PN1136

JUSTICE ROSS: Well, don't be shy.

PN1137

MR SCOTT: Well, your Honour, if it assists, I understand the Bench has a copy of the revised schedule that was circulated amongst the parties yesterday evening and was filed last night.

PN1138

JUSTICE ROSS: Yes.

PN1139

MR SCOTT: I understand there's a couple of minor issues with that but you'll see for today the batting order is that we deal with objections to the evidence to be heard today. We then have Ms Waddell at 10 am. Now Ms Steiner has been moved forward to 10.30, having regard to the anticipated duration of the Waddell cross-examination. I have just been informed, and I apologise to my colleague, Mr Steiner was initially scheduled for 11 am. I was endeavouring to be efficient. I had taken it upon myself to move him forward. I understand he is not available until 11.00 so there will need to be some revision to the schedule there.

PN1140

JUSTICE ROSS: We'll deal with Waddell and just have a short break, is that the idea?

PN1141

MS DOUST: Your Honours, I can use the time usefully to tender our additional evidence if that's convenient.

PN1142

JUSTICE ROSS: Yes, we can do that, yes. Sure.

PN1143

MR SCOTT: And that is, immediately thereafter the proposal is that we deal with all the uncontroversial witness evidence that's not required.

PN1144

JUSTICE ROSS: Yes. We can use the time to deal with whatever we can.

PN1145

MR SCOTT: In respect of Thursday and Friday - - -

PN1146

JUSTICE ROSS: So what's happened to – didn't we have - - -

PN1147

MR SCOTT: Yes, there's a couple of - - -

PN1148

JUSTICE ROSS: Friend, O'Brien and Owen? Where have they - - -

PN1149

MR SCOTT: So Jeffrey Smith, rather than Jeffrey Owen, and that's my mistake in the run sheet, Jeffrey Smith from People with Disability Australia has been moved to Thursday afternoon in accordance with his stated availability.

PN1150

JUSTICE ROSS: Yes.

PN1151

MR SCOTT: Mr Friend and Mr O'Brien, I understand there's been some discussions in relation to objections and that whilst there are still objections to that evidence my understanding, at least, is that they are not required for cross-examination so they've been removed.

PN1152

JUSTICE ROSS: So will we deal with the objections to that evidence, this morning, as well?

PN1153

MR SCOTT: I'm content to do that subject to the views of the other parties.

PN1154

JUSTICE ROSS: Yes.

PN1155

MR SCOTT: And then in respect of other two days, Thursday and Friday, I don't think there's been too much change although we've kind of massaged the times to make it as efficient as possible. You'll see there, your Honours, that Thursday at 2.45 there appears to be an available time slot. We have made some inquiries as to whether any of the ABI witnesses from Friday can be moved into that slot. In particular, I understand that Deb Ryan from Coffs Harbour, given the difficulties with Coffs Harbour, I understand that she's giving evidence by telephone so there may be some flexibility there. We just haven't been able to reach out to her yet but we'll do that today.

PN1156

JUSTICE ROSS: That's fine.

PN1157

MR SCOTT: Other than that I think they're the bulk of the changes, if it pleases.

PN1158

JUSTICE ROSS: All right. Let's turn to the witnesses, Waddell, Friend, Steiner and O'Brien that were originally scheduled for this morning. We may as well deal with the objections to those witnesses.

PN1159

MS DOUST: Ms Waddell is our first witness, your Honour.

PN1160

JUSTICE ROSS: Yes. Let's deal with the – have you got that?

PN1161

MR SCOTT: No.

PN1162

JUSTICE ROSS: What are the objections to that statement?

PN1163

MS DOUST: Can I ask that each of the Bench have a copy of the witness statement in front of them?

PN1164

JUSTICE ROSS: Yes.

PN1165

MS DOUST: Can I just indicate this. Paragraph 25 is not pressed. That was the subject of an objection.

PN1166

JUSTICE ROSS: Twenty-five?

PN1167

MS DOUST: Yes. So that's not ready.

PN1168

JUSTICE ROSS: Yes.

PN1169

MS DOUST: And otherwise, I think the AiG has some objections to Ms Waddell's statement.

PN1170

JUSTICE ROSS: All right.

PN1171

MR FERGUSON: I'll just clarify, we're not pressing the objections. We took a similar course of actions to try and expedite things in preparing the document.

PN1172

JUSTICE ROSS: Yes, okay. Yes, sure. All right, so that deals with the Waddell evidence.

PN1173

MS DOUST: No objection?

PN1174

MR FERGUSON: No, not really.

PN1175

JUSTICE ROSS: Well - - -

PN1176

MR FERGUSON: Yes, we've raised objections but are content for them to be dealt with a matter for weight.

PN1177

JUSTICE ROSS: Yes. As I understand, it was put on this basis, that some observations were made about that evidence in relation to some of it being opinion and hearsay, and Mr Ferguson is just foreshadowing that he'll make submissions about that. That's as I - - -

PN1178

MR FERGUSON: Yes. Thank you, your Honour.

PN1179

JUSTICE ROSS: Let's go – the next one in my list, at least, was O'Brien, and we're just – no, sorry, was Friend. I know that's not the order today but it was the order yesterday so that's the order in which we're - - -

PN1180

MS DOUST: Is your Honour dealing with Mr Friend?

PN1181

JUSTICE ROSS: Yes. Yes.

PN1182

MR SCOTT: Sorry. Yes, thank you.

PN1183

JUSTICE ROSS: Yes.

PN1184

MS DOUST: Can I hand up to the Bench - in light of the objections we've identified a number of paragraphs that we don't read, some of which I think were in relation to – sorry, I'll hand that up – the approach we've taken is we're not reading those paragraphs really that fall into that category of the submission of the union official.

PN1185

JUSTICE ROSS: Yes.

PN1186

MS DOUST: And so we don't press those paragraphs on that basis but we'll make those submissions in due course. But so far as this witness has had matters reported to him by members about practice within the industry, we do press that evidence.

PN1187

JUSTICE ROSS: All right.

PN1188

MS DOUST: Yes.

PN1189

JUSTICE ROSS: With those changes, are there any other objections to Mr Friend's evidence?

PN1190

MR FERGUSON: There are from us.

PN1191

MR SCOTT: I'd like to hand up another document to expedite this. What I'm handing up is a document which deals with Friend and other witnesses. The other witnesses are those that are not required for cross-examination. We have taken the exact same approach. But what I can say is that there's been some rationalisation of this in light of discussions today and the concessions made by the union. So that while the list looks daunting I can take you through that. It's actually significantly shorter in terms of the ones we press.

PN1192

JUSTICE ROSS: Yes. So let's go through Friend.

PN1193

MR SCOTT: Yes, so - - -

PN1194

JUSTICE ROSS: First is paragraph 9?

PN1195

MR SCOTT: Nine, the first and second sentence.

PN1196

JUSTICE ROSS: Which is just - - -

PN1197

MR SCOTT: Purportedly reports from unnamed members, which obviously you can't test.

PN1198

MS DOUST: Our view was that on the last occasion the Bench had indicated it would receive some hearsay and it would be a matter of weight, and that's the basis on which we press that.

PN1199

MR SCOTT: I think different approaches were taken last time, depending on the unfairness of the particular hearsay, so in this particular context it's completely unnamed so there's no sensible way to test this in a meaningful way.

PN1200

JUSTICE ROSS: You can ask him how many members, when did that occur, those sorts of questions.

PN1201

MR SCOTT: Yes, but in terms of the voracity of the assertion, in terms of that this actually occurs, which is why the evidence is led. We don't know those people and we couldn't go and test that. Anyway, it is what it – and then, you know - - -

PN1202

JUSTICE ROSS: Yes. No, objection not sustained. The next one? The same thing?

PN1203

MR SCOTT: Seven, yes, I'll just go to it.

PN1204

JUSTICE ROSS: Yes.

PN1205

MR SCOTT: Sorry - - -

PN1206

MS DOUST: Which number?

PN1207

MR SCOTT: Paragraph 16.

PN1208

JUSTICE ROSS: I think, yes - - -

PN1209

MR SCOTT: Those are in my document.

PN1210

MS DOUST: Sorry, item 7.

PN1211

JUSTICE ROSS: Item 7.

PN1212

MR SCOTT: So it's hearsay but it's obviously hearsay about their perception of the mind of their employers, of management. Neither the employees or the employers, therefore the management, are named. Again in this case, particularly difficult for us to test, and we say unfair to be received. There is no weight to it, and why include it?

PN1213

MS DOUST: We press it on the same basis, Your Honour, as last time.

PN1214

JUSTICE ROSS: No, we'd leave that in and make it subject to weight. We would make the observation that it's not a statement to which we would afford much weight, if any.

PN1215

MR SCOTT: Yes. Twenty is just opinion as to the working hours of most HSU members.

PN1216

JUSTICE ROSS: Just bear with me.

PN1217

MR SCOTT: Sorry, I don't press 20. I withdraw that.

PN1218

JUSTICE ROSS: Or 17?

PN1219

MR FERGUSON: That's not pressed.

PN1220

MR SCOTT: That's not pressed. So 17 is not pressed, sorry.

PN1221

JUSTICE ROSS: Yes, right.

PN1222

MR SCOTT: Sorry, let me be clear, 17 is not pressed, 18 is not read, in terms of the union.

PN1223

JUSTICE ROSS: Yes. So that's it.

PN1224

MR SCOTT: That's right. So 17 to 19 are not read.

PN1225

JUSTICE ROSS: No. There's more over the page?

PN1226

MR SCOTT: Yes.

PN1227

JUSTICE ROSS: Quite a bit. All right, well, how much of this is still in?

PN1228

MR SCOTT: I'm just going to take you to the ones that are.

PN1229

JUSTICE ROSS: Yes, all right.

PN1230

MR SCOTT: So 21, which is a submission about the operation of the award, which is a matter we can have an argument about.

PN1231

MS DOUST: What?

PN1232

MR SCOTT: Paragraph 21. Paragraph 21, I'll be clearer, of the statement.

PN1233

JUSTICE ROSS: Yes, that does appear to be submission, Ms Doust, in the category of the rest of them.

PN1234

MS DOUST: It does, Commissioner.

PN1235

JUSTICE ROSS: All right.

PN1236

MR SCOTT: Twenty-two is not read by the union, 23 to 25, we press.

PN1237

JUSTICE ROSS: All right, wait.

PN1238

MR SCOTT: It's on the hearsay - - -

PN1239

JUSTICE ROSS: Well, that material is in the same category as paragraph 16.

PN1240

MR SCOTT: Yes. And 26 and 27 is not read. In fact, 26 to 29 is not read.

PN1241

JUSTICE ROSS: Yes. So the - - -

PN1242

MR SCOTT: If we turn the page - - -

PN1243

JUSTICE ROSS: Right.

PN1244

MR SCOTT: Twenty-six is hearsay but we'll assume that that's just taking the same approach.

PN1245

JUSTICE ROSS: Twenty-six is not read, anyway.

PN1246

MR SCOTT: Sorry, 36, 36, I am sorry. Paragraph 36.

PN1247

JUSTICE ROSS: Yes. Then your 39 to 42, well, so it's 39 - - -

PN1248

MR SCOTT: Yes, and then 40 to 45, are not read.

PN1249

JUSTICE ROSS: No, 43 is read but you're not objecting to 43.

PN1250

MR SCOTT: No. No.

PN1251

JUSTICE ROSS: So which ones are left?

PN1252

MR SCOTT: Thirty-six, 39, I won't press 47.

PN1253

JUSTICE ROSS: So it's 36 and 39.

PN1254

MR SCOTT: Yes.

PN1255

JUSTICE ROSS: Again, we'll allow those but we wouldn't propose to give much, if any, weight to those observations.

PN1256

MR SCOTT: Yes. Then 48.

PN1257

JUSTICE ROSS: I mean, the question for the union really is, the union's – how many disputes have been notified about any of these issues that are raised? So if you take that on notice, but I don't propose to ask the witness that question. But one thing that leads to its observation suggests to me, well if there's some dispute about what constitutes an emergency for a change, then you would have expected it to have been notified. And I just want to know how many disputes have been notified about those sorts of issues.

PN1258

MS DOUST: Yes. I think we might have a submission against that expectation, your Honour but obviously not - - -

PN1259

JUSTICE ROSS: It's not an expectation, I'm just asking you for the facts. You can then say why.

PN1260

MS DOUST: Yes.

PN1261

JUSTICE ROSS: That's fine, but yes.

PN1262

MS DOUST: Yes.

PN1263

MR SCOTT: Then dealing with items 36, 37, 38 and 39 of my schedule, none of those are read.

PN1264

JUSTICE ROSS: Yes.

PN1265

MR SCOTT: And we press items 40 to 46, and I'm just turning to the nature of that material.

PN1266

JUSTICE ROSS: So that's paragraphs 54 to 58.

PN1267

MR SCOTT: Yes.

PN1268

JUSTICE ROSS: That falls into the earlier category. We understand the submission you put and we wouldn't propose to attach much weight to those observations.

PN1269

MR SCOTT: Yes. And 59, paragraph 59, the first and final sentence. The first sentence is obviously opinion and hearsay; the second sentence seems to be a submission about the effect of the practice.

PN1270

MS DOUST: The first sentence is not opinion, your Honour.

PN1271

JUSTICE ROSS: No, the first sentence, isn't. The second is the one that goes to - - -

PN1272

MR SCOTT: Yes. I'll withdraw 59, the first sentence.

PN1273

JUSTICE ROSS: Well, we'll delete the second sentence.

PN1274

MR SCOTT: And the unions don't read paragraphs 63 and 64.

PN1275

JUSTICE ROSS: Yes.

PN1276

MR SCOTT: And we don't press item objections 49 - - -

PN1277

JUSTICE ROSS: Paragraphs - - -

PN1278

MR SCOTT: The paragraphs 65, 66, 67, we don't press so there's no objection to those paragraphs.

PN1279

JUSTICE ROSS: Yes.

PN1280

MR SCOTT: We press the objection to paragraph 68. It's hearsay but it's also opinion as to the ordinariness of the purported practice and how usually – well, the frequency with which people receive no allowance, purportedly. But it must be hearsay evidence, as well.

PN1281

MS DOUST: We accept it's hearsay but it's not, we say, opinion, just because he's used the word, 'ordinary,' 'ordinarily.'

PN1282

MR SCOTT: His opinion as to the frequency. A submission can be made about that.

PN1283

JUSTICE ROSS: No, we propose to leave that in. In fact, we may have some questions for the witness about that paragraph.

PN1284

MR SCOTT: Yes.

PN1285

JUSTICE ROSS: Sixty-nine? That's related to 68.

PN1286

MR SCOTT: Yes. We may have some short cross-examination in that outcome, as well.

PN1287

JUSTICE ROSS: Yes. So were you not proposing to call Mr Friend?

PN1288

MS DOUST: We were proposing to call Mr Friend, your Honour.

PN1289

JUSTICE ROSS: When?

PN1290

MS DOUST: But it's really subject to my friend's requirement to cross-examine.

PN1291

MR SCOTT: We now have a short requirement.

PN1292

JUSTICE ROSS: No, that's fine. Yes. If you can sort out when you - - -

PN1293

MR SCOTT: Later today.

PN1294

JUSTICE ROSS: When he'll be called.

PN1295

MS DOUST: He is available today, your Honour, and he's currently waiting. So he's also another one that might be used to fill the gap.

PN1296

JUSTICE ROSS: Yes, sure. All right.

PN1297

MR SCOTT: I'd just need a few minutes to think about that.

PN1298

JUSTICE ROSS: No, no, no, that's fine. We can have an adjournment, we've - - -

PN1299

MR SCOTT: Yes.

PN1300

JUSTICE ROSS: Do you have any objections?

PN1301

MR FERGUSON: No. No, your Honour.

PN1302

JUSTICE ROSS: I was just wondering if there was any paragraphs left. Steiner?

PN1303

MR ROBSON: Yes, sir, he's an ASU witness. I understand there's some objections from the employer party.

PN1304

MR SCOTT: None that we're pressing, your Honour, in the sense that we've raised objections but they'll be a matter that we'll address in submissions.

PN1305

JUSTICE ROSS: All right, excellent. O'Brien?

PN1306

MR FERGUSON: Yes, sorry, your Honour, just to clarify. My understanding is that a revised statement of Mr Steiner has been filed.

PN1307

JUSTICE ROSS: Yes. Yes, it has.

PN1308

MR FERGUSON: So it's on that basis.

PN1309

JUSTICE ROSS: Yes. O'Brien?

PN1310

MR ROBSON: Yes, that's another ASU witness. I understand that maybe AiG have objections.

PN1311

MR SCOTT: Your Honour, I understand that Ai Group have some objections to just three parts of the O'Brien statement, but object to the entire statement. Do your Honours have a copy of that statement before you?

PN1312

JUSTICE ROSS: Yes, yes.

PN1313

MR SCOTT: So the basis of our objection is relevance. This is a statement of an employee employed by Canon Australia as a customer service engineer, covered by an enterprise agreement in the business equipment industry.

PN1314

JUSTICE ROSS: Yes.

PN1315

MR SCOTT: So it's on that basis. I think there's some kind of – I think it's relied upon for some comparison purpose and – that he travels - - -

PN1316

JUSTICE ROSS: Presumably it's relied on to make good the argument that there's a gender undervaluation issue at play.

PN1317

MR SCOTT: That may be the case. I'm not sure that that's been pressed as part of the submissions but I'm happy to be corrected on that. The comparison seems to be in regard to the travel time issue.

PN1318

JUSTICE ROSS: Yes.

PN1319

MR SCOTT: And I just note that he's what's called a 'walking tech,' so I understand he works in the CBD and he travels, in the sense that he walks from client to client. So I'm not aware of any evidence in these proceedings where support workers or any employees under the SCHADS award are walking around between clients. So we object to the statement on the basis of relevance. If that objection is not sustained I understand my friend has some more refined objections but that's our submission, your Honour.

PN1320

JUSTICE ROSS: Yes.

PN1321

MR ROBSON: I might just - - -

PN1322

MR FERGUSON: Our submission is narrower but not more refined. We object to paragraphs 5 to 9 which is the travel time issue which is essentially on the basis of relevance too, again emphasising the point that he seems to be a walking employee, not a driving one, and there doesn't seem to be any obvious analogy with the activities of the SCHADS employees in this proceedings, putting aside the fact that he's covered by an enterprise agreement, an entirely different industry.

PN1323

MR ROBSON: Well, we do rely on Mr O'Brien's statement for the purposes of comparison. In our submissions of 2 July 2019 we do go into detail of the argument and I'm not going to rehearse it here. I suppose, your Honour, the argument that you put to Mr Scott is the one I'm raising - - -

PN1324

JUSTICE ROSS: Yes, I understand the argument you're advancing.

PN1325

MR ROBSON: We say that it's relevant. We've attached a number of copies of a number of awards that we say provide for paid travel time, identified that they're male dominated.

PN1326

JUSTICE ROSS: Yes.

PN1327

MR ROBSON: We have selected the business equipment industry as an example. That's simply because it falls into the ASU's coverage area so we've a better understanding of it. And given its small size we can present the F17's that would cover, say, 90 per cent of the industry to show that there are three women employed in it. Mr O'Brien's statement, yes, he does walk. But I suppose the issue in this case is travel, not how the person travels. He walks because he lives in Surrey Hills and his clients are in the CBD.

PN1328

JUSTICE ROSS: Yes.

PN1329

MR ROBSON: We say how you get to the location isn't necessarily relevant. He attaches an enterprise agreement that covers people who do drive because they live in regional or in other suburban areas and work in those areas. And I don't think it would be reasonable to make the submission that if there were a disability support worker living in Surrey Hills and then providing support to clients in the Sydney business area, that they wouldn't walk to those locations. And certainly that would seem to be a reasonable proposition from a business sense because then you wouldn't need to pay for parking or waste time driving between those locations in heavy traffic.

PN1330

COMMISSIONER LEE: Mr Robson, is there a broken shift provision in the Business Equipment Award, which is the underpinning award for the enterprise agreement that he's taking about?

PN1331

MR ROBSON: I believe that the Business Equipment Award is – yes, paragraph 39 of our submissions of 2 July deal with that. There is no provision for broken shifts or split shifts, and ordinary hours of the work continuously. And again, the consequences of that is that all time spent travelling except to the commencement of work and afterwards, is paid for, although there are certain exceptions to that where there is certain extraordinary travel.

PN1332

JUSTICE ROSS: All right. We don't propose to admit the statement. It relates to the terms and conditions under an enterprise agreement and we're here concerned with the operation of a modern award. You can however tender the form F17 separately, the point there being to make good your argument that there's a gender imbalance in that sector. I think that was – those were the witnesses originally scheduled for this morning. We might now turn to Ms Waddell. Can I indicate that when we come later to deal with the challenges to the evidence of the other witnesses, I propose in relation to Dr Stanford that the employers file their objections. So I want to see a document with what you're objecting to and then we'll deal with the objections at 9.30 tomorrow. We just want the opportunity to look at them and give them some thought before we need to rule on them, particularly if they're anything like the volume that's just been produced in relation to one of these witnesses.

PN1333

MR FERGUSON: I hesitate to raise this but my request would be that we start at 10.00, purely for personal circumstances, and frankly, school drop off.

PN1334

JUSTICE ROSS: Yes, sure.

PN1335

MR FERGUSON: Unless it looks like we have an exceptional amount to deal with tomorrow and then I'll try and make arrangements.

PN1336

JUSTICE ROSS: Yes. Yes, that's fine. All right. And it would be helpful if you could co-ordinate your objections so we know what the list is.

PN1337

MR SCOTT: We will, and it may be the case that even starting at 10.00, dealing with the objections to Dr Stanford at that time, we still won't run over. That's the hope. But we will have discussions.

PN1338

JUSTICE ROSS: All right. Ms Doust?

PN1339

MS DOUST: Just find (indistinct). She's just outside.

PN1340

THE ASSOCIATE: Please state your full name and address for the record.

PN1341

MS WADDELL: My name is Heather Waddell, (address supplied).

<HEATHER WADDELL, AFFIRMED [10.05 AM]

EXAMINATION-IN-CHIEF BY MS DOUST [10.05 AM]

PN1342

MS DOUST: Thank you. Is your name Heather Waddell?‑‑‑Yes, it is.

PN1343

And are you employed as a community care worker for HammondCare in the Shoalhaven area of New South Wales?‑‑‑Yes, I am.

PN1344

Just for the benefit of the Bench can you describe the boundaries of that area?‑‑‑It's the Shoalhaven LGA, local government area. It's from Gerringong in the north, down as far as North Durras in the south, and west to beyond Kangaroo Valley to the west.

PN1345

Can I just ask you to specify the distance between the first two locations. You said, Gerringong and North Durras?‑‑‑I'm not exactly sure, I'm sorry, but it would be – from my place it's 63ks to Gerringong and I'm in Sanctuary Point. And from my place to Kioloa which is along about 30ks short of North Durras, it's 80ks.

PN1346

Yes. Thank you. Ms Waddell, have you prepared a statement for the purpose of the proceeding before the Commission?‑‑‑Yes, I have.

PN1347

Have you had a chance to look at that statement recently?‑‑‑I have.

PN1348

You understand that paragraph 25 no longer appears in that statement?‑‑‑Yes.

PN1349

Can I just take you briefly to paragraph 23, where I understand you need to make a correction. Do you have that in front of you?‑‑‑I don't have it in front of me.

PN1350

Sorry?‑‑‑Sorry. Is this it? Is this - - -

PN1351

No?‑‑‑I didn't bring it in, sorry.

*** HEATHER WADDELL XN MS DOUST

PN1352

I apologise, Ms Waddell, I thought you had a copy there with you?‑‑‑I left it outside.

PN1353

We'll just give you one?‑‑‑I haven't got my glasses. Thank you.

PN1354

Sorry, do you need glasses, Ms Waddell?‑‑‑I do.

PN1355

I think we're just retrieving them for you?‑‑‑Thank you. I can read it. Thank you for that. Sorry. 'With the broken shifts the employer takes the minimum to mean two hours per day' - - -

PN1356

No, I'm just asking you to look at paragraph 23, please, Ms Waddell?‑‑‑Sorry.

PN1357

So that should be in the previous page. Do you need to make a correction there to the amount that's specified in that second sentence?‑‑‑Yes, it's now at $22.

PN1358

And is that as a consequence of an enterprise agreement that's been made - - -?‑‑‑That's correct.

PN1359

Subsequent to you preparing this statement?‑‑‑Yes.

PN1360

So subject to those matters is that statement true and correct to the best of your belief and knowledge?‑‑‑Yes.

PN1361

Thank you. I tender that.

PN1362

JUSTICE ROSS: I'll mark that exhibit HSU4.

EXHIBIT #HSU4 STATEMENT OF HEATHER WADDELL DATED 15/02/2019

PN1363

MS DOUST: Thank you.

PN1364

JUSTICE ROSS: Cross-examination?

CROSS-EXAMINATION BY MS TIEDEMAN [10.10 AM]

*** HEATHER WADDELL XXN MS TIEDEMAN

PN1365

MS TIEDEMAN: Good morning, Ms Waddell. My name is Ms Tiedeman. I appear on behalf of all employer associations in these proceedings. Thank you for making yourself available this morning. I've just got a few questions in relation to your statement. So now that you have a copy in front of you can I take you to paragraph 3, please?‑‑‑Yes. Yes?

PN1366

So you say there, 'I enjoy my role as a care worker and gain satisfaction from knowing that I have made a difference to people's lives'?‑‑‑Yes.

PN1367

Is that one of the reasons that you work in this industry?‑‑‑It is.

PN1368

Can I take you to paragraph 6 of your statement?‑‑‑I've just got to find it.

PN1369

JUSTICE ROSS: Just look at the statement in the court book, not the other document?‑‑‑Okay. Yes.

PN1370

MS TIEDEMAN: At that paragraph you refer to a 2015 enterprise agreement but you say that a new agreement was in the process of being ratified. Are you aware of whether that agreement has been approved by the Commission?‑‑‑It has.

PN1371

Yes. Is that the HammondCare Residential Care and HammondCare At Home Agreement 2018?‑‑‑I believe it is.

PN1372

Can I hand you a copy of that agreement. I think it should be just next to you. Can you confirm that that's the document that I'm referring to?‑‑‑That's what it says it is, yes.

PN1373

I tender that agreement, your Honour.

PN1374

JUSTICE ROSS: Have you got a copy?

PN1375

MS TIEDEMAN: I think you have copies.

PN1376

MR FERGUSON: I think copies were made available.

PN1377

MS TIEDEMAN: Apologies.

*** HEATHER WADDELL XXN MS TIEDEMAN

PN1378

JUSTICE ROSS: I'll mark that exhibit ABI1.

EXHIBIT #ABI1 HAMMONDCARE RESIDENTIAL CARE AND HAMMONDCARE AT HOME ENTERPRISE AGREEMENT 2018

PN1379

MS TIEDEMAN: And can I just get you to confirm that that's the enterprise agreement that you're covered by?‑‑‑I believe it is, yes.

PN1380

Thank you.

PN1381

JUSTICE ROSS: Are you going to ask the witness about the meaning of any of the clauses in this agreement?

PN1382

MS TIEDEMAN: Not the meaning, just what some of them say, just take her to them.

PN1383

MR SCOTT: I think it may be that depending on the line of questioning that we take her to a couple of clauses, but that's all.

PN1384

JUSTICE ROSS: All right.

PN1385

MS TIEDEMAN: I'll just get you to put the agreement aside for a moment and take you back to your statement?‑‑‑Yes.

PN1386

Can I take you to paragraph 11 of your statement?‑‑‑Yes.

PN1387

In that paragraph you say that you sometimes have to travel long distances to visit clients?‑‑‑Yes.

PN1388

So do you still visit clients in Ulladulla?‑‑‑I have this year, yes.

PN1389

And so how often would you say that you do that?‑‑‑Infrequently.

PN1390

Can you recall the last time that you did?‑‑‑Earlier this year.

PN1391

Do you still visit clients in Kioloa and Baldy Point?‑‑‑No, that client's gone.

*** HEATHER WADDELL XXN MS TIEDEMAN

PN1392

Do you still visit clients in Gerringong?‑‑‑No.

PN1393

What about clients in Kangaroo Valley and Budjong?‑‑‑I have done that this year, yes.

PN1394

And would you do that often?‑‑‑No, I wouldn't.

PN1395

Can you recall the last time?‑‑‑No, not specifically.

PN1396

Thank you. So just in that same paragraph you also say that you've worked days where you've travelled 250kms in a day, with four or five hours of paperwork?‑‑‑That's correct.

PN1397

I take it that doesn't happen very often?‑‑‑At one stage it did.

PN1398

When was the last time that that happened?‑‑‑A while ago but that was a constant on my weekend roster that I would be doing 250kms.

PN1399

And can you recall the last time that you did do that?‑‑‑No, I can't. But others in my workplace would be doing it.

PN1400

All right. And again, further in paragraph 11 you say that you've been required to travel 50kms to your first client?‑‑‑That's correct.

PN1401

Is that something that happens often?‑‑‑Right at this moment, no, but it did.

PN1402

And can you recall the last time that happened?‑‑‑Probably this year.

PN1403

So can I suggest to you that the furthest distance that you do travel to your first client is Sussex Inlet?‑‑‑At present, yes.

PN1404

And that you live approximately 27 kilometres away from Sussex Inlet?‑‑‑No, you would say 30 to 32, yes.

PN1405

All right. Do you assist any clients that live really close to your home?‑‑‑I do.

*** HEATHER WADDELL XXN MS TIEDEMAN

PN1406

I think you mentioned earlier but I'll just get you to confirm, you live in Sanctuary Point?‑‑‑That's correct.

PN1407

Do you have clients in Sanctuary Point?‑‑‑I do.

PN1408

Is it common for you to have a first or last client in that suburb?‑‑‑It is now.

PN1409

So is it correct that approximately 90 per cent of your last client visits are actually in Sanctuary Point?‑‑‑It is now.

PN1410

Can I take you to paragraph 13 of your statement. You say there in the first sentence, 'The employer doesn't pay for travel to the first client in a shift, or back home from the last client, or travel time and kilometres in a broken shift'?‑‑‑That's correct.

PN1411

It's correct though, isn't it, that you receive a broken shift allowance under your enterprise agreement?‑‑‑That's correct.

PN1412

And I understand that the allowance is payable for every break in your shift, is that right?‑‑‑That's correct.

PN1413

So for example, if you had three portions of a shift you would be paid the broken shift allowance twice, is that's correct?‑‑‑That's correct.

PN1414

You also say at paragraph 13, 'For home carers like me this can mean travel of great distances without being paid for the time spent on taking the travel?‑‑‑That's correct.

PN1415

Is it correct though that the purpose of that broken shift allowance is to compensate you for the travel time and the kilometres travelled?

PN1416

MS DOUST: I object.

PN1417

JUSTICE ROSS: Yes. How would you go to the purpose? How would this witness know the purpose?

PN1418

MS TIEDEMAN: I would take her to the enterprise agreement.

*** HEATHER WADDELL XXN MS TIEDEMAN

PN1419

JUSTICE ROSS: Is that something you could make a submission about?

PN1420

MS TIEDEMAN: Yes, we can make a submission about that.

PN1421

JUSTICE ROSS: All right.

PN1422

MS TIEDEMAN: You also say further in paragraph 13 that you can ask your manager to get paid for kilometres all the time?‑‑‑That's correct.

PN1423

And I take it that's a reference to the allowance in your enterprise agreement for travel in extraordinary circumstances?‑‑‑Yes.

PN1424

Yes?‑‑‑That's correct.

PN1425

So just for everyone's benefit I'll take you to the enterprise agreement, and it's clause 23.2 on page 28 of the enterprise agreement. Have you got that before you?

PN1426

JUSTICE ROSS: Sorry, Ms Tiedeman, twenty-three point?

PN1427

MS TIEDEMAN: Clause 23.2 on page 28. It's got the decision before the agreement and it's quite lengthy, so just towards - - -?‑‑‑What page was that?

PN1428

Page 28 of the agreement?‑‑‑And - - -

PN1429

JUSTICE ROSS: Clause 23.3 at the bottom of that page.

PN1430

MS TIEDEMAN: It should be at the bottom of that page, yes. And are you familiar with that clause for that entitlement?‑‑‑So which clause is it, 23.1?

PN1431

It's 23.2, travel in extraordinary circumstances?‑‑‑Okay.

PN1432

It starts at the bottom of page 28 but it does go over onto the top of page 29?‑‑‑Yes. Yes.

*** HEATHER WADDELL XXN MS TIEDEMAN

PN1433

Have you ever made a request in accordance with that?‑‑‑I have.

PN1434

And how many requests would you say that you've made?‑‑‑Only a few.

PN1435

Have those requests been granted?‑‑‑I can't tell. They say, 'I'll think about it, we'll see.' They don't say, 'Yes, we'll give it to you.'

PN1436

So have you been paid for it?‑‑‑I can't tell you because I can't read my payslip.

PN1437

All right. Have you asked them further whether that is contained on your payslip?‑‑‑No, I haven't.

PN1438

Then further in that same paragraph you say you have to make the request in advance for the - - -?‑‑‑That's correct.

PN1439

Can I just take you to clause 23.2 in the agreement. It doesn't actually have any requirement for that request to be made in advance, does it?‑‑‑No, but that's what my work say is required.

PN1440

But it doesn't say it in the enterprise agreement?

PN1441

MS DOUST: Objection. That's just argumentative.

PN1442

JUSTICE ROSS: That's true. It's clear on the face of the agreement that it doesn't require prior approval.

PN1443

MS TIEDEMAN: All right, thank you. Were you involved in the bargaining for the enterprise agreement?‑‑‑That's correct.

PN1444

I'll just take you to paragraph 14 now in your statement?‑‑‑Mm-hm.

PN1445

You talk about some of the challenges that you faced while driving. I understand that you made a request with your employer that your work not be organised in a way that you be required to travel on the highway at night?‑‑‑That's correct.

PN1446

And I understand that your employer accommodated that request, is that right?‑‑‑They have, yes.

*** HEATHER WADDELL XXN MS TIEDEMAN

PN1447

JUSTICE ROSS: Sorry, the request that you not travel on the highway at night?‑‑‑I requested not to travel on the highway at night.

PN1448

No, that's fine. I just couldn't quite hear the – no, no - - -

PN1449

MS TIEDEMAN: My apologies. No further questions. I think AFEI have questions.

PN1450

JUSTICE ROSS: Yes.

CROSS-EXAMINATION BY MS LO [10.20 AM]

PN1451

MS LO: Good morning, Ms Waddell, can you hear me? I'm back here?‑‑‑Yes.

PN1452

Hi. My name is Ms Lo. I'm here for the Australian Federation of Employers & Industries, an employer organisation and I just have a few questions for you on your statement this morning?‑‑‑Okay.

PN1453

Can I take you to paragraph 23 of your statement, please. Paragraph 23 states, 'Workers usually rostered around client meal times, so shifts tend to be around morning, lunch and evening.' Would this be breakfast, lunch and dinner?‑‑‑That's correct.

PN1454

And why do you provide care around meal times?‑‑‑Because clients need feeding.

PN1455

That's the primary reason?‑‑‑And they take medications, they need to be fed, meals prepared for them, washed up.

PN1456

Thank you. And would you return to the same client three times in the course of the day?‑‑‑In some instances, yes, you would.

PN1457

Would you attend to multiple clients on this basis during the course of a day's work, so breakfast, lunch and dinner, for client A, B and C?‑‑‑They try to split the shifts so that people aren't doing the same run. But some clients require the same people.

*** HEATHER WADDELL XXN MS LO

PN1458

And how many clients would you say you would see in a day, maximum?‑‑‑I couldn't tell you. There's some people that – I've had a client that I saw all day, from 7 am until 4 pm, no break.

PN1459

Finally, why do you work part time?‑‑‑Where I come from there is no work. You take what's around. Aged care is the only industry that's a work provider.

PN1460

So when you applied for employment was it a part time position?‑‑‑Yes. All the work in aged care is part time except for, they've now started employing people on a 38 hour basis because they can't fill shifts. Where I come from people leave employment because of the distances they have to travel, first client, last client, 50 kilometres is a lot, 30 kilometres is a lot, and - - -

PN1461

Have you applied for a full-time position?‑‑‑No.

PN1462

Thank you?‑‑‑My employer wouldn't give me one.

PN1463

No further questions.

PN1464

JUSTICE ROSS: Any re-examination?

RE-EXAMINATION BY MS DOUST [10.22 AM]

PN1465

MS DOUST: Yes, just on the suggestion about applying for any full-time positions, have there been any that have been advertised by your employer that you're aware of?‑‑‑Not that I've seen, no.

PN1466

Thank you.

PN1467

JUSTICE ROSS: Nothing further? Thank you for your evidence, Ms Waddell, you're excused.

<THE WITNESS WITHDREW [10.23 AM]

*** HEATHER WADDELL RXN MS DOUST

PN1468

Can I just make an observation. You can leave the witness box now. That's all right, thanks. I'll just make an observation about the last line of cross-examination. It was the same with the witness yesterday. It does occur to me, reading the employer evidence, that is predominantly that they don't employ full-timers for this work and they set out the reasons why. So I'm not sure where it's taking us. If the employer evidence is you predominantly employ part time and casual people to undertake this sort of support work and you set out the reasons for that, I'm not really following why you're cross-examining individual witnesses about why they have chosen to work part-time. I mean, the employer evidence is, well, they chose it because that's the way employers structure their business. Am I missing something in all of this?

PN1469

MR SCOTT: I'm not sure whether that's directed at my client's or not but - - -

PN1470

JUSTICE ROSS: No, no, no. It's to all of you.

PN1471

MR SCOTT: Yes. I mean, for our part, to the extent that we did that yesterday, and I say nothing that you've just indicated in terms of the employer case is in dispute, in respect to the witness yesterday there was a flavour of the evidence of under-employment and the desire to have more hours, and that was tested and low and behold, there's a second job.

PN1472

JUSTICE ROSS: Yes.

PN1473

MR SCOTT: So other than that I don't know that we're necessarily asking people why they're working part-time.

PN1474

JUSTICE ROSS: No, all right. Ms Lo, why are you?

PN1475

MS LO: Your Honour, it's really relevant to establish a need for the employer in order to employ part-time employees, it's either the employees' need for it or the employers' need, and the answer is to assist with establishing the point that employers require part-time employees.

PN1476

JUSTICE ROSS: I think the employer evidence makes that point. That's as I'd understood the employer evidence.

PN1477

MS LO: Yes.

PN1478

JUSTICE ROSS: It may be it's somehow going to be cross-examined but I didn't apprehend there was any dispute that the nature of this work, it being client based, et cetera, is what has led to the pattern of engagement and the nature of the employment in the sector. But in any event, you'll run your case as you see fit.

PN1479

MS LO: Okay.

PN1480

JUSTICE ROSS: Can we have another witness? Can we pop Mr Friend in? Did you want a moment to - - -

PN1481

MR FERGUSON: Yes, just for 15 minutes.

PN1482

JUSTICE ROSS: That's all right. So let's just – can we just have a quick look at the schedule. So the next witness is at 11.00, is that right?

PN1483

MS DOUST: Yes, that is right, your Honour.

PN1484

JUSTICE ROSS: So we'll adjourn for ten minutes.

PN1485

MR FERGUSON: Ten minutes is fine.

PN1486

JUSTICE ROSS: And then come back and deal with Mr Friend?

PN1487

MS DOUST: Yes, your Honour.

SHORT ADJOURNMENT [10.26 AM]

RESUMED [10.39 AM]

PN1488

JUSTICE ROSS: Mr Friend?

PN1489

MS DOUST: Yes. He's available, he's just outside now.

PN1490

THE ASSOCIATE: Please state your full name and address.

PN1491

MR FRIEND: Christopher Friend, (address supplied).

<CHRISTOPHER FRIEND, SWORN [10.40 AM]

EXAMINATION-IN-CHIEF BY MS DOUST [10.40 AM]

PN1492

MS DOUST: Thank you. Sir, is your name Christopher Friend?‑‑‑Yes, it is.

*** CHRISTOPHER FRIEND XN MS DOUST

PN1493

Are you employed as a bargaining officer for the Health Services Union New South Wales branch?‑‑‑Yes, that's correct.

PN1494

Have you prepared a statement for the purpose of the proceeding before the Commission?‑‑‑Yes, I have.

PN1495

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

PN1496

And do you say that statement is true and correct to the best of your belief and knowledge?‑‑‑Yes, I do.

PN1497

Thank you. I tender that subject to the paragraphs not read, not provided the schedule for, your Honour.

PN1498

JUSTICE ROSS: Thank you.

PN1499

MS DOUST: I wonder whether that schedule might be marked for identification?

PN1500

JUSTICE ROSS: We'll mark that exhibit HSU5.

EXHIBIT #HSU5 STATEMENT OF CHRISTOPHER FRIEND DATED 15/02/2019

CROSS-EXAMINATION BY MR FERGUSON [10.42 AM]

PN1501

MR FERGUSON: Good morning, Mr Friend?‑‑‑Good morning.

PN1502

My name is Mr Ferguson?‑‑‑Hi.

PN1503

I represent the Australian Industry Group and just have a small number of questions?‑‑‑Sure.

PN1504

Can I take you to paragraph 68 of your statement?‑‑‑Sure.

PN1505

You there say members are ordinarily paid for travel between consecutive clients?‑‑‑That's correct.

PN1506

Now are you there referring to situations where your member travels directly from one client to the next client, without any significant gap or breaks in between?‑‑‑That's correct.

*** CHRISTOPHER FRIEND XXN MR FERGUSON

PN1507

Right. And when you say, 'paid,' are you saying they're paid for their time, or are they paid some sort of allowance?‑‑‑In that case where they're travelling from client to client they would be paid for their time and for their kilometre allowance, ordinarily.

PN1508

Right. But in your experience sometimes where there's a break between clients, they are not paid for that time - - -?‑‑‑That's exactly right.

PN1509

Is that right?‑‑‑That time or their kilometre allowance. So it's not uncommon for there to be no payment between clients where there's such a break, yes.

PN1510

Yes. Thank you, they're the questions from myself but there might be questions from the Bench.

PN1511

COMMISSIONER LEE: So just on paragraph 68, so then what do you mean by, 'consecutive,' just so I'm absolutely clear, consecutive clients? Clients where there is no broken shift, at all?‑‑‑That's correct.

PN1512

All right?‑‑‑So usually that will be if the client is directly rostered, you know, one after the other with no broken shift, and some travel time allowed, schedule in to move from client A to client B.

PN1513

Right.

PN1514

MR FERGUSON: Perhaps to add greater clarity to that, is it your understanding that in those circumstances the employer requires them to travel immediately after finishing the first client, to the next?‑‑‑That's exactly right, that there would be – there is no opportunity to have a break or because one has to go from A to B in order to get there.

PN1515

And your understanding on what else that they're directed to go, straight from one to the next and - - -?‑‑‑That's correct.

PN1516

Immediately?‑‑‑And it's usually scheduled in on their roster that they will be travelling in that period and therefore it's part of their ordinary hours for the day.

PN1517

Thank you.

*** CHRISTOPHER FRIEND XXN MR FERGUSON

PN1518

JUSTICE ROSS: Any re-examination?

PN1519

MS DOUST: No, your Honour.

PN1520

JUSTICE ROSS: Thank you, Mr Friend, for your evidence.

<THE WITNESS WITHDREW [10.45 AM]

PN1521

So we've got Mr Steiner by phone at 11.00, is that right?

PN1522

MR ROBSON: No, he's in the Newcastle Commission.

PN1523

JUSTICE ROSS: He's there now?

PN1524

MR ROBSON: Yes. Will there be someone in the Commission coming to get Mr Steiner?

PN1525

THE ASSOCIATE: Yes.

PN1526

MR ROBSON: Excellent. Good.

PN1527

JUSTICE ROSS: I hope so, otherwise we'll be waiting for a while.

PN1528

MR ROBSON: I've got his phone number. We won't have to wait too long. Hello, Mr Steiner, just to identify myself, my name is Michael Robson. I'm an industrial officer of the Australian Services Union. I know it's difficult doing these things by video link. Can you hear me?

PN1529

MR STEINER: Yes.

PN1530

MR ROBSON: Excellent. Could we have the volume turned up in here, please?

PN1531

JUSTICE ROSS: Yes. All right, we'll just swear the witness in.

PN1532

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

*** CHRISTOPHER FRIEND XXN MR FERGUSON

PN1533

MR STEINER: Robert James Steiner, (address supplied).

<ROBERT JAMES STEINER, AFFIRMED [10.47 AM]

EXAMINATION-IN-CHIEF BY MR ROBSON [10.47 AM]

PN1534

JUSTICE ROSS: Can you just speak into the microphone a little bit closer, Mr Steiner? Thanks?‑‑‑Is that better?

PN1535

It is, thank you.

PN1536

MR ROBSON: Mr Steiner, you've made a statement in these proceedings dated 15 October?‑‑‑Yes.

PN1537

And there is one correction you'd like to make to your statement?‑‑‑Yes.

PN1538

With permission to lead, sir?

PN1539

JUSTICE ROSS: Sure.

PN1540

MR ROBSON: Very brief. Paragraph 8, you say that you commenced work with Butter Fish Services on 17 October 2017?‑‑‑Yes.

PN1541

You finished working for Butter Fish Services on 29 August 2019?‑‑‑Yes.

PN1542

And so that means your statement which is presented in the present tense, should be read in the past tense?‑‑‑Yes.

PN1543

Thank you.

PN1544

JUSTICE ROSS: I'm just having a bit of trouble hearing you, Mr Steiner. Can you just lean closer to that microphone? We'll try and turn up the volume at our end?‑‑‑Is that better?

PN1545

Not really, but okay. All right, go on.

PN1546

MR ROBSON: Do you have that statement in front of you?‑‑‑Yes.

*** ROBERT JAMES STEINER XN MR ROBSON

PN1547

And with those corrections is your statement true and correct?‑‑‑Yes.

PN1548

I tender that statement, your Honour.

PN1549

JUSTICE ROSS: I'll mark that exhibit ASU2.

EXHIBIT #ASU2 STATEMENT OF ROBERT STEINER DATED 15/10/2019

PN1550

Cross-examination?

CROSS-EXAMINATION BY MR FERGUSON [10.49 AM]

PN1551

MR FERGUSON: Mr Steiner, my name is Mr Ferguson and I represent the Australian Industry Group. Can you hear me?‑‑‑Yes.

PN1552

Mr Steiner, you sometimes work with clients that have very challenging psychosocial disabilities, don't you?‑‑‑Yes.

PN1553

And do you typically work with individual clients on an ongoing basis?‑‑‑Yes.

PN1554

Is it the case then that you're the regular support worker for those clients?‑‑‑In most cases, yes.

PN1555

Is this level of consistency important in the context of clients with psychosocial disabilities?‑‑‑Yes.

PN1556

And why is that?‑‑‑To keep consistency, so then they're used to that person, they get used to, like our routine.

PN1557

Yes?‑‑‑So someone who doesn't come in and change things.

PN1558

Yes?‑‑‑Then it kind of breaks up the order of how everything is done.

PN1559

Yes. Is it also so that you develop an understanding of their needs?‑‑‑Yes.

*** ROBERT JAMES STEINER XXN MR FERGUSON

PN1560

And does that level of consistency assist you to do your job more effectively?‑‑‑Yes.

PN1561

And more efficiently?‑‑‑Yes.

PN1562

I want to take you to paragraph 15 of your amended statement. I can see that you often work broken shifts. Do you sometimes work with the same client both before and after the break in the shift?‑‑‑Most of the time. It depends, as I usually have other clients that I'd go to, as well. So I might start with just one client, go to another and then come back in the afternoon.

PN1563

When you say, come back, you might come back to that first client in the afternoon?‑‑‑Yes.

PN1564

Right, so you deal with the same client at different points in the day?‑‑‑Yes.

PN1565

And why do you need to assist that same client at different points in the day?‑‑‑Because there just may not be other staff to fill that shift.

PN1566

But are there reasons why that client needs assistance at different points in the day, different types of assistance?‑‑‑To do with their support plan, so usually medication, help them with dinner, et cetera.

PN1567

Right, so can I take it that there are things they need help with at different times of the day?‑‑‑Yes.

PN1568

Yes. And for the reasons you've said before do you understand that it's important that you be the consistent carer to provide that assistance at different points in the day?‑‑‑Yes.

PN1569

I see from paragraph 15 of your statement and the table you there set out that you sometimes have very large gaps in the course of your day. I'll take you, for example, to Wednesday, 2 January. I understand you have a gap of almost – almost, eight hours, don't you, on that day?‑‑‑Yes.

PN1570

Am I right that when you have a significant gap in your day that you sometimes undertake non work related activities during that gap?‑‑‑Yes.

*** ROBERT JAMES STEINER XXN MR FERGUSON

PN1571

Yes, and that sometimes you go to locations other than your client's premises during that gap?‑‑‑Most of the time if it's not a very large gap, depending on where I'm going, I'll just wait, as there's no point in me going somewhere and then having to go right back.

PN1572

But if it's a large gap you might go someone else rather than travel directly between clients, is that right?‑‑‑Yes.

PN1573

And does traffic ever affect how long it takes you to get to a client?‑‑‑Yes.

PN1574

Would you agree with me that you can never know with certainty how long it will actually take you to travel between clients?‑‑‑Yes.

PN1575

Thank you, no further questions.

PN1576

MR SCOTT: Your Honour, can I just ask one question?

PN1577

JUSTICE ROSS: Sure.

CROSS-EXAMINATION BY MR SCOTT [10.54 AM]

PN1578

MR SCOTT: Mr Steiner, my name's Mr Scott. I represent four employer associations in these proceedings. Can you hear me okay?‑‑‑Yes.

PN1579

Can I just take you to paragraph 14, you were asked some questions about that. Have you got that in front of you?‑‑‑Yes.

PN1580

So you're referring to broken shifts and the last sentence there indicates, 'My employer,' or your now former employer, does not pay you for the time you spend travelling between work locations?‑‑‑Yes.

PN1581

If you were compensated in the form of an allowance would that alleviate your concern?

PN1582

MR ROBSON: Objection. I suppose, how is he to know what the allowance is, what the proposal would be? If there is a specific proposal it should be put to the client. If he doesn't have it in writing he is no able to make a judgment about it on the fly.

*** ROBERT JAMES STEINER XXN MR SCOTT

PN1583

MR SCOTT: I'm relaxed, I'm happy not to press the question but I mean, subject – I'm in the hands of the Commission as to whether it assists.

PN1584

JUSTICE ROSS: You can ask the question and see if the witness has any questions then he'll ask you. Now no doubt he knows what those questions are.

PN1585

MR SCOTT: Mr Steiner, I'll re-ask that question. You indicate that you are not paid for the time you spend travelling between work locations during a broken shift, or in the gap between a broken shift and my question was, if you were compensated in the form of an allowance would that alleviate your concerns?‑‑‑Yes, in some cases, yes. Because in some cases they only amount for so far. For example, if I have to drive, say from Newcastle to Singleton, they won't pay the full length.

PN1586

Sorry, I'm not sure I understand you. Can you just explain what you mean by that? So you said - - -?‑‑‑So, for example - - -

PN1587

So you said – sorry, I'll try and assist. You said that that will alleviate your concern in some cases but it may not alleviate the concern in other cases, and you referred to a long distance of travel. Can you - - -

PN1588

MR ROBSON: I think this is only confusing the witness.

PN1589

MR SCOTT: I'm only trying to make it easier.

PN1590

MR ROBSON: I think the witness has got it confused between perhaps an ABI proposal and the travel allowance payable under the award.

PN1591

MR SCOTT: I'm not asking him that.

PN1592

MR ROBSON: I'm not sure the witness knows what he's being asked.

PN1593

JUSTICE ROSS: You can re-put the question. You can clean up this in re-examination so - - -

PN1594

MR ROBSON: It will need cleaning up, potentially.

*** ROBERT JAMES STEINER XXN MR SCOTT

PN1595

MR SCOTT: So, I apologise, Mr Steiner. You indicated that an allowance would alleviate your concern in some cases but not in others. Could you please explain what you mean by that?‑‑‑Like I was saying just before, say for example, I'm in Newcastle and I have to work in Singleton which is over an hour away, it's, I don't know, being, I think about 84 kilometres away, roughly - - -

PN1596

Yes?‑‑‑And my employer wouldn't pay, you know, the full distance because it's such a long distance. So I'm out of pocket quite a fair bit.

PN1597

And on that, are you saying your employer did not previously pay the full distance, or are you saying they would not pay the full distance?

PN1598

JUSTICE ROSS: Can you clarify whether it's payment for the car allowance or whether it's payment for the time?‑‑‑They only - - -

PN1599

MR SCOTT: Well - - -?‑‑‑Sorry.

PN1600

No, you go, please?‑‑‑So it's only like, they only pay for a certain amount of kilometres.

PN1601

So are you referring to a kilometre allowance that was paid to you whilst you were employed?‑‑‑Yes.

PN1602

If an allowance was paid to you which was equivalent to the ordinary hourly rate for the time you spend travelling between a broken shift, would that alleviate your concerns about unpaid travel time?

PN1603

JUSTICE ROSS: Would that allowance also be paid in addition to the kilometre allowance, for the use of the private vehicle?

PN1604

MR SCOTT: And that allowance would be payable on top of the kilometre allowance reimbursing you for vehicle costs.

PN1605

MS DOUST: I object.

PN1606

MR SCOTT: I'm – I'm - - -

PN1607

MS DOUST: Sorry - - -

*** ROBERT JAMES STEINER XXN MR SCOTT

PN1608

MR SCOTT: I'm happy not to press it, to be honest.

PN1609

JUSTICE ROSS: All right, that's fine.

PN1610

MR SCOTT: I mean, I'm happy. Sorry, Mr Steiner, no further questions. Thank you and I apologise.

PN1611

JUSTICE ROSS: Any re-examination?

RE-EXAMINATION BY MR ROBSON [10.58 AM]

PN1612

MR ROBSON: You were asked by Mr Ferguson from the AIG about your statement at paragraph 15. You were asked why you might be rostered to return to a client later in the day?‑‑‑Yes.

PN1613

Can you tell us why that would be?‑‑‑Because I'd have, say I'm with my main client in the morning, then I may have to go to another client during the day while someone else fills in that dayshift, and then I'd have to come back later on because our day time staff won't be able to do a nightshift so they've got kids, or something.

PN1614

Thank you.

PN1615

JUSTICE ROSS: Nothing further? Thank you for your evidence, Mr Steiner, you're excused.

<THE WITNESS WITHDREW [10.58 AM]

PN1616

JUSTICE ROSS: All right, what do you want to deal with now?

PN1617

MR SCOTT: I think it's proposed that we deal with objections to the remaining evidence and then the tendering of statements for witnesses who were not required for cross-examination.

PN1618

JUSTICE ROSS: Just bear with me for a moment. Let's start with the Thursday witnesses, bearing in mind what I've said about Dr Stanford, so, Miller?

PN1619

MS DOUST: Yes. I'm sorry, I had some objections to Mr Miller.

*** ROBERT JAMES STEINER RXN MR ROBSON

PN1620

JUSTICE ROSS: Yes.

PN1621

MS DOUST: Can I hand up a list of - - -

PN1622

JUSTICE ROSS: Have you discussed these with the other side?

PN1623

MS DOUST: I've certainly sent them on as I'm informed, to Mr Scott who has the bulk of the witnesses, and I'm told some objections were sent to Mr Pegg but he seems to be in the dark about that.

PN1624

MR SCOTT: Mr Miller is one of the NDS witnesses and I understand that Mr Pegg hasn't seen the objection so it may be that we can park him for a moment and Mr Pegg can have regard to that.

PN1625

JUSTICE ROSS: Yes, I think we should. That's fine.

PN1626

MS DOUST: So there was an old email address that was used and so that's why he hasn't - - -

PN1627

JUSTICE ROSS: That's fine. So we've got Mathewson?

PN1628

MS DOUST: Might I hand up the schedule. It deals with all the other witnesses, as well, your Honour.

PN1629

JUSTICE ROSS: Yes. Who's got Mathewson and Wright, who are those - - -

PN1630

MR SCOTT: They're our witnesses, your Honour.

PN1631

JUSTICE ROSS: All right. Mathewson, it's in relation to attachment C?

PN1632

MS DOUST: Yes.

PN1633

JUSTICE ROSS: What page is that at – attachment C is the seventh report on the funding and financing of the aged care sector.

PN1634

MS DOUST: That's his summary of the report which is at attachment B.

PN1635

JUSTICE ROSS: I see.

PN1636

MS DOUST: And so it's not evidence, as such.

PN1637

JUSTICE ROSS: No. Well, if you want to summarise the report you can do that in a submission.

PN1638

MR SCOTT: Sorry, your Honour, just bear with me.

PN1639

JUSTICE ROSS: I think the summary starts at page 457, if that helps. And the report itself is the attachment B.

PN1640

MR SCOTT: I must admit, I'm unclear as to what part of the statement is objected to. I understand that paragraph - - -

PN1641

JUSTICE ROSS: It's attachment C.

PN1642

MR SCOTT: Well, paragraph 74 of the statement indicates that the organisation prepared a summary document. It's attached. We accept that the document itself is not evidence. It purports to be a summary. I think the witness can be cross-examined if there's issues with the apparent accuracy of the document. Otherwise it can be treated as a submission.

PN1643

JUSTICE ROSS: Yes. Because we've got the full report so - - -

PN1644

MR SCOTT: Yes.

PN1645

JUSTICE ROSS: And parties can summarise the report in whatever way they want or highlight different bits.

PN1646

MR SCOTT: I'm content for that.

PN1647

JUSTICE ROSS: Bearing in mind witnesses give evidence as to facts, what's – they've done a summary but – yes.

PN1648

MR SCOTT: It's been provided to assist the parties and the Bench to potentially not have to read them hundred and something page report that - - -

PN1649

JUSTICE ROSS: No, I've got a feeling that we're not going to be able to avoid reading the reports.

PN1650

MR SCOTT: But we're content if the document is admitted as an attachment but treated as a submission. It's no different to any other report that's been tendered in these proceedings, albeit that it's been attached to a statement.

PN1651

JUSTICE ROSS: There's no problem with attaching the report. The issue is attaching the summary. And the summary is the submission. That's what's being put against you.

PN1652

MR SCOTT: If it doesn't assist the Commission then we don't have any issue with it coming out.

PN1653

JUSTICE ROSS: All right. We'll just take out attachment C. Is there anything else in relation to that witness?

PN1654

MS DOUST: I'm sorry, can I just clarify the ruling. It's being admitted or taken as a submission?

PN1655

JUSTICE ROSS: No, no.

PN1656

MS DOUST: I'm sorry, I think your Honour said, 'take out.'

PN1657

JUSTICE ROSS: Yes.

PN1658

MS DOUST: I'm sorry, I've misheard that.

PN1659

JUSTICE ROSS: Yes.

PN1660

MR SCOTT: Yes, the attachment.

PN1661

JUSTICE ROSS: Right. Paragraph 17? Well, it's a bit late for the union to be objecting to hearsay, given most of your statements are full of hearsay and we've allowed that. What's the problem with this particular bit?

PN1662

MS DOUST: It's in a different category. The union obviously represents its members and so - - -

PN1663

JUSTICE ROSS: Sure.

PN1664

MS DOUST: Informs the Commission about the attitude of its members.

PN1665

JUSTICE ROSS: Right.

PN1666

MS DOUST: So far as the employer purports to speak for the interests of its employees - - -

PN1667

JUSTICE ROSS: Yes, I follow. All right.

PN1668

MS DOUST: We think they're in a different category.

PN1669

JUSTICE ROSS: Yes.

PN1670

MS DOUST: And if this party wished to educe some evidence about the interest of the employees it was open to it to call some employees.

PN1671

JUSTICE ROSS: Yes. Yes.

PN1672

MR SCOTT: We say it's in the same category of material which was ruled this morning that it be admitted, subject to weight. It may be that - - -

PN1673

JUSTICE ROSS: Well, except as has been pointed out, the material this morning was members reporting to an official, their experience – the official, rather, giving evidence about what's been reported by their members.

PN1674

MR SCOTT: Well - - -

PN1675

JUSTICE ROSS: That's not what this says. It's not saying, employees have approached me, saying, you know, type of thing.

PN1676

MR SCOTT: If there could be permission to ask the question, the basis for it, I'm content to do that. It's clearly hearsay. It's a summary of undoubtedly discussions that the employer would have had with the employee, which would be no different to discussions between an employee and a union representative. Perhaps the content is different. But the witness is in a position to give evidence about the availability or the position of employees as reported to him. And we say it's relevant. We say it will assist the Commission and the witness should be given the opportunity to explain the basis for it.

PN1677

JUSTICE ROSS: All right, you'll be given the opportunity to ask a question in chief about the basis for it and he'll be cross-examined on that.

PN1678

MR SCOTT: If the Commission pleases.

PN1679

JUSTICE ROSS: Any other - - -

PN1680

MS DOUST: Paragraph 31 of that statement, your Honour, can I just make the submission about the nature of this objection. It's this, and this is something that appears in a number of the witness statements. There are predictions about dire consequences if particular claims are allowed, in particular about the dire financial consequences. Now because of those statements in the witness statements the union's undertook, or at least, the HSU and United Voice, undertook a process of requesting from the ABI information about the financial position of the various employers whose officers have given evidence in the proceeding with a view to testing the opinion that's posited.

PN1681

JUSTICE ROSS: Yes.

PN1682

MS DOUST: That request for information was rejected and we weren't provided – and in any event it is customary if one wants to venture an opinion, to set out in the statement itself, the very facts upon which that is based so that one is in a position to assess whether or not the opinion is valid. So the category that it falls into now is just pure unsubstantiated assertion which is unable to be grappled with because the underlying facts aren't disclosed.

PN1683

MR SCOTT: I mean, without wanting to suggest that there's some higher expectation on witnesses from employers, but it's no different to vast tranches of evidence that's been accepted in these proceedings from employees. It's a matter that goes to weight, we say, that if the witness says this it would have a significant impact on the business but doesn't provide any data or otherwise to substantiate that. Well, it may be that the Commission determines weight appropriately. It may be that the Commission wishes to ask the witness about it. It may be that my friend wishes to ask the Commission(sic) about it. But we accept it's a matter for weight and it should be admitted.

PN1684

MS DOUST: With respect, just in response to that, it's not, I say, satisfactory for me to have to try and cross-examine a witness without the underlying facts with which to test the opinion. My friend simply suggests that I grope around in the dark while this witness is in the box, without any of the factual basis for the opinion, and with respect, that's not my job to do.

PN1685

JUSTICE ROSS: We propose to allow the paragraph. We'd make the observation that in the absence of a factual basis we would give little weight to the statement.

PN1686

MR SCOTT: That part of the statement, your Honour?

PN1687

JUSTICE ROSS: Yes. That's it? That's it in relation to Wright?

PN1688

MS DOUST: That's so.

PN1689

JUSTICE ROSS: All right. So we've dealt with Mathewson and Wright. We're leaving Miller for the moment.

PN1690

MS DOUST: Shanahan is the next one, I think.

PN1691

JUSTICE ROSS: Yes.

PN1692

MS DOUST: This arises because - the Bench will see that the witness says that there's a monthly report of cancellations and the reasons. The reports for the months of March, April and May are attached and marked, attachment A.

PN1693

JUSTICE ROSS: Yes.

PN1694

MS DOUST: But what we have is not in fact the reports that are described, like a monthly report of the cancellation and the reasons, but in fact there is some other table with some numbers and asserted monetary cost - - -

PN1695

JUSTICE ROSS: Yes.

PN1696

MS DOUST: The basis upon which that it's been put together is not apparent. But again the factual basis is not disclosed.

PN1697

JUSTICE ROSS: Yes. Can the witness provide the monthly report of the cancellations and the reasons?

PN1698

MR SCOTT: I must admit my understanding was that that was the monthly report.

PN1699

JUSTICE ROSS: That doesn't - - -

PN1700

MR SCOTT: I accept that. I accept that.

PN1701

JUSTICE ROSS: I don't see how that assists us, so - - -

PN1702

MR SCOTT: I accept that. It may be that permission to clarify with the witness what the monthly report is, whether the business is prepared to produce it – but we say this is no different to the last objection that was just ruled upon, and it was left it, albeit – so there's an assertion there that the company experiences client cancellations on a regular basis. It's been supported with some data.

PN1703

JUSTICE ROSS: It's not so much that assertion, it's the – the first two sentences, okay, but what's attachment A?

PN1704

MR SCOTT: The witness indicates that it's reports for the months of - - -

PN1705

JUSTICE ROSS: Yes but - - -

PN1706

MR SCOTT: Of certain months. It either is, or it is not. I'm not sure.

PN1707

MS DOUST: If it's accepted that it may not be, then I don't see that there could be any basis for the tender of the document.

PN1708

MR SCOTT: Yes, well, I'm not in a position to suggest that it may not be because I can only go on the witness' evidence.

PN1709

JUSTICE ROSS: Have you had a discussion about these with each other?

PN1710

MR SCOTT: No, we haven't but - - -

PN1711

JUSTICE ROSS: Well, then what are you bringing it to us for?

PN1712

MR SCOTT: Well - - -

PN1713

JUSTICE ROSS: Go and have a discussion about it and then come back and sort out what the issues are. If you haven't had the direct discussion where it's put to you what the problem is and you can try and sort it out, then what's the point of having a discussion before us?

PN1714

MR SCOTT: I'm happy to do that, your Honour.

PN1715

JUSTICE ROSS: Yes, I think that's the most efficient way of dealing with it.

PN1716

MR SCOTT: Yes.

PN1717

JUSTICE ROSS: It's the same with Mr Pegg. Have a discussion with him.

PN1718

MS DOUST: Yes.

PN1719

JUSTICE ROSS: Put your concerns directly and if there's a way of dealing with it then deal with it.

PN1720

MS DOUST: I appreciate that, your Honour.

PN1721

JUSTICE ROSS: Yes.

PN1722

MS DOUST: We had sent out the objections some time ago. Unfortunately Mr Pegg was missed but we also - - -

PN1723

JUSTICE ROSS: No, no, I understand that.

PN1724

MS DOUST: Yes.

PN1725

JUSTICE ROSS: But it's not just the – it's the same with the employers and Dr Stanford.

PN1726

MS DOUST: Yes.

PN1727

JUSTICE ROSS: They should put them to you, have the conversation between yourselves, and see if you can sort something out.

PN1728

MS DOUST: Yes.

PN1729

JUSTICE ROSS: Otherwise it just becomes a zero sum game and it's – it's either in or it's not in. But can I say about A, that attachment A doesn't really, from my perspective, help me because I've got no idea what it's about.

PN1730

MR SCOTT: Well - - -

PN1731

JUSTICE ROSS: I'm interested in how many cancellations were there in a month and what were the reasons. If you've got a report about that, sure. That material is actually contained in the substance of a number of other employer witnesses but you know, this one, there's no basis for the calculations so you - - -

PN1732

MR SCOTT: I accept that the report is not what it could be.

PN1733

JUSTICE ROSS: All right. Have you had any discussion about the rest of the witnesses? No?

PN1734

MR SCOTT: No.

PN1735

JUSTICE ROSS: All right.

PN1736

MR SCOTT: To be honest, no.

PN1737

JUSTICE ROSS: Then go away and do that and we'll deal with them at the beginning of the day on their evidence. Tendering of material? Just before you get to that, there were some witnesses that – two matters. I wanted to put you on notice so you can ask your witness and they can have the material. Wendy Mason, can I take you to that statement?

PN1738

MR SCOTT: Yes, your Honour.

PN1739

JUSTICE ROSS: If you go to paragraph 25.

PN1740

MR SCOTT: Yes.

PN1741

JUSTICE ROSS: It says there are 980 employed under the – well, essentially if they weren't under the agreement they would otherwise be covered by the SCHADS award.

PN1742

MR SCOTT: Yes.

PN1743

JUSTICE ROSS: Can we get a breakdown of those 980 by employment type?

PN1744

MR SCOTT: We can endeavour to do that.

PN1745

JUSTICE ROSS: Then a question at paragraph 63. It says, 'The majority of our shifts are less than three hours.' I'm just not sure what is meant by a shift in that sense. And at paragraphs 70 and 71 it talks about the company's home services rostering guidelines and the aim is to minimise the number of breaks or work periods during the broken shift.

PN1746

MR SCOTT: Yes.

PN1747

JUSTICE ROSS: The same comment's made in 79.

PN1748

MR SCOTT: Sorry, your Honour - - -

PN1749

JUSTICE ROSS: It's 71, sorry, 71.

PN1750

MR SCOTT: Yes.

PN1751

JUSTICE ROSS: 'The objective of scheduling home care employees with lots of work wherever possible.'

PN1752

MR SCOTT: Yes.

PN1753

JUSTICE ROSS: My question is really, well, that sets out the guidelines and what the objective is. What's the reality? So in practice how many breaks are there typically in a broken shift, what does it look like? Because having a policy position is sort of one thing, but how does it work, bearing in mind there are a significant number of broken shifts by this employer.

PN1754

MR SCOTT: Yes.

PN1755

JUSTICE ROSS: In the month of May there were 1500.

PN1756

MR SCOTT: Yes.

PN1757

JUSTICE ROSS: Nearly 1600 broken shifts. So I just want to – I appreciate that it might be more in the way of, these are the examples and this is the common pattern, or something like that.

PN1758

MR SCOTT: Yes.

PN1759

JUSTICE ROSS: Then if we go to Joyce Wang, whose witness is that?

PN1760

MS DOUST: ABI's.

PN1761

MR SCOTT: That's ABI's witness, your Honour.

PN1762

JUSTICE ROSS: All right.

PN1763

MR SCOTT: Yes, your Honour.

PN1764

JUSTICE ROSS: It's at paragraphs 65 to 67.

PN1765

MR SCOTT: Yes, your Honour.

PN1766

JUSTICE ROSS: A similar issue here, that here you have somewhere between 80 and a hundred per cent, or 99 per cent of workers working broken shifts.

PN1767

MR SCOTT: Yes.

PN1768

JUSTICE ROSS: And the question there is, well, what's the nature of those broken shifts, how many breaks, is it morning and evening, or is it some other – and, look, it will save me – I can ask the witness and the witness then would – you know, might be then put to the trouble of putting something in later subject to further cross-examination. It would be better if it was dealt with in advance.

PN1769

MR SCOTT: I will endeavour to do that. I'm just not sure whether the witness is going to be able to provide any hard data within the timeframe.

PN1770

JUSTICE ROSS: No, no, that's fine. But let's see how we go.

PN1771

MR SCOTT: We'll do our best.

PN1772

JUSTICE ROSS: Look, there are two other things I'm struggling with having read the material that – because the witness has described it differently. I won't take you through where, I've got a note of it somewhere – this is employer witnesses, describe in different terms the NDIS position in relation to the recovery of monies where there are cancellations.

PN1773

MR SCOTT: Can I just address your Honour because I think it will assist.

PN1774

JUSTICE ROSS: Yes.

PN1775

MR SCOTT: Most of the witness statement, if not all of our ABI witness statements were before the date of the change.

PN1776

JUSTICE ROSS: No, no, I appreciate that.

PN1777

MR SCOTT: So - - -

PN1778

JUSTICE ROSS: Yes but I can – let me just - - -

PN1779

MR SCOTT: Sorry, I may have jumped up too soon.

PN1780

JUSTICE ROSS: No, no. So what I'm interested in is a joint statement from both the union's and employer groups about what is the current position under the NDIS pricing arrangement in relation to cancellations.

PN1781

MR SCOTT: We may be able to circumvent that because I think the rules under the NDIS are very clear. They are outlined in the NDIS price guide. There's a page or two outlining the cancellation - - -

PN1782

JUSTICE ROSS: Well, can you agree about which is the part of the price guide that - - -

PN1783

MR SCOTT: Yes.

PN1784

JUSTICE ROSS: Because what I don't intend to do is wade through all the material, come to a view of it and then find out that you both disagree about how it works.

PN1785

MR SCOTT: Yes.

PN1786

JUSTICE ROSS: The other thing is, in the NDIS price guidelines is it the case that despite the fact that a service provided might be half an hour or 40 minutes, you are able to recover one hour, it's a one hour minimum. Is that right, or not?

PN1787

MR SCOTT: I'm not aware of any minimums in terms of minimum service.

PN1788

JUSTICE ROSS: The witness statements suggest that they are so - - -

PN1789

MR SCOTT: My understanding of the witness' evidence and it can be clarified - - -

PN1790

JUSTICE ROSS: No, no, I don't want to clarify it from one witness. That's only one witness' understanding. What I want to clarify it from is the parties. What do the parties say about that? Frankly, a witness doesn't help me about their interpretation of the guidelines. Because who cares, frankly, what one witness thinks they mean?

PN1791

MR SCOTT: Yes. Can I indicate that my understanding is that where witnesses are saying that, it's a policy that that employer or that service provider has adopted that they will say, if you want to accept service from us and you want us to provide you services under your NDIS plan, we will not deliver services of less than one hour.

PN1792

JUSTICE ROSS: Yes. No, that's what some of them say. Some of them, it's not clear. But my short point is, under the pricing arrangements, if you provide a service that's 45 minutes or so, can you only charge 45 minutes, with respect. Yes, Mr Pegg?

PN1793

MR PEGG: Your Honour, I think we should be able to - - -

PN1794

JUSTICE ROSS: I suspect you're the only one here that's going to know the answer to this, so I'm glad you've stood up.

PN1795

MR PEGG: I don't personally know the answer but I'm confident we can provide an answer fairly quickly.

PN1796

JUSTICE ROSS: All right, thank you. Anything else? Tendering, do we want to get to that?

PN1797

MS DOUST: I'm happy to run through mine, your Honour, if it's convenient.

PN1798

JUSTICE ROSS: Sure.

PN1799

MR FERGUSON: The only issue I might say is there are a number of witnesses who weren't going to be required for cross. We've raised objections and advised the Melbourne unions about those but not in all instances have we had a discussion (indistinct).

PN1800

JUSTICE ROSS: Well, we'll have a discussion and we'll deal with it.

PN1801

MR FERGUSON: Yes. That's all I was going to suggest, if there was an adjournment we could do that. The other thing that we need to deal with potentially today is the timetable of directions for the dealing with the matter going forward. I know we've had a proposal and we've advanced it but we haven't had a discussion about that. If there's an adjournment, that's in terms of dealing with it next week.

PN1802

JUSTICE ROSS: What sort of an adjournment are you suggesting?

PN1803

MR FERGUSON: Well, I was thinking with half an hour we might see whether we can make progress. I'm happy to just deal with the objections as we go but I'm just mindful of what you said earlier, your Honour, and - - -

PN1804

JUSTICE ROSS: I think we'll just deal with the tendering, then we'll adjourn for the day and you can have whatever discussions you want to have and let us know where you're up to tomorrow.

PN1805

MR FERGUSON: That's fine. Yes.

PN1806

MR BULL: Your Honour, just before we move onto another matter - - -

PN1807

JUSTICE ROSS: Yes.

PN1808

MR BULL: You've outlined two broad general issues in relation to NDIS. Is it worthwhile to also clarify those two broad issues in relation to home care?

PN1809

JUSTICE ROSS: Yes. Yes.

PN1810

MR BULL: Because I think that would alleviate a lot of redundant cross-examination and so forth.

PN1811

JUSTICE ROSS: Yes. Yes. Yes. Yes, it would, yes.

PN1812

MR BULL: So we'll endeavour to do that.

PN1813

JUSTICE ROSS: Yes. And look, as we go back through all the material we may have other questions about how they operate. At one point I did contemplate just issuing a summons to someone in one of these agencies but from past experience the answers probably weren't going to be that helpful. So it's better if we identify what issues or confusion we have about how these arrangements operate, put them to the parties and give you an opportunity to comment on. All right, tender?

PN1814

MS DOUST: Yes.

PN1815

JUSTICE ROSS: Do you have a list of the material that you want to tender?

PN1816

MS DOUST: I'm sorry, your Honour, I don't.

PN1817

JUSTICE ROSS: That's all right.

PN1818

MS DOUST: I've only got handwritten ones.

PN1819

JUSTICE ROSS: That's fine, then just – we won't do it now but just make a list and hand it up.

PN1820

MS DOUST: Yes.

PN1821

JUSTICE ROSS: And show the list to the other side, see if there are any issues with it and we'll deal with it that way.

PN1822

MS DOUST: Yes.

PN1823

JUSTICE ROSS: Have you got the same thing, Mr Scott? Have you got a list of things? Do you have a list?

PN1824

MR SCOTT: No, I don't, your Honour.

PN1825

JUSTICE ROSS: All right, that's fine. Anyone else who wants to tender anything, get a list, exchange it to the other side, sort out any issues with it and then just hand it up at the commencement. And you know where you're up to in your exhibit numbers. HSU, you next exhibit would be 6, so just assign proposed exhibit numbers for the material you want to put in. The ASU is up to 2. I think ABI, your next one would be your second – sorry, the ASU, your next exhibit will be 3. United Voice's next exhibit would be exhibit 7. Ai Group's would be exhibit 2. Do you have a problem, Ms Doust?

PN1826

MS DOUST: Just checking on the numbering, your Honour. We had a different - - -

PN1827

JUSTICE ROSS: Yes, well, HSU5 was - - -

PN1828

MS DOUST: Was Mr Friend.

PN1829

JUSTICE ROSS: Yes.

PN1830

MS DOUST: Yes.

PN1831

JUSTICE ROSS: Well, the parts of Mr Friend's statement not read, yes.

PN1832

MS DOUST: And I think I asked your Honour whether the schedule might be marked.

PN1833

JUSTICE ROSS: The schedule?

PN1834

MS DOUST: The schedule of parts not read might be marked for identification.

PN1835

JUSTICE ROSS: No, no, I did mark that as exhibit HSU5.

PN1836

MS DOUST: That's part of the - - -

PN1837

JUSTICE ROSS: Yes. HSU4 was his statement, and 5, the bits not read.

PN1838

MS DOUST: I apologise. I'm – sorry.

PN1839

JUSTICE ROSS: No, no, that's right. Mr Robson?

PN1840

MR ROBSON: The only thing we want to tender is the material in the court book. We should just mark those.

PN1841

JUSTICE ROSS: You don't need to tender the material in the court book.

PN1842

MR ROBSON: All right.

PN1843

MS DOUST: I'm sorry, your Honour. I think Ms Waddell might have also got a HSU4 marking, her statement.

PN1844

JUSTICE ROSS: Yes, you're quite right. So that would mean we'd make the statement of Mr Friend 5, and the parts of his statement not read, 6.

EXHIBIT #HSU6 PARTS OF CHRISTOPHER FRIEND'S STATEMENT NOT READ

PN1845

MS DOUST: Thank you, your Honour.

PN1846

JUSTICE ROSS: That's all right. Anything else?

PN1847

MS DOUST: No. I'm just not sure whether your Honour was proposing that we just go away and prepare a list of the documents to tender and - - -

PN1848

JUSTICE ROSS: Yes, that's what I was proposing, yes.

PN1849

MS DOUST: That that be in substitution of a physical process now?

PN1850

JUSTICE ROSS: That's right.

PN1851

MS DOUST: Yes.

PN1852

JUSTICE ROSS: Because nobody else knows what you want to tender, presumably, and you might have sent it through, an email, earlier but - - -

PN1853

MS DOUST: Yes.

PN1854

JUSTICE ROSS: It's like most of these things. People will have forgotten about it. So it's best if each of you who want to tender something prepare a list, assign exhibit numbers based on what we have told you, exchange it, have a conversation about it and sort out the issues in relation to it.

PN1855

MS DOUST: Yes. I understand that, your Honour.

PN1856

JUSTICE ROSS: There is only one issue that might be separate from that, and that's ABI's amended variation proposal.

PN1857

MR SCOTT: Yes. If convenient, your Honour, we've foreshadowed seeking leave to file an amended draft determination. I had copies available yesterday, albeit not marked up or track changed. An amended draft determination was filed and served yesterday evening. Does your Honours have a copy?

PN1858

JUSTICE ROSS: No, but is there any objection to the amended draft determination?

PN1859

MS DOUST: I understood my friend was going to send us something marked up so that we could identify readily how this differed. Your Honour, I ordinarily wouldn't expect there'd be any issue with this provided if falls within the general scope of ABI's case generally. If it's just simply a drafting matter I would have thought that's something we can deal with.

PN1860

JUSTICE ROSS: Sure.

PN1861

MS DOUST: The only problem that I anticipate is that if it's something that's completely out of left field that we might have addressed with witnesses and were denied that opportunity.

PN1862

JUSTICE ROSS: Yes. You won't be denied the opportunity to recall the witnesses and put it to them, so yes.

PN1863

MS DOUST: And I don't have any basis to think that that would be the case. That's the only difficulty I - - -

PN1864

JUSTICE ROSS: No, no, that's fine. We'll have a look at it and we'll deal with it in the morning.

PN1865

MS DOUST: Might we confer along with the other material?

PN1866

JUSTICE ROSS: Sure. Sure, we'll do that. Any other questions? All right, in relation to, in particular, Dr Stanford's evidence, the employers were going to put together a composite document with the objections. You can send that through this afternoon, send it to the other side, have a discussion with the other side, as well, but we just want an opportunity to look at the objections and look at the statement because it's quite a lengthy statement. All right, anything further? Yes, Mr Pegg?

PN1867

MR PEGG: Just quickly. I might have missed it but our witness, David Moody, is not required for cross-examination. There were some objections from the ASU that we've discussed and resolved. I don't know if now is an appropriate time to simply - - -

PN1868

JUSTICE ROSS: They've been resolved?

PN1869

MR PEGG: They're been resolved.

PN1870

JUSTICE ROSS: Well, perhaps if it's taking bits out of the statement or something like that, the easiest course may be just to file a fresh statement reflecting the agreement, if you could do that?

PN1871

MR PEGG: I'll attempt to. The witness is in New Zealand today but - - -

PN1872

JUSTICE ROSS: I see. Yes, all right. Well, just - - -

PN1873

MR PEGG: I can perhaps provide simply a list of the paragraphs that have been (indistinct).

PN1874

JUSTICE ROSS: That's fine, yes, in the same way as Ms Doust did about the paragraphs not read in that statement. No, that's fine.

PN1875

MR PEGG: Thank you.

PN1876

JUSTICE ROSS: Is everyone clear about what we're doing? If you've got a question, ask it now. Don't come up tomorrow and say I wasn't sure. Let me – no, no, I'll run through it quickly.

PN1877

MS DOUST: No, no, I - - -

PN1878

JUSTICE ROSS: The material you want to tender that is not in the court book - the court book is taken to have been tendered. In the material – well, you know, subject to the witness statements for changes, and where they have been separately marked, but you don't need to tender the other bits and have them marked. If you want to tender something that's not in the court book put together a list of the documents you want to tender with those documents and the exhibit numbers you want to assign, and exchange those with the other side. And then seek to deal with any issues that arise from that.

PN1879

In relation to the objections to the witness evidence that we've not dealt with, have a discussion about those matters. In relation to future programming, have a discussion in relation to that matter. In relation to Dr Stanford's evidence the employers are to put together a joint list of the objections they take to the evidence, that is by paragraph number and the nature. They're to file it with the Commission, exchange it with the other side and seek to reach a resolution on those. Anything else? No?

PN1880

MR BULL: I don't want to be difficult - - -

PN1881

JUSTICE ROSS: Too late.

PN1882

MR BULL: In terms of hours, years, weeks. Anyway, just, there is material that we are in the process of, I suppose, identifying which we may or may not want to show to some of the employer witnesses, and I'm endeavouring with my colleagues to not sort of overburden, over-complicate it.

PN1883

JUSTICE ROSS: Yes.

PN1884

MR BULL: So we can have a list of, I suppose, documents that we may likely want to use in cross-examination but we're not frankly going to - - -

PN1885

JUSTICE ROSS: It doesn't sound like you've landed on the point, just yet.

PN1886

MR BULL: What I'm saying is, I may not be able to say with certainty what we're going to tender because we may not tender those documents.

PN1887

JUSTICE ROSS: Yes.

PN1888

MR BULL: And I'm happy to do a rough list but - - -

PN1889

JUSTICE ROSS: No, no. The documents you're going to show to a witness, you can tender at the time you put it to the witness.

PN1890

MR BULL: I just wanted to clarify that.

PN1891

JUSTICE ROSS: Yes, yes. No, that's fine. You don't need to disclose the line of cross-examination that you want to put, in advance. The only issue there is, you need to let our Associates know if you want a document available that you may want to rely on, you may want to put to a witness, so that we've got in whatever location the witness is in, that's all.

PN1892

MR BULL: And the only other issues is, the statement of Melissa Cody(?) is different to the one in the court book.

PN1893

JUSTICE ROSS: Sorry?

PN1894

MR BULL: One of our officials has made a statement and there's been a process of negotiation and discussion where she is no longer required for cross-examination. The statement which is agreed upon now is slightly different but we'll send that through.

PN1895

JUSTICE ROSS: Yes. No, that's fine. Then you'll tender it separately, we'll mark it, and it will be marked as, in lieu of certain pages in the court book. And we'll take those pages out of the court book.

PN1896

MR BULL: Thank you, your Honour.

PN1897

JUSTICE ROSS: All right.

PN1898

MS DOUST: And seeing as the dam wall has been broken by my friend, just one final matter - - -

PN1899

JUSTICE ROSS: I knew I should have got up more quickly.

PN1900

MS DOUST: Yesterday there were some directions about the provision of documents in advance, to witnesses - - -

PN1901

JUSTICE ROSS: Yes, yes.

PN1902

MS DOUST: Concerning cross-examination.

PN1903

JUSTICE ROSS: Yes.

PN1904

MS DOUST: Our expectation would be that that's given to the witness in advance but that the witness doesn't have an opportunity to go and conference with others about that, but that's simply provided as a convenience and that they will then be taken to it in cross-examination.

PN1905

JUSTICE ROSS: Yes. No, that's right. Because if they were here, of course, while under cross-examination they wouldn't be permitted to confer with anybody else.

PN1906

MS DOUST: Yes. So that would be our expectation of how those witnesses would proceed.

PN1907

JUSTICE ROSS: Yes.

PN1908

MS DOUST: I don't know whether that's something the Commission might wish to clarify, communications with the witnesses.

PN1909

JUSTICE ROSS: No. Well, that would be my expectation, as well. And to make it clear - - -

PN1910

MR SCOTT: So we understand that.

PN1911

JUSTICE ROSS: To any of those who are calling those witnesses, if they ring you in relation to it, simply say, 'I'm not able to discuss that with you,' okay? All right.

PN1912

MS DOUST: May it please the Commission.

PN1913

JUSTICE ROSS: Thank you. We'll adjourn.

ADJOURNED UNTIL THURSDAY, 17 OCTOBER 2019 [11.38 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

HEATHER WADDELL, AFFIRMED............................................................. PN1341

EXAMINATION-IN-CHIEF BY MS DOUST................................................. PN1341

EXHIBIT #HSU4 STATEMENT OF HEATHER WADDELL DATED 15/02/2019 PN1362

CROSS-EXAMINATION BY MS TIEDEMAN............................................. PN1364

EXHIBIT #ABI1 HAMMONDCARE RESIDENTIAL CARE AND HAMMONDCARE AT HOME ENTERPRISE AGREEMENT 2018................................................... PN1378

CROSS-EXAMINATION BY MS LO.............................................................. PN1450

RE-EXAMINATION BY MS DOUST............................................................. PN1464

THE WITNESS WITHDREW.......................................................................... PN1467

CHRISTOPHER FRIEND, SWORN................................................................ PN1491

EXAMINATION-IN-CHIEF BY MS DOUST................................................. PN1491

EXHIBIT #HSU5 STATEMENT OF CHRISTOPHER FRIEND DATED 15/02/2019............................................................................................................................... PN1500

CROSS-EXAMINATION BY MR FERGUSON............................................ PN1500

THE WITNESS WITHDREW.......................................................................... PN1520

ROBERT JAMES STEINER, AFFIRMED.................................................... PN1533

EXAMINATION-IN-CHIEF BY MR ROBSON............................................. PN1533

EXHIBIT #ASU2 STATEMENT OF ROBERT STEINER DATED 15/10/2019 PN1549

CROSS-EXAMINATION BY MR FERGUSON............................................ PN1550

CROSS-EXAMINATION BY MR SCOTT..................................................... PN1577

RE-EXAMINATION BY MR ROBSON.......................................................... PN1611

THE WITNESS WITHDREW.......................................................................... PN1615

EXHIBIT #HSU6 PARTS OF CHRISTOPHER FRIEND'S STATEMENT NOT READ............................................................................................................................... PN1844