PN1648

VICE PRESIDENT CATANZARITI: Thank you. We note that Newcastle sought to be excused for today. We will deal with the ADA witnesses.

PN1649

MR BOYCE: Yes. Do you want to mark the submission of the ADA?

PN1650

VICE PRESIDENT CATANZARITI: We are not marking submissions, it's only documentary evidence and witness statements.

PN1651

MR BOYCE: I will just call Ms Eithne Irving.

PN1652

MS DOUST: Before the witness enters, Vice President - - -

PN1653

VICE PRESIDENT CATANZARITI: Is the witness here?

PN1654

MR BOYCE: Yes.

PN1655

VICE PRESIDENT CATANZARITI: Before the witness enters, so just - you don't want the witness in the room for this?

PN1656

MS DOUST: I don't think it's anything particularly controversial. I had a discussion with my friend about some comments in Ms Irving's statement to the effect of the extent of current award coverage.

PN1657

VICE PRESIDENT CATANZARITI: Yes.

PN1658

MS DOUST: I think I raised a similar issue yesterday and I think my friend is content for that material to be left in on the basis that we both understand those are matters ultimately for the Bench to determine. This is simply advanced as how the witness understands the current landscape.

PN1659

VICE PRESIDENT CATANZARITI: Mr Boyce, is there any reason why the signature is actually blacked out on our version?

PN1660

MR BOYCE: I am not clear.

PN1661

VICE PRESIDENT CATANZARITI: I know there's other black-outs in terms of residential address and some certain things, but the actual signing page has been blacked out, which is unusual.

PN1662

MR BOYCE: Yes, I don't know. You shouldn't have a version that has been blacked out, your Honour.

PN1663

VICE PRESIDENT CATANZARITI: We do. That's the version that we have.

PN1664

MR BOYCE: It's certainly not on my version. I will get you another version.

PN1665

VICE PRESIDENT CATANZARITI: All members of the Bench have the blacked out version.

PN1666

THE ASSOCIATE: Just state your full name and address, please.

PN1667

MS IRVING: Yes, it's Eithne Mary Irving, (address supplied).

<EITHNE MARY IRVING, SWORN [10.13 AM]

EXAMINATION-IN-CHIEF BY MR BOYCE [10.13 PM]

PN1668

MR BOYCE: Ms Irving, could you state your full name, please?‑‑‑Eithne Mary Irving.

PN1669

And your current position?‑‑‑I'm deputy CEO of the Australian Dental Association and I'm also the general manager of policy.

PN1670

You have made a statement in these proceedings?‑‑‑I have.

PN1671

Is that dated 23 May 2017?‑‑‑It is.

PN1672

That has been signed by you?‑‑‑It has.

PN1673

It contains a number of annexures?‑‑‑Yes, quite a lot.

PN1674

I tender that statement. Sorry, I am getting another one.

*** EITHNE MARY IRVING XN MR BOYCE

PN1675

VICE PRESIDENT CATANZARITI: You say it is true and correct to the best of your knowledge?‑‑‑Yes, that's correct.

PN1676

Have you got any changes to make?‑‑‑Not at this point, no.

PN1677

ADA1.

EXHIBIT #ADA1 STATEMENT OF EITHNE MARY IRVING

PN1678

MR BOYCE: No further questions.

PN1679

VICE PRESIDENT CATANZARITI: Ms Doust?

PN1680

MS DOUST: Yes, it shouldn't take very long, Vice President.

CROSS-EXAMINATION BY MS DOUST [10.14 PM]

PN1681

MS DOUST: Ms Irving, can I just ask you at the start about the ADA?‑‑‑Yes.

PN1682

Does the ADA only have dentists as members?‑‑‑That's correct.

PN1683

And retired dentists as well?‑‑‑Yes, and students.

PN1684

But you don't have dental hygienists, dental therapists or oral health therapists in the ADA's membership?‑‑‑No.

PN1685

Members of the ADA have an interest in those categories of the workers because sometimes they are employers, aren't they?‑‑‑Predominantly they are employers.

PN1686

Can I just ask you about the figures that you have produced in your statement at paragraph 32, please. You have said there the average gross income of a dental practice is about 1.1 million. That's about halfway down?‑‑‑Yes.

PN1687

You have said that that is excluding expenses?‑‑‑Correct.

*** EITHNE MARY IRVING XXN MS DOUST

PN1688

After expenses have been paid, a six-person practice with 1.1 principal dentists will clear 1.1 million?‑‑‑As a group, yes, with the six dentists. Is that what you're asking me?

PN1689

Can I just link this back to paragraph 14 of your statement, if I might. You have referred there to an average practice with 6.1 full-time equivalent staff and of that you have 1.1 principal dentists and then various other staff to make up your average of six?‑‑‑Yes.

PN1690

Is that the six personnel that you are referring to halfway down the page in the ADA practice survey?‑‑‑I believe that's correct.

PN1691

After expenses, one of those practices is clearing something in the territory of 1.1 million?‑‑‑No, that's the gross - 1.1.

PN1692

So it's not excluding expenses, that's including expenses?‑‑‑It's before expenses are paid out, before expenses.

PN1693

So still a small practice like that is clearing for the owner something in the territory of $350,000 a year?‑‑‑Based on this survey, that's correct.

PN1694

Yes?‑‑‑More recent data that isn't quite ready to be published shows those figures have dropped around 35 per cent.

PN1695

But typically it's the principal dentist who is the owner of a practice like that?‑‑‑Correct.

PN1696

They operate a practice either as a sole trader or using some sort of corporate vehicle or trust?‑‑‑Correct.

PN1697

So the benefit to the person with the interest in the practice is in the territory of 350,000 a year?‑‑‑That would be a very successful practice.

PN1698

Well, that's the average practice, isn't it, the figures that you have provided?‑‑‑Based on this data back in 2013, but that has changed since.

PN1699

Just going to your statement - I am just moving forward to paragraph 56 and following, please?‑‑‑May I just say something else in response to that, your previous question?

*** EITHNE MARY IRVING XXN MS DOUST

PN1700

No, I am just going forward to the oral therapists, thanks?‑‑‑No, okay. I just wanted to clarify my comment, that was all.

PN1701

Just looking at paragraph 56, you are dealing there with oral health therapists?‑‑‑Mm-hm.

PN1702

Can you tell me what are the services that those practitioners provide?‑‑‑It does depend a little bit on their setting, but generally an oral health therapist provides a range of services across dental hygiene and dental therapy.

PN1703

Do they provide any oral health assessments? Do they do any of that work?‑‑‑I'd have to ask you to clarify what you mean by an "assessment". Do you mean examination?

PN1704

Let's just start with an examination; would they do an oral health examination?‑‑‑Yes, they would do an examination.

PN1705

Would you refer to that as an assessment?‑‑‑No.

PN1706

Back in paragraph 49, you have referred there to an oral health assessment?‑‑‑I can see that perhaps that is confusing. The oral health assessment was intended to include both an examination and other factors.

PN1707

By "an oral health assessment", you would mean having a look at the mouth?‑‑‑No, that's an examination.

PN1708

Right?‑‑‑An oral health assessment might include questions about their diet, how often they brush their teeth, you know, how often do they come and see a practitioner. I know it's really weird, but an assessment is broader than just an exam.

PN1709

All right?‑‑‑An exam is a billable item, if you like.

PN1710

Where you refer to it in paragraph 49, you are saying that an oral health assessment involves an examination and a holistic consideration of the client's oral health?‑‑‑And general health usually.

PN1711

Oral health and general health?‑‑‑Yes.

*** EITHNE MARY IRVING XXN MS DOUST

PN1712

Is that something that oral health therapists undertake? Will they undertake such an assessment?‑‑‑They would, along with oral dental practitioners.

PN1713

Do they also do any restorative treatment?‑‑‑Oral health therapists generally can provide restorative treatment to children.

PN1714

Yes?‑‑‑Some have an adult scope up to 25 years old.

PN1715

Just by "restorative treatment"?‑‑‑Fillings.

PN1716

Fillings, all right. It's making me anxious, mention of these things?‑‑‑That's not uncommon for a lot of people when you're talking about dentistry.

PN1717

Do they also provide what's called preventive services?‑‑‑Correct.

PN1718

Can you just define for me what you mean by "preventive services"?‑‑‑Okay.

PN1719

Is that a cleaning of the teeth?‑‑‑Yes, scale and clean, but dietary advice, you know, telling them to stop drinking soft drinks, which are full of sugar, brush your teeth, floss once a day, come and see us regularly so that we can maintain your teeth in good condition.

PN1720

All right. Each of those things that I have just taken you to, oral health assessment, restorative treatment and preventative services, are also things that you have said a dental therapist does, but do dental therapists do it for children and adolescents?‑‑‑So, no, dental therapists do restorative work, dental hygienists do purely preventative, so they wouldn't do any restorative work.

PN1721

Dental hygienists don't do any restorative work?‑‑‑No.

PN1722

But dental therapists do some restorative treatment?‑‑‑Predominantly on children.

PN1723

But I think that is up to age 26 or something like that?‑‑‑So, if they have done additional training, they can have an adult scope up to 25 or 26, yes.

*** EITHNE MARY IRVING XXN MS DOUST

PN1724

Each of the things you have just referred to in respect of oral health therapists are things that a dental therapist provides, you have said in paragraph 49 of your statement?‑‑‑Because an oral health therapist is a combination of both roles, depending on their employment sector, because it is different, they could do a range of things, including hygiene and therapy.

PN1725

You agree with me that the rise of the role of an oral health therapist has coincided in time with the decline of the role of the dental therapist?‑‑‑I think it's been more of a shift.

PN1726

Right?‑‑‑So when dental - before the national registration and accreditation scheme - - -

PN1727

Just to be clear, that's in about 2010?‑‑‑2010, the national law took effect.

PN1728

Yes?‑‑‑We predominantly had dental therapists and dental hygienists. There were a few people who had been appointed by a particular health service or a particular jurisdiction who had called some of the therapists oral health therapists and so because there were people who were working in that capacity, the national law had to reflect that.

PN1729

So, in terms of a nationally accredited role, the role of oral health therapist has only been recognised since 2010?‑‑‑Yes.

PN1730

First training commenced really to obtain those sorts of qualifications in the years since 2000?‑‑‑No, the training had been shifting from the VET sector - the vocation, education and training sector - into the university sector for a period of time, and so it really was a transition.

PN1731

I think you mention in your statement there's no longer dental therapist-specific training available?‑‑‑There's one course left.

PN1732

One course?‑‑‑Yes, in Newcastle.

PN1733

But it is the case, isn't it, that someone who is a qualified dental therapist who has already obtained those qualifications, they can go and do - is it an extra year - and tack on and complete a Bachelor of Oral Health?‑‑‑Correct.

PN1734

And then be recognised as an oral health therapist and get that registration?‑‑‑They can, but they can also choose to still register themselves as a dental therapist.

*** EITHNE MARY IRVING XXN MS DOUST

PN1735

A dental therapist and, indeed, you can be registered as both a dental therapist and/or a dental hygienist and/or an oral health therapist, can't you?‑‑‑I think you can be the former two, I think, but you wouldn't be all three.

PN1736

Sorry, if you had registration as an oral health therapist, that's - - -?‑‑‑That's probably all you'd have.

PN1737

That sort of assumes that you are as good as the dental therapist and the dental hygienist as well?‑‑‑Yes.

PN1738

Just finally, you refer in your witness statement to the child dental benefits schedule?‑‑‑Yes.

PN1739

Sorry, this is just moving forward a bit to about paragraph 78. This scheme made $4 billion in government money available to the dental sector over a space of six years?‑‑‑I think it was more than four billion.

PN1740

Yes. The consequence of that scheme was, I would suggest to you, a huge boost in demand for services from the sector?‑‑‑That was the idea, but the results are showing that the take-up of that scheme has been less than 35 per cent.

PN1741

Yes?‑‑‑And it's available in both the public and the private sector and, in fact, the public sector uses it substantially.

PN1742

There was no obligation on any dentist in the private sector to perform any of the work covered by the scheme, was there?‑‑‑That's correct.

PN1743

There was no obligation on any of those dentists to perform any of that work at the fee which is provided under the schedule for that particular item of service?‑‑‑They are not obliged, but the data shows that about 97 per cent of all services provided under the scheme are bulk-billed or at the equivalent.

PN1744

The same observations can be made about the other two schemes that you refer to in your statement? That is the CLACP scheme and the DVA scheme?‑‑‑So both of those have fixed rebates or fixed charges.

PN1745

Yes?‑‑‑So the dentists can't vary them.

*** EITHNE MARY IRVING XXN MS DOUST

PN1746

There has been, in each of those cases, a substantial injection of Commonwealth funding?‑‑‑I wouldn't by any means call it substantial. If you look at the data from the AIHW around dental expenditure, 67 per cent of all expenditure in dentistry is paid by consumers, 17 per cent, or 18 per cent I think is the latest figure, is paid by private health insurance and government would be the next one, around 20 per cent, but in the government's 20 per cent, they include the private health insurance rebate.

PN1747

How much do you say has been dedicated into these scheme by the Commonwealth government?‑‑‑Well, the CLACP scheme, which is an unfortunate phrase - the CLACP scheme.

PN1748

Silent "C"?‑‑‑It's a silent "C".

PN1749

Yes?‑‑‑Is very small. You're only talking about children with facial and - - -

PN1750

Cleft palate?‑‑‑Cleft palate and things like that and facial deformities, so it is a very, very small component.

PN1751

Sure?‑‑‑And it's only for specialist services provided under that. So, this is orthodontic work, for example, or perhaps something like sort of facial surgery, reconstructive stuff, so you are talking about a very, very small percentage that would not be significant, and it's only available to a certain proportion of dentistry.

PN1752

Sure?‑‑‑The other scheme is the DVA. Now, the numbers of veterans are dropping, and again most of those services, on the rebates that are paid, it's actually below cost, so dentists are actually doing it pretty much for free these days.

PN1753

But there is no obligation on dentists in any of those cases to perform or to take on any of those patients - dentists in the private sector?‑‑‑There isn't, but, you know, dentists like to give back and people who have fought for Australia deserve to be rewarded, so dentists will take them on.

PN1754

I completely agree with you there, I am just talking about the legal position is they don't have any obligation to take on that work?‑‑‑They do not have an obligation, no.

*** EITHNE MARY IRVING XXN MS DOUST

PN1755

And the reality is in all dental practices that there will be a range of levels of profitability in the services that they offer, won't there?‑‑‑True, but - - -

PN1756

Different sorts of services will have higher or lower levels of profitability?‑‑‑Yes.

PN1757

And the profitability of the practice overall will depend on factors such as volume and the like, won't it?‑‑‑Well, yes, and the research is now showing that the profitability of practices is dropping dramatically, and we know from the Tax Office that the average profit margin is around 20/25 per cent in any practice.

PN1758

Yes, seems a pretty handy number to me, Ms Irving, that sort of rate, comparable to many businesses, isn't it?‑‑‑Well, I mean, it depends on what you're comparing with. You know, there would be other people that would say that there are other practitioners or people who earn a lot more than 25 per cent margin.

PN1759

Thank you, nothing further.

PN1760

VICE PRESIDENT CATANZARITI: Thank you. Any re-examination?

RE-EXAMINATION BY MR BOYCE [10.30 AM]

PN1761

MR BOYCE: Ms Irving, you were asked questions about the dental therapists and the change in 2010. Prior to 2010, what were the numbers of classification title changes that occurred and when did they occur?‑‑‑I just want to make sure I understand your question. There's only - the change - the introduction of oral health therapy has been the only change in dental practice in over 50 years. Is that what you're asking me?

PN1762

Yes, thank you. So, effectively, it's about half a century since any changes have essentially occurred?‑‑‑Pretty much, yes, and I think now that these titles are protected under the national law, it's actually going to be quite difficult to change them. The Australian health ministers have made it very clear they are not interested in introducing any new categories and so they are making it more difficult to include more people in the national scheme.

PN1763

In terms of protection, what do you mean by that?‑‑‑Well, the national law is a protection of title piece of legislation, so it protects those titles. So, I can't call myself a dental therapist, I can't call myself a dentist, I can't call myself a medical practitioner because those titles are restricted and protected under that legislation.

*** EITHNE MARY IRVING RXN MR BOYCE

PN1764

In the seven years since 2010, has there been any application by the union to include dental therapists in schedule C as a named common health professional to the association that you are aware of?‑‑‑Well, they wouldn't apply to us because (a) we're not a union and, (b) - - -

PN1765

No, no, sorry, any application to the Commission that you have been notified of?‑‑‑Not that I'm aware of, no.

PN1766

No further questions.

PN1767

MS MURPHY: Excuse me, your Honour, it's Katrina Murphy in Brisbane.

PN1768

VICE PRESIDENT CATANZARITI: On what basis do you say you can cross-examine an employer witness?

PN1769

MS MURPHY: Sir, I have got one question for Ms Irving.

PN1770

VICE PRESIDENT CATANZARITI: Ms Murphy, it is unusual in these AMod matters for employers to actually cross-examine employer witnesses. I will entertain the question and then we'll see.

PN1771

Don't answer the question. I will hear the question, thank you.

PN1772

MS MURPHY: Thank you, sir.

CROSS-EXAMINATION BY MS MURPHY [10.32 PM]

PN1773

MS MURPHY: My question is - Ms Irving, it's Katrina Murphy from the Dental Hygienists Association. My question is, Ms Irving, would you agree that the professional oral health therapist was registerable with state boards prior to 2010 and as early as 2006?

PN1774

VICE PRESIDENT CATANZARITI: Yes, I will allow that question.

PN1775

MS MURPHY: Thank you, sir.

PN1776

THE WITNESS: Sorry, I thought that I had indicated there were oral health therapists in one jurisdiction prior to the national law.

PN1777

VICE PRESIDENT CATANZARITI: Thank you.

*** EITHNE MARY IRVING XXN MS MURPHY

PN1778

MS MURPHY: Thank you, Ms Irving.

PN1779

DEPUTY PRESIDENT BOOTH: Ms Irving, if I may ask you a question, or more than one, depending on where we go. I am interested in the typical dental practice and your reference to that at paragraph 14 of your statement. You talk in 14(c) of a chairside assistant or a dental assistant. Is that one of the titles that you refer to that's protected?‑‑‑No, it's not.

PN1780

But it is a typical title of a role in a typical dental practice?‑‑‑Yes, so dentists, even dental therapists, dental hygienists, they can't work alone, it's called a four-hand industry. A dentist on their own would find it very difficult to practise without an assistant to pass instruments, to, you know, set up, things like that, so they work very much hand in hand.

PN1781

So the dental assistant is the person who I'm sure we are all familiar with who dabs our chin when things get a bit messy?‑‑‑Correct, and uses the sucker.

PN1782

Very good. Is the dental assistant covered by the Health Professionals and Support Services Award, to your knowledge?‑‑‑Yes, it is, I believe.

PN1783

Thank you, that's all I have.

PN1784

VICE PRESIDENT CATANZARITI: Anything arising?

FURTHER CROSS-EXAMINATION BY MS DOUST [10.35 AM]

PN1785

MS DOUST: Just one question, Ms Irving. It is just in relation to the issue of registration, Vice President. I just wanted to see which jurisdiction it was that registered oral health therapists prior to 2010?‑‑‑I believe it was Queensland, but Ms Murphy might be in a better position to answer it. I'm not absolutely sure. It was before my time.

PN1786

Thanks, Ms Irving. Nothing further.

PN1787

VICE PRESIDENT CATANZARITI: You are excused?‑‑‑Thank you very much.

<THE WITNESS WITHDREW [10.35 AM]

PN1788

VICE PRESIDENT CATANZARITI: Mr Boyce?

*** EITHNE MARY IRVING FXXN MS DOUST

PN1789

MR BOYCE: Thank you, your Honour. I would now seek to call Ms Emma McKenny.

PN1790

THE ASSOCIATE: Please state your full name and address, please.

PN1791

MS McKENNY: It's Emma Jane McKenny, (address supplied).

<EMMA JANE MCKENNY, AFFIRMED [10.36 AM]

EXAMINATION-IN-CHIEF BY MR BOYCE [10.36 AM]

PN1792

MR BOYCE: Could you please state your full name?‑‑‑It's Emma Jane McKenny.

PN1793

Your current occupation?‑‑‑Executive Manager of People and Culture for Pacific Smiles Group.

PN1794

You have made a statement in these proceedings?‑‑‑I have.

PN1795

23 May 2017?‑‑‑Yes.

PN1796

You have got a copy with you?‑‑‑Yes, I do.

PN1797

Do you have any changes to make?‑‑‑No, I don't.

PN1798

Sorry?‑‑‑No, I don't.

PN1799

Thank you. Do you say it's true and correct to the best of your knowledge?‑‑‑Yes, there are - for clarification, there are some numbers that have been presented in there about the number of dental centres we operate. We have since expanded, so there's - I believe I've quoted 64 in here and we now have 75 dental centres.

PN1800

I tender the statement, your Honour.

PN1801

VICE PRESIDENT CATANZARITI: Yes, that will be ADA2.

EXHIBIT #ADA2 STATEMENT OF EMMA JANE McKENNY

*** EMMA JANE MCKENNY XN MR BOYCE

PN1802

VICE PRESIDENT CATANZARITI: Mr Boyce, the same problem is that we have the signature block-out in the version of the Commission.

PN1803

MR BOYCE: Yes, I don't know if the Commission has done that for identity theft purposes or something, but - - -

PN1804

VICE PRESIDENT CATANZARITI: But the name is left on it, it's just the signature is blocked, so we need to have a copy that is properly signed.

PN1805

MR BOYCE: Mr Wilkinson has got a copy.

PN1806

VICE PRESIDENT CATANZARITI: Are there any objections - sorry to interrupt - Ms Doust?

PN1807

MS DOUST: No, your Honour.

PN1808

MR BOYCE: Yes, I understand it's a Commission practice for some reason at the moment, or was then.

PN1809

VICE PRESIDENT CATANZARITI: No, not on the rest of this case.

PN1810

MS MURPHY: Sorry, your Honour, ours were blacked out as well on the web page but un-blacked out versions were filed.

PN1811

VICE PRESIDENT CATANZARITI: Yes. Yes, Mr Boyce?

PN1812

MR BOYCE: Yes, Mr Wilkinson says he never blacked anything out.

PN1813

MR WILKINSON: We didn't black it out, your Honour.

PN1814

VICE PRESIDENT CATANZARITI: No, no, there's no - - -

PN1815

MR WILKINSON: Thanks, your Honour.

PN1816

VICE PRESIDENT CATANZARITI: Yes, Ms Doust?

*** EMMA JANE MCKENNY XN MR BOYCE

PN1817

MS DOUST: Thank you.

CROSS-EXAMINATION BY MS DOUST [10.38 AM]

PN1818

MS DOUST: Ms McKenny, did you say it was 74 or 75 centres that Pacific Smiles now operates? I just missed the last answer you gave?‑‑‑Seventy-four.

PN1819

Seventy-four?‑‑‑We have dual branding, so we operate Pacific Smiles Dental and NIB Dental Care Centres.

PN1820

Yes, of course, of course. Can I just ask you this: at paragraph 21, you refer to the composition of the workforce, comprising some 902 employees and then you refer, at paragraph 22, to Pacific Smiles' corporate function?‑‑‑Yes.

PN1821

Is the corporate function included within the 902 employees?‑‑‑Yes.

PN1822

They are part of that. Is that HR or human resources and industrial relations professionals included within that group?‑‑‑There is a small team of HR.

PN1823

Are you part of that team?‑‑‑I am.

PN1824

You refer just below that reference in your statement to the DEP Enterprise Agreement 2013?‑‑‑Yes.

PN1825

That is an enterprise agreement that Pacific Smiles has inherited from one of the employers?‑‑‑An acquisition, yes, a business acquisition.

PN1826

All right. That movement across the dental landscape continues at pace, does it? Pacific Smiles is in a state of continual expansion?‑‑‑Yes.

PN1827

The span of ordinary hours that is being advocated by the ADA here is broader than the ordinary hours in that DEP Agreement. Is that something you would agree with?‑‑‑Could I refer to the DEP ordinary hours?

PN1828

Please do, yes?‑‑‑I hadn't prepared too much in the DEP space.

*** EMMA JANE MCKENNY XXN MS DOUST

PN1829

Yes?‑‑‑Yes, the ordinary hours of work for a small cohort of our employment workforce is 7 am to 6 pm Monday, Tuesday, Wednesdays and Fridays, 7 to 9 Thursdays and 7.45 am to 4.30 pm on a Saturday.

PN1830

But you are seeking an even broader span for the HPSS Award through the ADA?‑‑‑Correct.

PN1831

MR BOYCE: I object. My client is seeking nothing. There is no change. We are just resisting and defending an attack on the award by - - -

PN1832

MS DOUST: I will withdraw the word "seek".

PN1833

I am sorry, Ms McKenny, do you understand that? I am not suggesting you are seeking something anew, but you advocate for a broader span than that as part of the HPSS Award, don't you?‑‑‑I would just advocate that we are not seeking any change to the current span of hours contained in the HPSS.

PN1834

Can I just ask you, is there any condition contained in the HPSS Award that doesn't entirely accommodate how Pacific Smiles operates its business?‑‑‑I wonder if you could clarify that question for me?

PN1835

Is there any condition in the award that causes Pacific Smiles difficulty in terms of how it would like to operate its business?‑‑‑It's a very broad question. Probably the area that causes us the most amount of operational challenge is always the span of hours.

PN1836

Is that because you would prefer to operate for hours which are greater than the span which is defined in the HPSS Award? I'm sorry, when I say "you", I mean speaking on behalf of Pacific Smiles?‑‑‑Yes, there's a complexity that sits around that. It would probably be two-fold: one, what we prefer to do is respond to our patient needs and their preferences for attending dental appointments and, second of all, a lot of our centres are located in shopping centres and so we have leasing conditions inherent which also can cause some challenges and complexities.

PN1837

Are you saying that something about the current span in the HPSS Award is holding Pacific Smiles back from the preferred hours it wishes to operate?‑‑‑It probably depends on the definition of "holding us back". It causes complexities and there are some shift penalties that apply from time to time that causes us to consider our trading hours and being able to meet the demands of the patient and then, second of all, affordability.

*** EMMA JANE MCKENNY XXN MS DOUST

PN1838

What shift penalties is Pacific Smiles paying?‑‑‑All our employees are employed in our dental centres as dental nurses or dental assistants.

PN1839

Assistants, yes?‑‑‑Yes. I'll be clear with you, our practice managers or dental centre managers are on a different arrangement.

PN1840

Yes?‑‑‑We actually have an individual agreement that we contract dental centre managers under.

PN1841

Yes?‑‑‑However, from assistant centre managers through to dental assistants and receptionists, et cetera, are all employed under the award and therefore, depending when we might be trading on some, I guess, non-standard or typical hours, so Sundays, late Saturday afternoons, et cetera, we attract different shift penalties accordingly.

PN1842

Are you saying that Pacific Smiles in its - I accept you would be paying weekend penalties, but are you saying you are paying shift loadings to employees because they are regularly rostered to work outside the current span of hours?‑‑‑Look, I don't have that level of detail on the basis that, you know, there are 75 centres, so I'm not entirely familiar. Have I just lost sound?

PN1843

It's come back.

PN1844

MR BOYCE: It's come back.

PN1845

THE WITNESS: It's come back. So it's hard for me to have that level of detail.

PN1846

MS DOUST: Can I ask you - - -

PN1847

VICE PRESIDENT CATANZARITI: Just one second, Ms Doust.

PN1848

MS DOUST: Sorry.

PN1849

VICE PRESIDENT CATANZARITI: The VC facilities have disappeared, so we have lost everybody. We will take a short adjournment to reboot.

<THE WITNESS WITHDREW [10.46 AM]

SHORT ADJOURNMENT [10.45 AM]

*** EMMA JANE MCKENNY XXN MS DOUST

RESUMED [11.35 AM]

PN1850

VICE PRESIDENT CATANZARITI: Sorry about the technology problem. It is not cured. Sydney is completely disconnected and we have Ms Murphy on the phone. Ms Murphy, you can hear us?

PN1851

MS MURPHY: Yes, your Honour, I can, thanks.

PN1852

VICE PRESIDENT CATANZARITI: Thank you. We will proceed, Ms Doust, thank you.

PN1853

MS DOUST: Thank you, Vice President.

<EMMA JANE MCKENNY, RECALLED ON FORMER AFFIRMATION [11.35 AM]

CROSS-EXAMINATION BY MS DOUST, CONTINUING [11.35 AM]

PN1854

MS DOUST: Ms McKenny, just returning to the questions I was asking you before the break, I was asking you about how Pacific Smiles manages its workforce under the award and about whether or not that award presented you with any inconvenience in the way in which Pacific Smiles does its business. Do you recall those questions?‑‑‑Yes.

PN1855

Can I just ask you this: has Pacific Smiles engaged its workforce in any enterprise bargaining?‑‑‑No. We have a small cohort of employees, so circa 60 employees, that are covered under the DEP Enterprise Agreement. The rest of our employee workforce, so circa 900 employees, would be covered by the HPSS Award, and then approximately 100 to 120 would be covered by an individual agreement.

PN1856

But so far as the 900-odd employees who are under the award, you have never tried to engage them in enterprise bargaining about their terms and conditions of employment; is that correct?‑‑‑To the best of my knowledge, that's correct.

PN1857

Is that the case because there's nothing in the award that presents Pacific Smiles with any problem that it needs to negotiate to get around?‑‑‑There is a number of obstacles in the award that we do find currently, but we've, at this stage, elected not to undertake in any EBA negotiations with our workforce.

PN1858

Thank you. Nothing further.

*** EMMA JANE MCKENNY XXN MS DOUST

PN1859

VICE PRESIDENT CATANZARITI: Anything arising, Mr Boyce, any re-examination?

PN1860

MR BOYCE: Just one question.

RE-EXAMINATION BY MR BOYCE [11.37 AM]

PN1861

MR BOYCE: Ms McKenny, has the union ever approached you to negotiate an enterprise agreement on behalf of members?‑‑‑No, they haven't, not to my knowledge.

PN1862

Thank you, your Honour.

PN1863

VICE PRESIDENT CATANZARITI: Thank you, you are excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.37 AM]

PN1864

MR BOYCE: Might I just call my final witness, which is Dr Neil Hewson.

PN1865

THE ASSOCIATE: Please state your full name and address, please.

PN1866

DR HEWSON: Neil Hewson, (address supplied).

<NEIL DAVID HEWSON, SWORN [11.38 AM]

EXAMINATION-IN-CHIEF BY MR BOYCE [11.38 AM]

PN1867

MR BOYCE: Dr Hewson, your full name, please?‑‑‑Neil David Hewson.

PN1868

You have made a statement in these proceedings?‑‑‑I have.

PN1869

Is that dated 9 June 2017?‑‑‑Yes.

PN1870

With one attachment?‑‑‑Sorry?

*** EMMA JANE MCKENNY RXN MR BOYCE

*** NEIL DAVID HEWSON XN MR BOYCE

PN1871

One attachment?‑‑‑Is it - - -

PN1872

You have got one attachment to the statement?‑‑‑I guess - I'm not sure. Yes, I have, that's my registration.

PN1873

Do you say that that is true and correct to the best of your knowledge?‑‑‑There is one - when I read through - one change regarding - - -

PN1874

Yes. Would you refer to the paragraph number?‑‑‑Yes, it's paragraph 13(c). We no longer have the part-time qualified dental assistant. I guess her position was quite interesting of how, I believe, cottage industry works. She gave us notice some time before June that she was going to go overseas, so we kept her on, even though, arguably, the position could have been made redundant. She then came to us because she (indistinct) another six months. She then became part time. She has now left us and the position hasn't been filled.

PN1875

Is it correct to just say in respect of paragraph (c) - put a full stop at "full-time basis" and delete the remainder of the sentence?‑‑‑That's correct.

PN1876

Dr Hewson, you are a qualified dentist?‑‑‑Yes.

PN1877

How long have you been practising?‑‑‑Over 30 years, nearly 40, I think.

PN1878

Your current role is a partner with Northland Dental Group?‑‑‑That's correct.

PN1879

When did you establish that?‑‑‑Whatever the dates are in my statement, so it's had two - there were three partners and we've had three lots of partner changes.

PN1880

Thank you, no further questions.

PN1881

VICE PRESIDENT CATANZARITI: ADA3.

EXHIBIT #ADA3 STATEMENT OF NEIL DAVID HEWSON

PN1882

VICE PRESIDENT CATANZARITI: Any objections? Ms Doust?

PN1883

MS DOUST: I wonder whether there's any other advocates that have any questions of this witness before I should start?

*** NEIL DAVID HEWSON XN MR BOYCE

PN1884

VICE PRESIDENT CATANZARITI: There shouldn't be? Does anybody wish to ask any questions of this witness?

PN1885

SPEAKER: No, your Honour.

PN1886

MS DOUST: Thank you, Vice President.

CROSS-EXAMINATION BY MS DOUST [11.41 AM]

PN1887

MS DOUST: Dr Hewson, at paragraph 15 of your statement, you describe the current opening hours of your practice?‑‑‑Yes.

PN1888

How long have they been the opening hours of the practice?‑‑‑(a) and (b) have been like that for some time, (c) has varied.

PN1889

So "some time", is that three weeks or 15 years? Which one is closer?‑‑‑Well, many - many years.

PN1890

Many years, all right?‑‑‑Yes, but (c), when there was that added - you had to pay extra leave Saturdays, we cut back on Saturdays and, when that was withdrawn, we opened more Saturdays.

PN1891

So far as the first couple of entries there, when you say "many years", would that be going back to when you first started in the practice, say in the 1990s, or is that something post - if we say post-2000?‑‑‑Well, it's - I'm just trying to think - it's 11 years since we moved, or maybe getting on to 12 years, since we moved out of the shopping centre.

PN1892

Yes?‑‑‑So our hours were able to be a little bit more flexible, so I'd say they would be - you could say confidently they were the last 11 years.

PN1893

Yes, and - what - even longer than that, going back before that or marked to that time of the move, is it?‑‑‑I just - yes, it's going back a fair way, it's a bit difficult to know for sure.

PN1894

All right?‑‑‑But certainly definitely for the last 11 years.

*** NEIL DAVID HEWSON XXN MS DOUST

PN1895

Sure. Am I right in thinking that prior to the process of award modernisation that happened around 2009/2010, that practice was covered by the Health & Allied Services Award?‑‑‑No, it was covered by a specific dental practice award in Victoria which was extremely easy for people like me to follow.

PN1896

Yes. How did you manage to stay open on a Thursday night under that award?‑‑‑Sorry, I don't understand the question.

PN1897

Sorry, just thinking about a Thursday night when you have hours that seem to be extended longer than other nights of the week?‑‑‑Yes.

PN1898

How did you manage your Thursday nights then under that award?‑‑‑I still don't understand what you are asking me.

PN1899

What arrangements did you make with staff for working the extended hours of that day?‑‑‑There's a - you know, rostered people - well, a roster that they determine.

PN1900

Yes?‑‑‑Yes.

PN1901

Were there any employees worked overtime in that period?‑‑‑Well, I don't do that side of the practice, but what we have at our practice, we have a software system called ClockOn and in ClockOn, it has all the rules and everything and it's updated with any changes.

PN1902

Yes?‑‑‑So the employees clock on and they clock off and they put in the breaks, so with like an hour for lunch or more if they have longer, and so that's all their entitlements are automatically worked out by the software.

PN1903

So you are not the person that has to manage the arrangements?‑‑‑No, in the past it's been my brother and now it's the other partner, Kiril.

PN1904

Is that Ian?‑‑‑It was Ian, yes, but he's retired and now it's Kiril.

PN1905

Thank you. Do I take it from your description at paragraph 15 onwards that you can't predict exactly when you'll be finished on a particular day?‑‑‑That's correct.

PN1906

Sometimes you run over the scheduled closing time?‑‑‑Yes. I guess it's not - yes - there's a scheduled last appointment made rather than a scheduled closing time, I guess.

*** NEIL DAVID HEWSON XXN MS DOUST

PN1907

But you have set rosters for your employees as to the hours that they work in a particular day, don't you?‑‑‑Yes, they - yes.

PN1908

Is that something that you are not in charge of?‑‑‑Yes.

PN1909

And you can't tell me the precise details?‑‑‑All I know is the way they're employed, they get all their entitlements as according to the award because that ClockOn software calculates all that for you.

PN1910

Sorry, I am just trying to identify whether or not you are the person that I should ask about how the arrangements are made for deciding how employees are allocated to work particular hours or what arrangements apply when they work outside their hours? Does someone else manage that part of the practice?‑‑‑Yes, and it's something that they - the employees work out themselves.

PN1911

All right?‑‑‑Sorry I can't be more helpful.

PN1912

No, no, no, I appreciate that might not be your role in this practice?‑‑‑Yes.

PN1913

Can I just ask you this: Northland Dental, is that operated as - it's a partnership - is that a registered partnership under Victorian law or do you have a corporate vehicle?‑‑‑No, it's a registered partnership, so there's a partnership agreement, et cetera.

PN1914

All right?‑‑‑Yes.

PN1915

Has the partnership ever sought to engage employees in any enterprise bargaining?‑‑‑No.

PN1916

To cover the terms and conditions of employment?‑‑‑No, but we are considering whether to have contractors or not, yes.

PN1917

Is that something that someone else in the practice would be making the decisions about or is that something that you would make?‑‑‑Whether we change the way those - if we went to contracts and stuff is something we would - we've had preliminary discussions with our dental assistants about it and we'll be seeking advice from the ADA HR people about how we might go about that.

*** NEIL DAVID HEWSON XXN MS DOUST

PN1918

Thank you, nothing further.

PN1919

VICE PRESIDENT CATANZARITI: Any re-examination?

RE-EXAMINATION BY MR BOYCE [11.48 AM]

PN1920

MR BOYCE: Dr Hewson, you were asked about the award that applied previously. Do you know what award that was?‑‑‑It was a Victorian award and, as my statement says, I was involved in the - you know, when the new awards came in and the ADA actually put up a new award just for dental practices and it was largely based on that Victorian one. I just can't recall what the name was.

PN1921

Would it be the Dental (Private Sector) Victoria Award 1998?‑‑‑That sounds familiar, yes.

PN1922

Do you recall that the span of hours in that award was actually more expansive or more generous than the span of hours in the modern award?‑‑‑I don't recall that.

PN1923

Right. You were also asked about Saturdays and you responded about cutting down on shifts or days worked in respect of Saturdays. What was the reason for that?‑‑‑Just whether it was worthwhile economically to do it.

PN1924

On the basis?‑‑‑Of the extra holiday.

PN1925

That was when the modern award was provided for extra weeks' shift work or annual leave?‑‑‑Yes, I forget how many Saturdays, if it was an extra 10 Saturday mornings they were entitled to there.

PN1926

That provision was overturned by - - -?‑‑‑That's my - yes.

PN1927

- - - a Full Bench of the Commission?‑‑‑Yes.

PN1928

So it is the case that in direct response to increased award entitlements, your direct response was to reconsider opening times and shifts for employees?

PN1929

MS DOUST: I object, that's leading.

PN1930

THE WITNESS: Yes, well, we did.

*** NEIL DAVID HEWSON RXN MR BOYCE

PN1931

MR BOYCE: It has been answered.

PN1932

MS DOUST: By you.

PN1933

MR BOYCE: No further questions.

PN1934

MS DOUST: It has been answered by you.

PN1935

THE WITNESS: I had already made that statement, hadn't I?

PN1936

MR BOYCE: Sorry?‑‑‑I thought I'd already made that statement.

PN1937

VICE PRESIDENT CATANZARITI: Yes, okay, there's no need to make any commentary, thank you. Thank you, you are excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.50 AM]

PN1938

VICE PRESIDENT CATANZARITI: That concludes your witnesses?

PN1939

MR BOYCE: Yes, it does, your Honour.

PN1940

VICE PRESIDENT CATANZARITI: Any other material you seek to tender?

PN1941

MR BOYCE: Not in this case, but I didn't tender the Aged Care statements yesterday. I don't think the Bench had them.

PN1942

VICE PRESIDENT CATANZARITI: That's right. We have those here. Let me just get them. Yes, go ahead.

PN1943

MR BOYCE: They first one is John Favaloro.

PN1944

VICE PRESIDENT CATANZARITI: I will make that AC1.

EXHIBIT #AC1 STATEMENT OF JOHN FAVALORO

*** NEIL DAVID HEWSON RXN MR BOYCE

PN1945

MR BOYCE: Karen Foster.

PN1946

VICE PRESIDENT CATANZARITI: Yes, I will get it eventually, but it's not in my set, but AC2.

EXHIBIT #AC2 STATEMENT OF KAREN FOSTER

PN1947

MR BOYCE: Thank you, your Honour. Kalena Jefferson.

PN1948

VICE PRESIDENT CATANZARITI: Yes, I have that. AC3.

EXHIBIT #AC3 STATEMENT OF KALENA JEFFERSON

PN1949

MR BOYCE: Mark Douglas.

PN1950

VICE PRESIDENT CATANZARITI: AC4.

EXHIBIT #AC4 STATEMENT OF MARK DOUGLAS

PN1951

MR BOYCE: I think Aged Care Employers has provided you with those submissions that you didn't have yesterday of 15 July 2015, think. Other than that, that's the evidence for the Aged Care Employers and the evidence for the Australian Dental Association that has just been provided, thank you.

PN1952

VICE PRESIDENT CATANZARITI: Thank you. We will go to Ms Bandara.

PN1953

MS BANDARA: I call Matthew William Fisher.

PN1954

THE ASSOCIATE: Can you please state your full name and address, please.

PN1955

DR FISHER: Matthew William Fisher, (address supplied).

<MATTHEW WILLIAM FISHER, SWORN [11.53 AM]

EXAMINATION-IN-CHIEF BY MS BANDARA [11.53 AM]

PN1956

MS BANDARA: Matthew, could you please state your full name and position?‑‑‑Matthew William Fisher, I'm the Chief Executive Officer of the Chiropractors' Association of Australia (National) Ltd.

*** MATTHEW WILLIAM FISHER XN MS BANDARA

PN1957

Matthew, you have made two statements in relation to this proceeding, the first dated 17 March 2017 and the second 22 May 2017. Do you have copies of those in front of you?‑‑‑I do.

PN1958

Attached to the statement dated 17 March 2017 are two annexures, namely, a summary of members survey and a review of practice opening hours; is that correct, the two annexures?‑‑‑That's correct.

PN1959

Are the contents of those statements true and correct to the best of your belief?‑‑‑I believe they are, yes.

PN1960

You don't have any changes you wish to make?‑‑‑No.

PN1961

I tender those statements, your Honour.

PN1962

VICE PRESIDENT CATANZARITI: CAA1 and CAA2.

EXHIBIT #CAA1 STATEMENT OF MATTHEW WILLIAM FISHER DATED 17/03/2017

EXHIBIT #CAA2 STATEMENT OF MATTHEW WILLIAM FISHER DATED 22/05/2017

PN1963

VICE PRESIDENT CATANZARITI: Any objections?

PN1964

MS DOUST: I am happy to deal with them on the basis that previous - in respect of the Dental Association material, Vice President, that I will deal with it by way of submissions.

PN1965

VICE PRESIDENT CATANZARITI: Thank you, Ms Doust.

PN1966

MS BANDARA: No further questions.

PN1967

VICE PRESIDENT CATANZARITI: Thank you. Yes, Ms Doust?

PN1968

MS DOUST: Yes, thank you.

CROSS-EXAMINATION BY MS DOUST [11.54 AM]

*** MATTHEW WILLIAM FISHER XXN MS DOUST

PN1969

MS DOUST: Mr Fisher - sorry, Dr Fisher, I'm sorry?‑‑‑Adjunct Associate Professor, Doctor, any of those, that's fine, thanks.

PN1970

DEPUTY PRESIDENT BOOTH: "Doctor" is shorter.

PN1971

MS DOUST: Professor Fisher - - -?‑‑‑No, Matthew will be fine.

PN1972

Just bear with me for a moment, if you will, I'm sorry?‑‑‑That's okay.

PN1973

I think you say in your statement that - this is your statement of 17 March - chiropractors are mostly working in practices with one to two chiropractors and one assistant; yes?‑‑‑The facts in the statement there, one to two practitioners who may employ an assistant, yes.

PN1974

Some of them are in a multidisciplinary practice, though, to be fair? That's the profile of most chiropractors in Australia; is that what you are suggesting?‑‑‑The minority of practices would act in a more multidisciplinary way. It's invariably an office-based practice where you've got one or two practitioners.

PN1975

All right. So, is this the case: for most chiropractors, they will have a single employee as an assistant; that's the most common format of a chiropractor's practice?‑‑‑Yes, if they do employ a chiropractic assistant, they would be doing the administrative work at the front.

PN1976

So, they will either employ another chiropractor and an assistant, so a receptionist or admin person, that sort of - - -?‑‑‑If they do employ, they are really the only two categories of employees. One would be a practitioner, one would be an administrative assistant, yes.

PN1977

But, is it most frequently the case they will only have one other person that they employ?‑‑‑If they do employ, invariably it would probably be only one, but as the majority - if it's a sole practitioner, they may do the whole front of office themselves, but if they do employ, it would be the administrative support.

PN1978

Is this the case: the majority of your members are the actual employers in that practice?‑‑‑Look, our membership, when we look across our membership, we don't distinguish between employers and employees, so a professional association supports all practitioners.

*** MATTHEW WILLIAM FISHER XXN MS DOUST

PN1979

Yes?‑‑‑When we look at the split in our association, currently it's moving more towards employees within the association. Historically, it's employers. I think presently - - -

PN1980

What are the numbers currently in terms of the break-up of your members?‑‑‑I think presently it's around 60 per cent are employers and 40 per cent would be where it's an associate, a contractor.

PN1981

An employed chiropractor?‑‑‑Yes.

PN1982

The industry is currently operating under an award with a six to six Monday to Friday span?‑‑‑Correct.

PN1983

Notwithstanding that, more than 80 per cent of them are still opening after 6 pm?‑‑‑But the majority of people are concluding their business in accordance with the information we have provided, yes. Which graph or which part of the information are you referring to specifically?

PN1984

I am just referring to paragraph 32 of your statement of 17 March?‑‑‑So, yes, 98 per cent open their practice at 7 am or later and close to 83 close between six and eight, yes.

PN1985

Notwithstanding the existence of a 6 pm limit on the span, they are opening until after 6 pm, the vast majority?‑‑‑The vast majority, and that's in response to what patient consumer demand is looking for.

PN1986

And 98 per cent of them are still opening on a Saturday, notwithstanding that being outside the span?‑‑‑In the results of the survey, yes, around 98.5 per cent open at 7 am or later on Saturdays.

PN1987

Sure. Am I right in saying that for those employers who are opening after the span that make up the vast majority of your membership, that the employers are managing whatever inconvenience is caused by that span with a range of strategies; is that correct?‑‑‑As we put in our survey, there are a range of strategies that people are putting in place.

PN1988

Yes?‑‑‑Some of those may be better informed than others, depending on what access to services they are getting to support their role.

PN1989

Sure?‑‑‑So, yes.

*** MATTHEW WILLIAM FISHER XXN MS DOUST

PN1990

Can I suggest these would be some of the approaches that your members would be taking to dealing with that span in the award: one of the steps they might take is for that employer chiropractor to cover that period after 6 pm themselves. Is that one of the approaches that they take?‑‑‑Again it comes back to that the majority of practices are going to be a single or two-person and they may not actually be employing someone. They would take a variety of responses. I can't give you a particular answer to that one about what they might do after that time.

PN1991

We can't tell from the material that you have given us whether, in those hours outside the span, they require employees to be there during those hours?‑‑‑I couldn't give you a definitive answer on that. That would be similar to many other practices that would be looking at what level of support they need to complete the role they are having with their patient.

PN1992

Sure. But one of the ways in which they could manage the span is by the employer covering that whatever period falls after 6 pm themselves. Do you accept that as one strategy they might use?‑‑‑They may do that. You've got the potential issue also of minimising isolation in practice as well, so they may, in fact, have an assistant and accommodate that appropriately, depending on the agreement that they have got.

PN1993

If they have got an assistant, one of the strategies that they might use to have someone back there after six would be that they are paid overtime for those hours? That is one step that is available to them, isn't it?‑‑‑Certainly the association provides some support and that's one of the pieces of information in the survey that the members can access, support to try and interpret the best and appropriate way to remunerate, yes.

PN1994

Or, if they regularly roster their employee after their hours, they might be entitled to a shift penalty?‑‑‑That would - they may. That might come down to the agreement that they have got in place with the employee.

PN1995

The other strategy that's open to them would be to have an enterprise agreement that covers their practice with a different provision in respect of span of hours, to engage in some negotiations to negotiate a different span that might accommodate those extended hours?‑‑‑I don't think I'm in a position where I could provide an appropriate answer to that. That might be an option.

PN1996

That is one of the strategies available to them, isn't it?‑‑‑Well, I'm not in the position where I could provide you a conclusive answer to that one.

*** MATTHEW WILLIAM FISHER XXN MS DOUST

PN1997

But you would accept this, wouldn't you: whatever is the case in respect of the operation of the span in the current award, it's not holding back chiropractors from opening the number of hours that they wish to to service their patients?‑‑‑I think the key point you've made there is that the chiropractors will open their practice to ensure that they are meeting the demands of their patients and that in terms of seeking clarity, if they do employ people, in terms of how they engage those people so that's being done fairly and appropriately, but, again, as you might understand, people in health can get isolated and may not be doing things exactly in accordance with legislation, because they've got to keep up to that, they've got to - and we've made statements about that in terms of where people seek their information to ensure that they are good and appropriate employers and that employees are being dealt with appropriately, too.

PN1998

Are you saying that much of your membership is disregarding the provisions in the award about span?‑‑‑No, I'm not making that statement. I think in our survey we made comment on where members are seeking advice to ensure that they are complying and, with any profession, some people will pay greater attention to it, but the role of an association is to ensure that people are acting as best as they can in accordance with operative legislation.

PN1999

Do you accept this, that the nub of the CAA's claim is not that they are unable to work the hours that they wish, it's that they want to be able to work their employees those hours without incurring any overtime penalty, without incurring any shift penalty and without having to make those hours the subject of any negotiation with employees? That's really the CAA's position, isn't it?‑‑‑I think the CAA is seeking clarity to ensure an appropriate employee/employer relationship.

PN2000

What I want to suggest to you is this: what the Chiropractors' Association wants is to have an award that provides the actual conditions that it prefers to work under rather than a safety net which forms the basis for negotiations with their workforces. Do you accept that proposition?‑‑‑I think the main part that we're looking at is the appropriate span of hours that reflects what consumers are looking for when they are engaging with chiropractors, whether that's an employer or an employee chiropractor.

PN2001

You want the award to reflect the preferred working hours of your membership, don't you?‑‑‑The preferred working hours of the members are being driven by what consumers are seeking from them.

*** MATTHEW WILLIAM FISHER XXN MS DOUST

PN2002

Sure. You haven't identified anywhere in your statement, have you, where the members of the Chiropractors' Association have been interested in engaging in any enterprise bargaining with employees? If I have missed it, just let me know?‑‑‑Look, in terms of since I've been appointed as CEO, that hasn't been, to my knowledge, that any enterprise bargaining has gone on.

PN2003

That has never been considered as an option for your members in terms of dealing with any of the award conditions?‑‑‑I can just say it's not been my experience in the past three and a-half years.

PN2004

Are you aware of any members of your association that are a party to an enterprise agreement that covers terms and conditions of their employees?‑‑‑Look, that would be a question I would have to take on notice and go back and try and understand that.

PN2005

I won't get you called back to the witness box to follow that one up, Mr Fisher. Those are all my questions?‑‑‑Thank you.

PN2006

Thank you, Vice President.

PN2007

VICE PRESIDENT CATANZARITI: Any re-examination?

PN2008

MS BANDARA: No, thank you, your Honour.

PN2009

VICE PRESIDENT CATANZARITI: Thank you, you are excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [12.07 PM]

PN2010

VICE PRESIDENT CATANZARITI: That then concludes the case for the Chiropractors' Association?

PN2011

MS BANDARA: Sorry, your Honour, we actually have a couple of additional documents to tender.

PN2012

VICE PRESIDENT CATANZARITI: Yes, go ahead.

PN2013

MS BANDARA: The draft determination that was attached to our submissions.

PN2014

VICE PRESIDENT CATANZARITI: Yes, that will be CAA3.

EXHIBIT #CAA3 DRAFT DETERMINATION

*** MATTHEW WILLIAM FISHER XXN MS DOUST

PN2015

MS BANDARA: Thank you. And schedule 2 to those submissions as well, which was sort of a summary of award coverage and tables.

PN2016

VICE PRESIDENT CATANZARITI: Yes, we will make that CAA4.

EXHIBIT #CAA4 SCHEDULE 2 TO THE SUBMISSIONS, SUMMARY OF AWARD COVERAGE AND TABLES

PN2017

MS BANDARA: There was an additional letter that we attached from the Fair Work Ombudsman dated 1 June 2012.

PN2018

VICE PRESIDENT CATANZARITI: Yes, I recall seeing that. That will be CAA5.

EXHIBIT #CAA5 LETTER FROM FAIR WORK OMBUDSMAN DATED 01/06/2012

PN2019

MS BANDARA: Thank you very much, your Honour, that's it for us.

PN2020

VICE PRESIDENT CATANZARITI: Anything from your side that you wish to put?

PN2021

MR BOYCE: No.

PN2022

VICE PRESIDENT CATANZARITI: Anything else that they wish to put on in terms of documentation? No? Have the parties reached an agreement in relation to the directions for submissions?

PN2023

MS FISHER: Your Honour, the parties that have been able to talk - and we haven't been able to talk to everybody - but those of us who have had a discussion are quite comfortable with the procedures that have been put forward for the Nursing Award. Those same dates appear to be okay for the majority of us. As I say, I haven't had the opportunity to talk to everybody at this stage.

PN2024

VICE PRESIDENT CATANZARITI: Who is missing out?

PN2025

MS FISHER: The Sydney and the Brisbane people.

PN2026

VICE PRESIDENT CATANZARITI: All right. Ms Murphy, you are on the line. Have you had a look at those directions for the Nursing Award?

PN2027

MS MURPHY: Yes, sir, I have. The DHAA is fine with those dates. It will also be fine if earlier dates were proposed.

PN2028

VICE PRESIDENT CATANZARITI: All right. I think what I will do is recirculate, consistent with the other award, the same dates and I would assume that unless the Sydney people have an objection, they will be the dates.

PN2029

MS DOUST: Can I just indicate, Vice President, that one of the features of the new timetable was the elimination of the additional time at the end for reply. I think we thought that that step could be bridged because the parties would be expected to deal with all of the issues in their initial submissions and any response, but might we have liberty to apply if there was something that came up - - -

PN2030

VICE PRESIDENT CATANZARITI: Yes, liberty to apply will be put into my directions.

PN2031

MS DOUST: - - - that a party thought required some sort of reply, that they might have the matter listed and ask for some leave to file something in reply?

PN2032

VICE PRESIDENT CATANZARITI: Yes, that's fine. Anything further for any of the parties? All right. Otherwise, the Commission is adjourned and the decision is reserved.

ADJOURNED INDEFINITELY [12.10 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EITHNE MARY IRVING, SWORN................................................................ PN1667

EXAMINATION-IN-CHIEF BY MR BOYCE............................................... PN1667

EXHIBIT #ADA1 STATEMENT OF EITHNE MARY IRVING................ PN1677

CROSS-EXAMINATION BY MS DOUST...................................................... PN1680

RE-EXAMINATION BY MR BOYCE............................................................ PN1760

CROSS-EXAMINATION BY MS MURPHY................................................. PN1772

FURTHER CROSS-EXAMINATION BY MS DOUST................................. PN1784

THE WITNESS WITHDREW.......................................................................... PN1787

EMMA JANE MCKENNY, AFFIRMED........................................................ PN1791

EXAMINATION-IN-CHIEF BY MR BOYCE............................................... PN1791

EXHIBIT #ADA2 STATEMENT OF EMMA JANE MCKENNY.............. PN1801

CROSS-EXAMINATION BY MS DOUST...................................................... PN1817

THE WITNESS WITHDREW.......................................................................... PN1849

EMMA JANE MCKENNY, RECALLED ON FORMER AFFIRMATION PN1853

CROSS-EXAMINATION BY MS DOUST, CONTINUING......................... PN1853

RE-EXAMINATION BY MR BOYCE............................................................ PN1860

THE WITNESS WITHDREW.......................................................................... PN1863

NEIL DAVID HEWSON, SWORN................................................................... PN1866

EXAMINATION-IN-CHIEF BY MR BOYCE............................................... PN1866

EXHIBIT #ADA3 STATEMENT OF NEIL DAVID HEWSON.................. PN1881

CROSS-EXAMINATION BY MS DOUST...................................................... PN1886

RE-EXAMINATION BY MR BOYCE............................................................ PN1919

THE WITNESS WITHDREW.......................................................................... PN1937

EXHIBIT #AC1 STATEMENT OF JOHN FAVALORO.............................. PN1944

EXHIBIT #AC2 STATEMENT OF KAREN FOSTER................................. PN1946

EXHIBIT #AC3 STATEMENT OF KALENA JEFFERSON...................... PN1948

EXHIBIT #AC4 STATEMENT OF MARK DOUGLAS............................... PN1950

MATTHEW WILLIAM FISHER, SWORN.................................................... PN1955

EXAMINATION-IN-CHIEF BY MS BANDARA.......................................... PN1955

EXHIBIT #CAA1 STATEMENT OF MATTHEW WILLIAM FISHER DATED 17/03/2017............................................................................................................................... PN1962

EXHIBIT #CAA2 STATEMENT OF MATTHEW WILLIAM FISHER DATED 22/05/2017............................................................................................................................... PN1962

CROSS-EXAMINATION BY MS DOUST...................................................... PN1968

THE WITNESS WITHDREW.......................................................................... PN2009

EXHIBIT #CAA3 DRAFT DETERMINATION............................................ PN2014

EXHIBIT #CAA4 SCHEDULE 2 TO THE SUBMISSIONS, SUMMARY OF AWARD COVERAGE AND TABLES............................................................................ PN2016

EXHIBIT #CAA5 LETTER FROM FAIR WORK OMBUDSMAN DATED 01/06/2012............................................................................................................................... PN2018