PN2092

VICE PRESIDENT HATCHER: I'll take the appearances. Mr Clarke, you appear for the ACTU and with Mr Resic for the UWU, Ms Liebhaber for the HSU and Mr Robson for the ASU; is that right?

PN2093

MR T CLARKE: Yes, that's right, your Honour.

PN2094

VICE PRESIDENT HATCHER: Ms Moussa, you appear for Mr Gomperts, is that right?

PN2095

MS A MOUSSA: That's right, your Honour, together with Alanna Lazdins.

PN2096

VICE PRESIDENT HATCHER: Mr Arndt, you appear with Mr Carl for the Cahill for the ACCI, ABI, New South Wales Business Chamber, Leading Aged Services Australia and Aged and Community Services Australia?

PN2097

MR J ARNDT: That's correct, your Honour.

PN2098

VICE PRESIDENT HATCHER: Ms Lo, you appear for AFEI?

PN2099

MS S LO: Yes, your Honour.

PN2100

VICE PRESIDENT HATCHER: Ms Bhatt and Mr Ferguson, you appear for the Ai Group?

PN2101

MS R BHATT: Yes, Vice President.

PN2102

VICE PRESIDENT HATCHER: Mr Clarke, we'll start with you. I understand you want to call Professor Kavanagh, is that correct?

PN2103

MR CLARKE: Yes, yes, I would, your Honour, briefly, yes.

PN2104

VICE PRESIDENT HATCHER: Do we have any issues we need to deal with before we hear from Professor Kavanagh? All right, let's get Professor Kavanagh in.

DISCUSSION RE TECHNICAL ISSUES [9.15 AM]

PN2105

THE ASSOCIATE: Would you be able to state your full name and address?

PN2106

PROF A KAVANAGH: I'm Professor Anne Kavanagh of (address supplied).

<ANNE KAVANAGH, AFFIRMED [9.22 AM]

EXAMINATION-IN-CHIEF BY MR CLARKE [9.22 AM]

PN2107

VICE PRESIDENT HATCHER: Mr Clarke.

PN2108

MR CLARKE: Thank you. Professor Kavanagh, can you see and hear me?‑‑‑Yes, I can.

PN2109

Thank you?‑‑‑Can you see me?

PN2110

Yes, I can, Professor; yes, thank you. The people that you're looking at, apart from me at the moment with the wood-panelled background or the books or the emu and the kangaroo behind, they're the members of the Commission who are hearing this case?‑‑‑Yes.

PN2111

There are others that you can't see at the moment who are representing all the parties to this proceeding?‑‑‑Yes.

PN2112

Can I just, for the purposes of the transcript, ask you to restate your name and address?‑‑‑I'm Professor Anne Kavanagh, of (address supplied).

PN2113

Thank you. Have you prepared a statement for the purposes of these proceedings, dated 21 September?‑‑‑I have.

PN2114

Do you have a copy of that statement available to you at the moment?‑‑‑Yes, in front of me.

PN2115

Can I take you to paragraphs 54 to 55 of that statement?‑‑‑Yes.

PN2116

Those paragraphs briefly describe some initiatives by the Victorian and Commonwealth governments. In paragraph 55 you say that to your knowledge this provision did not exist anywhere in Australia. Is that still your view?‑‑‑No, I have become aware that other states in Australia have now also introduced the same provisions.

*** ANNE KAVANAGH XN MR CLARKE

PN2117

So having dealt with that issue, is the remainder of the statement true and correct to the best of your knowledge?‑‑‑Yes.

PN2118

I'd like to tender Professor Kavanagh's statement, your Honour.

PN2119

VICE PRESIDENT HATCHER: The statement of Professor Anne Kavanagh, dated 21 September 2020, will be marked exhibit A.

EXHIBIT #A WITNESS STATEMENT OF PROFESSOR ANNE KAVANAGH DATED 21/09/2020

PN2120

MR CLARKE: A few issues arising: it's said by one of the other interested parties in this proceeding that initiatives are in place to reduce the spread of COVID-19 in the disability sector and particular reference is made in support of that proposition to the NDS code of conduct - sorry, NDIS - code of conduct and NDIS practice standards. Are you aware of those?‑‑‑Yes, not in great detail but I am aware of them, yes.

PN2121

Are you aware of when they were published?‑‑‑Not the exact dates, but I know they preceded the pandemic.

PN2122

All right, they preceded the pandemic. What was known about infection control in the disability care sector specific to COVID-19 when they (indistinct)?‑‑‑(Indistinct) alerts - sorry.

PN2123

I think you said that they were published before the pandemic. What was known about infection control in the disability care sector, specific to COVID-19 prior to the pandemic?‑‑‑Well, we don't know anything because it's a novel virus that emerged in China in late 2019 so when those guidelines were issued (indistinct) about this virus.

PN2124

Is infection control generally addressed?‑‑‑There is some mention of - from what I understand - the disposal of hazardous waste but it doesn't deal specifically with issues around a pandemic virus.

PN2125

Beginning at around - sorry, did I interrupt you, Professor?‑‑‑No.

PN2126

Beginning at around paragraph 44 of your statement, you've provided some information about a survey and a report that you've conducted with some other experts?‑‑‑Yes.

*** ANNE KAVANAGH XN MR CLARKE

PN2127

We can see the statement, that that report is in fact annexed and marked AK-03 to that - to your statement. Can I take you to AK-03, which is the report?‑‑‑Yes, I'm just (indistinct) of it.

PN2128

On the page numbering on that document - on the report - if I can take you to page 5?‑‑‑Yes.

PN2129

There is a graph that refers - at the bottom of that page - among other things, to masks and gloves. Can you see that?‑‑‑Yes.

PN2130

Why did you ask workers about the provision of masks and gloves?‑‑‑Well, at that stage when we did this survey, started doing this survey in May, June, there was not so much guidance on the use of masks and gloves. But we know anecdotally that workers were worried about these things and had raised them at that stage. So we were interested in the extent to which they had been provided with them and to which they also had (indistinct) themselves and to get a sense then about the availability of those items of personal protective equipment.

PN2131

What is the graph telling us about that? I can see you're measuring employer provided versus worker provided personal protective equipment?‑‑‑Yes.

PN2132

Is that an either/or proposition or is that a - - -?‑‑‑There are some people who both got personal protective equipment from their provider and purchased it themselves. You can see from the graph that 37 per cent of providers of state workers did get masks from their employer and that included both (indistinct) mask or surgical mask and (indistinct) per cent just their own masks but gloves were most commonly provided and gloves are more commonly provided generally in those kind of settings.

PN2133

Can you tell the Commission when these answers about employees providing their own PPE, versus the employer providing PPE - can you tell the Commission when those answers were given, when that survey was administered?‑‑‑Yes, it went from late (indistinct) late June, so it predominantly covers the period of June when - and it is across Australia. So it was a period of time when there were lower levels of cases and it was sort of the first wave with the exception of increasing cases within Victoria, starting at that point. (Indistinct) returned sort of towards the end of the first wave and referred to the previous months so that means it was really kind of the tail of the - you know, referred to sort of (indistinct) time so it wouldn't have been time, when there was a high level of community transmission.

*** ANNE KAVANAGH XN MR CLARKE

PN2134

In paragraph 47 to 48 of your statement - so going back to the (indistinct) you refer to some follow-up research that was being conducted at the time that you prepared your statement. Have you completed that research now?‑‑‑We have nearly completed that research but I am still following up some parts of it so we can get as many responding as possible, which is any bias in data collection. So we had hoped it would be (indistinct) but we are doing some intensive follow up with the remaining participants, who haven't responded to that survey so no, the results are not available.

PN2135

So that is still continuing?‑‑‑And we're all doing projects related to that qualitative process, (indistinct).

PN2136

Sorry?‑‑‑Can you hear me?

PN2137

I can hear you, yes.

PN2138

VICE PRESIDENT HATCHER: Yes?‑‑‑Did you want me to repeat that?

PN2139

MR CLARKE: Just the last part - - -

PN2140

VICE PRESIDENT HATCHER: Yes, please?‑‑‑In relation to paragraph 48 of my statement I was just following up to say we have done a number of interviews with senior staff within disability services, some who had experienced outbreaks and some who had not in Victoria and was focussed on group homes and also some senior staff group team leaders and so forth in those services but we just haven't completed those. Again, the results haven't been analysed yet.

PN2141

MR CLARKE: You made some reference a moment ago to the sequencing of the survey that you've attached with what you referred to as the first wave of infection. It's been suggested in the proceedings that the rate of infection is once again coming down in these settings, to quite low levels?‑‑‑Yes.

*** ANNE KAVANAGH XN MR CLARKE

PN2142

If that's the case why bother continuing with the research?‑‑‑(Indistinct) there's a few reasons for that but in terms of risk of infection, one thing we didn't (indistinct) the nature of this infection is it's highly infectious and if it gets into settings like disability homes, residential settings and other settings it's very likely to spread quite quickly. This is exactly the kind of setting where it's likely to break out, have outbreaks. So I think the most important thing for us is to learn from what's happened in this current environment so we can put systems in place to prevent it happening in the future. I'm a public health physician and epidemiologist and our approach is prevention, not to wait for it to occur and for it to spread quickly in these kind of settings. I think COVID in Australia and across the world has shown that if there - if you can't physically distance (indistinct) high level of contact transmission is likely to occur and these are exactly the kind of settings with disability workers and with people with disabilities receiving support.

PN2143

In paragraph 16 to 28 of your statement you describe a number of publications in which you made some policy recommendations, including in relation to paid leave, so workers don't come into work sick. If I'm reading that correctly, those recommendations were made as early as March of this year?‑‑‑Yes, they were.

PN2144

What did you know of the actual level of infection among disability support workers in March of this year?‑‑‑We didn't know anything. We didn't really know anything about levels of infection among any workforces. But we did know that the settings were right given the kind of virus it was, for it to spread through those kind of settings, given we knew that it was through social contact, through at that stage mainly droplets was the idea. But we knew exactly that these were the kind of settings where we could (indistinct) outbreaks that we were particularly worried about issues around infection control because these are healthcare settings, these are people at risk and so implementing those kind of infection control procedures were complicated. (Indistinct) in those settings who may not understand issues around infection control, i.e. the people with disabilities. We were very worried given those were the actual right settings to alert, where if it got into those settings would spread very quickly. So as public health practitioners, we thought it was very important to prevent that. Our focus is prevention before it takes off and spreads.

PN2145

Was there any immediate risk to the resilience of the system for providing care for these workers at the time you made those recommendations?‑‑‑Can I clarify what you mean by resilience? You mean whether they would be able to continue to provide those services? Is that what you mean?

PN2146

Whether they would continue to be able to provide the care, yes?‑‑‑I think that was one of our concerns, that if a large number of support workers needed to be furloughed that there would be - you know, or quarantined or self-isolated - there wouldn't be a sufficient workforce and just like the healthcare workforce, where we've seen some actions by government to immediately mobilise an additional workforce from retired workers, we didn't see that in the disability sector (indistinct) services who had perhaps more capacity and we were concerned that the essential supports would not be continued to people with disabilities if there wasn't immediately the potential to increase the size of that workforce. So that was one of our recommendations, to identify a potential backup workforce.

*** ANNE KAVANAGH XN MR CLARKE

PN2147

I think you acknowledge we are at a stage where infections are declining in these settings at the moment but do you stand by those recommendations today?‑‑‑Definitely - I think they're absolutely relevant still now. Some of things - having said that, some of the things have happened, so some of the recommendations we made back in March in our first and second statement around access to personal protective equipment and those kinds of things have actually happened and so it is - the government did take up a number of those recommendations that we made.

PN2148

In paragraph 46 of your statement, subparagraphs E and F, you refer to measures of financial stress?‑‑‑What paragraph are you talking to? Sorry, I didn't hear you again. What paragraph did you say?

PN2149

Paragraph 46 of your statement, subparagraphs E and F - you refer to some measures of financial stress?‑‑‑Yes.

PN2150

Why did you utilise those particular measures?‑‑‑Those measures are commonly used in surveys of this type and I've used them in a number of other kinds of analyses. So these questions asked - for instance, in the household income and the labour dynamics survey of Australia tend to (indistinct) body of Australian men. So those are the reasons we use them and they are kind of internationally known as the kind of questions that you ask to get a sense of people who are in extreme financial stress, that they can't purchase essentials or they need support from others. So they are kind of indications of extreme financial stress.

PN2151

Thank you, Professor. It's been suggested in these proceedings that a loss of employment income for these workers would not be a material disadvantage for them. What do you say about that?‑‑‑Well, I'd say that's not true because we can see - based on these findings, I have to say that's not true because we are seeing very high levels of financial stress and in that report, (indistinct) we've done there is some evidence that those that did have their shifts cancelled, had lost shifts, had reduced hours of work, were at higher risk of financial stress. So I think it's pretty obvious that a loss of work would increase the chance of what is already significant levels of strain, financial stress experienced by this workforce.

*** ANNE KAVANAGH XN MR CLARKE

PN2152

Just two more questions: paragraph 45 of your statement, you refer to some survey results, relating to the risk of disability support workers contracting and spreading the virus and you've listed a number of subparagraphs there. One refers to the age of disability workers and you've provided some commentary on that. It's been suggested in these proceedings that the proper conclusion to be drawn from what you've said is that an overwhelming majority of the disability support workforce don't face a risk of serious illness from COVID. Is that correct?‑‑‑I think we can't conclude that from that information. We didn't collect information about co-morbid, chronic conditions. So we're relying on age as the major risk factor there and it's true that about 7 per cent are 60 years of age, where we start to see a much higher risk of infection. But also we need to remember that disability support workers are usually relatively low-income workers and so more disadvantaged workers. We can see that through the levels of financial stress. We know from a vast amount of work and indeed work that I myself have conducted that the more disadvantaged you are the more likely you are to have (indistinct) conditions like diabetes, chronic lung disease, cardiovascular disease. There is a large body of work showing that over many, many years. So we didn't - it wasn't the focus of this survey to actually get a sense of the health risk of the workforce. The only risk factor we have to go by is age in that context.

PN2153

Okay. That's relating to the risk of the workers but what about the people with the disability that they care for?‑‑‑I mean, that is one of our major motivations, obviously, that we know that there are very high rates of conditions, health conditions, that many with disabilities are at much higher risk of, if they contract the virus, getting very serious disease and dying. So high levels of diabetes, underlying - like, cardiovascular disease (indistinct). So we know that that is a very at-risk group so we were incredibly concerned about a potential for people with disabilities who were at significant risk being infected.

PN2154

So when you say, "motivation", that's a motivation for the recommendations or the research or - - -?‑‑‑Yes, so the motivation for the recommendations and research. So with the research, we were interested in the workforce, per se, but we were also interested in what the workforce was doing that might place the people they support at risk, i.e. people with disabilities. So we particularly focused on where they were working, how many people they were supporting; those kinds of things, because the big thing with COVID is the number of people you're exposed to, the levels of infection (indistinct) distanced, and so forth. So the survey was trying to get at those risks that were posed to people with disabilities who were receiving support in those kind of settings. Our follow-up work in our interviews is particularly focusing on those at risk in (indistinct) settings.

PN2155

Thank you, Professor. I know you have some other commitments and those were the questions I had for you. The members of the Commission or the other parties may wish to ask you some questions as well, thank you very much?‑‑‑Thank you.

PN2156

VICE PRESIDENT HATCHER: Does any party wish to cross-examine Professor Kavanagh based on that oral evidence?

PN2157

MS LO: Vice President Hatcher, I have a couple of questions, if I may. This is Ms Lo from AFEI.

PN2158

VICE PRESIDENT HATCHER: Sorry, who is this?

*** ANNE KAVANAGH XN MR CLARKE

PN2159

MS LO: Ms Lo from AFEI.

PN2160

VICE PRESIDENT HATCHER: All right, go ahead.

CROSS-EXAMINATION BY MS LO [9.48 AM]

PN2161

MS LO: Thank you. Professor Kavanagh, I'm Ms Lo from the Australian Federation of Employers and Industries, an employer association?‑‑‑Yes.

PN2162

I only have a few questions in relation to the report annexed to your statement, marked AK-03?‑‑‑Yes.

PN2163

Were the survey respondents specifically asked whether they had personally been infected with COVID-19?‑‑‑Yes, they were.

PN2164

Is that response data annexed to your report or extracted in the report?‑‑‑It was but I don't remember any reporting infection at that stage. You have to remember that it was early in the pandemic. The first wave of the pandemic was largely driven by returned overseas travellers with only 10 per cent of it coming from community transmissions. So you wouldn't have anticipated from 357 workers that any were infected.

PN2165

Thank you, Professor Kavanagh. Did the survey respondents say they attended work other than working from home whilst infected with COVID-19?‑‑‑Well, they weren't infected but they did attend work. Some reported attending work when sick, when they had potential infection; when they had potential symptoms that were consistent with COVID-19. It's also important to remember that early in the pandemic we were only offering testing to people who were considered - had travelled overseas in the initial stages and all contacts of people who travelled overseas.

PN2166

Finally, did the survey specifically ask respondents whether they personally received the government leave disaster payment?‑‑‑No, because that happened after this survey was conducted, that that pandemic leave payment was paid.

PN2167

Thank you, Professor, no further questions.

*** ANNE KAVANAGH XXN MS LO

PN2168

VICE PRESIDENT HATCHER: Does any other party wish to ask Professor Kavanagh any questions? I'll take that silence as a no. Professor Kavanagh, it's Vice President Hatcher here. Can I just ask you one or maybe two questions? You've talked about paid pandemic leave as a preventative measure in respect of disability support workers. In terms of the risk profile of infection of COVID, is there any distinction to be drawn between the disability sector and, say, the childcare sector or the correctional facility sector?‑‑‑Childcare sector is quite different because you've got young - you've got little kids, where there is very little transmission between the young people, between the children, and the risk, if they are infected, of serious disease is negligible.

PN2169

Can I just ask you to stop there so I can understand something you just said: did you say that there is little evidence of transmission between children?‑‑‑Yes, under - there's very low levels of transmission between children in those kind of settings under the age of 10. That's evidence that has recently been released in a meta-analysis conducted - I can't remember who by now but there is very little transmission between children.

PN2170

Is that something to do with their age profile or the degree of contact they have with each other?‑‑‑I think probably that is something you could ask your next witness, expert witness, more about. But we do know that unlike influenza and other kinds of viruses, for some reason it doesn't - isn't transmitted as much between young children. It's mainly transmitted between adults or older children.

PN2171

Thank you. Correctional facilities?‑‑‑Correctional facilities do pose a risk. I think the difference between correctional facilities and disability settings is people in correctional facilities don't require - on the whole - very close personal care. One of the issues here is that in providing disability care, you can't physically distance, by definition. Many of the workers are providing what we might call intimate care; so care with things like teeth-brushing, feeding, even toileting, showering and so forth, where there is likely to be much more risk of aerosol transmission and so forth and droplet transmission. So it's a very different kind of care and support. It's much closer to what you would see in the aged care sector, than you would see in either of those sectors.

PN2172

Thank you. Finally, just in relation to the completion of the further survey, what is the timeframe for that?‑‑‑We probably will close it off in the next week or so and probably have, depending on some early results, towards mid-November.

PN2173

Thank you. Does any other party or any of the members have any further questions for Professor Kavanagh? No? So, Mr Clarke, we can excuse Professor Kavanagh now.

PN2174

MR CLARKE: Yes, your Honour; thank you.

*** ANNE KAVANAGH XXN MS LO

PN2175

VICE PRESIDENT HATCHER: Thank you for your evidence, Professor Kavanagh. You're excused, which means you can simply disconnect?‑‑‑Thank you.

<THE WITNESS WITHDREW [9.54 AM]

PN2176

VICE PRESIDENT HATCHER: Mr Clarke, as I understand it, you would now tender Professor Macintyre's further statement. I understand that she was not required for cross-examination?

PN2177

MR CLARKE: Yes, your Honour; I'd like to tender her statement, yes.

PN2178

VICE PRESIDENT HATCHER: The statement and report of Professor Raina Macintyre, dated 21 September 2020, will be marked exhibit B.

EXHIBIT #B WITNESS STATEMENT AND REPORT OF PROFESSOR RAINA MACINTYRE DATED 21/09/2020

PN2179

Is that all the evidentiary material you wish to present, Mr Clarke?

PN2180

MR CLARKE: There is another document. It's identified on the Commission website as supporting - in the submissions and witness statements section - submissions supporting document. It's an email from me, from 23 September, and what that includes is a further response to the department of - from the department of health to something that I had asked them and provided and - I had asked them and provided their initial answer in the bundle of materials to Professor Macintyre, which is annexed to her statement and forms part of what is tendered. There was a further response from the department of health. I'd just like to flag that I rely on that as well and I don't know if we need to tender that.

PN2181

VICE PRESIDENT HATCHER: I took that as being part of exhibit B.

PN2182

MR CLARKE: Sorry, the response from the department - the second response from the department of health didn't come until after the report had been prepared.

PN2183

VICE PRESIDENT HATCHER: I see.

PN2184

MR CLARKE: So this is the email that talks about the extent of self-isolation.

PN2185

VICE PRESIDENT HATCHER: This is dated September 23?

PN2186

MR CLARKE: That's right - it's identified on the website as, "Submissions supporting document", under the submissions and witness statements section. It's an email from me of 23 September, annexing a message from the department of health on 22 September.

PN2187

VICE PRESIDENT HATCHER: Just one sec - so it's the email from Mr (indistinct) which is the relevant document, in effect?

PN2188

MR CLARKE: Yes, that's right; the remainder of what is in that document was is already in the Macintyre bundle, if you like.

PN2189

VICE PRESIDENT HATCHER: Email from Ross Mahoney, DHHS, dated 22 September 2020, will be marked exhibit C.

EXHIBIT #C EMAIL FROM ROSS MAHONEY OF DHHS DATED 22/09/2020

PN2190

Is that everything?

PN2191

MR CLARKE: I don't know to tender the workplace - WorkCover authority email. The covering letter and the Excel spreadsheet - I'm not sure how we do that. But I certainly want to make some submissions about its contents.

PN2192

VICE PRESIDENT HATCHER: Isn't that an attachment to Professor Macintyre's statement?

PN2193

MR CLARKE: I'm sorry, it may well have been.

PN2194

VICE PRESIDENT HATCHER: It appears to be - - -

PN2195

MR CLARKE: Yes.

PN2196

VICE PRESIDENT HATCHER: - - - yes, attachment RM-10.

PN2197

MR CLARKE: Yes, I'm sorry about that, it's my mistake.

PN2198

VICE PRESIDENT HATCHER: That's all right. Is that everything?

PN2199

MR CLARKE: Everything by way of evidence but - - -

PN2200

VICE PRESIDENT HATCHER: Yes, thank you. So I think, Ms Moussa, can we turn to you now?

PN2201

MS MOUSSA: Yes, your Honour; thank you.

PN2202

VICE PRESIDENT HATCHER: I understand that none of your witnesses were required for cross-examination, is that correct?

PN2203

MS MOUSSA: That's correct, your Honour.

PN2204

VICE PRESIDENT HATCHER: You will tender the statement of Mr Bompits?

PN2205

MS MOUSSA: Yes, we do, your Honour.

PN2206

VICE PRESIDENT HATCHER: The statement of Joshua Bompits, dated 2 October 2020, will be marked exhibit D.

EXHIBIT #D WITNESS STATEMENT OF JOSHUA BOMPITS DATED 02/10/2020

PN2207

Then you tender the statement of Katrina Khoenig?

PN2208

MS MOUSSA: Yes, your Honour, and just one correction to the spelling of Katrina's surname: it's supposed to be Khoenig.

PN2209

VICE PRESIDENT HATCHER: Yes, the statement of Katrina Khoenig, dated 2 October 2020 will be exhibit E.

EXHIBIT #E WITNESS STATEMENT OF KATRINA KHOENIG DATED 02/10/2020

PN2210

Then there is Cooke, is that right?

PN2211

MS MOUSSA: Yes, your Honour, and a supplementary - yes, a supplementary statement of Mr Cooke as well.

PN2212

VICE PRESIDENT HATCHER: I'll just find that. The statement of Jay Cooke, dated 2 October 2020, will be marked exhibit F.

EXHIBIT #F WITNESS STATEMENT OF JAY COOKE DATED 02/10/2020

PN2213

Did you say there was a supplementary statement from Mr Cooke, is there?

PN2214

MS MOUSSA: Yes, your Honour; I sent this to chambers late yesterday afternoon. It's dated yesterday's date and it's simply attaching evidence in support of matters he refers to in the first statement of 2 October 2020, at paragraphs 11 and 12. So it's two attachments that are attached to that supplementary statement.

PN2215

VICE PRESIDENT HATCHER: I see, sorry. Yes, I've got that. The supplementary statement of Jay Cooke, dated 21 October 2020, will be marked exhibit G.

EXHIBIT #G SUPPLEMENTARY STATEMENT OF JAY COOKE DATED 21/10/2020

PN2216

Then there is the statement and report of adjunct Professor Eade, is that right?

PN2217

MS MOUSSA: Yes, your Honour.

PN2218

VICE PRESIDENT HATCHER: So the statement and report of adjunct Associate Professor Alan Eade, dated 29 September 2020, will be marked exhibit H.

EXHIBIT #H WITNESS STATEMENT AND REPORT OF ADJUNCT ASSOCIATE PROFESSOR ALAN EADE DATED 29/09/2020

PN2219

Is that all your evidence, Ms Moussa?

PN2220

MS MOUSSA: There is one further statement, your Honour, of Mr Alan Stokes, dated 2 October 2020.

PN2221

VICE PRESIDENT HATCHER: The statement of Alan Stokes, dated 2 October 2020, will be exhibit I.

EXHIBIT #I WITNESS STATEMENT OF ALAN STOKES DATED 02/10/2020

PN2222

MS MOUSSA: Thank you, your Honour. We'd also seek to tender as an exhibit our outline of submissions, dated 4 October 2020.

PN2223

VICE PRESIDENT HATCHER: You don't have to do that.

PN2224

MS MOUSSA: As the Commission pleases.

PN2225

VICE PRESIDENT HATCHER: So that's all the applicant evidence. So do I take it there is no evidentiary material sought to be tendered by any of the employer respondents?

PN2226

MR ARNDT: That's correct from us, your Honour.

PN2227

MS BHATT: Nothing from Ai Group.

PN2228

MS LO: Nothing from AFEI - sorry.

PN2229

VICE PRESIDENT HATCHER: So that's all the evidence. Are we ready to commence closing submissions now?

PN2230

MR CLARKE: I'm happy to, your Honour, if you wish.

PN2231

VICE PRESIDENT HATCHER: Go ahead, Mr Clarke.

PN2232

MR CLARKE: Thank you. What we've sought to do is provide the best information we can to assist in examining the issues that were raised in that 17 August statement. We address most of it in the written submissions but some information from the Victorian department of health, which I've just referred to, which was marked, I think, as exhibit C, was referred to - was received after those submissions were filed. I'd like to refer to that and put that into context by reference to other information also received from the Victorian department, Victorian government department of health that's before you.

PN2233

We say that's material that is primarily relevant to workers covered by schedules B and E of the award. I'd like to start with information, as I say, from Victorian department of health - firstly, a document that's titled, "Protecting our healthcare workers." It's part of Professor Macintyre's statement. It was also separately provided to the Commission by the Victorian department of health on 29 August. I'll just find it. But it is within Professor Macintyre's statement and it's the glossy government document titled, "Protecting our healthcare workers."

PN2234

VICE PRESIDENT HATCHER: Yes.

PN2235

MR CLARKE: That's current as of 23 August and in that document the department of health expresses the view that 66 per cent of healthcare workers were among - healthcare worker infections were among aged care workers or disability workers. That's at page 7 of the document. It also said that aged and disability carers infected with COVID were more likely to have acquired it in their workplace settings than other types of healthcare workers. That's at page 2 of the document.

PN2236

As at that date - late August, 23 August - 84 per cent of cases among aged care and disability care had been investigated and 90 per cent of those that had been investigated were found to have been acquired at work. That's on page 6 of the document. So we say that's some evidence about the virus circulating in workplaces and in homes, in the case of aged home care, where work covered by the award is performed. But additionally, in that document, the department - - -

PN2237

VICE PRESIDENT HATCHER: Sorry, Mr Clarke - (indistinct) the problem is the roles of disability workers with aged care?

PN2238

MR CLARKE: That's right - I'm not hiding from that. I acknowledge that, yes.

PN2239

VICE PRESIDENT HATCHER: Yes, all right; go on.

PN2240

MR CLARKE: Additionally, in the document, the department also expressed the view that in the second wave of infection at least 69 per cent of healthcare workers have been or were likely - healthcare cases - were likely to have been workplace-acquired, and that's on page 2. So it's margin of 21 per cent between aged care and disability carers as a group on one hand, versus all healthcare workers on the other, in relation to workplaces. Even though it's not disaggregated, it's simply not correct to suggest - as the Ai Group do - there is no evidence of the extent to which there are workplace-based transmissions as opposed to community transmissions among this workforce.

PN2241

As to the reasons why healthcare workers were infected in their workplaces, three reasons are given in that document, being that there was an outbreak at the location or they had contact with a confirmed case at work or they worked in an environment with a high case load. I'll come back to the distinction between exposure to an outbreak at a location and close contact with a confirmed case when I address you about the disaster relief payment. Suffice to say for present purposes, there is a distinction drawing that document and elsewhere.

PN2242

But to pick up your point, your Honour, the figures don't distinguish between aged carers and disability carers; nor do they distinguish between types of disability carers, such as those in residential facilities and those working in client homes. Nor do they distinguish between types of aged carers, such as those providing home care or those working at an aged care home or some of those who do both. We accept that. But it's not the only piece of information from the department.

PN2243

The department also told us on 25 August - this is reproduced in Professor Macintyre's statement and is the tail end of the email chain in exhibit C - that there were 56 home care workers who had contracted the virus and 101 workers in residential disability care facilities not including supported residential services. That's on 25 August. We also know that as of 14 September the department gives us in exhibit C a figure of 424 close contacts at residential disability facilities who had to self-isolate. If you go past the number and read the text, it was said that this figure excluded close to half of the disability facilities where there was an outbreak.

PN2244

Lest there be any confusion about why the self-isolation arose, I refer you not only to the 90 per cent figure for workplace acquisition I referred to a moment ago but also the department's statement that this figure also excluded disability worker close contacts that related to cases in the community. So these are workers asked to self-isolate because of close contacts at work. It also excludes the workers who did in fact ultimately test positive. I just pause there for a moment to note that there was no direct evidence at all about the levels of self-isolation when the entitlement was introduced in residential aged care sector that the propensity for self-isolation was inferred in that decision.

PN2245

In relation to the figures concerning the NDIS workforce, we accept that further figures were released after our submissions were filed. That's raised in the employers' submissions. The last cumulative figure was published on 1 October, which was 380 cases, of which 209 were workers and only three active worker cases as at that date. We've set out in our submissions why we say there is some overlap between the NDIS workforce and the coverage of the award. We've also set out where the NDIS worker statistics don't represent all the workers covered by the award, by reference to the home care statistics provided by Commonwealth and state authorities and also in relation to around half of the residential disability care facilities in Victoria that aren't reflected in the NDIS infection numbers.

PN2246

It should be noted also that the letter addressed to you, Vice President, on 21 August in the Commonwealth department, which also forms part of the Macintyre bundle, if you like, expressed the view that there was likely some under-reporting in the home care sector. Of course the other source of data was the Victorian WorkCover authority data. That data was provided in terms of the four-digit AMSIC codes and the two codes - we chose to have some alignment with the work performed under the award; in particular, schedule B and C was 8609 and schedule E and also schedule B in the case of 8790.

PN2247

Of course that is - the WorkCover authority data is of course - it's only a snapshot. It's of notifications over a 10-day period. But we don't accept that because of that, it just needs to be ignored. Surely the fact that 133 workplaces reported at least one infected workers in these settings in attendance in that short period - that has got to count for something. Professor Macintyre describes the industries covered by AMSIC 8609 and 8790 as having a moderately-elevated risk - more than that of hospitals, based on that data. Now, she fully discloses the caveats that need to be placed on the data in her report and as does the authority in its covering letter.

PN2248

To the extent that it suggested that the Professor's description of moderately elevated is an inappropriate one - that's a suggestion that's made by the AFEI - I really point out that they could have cross-examined her about that. But they didn't and her evidence shouldn't be criticised in that way. We say that taking the data together there is certainly enough to show that an elevated risk manifested in work covered by the award. We accept that the number of active cases followed a curve and that the rate of new infections is not as high as it was. But that really brings us to the issue of whether the test we need to meet regarding infection levels is what clearly has manifested versus what is clearly manifesting right now. It seems to us that it can only sensibly be the former, because it's almost impossible to schedule a matter so that it comes before you on hearing day at the highest point of the curve in a particular industry.

PN2249

We'd submit that the Commission should be guided by the logic that it's happened once. So it could happen again. There is, we would submit, an acceptance of that logic at paragraph 60 of the decision on 27 July relating to interstate differences and perhaps also in the provisional view expressed in relation to the extension of the Aged Care entitlements in the statement of Tuesday of this week. But on top of what you've heard - you know, you've heard what Prof Kavanagh had to say about prevention and I'd also refer you to what Prof Kavanagh had to say about prevention and I'd also refer you to - so what Prof Kavanagh said about, sorry, prevention and the behaviour of the virus and the capacity for it to spread in these settings and I'd also refer you to Prof MacIntyre's unchallenged evidence in the earlier hearing to the effect that, you know, the pandemic may persist for two or more years, or two to five years and that the level of infection can escalate quickly.

PN2250

I'd invite you in particular to refer to the transcript of 26 June hearing. The evidence of Prof MacIntyre gave, I'd mention in particular the following paragraphs, 1260, 1266, 1268, 1289, 1303 to 1304, 1310, 1320 to 21, 1335 and 1380 in that regard about the behaviour of the infection and how it can escalate quickly. So that's what we would say about the level of infection and quarantine and the manifestation of risks in actuality.

PN2251

On the issue of an entitlement to casual employees, which is where the issue of a threat to the resilience of the care system comes into it, again, we can't say that the system of care is about to fall over imminently. Neither could Prof Kavanagh when she made the recommendations that she did. What we can say and what the Full Bench evidently accepted in the provisional views it expressed in the statement of 22 July was that the threat to the resilience of the system of care follows on from the manifested elevated level of risk.

PN2252

The inherent logic and that, of course, extends to the notion that the resilience of the system of care involves how well the system can do its job of providing that care. And if there is a prospect of vulnerable care recipients being exposed to elevated risk, that's a problem in our submission. Other than that, I think we've said all we can say about that in the written submissions, the short point being firstly that with about 40 per cent of the work force covered by the award being casual, you might be failing to realise the benefits of the clause in this sector if you don't apply to casual at all, and secondly, the policies adopted by the government such as the (indistinct) suggest some appreciation of the risk to the (indistinct) by virtue of the virus and the nature of the work performed.

PN2253

On the issue of the government claimants, we accept that an isolation claimant is available in Victoria and New South Wales, Tasmania and Western Australia and it would be payable in some of the instances where the leave that we've proposed is intended to be available.

PN2254

Governments target their policy measures in whatever way they consider appropriate, but in these proceedings, the job is to set a safety net. It's antithetical to the concept of a safety net to design it with an acceptance that it will involve people being left behind or missing out. But there are plenty of examples of how people could miss out, not full income replacement or because of ineligibility. As we pointed out in our earlier submissions and the submissions that includes the United Workers Union submissions. In Victoria, you need to have been directed by the Department of Health or one of their agents to self-isolate for a particular reason to get the payment.

PN2255

Leaving aside the care of children, it's when you've got the virus or when you are a close contact of a confirmed case and we heard in our - close contact a term of art in the earlier proceedings. You can be directed to self-isolate because the Department of Health identifies that you have been exposed to an exposed to an exposure site, but that's not covered in the disaster payment.

PN2256

Secondary job; not covered. On partial income support, like 9 per cent of the respondents to Prof Kavanagh's survey; not covered. Additionally, under the similar scheme in the ACT, on the AI Group's own evidence, there's an additional disqualification that if you've got $5000 in the bank you're out. And once again, who knows when their payments actually going to be made.

PN2257

Exposed to a suspected but not a confirmed case, not covered. Some other breach where the employer wants to be cautious and sends the worker home and tells them to get tested; not covered. That's not a safety net.

PN2258

VICE PRESIDENT HATCHER: Thank you, Mr Clarke. (indistinct) organisations haven't been able to find any data about the extent to which these payments have been made (indistinct) and there's no publicly available data about that.

PN2259

MR CLARKE: Only the data that's been provided voluntarily to this bench by the departments. I think that the data in relation to Victoria was about two-thirds of the applications for pay.

PN2260

Now, on the issue of funding and NDIS funding, or funding generally, I should say, I know issue is taken with what we say about the availability of the home care funding being built into the aged care funding, which was previously addressed in the earlier proceedings. There is no disagreement with that. Nothing is said about the cost impost by the employers in the crisis accommodation sphere.

PN2261

The submission of the employer groups is essentially confined to the NDIS and it's that, well, they can't recover the cost, because they can't increase their prices. Now, the expert panel that hears that annual wage review every year hears that argument from pretty much every employer association every year. They can't recover their costs because they can't increase their prices. In that context, in the annual wage review context, it's said that the market sets the price and it's immutable. In this case it's said that the government sets the price and it's immutable.

PN2262

In truth, we'd suggest that neither are immutable. In our view it cannot be the case that the NDIS funding arrangements are the silver bullet or silver torpedo that sink every effort to progress the safety net for this workforce. And I refer you to - and Clancy DP would be familiar with this decision as will the employers who ignored it in their submissions. It's [2019] FWCFB 6067 at paragraphs 133 to 142. I don't need to read it to you. The short point is essentially, yes, cost is a relevant consideration, but you can't have the tail wagging the dog. The NDIS funding model can't dictate the Commission's statutory function. There is a problem with the NDIS funding model. That's to be addressed elsewhere.

PN2263

And we'd point out that obviously, certainly at the very least in the modern awards sphere in section 157, relief is not limited to claim. What we have advanced is a claim that's consistent, in our view, with what's been sought in aged care and we genuinely see merit across workforces - merit in equity across workforces.

PN2264

But if the Commission is otherwise convinced of the merit - the general merit in what we are seeking but persuaded that some adjustment needs to be made on the basis of cost to the NDIS employees, we're obviously open to hearing it and expressing some view about any provisional finding that might be made in that regard. I mean, we don't need a lot of imagination that a lump sum top up payment for the difference between any government payment and rostered work or average hours over a quarantine period, for example. Accident pays an allowance. A similar thing paid by a lump sum might be an allowance too. But, you know, the Commission shouldn't approach this on the basis that it's a strict - "Is the form of order justified in terms that the union sought it?" "No, it's not. We think that maybe something different is, so go away."

PN2265

Also on the form of order, and I note that it's raised in the submissions of the Ai Group that there's some departure between what we propose here and the 8 July decision, which didn't grant any claims. I'd remind the Commission that, of course, there was a later decision and quite a bit of thought was put into the drafting of the order in the aged care industries and obviously from our point of view, the more recent decision on the point is the one that matters.

PN2266

Finally, I might raise the issue of the duration of the entitlement, if I may. Clearly, the employers have approached the issue on the basis that the entitlement that we are seeking will extend beyond next Friday. The draft determination said the 29 October date and it did - can I address you about that now or is it - - -

PN2267

VICE PRESIDENT HATCHER: Yes.

PN2268

MR CLARKE: Yes. Okay. Our preferable position, based on the expert evidence is that pandemic relief is needed for as long as the pandemic exists. Because the evidence is, and I took you to Prof MacIntyre's evidence earlier and you heard what Prof Kavanagh had to say, that we might have waves for quite some time, particularly in these high-risk settings and it's difficult to predict if and when we might get them. So you can either reassess periodically, you know, when the pandemic might end or we can just be done with it and say the entitlement applies until further or other order and intervene to remove it when you reach that point when it is over.

PN2269

You know, to be blunt about it, we do see some tension between the need to demonstrate harm before being able to justify prevention, but that's settled now and we can agree to disagree about the merits of it. But surely we shouldn't be put to proof to show more harm at set intervals during a continuing pandemic in order to maintain that preventative measure (indistinct) test once at an earlier stage during the pandemic. So subject to what my colleague would say, that's the case on behalf of the applicants in relation to the social and - to the SCHADS Award. And I indicate as we do in our written submissions our support for the application in relation to the Ambulance and Patient Transport Award.

PN2270

VICE PRESIDENT HATCHER: Thank you. Ms Moussa are you next?

PN2271

MS MOUSSA: Yes, your Honour. Thank you. So we support the - although it's in relation to a different award - the submissions made by the ACTU to the extent that this general application and arguments made around the modern awards objective and the application of the Commission's findings since the proceedings have been on foot.

PN2272

So by way of brief introduction, I just want to clarify the reason for the second, the new application filed on behalf of Joshua Gomperts and outlined in our outline of submissions. Alan Stokes resigned his employment and as a result Mr Gomperts has brought this application but seeks to rely on all the evidence filed to date in these proceedings on behalf of Mr Stokes.

PN2273

The application made by Mr Gomperts is generally on the same terms as was made by Mr Stokes, which was dated 16 April, except to the extent that the draft determination attached to this application mirrors the terms of the determination inserted into the Aged Care Award. And we address the determination itself at paragraphs 40 to 42 of our written submissions dated for 4 October 2020.

PN2274

In terms of the end dates of the relevant determination, we would submit that our preference is that we would have the end date aligned with the other awards which currently have the relevant entitlement, namely the Aged Care Award, the Nurses and the Health Professionals and Support Services Award, but we note the decision from the Full Bench a couple of days ago in relation to Schedule Y and the provisional use set out in their decision, which is [2020] FWCFB 5578 where it was proposed to extend the schedule to 29 March 2021.

PN2275

In the event that the Commission was minded to grant our application we would be amenable to having the end date of the determination aligned with the other health sector awards that currently have Schedule Y.

PN2276

So having said, given that brief introduction, the purpose of our outline of submissions was to address and what I will do today in summary form is address the provisional view of the Commission in its 17 August statement that it was not necessary to vary the Ambulance and Patient Transport Industry Award on the terms sought, citing the three matters germane to its conclusion, including insufficient data concerning the extent of COVID-19 infections in the non-emergency patient transport sector, which I will refer from here on in at the NEPT sector, the absence of material before the Commission of a demonstrated threat to the resilience of the system of care in the non-emergency sector which would justify a paid pandemic leave for casuals and the lack of material before the Commission about the efficacy of the pandemic leave disaster payment for Victoria and whether or not that payment may be an acceptable substitute for a paid pandemic leave entitlement.

PN2277

So in support of his applications, Mr Gomperts has produced evidence which addresses all three matters and in a way which supports the conclusion that the proposed variation sought is now necessary and not merely desirable to achieve the modern awards objectives in relation to the Ambulance and Patient Transport Industry Award.

PN2278

Addressing the extent of the COVID-19 infections in the Ambulance that Patient Transport Industry, so our outline of submissions identifies and we rely on data produced by the Department of Health and Human Services, which I will refer to as DHHS which confirmed 41 infections in the ambulance and patient transport industry of workers in that industry since mid-July this year and the findings indicating that those infections were likely from occupational exposure.

PN2279

We note this number is actually higher than the number of notifications reflected in the WorkSafe data which was produced as part of these proceedings, but note that our expert, Adjunct Associate Prof Eade - who I will refer to as Prof Eade - speaks to why this might be the case in his expert report which is attachment AE4 to his statement.

PN2280

So the upshot is there has been a clear manifestation of the risk of COVID-19 infections in the ambulance and patient transport sector. And this figure actually represents 10.5 per cent of the other health care worker data described in the DHHS health care worker data in its publication, which is referenced in Prof Eade's expert report.

PN2281

We argue that in addition to the number of infections within the industry the Commission's focus should also be on the likelihood and frequency with which employees may be required to self-isolate in this sector. So it's the combination of the risk or the number of COVID-19 infections coupled with the risk that these workers face to have to self-isolate for the duration of a pandemic, which supports the necessity for a paid pandemic leave entitlement in this industry.

PN2282

As previously submitted by us in our 30 July 2020 submissions and as confirmed by Prof Eade, non-emergency patient transport staff move across the health care system and a range of healthcare settings which includes the aged care setting, the hospital setting and other health care settings in performing their work. They are therefore exposed to the same risks that other health care workers are exposed to, including secondary transmission of COVID‑19 while working in these setting. And, in particular, we note Prof Eade mentions that non-emergency patient transport workers in Victoria have been increasingly used by the Victorian government during the pandemic to transport patients and act as a surge support for Ambulance Victoria, in particular for the relocation of residents from residential aged care facilities, supported residential accommodation services and quarantine accommodated services.

PN2283

We draw the Commission's attention to the recent submissions of the Honourable Tim Pallas dated 19 October 2020, which confirms that between 17 July 2020 and 22 September 2020 there has been 440 transfers of residents from aged care facilities facilitated under the DHHS and Victorian Aged Care Response for the arrangements for Coronavirus.

PN2284

Importantly, this number does not include transfers arranged directly between non-emergency patient transport providers or direct Triple 0 calls or non-emergency bookings made by residential aged care services.

PN2285

We also note Prof Eade's comments in this report about the increased use of non-emergency patient transport providers under the state health emergency response plan arrangements in place which predated COVID, but have since been kicked into effect post-COVID.

PN2286

Notably, Prof Eade identified that there has been a change in the treatment of non-emergency patient workers from the department's perspective in respect of PPE, so that non-emergency patient transport workers are now being treated on the same level as emergency service workers in respect of PPE and infection control requirements.

PN2287

The evidence produced by the applicant into other lay witnesses in these proceedings confirmed the frequency of having to self isolate, in particular where there have been PPE breaches where the patient's conditions during transport has been unknown and, as a result of that, they have worn inadequate PPE during transport. This risk, we submit, is likely to increase in the summer months where heat stress and exhaustion may lead to further PPE breaches and I note that the AU were currently working with the Department of Health and WorkSafe to work on ways to address potential PPE breaches as we move our way into summer.

PN2288

So given this information, as in our submission, the extent of COVID-19 infections within the Ambulance Industry combined with an understanding of a risk which gives rise to the frequent need to self-isolate which we address in further detail in our outline of submissions demonstrates the necessity for paid pandemic leave of the kind set out in the draft determination to Mr Gomperts' application.

PN2289

In terms of the evidence provided addressing the concerns of the Commission regarding the threat to the resilience of the system, if casual employees in the sector are not provided with paid pandemic leave, we have in our evidence and in our submissions identified and obtain information from four non-emergency patient transport providers in Victoria, which confirms the number of percentage of the casualisation of their workforce. It works out to be approximately 55 per cent of the non-emergency workforce which is casualised, which is significantly higher than the national average of 24 per cent as noted by Prof Eade in his report.

PN2290

Prof Eade also confirms that he is aware in his capacity as the chief paramedic officer at Safer Care Victoria and, from what he understands, have been notified to the Department of Health that non-emerg providers have reported staff needing to self-isolate or being furloughed with one employer in particular confirming that 10 employees self-isolated for two or more weeks and estimated that 80 per cent of their workforce had been tested.

PN2291

So on each occasion that these employees had to be tested, they had to self-isolate. So noting the casualisation of the workforce, we can infer that there is a significant number of that 80 per cent who were casual employees.

PN2292

Separately, another employee confirmed that as a result of COVID-19 and the furloughing and self-isolation of their staff, they were unable to fulfil contractual obligations to provide non-emergency patient transport services which was a result of the more than 400 hours of directed leave and 4500 hours of personal leave taken by their staff during the pandemic.

PN2293

So what this illustrates - - -

PN2294

VICE PRESIDENT HATCHER: So, Ms Moussa, where's that evidence?

PN2295

MS MOUSSA: That evidence is in Prof Eade's expert report. I can get you the pin point reference. So it's attachment AE4, page 8 and the second example I refer to is also at attachment - - -

PN2296

VICE PRESIDENT HATCHER: Sorry, attachment - yes. So what was that attachment again?

PN2297

MS MOUSSA: Attachment AE4.

PN2298

VICE PRESIDENT HATCHER: Yes. A4 and page 8, was it?

PN2299

MS MOUSSA: Page 8, yes. And both examples I've just referenced are on page 8.

PN2300

VICE PRESIDENT HATCHER: Yes. Thank you.

PN2301

MS MOUSSA: So the reference to not being able to fulfil contractual obligations means that there has been shifts that have not been covered that these providers or this provider in particular was not able to cover during the pandemic.

PN2302

The three May witnesses who have provided evidence in this proceedings in support of both the Stokes application and Gomperts application confirm the need to self-isolate on more than one occasion and both Mr Gomperts and Mr Cook are casual employees.

PN2303

VICE PRESIDENT HATCHER: So is there any evidence of any COVID infections in non-emergency patient transport?

PN2304

MS MOUSSA: There is. So we are advised by Prof Eade that the 41 - the number of 41 infections includes patient includes patient transport workers. Unfortunately, and this is noted in Prof Eade's report at page 6 and 7, that there was no delineation at the time that the data was collected between emergency and non-emergency patient transport, but he confirms that that 41 includes non-emergency patient transport as well as emergency workers.

PN2305

VICE PRESIDENT HATCHER: How does he know that?

PN2306

MS MOUSSA: In his capacity as chief paramedic officer. The reference to the delineation or the characterisation of the 41 persons is reference as ambulance and patient transport workers.

PN2307

VICE PRESIDENT HATCHER: Well, that's the categorisation, but does he say that any of them are NEPT?

PN2308

MS MOUSSA: It doesn't delineate between emergency and non-emergency but Prof Eade has confirmed that, in particular - - -

PN2309

VICE PRESIDENT HATCHER: Where does he say that?

PN2310

MS MOUSSA: On page - where I referred to the number of infections.

PN2311

VICE PRESIDENT HATCHER: So page 7?

PN2312

COMMISSIONER LEE: The bottom of page 6. Ms Moussa - it's Lee C here - where you - where the professor says that there will be a delineation in the data in the future, is that right?

PN2313

MS MOUSSA: Yes.

PN2314

COMMISSIONER LEE: We don't know when that starts, that delineation?

PN2315

MS MOUSSA: No. There hasn't been an update on the health care worker data, the page where this information is publicly available to make - - -

PN2316

COMMISSIONER LEE: Yes.

PN2317

MS MOUSSA: - - - try to identify that there's been any change yet.

PN2318

COMMISSIONER LEE: Yes.

PN2319

VICE PRESIDENT HATCHER: (Indistinct) I'm still trying to find the reference Ms Moussa.

PN2320

MS MOUSSA: Can I take your Honour to page 11, which is the conclusion drawn by Prof Eade where he says, in the fourth-last paragraph on page 11, "There have been NEPT staff - - -

PN2321

VICE PRESIDENT HATCHER: Hold on. Hold on.

PN2322

MS MOUSSA: Sorry.

PN2323

VICE PRESIDENT HATCHER: Page 11. Yes.

PN2324

MS MOUSSA: The fourth last paragraph above the box at the bottom of the page where he says:

PN2325

There have been NEPT staff confirmed as positive cases with their infection likely to be obtained through occupational exposure.

PN2326

VICE PRESIDENT HATCHER: What is that notion based on?

PN2327

MS MOUSSA: My understanding is that that notion is based on the reference to the 41 health care workers.

PN2328

VICE PRESIDENT HATCHER: On page 6?

PN2329

MS MOUSSA: Yes.

PN2330

VICE PRESIDENT HATCHER: I still don't get from page 6 how we can tell that there's been any (indistinct).

PN2331

MS MOUSSA: The Victorian Ambulance Union has been advised by the department that that 41 includes both emergency and non-emergency patient transport workers.

PN2332

VICE PRESIDENT HATCHER: The data covers both groups, but - Ms Moussa, your microphone has cut out.

PN2333

MS MOUSSA: Can you hear me?

PN2334

VICE PRESIDENT HATCHER: Yes. So the data covers emergency and non-emergency paramedics and has come up with the total number of 41. Now, I still don't understand how one can derive from that any knowledge as to whether any of them are non-emergency patient transport people. That's just a group of people from which the data was derived, wasn't it?

PN2335

MS MOUSSA: With the reference by Prof Eade to that data and his conclusion which he reaches on page 11 comes the reference to the need for - or confirmed reports to both himself in his capacity as the chief paramedic officer and the Department of Health and Human Services of staff being furloughed or having to self-isolate we take as evidence that there have been COVID-19 infections in non-emergency patient transport workers - of non-emergency patient transport workers. I also take - I mean, in terms of numbers it's not indicative, but the statement of Katrina Khoenig at paragraph 10A of her statement, she references a colleague of hers which - who had tested positive to COVID-19.

PN2336

VICE PRESIDENT HATCHER: What paragraph was that?

PN2337

PN2338

MS MOUSSA: Paragraph 10A on page 2 of her statement.

PN2339

VICE PRESIDENT HATCHER: We might - we understand when she says "colleague" to have been a St John's Ambulance colleague, is that - - -

PN2340

MS MOUSSA: That's correct. Yes.

PN2341

VICE PRESIDENT HATCHER: All right. Thank you.

PN2342

MS MOUSSA: So in relation to the information provided, regarding the casualisation of the non-emergency patient transport industry, which is referred to in Prof Eade's report and the frequency with which casual staff have had to self-isolate and we refer to the evidence of the applicant and Mr Cooke, who have each had to combine between three and four occasions - sorry, have each had to self-isolate on a combined three to four occasions, the Commission can be left with no other view, in our view, that the resilience of the system would be threatened if casual employees don't receive a paid pandemic leave entitlement. I refer to - at the further detail regarding this submission which is outlined at paragraphs 28 and 29 of our outline of submissions.

PN2343

VICE PRESIDENT HATCHER: Thank you.

PN2344

MS MOUSSA: In relation to the efficacy of the support payments, my colleague, Mr Clarke, referred to previous submissions made by the ACTU regarding the efficacy of the paid pandemic leave disaster payment, which was considered as part of the Commission's decision in its 27 July decision. We have provided and filed lay evidence in support of the statements - sorry, in the form of statements by the applicant or from the applicant Mr Cook, identifying gaps in both the eligibility of non-emergency patient transport to access these workers and the ability to access the payments, which demonstrates a limitation on using these payments as a substitute for paid pandemic leave. We submit that the view formed by the Commission at paragraph 51 of its 27 July decision, citation [2020] FWCFB 3940, remain relevant here.

PN2345

It's clear from the evidence, which is outlined at paragraphs 33 to 38 of our outline of submissions, that the payments simply don't cover all of the situations where an employee might be required to self-isolate and the statement of the applicant in particular addresses the situations where he was unable to obtain access to either the testing payment or the paid - sorry, the pandemic leave disaster payment for Victoria.

PN2346

So taking that information into account in the evidence filed in response to that question of the Commission from its 17 August statement, we submit that in response to the Commission's questions regarding whether paid pandemic leave - sorry, whether the pandemic leave disaster payment can operate as an acceptable substitute for paid pandemic leave, based on the evidence filed, the answer is no, it can't be.

PN2347

Moving the modern awards objective, as has been said by the ACTU, the most relevant considerations for the determination of the applicant's application are those made by the Commission at paragraph 128 to 129 of its 8 July decision, citation [2020] FWCFB 3561 and paragraphs 46 to 49 of its 27 July decision. We also refer to findings at paragraph 60 of the Commission's decision - 27 July decision, citation [2020] FWCFB 3940.

PN2348

With reference to the considerations of the Commission at paragraphs 128 to 131 of its 8 July decision, we submit that there is now clear evidence of an elevated risk to non-emergency patient transport workers of both the actual or suspected exposure to infection which has clearly manifested itself in reality.

PN2349

We reiterate that the relevant considerations are sections 134(1)(a) of the Fair Work Act and confirm that persons employed under the Ambulance Award are low paid. We previously filed evidence in these proceedings confirming that fact.

PN2350

The people employed in this sector are at an elevated risk of contracting - of being required to self-isolate in Victoria and more than once and on multiple occasions. For these persons, like those persons employed in the aged care sector, the requirement to self-isolate is primarily to prevent the spread of infection to patients and or colleagues, such that it could be said to be in the public interest to grant the paid pandemic leave entitlement. This risk has manifested itself in the non-emergency patient transport sector.

PN2351

For these employees, including the applicant, the absence of paid pandemic leave entitlement or access to other leave entitlements, they bear the cost of having to self-isolate and this cost is to offset by existing government support payments. This has placed the applicant and other low paid employees in financial difficulty.

PN2352

For these reasons, there is a real risk that employees who do not have access to leave entitlements might not report COVID-19 symptoms which might require them to self-isolate, but rather seek to attend work out of financial need. Like the aged care workers and as confirmed by Prof Eade in his report, non-emergency patient transport workers are considered front line workers in the same way as emergency ambulance workers and other health care workers are.

PN2353

This sector is an integral part of the provision of pre-hospital care and transportation and the establishment of paid pandemic leave entitlement for such workers is necessary to support them in this critical work.

PN2354

In relation to section 134(1)(f) or the Fair Work Act we submit that the introduction of a paid pandemic leave entitlement is unlikely to increase costs on employers and I note that no employer party to date in these proceedings has opposed the application made by either Mr Stokes or Mr Gomperts. We say it is unlikely to increase costs on employers on the basis that it will simply standardise the approach that's already been adopted in this industry where the public sector employer and some non-emergency patient transport providers are already providing special paid leave entitlements for people who have to self-isolate. We say this is in recognition of the likelihood of the risk of contracting COVID for people working in this industry and the recognition that they will have to self-isolate on more than occasion.

PN2355

We also submit that the introduction of this entitlement will assist to improve the sustainability and productivity of the non-emerg sector whose workforce is already suffering from fatigue associated with working in high-risk settings and the statement of Mr Gomperts actually confirms that employees have started dropping shifts, because of the fatigue associated with working at the moment or in the last couple of months.

PN2356

It will improve the sustainability and productivity of the sector by removing the financial burden imposed on both casual and permanent employees who may have exhausted their personal leave entitlements having to self isolate without financial support.

PN2357

Based on those submissions, if there are no further questions, that concludes our submissions. I might just say in closing that while we acknowledge that the infection numbers have slowed in Victoria since the making of our submission, but this shouldn't detract from the necessity of improving the safety net for all the reasons that Mr Clarke mentioned.

PN2358

There has been a confirmed number of COVID-19 infections and we say that is supported by the statement of Prof Eade and the evidence that we have produced regarding the persistent risk of infection faced by non-emergency patient transport workers, including the associated need to repeatedly self-isolate is indicative of the need to include a paid pandemic leave entitlement in the Ambulance and Patient Transport Industry Award.

PN2359

VICE PRESIDENT HATCHER: Thank you, Ms Moussa.

PN2360

MS MOUSSA: Thank you.

PN2361

VICE PRESIDENT HATCHER: Right. Mr Arndt, are you going next?

PN2362

MR ARNDT: Vice President, I believe Ms Bhatt has indicated that she will go first.

PN2363

DEPUTY PRESIDENT CLANCY: Okay. Ms Bhatt.

PN2364

MS BHATT: Thank you, Vice President. Thank you, Mr Arndt. As members of the Full Bench will recall on 17 August the Commission expressed a provisional view about the unions' claims to vary the Social Community Home Care and Disability Services Industry Award to introduce the proposed entitlement to paid pandemic leave. That provisional view was that the material before the Commission at that time was not sufficient to demonstrate that it was necessary to vary the award in the manner proposed and in essence it's Ai Group's position that the additional material that's been put before the Commission by the union since that time doesn't warrant a departure from that provisional view. In particular, we say that the material doesn't satisfactorily address the matters that the Commission identified as being germane to its provisional conclusion and we say that there are a raft of other matters which should similarly lead the Commission to conclude that the proposed provisions should not be inserted in the award. Those reasons are set out in - - -

PN2365

VICE PRESIDENT HATCHER: Ms Bhatt, you said "award" singular. Is this directed only at the SCHADS Award or does it cover the Ambulance Award as well?

PN2366

MS BHATT: That's right, Vice President.

PN2367

VICE PRESIDENT HATCHER: Which is right? Are you addressing both of the awards?

PN2368

MS BHATT: Only the SCHADS Award.

PN2369

VICE PRESIDENT HATCHER: Thank you.

PN2370

MS BHATT: Our submissions are set out in the written submissions we filed on 10 August and 16 October and we continue to rely on both of those. For the purposes of my submissions today, I will start by dealing with the three matters that were identified in the Commission's statement of 17 August as being particularly relevant to its provisional view and then I will come very briefly to the other relevant reasons why we say the claims shouldn't be granted.

PN2371

The first matter that was raised by the Commission in its statement was that there was insufficient data concerning the extent of COVID-19 infection in disability, aged home care and crisis accommodation. And in our submission that remains the case.

PN2372

On the evidence of Professors Kavanagh and MacIntyre, there is no single source of truth as to the extent of infection in the relevant sectors. There is some piecemeal information before the Commission from various sources, much of which we've dealt with in our written submissions and I won't repeat, but I will say that the Victorian government department documentation that was tendered today with Prof MacIntyre's statement contains various statistics which Mr Clarke referred to. It appears that all of that data relates to either health workers generally or to aged and disability care workers collectively, which was identified by the Vice President earlier and we say that that seriously undermines the extent to which the Commission can rely on that information to reach a conclusion about the relevant sectors covered by this award that it relevant to the claim.

PN2373

We say that the totality of the material that is before the Commission in respect of this matter demonstrates four key propositions. The first is that the extent of infection in the relevant sectors has been considerably lower than the residential aged care sector and we've dealt with that in our submission at the most recent submission we filed at section 4. And I'd add to that by saying that the evidence of Prof MacIntyre is that the rate of notifications to the Victorian WorkCover authority from the residential aged care sector was eight times as high as the rate of infections from the sectors deemed to be relevant to the SCHADS Award.

PN2374

The second key proposition is that the extent of infection amongst the workforce in the relevant sectors in Victoria has been less prevalent than a range of other sectors covered by other modern awards such as child care, education, accommodation and, indeed, construction.

PN2375

Thirdly, that the extent of infection amongst the NDIS workforce outside of Victoria has been extremely low. On the ACTU's submissions the available data indicates a maximum of four such cases. I accept of course that that's within the time period that that data relates and fourthly, as at 21 August, the disability sector accounted for only 1.3 per cent of total outbreaks in Victoria and that's evidence from correspondence from the Victoria government to the Commission dated 26 August.

PN2376

As for the extent of self-isolation (indistinct) before the Commission about the extent to which employees covered by this award have been required to self-isolate. The ACTU submits that the Commission should draw an inference that a proportion of the notifications from employers to the Victorian WorkCover authority would have resulted in some employees being required to self-isolate.

PN2377

I think the first thing we would say about that is that those notifications relate to a broader cohort of employees than those that are in the relevant sectors and we've explained why in our written submissions. So that potentially means that the data overstates the extent to which that group of employees might have been required to self-isolate. But beyond that, nothing is known about the extent to which those notifications or those incidents did in fact require other employees to self-isolate. I mean, I'd give the example of a disability support worker who doesn't work in a group home, but works with individual clients in their own home and therefore might not have any or very limited contact with other employees of that employer.

PN2378

We don't know anything about the period of time for which the employee was required to self-isolate and, of course, we don't know anything about the impact of that self-isolation on any such employees.

PN2379

Mr Clarke has also today tendered email correspondence from the Victorian Department of the Health and Human Services which were filed on 20 September. That email states that there was a number of staff close contacts at disability residential services. We say that that material can be given limited weight by the Commission.

PN2380

Vice President, before I go on, I'm getting a sign on my screen that says, "Bad network quality" and that there might be an issue. Can I confirm that the Commission can hear me before I plough on?

PN2381

VICE PRESIDENT HATCHER: I can hear you very well, Ms Bhatt.

PN2382

MS BHATT: All right. Thank you. The reason we say that that material can be given limited weight is firstly because it's not in evidence and, as a result, we've not been able to test the veracity of the scope of the information that's been provided. It is not clear on the face of that document how that information was compiled.

PN2383

I think there's a statement in that email that says that this is not data that is regularly measured or information that is collected as a matter of course by the department, but they have endeavoured to obtain the relevant data. But it is not clear what methodology has been utilised or what database has relied upon. It's not clear how close contacts of been defined. I think Mr Clarke said earlier today that's sometimes a term of art.

PN2384

It is again not clear if they are all required to self-isolate, if so for how long and what the impact on them was. And, of course, neither source of information says anything about the extent to which employees in other states and territories have been required to self-isolate.

PN2385

We say that in light of all of this, the evidence does not support the proposition that the alleged elevated risk of the relevant employees being infected with COVID or being required to self-isolate due to or in the course of the employee's employment has manifested itself in a discernible way. And, as we said in our written submissions, that is the requisite hurdle over which the unions must pass, consistent with the conclusions reached by the Commission in its decision of 8 July.

PN2386

That proposition is a factual proposition. It's one that must be made out in the evidence and despite being on notice of the fact that this is critical issue to the Commission's consideration of the claims for many months, we say that the unions have not established that as a matter of fact and, accordingly, the claim must fail.

PN2387

If I can say something very briefly about some evidence from Prof Kavanagh today which is related to some of the matters I raise, and that is that that the claim should be granted as a preventative measure or that it will serve as a preventative measure, I think the key point to be made about that is that ultimately the Commission's task is to strike a balance between various competing considerations. The Commission is well aware of the submissions we make about the potential impact that this might have on employers, particularly those who rely on NDIS funding and that that is an important countervailing consideration.

PN2388

The second issue that the Commission raised in its statement of 17 August was that the material before it was not indicative of a demonstrated threat to the resilience of the system of care in these sectors that would justify paid pandemic leave to casual employees. We've dealt with this in our written submissions. There is clearly no demonstrated threat. I think the ACTU concedes as much and so we say that there's certainly no basis for granting the claim to casual employees.

PN2389

Thirdly, the Commission made reference to Commonwealth government financial assistance available for employees required to self-isolate in Victoria as it applied at the time and it went on to state that there was no material before it as to the efficacy of the payment scheme, the extent of its utilisation to date and the extent to which it might operate as an acceptable substitute for any award paid pandemic leave entitlement.

PN2390

The first thing we'd say about that is that obviously there's now financial support available to employees required to self-isolate in a broad range of circumstances in all states and territories but for the Northern Territory and we've set that out in some detail at attachment A to our written submissions.

PN2391

We say that these schemes serve the very same purposes for which the proposed leave entitlement is being advanced. That is they provide some financial support to employees required to self-isolate and they remove any financial incentive for employees to not self-isolate or be tested.

PN2392

We say that the introduction of the various support schemes is an important and a material change in circumstances that has transpired since the Commission issued its statement in August. And I think it has to be remembered that these schemes also operate in conjunction with public health orders issued by state and territory officials which require persons to self isolate in various circumstances. They also imposed hefty penalties for noncompliance, which run in the order of thousands of dollars. I think in Victoria the maximum penalty is up to $20,000. And these measures also serve to deter employees from failing to self-isolate where required.

PN2393

But it remains the case that there is no evidence that despite those two mechanisms operating in tandem that employees covered by the award of failing to be tested or self-isolate because they are concerned about the implications that would flow from a loss of income during that period, notwithstanding the various forms of support that are now available.

PN2394

There was some reference that was made today in response to a question from the Vice President about correspondence from the Victorian government about the number of payments that had been made. I just note 2 things about that. The correspondence states that as at the date of correspondence about two thirds of the applications had been successful, but the correspondence says that that is how many payments had been made to date. It's not clear whether all of the applications had in fact been processed or if the remaining applications had been processed and deemed unsuccessful

PN2395

The other thing I'd say is over the page there's some further information which relates to the Victorian government's $450 test isolation payment, which is paid where employees are tested and required to self-isolate. The correspondence indicates that a total of 22,691 payments have been made as of 20 August 2020.

PN2396

Ultimately, we say, that the evidence doesn't support the proposition that it is necessary to vary the award in the sense contemplated by section 138 for reasons associated with the need to provide additional financial support to employees required to self-isolate.

PN2397

Put simply, the evidence doesn't make out that despite these various schemes employees covered the award are being left enough financial situation that necessitates the proposed alteration to the safety net.

PN2398

We'd say that it's not only the government's financial assistance that is relevant to this consideration. Consistent with the evidence that has previously been heard in these proceedings - and I think we've given another example of this in our written submissions - employees required to self-isolate may be paid by their employer even if they don't have an entitlement to such payment where the employer has the capacity to do so. We have dealt with that at paragraph 70(a) of our October submission.

PN2399

Some employees will be entitled to paid personal leave. Some will have access to other forms of paid leave, such as annual leave. Some may be entitled to be paid, because they are required by their employer to self-isolate. Some may be entitled to receive JobKeeper payments. Some may be entitled to receive workers compensation payments.

PN2400

And so whilst we accept that the various payments, the various entitlements don't cover the field and that there may be circumstances in which an employee covered by the award is not paid during the period of absence, we say that the evidence doesn't establish that the wide ranging support and entitlements leaves such a void that it must be filled by a variation to the award. That is to say, a case hasn't been made out to justify the proposition that the proposed leave entitlements are necessary, having regard to these additional forms of support.

PN2401

We also say that the grant of the claims will ship the financial burden associated with providing employees with a payment from governments to employees because almost consistently these government schemes state that if an employee is entitled to leave from their employer, including any special pandemic leave that the employee becomes ineligible for payment from the government. And we say that this outcome is particularly unfair in the context of employers who themselves are wholly reliant on government funding. It appears to be uncontested in these proceedings that the Commonwealth hasn't released or foreshadowed any additional funding for employers to cover the cost of the proposed leave entitlements. And so, for all of those reasons, we say the unions' claims shouldn't be granted.

PN2402

In terms of the other reasons for not granting the claim, these are as I said detailed in our written submissions. The first is the cost of the claim. Now, overwhelmingly, employers who provide disability services rely on funding from the National Disability Insurance Scheme. As was acknowledged by the Commission in its decision of 8 July, such employers don't have an ability to recover any of the additional costs that flow from the claim.

PN2403

Now, there's a reference that Mr Clarke has made this morning to a decision that was issued by a Full Bench - two members of that Full Bench - concerning a review of the Social Community Home Care Disability Services Industry Award, I think last year or earlier this year. And a part of the decision that this Full Bench was taken to was a consideration given by the Commission to similar arguments that were advanced by and for parties such as Ai Group about the importance of funding.

PN2404

And I think the conclusion that was reached the Commission there is that that is a factor that is not determinative, but it is a factor that is relevant to the Commissions consideration. We are not arguing that it is a factor that is determinative, but we say that it is a factor that weighs very heavily against a grant of the claims.

PN2405

The other thing I'd say about that decision is that though the Commission proceeded to make some variations to the award, I think in particular in relation to weekend penalty rates and the introduction of a requirement to pay the casual loading in addition, employer parties including Ai Group subsequently argued for extended transitional arrangements in the hope that some funding might become available in that time to cover the additional co and that was granted by the Commission. There was a transition period of some eight months.

PN2406

The second proposition or the second reason, we say, that the claims shouldn't be granted is that it extends beyond or is contrary to findings and conclusions previously made by the Commission in this matter, which relates particularly to the extent to which the claim would - the clause would apply to employees who are required to self-isolate, for instance, for reasons not associated with their employment.

PN2407

Thirdly, we say that the proposed variations contain various deficiencies and are unfair to employers and we refer to paragraphs 77 to 86 of our August submission, but can I just identify for the record that we no longer press paragraph 86(b).

PN2408

Fourthly, to the extent that any analogy is sought to be drawn between the residential aged care sector and the sectors here being considered by the Commission, we say that that sector can readily be distinguished for two main reasons. One is the high rate of infection and the second is the Commission concluded in its consideration of that matter that additional funding that had become available would remove the cost impost of the proposed clause. Obviously, no such funding has here been made available. And finally, we say, as I've mentioned earlier that a balance must struck between the competing considerations and we say that that balance favours the dismissal of the claim.

PN2409

The final point that I wanted to address fell from Mr Clark's oral submissions today regarding the duration of the clause. My understanding is the proposition now being advanced is that the provision should be inserted and should continue to apply until the end of the pandemic, which at this stage would appear to be an undefined period of time.

PN2410

That is, obviously, a very different proposition to what has previously been advanced, which has consistently been that the clause will apply for a limited period of time. We say that that is the approach that the Commission should adopt. There is no evidence before the Commission that puts beyond doubt that Victoria or any other part of Australia will experience the type of second wave or third wave that has recently been experienced in Victoria and that might result in the higher rates of infections that were prevalent in the state at that time. And we also say that this is a very significant change to the safety net and one that should therefore be made only for a limited period of time, if at all.

PN2411

Unless there are any questions, those are our submissions.

PN2412

VICE PRESIDENT HATCHER: Ms Bhatt, what was (indistinct).

PN2413

MS BHATT: Paragraph 86(b). Sorry, Vice President, that's of our August submission.

PN2414

VICE PRESIDENT HATCHER: The August submissions. Okay. Thank you. All right, Mr Arndt, are you next?

PN2415

MR ARNDT: I am, your Honour.

PN2416

VICE PRESIDENT HATCHER: All right. Go ahead.

PN2417

MR ARNDT: I hope to be brief, in light of the fact we have already filed written submissions, but also in light of the fact I'm following Ms Bhatt. Some of the matters which I will address are worthy to restate anyway, because they do go to the very crux of the matter. And just to be clear, my submissions address the case directed at what I will call the SCHADS Award. As we've repeatedly stated, we don't play an active role in relation to the Ambulance Award matters.

PN2418

VICE PRESIDENT HATCHER: Thank you.

PN2419

MR ARNDT: Having regard to the previous decisions and the statements of the Full Bench that have been made over the past months, as well as the requirements of the Act, we say there's three relevant questions for the Full Bench to answer.

PN2420

The first one is, is there sufficient data for the Full Bench to allow it to make a decision? Secondly, does the data suggest there is evidence that an elevated risk is manifesting itself amongst the relevant workers in a discernible way? And finally, in relation to casuals, is there a demonstrated threat to the resilience of the system which we are talking about, which is the system of the care of the disabled.

PN2421

We say that answering those three questions is relatively straightforward. As to question 1, we say no, there is not sufficient data before a Full Bench which could allow it to grant the relevant claim. And I should say to their credit, the ACTU's submissions, both written and oral, are filled with a series of caveats and concessions acknowledging the limitations of the data that they put forward. (Indistinct) as are the witness - as are the expert reports that have been put, in the ACTU's own submission, the data quality is not of the standard they would have hoped to achieve.

PN2422

The data is described by the ACTU is difficult to interpret and clearly incomplete. In terms of Prof MacIntyre, the professor states that there's no published data on the occupational risk of COVID in Australia. Obviously, the data that the professor relies on is only relevant to Victoria and the professor gives evidence that there are many limitations to the available data and inconsistencies in the data from different sources.

PN2423

These include some of the limitations the professor acknowledges, such as the WorkSafe notifications by industry don't necessarily reflect the actual incident rates. Alongside the fact that the relevant industry numbers may not necessarily reflect the accurate numbers of the people in those groups related to the awards. Of course, I might just note there that we would observe that infection rate in any industry doesn't necessarily precisely equate with causation or necessarily risk level of the performance of work in that industry.

PN2424

Prof Kavanagh's evidence doesn't necessarily deal with data in the same way, but it does acknowledge it is difficult to find accurate numbers of disability support worker COVID infections in Australia.

PN2425

I should just note these observations aren't meant as a criticism of the ACTU. Clearly they have gone to quite considerable efforts to find the best data available to inform the Commission about the decision that the Commission has to make. Despite those efforts, unfortunately, we say the Full Bench still doesn't have the data upon which it could safely make a variation in relation to the SCHADS Award.

PN2426

This leads to the second question which is does the data, such as it is, suggest that there is evidence of an elevated risk manifesting itself amongst the relevant workers in a discernible way? And for this we see that Prof MacIntyre's report is the relevant piece of evidence. And we say at its highest, Prof MacIntyre's report stands for the proposition which it states in slightly different ways in two separate sentences. The first one is "Based on an analysis of WorkSafe notifications, workers in the Q8790 plus Q8609 have a moderate risk of COVID", and then the second sentence is, "Despite these limitations, based on comparative risk, workers in the Q8790 plus Q8609 have a moderately elevated risk of COVID." We say that's the high point of the evidence from Prof MacIntyre.

PN2427

Now, if the Full Bench takes this as a conclusion and there's a finding based on Prof MacIntyre's report, review of not only the data used to support those conclusions, but Prof MacIntyre's report itself doesn't support the granting of the claim. Prof MacIntyre's report identifies 14 industries and the relevant employee group related to SCHADS, that is seventh of 14. That means six of the 14 identified industries in Prof MacIntyre's report based on the evidence and data before the Full Bench have a greater infection rate than the relevant employee group which is subject to this claim.

PN2428

The Full Bench can obviously review those numbers and I'm sure have reviewed those numbers for themselves. In terms of the relevant SCHADS workers on Prof MacIntyre's evidence the Ambulance Group is marginally more, residential building and construction and accommodation, on my calculations, is about 30 per cent greater. Childcare 45 per cent greater. Clothing wholesale 60 per cent greater and, of course, as Ms Bhatt has said and has been repeated in written submissions, aged care residential is 800 per cent more or eight times as much.

PN2429

And so we would say regardless of Prof MacIntyre's evidence of moderate risk, or as it's put in another way, moderately elevated risks, on the ACTU's own data the level of risk must be understood that it's less than residential building and construction, accommodation, childcare, clothing wholesale. And of course, far, far less than the aged care residential component, which is the industry which the Full Bench determined to grant a similar type of entitlement some weeks ago.

PN2430

Obviously, to the extent that Mr Clarke relies on data and, to use your Honour's words, rolls up disability care and aged care into the same statistic, we say a reasonable inference can be made that those data sets and those f figures are heavily skewed by the aged care situation which is - I don't think there is any argument to say that it's much more - the numbers are far higher than in the SCHADS section. And this concession was made by Mr Clarke this morning, to his credit.

PN2431

So in relation to that evidence, we say taking the evidence before the Full Bench to the extent that the Full Bench's previous findings require that an elevated risk be manifested in a discernible way, we say this hasn't happened, at least on the basis of the evidence that the Full Bench has.

PN2432

With respect to Mr Clarke's comments this morning that the evidence as put should count for something, I think that's a fair submission, but I think the relevant question is whether that evidence is enough and we say it's not.

PN2433

Dealing with one other aspect of Prof MacIntyre's report and particularly its reliance on US data, firstly to the extent that Prof MacIntyre's report relates to US data or relies on US data, obviously, this can be met with the rather obvious observation that the United States control of the pandemic and the numbers involved in relation to the COVID experience in the United States has been much less successful than Australia. Secondly, regardless of reliance on US studies, those data points and those arguments don't assist in demonstrating the relevant question; that is, has an elevated risk manifested in a discernible way? We say the relevant subject matter is Australian workers under the SCHADS Award and we say that the data provided by the ACTU doesn't meet that standard.

PN2434

Lastly in terms of the data point, it is relevant to note that independent of data relating to elevated risk and the manifestation of that risk in a discernible way, it's obviously relevant to note that the circumstances currently facing Australia in relation to the pandemic suggests that the provision of pandemic leave in the form sought is not necessary. And to say that based on the improved and low numbers in relation to the relevant metrics, I won't go into them and read them off now, because they can change. But these numbers - today's numbers - are far lower than the numbers in existence when the Full Bench made its first decision, which was the July decision which declined the grant of the claim in all relevant health awards and they're also of course much lower than when the Full Bench granted the claim in aged care.

PN2435

The last question to be answered relates to the provision of the entitlement to casuals and I think this has been adequately dealt with in written submissions and also by Ms Bhatt this morning. To conclude, we would observe that there's obviously a very volatile environment that everyone has been dealing with over the past number of months and that the situation could well change and a different set of circumstances may be presented before the Full Bench at some future point.

PN2436

Referring to Mr Clarke's comments this morning about the difficulties of scheduling a matter alongside the ebb and flow of the pandemic and whether the Commission's task is to assess whether the elevated risks have manifested in a discernible way or are manifesting in a discernible way. We say that on either question, on the basis of the data before the Full Bench the claim would fail.

PN2437

And just to finalise, in relation to the end date of this entitlement, Mr Clarke is right that we assumed that if granted the time period of the entitlement would extend beyond that which has been asked for in the application, given that's about to run out. We say the entitlement should be granted, but if it were to be granted, we would resist the introduction of an indefinite entitlement.

PN2438

I think Mr Clarke put it as a preferred position. I'm not sure that he actually applied for it or requested it this morning. I understood it to only be a preference, but we say on that point the determination of the Commission is one which has to balance a great number of factors. It's not only a task which is purely limited to considerations of infection rates or public health issues. It also brings in notions of fairness and stability of the modern awards system and obviously financial considerations for individual businesses as well as the economy generally. All of this is in the modern awards objective.

PN2439

The fact that this is a paid entitlement, which could theoretically be accessed even when COVID infection rates are very low or nil makes this very relevant and we say the only way to balance this for the Full Bench would be for the Full Bench to act incrementally or provisionally, which I understand to be the Full Bench's provisional view in any case, notwithstanding of course we say no incremental or provisional variation is necessary at this time. And unless there are any further questions, those are my submissions.

PN2440

VICE PRESIDENT HATCHER: Thank you, Mr Arndt. Ms Lo?

PN2441

MS LO: Thank you, Vice President. We rely on our written submissions, dated 16 October 2020 and say that the Commission should not be satisfied with the evidence presented by the unions in relation to the SCHADS Award, because it does not satisfy threshold requirements for the reasons stated in our submission.

PN2442

We also rely on previous submissions made in this matter dated 10 August 2020 and wish to further reiterate the number of concerns that we have already raised. The first is the overall data on the number of COVID-19 cases in Australia is decreasing to the extent that the Honourable Stuart Robert MP confirmed, as from 2 October, they will no longer by publishing daily updates on COVID-19 cases of NDIS participants and workers because numbers have significantly reduced nationwide.

PN2443

Notwithstanding the unions' acknowledgement that they are unable to demonstrate a practical and imminent threat to the resilience of the system of care, we say that initiatives and practices that have been implemented in the fight against COVID including the work inability reduction scheme and the government pandemic leave disaster payment, which is now available in multiple states reduces any potential threat to the resilience of the systems for care in the sector.

PN2444

We observed that no direct employee witness evidence in relation to the SCHADS Award have been advanced by the unions as to how the government pandemic leave disaster payment had not been sufficient and finally there are (indistinct) concerns of the effect financially on employers, including the NDIS-funded disability sector and also employers who are covered by the award, but who are not government funded and the impact this would have on them. This is addressed in our most recent written submissions.

PN2445

Our position is that the material before the Commission is still insufficient to demonstrate that it is necessary to vary the SCHADS Award. We say that the entitlement should not be granted, but if it is, it should not be granted on an unlimited basis and this proposition would be resisted. This concludes our submission, unless the Commission has any questions.

PN2446

VICE PRESIDENT HATCHER: Thank you, Ms Lo. Mr Clarke, any submissions in reply?

PN2447

MR CLARKE: If I may just briefly. Just in relation to the point raised by the Ai Group about the extent of infection in the NDIS covered sector not having risen to high levels outside of - sorry, being low outside of Victoria. I just simply ask us to cast our mind back to what happened in the aged care decision and how that was dealt with where the numbers that were (indistinct) were concentrated again in Victoria.

PN2448

Also in relation to the Ai Group's evidence that - there was a bit - Ai Group's submissions - there was a bit of a conflict there in terms of self-isolation. On the one hand it was said that there was no evidence about the extent of self-isolation and on the other hand it was said that the evidence about self-isolation should be given limited weight. So clearly there was something.

PN2449

It's not just a case that we ask you to make on the basis of inference, which was done in the aged care decision. We say you can make the case on the basis of inference plus the material we have provided from the Department of Health.

PN2450

In relation to the - it was also said in the Ai Group submission that the government systems of payments remove any financial incentive to attend work. We say that that inaccurate. Firstly, we've highlighted some situations where there was a lack of eligibility to attend, but where the payments are made, I don't think it's in dispute that the disaster payment caps out at $1500 a fortnight or if it's $750 a week and although the workers are low paid, it's been recognised and it's clear for anybody who reads the wage rates, or the ERO wage rates, that anybody approaching (indistinct) full time hours or close to it is going to have a loss of income, if they're income is reduced to $750 a week.

PN2451

Sorry, I'm checking my notes which seem to have disappeared from my screen for a moment. In relation to the point about the duration of the order, it's not what - just to clarify, in case it was misunderstood, it is not that the - it is not anticipated that the entitlement ceases to be one that is an entitlement for a limited period. It's just that the entitlement is expressed as existing until further or other order. Now, being we will still have the capacity to bring the proceeding on to say the pandemic has gone away, but that in our submission would be the point at which the circumstances would change.

PN2452

In relation to what was said by Mr Arndt on behalf of his various clients, yes, it is the point that we ask the Commission to draw to various strands of data in an attempt to build a complete picture and as is suggested - and as he submitted the question is,. "What does the data suggest", not what can be proven beyond reasonable doubt to the exact decimal place is indisputably the position.

PN2453

The Bench would be familiar, particularly in the sectors where the NDIS workforce is concerned, that things critical to estimating the infection rate, for example, the basic question of how many workers are there, are almost impossible to conclusively answer to that level of specificity in relation to that workforce. And we've done the best we can to provide a number of different alternative and complementary sources to provide a suggestion that an elevated risk of infection did manifest in the work covered by the award.

PN2454

In relation to the discussion about - from Mr Arndt about Prof MacIntyre's expression of the exercise she undertook on the Victorian WorkCover authority data and the use of the phrase "moderately elevated", again, I'd make the point that I made earlier that if there was some suggestion that that was an inappropriate conclusion to reach on the data, that's a criticism of her expertise or her methodology that ought to have been levelled at her during cross-examination and didn't do that.

PN2455

VICE PRESIDENT HATCHER: I thought the submission was to the effect that her conclusion did not support, in effect, your case. That is, a moderately elevated level of risk was not sufficient to justify the (indistinct).

PN2456

MR CLARKE: If I've misunderstood the point, let me say this, the previous decisions haven't indicated how elevated the risk needs to be. She has described it as moderately elevated and she's identified in that limited data set, and you know, we're honest about the caveats and all the rest around that in that data set that over that snapshot at least the infection rate was higher than it was in hospitals where really sick people with COVID go.

PN2457

I think that that concludes the matters in response.

PN2458

VICE PRESIDENT HATCHER: All right. I thank the parties for their submissions. We will reserve our decision. I note that we had, of course, a second date for this hearing programmed next week on the 28th. I'm just wondering whether we should perhaps keep that date for (indistinct) related to these awards. In this respect and without requiring any party to commit themselves, can I inquire generally whether it's likely that there will be opposition to continuation of the paid pandemic provisions, paid pandemic leave provisions for the aged care sector? If you are not ready to answer then you can just say so, but in the event that there is oppositional risk, whether we should reserve that date for any hearing that might be necessary.

PN2459

MR ARNDT: Your Honour, I certainly can't confirm that there won't be.

PN2460

VICE PRESIDENT HATCHER: Right. Is anybody able to say anything more firm than that?

PN2461

MS BHATT: No, Vice President.

PN2462

VICE PRESIDENT HATCHER: All right. Well, what I think we'll do is I will ask the parties to keep the 28th in their diaries in the event that for whatever reason a hearing is necessary in relation to the paid pandemic leave provision in the aged care sector and, of course, also for the unpaid provisions across all health awards.

PN2463

All right. I thank the parties for attendance and we will now adjourn.

ADJOURNED INDEFINITELY [11.41 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ANNE KAVANAGH, AFFIRMED.................................................................... PN2106

EXAMINATION-IN-CHIEF BY MR CLARKE.............................................. PN2106

EXHIBIT #A WITNESS STATEMENT OF PROFESSOR ANNE KAVANAGH DATED 21/09/2020............................................................................................................. PN2119

CROSS-EXAMINATION BY MS LO............................................................... PN2160

THE WITNESS WITHDREW........................................................................... PN2175

EXHIBIT #B WITNESS STATEMENT AND REPORT OF PROFESSOR RAINA MACINTYRE DATED 21/09/2020.............................................................................................. PN2178

EXHIBIT #C EMAIL FROM ROSS MAHONEY OF DHHS DATED 22/09/2020 PN2189

EXHIBIT #D WITNESS STATEMENT OF JOSHUA BOMPITS DATED 02/10/2020............................................................................................................................... PN2206

EXHIBIT #E WITNESS STATEMENT OF KATRINA KHOENIG DATED 02/10/2020............................................................................................................................... PN2209

EXHIBIT #F WITNESS STATEMENT OF JAY COOKE DATED 02/10/2020 PN2212

EXHIBIT #G SUPPLEMENTARY STATEMENT OF JAY COOKE DATED 21/10/2020............................................................................................................................... PN2215

EXHIBIT #H WITNESS STATEMENT AND REPORT OF ADJUNCT ASSOCIATE PROFESSOR ALAN EADE DATED 29/09/2020............................................. PN2218

EXHIBIT #I WITNESS STATEMENT OF ALAN STOKES DATED 02/10/2020 PN2221