RECORDING COMMENCED [4.35 PM]

PN1

MR FERGUSON: ‑ ‑ ‑their involvement being made public beyond the Commission staff.

PN2

JUSTICE ROSS: It won't be publicly on the Commission staff. But, look, the other way of dealing with it is - and it's really, you know, I'm relaxed about how it happens. We can just provide the survey link to you and you can run the survey with your constituents and then provide the actual responses to us.

PN3

MR FERGUSON: Yes.

PN4

JUSTICE ROSS: And then you can tell us who hasn't responded.

PN5

MR FERGUSON: Yes. Your Honour, I think your comments today and those in the statement and the survey will probably go a long way to giving them comfort in any event.

PN6

JUSTICE ROSS: Yes.

PN7

MR FERGUSON: I just anticipated that there'd be a concern without even having spoken to them about this statement. The ‑ ‑ ‑

PN8

JUSTICE ROSS: Yes. No, that's fine. We're not proposing to let - we're proposing to release the aggregate surveyed results and then parties will have an opportunity to make submissions about well, what should we make of that. That's all, yes.

PN9

MR FERGUSON: The other thing I'd say is, and I don't know that it makes material difference really, of those that we intended to give it to we intended to give it to some organisations that are not currently members of Ai Group. It's been a bit of a moving feast. I think we've said some people have come to us through these proceedings.

PN10

JUSTICE ROSS: Yes.

PN11

MR FERGUSON: And the nature of the relationship isn't always membership at this stage, but they're prominent employers and I think their participation in the survey would be of assistance to the Commission. So we hadn't intended to take a narrow view that it would only be those that, you know, are across the line in having their membership processed. I don't know that that is an issue.

PN12

JUSTICE ROSS: I suppose I just want to make sure that they don't fill in more than one response.

PN13

MR FERGUSON: Their name - look, yes, there's not many of ‑ ‑ ‑

PN14

JUSTICE ROSS: But the name will solve that problem, too. Yes.

PN15

MR FERGUSON: The name will be there and there's a small confined group and they're prominent if that makes sense.

PN16

JUSTICE ROSS: Yes. Yes, yes. No, no, look, when they provide their name that will resolve that double response issue as well.

PN17

MR FERGUSON: Yes. Yes. And I note that we're not included on the last question at the moment, not that we're an afterthought, your Honour, but ‑ ‑ ‑

PN18

JUSTICE ROSS: Yes. Yes. No, no, that's fine. No, no, that's fine, we'll make that change. Then can I just go to the other parties about any final comments on the survey, the revised draft and any questions about the process. Can I say that I will ask you or Ingrid will be in touch with you after today to get you to nominate a contact person, and we'll give you the contact person in the Commission staff so that they've got someone they know who to send it to, who to follow up with, those sorts of details, and deal with any question that occurs to you after today because issues might arise subsequently.

PN19

Let's just go round the virtual room, if you like. Let's start in Melbourne and then we'll move to Sydney, and then Newcastle. Ms Liebhaber?

PN20

MS LIEBHABER: Your Honour, just a couple of points. The final question, I think it probably doesn't quite make sense to us whether the enterprise is a member of HSU or the ASU.

PN21

JUSTICE ROSS: No. No, you're right. I just thought - I wasn't sure how to frame that because there were some that you wanted to send it to, I think.

PN22

MS LIEBHABER: I believe that was the ASU.

PN23

JUSTICE ROSS: No, that's fine.

PN24

MS LIEBHABER: Yes.

PN25

JUSTICE ROSS: I think we'll take the HSU and the ASU out of that list, but make it clear, and maybe reframe the question and say, "Is your enterprise a member of one or more of the following organisations? If so, you know, indicate which one".

PN26

MS LIEBHABER: Yes.

PN27

JUSTICE ROSS: Yes.

PN28

MS LIEBHABER: And I know the statement dealt with the issue that HSU submitted about the definition of home care, but I thought I'd just raise that again.

PN29

JUSTICE ROSS: Doesn't the definition that's in the dot point come from the award?

PN30

MS LIEBHABER: It does, but the issue is that care provider in someone's home for someone with a disability is actually not classified as home care but as disability support, and comes under the SACS sector, and the award does make that clear in the ‑ ‑ ‑

PN31

JUSTICE ROSS: I mean, what am I to do with that, do you think? If there's a general agreement that that's right ‑ ‑ ‑

PN32

MS LIEBHABER: Yes.

PN33

JUSTICE ROSS: ‑ ‑ ‑it may mean we need to tidy up the coverage clause, but leave that aside for the moment.

PN34

MS LIEBHABER: Yes.

PN35

JUSTICE ROSS: Let's not ‑ ‑ ‑

PN36

MS LIEBHABER: Yes. There has been general agreement during the - in the ERO decision there are documents that confirm the definitions of those sectors because home care wasn't covered by the ERO.

PN37

JUSTICE ROSS: Can I put it on this basis, I'm content to amend it in the way you're suggesting provided everyone else agrees, otherwise I sort of - my default position is, what does the award say at the moment? So let's see, how would you change that dot point? You'd delete, "or person with a disability" would you?

PN38

MS LIEBHABER: Yes.

PN39

JUSTICE ROSS: All right.

PN40

MS LIEBHABER: Yes.

PN41

JUSTICE ROSS: So it would read:

PN42

Provision of personal care, domestic assistance or home maintenance to an aged person in a private residence.

PN43

MS LIEBHABER: Yes, I think that would capture it better.

PN44

JUSTICE ROSS: Just before I invite other people to comment, we could change the language. So at the moment it says, "The SCHADS Award covers the following sectors". It could say, "The sectors covered by the SCHADS Award include", and then we would have the last dot point, the HSU's suggestion would be to delete the words, "or person with a disability". So that leaves it - because it's an inclusive not an exclusive list, that might assist in protecting the interests of others who might take a different view to the HSU.

PN45

But we'll see how that goes and I'll come back to you if there's anything further you want to say about it. Was there anything else?

PN46

MS LIEBHABER: No, your Honour.

PN47

JUSTICE ROSS: Anything from you, Mr Pegg?

PN48

MR PEGG: Just responding to the HSU's suggestion.

PN49

JUSTICE ROSS: Yes.

PN50

MR PEGG: If we were going to move away from reproducing the award definition it might simply be ‑ ‑ ‑

PN51

JUSTICE ROSS: Yes, I'd rather ‑ ‑ ‑

PN52

MR PEGG: ‑ ‑ ‑easier to talk about - refer to employee's classified as home care workers, because the purpose of the question is to find out the extent of the use of the 24 hour provision. And whether or not employers are correctly classifying workers isn't actually the issue we're looking at. We're looking at the use of the 24 hour clause and if there's an inappropriate classification that's a separate enforcement issue.

PN53

JUSTICE ROSS: Yes.

PN54

MR PEGG: It may be a separate issue.

PN55

JUSTICE ROSS: How would you change the last dot point to reflect that?

PN56

MR PEGG: Unfortunately I don't have a printout of the current version, but something along the lines of ‑ ‑ ‑

PN57

JUSTICE ROSS: I can show you my copy of it if it helps.

PN58

MR PEGG: Yes, that would help, your Honour.

PN59

JUSTICE ROSS: And I've just marked with a bracket and a line through it the HSU's proposition.

PN60

MR PEGG: It occurs to me there's two separate things. In the list of sectors if we were going to amend that definition rather than delete the words about "or person with a disability" which does actually sit in the award, what could be added is the subsequent note at the end of the definition of the SACS sector, which is convoluted but it basically says that:

PN61

Provision of support in a private residence doesn't preclude classification as a SACS worker.

PN62

But I think that's too long and complicated.

PN63

JUSTICE ROSS: Yes, I don't know that they'd understand that. I want to try and keep it relatively simple.

PN64

MR PEGG: Yes. So I would go to question 8, which currently says that clause 25.8 of the SCHADS Award provides that home care employees may be rostered for that shift. I was thinking simply reword that to ask, "Does your enterprise employ workers classified as home care workers to deliver a 24 hour shift?". But now that I see the, yes, the hard copy in front of me I'm not sure that that does actually solve anything. So, I apologise, I think I've just gone around in a bit of a circle.

PN65

JUSTICE ROSS: No. No, that's all right, Mr Pegg. It's always a problem when, you know, you've got the award which says one thing but it may be that the practical application is another, and this isn't a search for perfection, because otherwise you'd ask a series of questions about, well, "What's the basis of your classifying a person in that?". The most this will provide will be some information. I take the point that's been raised before that it's not going to be necessarily a representative sample of those covered by the award, because we've got so little information about the coverage of the award in any event. As a matter of practicality how many employees are employed in each of the area sub-sectors? So it will probably end up being the best we can do.

PN66

MS LIEBHABER: Your Honour, I just have one idea.

PN67

JUSTICE ROSS: Yes, Ms Liebhaber?

PN68

MS LIEBHABER: Perhaps after the dot point, "disability services" you could say "including residential care and care provided in a private residence".

PN69

JUSTICE ROSS: Just take me through that again. Which dot point are you talking about?

PN70

MS LIEBHABER: So in the first page.

PN71

JUSTICE ROSS: Yes, disability services. Yes.

PN72

MS LIEBHABER: Number 8 dot point, disability services.

PN73

JUSTICE ROSS: "Including residential care", yes.

PN74

MS LIEBHABER: If that said, "including residential care and care provided in a private residence" then at least it would be clear that that may come under disability services rather than home care.

PN75

MR ROBSON: Your Honour, the ASU supports the HSU's suggestion.

PN76

JUSTICE ROSS: Which one?

PN77

MR ROBSON: I think that's probably - well, I suppose the most recent suggestion that we add words to "disability services" "including residential care and care provided in a private residence".

PN78

JUSTICE ROSS: Let's just test that. Just before we go too much further, let's just test it, because if there's not agreement I'm rapidly getting to the point where we just delete question 1 and you try and explain to them whether they're covered or not. Because this list started from you, and ABI agreed it was an appropriate list, so I don't want to get distracted.

PN79

MR ROBSON: I think ABI was wrong frankly, sir.

PN80

JUSTICE ROSS: Yes. No, no, I don't want to get distracted by a lot of discussion about what the award covers and doesn't cover. So let me just test with the employers whether they would agree to the dot point that says "disability services including residential care and care provided in a private residence". So, Mr Pegg, are you okay with that?

PN81

MR PEGG: Yes, we're okay with that.

PN82

JUSTICE ROSS: Let's go to AFEI, Ai Group and ABI. In Sydney?

PN83

MS SHAW: Yes, I believe we're okay with that. I guess we still have that issue with community transport, but ‑ ‑ ‑

PN84

JUSTICE ROSS: Let's not - yes.

PN85

MS SHAW: That was raised.

PN86

JUSTICE ROSS: And, Mr Ferguson?

PN87

MR FERGUSON: Yes. No, I think that amendment is fine.

PN88

JUSTICE ROSS: All right.

PN89

MR FERGUSON: That would be that includes sectors that include that.

PN90

JUSTICE ROSS: Yes, that's right. Yes, we changed that introductory language.

PN91

MR FERGUSON: I must confess we had an organisation raise opposition to the unions' proposal just quickly with me before I came into the room. I'm not sure the basis for it, but I think as it's evolved the proposal now probably rectifies the issue.

PN92

JUSTICE ROSS: All right.

PN93

MR FERGUSON: Because that includes and there's a reference to home care.

PN94

MR ROBSON: Your Honour, I just add that this issue arose during the ERO, and I understand that there was an agreed position between at least the ASU and the Australian Federation of Employers and Industries about the difference between home care work which may involve a person with a disability ‑ ‑ ‑

PN95

JUSTICE ROSS: Yes, sure. Yes.

PN96

MR ROBSON: ‑ ‑ ‑and disability services work.

PN97

MR PEGG: That's ‑ ‑ ‑

PN98

JUSTICE ROSS: But even if there was that doesn't bind them now. So, let's go to ‑ ‑ ‑

PN99

MR ROBSON: I understand that.

PN100

JUSTICE ROSS: No, no, just keep quiet for a moment. I just want to finalise the round table with the employers before you start. You may not need to say anything further. They might agree. So let's cut to the chase. Can I go to Ms Tiedeman?

PN101

MS TIEDEMAN: Yes, we would agree with that amendment.

PN102

JUSTICE ROSS: So let's be clear, the first page would say, "The sectors covered by the SCHADS Award include", then when you get to the dot point, "disability services including residential care", you would add the words "and care provided in a private residence". And you wouldn't change - Ms Liebhaber, I thought that was in lieu of entering the broader debate and changing the last dot point which reflects the award. So the last dot point would remain the same?

PN103

MS LIEBHABER: Yes. I mean - yes, so it could remain the same.

PN104

JUSTICE ROSS: All right.

PN105

MS LIEBHABER: We would prefer it to be removed, but ‑ ‑ ‑

PN106

JUSTICE ROSS: Yes, but - yes.

PN107

MS LIEBHABER: ‑ ‑ ‑if the other words are in then that's - yes.

PN108

JUSTICE ROSS: And you would also make that change to question 1 when you get down to "disability services including residential care", you would add the words, "and care provided in a private residence"?

PN109

MS LIEBHABER: Yes, your Honour.

PN110

JUSTICE ROSS: And you didn't have anything further, Mr Pegg, so that issue is resolved. Let's go to Sydney. Are there any other issues?

PN111

MR ROBSON: Just for and on from the HSU's question about the final question, the draft survey, we're also not sure that we're appropriate to put on that list because no ‑ ‑ ‑

PN112

JUSTICE ROSS: No, no, that's fine. No, that's fine.

PN113

MR ROBSON: Yes.

PN114

JUSTICE ROSS: I've deleted you as well. Yes, because their enterprise wouldn't be a member of your organisation, so ‑ ‑ ‑

PN115

MR ROBSON: No.

PN116

JUSTICE ROSS: No, that's all right. And I'll add Ai Group.

PN117

MR FERGUSON: Yes.

PN118

JUSTICE ROSS: Anyone else in Sydney?

PN119

MS SHAW: Your Honour, we don't have any issues to raise.

PN120

JUSTICE ROSS: Thank you, Ms Shaw. Yes?

PN121

SPEAKER: Yes, sorry, we've got one suggestion. With the Fair Work communication that's sent out with the survey could it be possible that it clarifies that the survey should only be completed by a person who has appropriate authority to do so on behalf of the enterprise because it just may get sent out ‑ ‑ ‑

PN122

JUSTICE ROSS: Except that you'll be sending the survey out. We'll give you the link and you'll send it to whoever is appropriate.

PN123

SPEAKER: And so we can put a covering email with that link, is that your suggestion?

PN124

JUSTICE ROSS: Yes. But you'll have to disclose later what the covering email says.

PN125

SPEAKER: Sure.

PN126

JUSTICE ROSS: So don't put anything in about your claims in the case or anything like that.

PN127

SPEAKER: Yes, yes, yes, no worries.

PN128

JUSTICE ROSS: Yes. Yes. It might be that you support, you know, completion of the survey and the like, and it should be filled by someone with authority to do so, that's fine. Yes.

PN129

SPEAKER: Yes.

PN130

JUSTICE ROSS: Anything else? Yes?

PN131

MR FERGUSON: I'm just thinking, your Honour, so as not to let myself off the hook, probably the best way to verify that those we're working with fill out the survey would be for them to come back to us, their results to come back to us, and then we could check, because it's a confined group. But they won't all be caught by the member question. Does that make sense?

PN132

JUSTICE ROSS: No, true, but other organisations didn't want it to go back to them because they've got more members than you have.

PN133

MR FERGUSON: Yes, I'm not fussed. Because they will say who they are, so there won't be a double counting issue. And I anticipate that they'll fill it out, but it's just this question won't necessarily enable you to work out whether they've filled it out because we've sent it to them or what, because they might be members of other associations too.

PN134

JUSTICE ROSS: The problem - I don't care is the short version.

PN135

MR FERGUSON: Yes, okay. Yes, neither do I.

PN136

JUSTICE ROSS: I mean, we've only said that we'd administer it because that was the request from some of the employers.

PN137

MR FERGUSON: It was only if you were concerned, your Honour.

PN138

JUSTICE ROSS: So I'm content for the employers to get their heads together and tell us which one you'd like to do.

PN139

MR PEGG: Your Honour, I think certainly for NDS we're looking at a mail out to around 1000 employers and I'd be pretty confident Jobs Australia would have a similar view. The administrative burden is a concern.

PN140

JUSTICE ROSS: Yes. Mr Ferguson, why you can't you just - you've only got a dozen or so, just ring them up and ask them ‑ ‑ ‑

PN141

MR FERGUSON: Yes.

PN142

JUSTICE ROSS: ‑ ‑ ‑if they've completed the survey.

PN143

MR FERGUSON: No, happy to do that.

PN144

JUSTICE ROSS: Yes.

PN145

MR FERGUSON: It was just in case you were concerned, your Honour, about whether or not they filled it out. So I'll just do that.

PN146

JUSTICE ROSS: Yes, yes. Yes, I think that's probably going to be the easiest way.

PN147

MR FERGUSON: Yes. It's much easier. We could collect it individually.

PN148

JUSTICE ROSS: Yes. Yes. But it's a bit different for some of the others who have got many more people, that's all.

PN149

MR FERGUSON: Yes. Yes.

PN150

JUSTICE ROSS: All right.

PN151

MS TIEDEMAN: Your Honour, can I just make a couple of comments in relation to it?

PN152

JUSTICE ROSS: Sure. Yes, Ms Tiedeman. Yes.

PN153

MS TIEDEMAN: I think Mr Ferguson just briefly raised it the, but there might be organisations that are members of a number of enterprises.

PN154

JUSTICE ROSS: Yes.

PN155

MS TIEDEMAN: Are they able to select more than one? Would that ‑ ‑ ‑

PN156

JUSTICE ROSS: Yes. Yes.

PN157

MS TIEDEMAN: Okay. And also two of our clients, Aged and Community Services Australia and Leading Aged Services Australia have a big number of members that they were intending to send the survey to themselves through their own channel. We were going to provide them with the link. Are they able to be added to the list of organisations?

PN158

JUSTICE ROSS: Sure. What are they called?

PN159

MS TIEDEMAN: Sorry, list of enterprises. So it's Aged and Community Services Australia and Leading Aged Services Australia.

PN160

JUSTICE ROSS: All right.

PN161

MS TIEDEMAN: That's all.

PN162

JUSTICE ROSS: Out of an abundance of caution I'll get the revised draft sent to each of you and give you a short period of time to comment on it, probably go out tomorrow morning and comments by 12 noon Friday. Also you can indicate who the link should be sent to and who the contact person is within your respective organisations. If there are any other questions that occur to you in the meantime you'll be able to contact the person that we indicate in the email. Anything else? All right. Thank you very much. We'll get on with it and see how we go. Thanks. I'll adjourn.

ADJOURNED INDEFINITELY [4.56 PM]