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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1047836-1
VICE PRESIDENT WATSON
AM2012/29 AM2012/83 AM2012/105 AM2012/143 AM2012/191 AM2012/201 AM2012/212 AM2012/232
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years
Application by United Voice
(AM2012/29)
Social, Community, Home Care and Disability Services Industry Award 2010
(ODN AM2008/79)
[MA000100 Print PR991066]]
Melbourne
10.02AM, TUESDAY, 9 APRIL 2013
Reserved for Decision
Continued from 10/09/2012
PN171
THE VICE PRESIDENT: Any changes in appearances, Mr Harvey?
PN172
MR K. HARVEY: Yes, possibly, your Honour. I think this is actually the first time this matter has been listed before your Honour, as such. I have appeared in conciliation proceedings before Kaufman SDP, as he then was, last year. But, yes, I'll announce an appearance on behalf of the Australian Services Union. I've come back for one more go at award modernisation and award review, your Honour. Appearing with me today in Melbourne is MR W. FRIDELL, and I expect in Sydney - they may be walking in the door now - MS J. WRIGHT, will also be appearing for the ASU. If the Commission pleases.
PN173
MR K. GODFREY: Commissioner, Godfrey, initial K, on behalf of Mr Pegg, who is on leave at the moment, for Jobs Australia.
PN174
THE VICE PRESIDENT: Yes, Mr Godfrey.
PN175
MR P. NEWALL: I shan't stand on ceremony, your Honour. May it please your Honour, Newall, counsel, for the group of employer association styled "the aged care employers".
PN176
THE VICE PRESIDENT: Mr Newall. And the other parties have appeared before, I believe. Mr Newall, you need permission to appear?
PN177
MR NEWALL: I formally seek leave to appear. May it please.
PN178
THE VICE PRESIDENT: Yes.
PN179
MR NEWALL: I understand my friend Mr Harvey has been courteous enough to tell me he doesn't oppose my appearance, but it's a matter for your Honour.
PN180
THE VICE PRESIDENT: Yes. No objection to Mr Newall's application?
PN181
MR HARVEY: No, your Honour.
PN182
THE VICE PRESIDENT: Permission is granted.
PN183
MR NEWALL: Yes. Thank you, your Honour.
PN184
THE VICE PRESIDENT: We do have some major logistical issues to deal with during the course of today. Were there any separate appearances in Sydney?
PN185
MR F. FORSTER: There are, your Honour. Just the one. My name is Forster, initial F, from the Australian Federation of Employers and Industries.
PN186
THE VICE PRESIDENT: Thanks, Mr Forster.
PN187
MR FORSTER: Thank you.
PN188
THE VICE PRESIDENT: It will be necessary to make use of the links that are available, and hopefully it will all go smoothly this morning. I gather there has been some discussion about the timetabling of witnesses, but - I don't know whether it's necessary, given the material that has been filed, but do you wish to start with any opening or introductory comments, Mr Harvey?
PN189
MR HARVEY: Yes. I did, your Honour. But before we do that, can we just clarify the situation with the witnesses, if you don't mind, your Honour. Until late last night I was under the understanding that Australian Business Industrial wanted to cross-examine all of the ASU's witnesses, so they've been made available. They were the only employer organisation that wanted to cross-examine any witnesses, as I understood it. Last night ABI advised us that they no longer wanted to cross-examine Katrine Hilyard, Patricia Branson or Katherine Nelson. As I advised your Honour yesterday in any case via email, Katherine Nelson is ill and wouldn't have been available today to do that, but I have the other two on standby.
PN190
I've spoken to my colleagues at the bar in Melbourne, and I believe that nobody else in Melbourne had expressed a late interest in examining either Katrine Hilyard or Patricia Branson. We haven't been advised by AFEI that they want to cross examine anybody, but on the assumption that AFEI doesn't want to, I'd seek to be able to contact those two witnesses in Adelaide and Perth and advise them they're no longer required for cross-examination.
PN191
THE VICE PRESIDENT: Is there any desire to cross-examine Ms Hilyard or Ms Branson from any party?
PN192
MR NEWALL: Not for our part. We don't propose to cross-examine of the witnesses of any party.
PN193
THE VICE PRESIDENT: Yes. Thank you.
PN194
MR FORSTER: Your Honour, it's Mr Forster in Sydney, AFEI. I don't intend to cross-examine any of the ASU's witnesses today. Thank you.
PN195
THE VICE PRESIDENT: Okay. Well, it sounds like we're not going to need the links to Adelaide or Perth, and those witnesses can be advised that they won't be required.
PN196
MR HARVEY: Yes. Thank you, your Honour.
PN197
THE VICE PRESIDENT: You'll nevertheless tender their witness statements in due course?
PN198
MR HARVEY: Yes, your Honour. I'll seek to tender those at an appropriate time.
PN199
THE VICE PRESIDENT: Yes.
PN200
MR HARVEY: Your Honour, therefore I understand there's possibly one other matter we should just clear up in terms of programming, because I understand that the video links to Sydney were only established for the purpose of the witnesses giving evidence, and I understand that link is not available after 2 o'clock this afternoon. With the truncated, if you like, witness evidence this morning, that may well mean that we can finish by 1 o'clock, and I know your Honour has another matter listed at 1.30 - and I suppose that would be the intention - but I suppose there's the possibly that if for any reason it goes longer, then we have got a problem this afternoon if AFEI wishes to appear from Sydney. Is my understanding correct about that, your Honour?
PN201
THE VICE PRESIDENT: Yes. Let's make sure that we don't waste any time before 2 pm.
PN202
MR HARVEY: Yes, your Honour. I would like to just say a couple of words by way of opening if I may before we go to the first witness, who is a Melbourne-based witness and who is in the room - so we can go to her straight away - just to clarify exactly what the proceedings are before you. I think this is the first time this matter has been before your Honour. As I said earlier, Kaufmann SDP, as he then was, had carriage of this matter in 2002. There were in fact a number of applications made in respect of the award as part of the 2012 award review process by the Australian Services Union, the Health Services Union, United Voice and by a number of employer organisations.
PN203
Kaufmann SDP was very helpful in conciliating these matters to the point where all applications by employer organisations, as well as the applications by the Health Services Union and United Voice, were settled by agreement, and his Honour issued a determination varying the award with respect of agreed matters. I think that was in November last year; the week leading up to his retirement. What remained were a number of matters in the ASU application which were not resolved by conciliation, and the ASU is pursuing those matters via this arbitral proceeding, and therefore it falls to your Honour to determine these matters for us.
PN204
As far as I know, there are no other applications. I notice, I think, the ASU and the United Voice matters have been listed, but as far as I'm aware - and they're not here today - so they have no further matters they wish to proceed with, and subject to me being corrected by anybody at the other end of the table, there are no employer applications currently before the Commission. It's only ours. One other thing to say briefly is that his Honour Kaufmann SDP issued directions with regard to these outstanding issues with which the parties complied, and that process was actually completed in late November last year. Following his Honour's retirement, the file has obviously come into your hands, your Honour, and you issued further directions dated 18 February this year.
PN205
The ASU, for its part, consider the question of whether further directions were, in our view, strictly necessary or not, and I think we wrote to your Honour suggesting that they weren't, as all the parties had complied with the previous directions. However, to my knowledge, no alteration has been made to your Honour's directions and they remain. The ASU has not filed any additional material other than one journal article to which I'll refer later. No other employer party seemed likely to file any additional material, but last week the aged care employer, represented today by Mr Newall, filed some additional submissions and three witness statements.
PN206
They have done so, obviously, in accordance with your Honour's directions, but I could say, not in response to anything additional that the ASU had filed. We don't make any submission about this other than to say we'll deal with this material today, and obviously we're cross-examining their witnesses. Unless there's some difference from the other end of the table about the proceedings, as I understand them, your Honour, the only thing remaining is the four ASU - the ASU's application with regard to four substantive matters. I'll just mention them and won't say anything more about them at this stage.
PN207
But they are: the terms of engagement for part-time employees, including minimum hours of engagement and agreement to a regular pattern of work; elimination of the broken shift provision, other than for home care employees; restoration of weekend penalties for casual employees; and small business redundancy for employees covered by certain pre-reform awards. Now, your Honour, yesterday the ASU filed and served an amended draft order to give effect to the variations proposed by us. We'd previously filed it. The main change relates to small business redundancy, and I'll explain that later, but I believe that was filed with your Honour's changes and provided to all the other employers. If anybody doesn't have it, I have copies of it with me.
PN208
Mr Newall wants one, yes. But anyway, subject to anything that anybody at the end of the table wants to say by way of opening or disagreeing with my characterisation of this, I propose that we go directly to the witnesses. We're in a position to call our first witness.
THE VICE PRESIDENT: Yes. Well, no-one is leaping to their feet. I might mark the amended draft order, considering that the focus is on the specific changes you're seeking. I'll mark that exhibit H1 in these proceedings.
EXHIBIT #H1 AMENDED DRAFT ORDER
PN210
MR NEWALL: I'm well-organised here, your Honour, but I can't find it.
PN211
MS HAYNES: Your Honour, I would - - -
PN212
THE VICE PRESIDENT: Ms Haynes.
PN213
MS HAYNES: If the Commission pleases, I would just note that whilst it's correct that one of the variations sought is for penalty provisions for casual employees, it's also, on my understanding, that the casual employees receive overtime payments in addition. Is that correct?
PN214
MR HARVEY: Yes. I was going to go to that because, your Honour, we did propose an amendment to - I think it's clause 28(c) of the award. Reviewing that, even after we filed the amended draft order yesterday, I think our drafting of clause 28.1 in our draft order is not terribly good or effective, and what I was going to say to your Honour was that the intention of that clause was to ensure that casuals got weekend penalties. And that was the only intention; we don't intend to take it further than that. So, I think the drafting is a bit defective, and what I was going to say to your Honour later - and I'll say to the employers now - is that's our intention. If we haven't captured that in our draft order but your Honour agrees with us that we should have weekend penalties for casuals, we'll submit a new draft order to properly reflect that.
PN215
I don't think the one that we've got at the moment does the job properly, and Ms Haynes is right; the aged care employers in their witness statements sort of drew attention to that problem as well. So, we'll fix that if we can hopefully convince your Honour that that matter should be dealt with.
PN216
THE VICE PRESIDENT: Yes. Thank you. And you wish to call Ms Darmanian?
MR HARVEY: Yes. The ASU would call Lisa Darmanian.
<LISA DARMANIAN, AFFIRMED [10.16AM]
<EXAMINATION-IN-CHIEF BY MR HARVEY [10.16AM]
PN218
MR HARVEY: Ms Darmanian, for the purposes of the transcript, can I ask that you restate your name and address, please?---Lisa Darmanian of (address supplied).
PN219
Have you prepared a witness statement for the purposes of these proceedings today?---Yes, I have.
PN220
Do you have that statement with you?---Yes.
PN221
Just so that we're all sure that we're looking at the same statement, is that a statement of some four pages and 32 paragraphs?---Yes, it is.
PN222
Are there any corrections you would want to make to that statement at this point?
---No.
PN223
And to the best of your knowledge, is that statement true and correct?---Yes, it is.
PN224
Thank you, your Honour. I have no further questions of this witness but I would formally tender the statement of Lisa Darmanian.
PN225
MS HAYNES: Your Honour - - -
PN226
THE VICE PRESIDENT: Yes, Ms Haynes.
PN227
MS HAYNES: I would object to the tendering of this statement. I consider that tranches of the statement is admissible as evidence. I don't intend to waste the Commission's time this morning by going through each and every part of that statement which I would consider to be inadmissible. I would just like to draw the Commission's attention in particular to paragraph 29, which is Ms Darmanian's opinion, which really amounts to a conjecture that part-time employees would have their hours replaced by casual employees. This witness, in my view, does not have the expertise to make such assertions.
**** LISA DARMANIAN XN MR HARVEY
PN228
THE VICE PRESIDENT: Yes. Are you content to make submissions as to the weight to be attached to that evidence in due course - - -
PN229
MS HAYNES: Yes, your Honour.
PN230
THE VICE PRESIDENT: - - - having flagged the concerns?
PN231
MS HAYNES: Yes.
PN232
THE VICE PRESIDENT: Mr Newall.
PN233
MR NEWALL: Your Honour, a great deal of material in all the witness statements - perhaps including some of our own - is clearly opinion evidence from persons who may or may not have the ability to give great weight to the opinion they've advanced. We propose to take no objection to any of the material. If there's anything that we regard as particularly egregiously difficult, we'll draw it to your Honour's attention in submissions, but otherwise, to be candid, we'll leave the matter in your Honour's hands as to what, your Honour being, I say with respect, quite experienced in material of exactly this kind. I don't want to interrupt the sittings by drawing any further objection which I have to say applies to all of the witness evidence. Can that be properly taken, your Honour?
PN234
THE VICE PRESIDENT: Yes. It is in fact my normal practice to allow some latitude in the leading of evidence, but to certainly reserve all parties' rights to make submissions in due course as to the weight to be attached to evidence that might not be formally admissible if the rules of evidence were strictly applied. So, I'm happy to note that matter that you've raised, and the parties' rights are reserved in that respect. I'll otherwise propose to allow opinion evidence to become part of the evidence in the matter.
**** LISA DARMANIAN XN MR HARVEY
PN235
MR NEWALL: We're conscious of your Honour's usual approach, and we'd continue, of course, to adopt it without - thank you, your Honour.
THE VICE PRESIDENT: Thank you. I'll mark that witness statement exhibit H2.
EXHIBIT #H2 STATEMENT OF LISA DARMANIAN
THE VICE PRESIDENT: Ms Haynes.
<CROSS-EXAMINATION BY MS HAYNES [10.20AM]
PN238
MS HAYNES: Good morning, Ms Darmanian. My name is Sarah Haynes, and I'm here representing Australian Business Industrial. Thank you for coming in this morning. I just confirm from what's in your statement that you have a good understanding of the industrial issues facing employees in the social and community services sector?---I would say so, yes.
PN239
You say that the variations being sought by the ASU are very big issues that should be taken seriously, don't you?---Yes.
PN240
I suppose that's why we're all in here today; because you see these as big issues. In your statement, you estimate that approximately 20,000 workers are employed under this award?---That's related to the ASU's coverage in Victoria, yes.
PN241
It's a lot of employees, isn't it?---Yes, it is.
PN242
In respect of casual penalty rates in the award, you consider that the removal of weekend penalties is detrimental to employees. Is that correct?---That's right.
PN243
Yet despite the importance of these issues and the 20,000 workers you say are affected in Victoria, you refer only to one employer in your statement. Is that correct?---There's one example which is an attachment, if that's what you mean, yes.
**** LISA DARMANIAN XXN MS HAYNES
PN244
You also refer to take-home pay orders. Is that correct?---Yes.
PN245
Yet in your statement you make no reference to any applications for take-home pay orders?---That's right.
PN246
Are you aware of the modern award objectives?---In what sense?
PN247
As to what is the substance of the modern award objectives. The ASU's application today needs to satisfy a test, and that test is that the amendments are necessary to meet the modern award objectives?---Yes.
PN248
Are you aware whether take-home pay issues are included in the modern award objectives?---No.
PN249
No further questions.
PN250
THE VICE PRESIDENT: Mr Harvey.
PN251
MR HARVEY: No. I have nothing by re-examination, your Honour.
THE VICE PRESIDENT: Thank you for your evidence, Ms Darmanian. You may step down.
<THE WITNESS WITHDREW [10.22AM]
PN253
THE VICE PRESIDENT: The next witness is in Sydney?
PN254
MR HARVEY: Yes, your Honour. The ASU would call Sally McManus.
PN255
THE VICE PRESIDENT: Ms McManus, you can remain seated - sorry, remain standing. We're not getting volume from there. Is there a microphone nearby? Thank you.
PN256
THE ASSOCIATE: State your full name and address.
MS McMANUS: My name is Sally McManus of (address supplied).
<SALLY McMANUS, AFFIRMED [10.23AM]
THE VICE PRESIDENT: Thank you, Ms McManus. I think there might some paper shuffling near the other microphone, which is also coming through. You just need to make sure there are no papers touching those microphones.
<EXAMINATION-IN-CHIEF BY MR HARVEY [10.23AM]
PN259
MR HARVEY: Sally McManus, for the purpose of the transcript, can I just ask you to restate your name and address, please?---My name is Sally McManus of (address supplied).
PN260
Have you prepared a witness statement for these proceedings today?---I have.
PN261
Do you have a copy of that statement with you?---I do.
PN262
Is that a witness statement - just because we're not all in the one room here - of some 10 pages, covering paragraphs 1 through to 66?---It is.
PN263
And you have signed that and dated it 1 November 2012?---I have.
PN264
There's an attachment A to that as well. Is that correct?---Yes. That's correct, and a B and C.
PN265
THE VICE PRESIDENT: Through to F, I think.
PN266
MR HARVEY: All the way through E and F. Is that - - -?---Yes.
PN267
So, we've got the same document. That's good. Is there anything in that statement that you would like to correct at that point?---Yes, just a small typo in paragraph 49. In the third line, the word "of" should be "if".
PN268
Paragraph 49?---Yes. In the third line "reduction in the take-home pay if casual employees", not "of casual employees".
**** SALLY MCMANUS XN MR HARVEY
PN269
Other than that correction, is this statement true and correct to the best of your knowledge?---It is.
Your Honour, I would tender that statement?---The witness statement of Sally McManus dated 1 November 2012 with attachments will be exhibit H3.
EXHIBIT #H3 STATEMENT OF SALLY McMANUS
PN271
MR HARVEY: Thank you, your Honour. My intention today is not to ask our witnesses any additional questions, generally speaking, but I do have one additional question for Ms McManus, and it simply arises from some materials filed last week by the aged care employers. There's just one thing that I want to test with this witness, and I have indicated to Mr Newall in advance that I was going to ask possibly one question at the beginning. If your Honour is happy with that.
PN272
THE VICE PRESIDENT: Yes.
PN273
MR HARVEY: Ms McManus, I just wanted to ask in the aged care employers' submissions - and I'm not sure whether you've read them or not - there two awards, New South Wales state awards, mentioned in their submissions. They have both very similar names. One of them is called the Charitable Aged Care and Disability Care Services (State) Award and another one is called the Charitable Sector Aged and Disability Care Services State Award 2003. Can you tell this Commission what your understanding is of what employees in the social and community services sector, as defined in the modern award, are or were covered previously by those two awards? Do you know that?---Yes, I do. That award is fairly unique. It was an award of the New South Wales Commission, and it was made, I think, in 94 at the same time as there was a demarcation agreement between the old ASWU, the predecessor union to the ASU, and HARIA, which is now the HSU, and it only covered, I think, some maybe 25 employers in 1994. And those 25 employers, out of them, most of them don't actually exist anymore because the industry has changed so much since 1994. It has grown a lot and organisations have amalgamated and changed. The fact that it concerns that award didn't play a role in the setting the wages and conditions to a large degree for two reasons: (1) because a lot of those employers ceased to exist; but secondly because the SACS award - if I can call it that; the New South Wales SACS award - was the dominant award in the industry, and what happened is the funding bodies, both the New South Wales government and the federal government funded to the one award, the SACS award. And that practically became the award that employers used, and they'd even have in people's contract of employment that they were going to follow those rates of pay because those rates of pay paid higher overtime. So, employers themselves wanted to secure that funding off the New South Wales government, so they did so by making a legal connection between that award and the employment of their employees.
**** SALLY MCMANUS XN MR HARVEY
PN274
Just to clarify one aspect of that answer. I referred to two awards, two slightly different names, but you in your answer treated them as one award. Are you aware of whether they're two separately operating and functioning awards or is it your view that one succeeded the other? I'm not sure from your answer?---Not exactly sure of the history of that, but the award I'm referring to is the - I think it was the first one that you mentioned, but it had a list of employers who were covered by it, and that's the same list that referred to a demarcation agreement - well, not an agreement, an order of the New South Wales commissions made by Glynn J. I'm sorry I can't tell you which one that is, but whichever one has that list in it.
PN275
I have no further questions for this witness, your Honour.
THE VICE PRESIDENT: Ms Haynes.
<CROSS-EXAMINATION BY MS HAYNES [10.30AM]
PN277
MS HAYNES: Hello, Ms McManus. My name is Sarah Haynes. I believe we have met before. I appear for Australian Business Industrial. You have a long history, I can see from your statement, Ms McManus, with members in the SACS division of the ASU. That's correct, isn't it?---Yes.
PN278
Is it correct that you're well-versed in the provisions of the modern Social, Community, Home Care and Disability Services Award 2010?---I don't use it on a day-to-day basis anymore in a practical way that industrial officers or my organisers would, so I'd say I've got a good overview but I want to say I have had (indistinct) day.
PN279
So, as your statement says in paragraph 2, you'd say in your capabilities you're familiar with the industrial instruments?---Yes.
**** SALLY MCMANUS XXN MS HAYNES
PN280
In your experience, would you say that some employers rightly or wrongly do not always follow every single part of the award?---Certainly it's true that especially with voluntary management committees there can be a lower level of understanding of industrial law and so it is true, from my experience, that there's a higher level of non-compliance, if I can put it that way, compared to other industries.
PN281
Would you agree that if something is predictable it happens in a way that a person might expect?---I'm sorry, I don't understand.
PN282
In terms of the ordinary meaning of something being predictable it means that someone can anticipate what's going to happen?---
PN283
MR HARVEY: I think, your Honour, that's a pretty difficult question for the witness to answer in a very broad and general sense.
PN284
THE WITNESS: If it's a matter of philosophy, I suppose you could say that's true, yes.
PN285
MS HAYNES: Are you aware that the current provision describes a part-time employee in the award amongst other things as, "an employee who has reasonably predictable hours of work"?---Is that how it's defined? Is that what you're asking me?---
PN286
That's correct. Yes?---I couldn't say off the top of my head, but I think it does say that.
PN287
Thanks, Ms McManus. Is it possible that if a part-time employee is rostered on variable, dare I say, unexpected hours that the employee might be being rostered contrary to that definition in the award?---The problem is the award doesn't have minimum hours and it doesn't have the requirement that the employer reach an agreement about minimum hours or their limits. So, we've seen quite a change to that at a lowering of, I guess, the obligation on an employer to provide a list of legal minimums for people.
**** SALLY MCMANUS XXN MS HAYNES
PN288
But I suppose that you can at least accept, for the sake of argument, that if someone has to have predictable hours and the hours are not predictable then that is not what the award is intending?---Perhaps.
PN289
I refer you to the paragraphs 35 to 39 of your statement, in which you refer to an organisation, Life Without Barriers, in particular. Are you a manager of that organisation, Ms McManus?---No, I'm the secretary of the union.
PN290
So you're not a decision maker at that business?---At Life Without Barriers? No, I'm not employed by them, no.
PN291
Would you accept, then, it's mere speculation to purport to be in the mind of the managers in their decision making?---Life Without Barriers is our largest employer in terms of union membership. We've got over 300 union members there. So I suppose that speculation is based on informed knowledge of what they've told their workforce.
PN292
But I would just put it to you that you're not a manager and you can't purport to know what's in the manager's mind when they change their rostering arrangements?---Okay, sure.
PN293
Do you consider it in your members' interests to have secure employment?
---Definitely.
PN294
In your statement, you indicate that the social and community sector or industry has a highly casualised workforce?---Yes.
PN295
Does the ASU support increased casualisation of the workforce?---Do we support increased casualisation? Sorry, I couldn't quite hear you.
**** SALLY MCMANUS XXN MS HAYNES
PN296
Sorry, do you support an increase in the number of casual employees in the workforce?---No.
PN297
Are you familiar with the kind of work that is undertaken by employees within the social and community services sector?---Yes.
PN298
Are you aware that clients may attend supported employment during the day?
---Yes.
PN299
Are you aware that clients may attend recreational activities during the day?
---Yes.
PN300
Are you aware that support workers may be required to get the client ready for this activity in the morning?---Yes.
PN301
Getting a client ready in the morning may only take a very short period of time, say two hours?---Depends on the client. Most of the people employed, in fact I'd say 90 per cent are employed under the disability stream of this award as opposed to the home care stream, are supporting people who have intellectual disabilities and they're 24 hour care. So it depends very much on the client and it might take a lot longer. Usually, in most circumstances there's at least four clients in a house so that can become quite a complicated thing.
PN302
I understand. Do you accept that these clients who attend the activities away from their place of residence may not require care at the residence while they're away at their supported employment or their recreational activities?---Yes.
PN303
Do you accept that there's at least a possibility that if a carer is at the residential home or the group home, for instance, that while their client, for whom they've got responsibility for care, there might a down time or a period of time where they're not occupied?---If their job, if the employer decides not to roster them on at the supported employment place or the day activities the client may be doing - because obviously there's social and community care disability workers employed supporting those clients during the day, they don't just get left alone, they've got the same type of support there during the day that they would have in the morning - so I suppose it's a matter for the employer. If they decide that they don't want to employ those workers and employ some others, there would be down time.
**** SALLY MCMANUS XXN MS HAYNES
PN304
But you accept, at least for the point of argument, that it may be possible but, you're saying, not in all cases. You accept that in general this industry is dependent on funding and can, in some cases, be cash-strapped, don't you?---Yes.
PN305
A period of time when an employee is not usefully employed may be seen as problematic to an organisation that's cash-strapped, mightn't it?---Well, this is a situation that all employers in this industry have had to deal with forever, and they've had an award in my state which hasn't had (indistinct) forever until now, and there's never been an issue in terms of funding. The funding hasn't changed to any of these organisations that I represent because they're falling in funding cycles and so they're receiving amount of funding now as they received before the introduction of the modern award. So I don't believe that anyone would be suffering greater money problems because of the issue that you raise.
PN306
But if there are some instances where there is some down time, which you've accepted it may be in some cases, it's possible and open to an employer that they might employ a casual employee instead of a permanent part-time employee, mightn't they?---To do what? To do what work?
PN307
If there are periods of short shifts before someone attends supported employment or before they attend a recreational activity, they might employ a casual?---Just for the two hours in the morning, you mean, in your example - - -
PN308
Yes, or - - -?---that it might be better for them to employ a casual?
PN309
Or two, or longer, as you said it might take longer?---It might, yes.
PN310
Perhaps, yes?---Or a part-time worker, or a permanent worker.
PN311
But there's at least a possibility that there might be that situation. I've got no further questions. Thank you, Ms McManus?---Thank you.
**** SALLY MCMANUS XXN MS HAYNES
PN312
THE VICE PRESIDENT: Mr Harvey.
PN313
MR HARVEY: Your, Honour, just a couple - - -
PN314
THE VICE PRESIDENT: I'm sorry, Mr Newall , did you want to - - -
PN315
MR NEWALL: There is something arising from the evidence that was led from Ms McManus. I'll be brief, your Honour.
THE VICE PRESIDENT: Yes, certainly.
<CROSS-EXAMINATION BY MR NEWALL [10.41AM]
PN317
MR NEWALL: Ms McManus, Peter Newall, Counsel for the Aged Care employers. I heard you give evidence in response to a question from Mr Harvey about the two awards with similar names, the Charitable Aged and Disability Care Services Award and the other one that sounds very similar. You gave evidence that one of them was made as a result of a dispute and covered a list of 25 employers. The two awards about which Mr Harvey asked you have identical terms. You're conscious of that?---I'm not surprised. That probably explains - yes.
PN318
The other of those two awards, the one that hasn't got a limited range of 25 employers, was an open-ended general award that applied across the state?---No, that award - and I can't tell you the technical reason - never applied to any of our members (indistinct) SACS. It must have been superseded. I don't actually know the legal history of that, but I can actually tell you no employers use that award (indistinct)
PN319
That wasn't the question. The question was it was a general award of the Commission that applied at large across the state, whether or not your members are employed under it or not? Or you're not aware of it?---I just can't agree with that. I don't have the knowledge to say that that's true.
**** SALLY MCMANUS XXN MR NEWALL
PN320
Both the awards which had, as we've agreed, the same or very similar provisions contained broken shift provisions, didn't they? If you don't know, say so?---I think the answer is yes.
PN321
That was all that arose, thank you.
THE VICE PRESIDENT: Thank you. Yes, Mr Barkatsas.
<CROSS-EXAMINATION BY MR BARKATSAS [10.42AM]
PN323
MR BARKATSAS: Thank you. Ms McManus, my name Nick Barkatsas, appearing on behalf of VECCI. I just have a few brief questions to ask. I'll take you to paragraph 38 of your statement, where I think there's an example there of what I can only take to be from the Life Without Barriers employer. In the example of 38(a), and taking my friend, Ms Haynes's point in relation to the occasional non-compliance in this particular sector, from employers when they have boards and management, et cetera. You say there, there was an example of a shift whereby a sleepover was completed, there was work that was done again in the morning from 7 till 9 and then again the person was starting work at 3 pm the next day. Is that correct?---Yes.
PN324
Ms McManus, are you aware of clause 25.4 of the Award in question in relation to rest breaks between periods of rostered work?---10-hour break, would that be what you're referring to?
PN325
Yes?---Yes.
PN326
So would you say that in that particular example there, it's a clear example whereby the rostering of the employer by design or omission does not necessarily follow the award to a T? I put it to you, it's not in and of itself the broken shift provision that allows that, it's that particular employer's somewhat, I guess, lax understanding of the award provisions in themselves?---I think that's part of the confusion around it because there's also the clause about the shift that is then being worked in continuous shifts and not broken shift. Yet they say it's a broken shift clause so it's quite common for confusion to arise.
**** SALLY MCMANUS XXN MR BARKATSAS
PN327
Certainly. I heard your evidence just before in relation to your understanding of the awards in general, and it may not be on a day-to-day basis but from your understanding of awards in general and awards interpretation, are you aware of the, I suppose the Latin term, the lex specialis principle, so the specific overriding the general?---No, sir, I'm not aware of that.
PN328
Broadly speaking, if I could put it to you, there's a broad provision at 29.4, whereby it says that a shift must be performed in one continuous block, so that clause applies broadly, one may say, to the award in general. Then we've got, in specific and only in relation to a select group of employees in a particular sector that they are allowed, they are permitted, it is permissible under the award to perform a broken shift. Would that broad characterisation be correct in your knowledge?---Are you saying that until you go to shift worker, you can perform broken shifts? Is that - - -
PN329
I'm saying there's at 29.4, which falls within the shift worker clause, I guess it is for a shift worker, which is a bit, I take your point, it's ambiguous being there. There's broken shifts that's not in the shift worker clause. My point being in relation to a broad provision about one continuous block. Because I take you to your evidence at paragraph 34, where you say there's an inconsistency in the shift work provisions in the award. I put it to you that there's a broad, 29.4, which says that they must be in one block, and then there's a specific, 25.4 I think it is, in relation to broken shifts. By applying that principle of the specific overriding the general, then that would, I suppose, rule the day when it came to - if there was a dispute between the two. Would you broadly agree with that?---Yes, I can imagine the way you've described it that there will definitely - in the ASU, there will to be two different views about how it all works and that in the end perhaps it would be a matter for the court about what it meant. I mean, there's disputation when there's confusion about things.
**** SALLY MCMANUS XXN MR BARKATSAS
PN330
Absolutely, I agree. I'll just take you to one other aspect of your statement in relation to small business redundancies. From paragraph 60 onwards you discuss for the most part the ACT, and you also discuss the multiple employer agreement and is it your evidence there that you've got employers in that particular state or that particular industry that have, and I quote, at paragraph 63, "the capacity to pay small increases to employees on an annual basis". Is that correct?---Yes.
PN331
Yes. At paragraph 65 you say that there's award reliance because, and again I quote, "employers are funding reliant. This situation is not likely to change in the forseeable future." Is that correct?---Yes.
PN332
But it is also your evidence, keeping in mind those two, that, "capacity to pay small increases", which you attribute to indexing in funding so, from my understanding, from CPI indexes from year to year, "funding reliant", "not likely to change in the future". But it's your evidence that such employers should be subjected to the obligation to pay up to eight weeks severance pay in situations when sometimes that funding might be cut and that project might have to be cut short. Is that correct?---No, in the case of the ACT, it's an interesting one because they had a award that existed prior to award (indistinct) so they were already funded to pay to the old award and the then the award got cut. So that's why they're able to pay that. They're already funded to pay that amount of money in severance pay. It's not like the government, the ACT government's come along and said, "You're going to get less money now because you don't have to pay redundancy if we cut your funding." They've still got the same funding they had beforehand.
PN333
Certainly. But taking that point, would there not be examples, perhaps not in the ACT but in New South Wales whereby the government or the government departments are not likely to increase their funding in respect of small business redundancy because funding is tight across the board. But it is your evidence and the submission of your union that small business employers ought to have to pay redundancy. Is that correct?---Yes.
**** SALLY MCMANUS XXN MR BARKATSAS
PN334
No further questions, your Honour.
THE VICE PRESIDENT: Thank you. Mr Harvey.
<RE-EXAMINATION BY MR HARVEY [10.49AM]
PN336
MR HARVEY: Yes, your Honour, just some quick questions by way of follow-up. Sally, Ms Haynes asked you about events that happened, I think at Life Without Barriers in Dubbo. She asked you whether you could claim to be in the minds of the managers of that organisation. Can I just ask you whether you ever claimed to be in the minds of the managers at Life Without Barriers?---No, I certainly don't claim that skill.
PN337
What was the situation with the ASU's involvement in that matter at Life Without Barriers at Dubbo?---The ASU involvement is that those workers there are members of our union and we've been in negotiations with Life Without Barriers for many years, actually, now. Some of those issues have been resolved through just simply talking commonsense about the real life practicalities on the ground.
PN338
But in particular is it your evidence, which I think it is from your initial statement, that they attempted to introduce broken shifts and they now don't do it anymore others than in emergency situations? Is that correct?---Yes, that's right and that's because, from our perspective, the points I guess we do understand from our members' perspective that they were incredibly onerous on the employees. Especially because country people have to travel so far - and it's the same actually in Sydney, you've got to travel a long way to go to work - and people didn't want to work the shifts. So Life Without Barriers actually had an impractical problem in that they couldn't get the workers to agree to do it because they were working long periods of time away from their families. But more so, actually, all those people had second jobs so it wasn't practical for Life Without Barriers to implement it because they wouldn't have a workforce if they tried to do so.
**** SALLY MCMANUS RXN MR HARVEY
PN339
Yes, but the ASU's involvement, can I say it this way without attempting to lead you, is that it was an industrial involvement with the organisation not a managerial-type involvement?---Of course, sorry, yes, it was.
PN340
Yes, thank you. Just one other thing that Ms Haynes asked you, generally speaking that social and community services-type organisations were dependent on funding and I think you answered yes to that?---Yes.
PN341
She said that perhaps lots of them were cash-strapped organisations. Is that correct?---It's a relative term, but yes, relatively, yes. Absolutely. Yes.
PN342
Can you tell this Commission what is the basis of the funding of social and community services organisations generally? How do governments or whoever is funding them work out what to fund them on?---There's two big agreements that get reached between the states and the federal government, one to do with home services and one to do with disability services. Of course, there's a whole lot of other agreements as well. But they're the massive ones. That's 80 per cent of the industry. And they're negotiated every four years, so four-year agreements, and they apply - then once you sign the agreement that's what you get for that period of time. For all those employers, 80 per cent of the industry, that money hasn't changed except that it has been topped up for the equal pay increases and in most states and territories that's what has happened. So that's been given to on top of a stable funding base.
PN343
Can I ask you, when those agreements are negotiated what do governments look to to determine what level of funding for employees would be appropriate, for example? Can you say what?
PN344
MR NEWALL: The awards.
**** SALLY MCMANUS RXN MR HARVEY
PN345
THE WITNESS: They use the SACS award, the federal, the SCHADS award as the basis for that funding - and it has been reinforced through having to do a lot of detailed work which I've been involved in around the equal pay decision - to ensure that that money base is a correct and fair one so it fairly reflects the obligations on employers to pay at least the minimum of what's in that award.
PN346
So currently it's on the basis of the modern award. Previously, what award would they have used in, say, New South Wales?---The New South Wales SACS award, and that was the only award that they used for the last 10 years to determine the funding base for all disability and community services employers in New South Wales.
PN347
The final questions asked, by Mr Godfrey if I've got his name right, he asked you about small business redundancy and there's two aspects of that in your statement, one as it affects the Australian Capital Territory employees under that award. Is it your evidence that employees under the ACT award used to have an entitlement to small business redundancy?---Yes, that's right.
PN348
MR NEWALL: I object to this. This goes well beyond anything that was canvassed in cross, to be fair.
PN349
MR HARVEY: I disagree, your Honour. I think this was raised.
PN350
THE VICE PRESIDENT: I think it does arise from Mr Barkatsas's cross-examination. I'll allow the question.
PN351
MR HARVEY: Thank you, your Honour. Just one final question. In regard to New South Wales - because you were asked about whether you thought it would be appropriate to require small business employers in New South Wales to pay small business redundancy. Has there been an entitlement under the previous New South Wales Social And Community Services state award to pay small business redundancy?---No.
**** SALLY MCMANUS RXN MR HARVEY
PN352
No, thank you, I've no further questions. Thank you, your Honour.
THE VICE PRESIDENT: Thank you for your evidence, Ms McManus. You can stop down. You're free to remain if you desire. You have one more witness in Sydney?
<THE WITNESS WITHDREW [10.55AM]
PN354
MR HARVEY: Yes, your Honour. The ASU would call Des Pumpa.
PN355
THE VICE PRESIDENT: Mr Pumpa.
PN356
THE ASSOCIATE: State your full name and address.
MR D, PUMPA: Desmond Pumpa, (address supplied).
<MR DESMOND PUMPA, AFFIRMED [10.56]
THE VICE PRESIDENT: Mr Harvey.
<EXAMINATION-IN-CHIEF BY MR HARVEY [10.56AM]
PN359
MR HARVEY: Mr Pumpa, my name's Keith Harvey, I'm the advocate here today for the Australian Services Union. I just have a couple of formal questions to ask you and then some of my employer colleagues may have some questions for you as well. Firstly, for the purpose of the transcript, could I just ask you to restate your name and address please?---Desmond Pumpa, (address supplied).
PN360
Thank you. Mr Pumpa, have you for the purposes of the proceedings today prepared a witness statement?---Yes, I have.
PN361
Do you have that statement with you?---I do.
**** DESMOND PUMPA XN MR HARVEY
PN362
Just so that we're all sure that we're talking about the same document, is that a statement of two pages dated 1 November 2012?---It is.
PN363
To the best of your knowledge, is that statement true and correct?---It is,
PN364
Thank you, your Honour. I tender that statement by Mr Pumpa.
THE VICE PRESIDENT: Witness statement of Mr Pumpa will be exhibit H4.
EXHIBIT #H4 WITNESS STATEMENT OF MR PUMPA
PN366
MR HARVEY: I have no further questions of this witness, your Honour. Thank you, Mr Pumpa.
PN367
THE VICE PRESIDENT: Ms Haynes.
PN368
MS HAYNES: Mr Pumpa, I'm Sarah Haynes. I'm appearing for Australian Business Industrial. Thanks for making the time to come in today. In your statement you indicate that you've been employed by Mercy Lavington, the Mercy Centre in Lavington, for 10 years. Is that correct?---Yes, just over 10 years.
PN369
I was looking at the work done by the Mercy Centre, I was looking at the web site and I have to say I very much admire the community-based support that is provided to persons with a disability. I'd agree with what you say in your statement, that your work does make a difference in the lives of people. Mr Pumpa, how many years have you been working weekends?---Can you repeat that?
PN370
Sorry. For how long have you been working on weekends in your job?---It would be nearly, it would be close to the 10 years.
**** DESMOND PUMPA XN MR HARVEY
PN371
So I take it then you've retained this weekend work for the last three years?---Yes.
PN372
The ASU have spoken about aspects of the Social, Community, Home Care And Disability Services Award with management at the Mercy Centre haven't they?
---Yes.
PN373
You were aware of these discussions because you attended a meeting with Margaret Hickey and Cliff Jones, didn't you?---I did.
PN374
In this meeting, isn't it correct that you were told that employees would not be adversely affected by the removal of weekend penalty for casual employees under the award?---To the best of my knowledge, that issue didn't really come up. In saying that, the issues at the meeting were about concerns of possible clients leaving and, I suppose, the safe employment of permanent staff, and certainly all the discussion at that point was purely just for that period of time.
PN375
Are you aware how casuals are paid on weekends in this organisation?
---Currently, to the best of my knowledge - is they receive penalty - obviously, the weekend penalty rates.
PN376
Thank you. No further questions.
PN377
THE VICE PRESIDENT: Mr Harvey.
PN378
MR HARVEY: I have no further questions for this witness. Thank you, your Honour.
PN379
THE VICE PRESIDENT: Thank you for your evidence, Mr Pumpa. You can step down. The next witness might be by telephone. Is it Ms Grainger?
**** DESMOND PUMPA XN MR HARVEY
PN380
MR HARVEY: Yes. That's the next one on the list.
PN381
THE VICE PRESIDENT: Yes. I'll remain in court whilst my associate makes that connection.
MR HARVEY: Thank you, your Honour.
<JENNIFER LEIGH GRAINGER, AFFIRMED [11.02AM]
PN383
THE VICE PRESIDENT: Ms Grainger, can you hear me?---Sorry. I can hardly hear you.
You're cutting in and out a little bit. We might have some difficulty with the hearing. We'll see how it goes. Mr Harvey.
<EXAMINATION-IN-CHIEF BY MR HARVEY [11.03AM]
PN385
MR HARVEY: Ms Grainger, can you hear me from where I'm standing?---Yes. I can just hear you.
PN386
Just? Your Honour, would it be appropriate for me to - - -
PN387
THE VICE PRESIDENT: We might bring the microphone - telephone mic - - -
PN388
THE WITNESS: I can't pick it up and I'm next to the phone.
PN389
MR HARVEY: I think we're doing that at this end at the moment. Can you hear me now?---Yes. I can hear you now, but every now and then there seems to be someone is knocking against the phone.
PN390
We deny it at this end, but we'll see. Ms Grainger, my name is Keith Harvey. I'm the advocate for the Australian Services Union, and I've just got a few formal questions to ask you first of all, and then my employer colleagues may also ask you some questions. But first of all, simply for the purposes of the transcript, Jennifer, could I ask you to restate your name and address, please?---Jennifer Leigh Grainger, (address supplied).
**** JENNIFER LEIGH GRAINGER XN MR HARVEY
PN391
For the purposes of today's proceedings, did you prepare a witness statement?
---Yes, I did.
PN392
Do you have a copy of that witness statement with you?---Yes, I do.
PN393
So we're all clear that we're talking about the same document, would that be a one-page statement dated 1 November 2012?---Yes, it is.
PN394
To the best of your knowledge and belief, is that statement true and correct?
---Yes, it is.
PN395
That's all the questions I have. Your Honour, I tender the witness statement of Jennifer Grainger.
THE VICE PRESIDENT: Exhibit H5.
EXHIBIT #H5 STATEMENT OF JENNIFER LEIGH GRAINGER
PN397
MR HARVEY: Thank you.
THE VICE PRESIDENT: Ms Haynes.
<CROSS-EXAMINATION BY MS HAYNES [11.04AM]
PN399
MS HAYNES: Hello, Ms Grainger. My name is Sarah Haynes, and I appear for Australian Business Industrial. Thank you for being so generous with your time this morning. I've come across Life Without Barriers, and I have to say that the work undertaken there is extremely worthwhile. In your role, you provide care and support for people living with a disability. Is this correct, Ms Grainger?
---Yes, it is.
PN400
I would imagine that due to the special needs of the client, there is a focus on those needs?---Yes, there is.
**** JENNIFER LEIGH GRAINGER XXN MS HAYNES
PN401
Do your clients attend supported employment?---Pardon?
PN402
Do your clients ever attend supported employment?---The clients are either currently helping - they do not attend employment, no.
PN403
Do they ever attend recreational activities away from their place of residence?
---Such as day programs here.
PN404
During a morning shift, would you or a colleague need to help a client get ready for their day?---Yes, we do.
PN405
What does that usually involve?---It usually involves helping the client to wake up, get them out of bed, do their morning routine - which consists of showering, dressing, toilet, medication, cleaning - and anything else they require like packing their bag with their lunches and things like that.
PN406
Does this usually take about two hours?---Sometimes it takes two hours. Sometimes it can be a little more.
PN407
After the modern award commenced, how regularly did you personally perform a broken shift?---There was an occasion where I was employed pretty much on a daily basis, Monday to Friday.
PN408
Your pay records and roster sheets would corroborate that, would they, Ms Grainger?---Yes, it would.
PN409
At paragraph 4 of your statement, you describe a sleepover arrangement and then the following day, there is a broken shift. Is that correct?---Yes, it was.
PN410
You worked two hours after the sleepover and then you have a six-hour downtime or leisure time. Is that correct?---Yes, it is.
**** JENNIFER LEIGH GRAINGER XXN MS HAYNES
PN411
And then the work resumes?---Yes.
PN412
Generally, would you agree that it's not unusual for someone to have a six-hour leisure period in their day?---It is highly unusual. In speaking with our OM, which is our operations manager over in Dubbo, we came across the situation that it was highly dangerous to get staff members to keep going with these sorts of hours, as we were run down, we weren't doing our jobs to the full extent that we were - - -
PN413
But I suppose - - -?---- - - (indistinct) to work.
PN414
Sorry, Ms Grainger. For the everyday person on the street, it may not be that unusual that in a day, they might have six hours of down time in a day, just an everyday person on the street, putting aside in your work environment?---Six hours to come home and to have a sleep and eat and spend time with your family each day is highly unusual. I don't have anybody I know in around where I live, let alone family members, that do these sort of hours.
PN415
I might need to move around you because - thanks. When did the rostering arrangements change with Life Without, just in terms of the time, the days?
---About this time last year, as I said, we spoke with our operations manager, Reg Humphries, and we stated that we were feeling very unsafe. It was becoming a workplace habit, and - because of our broken shift, how it was inconvenient for a lot of people, especially those who have to travel, to go to the workplaces. So he implemented a set roster for houses, which was just so much easier. We were unaware that there were was supposed to be a 10-hour shift break in between each shift.
PN416
Are you aware that there was a change to the sleepover provisions in the award last year?---Last year there was. We were talking with Emily Mayer in regards to the problems that we were having, and she had advised us of that arrangement and we did pass the information down to our operations manager.
**** JENNIFER LEIGH GRAINGER XXN MS HAYNES
PN417
I put it to you, Ms Grainger, that the real reason for the rostering pattern changing was at least in part due to the changes in the sleepover provisions in the award?
---I'm sorry. I don't understand the question.
PN418
Ms Grainger, I'm just putting the suggestion to you that at least one of the reasons for the change in the rostering patterns was in fact the changes to the sleepover provisions that you could work immediately before and immediately after a sleepover; that that was one of the reasons for the change in rostering arrangements?---As far as I'm aware, that was not one of the reasons that was given for the change in our rostering system.
PN419
But you couldn't be sure that that wasn't one of the reasons, even if - - -?---No. I cannot be sure, because I'm not a mind reader. I'm sorry - - -
PN420
I understand that. None of us are. Thank you, Ms Grainger. No further questions.
THE VICE PRESIDENT: Mr Harvey.
<RE-EXAMINATION BY MR HARVEY [11.10AM]
PN422
MR HARVEY: Yes, Jennifer. It's Keith Harvey again. I get to ask a follow-up question if something has been raised during cross-examination, and I really only have one question for you. You mention sleepover, and Ms Haynes - if I can interpret, I think, the question Ms Haynes was asking you, she was suggesting that your break period in the afternoon, that six hours, was leisure time and you didn't need to sleep. I think the assumption behind that may have been that you were asleep during the sleepover period. But can I just ask you do you get a full eight hours' sleep when you're on a sleepover shift?---No, we didn't. Not at the time. At the time, we had a young gentleman who was our client and who was quite active on the night shift. Even though our roster said that it was a sleepover, nine times out of 10 we were active with that night shift.
**** JENNIFER LEIGH GRAINGER RXN MR HARVEY
PN423
Thank you. I have no further questions.
PN424
MS HAYNES: If I may.
PN425
THE VICE PRESIDENT: Ms Haynes.
PN426
MS HAYNES: I apologise if my question was not clear. In the statement, there's a shift and then there's a sleepover, and then the reference to the six-hour period was to the next day, so not necessarily to that period of sleeping; it was a period of time during the day. But no further questions.
THE VICE PRESIDENT: Thank you for your evidence, Ms Grainger. We will terminate the telephone call now.
<THE WITNESS WITHDREW [11.12AM]
PN428
THE VICE PRESIDENT: The next contact, Ms Brown.
PN429
THE ASSOCIATE: Please state your full name and address.
MS BROWN: Elaine Brown, (address supplied).
<ELAINE BRAINE, SWORN [11.13AM]
THE VICE PRESIDENT: Thank you, Ms Brown. The advocates for the Australian Services Union and Australian Business Industrial will have some questions for you. Mr Harvey.
<EXAMINATION-IN-CHIEF BY MR HARVEY [11.13AM]
PN432
MR HARVEY: Elaine, can you hear me?---I can just hear you. It's not very clear.
**** ELAINE BRAINE XN MR HARVEY
PN433
I'll talk up. I might be considered to be shouting in this room. So that you can hear me, I'll shout in the direction of the phone. Elaine, I am Keith Harvey. I am the advocate for the Australian Services Union, and my job for the minute is just to ask you some preliminary and formal questions, the first one of which is for the purposes of the transcript, can I ask you to restate your name and address, please?
---Elaine Brown, (address supplied).
PN434
Elaine, for the purpose of these proceedings today, did you prepare a witness statement?---I did, yes.
PN435
Do you have a copy of that statement with you?---I do.
PN436
Just so that we're all sure we're looking at the same piece of paper - which I'm now not looking at - is that a witness statement of one page dated 1 November last year?---Yes, it is.
PN437
It has got five paragraphs. I notice they're numbered 0 through to 4. Is that correct?---That's right.
PN438
And to the best of your knowledge, Elaine, is that statement true and correct?---It is.
PN439
Thank you. Your Honour, I tender that statement.
THE VICE PRESIDENT: Exhibit H6.
EXHIBIT #H6 STATEMENT OF ELAINE BROWN
PN441
THE VICE PRESIDENT: Elaine, I have no further questions of you, but one of my employer colleagues may wish to ask you some questions. Thank you.
**** ELAINE BRAINE XN MR HARVEY
PN442
THE VICE PRESIDENT: Ms Haynes.
<CROSS-EXAMINATION BY MS HAYNES [11.15AM]
PN443
MS HAYNES: Good morning, Ms Brown. My name is Sarah Haynes, and I appear today for Australian Business Industrial. Thank you for making yourself available and being so generous with your time. I appreciate that?---That's okay.
PN444
You've been working in the disability sector for a long time, haven't you?---I have, yes.
PN445
I'd imagine that due to the special needs of your clients, there's a particular focus on attending those needs?---I'm sorry. I'm having trouble hearing you.
PN446
I'm sorry. I will speak louder. Let me know if you still can't hear me?---Okay.
PN447
The comment I was making was that due to the special needs of the clients that you look after, there must be a focus with respect to the care that you give them on the needs of that client?---Yes.
PN448
What type of work do you perform as a disability support worker?---I am a disability support worker in service. A lot of the residents are ageing, so it's personal care, food preparation, medication administering, treatment administering. All sorts of everyday activities.
PN449
Do the clients ever go outside the residence to attend, say, recreational activities?
---They do.
PN450
So they wouldn't always be at the residence, then?---They're not, no.
PN451
In your experience of the industry, I understand you've never performed a broken shift. Is that correct?---I haven't personally, no.
**** ELAINE BRAINE XXN MS HAYNES
PN452
Do you know why an organisation might implement a broken shift?---I have no idea.
PN453
I understand, if you haven't worked a broken shift yourself. In cases where a client might not be at the residence, could you conceive that there might be a circumstance where because that client isn't there they don't require care?---I'm sorry. I didn't understand that question.
PN454
I'll break it up. I apologies. In a circumstance where a client might be away from their residence, would you agree that client might not always require the care of the carer at the residence?---Yes.
PN455
No further questions. Thank you for your time, Ms Brown. I appreciate it.
PN456
THE VICE PRESIDENT: Mr Harvey.
PN457
MR BARKATSAS: Your Honour, just a couple of questions.
THE VICE PRESIDENT: Mr Barkatsas.
<CROSS-EXAMINATION BY MR BARKATSAS [11.18AM]
PN459
MR BARKATSAS: Thank you for your time, Ms Brown. My name is Nicholas Barkatsas. I'm appearing on behalf of the Victorian Employers Chamber of Commerce and Industry. Can you hear me?---Just, yes.
PN460
Just? Okay. I'll try and shout as much as I can, which I usually wouldn't get latitude to do, I guess, in here. Ms Brown, I heard you say just before that you personally have never worked a broken shift, have you?---I haven't, no.
PN461
And you've worked at Emmaus for 10 years now. Is that correct?---Yes.
**** ELAINE BRAINE XXN MR BARKATSAS
PN462
We heard evidence earlier today - and this may not be something that you're aware of - that the ability to do broken shifts was never possible in the old award. Would you have any knowledge of that at all? You can say, "I don't know". That's fine?---No. I have no knowledge of that.
PN463
You've never worked one yourself, you don't have any knowledge of the old award or, I guess - and you also said before you wouldn't know why an employer would want to do that. However, you've given evidence that they tend to lead to a reduction in hours, penalty rates and take-home pay when implemented. Is that correct?---Yes.
PN464
I put it to you, Ms Brown, that you're not in a position to give that evidence, are you, because you've never done of those shifts, nor has Emmaus ever done that, have they?---No. I guess not.
PN465
Thank you. No further questions, your Honour.
THE VICE PRESIDENT: Mr Harvey.
<RE-EXAMINATION BY MR HARVEY [11.20AM]
PN467
MR HARVEY: Elaine, it's Keith Harvey here again. I get to ask a follow-up question about anything that has been raised with you. Can I just ask, in response to the question that Ms Haynes asked you - I think she asked you whether your client sometimes went to recreational activities - - -?---Yes.
PN468
- - - during the day. That's not in the home; they've left the home to go somewhere else?---Yes.
PN469
Do carers accompany clients to those activities?---Not usually, no. They're normally picked up by a transport system and taken to the activity.
**** ELAINE BRAINE RXN MR HARVEY
PN470
I have no further questions. Thank you, your Honour. Thank you, Elaine.
THE VICE PRESIDENT: Thank you for your evidence, Ms Brown. We will hang up the phone now.
<THE WITNESS WITHDREW [11.21AM]
PN472
THE VICE PRESIDENT: I propose to take a 15 minute adjournment now and we'll organise the next witnesses to give that evidence by telephone at 11.35.
<SHORT ADJOURNMENT [11.21AM]
<RESUMED [11.36AM]
PN473
THE VICE PRESIDENT: Mr McCloskey, I'll ask my associate to administer the oath or affirmation.
PN474
THE ASSOCIATE: Mr McCloskey, please state your full name and address.
MR McCLOSKEY: Peter Anthony McCloskey, I live in (address supplied)
<PETER ANTHONY McCLOSKEY, SWORN [11.37AM]
THE VICE PRESIDENT: Mr Newall.
<EXAMINATION-IN-CHIEF BY MR NEWALL [11.37AM]
PN477
MR NEWALL: Thank you, your Honour. Mr McCloskey, Peter Newall, counsel for the aged care employers speaking. I'm going to ask you a few formal questions and my friend, Mr Harvey from the ASU is then rightly to ask some - - -?---Excuse me, I am having difficulty hearing you.
PN478
MR NEWALL: Right, I'll try again.
PN479
THE VICE PRESIDENT: I wonder whether the telephone can be moved to the bar table. I think it might reach. It doesn't reach? Or even, if you want to, Mr Newall, come around to the other side just so that the witnesses can hear better.
PN480
MR NEWALL: I've never in my whole life stood here, your Honour, but I do it at your Honour's express direction. Thank you, your Honour. Mr McCloskey, does that improve the situation with your hearing?---Yes, that's fine, thank you.
PN481
Mr McCloskey, Peter Newall, I'm counsel for the aged care employers. I wanted to ask you a few formal questions and then my friend and today my opponent, Mr Harvey from the ASU wishes, I understand, to ask you some questions in cross-examination. I may get to ask you some questions at the end of that if necessary. Watson VP is presiding over the proceedings. Your name is Peter McCloskey?---That's correct.
PN482
You made a statement for the purpose of these proceedings. Do you have a copy of that with you?---Yes, I do.
PN483
That's a statement of some one and a half pages with five numbered paragraphs, and you signed it on 2 April. Is that the statement?---That's correct.
**** PETER ANTHONY MCCLOSKEY XN MR NEWALL
PN484
That is the evidence-in-chief from Mr McCloskey, may it please your Honour. I'll now retire, sir, and allow Mr Harvey to ask you such questions as he wishes.
PN485
THE VICE PRESIDENT: Do you wish to tender the statement, Mr Newall?
PN486
MR NEWALL: Yes, I was going to, I tender the statement of Mr McCloskey.
THE VICE PRESIDENT: I mark the statement of Peter McCloskey, dated 2 April, exhibit N1.
EXHIBIT #N1 STATEMENT OF PETER ANTHONY McCLOSKEY
PN488
THE VICE PRESIDENT: Mr Harvey.
PN489
MR HARVEY: Yes, thank you, your Honour. Mr McCloskey, can you hear me?---Yes, I can.
PN490
Thank you. As Mr Newall said, my name's Keith Harvey, I'm the advocate for the Australian Services Union and I've just got a few questions for you in regard to your witness statement. In your statement you indicate that you're the chief executive officer of Community Care Services Central Coast. That's correct?
---That's correct.
PN491
How long have you held that position?---Just over three years.
PN492
So since about 2010, or a bit earlier, 2009?---November 2009.
PN493
Thank you. Your organisation provides I think what's described as in-home care services?---That's correct.
**** PETER ANTHONY MCCLOSKEY XN MR NEWALL
PN494
Your organisation doesn't provide any residential aged care at all?---No, none at all.
PN495
So your only interest in this matter in one sense is in regard to home care services?---That's correct.
PN496
As you understand it now, your organisation as an employer is covered by the Social, Community, Home Care and Disability Services Industry Award 2010?
---That's correct.
PN497
Do you know that prior to coming into operation as that award, was your organisation covered by a New South Wales state award?---Yes, it was covered by the - I'll say it was the Home Care NAPSA Award, but "home care" may not be the correct title. Miscellaneous Home Care - - -
PN498
The Miscellaneous Workers Home Care Award, would that be correct?---That's correct.
PN499
That was a New South Wales NAPSA as you've already just said?---That's correct.
PN500
As we call those things these days. The other award applied to all of your home care employees?---Yes, it does.
PN501
Are you reasonably familiar with the provisions of that award, M McCloskey?
---Reasonably. I don't attend to the pay on a day-to-day basis, but I'm reasonably aware.
PN502
Do you recall the provisions in that award applying to part-time workers?---In, sorry, which award?
**** PETER ANTHONY MCCLOSKEY XN MR NEWALL
PN503
The Miscellaneous Workers Home Care Award?---No, I'm sorry. It's too far back for me and I really didn't apply that award.
PN504
Right, in your position - - -?---Yes.
PN505
Well, you may not be able to answer these questions, which is fine, so if you don't know the answer and you don't want to agree with me, just say you don't know or you don't agree. But I put to you that there was a minimum contract of hours for part-time staff under that award. Would you know whether that was true or not?
---I believe that not to be the case.
PN506
You don't think there was any minimum hours?---Minimum agreed hours?
PN507
Yes, a minimum number of hours that part-timers had to be employed either each week or each fortnight?---I'm sorry, no. I don't know. It's too many years ago now, so I'm sorry. I don't know.
PN508
We'll come and have to deal with that today later on. Do you recall whether there was a broken shifts provision in that award?---Look, again, I'm sorry. I don't know. I haven't looked at that award for three years and I was only in the organisation for a matter of weeks before it started to change over.
PN509
You probably don't know the answer to this question either, then. Do you know whether employees under that award were paid more for working on weekends?
---Sorry, if they were paid - - -?
PN510
Did they get extra pay if they were required to work on a Saturday or a Sunday?
---I believe that was the case, yes, for part-time employees.
PN511
Do you happen to know what those loadings would have been for either Saturday or Sunday work?---No, I'd only be guessing, I'm sorry.
**** PETER ANTHONY MCCLOSKEY XN MR NEWALL
PN512
All right. In the - again you may not be able to answer this question - but what happened if a home care client cancelled a service unexpectedly or at late notice under that previous award? Do you know?---I'm sorry. Had I realised this was going to be some of the questions, I would have reviewed it. But I'm sorry, I honestly can't recall.
PN513
Thank you. I have no further questions of this witness, your Honour.
PN514
THE VICE PRESIDENT: Thank you, Mr Harvey. Mr Newall.
PN515
MR NEWALL: Nothing arising, your Honour. I ask that Mr McCloskey be released.
THE VICE PRESIDENT: Yes. Mr McCloskey, thank you for your evidence. We will terminate the telephone call now.
<THE WITNESS WITHDREW [11.45AM]
PN517
THE VICE PRESIDENT: The next witness is Damien Sloane.
PN518
THE ASSOCIATE: Please state your full name and address.
MR SLOANE: Damien Anthony Sloane, (address supplied).
<DAMIEN ANTHONY SLOANE, SWORN [11.46AM]
PN520
THE VICE PRESIDENT: Thank you, Mr Sloane. Mr Newall.
MR NEWALL: Thank you, your Honour.
<EXAMINATION-IN-CHIEF BY MR NEWALL [11.46AM]
PN522
MR NEWALL: Mr Sloane, Peter Newall, counsel for the aged care employers. Can you hear me?---Good morning, Peter. I can, thanks.
**** DAMIEN ANTHONY SLOANE XN MR NEWALL
PN523
Excellent. Sir, I propose to ask you some formal questions and then my friend, and today my opponent, Mr Harvey from the ASU, may wish to ask you some questions in cross-examination. Did you make a statement for the purpose of these proceedings?---Yes, I did.
PN524
Do you have a copy of it with you?---Yes, I do.
PN525
Is that a statement of some one and a half pages, consisting of eight paragraphs?
---That's right.
PN526
You signed that on 28 March 2013?---Yes, that's right.
PN527
Having now taken the oath, do you say that to the best of your knowledge what's contained in the statement is true and correct?---That's right.
PN528
That's the evidence from Mr Sloane in-chief, may it please your Honour, and I tender the statement that he has identified.
PN529
THE VICE PRESIDENT: I think I have the same one but it has a paragraph 0 as well, so it might be nine paragraphs so I can understand the confusion.
PN530
MR NEWALL: That's my error. Do you want that cleared up, your Honour? Mr Sloane, the first paragraph of your statement has got the number zero, is that the one?---That's right, yes.
PN531
And the last is called number 8?---Yes, that's right. It has got five dot points on it.
THE VICE PRESIDENT: Yes. I'll mark that exhibit N2.
EXHIBIT #N2 STATEMENT OF DAMIEN ANTHONY SLOANE
PN533
**** DAMIEN ANTHONY SLOANE XN MR NEWALL
MR NEWALL: May it please your Honour. Thank you, Mr Sloane, that's all the evidence-in-chief.
PN534
THE VICE PRESIDENT: Mr Harvey.
PN535
MR HARVEY: Yes, thank you, your Honour. Mr Sloane, I'm the advocate today for the Australian Services Union and I've got some questions for you by way of cross-examination?---Thank you.
PN536
No, thank you. You're currently the director of human resources with Calvary Silver Circle. Is that correct?---That's right, yes.
PN537
And as such, you'd been familiar with the awards that apply to employees of your organisation?---Yes, I'm familiar with the award. Our support workers actually work under agreements, but I'm familiar with the modern award.
PN538
I had a look at your website recently and it would appear to me - but you can tell me if I'm wrong - that Calvary Silver Circle provides residential aged care services in a number of locations?---No, Calvary Silver Circle doesn't. But certainly part of the Little Company of Mary Health Care Group does, the residential aged care services.
PN539
So you're responsible for the residential aged care services - - -?---No, not at all.
PN540
Just before I leave that subject completely though, with regard to the residential aged care services, do you know which modern award that they would be covered under?---I assume they're covered under aged care award. Yes, I'm sure they are although they have agreements as well.
PN541
But the underpinning award for the residential part of your broader organisation's work would be the aged care award?---The aged care award and the nurses' award, yes.
**** DAMIEN ANTHONY SLOANE XN MR NEWALL
PN542
But the home care services, am I correct in understanding, are now covered by the modern Social, Community, Home Care and Disability Services Award 2010?
---Yes, that's right.
PN543
Is your statement made particular with regard to home care services?---Yes, it is. Calvary Silver Circle essentially only covers home care services, although we do have one residential disability facility and we have some respite - aged care respite centres.
PN544
If I can take you to your witness statement at paragraph 7 - like you've already described and summarised this fairly - you've described a number of factors affecting the provision of home care services in the preceding paragraphs - and then in paragraph 7 you draw a couple of conclusions?---Yes.
PN545
Is that right?---Yes, that's right.
PN546
So your first conclusion is that it's almost impossible to agree in writing on a regular pattern of work that includes providing a guarantee of a minimum number of hours or exact days of the week on which work will be provided?---Yes, that's right.
PN547
That's correct, that's your statement?---Yes.
PN548
You also say, following that, that in many instances paying a minimum of three hours per engagement at overtime rates for work outside rostered hours would see to giving it cost increases?---Yes, that's right.
PN549
Can you tell me, Mr Sloane, prior to coming into the operation of the modern Social, Community, Home Care and Disability Services Award, didn't an award of the New South Wales Industrial Commission apply to your organisation?---I'm not sure, Mr Harvey, in relation to Calvary Silver Circle. Most of the services in New South Wales I think would have been aged care services.
**** DAMIEN ANTHONY SLOANE XN MR NEWALL
PN550
Yes?---Not exclusively but certainly a lot of them would have been aged care services, yes. Potentially, there would have been some covered by the SACS award in New South Wales.
PN551
The New South Wales Social and Community Services Award, do you think may have applied?---It may have applied, yes.
PN552
We in this room will have to deal with this a bit later, but there were two prior awards which may be relevant. Perhaps the best way to deal with this is to just put this to you and see whether this rings any bells with you. There were two awards, two old New South Wales Awards. One is called the Charitable, Aged and Disability Services (State) Award?---Yes.
PN553
And there was another one with a very similar name, the Charitable Sector Aged and Disability Care Services State Award?---Yes.
PN554
Are you aware whether either of those awards applied to home care or employees in your organisation previously?---No. Look, to be quite honest, I'm familiar with that - the sector award because I used that award in my previous employment, which was - I think I described it at the front of my statement as an organisation that was providing aged care services, both residential and community, and that award that was covered us up until the time we went to an agreement. But in Calvary Silver Circle, I'm not sure, to be quite honest.
PN555
When I looked at both of those awards, they were, I think you've already said, primarily awards - well, they were applicable in aged care areas. That's what I think you just said, that - - -?---Yes.
PN556
But when I look at those awards, they also say that they covered home care where it was provided as an adjunct - that's the word in the award - to residential care services. Does that sound right to you?---Yes, it does.
**** DAMIEN ANTHONY SLOANE XN MR NEWALL
PN557
Those awards are likely - I don't want necessarily for you to say anything stronger than that if you're not sure, but do you think those awards would have been likely to apply to the home care services part of an organisation if that organisation was also providing residential aged care services?---Yes. I think that's probably likely, but in the case of Calvary Silver Circle, the two types of services are provided by different parts of the organisation and those different parts are different legal entities. So I think it would be - for what that's worth.
PN558
If I can just test that a little further. It seems to me - and again, tell me if I'm wrong - that those awards applied to home care services if they were provided by residential aged care organisation or business or service that was in that industry?
---Yes. That would be my understanding.
PN559
Even initially under the aged care award - I'm not sure whether you can answer this for me, but under the aged care award, the coverage for a period of time did also include in-home care services. Are you aware of that?---Look, I'm - yes. I think that's right. I think eventually there was a move to remove - home care services were only mentioned once in the aged care award, I think, and there was eventually a move to take that out, and I think that was done.
PN560
I might have misunderstood you there, but taken out of the aged care services award?---Out of the aged care award, yes.
PN561
And so it's now covered by the Social, Community, Home Care and Disability Services Award?---Yes.
PN562
But prior to that happening, you think it's likely that one of those awards that I mentioned before applied to employees of your organisation providing home care services?---No. Not at Calvary Silver Circle. I would doubt that very much.
**** DAMIEN ANTHONY SLOANE XN MR NEWALL
PN563
Are you familiar with the terms of those pre-existing awards? And you may want to say no to that if you didn't apply them?---Are you talked about the aged care award - sorry, the - - -
PN564
I'm talking about the old New South Wales awards; the charitable aged care - - -?
---Yes. Look, I'm familiar with them to the point that we did use those in the organisation I was working in. We moved to an agreement in 2009, I think, so I couldn't guarantee my recall of anything specific in the award.
PN565
You don't have to guarantee it, but I'll test it if you don't mind. Do you recall what those old New South Wales awards said about part-time workers?---Not off the top of my head, no.
PN566
If I prompt you a little further - because I'm allowed to in cross-examination - do you recall whether there was a minimum number of hours for part-time workers under those awards?---Yes, there were.
PN567
Do you know what that minimum guarantee was?---I think it was 15 hours.
PN568
I put it to you, it appears from my reading of the award, it was either 10 hours per week or 20 per fortnight?
PN569
You're not sure about that?---No. From my memory, we operate on the basis of 15 hours in my previous employment where those awards applied, but as I said, I mean, that might have been included in our agreement at that stage.
PN570
Do you recall whether there was a process in the award for varying minimum hours for part-time workers?---No, I don't.
PN571
Do you recall whether there was a process for dealing with client cancellations, if a client suddenly cancelled the service?---Yes. There was a number of steps that were undertaking. I can recall - I can't recall the steps but I do recall that it was things like making sure the hours went to permanent part-time workers rather than to casual workers, and a few other bits and pieces.
**** DAMIEN ANTHONY SLOANE XN MR NEWALL
PN572
And do you recall whether either of those awards - the old New South Wales awards I'm talking about - made a provision for broken shifts?---No. It doesn't spring to mind.
PN573
It doesn't ring a bell? You're not aware if there was an allowance paid for working a broken shift? Does that ring a bell?---No. Look, it doesn't particularly. I'm just trying to visualise what the allowances page looked like on the award.
PN574
In those old New South Wales awards, they're all up the back; they're hard to visualise. I'll try one last thing. What about employees working on weekends? Do they get additional penalty rates for working on weekends? Do you recall?
---Yes. Some of those employees certainly do.
PN575
Do you recall what those loadings for the weekend work were?---I couldn't recall specifically, no. I think, from memory, Sunday was larger than Saturday. Saturday was probably 50 and Sunday was probably 75, but I - - -
PN576
That's exactly what I've got on my piece of paper, so I think your speculation is completely accurate. And are you aware, Mr Sloane, whether casual employees got those loadings in the week?---My belief is that they got those in circumstances where those penalties were larger than the casual allowance.
PN577
And therefore, if a loading was 50 per cent or 75 per cent, you'd expect that to be higher than the casual loading, wouldn't you?---I would.
PN578
Thank you. I have no further questions for this witness.
PN579
THE VICE PRESIDENT: Mr Newall.
PN580
MR NEWALL: Nothing arises, your Honour. I ask that Mr Sloane be excused. May it please your Honour.
**** DAMIEN ANTHONY SLOANE XN MR NEWALL
PN581
THE VICE PRESIDENT: Thank you for your evidence, Mr Sloane. We'll now terminate the telephone call.
<THE WITNESS WITHDREW [12.00PM]
PN582
MR NEWALL: The last witness we propose to call is Ms Shields.
PN583
THE VICE PRESIDENT: Mr Harvey, are the awards you're referring to with the witnesses in evidence?
PN584
MR HARVEY: No. They're not, your Honour. I was going to tender them at the commencement of my final submissions.
PN585
THE VICE PRESIDENT: Yes. Is the actual versions of the award a better way to provide the basis for your submissions, rather than asking the witnesses for their memory?
PN586
MR HARVEY: As it turns out, I think yes, your Honour. I had anticipated from reading their witness statements - I thought they would be more familiar with the awards than what has proved to be the case so far. Yes, your Honour. I'd be happy to restrict my questioning of the next witness to just asking about the award coverage and then not ask about the terms of that award.
PN587
THE VICE PRESIDENT: Well, if you need to base a question on the terms of the award, you could read it to the witness or something like that, but to ask their memory of the award provision doesn't seem to assist anyone very much.
PN588
MR HARVEY: No. As it turns out, I thought there might have been more understanding of that because employees are still transitioning from those awards to the modern award, so that's a live issue in the industry. I thought that might be the case. I also realise that it's too late in the piece that I couldn't really put a copy of these awards to the witness, seeing that we're doing this by telephone, so I decided to go this method. In the end, it may be I'll just tender a copy of the award and just draw your Honour's attention to them. The critical thing is to try and work out whether they applied previously.
PN589
THE VICE PRESIDENT: Okay. We'll get Ms Shields on the line.
PN590
THE ASSOCIATE: Please state your full name and address.
MS SHIELDS: Louise (indistinct) Shields, (address supplied).
<LOUISE SHIELD, SWORN [12.03PM]
THE VICE PRESIDENT: Thank you, Ms Shields. Mr Newall for the aged employers will ask you some questions initially.
<EXAMINATION-IN-CHIEF BY MR NEWALL [12.03PM]
PN593
THE WITNESS: Sorry. I'm having trouble hearing.
PN594
MR NEWALL: We'll deal with that. Ms Shields, Peter Newall, counsel, for the aged care employers?---Hello, Peter. How are you?
PN595
I'm well, thank you. I hope you are too?---Thank you. I am.
PN596
I wanted to ask you a few formal questions about your statement and then, I think, Mr Evans, my opponent today from the ASU may wish to ask you some questions in cross-examination?---No problem.
PN597
First - - -
PN598
MR HARVEY: Mr Harvey.
PN599
MR NEWALL: Mr Harvey. I traduced Mr Evans. He's actually called Mr Harvey. You made a statement for the purpose these proceedings?---I did.
PN600
Do you have a copy of that with you?---I do.
PN601
Is that a statement which has five numbered paragraphs on the one page?---Yes, it does.
PN602
And you signed it on 28 March 2013?---Correct.
PN603
Having taken the oath, do you say that to the best of your knowledge and ability, what you say here is true and correct?---Yes, I do.
**** LOUISE SHIELD XN MR NEWALL
PN604
Thank you. That is the evidence-in-chief from Ms Shields, your Honour. I tender the statement that she has identified.
THE VICE PRESIDENT: The statement of Louise Shields will be exhibit N3.
EXHIBIT #N3 STATEMENT OF LOUISE SHIELDS
PN606
MR NEWALL: I'll now hand you over to Mr Harvey's questions.
THE VICE PRESIDENT: Mr Harvey.
<CROSS-EXAMINATION BY MR HARVEY [12.04PM]
PN608
MR HARVEY: Mr Shields (indistinct) Keith Harvey. I'm the advocate today for the Australian Services Union?---Hello, Keith. How are you?
PN609
Well, thanks. This may a little shorter than what I anticipated as a result of what has happened in the previous couple of goes of this with the other witnesses, so I may truncate it. I just want to test your knowledge about a couple of things. Ms Shields, you're currently the human resources manager with the Lutheran Aged care in Albury?---Correct.
PN610
As such, would you be familiar with awards that apply to employees of your organisation?---Yes, I do. I am.
PN611
How long have you been in that position?---I've been in this role since February 2012.
PN612
Well, that's going to answer one of my questions. Looking at your website, it appears the Lutheran Aged Care in Albury provides residential aged care services in a number of locations?---Correct.
**** LOUISE SHIELD XXN MR HARVEY
PN613
And you're responsible from a human resources point of view for them?---As well as the community care services that we provide as well, and the staff that are attached to the delivery of those packages.
PN614
One part of the organisation is doing residential aged care functions?---That's correct.
PN615
For those functions, employees are covered by the modern aged care award. Are you aware of that?---Yes.
PN616
But your home care services are covered by the modern Social, Community, Home Care and Disabilities Services Award 2010?---All of our staff are covered by the Aged and Home Care NSWNA and HSUE Multi-Enterprise Agreement 2011-2014.
PN617
If we don't consider the agreements at the moment, what's the basic underpinning modern award. Do you know?---No. I'm not aware.
PN618
Are you aware of the general sort of industrial arrangements in this country, that there's generally, nowadays, what's called a "modern award"?---Yes.
PN619
And then on top of that there may be agreements?---Correct.
PN620
You've described that you've got some agreements. They would be, effectively, comprehensive agreements, and you go and look at those for all the terms and conditions of your employees. Is that what you're saying?---Yes. That's correct.
PN621
You're not really familiar about the underpinnings of the awards?---No. I work primarily with just agreements.
**** LOUISE SHIELD XXN MR HARVEY
PN622
At the risk of being obtuse, you're not aware of which modern award covers the home care component of your organisation and its employees?---Correct.
PN623
But in any case, the statement that you've made today - that Mr Newall has just referred you to - that is made with regard to the home care services part of your work - your foundation to work?---Yes.
PN624
I'm just going to ask you this on the off chance that you may know the answer to this, but prior to either the modern aged care award or the modern Social, Community, Home Care and Disability Services Award coming into operation, are you aware of what awards applied to either the aged care or the home care parts of Lutheran Aged Care in Albury?---No.
PN625
Well, in that case, I don't think I'll waste your time asking you any questions about those awards. Thank you for your evidence today.
PN626
THE VICE PRESIDENT: Mr Newall.
PN627
MR NEWALL: Nothing arises, your Honour. I ask, subject to anything from your Honour, that Ms Shields be excused.
THE VICE PRESIDENT: Thank you for your evidence, Ms Shields. We'll terminate the telephone call now.
<THE WITNESS WITHDREW [12.08PM]
PN629
MR NEWALL: Your Honour now has (indistinct) all our evidentiary case.
PN630
THE VICE PRESIDENT: Thank you, Mr Newall. I don't know whether I've received all your evidence, Mr Harvey.
PN631
MR HARVEY: Yes. Sorry, your Honour. Your Honour is quite correct. Therefore, I should formally tender the witness statements of the witnesses who are not required to give evidence. The first one of those is a statement by Katherine Nelson. If I could be so - she's not here, and I spoke to her about this statement last week and she drew my attention to two errors in it. I'm not sure of what the proper procedure here is, your Honour, but the first one is entirely minor. It's just that her name is misspelt at the top of the statement. It has got two Is in that.
PN632
THE VICE PRESIDENT: What paragraph?
PN633
MR HARVEY: It's at the top of the statement. It's just in bold, upper case letters. It says, "Statement of Katherine Nelson".
PN634
THE VICE PRESIDENT: The spelling of the name? Yes.
PN635
MR HARVEY: If you wouldn't mind, if we could correct the name.
PN636
THE VICE PRESIDENT: Yes.
PN637
MR HARVEY: On the last page - if we go to paragraph 40, in the last line of that, it says, "The overall majority SACS workers", the word "of" should be between the words "majority" and "SACS". So, it would read, "The majority of SACS workers in Queensland have lost casual penalty rates". On the very last page, paragraph 50, the first line, the word "works" should read "workers", "The loss of weekend penalty rates for casual workers".
PN638
THE VICE PRESIDENT: I think they're all typographical errors. I'm happy to make those changes and - - -
PN639
MR HARVEY: I tender that statement as amended.
THE VICE PRESIDENT: Yes. And I admit that statement into evidence. It will be exhibit H7.
EXHIBIT #H7 AMENDED STATEMENT OF KATHERINE NELSON
PN641
MR HARVEY: Your Honour, there's a further statement then by Katrine Hilyard, a statement of some 32 paragraphs. There's no - - -
PN642
THE VICE PRESIDENT: That name is spelt correctly?
PN643
MR HARVEY: Yes, it is, your Honour. I tender that statement.
THE VICE PRESIDENT: Exhibit H8.
EXHIBIT #H8 STATEMENT OF KATRINE HILYARD
PN645
MR HARVEY: And then with regard to Patricia Branson, there are in fact two statements, your Honour. The first one was attached to the submission of the Australian Services Union filed, I think, on 2 November last year. That was the statement that was just handed up, the statement of Patricia Anne Branson. It has got 27 paragraphs. It's signed - every page is signed, and it's dated 2/11. There are no corrections to that. I would seek to tender that statement, your Honour.
PN646
THE VICE PRESIDENT: It's just the one attachment?
PN647
MR HARVEY: Well, annexure A is one attachment. - - -
PN648
THE VICE PRESIDENT: Yes. There's another attachment.
PN649
MR HARVEY: There's a number of - sorry. The other attachments referred to in it are attachments to a witness statement which is contained in annexure A, but I don't think they need to be marked separately. For the record, there are a number of those - sorry. There's an annexure B. I'm sorry, your Honour.
PN650
THE VICE PRESIDENT: And a C, and a - - -
PN651
MR HARVEY: I haven't got a C.
PN652
THE VICE PRESIDENT: I've got something called "attachment C".
PN653
MR HARVEY: Annexure - sorry.
PN654
THE VICE PRESIDENT: It might be attachments to someone else's statement. No. I do have - no. It has been interposed here. I have attachment A, B and C, which seems to be attachments to witness statements of Tony Tidswell, but - - -
PN655
MR HARVEY: Yes.
PN656
THE VICE PRESIDENT: They're not part of - are they part of annexure A of the statement of Patricia Branson?
PN657
MR HARVEY: Yes. I think that's correct, your Honour.
PN658
THE VICE PRESIDENT: So, annexure A is a witness statement of Tony Tidswell, and then there at attachments of Tony Tidswell that form part of the witness statement, and then there's annexure B to the statement of Patricia Branson, which is a witness statement of an anonymous person, that also has an attachment. Are we on the right page?
PN659
MR HARVEY: Yes, your Honour.
THE VICE PRESIDENT: I'll mark that statement of Patricia Anne Branson dated 2/11/2012 with the attachments thereto exhibit H9.
EXHIBIT #H9 STATEMENT OF PATRICIA ANNE BRANSON DATED 02/11/2012
PN661
MR HARVEY: There is one other witness statement. That is, a second statement made by Patricia Branson, which was attached to the ASU's submissions in reply.
PN662
THE VICE PRESIDENT: It's an undated statement of 17 numbered paragraphs?
PN663
MR HARVEY: Yes, it is, your Honour.
THE VICE PRESIDENT: I'll mark that statement exhibit H10.
EXHIBIT #H10 UNDATED STATEMENT OF PATRICIA ANNE BRANSON
PN665
MR HARVEY: Thank you, your Honour. I believe, unless I've missed something, that is the ASU's witness evidence in these proceedings. Would your Honour like me to go now to final submissions?
PN666
THE VICE PRESIDENT: I'll just confirm that there's no other evidence. In due course, I'll mark the submissions of the parties. I'll mark them as exhibits, even though they're not technically evidence. But I'll come to those when each party makes their submissions. Is there any other evidence that any other party has filed and wishes to rely on? It would appear not. If we could proceed to submissions, Mr Harvey.
PN667
MR HARVEY: Sorry, your Honour. There is one other thing I'd like to tender. Not by way of witness statement, but that's the article by Sarah Charlesworth and one other which the ASU filed and served before Easter, and I would like the leave of the Commission to tender that and make some reference to it in my final submission.
PN668
THE VICE PRESIDENT: Yes. That's the article entitled New Australian Working Time Minimum Standards Reproducing the Same Old Gendered Architecture.
PN669
MR HARVEY: That's correct, your Honour.
THE VICE PRESIDENT: That will be exhibit H11.
EXHIBIT #H11 JOURNAL ARTICLE
PN671
THE VICE PRESIDENT: And were you going to tender some awards as well?
PN672
MR HARVEY: Yes, your Honour. We may as well get that out of the way right now, just because it has come up. I would like to tender a copy of three New South Wales awards which have been referred to today. Would your Honour like me to wait - - -
PN673
THE VICE PRESIDENT: Please continue. No.
PN674
MR HARVEY: They are - if I can describe these and hand them up. They're old awards of the New South Wales Industrial Commission. They are - I'll identify them - AN120117 Charitable Sector Aged and Disability Care Services (State) Award 2003; there's AN120118, which is titled, the Charitable, Aged and Disability Care Services (State) Award and AN120341, the Miscellaneous Workers Home Care Industry State Award. I'm not sure whether, given that they are - these are the Fair Work consolidation - those awards, your Honour. I'm not sure whether you want to mark them, or - - -
THE VICE PRESIDENT: I will. I'll mark the 2003 award exhibit H12.
EXHIBIT #H12 CHARITABLE SECTOR, AGED AND DISABILITY CARE SERVICES (STATE) AWARD 2003
THE VICE PRESIDENT: I'll mark the Charitable, Aged and Disability Care Services (State) Award exhibit H13.
EXHIBIT #H13 CHARITABLE, AGED AND DISABILITY CARE SERVICES (STATE) AWARD
THE VICE PRESIDENT: And the Miscellaneous Workers Home Care Industry Award exhibit H14.
EXHIBIT #H14 MISCELLANEOUS WORKERS HOME CARE (STATE) AWARD
PN678
MR HARVEY: Thank you, your Honour. Now, while I'm doing this, just for - yes.
PN679
MR NEWALL: Your Honour, can I just rise to assist. I note this. Your Honour will see that those are 2006 editions of the awards. No point will be taken about that, because as I'm instructed, there were no relevant changes made to any of them between now and the present day, so your Honour can treat them as if they would the current prints of the awards for the purpose of today's exercise.
PN680
THE VICE PRESIDENT: Thank you, Mr Newall.
PN681
MR NEWALL: I thank those instructing me, your Honour.
PN682
MR HARVEY: Sorry, your Honour. If anybody at the bar table doesn't have a copy of the JIR article, I have a spare copy if people would like that. And I was, in my closing submissions, your Honour, going to tender, for the assistance of the Commission - I hope for the assistance - two further documents which were only prepared yesterday. They're not really new information, but I think it's a way of presenting information which we've already put, which may be helpful to the Commission and indeed to the other parties to help them understand our case. Perhaps if I do that now, unless there's any objection to it. The first one is simply an ASU extracts of award clauses dealing with minimum periods of engagement for part-time workers.
PN683
Now, I should just perhaps explain, your Honour, in the ASU’s initial submissions we attached to those initial submissions which you have yet to mark very extensive tables, I think, of about 23 awards which outline what all the provisions were in the pre-existing awards with regard to the matters that are in dispute at the moment. When we did part-time workers in that we only copied and – well, they asked and it was done, it was copied, the part-time workforce. It now appears, and this is what I’m going to say in submissions, that you really need to, in some cases, read other parts of the award to get a proper picture of what the entitlements of part-time workers are, for example, regular work. I’ve now extracted what I consider to be all relevant clauses and added them to the part-time workforce. So that’s the purposes of this exhibit which I’d seek to tender now, your Honour.
PN684
THE VICE PRESIDENT: Might I conveniently just regard this as a further attachment to the submissions of 2 November 2012?
PN685
MR HARVEY: I’m happy with that, your Honour.
THE VICE PRESIDENT: You’ve got a number of attachments of a similar nature. I might mark those submissions with the attachments and supplemented by this further document. I’ll mark those submissions exhibit H15.
EXHIBIT #H15 SUBMISSIONS WITH ATTACHMENTS
PN687
MR HARVEY: Thank you, your Honour. One final thing, the question of small business redundancy. As your Honour and the other parties will have noticed, we’ve changed our position a little about small business redundancy as we went through, but in particular having read the submissions in reply of the employers. There were some particular helpful submissions in VECCI’s submissions which I think outline what the deal was with the preservation or otherwise of small business redundancy for certain employers and in the amended draft order we filed yesterday we further identified – I think there’s now five awards, Federal awards, in total, where we think the small business redundancy ought to be preserved at least as a transitional provision until the end of next year.
PN688
Your Honour, it’s in one sense a fairly simple argument for us to put and I intend to put it in a couple of minutes, but to work out whether what I’m saying about this is true or not you really need to go back to the pre 2004, that is, the simplified version of the award, to see whether employees of small business had an entitlement to redundancy. That’s what I’ve attempted to do in this document, to go back to the simplified versions of the awards that we referred to, and just pull out the relevant clauses. I think it would be of assistance to the commission and subject to any objections from the other parties I’d like to tender those extracts. In every case it’s only an extract of sort of the title page of the simplified award plus the clause which relates to small business redundancy, but I think it may assist our consideration.
THE VICE PRESIDENT: I’ll mark that document, being a series of extracts of awards, exhibit H16.
EXHIBIT #H16 SERIES OF EXTRACTS OF AWARDS
PN690
MR HARVEY: Thank you, your Honour.
THE VICE PRESIDENT: I think I’d better mark your submissions in reply, Mr Harvey, dated 26 November H17.
EXHIBIT #H17 SUBMISSIONS IN REPLY OF ASU DATED 26 NOVEMBER
PN692
MR HARVEY: Thank you, your Honour. I think that’s everything, your Honour, and I’m happy to proceed now. It may take me a good half hour to get through this but I’m happy to do that and we’ll see where we are at the end of it.
PN693
THE VICE PRESIDENT: Please proceed.
PN694
MR HARVEY: Thank you, your Honour. Your Honour, I’ll do this as effectively as I can given obviously that we’ve just finished the examination of witnesses and cross-examination, so I’ll try and weave into what I’ve already prepared the results of that. As I said earlier, your Honour, the ASU’s application for review of the modern Social, Community, Home Care and Disability Services Award is about four things. It’s about the terms of engagement for part-time employees, including minimum hours of engagement and agreement to a regular pattern of work, the elimination of the broken shift provision in the award other than for home care employees, the restoration of weekend penalties for casual employees and small business redundancy for employees covered by certain pre-reform awards, and I’ll deal with those in that order.
PN695
As I said earlier again, your Honour, and just so we don’t forget, the ASU yesterday filed and served an amended draft order to give effect to the variation proposed by us. The main change in that related to small business redundancy, which we’ll come to in a minute, and we also took out a redundant reference to something that had already been done as a result of the determination of Senior Deputy President Kaufman last year, but on the question of the restoration of the weekend penalties, as I have indicated, I don’t think our clause in the draft order is effective. It appears to have given rise to a belief that we wanted overtime for part-time workers. That’s what one of the witnesses from the aged care sector believed, but that’s not what we want. We want penalty rates restored for casuals working on weekends. To the extent that our clause doesn’t say that, it doesn’t say it properly, we’re prepared to redraft that and get it to your Honour and the other parties as soon as possible after this or as directed by your Honour.
PN696
Your Honour, the ASU submits that the variations in respect of each of these four key matters in this award can be, and in our strong submission should be, granted by this commission. We say in fact that these proposals are modest and do not impose a burden on employers beyond what the overwhelming of employees were entitled to prior to the introduction of the modern award, and I hope to demonstrate that. Moreover, we strongly submit that these variations are not only desirable but in fact are necessary to meet the award modernisation objective. Without each of these variations we submit the award does not provide a fair and relevant safety net of terms and conditions of employment for employees in this sector. Moreover, we say the absence of these provisions has created anomalies and uncertainty. They’re more than technical issues, but some of them I think are also technical issues which in turn have created anomalies. The ultimate effect of these problems is that there is not a proper safety net for employees as required by the Act by the awards modernisation objective.
PN697
Your Honour, we’ve all been around this course a few times, but I think the test for these types of applications, or the tests for these applications are becoming reasonably settled. As a full bench of this commission headed by your Honour yourself recently noted in the Graphic Arts case, the act says that the 2012 review involves the commission considering whether modern awards firstly achieve the modern awards objective and secondly are operating effectively, without anomalies or technical problems arising from the award modernisation process. I do have a copy of that Graphic Arts decision if your Honour wants me to hand it up, or if the other parties wish to see it, but I think that’s a fair characterisation of it.
PN698
As that full bench said, both aspects of this issue need to be considered, but the commission can act even if only one of those two aspects are of concern. That full bench also said in its decision that the task of reviewing an award is a broad one. We submit that the ASU’s application meets the test in respect to all variations. It’s also been held, as your Honour would be aware, that any review of modern awards would require cogent reasons for departing from previous full bench decisions. This is particularly the case, obviously, where an award modernisation full bench has explicitly ruled on these matters.
PN699
Now, a reading of the employers’ submissions, and I don’t want to go into detail on them, they’re there to be read, we have filed submissions in reply to all of the employers’ submissions last year, not obviously in reference to the submissions filed by the home care employers last week so I’ll have to say something about those in a minute, but some of the employers have said generally that all these matters have been dealt with before and there’s no basis for the commission as presently constituted further dealing with these matters. With respect, we say that that is not the case. None of the matters before the commission today, as far as I’m aware, have been the subject of explicit decisions by any award modernisation full bench with regard to this award. We have provided in our submissions full extracts of the two relevant full bench decisions, when the exposure draft was released and when the final award was released in the end of 2010, from memory, and neither of those decisions considered any of these matters.
PN700
To support our case the union has filed submissions and, as we’ve heard today, provided witness evidence from union officials and from members. We’ve also provided the commission with a range of documentary material, primarily extracts from previous awards to show what the previous entitlements were. We have done so not really to make the point about what the critical mass of pre-existing awards said, although we think that’s a significant matter, but also to show how the pre-existing awards operated with regard to these matters. We say that particularly when you compare what the modern award says about a number of these things, especially part-time work, with what the modern award says, we can see that, in our submission, the modern award is not operating effectively to provide a fair and relevant safety net for employees.
PN701
As I said, we’ve filed evidence in support of our proposition and we believe that evidence strongly supports the applications. Such evidence has been held by this commission as recently, I think, as a penalty rates case as being beneficial and useful to the commission and we certainly hope that our evidence is beneficial and useful to this commission in determining this matter. For the most part, on the other hand, the employer organisations which have lined up against us have not provided any significant evidence by way of rebuttal. The ASU, for example, has produced significant instances to say that the award is not providing a fair safety net. For the most part in their written submissions the employers didn’t respond to that specific evidence or challenge the veracity of what we’ve said. Some of that has occurred by way of cross-examination from Ms Hayes and others today, but in their written materials they just said effectively, “No, there’s no basis for doing it.”
PN702
The exception to that, and I’ll come to it in a minute, of course, are the aged care employers, who did file further submissions last week and provided witness evidence for the assistance of the commission. We’ll say a little about that in a minute, but we say notwithstanding what has happened this morning by way of any cross-examination of our witnesses, we say a large part of our evidence has been accepted and has not been contradicted by any evidence as such filed by any employer organisation. In one case, of course, the employers did respond, that is, Western Australian Chamber of Commerce and Industry. They did respond to what we said about the situation with regard to Anglicare in Albany and part-time hours. We responded to that submission with a further submission and a witness statement from Patricia Branson which has been – the further witness statement has been unchallenged and that’s part of the commission’s record.
PN703
So, you know, I’m putting words into their mouths, of course, but for the most part most of the employers have just said no to the application and have sort of been content to leave it more or less at that. They describe our application as unsupported by the evidence because they will have to show – it’s simply not the case. We say our evidence is strong and we think it’s compelling.
PN704
If I just go to each of the matters and just briefly explain what we’re trying to do and why. The first question, your Honour, is the question of our terms and conditions for part-time employees. The union’s application, as I said, seeks to do two things, a three-hour minimum period of engagement for each occasion that the employees is asked to work and a provision which says, and I quote, “Before commencing employment the employer and employee will agree in writing on a regular pattern of work, including the number of hours to be worked each week, the days of the week the employee will work and the starting and finishing times each day. Any agreed variation to the regular pattern of work will be recorded in writing.”
PN705
The ASU submits that without these provisions part-time employees not only do not have what might be called a fair and relevant safety net, they actually have no safety net whatsoever. I don’t think that’s putting it too boldly or stating it too highly. The employers have no obligation, for example, to reach any agreement with commencing part-time workers on what regular pattern of hours are to be worked. As such, as there is no obligation, some employers now have felt free to reduce the hours of part-time workers to zero in a given week, and as our evidence has shown, they have been doing so. I don’t think any of that is really contested.
PN706
So there’s no requirement to reach agreement on a regular pattern of hours, there’s no requirement to give anybody, any part-timer, a minimum number of hours each week, therefore they could be reduced to zero if you strictly apply the award, and there’s no obligation on employers to give part-time employees a minimum number of hours per engagement. This is, in our view, inexplicably missing from the award. Casual employees have such an entitlement. Part-timers do not. So in one sense, and in a very important sense, part-timers are effectively actually worse off than casuals under this award in terms of their job security, their entitlement to hours of work, but they get no loading or any other compensation for this absolute employer flexibility in this area.
PN707
We think this must be an error, an unintended effect, something that arose through award modernisation which was not noticed, not picked up and not corrected, but it’s a serious anomaly, it’s a serious error, no matter how you describe it. I think we noted, at least until last week’s intervention by the aged care employers, in none of the employers’ submissions did there appear to be any real opposition to the clause that we proposed about agreement in writing and we said in our submissions in reply that on that basis it should be granted. There is now apparently some opposition to it, but we still say overwhelmingly there hasn’t bee a strong reaction to that.
PN708
We think it’s a modest proposal, but it’s also a proposal which is very important to employees, because it’s really – when you think about it, your Honour, and looking at these awards, which I’ve done for a long time and your Honour has done for a long time as well, you look at the awards and you – if we take full-time employees, do they need an entitlement for a minimum engagement? No, not really, because they’re 38 hours. They’re entitled to expect and they must be offered by the employer an average of 38 hours per week, so they don’t really need an entitlement. Do casual employees need a minimum entitlement per week? Well, not necessarily, because they’re casual employees. They get a minimum engagement. If they’re called into work they’ve got to be called into work for a certain number of hours, which varies depending on which type of sector you’re in under this award.
PN709
So it’s the part-time workers who need some regularity, because the awards normally just say part-time workers are workers who are engaged to work less than 38 hours a week. So that could be zero or it could be half an hour, it could be hour, we don’t know. So you actually need something more than a bald statement that you could can just work less than 38 hours per week.
PN710
So as I said earlier, your Honour, we in our initial submissions extracted all the part-time work clauses from the relevant awards and put them in warts and all. You know, we don’t believe in hiding anything, we just say what it is, but when I went back and reviewed that, having read the employers’ submissions, because they said, “But that’s what happens now under these awards. If you look at these awards, even look at the ASU’s exhibit,” one of the submissions said, “there’s no evidence that there’s any minimums for part-time work.” If you only read the part-time work clause I forgive the employers for making that statement, because you possibly could form that view. So it’s where you then need to go to other parts of the award in some cases to work out what a part-time employees is really or was really entitled to under the pre-existing awards.
PN711
Now, I’ve just picked up and I’ve turned to the Social and Community Services Victoria Award, a pre-existing Federal award, and in my exhibit which I’ve forgotten – sorry, H15, if you go to the documents now attached to H15, turn the page, your Honour; it doesn’t really matter where you go to, but on the third page if you look at the Social and Community Services Victoria Award 2000, I’ve added in the extra clause there, “Types of employment.” It says there, “At the time of engagement an employer shall provide each employee with written advice of the terms of their employment which specifies whether they are full-time, part-time or casual, an outline of the duties of the position, details of hours and days of work pursuant to this award, the classification and rate of pay,” et cetera, et cetera.
PN712
So there’s the entitlement for the part-timer. If you go down a couple of clauses further, 10.2.1, it just says, “A part-time employees shall mean an employee who is engaged to work regular ordinary hours of less than 38 per week.” That’s what it says. So if you just looked at the part-time clause on its own you wouldn’t realise that even if you’re a part-timer you had to be provided with up front details of what your part-time hours were, the hours, the days of work, et cetera, et cetera. Because of the time, I’m not proposing to take your Honour through each one of these extracts, but we say that if you read the awards properly, either what’s in our extracts in the earlier part of our initial submissions H15 or, if necessary, turning to these additional ones, you realise that in some cases you have to put the two things together, the contract of employment clause plus a part-time work clause to find out what the minimum terms of engagement for a part-timer is, and that’s how the awards used to get around this problem of what do you do with part-timers who are just said to be working less than 38 hours per week?
PN713
As I said, your Honour, in the interests of time I’m not going to go through each one of these. I think it becomes obvious when you read that. If somebody at the other end of the table wants to say now, “Here’s one award which doesn’t say that,” I might accept that, but I’ll then point them to the 23 other awards which do say that. That’s our submission on it, without going into it, because that’s the way the awards used to work, but that’s not how the Social, Community, Home Care and Disability Services Industry Award works, because if your Honour has that in front of you, at clause 10, part 3 clause 10, what it basically says is that there’s there employment categories, full-time, part-time or casual employment and in (b) at the time of the engagement the employer will inform each employees of the basis of their employment. That says “basis” and I presume that means full-time, part-time or casual. Then it says the employer can direct the employees to do various things.
PN714
Part-time employee, again, is only one that’s engaged to work less than 38 hours per week on average, or an average of less than 38 hours a week, and it does say, as Ms Hayes has pointed out this morning, and those are reasonably predictable hours of work, but exactly what that means we’re not sure. What has been happening, because there is no arrangement under this modern award for saying, “Well, it’s got to be 10 hours,” or, “It’s got to be an agreement upfront at commencement,” employers are saying that they can reduce the hours of part-timers to zero and they’ve been attempting to do it.
PN715
So we say there’s something wrong with the way this award is structured, and the way, I suppose, to make that point is really to go back to all the prior awards and have a look at how they were drafted and constructed. We are confident, your Honour, that when you do that exercise you will realise that previously they have had a certain structure and a certain flow to it for part-time workers which is simply missing now. So we say that’s an omission, it’s an error. It’s created an anomaly in it. So what we’re saying in the first instance about part-time work is simply let’s put back a clause which appeared in the many of the pre-existing awards – but I’m not using the critical mass argument here. I’m just saying if you look at the way they were constructed, this is the way they were constructed, to give some certainty to part-time employees about their hours of work.
PN716
The certainty was created by either of two means. One is by providing them with minimum hours of work, say 10 per week, or some upfront arrangement by which they got to agree about their hours of work, and then, if necessary, most of the awards said that those arrangements could be modified and variations of that, the agreed regular pattern of work will be recorded in writing. So that’ all we’re asking for on that point. If your Honour turns in ASU H15 to our initial submissions, we’ve also put into the award, in our submissions, copies of other modern award clauses which do that, including the one in the Aged Care Award which reads, as far as I can recall, identically to what we’re suggesting. So in other awards it’s been drafted, we would say, in a better and more effective way which does provide part-time employees with a proper, fair and relevant safety net.
PN717
The other part of what we say about part-time work is just that we also think that part-timers ought to have a minimum engagement period. What I’d just like to say about that, briefly, is that the minimum engagement for part-timers, well, casuals get one, depending on which sector they’re in. It could be – I think it’s three down to one if you’re a home care worker, but part-timers don’t get anything. We say that’s an important part of the safety net for any employee, to have a minimum engagement per start.
PN718
I think that point is also made in your Honour’s decision of 20 June 2001 regarding the retail industry, and your Honour will remember this well, the engagement of young casual employees or young school leavers. The reference to it is (2001) FWA 3777.
PN719
THE VICE PRESIDENT: 2011, I think.
PN720
MR HARVEY: Sorry, your Honour?
PN721
THE VICE PRESIDENT: 2011, I think.
PN722
MR HARVEY: Yes. What did I say, your Honour?
PN723
THE VICE PRESIDENT: 2001.
PN724
MR HARVEY: Sorry, 2011, yes, your Honour. 2001 is what I’ve got written down here. At paragraph 40 your Honour says, “There is a long history of minimum, part-time and casual employees providing protection from expectations” – I might have typed that wrongly, your Honour. I’ll find that, but what it says – I think what it means is a long history of awards providing part-time and casual employees protection from employer expectations of working short periods where the cost and inconvenience of attending the workplace outweighs the benefits received from the engagement. Your Honour went on to say, “The minimum engagement period does not preclude shorter periods of work provided payment for the minimum period is made.”
PN725
We agree with your Honour, there is a long history of awards providing part-timers and casuals protection against employers wanting to call them in for, you know, half an hour or an hour or a short period of time. We say that that history ought to have been replicated in this award and it wasn’t. A similar point was made by a full bench headed by his Honour Vice President Lawler. This is (2012) FWAFB 6913 regarding reduced minimum engagement periods. That was an application by VECCI in that case and it said that the award modernisation – at paragraph 12 it says:
PN726
The award modernisation full bench of the Australian Industrial Relations Commission did not address the question of minimum engagements in any of its decisions and statements made in connection with the award modernisation process. This is because minimum engagements did not emerge as a significant issue during that process. Minimum periods of engagement have been a common feature of state and federal awards for a very long period. The rationale for minimum periods of engagements is one of protecting employees from unfair prejudice or exploitation. Given the time and monetary cost typically involved in an employee getting to and from work it has long been recognised that employees, especially casual employees can be significantly prejudiced if a shift is truncated by the employer on short notice as would otherwise be lawful in a typical casual engagement or the employee can be pressured into accepting unviable short shifts in order to retain access to longer shifts. The inclusion of a minimum engagement period in a modern award invariably reflected the fact that such provisions were to be found in a sufficient proportion of pre-reform awards and NAPSAs that are operated within the coverage of the modern award.
PN727
That’s the end of that quote from paragraph 12. One of the things that I was obviously trying to get to with regard to cross-examination of the aged care witnesses this morning was to take them to the provisions of those New South Wales awards which the ASU has tendered. Again, in the interests of time I won’t go through them all in chapter and verse, and this is obviously a submission from the bar table and I couldn’t quite get some of the witnesses who haven’t been in situ long enough to be able to answer the question for me, but my understanding of those awards, that there are two of those titles, Charitable, Aged Care and Disability Care Services (State) Award and Charitable Sector, Aged and Disability Care Services (State) Award 2003. That’s H13 and H12 respectively, and the Miscellaneous Workers, Home Care Industry (State ) Award, H14.
PN728
I think Mr Newall has said, and he can tell me if I’m wrong, of course, that the two referring to the charitable ones are identical in their substantive provisions. They appear to be slightly different. One applies to employers who are members of either something called ACE or the CCER, which I think is the Catholic Commission for Employee Relations, and another appears to be of more general application, but they did apply to home care employees, and, your Honour, that is in the area, incidence and duration clause of both awards. It’s either clause 54 or 53, but those awards said, if I can just find the best way to read that out – perhaps if I can go to H13. So this is H13, clause 53, area, incidence and duration. It’s got (i), it begins off with, goes down to (iv). It says:
PN729
This award shall not apply to novices, aspirants or persons who have taken vows of religious orders, persons who are employed in providing home care services to clients in private residence which are not operated as an adjunct to a retirement village, nursing home –
PN730
et cetera. So if they were providing home care services as an adjunct to a retirement village then this award applied to them and so did the other award with regard to the other respondents, and if they weren’t covered by that award, that is, they were providing home care services but not in conjunction with any residential service, then they were covered by the Miscellaneous Workers, Home Care Industry (State) Award, which is H14.
PN731
The interesting thing about all those awards as far as it goes to part-timers is that they all provide minimum periods of engagement for part-time employees, including home care employees, as I understand it, and that – you have to flick through it a bit to find it. There’s an example of what I was talking about before, but if we go to H13, which I’ve got in front of me, clause 7 talks about what the hours are. It has minimum starts at (v). Full-time employees have got to get a minimum start of four hours, permanent part-time and casuals other than home care get a two-hour start, permanent part-time home care employees and casual home care employees get a minimum of one hour for each engagement, which we’re not arguing with, but you have to turn then to clause 11 in that particular award, the permanent part-time employee clause, and then you will find there clause 11(vii), “Permanent part-time employees engaged in the provision of home care services shall (a) have a minimum specified number of hours at 10 per week or 20 per fortnight and the minimum engagement of one hour.”
PN732
So the first point about all that, so there was some complaint, and in the aged care employers’ submissions they said, “Look, you haven’t really had regard to these awards,” but our response to that, well, here’s something in these awards. Minimum 10 hours. Some of the witnesses said, ‘Well, it’s impossible.” At least one of the witnesses said, “You can’t offer people minimums.” Well, they had to for a very long time under this award, had to offer them 10 hours. One of the witnesses did agree with me that there was a process and there are processes in those awards dealing with, you know, in home care services short notice cancellation of a requirement for client services.
PN733
So there’s another example. They deal with it in a different way but it was a minimum of 10 hours and apparently that worked for a long period of time under those pre-existing New South Wales awards. They’re not in my other exhibits because we didn’t think they were particularly important, but when you read that in conjunction with what’s in page 15, you add all the things up, and here’s a picture of how it used to work and in our submission how it should work, your Honour, for part-time employees. We think if you don’t have that the modern award does not provide a fair and relevant safety net and the absence of such a provision is anomalous compared to the pre-existing awards but also to other modern awards.
PN734
Your Honour, I’ve got a couple more things to say; a few more things to say, your Honour, because I do need to say just a couple of little things about – perhaps I’ll do this quickly first. Broken shifts, I don’t think I need to say a lot about this. There’s been some evidence about this today, a bit of toing and froing about broken shifts, but, I mean, we say that broken shifts shouldn’t be in the award other than, if you like, for home care employees, if that’s an issue. We really think the modern award - and this has come up today. We think it caters for the reasonable needs of employers, particularly with the change, I think it was, to the sleepover provisions which allowed employers to roster people before and after a so-called sleepover shift. So if they’ve got – a client needs late in the afternoon, a client needs early in the morning, plus obviously the sleepover arrangement, they can do that, and there’s a requirement for an eight-hour break.
PN735
There’s been some discussion today about, well, in a couple of our witness statements the evidence of what the employers were doing is not actually in accordance with the award, which appears to be correct, but in any case, in our submission you don’t need a broken shifts clause. You can deal with it in the way I’ve just described in the circumstances which have been referred to from the bar table today. There are provisions which deal with it and the broken shifts didn’t apply to people generally in the past. I think, from memory, without looking it up, there were only two disability services awards which had broken shifts. Generally they weren’t a feature of the work under any social and community services awards or what’s called the cash awards, the supported housing, crisis and supported housing awards, nor with regard to most of the disability services awards of the ASU. I think there’s an exception in South Australia.
PN736
We think it’s not appropriate to leave employees who were under such practices in the past to be under them now. We concede that there is a possibility that it may be relevant in the home care sector, so our clause says that you can’t have broken shifts except in home care, if that’s of any assistance to the clients represented by Mr Newall today. If the commission is not persuaded to change the award in that way by taking out the broken shifts clause then we think it’s appropriate to include a penalty in the award to inhibit the practice, or at least, you know, discourage the practice; that’s what penalties are for, unless it’s absolutely necessary, and at least to partially compensate employees for the inconvenience of broken shifts and their interference with personal and family life.
PN737
We’ve suggested if your Honour is persuaded to retain the broken shifts clause but to put in a penalty then we should be ordered to confer about that. I don’t think we can copy one from any of the old awards. They’re out of date and in most cases they didn’t apply to people in these sectors. That’s what we say about broken shifts.
PN738
The other really significant issue for us is the restoration of weekend penalties for casual employees. The modern award does not pay penalties for casuals for weekend work unless they have worked 38 hours per week. We say, your Honour, that that’s unreasonable and does not constitute a fair and relevant safety net for casual employees who simply, you know, except in extraordinary circumstances where they work more than 38 hours a week, they’re not going to get a penalty, as such, for work on a weekend. They get their casual loading, which will be eventually 25 per cent, but they won’t get a penalty for working on a weekend. We say that that’s unfair and unreasonable and contradicts the almost universal safety net previously enjoyed by workers and we can’t understand why that provision is there.
PN739
In the first big table attached to ASU’s submissions H15 we’ve set out in that exhibit the weekend penalty arrangements for casual employees under the 23-odd underpinning awards, and I’d say again, your Honour, without labouring the point and going through each one of those, I ran through them again yesterday just to make sure that I was right about this, but I can only find perhaps one award which doesn’t, you know, explicitly say that weekend penalties applied and applied to casuals. There may be two, but it’s of that order. Most of them just say, “Yes, weekend penalties apply to casuals,” some difference as to whether they get a penalty on a penalty or they just get the higher penalty. They vary a bit, but we say that’s an important necessary part of a safety net to fulfil the award modernisation objective. With respect to those New South Wales awards that I referred to, H13, 14 and 12, as far as I can understand, subject to correction, casuals under those awards also got weekend penalties. So it’s a longstanding thing which we say should continue to prevail.
PN740
Now, we notice – and there may be some similarities in the drafting of the Social, Community, Home Care and Disability Services Award and the modern Aged Care Award, but we note that the same situation used to exist under the Aged Care Award but it was actually rectified some time ago by amendment to that award by an award modernisation full bench headed by the former President Giudice J. That decision was (2010) FWAFB 2026. In that case the LHMU, as it then was, applied to reinstate or restore weekend penalties for casuals. At paragraphs 50 through to 59 of that decision of that award modernisation full bench it tracks through the arguments in there. I was going to read it all out but I won’t, your Honour, in the interests of time. I’ll just go to paragraph 59 and the full bench said there:
PN741
Having regard to the weight of regulation in this area, in particular the incidence of some form of penalty payment to casuals for weekend work, we think the LHMU has made out a strong case for change. Nevertheless the position under the relevant award-based transitional instruments is by no means uniform. In particular we note that in many of those instruments the casual loading is lower than the loading in the modern award. In the circumstances we consider that it would be fair to adopt the LHMU’s alternative position, and make provision for casual employees to receive the relevant weekend penalty rates in substitution for the casual loading. We will vary the award accordingly.
PN742
Now, we think that’s a completely analogous situation to the one confronting casual employees under this modern award and we would ask this commission to take the same approach. As I said before, your Honour, I don’t think we got it quite right in expressing it in our proposed draft order but we will propose a better clause. Basically what it’s going to say is that, you know, casuals should get weekend penalties.
PN743
The final matter is small business redundancy. This in one sense appears quite complicated, but we explained it in the ASU’s submissions in reply and I think it’s fair to say that our understanding of this has evolved in the course of these proceedings. As I said, we’re appreciative of VECCI’s efforts in trying to unravel the full history of this. What , in shorthand, appears to us to be the case is that the award modernisation full bench looked at the NES, said, “Well, the NES doesn’t provide for small business redundancy so we’re going to maintain that exemption for small business in modern awards generally,” but they also said - and we’ve quoted the paragraph in full. Some others haven’t quoted it in full but we did, and it says, “We’ll make an exception to that exemption where small business employees had an entitlement to redundancy prior to the 2004 test case.”
PN744
Therefore we say in accordance with this intention and this decision of the full bench, the full bench in this award maintained the entitlement traditionally for employees under the federal Social and Community Services Award in WA and that appears in the award now, which was the correct thing to do, but there are a number of other federal awards which should also be treated in exactly the same way and they’re identified in the new ASU draft order filed yesterday. There’s five in number and as far as I can determine, all of those awards are in the same position. They all provided small business employee redundancy entitlements prior to 2004. There were no exemptions to that and on that basis we say that the award should be varied to also name the other four awards. It’s only a transitional provision and it only operates until the end of next year, which is going to be a concern, but we’ll have to deal with that next year, or somebody else will, but we think the intention and the decision of the full bench, as we’ve set out, was to include redundancy for employees of small business where they had an intention prior to 2004 to fund that in part not in full. They’ve done that in part, not in full. We need to correct that thing. Of course, they also preserved it for employees covered by NAPSAs, as I recall, and 2B awards. So you won’t find, for example, any reference in our provision because it’s not a federal award, for a start, but the New South Wales SACS award, or NAPSA, as Ms McManus confirmed today, there was never an entitlement to small business redundancy under that New South Wales state award slash NAPSA but there was one in the federal ACT award. We say it should be preserved where it existed pre 2004.
PN745
That’s all I wanted to say about our submissions, although, sorry, I should say now just in regard to the article which we tendered and was marked, again, I was intending to take the tribunal to a bit of this in detail but I won’t. I won’t now, but I do encourage your Honour, as I’m sure you will, to read it. The central thrust of it is to compare secure work, or flexible, depending on which way you look at it, work arrangements for employees under a number of key modern awards, and it compares in particular the Manufacturing Award, the Aged Care Award and this award we’re talking about today, Social, Community, Home Care and Disability Services. This is written by academics, not written by us, but I should also say, reading this, they obviously weren’t involved in the award modernisation process and didn’t have to live through that agony. Towards the end of it at page 178 down the bottom it talks about the commission’s obligations under the Act to have regard to the needs of the low paid to eliminate discrimination. They go on to say in their view:
PN746
In the development of the individual modern awards discussed here there is little evidence that these obligations formed part of any of the negotiations between the relevant parties or in the decisions that the AIRC made.
PN747
That’s their view and you and I, your Honour, and the rest of the people here will know that there weren’t much in the way of negotiations, it was a process of trial by submission, but they go on to make what I think is a significant point:
PN748
PN749
Now, that’s, I think, a significant philosophical point and I think we would all do well to dwell a little on that. I mean, they make the point that there’s not that many non-standard employees under say the Manufacturing Award. They’re mainly full-time, et cetera, et cetera. Where there are non-standard ones they get protected, but when we come to the caring end of the business, not only people who are working in caring professions, but they’ve got very little in the way of secure employment protections, and I think that’s regrettable and we would urge this commission to address that position.
PN750
Your Honour, I’ve just got a couple of pages of things I want to say in response to the aged care employers but I’ll undertake to do that by 1.30 because I know your Honour has another commitment, and then stop, or I can stop now and address that and come back, but I’m also aware that the video-link goes at - - -
PN751
THE VICE PRESIDENT: In reply to the aged care employers.
PN752
MR HARVEY: Sorry, your Honour?
PN753
THE VICE PRESIDENT: In response to the aged care submissions.
PN754
MR HARVEY: Yes, I just wanted to – in response to the aged care employers.
PN755
THE VICE PRESIDENT: Yes. Mr Forster, how long will your submissions be?
PN756
MR FORSTER: No longer than 10 minutes, your Honour.
PN757
THE VICE PRESIDENT: Yes. Well, I think you continue, Mr Harvey.
PN758
MR HARVEY: Thank you, your Honour. The aged employers at paragraph 6 of their submissions say that the ASU has failed to advance any justification for revisiting issues already considered during award modernisation. I would again say that the whole point of our application is that these issues were not explicitly considered. They claim that we are seeking to impose elements of a previous SACS award on areas of the industry that were never covered by these awards, namely home care. There’s a number of thing we say about this, for example, the small employer redundancy clause sought by us does not cover the home care sector, at least not in the areas that they’re concerned about, it covers only some specified awards which operate in the SACS and cash sectors which made provide for small employer redundancy payment prior to the redundancy test case in 2004.
PN759
The ASU is also not seeking to stop broken shifts operating in the home care sector. We’re seeking to stop broken shifts applying in social and community services employees when undertaking disability services work, and that’s, I think, clear from the draft order we filed. It’s true that the casual loadings and overtime and part-time employment clauses sought by the ASU will apply to home care sector employees if granted, but we say that that’s appropriate. There are already aspects of the modern award which differentiate the home care sector from the other sectors covered by the modern award, including minimum engagement periods for casuals at 10.4(c) and a 24-hour care provision in clause 25.8. If the commission is satisfied that the ASU’s application should be granted but accepted it only should apply to social and community services, family day care, the cash sectors, there would be nothing to stop the commission, in our submission, from amending the award accordingly.
PN760
In any event, the aged care employers’ claims that the ASU is seeking to impose elements of previous SACS award that never covered the home care sector before we say is disingenuous. When examining attachment A of the ASU’s submission of 2 November 2012 the attachment refers to a number of home care awards which operated around Australia which clearly made provision for confirmation of part-time hours, minimum engagement of part-time employees and payment of penalty rates for casual employees on weekends.
PN761
I’ve said something about small employer redundancy but I think I’ve made it clear what the basis of our case for small employer redundancy is in a certain fixed number of awards. In regards to casual overtime and penalty rates, again, the aged care employer submissions refer here to those, which is where we sort of picked up our interest in this, The Charitable, Aged and Disability Care Services (State) Award, which is a New South Wales award, which we say – it doesn’t really matter. We say it was as a result of a demarcation agreement between the ASU and the HSU, but it doesn’t matter what they said, you know, which of those awards applied, because they all have the provisions that we’re seeking to restore here, that is, proper provisions protecting casuals with regard to working on weekends and getting overtime – sorry, overtime rates for doing so, not overtime but overtime rates, for working outside the normal spread of hours.
PN762
So there’s some detail about that which I don’t think I’ll go into now, but there is one other point which we need to say, that it’s been suggested that the limitation of employees receiving weekend penalty rates has only recently taken effect, that is, you know, the modern award has come in. The aged care employers claim that this is not the case in relation to home care employees. They’re wrong about that, but as your Honour will be aware yourself, because of the operations of the pay equity case the transitional provisions of the modern award, this award, were put on hold for a period of time.
PN763
Rather than the four-year phase-in I think in the end it’s a two-year phase-in, and it commenced last year. So lots of employees are still in that transitional phase. They’re transitioning from the penalty rates in their old underpinning awards to those in the modern award. They had – if they had, and we say they did have, weekend penalties for casuals, then that’s a transitional thing. I forget all the words that go around that, but they will be transitioning from their old entitlements to the modern award entitlements, which is zero, if you’re a casual working on weekend.
PN764
So to the extent that there’s any suggestion that this is either something new or something old or it’s not really happened, it’s because, I think, of the transitional arrangements, but at the end of next year there will be no award entitlement for casual employees working on the weekends, no penalty entitlement for casual employees working on the weekend under the award. But we are still in that transitional phase. It’s a transitional thing that started late and is going on an accelerated basis for these employees, but in any case, it’s clear, I think, that most of the predecessor awards made provision for casual employees to receive overtime rates on the weekend. I’ve taken your Honour to the Miscellaneous Home Care Industry Award, for example, which had a provision, and of course the take-home pay guarantee meant that employers who were obliged to pay overtime under predecessor awards can’t reduce existing employees’ entitlements but they can for new ones.
PN765
The final – sorry, I regard part-time employment. It appears that the aged care employers’ submission, as I said before, they’re strongly opposed to confirming part-time employees’ hours in writing up front, and we understand that there is some substance to the employers’ submissions that it’s difficult to confirm changes of hours in home care because of client requested changes, but we suggest that the pattern of work described by the aged care employers’ submissions and witnesses doesn’t comply with the current definition of part-time work in the modern award, which requires hours to be reasonably predictable, but as I think I indicated with at least one of the witnesses, who agreed with me on this point, there was previously in some of those awards an arrangement to deal with sudden client cancellations. Now, that’s not in the modern award but if it was considered relevant it could be with regard to home care.
PN766
We are concerned, as we said in our reply submissions, that in seeking amendments to clause 10.3 of the modern award the ASU is concerned about employers following Anglicare’s WA practice for replacing a casual workforce with a so-called flexible part-time workforce, with the result that workers have no more job security than casual employees and yet don’t receive any casual loading. It’s not consistent, we say, with the modern award’s objective but it obviously saves money for employers.
PN767
With regard to the minimum hours of engagement issue, that is, whether it’s three or two or one, home care employees are treated differently to SACS employees in relation to minimum hours of engagement and we don’t have an interest in changing the conditions of home care employees. So there can be, as there is for casual employees in home care, a different minimum for that.
PN768
With regard to broken shifts, again, there seems to be some issue from the aged care sector about that. They did have, I’m happy to say – well, not happy to say, but they’ve confirmed that there were broken shift arrangements operating in home care under those three state awards that we’ve referred to, but we make the point we’re not seeking to remove broken shifts for home care workers. In any case, our submission on broken shifts is if your Honour doesn’t agree on getting rid of broken shifts then we say a penalty should apply and the aged care employers – sorry, the home care employers working under those awards did pay a penalty for working broken shifts which they’re entitled to under those awards.
PN769
As I said previously, there are some ways and circumstances which the modern award does allow for to work shifts which meet the needs of employers and clients in this sector such as we discussed briefly today, work before, sleepover work, early hours of the morning, have an eight-hour break and either the same employee comes back and does it or another employee does it the next night.
I seem to have run out of paper in front of me, your Honour, so that must mean I’ve come to the end of what I was going to say.
PN770
THE VICE PRESIDENT: I think your half an hour is up, Mr Harvey.
PN771
MR HARVEY: My half an hour was up an hour ago, was it, your Honour.
PN772
THE VICE PRESIDENT: A new meaning of double-time.
PN773
MR HARVEY: Yes, thank you, your Honour. I think they are the submissions on behalf of the ASU. We think this is a really important case. It’s a really important award covering - as I think we all know if we were involved in the pay equity case or even if we weren’t, this is a really important award covering really important, significant workers doing really important work in this community. We’re all sympathetic about that. We have to get it right. We have to meet the needs of the industry and the clients but we also have to have at the end of the day a fair and relevant safety net, terms and conditions for employees. We say at the moment in the areas we have identified that’s not the case and we would ask this commission to rectify that situation. If the commission pleases.
PN774
THE VICE PRESIDENT: Thank you, Mr Harvey. Mr Forster, there’s a couple of difficulties. I have another matter at 1.30 and you’re about to be cut off at 2 pm.
PN775
MR FORSTER: I see.
PN776
THE VICE PRESIDENT: What I propose is to give you an opportunity to supplement the submissions that you’ve filed with a further written submission perhaps by the end of this week. Is that a convenient course for you?
PN777
MR FORSTER: That’s convenient. I appreciate that.
THE VICE PRESIDENT: Yes. I might mark the written submissions that have been filed by the AFEI exhibit F1 and you have liberty to file any further submissions you wish to make by close of business this Friday, 12 April.
EXHIBIT #F1 SUBMISSIONS OF AFEI
PN779
MR FORSTER: Thank you, your Honour.
PN780
THE VICE PRESIDENT: I propose to adjourn now until 2 pm.
<ADJOURNED [1.28PM]
<RESUMED [2.01PM]
PN781
MR HARVEY: Your Honour, just before Mr Newell commences, could I have the indulgence of the Commission just to clarify something I said previously? I think I may have misled the Commission or the parties. I said the proposed amendment to clause 28.1 wasn't effective in dealing with the issue of casual employees getting loadings on a weekend. That's not correct. We have proposed simply deleting clause 26.2, which is the one which says casuals don't get weekend penalties. I think that might deal with that. So that fixes that problem for casuals on weekend penalties, if the Commission agrees with us, of course. There is another aspect to our case which I didn't clarify properly, and that is the one which could be contained in clause 28.1, in which we also say casuals should be entitled to overtime if they have worked more than 38 hours a week.
PN782
What I was trying to say this morning is that we are not attempting to apply overtime payments to part-timers but we do think that casuals ought to get it after they have worked 38 hours. I think I'm correct in that. But I hope I haven't misled everybody about that. But that's my understanding of our position, if the Commission pleases.
PN783
THE VICE PRESIDENT: Mr Newall.
PN784
MR NEWALL: Thank you, your Honour. By courtesy of those at the bar table we are to go first. There is a housekeeping matter, if I may, your Honour: I have placed Mr Sheargold and myself in a difficult position in that the aeroplanes I've booked us to go back on - if we're not finished by half-past three I'm going to crave your Honour's leave to allow us the unusual practice of leaving the bar table at that time. I don't wish to commit a discourtesy to the Commission.
PN785
THE VICE PRESIDENT: No, that's understood, Mr Newall.
PN786
MR NEWALL: We may not find ourselves in that position. If we do, I will make the appropriate submission. Your Honour, we proceed on the basis of the submissions styled submissions in reply that we filed on or about 2 April and while they don't derogate from and are to be read with the earlier submissions that we filed back in November, I wanted to follow the pathway of those submissions if I might. I wonder if your Honour has that document?
PN787
THE VICE PRESIDENT: November submissions, headed, "Submissions by Aged Care Employers?"
PN788
MR NEWALL: Yes, styled, "Submissions in reply" - - -
PN789
THE VICE PRESIDENT: Yes, I have that as well and I might mark them both.
PN790
MR NEWALL: As you please.
THE VICE PRESIDENT: The original submissions in November I'll mark exhibit N4.
EXHIBIT #N4 SUBMISSIONS BY AGED CARE EMPLOYERS
THE VICE PRESIDENT: The submissions in reply, exhibit N5.
EXHIBIT #N5 AGED CARE EMPLOYERS SUBMISSIONS IN REPLY
MR NEWALL: Thank you, your Honour. We are going to speak to but not read out the submissions as they appear in N5. Your Honour will apprehend that the thrust of the submissions is that we oppose each of the four proposals for variation advanced here before your Honour by the ASU. There were a raft of proposals for variations under the review by a range of parties. They have all fallen away by one means or another or are yet to be supported and we do oppose them and we don't oppose them for show. We oppose them from the point of view of those I represent with some real vigour. Can we say this in overview, your Honour: as to the process in which we find ourselves, the tests to which Mr Harvey has referred to in graphic arts aren't of course contested. It's accepted that's a proper approach to the process the Commission faces.
PN794
We do say this: the fact that the task is characterised as broad doesn't take it outside the two criteria - either or both of the two criteria or prerequisites - which the Commission is obliged to address in undertaking this particular process. That is, to take into account the modern award objective and he doesn't mean - and to apprehend whether or not the award as it's operating is working effectively without anomalies or technical problems. We accept that the modern award's objective includes reference, of course, to the safety net that Mr Harvey has stressed before your Honour. But it doesn't mean that the Commission, with respect, is at large to re-fashion the awards from scratch on the basis of arguments which either were or could have been ventilated before the relevant full bench at the time because they're so important.
PN795
The onus of course is squarely on the applicant. As you pointed out this is an application now only by the union to vary this award. The onus is on the applicant to persuade your Honour that a variation to an award should be made. It's not as if the thing is at large spread out on the table to be picked over again. If it's to be varied there's got to be a justification for so doing and the onus to provide that lies upon the union. If the thing is all square, to put it tidily, then nothing need be done or will be done. The fourth thing is this, in our view: the fact that a modern award may be more flexible and not provide everything that the old award or awards provided, is part of the intention of the modern awards structure. So to say, as I apprehend with respect, some of Mr Harvey's submissions go to a point of saying, "Well, it used to be like this and it ought to be still so and so far as the modern award isn't like this, well, that can't be right."
PN796
Well, it can be right because the whole modern award process was intended to provide for - within the context of course of the modern awards objective - some flexibility to all of the parties to the awards. So far as an award does that it may well mean that something that was there before isn't there any more and that's fine. That's as it ought be within the context of course of the objectives. Of course there is a presumption and a proper presumption that what's been done by this Commission in making this award has been done right unless it's shown to be wrong, and this is where the onus comes in. Unless it's shown to be not working; unless it's shown to have given rise to an anomaly. Then we take it that what was done by the Commission in making this award, this particular award, was correctly done. We have also made the overarching submission that all of the matters that are agitated here have been dealt with by the full bench and indeed, we do say that the assertion that none of them have been touched on by the full bench really is, with respect, unsustainable and we'll come to that. Your Honour, with respect, sees at paragraph 5 that we call innate what Senior Deputy President Kaufman as he then was said in the review of the clerks award about the process.
PN797
That in our respectful submissions fits with what we've just submitted to your Honour about the way the process ought to work. We speak in paragraph 6 about a failure to justify revisiting or agitating the issues that the ASU has agitated and we say that is so and really, one approach the Commission could properly take to this application is to say, "Look, I'm satisfied" - the Commission might say - "that these are matters that the full bench had before it, squarely or tangentially, and necessarily either squarely or by inference considered and on that basis I don't propose to go any further with this application because it's clear that what the full bench has actively considered there is no warrant to revisit.” That would be an approach to this application; to dismiss it entirely on that basis.
PN798
But we go further and go on to deal with each of the four applications in detail and I turn to that now.
PN799
THE VICE PRESIDENT: Before you do that, just in terms of a general point, is there any significance or relevance in the circumstances generally of this award and the phasing in of the equal remuneration order and the implications of wage increases independently of the enterprise bargaining process and the availability of flexibilities that might otherwise be available through enterprise bargaining? Is there any relevance or significance in those circumstances?
PN800
MR NEWALL: It's not a basis on which - the one-word answer to your Honour's question is in our respectful submission, no. The award has to be looked at, in our submission, as it stands on its own terms. Of course the Commission is aware of the broader context in which all modern awards operate. But if I properly understood your Honour's question - if I've not I beg your Honour to excuse me - it doesn’t mean that you can read the award back through the prism of those other possible arrangements to say it could be so or so. Perhaps I've not understood your Honour's question. But as I understand it the answer would be no.
PN801
THE VICE PRESIDENT: Thank you.
PN802
MR NEWALL: I answer your Honour's question that way. There is another point I ought make in an overarching sense and we touch on it in paragraphs 9 to 13 in our submissions that your Honour has been given up to mark as exhibit N5. Even today - and I say again this respect - those for the ASU spoke of the disability sector as if it were entirely discrete from the home care sector and proposed that things could be done in disability that then wouldn't affect home care and perhaps vice versa. But that isn't so because as your Honour is well aware this is an overarching award that picks up a number of areas of industry covered by a range of other different awards. We'll come to some of them in particular. But it's clear to us that the ASU's view is through the prism of the SACS awards as they were in the SACS sector.
PN803
Well, that's fine but the fact is that there is a home care disability sector; part of the industry. And to pretend that they could be entirely - I don't say, "pretend," with any discredit - but to suggest that they could be dealt with entirely separately and you could make provisions for disability that wouldn't touch on home care can't be right because - as I heard their evidence give some indication of - there is a sector of the industry amongst those employers I represent which provides home care disability treatment and that means that you can't in our respectful submission hive off home care from disability and treat that as if they are two discrete matters. They simply aren't. They simply aren't.
PN804
That's not a debating point. They have practical effects upon what we go on to say about the proposals that are advanced before your Honour now; each of the four matters in fact. And of course as your Honour is aware and as evidence today has made abundantly clear, funding is provided to care providers in the home care sector on the basis of the way in which the industry presently works, including the way the modern award presently works and including with respect to the particular and unusual requirements of the clients, the clientele, within that part of the industry. Your Honour heard some evidence from Mr McCloskey - that evidence is at exhibit N1. At paragraph 3, Mr McCloskey makes that express point. He wasn't challenged on it, quite properly because it's quite correct, that the funds that come from both DVA and health are calculated on direct service delivery hours with a small margin.
PN805
Direct service delivery hours means exactly what it says. It's not some overall structure of how long you are at work. It's based on exactly for how long you are providing a service to a particular client. That's how that structure is advanced. Our submission is that the industry - that part of it that I represent, at least; the home care sector, including the disability sector - is already operating and being funded on the basis of the shifted payments structures that both suit it, arise from its historical award coverage, and are effective in the modern award. So to change them would have an adverse consequence, we say, and that would apply in respect of each of the four of them. I turn now to deal with the four variations sought in (indistinct). The first one - can I deal with the small employer redundancy provision? We are now at paragraph 15 of the submission your Honour has marked exhibit N5.
PN806
The argument seems to be, well, there is an anomaly between workers in Queensland and Western Australia created by the full bench decision. Well, that's a thin argument on its own account but in any event it's got to be said and I think in fairness in the two submissions advanced by the ASU it was accepted that this question of small employer redundancy really has been squarely dealt with by the full bench. On any reading of the award modernisation decision between paragraphs 58 and 62, it's apparent. There was no oversight. The full bench chose in full knowledge of the existing awards to make the modern award as it did. I don't read out of those paragraphs to your Honour but I do note that at paragraph 60 - just for the record here - the full bench said this about halfway through the paragraph:
PN807
We also find it is not necessary to include the provision in modern awards generally to insure the maintenance of the safety net. As a general rule therefore the small business exemption will be maintained. We shall make an exception for federal awards industries in which there was no small business exemption prior to the redundancy case 2004.
PN808
The point we make about that is simply that the award modernisation decision squarely turned its mind to this question. It's not something which has popped up as an oversight or an anomaly. It was made that way in the knowledge of what had gone before and made that way for a purpose. So we oppose the small employer redundancy provision and as we said in submissions, very much in the alternative - and we stress that - if there were any scope, which we don't concede - it would be limited to those three pre-modern awards that the ASU identify in paragraph 6 of that submission. Perhaps that is not entirely inconsistent with what Mr Harvey said; that from our point of view at least that would be the maximum direction that such an amendment could reach, were it to be considered at all by your Honour.
PN809
I turn then to a question of casual penalty and overtime rates. Again, in the ASU's initial submissions - the 2 November submissions - and indeed at paragraph 42, the fact that this matter was actively agitated before the full bench was conceded and that is so and really, that ought mean that this question ought not be agitated before your Honour and your Honour ought not be obliged to grapple with it or the Commission shouldn't be obliged to grapple with it because it's been done. It's just been addressed. With respect, if the answer that emerged was not the one the ASU wanted, well, that is not a reason to come before the Commission in the context of this process, agitating for change on the basis - given the limited bases on which changes can now be made. It doesn't fit in that context and it can't be made to fit in that context.
PN810
We now, your Honour, at about paragraph 20 of the submissions - and we do make this point; that the awards, the two similarly named awards which operated in New South Wales in the sector for which those I represent work, provided for payments of weekend penalties in lieu of casual loading for casual employees working on weekends. If I've understood what is now said about the proposed clause 28 we would certainly say this: as we read it as to overtime rates, we'd be making extremely substantial change to the overall operation of the award. Presently casual employees don't receive overtime rates under the award. That is the case. So an extremely substantial change is being sought, beyond - in our submission - the scope of the review, not available in the face of the fact that the matter has already been considered.
PN811
As we read the variations sought:
PN812
Overtime will have to be paid to any employee who works in addition to their ordinary hours on any day.
PN813
Now, ordinary hours hasn't got anything to do with casual employment. It just doesn't fit. It can't be made to fit. As again the thing reads:
PN814
If any employee on any day works in excess of their rostered hours regardless of the hours worked over a whole week they automatically attract an overtime payment.
PN815
That is really not available. We posit that it would have an extremely substantial costs impost on the industry and one of the reasons we say that is as those who work in the industry are well aware, the Mills report identified that 75 per cent or a little more of community care workers in aged care are casual or part-time. So there's no doubt that it's just peripheral or tangential. It would affect a substantial number of employees. As we say in our submissions, your Honour, at paragraph 24, the award already - at 28.1(a) and (b) - addresses the question of overtime. Moving then to the third matter, which is the question of part-time engagement; I can't over-emphasise to your Honour in these submissions the degree to which that proposal is opposed by those I represent. It's not a debating opposition. Unsurprisingly, perhaps, given the evidence perhaps of Mr Sloane in particular, it's a position that we hold to very strongly indeed.
PN816
None of the awards which operate - and we identify them in paragraph 26 - included any provision that prescribed that any form of work patterns really, regular patterns of work, the days of the week employees must work, starting and finish times of the day; none of that need be in writing. This is a wholly new proposition as it's now proposed in relation to part-time engagements and it doesn't take into account of the operation of the industry in our submission. We've said in our submissions it's just impractical and it is. Client appointments - and this is born out by the evidence as well: Mr McCloskey at paragraph 2A speaks about it, that they can change on an hourly let alone daily basis and the fact is that many home care workers don't attend a facility at all on a daily basis. They go to a client's home and treat them there.
PN817
So a variation imposing on the industry that any agreed variation to the pattern of work should be recorded in writing just leaves us with an unachievable obligation and it's more so when one looks at subclauses 25.5(d) (1) and (2) of the award.
PN818
THE VICE PRESIDENT: But isn't that a question of who bares the consequences of those sorts of changes? If employees affected by those circumstances are engaged as casuals they get compensated because they get the casual loading that deals with those positions or those changing circumstances. The case against you is effectively that there's a mix of casual notions and part-time so that the current provisions don't provide sufficient certainty or regularity and all of the inconvenience of changes falls on employees and the balance isn't right. That's effectively what the case against you is.
PN819
MR NEWALL: I understood that, your Honour, and to that we say this: firstly, historically there were always part-time employees operating in this sector under the three awards we identified and as we've submitted, those awards didn't require them to agree with us in writing about those fixed patterns of work. It's that structural imposition at first which is difficult for us to swallow. That doesn't operate to effect any unfairness on a part-time worker in our submission. It didn't do before and it doesn't now. Really, this is a bit of a straw man argument, your Honour. It goes something like this: well, we fear - I think one of the witnesses said - "I fear," and it was later revealed in cross-examination that it was no more than an apprehension based on apprehensions that there will be a changing in the mix of part-time and casual employees because employers will try and use part-time employees to cover where a casual - who would get a penalty for doing so - would otherwise operate in a flexible area. I think that's the thrust of what your Honour is pointing out to me is being put against us and we accept it is being put.
PN820
The historical point we made, we say that given the way that we work in our industry; that is for example, if instructed that an employee goes to a client's home direct because it's convenient for them to do so. They live a suburb away and they go there rather than coming to your office and going out again. The ability to reflect short-time change in writing is just not there without imposing a difficulty on both parties. The employees then have to come in to see us and we've got to write something down and send it away and so on. Perhaps the best way to deal with it is just to say, "Look what the modern award has already done in clause 25.5(f)." 25.5(f) sets out a protocol for - sorry, your Honour - for dealing with client cancellations and that client cancellation provision wouldn't fit with the proposition that's now being advanced.
PN821
So it's really an attack on the modern award as it's been constructed, to propose what the ASU is proposing, and the evidence is as I say; that it wouldn't even fit with the cancellation provisions that are there. They do exist. You would need more than just the rhetorical proposition that it could lead to this being done; an adverse consequence to part-time employees being asked to work too flexibly without compensation. To allow the award to be changed to meet that proposition - there isn't evidence of it occurring at a scale that would cause the Commission to change its view on the award that's already made. Indeed, in our submission, as your Honour sees, we say that it's exactly that kind of restriction and the inflexibility that the modern award system as a whole was designed to overcome and that the modern award does overcome.
PN822
Your Honour has seen what Mr Sloane said in his evidence about that degree of flexibility in paragraphs 5 and 8, particularly about community-based clients and the degree of flexibility that's needed for them to deal with it, whether part-timers or casual. Perhaps that's all I can properly advance in submissions in respect of what your Honour's put to us. But we also have expressed at paragraph 29 of our submissions a strong opposition to the minimum engagement variation. The reality of the requirements of the industry sector that we represent is that each of the awards that operated in the industry that are identified in paragraph 29 there - including the misos award - all provided in express terms for a minimum engagement of one hour. They are in almost identical terms, the three awards, in that regard.
PN823
If you see what Mr McCloskey had to say at paragraphs 2B and 2C of his evidence, one will see why that needed to be so and is so. He points there to the historical basis on which the services are allocated in blocks of an hour or a little more than an hour and of course funding flows from exactly that structure. So to make that more difficult - to make those minimum engagement provisions work against that kind of practice - it's just an adverse consequence and again we say it's something which is not properly to be agitated again before the Commission. This comes to the structure of part-time engagements properly being comprehended by the award as it presently stands. Excuse me a moment. We wanted to make a submission about the broken shift position. We are aware that the initial ASU application was against sleepovers, effectively, and also against broken shifts. Sleepovers was resolved contrary to the position advanced by the ASU. This rather appears to be a last flail at getting something out of that, really, because the state awards that we refer to several times in these submissions all included broken shift provisions.
PN824
So across New South Wales award provisions in this industry - in our sector at least - broken shifts were always there. But that's quite important. Your Honour sees what we say at paragraph 31. I don't repeat all of that. But we set out the fact that if there were thought to be any anomaly regarding payments for broken shifts, that's been fixed by the determination of 21 November last year. We set out the clause there so there's a structure there for it now. There just isn't an anomaly left and there's no basis to even revisit the question of broken shifts. Your Honour sees that there is some evidence which we advanced which points to quite substantially deleterious consequences of that structure proposed by the ASU being introduced into our sector of the industry at least.
PN825
Speaking of the evidence, may I make this point too: there seems to be some anecdotal evidence saying, "Well, employers haven't properly complied with the award," and by inference that's why you should change it. Now, that of course can't be right. If it is the case that employers haven't properly observed the award we have no truck with that and all of our advice to our members would be that you observe the award and that is all there is to it. We are not aware of any of our members not having done so and if we become award we put a stop to it. But it doesn't provide a basis for changing the award. Award enforcement is a separate concept to - as your Honour is well aware - the idea of an award being changed in order to stop terms not being observed. There is no coherence between those two concepts.
PN826
In essence and in summary, your Honour, that's what we wanted to say about the four variations. The proposition that seems to be most strongly advanced and which your Honour has raised with me and which we most strongly oppose is the variation going to part-time engagement. Your Honour, we have got to say - again if we may, in closing - that a theoretical argument that it may lead to some kind of inequity or unfairness is not the basis on which, notwithstanding the provisions of the modern award objective, the modern award as it's presently been made would be varied. There isn't another basis for that, in our submission. It's been put against us. Your Honour, we are conscious of the time. Your Honour has been good enough to hear us on the submissions that we've advanced. Your Honour has seen the written submissions we've advanced again. That's all we wish to say the Commission. Thank you, your Honour.
THE VICE PRESIDENT: Thank you, Mr Newall. Ms Haynes. I might mark the two submissions that ABI has filed - the original outline exhibit ABI1 and the outline of responding submissions ABI2.
EXHIBIT #ABI1 ABI OUTLINE OF SUBMISSIONS
EXHIBIT #ABI2 OUTLINE OF SUBMISSIONS IN RESPONSE
MS HAYNES: Thank you, your Honour. ABI seeks to rely on these written submissions and doesn't wish to reiterate every aspect of the submissions made in that piece. However, we would like to highlight a few salient points and in particular inform those points on what the evidence has shown today and I think that from the outset I would concur with my colleague's point that the fact is these should be modern awards. They're not historical awards and they do need to reflect current work practices and consistent with the modern award objectives engender flexible workplace arrangements and I think that that really is at the foundation of what we are here today to discuss. ABI in their written submission refers to what we see as the proper conduct of these proceedings.
PN829
ABI considers that the proper approach is for the two limbs of the test in the transitional act to be applied, specifically having regard to whether a variation is necessary to the achievement of the modern award objectives and whether the variation is necessary to ensure that the modern award is operating effectively without any anomalies that are arising out of the modern award or the 10A process that took place. I think that that is quite crucial in respect of any anomaly; that there needs to be that nexus between, "Is it something that arose out of what took place in that 10A process? Was there some sort of strange occurrence or incongruous result as a result of, I suppose, the big task that was consolidating all of those awards?" ABI does say that in order for the Commission to discharge their obligation under the two-yearly review that they do need to consider all of the submissions and all of the evidence and undertake a merit assessment of the case.
PN830
With respect to the claim for part-time employment, this obviously comes in two limbs: that there is the minimum engagement component and then also the provision that prior to commencement there be an agreement in writing. ABI's case is that they don't consider a persuasive case has been made sufficient for this change to be granted. ABI has prepared a table that it was not going to tender as evidence but in light of some of the comments of my colleagues we think it might be useful for the Commission to inform itself. We have undertaken quite a granular assessment of all of the minimum engagement provisions in each and every modern award, as well as provisions for the pattern of work and as was the volume of the awards it can make it difficult at times to see the forest for the trees.
PN831
So we actually in our granular assessment found that approximately 50 per cent of modern awards do not contain a minimum employment provision. It's open for the Commission to check those calculations and we've put them all here if that's going to be useful and we do have copies for the parties. I apologise for presenting the table at this late stage. It's just something that arose from my colleagues' comments. Would that be useful?
THE VICE PRESIDENT: Yes, I think it would be useful. I'll mark that ABI3.
EXHIBIT #ABI3 ABI TABLE OF PERCENTAGE OF MODERN AWARDS CONTAINING MINIMUM EMPLOYMENT PROVISIONS
MS HAYNES: What ABI really says arises from this table is that 50 per cent of modern awards having or not having a minimum engagement does not in itself represent an anomaly or an error arising out of the 10A process. It's clear that there are some awards which include these provisions and some awards which don't. We say that it's not enough to say that some awards have a minimum engagement, for that to then be included in this modern award. It was open to the parties to make submissions during the 10A process and whilst we don't say that it ends there we do say that it's worth noting that the ASU did not in their draft modern award in the 10A process seek a minimum engagement.
PN834
But if it's not an error that arose out of the 10A process then I suppose what we need to look to is whether it's necessary to achieve the modern award objectives. What we say is that if you look to what is the safety net in the modern awards, there is nothing to say that a minimum engagement and a pattern of work as sought by the ASU is necessary and I think that it's also important to reiterate that the current award does provide that there be reasonably predictable hours and my colleague spoke to this issue as well, that the fact of there being some employers that may not be providing reasonably predictable hours does not go to the issue of whether the modern award should be varied. Instead, rather it goes to the issue of compliance.
PN835
We would also respond to my colleague from the ASU's comments about the aged care award. He submitted that the aged care provides a fair safety net with respect to part-time employees. Notably, it doesn't provide a minimum engagement provision and we think that that is a salient observation in that respect. ABI for the record does oppose all the variations sought by the ASU with respect to part-time employment. We say that the variations sought by the ASU actually is contrary to section 134(1)(d) of the modern award objectives in the sense that it could go against flexible practises in employment. We also say that - and the evidence conceded at least the possibility of this - that one consequence of this variation may be that if the flexibilities are removed employers might seek to go to casual employees to provide more flexibilities.
PN836
We would also say that it's notable that the ASU has not sought minimum engagements that are commensurate with the minimum engagements in the award that currently exist for casual employees and we think that whilst ABI does not consent to the variation, if the Commission is minded to grant it that at the least there should be some sort of synergy between the casual minimum engagement for and the part-time minimum engagement. With respect to the evidence, we would respectfully submit that there should be little weight given to the evidence insofar as it deals with the issue of part-time employment. We say that some of the examples really are more an issue of award compliance than there being a necessity for the award to be varied.
PN837
We would say that the evidence on this issue is speculative at best and we would also note in particular that Patricia Branson's initial statement attaches statements to the statement and with that respect we would respectfully submit that there should be little weight granted to hearsay evidence of that kind in the circumstances where we could not cross-examine or speak to those witness statements because those witnesses were obviously not available. On the issue of this whole employer redundancy, we do note the example given by Ms McManus or I suppose the context given by her in respect of the funding arrangements and the suggestion that funding is made to the conditions in the award and that it's only made once every four years and so there would be no detriment.
PN838
ABI does not accept this characterisation of how funding operates. It is well known within the sector that funding is very complex, as noted by my colleague. It's not always as simple as to say they just fund to the award. Sometimes you might be funding to the number of beds so to say that the funding already covers what was under them, the pre-modern awards, is over-simplifying the issue. Indeed, when speaking to one of my colleagues he referred to funding arrangements which actually specifically excluded redundancy. Furthermore, ABI has a number of significant national members - so not just limited to New South Wales - who actually do not completely rely on funding. So the funding excuse will be cold comfort to those businesses who have not had to take into account redundancy - and they are small businesses, I should say - they have not had to take that into account in the last three years.
PN839
If the ASU's variation is granted - which ABI does not consent to - but in the event that it is ABI would submit that the general principle that I think is already applied, that the variation have no retrospective application and we also note that the 2014 date is of course relevant because the legislation provides that there is to be no state-based differences in awards after a certain point in time. ABI submits in respect of the evidence that very little falls on the evidence and that it should be given very little weight. It is at best speculative in nature and really does not really come to anything in the end. With respect to brokens shifts, we would say that this is most definitely not an anomaly. The wording of the award, of course, is very deliberate; that it applied to home care streams and disability streams.
PN840
We would say that - and this was demonstrated in the evidence today - that there are going to be circumstances where a broken shift is going to have utility to tender to the needs of a client and that given the unique circumstances within this industry, that it should not be curtailed and that the sleepover provisions, even though they have been remedied, do not really solve all the problems. They relate to work performed immediately before and immediately after a sleepover and there are still going to be circumstances during the day where there will be care provided by one carer in the morning and in the afternoon and that is not solved by sleepover provisions. So we say that the broken shift provisions still have work to do and that they should not be curtailed. They should apply within the disability component of the award along with the home care component of the award.
PN841
The evidence clearly did contemplate circumstances where a client is going to be away from their place of residence and in those circumstances it's not a very effective and productive operation of an organisation, which is consistent with the modern award objectives, for someone not be occupied in their employment while the client, whose care they have the responsibility for, is away from the place of residence. I think that the evidence today clearly did establish that this is a very salient point and supports the retention of this provision in the modern award. We would also say that the evidence today which goes against the inclusion of broken shifts within the disability sphere - there's very little weight that should be placed on that evidence. In some instances it was mere conjecture.
PN842
We had a witness who had never in her long career in the sector worked a broken shift. Whilst ABI acknowledges that irrespective of what the award says there is always going to be this underpinning occupational health and safety consideration. That's really a matter for the business to be able to manage the needs of the client as well as the individual circumstances of the employee and that's a balancing act which should remain within the managerial prerogative of the business, obviously being informed by those important occupational health and safety obligations that already exist at law. We would say that at the core of this issue of broken shifts is flexibility, which is consistent with the modern award objectives and so we would say to grant the variation would actually be contrary to the modern award objectives and so should fail.
PN843
With respect to casual penalty rates - and obviously I think it's important to emphasise that the application by the union really does have two aspects to it: there's the weekend penalties and then there's the overtime for casual employees. Again, I apologise for the lateness of this particular table. We had thought from the opening statement by the ASU that they were no longer seeking to have overtime provisions for casuals so we didn't tender it at that point in time. But again, we did go through each and every modern award and just identify where there were provisions for overtime and this examination actually brought up more awards which don't have overtime for casuals than initially were in our submissions.
THE VICE PRESIDENT: Thank you. That will be exhibit ABI4.
EXHIBIT #ABI4 ABI TABLE REPRESENTING PERCENTAGE OF MODERN AWARDS WITH PROVISIONS FOR CASUAL OVERTIME
MS HAYNES: The ASU would have us believe that this omission with respect to weekend penalties and overtime is in fact an anomaly that's arisen out of the Part 10A process. If you look at the wording of both provisions, the wording is very deliberate. What appears to have happened is that there was a draft award put forward by one of the parties. Aspects of that draft award were taken up by the Australian Industrial Relations Commission and put in the exposure draft. The process was such that the parties had an opportunity to make submissions and speak to what was in the exposure draft. ABI, for instance, actually built on the words put forward in the exposure draft with respect to weekend penalties and from that we would infer that it was well-known to the parties, the effect of the provisions in respect to casuals and overtime and weekend penalty rates. This is no accident. It is not something that is outlandish in the modern award, for these provisions not to be there, and we would say in that aspect of the test under the transitional rights the application must fail. We would say that the evidentiary case has not been such to demonstrate that it is necessary to include this change for the achievement of the modern award objective. Clearly there are other awards which meet the safety net but do not have overtime for casual employees.
PN846
We would say that again, little weight if any should be given to the evidence. There was the evidence of Des Pumpa, who expressed what was found to be a very unfounded fear about losing weekend work and that as a result of the penalty provisions for casual employees his work after 10 years would be given to casual employees and there was no basis for this. He has worked that way for 10 years. Nothing has changed in the last three years. It was just mere speculation and that should have little weight. In respect to the other evidence about overtime and penalty rates for casuals, we would say that a lot of them merely refer back to the pre-modern award situation. As I said from the outset, these should be modern awards. There's been a lot of weight placed - at least in his submissions - placed on this idea of the critical mass and we say for the most part this concept and reliance on the critical mass should really be done away with.
PN847
The question now, after the modern awards have been in place for three years, is are the awards modern? Linked to that are the two-limbed test about the modern award objectives and the effective operation of the award, having regard to what happened in the 10A process. Your Honour, that - - -
PN848
THE VICE PRESIDENT: The casual employees, for example, covered by the retail industry award are entitled to penalties on weekends?
PN849
MS HAYNES: Yes. My understanding - I think that some of the other parties might speak to this - is that the provision for no weekend penalties for casuals was not actually - there were some pre-modern awards which excluded casuals from weekend penalties and they just had the casual loading. I presume these were in my colleague's submissions.
PN850
THE VICE PRESIDENT: The exhibit you handed up about overtime doesn't deal with the incidence of penalty payments for weekends.
PN851
MS HAYNES: Your Honour, if you would find it of any use we can go back and prepare that information for you.
PN852
THE VICE PRESIDENT: Well, it's a matter for you but if you wish to submit a similar document in relation to weekend penalties I'm happy to receive it.
PN853
MS HAYNES: Certainly.
PN854
THE VICE PRESIDENT: Yes.
PN855
MS HAYNES: Unless there are any further questions that ends our closing submissions.
PN856
THE VICE PRESIDENT: Thank you, Ms Haynes.
PN857
MS HAYNES: Thank you, your Honour.
PN858
THE VICE PRESIDENT: You've been elected next, Mr Godfrey.
PN859
MR GODFREY: So it seems, your Honour. Thank you, your Honour. Jobs Australia principally relies on its submissions which were filed in early November by one of my colleagues but I would like to talk to a couple of matters that weren't covered there, given what's been said today. We object, of course, to the four matters that are before you at this time and principally on the reason that they are not anomalies or technical problems as should be considered in regard to Part 10A. What we've been hearing are matters which my friend from the ASU says are things that have been left out or things that we should have looked at. I say that the decision of the award modernisation did look at these issues and they looked at them in detail.
PN860
Therefore, I will look at these particular matters one at a time to show some of the way. I appreciate my friend from ABI and the statements that she's put out, those documents in regard to modern awards. But when modern awards started to be looked at, all of the matters on the awards that brought them about, were looked at by the former Australian Industrial Relations Commission and they published them on their award modernisation research page, which anybody can look at and see how they did compare those things. So I wanted to go first to part-time employment. What we've said in our submissions is that the minimum start for part-time employment were not common; in fact, were unusual. Maybe, as the evidence was presented, in New South Wales that happened a little. But in other states it was extremely rare and the website research page that I just referred to referred to 28 different awards that came into being with this one.
PN861
Of those 28 only 10 had a minimum engagement. All the others did not, principally in the states of Victoria, Queensland, Western Australia and in disability-type awards, attendant care-type awards, crisis accommodation awards. The only awards that seemed to come up with minimum starts as a common provision were the old social and community services awards; either the state versions or the federal versions. So we say that that's not an anomaly, as looked at by the provisions of Part 10A. They were looked at. They were considered by the full bench. The Commission looked at those and made decisions based upon what would suit the industry. I also want to refer to document that was tabled today at H11, which purports to show a paper which supports minimum starts there. I look at the authorship, the parties that were scoped in making it and the thanks that were given to the people who prepared it and note a significant, shall we say, bit that was left out.
PN862
No employers were part of that paper as you look at it. All the parties that were scoped were unions. All the people that were thanked were union officials. Therefore we say that paper has no weight at all in dealing with these matters. Therefore, we say that there is no over-riding case that there was an anomaly in regard to part-time employment or in regard to part-time, minimum commencements. Further to that matter, the issue of minimum starts would dramatically effect any small employer and all our members, the majority of all twelve hundred of them are small employers. To put in place a minimum start of three hours where people are, in some case, in lots of cases, are only paid or funded for 10 ours for two positions that impact upon their ability to operate for a week, what's more, two or three days, would be dramatically impacted because 10 hours, three lots of three, you can't work for five days.
PN863
We want to be open, small community centre, small women's refuge, a small community transport group, they want to provide their services five days a week. They don't get funded for that many hours. So to impose that imposes a dramatic impact upon the operation of our small employer organisations. We believe that the proposal that when you contract an employee and you tell them that you want to work hours, that the hours are then fixed in relation to the needs of the organisation, and that's how it should be. That provides flexibility and these amendments provide a lack of flexibility.
PN864
In regard to small employer redundancy, the Full Bench clearly looked at it and they decided not to preserve small employer redundancies in AIRC FB 1000 (2008), and there's been no evidence provided that not having that small redundancy has created problems. In fact, what it would do would be create an exceptional extra cost on those small employers.
PN865
My colleague ABI mentioned the matter of funding. Our experience is that any time that an organisation has to make someone redundant and goes to the government to ask for funding for the redundancy, the answer is a resounding, "No." And they say, clearly, that that is not something your grant is made for.
PN866
I think our submissions, in regard to broken shifts, are fairly straight forward and I don't intend to carry on further with them other than say it is a developing area and, particularly, with the National Disability Insurance Scheme that's proposed to come in in the future, those are ways of operating will be exacerbated rather than lessened by the proposed variation to the award.
PN867
I need to say something specifically though about casual penalty rates. This relates to the outline of submissions in reply by the ASU at clauses 19 and 20. They talk about the - when the modern award - the draft was filed and they say specifically:
PN868
This clause was not based on any predecessor awards in the social and community sectors and so it is unclear why Jobs Australia sought to impose such condition upon the sector on behalf of its members.
PN869
That, we believe is a statement that puts motives onto us which were not there and they also go onto to say that we didn't sought to explain our actions. Our submissions clearly put this in context: when the draft - exposure drafts were put in place, it's correct that one of our staff was principally involved in putting that together and that included parts related to all sorts of awards to put in the exposure draft. One of which was this provision which was taken from other awards, I think from one of the aged care ones.
PN870
When the aged care provision went out and became a separate modern award that part of the exposure draft remained in there. It's important to notice that everybody sitting at this table were given copies of that exposure draft and not one of them - none of the parties brought up or contradicted that provision at all.
PN871
Now, therefore, we can say that the ASU had no problem with that in the draft submission and, therefore, now, at some later date they've chosen to try and revise history by putting it back in and saying it's an anomaly. If it was an anomaly, if it was unusual, it should have been brought up when the award was done.
PN872
In relation also to weekend loadings, you've got to remember that there are transitional provisions in place. People have been operating, in some cases, since February last year - but in the majority of cases since July last year, with the provisions of the modern award operating in all of these extents. And, therefore, if the Commission is so decided to implement or to grant any of these proposed changes, we would say that any variations of the award should be prospective and not retrospective given that the effect on small employers would, again, be very dramatic.
PN873
One thing I just forgot which I referred back to the research page of the awards that did have minimum starts, the majority of them that had minimum starts did not have three, was closer - more of them had two; a number had one; and only, I think, three or four of the old SACS awards had three. So if the Commission chooses to grant that minimum engagement, which we submit, we would think that that would not be the case, but if they did they would give a lot of weight to what the minimum starts were in the industry previously.
PN874
That is our submissions, your Honour.
THE VICE PRESIDENT: Thank you, Mr Godfrey. I'll mark the written submissions that were filed in November, exhibit G1.
EXHIBIT #G1 WRITTEN SUBMISSIONS WHICH WERE FILED IN NOVEMBER
PN876
MR GODFREY: Thank you.
PN877
THE VICE PRESIDENT: Mr Barkatsas?
PN878
MR BARKATSAS: Thank you, your Honour. If the Commission pleases, we seek to rely on our submissions in reply, which were dated 13 September 2012, and were filed thereafter.
THE VICE PRESIDENT: I'll mark those exhibit B1.
EXHIBIT #BI SUBMISSIONS IN REPLY, DATED 13/09/2012
PN880
MR BARKATSAS: Thank you very much, your Honour. Now, in relation - just a few broad points that I wish to make as the case has progressed today and also in reference to our written submissions in reply that I've just referred to there.
PN881
Now, as some of my friends have also raised the points of and it's something that VECCI certainly discusses in their submissions from, roughly, paragraph 4.7 onwards. It's this notion of a reference to the past, of a reference to the pre modern award safety net.
PN882
Now, I guess, there's many of those references that are within the ASU's initial applications and their submissions in support of those. Now, I guess, from that - and I suppose we've got a few examples in our submissions, for example, we have - let's have a look - in paragraph 4.3 of our written submissions, it refers to an excerpt from the ASU application where it states that:
PN883
The current application to vary the award does not intend to vary the -
PN884
I suppose, to depart from the pre existing safety net -
PN885
however, it does not intend to do so compared to the critical mass of awards that cover social and community related employees prior to modernisation.
PN886
Now, as I've written there in - we submit in paragraph 4.4. Now, that's a mischaracterisation of what this task is about. Now, the awards themselves were made in terms of the statutory mechanism by part 10A of the Workplace Relations Act. Now, part 10A, appropriately names, is award modernisation, and I guess, we'd submit, on a very basis sort of level that includes in the name that they're modern awards, for a reason. Now, there is a recent publication by, I think, it was his Honour Deputy President Hamilton in this Commission where he talks about, I suppose, the last 20 years or so of this Commission and, in particular, in one chapter he talks about awards.
PN887
Now, from my recollection, there's a discussion of simplification, modernisation, rationalisation, then modernisation again. Now, clearly, it's something that this Commission and the parliament has grappled with to try and get these awards to some sort of level of modernity, if I could say that, to a position whereby they're modern instruments, they're temporal, they're relevant, for today's workplaces. And that was, I suppose, the culmination of those four processes, is what occurred in, I suppose, 2008.
PN888
Now, in terms of the way that the ASU frames their argument by reference of the critical mass, and by reference - a huge amount of weight being put on what did occur back from the number or the proportion of pre modern awards, I guess, I'd ask the rhetorical question is this review really meant to be - is it really the function of this review to compare what I think the Full Bench grappled that - I suppose, that awkward question of what is this critical mass test, which can never really be quantified back in the '08 process, and really seems to frame the reference points to these instruments that applied before we had a - or a complete safety net or a legislative safety net in the shape of the NES.
PN889
We had only four or five entitlements that applied in the post Work Choices system. Before that there were little or any safety net requirements in the legislation itself. For example, I - there's a reference, I guess to - from our perspective, from VECCI perspective, or the SACS Award of Victoria. Now, that's an award that was made after a dispute between parties in 1995.
PN890
Now, yes, there may have been change since then, but that's - that's an award - an instrument that's almost 20 years old in terms of its making. Now, the point that we make also in our submissions - and it was referenced in Vice President Lawler's decision of our variation request of the Clerks Award at paragraph 4.9.
PN891
The fact of the matter is the safety net prior to modernisation was departed from as a result of the extensive modern award process conducted by the AIRC pursuant to part 10A of the Workplace Relations Act.
PN892
So, yes, there was a safety net of sorts that was - that existed. It was patchwork, it was haphazard, and there was a very concerted effort by all parties involved to get that to a point where it's a modern safety net. The awards are modern, they're streamlined, they're easier to read, et cetera.
PN893
In terms of that process, there were provisions that came in that didn't exist before, the provisions that were lost or they fell through the net, that as anyone would understand if you're modernising and streamlining what could be hundreds, in this particular sector, probably more, of instruments. They're things that are likely to go and things that are likely to disappear. That's just the nature of the beast.
PN894
Now, in terms of the purpose of this review and the Commission in terms of how this review is mandated under the Transitional Act, now we submit that it must be looked at in some sort of temporal nature. There must be a reference point which is, I suppose, anchored in the current and not in the past.
PN895
Insofar as we say that, for example, section 134(1) of the Fair Work Act as we refer to in paragraph 4.11 provides that the safety net must be fair and relevant. Now, in our honourable submission the relevant aspect of that implies - or to a very strong effect infers that the relevancies is - at the current moment in time, so what is the prevailing conditions: whether it be the economy; whether it be immigration; whether be the Australian dollar; whatever it might be, it's something that this Commission has to review with the help of the parties that can apply, I guess, and provide the arguments and the evidence.
PN896
What is going on at the moment and how can we try and keep these awards modern? Now, the other question I'll ask again, it's rhetorical insofar as if we are going to be looking at what the awards did contain - at this point now, it's five years ago at the latest - we're almost into 2014 review territory. So if it wasn't meant to be an exercise where you look at it at a point in time and look at the instruments as they are now, then what would be the purpose of the utility of having this review and then quarterly reviews after that?
PN897
If we're just going to be talking about what occurred in the SACS award that was made in 1995, was departed from in 2008, if we're still going to be talking about in 2018, then I guess, from my - in our submission, that's not really the purpose of this review.
PN898
So that's what we say in terms of broadly the reference to critical mass of awards, and I guess the numbers and the statistics of awards that did or didn't have a particular provision, and as they say in sport, "I guess you can skew statistics any which way you want." I guess. There's reference to some awards that did have a part time minimum engagement. I think they're New South Wales awards and I don't attempt to - or claim to know them very well, but certainly, they're the main award in Victoria as such, or didn't contain the minimum part time provision in Victoria.
PN899
So you can say that some did and some didn't, and that's the just the way it was. We had a system whereby there was six different - seven different industrial relations Commissions, I think, and that's the - just how it all developed over time. So - now, in terms of - if - on our submission, the critical mass test - or there's reference to the past, if that's not going to be given - and we submit it shouldn't be given a whole lot of relevance or weight, then what it comes down to, and also in looking at the modern awards objective, which has its long list of factors that the Commission must look into and must weigh up in this review.
PN900
It's a multi faceted objective and it cannot be satisfied by simply talking about - and as my friend referred to as well, Mr Newell, that's what used to happen then and it's changed, and we want to go back to that. It's an objective that has to look at a whole range of different factors and, certainly, on our submission, therefore, the variations that have been requested have to be looked at on the evidence and what they can - on what the applicant, in any particular matter, whether it be an employer or an industrial - or an employee organisation, what sort of evidence can they put forward to demonstrate that since the award was made there's a change in circumstances or for some particular reason the modern award objective isn't being met and someone how can the variation actually make the, I suppose, result in the award meeting that objective.
PN901
So now, in terms of having a look at the evidence - and we heard a little about the evidence today and there's also been the evidence that's been put forward by the ASU - I turn to, I guess, in terms of the broken shift examples.
PN902
So we have evidence whereby two employees regarding broken shifts, and I clearly, I suppose, agree to a certain extent that getting people to give evidence in these proceedings is very difficult, but having said that, Ms Grainger, she refers there to her colleagues that worked at a different workplace. They didn't like it. They said that broken shifts were very difficult. So insofar as, I suppose, in terms of weight that can be given to that evidence we would submit that it's very little. It's not our own personal experience.
PN903
As it was reviewed in cross-examination today, Ms Brown, she never had worked a broken shift. So she was talking about implications of take home pay when she works at a (indistinct), she's never worked broken shifts, she's worked there for 10 years, she wasn't aware that you couldn't do it before and now you can. So I would say that - we would submit that Ms Brown's evidence is given no weight in relation to broken shifts.
PN904
When we look into the penalties for part timers, you have, I suppose, the speculation or the fear element that - sorry for casuals. If the casual employees - if penalties aren't put on - aren't given to casual employees and part time employees fear that they may be taken off, that there's going to be a push. Now, we have Mr Pumpa, who has been working those hours for 10 years. Now, according to the transitional provisions, et cetera, and depending on how you skin a cat, I suppose, those provisions have been around for almost three years and he's still working the same hours. So his evidence in relation to, "I fear that that might happen," we would submit that that isn't given very much weight either.
PN905
Now, in relation to - on that point as well, we'd also submit that similar to the argument about enforcement or compliance, now if an award allows an employer, or allows a party to do a certain thing, just because they might have an adverse effect doesn't necessarily mean that that means that it must be removed.
PN906
I mean, the comment was made to me recently that, I suppose, awards have references if not sometimes entitlements to redundancy and notice of termination. Now, in the event someone might get terminated which, of course, isn't (indistinct) doesn't mean that we take out those references from an award.
PN907
I make that analogy insofar as just because it's possible that an employer may try and shift employees from their weekend shifts in order to put casuals there, unless there's, I suppose, evidence that actually indicates that is happening, which in this particular case, is not - has not been tendered, has not been led, we would say that that isn't a reason, in and of itself, to make the variation.
PN908
So now, similarly, in terms of the evidence based, the minimum engagement for part timers. Now, again, there's been statistics, and numbers and proportions that have been flown up, there has been no direct evidence, on our submission, of employees who have been disadvantaged by that, by who have actually received, I suppose a minimum - a minimum engagement that varies from week to week or month to month. We haven't heard any evidence that that has actually happened.
It's all speculation and conjecture.
PN909
There was an example of an employer - a (indistinct) employers who varied the hours to zero. Now, that's a submission from the Bar table, and I guess - whether it actually did occur or did not, well, I guess, on that point you probably say that if a person has been doing the hours for awhile, then they might be coming into some common law issues there, if they were to just vary the hours to zero unilaterally.
PN910
But, again, going on that point, as my friend, Mr Powell refers to and Ms Haynes as well, the compliance or the enforcement of the particular award provision is completely different to why it's in there, as a safety net.
PN911
So we don't remove things from awards simply because if they're not adhered to, they could lead to adverse consequences. We heard evidence today of - sorry, there was evidence in, at least, one of the witness statements about an employer or who scheduling people and having sleepovers and they were working after a few hours and there was fatigue, and they were tired, et cetera.
PN912
Now, from the simple reading of that particular scenario, that was arguably, if not very close to, not in accordance with the award. So, I suppose, that really isn't evidence of an employer who is exploiting the employee. They're doing something that is contrary to what the safety net says they can do.
PN913
And for all of our might and for all of our union friends who assist us, or assist employees, and for us to assist our members, that's still going to happen when - I suppose, no matter how much we vary awards.
PN914
Now, finally, I guess, I take the ASU's point in relation to small employer redundancy and varying it insofar as only relating to those States which - following our submissions in reply - so those States which did have it before the 2004 test case.
PN915
Now, in terms of that - in our honourable submission, I'm not too sure in terms of whether, "Are they seeking for that to be in place indefinitely?" Because on their draft order that was placed on the Friday, it certainly removed the reference of 31 December. I think there was some mention before, from my friend, Mr Harvey, that it would be until 31 December.
PN916
I'm not too sure, perhaps, Mr Harvey can clarify. On that point there's a reference in the submissions or, at least, in that draft order the most recent AEC draft order of that applying indefinitely. Now, I turn Mr Harvey and the ASU's attention to section 154 of the Fair Work Act which stipulates that awards cannot have State based differences unless there are some limitations; unless it was part of award modernisation; and until - and up until the time five years after the day the first award ever had one of those - it came into operation. That's my very non legalistic way of interpreting that provision in section 154. On my reading that means that all State based differences must end on 31 December 2014.
PN917
So we would submit, similar to ABI and my friend, Ms Haynes, that if it was to be implemented, then that's something that must be prospective in its application, and also keeping in mind section 154 of the Act must be expressed to only applying to the end of December 2014.
PN918
Just wanting to check whether I've covered off everything, your Honour. I think that about does it, so if the Commission pleases, I don't have any further - - -
PN919
THE VICE PRESIDENT: Thank you, Mr Barkatsas.
PN920
MR BARKATSAS: Thank you.
PN921
THE VICE PRESIDENT: Mr Harvey, if you do wish to have a reply, I'd prefer it was one reply and there are some other written materials that have been filed today and are foreshadowed as well as written submissions from the AFEI. It might be appropriate that you be given an opportunity for written reply after those other materials are provided.
PN922
MR HARVEY: Yes, rather than me doing anything now?
PN923
THE VICE PRESIDENT: Yes.
PN924
MR HARVEY: Prudence says I should accept your Honour's offer of written reply later. I'd really like to say a couple of things from the Bar but I won't, and I will reserve them for further written submissions in the next few days, yes.
PN925
THE VICE PRESIDENT: Yes. I think - yes, as I said, by close of business on Friday, 19 April.
PN926
MR HARVEY: Yes, your Honour.
PN927
THE VICE PRESIDENT: That would appear to be reasonable.
PN928
MR HARVEY: Yes, your Honour.
PN929
THE VICE PRESIDENT: Yes. Very well. Thank you to all of the parties for their submissions in this matter. I will issue a decision as soon as practicable after considering all of that material and the material that will be subsequently filed.
PN930
We now adjourn the proceedings.
<ADJOURNED INDEFINITELY [3.25PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #H1 AMENDED DRAFT ORDER PN209
LISA DARMANIAN, AFFIRMED PN217
EXAMINATION-IN-CHIEF BY MR HARVEY PN217
EXHIBIT #H2 STATEMENT OF LISA DARMANIAN PN236
CROSS-EXAMINATION BY MS HAYNES PN237
THE WITNESS WITHDREW PN252
SALLY MCMANUS, AFFIRMED PN257
EXAMINATION-IN-CHIEF BY MR HARVEY PN258
EXHIBIT #H3 STATEMENT OF SALLY MCMANUS PN270
CROSS-EXAMINATION BY MS HAYNES PN276
CROSS-EXAMINATION BY MR NEWALL PN316
CROSS-EXAMINATION BY MR BARKATSAS PN322
RE-EXAMINATION BY MR HARVEY PN335
THE WITNESS WITHDREW PN353
MR DESMOND PUMPA, AFFIRMED PN357
EXAMINATION-IN-CHIEF BY MR HARVEY PN358
EXHIBIT #H4 WITNESS STATEMENT OF MR PUMPA PN365
JENNIFER LEIGH GRAINGER, AFFIRMED PN382
EXAMINATION-IN-CHIEF BY MR HARVEY PN384
EXHIBIT #H5 STATEMENT OF JENNIFER LEIGH GRAINGER PN396
CROSS-EXAMINATION BY MS HAYNES PN398
RE-EXAMINATION BY MR HARVEY PN421
THE WITNESS WITHDREW PN427
ELAINE BRAINE, SWORN PN430
EXAMINATION-IN-CHIEF BY MR HARVEY PN431
EXHIBIT #H6 STATEMENT OF ELAINE BROWN PN440
CROSS-EXAMINATION BY MS HAYNES PN442
CROSS-EXAMINATION BY MR BARKATSAS PN458
RE-EXAMINATION BY MR HARVEY PN466
THE WITNESS WITHDREW PN471
PETER ANTHONY MCCLOSKEY, SWORN PN475
EXAMINATION-IN-CHIEF BY MR NEWALL PN476
EXHIBIT #N1 STATEMENT OF PETER ANTHONY MCCLOSKEY PN487
THE WITNESS WITHDREW PN516
DAMIEN ANTHONY SLOANE, SWORN PN519
EXAMINATION-IN-CHIEF BY MR NEWALL PN521
EXHIBIT #N2 STATEMENT OF DAMIEN ANTHONY SLOANE PN532
THE WITNESS WITHDREW PN581
LOUISE SHIELD, SWORN PN591
EXAMINATION-IN-CHIEF BY MR NEWALL PN592
EXHIBIT #N3 STATEMENT OF LOUISE SHIELDS PN605
CROSS-EXAMINATION BY MR HARVEY PN607
THE WITNESS WITHDREW PN628
EXHIBIT #H7 AMENDED STATEMENT OF KATHERINE NELSON PN640
EXHIBIT #H8 STATEMENT OF KATRINE HILYARD PN644
EXHIBIT #H9 STATEMENT OF PATRICIA ANNE BRANSON DATED 02/11/2012 PN660
EXHIBIT #H10 UNDATED STATEMENT OF PATRICIA ANNE BRANSON PN664
EXHIBIT #H11 JOURNAL ARTICLE PN670
EXHIBIT #H12 CHARITABLE SECTOR, AGED AND DISABILITY CARE SERVICES (STATE) AWARD 2003 PN675
EXHIBIT #H13 CHARITABLE, AGED AND DISABILITY CARE SERVICES (STATE) AWARD PN676
EXHIBIT #H14 MISCELLANEOUS WORKERS HOME CARE (STATE) AWARD PN677
EXHIBIT #H15 SUBMISSIONS WITH ATTACHMENTS PN686
EXHIBIT #H16 SERIES OF EXTRACTS OF AWARDS PN689
EXHIBIT #H17 SUBMISSIONS IN REPLY OF ASU DATED 26 NOVEMBER PN691
EXHIBIT #F1 SUBMISSIONS OF AFEI PN778
EXHIBIT #N4 SUBMISSIONS BY AGED CARE EMPLOYERS PN791
EXHIBIT #N5 AGED CARE EMPLOYERS SUBMISSIONS IN REPLY PN792
EXHIBIT #ABI1 ABI OUTLINE OF SUBMISSIONS PN827
EXHIBIT #ABI2 OUTLINE OF SUBMISSIONS IN RESPONSE PN827
EXHIBIT #ABI3 ABI TABLE OF PERCENTAGE OF MODERN AWARDS CONTAINING MINIMUM EMPLOYMENT PROVISIONS PN832
EXHIBIT #ABI4 ABI TABLE REPRESENTING PERCENTAGE OF MODERN AWARDS WITH PROVISIONS FOR CASUAL OVERTIME PN844
EXHIBIT #G1 WRITTEN SUBMISSIONS WHICH WERE FILED IN NOVEMBER PN875
EXHIBIT #BI SUBMISSIONS IN REPLY, DATED 13/09/2012 PN879