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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT716
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT MARSH
SENIOR DEPUTY PRESIDENT CARTWRIGHT
COMMISSIONER BLAIR
BP2002/591 - 726, 1175, 1290,
1327 - 1348, 1422, 1443, 1583,
1733, 1767, 1889, 4774,
4837 - 4850 and 4881
HEALTH SERVICES UNION OF AUSTRALIA
(VICTORIA - PRIVATE SECTOR) INTERIM
AWARD 1993
Applications under section 170MX of the Act
by the Health Services Union of Australia -
Victoria Number 3 Branch for arbitration
following termination of bargaining periods
re health and welfare services
MELBOURNE
10.06 AM, TUESDAY, 12 NOVEMBER 2002
PN1
MR E. WHITE: I seek leave to appear for the Department of Human Services.
PN2
MR A. DJONEFF: I appear together with N. BOYLE for the Victorian Hospitals Industrial Association and the named employers who are the subject of these proceedings.
PN3
MR P. EBERHARD: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry and I can provide a list of those organisations that VECCI represents in these proceedings.
PN4
SENIOR DEPUTY PRESIDENT MARSH: Yes, Mr Eberhard, if you could hand that up, that will be put on the file.
PN5
MR M. MALONEY: I appear for Woolarah, GB Centre, Araluen and Central Access. Appearing with me also is M. BRIGGS.
PN6
MR R. MEDINA: I appear for members of Vicraid who are involved in the claim. Specifically they are the relevant city residential units and Moira residential units. There is a problem with one of our organisations that is also a member of Vicraid and a member of VHIA that seems to be giving instructions to both parties and I think it is a matter we will sort out in due course.
PN7
SENIOR DEPUTY PRESIDENT MARSH: Yes, if you could sort that out, that would be the appropriate course. Thank you, Mr Medina.
PN8
MR MEDINA: Thank you, your Honour.
PN9
MR B. PARSONS: I appear for Ashcare, Menzies, Village Care and Villa Maria.
PN10
SENIOR DEPUTY PRESIDENT MARSH: No further submissions?
PN11
MR WHITE: I should have sought leave to appear with MR V. GOSTENCNIK. Whether or not formally at this stage I require leave to intervene.
PN12
SENIOR DEPUTY PRESIDENT MARSH: Yes, you do.
PN13
MR WHITE: I assumed that there had been leave previously granted. In the event that it hasn't - - -
PN14
SENIOR DEPUTY PRESIDENT MARSH: No, not before the Full Bench.
PN15
MR WHITE: Well, in that event, I also seek that leave.
PN16
MR LANGMEAD: I also need to seek leave in those circumstances.
PN17
SENIOR DEPUTY PRESIDENT MARSH: Yes, very well. There are no objections to the applications to appear, or leave to appear? Very well, those applications are granted. We have received a letter signed by Mr Djoneff on behalf of a number of employer groups in this matter. Did you wish to raise the issue formally today, Mr Djoneff? Otherwise we will proceed with the matter.
PN18
MR DJONEFF: Yes, your Honour, thank you. Since we were last before you in prehearing conference, your Honour, and I recall there were three prehearing conferences leading to today's proceedings, there was a particularly pertinent matter that you yourself made repeated reference to and that is - - -
PN19
SENIOR DEPUTY PRESIDENT MARSH: They were confidential conferences, Mr Djoneff.
PN20
MR DJONEFF: Yes, your Honour, well, I haven't made reference to that in the letter to all the parties.
PN21
SENIOR DEPUTY PRESIDENT MARSH: Yes, I know.
PN22
MR DJONEFF: There is nevertheless a significant question of the capacity of the Commission to properly proceed now that the State Government has proceeded to an election and that election, as you know, your Honour, is scheduled to occur on 30 November, the day after these proceedings are scheduled to conclude. In that circumstance, your Honour, the Government does go into caretaker mode and that is confirmed in the Department's own submissions at page 17 in the last paragraph where it indicates the Government is now in caretaker capacity and the status that Government may effect the timing of any submissions or further submissions made by the Department during these proceedings.
PN23
Your Honour, central to these matters that are to be the subject of arbitration throughout the entire history of the matter, at the time when it was before Commissioner Blair and then in subsequent conferences before yourself, the relevance of funding at some level or other became central to those discussions. The Department in its own outline of submissions makes it clear that any award made should be confined to the parameters of the funding offer so far made. Now, that funding offer was made prior to and in circumstances other than the caretaker mode of Government that presently exists. Clearly there is an uncertainty as to what the alternate Government's policy position might be.
PN24
That is inescapable. In those circumstances, it seems to us that to proceed in that uncertainty and a highly significant uncertainty would be frankly placing the Commission in making an award that may lack capacity to be implemented. Central to making any award has to be an integrity to the award and a capacity for it to be implemented. The centrality of funding to implementation is well known, has been canvassed in conference and in public hearing and other conferences before Commissioner Blair. In those circumstances, to proceed to make an award in the knowledge of that uncertainty frankly, your Honour, from the employers' perspective is a highly risk proposition and in those circumstances, we say that the matter ought to be adjourned until there is Government certainty as to policy as it relates to funding.
PN25
It may change, it may not. We simply don't know and that has a bearing on the nature of submissions that might be made by the employers. I think it is commonly accepted and it is reflected in the Department's own submissions and the inference to be drawn from those submissions is very clear. An award made in excess of the known level of funding is a fraught proposition. Now, that is my paraphrasing of it. It may well have a different construction placed on it by the Department, but I think it is inescapable that to proceed to make an award in respect of employers who are so heavily reliant on funding in order to meet an industrial obligation and have effectively no other capacity to fund it frankly may be creating an award that lacks integrity and lacks a capacity to be sustained in the field. If the Commission pleases.
PN26
SENIOR DEPUTY PRESIDENT MARSH: Mr Djoneff, can I ask you this? Can we draw a distinction between making an award and hearing a matter.
PN27
MR DJONEFF: Certainly a distinction can be made, your Honour, but given the particular circumstances of this sector and how it relates to Government, it becomes very pertinent as to the nature of any submissions that might be made and therefore that goes to the hearing part of the matter as distinct from making part of the matter.
PN28
SENIOR DEPUTY PRESIDENT MARSH: But as you say, the hearing matter may not change because the Government's position may not alter.
PN29
MR DJONEFF: It may not change. It may be - - -
PN30
SENIOR DEPUTY PRESIDENT MARSH: We simply do not know.
PN31
MR DJONEFF: We simply do not know and in that circumstance, it could not be a safe proposition to proceed. It seems to me that as a matter of process, the matter at the very least should be adjourned until after the election at which time the Commission might consider convening a further conference of the parties to ascertain what is the new Governmental certainty, whatever that might be. To do otherwise is almost at the state where the Commission effectively is engaging in ..... about an election outcome, not a position I wouldn't have thought the Commission would want to be placing itself in. If the Commission pleases.
PN32
SENIOR DEPUTY PRESIDENT MARSH: Can I ask you this also? Is it the intention, I guess you can only speak for the employer members you are representing, is it the intention of the employers to cross-examine the HSUA witnesses?
PN33
MR DJONEFF: Some of the witnesses will be, some will not, based on an assessment of the accuracy of the particular witness statements. I know for a fact that Mr Eberhard in respect of some of his members has indicated to the union some of the union's witnesses will be. In respect of the couple of witness statements that pertain to my members, I have indicated that, no, I will not be seeking cross-examination simply because the accuracy of the statement is satisfied.
PN34
SENIOR DEPUTY PRESIDENT MARSH: I see. Thank you.
PN35
COMMISSIONER BLAIR: So in regards to some of the proposed cross-examination, is it simply an exercise to test the veracity of the material that has been provided, to satisfy the Full Bench that what has been provided is accurate?
PN36
MR DJONEFF: Well, I think that is a question that can just as much go to the union, Mr Commissioner. Certainly, any accuracy or inaccuracy would be tested. What the general thrust of the witness statement is is obviously supportive of a particular wage level and particular conditions outcomes, but certainly as far as we are concerned, to the extent that we want to test any witness, it is as to accuracy.
PN37
COMMISSIONER BLAIR: At the end of the day, is the argument going to be about the level of funding?
PN38
MR DJONEFF: Well, it is inescapable, Commissioner, that the adequacy of funding is central to these proceedings. Given the nature of these employers, these employers are effectively in a contractual relationship with the Department as to the provision of services in the disability services sector. It is different to other sectors. As you may recall, Commissioner, there was a finding by a previous Full Bench as it related to therapists in this sector that a particular observation was made by that bench, presided by the President, that in effect - this is my paraphrasing - the employees of these agencies are de facto employees of the Department because they provide the services on a contracted basis and certain observations were made about, in that circumstance, should there be a differential in wages, so to that extent, the relationship is a little different to many others that come before this Commission.
PN39
The connection is very close and therefore capacity to pay is directly related to the level of funding. As you know, Commissioner, the funding offer does narrow the gap between the Government's employees' rates of pay, which is what the unions' case is about and that which is presently provided. The gap narrows differentially according to the occupational groupings that are the subject of these proceedings. Funding is not provided in respect of the conditions claims and the conditions claims, as we point out in our submissions and the Department also, seek in effect the best of both worlds, either the public service conditions in respect to the employees to whom they are more directly related or the wider public sector, public hospitals, community health, as they have emerged in the last couple of years arising out of the section 111AA proceedings in public hospitals relating to nurses, allied health and the many others that you are aware of.
PN40
COMMISSIONER BLAIR: Thank you.
PN41
MR DJONEFF: Thank you, Commissioner.
PN42
SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you. Mr Langmead, have you got a submission to put on this issue?
PN43
MR LANGMEAD: Yes, your Honour. The union opposes any adjournment of these applications. It is our submission firstly that the Government is in a position and has put an argument by way of its outline, substantive submissions on funding and merit, notwithstanding Mr Djoneff's allegations to the contrary. It is in a position as I understand it to put its argument on merit and its argument on funding. On that basis alone, there would be no basis for an adjournment.
PN44
Secondly, we would say that in a way it doesn't really matter what the Government says about funding. The HSUA will be pressing its claim for an award in the terms in which it is sought, no matter what the Government's attitude to funding is. If the Government was to say to you there would be no funding, we would still be pursuing that award and we would be attempting to persuade you why you should do that. If the Government were to indicate for example that it would accept the outcome and would fund any outcome, it wouldn't affect the Government's argument that it presently seeks to put.
PN45
It would still be able to put that argument and we presume would probably still do that, but the position is that it is said it hasn't made a decision about what it would do. It makes no difference to the conduct of these proceedings that the Government has, as it were, declined to make a decision prior to the caretaker mode and isn't able to make a decision subsequent to it. In respect of the immateriality of the Government's position on funding, can I indicate that the HSUA intends to demonstrate by reference to legislation, Government policy documentation over a substantial period of time, that the de facto relationship as Mr Djoneff described it is in fact there and the Government has a duty of care to these clients, such duty which it can't delegate.
PN46
It can't get away from that duty of care. If the eventual outcome of any award was to put the NGOs in a position where they wouldn't be able to continue to operate and that they would have to hand back their contracts to the Government, the Government would be in the position of having to pay somebody to service those clients directly or find another NGO which could do it. Inevitably, we would demonstrate this to the Commission, the Government will have to fund any awards that the Commission may make and to that extent, it again doesn't really matter what the Government tells you about funding at this stage or even, indeed, later.
PN47
One shouldn't get unrealistic about this either. The Government has been maintaining a tough stance on funding for some 18 months or so now and has been saying we will only fund to such a level. It has put the employers in the position where they say they cannot make any offers beyond that which the Government is prepared to fund because they have no ability to make any offers beyond that funding offer. The Government, of course, doesn't want to pay any more. It is getting it on the cheap now. It wants to continue to get it on the cheap.
PN48
MR WHITE: Is this responsive to the application for an adjournment or argument?
PN49
SENIOR DEPUTY PRESIDENT MARSH: Yes, we are not in submissions yet, Mr Langmead.
PN50
MR LANGMEAD: Well, it is responsive, with respect. The Government is adopting a position in relation to the funding which is unsurprising in view of its stance. It also wants to adopt that stance by declining to make a decision about whether it would accept the Commission's decision and fund to that level because it wants to use that argument to convince the Commission not to make an award beyond that.
PN51
MR WHITE: Well, I object to this. I appear for the Government and I will be able to put the Government's position. Any speculation as to the Government's position is meaningless and Mr Langmead should concentrate on responding accurately.
PN52
SENIOR DEPUTY PRESIDENT MARSH: Mr Langmead, please focus on the HSUAs submission.
PN53
MR LANGMEAD: I am sorry?
PN54
SENIOR DEPUTY PRESIDENT MARSH: Focus on the HSUAs submission, rather than speculating in respect to the Government's position. I will hear from the Government in due course.
PN55
MR LANGMEAD: If the Commission pleases. Finally, there is the question of the employees' expectations in this matter and again a matter of real industrial concern. The employees through their union, the HSUA, in early 2001 initiated bargaining periods in relation to this sector. In about August of 2001, they took industrial action in a widespread and fairly unprecedented way. It wasn't only the health professionals, it was the direct care workers as well.
PN56
Those bargaining periods were terminated by a decision of Commissioner Blair. The union said to its members, well, in those circumstances we had intended you to take protected action. The scheme of the Act is that when the Commission believes that your industrial action is causing a threat to the health and safety of people, that it can stop you taking that action, but the consequences of that is the Commission will then deal with your claims on the merits and make a fair and equitable decision about it. On that basis, we say that you should go back to work, but the Commission will be dealing with the matter, rest assured.
PN57
The Government appealed that termination and the matter went into a limbo of conciliation in an environment where it was uncertain as to what the outcome was. It eventually resulted in the HSUA initiating new bargaining periods because the process to it seemed to be going nowhere and it did that in March of this year, so already almost 12 months had elapsed. Shortly after that time, the employees again took industrial action, protected industrial. Again application was made by employers and an interested body for the termination of the bargaining periods.
PN58
Again Commissioner Blair terminated the bargaining periods. Again the union said to its members, well, this is the scheme, the Commission will now deal with the matter. In the meantime, you should cease your industrial action and let the processes take place in accordance with the Act. The employees have been waiting a very long time to have this matter resolved. They have been on two occasions told by the Commission that they should not attempt to bargain any further, because their bargaining is hurting people and they have agreed to do that.
PN59
If the matter is delayed further and there is evidence in the witness statements about the increasing frustration of the employees with the ongoing discrepancy between DHS employees and themselves, if that situation is allowed to continue without quick resolution, then the union has considerable fears for the industrial peace in this sector. The Commission will also be hearing evidence about that frustration causing people to leave the industry because they just won't work for these poor wages any more.
PN60
SENIOR DEPUTY PRESIDENT MARSH: Mr Langmead, can I interrupt you, please, and ask you this? This matter is scheduled to hopefully conclude on 29 November. The State election is due to be conducted on 30 November. There would be an unrealistic expectation on anyone's part to form the view that a decision would be handed down prior to the election taking place. What would be the HSUAs position if the Commission heard the case, reserved its decision and then as it would be required to, to give an alternative Government, a subsequent Government, a new Government the opportunity to put a position in relation to this matter and that required a substantial rehearing of the matter? What is the HSUAs position on that scenario?
PN61
MR LANGMEAD: Would the Commission pardon me a moment?
PN62
SENIOR DEPUTY PRESIDENT MARSH: Yes.
PN63
MR LANGMEAD: First of all, your Honour, we couldn't see that there would need to be a substantial rehearing of the matter.
PN64
SENIOR DEPUTY PRESIDENT MARSH: Well, Mr Langmead, I am putting that as a scenario. It would be a matter for the Government of the day as to what matter it wishes to put as an intervener. It would be again speculative for any of us and, indeed, improper for anyone to presume whether or not there would be a substantial rehearing or not. I put a scenario to you. It would be a matter for the intervener as to what submission needed to be put, whether that was substantial or not. There is 37 witnesses in this matter just from the HSUA alone. The interveners do have a right to cross-examine witnesses.
[10.30am]
PN65
MR LANGMEAD: And they will exercise that right if we go ahead now.
PN66
SENIOR DEPUTY PRESIDENT MARSH: No, I asked you what would be the HSUAs position, and you may need to take instructions on this, on the scenario that I outlined to you because - and I asked you, in the context of you putting to us concerns about employees expectations given the length of time this case has come - has taken to come to arbitration.
PN67
MR LANGMEAD: Yes, I see what your Honour is saying, yes.
PN68
SENIOR DEPUTY PRESIDENT MARSH: Yes. So, do you want instructions, or do you want to answer that question now?
PN69
MR LANGMEAD: If you might give me a moment.
PN70
SENIOR DEPUTY PRESIDENT MARSH: Yes. I think we might take a short adjournment.
PN71
MR LANGMEAD: Sorry?
PN72
SENIOR DEPUTY PRESIDENT MARSH: Yes, we are going to adjourn for a couple of minutes.
SHORT ADJOURNMENT [10.31am]
RESUMED [10.39am]
PN73
SENIOR DEPUTY PRESIDENT MARSH: Yes, I apologise for that interruption. Yes, Mr Langmead.
PN74
MR LANGMEAD: Thank you, your Honour. Your Honour, the union's position in response to your question is that we consider that the aspirations of the members will be best met by the Commission proceeding now and if the matter has to be brought back on for further submissions - witnesses recalled for cross-examination, so be it. If there was a change of government that would obviously be a matter which would carry with it a ready explanation as to why such a course was occurring.
PN75
SENIOR DEPUTY PRESIDENT MARSH: Yes. Thank you.
PN76
MR LANGMEAD: Can I say one more thing in response to Mr John's letter, that is that:
PN77
The service agreements may become the subject of review in the event that there is a change of government in Victoria after 30 November.
PN78
We have actually asked VECCI for a copy of one of these service agreements. We haven't yet obtained one, but if that is the case then they must be open to review at any stage by any government regardless of whether it changes or not. And so we would say that can't be a consideration that supports an adjournment. If the Commission pleases.
PN79
SENIOR DEPUTY PRESIDENT MARSH: Thank you. Yes, Mr White.
PN80
MR WHITE: If the government opposes any adjournment of these matters the central platform or plank to the employer application for an adjournment is that the Commission would be unable to make - to (a) make a decision or (b) hear submissions about the form of final award it might make in the absence of an answer to the question of whether or not any government would fund an award in the event an award was made in excess of the government's offer.
PN81
The fact of the matter is that the Commission will make an award if it choses to do so based on the criteria under section 170MX(5). If it is put that under section 170MX(5) any other matter includes whether or not a funding source would increase funding, so be it. I am unsure that the employer has actually put that as an argument. I would be surprised if they did so.
PN82
We chose not to respond at this stage to two bases on which the union opposed the adjournment. That is, the question of whether or not employees are in fact proxy employees or whether or not the State owes a duty of care to the clients in the care of employer respondents. We say that is not really advancing the argument any further. In the event that the Commission was to determine that it was to make an award, and in the event that it was thought relevant in respect of that, to know whether or not the government would fund any award in excess of its current funding offer, then that can be a matter of evidence at a later time and shouldn't delay the proceedings now.
PN83
SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you. Mr Djoneff, did you want to put anything in response?
PN84
MR DJONEFF: Yes, thank you, your Honour. Going to Mr Langmead's submissions, if the Commission please, Mr Langmead made some reference to the expectations of employees. The employers on whose behalf I speak have a similar concern. It is not a state secret that there is some degree of sympathy in some quarters for the nature of the claim. That is not to say that that is how we are putting our position. We aren't.
PN85
However, as a matter of public interest, to raise expectations in the current environment with the prospect of effectively a re-hearing of the matter after December - after 30 November, based on either a changed position of this government - it is possible, or a new government that may either confirm the current funding position or have a different funding position, it would be tantamount to a re-hearing of the matter and that is frankly not something that this Commission should entertain lightly.
PN86
Mr Langmead made reference to an award should be made and, in effect, the funding circumstance is of secondary consideration and whatever effect it has on the employers in this sector it may create an additional burden for Department of Human Services, as the employer, and deliverer of similar if not identical services.
PN87
Your Honour, that is a prospect and an outcome that ought to be resisted by everyone in this room. There is a particular relationship between the employers and the Department to create an award that may have the effect of rendering unviable any number of employers who are the subject of these proceedings and thereby throwing the burden of service delivery back to the Department.
PN88
Frankly, it is a preposterous scenario to be postulating and this Commission should guard against a circumstance where that is in prospect. We are not convinced at all that a delay in these proceedings would generate industrial action. I think the employees are entitled to as much certainty and clarity of that outcome as the employers. Various attempts by employers to negotiate directly with their individual employee groupings have not borne fruit because of the effectiveness of the union's campaign and position.
PN89
In respect of the Department's submission there is not very much to say about that, your Honour. I just wish to repeat our position that to proceed to make an award,in the uncertainty that has been acknowledged exists, and raise the prospect of effectively a re-hearing of the matter at some point after 30 November frankly is something that ought to be resisted by this Commission, if the Commission pleases.
PN90
SENIOR DEPUTY PRESIDENT MARSH: Yes, we will adjourn for a few moments.
SHORT ADJOURNMENT [10.46am]
RESUMED [10.52am]
PN91
SENIOR DEPUTY PRESIDENT MARSH: Thank you. We intend to proceed with the matter. It will be open to the employers to renew their application in light of the nature of the evidence presented. The Commission reserves the right to adjourn the matter and re-list it at a later date if it forms the view that it requires additional material which the government is currently in a position to provide, given the current status of the government.
PN92
We will proceed with the matter. Thank you, Mr Langmead.
PN93
MR LANGMEAD: Thank you, your Honour. The Commission does have a detailed outline of submissions of the HSUA in this matter.
PN94
SENIOR DEPUTY PRESIDENT MARSH: Yes, proceed on the basis that we have read all the material.
PN95
MR LANGMEAD: Yes, thank you.
PN96
MR WHITE: Before my friend goes to the substantive matter I saw another matter listed. I didn't make a note of the number and listen carefully enough to your associate reading out the numbers, but I understand that the Salvation Army East Care was a matter separate listed - listed separately for the purpose of application for termination of bargaining period. Is that so? It is on the notice of listing, I noticed. And while I raised that, I understand, I think Alkira is another respondent employer, in respect of which a bargaining period remains in place.
PN97
SENIOR DEPUTY PRESIDENT MARSH: That is a matter we will look into and get back to the parties in relation to that.
PN98
MR WHITE: I will raise the matter now because, in the absence of evidence going to whether or not the bargaining period should be terminated and adoption of proper processes, the Commission might make an award which is ultimately beyond power and it is really a housekeeping matter which should be - - -
PN99
SENIOR DEPUTY PRESIDENT MARSH: Yes, I said that - - -
PN100
MR WHITE: Sorry.
PN101
SENIOR DEPUTY PRESIDENT MARSH: - - - we will address that, Mr White, and we will get back to the parties in due course. The Commission will not make an award in respect of any agency where there is not the power to do so and we will attend to that. Thank you for raising it. Yes, Mr White.
PN102
MR WHITE: Then can I raise - this is a less substantive matter, but more directed to the comfort of the parties, it is a small court room. I understand your associate made some enquiries prior to the hearing today, as to whether it was possible to move to a larger room. It is a question of whether or not it is worthwhile appealing to a higher source such as yourself.
PN103
If it was possible to move to a larger quarter at some stage, that would be of assistance.
PN104
SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you.
PN105
MR EBERHARD: Could I just clarify a point that was just raised then, your Honour with regards to Salvation Army. Their bargaining period was actually terminated on 30 August 2002.
PN106
SENIOR DEPUTY PRESIDENT MARSH: Yes.
PN107
MR EBERHARD: And the reason that the listing appears as it does is that just prior to that point of time the matters had been referred to yourself after Commissioner Blair declared the conciliation was at an end so, for Salvation Army, they did have their bargaining period terminated on 30 August and that was the reason there is a dual listing on the listing and it was just purely and simply a matter of procedure in the sense that the whole files had been referred to your office, except Salvation Army's file who at that point of time when the matters were referred to you had not had their bargaining period terminated. It was terminated after the matters had been referred to your office.
PN108
SENIOR DEPUTY PRESIDENT MARSH: I see. Thank you. Does that clarify that, Mr White?
PN109
MR WHITE: Yes, I understand what Mr Eberhard says. I think there might still be some debate about Alkira but, as you say, that will be dealt with at a later time.
PN110
SENIOR DEPUTY PRESIDENT MARSH: Yes, we will check that out. Thank you for raising it. Anything else anyone wishes to raise before we hear from Mr Langmead?
PN111
MR WHITE: Only that - once again another substantive matter. I was going to wait until after he had finished his opening, but we would - flag that we seek an order for witnesses at an appropriate time.
PN112
SENIOR DEPUTY PRESIDENT MARSH: We have received an order of witnesses.
PN113
MR WHITE: No, sorry. We would seek from the Commission an order that any witness - proposed witness, not attending or being in the Commission hearing room - - -
PN114
SENIOR DEPUTY PRESIDENT MARSH: I see, yes.
PN115
MR WHITE: - - - until such time as they have given their evidence.
PN116
SENIOR DEPUTY PRESIDENT MARSH: I see.
PN117
MR WHITE: But that can be dealt with after.
PN118
SENIOR DEPUTY PRESIDENT MARSH: After submissions. Yes, yes, I follow you. Thank you. Yes, Mr Langmead.
PN119
MR LANGMEAD: Thank you, your Honour. Your Honour, notwithstanding what is said in our outline of submission, we believe this arbitration relates to some 3500 employers, not 13,500. There was a typo which grossly inflated the numbers that those instructed me predict as being correct. Great membership potential, Commissioner.
PN120
The HSUA justifies the wages and conditions that it seeks in the draft award that it submits with its submissions on the basis of the merits of the case in accordance with 170MX(5)(b). In particular, it seeks that employees of the NGOs receive the quality of wages and conditions with those who are doing exactly the same work in the DHS establishments.
PN121
This is a sector which is by and large out of sight, out of mind to most members of the public. It was a sector where many clients were previously institutionalised. There were in places like Aradale, Mayday Hills, Karoola, Janefield. Places which most of the population have never even heard of. With the institutionalisation, which began in the 80s and with the full support of the union proceeded through the 90s.
PN122
Most, or many, of these clients have been placed in community residential units. Accompanying that deinstitutionalisation has been an increasing role for the NGOs and they operate many of the community residential units and early intervention facilities and the like. It is still not a sector which attracts much attention from the outside world. It is a difficult sector for the employees to work in. Many of the clients are what is described as low functioning. They require assistance in washing and dressing and feeding, and personal hygiene.
PN123
It is a difficult job. The sorts of things which are done by the employees, the direct care workers and the health professionals who are employed by the NGOs is the same work as that is done by the employees at DHS, in respect of direct care workers who work in the CAUs and in respect of health professionals who work in public hospitals and elsewhere.
PN124
The government has, we say, a responsibility to these clients. A duty of care and it doesn't have an ability to delegate that duty of care, but what it does do is purchase from the NGOs the provision of services to clients. In doing so it purchases those services at a cheaper price than it can do so than it provides for itself and, as the auditor's report comments the main reason they can do this is because the wages are lower and the conditions are poorer.
PN125
The costs of employees are less for the NGOs and so the government is getting it on the cheap. Successive governments, not just this one, have exploited the workers who are employed by the NGOs. They have taken advantage of this situation, of dedicated staff, working in very difficult environments and paid them less.
PN126
The HSUA says this is unjust, and it is wrong on both moral and industrial grounds for society to be dependent on the NGOs and their employees to provide essential care for the disabled but failing, through the government, to supply adequate funding to meet a base level of pay and conditions to ensure equitable treatment between what are not just comparable, but workers doing identical work.
PN127
They shouldn't be permitted to continue to get it on the cheap. They shouldn't be permitted to continue to exploit these workers. We will show to the Commission that the inevitable consequence of an award which fulfils that which the HSUA seeks, is that the government will fund it. We don't seriously expect that the government would stand by and let the NGOs hand back their contracts to the government. It is an integral part of the legislation that the NGOs are in partnership with the government in providing these services.
PN128
It is a long term policy objective of governments of all complexions for that to continue. The clients have got to be provided with a service and we will ask the Commission to conclude that whatever award it makes that award will be funded. We will ask the Commission to ensure that the inequality is removed and so that the exploitation of workers in this sector ceases.
PN129
We also say that there is other sound reasons why not just as a matter of fairness why the discrepancy between wages and conditions that these workers and government workers should be removed. There is a real problem of retention of staff in this sector and by this section I mean the NGO sector. There is a real problem of obtaining casual staff and agency staff because of the discrepancy. Because what happens is that employees, when faced with the option of working in a DHS establishment will - or working for an NGO, will always take the DHS option because the pay is better. Substantially better. And that means the NGOs are at the bottom of the or the end of the line for getting workers to come and work for them.
PN130
There is a high incidence of use of casuals and agency staff in this sector and there is competition for those staff between DHS and the NGOs. A competition which the NGOs inevitably miss out on. It goes beyond casuals and agency staff. They can't get permanents because the employees would rather work as casuals to get the 25 per cent loading and would rather try and get agency work to work in DHS establishments to get the higher rates.
PN131
The rates of pay for direct care workers in this sector are extraordinarily low. They are at about 51 per cent of the base level - 51 per cent of the average weekly earnings. It is time, we say, that - well, we say it was time a long time ago for the government to face up to its responsibilities. It has failed to do so. It has been made aware of these problems in the industry. Community consultations they had about work force issues identified matters such as staff training and retention.
PN132
Bracks listens - doesn't act. Didn't do anything. Won't even decide to abide by a decision of the Commission and fund it.
PN133
MR WHITE: My learned friend - I hesitate to interrupt him on opening but he should try and limit it to the case. Any political statements aren't really helpful to the Commission.
PN134
SENIOR DEPUTY PRESIDENT MARSH: Political statements certainly won't be influencing this bench, Mr Langmead.
PN135
MR LANGMEAD: The point we make, your Honour, is that the government is conscious of this; it refers to it in its own documentation and yet does not address the problem and has - well what we will speculate about in terms of industrial motives in order to attempt to continue to get this on the cheap and that isn't a political statement, it is an industrial statement.
PN136
There is a real risk that if the concerns of these workers are not met, that they will leave the sector and the Commission will hear evidence about that. There is already, on the evidence of one of VECCI's witnesses, a shortage of staff in the sector anyway. We say to the Commission that it is only going to get worse unless it is fixed. Now in terms of reasons for the discrepancy, we are unable to discover any sound reasons for discrepancies, just as the Full Bench was unable to decide - to discern any in relation to the health professionals in this sector two years ago in the Vision Australia case.
PN137
I referred to the problem of obtaining staff by way of permanents, by way of casuals, by way of full time and the like. It will be our submission, based on the evidence, that that of itself does address - I will withdraw that. That by making the award, which we would say would go a long way towards addressing those problems, that it would also inevitably lead to productivity increases, productivity improvements, thus addressing the criteria in 170MX(5)(d).
PN138
Much of our evidence from witnesses goes to the quality of the work, the sameness of the work, and many of our witnesses, the Commission will have seen from the statements, have worked or do work for both DHS and one or more NGOs. They speak of the discrepancies between pay and conditions and speak of the detriment that that brings to the work that they do. The witnesses that have been required to be cross-examined, 14 witnesses, one of those witnesses is unavailable for cross-examination and in those circumstances, we acknowledge that we are unable to put that witness statement forward. That is the statement of Rebecca Lenehan, which is HSUA6. So as I say, we acknowledge we can't rely on that statement.
PN139
SENIOR DEPUTY PRESIDENT MARSH: So you are withdrawing that?
PN140
MR LANGMEAD: That leaves the position of witness statements number 4 - sorry, number 3, number 4, number 7, number 8, number 10, number 12, number 13, number 22, number 28, number 30, number 33 then number 34 as being required for cross-examination. I tender the remaining exhibits.
PN141
MR WHITE: Well before - can the Commission hear me on the tender of the other exhibits?
PN142
SENIOR DEPUTY PRESIDENT MARSH: Yes.
PN143
MR WHITE: The other exhibits, I assume, are the statements which have been filed and served in the Commission.
PN144
SENIOR DEPUTY PRESIDENT MARSH: Yes, including the draft order and the submissions. That is HSUA1 and HSUA2 and - - -
PN145
MR WHITE: We don't take any form of objection to that.
PN146
SENIOR DEPUTY PRESIDENT MARSH: And then there is HSUA37 which is the duty of care document and I think the remaining exhibits, with the exception of HSUA6, which has been withdrawn, are individual witness statements.
PN147
MR WHITE: Can I address myself then to the witness statements only. Can I go through them, and hopefully I have got them in the same order as the Commission but if not, then we will be able to work through that. In relation to - I can go through all of them now including those people whom the HSUA proposes to call to give oral evidence unless the Commission would prefer that any objections to their statements be taken at the time they are called.
PN148
SENIOR DEPUTY PRESIDENT MARSH: No, I think if you proceed now it is probably more convenient.
PN149
MR WHITE: The first statement to which I take objection to is the statement of Erin Cresshull and the paragraph to which we take objection is paragraph 39.
PN150
SENIOR DEPUTY PRESIDENT CARTWRIGHT: Sorry, say again.
PN151
MR WHITE: Paragraph 39, your Honour. If this is an expression of opinion, that is, if it is an expression of the HSUAs view of the employer's capacity, then to that extent we have no objection. If it is, on the other hand, put as a matter of fact, then we do have objection. The proper evidence in respect of that should be called by the relevant organisations. So on the basis that it is put as a question of fact, we take objection to paragraph 39. Does the Commission wish me to go through all of them or have them deal with seriatim.
PN152
SENIOR DEPUTY PRESIDENT MARSH: You have got a large number, have you Mr White?
PN153
MR WHITE: Yes, yes I do, your Honour.
PN154
SENIOR DEPUTY PRESIDENT MARSH: Yes, we will deal with each one.
PN155
MR WHITE: Well that is the objection I have to Ms Cresshull's statement.
PN156
SENIOR DEPUTY PRESIDENT MARSH: Yes, Mr Langmead?
PN157
MR LANGMEAD: I am instructed that it is a statement of fact based upon admissions made by the employers to Ms Cresshull.
PN158
MR WHITE: Well to that extent, it is not a question of fact, it is rather a question of matter of hearsay and it is clearly unidentified hearsay to, within terms. If Ms Cresshull is saying the employers told me this, then it is mere hearsay or the best evidence is from the employers themselves.
PN159
MR LANGMEAD: Well as my friend knows, admissions against interest are an exception to the hearsay rule and that would certainly fall under that category. I will ask Ms Cresshull to clarify how she obtained that information and it would then be a matter for the Commission whether it accepted that evidence should be admitted or not. Ms Cresshull is giving evidence.
PN160
SENIOR DEPUTY PRESIDENT MARSH: We will reserve our position on that in light of Mr Langmead's comments. Yes.
PN161
MR WHITE: The next matter is under tab 4 in my folder, if the Commission please, and it is the statement of Ms Lisa Magnusson. A large number of these statements include unsupported hearsay. We make the objections we make, understanding of course that the Commission is not bound by the rules of evidence, but paragraph 14 is an example of either hearsay or merely the expression of an opinion. It doesn't go to a matter of fact and to the extent that it is hearsay, another problem which is recurring throughout these statements is that whilst it is said that information was obtained from talking to a range of other persons, the witness statements (a) don't identify what information was obtained by what other persons so it is hearsay, it is untestable hearsay and an expression of an opinion.
PN162
MR LANGMEAD: Well this is the sort of evidence which may well be hearsay or presumably would be but if somebody has told Ms Magnusson that, then she will be able to be asked about how she obtained that view. This is the sort of evidence which the Commission commonly receives. The weight which it is prepared to attach to it will depend on what the foundation for it and the evidence given about it but in my submission, it shouldn't be excluded on the face of it. This is another person who will be called to be cross-examined.
PN163
MR WHITE: Well the statement on its face doesn't identify that this is a matter that Ms Magnusson was told or if was, by whom. It is an untestable assertion.
PN164
MR LANGMEAD: Well you will get a chance to test it.
PN165
MR WHITE: It is an untestable assertion.
PN166
SENIOR DEPUTY PRESIDENT MARSH: Yes, that will be a matter for weight in light of the cross-examination of the witness.
PN167
MR WHITE: If the Commission please. Can I go then next to the statement of Ms Jodie Crompton under my tab 5.
PN168
SENIOR DEPUTY PRESIDENT MARSH: Yes, my tab 5, too.
PN169
MR WHITE: And the objection taken to that statement is paragraph 14. Once again, it is hearsay gleaned from unidentified persons in untestable form. I should say, these matters go to fairly important matters, having heard my learned friend's opening, matters of parity and equity and justice and exploitation so matters so central as that to my learned friend's case shouldn't be, in my submission, the subject of unsupported and identified and untestable hearsay.
PN170
SENIOR DEPUTY PRESIDENT MARSH: Why isn't it capable of being tested?
PN171
MR WHITE: Well how can it be tested? We don't know who they are, they are unidentified and we don't know what work they do, under what conditions and under what awards, funded by whom?
PN172
SENIOR DEPUTY PRESIDENT MARSH: So this witness is not going to be called for cross-examination.
PN173
MR LANGMEAD: I think Ms Magnusson was - Jodie Crompton, I think Ms Crompton is to be called.
PN174
SENIOR DEPUTY PRESIDENT MARSH: It is not on my list.
PN175
MR WHITE: Last evening - and we apologise. We haven't given to the Commission - we will. We provided to my learned friend and his instructor a list of witnesses the Department wished to have available for cross-examination.
PN176
SENIOR DEPUTY PRESIDENT MARSH: We haven't received that.
PN177
MR WHITE: I apologise for that. We can provide you with either an oral list now - some of them are common to witnesses previously sought but the witnesses whom the government wishes to call, Ms Kleinitz, Ms Crompton, Ms Chan, Ms Magnusson and Ms Cresshull.
PN178
SENIOR DEPUTY PRESIDENT MARSH: Sorry, could you tell me the first name again?
PN179
MR WHITE: Kleinitz, k-l-e-i-n-i-t-z.
PN180
SENIOR DEPUTY PRESIDENT CARTWRIGHT: Can I just clarify? We received an order of witnesses and then a revised order of witnesses. Now the revised order of witnesses is a lot shorter than the order of witnesses - - -
PN181
MR WHITE: Yes.
PN182
SENIOR DEPUTY PRESIDENT CARTWRIGHT: - - - and I am really raising it with you because you have said there were discussions last evening. So are you saying that you want to call those additional people because even though some of them were included on the order of witnesses, it is the revised order of witnesses, the shorter one, that applies and they were not planned to be called.
PN183
MR WHITE: No, I don't think that is so, your Honour. There were a number - we made an independent assessment of those witnesses we wished to cross examine. I think the order of witnesses provided by the HSUA, I think, and correct me if I am wrong, was provided by reference to witnesses required by other parties and the revised order of witnesses, shortened, was probably because the other parties revised their requirements.
PN184
SENIOR DEPUTY PRESIDENT MARSH: So we haven't got an amalgamated list. That is why we are a little confused.
PN185
MR WHITE: No, not at this stage.
PN186
SENIOR DEPUTY PRESIDENT MARSH: No, that is fine.
PN187
MR WHITE: Ms Magnusson was the statement to which I had just gone and in particular - sorry, Ms Crompton, and in particular paragraph 14 of her statement.
PN188
SENIOR DEPUTY PRESIDENT MARSH: Yes, Mr Langmead.
PN189
MR LANGMEAD: I make the same response, your Honour. This is a witness who will be giving evidence and she can be asked about it then.
PN190
I might say also that in respect of an allegation about the health professional workers at community health centres, then those community health centres are parties to the public sector award, the health professionals, and obviously that is a relevant instrument but as to which one it is, the witness can be asked that and I will in fact ask her.
PN191
MR WHITE: Well to the extent that these matters are capable of being dealt with properly in evidence in chief, that is the place where they should be done rather than in impermissible form in the statement.
PN192
MR LANGMEAD: Your Honour, I don't know whether this would assist but it may be that a more useful procedure might be if my learned friend and I had a discussion over lunch or some other time about his objections and in respect of those witnesses, I will deal with it in evidence in chief prior to seeking to tender their statement.
PN193
MR WHITE: I am happy to discuss all the list of objections we have with my learned friend. A lot of them are in witness statements, who will not be called, but I am happy to, if the Commission finds that convenient, to do that with my learned friend or do it now.
PN194
SENIOR DEPUTY PRESIDENT MARSH: Yes, I think that may be of a lot of assistance to us and I am grateful for that suggestion, Mr Langmead and your cooperation.
PN195
MR WHITE: And in the meantime, if a witness is called, then we will deal with any objections as those witnesses are called.
PN196
SENIOR DEPUTY PRESIDENT MARSH: As they arise, and then if there is remaining objections after you have had your discussions and maybe after we have completed the evidence, if the witnesses that are to be cross examined, we can deal with it then. Yes, I am grateful for that.
PN197
MR WHITE: One of the reasons why the DHS list of required witnesses is so short is that we did seek and obtain undertakings from my learned friend that the witness statements will be used only in respect of the employer organisations - that the evidence of witnesses not called only goes to those witness' places of work or identified previous places of employment.
PN198
SENIOR DEPUTY PRESIDENT MARSH: Thank you for your cooperation on that, Mr White. You may renew your application at an appropriate time.
PN199
MR WHITE: If your Honour pleases.
PN200
MR LANGMEAD: I think in the circumstances, I need to withdraw my tender of the statements so that Mr White and I can have that discussion.
PN201
MR WHITE: I don't mind. If it is marked for identification that is the easiest course.
PN202
SENIOR DEPUTY PRESIDENT MARSH: Yes, very well. Thank you.
PN203
SENIOR DEPUTY PRESIDENT CARTWRIGHT: While we are on that subject, can I just raise with you, I don't appear to have HSUA17, 20 or 26. Now is that because they have not been provided or because they have failed to find their way into my folder for some reason?
PN204
MR LANGMEAD: Your Honour, they are in my folder. I can only hope that they are in yours.
PN205
SENIOR DEPUTY PRESIDENT MARSH: They are in my folder.
PN206
COMMISSIONER BLAIR: They are not in mine but I am a Commissioner so sometimes I get left out.
PN207
SENIOR DEPUTY PRESIDENT MARSH: We will sort that one out over lunch.
PN208
SENIOR DEPUTY PRESIDENT MARSH: We will do some sorting out over lunch too.
PN209
MR LANGMEAD: I am instructed that multiple copies were sent to the registry and if not, maybe ..... will endeavour to obtain additional copies at an appropriate time.
PN210
SENIOR DEPUTY PRESIDENT MARSH: No, don't trouble yourself, Mr Langmead. We can deal with that matter. All right.
PN211
MR LANGMEAD: We will be tendering some documentary materials in due course but can I tell the Commission that there was some confusion about the getting of the Department's submissions to the HSUA so that they weren't in fact received until late on Friday, and I think that was communicated to the Commission. I didn't in fact see them until yesterday. We, in the short time available, weren't in a position to produce a formal reply and haven't yet been in a position to produce materials, additional materials, so we will be tendering them prior to closing our evidence and at this point, we propose to call the witnesses in respect to the ones who have been required for cross examination. There are some changes to the order, which I have discussed with Mr White and Mr Eberhard and we would, if the Commission pleases, proceed to call our witnesses now.
PN212
MR WHITE: Prior to that, yes, I foreshadowed an order that we would seek an order that all persons who are going to give evidence in this matter not be present in the court room until they have given their evidence. We would seek - we understand that Ms Cresshull, perhaps is - we would seek an exemption from that order Mr Brian Sullivan, who is from the Department and who is providing instructions to us.
PN213
SENIOR DEPUTY PRESIDENT MARSH: No objection to that course of action?
PN214
MR LANGMEAD: No.
PN215
SENIOR DEPUTY PRESIDENT MARSH: But consistent with the normal practice of the Commission in cases like this, we will - yes well on that basis, any witness that is going to be called to give evidence should not attend these proceedings until after giving evidence with the exception of Ms Cresshull and Mr Sullivan. Thank you very much. Leave the court please. Did you want to say something, Mr White? It seems that everybody else in the court is talking.
PN216
MR WHITE: Yes, your Honour, I did want to say one other matter and that was to seek a further exemption for Mr Simon Chant from the Department, who is providing instructions as well as Mr Sullivan.
PN217
SENIOR DEPUTY PRESIDENT MARSH: Yes, yes. While you are interrupted, Mr Langmead, I think the - well I am sure the Bench would be assisted if we could have a revised order of witnesses, if possible, over the lunch hour. If that could be forwarded to us, that would be of assistance.
PN218
MR LANGMEAD: Yes, we can attend to that, your Honour.
PN219
MR WHITE: Yes, I understand my friend has no objections to Mr Chant remaining in court.
[11.36am]
PN220
SENIOR DEPUTY PRESIDENT MARSH: Very well. I think we are ready to proceed with the first witness, Mr Langmead.
PN221
PN222
MR LANGMEAD: Ms Cresshull, can you tell the Commission your full name and address please?---My name is Erin Cresshull. Address supplied.
PN223
And what is your occupation?---I am an Industrial Officer with the Health Services Union of Australia, Number 3 Branch.
PN224
Have you prepared a witness statement to use in these proceedings?---I have.
PN225
Can I ask you at look at paragraph - do you have that with you, do you?---I do.
PN226
Yes. Can I ask you to look at paragraph 39?---Yes.
PN227
Can you tell the Commission how you formed the view that the organisations involved in the arbitration lacked the capacity to effectively negotiate enterprise bargaining agreements or even enter into any meaningful negotiations?---Over the course of negotiations, since early 2001, I have had many discussions with employer representatives who are here today and - - -
PN228
When you say here today, which ones do you mean?---That would SIAG, VHIA and VECCI.
PN229
Yes?---Who represent the majority of people in this claim. And during those discussions, that is what they have told me.
PN230
MR WHITE: Well, I object to this on the grounds of hearsay. All that is now being put is what Ms Cresshull was told by the employer organisations. To the extent that that is the limit to which this evidence is sought to be used or put, then there can be no objection because she is giving direct evidence of that which she was told. To the extent that it is to be used or put as evidence in the truth of the allegation, then we object. It is hearsay and it is not the evidence of this witness.
**** ERIN CRESSHULL XN MR LANGMEAD
PN231
SENIOR DEPUTY PRESIDENT MARSH: Yes, Mr Langmead.
PN232
MR LANGMEAD: Well, as I said when Mr White first mentioned this, an admission against interest is an exception to the hearsay rule and is admissible as a matter of law. These statements were made by the representatives of the NGOs, they are an admission of their position as to their ability to enter into negotiations and as such are admissible for the purpose of demonstrating the truth of what they said.
PN233
SENIOR DEPUTY PRESIDENT MARSH: Yes, we will admit the evidence but we will give the appropriate weight based on the nature of the material.
PN234
MR LANGMEAD: If the Commission pleases. Ms Cresshull - - -
PN235
MR WHITE: Can I seek clarification in respect of that, your Honour?
PN236
SENIOR DEPUTY PRESIDENT MARSH: Yes.
PN237
MR WHITE: I don't want to be difficult but is it admitted going to the truth of the statement or admitted going to the fact that Ms Cresshull was told this by the organisations.
PN238
SENIOR DEPUTY PRESIDENT MARSH: On the basis that Ms Cresshull has been told this information by the organisations that she has cited.
PN239
MR WHITE: If your Honour pleases.
**** ERIN CRESSHULL XN MR LANGMEAD
PN240
MR LANGMEAD: Well, if the Commission pleases, I seek to have it admitted as the truth of what was said and I do so in accordance with the legal principle that it is admissible, it would be admissible in a court of law and, with great respect, whilst it is the common course of the Commission to depart from the rules of evidence, it usually does so by way of being more lenient rather than excluding what would otherwise be admissible and this evidence is, as I say, it is clearly admissible in a court of law. With respect, the Commission should not be excluding it or limiting its admissibility in a way inconsistent with that.
PN241
COMMISSIONER BLAIR: I mean, can we maybe seek some clarification. I mean when Ms Cresshull says the organisations involved in the arbitration lacked the capacity to effectively negotiate, does that mean that they don't have the capacity to negotiate as such were they under instructions that related to the funding issue that they didn't have the capacity? I mean if she says that they didn't have the capacity per se, I mean I think there would a few offended advocates around the bar table but if it was that they didn't have the capacity, due to the funding issue. I mean can we seek some clarification?
PN242
MR LANGMEAD: And what did they say to you, Ms Cresshull?---The employer organisations - - -
PN243
Yes?---The employer organisations were all constrained by funding and therefore lacked the capacity to negotiate - well, effectively.
PN244
Well, if my friend wants to - well, I withdraw that. If the employers want to deny the truth of that which they have admitted to Ms Cresshull, then they call evidence to say that they - that it was not - that is not the case and they can explain why they told fibs but the rule is that until such time as that evidence is given and believed in preference to what Ms Cresshull has given evidence about, that is the evidentiary position, that the employers have admitted that that is their situation and, with respect, it is not - it should not be open to an intervener to come along and raise a spurious objection on the grounds of hearsay when it is the employers who are the ones whose interest is affected by it.
**** ERIN CRESSHULL XN MR LANGMEAD
PN245
SENIOR DEPUTY PRESIDENT CARTWRIGHT: But you wouldn't expect us to attach much weight, would you, to a general statement that is completely unattributed and where the parties are not identified?
PN246
MR LANGMEAD: Well, with respect, your Honour, it was identified. If perhaps the abbreviations aren't familiar to your Honour but Ms Cresshull you did identify the parties, could you name them please?---The Service Industry Advisory Group which is known as SIAG.
PN247
Who represent them?---Mr Parsons.
PN248
Is that Mr Parsons sitting at the bar table?---It is.
PN249
Yes?---The Victorian Hospitals Industrial Association represented by Mr Djoneff.
PN250
He is here too?---That is right.
PN251
Yes?---And VECCI which is the Victorian Employers Chamber of Commerce, I think, represented by Mr Eberhard.
PN252
MR WHITE: I don't know how it is an admission against interest, it is the employers' case so it is not an admission against interest but we have taken the objection. There only two matters that Mr Langmead raised that I want to address and that is - perhaps it was really as a matter of aside that he did raise it and that was to place some clout over our rights as intervener in this matter and I have proceeded on the basis that there were no limits on intervention, that we have the same rights as an intervener as a party has and the other matter which I will note but not address is that the - it is not helpful, in the event that my objections aren't spurious, to describe them as such.
**** ERIN CRESSHULL XN MR LANGMEAD
PN253
SENIOR DEPUTY PRESIDENT MARSH: We are prepared to admit the material on the basis that it is being put as a factual basis by the witness and that there is an opportunity for that factual position to be challenged by way of bringing further evidence from the persons named in the organisations named in Ms Cresshull's evidence. We will proceed on that basis.
PN254
MR LANGMEAD: If the Commission pleases. Ms Cresshull, can I ask you to look at this document please. Perhaps prior to dealing with that, can I ask that Ms Cresshull's statement be admitted into evidence?
PN255
SENIOR DEPUTY PRESIDENT MARSH: Is there any objection to that?
PN256
MR WHITE: Only the one that lost.
PN257
SENIOR DEPUTY PRESIDENT MARSH: So you are tendering that as an exhibit?
PN258
PN259
MR LANGMEAD: Ms Cresshull, can you tell the Commission what the document that I just handed to you is?---This is a document which is the - which details a log of claims which was serviced on parties in 2002.
PN260
Did this accompany the notices of initiation of bargaining period?---It did, it was attached to them.
**** ERIN CRESSHULL XN MR LANGMEAD
PN261
Did the union pursue those claims in discussions with employers?---The union pursued all claims in discussions with the employers.
PN262
And did it do so prior the bargaining period being terminated?---Yes, it did.
PN263
I tender that document also, if the Commission pleases, it is actually a matter that is on the Commission's file but it might be convenient to have to marked.
PN264
SENIOR DEPUTY PRESIDENT MARSH: If I could just raise a housekeeping matter and that is the numbering of the HSUA exhibits. My set of copies have been numbered. It might be confusing to the parties if we started another set of numbering so if we could take the fairly unusual course of, subject to a particular objection being raised in respect to a particular tender, if we could keep the numbering that the HSUA itself has ascribed to the exhibits. Is there any objection to that? So it might be appropriate therefore to number this HSUA6 because HSUA6 has been withdrawn and that is a - - -
PN265
MR WHITE: It is either that or - whatever is easiest, I agree with and whether or not, if are exhibits put through individual witnesses which have 3A, 3B, 3C, whatever, but we won't make any objection, if it is easy.
PN266
SENIOR DEPUTY PRESIDENT MARSH: And whilst we are dealing with exhibits, I understand there is no objection to HSUA1 which is the draft order or HSUA2 which would be the outline of submissions. Is that right? That is how my file is marked.
PN267
MR LANGMEAD: Yes, that is right, your Honour.
**** ERIN CRESSHULL XN MR LANGMEAD
PN268
PN269
MR LANGMEAD: Ms Cresshull, in your statement you describe in paragraph 34 what happened in negotiations in relation to the first initiated bargaining periods. Are you able to say what the response of the employers was to the conditions matters in the second initiated bargaining periods?---The employers were unable to identify any conditions that weren't contingent on funding so the discussions were limited then to wages.
PN270
When you say they couldn't identify any, what then was their response to those conditions claims?---There was no response to the conditions claims then because they could not find any money to fund them.
PN271
Thank you, your Honour.
PN272
SENIOR DEPUTY PRESIDENT MARSH: Is there no-one from the employer that wishes to cross-examine Ms Cresshull?
PN273
MR EBERHARD: There is just a very quick point that I would like to make.
**** ERIN CRESSHULL XN MR LANGMEAD
PN274
PN275
MR EBERHARD: Ms Cresshull, I don't think you have a copy in front of you, but if I could provide you with a copy of the draft award that the union seeks which has been tendered already and is recognised as HSUA1 in these proceedings. Can I take you to 16.5 of the draft award please?---Yes.
PN276
In that I think the - it states that the union seeks the abolition of the half day model. Can I now take you to HSUA3A. Can you tell me where in the claim contained in HSUA3A, the basis of the abolition of the half day model referred in 16.5 comes from please?---I believe it came out of discussions surrounding wages which was the first claim. Is that clear you, Mr Eberhard?
PN277
Can you recall when that discussion occurred?---I believe it occurred during the course of negotiations. I couldn't put an exact date on it.
PN278
But there is no specific reference in HSUA3A to the abolition of the half day model?---There is no specific reference.
PN279
And can you the date in which - when the discussions occurred where you believe the reference to the abolition of the half day model had come from?---I can't recall the dates but they would be in conjunction with conciliation dates.
PN280
Okay. I have no further questions.
PN281
MR MALONEY: Your Honour, if I could ask a question at this stage?
PN282
**** ERIN CRESSHULL XXN MR MALONEY
PN283
MR MALONEY: Ms Cresshull, in your original claim, was there a reference in that claim to the need for shift allowances etcetera, weekend allowances for what is formerly the half day workers or 24 hour workers?---There was in the 2001 claim.
PN284
Yes, thank you, Ms Cresshull.
PN285
SENIOR DEPUTY PRESIDENT MARSH: Yes, I think it is up to you now, Mr White.
PN286
MR LANGMEAD: I have just realised I have one question I should have asked Ms Cresshull and I seek leave of the Commission to do that.
PN287
SENIOR DEPUTY PRESIDENT MARSH: Yes, I think it is probably appropriate to do it now.
PN288
PN289
MR LANGMEAD: Ms Cresshull, can you recall any discussions prior to the termination of the bargaining period about attendant carers?---There was one discussion that I can recall today before - during assisted conciliation before Vice President Ross, that was before the second termination.
PN290
Can you recall what was raised?---I believe the need to include the Attendant Carers award in the claim was raised at that time.
PN291
**** ERIN CRESSHULL XXN MR WHITE
PN292
MR WHITE: Just in respect of that matter, Ms Cresshull, I think you said that there was the question of attendant carers raised in our conference before Vice President Ross?---That is correct.
PN293
And that was after the service of the claims and the initiating of the first bargaining period?---Yes.
PN294
Do you recall the date of the conference with Vice President Ross?---No.
PN295
Can I suggest to you that the date of that conference was prior to the initiation the second bargaining period?---I don't know.
PN296
SENIOR DEPUTY PRESIDENT CARTWRIGHT: I didn't hear the answers. Can you repeat the answer please?---Sorry, I don't know.
PN297
Thank you.
PN298
MR WHITE: Ms Cresshull, you have been employed by the HSUA since early 2001?---Yes.
PN299
Anything in your statement referring to matters occurring prior to 2001, I take it then, are not matters which you know of your direct knowledge?---Could you just restate that question?
PN300
Yes. Do I take it then that any matters you describe in your statement as occurring prior to the time you commenced employment are not matters that you know directly?---That is correct.
PN301
But rather matters which you have been told by others?---Some.
**** ERIN CRESSHULL XXN MR WHITE
PN302
Or alternatively matters which appear on the documents?---Yes.
PN303
Is there any other way in which you know of matters which occurred before your commencement of employment?---No.
PN304
Can I take you to paragraph 17 of your statement. You say in that paragraph that:
PN305
In respect of the HSUA Interim Award, apart from State and National wage increases, no other work value or similar adjustments have been made.
PN306
Do you see that?---Yes.
PN307
Are you aware that the HSUA Interim Award was an award made by this Commission and picked up, if I use that phrase, the terms and conditions contained were in the State equivalent award?---Yes.
PN308
And do I take it them that the paragraphs 12 onwards where you describe decisions of the then Industrial Relations Commission of Victoria which did affect the State award were picked up in the interim award?---Yes.
PN309
And those matters, I take it, would fit the description you use in paragraph 17 of work value adjustments?---Yes.
PN310
And so where in paragraph 17 you say:
PN311
... no other work value or similar adjustments -
**** ERIN CRESSHULL XXN MR WHITE
PN312
you mean no others other than the ones previously dealt with by the Victorian Commission?---That is right.
[12.05pm]
PN313
Can I take you now to paragraph 25? The first figure in paragraph 25 in the table, should that be 3.8 per cent?---No.
PN314
Right. I am not good on arithmetic at it will become apparent later on, but that table, in the absence of that being 3.8 per cent, adds up to 9.8 per cent and not 12.8 per cent as you described in the introductory part of the paragraph?---I believe that there is an additional 3 per cent missing, but not attached to the .8 per cent.
PN315
The .8 per cent, Ms Cresshull, are you aware that that was an increase in the award rate to compensate for changes to the fringe benefit tax scheme, with consequent limitations on employers in the public sector to offer a salary package?---Yes.
PN316
All right. Can I just - I think I have missed one. Can I just take you back to paragraphs 18, 19 and 20 in which you say that there were increases of 8 per cent, 6.5 per cent of which was funded by the government. Do you see that?---Yes.
PN317
Do I take it then that the 1.5 per cent which wasn't funded by the government was funded by the relevant organisations?---Yes.
PN318
Can I also take it, Ms Cresshull, that the section 170MX award in the year 2000 brought the rates of pay for the relevant health professionals up to the then equivalent State level?---Correct.
**** ERIN CRESSHULL XXN MR WHITE
PN319
And that would mean, would it not, that the organisations which had up until that time met 1.5 per cent of the increase previously, were no longer having to use their funds to meet that increase?---I don't know.
PN320
Is there any other explanation that you might have which would make that proposition incorrect?---I don't know.
PN321
Can I take you to paragraph 27 and just perhaps put the question in relation to that? Is it the case that in Leura Early Childhood Intervention Service v Kalparrin, were not agencies which were dealt with in the 2000 MX award?---That is right.
PN322
At paragraph 28 you set out a range of figures which you now say in relation to allied health professionals reflects a disparity in wages, 12.8 per cent to 26.8 per cent?---Yes.
PN323
The allied health professionals you are there talking about are what might be called therapists, physiotherapist and the like?---Yes.
PN324
All right. Did you do these figures yourself, Ms Cresshull?---Yes, I did.
PN325
Could you describe to the Commission please and take as an example grade 1, year 1, the sum that you did in order to get the figure you deposed to earlier in the paragraph?---Sorry?
PN326
Could you describe - you don't have to do the mental arithmetic, but just describe the sum that you did in relation to the grade 1, year 1 to arrive at the percentage figures which you deposed to in the earlier part of the paragraph?---It is a simple percentage difference.
**** ERIN CRESSHULL XXN MR WHITE
PN327
Yes, how did you do that sum?---
PN328
SENIOR DEPUTY PRESIDENT MARSH: The methodology I think that you applied.
PN329
MR WHITE: Yes?---Right. Okay. I minus the larger sum from the smaller sum, divided the smaller sum by that figure that was achieved and times it by a hundred to achieve the percentage figures, I presume.
PN330
You presume? You have got no real recollection now? Could I perhaps hand to you a calculator and it might make it easier, and can I ask you to do this sum and let us stay with grade 1, year 1?---Right.
PN331
All right. And can I ask you to read from the disability sector rate, that is the $31,930.54 rate? Now can I ask you to increase that or times it by 12.8 per cent?---Yes.
PN332
Right. The answer is?---40871091.
PN333
Okay. No?---No?
PN334
Perhaps let us not put the witness through this. Can I show the Commission - - -
PN335
SENIOR DEPUTY PRESIDENT CARTWRIGHT: Don't put the bench through it.
PN336
MR WHITE: Can I show the - can I hand to the witness and to the bench a table which we have done and - - -
**** ERIN CRESSHULL XXN MR WHITE
PN337
SENIOR DEPUTY PRESIDENT CARTWRIGHT: I make it just above $36,000. Do you come to the same level?
PN338
MR WHITE: Yes?---Thank you.
PN339
And can I just describe what this table represents. The first three columns commencing from the left hand side of the page are the three columns in Ms Cresshull's chart. Sorry, the first four, that is the first column being the classification levels. Thereafter what has been done is that they have been times by the percentage referred to in Ms Cresshull's paragraph. The second last column on the right hand side is the government offer in relation to allied health professionals which is compounded at 9.27 per cent, which is an annualised 3 per cent offer, and the last column on the right hand side is the public sector rates minus the .8 per cent which was the specific increase to compensate for the reduction in capacity to salary package.
PN340
COMMISSIONER BLAIR: So what you are saying is that salary packaging was withdrawn and that had a value of 8 per cent?
PN341
MR WHITE: I think there was a change in the capacity for public utilities to salary package, but the non-government organisations that we are dealing with in this case are not so limited, but so we have deduced the .8 per cent to more accurately reflect the comparison. Now if the Commission please, without Ms Cresshull having the opportunity to go through and check all of these sums, it might be difficult to ask her to concede that the rates added at times by the percentages that she now says in her statement represent the difference, is in accurate but perhaps - I am prepared to - or if the Commission thinks it is appropriate to allow that to occur at a later time.
PN342
SENIOR DEPUTY PRESIDENT MARSH: Yes, I think that would be appropriate.
**** ERIN CRESSHULL XXN MR WHITE
PN343
COMMISSIONER BLAIR: Can I just ask why you use 12.8? I mean surely the figures should be comparative.
PN344
MR WHITE: We use 12.8 because that is the figure from Ms Cresshull's statement.
PN345
COMMISSIONER BLAIR: Yes, I understand that but it is the wrong figure isn't it? I mean - - -
PN346
MR WHITE: The figure for the comparative figure for the government offer has been compounded to 9.27 per cent.
PN347
SENIOR DEPUTY PRESIDENT MARSH: Yes, but the - - -
PN348
MR WHITE: But if your Honour - - -
PN349
SENIOR DEPUTY PRESIDENT MARSH: But the data in paragraph 25 which I think his Honour is referring to, on my calculation is there is an additional 3 per cent. Compounded it would be 13.4, not 12.8.
PN350
MR WHITE: That would then make - if that is the case, the difference between the rates in the columns here - - -
PN351
SENIOR DEPUTY PRESIDENT MARSH: I would like my maths to be checked too, because I was only doing it as you were asking a question, but certainly the evidence is there should be an additional 3 per cent compounding the four 3 per cents, plus the 8. 0.8 is certainly in excess of 12.8, yes.
PN352
MR WHITE: Which would increase the difference.
**** ERIN CRESSHULL XXN MR WHITE
PN353
SENIOR DEPUTY PRESIDENT MARSH: Yes.
PN354
MR WHITE: And make the figures contained in the statement more inaccurate, yes. Might it be a convenient time perhaps to - it is difficult to tender this document, but can I at least mark it for identification or can - apply to tender it. It really is an arithmetical document.
PN355
PN356
MR WHITE: Ms Cresshull, commencing paragraph 31 of your statement you then deal with the enterprise bargaining process in 2000, 2002, but I take it from one of the earlier questions I asked that any matter which occurred prior to your employment with the HSUA, you have no independent knowledge of?---That is correct.
PN357
Of the negotiations of which you speak, how many did you attend?---I believe I attended the majority, if not all of them.
PN358
All right. Who were the other HSUA representatives at the meetings you attended?---From recollection it would be Mandy Chambers, Cathy Jackson, Amy Hodgkinson, Marco Bolano and probably Mr Langmead as well.
PN359
Can I suggest to you, Ms Cresshull, that you didn't attend the negotiations until some time late in 2001. Would you disagree with that proposition?---I don't know.
**** ERIN CRESSHULL XXN MR WHITE
PN360
In your view of the union's claims are there any matters which would be cost neutral to an employer organisation?---Salary packaging would be the only one I could identify.
PN361
That wouldn't only be - that would be cost neutral to the employer and would provide significant cost benefits to the employees, would it not?---That is debatable.
PN362
Have you seen the figures which are attached to Mr Chant's statement filed in these proceedings?---I have seen them, yes.
PN363
And have you, as the only HSUA witness, gone through those figures to check their accuracy?---No.
PN364
Do you accept that they are accurate?---I don't know if they are accurate or not.
PN365
Do you have any basis to doubt their accuracy?---No, I don't.
PN366
Ms Cresshull the claim by the HSUA to maintain award conditions would be cost neutral to employer organisations, would it not?---Yes.
PN367
The claim sought by the union not to offer any individual contract or Australian Workplace Agreements would be cost neutral?---I don't know.
PN368
Why would it be the case that agreeing not to offer AWAs would impose extra cost on an employer?---Because an employer could offer an employee a wage lower than an award wage.
PN369
Does the actual content of the AWA of an individual contract rather than an agreement not to offer one?---Is that a question?
**** ERIN CRESSHULL XXN MR WHITE
PN370
Yes?---Well, I don't know.
PN371
You would agree with me, would you not, that only offering fixed term contracts for fixed term work is a cost neutral thing for an employer?---I don't know.
PN372
In the negotiations where you went through whether or not there were matters which were cost neutral, was that one of the matters which was considered?---No.
PN373
In clause 7 where the union seeks that casual employees who have worked regular shifts be made permanent, you would agree that not only is that not a cost impost on an employer but a cost saving?---That could very well be a cost impost.
PN374
Are not casual employees paid a bonus - not a bonus - I withdraw that - a loading of 25 per cent?---Yes.
PN375
And you say that it is more expensive for employers to employ permanent employees rather than casual employees?---It can be.
PN376
Was this a matter which was considered in the negotiations and discussed?---The employers considered all the claims and that would have been one of them.
PN377
But did the employers ever discuss in the negotiations the fact that giving permanency would be a cost impost to them?---No.
PN378
In the course of the negotiations in relation to the cost impact of the union claim was there a discussion at all between employers and the union representatives as to what, if some claims did have a cost impost, that cost impost would be? That is, for example - the union claimed, for example, personal carers leave, yes?---Yes.
**** ERIN CRESSHULL XXN MR WHITE
PN379
Was there any discussion in any of the negotiations with the employers at which they said, we estimate, given the exigencies of our organisation, that that claim will cost this amount of money of money?---No.
PN380
In respect of any claim made by the union in relation to conditions did any of the employers at any of the meetings ever say, in respect of our organisation, given our structures, these claims would cost X amount of dollars?---No.
PN381
In the absence of any separate negotiations being had - or separate matters being identified which would be cost neutral, you would agree with me that any conclusion to be drawn that employers were unable to afford the union claim, be premature?---No, I don't agree with you there.
PN382
Well, in the event that claims were cost neutral you would think, would you not, that employers would be able to afford it?---Can you repeat that?
PN383
If it didn't cost them anything then they wouldn't be able to rely on the absence of funding as a legitimate reason for refusing the claim?---Correct.
PN384
And in any of the negotiations did you, or any other representative of the HSUA put that proposition to the employers?---Yes.
PN385
And what was their response?---The employers failed - well, the employers could not identify any aspect of the claim that was cost neutral.
PN386
We have just done today fairly quickly. Did the HSUA go through its claim and assist the employers in that analysis?---Yes, it did.
PN387
Did it identify any part of its claim which was cost neutral?---I believe it would have. I cannot remember.
**** ERIN CRESSHULL XXN MR WHITE
PN388
Nothing that you are able to give direct evidence of?---That is right.
PN389
Did the HSUA ever put to the employers when they complained they were unable to afford the union claim, that there were other mechanisms available to them to meet the claim, or at least part of the claim?---Yes.
PN390
And did the HSUA - or what were those mechanisms which the HSUA put to the employers?---I believe there were discussions as to whether any parts of the claim could be met by the employers in their present state.
PN391
Yes, and they said no, we can't?---That is right.
PN392
And it was at that stage, wasn't it, that both the employers and the HSUA formed the view that the only way to further address these matters was for increased government funding?---That would be correct.
PN393
SENIOR DEPUTY PRESIDENT MARSH: Mr White, I am loth to interrupt the cross-examination; Commissioner Blair has a matter listed at 12.30 so we will need to adjourn very shortly. Is that interrupting the line of questioning?
PN394
MR WHITE: Could you bear with me? Yes, I think - I anticipate a little time so I would be happy to adjourn now if that was convenient to the Commission.
PN395
SENIOR DEPUTY PRESIDENT MARSH: Would 2 o'clock be convenient to everybody - we adjourn until 2 pm. Can I indicate that courtroom 1 is now available, or it is available from lunch time onwards and for the remainder of the day this week that we are sitting. Would it be convenient to the parties to adjourn this afternoon into courtroom 1 or tomorrow morning?
PN396
MR WHITE: It would be fantastic.
**** ERIN CRESSHULL XXN MR WHITE
PN397
SENIOR DEPUTY PRESIDENT MARSH: So that is a unanimous view - a consensus, total agreement. We will adjourn to courtroom 1 until 2 pm this afternoon. Thank you.
LUNCHEON ADJOURNMENT [12.29pm]
RESUMED [2.04pm]
PN398
SENIOR DEPUTY PRESIDENT MARSH: Happier now, Mr White?
PN399
MR WHITE: That is very good, but I am envious of the view that others have.
PN400
COMMISSIONER BLAIR: Mr White, considering just before the break, there was consensus about everybody moving to Court 1, I wonder whether we could push the envelope a bit and maybe have some consensus about an outcome.
PN401
MR WHITE: Well if I had - and I am prepared to put the ball in Court, as we did about movement of the Court but once again I am in the wrong spot. Now Ms Cresshull, the matter that I was asking you about, immediately prior to lunch, was that at the end of the discussions where the employers didn't raise matters which were cost neutral or of a cost benefit to them. And in those discussions with the HSUA didn't raise those matters with the employers, but it was at that stage that the HSUA formed the view that the employers would only meet its claims if the government increased its offer. Remember that question?---I do.
PN402
And my recollection is that you agreed with that proposition?---I do. Can I expand on that?
**** ERIN CRESSHULL XXN MR WHITE
PN403
Well if Mr Langmead wishes to ask questions in expansion, yes. Now, in paragraph 35 of your statement you say, it was against this background that the union's members resolved to take industrial action in late 2001. Do you see that?---Yes.
PN404
And I take it there that the background of which you talk is the background where both the HSUA and the employer organisations had formed the view that the only way to meet your claim was for government increased funding. Is that right?---The HSUA didn't really care where the money came from for its claim, whether it came from the government or elsewhere.
PN405
I understand that the HSUA made its claim independent of where the money might come from. But you see, in paragraph 34 you said, "our background", which is the background I suggest you speak of in paragraph 35. That is correct, isn't it?---Yes.
PN406
And the background you set out is that it became clear to the union and clear to employers that there was no money in the absence of an increase of funding?---Yes.
PN407
And the only increase in funding that the union and employers could see being made available was from the government?---That was the advice from the employers to the union. Yes.
PN408
And the union accepted that, didn't it?---It had to.
PN409
Yes. Well I think you have given evidence before that as far as the HSUA is concerned, you had formed the view that the only way to progress your claim was from increased funding from the government?---No, not exactly.
PN410
Well, given earlier evidence, Ms Cresshull, that at the end of those discussions to which I have taken you, both of the union representative and the union's and the employers, did in fact have that view. You recall that evidence. That was the first question I asked you before - or the last question before lunch and the first after lunch. Yes?---Yes.
**** ERIN CRESSHULL XXN MR WHITE
PN411
And that was a view that the union held and has held since those meetings?---No, not exactly.
PN412
Well, have you put to the employer organisations and if so which ones, alternative methods of funding the union's claim?---Throughout the whole negotiations, as I have previously stated, the union and the - the union had discussions with the employers, seeking to tease out aspects of its claim.
PN413
Ms Cresshull, did you as a union ever put to the employers ways in which they could access funding to meet the union's claim?---No.
PN414
Because, as far as the union is concerned, the way it would get its claims met was by increased government funding?---I don't believe that a simple yes or no answer would be sufficient to answer that question.
PN415
Well I previously asked you what other methods of funding that the union knew about and put to the employers and I recall your answer as "none", that is correct?---Yes.
PN416
Does the union have other sources of funding in mind, which it hasn't put to the employers?---I don't believe so.
PN417
COMMISSIONER BLAIR: Excuse me. I note that a couple of members of the - I assume they are members of HSUA that are behind you, Mr White, seem to be nodding their head towards Ms Cresshull in her giving her answers. Would they knock it off. And Ms Cresshull, when you are giving your answers, if you would face the Bench, thanks, I think it might help?---Yes, Commissioner.
**** ERIN CRESSHULL XXN MR WHITE
PN418
MR WHITE: I think the question I last asked was whether the union had any other methods of funding its claims which it believes the employers could access, that it hasn't put to the employers?---As I have stated, the union throughout the course of the negotiations tried to identify - portions of its claim were contingent on funding and other portions of its claim that the employers could agree to. Government funding is just - is one source of funding. The union looked at the employers funding things themselves as well.
PN419
In the course of the negotiations, was there any discussion between the union and any of the employers about other sources of funding? That is, other than government?---I believe I just answered that question.
PN420
Could you please answer a yes or no for me, now, so I can understand the answer?---Yes.
PN421
What were the other sources of funding which the union raised in the negotiations?---That the employers themselves could fund or could out of their own resources provide sufficient that - that could reach agreement with the employers own resources.
PN422
And the response from the employers was?---No.
PN423
No. And did it go further - and did the response go further and suggest it was only government funding which would enable a proper response to your claim?---That is the response we received from the employers.
PN424
And that, in paragraph 39, is what you mean is it when you say that:
PN425
The employers said that they lacked the capacity to effectively negotiate.
**** ERIN CRESSHULL XXN MR WHITE
PN426
Or, they didn't have the capacity to enter into meaningful negotiations?---Yes.
PN427
That would then be, Ms Cresshull, somewhat inconsistent with the conclusions you set out in paragraph 34 of your statement. That is:
PN428
Therefore, employers were not in a position to negotiate agreements in the absence of a commitment from government to fund it.
PN429
?---I don't think so.
PN430
As far as the union is concerned even having identified, as you say it had, capacity within the employer organisations to fund part of your claim, themselves, the view was, was it not, that the only way to get that which the unions sought in full was increased government funding. That is the case isn't it?---Yes.
PN431
I take it then that the industrial action to which you refer, in paragraph 35, was designed to achieve that end?---No, not in total.
PN432
It was designed, was it not, to achieve an agreement which you say could not have been reached in the absence of an increase in government funding?---No, not exactly.
PN433
Well, which component part of that question do you disagree with?---The fact is that the industrial action that we resolved to take was against the employers. Where they - to - in respect to our claim. Where the actual funding came from was irrelevant when we resolved to take that industrial action.
PN434
But you knew at the time you resolved to take that action and accepted that your claim could not be met in the absence of government funding?---What we knew at that time was what the employers had told us and that was that the claim was contingent on funding. Which is different from what you are saying.
**** ERIN CRESSHULL XXN MR WHITE
PN435
Is it your case now that the union believes that it could achieve an agreement in the absence of increased government funding?---Not an agreement in total.
PN436
Has the union done the exercise of going through its claim and determining which parts of its claim could be met by the employers without an increase in government funding. That is an increase over and above the government offer?---The union has discussed that with the employers throughout the history of the negotiations.
PN437
Has the union done its own exercise in respect of that?---No.
PN438
And I think that the evidence you have given is that the employers say they can't give anything, even cost neutral things, without an increase in funding?---That is what the employers have told us. Yes.
PN439
So there has been no independent exercise by either of the parties during the course of these negotiations, to identify parts of the union's claim which can be met within the current budgets of the organisations and within the government offer?---No. The employers did that exercise.
PN440
What was the second part of your - - -?---The employers undertook that exercise.
PN441
Yes. And they have concluded there is nothing?---That is right.
PN442
Have you done your own exercise knowing, as you do or as the union does, rather, on the nature of these organisations?---No.
PN443
During the course of the negotiations when the employers did the exercise you have just described, as in going through component parts of your claim to see if it could be met in part from their own arrangements, did they share any of that analysis or data from which that analysis was made, with the union during the course of the negotiations?---They may have done.
**** ERIN CRESSHULL XXN MR WHITE
PN444
Well, to your knowledge, did they do so?---I don't know.
PN445
Well I take it from that answer that you have personally seen no such analysis?---No.
PN446
All right.
PN447
SENIOR DEPUTY PRESIDENT MARSH: Can I just ask you a question, not unrelated to what Mr White has been asking you. As I understand it, there are 58 employers subject to the MX arbitration. All non-government organisations all in the same sector. In the course of negotiations did the HSUA, at any stage, seek to negotiate separately or on a different basis with any of the employers. I ask that because I need to be satisfied at an appropriate time that the position of each of the employers is identical. Because as I understand the HSUA application or claim, an award in identical terms is sought for each of the employer organisations and to enable such an outcome clearly evidence would need to be adduced that demonstrates, to the satisfaction of the Commission that, in meeting the requirements of the Act, identical circumstances are faced or are characteristics of each of the 58 organisations?---Your Honour, the union served its log of claims on all of the 58 individual employers. The negotiations were then - for the employers were undertaken by their employer bodies, who negotiated on their behalf. Each of those employer organisations representing the groups of employers. And there was never separate negotiations entered into.
PN448
I see. But you understand, for the purposes of arbitration and arbitration is looking at very different criteria or a statutory regime that might have occurred in negotiation. And am I correct in my impression I have got that you are seeking an award to be made for each of the organisations covered by the claim, if I could put it that way, in identical terms. And that is in the basis of satisfying the Commission that the circumstances are identical in each of the organisations to when we apply the statutory regime under 170MX?---We believe that the situations are identical.
**** ERIN CRESSHULL XXN MR WHITE
PN449
Yes, thank you.
PN450
MR WHITE: See, the role of the organisations who are respondent to this application, for example, don't employ allied health professionals?---Yes.
PN451
But the award is still short in terms identical to the other respondents?---Although some of that award applies to some sectors, it has been broken down that way.
PN452
And related to that of course is that the union, at no stage, moved away from its claim for parity. What do you call parity?---From which period of time?
PN453
Well take it from another point. Do you remember giving evidence before Commissioner Blair, when Mr Sullivan was asking you questions?---Yes.
PN454
About the union's position and whether or not it had ever negotiated below what it considered to be parity. Do you remember that?---Yes.
PN455
I think your answer at that time was, no the union had not negotiated any matter which it considered below parity?---I actually don't remember, unless you could hand me the transcript.
PN456
Have you read Mr Sullivan's statement?---I have, yes.
PN457
Do you recall reading the transcript attached to the back of Mr Sullivan's statement?---I do.
PN458
To the best of your knowledge, the union, to date, has never altered in its claim for parity?---No. The union first sought a claim of 23 per cent up front.
**** ERIN CRESSHULL XXN MR WHITE
PN459
I think that was a claim for 23 per cent after a claim for parity had been made. Then it was reflected as 23 plus 8?---I believe at one stage it was a claim for 23 per cent, which may not have reflected parity.
PN460
Yes, it may have been significantly more?---Yes.
PN461
All right. Now, Ms Cresshull, you said a minute or so ago that you read Mr Sullivan's statement. If I remind you, in paragraphs 26 to 29, he talks of part of the process of conciliations. And in paragraph 26 he talks of a conciliation conference before Vice President Ross on 24 December 2001. Did you attend that conciliation conference?---I believe I did.
PN462
And in paragraph 28, he talks of a further conciliation conference presided over by Vice President Ross in February 2002. Did you attend that one?---I believe so - - -
PN463
Have you?--- - - - I don't know which one of those.
PN464
Sorry?---I am not sure if I attended both or one, I can't answer that.
PN465
You are not aware, are you, of any further conciliation conferences before Vice President Ross?---No.
PN466
And there were none after February 2002. That is correct isn't it?---I think so.
PN467
And it was after the February 2002 conciliation presided over by Vice President Ross, that the new bargaining periods which were cancelled have led to this proceeding, were instituted. That is in March 2002?---Correct.
**** ERIN CRESSHULL XXN MR WHITE
PN468
Just to make things absolutely clear. You see, prior to lunch, you said you were unable to recall when the aged care or attendant care, sorry, matters had been raised before Vice President Ross. So certainly now, on your evidence, it would be prior to February 2002 or no later than February 2002?---Yes.
PN469
And before then, therefore, bargaining periods which would identify the matters in issue in this case?---Yes.
PN470
Now, have you had an opportunity over lunch to check the arithmetic?---No.
PN471
In that case, I have no further questions of Ms Cresshull, but would seek to reserve a position in respect of exhibit W1 being the charts. I don't anticipate, unless there is an absence - of an error in arithmetic that I would need to further trouble her or the Commission. And if there is an error in arithmetic I am sure we would probably agree on that anyway. But subject to that and subject to reserving rights, if necessary, in respect of that, I have no further questions.
PN472
PN473
MR LANGMEAD: Ms Cresshull, in paragraph 25, you said there was a 3 per cent missing. Are you able to recall now where it might be missing?---Yes, Mr Langmead. A one off 3 per cent was awarded on 21 December - from 21 December 2000.
PN474
Are you confident of that date?---No. I am not, but it is around 2000. It may have been backdated to September. I would have to actually check.
PN475
MR WHITE: We accept it as 3 per cent. I was just confused with the arithmetic. But we accept there was a 3 per cent that is found at a later time. But not concerned about the particular date.
**** ERIN CRESSHULL RXN MR LANGMEAD
PN476
MR LANGMEAD: Yes. The position seems to be a consensus of those at the bar table that it was backdated to 1 October 2000.
PN477
SENIOR DEPUTY PRESIDENT MARSH: Thank you.
PN478
MR LANGMEAD: Ms Cresshull, in response to Mr White's questions about salary packaging being potentially cost neutral, you said that was debatable. Can you tell the Commission why you say it is debatable?---To start with, not all organisations offer salary packaging or would intend to offer salary packaging. Secondly, there are some organisations within the sector that have a type of salary packaging arrangement where they keep some of the benefit. So the employees don't receive the full benefit of salary packaging. Thirdly, in this sector a lot of employees are part timers, casual or part time women who are in the lowest tax group, anyway, and do not choose to take salary packaging because it is not a personal advantage to them.
PN479
[2.34pm]
PN480
SENIOR DEPUTY PRESIDENT CARTWRIGHT: They get paid superannuation, don't they?---Salary packaging, they get salary package superannuation.
PN481
But you said that it is not an advantage to them. Well, do those people get paid superannuation?---Yes, they do, your Honour.
PN482
Well, it would be an advantage to them?---It depends. If they are on such a low - if they are on such a low income anyway and they are part-timers or casual or not very secure in their position, not having as much cash in the bank weekly is a problem. You can't package as much or - - -
PN483
But the arithmetic will demonstrate, won't it, that an employee gets greater benefit by having superannuation payments made in after tax dollars - sorry, in before tax dollars than after tax dollars?---Perhaps superannuation.
**** ERIN CRESSHULL RXN MR LANGMEAD
PN484
It is arithmetic, isn't it?---Yes, but it is also - with respect, with these people - would take that up.
PN485
But you said it was of no advantage to them?---Of a lesser advantage than to people in other sectors perhaps, your Honour.
PN486
MR LANGMEAD: Ms Cresshull, do you have any knowledge of how many employees take up salary packaging and where they can do it?---From speaking to our members, few part time staff take up salary packaging while some full time staff do take it up. But it is not - it is not taken up with the same gusto as it would be in the - say, the public sector.
PN487
And do the members give you any reason why that is so?---As I have said, the members don't feel that it would be of benefit to them personally if they are on a low income, and also in the organisations where some of the benefit flows back to the actual organisations, members are less inclined to take up that salary packaging.
PN488
SENIOR DEPUTY PRESIDENT MARSH: But if the rates were higher than they are currently, wouldn't salary packaging become more attractive to the employees who have the offer of salary packaging?---If their incomes were high, your Honour?
PN489
Yes?---Yes, it would.
PN490
Because we are dealing with higher - - -?---It would - - -
PN491
We are dealing with a claim for higher wages, we are not dealing with a static concept of salary packaging on the current levels of income. So my question goes to the relevance, or the relative advantage of salary packaging in a context where there would be higher salaries than currently paid?---If their - yes, your Honour, if their incomes increase I believe that they would take up salary packaging, just because of the day to day living expenses and they would have more money in their hand to be able to do that.
**** ERIN CRESSHULL RXN MR LANGMEAD
PN492
Yes.
PN493
MR LANGMEAD: Do you know how many employers offer salary packaging in this sector?---No. No, I don't.
PN494
In response to questions asked by Mr White about coming to the view that meeting the union's claims could only be made by Government funding, you said that you wanted to expand on the yes or no answer that you gave. And also later you said - you characterised the proposition he put to you as not exactly. Do you wish to expand on that now?---Yes. When the union first served its log of claims, both in 2001 and again in 2002, it sought - it met with the employers and sought to reach agreement on the log of claims. We received offers from the employers eventually which only detailed wages. They did not detail any extra conditions, bar I think salary packaging from a couple of employers. The employers on both of those occasions, both in 2001 and in 2002, explained to the union and were very clear to the union that they could not fund any of those extra - any of the conditions sought. However, the union was of the opinion that some of the employers may be able to - and we did seek to reach agreement and no agreement was reached with the employer organisations, therefore the union took industrial action.
PN495
Now, in response to questions from Senior Deputy President Marsh about whether or not the employers were identical, when you were negotiating with the employer representatives did any of them identify any of their clients or members as being different one from the other?---No.
PN496
MR WHITE: Well, I was going to object on the basis I don't understand what that question means. We are dealing with different employees. Anyway, the answer has been given. I don't know where it goes.
PN497
MR LANGMEAD: Are you familiar with the activities of these employers?---The majority of them, yes.
**** ERIN CRESSHULL RXN MR LANGMEAD
PN498
Are you able to say whether there is any differences between them?
PN499
MR WHITE: Well, I do object to that.
PN500
SENIOR DEPUTY PRESIDENT MARSH: Perhaps I should clarify the basis of my question, and that didn't go to the activities of the employers, it went to the financial position of the employers. And I am sorry if I misled you, and perhaps you would like to address the question in light of that. I did indicate when I prefaced the question they employ - 58 employees came from the same sector, they are all NGOs. My concern was, having regard to the requirements of an MX arbitration that requires a separate award to be made for each employer, whether or not there is any distinguishing characteristics - and with that I meant of a financial nature - which should be taken into account in an evidentiary sense to enable us to make a finding with respect to whether or not the award should be common or not common. That is an obligation we have got under the Act?---Your Honour, as far as I can ascertain from the - - -
PN501
But maybe it is a question I should be asking the employers but I am asking you because it was raised in the context of talking about different employers?---As far as I can answer that question, the employers are funded in a similar way. I couldn't say they were funded in exactly the same way but we have a - the union hasn't heard anything differently from the employers.
PN502
Yes. My question went beyond funding to - financial position of the various organisations, but if you don't know the answer - - -?---I don't know the answer to that, your Honour.
PN503
Yes. So the negotiation was carried on the basis that every employer organisation was synonymous and identical in terms of their financial ability or capacity or incapacity?---That is correct, your Honour.
PN504
Yes, thank you.
**** ERIN CRESSHULL RXN MR LANGMEAD
PN505
COMMISSIONER BLAIR: Might there be a difference between some employers who rely entirely on government funding but there might be some other employers who provide the services through the services agreement with government funding but have other assets?---That may be, Commissioner, but I don't have that knowledge.
PN506
Right.
PN507
MR LANGMEAD: I have no further questions, your Honour.
PN508
SENIOR DEPUTY PRESIDENT MARSH: Thank you.
PN509
MR LANGMEAD: Might Ms Cresshull be excused, subject to my learned friend's reservations?
PN510
PN511
MR LANGMEAD: If I could hand to the Bench - I understand the Bench has a copy of the revised order of witnesses.
PN512
SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you.
PN513
PN514
MR LANGMEAD: Ms Akmentins, could you state your name and address for the transcript, please?---Melissa Akmentins, address supplied.
PN515
And what is your occupation?---I am employed as a Grade 2 Orientation Mobility Instructor at Vision Australia Foundation.
PN516
Yes. Have you prepared a statement for use in these proceedings?---Yes, I have.
PN517
Do you have that with you?---Yes, I do.
PN518
I would ask you to have a look at paragraph 8. Now, you have referred there to, first, the orientation mobility instructors. Which orientation mobility instructors are you referring to there?---All orientation mobility instructors.
PN519
Employed where?---At Vision Australia Foundation, Royal Victorian Institute for the Blind.
PN520
Right. Now, in respect of your knowledge of how they - having received increased referrals, how do you know that?---We are a very small network of instructors. There is probably only about 30 or 40 of us state-wide and we actually do talk amongst ourselves, within work time and in private time as well.
PN521
So other instructors have told you that that is the case?---Yes.
PN522
Yes. What is your personal experience?---I have been employed at Vision Australia for the last - coming up to seven years now and I have noticed a marked increase in my referrals.
**** MELISSA AKMENTINS XN MR LANGMEAD
PN523
Yes. Now, you have also said "like other therapists", what do you mean by that?---Referring to other therapists in my team which include occupational therapist and - - -
PN524
MR WHITE: Well, this was one of the matters - my learned friend and I did at lunchtime go through a list of objections I had to a number of statements. I think my learned friend now is taking Ms Akmentins to parts of this statement to which I had foreshadowed there was objection, and is the evidence - yes, sorry, I am probably a little premature.
PN525
SENIOR DEPUTY PRESIDENT MARSH: Yes, Mr Langmead.
PN526
MR LANGMEAD: Yes. What I had proposed I thought to the Bench earlier this morning and to my learned friend was that I would ask the witness questions about these matters that he has raised and, subject to those answers, seek to tender or not to tender the document in whole or part. And at that point, if he still had an objection, he can make that objection and then we can deal with it. So if I continue seeking an explanation from the witness.
PN527
Sorry, I was asking you when you said like other therapists, and you said therapists in your team?---Mm.
PN528
Yes. In paragraph 10 you have - in the first sentence you made a similar statement in terms of referring to instructors and therapists. Are they used in the same way in that paragraph?---As in - not just within my team but within Vision Australia as a whole, because we have team structures that are built of usually O and Ms, case managers, OTs and orthotist. So I am talking about within my own team as therapist, and within other teams as therapists, as a general throughout the organisation.
PN529
And how do you know what happens in the other teams?---Because we have professional development days. Again we also interact on the phone as O and M instructors, we do talk.
**** MELISSA AKMENTINS XN MR LANGMEAD
PN530
Yes, and in paragraph 13 you have referred to professional development required of therapists in the disability sector. How are you able to say that?---A lot of the professional development I know from my own personal experience is reading magazines, attending seminars which are at our own cost in our own time.
PN531
Do you have any knowledge of other therapists?---I would - from my talking to other instructors, it is a similar situation.
PN532
And in paragraph 15 you have referred to:
PN533
Therapists in Melbourne are required to service areas of rural Victoria.
PN534
Is that therapists employed by Vision Australia, is it?---Yes.
PN535
And is that also the case in paragraph 17, you have referred to therapists?---Yes.
PN536
I tender that statement.
PN537
SENIOR DEPUTY PRESIDENT MARSH: Yes, Mr White.
PN538
MR WHITE: Yes, I maintain objections in part; in particular, to paragraph 13 which - the use of the word "therapists" in paragraph 13, and it indicates a general difficulty that we had and that is Ms Akmentins in the beginning of her statement in paragraph 3 said she had made her statement on her own knowledge and the basis of information provided by other orientation and mobility instructors. It is difficult to admit hearsay from unknown - evidence of unknown persons in an untested way. The general talking to others, as Ms Akmentins described in paragraph 13, or her knowledge relied on in paragraph 13, is too broad and too removed from a provable fact to be of any assistance to the Commission.
**** MELISSA AKMENTINS XN MR LANGMEAD
PN539
Similarly I think paragraph 17 was dealt with fairly briefly by my learned friend and I maintain the same objection there. Paragraph 21, in my submission, should not be permitted in that it is speculative as to what might happen in the future and thereafter to some extent argumentative, but certainly speculative and, once again, untestable. It is of particular importance in respect of this witness because the Bench would be aware that part of the union's claim is that a new classification be inserted, that of mobility instructor. And so when the Commission comes to consider - and bear in mind, the normal course of award variations for further classifications and where they slot in is quite often the subject of fairly detailed evidence. Hearsay and speculation really should be looked at particularly carefully.
PN540
SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you. Mr Langmead.
PN541
MR LANGMEAD: Hearsay evidence of this nature is appropriate, in my submission, to be admitted. It inevitably does not carry the weight that more detailed direct evidence can be given, but it is often the only - it is the only way in which this evidence of this nature can be given that workers have spoken to other workers in the field and they have been told that this is the situation. And with respect of paragraph 13, I may have misunderstood the witness but I thought she had identified the use of the word "therapist" there as being orientation and mobility instructors. And as to the use of the expression in 17 being the therapists at Vision Australia, I would again submit that that is sufficiently closely connected that she is able to give that evidence. In respect of paragraph 21, it may, indeed, be speculative but it is this witness's speculation that explains her motivation and her reasons as to why she says that an award classification should be made. As such, I consider that it ought to be admitted for that reason. There is nothing improper about the witness saying that she has these fears and this would address them. So it is my submission the statement should be admitted in its entirety.
**** MELISSA AKMENTINS XN MR LANGMEAD
PN542
SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you. Yes, we are not prepared to admit the material in paragraph 13. We will admit the material in paragraph 17 on the basis that it is read down to "All orientation and mobility instructors" relate to Vision Australia only. We will admit paragraph 21 but on the clear understanding it is speculative and we will give it the weight that we think it deserves.
[2.58pm]
PN543
MR LANGMEAD: If the Commission pleases. And is that to be marked HSUA12, your Honour.
PN544
PN545
MR LANGMEAD: Ms Akmentins, you said in paragraph 22 that Vision Australia offered salary packaging but you did not take up the offer. You said that 50 per cent of the tax benefit that the staff member receives from salary packaging is retained by Vision Australia. And - how does that work?---The 50 per cent?
PN546
Yes?---Basically the overall taxing saving, 50 per cent, is given to us and 50 per cent is given back to the organisation.
PN547
I see. How many hours a week do you work, Ms Akmentins?---I work 24 hours a week.
PN548
24 hours?---24.
**** MELISSA AKMENTINS XN MR LANGMEAD
PN549
Ms Akmentins, I understand from your paragraph 1 that you have a graduate diploma. Do you have an undergraduate qualification as well?---Yes, I do.
PN550
Yes, what is that in?---In science - I am trying to think - Bachelor of Science from Victoria University.
PN551
Yes, thank you, your Honour.
PN552
SENIOR DEPUTY PRESIDENT MARSH: Mr Eberhard, are you - any hope of getting up?
PN553
PN554
MR EBERHARD: Just a couple of quick questions because I think Mr Langmead asked you a couple of questions that I was going to raise anyway. With respect to point 11 of your statement, can I just ask you a couple of questions, in that you were currently employed as a grade 2 therapist?---Yes, that is correct.
PN555
One of your roles and functions - or is one of your roles and functions as a grade 2 therapist is to provide in-house training and support to the grade 1 therapists?---No, we have not been given permission to do that.
PN556
You did mention in response to a question asked by Mr Langmead about professional development days, and can I just ask how many professional development days there are?---We are allowed two but they are as a general therapy. So you are not looking at occupation specific, it is OTs, orthoptists and O and Ms have two days a year together.
**** MELISSA AKMENTINS XXN MR EBERHARD
PN557
But the content of those professional development days are developed by the therapists themselves?---Yes, but it is very hard to get three very specific divisions - you know, professions, to have very specific information.
PN558
In addition to the professional development days there is also conference leave and other research policies available for staff through Vision Australia?---Not that I am aware of.
PN559
You are not aware of those policies?---No.
PN560
Can I then take you to paragraph 17 and in the second sentence which starts:
PN561
If therapists take long service leave ...
PN562
And continues on. Can I just clarify that from your understanding - that is your understanding neither long service leave, annual leave or extended sick leave is replaced?---I am on extended sick leave at the moment and I have not been replaced.
PN563
Are you aware that if you are on long service leave you would be replaced?---Not to my knowledge.
PN564
Okay. Given the answers, I have no further questions.
PN565
SENIOR DEPUTY PRESIDENT MARSH: Thank you. Any other employers?
PN566
MR MEDINA: Your Honours, Mr Commissioner, I told the union yesterday that my clients have no wish to examine - cross-examine union witnesses.
**** MELISSA AKMENTINS XXN MR EBERHARD
PN567
SENIOR DEPUTY PRESIDENT MARSH: Yes.
PN568
MR MEDINA: And, indeed, they have no interest at all in the Allied Health Professionals aspect of the case. So I was wondering if the Commission would mind if at some point I withdraw from these proceedings, just for the day.
PN569
SENIOR DEPUTY PRESIDENT MARSH: No, certainly, Mr Medina.
PN570
MR MEDINA: It will save my clients a bit of money.
PN571
COMMISSIONER BLAIR: They might be able to put it towards the claim, Mr Medina.
PN572
MR WHITE: If anyone else is wanting to ask questions, I - - -
PN573
PN574
MR WHITE: Ms Akmentins, I am intrigued about salary packaging and can I ask you some questions and take it as an example just to make sure we all understand what the employer does here. For example, if your weekly wage was $500 gross per week - fourth year experience of a second year - class 2 therapist is $1043.24 a week. So, assume you work ..... the time; assume your gross rate is $500 a week. Assume that you said to your employer, I want to take $100 a week of that, $5000 a year, but $100 a week as part of a salary package to pay my grocery bills or car lease or rent or mortgage or whatever. Would your employer say, okay, you can have $100 a week as part of a salary package if that would save you because you then pay no tax. For example, I think, the actual figure is $34 but let us stick with figures that are easy for me - $35, all right, $35. If you save $35 in tax would your employer then say, well, I will have $17.50 of that back, thanks?---That is my understanding.
**** MELISSA AKMENTINS XXN MR WHITE
PN575
So the employer is not paying you your award rate if they do that?---That is what I am - I was led to believe when we had a - - -
PN576
That is how you understand this clawback, we call it, perhaps too politely. That is how you understand it works?---Yes.
PN577
So of the $100 a week that you agree to take as salary packaging you in fact would only get on this example that we have just gone through, $83, not the full $100. Is that right? Assume you save $34 - or $35; they take half of the savings, which is $17.50, that is $82 - $83, that is what you would get. That is as you understand the employer's - - -?---I am confused but my belief is that the overall tax - if there was $1000 to be saved over the year then I would have to give half of that back to the employer.
PN578
Okay.
PN579
COMMISSIONER BLAIR: Vision Australia are not the only ones that - - -
PN580
MR WHITE: No, but, we were quite confused as to how this might be done. It seems to us, quite frankly, that it is not arguably complying with award obligations.
PN581
COMMISSIONER BLAIR: Yes.
PN582
MR WHITE: All right, thank you, Ms Akmentins.
PN583
SENIOR DEPUTY PRESIDENT MARSH: Mr Langmead?
PN584
MR LANGMEAD: I think Mr White has exposed some more work for the union in terms of award enforcement. I have no re-examination and ask that the witness be excused.
**** MELISSA AKMENTINS XXN MR WHITE
PN585
PN586
PN587
MR LANGMEAD: Mr Wicks, for the transcript, can you state your full name and address please?---Gregory Alan Wicks, address supplied.
PN588
And your occupation?---I am a residential care worker with McKillop and a full time university student.
PN589
Have you made a statement for use in these proceedings?---I have, yes.
PN590
Do you have a copy of that statement?---I do, yes.
PN591
Is it true and correct?---A couple of slight errors. In number 1 it says that:
PN592
For adolescents who cannot live at home for a variety of reasons with drug and substance abuse.
PN593
It should be, for a variety of reasons, including drug and substance abuse. And point number 3 it says I have a Bachelor - degree in youth work and diploma - I am in my second year of that degree and the first year of the diploma. So neither of those qualifications have been completed at this stage.
PN594
So that should read you are studying second year of bachelor degree in youth work and the first year of a diploma; is that right?---That is correct, yes.
PN595
Subject to those amendments is your statement otherwise true and correct?---Yes, it is.
PN596
**** GREGORY ALAN WICKS XN MR LANGMEAD
PN597
MR LANGMEAD: Mr Wicks, do you know whether McKillop Family Services offer salary packaging?---They do, yes.
PN598
Do you take advantage of that?---I do, yes.
PN599
Yes. How many hours a week do you work, Mr Wicks?---47 hours a fortnight.
PN600
And are you able to say what financial advantage salary packaging is to you?---It is very good. Without salary packaging you would probably not say in this area of work. But, salary packaging is certainly a lot better than not having that ability.
PN601
Thank you, Mr Wicks. Do you mind waiting there. Others might have some questions for you.
PN602
PN603
MR EBERHARD: Mr Wicks, can I just take you to paragraph 4 of your statement where you outline a number of duties that you perform. Are they the duties that you perform for McKillop or were they the duties that you performed for Kildonan which was - can I just explain. Kildonan was the predecessor employer. McKillop took the service over, I think, earlier this year?---It went from Kildonan to the Department of Human Services for about four months and then the business - it moved from Kildonan to DHS. It moved into different houses and with different staff. And then from Human Services to McKillop, it was just a straight transmission. Same house, the same staff, the same everything. And the roles that we did are basically very similar, whether it is with Kildonan or McKillop. There is possibly a few minor variations but not a great deal.
**** GREGORY ALAN WICKS XXN MR EBERHARD
PN604
Could I show you this, which is - have you seen - this is a job description for McKillop Family Services, a residential worker/adolescent services, part time. Have you seen this before?---I would have thought so, yes.
PN605
Can you have a quick look at it and have a read of it so that you can identify it more thoroughly. Do you now recall having seen that before?---Yes, I would say - they all seem to be very similar in their job descriptions and key selection criteria. That all rings a bell, yes.
PN606
PN607
MR EBERHARD: Given that it is the McKillop Family Services, that would more accurately reflect your position's responsibilities rather than the comments that you make in point 4?---I think the comments in point 4 have probably just got these things in different words. The care plans are used now with McKillop and I don't think they actually mention care plans in this pamphlet by McKillop. And - so, it is, sort of - the situation is an ongoing situation. New structures come into place that we have to comply with and the care plan is probably a fairly new one.
PN608
Okay. Can I then take you to point 5 of your statement. There is an implication in that that there is a lack of staff at McKillop. That is not the situation, is it - - -?---Oh, no.
**** GREGORY ALAN WICKS XXN MR EBERHARD
PN609
The rosters are filled, and appropriately filled, and the clients who are required to be given assistance are provided the due care and attention that they require?---Certainly. When I put that in there - when the transmission went from DHS to McKillop we had 21 staff with DHS and we dropped one roster layer. So we dropped from seven staff per unit to six. And of the 18 that switched over to McKillop in February, within four months there were only five of those original people left. So, when I said that, we lost all but those five within four months of that changeover. They used agency staff and casual staff to fill those positions. So at all times the positions were filled. It was just that we did lose all those permanent staff.
PN610
Okay, thank you.
PN611
PN612
MR WHITE: When you have seen the position descriptions before, have you noticed, or do you have any recollection, where, at the bottom of paragraph 2, it says:
PN613
80 per cent of total income is derived from ...
PN614
It seems to be blank there. Do you have any recollection of where that 80 per cent was derived from or was it filled in when you last saw it?---On this sheet?
PN615
Or in any of the versions which you have seen of this?---I would have to say it is not something that I would have taken much - - -
PN616
Not to your recollection?--- - - - interest in. So, I couldn't say whether I noticed it or not.
**** GREGORY ALAN WICKS XXN MR WHITE
PN617
Thank you, no further questions.
PN618
SENIOR DEPUTY PRESIDENT MARSH: Mr Langmead, anything in re-examination?
PN619
MR LANGMEAD: No, your Honour. Might the witness be excused.
PN620
PN621
PN622
MR LANGMEAD: Ms Hale, can you state your full name and address for the transcript, please?---Amanda Jane Hale, address supplied.
PN623
What is your occupation?---Case manager or - just become service co-ordinator.
PN624
Have you prepared a witness statement for use in these proceedings?---Yes.
PN625
Do you have that with you?---Yes.
PN626
I would ask you to look at paragraph 14. You refer to case managers employed in the public sector and make comments about their roles. How do you know that?---Often times they actually refer to our services. So I am actually in discussion with them a lot of the time. Can you tell the Commission where they are employed?---There is community health centres, Department of Human Services, hospitals.
PN627
Any particular ones or - - -?---All of them.
PN628
Are you able to name the - - -?---The specific people?
PN629
Or if you can't do that the places where they work?---Broadmeadows Health Centre, the different - Austin Hospital, the Repat, Eye and Ear Hospital, all the other hospitals but the names escape me at the moment.
PN630
And are you in a position to name some of the people you talk to?---No.
PN631
Is that because you can't remember their names or - - -?---Well, yes, not that I can't remember their names - I mean, like, I deal with so many of them, that it is quite difficult.
**** AMANDA JANE HALE XN MR LANGMEAD
PN632
I tender that statement.
PN633
MR WHITE: I had an objection to paragraph 14 and I think Mr Langmead's questions probably have remedied the first sentence - my objection to the first sentence of paragraph 14. But I maintain the objection to paragraph - the second sentence of paragraph 14. Talking to other persons on the phone or elsewhere doesn't really give the Commission any helpful assistance as to what funding was available in other services to be allocated by particular people for particular purposes.
PN634
SENIOR DEPUTY PRESIDENT MARSH: Yes, are you pressing the second sentence, paragraph 14, Mr Langmead?
PN635
MR LANGMEAD: We do, your Honour. In this particular instance the witness has clearly identified at least a number of sources where it is said - admittedly, again, on a hearsay basis, that that is how she has acquired her knowledge to the extent that is in. So it can't be tested.
PN636
PN637
MR LANGMEAD: Ms Hale, in relation to salary packaging, you said at paragraph 22 that your employer permits salary packaging. Have you availed yourself of that?---Yes.
PN638
How many hours do you work a week?---22 hours approximately.
**** AMANDA JANE HALE XN MR LANGMEAD
PN639
Thank you, Ms Hale. Would you mind waiting there so that others can question you.
PN640
MR WHITE: Well, I have some questions. We didn't ask for Ms Hale to attend but if no-one else other than the intervener has questions I will go.
PN641
SENIOR DEPUTY PRESIDENT MARSH: Don't feel obliged, Mr White.
PN642
MR WHITE: Sorry?
PN643
SENIOR DEPUTY PRESIDENT MARSH: You don't have to.
PN644
MR WHITE: No, I - - -
PN645
SENIOR DEPUTY PRESIDENT MARSH: It is a matter for you.
PN646
MR WHITE: Well, we didn't ask for Ms - as I said, we didn't ask for Ms Hale to attend but now that she is here there are a couple of matters.
PN647
MR EBERHARD: Can I clarify? I did actually ask the HSUA for Ms Hale to attend. Having clarified the comments that we have received back by RVIB it is now no longer necessary for us to cross-examine Ms Hale so I would apologise to her and to the HSUA for any inconvenience that that has provided.
PN648
**** AMANDA JANE HALE XXN MR WHITE
PN649
MR WHITE: And the matters on which I wish to ask questions arise (a) out of the paragraph which I took objection and subsequent matters.
PN650
Can I go to the first one and that is paragraph 14 of your statement, Ms Hale, where you say:
PN651
Case Managers employed in health care networks tend to have brokerage funding.
PN652
Do you know the detail of the level of brokerage funding of any of the agencies which you refer to in your evidence earlier?---What do you mean by the detail - - -
PN653
Well, do you know how much it is?---From what I am aware it depends on the clients and the clients' needs.
PN654
Are you aware of a formula that is used - or are you saying this from your own knowledge because it entails specific amounts?---Which question, sorry? I don't know a formula, no.
PN655
For example, then, would you be aware of what brokerage is available, brokerage money is available for clients referred from the Repatriation Hospital?---Do you mean how many dollars?
PN656
Yes?---No.
PN657
Do you know how many dollars in respect - do you know, in respect of any of the brokerage moneys available, the level of money available?---No.
**** AMANDA JANE HALE XXN MR WHITE
PN658
How much of your salary do you salary package?---The full amount that I am allowed to.
PN659
Yes. No further questions. Sorry - do you know the money amount that that is?---Yes.
PN660
And what is the money amount that you are able to salary package?---$15,000.
PN661
If the Commission pleases.
PN662
SENIOR DEPUTY PRESIDENT MARSH: You are excused from - did you have anything in re-examination, Mr - - -
PN663
MR LANGMEAD: No, I didn't, your Honour.
PN664
PN665
PN666
MR LANGMEAD: Mr Bolano, would you tell the Commission your full name and address, please?---Marco Bolano, address supplied.
PN667
What is your present occupation?---Industrial Organiser.
PN668
And you are employed by the HSUA?---Yes, Number 1 Branch.
PN669
Have you prepared a statement for use in these proceedings?---Yes.
PN670
Do you have a copy of that with you?---Not with me at the moment.
PN671
Sorry, is that the statement you agreed, Mr Bolano?---To the best of my knowledge, yes.
PN672
Yes, I tender that.
PN673
SENIOR DEPUTY PRESIDENT MARSH: Yes, Mr White.
PN674
MR WHITE: I have an objection to paragraph 12 of Mr Bolano's statement, if the Commission please.
PN675
SENIOR DEPUTY PRESIDENT MARSH: Yes.
PN676
MR WHITE: If it is to be relied upon, to the truth of the content of what was said, objectionable hearsay. If it is relied upon only that it was - only that it was said, then I object on the grounds of relevance.
**** MARCO BOLANO XN MR LANGMEAD
PN677
SENIOR DEPUTY PRESIDENT MARSH: Have you finished? Mr Langmead?
PN678
MR LANGMEAD: We rely on it as the basis of something that was said, if the Commission pleases, which I think that leaves us ..... I don't have an issue about it.
PN679
MR WHITE: No, no. My objection was if it was relied upon as to the truth of what was said, then it is objectionable hearsay. If it was relied upon merely that it was said, then I object on the ground of relevance.
PN680
SENIOR DEPUTY PRESIDENT MARSH: Yes, we will admit it on the basis that it is being put on the basis of something that is said and then we will judge the relevance of it in due course.
PN681
MR LANGMEAD: Is that HSUA22, your Honour?
PN682
PN683
MR LANGMEAD: Thank you, Mr Bolano, would you mind waiting there for others to question you.
PN684
**** MARCO BOLANO XXN MR EBERHARD
PN685
MR EBERHARD: Thank you, your Honour.
PN686
Firstly, could I take you to paragraph 6 of your statement, Mr Bolano. Yes, the fifth dot point down where you state that you participated in recruitment, selection and in-service training of staff. My questions may be a matter of degree rather than a criticism of the comments you make but in terms of your participation in that, that was really more as an involvement - it didn't mean that you were directly responsible for either the recruitment, the selection and/or the in-service training of staff - no, specifically the recruitment and the selection of staff?---I was involved in interviews, in doing the reference check-in and as a supervisor if I felt the staff member was unsuitable for my service. That was generally taken - well, basically, that is what happened.
PN687
That is what I am saying. I think my challenge will be more in a matter of degree rather than a direct disagreement with respect to your comments, so we do agree but in the sense that - the way it reads it has got to be confined to the way you have just expressed your comments. You were involved - you weren't the only person involved in those processes though?---Well, generally, one person doesn't conduct an interview, there was two of us.
PN688
Okay. Can I then take you to paragraph 8. Again, it is on page 7 of 7, so it is on - it is the last dot point where you refer to:
PN689
Negotiate with DHS regional teams and local regional teams to achieve desired placement of clients.
PN690
Again, the house supervisor was involved in that process but that was an overall team basis in respect to that?---Actually one case I was the only person involved - it involved the client being moved out of my service and the client objected to that so I felt it was my duty to advocate on his behalf in accordance with his needs and superior management didn't necessarily agree with the clients position so I did negotiate with DHS. Yes, managers were involved but at times I negotiated directly with a case manager along with the clients advocate because management or senior management weren't supportive of the clients wishes and the position I took in supporting him in his wishes.
**** MARCO BOLANO XXN MR EBERHARD
PN691
But that may well have been more of a personal choice rather than an organisational requirement?---I interpreted it as being my duty.
PN692
You also make reference in your statement to provisions in regard to discussions about enterprise bargaining?---Yes.
PN693
And the fact that there were some discussions that occurred in regard to the establishment of a proposed new enterprise bargaining agreement that would deal with salary packaging?---Yes.
PN694
Now, just a couple of clarifications. Yooralla actually withdrew the agreement and it actually never went to a vote?---Because we had advised them that we would not vote it up unless they remove - unless they derive no financial advantage from salary packaging. "We" meaning myself and the rest of the staff delegation and the HSUA Industrial Officer and Organiser.
PN695
I think this is where we will have some challenge in regard to but I am sure Ms Belcher will give, more than likely, a different opinion from yourself. But, certainly, the advice that I have been given is that Yooralla withdrew it as a result of the industrial action that actually led to the termination of the first of these bargaining periods?---I disagree with that assertion.
PN696
And also there are also positions in regards to, in paragraph 14 where you talk about co-ordinating fortnightly rosters, "Usually most of the shifts of" - and then you have got in brackets, "(50 to 90 per cent were filled by agency staff". Certainly, the information that I have received from Yooralla indicates that 65 per cent of permanent staff would be filling the position. What would you say to that?---Not in the three services I supervised and not in the services - probably about half a dozen services where I was reasonably familiar with the staff in-house and the clients. Well, services in the immediate metropolitan area.
**** MARCO BOLANO XXN MR EBERHARD
PN697
All right, thank you, Mr Bolano.
PN698
PN699
MR WHITE: Mr Bolano, could I ask, once again, in relation to salary packaging how you understood the offer made by the employer, how it would work? And can I do that by way of example? Assume that you chose to take $100 of your weekly wage salary packaged. And assume by doing that you save paying $25 a week in tax. Was Yooralla, your employer, proposing that of that $25 saved in tax that they would have $12.50 and the employee would have $12.50?---Do you mean - I take that to mean that is a $25 increase in that pay as a result of the salary packaging when you say saving.
PN700
Well, yes, take the $100 a week example. If you didn't take that as salary packaged then you would receive, assuming a 25 per cent tax rate for the purpose of this example, $75 net pay. If you took that $100 as a salary package you would save paying tax of $25 and so the net amount in your pocket at the end of the week, in the absence of anyone else putting their hand out, would be $100?---Yes, right.
PN701
And you would be $25 a week better off, yes?---Not on what Yooralla was proposing.
PN702
That is what I am asking. What they were proposing that of that $25 which would otherwise have gone into your pocket that you give them $12.50?---I can only go by the tables they gave us demonstrating the savings and in accordance with those tables, yes, they would take $12.50 and $12.50 would be received - well - yes, and $12.50 to the staff member.
PN703
Did the example that they set out show at what stage that they were taking this $12.50 - - -?---Yes, there was a, sort of - - -
**** MARCO BOLANO XXN MR WHITE
PN704
- - - before or after they paid you?---It was sort of set out as an equation. At the end it said $3000 tax saving - or 3100 or something. It was a case study and - - -
PN705
But you can't recall with that case study - - -?---Yooralla takes 1500, you get 1500. That is the way it was set out.
PN706
And what stage, if you can remember, it might not have been set out, was that 1500 to be taken? Before or after you received the money?---Before.
PN707
Thank you. I have no further questions.
PN708
SENIOR DEPUTY PRESIDENT MARSH: Mr Langmead.
PN709
MR LANGMEAD: I have no re-examination.
PN710
SENIOR DEPUTY PRESIDENT MARSH: Thank you.
PN711
MR LANGMEAD: May Mr Bolano be excused?
PN712
PN713
PN714
MR LANGMEAD: Ms Brockman, can you tell the Commission your full name and address, please?---My full name is Joanna Rebecca Brockman. Address supplied.
PN715
What is your occupation?---Residential Care Worker. Supervisor of a residential unit in Fawkner.
PN716
Did you make a witness statement for use in these proceedings?---Yes, I did.
PN717
Do you have that with you?---I do.
PN718
Yes. Is that statement true and correct?---Yes, it is.
PN719
PN720
MR LANGMEAD: Ms Brockman, do you mind waiting there while these other gentlemen ask you questions?
PN721
PN722
MR EBERHARD: Thank you, your Honour.
**** JOANNA REBECCA BROCKMAN XXN MR EBERHARD
PN723
Ms Brockman, can I take you to page 4 of your statement and I have only just noticed it then, the first of the point 10's on your - sorry, I just think the numbering went wrong in the - - -?---It did.
PN724
You refer in that to, "I have one permanent staff at my unit who is a grade 2". That doesn't, of itself, mean that they are - that you and that person are the only employees employed in that particular unit though, does it?---Yes, at that time we were the two only employees at the unit.
PN725
At that time. Is that the current situation now though?---It is not the current situation.
PN726
What is the current situation now?---We now have four permanent staff members at my unit.
PN727
Can I then take you to page 11. What do you mean by double cover on the third line there:
PN728
The shortages of staff also leads to rosters that provide no double cover.
PN729
?---I have a page 11.
PN730
Oh, sorry, point 11. Point 11 on page 5, sorry?---Page 5. Could you repeat the question, please?
PN731
On the second and the third line you state:
PN732
The shortages of staff also leads to rosters that provide no double cover.
**** JOANNA REBECCA BROCKMAN XXN MR EBERHARD
PN733
What does "no double cover" actually mean?---That means that we don't have two staff members on at any given time. There is frequently one staff member by themself with four kids.
PN734
So, again, is that the current situation or has that changed with the appointment of the four staff?---That is the current situation.
PN735
So casuals and agency staff don't supplement the permanent staff that you are referring to in point 11?---No.
PN736
Okay. I have no further questions.
PN737
SENIOR DEPUTY PRESIDENT MARSH: Yes.
PN738
MR WHITE: I have no questions, your Honour.
PN739
SENIOR DEPUTY PRESIDENT MARSH: Anything - - -
PN740
MR LANGMEAD: No re-examination. Might Ms Brockman be excused?
PN741
PN742
PN743
MR LANGMEAD: Ms Magnusson, could you tell the Commission your full name and address, please?---Lisa Jane Magnusson, address supplied.
PN744
And what is your occupation?---Occupational Therapist.
PN745
Have you prepared a statement for use in these proceedings?---Sorry, say that again.
PN746
Have you prepared a statement for use in these proceedings?---Yes, I did.
PN747
Do you have a copy of that with you?---I do.
PN748
Yes. Could I take you to paragraph 14, please? On what basis do you say that it is hard to attract experienced staff ..... wages and conditions?---Okay. Last year we had a vacancy in an OT position and the position was advertised, I think, in about September. The person vacated the position in approximately August. The position was advertised in September. We got absolutely no response to the advertisement and it had to be re-advertised later in the year, maybe it was November. And I think for the one position we got four applicants. So I feel - my interpretation of that was that we - we are advertising positions and they are just not attractive to people out in the - new graduates or experienced people like - - -
PN749
Were you on the interviews?---Yes, I was.
PN750
And what did the people being interviewed say about working for you?---Well, generally, they were new graduates so we - we are attracting new graduates to the position and because of the - as I explained in my - in some of the other points I made in my statement, the position is actually better suited to someone who has got experience. So for a new graduate - the positions aren't specifically suited to new graduates. Experienced people are better suited to the position. That is what I am trying to say.
**** LISA JANE MAGNUSSON XN MR LANGMEAD
PN751
Now, if I could take you to paragraph 16?---Excuse me. Can I just also add an additional point? That we have lost two OTs in the past six weeks and that we have just readvertised two positions - the two positions and had six applications for two positions and this is only just going on right now as well. Sorry, I just thought I should add that because it is pertinent to the previous point.
PN752
And what sort of applicants are they?---70 per cent new graduates and there are two people who have applied who have got some experience.
PN753
Have you conducted interviews yet?---No, they will be taking place in approximately two weeks.
PN754
Did you advertise what the salary and conditions are?---No, but people make it - I know some of the applicants made the inquiry to the - yes, have made inquiries and are aware of the conditions and the salary, yes.
PN755
Can I take you to paragraph 16. The second sentence there you say the work you perform at the RVIB is equivalent to work performed by therapists in the public sector. Can you tell the Commission how you know that that is the case?---I liaise quite closely with - I receive referrals from hospitals and from community health centre occupational therapists and potentially other health professionals as well. And I know from professional development and other attendance at paediatric special interest groups and other special interest groups that I do work that is of similar calibre but potentially more complex in its nature because I am working with multiple disabled people who just - they have vision impairment but often times with other disabilities as well. And so, I mean, you know what - you liaise, you talk to people, you receive referrals or you cross-refer and so, therefore, you have a good feeling for what you do and what other people in other areas do.
**** LISA JANE MAGNUSSON XN MR LANGMEAD
PN756
PN757
MR LANGMEAD: Ms Magnusson, would you mind waiting there and some of these people might have a question for you?---Sure.
PN758
SENIOR DEPUTY PRESIDENT MARSH: Mr Eberhard.
PN759
PN760
MR EBERHARD: Ms Magnusson, can I take you to paragraph 6 of your statement please. In that, you state that you have approximately 15 ongoing clients and an extensive waiting list. Would it be fair to say, though, that for - depending upon the area and the time and - but most RVIB people would have anywhere from eight to 15 clients in that area?---Are you talking about occupational therapists or just general - workers in general?
PN761
No, no. Occupational therapists in particular?---Yes, it can vary, but of course it varies. I was only stating at the particular time when I took the witness statement that that was my experience at the time.
PN762
And that is what I am saying. It can vary from - - -?---It could vary, yes, you are correct.
**** LISA JANE MAGNUSSON XXN MR EBERHARD
PN763
It can vary from region to region and from time to time but generally the figure could be anywhere from eight to 15?---And it could be more than that. It could be 20. I have had a case load of 30 people waiting to see me at one time.
PN764
Also you then state later in that paragraph where you have a case management load of around 20 clients, now that will have been or will be, in the very near future, taken away from you as case managers are being introduced into the organisation?---Yes, but at the time, as I said, when I stated this, that was correct.
PN765
And can I take you to paragraph 11 where you talk about going on leave and not being replaced. Where that occurs other staff who remain on duty are asked to re-prioritise the clients nad if a particular or a new client requires service urgently, that person would provide that service of their behalf, would they not?---Yes, but generally if you are going away for some weeks at a time, your case load remains there waiting for you when you come back, and it would only be in - potentially a client who lost their vision in a car accident, for example, where there is an extreme acute example of us having to respond, where I would be asked to take that client. But generally, no, we wouldn't attend to another person's case load.
PN766
And then in point 12 you are talking about the RVIB ceasing to provide social work intervention since July of this year. That, combined with the case manager role that is going to be introduced, will actually free up the therapists to provide more of their primary functions, will it not?---Well, in respect to case management, yes. But - and additional client - and the client interviews, my understanding is yes, that will be freed up but when it comes to additional office duties, no. We still - there is an expectation that we are having to do office duty tasks such as taking initial client information over the phone because we are short-staffed and that is across the board. All regions are short-staffed and all therapists have to tend to that duty.
PN767
But that is nothing new, is it, in that you would be required to attend to phone calls as part of your normal day to day functions?---No, not calls where we have an office person to do that.
**** LISA JANE MAGNUSSON XXN MR EBERHARD
PN768
And can I take you to paragraph 13. You talk about the occupational therapists joining the Australian Occupational Therapy Association. Now there is no requirement from RVIB that you be a member of that organisation, is there?---Sorry, its accreditation program?
PN769
Program?---No, there is not. But that is likely in the future that it will be favourable and you will be considered a more worthy occupational therapist and with ongoing professional development and striving to be a better therapist if you - you will be considered more favourable so it is in your favour and also benefiting the organisation to a major extent because you are involving yourself with the ongoing - your professional needs.
PN770
Okay. Then in paragraph 15 you talk about the numbers of staff leaving and when staff leave - I presume that should be RVIB, it usually takes over two months to replace them. Can I say that one of the reasons for that is that there is an assessment of the need for that position and whether it needs to be replaced and there is a process that is gone through to determine whether or not there can be adjustments made to that and that is one of the reasons why there is a time that is taken in regards to replacing those types of positions?---Well, potentially that is correct but I also gave you the outline of what happened last year when we didn't have one applicant for the position that was advertised and that was in September and so the position wasn't filled until December. And that is the reality, that we didn't have one applicant.
PN771
Okay, thank you.
PN772
PN773
MR WHITE: Ms Magnusson, just on that last point, where it might take two months to replace someone, are you aware of whether or not the Department of Human Services funding stops for that period of time?---I don't think it does, but I am not a manager so I am not a hundred per cent certain.
**** LISA JANE MAGNUSSON XXN MR WHITE
PN774
All right. Now what category are you under the award? Are you aware of that?---I am grade 2, year 3.
PN775
So grade 2, year 3?---Yes.
PN776
And does that mean your salary then is $47,473.47 a year? Does that sound about right?---Approximately pretty close, yes.
PN777
The question - the problem that you speak of in paragraph 14 and onwards in relation to recruitment and retention of staff is that there is a problem attracting staff to the organisation because of the level of wages compared with wages in the public sector. Is that right?---Yes, that is my belief.
PN778
And on what do you base that belief?---I think I have outlined what my understanding of my belief a couple of times in the actual length of time it took for any response to that grade 1 position.
PN779
Sorry, I interrupted you?---Is that - no, that is okay.
PN780
Sorry?---Yes. I don't think we can have a clearer indicator as to - if people aren't applying for the position, therefore nobody wants the position because maybe they are - generally when people apply for a grade 1 position they are also seeking out information on wages. I know that. I have been in the situation myself. So they may have done, I am assuming, a comparison between the public sector and the disability sector.
PN781
Do you salary package?---Yes, we do.
PN782
How much do you salary package?---Myself?
**** LISA JANE MAGNUSSON XXN MR WHITE
PN783
Yes?---Or how much can I salary package?
PN784
How much can you yourself salary package?---I don't salary package the full amount. 13,000, I think.
PN785
Are you aware - have you done the sums or has anyone told you what a wage outcome would be if the Government offer was accepted? That is, three per cent, three per cent, three per cent. A compound of 9.27 per cent increase. Has anyone told you that figure?---Yes, it sounds familiar.
PN786
Are you able to recollect what that figure is?---That we would still - if we were getting that staggered amount over a period of three or four years or whatever it was, I think we were still going to be approximately three per cent behind.
PN787
But this was going to be introducing the offer straight up. It wasn't going to be staggered, was it? Or were you told it was going to be staggered?---Well, that was my understanding. Sorry, when was this to be introduced?
PN788
Well, do you understand what the Government offer for wages and conditions - or for wages translates to in terms of you and your salary?---My understanding of the situation was that we - whatever we got we were still going to be behind the public sector.
PN789
Yes. How much - in terms of - sorry. How much money behind the public sector do you think it would take before people are discouraged from working at RVIB? For example, would people be discouraged if they were $100 a year behind?---All I can state is in the terms of what I experience and as a grade 2 - - -
PN790
Quite apart from - - -?---Okay.
**** LISA JANE MAGNUSSON XXN MR WHITE
PN791
Can you just answer my question?---Well, my experience is and if you are wanting it in terms of someone being employed and say I am grade 2, year 3, I know that I am approximately $4000 behind someone working in the public sector, therefore why would somebody then choose disability over public sector?
PN792
But I will put, perhaps, my question in this way. If the difference in wages was only a matter of two or $300 a year, then I suggest to you that that would resolve the problem you talk of in attraction and retention?---I believe it is significantly more than two or $300 a year.
PN793
That is not the question I asked?---Well, can you please repeat the question?
PN794
If the difference was only two or three or $400 a year, that would resolve, would it not, the question of attraction and retention?---I don't understand why you are asking me that question though, because that is not the reality.
PN795
Well, you don't need to understand it, Ms Magnusson. You just need to answer it?---For the purpose of answering the question, I actually don't know because I don't know what motivates people then. I can't say. Someone may say three or $400 doesn't matter to me.
PN796
Well, has anybody that you have spoken to indicated at what level they would become dissatisfied and choose not to choose to work at RVIB because of the salary being offered?---No, nobody has told me.
PN797
Have you ever been told, Ms Magnusson, that the public sector rate for grade 2, year 3, is $52,285.99 a year or thereabouts. Perhaps not that specific figure, but - - -?---No, it is around about, yes.
[4.05pm]
**** LISA JANE MAGNUSSON XXN MR WHITE
PN798
And have you ever been told that the government offer applied to your salary, grade 2, year 3 would provide a salary of $51,874.26 - have you ever been told that?---Sorry, I am not - could you please repeat that.
PN799
Have you ever been told that if the government offer of salary was applied to your - you - to your salary, that your salary would increase to $51,874.26 a week - a year?---I don't understand the point that you are making.
PN800
Don't worry about whether you understand the point or not, have you ever been told - - - ?---I can't answer the question if I don't understand what you are saying.
PN801
Have you ever been told what your salary would be if the government offer was accepted?---No.
PN802
All right. And has anyone ever explained to you what your salary would be if the government offer was accepted and you retained your existing level of salary packaging?---No.
PN803
Can I suggest to you that if that was the case your - can I suggest to you that if the government offer was accepted, and you retained your existing level of salary packaging that your weekly wage would be nearly $75 a week higher than an equivalent grade 2, year 3, in the public sector. Has anyone ever told you that?---My understanding is that if I was grade 2, year 3 in the public sector that I would be getting paid more money, therefore I could salary package more money, so the differential would probably not be very different between what - yes, what I am saying and what you are saying.
PN804
Have you been told, have you, that salary packaging is the same in the public sector as in the non-government sector?---No, they are significantly less, but then - - -
**** LISA JANE MAGNUSSON XXN MR WHITE
PN805
Yes, that is what you have been told?---I know it is less.
PN806
Yes. So, Ms Magnusson, nobody, including you have gone through and applied to your salary in your circumstances the impact of the government offer - is that your evidence to the Commission?---I have discussed it with representatives of the union.
PN807
You are aware too, aren't you Ms Magnusson, that - - -
PN808
COMMISSIONER BLAIR: Does that mean that someone has gone through and applied to you in your circumstances what the government offer would be?---In the broadest sense not really down to my nitty gritty wage but we talked about it in the broader sense in terms of if you are salary packaging and your wage changes, and comparing that to the public sector in the broadest sense that it what - I haven't really - we haven't looked at our individual wages.
PN809
No-one has ever worked out the numbers?---No. Only rough figures.
PN810
MR WHITE: Ms Magnusson, if you accept the figures that I put to you before, that is approximately if the government offer is accepted and you continued your salary packaging arrangements and if you accept for the sake of argument your weekly rate of pay is $75 a week - it would be $75 a week better off - in net terms that would, in your view, address very significantly any attraction or attention problems that the RVIB might have with the problem?---I am not sure.
PN811
Well, if $75 a week less discourages people from working at RVIB, surely $75 a week net more will have the opposite effect would it not?---I don't know if I can apply it because I earn more money than what a grade 1 person coming to RVIB would earn. It wouldn't be that much, I don't believe.
**** LISA JANE MAGNUSSON XXN MR WHITE
PN812
Yes. I have no further questions.
PN813
SENIOR DEPUTY PRESIDENT MARSH: Thank you. Mr Langmead.
PN814
MR LANGMEAD: No re-examination, your Honour. Might Ms Magnusson be excused?
PN815
SENIOR DEPUTY PRESIDENT MARSH: Yes.
PN816
Ms Magnusson, you may be excused?---Thank you.
PN817
PN818
SENIOR DEPUTY PRESIDENT MARSH: Mr Langmead, we need to adjourn at 4.15 so it might be appropriate if we adjourn until 10 o'clock tomorrow morning.
PN819
MR LANGMEAD: Yes. Yes, your Honour. That - - -
PN820
SENIOR DEPUTY PRESIDENT MARSH: If that would be convenient for everybody?
PN821
MR WHITE: Not quite yet, your Honour, because I have some presents to give, only to save carrying them backwards and forwards. And the instructions have them to be Folders of Authorities and if it is convenient we can give the Bench copies, and also all those at the Bar Tables.
PN822
SENIOR DEPUTY PRESIDENT MARSH: Yes. You don't want that marked, do you?
PN823
MR WHITE: No.
PN824
SENIOR DEPUTY PRESIDENT MARSH: No, thank you.
PN825
COMMISSIONER BLAIR: I thought they may have been an early Christmas present, Mr White, but you disappoint me.
PN826
MR WHITE: It is Christmas reading, Commissioner.
PN827
MR PARSONS: Your Honour, I also have witness statements I would like to tender at this late stage, from one of the clients that the - parties have got - - -
PN828
SENIOR DEPUTY PRESIDENT MARSH: Yes. All right, Mr Parsons.
PN829
MR PARSONS: Yes, they have got one informally.
PN830
SENIOR DEPUTY PRESIDENT MARSH: So you are formally tendering them?
PN831
MR PARSONS: I formally tender them.
PN832
SENIOR DEPUTY PRESIDENT MARSH: We will mark that exhibit - I just need to identify the document.
PN833
MR WHITE: Yes. I got handed that this morning, I think, and I reserve my right in respect of that.
PN834
SENIOR DEPUTY PRESIDENT MARSH: Okay. Well, on that basis then I might mark it formally in the morning.
PN835
MR PARSONS: Yes.
PN836
SENIOR DEPUTY PRESIDENT MARSH: Yes. All right.
PN837
MR LANGMEAD: I haven't had the opportunity of reading it either, so, yes.
PN838
SENIOR DEPUTY PRESIDENT MARSH: No. All right, well, we will adjourn until - unless there is anything else - adjourn until 10 am tomorrow morning.
ADJOURNED UNTIL WEDNESDAY, 13 NOVEMBER 2002 [4.11pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
ERIN CRESSHULL, AFFIRMED PN222
EXAMINATION-IN-CHIEF BY MR LANGMEAD PN222
EXHIBIT #HSUA3 WITNESS STATEMENT OF MS E CRESSHULL PN259
EXHIBIT #HSUA1 DRAFT ORDER PN269
EXHIBIT #HSUA2 OUTLINE OF SUBMISSIONS DATED 15/10/2002 PN269
EXHIBIT #HSUA3 WITNESS STATEMENT OF MS E. CRESSHULL PN269
EXHIBIT #HSUA3A HSUA DISABILITY EARLY INTERVENTION RESIDENTIAL CARE SALARIES AND CONDITIONS CLAIM 2002 PN269
CROSS-EXAMINATION BY MR EBERHARD PN275
CROSS-EXAMINATION BY MR MALONEY PN283
FURTHER EXAMINATION-IN-CHIEF BY MR LANGMEAD PN289
CROSS-EXAMINATION BY MR WHITE PN292
EXHIBIT #W1 TABLE OF CALCULATIONS OF MR WHITE IN RELATION TO SALARY RATES PN356
RE-EXAMINATION BY MR LANGMEAD PN473
WITNESS WITHDREW PN511
MELISSA AKMENTINS, AFFIRMED PN514
EXAMINATION-IN-CHIEF BY MR LANGMEAD PN514
EXHIBIT #HSUA12 STATEMENT OF M. AKMENTINS AS AMENDED PN545
CROSS-EXAMINATION BY MR EBERHARD PN554
CROSS-EXAMINATION BY MR WHITE PN574
WITNESS WITHDREW PN586
GREGORY ALAN WICKS, AFFIRMED PN587
EXAMINATION-IN-CHIEF BY MR LANGMEAD PN587
EXHIBIT #HSUA34 WITNESS STATEMENT OF GREGORY ALAN WICKS PN597
CROSS-EXAMINATION BY MR EBERHARD PN603
EXHIBIT #E1 JOB DESCRIPTION FOR McKILLOP FAMILY SERVICES PN607
CROSS-EXAMINATION BY MR WHITE PN612
WITNESS WITHDREW PN621
AMANDA JANE HALE, SWORN PN622
EXAMINATION-IN-CHIEF BY MR LANGMEAD PN622
EXHIBIT #HSUA13 WITNESS STATEMENT OF AMANDA JANE HALE PN637
CROSS-EXAMINATION BY MR WHITE PN649
WITNESS WITHDREW PN665
MARCO BOLANO, SWORN PN666
EXAMINATION-IN-CHIEF BY MR LANGMEAD PN666
EXHIBIT #HSUA22 WITNESS STATEMENT OF MARCO BOLANO PN683
CROSS-EXAMINATION BY MR EBERHARD PN685
CROSS-EXAMINATION BY MR WHITE PN699
WITNESS WITHDREW PN713
JOANNA REBECCA BROCKMAN, AFFIRMED PN714
EXAMINATION-IN-CHIEF BY MR LANGMEAD PN714
EXHIBIT #HSUA33 WITNESS STATEMENT OF JOANNA REBECCA BROCKMAN PN720
CROSS-EXAMINATION BY MR EBERHARD PN722
WITNESS WITHDREW PN742
LISA JANE MAGNUSSON, SWORN PN743
EXAMINATION-IN-CHIEF BY MR LANGMEAD PN743
EXHIBIT #HSUA4 WITNESS STATEMENT OF LISA JANE MAGNUSSON PN757
CROSS-EXAMINATION BY MR EBERHARD PN760
CROSS-EXAMINATION BY MR WHITE PN773
WITNESS WITHDREW PN818
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