PN1

JUSTICE ROSS: Can I have the appearances please?

PN2

MR BULL: If the Commission pleases, my name's Bull. I appear with my colleague Natalie Dabarera for United Voice.

PN3

JUSTICE ROSS: Thank you.

PN4

MS S WHISH: May it please the Commission, Whish, initial S, on behalf of ABI and the New South Wales Business Chamber.

PN5

JUSTICE ROSS: Thanks, Ms Whish.

PN6

MS J FIELD: May it please the Commission, Field J, for Aged Care Employers, Leading Age Services and Aged & Community Services Australia.

PN7

JUSTICE ROSS: Thank you.

PN8

MS N SHAW: Shaw, initial N, for AFEI.

PN9

JUSTICE ROSS: Thank you.

PN10

MS S LO: Lo, initial S, for AFEI.

PN11

JUSTICE ROSS: Thank you. In Melbourne?

PN12

MS R LEIBHABER: If the Commission please, Leibhaber, initial R, for the Health Services Union.

PN13

JUSTICE ROSS: Thank you.

PN14

MS K WISCHER: Commission pleases, Wischer, initial K, for the Australian Nursing and Midwifery Federation.

PN15

JUSTICE ROSS: Thank you. So the statement of 1 October set out a number of substantive claims which have been sought by United Voice and the HSU in relation to this award. Those claims are listed as attachment A to that statement. In subsequent correspondence the HSU indicated he intended to pursue a claim for increased minimum engagement period. That claim's set out in their submission of 2 March 2015 at paragraphs 3 and 4. Can I just go to that matter first before I deal with any other substantive claims.

PN16

Ms Leibhaber, the claim sought to vary the minimum engagement period to four hours for all employees regardless of classification work performed or workplace. Do I take it that the minimum engagement period is then intended to apply to - four hours that you're seeking is intended to apply to casual, part-time and full-time employees?

PN17

MS LIEBHABER: Yes, Commissioner, initially our claim was for a four hour minimum engagement. That would apply for casual and part-time employees.

PN18

JUSTICE ROSS: Does it apply to overtime? It's expressed very broadly, I'm just trying to work out what it's dealing with, that's all.

PN19

MS LEIBHABER: I suppose we will have to look at the claim in detail before submissions are due because that claim was, I suppose, initially put forward in 2015. Yes, unfortunately I don't think I can go into detail now.

PN20

JUSTICE ROSS: Right. You also note in your submission that issue was being dealt with by the Casual and Part-Time Common Issue Bench. Did you press the claim before that Bench?

PN21

MS LEIBHABER: Because the ACTU ran a claim for a four hour minimum engagement across all awards, we didn't press. We indicated that we will - - -

PN22

JUSTICE ROSS: Right, so the ACTU claim also covered the Aged Care Award, is that right?

PN23

MS LEIBHABER: Yes.

PN24

JUSTICE ROSS: The Full Bench rejected that claim.

PN25

MS LEIBHABER: It did but it did state that it - it didn't comment on whether minimum engagement provisions would be suitable on an award by award basis, but it rejected a claim for a broad minimum engagement provision.

PN26

JUSTICE ROSS: Right. So United Voice and the HSU have confirmed that the substantive claims in attachment A for this award an inaccurate summary. We've heard the additional claim - well it's not an additional claim in fairness, it's a claim that was previously advanced but we didn't pick up. Are there any other substantive claims in relation to this award? Right. Then the questions - the purpose for the mention really is to just clarify what we're dealing with. We've more or less done that although we will need to get some more detail, and then to work out the next steps in relation to it. This is probably particularly directed at United Voice and the HSU because you'll be the ones advancing the claims.

PN27

It seems to me that - well there are a couple of questions that arise. The first is whether you intend to call evidence in support of your claims, will that be witness evidence and how many? How many hearing days are required in relation to the matter and what directions do you propose that we issue in respect of these issues? The directions should include the filing of draft variation determination that gives effect to your claims.

PN28

MR BULL: We're not looking at - we're probably - - -

PN29

JUSTICE ROSS: It's all right, keep your seat Mr Bull - it be easiest.

PN30

MR BULL: Sorry. We would file a bit of evidence. We're hoping that essentially, we would probably file two or three statements at most. I imagine that it would probably need two or three days. We've got some draft directions which we've shared with our opponents. So, I'm happy to hand them up.

PN31

JUSTICE ROSS: Sure. What would the two or three witnesses be directed at?

PN32

MS DABARERA: Your Honour, it would primarily be - it may cover the claim in relation to the telephone allowance and the sleep-overs of course, but it would primarily be in relation to S21 which is a classification definitions claim.

PN33

JUSTICE ROSS: Is that the personal care worker claim?

PN34

MS DABARERA: Yes, it is, your Honour.

PN35

MR BULL: That will be the one where we will probably be providing the most substantive evidence.

PN36

JUSTICE ROSS: Have you got the draft directions?

PN37

MR BULL: Just looking at the - we haven't got - I thought that we had actually filed draft determinations.

PN38

JUSTICE ROSS: Maybe, but I just want to make absolutely sure that we all - you can file them when you file your submissions in support et cetera.

PN39

MR BULL: It all becomes somewhat of a blur after - - -

PN40

JUSTICE ROSS: Yes, it does.

PN41

MR BULL: I've done so many of these. I just assume they had. If we haven't filed draft determinations, we can just add that into direction one.

PN42

JUSTICE ROSS: Yes, no problem. Have all the other parties received a copy of the proposed directions?

PN43

MS WHISH: Yes, ABI and NSWBC have.

PN44

MS FIELD: Haven't received it, but saw it this morning.

PN45

JUSTICE ROSS: Let me read it out. That's probably going to be the easiest way. Look, you know, I'll change them, but in terms of the language, but let's not worry about that too much.

PN46

MR BULL: The broad intention is to make December, as is tradition, an unpleasant busy month.

PN47

JUSTICE ROSS: Yes, it's unlikely they'll be listed for hearing in the first part of March. We can give you hearing dates in February if you pull back your - if you slip, for example, rather than you filing by 17 December, if that was by the end of November and then giving the employers until end of January to respond, and perhaps the first week in February. Then the matter can be heard in the second week in February.

PN48

MR BULL: I thought of that, but January is effectively a half month for most people, so I don't know whether that would be fair to our opponents.

PN49

JUSTICE ROSS: Well, it depends whether you pull - yes, but the unfairness operates either way, because the only difference is you're giving them till 11 February.

PN50

MR BULL: I like to have a holiday.

PN51

JUSTICE ROSS: Yes, but I'm not sure it's fair that you file your material on the 17 December and leading right up to the break. Then there's the break and the employers file their response by 11 February. So, in other words, you get two months roughly, and they'll get, if you take it as a half month, then they'll get about a month.

PN52

MR BULL: It wasn't intended it that way.

PN53

JUSTICE ROSS: No, no, I'm not suggesting that.

PN54

MR BULL: They know what these claims are, they can start.

PN55

JUSTICE ROSS: Well, the same could be said about you. You've known what the claims are; why does it take you two months to do.

PN56

MR BULL: Well, we're making the claim, so they're responding to claims, which they're aware - anyway. Look, I might just add, because it is going to become relevant. We're interested in all three awards that we're dealing with today and we would like the consideration of the Commission in terms of managing our workload, a much as we can, have that expectation.

PN57

JUSTICE ROSS: Well, I think the SCHADS Award is likely to be dealt with later.

PN58

MR BULL: Okay.

PN59

JUSTICE ROSS: So, I think we'll deal with aged care and the other one first.

PN60

MR BULL: The children' services one will be the most evidentially dense one, from our perspective.

PN61

JUSTICE ROSS: Yes. Well, why is it going to take you until 17 December to file two or three witness statements?

PN62

MS DABARERA: Your Honour, I might just make a brief comment. We had planned these directions in line with the SCHADS Award as well, in light of the fact that we have about 10 claims in the SCHADS Award. However, if they are going to be dealt with separately.

PN63

JUSTICE ROSS: I think the SCHADS Award, there's the complication of the joint statement. There's the fact that look, we had republished the substantive claims in a group decision and invited comments and not all parties did, so the ones we've recently published reflects what we thought was the position. But we just need to sort out what the claims are in the SCHADS Award. We may be able to do that and that will be fine.

PN64

MS DABARERA: Yes, your Honour. So, we prepared it on the basis that the two awards would be running together, hence the longer period, because we do have quite a number of substantial claims in the SCHADS Award.

PN65

JUSTICE ROSS: Sure.

PN66

MS DABARERA: However, if the SCHADS Award is going to run later, then I think it would be okay in terms of our perspective to bring the Aged Care one a little bit later.

PN67

JUSTICE ROSS: Well, look I'll review it when we get to the SCHADS Award and we'll see how we can best balance the various considerations.

PN68

MR BULL: There's some synergy between the Aged Care and I prefer the Social Services Award.

PN69

JUSTICE ROSS: Yes, but there's no overlap in the claims for the evidence, is there?

PN70

MR BULL: No, but it's a similar type of workforce.

PN71

JUSTICE ROSS: Yes, sure. All right, what about the HSU?

PN72

MS LIEBHABER: Your Honour, I think we have a similar number of witnesses.

PN73

JUSTICE ROSS: In relation to what claim?

PN74

MS LIEBHABER: Well, in relation to the minimum engagement claim and perhaps the telephone allowance. I suppose our difficulty is that because some of these claims were developed a number of years ago, finding some of the witnesses we would have had back then, there's just a little bit of work in order to finalise all that now. So that would be our concern and also, I suppose we're in the same position in the sense of the SCHADS.

PN75

We have quite a few claims for the SCHADS Award, so depending on when that's scheduled, that would also impact.

PN76

JUSTICE ROSS: All right, have you seen United Voice's draft directions?

PN77

MS LIEBHABER: Yes, we have and we'd be happy with those.

PN78

JUSTICE ROSS: Any other union first, before I go to the employers?

PN79

MS WISCHER: Your Honour, we'd be happy just to really - as we don't have any claims to fit in with both UV and HSU in terms of the situation.

PN80

JUSTICE ROSS: All right.

PN81

MS WHISH: Your Honour, ABI and NSWBC will be naturally opposing many of the claims that both United Voice and the HSU have put forward today. We're not terribly concerned about the directions that have been put forward, other than the 11 February. It might be useful for everyone to keep in the back of their minds that school holidays I think, finishes about 29 January. That December/January period, as you've already acknowledged, is a terribly inconvenient time for getting witnesses and preparing witness statements.

PN82

JUSTICE ROSS: For the moment, you can take it that we'll slip the date of 11 February, because the hearing isn't going to be in early March. So, it will depend a bit on when the hearing dates are. It's more likely to be third week. But that's something I'll have a look at and we'll provide more time for the replies.

PN83

MR BULL: Sorry to interrupt sir, we could have our filing date in the new year.

PN84

JUSTICE ROSS: How does that help?

PN85

MR BULL: Well, it gives us a little bit more time. It doesn't assist our opponents, maybe.

PN86

JUSTICE ROSS: No, well hang on a little bit. Look, I've just - - -

PN87

MS WHISH: If you move to the new year and we move to March, that could - - -

PN88

JUSTICE ROSS: I've already gone to you, and you're the ones that said you could do it by the 17th. I don't understand how it's going to help.

PN89

MR BULL: Well, I wasn't aware that the hearing date was going to be - - -

PN90

JUSTICE ROSS: Well, what difference does that make? It's really when you can get your material in and you're the one that's suggesting the 17th.

PN91

MR BULL: We almost can certainly get it in by the 17th.

PN92

JUSTICE ROSS: Well, then the sooner the better. Is there anything else in relation to the directions other than concern about 11 February? No?

PN93

MS WHISH: No.

PN94

JUSTICE ROSS: I think the best way of dealing with this is, I'll deal with the other mentions and then provide some draft directions in respect of all three and I'll have a further single mention dealing with all three. This phase is really just to sort out what the claims are. That further mention will be - bear with me for a moment - Friday, 9 November at 11 am. Can I suggest a couple of things prior to that. That you firm up on how many witnesses in relation to which issues and it might be useful if United Voice and HSU have a discussion about that, so you don't sort of end up having - or you can divide the witnesses or do it however you want so we don't end up having the same issues canvassed.

PN95

It also provides you with an opportunity, Ms Leibhaber, to check over the claims and just make sure that you want to pursue each of them. Ms Whish, you mentioned that you would - ABI would be opposing most of the claims. I'm going to want to hear on 9 November which ones you don't oppose, because that will make it - and this will be the same in relation - do I take it you've got an interest in each of these awards?

PN96

MS WHISH: Yes.

PN97

JUSTICE ROSS: Yes, and probably that's the same with the other employer organisations and with the unions, but it'd be helpful the sooner you can identify which ones you're not opposed and that will assist the unions in the preparation of their submissions as well.

PN98

MS WHISH: Certainly.

PN99

JUSTICE ROSS: It would be helpful if as Mr Bull suggests there's already draft variation determinations, if they can be filed as soon as possible. It would be desirable to do that before 9 November but I'm conscious of the comment Ms Leibhaber made that look, it's been a couple of years since these things were first canvassed. It may be that things have moved on, the people who originally filed them have gone from the organisation and the usual sort of problems. But I think the sooner the employers see what the actual variation looks like it'll make it easier for them to determine whether or not they're going to oppose or - and I'm not suggesting you'd consent necessarily but I'm only interested in an indication as to which ones you're not going to be mounting a merit case against, that's all.

PN100

Is there anything else about this award?

PN101

MS LEIBHABER: Your Honour, I just wanted to raise that 9 November, myself and my colleague will both be on a conference and we wouldn't be able to attend a mention on that day. Would there be any chance of rescheduling that for a different day?

PN102

MR BULL: If I can be given appropriate instructions I can appear for the HSU.

PN103

JUSTICE ROSS: Ms Leibhaber?

PN104

MS LEIBHABER: That would be fine if that's okay with Mr Bull.

PN105

JUSTICE ROSS: Look, you'll get the draft directions probably Monday of next week, so you'll have them prior to - and you'll be able to discuss with Mr Bull some joint position, or if you position is different he can indicate what that is, and indeed if you file anything in writing setting out your position if you want to do that as well.

PN106

MS LEIBHABER: Thank you, your Honour.

PN107

JUSTICE ROSS: Right. Anything else? No.

PN108

MS WHISH: No, your Honour.

PN109

JUSTICE ROSS: Thanks, then we'll adjourn this matter until 11 am on Friday, 9 November. Thank you.

ADJOURNED UNTIL FRIDAY, 9 NOVEMBER 2018 [9.52 AM]