

PN433

And just tell me, when did you most recently work in one of those clinics in the public sector?‑‑‑The end of - I'll say November 2018.

PN434

So is this right? You taught a class in a clinic, or undertook some supervision in a clinic?‑‑‑Clinical tutoring of students when they were treating patients.

PN435

Are you currently employed as a dental hygienist in the private sector?‑‑‑Yes, I am.

PN436

Are you the only dental hygienist at that practice?‑‑‑No.

PN437

How many are at that practice?‑‑‑Two of us.

PN438

The dentists at the practice, are they the owners of the practice or are they employed by another entity?‑‑‑Until recently there was two. One is the owner of the practice and one was an employer - or I'm not sure of the circumstances, but he wasn't an owner of the practice.

PN439

Is this the case? You're not privy to the dentists' remuneration or their process of performance review?‑‑‑This position I've been in since February and so in this position I'm not privy. In my previous position I was. I was there for 15 years and I was privy to that process.

*** MICHELLE SUZANNE KUSS XXN MS DOUST

PN440

To the performance review process for the dentists?‑‑‑Yes.

PN441

Did you have an ownership interest in that practice?‑‑‑No.

PN442

Were you privy to the quantum of remuneration of the dentists in that practice?‑‑‑Not the amount, the process.

PN443

Can I ask you, in your current role do you work with the help of an assistant?‑‑‑No, I don't - actually, no, that's not - occasionally I do have access to an assistant if I require one.

PN444

But generally not?‑‑‑Generally not.

PN445

Are you ordinarily working alongside a dentist or are you having independent consultations?‑‑‑Independent consultations.

PN446

Is the work you do routine consultations or are you performing complex, novel or critical work?‑‑‑I would say I'm the latter - like, critical, complex work.

PN447

Are you playing a role in the workplace evaluating procedures in respect of the work that's performed?‑‑‑No, I would say not.

PN448

Do you make a contribution to discussions about how the work should be carried out and how it might be improved?‑‑‑Not at this stage, no.

PN449

When you say "not at this stage", what do you mean? Do you anticipate you will reach that stage?‑‑‑This is a new position for me, so I'm not sure if that will happen or not. At this stage it hasn't.

PN450

Did that happen at your previous role?‑‑‑No, I don't believe so.

PN451

Would you say that you're contributing to the professional knowledge in the workplace by dint of your, shall we say, academic or teaching experience?‑‑‑No.

PN452

Tell me this. In terms of your work within the practice, is that all referred to you by the dentists or do some of the patients just come for your services?‑‑‑I'm referred by the dentists.

*** MICHELLE SUZANNE KUSS XXN MS DOUST

PN453

Do you have any responsibilities to meet a budget, for example?‑‑‑Not in this particular practice, no.

PN454

But what, you previously did?‑‑‑Yes, I did.

PN455

Now, you're currently earning $65 an hour. Is that right?‑‑‑Yes.

PN456

What were you earning in the role before then?‑‑‑60.

PN457

How long were you earning 60 for?‑‑‑The last previous five years.

PN458

Is this the case? Did you leave your last position because this position offered you a better rate?‑‑‑I didn't leave because of the rate. I left for other reasons, but the rate was - I wouldn't have gone somewhere where I was paid less.

PN459

Have you asked for an increase over that five‑year period and not achieved it?‑‑‑I can't recall. The nature of the business changed. It was bought by a corporate, so I don't recall the - I would have to say no, I didn't ask for it, because I can't recall.

PN460

So is this right? Over five years you didn't have any negotiation with your last employer about an increase?‑‑‑No.

PN461

So far as your current role is concerned, was that the starting rate you were offered?‑‑‑Yes, it was.

PN462

So you didn't have to have a negotiation to try and increase that rate?‑‑‑No. It was negotiable, but I was happy with that rate so I accepted that, and I have room to move. When you first start a new job I think it's always good to have some room to move.

PN463

In that discussion - well, sorry, was there any discussion at all about the rate when you were offered the position?‑‑‑It was given to me and said that was negotiable and I didn't see any reason to negotiate at that point.

PN464

So in fact they were suggesting to you they could potentially go better than 65 an hour?‑‑‑Correct.

*** MICHELLE SUZANNE KUSS XXN MS DOUST

PN465

I take it that in that discussion about the role there was no reference to the national minimum wage?‑‑‑No.

PN466

And you understand, don't you, that that's the legislated rate that applies to your employment in the absence of award coverage?‑‑‑I would say yes.

PN467

Do you understand how that rate compares with the rates in the award?‑‑‑Yes.

PN468

How?‑‑‑Well, it's a minimum rate that employers can't go under.

PN469

How does it compare to the award rate that would apply to your role if you were award‑covered?‑‑‑Sorry, can you just repeat the question?

PN470

Well, you're familiar with ‑ ‑ ‑?‑‑‑What I'm paid now or the ‑ ‑ ‑

PN471

Sorry, you're familiar with ‑ ‑ ‑?‑‑‑Sorry ‑ ‑ ‑

PN472

Okay, hold on. You're familiar with the award rates, aren't you?‑‑‑The proposed ones that we're looking at on the HSU award, yes.

PN473

Yes. Health Professionals Award, that award?‑‑‑Yes.

PN474

Do you know how they compare with the national minimum wage rate?‑‑‑No, I must say, I don't know exactly how they compare.

PN475

Just tell me, in relation to the $65 an hour, that's not a rate that varies from week to week depending upon performance, is it?‑‑‑It's a permanent, full‑time rate.

PN476

And can I just ask you, are you doing 38 hours a week at $65 an hour?‑‑‑Yes. My annual salary is $130,000 a year.

PN477

So is this right? You're actually paid an annual salary, not an hourly wage. Is that correct?‑‑‑Yes.

PN478

So do you get the same weekly or fortnightly amount regardless of how many patients you see over that period or how many billable hours you perform?‑‑‑Yes.

*** MICHELLE SUZANNE KUSS XXN MS DOUST

PN479

So there's no connection, is there, in terms of your performance by reference to clinical performance and revenue generated, is there?‑‑‑In this practice, a specialist practice, no, there's not.

PN480

So you're remunerated by salary, not by reference to clinical performance and revenue generated?‑‑‑In this particular role I'm not. In my previous role that was the case.

PN481

In your previous role were you an employee?‑‑‑Yes.

PN482

And what rate do you say you were being paid in your previous role?‑‑‑$60 per hour on a - yes, $60 per hour.

PN483

And are you saying that the $60 per hour would vary depending upon the revenue you generated in any week or how well you were perceived to have performed your role?‑‑‑No, I didn't say that. I was working for a corporate and we had budgets to meet. Up until the time that the corporate bought the practice that I was working in, I was able to negotiate salary increases on a regular basis, and that was based on producing a certain amount of income. When the corporate arrived, that did change a little bit and there was a lot of - I won't say pressure, but there was a lot of chatter about the fact that - how much they paid us, and so basically there was never an opportunity - or it was never an opportunity to look for an increase.

PN484

Can I just clarify, in your previous role you've said it was $60 an hour. Was that in fact an annual salary role like the current one? Did you actually have an annual figure that when you divide it up it comes out to an hourly rate of about 60?‑‑‑I guess so, but it wasn't worked out. The way they worked it out was per hour and I worked three days a week.

PN485

And set hours each time. So it was the same ‑ ‑ ‑?‑‑‑Yes.

PN486

In relation to that role what you're saying is that if you were meeting targets and so on, performing well, then you would be in a good position for an increase. Is that how you make that argument?‑‑‑Yes.

PN487

The other people in your practice, do you know which of them are award‑covered?‑‑‑No. I imagine it's dental assistants and receptionists.

*** MICHELLE SUZANNE KUSS XXN MS DOUST

PN488

Have you been privy to their pay negotiations?‑‑‑No.

PN489

So just to clarify - I'm sorry, I might have already asked you this, but just taking yourself as an example, you're not aware of what award rate of pay would apply to your roles - or to your role, sorry. To your role currently as a dental hygienist?‑‑‑I don't have an award rate.

PN490

No, I'm saying what rate would apply to your role if you were award‑covered?‑‑‑In the proposed HSU award I believe it's ‑ ‑ ‑

PN491

The Health Professionals ‑ ‑ ‑?‑‑‑Beg your pardon?

PN492

The Health Professionals Award?‑‑‑I believe it's level 1, pay point 1.

PN493

How have you come to that conclusion?‑‑‑I would be considered an undergraduate. Because I don't have a degree I can't participate in research activities. I'm in a clinical role, not an administrative role. So that's the reason I've come to that conclusion.

PN494

Just tell me something. Is your opinion about what would happen with your wage rates based on your view that you would be at level 1, pay point 1, of the award, is it?‑‑‑I think that if - to progress through, I still think that the classification is unsuitable.

PN495

No, that's not what I'm asking. You've expressed the view, identical to Dr Tran, about the market rates for oral health therapists and dental hygienists if there was award coverage. Do you recall that view in your statement?‑‑‑Yes.

PN496

Is that based in part on your view that you would be at level 1, pay point 1, of the award?‑‑‑Yes.

PN497

You've got - is it 34 years' experience in your profession?‑‑‑38.

PN498

Sorry?‑‑‑That's okay.

PN499

Can I suggest this to you, Ms Kuss. You haven't looked carefully through the classifications of the Health Professionals Award to see where you would fall. Do you agree with that?‑‑‑No, I disagree with that. I have looked through, and I can't see the progression as it would be applied to me.

*** MICHELLE SUZANNE KUSS XXN MS DOUST

PN500

You don't see that you would progress through the - presuming you started at that pay point 1, level 1, that you'd progress through those pay points with additional experience, and then you would progress on to the higher levels by reference to the level of expertise and so on that you're exercising in your work?‑‑‑I don't believe I can progress through the pay points, because - well, I could, but I would have to go back to university for three years. It would cost me nearly half a million dollars in lost revenue and HECS debt to go up one pay point level - one pay point, I should say, and as I said, to progress through the levels until I've got a degree, I don't see that - or I move into administration and non‑clinical roles, I don't see how the classification is suitable for me.

PN501

Can I just ask you this? In your role as someone who's senior within the DHAA, is that the understanding of the award that you're conveying to members of the organisation?‑‑‑Well, I am representing the members, so I'm also listening to what they say, and that's their level of understanding as well.

PN502

So you're saying that's the view that prevails within the DHAA, that under this award, for people who have that qualification that is a two‑year course, like a diploma, for example, that they can't progress beyond level 1. Is that the view?‑‑‑Yes.

PN503

Do you accept this proposition. If you're wrong about that, your opinion about how the award might affect your capacity to negotiate your rates is something that couldn't be sustained?‑‑‑Can you repeat the question?

PN504

MS MURPHY: I object to the question, Vice President?

PN505

VICE PRESIDENT CATANZARITI: Why? What's the objection?

PN506

MS MURPHY: It's speculative. It's a speculative question, entirely speculative.

PN507

VICE PRESIDENT CATANZARITI: I'll allow the question. She is a person associated with the DHAA in her capacity as a DHAA - she's expressed her views as to members so I'll allow the question. Repeat the question, Ms Doust.

PN508

MS DOUST: Yes. Ms Kuss, you've expressed an opinion about the impact of award coverage on your capacity to negotiate rates of pay. You're familiar with that, and I think you accepted a little while ago that that was based on your view that you couldn't progress through the classifications in the award if you were a person such as yourself, without a three‑year degree?‑‑‑Yes.

*** MICHELLE SUZANNE KUSS XXN MS DOUST

PN509

There's quite a few members of the DHAA would be in the same position as you, wouldn't they? They wouldn't necessarily have a three‑year degree, they'd have a two‑year or 18‑month qualification?‑‑‑Yes.

PN510

What I want to suggest to you is this. If you're wrong in your understanding of how a dental hygienist would progress through these classifications, then you can't maintain your opinion about how award coverage would affect your capacity to negotiate rates, can you?‑‑‑Well, what if I'm correct, that I can't progress through those classifications because they don't apply to me, they're unsuitable for what I do and my role clinically?

PN511

Well, that's something that ultimately the Commission will form a view as to who's right about that issue, Ms Kuss, but do you accept this proposition. If you're wrong about it, your argument about the impact of the award on negotiation of your pay rates must fall over, mustn't it?‑‑‑No, I don't think so.

PN512

You can't maintain your position if your understand of how the award operates is wrong, can you?

PN513

MS MURPHY: Vice President, I object. Ms Doust is badgering the witness.

PN514

VICE PRESIDENT CATANZARITI: Ms Murphy, that is not badgering the witness. I'll allow the question. Continue, Ms Doust.

PN515

MS DOUST: That was final question, Vice President.

PN516

VICE PRESIDENT CATANZARITI: Thank you. Mr Miles, any questions?

PN517

MR MILES: No, thank you, Vice President.

PN518

VICE PRESIDENT CATANZARITI: Thank you, Ms Kuss. You're excused.

PN519

MS MURPHY: Vice President, can I ‑ ‑ ‑?‑‑‑Thank you.

PN520

Sorry, Vice President, I wish ‑ ‑ ‑

PN521

VICE PRESIDENT CATANZARITI: Sorry. Is there re‑examination, is there? Sorry.

*** MICHELLE SUZANNE KUSS XXN MS DOUST

PN522

MS MURPHY: Yes, thank you.

PN523

VICE PRESIDENT CATANZARITI: Sorry, I forgot about this. Go ahead.

RE-EXAMINATION BY MS MURPHY [7.27 PM]

PN524

MS MURPHY: Ms Kuss, with regard to progression through the award, if in fact Ms Doust's apparent argument that your view, because you have a diploma, is incorrect with regard to your classification under the award, if your correct classification under the award, given you're currently award free, was in fact level 2, which has a maximum pay point of 34.49, would your opinion change with regard to the disadvantages of award coverage for you personally?‑‑‑No, my opinion wouldn't change.

PN525

Ms Kuss, if in fact you were found to be classified level 3, which has a maximum pay point of $40.92, would your views on award coverage change as they apply to you?‑‑‑No, they wouldn't.

PN526

I don't have any further questions, your Honour.

PN527

VICE PRESIDENT CATANZARITI: Thank you. Now you are excused, Ms Kuss?‑‑‑Thank you.

PN528

You may go?‑‑‑Thank you.

<THE WITNESS WITHDREW [7.28 PM]

PN529

VICE PRESIDENT CATANZARITI: Thank you. That concludes the evidence. There remains, really, any further submissions that need to be made. It seems to the Bench that the most appropriate course would be any supplementary written submissions the parties wish to put on, and that could be done in a short space of time, I would think, perhaps in a week or so, given that extensive submissions have been put on already. Yes, Ms Murphy, can you meet that deadline? Ms Doust, Mr Miles?

PN530

MS MURPHY: Yes, Vice President.

PN531

MS DOUST: Yes.

*** MICHELLE SUZANNE KUSS RXN MS MURPHY

PN532

VICE PRESIDENT CATANZARITI: All right. So again, when you put in that other material, have everything wrapped up within a week and then we'll issue our decision shortly thereafter, hopefully. The Commission then is adjourned. The decision is reserved.

ADJOURNED INDEFINITELY [7.29 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #DHA1 WITNESS STATEMENT OF CAROL TRAN..................... PN16

EXHIBIT #DHA2 WITNESS STATEMENT OF MICHELLE KUSS.............. PN17

EXHIBIT #DHA3 WITNESS STATEMENT OF CHERYL DAY..................... PN18

EXHIBIT #DHA4 WITNESS STATEMENT OF AMY MCDERMOTT.......... PN19

EXHIBIT #DHA5 WITNESS STATEMENT OF KAY BULL........................... PN20

EXHIBIT #DHA6 WITNESS STATEMENT OF ALLISON TAYLOR........... PN21

EXHIBIT #DHA7 WITNESS STATEMENT OF SUSAN MELROSE............. PN22

EXHIBIT #DHA8 WITNESS STATEMENT OF CHRISTINA ZERK............ PN23

EXHIBIT #DHA9 WITNESS STATEMENT OF LYN CARMAN.................... PN24

EXHIBIT #DHA10 WITNESS STATEMENT OF BENJAMIN MARCHANT PN25

EXHIBIT #DHA11 WITNESS STATEMENT OF SAMSON CHEN................ PN26

EXHIBIT #1 COURT BOOK................................................................................. PN36

EXHIBIT #HSU1 WITNESS STATEMENT OF ALEX LESZCZYNSKI........ PN37

EXHIBIT #HSU2 WITNESS STATEMENT OF GREGORY ROCHE............ PN38

EXHIBIT #HSU3 WITNESS STATEMENT OF ANASTASIA STOCKAPUCHE PN39

EXHIBIT #HSU4 WITNESS STATEMENT OF CRAIG WHITEHEAD........ PN40

EXHIBIT #HSU5 WITNESS STATEMENT OF ANTHONY BARROS.......... PN41

EXHIBIT #OA1 STATEMENT BY OPTOMETRISTS AUSTRALIA............. PN42

ALEXANDER LESZCZYNSKI, AFFIRMED..................................................... PN86

EXAMINATION-IN-CHIEF BY MS DOUST...................................................... PN86

CROSS-EXAMINATION BY MS MURPHY...................................................... PN98

THE WITNESS WITHDREW............................................................................. PN164

EXHIBIT #2 PRE-REFORM AWARDS............................................................ PN187

CAROL TRAN, AFFIRMED............................................................................... PN202

EXAMINATION-IN-CHIEF BY MS MURPHY............................................... PN202

THE WITNESS WITHDREW............................................................................. PN227

CAROL TRAN, RECALLED.............................................................................. PN257

EXAMINATION-IN-CHIEF BY MS MURPHY, CONTINUING................... PN257

CROSS-EXAMINATION BY MS DOUST......................................................... PN273

RE-EXAMINATION BY MS MURPHY............................................................ PN396

THE WITNESS WITHDREW............................................................................. PN399

MICHELLE SUZANNE KUSS, AFFIRMED.................................................... PN403

EXAMINATION-IN-CHIEF BY MS MURPHY............................................... PN403

CROSS-EXAMINATION BY MS DOUST......................................................... PN419

RE-EXAMINATION BY MS MURPHY............................................................ PN523

THE WITNESS WITHDREW............................................................................. PN528