TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1033979-1

SENIOR DEPUTY PRESIDENT KAUFMAN

AM2012/29 AM2012/83 AM2012/105 AM2012/143 AM2012/191 AM2012/212 AM2012/232 AM2012/288

Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

Application by to review the
Social, Community, Home Care and Disability Services Industry Award 2010

(ODN AM2008/79)
[MA000100 Print PR 991066]]




Melbourne

2.19PM, MONDAY, 25 JUNE 2012

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, I'll take the appearances, please.

PN2

MR J. NUCIFARA: Your Honour, if the tribunal pleases I appear for the Australian Services Union, Nucifara, initial J.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Nucifara.

PN4

MR M. RITCHIE: If the tribunal pleases, Ritchie, initial M. from VECCI appearing on behalf of our members.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Ritchie.

PN6

MS S. HAYNES: If the tribunal pleases, Haynes, initial S. appearing for Australian Business Industrial.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, you might indicate on each occasion, and I know the first two appear for applicants, is Australian Business an applicant at all?

PN8

MS HAYNES: Yes, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: Okay. It's just there are so many I can't keep ready tabs on it. All right. Yes.

PN10

MR K. GODFREY: If the tribunal please, Godfrey, initial K. on behalf of Jobs Australia Ltd. We're not an applicant in this matter, but we were party when the award was made and we have an interest in all the proposed variations. Appearing with me is MR T. HALLS.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you. In Sydney?

PN12

MS A. FIELDS: Amanda Fields, manager Illawarra Multicultural Services.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Fields, is it?

PN14

MS FIELDS: Yes.

PN15

THE SENIOR DEPUTY PRESIDENT: Is Illawarra an applicant in this at all?

PN16

MS FIELDS: Illawarra Multicultural Services.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, and have you applied to vary the award?

PN18

MS FIELDS: Yes.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes. Now, in Sydney?

PN20

MR S. FORSTER: If the tribunal pleases, Forster initial S. for the AFEI in relation to our application, AM2012/232.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN22

MR G. BOYCE: If it pleases, Boyce initial G. for the Aged Care Employers, applicants in AM2012/83 with MR G. SHERGOLD.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Finally - - -

PN24

MR D. YUILLE: If the tribunal pleases, Yuille initital D. on behalf of Catholic Commission For Employment Relations. We're an applicant to the application.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes. Thanks, Mr Yuille. I'm sorry.

PN26

MR D. BUNN: Bunn, initial D. appearing for the Australian Education Union, your Honour. We're not applicants in the matter but we have an interest.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Bunn.

PN28

MS K. DOUGLAS: If the tribunal pleases, Douglas initial K, Health Services Union. We have - well, one listed application, AM2012/191, however it's two separate applications, if the tribunal pleases.

PN29

THE SENIOR DEPUTY PRESIDENT: Sorry, run that past me again. Are you able - - -

PN30

MS DOUGLAS: What happened in the listing, your Honour, is that we put in two applications and they were joined. So if you go to the top of our application it says there (indistinct) multiple application forms attached to this letter. So it's been given one number but in fact it's (indistinct) applications.

PN31

THE SENIOR DEPUTY PRESIDENT: So your application is 191?

PN32

MS DOUGLAS: Correct.

PN33

THE SENIOR DEPUTY PRESIDENT: What was that about multiple applications?

PN34

MS DOUGLAS: Well, there's two applications, your Honour. One is to deal with the sleepover clause, the other is to deal with the definitions. We put in two separate applications on two Fair Work Australia forms, but they were listed as one number. So the point I'm just making is that we've got (indistinct) and an application in relation to the - - -

PN35

THE SENIOR DEPUTY PRESIDENT: I see.

PN36

MS DOUGLAS: I mean, it's got the one number of - - -

PN37

THE SENIOR DEPUTY PRESIDENT: Yes. All right. I follow that. Thank you. Now, have the parties had an opportunity to discuss amongst themselves the procedure to be followed in relation to this matter? It would appear not.

PN38

MR RITCHIE: If it pleases the tribunal, I sent an email late last week really more just to get the ball rolling than anything, your Honour. That was putting forward some suggested steps, the first being written submissions to be filed with the tribunal - - -

PN39

THE SENIOR DEPUTY PRESIDENT: Just a minute. I'll see if I can get that turned up. Have you got a copy of it, Mr Ritchie, handy rather than us trawling through - - -

PN40

MR RITCHIE: I do, your Honour. These multiple files. The dates have bounced around somewhat depending on the feedback from my friends, but that is a copy of what we would propose as a rough outline. It was sent to all the parties on Friday. That was suggested directions of written submissions to be filed by the parties in six weeks or so from now, I understand, two months, and then submissions in reply to be a fortnight after that with a hearing to be set a fortnight after that. Regarding the specific dates, VECCI really has no specific dates in mind, and that was more just to see where the other parties are at. I've spoken with a number of the parties who have roughly suggested an August, September or my friend from the ASU, a October November period and VECCI are really happy with whatever the tribunal decides there.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes. Does anybody have a problem with Mr Ritchie's proposed directions?

PN42

MR GODFREY: Your Honour, I obviously assume that Mr Ritchie has only sent these to the applicants which is perfectly understandable, so we haven't seen a copy of what they are, but I would assume you wouldn't have a great deal of problem.

PN43

THE SENIOR DEPUTY PRESIDENT: Let me just indicate what they are. They would require the what he refers to as interested parties, I would refer to them as applicants and parties who support the applications to file material by 23 August, those opposing to file by 31 August with a hearing on Thursday, 13 September. Does anybody have a problem with directions along those lines? Mr Nucifara?

PN44

MR NUCIFARA: Yes, your Honour. We had the opportunity to have discussions with - I had a discussion with Mr Ritchie earlier today and I indicated to him as I have to any of the other applicants, I had a chance to talk to - I didn't speak to as many as I would have liked, but that time frame is still too tight for us, and the reason for that, your Honour, is this application is the most comprehensive application that our organisation has lodged. There is more than one issue at stake, although the one issue that of course, VECCI, to be fair are concerned about is sleepover. That in itself is a complex issue that every party - every applicant would need to address.

PN45

THE SENIOR DEPUTY PRESIDENT: But it's a fairly simply amendment that they seek. Whether it should be granted or not is a different matter, but it's whether or not the sleepover provisions apply when somebody sleeps at a client's premises rather than at the facility. Is that right? Have I got that right?

PN46

MR NUCIFARA: On the face of it as you first read it, as when I first read "sleepover provisions", I thought, you know, that they were fairly straightforward. In fact the more you look at them and the more they're applied in different ways, different arrangements with shift work, the more complex it is. I think, your Honour - - -

PN47

THE SENIOR DEPUTY PRESIDENT: How naive of me to think it could be simple.

PN48

MR NUCIFARA: You can - I'm not suggesting you go to sleep reading the clause, but it's actually a brief clause, but in fact quite a complex one, one that I've never seen. It's in - it's certainly in - we have the provision - - -

PN49

THE SENIOR DEPUTY PRESIDENT: Can I just stop you there for a sec. Mr Ritchie, is that supposed to be the effect of it, as I understood it? The sleepover clause applies to clients' premises as well as facilities where employees sleep over?

PN50

MR RITCHIE: Your Honour, you've caught me at a loss in some respects. One of my colleagues has been preparing this application to date and knows the ins and outs of our application and the effect of the clause, but looking to our application, what we seek is really clarification of the wording there to try and better explain how it would apply.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes. I think I've got it wrong. You want the word "and" inserted. Is that all it is?

PN52

MR RITCHIE: There's two - we propose two variations. One on (indistinct) at page 1, and variation two is 3.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes (indistinct) I've expressed and I'd forgotten about variation 1 which wants the word "and" inserted. Well, as I indicated on a previous mention, today is not the day to go into the merits of these things, but Mr Nucifara, why is that so complicated that you can't have your written submissions in by 23 August? So that is 25 July. That's a month. I'd envisage that you'd have some discussions trying to narrow issues within the next couple of weeks and you'd have a couple of weeks beyond that to prepare your submissions.

PN54

MR NUCIFARA: Yes. Your Honour, there are a number of application before you. There's at least nine, but a greater majority of those refer to sleepover as one of their items, and it's one of our nine items in our application. There is a full spectrum of what applicants are seeking to do with that clause, from minor changes like VECCI which is their only change. To be fair, as I say, I understood Mr Ritchie putting a reasonable time as they saw it because they only had the one item and one part of that provision that they sought to address, but a number of other applications including our own, including the HSU's really go to the full spectrum there of addressing the problem that we all see from different angles of the sleepover provision.

PN55

We believe that given the time that we've had just on that provision alone, I know we're going to put - we weren't going to say too much today about the merits of each application, but that provision alone has had some time since the award was made to be applied in the workplace. It's probably - it's a matter that's come up more often than not, except for of course the equal pay case. But this award, sleepover has been a major issue. I think it would help the parties more so than most - many award review applications in other award that if we had the opportunity to sit down and report back what the parties - all the parties - the nine of us, the nine applicants have been able to sit down and come to a common position. I mean, the unions amongst ourselves, we've been having discussions for some time since the award was made about a common position on sleepovers.

PN56

Then we want to sit down and have a common position amongst - when I say a "common position", a discussion to see - to actually try and see whether there is anything we can do to address the applications that are there and try and address the real problems that we all foresee in that clause. The clause is there. It's quite a unique clause. Although it's another award, there's certainly an issue in this one here. Your Honour, we were suggesting that the time frame before you was just not long enough to deal with all the matters, not just sleepover but all the other items.

PN57

THE SENIOR DEPUTY PRESIDENT: How long would you envisage, Mr Nucifara?

PN58

MR NUCIFARA: Well, we were looking at a report back - meetings are scheduled between all the applicants between now and September. A report back in mid September. We know that with the award reviews, that these matters need to be resolved before the end of the year.

PN59

THE SENIOR DEPUTY PRESIDENT: As I told you previously, I have to have them resolved by 1 December.

PN60

MR NUCIFARA: I understand that, your Honour. That's why we would be looking at a time frame that takes us through to submissions being lodged in October and the matter heard in November.

PN61

THE SENIOR DEPUTY PRESIDENT: That just may not give me enough time to have a decision out by 1 December which is the last day of my appointment to Fair Work Australia. That has - unfortunately that does have to be taken into account. The last thing you want is for me not to have had a decision out before my retirement and for another member to have to take this matter over at that stage.

PN62

MR NUCIFARA: Yes.

PN63

THE SENIOR DEPUTY PRESIDENT: So I think we're going to have to find a slightly shorter timetable than that to accommodate me unless you can persuade me that it's impossible, in which case I'll speak with the president to see what could be done, but I'm very reluctant to do that at this stage. I really think that a shorter timetable should be able to be accommodated.

PN64

MR NUCIFARA: Your Honour, we're not saying that it's impossible to have the matter dealt with and a decision handed down by 1 December. It's really that time frame between September to November for the formal arbitration of any outstanding matters.

PN65

THE SENIOR DEPUTY PRESIDENT: Well, if I were to blow everything out by a fortnight, say.

PN66

MR NUCIFARA: Sorry, your Honour, those dates would be then - - -

PN67

THE SENIOR DEPUTY PRESIDENT: Well, say - let's start with the hearing. The hearing would be at the end of September. Instead of 13 September it would be 27 September, say. That would enable the submissions to be made by - about 7 September, replied by 21 September, say, something along those lines.

PN68

MR NUCIFARA: Your Honour, that would certainly allow more discussions amongst the parties. We would prefer a time frame that should take us a bit further into October for the hearing and a later date for a submission. I understand your Honour is talking about 1 December for the decision to be handed down.

PN69

THE SENIOR DEPUTY PRESIDENT: Well, before then.

PN70

MR NUCIFARA: Before 1 December. Sorry.

PN71

THE SENIOR DEPUTY PRESIDENT: I also have a few other things to do before 1 December.

PN72

MR NUCIFARA: Yes, your Honour, as we do too as applicants. All the applicants, we've got a number of awards that are up for review. What I would say, your Honour, is that's closer to a position that would work, we believe, but maybe if we hear from the other parties, we would like a later time frame. That would take us another fortnight at least away from those dates, but maybe wait to hear from the other parties. We certainly take your point, your Honour. We're not seeking to have this blow out to a time that's closer - too close to 1 December, but we're looking at that period in October for hearing and then having submissions in mid to late September. If your Honour please.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes. Just bear with me for a moment will you all? What I'm looking at, and invite comments, is that the applicants and those supporting the applications provide material by 7 September and those opposing put submissions in reply by 21 September and we have a hearing on 1 October. Sorry - yes, about 1 October. Now, I invite submissions on that sort of time frame from everybody. Has anybody got a problem with that might be the easiest way to put it?

PN74

MS DOUGLAS: If the tribunal please, your Honour, we've got a nurses hearing, I think it's about 27 September (indistinct) Friday by (indistinct) Watson VP. They're not entrenched in my brain, but I think it's about then, and the Health Professionals, from memory, set that on Friday and that was about mid October also. We, your Honour, support the ASU's submissions in this case. The award is currently undergoing a lot of change. This is our opportunity to try and settle some of these issues in the future. I think some deal of consideration given to the various parties' applications. The conversation we've already had about the end, that's problematic because that plays into (indistinct) any agreement (indistinct) time for engagement, broken shifts.

PN75

There's a lot of other (indistinct) so I think it would be important for parties to be given a good opportunity to distil both points of agreement and points of disagreement and then get to the formal process of a hearing, your Honour, and we would anticipate by having some conversations around it, that there would be less evidentiary material being put before the tribunal to (indistinct) that decision-making of the tribunal a little bit easier. So your Honour in terms of submissions we would prefer that those dates might be pushed out again by about a fortnight so that the submissions would be made sort of towards the end of September, replies by mid October and a hearing sort of very early November. You know, 1 or 2 November or some such. A date around there, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes. Thanks, Ms Douglas. Anybody else got anything to say?

PN77

MS FIELDS: Yes, I'd like to say something. Amanda Fields, Illawarra Multicultural Services.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Fields?

PN79

MS FIELDS: The only - we're not as complex I don't think as other parties, so I'm trying to fit in, but the more it gets pushed back out, the more difficulties that we may have in terms of a closure at business time and notification of staff. One of our issues is to do with the being able to handle annual leave, particularly - not solely, but particularly around the possible (indistinct) by the organisation to have a closure at Christmas time. So the further back the hearings go, we have - it makes it more difficult for us to be able to provide appropriate notification to the staff, and we have been advised by our union that it's preferable to try and give about six months notice, which isn't going to be possible, but - yes, my point stands.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. anybody else want to say anything? Yes?

PN81

MR GODFREY: Your Honour, as you might know, there's 10 applications here, 13 different clauses, 36 different sub-matters to these. Now, I'm not saying that that is not possible to do. There are 12 different variations to the sleepover clause from various parties. So I think what's more needed is maybe some more discussions between the parties first. Now, I understand that - - -

PN82

THE SENIOR DEPUTY PRESIDENT: That's going to be directed, Mr Godfrey.

PN83

MR GODFREY: Okay. Thank you. But I think the dates are feasible. The other matter I mentioned is because of those numbers there are some matters which we agree with and support and there are some matters which we disagree with and wouldn't support. Therefore I would assume we could put in our applications in support by those dates and those against by the other dates.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes. I would have thought that would be the appropriate way to proceed.

PN85

MR GODFREY: Thank you.

PN86

THE SENIOR DEPUTY PRESIDENT: Somebody in Sydney wants to say something. Who is it?

PN87

MR BOYCE: Mr Boyce, your Honour. Just that we support the dates you put forward. These applications have been filed in March. It's now 25 June. Your Honour's timetable gives ample time, around three months to deal with any evidentiary issues and submissions. We support any blowing out of the timetable that your Honour has proposed. Parties can have discussions or the like in their own time whilst they prepare for evidence concurrently, if it pleases.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes. Thanks, Mr Boyce. Anybody else want to say anything? Very well. The dates I've proposed will be the dates for the directions. Formal directions will issue, but it will require applicants' material by 7 September, material in opposition by 21 September and we'll set it down for hearing on 1 October in Melbourne. My strong preference is that there not be a video-link, that people come down to Melbourne. It's one thing to have a mention by video, it's another to have contested hearings by video. But if anybody wants to have a video-link, they should apply to my chambers and I'll give consideration to that. I also direct the parties to confer with a view to narrowing the issues by way of agreement to the extent that they can, and secondly by way of identifying precisely what the matters between them are.

PN89

As Mr Godfrey indicated, for example, there is a number of applications dealing with sleepovers. I'd like to see some sort of consolidation of those applications to the extent possible. What I'd like to do is to see where there is a commonality in relation to sleepovers and where there are differences in relation to sleepovers, and indeed in for any other provisions. At the time of the submissions in reply I will also direct that there be a statement of agreed facts filed to the extent that that is possible. I know that will require some work to be done, but I think not only will that assist me, it will assist the parties. It will certainly identify those issues that should not need to be the subject of evidence and submissions. So I - it won't form part of the directions, but I do direct the parties to confer as soon as possible with a view to reaching the outcomes that I've indicated. Beyond that, the directions will be along the lines that I've indicated with dates that I've indicated. Is there anything else that needs to be raised?

PN90

MR BOYCE: Your Honour - - -

PN91

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Boyce?

PN92

MR BOYCE: How many days are proposing to set it down for? Is it just one day or - - -

PN93

THE SENIOR DEPUTY PRESIDENT: Unclear at this stage. But again if it appears that more than one day is necessary, my chambers should be advised as soon as possible even if that's before the close of the submissions in reply on 21 September. This is a large matter. Do other parties want to say anything about that? Will one day be enough?

PN94

MR RITCHIE: Your Honour, what I've suggested is that the hearing be, for the purpose of short, oral argument in addition to the written material. Now, I note Watson VP has taken a different approach in the sense of a full hearing with, we think, witnesses being called to give evidence on the day. I'd suggest if that approach were taken, a Buckley's chance of getting a one day listing and getting all three.

PN95

THE SENIOR DEPUTY PRESIDENT: Well, that depends on how many witnesses there are, the nature of the evidence. It may not be - I suspect in this case it probably will be. I think we'll need to see what transpires on 7 September.

PN96

MR RITCHIE: Would it be your Honour's rough intention to file witness statement would suffice for evidence? Or would you want to hear oral evidence supporting those statements?

PN97

THE SENIOR DEPUTY PRESIDENT: Again, Mr Ritchie, that will largely depend on whether people want to cross-examine. I can't accept witness evidence if cross-examination is required. If no cross-examination is required I will accept the written evidence without the necessity for those people to be called. I don't think I need to descend to that detail in the directions, but that's just basic principles of natural justice. So you can take it as a given that if cross-examination is not to be sought by anybody, the person who makes the statement will not be required to give evidence so that witness statement ought be sufficiently comprehensive. I certainly won't be allowing any additional evidence beyond that that's contained in the witness statements unless there's a pretty good reason for it.

PN98

MR RITCHIE: Well, we're in your Honour's hands if you think, given that there's travel involved, whether it's prudent to block out additional days in case - - -

PN99

THE SENIOR DEPUTY PRESIDENT: Yes. What I'm now minded to think about is to - - -

PN100

MR NUCIFARA: Sorry, your Honour, just on the days if we may just comment on that. I agree with my friend at least on this that it would take longer than a day, although your Honour I - the proposition you put about witness evidence and only requiring witnesses to attend if cross-examination is required, that's how we had read that anyway. We believe that it could take up to three or four days, but that depends on the number of witnesses that all the applicants have. As you say, your Honour, it is a large matter, but we wouldn't be seeking to have witnesses go over their statement. We would - it really relies on the question of whether anyone wants to cross-examine the witnesses, but I agree with my friend. He's talking about one issue, sleepover. We've got nine. So if your Honour pleases.

PN101

THE SENIOR DEPUTY PRESIDENT: I'm just wondering whether it mightn't be worth mentioning this matter again on 10 September, which is a few days after the applicants' and supporters' material will have been filed. I think by that time the parties should have a better idea of what will transpire. So why don't we mention this matter at 10.15 am on 10 September and any variations to the directions can be considered at that time, including how many days will be required to hear the matter. But I think I would take the same approach as Watson VP. I appreciate full submissions - full oral submissions, but I will have read written submissions. But I do want people to speak to their written submissions and I think enough of your have been before me to know that I will probably have some questions to ask. It will be necessary to have time for that. So we'll deal with it on that basis. I'll set aside the 1 October and 2 October at this stage for the hearing and we'll see where we go. So I'll see you on 10 September. Thank you.

<ADJOURNED UNTIL MONDAY, 10 SEPTEMBER 2012 [2.50PM]