PN257

MR FERGUSON: I think there was one flow on issue from the transitional issue proceedings that I was to deal with - - -

PN258

JUSTICE ROSS: Yes.

PN259

MR FERGUSON: - - - which we can deal with that quickly. If I take the Bench back to it, you will recall that I was asked questions about the sixth line of argument in our submissions and specifically whether we had employers telling us whether it was likely that they would be withdrawing services as a consequence of your decision.

PN260

JUSTICE ROSS: Yes.

PN261

MR FERGUSON: And then to, well, consider our position in relation to that and also whether we wanted to lead any evidence on the point, and we indicated that we'd talk to relevant people or endeavour to. But to clarify, I think our submission on that point are informed in part by the discussions we had been having with employers in the face of the original claims, which were the claims which were ultimately granted on this point and at that point people were indicating to us that if these unfunded, as they would describe them, increases were granted it was foreseeable that they might withdraw services.

PN262

However, in all candour I don't think – well, we haven't gone back to the employers to sort of robustly assess in light of the decision whether they would definitely do that. It's more the case that, well, we had that understanding, and secondly there was a level of support amongst those that we were engaging with for the transitional arrangements we would propose for a myriad of reasons, which informed our submissions.

PN263

Overnight I have endeavoured to contact people, not with a great deal of success though I spoke to one very large employer in the sector and I could explain the logic of their response to you. Just because it has force in logic. Their proposition was they hadn't made any definite decision as to whether or not they would withdraw services. They foresee that they might need to but they would be very loathe to and there would be a raft of variables that they would work through before they made that decision.

PN264

And the first amongst those is, for example, they would look to see whether they could use a level of substitution to work around the use of casuals, or limit the use casuals, and that would involve them potentially offering more hours to their existing part-time staff at ordinary rates. That they might intend to recruit other people or that they might try to convert some of the casual employees.

PN265

But they had an anxiety in that context that that would take some time to work through that process given they don't apprehend that people will readily jump to convert, and everything else will take some time and they also had an anxiety about pulling the trigger so to speak on that decision while there were claims live that would affect their ability to afford a part-time employees additional hours at ordinary rates because there is an interconnectedness between those sorts of issues.

PN266

The other issue is – and this was a common view previously is that, well, any concerns around this might be ameliorated by funding changes, which is obviously the heart of our submissions here is that, well, we accept that the Bench has said that there's not a determinative issue but the cure to these things potentially being not funded is that a reasonable period of time be afforded for the government to address deficiencies in the funding, and that hence is our submission why – well, if that's to be given meaningful effect a more substantial period of time ought (indistinct).

PN267

In relation to it I can say this, I can't indicate to the Bench that we want to lead further evidence on this point. That particular employer has indicated that they're not prepared to for a myriad reasons, some of which are connected to their involvement in the Royal Commission into the disability sector and various resource constraints as well as the commercial considerations, but I don't press the Bench for another opportunity to lead evidence.

PN268

JUSTICE ROSS: All right. Thank you.

PN269

MR FERGUSON: I'd rely on those submissions.

PN270

JUSTICE ROSS: All right. Thank you. Anything arising from that? Okay, well, we'll close off the transitional matter and let's move on to the evidence in relation to the tranche two claims. Ms Doust.

PN271

MS DOUST: Before Your Honour does, I wonder if there's one matter that I might raise with the Bench. That's in light of your comments yesterday, Your Honour, about your disposition about the use of next week.

PN272

JUSTICE ROSS: Yes.

PN273

MS DOUST: Whether to proceed (indistinct) - - -

PN274

JUSTICE ROSS: Sure, yes.

PN275

MS DOUST: - - - final submissions. A matter that occurred to me that I floated with some of the parties here is that perhaps Monday might be used to try to get to the bottom as between the parties of the 24 hour clause issue that that might be usefully employed in conciliating with a view towards preparing a joint report.

PN276

JUSTICE ROSS: Well – okay.

PN277

MS DOUST: I think there's some interest in that view and I appreciate Your Honour hasn't reached a concluded view as to how next week will proceed.

PN278

JUSTICE ROSS: No, that's fine. Well, Commissioner Lee will give some thought to that and advise you about his availability next week.

PN279

MS DOUST: Yes.

PN280

JUSTICE ROSS: Once we've had a break during the proceedings.

PN281

MS DOUST: Yes.

PN282

JUSTICE ROSS: Okay. Just while we're dealing with that issue.

PN283

MS DOUST: Yes.

PN284

JUSTICE ROSS: If the parties can continue to have a discussion about - well, once we've completed the evidence this week, and I've indicated my inclination not to proceed straight into oral submissions, then what process do you collectively think is appropriate? In that can I indicate that we would be content to seek to prepare some form of background paper which seeks to summarise - - -

PN285

MS DOUST: Yes.

PN286

JUSTICE ROSS: - - - and capture the submissions and the claims et cetera. Before that was done, an intervening step would be parties to identify on the basis of the evidence what findings they're seeking.

PN287

MS DOUST: Yes.

PN288

JUSTICE ROSS: Then we would incorporate that in a background document and then we would have an oral hearing. It's not – that's just a thought for one option for how to proceed. If that's of assistance. So if you can keep talking about that during the week. We don't need to resolve it now, and if you give some thought to timeframes and if there are times that you would not be available for the oral hearing - - -

PN289

MS DOUST: Yes.

PN290

JUSTICE ROSS: - - - then you have an opportunity to put input into all of that rather than us, you know, just doing directions and then seeking your response to that. Okay?

PN291

MS DOUST: Yes - no, I appreciate those comments. We'll perhaps turn to those when there's a break - - -

PN292

JUSTICE ROSS: No, no. Certainly.

PN293

MS DOUST: - - -at some stage during the course of the day.

PN294

JUSTICE ROSS: Yes. Okay. Yes, Mr Scott.

PN295

MR SCOTT: Yes, Your Honour. I understand the Bench have been given a copy of an updated schedule this morning.

PN296

JUSTICE ROSS: We have.

PN297

MR SCOTT: I thought it might assist to take you through that. I think there's a couple of, or a couple of minor amendments required to that schedule, and I understand all the parties have a copy as well. If Your Honours turn to Wednesday 16 October there's a witness by the name of Chris Friend.

PN298

JUSTICE ROSS: Yes.

PN299

MR SCOTT: Who is erroneously been scheduled for 2 pm. That should read 10.30 am.

PN300

JUSTICE ROSS: Yes.

PN301

MR SCOTT: In respect of Deborah Anderson, who is the last witness today, my client is no longer requiring Ms Anderson for cross-examination, but I understand she's still required by Ai Group. I understand from discussions - and my client's position has arisen out of agreement that's reached in relation to objections.

PN302

JUSTICE ROSS: Yes, okay.

PN303

MR SCOTT: I understand from discussions with Mr Robson this morning that Ms Anderson is having some difficulty attending the Newcastle Registry. I think there's road works relating to the super cars event later this year. It may be, foreshadow that there may be a proposal that if she can't physically attend the registry that she be permitted to give evidence by telephone. But I think perhaps we can deal with that later in the day as the road works evolve, because she's not scheduled until 2pm, so they may have fixed the road by then.

PN304

JUSTICE ROSS: It notes that she may not be available until 2.30pm. Is it more convenient to - or will we reassess that as we get to the luncheon adjournment? But we could recommence at 2.30. If she was only able to give evidence by telephone, is there any objection to that course?

PN305

MR FERGUSON: No.

PN306

MR SCOTT: I think in terms of planning, we may be able to reassess that because her giving evidence by telephone may change things in terms of her availability. We'll also see how we go throughout the day, because it may be that we're ready for her at 12.30 if she's available by telephone.

PN307

JUSTICE ROSS: Indeed, yes.

PN308

MR FERGUSON: I'm making the assumption that she'll have her statement with her; not rely on the court books.

PN309

MR ROBSON: Look, I apologise your Honour, but I only found out this morning that they had closed Wharf Road in front of the Commission in preparation for the super cars which were two months away. We had previously checked.

PN310

JUSTICE ROSS: I know a lot more about the road works in Newcastle than I ever wanted to.

PN311

MR ROBSON: Sir, so do I. Ms Kinshen has some mobility issues arising from a car accident several months ago. She's just unable to walk the distance from the nearest parking space. She is available by telephone. I'll ask Mr South to contact her and see if she's available earlier in the day.

PN312

JUSTICE ROSS: If you can also - just picking up on the point Mr Ferguson made, just make sure she's got a copy of her statement.

PN313

MR ROBSON: Yes, of course. We have sent her a copy but we will double check that she's got one printed out.

PN314

JUSTICE ROSS: All right, and we'll reassess as we go through and parties can have a discussion about those issues.

PN315

MR SCOTT: You will see if you have a colour version of the schedule there's highlighting in respect of Mr Jeffrey Owen.

PN316

JUSTICE ROSS: Yes.

PN317

MR SCOTT: He is a representative of People with Disability Australia, so he's not represented by anyone to my knowledge here today. We've communicated with People With Disability Australia in respect of his attendance to answer some questions that we'd like to ask of him. We've had no response, so I'm not sure what the position is as to whether Mr Owen will show up throughout the week.

PN318

MS DOUST: His last name is Smith actually. It's Jeffrey Owen Smith.

PN319

MR SCOTT: Smith? Right okay, sorry. I understand it's Jeffrey Owen Smith.

PN320

JUSTICE ROSS: Does that mean you've been ringing the wrong person, or?

PN321

MR ROBSON: I think that may be the case sir. The ASU and the HSU both have questions for Mr Smith. We were able to contact him yesterday.

PN322

JUSTICE ROSS: He doesn't want to talk to you Mr Scott.

PN323

MR ROBSON: He was unaware that he'd been requested for cross-examination. He's not available at 2.30 this afternoon. He is available at 3.30 on Thursday.

PN324

JUSTICE ROSS: So, when you say not available at 2.30 this afternoon.

PN325

MR ROBSON: Sorry.

PN326

JUSTICE ROSS: It was 2.30 tomorrow.

PN327

MR ROBSON: 2.30 tomorrow, Wednesday.

PN328

JUSTICE ROSS: All right, so he is available when on Thursday?

PN329

MR ROBSON: 3.30.

PN330

JUSTICE ROSS: Okay, right.

PN331

MR SCOTT: So, it may be that we can circulate a further advice schedule in respect of that.

PN332

MR ROBSON: I take it, is he attending in Sydney?

PN333

MR SCOTT: Yes.

PN334

JUSTICE ROSS: Who's tendering his statement, or is it just - - -

PN335

MR SCOTT: I'm not sure, your Honour. It may be that the Commission receives it. Our position is, given that we weren't hearing from him that - our position was that the statement that's been filed really is in the nature of a submission and that we were content for it to be received as a submission in the absence of him attending. But obviously, things have developed.

PN336

JUSTICE ROSS: Well, let's just go to that issue, a bit difficult if he's note here, but - what's the attitude of the unions treating the statement as a submission and we could advise - we would ask one of the parties to advise Mr Smith that we can treat - because he may have intended that as well. We could treat his statement as a submission and he need not attend. Or if he wishes to have it treated as evidence, it may be the subject of some objection and he would be required to attend to answer questions. I think the option should be put to him.

PN337

What I don't want him to do is, if he turns up and I've not looked at the statement, so I don't have a view about it. But if there's an objection taken, it's in the form of a submission. If that objection is upheld and we wipe out the statement, then he's come in for nothing. That doesn't seem a very sensible course, that's all.

PN338

MR SCOTT: Yes, I recall that People With Disability Australia did something similar in the part time and casual case relating to this award. I'll double check how that was dealt with then.

PN339

JUSTICE ROSS: All right, thank you.

PN340

MR BULL: I can indicate your Honour, that we put a few - it's at the end of the court book and there are other parties. We put their material in because we were uncertain at the time we prepared the court book as to what they were going to do. We didn't want to exclude people.

PN341

JUSTICE ROSS: Yes, yes. No, I don't think it should be excluded. It's just whether the nature of how it's received, that's all. Well, just to be clear Mr Robson, you'll check how it was dealt with and then are you going to contact Mr Smith and put something to him, or how is that going to work? No point you contacting him Mr Scott because he won't talk to you.

PN342

MR SCOTT: My recollection of the casual part time proceedings was that there was another individual from People With Disability Australia who issued a statement. I can't recall the fellow's name, and it was - - -

PN343

MS DABARERA: Matthew Boden, I think.

PN344

MR SCOTT: Yes, Matthew Boden and he was - his statement was tendered - I can't recall whether there was objections, but he was cross-examined. So it was taken in the nature of evidence.

PN345

MR ROBSON: I believe Mr Boden is the former CEO of People With Disability Australia and Mr Smith is the new CEO post Mr Boden.

PN346

JUSTICE ROSS: All right, well can I leave it with you to sort out what you want to do with him. But that's the - my concern is that he'll have to come in and if there's an objection then - and if it's resolved - if the objection is upheld then there might not have been much utility in him coming in, that's all. But for the moment we'll list him, what at 3.30 on the Thursday?

PN347

MR SCOTT: Yes. We'll endeavour to circulate in the lunch break, a revised schedule if that assists.

PN348

JUSTICE ROSS: All right, thank you. Can I also ask, just is it the intention that well, that we would resolve any objections to the statement at the commencement of each day and for that purpose, did you want to start a bit earlier than 10, to do that?

PN349

MR SCOTT: Can I propose this, your Honour? We deal with the objections to today's evidence this morning. I appreciate we're quickly running out of time with the first witness scheduled for 10am. Wednesday morning we sit at 9.30 and deal with the objections prior to the first witness at 10am in respect of that day.

PN350

JUSTICE ROSS: Yes.

PN351

MR SCOTT: Wednesday afternoon, given that Mr Smith is apparently moving to 3.30 Thursday, Wednesday tomorrow, it's going to be a short day. The last witness is 11.30am.

PN352

JUSTICE ROSS: So at the conclusion of that witness evidence, we could deal with the objections to the evidence the following day?

PN353

MR SCOTT: Our suggestion is that we deal with all of the evidence. So we deal with objections to evidence in respect of both Thursday and Friday and if it's of assistance, we use that time tomorrow afternoon to also deal with all of the tendering of the statements in respect of the witnesses who have not been required for cross-examination. So we just get all of the uncontroversial evidence out of the way. It may be that we can reflect that in an updated schedule.

PN354

There's a couple of other procedural things and I'm happy to deal with these later in the day if that's convenient, but I'll just flag them now. There's a couple of issues with the court book that we've identified in preparing. There's an NDIS price guide and there's various versions of it in the court book, but the latest version is in there. The NDIS price guide has honed the rules and the principles around the prices, but it doesn't actually contain the price schedule, so that the rates for each of the line items, that's in an accompanying document, I think it's titled a support catalogue.

PN355

JUSTICE ROSS: That's all right, we might deal with that on that Wednesday as well. I'm just conscious that it's getting close to the 10 o'clock time, that's all.

PN356

MR SCOTT: Yes, I'm also conscious of that. The only issue with that is it may be that Mr Farthing today is asked some questions about that, so can I just say we've filed that electronically; it's a support catalogue. I think a copy may be being made available to Mr Farthing in case we want to take him to it.

PN357

There's also an issue with the NDIS cost model - and the reason I raise this, it's relevant to Mr Farthing's evidence. The NDIS cost model is a complicated spreadsheet that's been filed electronically. We've indicated to the parties that we wish to rely upon it. In translating it into the hard copy court book, because it's an excel spreadsheet, it hasn't translated across, there's only one tab of the spreadsheet. So, we've communicated to the Commission that we wish to rely on the entirety of that cost model.

PN358

I'm content to deal with the other issues that I wanted to raise procedurally in respect of other witnesses later. Can I just also flag before I sit down, that in respect of my client's claims, because we do have a number of claims, we propose to seek leave to file an amended draft determination in relation to those claims and I'm content for your Honour to hear me later in the day in respect of that. But I've circulated an amended draft determination to the parties. It only rationalises and brings the parties closer together; but I'll address that later if that assists.

PN359

JUSTICE ROSS: All right, thank you.

PN360

MR SCOTT: Thank you.

PN361

JUSTICE ROSS: Objections to the evidence?

PN362

MS DABARERA: Your Honour, it's our witnesses Trish Stewart and Deon Flemming and Belinda Sinclair who are up this morning and I understand that Ai Group has some objections in relation to their evidence.

PN363

MR FERGUSON: Yes, if I may hand up a document to make this faster. There's been some rationalising of the - - -

PN364

JUSTICE ROSS: Just bear with me for a minute. All right.

PN365

MR FERGUSON: Sorry, there's a document that I've handed up which indicates the material that we say would be objectionable, but also indicates the objections that we actually press.

PN366

JUSTICE ROSS: Are you pressing the red ones?

PN367

MR FERGUSON: We're pressing the red ones.

PN368

JUSTICE ROSS: So the first one of those is in relation to Ms Sinclair. Paragraph 21.

PN369

MR FERGUSON: Yes.

PN370

MS DABARERA: Your Honour, in respect of that - - -

PN371

JUSTICE ROSS: Yes, just wait until we read it, if you don't mind. Yes, okay.

PN372

MR FERGUSON: That's an opinion or submission about that.

PN373

JUSTICE ROSS: Sure.

PN374

MS DABARERA: Your Honour, we say that the employee is talking about what's adequate for her and it goes to her experience; it's not broader. So, we press that paragraph.

PN375

JUSTICE ROSS: Yes. No objection over ruled. She's talking about her opinion, not a more general - and that's how we treat it, so.

PN376

MR FERGUSON: In relation to Farthing, I don't need to press the objections because an agreement has been reached with the HSU which I'd just like to put on record.

PN377

MS DOUST: No, the middle proposition, we don't concede.

PN378

MR FERGUSON: You don't concede? I thought there was an agreement.

PN379

JUSTICE ROSS: Well, why don't we leave you to sort out where you're up to with that, so you don't make any concessions that turn out not to be.

PN380

MR FERGUSON: Preclude, yes. We don't need to deal with Farthing now; he's not being called till later in the day, so perhaps we can have some discussions.

PN381

JUSTICE ROSS: Yes.

PN382

MS DABARERA: Your Honour, might I just say with the objections that Ai Group is not pressing, the ones that they've outlined in white, that they say should be given - should be a matter for weight, I would just say from the perspective of United Voice, that we say that they're matters that the employee can give evidence on. The hearsay matters we say that they're matters that can be tested. They're all matters that we press.

PN383

JUSTICE ROSS: Well, they're not seeking to remove them from the statement. If Ai Group ultimately makes a submission that we shouldn't rely on them for whatever purpose, then you can reply to that. We're not accept this as a submission to that effect. The only thing we're doing here is dealing with the red highlight.

PN384

I've taken the rest to be your foreshadowing that the second category may be the subject of submissions as to weight and that's all.

PN385

MR FERGUSON: For convenience we've identified them all in one place and then we will refer to that.

PN386

JUSTICE ROSS: Yes, no no, that's fine, but you're not making those submissions now, so there's no need to reply to them now.

PN387

MR FERGUSON: Yes.

PN388

MS DABARERA: As I understand Ms Trish Stewart is waiting at the Bundaberg Court House.

PN389

JUSTICE ROSS: We'll just do the video connection now.

PN390

Just while we're waiting, Mr Scott, I'd apprehended your comment about dealing with the objections to evidence and procedural issues, that would take place after Mr O'Brien's evidence is completed on the Wednesday, is that right?

PN391

MR SCOTT: That's right.

PN392

JUSTICE ROSS: And if it goes into the afternoon, it does, but we'll start once his evidence is finished.

PN393

MR SCOTT: That's all right. Can I just make the observation, we do have some objections in respect to some of the other witnesses later today, which I've indicated to Ms Doust? We are content to deal with those as the witness is called, given as we have witnesses waiting in Bundaberg.

PN394

JUSTICE ROSS: Sure. Well, we'll finish the UV witnesses and then we'll see where we are.

PN395

MS DOUST: Just a paragraph in each of Elrick and Sheehy that won't be pressed, your Honour, so I can indicate that when I tender the statement.

PN396

JUSTICE ROSS: Sure, thanks. Have we got the witness?

PN397

MS DABARERA: Ms Stewart, it's Nabila Dabarera from United Voice. Can you hear me and see me?

PN398

MS STEWART: Not really.

PN399

MS DABARERA: I'm just here, I'm just waving on the screen.

PN400

MS STEWART: Yes.

PN401

MS DABARERA: So first, I think we'll deal with the oath or the affirmation.

PN402

THE ASSOCIATE: Please state your full name and address.

PN403

MS STEWART: Trish Stewart (address supplied).

<TRISH STEWART, SWORN [10.02 AM]

EXAMINATION-IN-CHIEF BY MS DABARERA [10.02 AM]

PN404

MS DABARERA: Ms Stewart, could I get you to repeat your name for the record please?‑‑‑Trish Stewart.

PN405

What is your address?‑‑‑(Address supplied).

PN406

What is your current occupation?‑‑‑Aged care worker.

PN407

Thank you. Have you prepared three statements for the purposes of these proceedings?‑‑‑Yes.

*** TRISH STEWART XN MS DABARERA

PN408

Do you have a copy of those statements before you?‑‑‑Yes.

PN409

I understand that you have a correction to one of the statements?‑‑‑Yes.

PN410

Is that the statement dated 1 October 2019?‑‑‑Yes.

PN411

JUSTICE ROSS: Is it the first statement, the supplementary or the further?

PN412

MS DABARERA: The further statement.

PN413

JUSTICE ROSS: The further statement, so the last one?

PN414

MS DABARERA: The last one. Ms Stewart, I understand that the correction is to paragraph 4?‑‑‑Yes.

PN415

Could you let us know what the correction is please?‑‑‑I did ask Sharon and Jenny (indistinct) others and then after they left I also asked Carina Anderson and Cindy Allen who took over their place and nothing changed (indistinct).

PN416

JUSTICE ROSS: Could you keep quiet at the back because we can't hear. Why don't you lead the witness into the changes.

PN417

MS DABARERA: Yes. As I understand what you wish to say is when your coordinators Ms Jenny Bruce and Ms Sharon Walker left their positions, I asked Ms Carina Anderson and Ms Cindy Allen, the new coordinators for more hours, but I was not provided with more. I had less hours than I used to have?‑‑‑Yes, it was less.

PN418

Thank you Ms Stewart. Do you want me to repeat that for the Commission, or is that - - -

PN419

JUSTICE ROSS: No, but are you going to tender each of the witness' statements?

PN420

MS DABARERA: Yes, I'll just check with Ms Stewart. At the time of making your statement, was it true and correct to the best of your belief and knowledge?‑‑‑Yes.

*** TRISH STEWART XN MS DABARERA

PN421

I seek to tender Ms Stewart's three statements, the first dated 17 January 2019.

PN422

JUSTICE ROSS: In relation to that - will we start the numbers again?

PN423

MR SCOTT: Can I just raise one procedural matter? Many of the statements that are relied upon in these proceedings were relied upon during tranche one. Some of them were admitted into evidence and marked exhibit HSU1 for example. Objections were made and parts of those statements were struck out. We are operating on the assumption that that evidence is still in evidence in these proceeding and that was clarified at the mention before Commissioner Lee.

PN424

So, we've taken the approach that materials in, for example, the statement of Robert Sheehy that was struck out, his statement has been tendered; it's been marked as an exhibit with those corrections and that that's the evidence. Now if the court book doesn't reflect the exhibits from tranche one, but we've taken the approach that the statements that are in evidence from tranche one, is also the case in this part of the proceeding.

PN425

COMMISSIONER LEE: Well, that's not the approach we took in the mention proceedings. So, I've been clear at all of them, that what's in the court book is what will be relied on and nothing else. That's been the position of the bench.

PN426

MR SCOTT: If that's the case - and certainly I apologise, that wasn't my understanding of the mention, but I take it to be the case. We're going to have to then make objections in respect of the evidence that was tendered during stage one. I don't think that arises in respect to this witness, but.

PN427

JUSTICE ROSS: This witness?

PN428

MS DABARERA: No, our witnesses were not called in stage one, so.

PN429

JUSTICE ROSS: Then why do we need to deal with this now? Can't we just get on with the cross-examination of this witness?

PN430

MR SCOTT: Yes, yes.

PN431

JUSTICE ROSS: Good. What about the exhibit numbers? Does anyone have a view about that?

*** TRISH STEWART XN MS DABARERA

PN432

MS DABARERA: We would say there's some ease in starting the numbers again, unless the other parties - - -

PN433

JUSTICE ROSS: Well, that's easy, because I can't recall where you're up to in your exhibits, so. Well, we'll remark - we'll call this second tranche exhibits and it will be marked exhibit UV1, that will be the initial statement. Exhibit UV2 the supplementary statement and the further statement will be exhibit UV3.

EXHIBIT #UV1 STATEMENT OF TRISH STEWART

EXHIBIT #UV2 SUPPLEMENTARY STATEMENT OF TRISH STEWART

EXHIBIT #UV3 FURTHER STATEMENT OF TRISH STEWART

PN434

MS DABARERA: Thank you, your Honour. Ms Stewart the employer representative will now as you some questions.

CROSS-EXAMINATION BY MR FERGUSON [10.08 AM]

PN435

MR FERGUSON: Good morning Ms Stewart, my name is Mr Ferguson, I represent the Australian Industry Group. Can you hear me?‑‑‑Yes.

PN436

Can I just take you to paragraph 21 of your statement dated 17 January 2019?‑‑‑

PN437

JUSTICE ROSS: Is that the first one?

PN438

MR FERGUSON: It is the first one?‑‑‑What number was that, sorry?

PN439

UV1 - the statement dated 21 January 2019, paragraph 21?‑‑‑Yes.

PN440

You there say in the second last sentence that your phone bill costs $170 a month. In the paragraph above, paragraph 20 you say that you normally make two to three phone calls per day to clients for medication checks and that you also call clients if you're running late?‑‑‑Yes.

PN441

Given the size of your bill, am I right in assuming that you also use your phone for personal purposes unconnected to your work?‑‑‑Yes, I do. I've always said I use the personal phone. But we didn't only ring clients, but we used to have to ring the office as well.

*** TRISH STEWART XXN MR FERGUSON

PN442

Would it be fair to say that you mainly use your phone for personal purposes?‑‑‑No, it's both.

PN443

Yes, but as a proportion of your use of the phone, I understand that you use it for both purposes, but do you use it mainly for personal purposes?‑‑‑A bit of both.

PN444

Is most of your time on the phone making calls for personal purposes or work related purposes?‑‑‑I'd say both because you used to get emails on our phone for work as well.

PN445

I was just asking you about phone calls. You say two to three phone calls per day and there was some other catalyst. You'd agree with me that you make more personal calls than you do work related calls?‑‑‑Yes, I use it for both.

PN446

I assume you send personal messages?‑‑‑Yes.

PN447

And you use it to access the internet for personal purposes?‑‑‑Yes.

PN448

Now, you haven't attached any paperwork to your statement setting out your phone bill or how the plan works, so I just have some questions about what you get as part of your plan. Do you get unlimited standard calls and SMS messages without additional charges as part of your plan?‑‑‑Yes, it's unlimited.

PN449

You're unlimited?‑‑‑Yes.

PN450

Do you know how much data you get?‑‑‑It's all in the plan.

PN451

Sorry, I didn't hear that?‑‑‑It's all in the plan, so it's phone calls and internet.

PN452

And how much internet data do you get, do you know?‑‑‑I think it's 10 gigabytes.

PN453

In paragraph 21 you say that if I was not required to make as many work calls, I could consider dropping to a cheaper plan. So can I take it from that evidence that you haven't yet looked for a cheaper plan that might let you make unlimited standard calls without any additional charges?‑‑‑I have recently, yes.

PN454

You haven't recently?‑‑‑I have.

*** TRISH STEWART XXN MR FERGUSON

PN455

And have you found a cheaper plan?‑‑‑Yes. That was including paying the phone off because I had to have a smart phone.

PN456

And have you paid the phone off now?‑‑‑Yes, I have now.

PN457

Apart from your phone, do you have access to any other kind of device that you can use to check emails?‑‑‑No.

PN458

Ms Stewart, I just want to ask you about the structure of the days that you work and the travel that you perform. Can I take you back to paragraph 20?‑‑‑Yes.

PN459

You there say in effect, that you call clients if you're running late, which you say can happen often due to traffic. Does the traffic mean then, that it often takes you longer to get to a client than you would anticipate?‑‑‑Sometimes, yes.

PN460

So you would agree with the proposition that you can't be certain how long it will take you to get to clients on any given day, given traffic?‑‑‑No. Because sometimes you get held up.

PN461

That's right. Now, I understand from your evidence that you sometimes have large gaps in between your time with clients on any given day. During those breaks, do you try to make the most of your time by sometimes undertaking activities not related to your work?‑‑‑Sometimes.

PN462

Yes, for example, do you sometimes visit your grandchildren during those gaps?‑‑‑Pardon, sorry?

PN463

Do you sometimes visit your grandchildren during those gaps?‑‑‑No, they're usually at school or day care.

PN464

But do you sometimes return home?‑‑‑Yes, sometimes.

PN465

And sometimes you go to town, do you?‑‑‑Well, I work in town, but I live out of town.

PN466

Yes, and do you visit clients out of town?‑‑‑Sometimes.

*** TRISH STEWART XXN MR FERGUSON

PN467

Do you sometimes return to town after visiting those clients and before visiting another client?‑‑‑Yes, if I'm meant to.

PN468

You'd accept that where you've got breaks in between clients, you sometimes don't travel directly from client to client?‑‑‑No, if I've got a big break, I don't, no.

PN469

I just want to ask you about your clients specifically. While you were with Excelcare and Live Better, you mainly worked with the same clients, didn't you?‑‑‑Yes.

PN470

Are there benefits to the client that flow from having a consistent individual provide assistance to them?‑‑‑Yes, they get to know you.

PN471

Right, and do you get to understand - sorry, I cut you off. Please finish?‑‑‑You build a rapport with some.

PN472

Does that enable you or assist you to do your work more effectively?‑‑‑I would say so, yes.

PN473

By working with the same clients, do you develop an understanding of their needs?‑‑‑Yes.

PN474

I take it that then, would let you do your work more efficiently?‑‑‑Yes.

PN475

Thank you for that; no further questions.

PN476

JUSTICE ROSS: Thank you. Any re-examination?

PN477

MS DABARERA: No, your Honour.

PN478

JUSTICE ROSS: Thank you for your evidence Ms Stewart; you're excused.

<THE WITNESS WITHDREW [10.16 AM]

PN479

Can you find out if Ms Flemming is in the court room.

PN480

MS DABARERA: She's also the organiser.

*** TRISH STEWART XXN MR FERGUSON

PN481

JUSTICE ROSS: Yes, I know, that's why I'm trying to work out if she's there now.

PN482

MS DABARERA: Not in the court room. Just outside with our union organiser.

PN483

JUSTICE ROSS: My question is really - yes she's is coming in now.

PN484

MS DABARERA: Ms Flemming, it's Natalie Dabarera from United Voice, can you hear and see me?

PN485

MS FLEMMING: Yes, hi Natalie.

PN486

MS DABARERA: Hi Ms Flemming. What we're going to do first is I'll get the associate to take you through the oath or the affirmation and then I'll go through some of the matter with you.

PN487

MS FLEMMING: Yes.

PN488

THE ASSOCIATE: Please state your full name and address.

PN489

MS FLEMMING: Deon Lee Flemming (address supplied).

<DEON LEE FLEMMING, SWORN [10.17 AM]

EXAMINATION-IN-CHIEF BY MS DABARERA [10.17 AM]

PN490

MS DABARERA: Ms Flemming, if you have trouble hearing us, certainly let us know?‑‑‑Sure.

PN491

First thing, can I get you to repeat your full name for the record?‑‑‑Deon Lee Flemming.

PN492

What is your address (Address supplied).

PN493

What is your occupation?‑‑‑I'm a care worker.

*** DEON LEE FLEMMING XN MS DABARERA

PN494

Have you prepared two statements for the purposes of these proceedings?‑‑‑Yes, I have.

PN495

Do you have a copy of those statements before you?‑‑‑Yes, I do.

PN496

At the time of making those statements, are they true and correct to the best of your belief and knowledge?‑‑‑They are.

PN497

Your Honour, I seek to tender the two statements of Deon Flemming, the first date 16 January 2019 and the second dated 28 March 2019.

PN498

JUSTICE ROSS: I mark the first exhibit UV4 and the second exhibit UV5.

EXHIBIT #UV4 STATEMENT OF DEON FLEMMING DATED 16/01/2019

EXHIBIT #UV5 STATEMENT OF DEON FLEMMING DATED 28/03/2019

PN499

MS DABARERA: Thank you. Ms Flemming, the employer representative will now ask you some questions?‑‑‑Yes, sure.

CROSS-EXAMINATION BY MR FERGUSON [10.22 AM]

PN500

MR FERGUSON: Ms Flemming, my name is Mr Ferguson. I represent the Australian Industry Group. Can you hear me?‑‑‑Yes I can. Hello.

PN501

Good morning. Now, Ms Flemming at annexure A of your statement that was dated 16 January 2019, you attach a series of rosters that relate to early May 2018 to late September, didn't you?‑‑‑Yes, I did.

PN502

The version of the rosters in your filed statement is partially redacted and by that I mean there's been sections that have been blacked out. Are you aware of that?‑‑‑Yes, I am.

PN503

You should have today been provided a copy of an unredacted version of those rosters, or if you haven't, I ask you be provided it. Have you got a copy of an unredacted version that has all the information in front of you?‑‑‑Yes, I have.

*** DEON LEE FLEMMING XXN MR FERGUSON

PN504

Can I ask you to review that document briefly and confirm whether that is in fact an unredacted version of the rosters you've attached to your statement?‑‑‑Yes, it is.

PN505

I tender that.

PN506

MS DABARERA: Your Honour, we have in respect of that material, an application for a confidentiality order and we've got copies - I understand the Ai Group is going to provide some copies of that material. The material that was redacted is just the client names and the client addresses and we say that out of respect for the clients and their privacy, that that material should not be published and the client names should not be referred to.

PN507

JUSTICE ROSS: Sure. Any objection to that?

PN508

MR FERGUSON: No, no. No objection at all.

PN509

JUSTICE ROSS: Right, that's fine. Tender it and we will mark it as a confidential exhibit.

PN510

MS DABARERA: Sorry, your Honour. We would say that if there's any mention of the client names or address in the proceedings or the transcript we would ask for that to be confidential.

PN511

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

PN512

MR FERGUSON: Does the Associate wish to take the documents?

PN513

JUSTICE ROSS: Do you want to tender the documents?

PN514

MR FERGUSON: Yes, I do want to tender the document.

PN515

JUSTICE ROSS: All right, well we'll mark it as exhibit AiG1 and note that it's confidential.

EXHIBIT #AiG1 ROSTERS - SUBJECT TO CONFIDENTIALITY ORDER

*** DEON LEE FLEMMING XXN MR FERGUSON

PN516

The parties can reach an agreement on the form of a confidentiality order and tender it later on in the proceedings.

PN517

MR FERGUSON: Now, Ms Flemming, that roster document, does that reflect the hours that you actually worked during the period of the roster?‑‑‑Yes, it does.

PN518

Ms Flemming, are you often rostered to work with the same clients over an extended period?‑‑‑Yes.

PN519

Do the clients derive any benefit from working with you, the same support worker, over an extended period?‑‑‑Could you explain that again, please?

PN520

Do the clients get any benefit from consistently working with you rather than a series of people?‑‑‑Yes, they do.

PN521

What would those benefits be?‑‑‑They just get to know you over time.

PN522

Build rapport with you?‑‑‑Yes, you do, yes.

PN523

Does working with the same client over a period of time help you to develop an understanding of their needs?‑‑‑It does, yes.

PN524

Then you'd agree that that helps you perform your role more efficiently?‑‑‑Yes, it does.

PN525

I want to ask you about travel. You've given evidence that indicates that in effect, that your work is sometimes allocated to you in a manner that means that you sometimes have large gaps between your appointments with clients and those gaps can sometimes be two to three hours. Am I right that you sometimes undertake non-work related activities during those gaps?‑‑‑Yes.

PN526

And much of that work with clients is a short distance from your home, isn't it?‑‑‑Yes, sometimes it is.

PN527

Yes. So, do you ever go home during the breaks?‑‑‑Yes, I do.

PN528

And do you ever undertake other errands during the breaks?‑‑‑What do you mean by that?

*** DEON LEE FLEMMING XXN MR FERGUSON

PN529

Do you go to the shops during the breaks?‑‑‑Yes. It can be quite boring with big gaps in your day.

PN530

But you do go separate locations other than your clients during those breaks, don't you?‑‑‑Can you explain what you mean?

PN531

I'll withdraw that. You don't always travel directly from one client to the next, do you?‑‑‑Yes - well, the majority of my roster I do.

PN532

Yes, but sometimes you go to another location in between - the shops or somewhere else?‑‑‑Depends how much money I have to spend.

PN533

Can I just - I'm going to ask you about your phone. Can I just take you to paragraphs 25 to 30 of your statement dated 16 January 2019?‑‑‑Yes.

PN534

You there talk about using your personal phone for work-related purposes, but to be clear, you do use your phone for personal purposes unrelated to your work as well, don't you?‑‑‑Yes, you do at times.

PN535

You use it to make personal calls?‑‑‑Yes.

PN536

Do you use it to send or receive SMS messages - personal SMS messages?‑‑‑Yes, I do.

PN537

Do you use it to access the internet for personal purposes?‑‑‑Yes.

PN538

Would you agree that you mainly use your personal phone for personal purposes?‑‑‑No. The good majority of it is for work as well.

PN539

Do you use it for both?‑‑‑Yes. We get quite a few emails a day regarding work on our phones.

PN540

Yes, but you also use it to search the internet for things and so forth for your own personal purposes?‑‑‑Yes.

PN541

Is your plan with Optus?‑‑‑Yes, it is.

*** DEON LEE FLEMMING XXN MR FERGUSON

PN542

It's known as the My Plan Plus, isn't it?‑‑‑Yes, that's correct.

PN543

It's a 24 months plan, isn't it?‑‑‑Yes.

PN544

Do you recall that that wasn't the cheapest phone plan available at the time for a smart phone, at the time you went to that plan?‑‑‑It was fairly cheap at the time.

PN545

Do you recall that there was a cheaper plan available?‑‑‑No.

PN546

You can't recall?‑‑‑No.

PN547

Your plan provides you with unlimited standard national calls and texts, doesn't it?‑‑‑That's correct.

PN548

It gives you 20 gigabytes of data, doesn't it?‑‑‑Yes, it does.

PN549

So you don't get separately charged for any data you use for accessing your roster, do you?‑‑‑No.

PN550

Thank you for that. No further questions, your Honour.

PN551

JUSTICE ROSS: Thank you. Any re-examination?

PN552

MS DABARERA: No, your Honour.

PN553

JUSTICE ROSS: All right. Thank you Ms Flemming for your evidence. You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [10.27 AM]

PN554

JUSTICE ROSS: The next witness is Belinda. Is she present, or?

PN555

MS DABARERA: Belinda Sinclair.

PN556

JUSTICE ROSS: I'm sorry, Belinda Sinclair.

*** DEON LEE FLEMMING XXN MR FERGUSON

PN557

MS DABARERA: She's appearing from Sydney, so I might just go outside and check. Mr Bull will go outside and check if she is here.

PN558

Ms Sinclair, this is Natalie Dabarera from United Voice. Could I first get you to state your full name for the record.

PN559

MS SINCLAIR: Belinda Jane Sinclair.

PN560

MS DABARERA: What is your address?

PN561

MS SINCLAIR: It's (address supplied).

PN562

MS DABARERA: Before we proceed, I might get the Associate to go through the oath or the affirmation with you.

PN563

THE ASSOCIATE: Please state your full name and address.

PN564

MS SINCLAIR: Belinda Jane Sinclair (address supplied).

<BELINDA JANE SINCLAIR, SWORN [10.29 AM]

EXAMINATION-IN-CHIEF BY MS DABARERA [10.29 AM]

PN565

JUSTICE ROSS: Do you have some water there?‑‑‑Thank you.

PN566

MS DABARERA: Thank you, your Honour.

PN567

JUSTICE ROSS: Ms Dabarera.

PN568

MS DABARERA: Ms Sinclair, you have prepared a statement for the purposes of these proceedings?‑‑‑Yes, I have.

PN569

Do you have a copy of that statement before you?‑‑‑I do.

PN570

Now I understand you have a few corrections to that statement?‑‑‑Yes, I do.

*** BELINDA JANE SINCLAIR XN MS DABARERA

PN571

Firstly, I understand that your address has changed?‑‑‑Yes, it has.

PN572

You've just provided that address for the record, but I can have her repeat it, if that would be useful.

PN573

JUSTICE ROSS: No, that's fine. The address is redacted in a statement, anyway.

PN574

MS DABARERA: Now, I understand you also have a change to paragraph 13?‑‑‑Yes.

PN575

Your Honour, could I lead?

PN576

JUSTICE ROSS: Sure.

PN577

MS DABARERA: Could you confirm if this is the correction you have in paragraph 13. "Since January 2019 I have worked at least five broken shifts. They are mainly due to a bi-monthly training meeting on Wednesday at 2pm"?‑‑‑Yes, that's correct.

PN578

You also have a correction to paragraph 17?‑‑‑Yes.

PN579

Let me know again if this is accurate. "In late January 2019 my tablet stopped working"?‑‑‑Yes, that's correct.

PN580

"And I handed it back to my supervisor. I was provided with a work tablet on 25 September 2019, but it wasn't working so I had to hand it back to IT"?‑‑‑Yes.

PN581

Thank you. With paragraph 29 that lists your average weekly expenses - - -?‑‑‑Can I just clarify it wasn't set for me; the computer they gave me wasn't set for me, so it had to be handed back, sorry. It was actually working.

PN582

So it wasn't set for you - - -?‑‑‑For me to log into it.

PN583

With paragraph 29, with the rent, household bills, course fees et cetera, you say that with your move, rent and utilities has increased and that your costs in that column is around $30 more. So a total of $415. Is that correct?‑‑‑Yes, that's correct.

*** BELINDA JANE SINCLAIR XN MS DABARERA

PN584

Thank you.

PN585

JUSTICE ROSS: So the total at the bottom changes as well?

PN586

MS DABARERA: Yes, that's correct.

PN587

JUSTICE ROSS: To what?

PN588

MS DABARERA: That would be $30 more.

PN589

JUSTICE ROSS: $563.

PN590

MS DABARERA: $563, that's it. Ms Sinclair with those corrections made, do you say that your statement is true and correct to the best of your belief and knowledge?‑‑‑Yes, I do.

PN591

Your Honour, I tender that statement.

PN592

JUSTICE ROSS: I'll mark the statement exhibit UV6.

EXHIBIT #UV6 STATEMENT OF BELINDA SINCLAIR DATED 16/01/2019

PN593

MS DABARERA: Ms Sinclair you're now going to be asked some questions by one of the employer representatives?‑‑‑Thank you.

CROSS-EXAMINATION BY MS LO [10.33 AM]

PN594

MS LO: Good morning Ms Sinclair, my name is Ms Lo, I'm here for the Australian Federation of Employers and Industry, a membership organisation for a number of employer parties. I just have a few questions for you. I understand that you've worked for Wesley Mission since March 2017, is this right?‑‑‑Yes, that is correct.

PN595

In the capacity of a part time home care worker?‑‑‑Yes.

*** BELINDA JANE SINCLAIR XXN MS LO

PN596

Can you confirm that the statement in front of you is the statement dated 16 January 2019?‑‑‑I'll just check the date that I put on it. Yes, that's the date I put on it.

PN597

Thank you Ms Sinclair. Ms Sinclair, why do you work part time?‑‑‑Why? I would love a full time job, but that's not available in aged care, especially community-based aged care.

PN598

So, it is employer requirements for a part time position?‑‑‑That was the position that was offered to me.

PN599

Right, so I understand from your statement at paragraph 22 to 25, that your employer has made changes to your roster and they're mostly changes resulting in you taking hours in addition to your normal contracted hours. Is this right?‑‑‑That happens on a regular basis, yes, and I think I gave an example of it in the statement.

PN600

That's right. So they are hours in addition to your contracted hours, loosely?‑‑‑Yes.

PN601

Can you please read out paragraph 26 in your statement:

PN602

I agree to the changes in my roster - - -

PN603

JUSTICE ROSS: You don't need to read it out loud, she can read it.

PN604

MS LO: Thank you, your Honour. So paragraph 26 of the statement states I agree to changes in my roster because I need the hours and I'm concerned that if I complain or don't accept additional hours I will be rostered less. This is not an accusation against my employer, but my concern. I have a tight budget and cannot afford to lose hours. Is this correct?‑‑‑Yes.

PN605

Would you say the changes to your roster have been agreed to?‑‑‑The majority of the time I agree to them. Sometimes they're first thing in the morning and you just have to do it because clients need to be showered.

PN606

So have there been instances where you have disagreed to work when changes have been made to your roster?‑‑‑Yes, there has, because they were outside of my availability.

*** BELINDA JANE SINCLAIR XXN MS LO

PN607

Outside, and that's the main reason why you would disagree?‑‑‑To the best of my knowledge.

PN608

Are there any other reasons you would disagree to work those additional hours?‑‑‑Not that comes to mind, no.

PN609

Would you communicate your disagreement to your employer?‑‑‑Yes, I would.

PN610

And how would you communicate this to your employer?‑‑‑It would depend on how I was communicated the roster change in the first place. But usually, it would be by phone call.

PN611

In instances where you have disagreed to work the additional hours, did you employer still require you to work the additional hours?‑‑‑Sorry, just let me think. So at times when I disagreed?

PN612

That's right?‑‑‑No, there is no times when I actually disagreed that I was made to work those hours. But as my statement said, it's - like I was concerned of being looked on unfavourably if I did disagree.

PN613

Just to clarify for the Commission, where you have disagreed to working the amended changes to your roster, your employer did not require you to work those changes because you had disagreed?‑‑‑Yes.

PN614

Thank you. Just for clarity, you were able to decline working changes to your roster?‑‑‑If I felt very strongly about it, yes.

PN615

Would you say you were disadvantaged financially because of the roster changes?‑‑‑Are you referring to roster changes where a client has cancelled services?

PN616

No, just where in the examples used in your statement where you were required to work additional hours?‑‑‑I'm not going to be disadvantaged for working additional hours. I'm going to get additional hours and therefore additional pay.

PN617

Thank you. Can I take you to annexure A of your statement, Ms Sinclair?‑‑‑Yes.

*** BELINDA JANE SINCLAIR XXN MS LO

PN618

You see the schedule listed in the document? The document that's entitled Hours of Work Update?‑‑‑Yes, I've got that.

PN619

Are those your availability of hours for working?‑‑‑Yes, they are.

PN620

Can you confirm that annexure B to your statement are copies of your pay slips dating from 2 July 2018 to 4 November 2018?‑‑‑Starts at the pay period starting 2 July 2018 and goes through to 4 November 2018. No, it does through to 30 December 2018.

PN621

Sorry, I appear to have pay slips missing in my copy of your statement?‑‑‑Unless you just want to refer to the ones that you mentioned.

PN622

Yes, can you just confirm to the Commission that those are your pay slips?‑‑‑These? Yes, they are my pay slips.

PN623

Using the 2 July 2018 pay slip as an example, can you inform the Commission in the earning section of your pay slip the third item down under the description column.

PN624

JUSTICE ROSS: Just one second. What's the date?

PN625

MS LO: 2 July 2018 to 15 July 2018 pay period.

PN626

JUSTICE ROSS: Yes. Is this the first one?

PN627

MS LO: This is the first one, yes.

PN628

Ms Sinclair, can you inform the Commission, in the earning section of the pay slip, the third item down under the description column, what does it say?‑‑‑Uniform allowance.

PN629

Thank you. Can you please inform the Commission the rate of pay for the uniform allowance which is the second column to the right underneath the title that says rate?‑‑‑It's $1.23.

PN630

The rate of pay is consistent with the uniform allowance rate per shift under the award, isn't it?‑‑‑

*** BELINDA JANE SINCLAIR XXN MS LO

PN631

MS DABARERA: Objection. The witness doesn't have a copy of the award in front of her. So if you want to take her to the award.

PN632

JUSTICE ROSS: In any event, it's a question about what the award says and means and that's not really a question for this witness.

PN633

MS LO: Can you please inform the Commission Ms Sinclair, in the earning section of your pay slip, the fifth item down under the description column, what does that say?‑‑‑The fifth item down, laundry allowance.

PN634

And can you please inform the Commission the rate of pay for a laundry allowance?‑‑‑We have two points; which I don't know why we do. I've been meaning to ask my employer why it's tabled like this in my pay slip, but I haven't got around to doing that yet.

PN635

MS DABARERA: Your Honour, if there's more questions like this, the pay slip has been tendered and I'm not sure why the witness needs to repeat what's in there.

PN636

JUSTICE ROSS: No, neither am I.

PN637

MS LO: Ms Sinclair, is it correct to say that you've been provided by your employer with six shifts to work over a five day working week?‑‑‑I'll just look back; I'll just clarify my statement, but I think for the first couple of months I only - for the first six weeks, if I remember correctly, I only had two.

PN638

But now you have a total of how many shirts?‑‑‑I have six shirts; one is not fit for use.

PN639

But you have five shirts to wear, and you worked over a five day working period, Ms Sinclair?‑‑‑Yes, I do.

PN640

And did you have to pay for those shirts?‑‑‑No, but I did offer to pay for them at one point when I wasn't able to get any.

PN641

But did you have to pay for those shirts?‑‑‑No.

PN642

Thank you Ms Sinclair. I have no further questions.

*** BELINDA JANE SINCLAIR XXN MS LO

PN643

JUSTICE ROSS: Thank you, Mr Scott.

CROSS-EXAMINATION BY MR SCOTT [10.42 AM]

PN644

MR SCOTT: Thank you, your Honour. Ms Sinclair, my name is Mr Scott. I appear for four associations that represent employers in this industry. I just have a few questions for you. I understand from paragraph 7 of your statement that you commenced working at Wesley Mission on 20 March 2019?‑‑‑Yes.

PN645

And that's your current employer?‑‑‑Yes.

PN646

Prior to that, you commenced working in the home care sector in 2011?‑‑‑Yes I did.

PN647

And worked for a number of employers before you commenced with Wesley Mission?‑‑‑Yes, two employers.

PN648

Were those full time, part time or casual roles?‑‑‑One was a part time and one was a casual role.

PN649

You reference at paragraph 5 that you worked for three years as an environmental engineer?‑‑‑Yes.

PN650

Was that immediately prior to 2011?‑‑‑I believe I finished at - there was a three month period where I wasn't working between my employment at Jeffrey & Kotowski and starting off with the Sisters of St Joseph.

PN651

Was your role with Jeffrey & Kotowski, was that a full time role?‑‑‑It was a full time role, yes.

PN652

I take it you have qualifications as an engineer?‑‑‑I do have qualifications as an environmental engineer, yes.

PN653

I take it that's a Bachelor of Environmental Engineering?‑‑‑It is.

PN654

When did you graduate with that qualification?‑‑‑This is going back a very long time.

*** BELINDA JANE SINCLAIR XXN MR SCOTT

PN655

MS DABARERA: Yes, I know. I'm not sure what the relevance of these questions are.

PN656

JUSTICE ROSS: No, neither am I. Mr Scott?

PN657

MR SCOTT: Well, I'll withdraw that question, but can I try and come to the point as quickly as possible. Can I ask the reason for your cessation of employment with Jeffrey & Kotowski?‑‑‑

PN658

MS DABARERA: We object to that, your Honour. We don't think it's relevant to these proceedings.

PN659

JUSTICE ROSS: How is it relevant?

PN660

MR SCOTT: Well, in my submission, it's relevant and the issue I'm coming to is the witness' reasons for moving from environmental engineering to home care.

PN661

JUSTICE ROSS: Why not ask that question.

PN662

MR SCOTT: Well, yes, I was leading to it. But I will, if your Honour pleases. Sorry, you were employed with Jeffrey & Kotowski in a full time position?‑‑‑Yes.

PN663

And you were employed for three years. What was the reasons for your cessation of employment at that firm?‑‑‑

PN664

JUSTICE ROSS: That's the same question.

PN665

MS DABARERA: That's not the question that was permitted.

PN666

MR SCOTT: I thought that was the question I was permitted to ask.

PN667

JUSTICE ROSS: No, it wasn't. Why has she decided to go to aged care is the question.

*** BELINDA JANE SINCLAIR XXN MR SCOTT

PN668

MR SCOTT: Sorry, sorry. Can I ask why Ms Sinclair - I apologise. Can I ask why you had a career change from environmental engineering to home care?‑‑‑I was looking for a career which was more fulfilling and I like the idea of promoting person-centred care for older individuals in our community.

PN669

Your current role is a part-time role and you have a contracted that guarantees you 30 hours per fortnight?‑‑‑That is correct.

PN670

And occasionally you work some additional hours, occasionally up to 42 per fortnight, and that's at paragraph 11 of your statement?‑‑‑On average - sorry, which paragraph are you referring to?

PN671

Paragraph 11, you indicate that your hours can vary and you say, "Other weeks I may be rostered for 21 hours per week"?‑‑‑To the best of my knowledge, that would be correct, yes.

PN672

So that involves your kind of guaranteed 15 per week or 30 per fortnight plus additional hours?‑‑‑Yes.

PN673

You indicated in response to a question earlier that you'd love a full-time job. So I take that to be the case?‑‑‑Probably closer to full-time hours, yes.

PN674

So just to clarify; you're not seeking a full-time job but you're seeking more hours, closer to full-time work?‑‑‑I've not really considered it. I've not really thought about it but having guaranteed hours, more than 15 per week, would be more agreeable, definitely, yes.

PN675

So just to clarify; in response to an earlier question you indicated you'd love a full-time job and you've clarified that's not necessarily the case but you would be agreeable to additional hours above your minimum contracted current hours?‑‑‑Yes, yes, but it's always good to know when they are actually happening in advance.

PN676

Have you applied for other roles? So since you commenced with Wesley Mission, have you applied for any full-time roles in the home care sector with other employers?

PN677

MS DABARERA: Objection, your Honour - this is not relevant to the matter at hand. The witness, whether they have applied for other roles or not - - -

PN678

JUSTICE ROSS: As I understand the witness's evidence, it is that she would welcome additional guaranteed hours in her current role.

*** BELINDA JANE SINCLAIR XXN MR SCOTT

PN679

MR SCOTT: I think that's the case, yes.

PN680

JUSTICE ROSS: Well, okay.

PN681

MR SCOTT: We say it's squarely relevant in circumstances where the evidence is that the witness is seeking additional hours. It's squarely relevant as to whether she had made any attempt to obtain that elsewhere.

PN682

JUSTICE ROSS: Well, then, ask her has she made any attempt to maintain them with the current employer or elsewhere?

PN683

MR SCOTT: Have you, Ms Sinclair - I'll repeat the question - made any attempt to obtain employment with any other home care provider with a higher number of guaranteed minimum hours?‑‑‑Does geography play into this, because I was looking at moving areas in Sydney and therefore I would have to go to another employer, because Wesley Mission doesn't have availability in the area that I - so I did actually seek a transfer.

PN684

Within Wesley Mission?‑‑‑Yes, that was not available.

PN685

Okay?‑‑‑Therefore I have looked at other jobs but it's only due to geography, not necessarily because - yes, because if I start with a new employer there's all the stuff that goes with that, with starting with a new employer. So I would want to do it for good reasons.

PN686

I'm not attempting to be critical in any way but I take it from the answer you've given you have not attempted to obtain alternative employment with another employer in your area in the last couple of years?‑‑‑No.

PN687

So when you indicated in response to an earlier question from my colleague that you'd love a full-time job but there were no full-time roles available - - -

PN688

JUSTICE ROSS: She's clarified that evidence.

PN689

MR SCOTT: She's clarified the first part of it, your Honour. The second part was that there were no full-time roles available. I take it that in response to my last question you haven't made any kind of active attempt to see whether there's other full-time roles available in your area with other employers?‑‑‑Is applying and looking on SEEK two different things? I'm sorry - - -

*** BELINDA JANE SINCLAIR XXN MR SCOTT

PN690

MS DABARERA: Your Honour, I would say she's answered that question about what she's sought in terms of other positions.

PN691

MR SCOTT: I'm not sure whether that's an objection.

PN692

JUSTICE ROSS: No, I'm not sure either but move to the point.

PN693

MR SCOTT: I thought my proposition was fairly succinct and clear, but so I take it from the rhetorical question that you posed to me that you have not made any job application with another employer but that you have occasionally browsed SEEK in respect of available roles?‑‑‑Yes, yes, that would be correct.

PN694

Thank you. Can I ask - and I don't wish to pry unnecessarily in relation to your personal circumstances - but are there any personal reasons, for example carers' responsibilities, that you have that prevent you from working greater hours than the 30 hours you are contracted to work?

PN695

MS DABARERA: Objection, your Honour - Ms Sinclair shouldn't have to reveal personal circumstances - - -

PN696

JUSTICE ROSS: She's not being asked to reveal it. It's being asked, "Are there any circumstances that constrain" - she's not being asked what those circumstances are.

PN697

MS DABARERA: As long as she is not asked to delve into that - - -

PN698

JUSTICE ROSS: Well, we'll see if - - -

PN699

MS DABARERA: There is no - - -

PN700

JUSTICE ROSS: It'll probably go quicker if you don't object to each of the lines that come up?‑‑‑There's no carer reasons, no.

PN701

MR SCOTT: So can I try and get to the point as quickly as possible? I'll put the proposition to you and I'm asking you to agree with it or not: there's no reason why you cannot work a full-time, 38-hour week workload? Is there any reason why you can't do that?‑‑‑I was never offered it.

*** BELINDA JANE SINCLAIR XXN MR SCOTT

PN702

With Wesley Mission?

PN703

JUSTICE ROSS: That's not the question you're being asked. You're being asked if there is any reason you wouldn't be able to do it if you were offered it?‑‑‑There is no reason if I was offered it.

PN704

MR SCOTT: You haven't been offered it with Wesley Mission?‑‑‑No, I have not.

PN705

Have you asked for a full-time role with Wesley Mission?‑‑‑When I started with Wesley Mission the terms were the part-time employment - - -

PN706

That wasn't the question. Have you asked for a full-time role with Wesley Mission?‑‑‑No, but they're not available.

PN707

So you haven't asked, that's right?‑‑‑No.

PN708

Thank you. Have you asked in the last six months, for example, to have - have you asked Wesley Mission in the last six months to increase your guaranteed minimum hours?‑‑‑Not in the last six months, no.

PN709

I guess what I'm struggling to come to terms with - and I don't mean any disrespect and I I'm trying to get to the point - you're currently working a minimum of 30 hours per fortnight?‑‑‑Yes.

PN710

There is nothing preventing you from working a full-time workload, that's right? And you haven't attempted to get any other job with a higher workload, for example. Are those propositions correct?‑‑‑I have a second job but the only reason I have a second job is because - - -

PN711

Can I ask you about the second job? What is the second job?‑‑‑I work for a chemist casually some afternoons a week.

PN712

So you work casually at a chemist?‑‑‑Yes.

PN713

How many hours - obviously it may vary but is there a number of hours that you might work over a period in terms of averaging number of hours?‑‑‑It's probably around 10 to 11 hours a week.

*** BELINDA JANE SINCLAIR XXN MR SCOTT

PN714

You didn't think that was relevant in terms of any of the questions I just put to you?‑‑‑It doesn't stop me from - if I was offered a full-time load - full-time position I would then end that role.

PN715

But you haven't asked for one?‑‑‑They're not available. I'm sorry, I'm not - - -

PN716

JUSTICE ROSS: No, that's fine.

PN717

MR SCOTT: Bear with me. I'll endeavour to stop in a moment. You mentioned earlier in your evidence that you have a window of availability with Wesley Mission?‑‑‑Yes, there's - I think it's referred to as appendix A, yes. That's the availability hours that I've given them, yes.

PN718

Again, I'm just trying to understand the evidence - on all of those days - sorry, on each of those days, save Thursday, your window of availability ceases at either 2.30 pm or 3 pm.

PN719

JUSTICE ROSS: Well, it starts at 6 am.

PN720

MR SCOTT: I appreciate that?‑‑‑Yes, that's correct.

PN721

Can I ask whether there is any personal or other reason why you are not to work beyond those times on those days?‑‑‑On Monday, Wednesday and Friday I have my second job.

PN722

Right?‑‑‑On Tuesday, I have chosen to take that afternoon out of my availability because when I kept it in it might mean getting a broken shift.

PN723

So you have made a conscious decision to provide a window of availability to Wesley Mission that takes into account your second job, is that right?‑‑‑Yes.

PN724

It also deliberately takes into account the fact that you are seeking to avoid broken shifts. Is that right?‑‑‑I just wanted Tuesday afternoon off availability.

PN725

That's entirely fine. I'm not being critical. I'm just trying to understand the evidence. So you wanted an afternoon off on Tuesdays?‑‑‑Yes.

*** BELINDA JANE SINCLAIR XXN MR SCOTT

PN726

At paragraph 28 of your statement you say: "On average I earn a gross weekly amount of $600 for work." Does that include your second job?‑‑‑Sorry, which paragraph?

PN727

JUSTICE ROSS: 28?‑‑‑28 - I guess there has been a mistake there because no, it wouldn't include my second job.

PN728

MR SCOTT: Can you - - -

PN729

JUSTICE ROSS: I'm sorry, did you say it wouldn't or would include?‑‑‑It wouldn't include it, your Honour.

PN730

No, that's - there's no mistake. That's fine.

PN731

MR SCOTT: Well, it says: "On average I earn a gross weekly amount of $600 for work." Is that correct?‑‑‑No.

PN732

MS DABARERA: Your Honour, she has clarified that it doesn't include the amount of the second job.

PN733

MR SCOTT: Well, I'll withdraw the question. How much do you earn on average in your second job?‑‑‑I didn't realise that I would get asked this question so - - -

PN734

JUSTICE ROSS: No, and what is the relevance of it to these proceedings?

PN735

MR SCOTT: Well, your Honour - and perhaps it's a matter for submissions - but you've got a statement that gives figures about a gross weekly amount of income for work but then has figures for average weekly expenses. The submission that I'd put that without factoring in the second job, it's misleading.

PN736

JUSTICE ROSS: Well, you can make that submission.

PN737

MR SCOTT: Last couple of questions: you've indicated earlier that clients need to be showered and that is part of your role as a home care worker?‑‑‑Yes, that is correct.

*** BELINDA JANE SINCLAIR XXN MR SCOTT

PN738

How long does that normally take?‑‑‑The actual showering or the steps before and after?

PN739

Can I take a scheduled service that involves showering a client; how long would you be at the client's residence?‑‑‑One hour, usually.

PN740

Thank you. Nothing further, your Honour.

PN741

JUSTICE ROSS: Any re-examination?

PN742

MS DABARERA: Yes, your Honour.

RE-EXAMINATION BY MS DABARERA [10.58 AM]

PN743

MS DABARERA: Ms Sinclair, you were asked about whether you had asked for a full-time job with Wesley Mission?‑‑‑Yes.

PN744

To your knowledge, how many home care support worker full-time jobs are there with Wesley Mission?‑‑‑None.

PN745

Thank you. You were also asked earlier about changes to your roster and about whether you suffered any financial detriment as a result of changes that led to an addition of hours. In your response you mentioned client cancellation. Do you suffer any financial detriment as a result of client cancellation in your roster variations?‑‑‑On certain weeks, I do.

PN746

Thank you. That's all our questions.

PN747

JUSTICE ROSS: Thank you for your evidence, Ms Sinclair. You're excused?‑‑‑Thank you, your Honour.

<THE WITNESS WITHDREW [10.59 AM]

PN748

JUSTICE ROSS: Mr Farthing at 11.30 - do you want to deal with any issues in his statement now or - - -

*** BELINDA JANE SINCLAIR RXN MS DABARERA

PN749

MR SCOTT: Can I just deal with one issue that I raised earlier? I apologise for this but as I indicated my client's understanding from mentions leading up to this hearing was that witness statements that had been tendered during stage one, where objections had been sustained and they were marked as exhibits, were effectively to be read as being those exhibits in the court book, notwithstanding that the court book has the entire statement without objections.

PN750

COMMISSIONER LEE: Can I just go to that point: we're looking at the transcript from the Friday mention. I think this is probably why Mr Ferguson was gyrating around when you were making that submission earlier.

PN751

JUSTICE ROSS: Who would know why Mr Ferguson is gyrating around?

PN752

COMMISSIONER LEE: The comment from Mr - sorry about this, Mr Ferguson - where you said, "Just one point of clarification: I think this relates to Eddington but others as well." I think Mr Eddington's statement is one that had already been tendered the first proceeding, significant amounts of that had been struck out, objections had been raised. I assume that it's that evidence that's already tendered that's being relied upon. I think a clean version might be in the court book. But we're not crossing because we understand the objections have already been ruled on. I asked Ms Liebhaber about that and she confirmed that that was the case. Now - - -

PN753

MR SCOTT: That was the part of the transcript I was going to take you to.

PN754

COMMISSIONER LEE: All right. In that context, I must admit I thought that was really just in respect of Mr Eddington but you're right; Mr Ferguson referred when generally is others as well but the point I was making is what's in the court book - that's been very clear throughout - is what we will rely on so there would need to be witness statements tendered which are consistent with the earlier rulings.

PN755

MR SCOTT: I've done that. I can undertake to provide where I have struck through the parts that aren't pressed or were objected to.

PN756

JUSTICE ROSS: Yes, just settle back with the party that is relying on the statement and - - -

PN757

MR SCOTT: I thought it was settled on Friday and it may be that the other parties can indicate whether there is any objection to it now because if there's not, we can just proceed.

PN758

COMMISSIONER LEE: It was only put to Ms Liebhaber because it was generally raised by Mr Ferguson in context.

PN759

MR SCOTT: I think there was no United Voice evidence that was tendered during tranche one. My recollection was most of the ASU evidence that was led related to the community language allowance so it's probably not relevant. So I think it's only in respect of the HSU witnesses. So in respect of Mr Farthing, there was part of his statement that was struck out and I can take your Honours to it when convenient.

PN760

JUSTICE ROSS: It can't be convenient - - -

PN761

MR FERGUSON: Can I deal with Mr Farthing briefly? As you'll recall I rose to my feet to deal with - - -

PN762

JUSTICE ROSS: Yes, Mr Farthing, you might just step outside for a moment, and - I'm not sure how we'll get him back in now.

PN763

MR FERGUSON: Your Honour, the first Farthing statement is in the court book. The relevant part that was struck out is on page 2932 of the court book. It's paragraph 28 that was struck out in its entirety. It's relevant to 24-hour shifts so it's not relevant to these proceedings. But what I'll do is I'll endeavour in the next 24 hours to file and serve the HSU statements identifying what was objected to and what was struck out.

PN764

JUSTICE ROSS: Okay.

PN765

MR FERGUSON: It may take me some time, just because I've marked the documents.

PN766

JUSTICE ROSS: Yes, all right.

PN767

MR FERGUSON: Very quickly, the bench will recall I rose to my feet to deal with objections to Mr Farthing and I was in the process of explaining that we had reached an agreement, I thought, to not press objections.

PN768

JUSTICE ROSS: Yes.

PN769

MR FERGUSON: It appears that that agreement either evaporated or I was wrong. We just need a moment - - -

PN770

JUSTICE ROSS: Have we already dealt with Mr Farthing's statement in tranche one?

PN771

MR FERGUSON: A statement from tranche one, then there was a supplementary statement.

PN772

MS DOUST: The first statement, your Honour, became HSU3. There was only that issue of paragraph 28, which refers to the 24-hour clause.

PN773

JUSTICE ROSS: Yes.

PN774

MS DOUST: So that doesn't arise now. Your Honour might recall there was some additional evidence from Mr Farthing which was about NDIS funding.

PN775

JUSTICE ROSS: Yes.

PN776

MS DOUST: Mr Farthing now has a further statement dated - I apologise - 16 September 2019, which is at 2981 of the court book. That goes to setting out the increases in the funding that have occurred as a consequence of announcements in both March 2019 and 1 July 2019.

PN777

JUSTICE ROSS: Just bear with me for a moment. Okay, so it's those two - - -

PN778

MS DOUST: Those are the two statements that we propose to rely upon and of course I acknowledge what the Bench said in its earlier decision about funding. But we nonetheless provide it really just to assist the bench because we think Mr Farthing is rather good at explaining the way in which the funding operates. My friend's - - -

PN779

JUSTICE ROSS: What is the objection you've taken to the further statement or the earlier one?

PN780

MR FERGUSON: In short, the objections are to the further statement.

PN781

JUSTICE ROSS: Yes.

PN782

MR FERGUSON: We thought there was an agreement on that which did away with our need to press the objections, but also to cross on certain points. What I was proposing is two things: (1) perhaps a short adjournment just so we can conclude those discussions and I can be clear about what the agreement is and then re-assess what I need to do.

PN783

JUSTICE ROSS: Sure.

PN784

MR FERGUSON: The other option I was going to propose, which I think might not work but my friends can confirm, is I only have a short series of cross-examination for the next witness, Elrick, and he's still not available. Otherwise I was going to propose to deal with him before the adjournment quickly but we can't do that so I would just seek a 15-minute adjournment.

PN785

JUSTICE ROSS: We'll adjourn until - what?

PN786

MS DOUST: Really, the nature of the objection - I think if we can cut to the chase - is basically use of the word, "significant", without a licence in a number of the paragraphs. I'd submit this is really something that I think the Bench in their wisdom can probably take with a grain of salt.

PN787

JUSTICE ROSS: Yes, the fact that a witness described it as significant isn't - - -

PN788

MR FERGUSON: Well, it's just his opinion.

PN789

MS DOUST: "Substantially."

PN790

JUSTICE ROSS: Yes.

PN791

MR FERGUSON: I don't know where that takes it, because there is no utility in relying on it as his opinion. We don't really wish to cavil in cross-examination about the basis for his opinion. He's not an expert in these matters. So we would assume that those elements could simply come out.

PN792

JUSTICE ROSS: What does it add?

PN793

MS DOUST: It's just that the task of taking it out, your Honour, at this stage would just render the statement difficult to reconcile and so I propose it be dealt with by way of a - just my friend can make his submission about the issues because Mr Farthing goes along and in each case where he talks about a significant increase he sets out in detail what increase he's talking about.

PN794

JUSTICE ROSS: Yes.

PN795

MS DOUST: It seems to me that's a matter that the parties can argue at the end of the day and it can be dealt with on that basis.

PN796

JUSTICE ROSS: So you accept that in relation to objections one to six, where Mr Farthing is characterising the changes or something as, "significant, substantial", et cetera, that is his expression but you're not relying on it as an expert witness or anything of that nature? It's an opinion that he has that - we'll form our own opinion.

PN797

MS DOUST: We've said that if my friend doesn't cross-examine him on the true meaning of the word, "significant", in that context we won't take the point about failure to cross-examine or - - -

PN798

JUSTICE ROSS: Yes.

PN799

MS DOUST: - - - contradict. But we say it's well and truly supported by the evidence that's - - -

PN800

JUSTICE ROSS: You say separately from Mr Farthings' evidence, you submit that the changes he identifies are significant. The fact that he characterises them as significant doesn't add anything to that.

PN801

MS DOUST: "Significant", is an understatement, your Honour, when - - -

PN802

JUSTICE ROSS: No, but - - -

PN803

MS DOUST: - - - the evidence is examined.

PN804

JUSTICE ROSS: I'm not asking you to deal with the characterisation for the moment. I'm simply saying that Mr Farthing's characterisation of them in that way is not the basis of your submission. Your submission that - - -

PN805

MS DOUST: Well, he says that they are in fact significant.

PN806

JUSTICE ROSS: Let me finish: your submission is that they're significant in and of themselves?

PN807

MS DOUST: Yes, because of what the numbers themselves are, yes.

PN808

JUSTICE ROSS: Yes, that's right. Does that meet your - - -

PN809

MR FERGUSON: If it's handled that way, your Honour; if it's handled that way then I don't need to press.

PN810

JUSTICE ROSS: Let's see if we can get Mr Farthing back in. How do you want to deal with these statements if - which ones have already been tendered or how are we going to manage all that?

PN811

MR SCOTT: I can indicate what the exhibit is in respect of the first statement if that's of assistance.

PN812

JUSTICE ROSS: No, I would rather re-number them and start again. Otherwise it's just going to get chaotic. So we'll start with HSU1 and Ms Doust can work out which one is 1 and which one is 2. She can determine the order of tendering.

PN813

THE ASSOCIATE: State your full name and address, please.

PN814

MR M FARTHING: Mark Farthing and my address is (address supplied).

<MARK FARTHING, AFFIRMED [11.11 AM]

EXAMINATION-IN-CHIEF BY MS DOUST [11.12 AM]

PN815

MS DOUST: Mr Farthing, it's Lisa Doust here, counsel for the HSU. Can I ask you just to state your full name and position for the record?‑‑‑Yes, Mark Farthing and my current title is national campaigns and projects officer at the Health Services Union national office.

PN816

Thank you. Have you prepared two witness statements for the purpose of this proceeding?‑‑‑Yes, so there was the original witness statement from February and then a further statement for September.

PN817

Just going to the first witness statement, do you have a copy of that with you currently?‑‑‑Yes.

PN818

That witness statement describes your position at that time as senior policy adviser for the Health Services Union Victoria number two branch. Do you see that in the first paragraph?‑‑‑Yes.

PN819

Was that correct at the time of making that statement on 15 February 2019?‑‑‑Yes.

*** MARK FARTHING XN MS DOUST

PN820

Other than that change that has occurred subsequently, is that statement - or was that statement true and correct at the time of making it?‑‑‑Yes.

PN821

I tender that.

PN822

JUSTICE ROSS: I'll mark that exhibit HSU1.

EXHIBIT #HSU1 STATEMENT OF MARK FARTHING DATED 15/02/2019

PN823

MS DOUST: Mr Farthing, do you also have a copy with you of a witness statement dated 16 September 2019?‑‑‑Yes.

PN824

Is that statement true and correct to the best of your belief and knowledge?‑‑‑Yes.

PN825

Thank you, I tender that.

PN826

JUSTICE ROSS: I'll mark that exhibit HSU2.

EXHIBIT #HSU2 FURTHER STATEMENT OF MARK FARTHING DATED 16/09/2019

PN827

MS DOUST: Thank you, your Honour. Nothing further, Mr Farthing.

CROSS-EXAMINATION BY MR SCOTT [11.14 AM]

PN828

MR SCOTT: Mr Farthing, my name is Mr Scott. Can you hear me okay?‑‑‑Yes.

PN829

I represent four employer associations and I've got a few questions for you if you don't mind?‑‑‑Sure.

PN830

Have you got a copy of your first statement with you?‑‑‑Yes.

PN831

Can I take you to paragraph 20 of that statement?‑‑‑Yes.

PN832

Do I take it that that is now outdated in light of the fact that there is a new price guide that has been implemented as of 1 October 2019?‑‑‑Correct.

*** MARK FARTHING XXN MR SCOTT

PN833

In respect of paragraph 21 of that statement, you refer to some analysis that you've done over the page?‑‑‑Yes.

PN834

I take it that analysis is also based on the outdated price guide?‑‑‑Yes, that is correct. It's also based on historical information that the NDIA had published in relation to previous price guide reviews.

PN835

In respect to that historical information can you give us any idea as to how old that material is or what the date of that material was that you had regard to?‑‑‑It would be in relation to the price review for the – from memory, 2016 price guide review.

PN836

Right. Okay. 2016. Did you have regard to the efficient cost model at the time of doing that analysis?‑‑‑So I don't understand quite the basis for your question, sorry.

PN837

Right, I'll step it out for you if that assists. Are you aware that the NDIA has and has prepared what they call an efficient cost model that assists them to develop prices under the NDIS?‑‑‑Yes, I'm aware that the NDIA was directed by the Disability Reform Council last week to publish the methodology underpinning its most recent pricing models, and that was published I believe Wednesday last week.

PN838

And can I ask you prior to Wednesday last week had they published an earlier version of that efficient cost model?‑‑‑They had called it the reasonable cost model, but yes it was something fairly similar.

PN839

Where was that available?‑‑‑So it was available in a price guide discussion paper. Generally the NDIA calls for submissions from interested stakeholders in the sector when reviewing and updating its price guide on an annual basis, and that was the discussion paper which I referred to which I believe from memory was 2016.

PN840

Right. Okay. So just to confirm my understanding of what you've said, the table that you prepared, the analysis in your first statement, in doing so you had regard to a cost model from 2016. Is that right?‑‑‑Yes.

PN841

In respect of the price, the efficient cost model you indicated – the most recent one, you indicated that that was published by the NDIA last Wednesday?‑‑‑Yes.

*** MARK FARTHING XXN MR SCOTT

PN842

Have you had a chance to have a look at that?‑‑‑I have. Not in as much detail given that it is so recent, but many of the assumptions which I talk to in paragraph 29 of my original witness statement still hold true. In particular the assumptions around 10 days of personal leave and all 10 days are used, four weeks of annual leave, leave loading. I believe there are some variations in there in terms of WorkCover premiums and the NDIA has also expressly said that they don't make any allowance for payroll tax in their updated cost model.

PN843

Right so you accept – trying to just move on as quickly as I can. You accept that your analysis at paragraph 21 of your statement's no longer up to date?‑‑‑Yes.

PN844

And I'll take you back to that in a moment, and I understand – I think I can see through the VC that you have a copy of the NDIA cost model?‑‑‑Yes, I do.

PN845

And now just to clarify, I understand that's a 12 page document or thereabouts which summarises the methodologies underpinning the way in which prices are calculated?‑‑‑Yes, that's correct.

PN846

That's not the actual cost model itself in terms of are you aware that there's an Excel spreadsheet that sits under that?‑‑‑I – as I said this document was only released on late Wednesday last week and I became aware of it on the Thursday. So I haven't looked at it in a great level of detail.

PN847

So - - -?‑‑‑I would assume that there would be some calculations that the NDIA use and that this is just an explanatory document.

PN848

Right, so you haven't seen the Excel spreadsheet I take it from that?‑‑‑No.

PN849

Just bear with me a moment, Mr Farthing. I'm sorry I've got 11 folders of material?‑‑‑That's all right.

PN850

Can I take you to – I'll come back to that cost model in a moment. Can I take you to your further statement?‑‑‑Yes.

PN851

And there's references throughout that statement, for example, at paragraph 27 there's a reference there to the 2019 20 price guide which came into operation on 1 July?‑‑‑Yes.

PN852

So you're aware, are you not, that there's a further revised price guide that was published and came into effect on 1 October?‑‑‑Yes, I am aware of that.

*** MARK FARTHING XXN MR SCOTT

PN853

So, for example, in respect of paragraph 10 of your statement, and I take it the entirety of your statement – your statement is dated 16 September 2019. It refers to the price guide which came into operation on 1 July. So I take it the references in this statement to the price guide are not a reference to the most recent 1 October price guide. Is that correct?‑‑‑That is correct, however the price guide that was updated in October mainly deals with allied health supports.

PN854

Yes?‑‑‑And changes that are articulated in that, the actual unit prices which I make reference to in my further statement of 16 September, those price rates are accurate and remain the same both in the July price guide as they are in the October price guide.

PN855

Thank you. You also refer, for example, at paragraph 10B of your further statement to the introduction of a temporary transformation payment?‑‑‑Yes.

PN856

I understand you have a document in front of you, and I can hand it up to the Bench, it's a press release or a media release from the National Disability Services. Do you have a copy of that?‑‑‑I don't believe I have a copy of that document. No, I don't have a copy of that document in front of me.

PN857

Okay. I might come back to that because I understand that arrangements have been made for you to have a copy of a NDS media release, and we can just – the associate may be able to check that for me and I have copies for the Bench which I'll hand up when we come back to it. Sorry, I'll come back to that. Can we go back to the first statement?‑‑‑Yes.

PN858

And to your analysis at paragraph 21?‑‑‑Yes.

PN859

So while you're there, can I also get you to have in front of you a copy of that cost model commentary which for the benefit of the parties is page number 489 - and the Bench. The document I intend to take him to is page 489 of the court book. You've got a copy of that in front of you, Mr Farthing?‑‑‑Yes, you're referring to my original witness statement, paragraph 21 and the efficient cost model.

PN860

Yes, the commentary document dated June 2019 in respect of an efficient cost model for disability support workers?‑‑‑Yes.

PN861

And I appreciate, Mr Farthing, your evidence is that you've had cause to look at it but not in any detail given that it came out last Wednesday. Is that right?‑‑‑That's correct.

*** MARK FARTHING XXN MR SCOTT

PN862

So I won't burden you with going through that document but I'll put some propositions to you?‑‑‑Sure.

PN863

If you don't mind. So your analysis at paragraph 21 of your statement effectively seeks to provide a calculation of certain cost inputs that an employer will incur in the course of delivering disability services. Is that right?‑‑‑Yes.

PN864

And I understand for the purpose of the analysis you have looked at a fairly standard one hour, standard needs weekday support. Is that right?‑‑‑That's correct.

PN865

Both in the SACS stream and the home care stream. Is that right?‑‑‑Yes, I mean the analysis I conducted at paragraph 21 was to demonstrate the cost savings that there might be for an employer to misclassify a disability support worker as a home care worker. That was also part of a rationale of including both the SACS 2.3 and home care 3.1 rates.

PN866

I appreciate that, Mr Farthing, putting aside the rationale for it. Now as I understand it the hourly rate for the SACS 2.3 you have at 27.61, that includes the ERO that's relevant for that stream?‑‑‑Yes.

PN867

That hourly rate is still applicable today. Is that right?‑‑‑No it would be increased on the basis of the Commission's minimum wage case decision. So there's a revised rate for 1 July 2019.

PN868

You indicate that you have outlined the cost inputs that an employer will face. Would you accept my proposition that your analysis is incomplete and does not contain all of the cost items that an employer would face in respect of delivering the service?‑‑‑I have identified the main labour and oncosts associated with it. I haven't actually gone down and broken out what would be included in overheads, but I have identified that there is an overhead margin component. What each provider does with that is obviously up to them, and it would be impractical to list every single item that a provider might use that overhead allowance for.

PN869

Okay, so just ignoring the overhead component that factors in, in respect of labour costs do you accept that your analysis is incomplete in respect of the labour costs that an employer incurs in delivering a service?‑‑‑On the basis that I am looking at a standard needs daytime weekday support, I believe that I have included the vast bulk of labour and oncosts associated with it, primarily being those associated with leave, superannuation, WorkCover premiums and supervision.

*** MARK FARTHING XXN MR SCOTT

PN870

Can I put these propositions to you, and having regard to – given that you haven't had any detailed review of the cost model or the efficient cost model document, I'm going to put these propositions to you. It's correct that the cost model does not – the efficient cost model does not include any provision for redundancy pay under the NES, for example. Is that right?‑‑‑It's not expressly identified as a cost that's borne out, no.

PN871

Do you know if it's implicitly built into the cost model?‑‑‑You would have to ask the NDIA that question. I - - -

PN872

So you don't know?‑‑‑I do not know. I mean there is – there is obviously the overhead and margin which are for those costs which vary and which providers might have to bear.

PN873

You accept that the efficient cost model does not include any cost in respect of paid compassionate leave under the NES?‑‑‑Not that's expressly identified from what I can see going through this document which as I said I've only had access to for less than three or four business days.

PN874

Can I put it to you that the efficient cost model does not factor in any costs in respect of paid compassionate leave?‑‑‑From what I can see looking at this document, I can't see that compassionate leave is pulled out as a discrete leave item given that it's a contingent allowance.

PN875

The same is the case for community service leave for jury service under the NES?‑‑‑No I can't see that being brought out either.

PN876

The same is the case for cost of supply of uniforms or paying for uniform allowance under clause 20.2 of the award?‑‑‑I cannot see that the NDIA have explicitly identified uniform allowances as part of their analysis in this document, no.

PN877

The efficient cost model doesn't take into account any expense in respect of paying the laundry allowance under clause 20.2 of the award. Is that right?‑‑‑Not from what I can see. The only comment I would make is that there is a section there which talks about broad overheads and corporate overheads being 10.5 per cent of direct costs.

PN878

Sure. You can't tell me that the first aid allowance has been factored in to the efficient cost model as a cost for employers?‑‑‑I can't tell you on the basis of reading this document. Further analysis would have to be undertaken to identify.

*** MARK FARTHING XXN MR SCOTT

PN879

You can't tell me that kilometre reimbursement under clause 20.5 of the award is included?‑‑‑Well, it's not included in this document here but there would be negotiation between a service provider and a participant about whether or not there was going to be travel costs included, and the price guide also makes clear as well about travel costs being charged for a worker travelling from one participant to the next, which isn't actually included in this efficient cost model document but is included in the price guide and I make comment about that in my actual witness statement.

PN880

Yes. You can't tell me that the telephone allowance under clause 20.6 has been factored in as a cost in the efficient cost model, can you?‑‑‑Again, I can't see it expressly identified, but I would have referred back to the general overhead provision that the price has for providers.

PN881

Right, and in respect of – and I'm putting a number of these to you just to speed up the process. In respect of the heat allowance payable under clause 20.7 of the award; in respect of the on call allowance under 20.9 of the award; in relation to the additional week's leave for shift workers under the NES; and in respect of rest breaks during overtime under clause 28.5 of the SCHADS Award, you can't tell me that any of those costs have been factored into the efficient cost model, can you?‑‑‑Unless they are incorporated into the generic overhead allowance, I can't see them specifically identified. I do note that table 7 talks about utilisation in relation to breaks and has an allowance of 4.17 per cent for breaks. Whether that deals with the breaks for overtime, I – and I'm not sure because the document doesn't expressly identify that.

PN882

Can I indicate my reading of the document, I won't take it to you but – and maybe I should as a matter of fairness. The rest break amount takes into account the 10 minutes paid rest break every four hours of work and that's at page 10 of the NDIS cost model commentary document in the first paragraph?‑‑‑Yes.

PN883

You can see there that it says, "The ECM recognises that not all working hours are billable, for example, the SCHADS Award provides that a DSW" - so a disability support worker - "should have a 10 minute paid break from work every four hours. Disability support workers also need to undertake training and attend to other issues." So the cost allocation under the efficient cost model in respect of breaks which is built into the utilisation factor only takes into account the 10 minute paid break per four hours and does not take into account any paid rest breaks during overtime. Do you accept that?‑‑‑I would have to, you know, pull out my own spreadsheet and start doing a bit of analysis to, you know, determine whether that was the case. I'm not confident saying yes or no one way or another given that - - -

*** MARK FARTHING XXN MR SCOTT

PN884

Sure?‑‑‑ - - - I've only had access to this document very briefly.

PN885

Yes. Is it the case that the efficient cost model which underpins the NDIS prices does not factor in any overtime at all?‑‑‑Not to my knowledge, no.

PN886

Right, so on my understanding, and I'm putting it to you as a proposition to get your view, if an employee provides a scheduled service like this, a standard needs, weekday – sorry, a standard needs service on the weekday, for example, where overtime is payable. So, for example, they worked more than 10 hours in one day, the employer under the award is required to pay that employee at overtime rates. The efficient cost model does not take into account, and does not contemplate the payment of overtime under any circumstance. Is that right?‑‑‑From what I can see, no, the efficient cost model does not and nor do the price items contemplate that overtime is payable.

PN887

So just to summarise, you referred - in response to some of those questions you referred to an overhead cost which is factored into the efficient cost model, and that's on the same page there. For the Bench it's court book page number 498, the – sorry, page 10 there for you, Mr Farthing. Items 2.9, overheads. It indicates that the efficient cost model assumes a corporate overhead of 10.5 per cent of direct costs. So you referred to that a number of times when I asked you whether the model factored in any costs that I mentioned. In respect of some of those you said, "Well, the overhead cost component may take that into account." Is that an accurate summation of your evidence?‑‑‑Yes.

PN888

Do you know whether the overhead cost component has in fact contemplated those cost items?‑‑‑No the NDIA has never been that prescriptive to providers about what the overhead can and cannot be used for.

PN889

Can I put to you that the corporate overheads component of the efficient cost model is not intended to cover labour costs?‑‑‑Is that a question or - - -

PN890

Yes. Can I suggest to you and can I ask for your view, or do you know whether the corporate overheads component of the efficient cost model is intended to factor in any labour costs?‑‑‑Well, it would be intended to cover labour costs. Labour costs for back office staff for instance. That's what part of the overhead allowance is. Whether it's the labour costs of direct support staff is another matter, but as I said the NDIA has never been prescriptive about what a provider can and cannot use their overhead component of the unit price for.

*** MARK FARTHING XXN MR SCOTT

PN891

So the overhead cost component for example would need to cover the cost of any non-front line staff. So for example it needs to cover the cost of the CEO or general manager, and it needs to cover the cost of payroll staff, HR staff, chief financial officer, any staff member that's not delivering services. Is that right?‑‑‑Correct, as well as capital costs associated with running a disability service business.

PN892

Yes, the range of other corporate overheads that are not related to labour costs, absolutely. So I take it then that given your answers you'd agree with me that any overtime costs, any payroll tax, any redundancy pay, any paid compassionate leave, any paid community service leave, the cost of supply of uniforms or the payment of the uniform allowance, the payment of the laundry allowance under the award, the payment of any meal allowance, the payment of any first aid allowance, the payment of any kilometre reimbursement, having regard to what you've indicated in respect of reaching agreement to charge the client separately for that, any cost in respect of the telephone allowance under the award, any cost in respect of the heat allowance under the award, any cost in respect of the on call allowance, the additional week's annual leave for shift workers, any costs associated with rest breaks during overtime, all of those costs on your understanding would need to go into the 10 and a half per cent allocated towards corporate overheads under the model. Is that your understanding?‑‑‑That is my understanding (indistinct).

PN893

Can I put to you that the corporate overheads had not been set having regard to all of those cost items?‑‑‑I wouldn't know, I wasn't, you know, a member of the NDIA pricing methodology team who determined what was and wasn't going to go into the overhead.

PN894

Sure. The cost model, and I'll take you to it. It's page 9 of the document in front of you, and it's 497 of the court book. Part 2.7, permanent versus casual workers?‑‑‑Yes.

PN895

You can see there it says, "The ECM" – the efficient cost model – "assumes that 80 per cent of the disability support workforce is permanently employed." Do you see that?‑‑‑Yes, I do see that.

PN896

And it goes onto effectively calculate the cost of a casual employee delivering the service and it identifies that on their analysis the cost of a casual employee delivering a service is higher than the cost of a permanent employee delivery the service?‑‑‑Yes.

*** MARK FARTHING XXN MR SCOTT

PN897

And it applies a ratio of 80 per cent permanent, 20 per cent casual towards any workforce mix to effectively factor in the cost of having casuals deliver services. Would you agree with me that – I'll ask your view. In your experience does an 80 per cent permanent to a 20 per cent casual mix, is that an accurate assumption in respect of disability support services in the industry?‑‑‑No, I would say that that is highly inaccurate and that various surveys of the workforce have identified that the workforce is approximately 40 to 45 per cent casual.

PN898

So on that basis that would result in the efficient cost model undervaluing or under calculating the cost of delivering services. Would you accept that?‑‑‑Well, I – again, I haven't looked at what modelling the NDIA have used in detail around this casual component.

PN899

Yes?‑‑‑Given that this is a very recent document, but if the assumption is is that a higher proportion of casuals increases the cost then yes it would be the case that the NDIA has underestimated the allowance that should be provided to providers in prices for a casual worker.

PN900

Thank you. Are you aware that the efficient cost model builds in a margin of 2 per cent? So effectively a profit margin of 2 per cent?‑‑‑Yes, I can see that, page 11.

PN901

So can I put the proposition to you that all of the cost items that I've taken you through, which are cost items which an employer is required to pay under either the NES or the award, your evidence and can you – ask your view as to whether this is correct or not, is it those items that I took you through that aren't - haven't been factored into the efficient cost model. If they don't – if an employer cannot absorb those into their overhead costs, which has been factored at 10.5 per cent of direct costs, if those costs can't be absorbed into the overhead cost then it will just directly eat into the assumed or the estimated 2 per cent margin. Is that right?‑‑‑Yes, however, I would also point to page 12 of this document which refers to the efficient costs for level 1, level 2 and level 3 prices on various times of day, and compares it with the index based price limit which demonstrates that there is additional funds available to providers in terms of the maximum price cap once you've actually calculated these amounts.

PN902

And when you say there's additional fees available - - -?‑‑‑So for instance a - table 11 index price limits on the basis of this document including all its assumptions, that takes it to $50.57 per hour. The maximum amount that a provider can charge an NDIS participant is $52.85 an hour, and that's exclusive of the temporary transformation payment as well.

*** MARK FARTHING XXN MR SCOTT

PN903

Yes, but you accept that that index based price limit of $52.85 is simply factoring in Fair Work Commission minimum wage increase as at 1 July 2019, the equal remuneration order increase as at 1 December 2019, and a factor of 1.3 per cent in respect of CPI increases over the course of the coming year?‑‑‑Just bear with me I'm looking at my – yes, actually I can see that. That's the assumption of the inflation.

PN904

So you accept that that jump from $50.57 to $52.85 is not some additional income that an employer can expect to receive, but it's just factoring in the minimum wage increase, the ERO and CPI over the course of the next 12 months?‑‑‑Yes, I can see that now.

PN905

Yes?‑‑‑I would note that it doesn't include the temporary transformation payment, however.

PN906

So can we move to that and I hope that you've now been given a copy of an NDS press release?‑‑‑Yes, I have.

PN907

Thank you. I have copies for the Bench. You've got it? Thank you. Mr Farthing, can you identify the document before you?‑‑‑Yes, I have it in front of me.

PN908

So it's an NDS press release dated 6 September 2019. Is that right?‑‑‑Yes, that's correct.

PN909

Have you seen a copy of this document before, Mr Farthing?‑‑‑I have seen a copy of this document before, yes.

PN910

So I might ask you to explain the issue that's referred to in this press release about the temporary transformation payment.

PN911

MS DOUST: I object. It's not this witness' document, so - I mean, if my friend has a more pointed question - well, he did just ask him to explain the issue in this document. Perhaps he could be a little more specific if he wants to ask him about a particular issue that happens to be in this document.

PN912

MR SCOTT: Bear with me, Mr Farthing. Can I take you to your further statement, Mr Farthing and paragraph 10(b) of your further statement?‑‑‑Yes.

PN913

You indicate there that one of the changes that came into effect with the 1 July price guide, and I understand it's your evidence that the October price guide did not change this was that there was an introduction of a temporary transformation payment?‑‑‑That's correct.

*** MARK FARTHING XXN MR SCOTT

PN914

And you indicate, in the second part of paragraph 10(b) of your statement that providers can claim the higher TTP prices as long as they publish their service prices, list and keep up to date their business contact details in the NDIA's provider finder and participate in an annual NDIA approved market bench marking service.

PN915

MS DOUST: Survey.

PN916

MR SCOTT: Survey, I apologise?‑‑‑That's correct.

PN917

Is it correct that in order for providers to receive the benefit of the TTP, that in respect of plans that are made from 1 July 2019 onwards, providers are effectively required to have participants agree to have the TTP come out of their budget for allocated services. Is that right?‑‑‑That's correct. It would need to be stipulated in the service agreement between the participant and the provider that the higher TTP rate of whatever scheduled support was being delivered was going to be charged.

PN918

And it's my understanding that a participant's plan under the NDIS is a plan of the support services that they are entitled to and an allocation of costs in respect of obtaining those services. Is that right?‑‑‑Sorry, could you repeat that?

PN919

I understand that participants under the NDIS have an NDIS plan which effectively outlines the types of services for which they've received approval to obtain. Is that right?‑‑‑That's correct.

PN920

And it has a cost or a value associated with the value of the services in respect of certain categories that they can obtain. Is that right?‑‑‑That's correct.

PN921

And the way in which the NDIA develops those plans is that it works on the basis of providing participants with supports that are deemed reasonable and necessary. Is that right?‑‑‑That's correct.

PN922

And so the position is, in respect of plans entered into from 1 July 2019 onwards, that for p providers to obtain the benefit of the TTP, they are required to obtain agreement with an individual participant, that they effectively allow the TTP component to come out of the value associated with their reasonable and necessary supports. Is that right?‑‑‑Yes.

*** MARK FARTHING XXN MR SCOTT

PN923

Can you indicate to the Commission, have you any experience as to whether participants have reached agreement with employers or service providers in respect of allowing the service provider to obtain the TTP?‑‑‑That would be private, confidential discussions between an individual participant and an individual provider, which I am not privy to.

PN924

Right. Okay. Thank you, Mr Farthing. Nothing further from me.

PN925

JUSTICE ROSS: Any re-examination?

PN926

MS DOUST: Nothing in re-examination.

PN927

JUSTICE ROSS: Thank you for your evidence, Mr Farthing. You are excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.49 AM]

PN928

MR ROBSON: We've had a slight change to the timetable. Our witness Deborah Anderson who was to be available at 2.00 by telephone is available at 12.00. I understand there are some objections to the evidence from at least one or two employer parties.

PN929

JUSTICE ROSS: So you want to deal with those objections and then deal with Ms Anderson's evidence and then go to Mr Elrick. Is that right?

PN930

MR ROBSON: Yes, sir.

PN931

JUSTICE ROSS: Everyone happy with that? All right. What are the objections to this then?

PN932

MR FERGUSON: We'll deal with Ai Group's first. It's set out on the final page of that document that we handed up earlier. I'll described in broad terms. The evidence appears to be the witness' - - -

PN933

JUSTICE ROSS: Just bear with me for a moment.

PN934

MR FERGUSON: Yes.

PN935

JUSTICE ROSS: Have you had a discussion and been able to reach an agreement on any of these or are they all contested?

*** MARK FARTHING XXN MR SCOTT

PN936

MR ROBSON: So with AIG they are all contested except for item 2 and ABI's objections are limited to the second sentence of paragraph 26.

PN937

JUSTICE ROSS: All right. So paragraph 26, the second sentence.

PN938

MR ROBSON: That's struck out (indistinct).

PN939

JUSTICE ROSS: Bear with me for a moment. This is the sentence, "The proposed 15-minute minimum engagement is completely inadequate payment for the inconvenience and stress involved with being contacted out of hours." That's struck out?

PN940

MR ROBSON: Yes.

PN941

JUSTICE ROSS: And you want the final sentence struck out, Mr Ferguson. Is that right? Of paragraph 26?

PN942

MR FERGUSON: Yes.

PN943

JUSTICE ROSS: Well, it's a rhetorical question, isn't it?

PN944

MR ROBSON: Yes.

PN945

MR FERGUSON: It's not the only one in that paragraph.

PN946

JUSTICE ROSS: No. That's exactly right. But you have only objected to the last one.

PN947

MR FERGUSON: In relation to the others, I think we've noted and proposed to make submissions about it.

PN948

JUSTICE ROSS: Well, why not make a submission about this one?

PN949

MR FERGUSON: I think we understood it to be an attempt to sort of speculate about the adequacy of the compensation provided - - -

PN950

JUSTICE ROSS: Well, he's just asking a question. He's not expressing any - look, frankly, it's not going to help as much either way.

PN951

MR ROBSON: I think it can be left in and submission made on it sir. There are comments like this in employer witness statements that I am sure - - -

PN952

MR FERGUSON: I didn't file any.

PN953

MR ROBSON: Mr Ferguson doesn't have any witness statements, but I am sure the Australian Business Industrial would like to see remain and that Mr Ferguson won't object to.

PN954

MR FERGUSON: There is other material that would be objectionable. We have tried to be reasonable. We say there is no merit or utility in retaining the final sentence. We wouldn't prefer to have our reasonableness held against is in relation to the others.

PN955

JUSTICE ROSS: We will strike out the last sentence. What's the rest?

PN956

MR FERGUSON: Paragraph 27, the first and final sentence. The first sentence is clearly speculation about what she would do based on her interpretation of ABI's proposal, which I might say I think is wrong.

PN957

JUSTICE ROSS: Then you can go to the interpretation. But I might say, you might remember earlier this morning you were putting in evidence or making a Bar Table submission about what employers would do if claims were granted. This is only the employee counterpoint to that.

PN958

MR ROBSON: May I add, your honour this witness is also available for cross-examination and so can be asked about that.

PN959

JUSTICE ROSS: Sure. That's fine. What's the second one?

PN960

MR FERGUSON: Well, in relation to the first, the difficulty is cross-examining over interpretation of a legal point. I just don't know where that takes me.

PN961

JUSTICE ROSS: No. You can ask them what their understanding of the claim is and if it's wrong, you can use that. In any event, we have ruled on that one. What is the final sentence?

PN962

MR FERGUSON: "Without significant remuneration involved it is not worthwhile doing this work." It's just her opinion or a submission really as about - I don't know what the relevance of that is to award review proceedings.

PN963

MR ROBSON: But also this - sorry, sir.

PN964

MR FERGUSON: I just don't see what probative value that is at all.

PN965

MR ROBSON: I think it connects the substance of her statement where she describes her activities at work and the impact on her personal and family life, and her physical well-being. It is a comment about her personally that cannot be taken as a general opinion about the rest of the industry. I think it is directly relevant to her statement.

PN966

MR FERGUSON: About significant remuneration. I don't know what this is.

PN967

JUSTICE ROSS: It's got a relationship with the other sentences in the paragraph, so we leave it in. If you want to ask what is meant by "significant remuneration" you can ask that question. All right. We'll bring the witness in.

PN968

MR ROBSON: I sent the email to Ross J's chambers with the phone number. There's still road works in Newcastle.

PN969

JUSTICE ROSS: It shouldn't have affected the phone system, but - - -

PN970

MR ROBSON: I sent it - - -

PN971

JUSTICE ROSS: We will just take a five-minute break while we sort it out.

SHORT ADJOURNMENT [11.57 AM]

RESUMED [12.05 PM]

PN972

THE ASSOCIATE: Ms Anderson, can you please state your full name and address?

PN973

MS ANDERSON: My name is Deborah Lee Anderson (address supplied)

<DEBORAH LEE ANDERSON, AFFIRMED [12.06 PM]

EXAMINATION-IN-CHIEF BY MR ROBSON [12.06 PM]

PN974

MR ROBSON: Ms Anderson, just to identify myself, my name is Michael Robson and I am from the Australian Services Union. You've made a statement in these proceedings?‑‑‑Yes, I did.

PN975

And that is dated 2 September 2019?‑‑‑Yes.

PN976

And it has four pages and there are two annexures attached to it and those annexures run to 21 pages?‑‑‑Yes.

PN977

And you have got that in front of you?‑‑‑Yes, I do.

PN978

And is this statement true and correct?‑‑‑Yes it is, to the best of knowledge.

PN979

I tender the statement.

PN980

JUSTICE ROSS: Mark that exhibit ASU1.

EXHIBIT #ASU1 STATEMENT OF DEBORAH ANDERSON DATED 02/09/2019

PN981

Cross-examination?

CROSS-EXAMINATION BY MR FERGUSON [12.08 PM]

PN982

MR FERGUSON: Good afternoon, Ms Anderson. My name is Mr Ferguson. I am from the Australian Industry Group. Can you hear me?‑‑‑Yes, I can. Yes.

PN983

Okay. Ms Anderson, I've spoken to your employer. I just want to ask you some questions to clarify whether my understanding of your work arrangements is accurate. Before I do that, I understand from your statement you hold a Certificate IV in youth and community?‑‑‑Yes.

PN984

When did you get that qualification?‑‑‑That would have been - I don't have the certificate in front of me to refer to it.

*** DEBORAH LEE ANDERSON XXN MR FERGUSON

PN985

Approximate years would be sufficient?‑‑‑Approximately probably about seven or eight years ago.

PN986

And you have a diploma in community service as well. When did you get that?‑‑‑I completed that the year I actually left Life Without Barriers last employment, which would have been - is it 2017?

PN987

Yes?‑‑‑Yes.

PN988

And when you completed the Certificate IV, did you have it in mind that you wanted to work in the community services sector?‑‑‑Yes. I had done a partial (indistinct) degree, bachelor of arts, bachelor of teaching and then I'd done some fostering, and I thought I needed to weigh up which direction I was going in when I gained employment in disability services.

PN989

Yes?‑‑‑And that's where I decided to channel my studies from then on and that was Cert IV and then I continued on to diploma.

PN990

Yes, I understand. From reading your statement, I get the impression that you're extremely devoted to your current work. Would you agree that that's a fair assessment?‑‑‑Yes. Definitely.

PN991

Would you agree then that that devotion motivates you to undertake work-related activities in your own time?‑‑‑Yes, probably.

PN992

Yes. Now, I want to ask you some questions about your phone. Your employer provides you with a mobile phone, don't they?‑‑‑Yes. They do.

PN993

And you can access your emails on that phone, can't you?‑‑‑Yes, I can.

PN994

Yes. Do you also use that phone for personal purposes?‑‑‑No.

PN995

Your employer also provides you with a laptop, doesn't it?‑‑‑Yes.

PN996

And you can access the Internet on your laptop by using your mobile phone to create a personal hotspot, can't you?‑‑‑I don't know. It's not something I've had to do. It has an internal Wi-Fi, if that makes sense. But I don't hotspot. No.

*** DEBORAH LEE ANDERSON XXN MR FERGUSON

PN997

You're not familiar as to whether or not there's that capability of your phone?‑‑‑Yes. No, I don't know.

PN998

If I can just take you to paragraph 12 of your statement?‑‑‑Is that of my statement, paragraph 12?

PN999

Yes. Your statement, if you've got that there. Have you got that there?‑‑‑Yes.

PN1000

Now, you there talk about monitoring your emails in your personal time. I just want to clarify what is involved in monitoring the emails. Do you just check them on your phone from time to time, to see whether you've received an email?‑‑‑Yes. I do.

PN1001

How often would you generally check your emails on your phone, during your personal time?‑‑‑Usually earlier in the evening after getting home and occasionally on weekends.

PN1002

Occasionally? No set frequency?‑‑‑No. It's just obviously when I am free and I've got a few minutes, I check them.

PN1003

Yes. And it only takes you a few minutes. Is that right? Based on that evidence?‑‑‑To check them?

PN1004

Yes?‑‑‑Yes.

PN1005

Your employer doesn't have any way to monitor how long you spend monitoring your emails on your phone, does it?‑‑‑Not that I'm aware of. I don't know. I wouldn't be able to clarify that.

PN1006

Yes. I put to you, your employer doesn't have any form of electronic means of checking how often you check your emails on your phone either, does it?‑‑‑I'm not aware of that either, sorry.

PN1007

To the best of your knowledge?‑‑‑Yes.

PN1008

MR ROBSON: Objection. She has answered the question. She doesn't know.

PN1009

MR FERGUSON: I think one was how long and the second one was - - -

*** DEBORAH LEE ANDERSON XXN MR FERGUSON

PN1010

JUSTICE ROSS: In any event, let's move on to the next question.

PN1011

MR FERGUSON: Now, you say in your evidence that part of the reason you monitor your emails is because management send you emails during your personal time. Now, just to be clear, they don't generally ask you to respond to those emails during your personal time, do they?‑‑‑No. They don't ask you to respond to them in personal time.

PN1012

And you'd accept, wouldn't you, that you are allowed by your employer to not check your emails during the time you are not rostered to work or are on call?‑‑‑Yes.

PN1013

In fact, you would accept that you are allowed to turn your phone off at times that you aren't rostered to work or are on call, aren't you?‑‑‑Yes.

PN1014

Are you aware that there are other employees who leave their home when they are on call?‑‑‑Yes, I am. Do you mean to attend to an on-call matter? Is that what you mean?

PN1015

No. No. That just while they are on call, are you aware that some employees do leave their home?‑‑‑I don't know.

PN1016

MR ROBSON: Objection.

PN1017

JUSTICE ROSS: No. She said she doesn't know.

PN1018

MR FERGUSON: The reason you don't leave when you are on call is because you think you need access to the Internet. Is that right?‑‑‑Yes. I need access to Internet and power.

PN1019

But if you could access the Internet outside of your home, by connecting it, say, to your phone in some way, you would agree you could leave your home while you are on call?‑‑‑As long as I have reception.

PN1020

Yes. If I could take you very briefly to paragraphs 18 and 19?‑‑‑Yes.

*** DEBORAH LEE ANDERSON XXN MR FERGUSON

PN1021

You there give evidence about calling other staff to fill in for an absent staff member or absent staff members. Would you agree that Life Without Barriers employees approximately 313 support staff in the Hunter Region?‑‑‑I believe it's somewhere around that number. I don't know exact figures.

PN1022

Would you agree that you are permitted to draw on that pool of employees to cover for an absent employee, aren't you?‑‑‑I couldn't answer that truthfully and say yes, because some people aren't employed in the area that I am filling the shift for.

PN1023

Yes. So you would say there are some employees that you would view as not appropriate to be called upon?‑‑‑Yes. Yes.

PN1024

But you are also permitted to call three different labour-hire agencies to obtain replacement staff, aren't you?‑‑‑Yes. Only for certain homes. Not all homes.

PN1025

Well, for the two homes that you look after?‑‑‑No. We don't have labour-hire for either of those.

PN1026

You say you are not permitted to?‑‑‑Well, we don't engage labour-hire for those homes.

PN1027

Those are the questions. Thank you for that?‑‑‑Thank you.

PN1028

JUSTICE ROSS: Any re-examination?

PN1029

MR ROBSON: Nothing from me, sir.

PN1030

JUSTICE ROSS: All right. Thank you for your evidence, Ms Anderson. You are excused.

<THE WITNESS WITHDREW [12.16 PM]

PN1031

JUSTICE ROSS: Mr Elrick?

PN1032

MS DOUST: Sorry, your Honour. Mr Elrick is giving evidence from Melbourne and he is currently, I am told, on his way to the Commission.

PN1033

JUSTICE ROSS: How long do you think he will be?

*** DEBORAH LEE ANDERSON XXN MR FERGUSON

PN1034

MS DOUST: He is expected to be there at about 1.00.

PN1035

MR FERGUSON: I might say the cross is very short. I don't know if it can be done as a convenience?

PN1036

JUSTICE ROSS: If he's on his way, it's probably going to be quicker to - - -

PN1037

MR FERGUSON: Just to try and relieve everyone.

PN1038

JUSTICE ROSS: We can come back at 1.00. Is there any objection to his statement or anything like that we can deal with?

PN1039

MS DOUST: There was - my friend has just got an objection to paragraph 40 on the basis that it was an opinion or submission and we don't press that paragraph.

PN1040

JUSTICE ROSS: So paragraph 40 is deleted.

PN1041

MS DOUST: Paragraph 40. Yes.

PN1042

JUSTICE ROSS: 40? 4-0?

PN1043

MS DOUST: Sorry, four zero. Yes.

PN1044

JUSTICE ROSS: Yes. That's another way of putting it. Sure.

PN1045

MS DOUST: That as well. Yes.

PN1046

JUSTICE ROSS: Anything else?

PN1047

MS DOUST: No. That's it from Mr Elrick.

PN1048

COMMISSIONER LEE: Are you sure he's going to be here at 1 o'clock?

PN1049

MS LIEBHABER: Yes, Commissioner. He was originally scheduled for 2.00 and he was brought back on the schedule, but I wasn't able to get in contact with him about whether that was okay.

PN1050

COMMISSIONER LEE: You are sure he's going to here at 1 o'clock?

PN1051

MS LIEBHABER: Yes. He texted me.

PN1052

MS DOUST: In Melbourne, your Honour.

PN1053

COMMISSIONER LEE: Yes, sorry. Not here.

PN1054

JUSTICE ROSS: Yes. I thought you were alluding to the traffic problems.

PN1055

MS DOUST: (Indistinct)

PN1056

JUSTICE ROSS: Is everyone content to adjourn until 1.00? I don't think there's much point, if it's not going to take long, we may as well.

PN1057

MR SCOTT: No, there's not.

PN1058

JUSTICE ROSS: That's fine. All right.

SHORT ADJOURNMENT [12.18 PM]

RESUMED [1.01 PM]

PN1059

MS DOUST: Your Honours, Mr Elrick is available in Melbourne. His witness statement is at page 293 of the court book. That became HSU6 on the last occasion. If I might repeat the tender, and it may be marked accordingly. Can I indicate in response to an objection from Mr Scott, we don't press paragraph 40 of the statement.

PN1060

MR FERGUSON: I also note that there were a number of paragraphs that were struck out from the last proceedings. I am happy to identify those now.

PN1061

JUSTICE ROSS: Sure.

PN1062

MR FERGUSON: Paragraphs 10 and 11. Paragraphs 12 and 13. And the first sentence of paragraph 26. That's it.

PN1063

JUSTICE ROSS: So they will be redacted from the statement as well.

PN1064

MS DOUST: Thank you.

PN1065

JUSTICE ROSS: Swear the witness is.

PN1066

THE ASSOCIATE: Mr Elrick. Please state your full name and address.

PN1067

MR ELRICK: William Gordon Elrick (address supplied)

<WILLIAM GORDON ELRICK, AFFIRMED [1.03 PM]

EXAMINATION-IN-CHIEF BY MS DOUST [1.03 PM]

PN1068

JUSTICE ROSS: So I will mark that statement as exhibit HSU3.

EXHIBIT #HSU3 STATEMENT OF WILLIAM ELRICK DATED 15/02/2019

PN1069

MS DOUST: Mr Elrick, it's Lisa Doust. I am counsel of the HSU in this proceeding. Can you hear me okay?‑‑‑Yes. Perfectly. Thank you.

PN1070

Just for the record, is your name William Elrick and are you an area organiser employed by the Health Services Union Victoria Number 2 Branch?‑‑‑Yes. That is correct.

PN1071

And have you prepared a witness statement for the purpose of the proceeding before the Commission which is dated 14 February 2019?‑‑‑Yes. That is correct.

PN1072

Do you have a copy of that statement with you?‑‑‑I do now. Thank you.

PN1073

Is that statement true and correct to the best of your belief and knowledge?‑‑‑Yes. It is.

PN1074

Thank you. Those are my questions.

CROSS-EXAMINATION BY MR FERGUSON [1.05 PM]

*** WILLIAM GORDON ELRICK XN MS DOUST

*** WILLIAM GORDON ELRICK XXN MR FERGUSON

PN1075

MR SCOTT: Good afternoon, Mr Elrick. My name is Mr Ferguson from the Australian Industry Group and I just have a very small number of questions. Can I ask you to turn to paragraph 31 of your statement?‑‑‑Yes. I am there. Thank you.

PN1076

You say there in the last sentence that "It isn't uncommon for workers in this sector not to have smart phones." When you refer to the sector, what do you mean?‑‑‑The disability services industry. So people predominately employed under the NDIS funding, I guess.

PN1077

Now, am I right in assuming that you haven't undertaken any survey of employees in this sector in order to ascertain how many have smart phones?‑‑‑Yes. That would be correct.

PN1078

So your view about how common it is for employees in this sector to not have a smart phone, can I take it that that is simply based on the kind of phone that you observe HSU members using?‑‑‑Yes. Along with my own personal experience as a disability support worker.

PN1079

In terms of your use of the phone, is that - - -?‑‑‑Well, no. As a disability support worker, I came across various other workers through my day-to-day shifts and duties, all that sort of thing. So it would be that experience, plus my experience as a HSU organiser has led me to that conclusion.

PN1080

Yes. And you only work with members in Victoria. Is that right?‑‑‑That is correct, yes.

PN1081

Thank you. No further questions.

PN1082

JUSTICE ROSS: Any re-examination?

PN1083

MS DOUST: No, your Honour.

PN1084

JUSTICE ROSS: Thank you for your evidence, Mr Elrick. You are excused?‑‑‑Thank you very much.

<THE WITNESS WITHDREW [1.07 PM]

*** WILLIAM GORDON ELRICK XXN MR FERGUSON

PN1085

COMMISSIONER LEE: I just wanted to raise the location of Coffs Harbour. We have been unable to get - don't get too excited, we're not going there, but we've been unable to get access from the Magistrates Court for those witnesses who are going to be there. That's Graham Shannahan and Deb Ryan, who are required by cross-examination by the unions. The query was - well, we are assuming there would be no difficulty in the circumstances of having them cross-examined by phone.

PN1086

MR ROBSON: It's not ideal. I can indicate that we would prefer to have witnesses either here or via video-link.

PN1087

JUSTICE ROSS: Why?

PN1088

MR ROBSON: Because it's a better way to give evidence. It's - - -

PN1089

JUSTICE ROSS: Well, we have already had one of your witnesses give evidence by phone.

PN1090

MR ROBSON: I am just indicating our preference.

PN1091

JUSTICE ROSS: Which are the other unions of the cross examining those witnesses?

PN1092

MS DOUST: We will be cross-examining. I expect there will be some documents shown to those witnesses. So it's not an insurmountable problem if the matter is dealt with by telephone. We will just need to coordinate some emails beforehand..

PN1093

JUSTICE ROSS: Yes.

PN1094

MS DOUST: But I agree with Mr Bull, it's preferable if we able to have them available in a courtroom.

PN1095

JUSTICE ROSS: Well, we don't have a courtroom.

PN1096

MS DOUST: But I accept the Commissioner is operating within the limits of reality.

PN1097

COMMISSIONER LEE: All right. Perhaps the best thing is if we leave it to ABI to talk to the unions about phone numbers and arrangements have to be made in terms of making it effective over the phone.

PN1098

JUSTICE ROSS: So tomorrow the plan is we commence at 9.30 and deal with the objections to the witnesses, the four witnesses listed tomorrow. And then after Mr O'Brien's evidence, we deal with objections to the evidence to be heard on Thursday and Friday and some procedural issues, including the tender of statements not required for cross-examination and other material.

PN1099

Mr Scott, when you mentioned it, I wasn't clear; was it material and statements not in the court book?

PN1100

MR SCOTT: It is. One of the issues that may be able to be addressed at that time is that we will be seeking leave to file an amended draft determination in respect of our claims.

PN1101

JUSTICE ROSS: Sure.

PN1102

MR SCOTT: The other material to which I referred this morning is not in the court book. I think there are two sets of transcript from the casual and part-time proceedings, which relate to the statement of Scott Quinn, firstly, which is sought to be relied upon in the proceedings and is in the court book. The basis of that is that that statement was tendered during the casual and part-time proceedings. He was cross-examined on it at that time. Our proposal is that we seek to rely on the transcript of the cross examination, which I understand is not opposed. Because, in the alternative, we will have to have a dress rehearsal.

PN1103

JUSTICE ROSS: Well, we have had a dress rehearsal.

PN1104

MR SCOTT: Well, we will have the main show, because Mr Ward, our colleague, gave the cross examination in the first hearing. And the second item is there is a report that has been filed which is in the court book in relation to - it's a report by Dr Olav Muurlink.

PN1105

JUSTICE ROSS: Yes.

PN1106

MR SCOTT: It hasn't been filed as a statement, so it's been filed as a report, but it was filed under cover of a statement during the casual and part-time proceedings, at which time he was cross-examined on it. So again, the proposal is to rely on the transcript of the cross-examination, to the extent that the Bench is minded to take account of that report that's been tendered.

PN1107

JUSTICE ROSS: Okay. So then if you want to tender anything, just discuss it with the other parties prior to the tender. The reason I asked the question was I had been working, perhaps incorrectly, under the assumption that if it is in the court book, well, it is before us and you don't need to formally tender it.

PN1108

MR SCOTT: That's true in respect of material in the court book. The issue here is that regrettably the materials I wish to rely upon are not in the court book.

PN1109

JUSTICE ROSS: That's fine. I just wasn't sure if you are seeking to tender bits of the court book. That's all.

PN1110

MR SCOTT: No. Not at all. So there's the Muurlink transcript, the Quinn transcript, the support catalogue which accompanies the NDIS price guide which actually has the rates and the prices, and it's the other oversight where the NDIA costs model has not been properly replicated in the court book. So I think they are the format is that we will be seeking to tender tomorrow. We can have discussions this afternoon. I can circulate the materials to the parties and we can deal with that tomorrow afternoon.

PN1111

JUSTICE ROSS: Okay. So I take it it will be 9.30 tomorrow and then 10.00 on Thursday and 10.00 on Friday. It may be that the two ABI witnesses - we will leave this for you to sort out with those who wish to cross-examine them. The Coffs Harbour residence, it may be that they can be slotted in at another time in the program. Because it is by phone, it might be more convenient for them. But we will leave that to you.

PN1112

MR SCOTT: Yes. We will make some inquiries with them. But I note that as much as we've been - - -

PN1113

JUSTICE ROSS: Yes. I'm sorry. Just at the moment, because we've got a - well, we will have a gap presumably on Thursday - well, I take it you are not going to be an hour and a half cross-examining Dr Stanford, are you?

PN1114

MR SCOTT: There are two parties that wish to cross-examine Dr Stanford. We will aim to coordinate that so it's efficient, but I don't want to say that we will be less than an hour and a half.

PN1115

JUSTICE ROSS: All right.

PN1116

MR SCOTT: Given the bulk of the material that he's filed.

PN1117

JUSTICE ROSS: Sure.

PN1118

MR SCOTT: So we will make some inquiries with the Coffs Harbour witnesses as to whether they have got flexibility to be called in, potentially on a moment's notice, if there is a gap.

PN1119

JUSTICE ROSS: It really depends on, for example, Mr Wright is at 2 o'clock on Thursday and then the next witness is at 3.30, I think, on my note.

PN1120

MR SCOTT: Yes. That's right. Geoffrey Smith is at 3.30.

PN1121

JUSTICE ROSS: Yes.

PN1122

MR SCOTT: Can I indicate tomorrow, on my read, looks to be quite a short day, because Ms Waddell is at 10 am. Mr Friend is scheduled in for 10.30, although I understand we will have some discussions this afternoon as to whether he's required at all.

PN1123

JUSTICE ROSS: Yes.

PN1124

MR SCOTT: And the same may be the case for Mr O'Brien.

PN1125

JUSTICE ROSS: Yes.

PN1126

MR SCOTT: Now, we will make objections to that evidence but whether we wish to cross-examine him or not may be another story. So again, tomorrow may be a couple of hours.

PN1127

JUSTICE ROSS: Sure.

PN1128

MS DOUST: The other issue - I'm sorry - - -

PN1129

JUSTICE ROSS: That's all right.

PN1130

MS DOUST: While your Honour is on the question of programming, I raised yesterday the issue of Dr McDonald.

PN1131

JUSTICE ROSS: Yes. I can deal with that now, if you like. That from our perspective we don't have any questions for her. Because as I understand it, is a witness statement, but it just attaches the article.

PN1132

MS DOUST: It does. And also her CV and (indistinct) can see her pedigree in this - - -

PN1133

JUSTICE ROSS: Well, there is no challenge to expertise.

PN1134

MS DOUST: I don't understand there is any objection to the statement going in. And on that basis we won't call her.

PN1135

JUSTICE ROSS: Anything further? All right. See you tomorrow at 9.30.

ADJOURNED UNTIL WEDNESDAY, 16 OCTOBER 2019 [1.16 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

TRISH STEWART, SWORN.............................................................................. PN403

EXAMINATION-IN-CHIEF BY MS DABARERA......................................... PN403

EXHIBIT #UV1 STATEMENT OF TRISH STEWART................................. PN433

EXHIBIT #UV2 SUPPLEMENTARY STATEMENT OF TRISH STEWART PN433

EXHIBIT #UV3 FURTHER STATEMENT OF TRISH STEWART............ PN433

CROSS-EXAMINATION BY MR FERGUSON.............................................. PN434

THE WITNESS WITHDREW............................................................................ PN478

DEON LEE FLEMMING, SWORN................................................................... PN489

EXAMINATION-IN-CHIEF BY MS DABARERA......................................... PN489

EXHIBIT #UV4 STATEMENT OF DEON FLEMMING DATED 16/01/2019 PN498

EXHIBIT #UV5 STATEMENT OF DEON FLEMMING DATED 28/03/2019 PN498

CROSS-EXAMINATION BY MR FERGUSON.............................................. PN499

EXHIBIT #AiG1 ROSTERS - SUBJECT TO CONFIDENTIALITY ORDER PN515

THE WITNESS WITHDREW............................................................................ PN553

BELINDA JANE SINCLAIR, SWORN............................................................. PN564

EXAMINATION-IN-CHIEF BY MS DABARERA......................................... PN564

EXHIBIT #UV6 STATEMENT OF BELINDA SINCLAIR DATED 16/01/2019 PN592

CROSS-EXAMINATION BY MS LO................................................................ PN593

CROSS-EXAMINATION BY MR SCOTT....................................................... PN643

RE-EXAMINATION BY MS DABARERA...................................................... PN742

THE WITNESS WITHDREW............................................................................ PN747

MARK FARTHING, AFFIRMED..................................................................... PN814

EXAMINATION-IN-CHIEF BY MS DOUST................................................... PN814

EXHIBIT #HSU1 STATEMENT OF MARK FARTHING DATED 15/02/2019 PN822

EXHIBIT #HSU2 FURTHER STATEMENT OF MARK FARTHING DATED 16/09/2019................................................................................................................................. PN826

CROSS-EXAMINATION BY MR SCOTT....................................................... PN827

THE WITNESS WITHDREW............................................................................ PN927

DEBORAH LEE ANDERSON, AFFIRMED.................................................... PN973

EXAMINATION-IN-CHIEF BY MR ROBSON............................................... PN973

EXHIBIT #ASU1 STATEMENT OF DEBORAH ANDERSON DATED 02/09/2019 PN980

CROSS-EXAMINATION BY MR FERGUSON.............................................. PN981

THE WITNESS WITHDREW.......................................................................... PN1030

WILLIAM GORDON ELRICK, AFFIRMED................................................ PN1067

EXAMINATION-IN-CHIEF BY MS DOUST................................................. PN1067

EXHIBIT #HSU3 STATEMENT OF WILLIAM ELRICK DATED 15/02/2019 PN1068

CROSS-EXAMINATION BY MR FERGUSON............................................ PN1074

THE WITNESS WITHDREW.......................................................................... PN1084