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Fair Work Australia Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 64838-1
COMMISSIONER CRIBB
AG2011/11970
s.185 - Application for approval of a single-enterprise agreement
Application by TriCare Limited
(AG2011/11970)
Brisbane
10.04AM, TUESDAY, 8 NOVEMBER 2011
PN1
THE COMMISSIONER: Good morning, everybody. Please be seated. I shall take appearances. Thank you.
PN2
MR A. HORNEMAN-WREN SC: If the tribunal pleases, I seek permission under section 596 of the Act to appear for TriCare Ltd, and the other related bodies corporate that appear in paragraph 1.3 of the amended form F17. My name is Horneman-Wren, initials A.A.J., of Senior Counsel. I'm instructed by Blake Dawson lawyers.
PN3
THE COMMISSIONER: Thank you, Mr Horneman-Wren.
PN4
MS V. SEMPLE: Commissioner, I don't - my name is Vonnie Semple. I appear on behalf of the Queensland Nurses' Union of Employees, but we object to the appearance of counsel for TriCare in this matter, and I wonder if you would like me to address that now or after you've taken the other appearances.
PN5
THE COMMISSIONER: How about we make it to the end of the appearances before we have the discussion about that issue. Would that be all right, Ms Semple?
PN6
MS SEMPLE: Yes. Thanks, Commissioner. Appearing with me is Mr M. DOUGHERTY from the Queensland Nurses' Union.
PN7
THE COMMISSIONER: Thank you, Ms Semple.
PN8
MR K. COURT: If it pleases the tribunal, Court initial K appearing on behalf of the Australian Workers' Union of Employees Queensland.
PN9
THE COMMISSIONER: Thank you, Mr Court.
PN10
MS G. BUTLER: Thanks, Commissioner. Gerard Butler appearing for United Voice.
PN11
THE COMMISSIONER: Thank you, Ms Butler. Right. Before we deal with the issue of permission to appear, I need to say two things: one is I appreciate the fact that the parties have been flexible enough to be here today. It hasn't been exactly suitable for everybody, and I want to acknowledge that and thank everybody for flexing enough so they can. The second thing is that the tribunal is available today until 2.30 because I'm based in Melbourne, as all of you probably know, and I was up for a matter yesterday. I need to get back before midnight tonight so 2.30 is pumpkin time, but I'm absolutely available for all of that time.
PN12
Mr Horneman-Wren - hold on a sec. Mr Court and Ms Butler, do you share Ms Semple's concerns or objections to Mr Horneman-Wren's seeking permission to appear? Is everybody going to take a pragmatic approach or are we going to have a fight about this thing initially? Do you want a minute to have think about it?
PN13
MS BUTLER: Commissioner, for the sake of the record, I'll put on the record that we support Ms Semple's objections.
PN14
THE COMMISSIONER: Cool.
PN15
MS BUTLER: It's a straightforward matter. It's unusual for counsel to be involved in such a relatively straightforward (indistinct)
PN16
THE COMMISSIONER: Thank you. Mr Court, do you have a similar view?
PN17
MR COURT: The AWU will support QNU's objection.
PN18
THE COMMISSIONER: Lovely. Thank you very much. Mr Horneman-Wren, would you like to explain as to why it's absolutely necessary to be here this morning.
PN19
MR HORNEMAN-WREN: My application is made under section 596(2)(b) and (c). If I can address (c) first in relation to the unfairness, not to allow the person - being my client - to be represented taking into account the fairness between them and other persons in the same matter, it's my client's application to have the agreement approved. Commissioner, you'll be aware that the tribunal has - even in matters to which you have already alluded this morning - tried to engage the parties to arrange appropriate times that people are available. You might recall - and I can provide the correspondence if need be - that one of the issues which arose was the availability of another member of the bar to represent my client on this occasion, who was unavailable.
PN20
Correspondence, which, to my recollection, passed from the QNU - but it doesn't materially make any difference now that all the union parties object to my appearances - included a suggestion that if the counsel who had then been engaged on the date that was proposed was unavailable then other counsel ought be engaged, or words to that effect. Consideration would need to be given to my client engaging with other counsel. With respect, it has been well-known that TriCare is represented by Blake Dawson throughout this process.
PN21
To write in such terms to suggest that in order to facilitate the appearance of my client, then other counsel - rather than no counsel at all - ought be engaged, is, with respect, somewhat unfair to now raise on the morning of the hearing that objection is to be taken without any prior warning and with that correspondence suggesting that objection would not be taken. The matter has a bit more of an industrial history to it, as I understand it, in the sense that there were other related proceedings which were before the tribunal in which Mr Murdoch of Senior Counsel appeared.
PN22
But if I might then turn to sub-paragraph (a) of section 596(2). In my submission, the appearance of counsel will facilitate the matter being dealt with more efficiently. One always hastens not to suggest to anyone that this is a highly complex matter, but there are issues of complexity. Indeed, in the submissions that have been filed by the union parties at the end of last week, a number of issues have been raised which go to the construction of the Act and the construction of the relevant modern award, and those are matters that are not without complexity and ought be addressed.
PN23
Now, the proceedings have been confined in the sense that the material was to be provided by the union parties on Thursday of last week. I don't make any comment about the timing of that, other than that having received the material on Friday and our material being delivered yesterday, it is somewhat of a confined timetable that the tribunal has - conveniently, I must say - given us to try and resolve the matter. In terms of it being efficiently dealt with and the complexity of the issues raised - and there are issues concerning the evidence that is sought to be lead by the QNU in relation to the matter - they're all matters which are appropriately dealt with by a lawyer, in my respectful submission.
PN24
For those reasons, I press my application for permission.
PN25
THE COMMISSIONER: Thank you, Mr Horneman-Wren. I need to note for the record that I am not a lawyer. Ms Semple.
PN26
MS SEMPLE: Thank you, Commissioner. I must say that QNU, I acknowledge, didn't raise an objection when it was first mooted that counsel appear, but I believe there's no requirement to do so at that stage and we raise the objection here when the application has actually been made to Fair Work Australia for Mr Horneman-Wren to appear as legal counsel. We'd say that there is no unfairness is not allowing TriCare to be represented by counsel as Mr O’Brien, as he has said in his statement, is a lawyer himself and has been a HR manager in numerous large organisations and at TriCare for quite a long time. He has detailed knowledge of the award, I would think, in his position.
PN27
For Mr Horneman-Wren to say that the construction of the award is a complex matter I think is incorrect, and the reading and interpretation of awards is stock and trade of a human resources manager. An industrial officer in Mr O’Brien would be well-placed to do that. There was another comment made about the QNU's witness statements. I don't believe there's anything complex in them. They're merely stating matters that we believe to be fact as to the placement of TriCare nurses, as a comparison of the agreement against the relevant award, which we would say is a fairly straightforward matter.
PN28
Those are my submissions for the moment. Thanks, Commissioner.
PN29
THE COMMISSIONER: Thank you, Ms Semple. That's all right. Two more. Hold on. Mr Court, is there anything in addition to what Ms Semple has said that you wish to add?
PN30
MR COURT: No, Commissioner.
PN31
THE COMMISSIONER: Thank you. I assume that's the same for you, Ms Butler?
PN32
MS BUTLER: With one addition, Commissioner. That is that I simply point out that in Mr O’Brien's statement he indicates that he has actually, in addition to being a HR manager of some considerable experience both within TriCare and the whole sector generally, also has an understanding of the competency-based training framework, but most importantly has also been a legal officer for the Queensland Chamber of Commerce and Industry. On that basis, we would consider that Mr O’Brien, combined with the other representatives of TriCare, would be more than capable of representing the organisation's interests without even dealing with some of the matters of alleged legal complexity.
PN33
THE COMMISSIONER: Thank you, Ms Butler.
PN34
MR HORNEMAN-WREN: I'd reply to just two points of that, your Honour.
PN35
THE COMMISSIONER: Of course.
PN36
MR HORNEMAN-WREN: The issue concerning the QNU material goes to its admissibility, not on the assumption that it should be before the Commission, and there are issues concerning the nature of that, that, with respect, you ought hear. As far as the parties point to Mr O’Brien, and in doing so referred to what he said in his statement of evidence, it somewhat misses the point that he is a witness in the proceedings. It becomes entirely inappropriate for Mr O’Brien to be the person who then conducts the proceedings. Is he to examine himself, re-examine himself, take objection on his own behalf to objectionable questions taken?
PN37
With respect, pointing to Mr O’Brien really points up the unfairness of the circumstances that have arisen without notice because he's an entirely inappropriate person to conduct the proceedings, given that he's a witness in them. We can't deal with that in the circumstance of having someone else available to provide the role of advocate with Mr O’Brien as a witness to give evidence here in the course of the proceedings today.
PN38
THE COMMISSIONER: Is there anything further that any of the union representatives would like to say?
PN39
MS SEMPLE: Yes, Commissioner. Just that to resolve that issue of examining Mr O’Brien in the witness box, we would withdraw our objection to that part of the proceedings. If Mr Horneman-Wren is the only person who can perform the role for TriCare. Having said that - - -
PN40
MR HORNEMAN-WREN: I don't think there are shades of grey in section 596.
PN41
MS SEMPLE: Well, there are other legal officers present and other representatives of TriCare who could perform that role.
PN42
THE COMMISSIONER: Thank you, Ms Semple. With respect to section 596 of the Act, I'm going to take a pragmatic approach. My approach is generally, with great respect, Mr Horneman-Wren, not to have lawyers sitting at a bar table talking at me when the matters being dealt with are industrial. I'm not a hundred per cent convinced that this matter is other than industrial but I do understand the complexities of Mr O’Brien and all of that stuff. So, taking a pragmatic view of the requirements of the Act, I am going to grant you leave to appear. Consider yourself lucky.
PN43
MR HORNEMAN-WREN: I shall.
PN44
THE COMMISSIONER: Right. Now - sorry, Ms Semple.
PN45
MS SEMPLE: Sorry. I have another preliminary matter to raise, if I might, at this stage.
PN46
THE COMMISSIONER: Sure. Of course.
PN47
MS SEMPLE: I'm also a witness in this matter, and I'm seeking leave for me to remain in the courtroom prior to giving evidence myself, and Ms Anne Stevens - who is behind me - is our other witness.
PN48
THE COMMISSIONER: Yes.
PN49
MS SEMPLE: She's an organiser for TriCare, and she has been involved in the TriCare negotiations for the two years of this negotiation, but prior to that as well has an in-depth knowledge of TriCare operations. We have Mr Dougherty, who we propose act as the advocate when I'm in the witness box. So we'd seek your permission to use that procedure.
PN50
MR HORNEMAN-WREN: I have no objection to any of that, Commissioner. I should say for completeness I raised it with my learned friend before proceedings. We likewise have Mr O’Brien and all our witnesses here. It's not that sort of matter, it doesn't seem to me, where people are going to be asked the different versions of conversations or anything like that. It seems appropriate that all the witnesses can remain in the hearing room during the course of these proceedings.
PN51
THE COMMISSIONER: Thank you, Mr Horneman-Wren. Is that okay, Ms Semple?
PN52
MS SEMPLE: Yes. Thank you, Commissioner.
PN53
THE COMMISSIONER: Lovely. Excellent. Third time lucky. Is there anything else that needs to be dealt with before we get into the substantive matter? Cool. Okay. Mr Horneman-Wren, just in terms of process, could you - I just want to make sure that we can use our time as efficiently as possible today.
PN54
MR HORNEMAN-WREN: I did wish to raise with your Honour the order that your Honour proposed.
PN55
THE COMMISSIONER: Yes.
PN56
MR HORNEMAN-WREN: I was somewhat guided by the directions in terms of the material from the unions being put on first and ours on second that your Honour might have been minded to have the evidence called in that order and addresses made in that order. That's the only issue that I wish to have raised.
PN57
THE COMMISSIONER: Yes.
PN58
MR HORNEMAN-WREN: As far as opening is concerned, and particularly given what the tribunal has said in relation to the pumpkin hour, I don't propose to open in any way. I think the issues are alive. I would have thought that if the evidence is called I have some limited cross-examination of the QNU deponents. Likewise, the parties will no doubt have something for Mr O'Connor and Mr O’Brien. Then if we move straight to addresses. For our part, we've put on much of what we want to say in the written submission that was filed yesterday afternoon, which I don't know whether your Honour has had the chance to read- - -
PN59
THE COMMISSIONER: I have.
PN60
MR HORNEMAN-WREN: It will be speak to those more important issues than to recite and rehearse everything that is necessarily dealt with here.
PN61
THE COMMISSIONER: Cool. Thank you. Ms Semple, how do you see the order of - - -
PN62
MS SEMPLE: Yes. I've got no objection to the order proposed by Mr Horneman-Wren. We'd like to hear from the witnesses first before making submissions.
PN63
THE COMMISSIONER: Sure.
PN64
MS SEMPLE: As far as the QNU submissions go, we would seek for our outline of submissions to be taken as read, and I'll just make some brief additional submissions and also respond to some of the points made in the employers' and other outlines of submissions. So, my submissions will not take more than half an hour. Probably much less, actually.
PN65
THE COMMISSIONER: It's only 2.30. Look, if the worst comes to the worst we could do the video conference thing from Melbourne to Brisbane. It's not ideal but if we need to, the next week, week after that is something that's possible. But I would understand for all of the parties that - "urgency" is probably too strong a word - expediting the application would be something that is close to everybody's heart in this room I suspect.
PN66
MS SEMPLE: Yes. That's correct. I'll just add that I do have just a couple of questions for Mr O'Connor and a few questions for Mr O’Brien.
PN67
THE COMMISSIONER: Okay. Now, Ms Semple, are you happy for - if my memory serves me correctly, it's QNU only that has witness evidence. So, are you happy for your witnesses to go first then followed by Mr O'Connor and Mr O’Brien?
PN68
MS SEMPLE: Yes, Commissioner.
PN69
THE COMMISSIONER: Would that be suitable?
PN70
MS SEMPLE: Yes.
PN71
THE COMMISSIONER: Okay. Excellent. I'd like to thank all of the parties for all of the material, the outlines of submissions and also of the witness statements from QNU and from TriCare Ltd. I need to indicate that, for my sins, I've read it all. I nearly drowned in paper. But I do appreciate the fact that everybody has gone to a great deal of trouble to spell out in words of one syllable what the issues are. That has been extremely helpful so thank you all for that. Ms Semple, in terms of your outline of submissions, would you like to tender those and have them marked as an exhibit and then speak to them briefly?
PN72
MS SEMPLE: Well, it was my intention to speak to them following the witnesses because there may well be issues raised that you want to address.
PN73
THE COMMISSIONER: Of course. Thank you.
PN74
MS SEMPLE: So we might do that at that time, Commissioner.
PN75
THE COMMISSIONER: I won't mark them now. Cool. Are you going to be giving evidence first, Ms Semple or Ms Stevens?
PN76
MS SEMPLE: I might call Ms Stevens first, if the Commission pleases.
PN77
THE COMMISSIONER: Okay. Thank you.
PN78
MS SEMPLE: I call Anne Stevens. Does the Commission have copies of Ms Stevens' statement and attachments?
<ANNE STEVENS, AFFIRMED [10.26AM]
<EXAMINATION-IN-CHIEF BY MS SEMPLE [10.26AM]
MS SEMPLE: Please state for the tribunal your full name and address?---My name is Anne Stevens. The address is (address supplied).
PN80
You've been handed a document. Could you tell the tribunal what that document is?---This is a statement that I made at the QNU office in relation to this matter (indistinct)
PN81
Were there any amendments you wanted to make to that statement?---I have one amendment I'd like to make in paragraph 7. Third line down it says, "I have previously spoken to other nurses employed by TriCare who are similarly stuck on PC step 1 and cannot progress because there are difficulties in completing the course skill booklet". I'd like to add "and/or module".
PN82
THE COMMISSIONER: "And/or module"?
PN83
MS SEMPLE: Ms Stevens, with that amendment, is that statement, to the best of your knowledge, true and correct?---Yes, it is.
PN84
I seek for that statement to be admitted into evidence with the attachment.
PN85
MR HORNEMAN-WREN: Perhaps before it is, if I might be heard on objection to certain parts of it, including that paragraph that has just been read. My objection is to paragraph 6, paragraph 7 and to the first two sentences of paragraph 8. The reasons - and I don't wish to take objections for the sake of taking them - but in terms of the hearsay that is raised there, there is really in fairness no way for my client to be able to respond to the issue that's raised. There's no identification of the person, there's no identification even now of the steps or modules that are said to be the inhibitor in the person progressing. We're really just unable to deal with such hearsay, and it's for those reasons that I object.
**** ANNE STEVENS XN SEMPLE
PN86
The balance of paragraph 8 is something which Ms Semple is able to say, that runs from the words "the agreement currently before FWA", there's nothing objectionable about that part of paragraph 8. But the whole of paragraph 6, 7 and the first two sentences of 8 I object to for that reason. Thank you.
PN87
THE COMMISSIONER: Thank you, Mr Horneman-Wren. Ms Semple.
PN88
MS SEMPLE: Commissioner, we'd say that is not hearsay evidence. Ms Stevens is simply reporting a conversation that she has had and she was party to that conversation. Therefore, she is entitled to make a statement to that effect. As to the ability of TriCare to respond, I will actually have some questions of Mr O’Brien which will give him an opportunity to respond. Nevertheless, if Mr O’Brien or TriCare wanted to address that point, I would have no objection to Mr O’Brien adding that into his evidence-in-chief.
PN89
MR HORNEMAN-WREN: Can I just respond. If it's said that the evidence is not relied upon for the truth of what is said, that is, that simply Ms Stevens saying she had that conversation but QNU doesn't rely upon the truth of it - which seems to be the exception to the hearsay rule that Ms Semple raises - then I can't object to it, but it becomes utterly irrelevant to the proceedings if it's not relied upon as being fact rather than all that Ms Semple wants to tell you is that she has had a conversation. So, with respect, if it's not relied upon for its truth or accuracy then I withdraw the objection, but if it is in any way I maintain it.
PN90
With respect, it doesn't meet the issue concerning fairness to say, "Well, I'm going to ask Mr O’Brien about that", because if indeed any more specificity is raised then that's the very issue that should have been raised in the evidence so it's not a question of saying, "Well, Mr O’Brien could be asked questions in cross-examination about it". That only, with respect, points up the unfairness as opposed to ameliorating it.
**** ANNE STEVENS XN SEMPLE
PN91
MS SEMPLE: Cross-examination is at large so, notwithstanding any objection or what's in Ms Stevens' statement, the step progression and the ability for assistance emerging to move through that is core to our objections. I think further it's absolutely essential that the Queensland Nurses' Union cross-examine Mr O’Brien on that point.
PN92
THE COMMISSIONER: Ms Semple, is the material in particular that's being objected to - the purpose of including that in Ms Stevens' witness statement is about recording the conversation or is it more than that? Is it about the truth of the issue?
PN93
MS SEMPLE: Well, strictly, Ms Stevens can only record the conversation.
PN94
THE COMMISSIONER: Yes. That's what I thought. Cool. Thank you. Mr Horneman-Wren, I'm prepared to allow that material in. It will be given the weight that the tribunal normally accords such - - -
PN95
MR HORNEMAN-WREN: And on the basis that it's now advanced, it's evidence of conversation.
PN96
THE COMMISSIONER: Correct. Thank you. Right. So, on the basis of that conversation I shall mark the witness statement of Anne Stevens with the amendment to paragraph 7, together with one attachment - and Ms Stevens' statement is signed and dated 2 November. I shall mark it as exhibit Q1.
EXHIBIT #Q1 AMENDED STATEMENT AND ATTACHMENT OF ANNE STEVENS DATED 02/11/2011
THE COMMISSIONER: Ms Semple, were there any questions?
PN98
MS SEMPLE: Commissioner, I have no questions at the moment.
**** ANNE STEVENS XN SEMPLE
PN99
THE COMMISSIONER: No? Fine. Thank you. Mr Horneman-Wren.
<CROSS-EXAMINATION BY MR HORNEMAN-WREN [10.33AM]
MR HORNEMAN-WREN: Ms Stevens, in your statement you draw attention to the size of the core skills booklet that you exhibit as an
exhibit to your statement?
---Yes.
PN101
Am I correct in thinking that you draw attention to the size of it because it's, in your view, a large document? Is that correct?---It's a large document for people to ask, yes. It takes a lot of time.
PN102
You understand it, though, to be an assessment of core skills?---Yes.
PN103
You've taken time to peruse the document?---I have.
PN104
Would you consider or agree that, in fact, the skills that it does purport to assess are, indeed, core skills within the context of performing care services in a residential aged care facility?---Yes.
PN105
If we go to the particular content of the document, in light of your having drawn attention to its size. If we, for example, start with the first competency which is dealt with, that's the bathing regime so it seems?---Yes.
PN106
That itself runs for the first seven pages of the 69-odd that make up the document?---Yes.
PN107
When one goes through the bathing regime, one finds a series of particular aspects to the regime?---Yes.
PN108
There's the preparation then there's the bathing of the resident themselves?---Yes.
**** ANNE STEVENS XN SEMPLE
PN109
Oral hygiene?---Yes.
PN110
Grooming?---Yes.
PN111
Glasses, if the person happens to wear spectacles?---Yes.
PN112
Hearing aids, if the person happens to have a hearing aid?---Yes.
PN113
Then the process whereby the resident is left after the bathing regime?---Yes.
PN114
The documentation of what occurred during that period of time, if there are any notable incidents; for example, bowl movements or voiding of things of that kind. That's correct?---Yes.
PN115
Now, would you agree that all of those steps, assuming the resident is someone who has glasses and a hearing aid, and to the extent of oral hygiene also might have dentures, they're all things that would be performed in the course of attending to the bathing of the resident on any particular occasion?---Yes.
PN116
Indeed, they are core to the performance of that task?---Yes.
PN117
Would you agree that a person who has been working in the residential aged care environment, even at level 1 or step 1, these are activities which they would routinely perform in the course of caring for a resident?---Yes.
PN118
If the competency requires - and I won't take you through each individual question - but the competency, as you understand it, involves ensuring that the person knows first what they are required to do?---Yes.
PN119
Part of that is that they know that they need to be informed of what they are required to do by virtue of the particular resident care plan?---Yes.
**** ANNE STEVENS XN SEMPLE
PN120
Each resident of course must have a resident care plan?---Yes.
PN121
That will in fact document for the nurse or the personal care attendant what is required; for example, for the bathing of this particular person?---Yes.
PN122
The requirements are then that the actual bathing and other associated processes are conducted in the way that you expect that a person would conduct them. That's correct?---Yes.
PN123
And that it requires the staff member to give a self assessment as to whether they're competent or not. That's correct?---Mm'hm.
PN124
And somebody else, an assessor to provide their assessment as to whether the staff member is competent or not. That's correct?---Yes.
PN125
In terms of, for example, a bathing assessment, assuming a resident with glasses and a hearing aid - - -?---And dentures.
PN126
Well, and dentures, but oral care of course goes to people without dentures as well. It might be people who don't have dentures. It's just if they do they might have some other activities to perform. That's correct?---Yes.
PN127
In terms of an assessment of whether or not somebody is competent to perform the bathing regime, that could effectively be assessed in the course of one resident's assessment. That's correct?---It could be, yes.
PN128
One resident's bathing in the course of one day?---Yes.
PN129
Or it could be assessed if, for example, one resident doesn't have a hearing aid but the next resident does and both were done on the same morning, across those two residents. You'd agree with that?---Yes.
**** ANNE STEVENS XN SEMPLE
PN130
Similarly, for showering, if that's the process that that resident needs to undergo. That's correct?---Yes.
PN131
The toileting of a resident similarly can be assessed effectively within one episode of a resident being taken to the toilet. That's correct?---Yes.
PN132
All of those things are themselves, you would agree, core skills within the provision of the services to the resident?---Yes.
PN133
There are issues concerning the transfer of a resident, whether it be using hoist equipment or from a lying to a sitting position, things of that kind, that are dealt with in - - -?---Yes.
PN134
Again, they're core skills in the care of the residents. That's correct?---Yes.
PN135
Indeed, in terms of, for example, matters such as a sling hoist transfer that's dealt with in the competencies, that may be an activity which immediately precedes the showering or bathing function. That's correct?---Yes.
PN136
Or indeed immediately follows?---Yes.
PN137
So, indeed, in the course of an assessment that might address whether the person is competent in bathing a resident, it might also be an appropriate opportunity to assess whether they're competent in sling hoist transfers?---Yes.
PN138
The competency concerning lying to sitting might well be assessed in terms of, at the conclusion of the process after the resident has been bathed, transferred and returned to their room, their being placed in an appropriate position for their activity for the day?---Yes.
**** ANNE STEVENS XN SEMPLE
PN139
There are some other activities, for example, the high Jenni Wipe regime, they might not be particular matters that are not applicable to all residential aged care facilities or are you unaware of whether that would be the case?---The majority of aged care facilities use Jenni Wipes, yes.
PN140
Do you know from your own knowledge whether or not that's the case concerning all of the residential aged care facilities of TriCare that would be a party to this agreement?---I couldn't swear that all of TriCare facilities use Jenni Wipes, but as it's a common practice in most aged care facilities I would be confident in saying I think so.
PN141
At page 48 of the competency booklet, there is a competency dealing with spills, and particularly with a spills kit. Now, the criteria that are set out there are that the person demonstrates where a spills kit is located?---Yes.
PN142
Now, you'd agree with me that knowledge of where the spills kit is located, or one of what might be several in the facility, is a matter of core skill for a person who is a carer within a facility?---Yes.
PN143
The person has to be able to explain what is in a spills kit?---Yes.
PN144
That would be something which they would be familiar with, generally speaking, by mere introduction to the spills kit. That would be correct?---Yes.
PN145
The person needs to explain what the spills kit is used for, which would be something quite fundamental to cleaning up a spill when one encounters it, would it not?---Yes.
PN146
The person needs to be able to name three bodily fluids, which would include bodily fluids which one might come in contact with in the context of a spill in a residential aged care facility, which might be saliva, blood, urine, matters of that - - -?---Yes.
**** ANNE STEVENS XN SEMPLE
PN147
The person needs to be able to verbalise what PPE is, and that's personal protected equipment. That's correct?---Yes.
PN148
And name three types of PPE, which would be - in the context of an residential aged care facility, might include gloves?---Yes.
PN149
An apron?---Yes.
PN150
A mask?---Yes.
PN151
All of those things you would expect a person to be introduced to in the context of cleaning up a spill, that these are the things you need to put on before you go about dealing with, for example, a spill of bodily fluids, which might be urine, faeces or blood?---Yes.
PN152
The person needs to be able to name the equipment that should be used to clean up the spills. That's little more than identifying what's in the kit and what's appropriate for use in those circumstances. You'd agree with that?---Yes.
PN153
The person needs to be explained what bodily fluids need to be cleaned up by a spills kit and why. That's fundamental to identifying that any of those things which we've mentioned as a spill of bodily fluids ought be cleaned up. That's correct?---Yes.
PN154
The "why" would be the person is competent to identify that there's a chance, for example, of cross-infection if it wasn't cleaned up?---Yes.
PN155
All that might indeed pose a slip hazard to residents and/or fellow workers?
---Yes.
**** ANNE STEVENS XN SEMPLE
PN156
The person needs to explain how to clean up the bodily fluid. That's correct?
---Yes. That's what the competency says.
PN157
In relation to that, it doesn't seem to require any actual demonstration by the person of the actual activity, rather, just a knowledge of where to find the spill kit, what to use it for and matters of that kind. You agree with that?---I'd say so, yes.
PN158
So, broadly speaking, would you agree, Ms Stevens, that when one looks at the document which you point out as being a large document, when one breaks it down to the actual activities they are very much core and fundamental skills that would be acquired by all people who were performing residential aged care facility work?---Yes.
PN159
THE COMMISSIONER: Any re-examination, Ms Semple?
PN160
MS SEMPLE: Yes. Thank you.
PN161
MS BUTLER: Commissioner - - -
PN162
THE COMMISSIONER: I'm sorry.
PN163
MS BUTLER: Would it be possible for the other parties to question the witness as well?
PN164
THE COMMISSIONER: Of course. Sorry. I hadn't even thought about that. My apologies, Mr Butler.
<CROSS-EXAMINATION BY MR BUTLER [10.46AM]
MR BUTLER: In relation to your statement, Ms Stevens, can you tell us what qualifications you have?---I'm a registered nurse. I got my degree in 1995 in the University of South Australia.
**** ANNE STEVENS XXN BUTLER
PN166
You have direct experience of working with TriCare facilities?---I haven't worked in a TriCare facility. I was working with the public sector from 1995 to 2003. I also worked in an aged care facility on the northern suburbs of Brisbane for three years.
PN167
So you've had some experience of working in aged care?---Yes, I have.
PN168
In relation to the TriCare facilities, what end of the spectrum would the residents of TriCare fall into?---The majority of TriCare facilities are high-care facilities. They have a couple of low-care facilities with ageing in place. Ageing in place means that when a resident goes in with low-care needs, if their needs increase then they can stay in the same place and be looked after as a high-care resident.
PN169
Now, in relation to the core competency booklet, are you familiar with the certificate III in aged care?---Not particularly, no. I know that a lot of the competencies are taught in certificate III. They're also taught as a registered nurse. These competencies have got to meet them as well.
PN170
Would you be able to indicate the type of matters that are taught in a certificate III, to your knowledge?---There'll be the basic hygiene needs, mobility, nutrition - - -
PN171
Infection control?---- - - nutrition, hydration, the infection control, the manual handling, dementia care is often a neglected subject. So, there are all different subjects that people can take but it's usually nursing care. That's from the low end of the spectrum, which is how to mobilise and clean a person to the little bit higher end of how to feed residents and how to notify if there's issues that need to be notified to somebody higher up.
PN172
In terms of the hierarchy of the qualifications in aged care, certificate III is an entry-level qualification?---Yes.
**** ANNE STEVENS XXN BUTLER
PN173
What's the next level?---Diploma, which is - the certificate IV. There aren't many aged care facilities where the staff are required to have a certificate IV. Then it would be a diploma for an enrolled nurse, and it's a degree for a registered nurse. Masters for anything further.
PN174
Are you familiar with the concept of skill sets?
PN175
MR HORNEMAN-WREN: I object. With respect, the parties were directed to put on evidence if they were directed to lead evidence. What my friend is doing here is simply using the opportunity to cross-examine a related party as in the evidentiary sense, that is, someone who is advancing the same argument in the case as the party themselves. One doesn't normally get to cross-examine in those circumstances, and all, with respect, is occurring here is United Voice is trying to put on a positive evidentiary case which it chose not to do by filing its own material, and I object to it.
PN176
MS BUTLER: Your Honour, the issue has been raised as to the contents of the competency booklet. The issue is very clearly afoot in relation to the - for want of a better word - the status and comparability of the certificate III with the TriCare competencies as they propose. Whilst my learned friend, whilst his objection might be suitable in a court of law, I'm not actually terribly convinced it's appropriate here.
PN177
MR HORNEMAN-WREN: With respect, it's highly appropriate. There's a long line of authority concerning industrial tribunals and the ability of a party that has an aligned interest not being able to conduct a case in a way that United Voice is intending to conduct this case.
PN178
THE COMMISSIONER: Ms Butler, I did actually find it unusual to request to question - can I put neutrally - Ms Stevens, given that I figured you were sitting on the same side of the bar table as the organisation as Ms Stevens' organisation is in support of. So, I was sort of wondering what you were doing.
**** ANNE STEVENS XXN BUTLER
PN179
MS BUTLER: Well, Commissioner, one of the issues I'm trying to get to is the fact that there is some disagreement between the parties as to the applicable, relevant modern award, whether it's a nursing assistant - well, from our perspective, there's an issue. You may not - - -
PN180
THE COMMISSIONER: Are you sure you want all of this to be on transcript, Ms Butler?
PN181
MS BUTLER: No. Thanks, Commissioner.
PN182
THE COMMISSIONER: I don't think you do.
PN183
MS BUTLER: Well, I'll forgo any further questioning.
PN184
THE COMMISSIONER: I think that would be a fabulous idea. Thank you. Any re-examination?
PN185
MS SEMPLE: Yes. Thank you, Commissioner.
<RE-EXAMINATION BY MS SEMPLE [10.51AM]
MS SEMPLE: Just going through the core competency booklets that Mr Horneman-Wren has taken you through, Mr Horneman-Wren put it to you that these competencies could be done in the course of a short period of dealing with one resident, for example. Do you have any knowledge of how they're actually done and how long they actually take?---No. I have spoken, and I don't know whether it's admissible or not to - - -
PN187
THE COMMISSIONER: Mr Horneman-Wren will jump up if he has an issue?
---I have spoken to staff members - - -
**** ANNE STEVENS RXN SEMPLE
PN188
MR HORNEMAN-WREN: I object.
PN189
THE COMMISSIONER: Gee, you're slow.
PN190
MS SEMPLE: All right, then. We'll move on. Do you know of anyone working at TriCare who hasn't done the core competencies?---No. I've spoken to a few people that had difficulty in doing them and finalising them, but that's why I added to my statement "and/or modules".
PN191
I think you said in your statement that - - -?---I did say that there's difficulty in completing the core skills booklet for probation.
PN192
MR HORNEMAN-WREN: Well, with respect, that's trying to breathe the life back into the paragraphs of the statement that my friend suggested she wasn't reading them for on the last occasion. That is to say that there's now fact that these people haven't done it, rather than the conversation that Ms Stevens has had.
PN193
MS SEMPLE: All right. Well, I'll move on, I won't pursue that.
PN194
Do you deal with other aged care facilities in your role as organiser besides TriCare?---Yes, I do.
PN195
In your dealings with other aged care facilities - sorry. I'll go back a step. Can you just elaborate which facilities they are, or just - - -
PN196
THE COMMISSIONER: I may save Mr Horneman-Wren from jumping up. It's simple relevance, and where does it arise from cross?
PN197
MS SEMPLE: Okay. I take the point, Commissioner.
**** ANNE STEVENS RXN SEMPLE
PN198
THE COMMISSIONER: Sorry.
PN199
MS SEMPLE: I withdraw the question about the other facilities, but suffice to say - and you said in your statement that you had experience in aged care facilities. Are you aware of any other aged care facility where going through this rather lengthy core competency process is a requirement?---No.
PN200
That's all my questions.
PN201
THE COMMISSIONER: Thank you, Ms Semple. Ms Stevens, thank you for your evidence. You are discharged. You may step down.
<THE WITNESS WITHDREW [10.55AM]
<VONNIE SEMPLE, SWORN [10.55AM]
THE COMMISSIONER: Ms Semple, have a seat. Thank you.
PN203
MR DOUGHERTY: Commissioner, my name is Mark Dougherty. I'm going to lead evidence for Ms Semple. If I can hand up a copy of her statement, please.
PN204
THE COMMISSIONER: Thank you, Mr Dougherty.
<EXAMINATION-IN-CHIEF BY MR DOUGHERTY [10.56AM]
MR DOUGHERTY: Ms Semple, you have a copy of a document, being a statement under your name dated 3 November?---Yes, I do.
PN206
To the best of your knowledge, is that a true and correct statement?---Yes, it is.
PN207
Thank you, Commissioner. I ask that be admitted.
PN208
THE COMMISSIONER: Mr Horneman-Wren.
PN209
MR HORNEMAN-WREN: No objection, Commissioner.
PN210
THE COMMISSIONER: Thank you. I shall mark the witness statement of Vonnie Semple - it has five attachment and is dated 3 November 2011 - as exhibit Q2.
EXHIBIT #Q2 STATEMENT OF VONNIE SEMPLE DATED 03/11/2011
THE COMMISSIONER: Thank you, Mr Dougherty.
PN212
MR DOUGHERTY: Thank you, Commissioner. I have no questions.
PN213
THE COMMISSIONER: Lovely. Thank you. Mr Horneman-Wren.
**** VONNIE SEMPLE XN DOUGHERTY
PN214
MR HORNEMAN-WREN: I should probably ask at this stage whether anyone else intended to ask any questions because really I should go last.
PN215
THE COMMISSIONER: We should, yes.
PN216
MS BUTLER: I'll pass.
PN217
THE COMMISSIONER: Thank you, Mr Butler.
<CROSS-EXAMINATION BY MR HORNEMAN-WREN [10.57AM]
MR HORNEMAN-WREN: Ms Semple, at paragraph 8 of your statement you refer to the first of the analyses you perform, I think, in terms of attachment 2A, being a comparison between an AIN clause for a certificate III on the award rate and a personal carer step 1 of the TriCare classification. Now, in preparing that particular comparison, did you give any consideration to the fact that personal carers with a certificate III only ever enter at the step 2 under the terms of the agreement?---Yes, I did, and that is true of new entrants - new employees at TriCare. But existing employees who have a cert III - some existing employees who have a cert III remain on step 1.
PN219
In that regard, if they had a cert III but they had done the two competencies that are required for progression from step 1 to step 2 under the agreement, they would be at step 2. That's correct, even for an existing employee?---I beg your pardon? Can you repeat the question?
PN220
The requirement to move from step 1 to step 2 for an existing employee requires, apart from the core skills and the introduction to dementia unit being done, two national competencies to be attained. You're aware of that?---Yes.
PN221
They're "work effectively for older people" and "advocate for clients". You're aware of that?---I'm not aware of what they're called but - - -
**** VONNIE SEMPLE XXN HORNEMAN-WREN SC
PN222
Well, I suggest to you that if a person had a certificate III that included those units or commensurate units, they're able to get recognition for prior learning from TriCare for those two competencies?---It's my understanding, through discussions and negotiations, that they have to make application to - and actually do a process of recognition of prior learning. It's not an automatic process.
PN223
But there is a process whereby, if somebody has a relevant certificate III which might include those two things, they can draw that to the attention of TriCare and seek recognition?---Well, they can, but it's not an automatic process. It has to be - - -
PN224
Approved?---Well, not in the normal sense of recognition of prior learning.
PN225
Well, the recognition of prior learning requires someone to make a decision as to whether or not that competency or that prior learning is relevant in order to be recognised?---Well, actually, recognition of prior learning applies to someone who hasn't actually done a qualification but someone who has relevant experience, and then that is assessed against the competencies in a unit of competency or a certificate, whereas in this case it's not actually true recognition of prior learning because the person in question has a certificate III.
PN226
Recognition of prior learning, generally speaking, is a process whereby somebody has done some learning in a particular area. That's correct?---Well, not - it's not on-the-job learning.
PN227
Somebody is required to meet some level of attainment in their particular job?
---Well, they have to meet the competencies required by the training organisation.
PN228
In order to say that they've attained those levels, they point towards the prior learning which they've undertaken to say, "Well, I've actually really satisfied that". That's, in general terms, the process - - -?---In general terms, they point to skills and experience they've obtained on the job so it's actually a misnomer to say that someone has to seek recognition of prior learning to recognise a competency when they have actually already done that competency as part of their broader certificate. It should be automatically recognised.
**** VONNIE SEMPLE XXN HORNEMAN-WREN SC
PN229
But leaving aside perhaps an inelegance of expression, you wouldn't cavil with the idea that if somebody had done some learning which they said, "I ought have recognition of that against the two competencies that I require to move me from step 1 to step 2". You wouldn't cavil with that, would you?---Well, I would, actually, because it's two different things. Recognition of prior learning is a system whereby someone has their on-the-job training and skills that they've acquired recognised as a recognised competency or qualification, whereas it's a misnomer to say that - the wrong terminology to say that someone who has a certificate III has to then do recognition of prior learning to have part of that cert III recognised to be what it is already.
PN230
They ought not be put through the process of having to raise that issue with TriCare?---Correct.
PN231
But you're aware that there is a process that they can go through that? They can raise it with TriCare and say, "I've done this other learning. I want it recognised for the satisfaction of those two competencies that I need to get from step 1 to step 2"?---Yes, and that's one of our objections.
PN232
That will be considered by TriCare, as you understand it. That's correct? That's as you understand the process?---Yes. I don't know what actual process they go through.
PN233
Now, in your statement you've attached a number of analyses. In relation to the AINs with certificate, they're 2A, 2B and 2C, and the comparisons that you make with steps 1, 2 and 3, am I right in thinking that you made no comparison between an AIN with certificate III and step 4, because of the link between those two levels within the agreement?---Well, the purpose of these spreadsheets was to highlight the groups of employees who we believe are potentially not better off overall on the agreement than they would be on the award, and we acknowledge that once someone gets to a step 4 that they are better off.
**** VONNIE SEMPLE XXN HORNEMAN-WREN SC
PN234
So the purpose of the exercise was to demonstrate the deficiencies that you suggest are able to be identified between people in particular
circumstances?
---Well, as I've said in my statement the purpose was to use a roster that was supplied to us by TriCare and to use that roster to
demonstrate that an employee who is either - well, in one example - step 1, 2 or 3 which they may be, under TriCare's explanation,
against someone who - what someone would earn if they were on the award.
PN235
You do that by the different spreadsheets that you set out. That's correct?---Yes.
PN236
Just so that we understand the methodology that you've adopted in that regard, can I ask you to turn up the spreadsheet for 3B, where you compare the personal carer step 2 and the nurses award without certificate III, third year. Now, before I ask you questions about the spreadsheet itself, your point is, is it not, that under the award there is a time-based progression through years 1 through to 3?---Yes.
PN237
And that that's not the progression structure that's adopted by the agreement?
---Correct.
PN238
The agreement adopts a competency-based progression structure. That's correct?
---Yes.
PN239
The point that you seek to emphasise is that somebody who might have progressed to year 3 on a purely time-based progression might
be still at step 2?
---That's correct.
PN240
That's what 3B seeks to address. That's correct?---Yes.
PN241
Just so we can understand the methodology - Commissioner, do you have a copy of that with you? - you've taken, as you've identified in the statement, a particular roster and you've identified a particular line in the roster effectively, and you've taken that as a fortnightly roster and you've set it out for the days 10 January through to 22 January; a nine-day period in terms of work time?---Yes.
**** VONNIE SEMPLE XXN HORNEMAN-WREN SC
PN242
You've identified the shift times and then in the next column the hours, being eight for each shift. That's correct?---Yes.
PN243
Then the pay rate - and this is in the top half of the box to start with - is $17.38, and that's the pay rate you've taken for step 2 out of the proposed EB 5 - or EA 5, if I can use that expression?---Yes.
PN244
The next column is an application of the eight hours to the pay rate, the hourly rate of $17.38, to get the ordinary hours. That's correct?---Yes.
PN245
The next column across is Afternoon, which reflects the afternoon shift allowance. That's correct?---Yes.
PN246
We can see it's $17.38, which is the same as the hourly rate, but in fact what it is is it's 12.5 per cent shift loading for the - - -?---For the eight hours.
PN247
- - - eight hours. That's correct?---Yes.
PN248
Similarly, when we get to night, that's in fact a 15 per cent loading on the night shift hours that are identified on the roster. That's correct?---Yes.
PN249
Again, there is an additional amount. Similarly, the Saturday amount of $69.52, that's the 50 per cent loading for the Saturday shift. That's correct?---Yes.
PN250
As a whole amount; that's the additional amount to be added on, in your analysis?
---Yes.
PN251
Similarly, for Sunday, that's the 75 per cent additional amount to be added on for the Sunday shift. That's correct?---That's correct.
**** VONNIE SEMPLE XXN HORNEMAN-WREN SC
PN252
What we then do in terms of totalling is we go down to your line that shows totals of 72 hours. So, that's for the whole of the roster period. That's correct?---Yes.
PN253
We have ordinary hours - or ordinary earnings - of 1251.36?---Yes.
PN254
We have two afternoon shifts, so a total of $34.76?---Yes.
PN255
We have three night shifts, so a total of $62.57 additional for night shifts?---Yes.
PN256
We have two Saturdays, $139.04. That's correct?---Yes.
PN257
And a Sunday at 104.28?---Yes.
PN258
Then you've totalled across that line to come to 1592.01. That's correct?---Yes.
PN259
To which you then added the total of the uniform and laundry allowances payable under the agreement, which is $9.30, and we see your calculation of that in the left hand of the box which shows them as separate amounts. That's correct?---Yes.
PN260
You've added that, therefore, to the total to give a grand total for the fortnightly period, 1601 - - -?---Yes.
PN261
- - - and 31 cents. You've done the same then for the same roster but below that middle line, but taking the non-certificate III, year 3 level hourly rate out of the award. That's correct?---Yes.
PN262
And followed exactly the same process across?---Yes.
PN263
That analysis, as we see it on 3B of course, assumes you have somebody who has been in the facility working there for a minimum of three years so that they progress to year 3. That's correct?---Progressed to year 2. Sorry. If they were on the award they would be on third year, yes.
**** VONNIE SEMPLE XXN HORNEMAN-WREN SC
PN264
Well, they're third year and above so it assumes that, on a time-based progression, they'd been there for that period?---Yes.
PN265
It compares them with somebody who has not progressed on a competency-based progression beyond step 2. That's correct?---Correct.
PN266
We know that the requirement to progress to step 2 is the performance or the competency of the core skills competency booklet that we've discussed with Ms Stevens before, the introduction to dementia and those two national competencies that are identified in the agreement. That's correct?---Yes.
PN267
Now, what we don't see in your analysis is a comparison, for example, between somebody who is on third year under the award with somebody who is at step 3 under the agreement. You've not done that comparison, have you?---No.
PN268
But you would agree with me that in order to do that comparison what we would do would be, looking at the step 2 part of schedules 3B that you have in front of you, we'd take the hourly rate for a step 3 person under the agreement and substitute that for the $17.38. That's correct?---Yes.
PN269
Are you familiar with what the step 3 rate is under the agreement? Perhaps I can assist in this way, by taking you to your QNU wage sheet that appears as document 5A behind your statement?---Mm'hm. 5B contains the appendix B from the agreement that's before the tribunal, which does have the wage rates.
PN270
Well, I suggest to you that the step 3 amount under the agreement is $17.67?
---Yes.
PN271
That sounds correct?---That's correct.
**** VONNIE SEMPLE XXN HORNEMAN-WREN SC
PN272
So, what we would do would be we'd substitute the $17.38 with $17.67 as the hourly rate. If we wanted to perform - - -?---If that was a step 3?
PN273
Yes?---Yes.
PN274
Using your analysis of the roster that you were provided?---Yes.
PN275
We'd then multiply the $17.67 by eight to come up with an eight-hour ordinary day amount?---Yes.
PN276
I appreciate you don't have a calculator with you, and I'm going to ask you to assume that that would be - - -?---Well, I can assume - if I can see where you're going with this question and can save a bit of time, I concede that if they were on a step 3 then they would be better off than on the assistant nurse without cert III, third year and above.
PN277
They'd be - - -?---So - well, you're not saying that everyone will be worse off under the TriCare agreement, so it's those classifications that we've nominated.
PN278
I suggest to you that in total they'd be $12.97 better off under the agreement on this fortnightly analysis that you've drawn?---Possibly, yes. We've only provided evidence about those employees who will be worse off.
PN279
Would you accept, however, that there will be employees who, on a competency-based progression, will get to step 3 before they got to year 3?---I don't have any knowledge of anyone moving through the step structure.
PN280
You've got no knowledge to the contrary, Ms Semple, have you?---That they couldn't?
**** VONNIE SEMPLE XXN HORNEMAN-WREN SC
PN281
Yes, that there might be someone who reaches step 3, at the same time as year 3 but indeed even before that?---They might.
PN282
If they got to step 3 on a competency-based progression before they got to year 3, the appropriate analysis would be step 3 under the agreement as opposed to year 2 under the award, wouldn't it?---Yes.
PN283
If we performed that analysis, we might come to the conclusion - or we would come to the conclusion - that in fact they were approximately $40 a fortnight better off under EA 5. Would you concede that?---Well, I don't know about the amount but, yes, we concede that they would be slightly better off.
PN284
In fact, if one performs the analysis that you performed in your document but on the other rates that you haven't performed, for example, step 1 versus year 1 - and you've not provided that, have you?---Yes, I think I have.
PN285
For example, at annexure 4 you've got step 1 compared to second year under the award, but there's no step 1/year 1 analysis. That's correct?---No, there may not be.
PN286
But you would agree with me that if a person performed the core skills competency as set out in that booklet and an introduction to dementia, they would move, under the agreement, from step 1 to step 2?---Well, don't they have to perform - - -
PN287
Well, with the other two competencies?---I believe so, yes.
PN288
If there was a comparison between step 1, under the agreement, with year 1, under the award, the numbers on using your template, I'd suggest that an employee is $13.14 better off under the agreement than under the award. Would you be in a position to - - -?---Well, they probably would.
**** VONNIE SEMPLE XXN HORNEMAN-WREN SC
PN289
But if they in fact progressed to step 2 but would otherwise be on year 1 under the time-based progression under the award, then they would be $39.08 under the agreement than the award?---I don't know what the figures would be. I haven't got them in front of me.
PN290
If one compares step 2 under the agreement with year 2 under the award using your analysis, the employee is $12.70 better off for that fortnight that you've used for your analysis?---Well, I don't know. I haven't - - -
PN291
You're not informed. But none of this would surprise you?
PN292
MR DOUGHERTY: Commissioner, I thought Mr Horneman-Wren gave some sort of undertaking at the beginning that he wouldn't play the lawyer and he applied practical industrial relations. We can go through this exercise for the rest of the day, but the evidence is as it speaks and I'm not sure what his point is but he's wasting a lot of time on hypotheticals. The reality is the issue goes to a better off overall test and whether that in fact applies in reality or not. He has it within his power to know whether the evidence of Ms Semple stacks up against real people, and if that's the point he wants to make then he should put it.
PN293
MR HORNEMAN-WREN: With respect, the evidence is clear and I asked Ms Semple about it to start with, but these documents are intended to highlight deficiencies between the agreement and the award.
PN294
MR DOUGHERTY: My point is, Commissioner, if everyone was on the top pay point compared to the comparisons made, yes, they would be better off, but not everyone is on the top pay point.
PN295
MR HORNEMAN-WREN: Well, with respect, that's why I've painstakingly gone through to identify how one would apply other numbers. I'll address the Commission about it at the end of the day, but in fairness to the witness, in order that I do that I will put the scenarios to the witness who created the document upon which the analysis is then performed.
**** VONNIE SEMPLE XXN HORNEMAN-WREN SC
PN296
THE COMMISSIONER: But it's difficult - I mean, Ms Semple has been quite clear that from the union's perspective, not everyone would be worse off. As I understand it, her - the documentation that she has provided that has got the comparative calculations are, from the union's perspective, to the best of their knowledge those who would be worse off. Now, I've let you go but I think it's getting to the unfair territory because Ms Semple can't necessarily know the numbers that you're spitting out at her.
PN297
MR HORNEMAN-WREN: Indeed.
PN298
THE COMMISSIONER: That's not fair to her.
PN299
MR HORNEMAN-WREN: I'll deal with it in this way: Ms Semple, you would agree that if one wanted to use your template, one would simply substitute each of the numbers that fall either out of the agreement on one hand or the award on the other hand, and one can use that as a basis of comparison as you have. You'd agree with that?---Yes. That's how we have done it.
PN300
In the form 18 that was filed on behalf of the QNU, the union annexed a schedule which the union suggested lined up the appropriate steps under the agreement with the classifications under the modern award, the Nurses Award 2010. Do you recall that?---Yes, I do but I don't have a copy in front of me.
PN301
Is Ms Semple able to have a copy of the F18 filed on behalf of the Queensland Nurses' Union?
PN302
THE COMMISSIONER: Yes. Just give me a moment, please.
PN303
MR HORNEMAN-WREN: I think that we can provide one, Commissioner.
**** VONNIE SEMPLE XXN HORNEMAN-WREN SC
PN304
THE COMMISSIONER: It might be quicker. Sorry.
PN305
MR HORNEMAN-WREN: Thank you. It's really just the attachment A. So, that's the comparison of what the union considered to be the appropriate award levels with the various steps in the agreement. That's correct?---Yes.
PN306
Now, if we go down from the PC step 4A, that lines up from there down with enrolled nurses and registered nurses levels as the relevant employees. You'd agree with that?---Yes.
PN307
Now, with respect of those, you've nominated different levels to those which were nominated by TriCare in relation to what level of a registered nurse level 1, for example, or a pay point it would be, but you would agree with me that in respect of each the rates under the agreement are higher than the rates even on your nominated level. That's correct?---That's right.
PN308
I have nothing further. Thank you.
PN309
THE COMMISSIONER: Mr Dougherty, any re-examination?
PN310
MR DOUGHERTY: Thank you, Commissioner.
<RE-EXAMINATION BY MR DOUGHERTY [11.24AM]
MR DOUGHERTY: In respect to the cross-examination in relation to the attachments, to the best of your knowledge, do you believe those comparisons could equate to real-life application to real employees?---Yes, I do, and there have been discussions at the negotiations, which have been minuted, that support my view that that is the case.
PN312
Nothing further, Commissioner.
**** VONNIE SEMPLE RXN DOUGHERTY
PN313
THE COMMISSIONER: Thank you, Mr Dougherty. Thank you for your evidence, Ms Semple. You are released. You may step down.
<THE WITNESS WITHDREW [11.25AM]
THE COMMISSIONER: Mr Dougherty, I assume that that concludes the witness evidence on behalf of the QNU?
PN315
MR DOUGHERTY: Yes. I believe so, Commissioner, and I will hand back to my colleague, Ms Semple.
PN316
THE COMMISSIONER: Lovely. Thank you. Ms Semple, that is the end of the witness evidence?
PN317
MS SEMPLE: Yes. That's correct, Commissioner.
PN318
THE COMMISSIONER: Thank you. Mr Horneman-Wren.
PN319
MR HORNEMAN-WREN: I call Christopher John O’Brien.
<CHRISTOPHER JOHN O’BRIEN, SWORN [11.26AM]
<EXAMINATION-IN-CHIEF BY MR HORNEMAN-WREN [11.26AM]
MR HORNEMAN-WREN: Sir, is your full name Christopher John O’Brien?
---That's correct.
PN321
Mr O’Brien, you've made a statement in respect of these proceedings on 7 November 2011?---That's correct.
PN322
If you just have a look at this document for me, please. That's your statement made yesterday?---Yes, it is.
PN323
Sir, could I ask you to look at paragraph 12 of your statement, where it says "Whether or not an employee holds a certificate III qualification is irrelevant to which step they are classified in under the personal care stream in EA 5". Is there something further you wish to say in relation to that?---Yes. I think just to clarify, under the proposed EA 5, it recognises certificate III qualification at step 4.
PN324
Subject to that further evidence, is the content of that statement true and correct to the best of your knowledge and belief?---It is, subject to that.
PN325
I tender that.
PN326
THE COMMISSIONER: Is there any objection to the statement of Mr O’Brien?
PN327
MS SEMPLE: No, Commissioner.
PN328
THE COMMISSIONER: From nobody else?
PN329
MR COURT: No, Commissioner.
PN330
THE COMMISSIONER: Thank you. I shall mark the witness statement of Christopher John O’Brien with the additional evidence that he has just provided - it's signed and dated on 7 November 2011 - and it is exhibit R1.
**** CHRISTOPHER JOHN O’BRIEN XN HORNEMAN-WREN SC
EXHIBIT #R1 STATEMENT OF CHRISTOPHER JOHN O’BRIEN DATED 07/11/2011
MR HORNEMAN-WREN: Yes. That's the evidence-in-chief. Thank you.
PN332
THE COMMISSIONER: Lovely. Thank you, Mr Horneman-Wren. Ms Semple.
PN333
MS SEMPLE: Thank you, Commissioner.
<CROSS-EXAMINATION BY MS SEMPLE [11.28AM]
MS SEMPLE: Mr O’Brien?---Yes.
PN335
I'll start with that amendment to your statement with respect to employees who have a certificate III. You said that a certificate III equates to step 4?---Yes. It's part of the competency for a level - a step 4 in the proposed agreement.
PN336
Is the certificate III recognised anywhere else in the document?---No.
PN337
Do not new employees who possess a certificate III get appointed to step 2?---I beg your pardon. Yes. If a new employee is entering into the organisation who has more than 1000 hours and a certificate III, then they can enter at step 2, subject to the completion of the core skills competency booklet.
PN338
So, would they be placed at level 2 and then do the - - -?---That's correct.
PN339
- - - the booklet?---They would then perform the core skills booklet within their probation period.
PN340
THE COMMISSIONER: I think it says "within the first two months of employment".
**** CHRISTOPHER JOHN O’BRIEN XXN SEMPLE
PN341
MS SEMPLE: Is that always done, to your knowledge?---The competency matrix in the proposed agreement is slightly different to the existing agreement.
PN342
So, is that - - -?---The existing agreement has the core skills booklet at step 1 and it doesn't necessarily talk about that being completed in the probation period if you go to the annexure in the existing agreement.
PN343
What about existing employees who acquire certificate III, would they go to step 2?---Not automatically, no. They could ask for the certificate III to be RPL, which is recognition for prior learning, and if the relevant - if they've done commensurate units of certificate III that are similar to the two - or if not the same units - that are listed in the competency matrix at step 2, then they would be RPL'd and they could go to step 2.
PN344
So, why are new employees treated more favourably than existing employees in this respect?---That was a - that took place in the bargaining, in relation to workplace agreement 4, the agreement as currently in place, and it came out of a request by the parties including line managers that there be an acknowledgement of people who had attained skills through formal qualifications prior to coming to TriCare.
PN345
Why did you not recognise existing employees?---That was what was agreed at the time.
PN346
That provision exists in the agreement that you seek to have approved today?
---That's correct.
PN347
The union parties didn't agree to that clause remaining, did they?---No.
PN348
Why are current employees treated less favourably than new employees still?---I don't believe they are being treated less favourably. A current employee who attains a certificate III or even a certificate IV qualification can ask for that to be assessed against the RPL process, which is the recognition for prior learning. And on that basis, their units of competency can be recognised and they could progress under the step progression scheme. So, on that basis, I don't believe they are being - what did you say, "disadvantaged"?
**** CHRISTOPHER JOHN O’BRIEN XXN SEMPLE
PN349
Well, treated less favourably?---Treated less favourably.
PN350
But they're required to jump through more hoops, to put it that way, to get to level 2 than someone who walked through the door at TriCare who already possesses a certificate III, aren't they?---They're being assessed.
PN351
Well, are they required to do more to get to level 2 than someone who just walks through the door who has a similar certificate III qualification?---I don't see they are, actually, because if you attained a certificate III - if you were, say, a step 1 and you attained a certificate III during your employment and you asked to be RPL'd, then the RPL process will deem your equivalency to the relevant units of competency and you could go to step 2. So I don't see we are making it any harder.
PN352
Does the new employee who goes straight to level 2 have to get their qualification RPL'd?---No. They have to provide a copy of their certificate for the relevant qualifications list, the units of competency.
PN353
Their certificate III?---Their certificate III, yes.
PN354
Can I hand Mr O’Brien a document, please, Commissioner, which is a letter signed by Mr O’Brien sent to Ms Beth Mohl, secretary to QNU, and which contains an attachment which I would like to refer to. A letter of 1 July - it actually attaches previous correspondence that had been sent with the attachment.
PN355
THE COMMISSIONER: Has Mr Horneman-Wren been given a copy.
PN356
MS SEMPLE: No, he hasn't. It's the table at the back of that document that I wanted to refer to. The letters are just included for completion to demonstrate that it was provided by Mr O’Brien, and he makes reference in the first document you see from 1 July 2011.
**** CHRISTOPHER JOHN O’BRIEN XXN SEMPLE
PN357
THE COMMISSIONER: I'm just waiting to see whether Mr Horneman-Wren has an objection.
PN358
MR HORNEMAN-WREN: I'm content for it to progress for the moment.
PN359
THE COMMISSIONER: Okay.
PN360
MS SEMPLE: I'd seek for that to be named as an exhibit to the proceeding.
PN361
THE COMMISSIONER: Well, do you want Mr O’Brien to identify it?
PN362
MS SEMPLE: Could you identify the document, please, Mr O’Brien?---Yes. Thank you, Commissioner. I'm the author of that letter dated 1 July 2011 attaching a letter 27 August 2010 with a table at the back.
PN363
THE COMMISSIONER: Thank you. Is there any objection, Mr Horneman-Wren?
PN364
MR HORNEMAN-WREN: No.
PN365
THE COMMISSIONER: Thank you. I shall mark bundle of correspondence from Mr O’Brien to the Queensland Nurses' Union - there's two letters: one 1 July 2011; the second one 27 August 2010, and attached to the latter is a confidential table which sets out the head count as at 28 July 2010 - and that is exhibit - I always get mixed up with my numbering - Q3.
EXHIBIT #Q3 CORRESPONDENCE AND ATTACHMENTS DATED 01/07/2011
MS SEMPLE: Thank you. Mr O’Brien, can you just read onto the record paragraph 3 of that covering letter, please, of 1 July?---Yes. Paragraph says, "TriCare previously provided to the QNU numbers and step levels of the PCAs on 27 August 2010 (attached). There is no significant changes to those numbers."
**** CHRISTOPHER JOHN O’BRIEN XXN SEMPLE
PN367
That's sufficient, actually. Thank you. That was the main point. If you could just now have a look at those numbers?---Yes.
PN368
Just looking at the PCAs - sorry. Would you say that those numbers continue to be relevant, and have those numbers remained fairly similar or consistent since 1 July this year, to your knowledge?---To the best of my knowledge, they would be fairly consistent. I can't say precisely, but fairly consistent.
PN369
If we can just have a look at the right-hand column. It goes to PCs step 1, 2, 3, 4 and 5?---Yes.
PN370
PCAs at step 1, the figure beside that is 322. Is that correct?---Yes. That's correct.
PN371
Step 2, 154. Is that correct?---That's correct.
PN372
And 112 PCAs, level 3?---That's correct.
PN373
So, on my very rough calculations - and I haven't done this addition until now - but that's almost 600 employees, isn't it, if you're able to do a quick calculation there?---Yes. It's slightly less than 600.
PN374
322 plus - - -
PN375
THE COMMISSIONER: Not a lot.
PN376
MS SEMPLE: Just slightly less than 600?---Yes, slightly less. It's 588 by my calculation. 588 employees.
PN377
Now, the total number of employees, is that that figure at the bottom of the left-hand side, Total All Strands, 1197?---That's correct. That's the total of all strands that work in the residential aged care facilities.
**** CHRISTOPHER JOHN O’BRIEN XXN SEMPLE
PN378
588 is almost exactly half of that number, isn't it?---Yes.
PN379
Those groups at level 1, 2 and 3 make up about half of TriCare's employees at its residential aged care facilities. Is that correct?---Yes.
PN380
Those are the people who will be covered by the agreement if it's approved by Fair Work Australia?---Yes. All those employees will be covered by the agreement.
PN381
Those 322 employees at PCA level 1 - - -
PN382
THE COMMISSIONER: Step 1.
PN383
MS SEMPLE: Step 1. You would agree that there's roughly about 300 employees at step 1 currently if you say that these figures are substantially the same now as they were then?---I'll say "roughly" - comfortable to use that word, but yes, roughly would be similar.
PN384
Do you know if all of those employees are in their first year of employment?---I don't. I don't know.
PN385
Do you know if some of them are not in their first year of employment?---I don't have access to that information. They may be - some may be in their first year, some may be in their second, fifth, 10th year. I don't know.
PN386
Well, I'll just take you to another document if I may. It's the minutes of a JCT meeting - negotiation meeting of 21 July, and I'd seek to show Mr O’Brien a copy of that and cross-examine him on it. Are you able to describe that document, Mr O’Brien?---Yes. That document is the JCT minutes of a meeting of the JCT of 21 July 2010.
**** CHRISTOPHER JOHN O’BRIEN XXN SEMPLE
PN387
Were those minutes approved as a true and correct record of the meeting, to your knowledge?---I'd say to the best of my knowledge. That usually occurs at the subsequent meeting after July, which may have been - if my memory serves me correctly - possibly November. So, yes, to the best of my knowledge, they look like the confirmed minutes of the meeting.
PN388
I'd seek to tender that as an exhibit, your Honour.
PN389
THE COMMISSIONER: Were they - there were a whole stack of JCT minutes.
PN390
MS SEMPLE: Yes. They may be an attachment to one of United Voice's - - -
PN391
THE COMMISSIONER: I'm just wondering - United Voice. Yes. Mr Butler, was that - - -
PN392
MS BUTLER: Not July - sorry, Commissioner. Not - July 2010.
PN393
MS SEMPLE: That's why I provided them, because not all of the minutes were attached so that's why.
PN394
THE COMMISSIONER: Is there any objection, Mr Horneman-Wren?
PN395
MR HORNEMAN-WREN: No.
PN396
THE COMMISSIONER: Okay. I shall mark the JCT meeting minutes 21 July 2010 as exhibit Q4.
EXHIBIT #Q4 JCT MEETING MINUTES OF 21/07/2010
MS SEMPLE: Can I take you to page 3 of the minutes. So it says, about halfway down there - it's under my name, not something I did though - "A formal response from Jindalee was tabled and signed by some staff, attachment 3"?
**** CHRISTOPHER JOHN O’BRIEN XXN SEMPLE
---Yes.
PN398
So can you go to that attachment 3, please?---Yes.
PN399
That attachment is a table that's been filled in by a number of staff from Jindalee. Do you accept that?---Yes.
PN400
Can I take you to fourth row and the first column. The first column heading is, "Which step are you currently on?" Is that correct?---Yes, I see that.
PN401
That person has written "step 1". In the next column, "How long have you been on the current step", she has put nine years?---Yes.
PN402
You see that?---Yes, I see that.
PN403
Do you accept that that employee was telling the truth?---I can't verify it through the payroll system. I don't know who the employee is but some person who purports to be an employee has filled in the table and indicated they are at a step 1 for nine years. That's all I can say.
PN404
Did you object to that, or refute that at the time it was tabled?---No, but that was in the context of enterprise bargaining - the spirit of enterprise bargaining. It wasn't about refuting sort of details like that, but I didn't refute it at the time.
PN405
I'll just take you over to the - those columns are then repeated. They've got columns 1, 2 and 3 and those columns are then repeated. Let's go to the fourth row there on that column. It says "step 2", and the employee has written that they've been on that step for 13 years?---Yes, I see that.
PN406
Do you accept that that's what has been provided and not refuted?---I accept that's what has been provided in the context of bargaining and negotiations.
**** CHRISTOPHER JOHN O’BRIEN XXN SEMPLE
PN407
Just one more. The last row on that column says "step 1"?---Sorry. I beg your pardon. The - - -
PN408
The last row on the same column says "step 1" and "how long have you been on your current step?" That employee has written five years. Is that correct?---Yes. That's what that employee has written.
PN409
I just seek to provide Mr O’Brien with another excerpt from - I apologise for the stapling on these documents in the bottom - but it's another excerpt from minutes of the JCT. This one is dated 10 February 2011. I'm sure that's included in United Voice's documentation. Can you describe that document for the tribunal, Mr O’Brien?---This a record of minutes of a meeting entitled JCT Meeting Minutes 10 February 2011, Commissioner.
PN410
We'd seek to tender that as an exhibit, please, Commissioner.
PN411
THE COMMISSIONER: Is there any objection, Mr Horneman-Wren?
PN412
MR HORNEMAN-WREN: No. I'll address the question of relevance at a later point.
PN413
THE COMMISSIONER: Cool. Thank you. I shall mark the JCT meeting minutes of 10 February 2011 as exhibit Q5.
EXHIBIT #Q5 JCT MEETING MINUTES OF 10/02/2011
MS SEMPLE: Mr O’Brien, can I take you over to page 2 of those minutes where - it's point 5 and it's headed Step Progression?---Yes.
PN415
There's some discussion there starting with Marie Karnock. Do you agree that Marie Karnock stated, "Some staff do not want to do step progression as they need to redo certain areas"?---Yes.
**** CHRISTOPHER JOHN O’BRIEN XXN SEMPLE
PN416
If we look at the attendees, we see that Marie Karnock is an employee representative?---An employee representative from Stafford - - -
PN417
Stafford - - -?---- - - Heights Nursing Centre. That's correct.
PN418
But there's another paragraph there that says, "Anne Stevens commented that some staff had been on step 1 for a while and requested figures, and asked what TriCare has done to help the staff progress". You see something along those lines there, Mr O’Brien?---I see that.
PN419
Then it goes on to say, "Discussion ensued between TriCare management and QNU regarding the relevance/requirements of such statistics" - sorry. I'll skip that paragraph. So, there's another paragraph there that I would like to address. Now, that says, "Grant would like Lorraine to speak on what assistance is given from RTO to manage our competencies for staff that do not have English as a first language"?---Yes, I see that.
PN420
He went on to say, "He outlined there should be a formal grievance made or an issue brought to the attention of the facility manager if there are any unreasonable barriers against step progression"?---Yes. I see that.
PN421
So, in relation to that, would you say that some employees do have difficulty with the step progression?---It may be that an employee may have difficulty, and if they do there's a process within TriCare to assist them, particularly around the non-English speaking staff.
PN422
You have staff who don't speak English?---We have a number of staff who have English as a second language; a better way to put it, yes.
PN423
Do you know what proportion of your staff at the PC level 1, 2 and 3 roughly would be from non-English speaking backgrounds?---I don't. It varies from centre to centre. Stafford, it may be as low as under five per cent and other facilities it may be as high as 10, 15 per cent, depending on the facility and the employees there at the particular point in time.
**** CHRISTOPHER JOHN O’BRIEN XXN SEMPLE
PN424
Would you acknowledge that they do have particular problems in filling out the core booklets and passing the written requirements for the competencies?---They may find it challenging, fittingly speaking, with staff who are having issues with their first language, and there are processes within TriCare to assist with that.
PN425
You mean staff who don't have English as their first language?---To assist with them completing the competency booklets is what I mean, which may mean that we don't require the non-English speaking background staff member to actually complete the booklet. There may very well - each training facility has a training facilitator who is a qualified certificate IV TAA, and they may actually assist in the completion of the booklet. For example - that's just as an example.
PN426
So, how would that work with the - it just seems a bit inequitable. Do they have to pass the requirements that are in the enterprise agreement?---They do. But if you're assessing someone, there are a number of ways to assess people. It can be oral, it can be in writing, it can be through practical application. So, that assessment process is modified for someone who may have difficulty or find it challenging to complete a unit of competency.
PN427
Just one more document from me. This is also an excerpt from minutes. It's just one page from the JCT minutes of 27 January 2011.
PN428
THE COMMISSIONER: I think we've got those.
PN429
MS SEMPLE: Can you describe that - or do you recognise that document, Mr O’Brien?---It appears to be one page, numbered page 4 of 5, from the JCT meeting minutes of 27 January 2011, and I note there's some handwritten - on about the third paragraph which I don't recognise.
PN430
Well, I can - - -
**** CHRISTOPHER JOHN O’BRIEN XXN SEMPLE
PN431
THE COMMISSIONER: You probably should ignore that.
PN432
MS SEMPLE: Just ignore that, but that was a correction of the minutes, and then they were corrected by verbal agreement at the following meeting. But just ignore that, that's not the relevant part. Could I just take you to the second paragraph - sorry. I seek to admit that as an exhibit.
PN433
THE COMMISSIONER: Well - - -
PN434
MS SEMPLE: It's already in.
PN435
THE COMMISSIONER: A clean copy of that page is in the full minutes of the United Voice's attachments at folio 3, so I'm assuming at some point we're going to need to mark all of that material. So if everybody's happy, we'll just do it then. Is that okay?
PN436
MS SEMPLE: Yes. That's fine.
PN437
THE COMMISSIONER: Just for Mr O’Brien, I can confirm that it is what it purports to be in terms of the full document?---Thank you.
PN438
MS SEMPLE: At that second paragraph, Mr O’Brien, do you agree it says, "In addressing the request for PCs to be reclassified as AINs, TriCare accepts that its PCs are covered under the nurses award". It then goes on, "But believes work they perform is better performed as personal care than nursing"?---I see that, yes.
PN439
So you accept that those employees who you call "PCs" are covered under the nurses award?---That's right.
PN440
That concludes my questioning.
**** CHRISTOPHER JOHN O’BRIEN XXN SEMPLE
PN441
THE COMMISSIONER: Cool. Thank you. Mr Court, do you have any questions of Mr O’Brien?
PN442
MR COURT: No, Commissioner.
PN443
THE COMMISSIONER: Okay. Ms Butler.
PN444
MS BUTLER: Thanks, Commissioner.
<CROSS-EXAMINATION BY MR BUTLER [11.59AM]
MR BUTLER: Mr O’Brien, if you could just go back to the letters that were tendered with the table of staffing letters that were marked as exhibit Q3?---Yes, I have those.
PN446
Could you turn to the last page, which is the head count?---This is the table. Yes, I have that.
PN447
Assume that, as you've said earlier, the figures are fairly consistent at around the 1200 mark for employees covered by the agreement?---I accept that 1200 is a fairly consistent amount for TriCare.
PN448
Of those employees, would you be able to tell us how many are casual?---This would only be an approximation. I'd say approximately - it's a bit of a rough guess - there are maybe 200, 250 casuals on the books at any one time. When I say "on the books", I mean in the payroll system. As to how regularly they're working, I'm not sure.
PN449
Now, of those 250 casuals, did they all get issued a ballot paper?---Yes.
PN450
Did they get issued an explanation of the agreement?---Yes. I wrote to every single employee within the payroll system. I think my affidavit indicates that. Up until a few days prior to the ballot closing, I wrote to every single employee and the letter explained the agreement and had a copy of the agreement attached to it.
**** CHRISTOPHER JOHN O’BRIEN XXN BUTLER
PN451
Just while we're on the statistics, in terms of the turnover of staff in TriCare - - -?
---Yes.
PN452
- - - what's an indicative figure?---Again, it would be indicative of even a rough figure, and it varies from time to time, but I'd say around 20 per cent to perhaps as high as 25 per cent.
PN453
So, consistent with the industry (indistinct)?---Yes, it is consistent with the industry figures that you see around turnover.
PN454
So over a two-year period, approximately, you'd agree that somewhere between 300 and 600 employees?---Somewhere within that range, yes.
PN455
So in the process of negotiating this agreement, you've had nearly - somewhere up to 600 employees come and go?---Up to - no. Within the vicinity of 20 to 25 per cent of that 1200.
PN456
Now, of those employees who came, what measure were taken to update them on the status of negotiations?---Number of measures. Mainly done through what's called a joint consultative team and that's an employee rep who is present at each facility and they are - they're allocated hours. Through the bargaining process, they're allocated - if my memory serves me right - I'm thinking eight hours a fortnight, but it may be more. I think it depends upon the facility. So for the larger facilities, they would have more than that, they might have up to 16 hours a fortnight and the purpose of that is for them to meet and talk to staff about the bargaining process.
PN457
Do you have any method or mechanism for tracking those conversations?---No. There are also other mechanisms such as regular newsletters that go on staff noticeboards and staff rooms. I generally complete those from a management perspective, and there are minutes of the meetings which are widely-circulated at site and a number of copies of those are placed in the staff rooms and on staff noticeboards.
**** CHRISTOPHER JOHN O’BRIEN XXN BUTLER
PN458
In your statement, you refer to the fact that you have a sound understanding about competency-based progression?---Yes.
PN459
You also have a role on the Community Health and Industry Skills Board?
---That's correct. I've been on that board since 2006.
PN460
Does that council have a position on people undertaking studies at certificate IV level competency units?---It encourages staff within a variety of health and community services industries to undertake certificate III and certificate IV units. That would probably be the best way I could answer your question. In terms of a strict position, it encourages staff to undertake - - -
PN461
Does it have a position on people undertaking identified skill sets?---Yes. I'm aware that the skills council does encourage staff to perform identified skill sets.
PN462
Does it put a restriction on them, on people who can undertake skill sets?---I don't know.
PN463
Would you be surprised if I said that it does?---No.
PN464
And that to undertake a certificate IV skill set, the trainee must have a certificate III?---The certificate III doesn't surprise me, that someone who's undertaking a level of certificate IV would be required to undertake a certificate III prior to that.
PN465
Does that apply in TriCare?---Well, no. We don't detail requirements around certificate III and IV in our - - -
PN466
No, but you don't require people who undertake certificate IV level competency units to be competent at certificate III level?---To the best of my knowledge, we don't.
**** CHRISTOPHER JOHN O’BRIEN XXN BUTLER
PN467
In relation to the meetings of - and you mentioned in your statement that there were some 19 meetings - - -?---Yes, I do.
PN468
- - - of the joint consultative team?---Yes.
PN469
How many different proposals were put forward during those 19 meetings, as in, formal offers put forward by TriCare?---Approximately three or four. I just - to the best of my knowledge. But I'm just thinking there was a proposal in 2009 that was voted down. There's a proposal in 2010 that was voted down and there may have been a couple of iterations of that, so that's probably three. Then 2011, it would have been a couple of iterations around that. It depends on what you say around the proposal. If there's a - - -
PN470
I'm just talking about the formal offers?---Formal offers?
PN471
Formal proposals?---Yes. As many as five over a period of two and a half years.
PN472
Five over two and a half years?---Mm.
PN473
Now, in the context of those five proposals, how were they explained to employees?---To answer your previous question, through the JCT process, through the reps going back to the facilities and explaining the nature of the proposal, plus the newsletters that were published by management which would set out the terms of the proposal and the minute - and I must say, in addition to that, there are also staff meetings, which would normally be convened by the facility manager where there'd be a portion of time they would allocate to the JCT process by - I can't say how regularly they would have occurred at each facility. I don't have that knowledge.
PN474
Was there a uniform communication method?---The uniform - - -
**** CHRISTOPHER JOHN O’BRIEN XXN BUTLER
PN475
Or a script?---Sorry, I beg your pardon.
PN476
A uniform communication method or script? Briefing notes?---I'll answer "yes", on the basis that I see the newsletter and the JCT minutes as that uniform nature of communication.
PN477
What about individual JCT representatives?---I can't give evidence as to what each 14 - - -
PN478
Did each of the individual JCT representatives have a common explanation of the various offers?---On the basis that they had access to the newsletter, yes. I'm going to answer "yes" on the basis of the newsletter, which came out within, usually, 48 hours of the meeting and the reps - there was a number of discussions around that where the reps said that they would like those newsletters to come out promptly after the meeting.
PN479
So the newsletters are the primary method of informing employees about the nature of the offers that were made - - -?---Yes.
PN480
- - - and their effect?---Yes, in combination with the minutes.
PN481
In combination - - -?---Combination with the minutes.
PN482
Did the newsletters explain the effect of the various EB5 proposals to employees?---I was - I'm going to say "no" to that because you used the word "effect". Yes, I'll say "no".
PN483
How else would your employees understand or come to understand the nature of the various proposals that were put?---Through consultation with their union delegates. Again, I've answered it like I said previously, around consultation with the JCT reps and the staff meetings.
**** CHRISTOPHER JOHN O’BRIEN XXN BUTLER
PN484
But again, come back to the issue, there was a limited availability of a standard briefing?---I didn't say "limited availability", I said there was a standard briefing note in terms of the newsletter.
PN485
That was it?---That's my evidence.
PN486
We might deal with those newsletters. How often were the newsletters produced?---After every consultation meeting, a newsletter would be produced within, usually, 48 hours. Sometimes within 24 hours, sometimes the same afternoon that the meeting took place.
PN487
How long were they?---Ordinarily one page, but when it came to the offers they would be longer, two or three pages, and they would include not calculations but wage rates attached to the newsletter.
PN488
And spreadsheets?---Not spreadsheets, as such. There may be tables.
PN489
Did they include any explanation of the changes - - -?---Yes.
PN490
- - - to the existing agreement?---I'm just trying to recall, but I'll answer "yes" to that. May not have been every change, but they would include the predominant changes to the existing agreement.
PN491
Did it include - what would you call the "predominant changes"?---The progression structure, terms and conditions of employment, say, to voluntary extra hours or something of that nature.
PN492
Just coming to that issue, the voluntary extra hours. Now, the EBA, as it's proposed, extends the concept of voluntary extra hours?---Yes. It clarifies the concept.
**** CHRISTOPHER JOHN O’BRIEN XXN BUTLER
PN493
But it also make it available to additional staff, doesn't it?---It does, yes.
PN494
Were those staff informed on the introduction of the voluntary extra hours and what it meant for them?---I'll answer "yes" to that because - yes.
PN495
Could you tell us how?---Through the JCT newsletters or through other communication means, be it notifications on noticeboards - I say that because it had already been extended administratively in any respect. It had been extended beyond registered nurses and endorsed enrolled nurses to include personal carers, and that had occurred some two or three years ago.
PN496
How did that occur?---Through an administrative decision of management that was communicated to line management.
PN497
Were any variations to the agreement sought?---No.
PN498
Were any measures undertaken to ensure that the existing awards were complied with?---No.
PN499
Should they be?---Not to my reading of workplace agreement 4 on the basis that we were providing a benefit that went beyond what we'd already prescribed in the agreement.
PN500
Were you complying with workplace agreement 4?
PN501
MR HORNEMAN-WREN: I object. What's the relevance of this?
PN502
MR BUTLER: The relevance is, Commissioner, we've had a number of occasions and there are a number of matters where the content of workplace agreement 4 has had to be varied or it had to be increased because it was below the relevant instrument and Mr O'Neill has, himself, indicated in minutes, I think, that some 600 letters were sent to staff who had been underpaid according to work - in comparison to their award entitlement versus the contents of agreement 4.
**** CHRISTOPHER JOHN O’BRIEN XXN BUTLER
PN503
THE COMMISSIONER: But how does - - -
PN504
MR HORNEMAN-WREN: Well, I'm not sure that's not a further question or putting a proposition.
PN505
THE COMMISSIONER: No, I think he was actually talking to me.
PN506
MR HORNEMAN-WREN: I maintain the objection.
PN507
THE COMMISSIONER: I understand that. Mr Butler, how does that assist the tribunal with respect to an application for approval of agreement 5?
PN508
MR BUTLER: It shows - and it will be something, Commissioner, we'll be dealing with later - the extent to which there have been difficulties with interpreting and applying some of the provisions that have been carried across into the current agreement.
PN509
THE COMMISSIONER: Yes. How does that sit - where does that sit with the requirements under the Act for approval?
PN510
MR BUTLER: Well, it goes, Commissioner, to the extent that - whether employees were fully informed - - -
PN511
THE COMMISSIONER: Is that it? Okay. Yes, right. Cool.
PN512
MR BUTLER: - - - and understood the consequences of what they were voting on.
PN513
THE COMMISSIONER: Yes, I understood that line of questions.
**** CHRISTOPHER JOHN O’BRIEN XXN BUTLER
PN514
MR BUTLER: In relation to the voluntary extra hours, Mr O’Brien, who was it extended to?---Extended to all personal carers, all personal care attendants. So that would be all personal care attendants from step 1 to step 5 under the workplace agreement 4.
PN515
It was extended on the basis that it was an improvement?---That's correct.
PN516
Albeit that they were no longer receiving overtime penalties?---That's a difficult question to answer because I'm not sure whether they would have been receiving overtime in any event, and that's why I say it was a benefit.
PN517
THE COMMISSIONER: Okay?---If they weren't receiving overtime, which was the way TriCare approached it, and they were a part-time employee then it did benefit them by taking up extra shifts on a voluntary basis.
PN518
MR BUTLER: It benefited them, in your view, by allowing them to work extra hours without payment of overtime? Is that a fair enough statement?---It - no. It benefited them to the extent that they may wish to work extra hours to - I take out the overtime part of your question in answering that.
PN519
Were they paid overtime?---How do you mean?
PN520
Were they given the option to be paid overtime?---Prior to introducing that administrative change, the option available to TriCare would have been to ask the employee to work reasonable overtime or engage an agency person or not replace those hours, depending on what the operational need would have been. When we introduced that measure, we made it available - - -
PN521
Mr O’Brien, were they entitled to receive overtime for the voluntary hours they were working?---They would have been entitled to receive overtime if they worked overtime. That has to be my answer.
**** CHRISTOPHER JOHN O’BRIEN XXN BUTLER
PN522
Was overtime paid?---If an employee worked overtime, they would be paid overtime.
PN523
Now, if we could just go back to the structure of TriCare, are you in a position to talk about that?
PN524
THE COMMISSIONER: As in the corporate structure?
PN525
MR BUTLER: As in the corporate structure?---No. I'm aware there is a complex corporate structure. In the form 17, I've listed the related body corporates that are the employing entities of the labour in relation to each residential aged care facility, but I'm not really in a position to give evidence as to the nature of the - it's a very complicated corporate structure. Yes.
PN526
We might pass on that. In relation to - and coming back to Q3 and the numbers, are you in a position - Q3?---Which one's that? Sorry, yes.
PN527
Are you in a position to break those numbers down further by employing entity?
---No.
PN528
Would it be possible for TriCare to provide that information?---It could provide that information. It might take some time, but it could provide that information.
PN529
So of the various companies outlined in your application, would that be possible for you to do, to give us those details?
PN530
MR HORNEMAN-WREN: I'm not sure the question being asked is whether or not - is something that can be physically done, or whether it's some sort of a request for some evidence.
**** CHRISTOPHER JOHN O’BRIEN XXN BUTLER
PN531
THE COMMISSIONER: It's a request.
PN532
MR BUTLER: It's a request.
PN533
MR HORNEMAN-WREN: In which case I object to it. I'm trying not to object to the practice - - -
PN534
THE COMMISSIONER: It's all right, I'm just teasing you, sorry. I shall withdraw the teasing.
PN535
MR HORNEMAN-WREN: No.
PN536
THE COMMISSIONER: Okay. The basis of the objection is - there has to be one.
PN537
MR HORNEMAN-WREN: This is not a roving inquiry. It's not to suggest that this witness should go away and get some documents that United Voice now consider that they wish to extract some evidence from for the purpose of these proceedings. With respect, we're here to deal with the matter in an efficient way which the tribunal has facilitated and it's not a roving inquiry for my friend to simply say, "Well, go off and get the information". The relevance of it is not established in anything.
PN538
THE COMMISSIONER: Mr Butler, I did have - I won't address the first part of Mr Horneman-Wren's objections, but I was actually wondering the relevance of it.
PN539
MR BUTLER: Well, again, Commissioner, it goes to the issue of communication with the employees, information about what they were voting on and what their employer was putting to them.
**** CHRISTOPHER JOHN O’BRIEN XXN BUTLER
PN540
THE COMMISSIONER: But how does knowing as to how many employees in each of the classification categories are at each facility help with that?
PN541
MR BUTLER: It goes - - -
PN542
THE COMMISSIONER: Because there's no correlation. There's no - - -
PN543
MR BUTLER: In the material we've lodged, Commissioner, and in - there are a range of consultative surveys conducted at individual centre levels and really, some of those survey results are surprisingly and markedly different from the results in different centres. What I'm looking to establish is to find out how many employees are employed at each centre, what levels they're employed in and how they voted.
PN544
THE COMMISSIONER: How can you know how they voted? How can anybody know how they voted? Hopefully nobody does.
PN545
MR BUTLER: In that context, Commissioner, it's their - the make-up of the final count. Bearing in mind that we're talking about an agreement of some 1200 employees with an indicative return of approximately 500 to 600 - - -
PN546
THE COMMISSIONER: I did note that.
PN547
MR BUTLER: - - - with a substantial turnover during the process.
PN548
MR HORNEMAN-WREN: Commissioner, might I just be heard on one point that's relevant to that response my friend has given.
PN549
THE COMMISSIONER: Yes.
**** CHRISTOPHER JOHN O’BRIEN XXN BUTLER
PN550
MR HORNEMAN-WREN: That's this: that it proceeds on an assumption that the material that we put in, to use my friend's expression, is somehow evidence in the proceedings. There is a bundle of material that lies behind a submission made by United Voice which is material of a factual kind. It has not been put in through the processes of providing evidence to the tribunal of - I have a lot to say about the relevance of the material at the end of the day but, to the extent that someone might say that this demonstrates something but without somebody actually providing evidence about the issues and how people voted with respect - for an indicative survey that might have been conducted some time well before the ballot was conducted under the Act approved or made the agreement is irrelevant to the process.
PN551
But with respect, to proceed on the basis that there is material that runs to the extent of the documents behind the United Voice submission, that is somehow of evidentiary weight in the proceedings, is to make a large assumption about the nature of that material.
PN552
MR BUTLER: Commissioner, I'll pass on that question. I withdraw the question. No further questions.
PN553
THE COMMISSIONER: That wasn't a signal, Mr Butler, to cease and desist; that was simply that I agreed with the submissions of Mr Horneman-Wren. It wasn't a signal to - "you can't ask any further questions".
PN554
MR BUTLER: No.
PN555
THE COMMISSIONER: I hope that was an independent decision.
PN556
MR BUTLER: No. It was, Commissioner, and I'm conscious of the time and the time limits on us today.
**** CHRISTOPHER JOHN O’BRIEN XXN BUTLER
PN557
THE COMMISSIONER: I am too, and that's why everybody is trying to be as efficient as possible, but as I indicated, worst case scenario, it's television time at some stage so I would be unhappy if any party here didn't feel that they had had a fair opportunity.
PN558
MR BUTLER: Thanks, Commissioner.
PN559
In that case, Mr O’Brien, could I just take you to point 16 in your statement?
---Yes.
PN560
Nauseous work allowance. How is nauseous linen handled?---There's a dirty linen section in the laundry. It comes into the dirty linen section. It's appropriately laundered and - - -
PN561
When it comes in, how does it come in?---In bins. It comes to the laundry and then it's loaded into the commercial washing machine.
PN562
Who loads it in?---The relevant laundry attendant.
PN563
So how do they not become entitled to a nauseous work allowance?---Well, we say two things: we say (1) it's been absorbed into the hourly rate, and that's historical. Workplace agreement 4 has an express mention of that so we say it does it through that; and we say secondly, in a practical aspect in terms of our linen, it's much more controlled than it was previously in aged care and it wouldn't arise in practice on as regular a basis it may have previously in aged care, based upon the comments that I've made in paragraph 17 of my statement around incontinence and other protective measures.
PN564
Thanks, Commissioner. No further questions for Mr O’Brien.
**** CHRISTOPHER JOHN O’BRIEN XXN BUTLER
<RE-EXAMINATION BY MR HORNEMAN-WREN [12.30PM]
MR HORNEMAN-WREN: Thank you, Commissioner. Just a couple of brief matters.
PN566
You were asked some questions by my learned friend, Mr Butler, in relation to the means by which TriCare had opted to communicate
various aspects of the negotiations to its employees. Do you recall being asked about those things?
---Yes.
PN567
You gave evidence about newsletters and the JCT process and employee representatives. Do you recall giving evidence about that?---Yes.
PN568
There are some minutes that have been attached to the United Voice submissions that deal with the parties who participated in JCT
meetings. We see that in the minutes that Ms Semple has tendered today as well. For example, exhibit Q5 deals with union representation
as part of the recorded parties of attendance?
---Yes.
PN569
Apologies are recorded from time to time as well?---That's correct, yes.
PN570
Now, you were a participant in all the meetings, were you?---Yes, in every meeting.
PN571
What level of representation did United Voice provide at the meetings? Were they in attendance at all meetings?---No, they weren't.
PN572
Were they regularly in attendance?---Very irregularly in attendance.
PN573
Was it your expectation that the unions who attended would be able to report back to their membership after the meeting?---Yes, that would have been my expectation.
**** CHRISTOPHER JOHN O’BRIEN RXN HORNEMAN-WREN SC
PN574
There was no prohibition - there was no agreed non-communication issue between the parties to the JCT?---No. United Voice are clearly on our group email lists and they were communicated with regularly around the minutes and the agenda of each particular meeting. On many occasions, we didn't receive any notification as to whether they were or were not going to attend, but they simply didn't send a delegate or an officer of the union.
PN575
Now, you were also asked about the turnover of staff and you indicated that it was about 20, perhaps up to 25 per cent and the figures of 300 to 600 were put to you over a two-year period by Mr Butler, reflecting those figures on, no doubt, the 1200 average employees for TriCare. Do you recall being asked about that?---I recall that, yes.
PN576
In relation to the turnover of staff, are you able to say whether or not that occurs uniformly across the staff levels, or whether it occurs more at particular levels than at others?---I am able to say that it occurs more frequently at step 1 and step 2.
PN577
So when one looks at exhibit Q3 that Ms Semple tendered that's got the head count as at 28/07/2010 - - -?---Yes.
PN578
- - - and you will recall that you were asked whether or not that was numbers, the less indicative of what it would be at any slice of time. Do you recall that?---Yes, I recall that.
PN579
One look at the PCA levels at particularly steps 1 and 2 with that turnover that you've referred to in mind?---Yes. Most of the turnover would be at the PCA 1 and PCA 2 levels.
PN580
Now, exhibit Q5 is the minutes of the JCT meeting of 10 February 2011 and you were taken to page 2 of those minutes. Do you have those there with you?---Yes, I do.
**** CHRISTOPHER JOHN O’BRIEN RXN HORNEMAN-WREN SC
PN581
There's a passage that appears there above - can I take you to the second-last paragraph just to take you to the point of the document. "Chris states the need" - do you see that?---Yes, I see that.
PN582
Can I take you above there. The concluding paragraph, "TriCare will continue to provide robust information to employees regarding step progression and encourages anyone who believes they are having difficulty progressing to speak up and also talk to a training officer." Now, was that your position, or TriCare's position, as of February 2011?---Yes, that is correct.
PN583
Is that a position which TriCare had always held in relation to that issue?
---TriCare has historically always held that position.
PN584
Does it continue to hold that position?---Continues to hold that position.
PN585
The minutes then go on to say, "Chris states the need for QNU to identify centres, particularly what the specific issues are, and the need for information, otherwise it will be difficult to address concerns." Now, in adopting the minutes - you're happy to adopt that that was your statement at the time, that Chris is you?---That was clearly me and that was clearly my statement. I recall saying this on a number of occasions at JCT meetings.
PN586
Have, in fact, the QNU presented any particular specific examples of these matters to you for your consideration?---None whatsoever.
PN587
Attachment 3 to the minutes of 21 July 2010, which is now exhibit Q4 for the proceedings, that was the document that set out various people at various steps and time. Do you recall being taken to that by Ms Semple?---Yes, I do.
PN588
Can you turn it up, perhaps. Now, there are, to my counting - which is not necessarily always accurate - 25 employees who have ascribed information to this document. In Mr O'Connor's evidence, there's evidence that Jindalee had, at the time that he did an exercise - which you don't need to have to trouble yourself with - about 83 employees at about that time. Does that sound about right to you in terms of average number of employees at Jindalee?---Yes, it does. I use a formula around the number of beds and, given the number of beds, that sounds correct.
**** CHRISTOPHER JOHN O’BRIEN RXN HORNEMAN-WREN SC
PN589
This document states that it's information that is to be presented to the JCT meeting of Wednesday, 21 July 2010. Would it have been the case that Jindalee had about 83 employees at or about that time?---Yes, give or take.
PN590
So those that have ascribed their information seem to be about 25 of roughly 80, or thereabouts. Is that a fair way of looking at it?---That's correct, assuming that some of them haven't put double entries in, too.
PN591
One of the other features of the document is that of the 25 people who put information into the document, 100 per cent of them gave an indication as to whether they would vote "yes" or "no" for the agreement then being proposed, being back in July 2010, and stated "no". We can see that from the - - -?---Could you ask that question again?
PN592
Yes, sorry?---I'm sorry, it was a long question.
PN593
THE COMMISSIONER: Yes, please.
PN594
MR HORNEMAN-WREN: One of the questions they were asked was, "Do you intend to vote 'yes' or 'no' for the proposed agreement?" Leaving aside what the agreement, at this stage of time, would have been - - -?---Yes, I see that.
PN595
- - - each of the people seem to have provided an answer to that?---Yes, I see that. Yes, they provide - - -
PN596
The answer in each case is "no"?---That's correct.
PN597
So 100 per cent were indicating "no", according to the document back then?
---That's correct.
**** CHRISTOPHER JOHN O’BRIEN RXN HORNEMAN-WREN SC
PN598
That seems to be a considerably different reflection of any slice of the TriCare operation that's reflected in the ultimate vote on the agreement that we're here seeking approval for that came out of the AEC vote that was ultimately conducted?---That's a fair comment. It doesn't reflect the ultimate outcome.
PN599
That was conducted about 13 months subsequently?---10 July, August - yes, that's correct.
PN600
THE COMMISSIONER: I think you've just got away with murder.
PN601
MS SEMPLE: Yes, I object to that. I think it's misleading.
PN602
THE COMMISSIONER: Well, it wasn't in cross - the voting wasn't, in terms of that document.
PN603
MR HORNEMAN-WREN: Like Mr Butler, I don't take that as being an invitation to sit down; it just happens to coincide with the moment I have nothing further. Thank you.
PN604
THE COMMISSIONER: Thank you, Mr Horneman-Wren. Mr O’Brien, thank you for your evidence. You are discharged. You may step down?---Thank you.
<THE WITNESS WITHDREW [12.39PM]
MR HORNEMAN-WREN: Commissioner, as you know, I've got one further witness.
PN606
THE COMMISSIONER: You do.
PN607
MR HORNEMAN-WREN: But on my own behalf and Ms Semple's, for reasons other than mine - mine is purely comfort - might I ask that you stand the matter down for about 5 minutes? Perhaps Ms Semple needs a bit longer. I think Ms Semple needs to make a telephone call.
PN608
MS SEMPLE: Yes, I do.
PN609
THE COMMISSIONER: Yes, you do.
PN610
MS SEMPLE: Yes, because if you recall originally, Commissioner, I was - - -
PN611
THE COMMISSIONER: I do recall and I'm - - -
PN612
MS SEMPLE: - - - (indistinct) by about 1.45, but if we only have a short break I suggest that we could get through the final witness, who I only have two questions on - I'm not sure about the other parties - - -
PN613
THE COMMISSIONER: You'd better not speak for Mr Butler.
PN614
MS SEMPLE: - - - hopefully finalising the witnesses and I'm wondering if we might then do the final submissions in writing. Alternatively, I can ring and see if I can get another appointment at a time in the not-too-distant future.
PN615
THE COMMISSIONER: Could we go off the record for a moment? Would that be okay?
<OFF THE RECORD [12.40PM]
<ON THE RECORD [12.53PM]
PN616
MR HORNEMAN-WREN: Commissioner, I call Michael Joseph O'Connor.
<MICHAEL JOSEPH O'CONNOR, SWORN [12.53PM]
<EXAMINATION-IN-CHIEF BY MR HORNEMAN-WREN [12.53PM]
MR HORNEMAN-WREN: Mr O'Connor, your full name is Michael Joseph O'Connor?---That's correct.
PN618
In respect of these proceedings, you made a statement on 7 November 2011?
---That's correct.
PN619
Can I show you this document, thanks, Mr O'Connor. Can you just check that that's a copy of the statement that you've made on 7 November,
Mr O'Connor?
---Yes, it is.
PN620
To the best of your knowledge and belief, are the facts that you've set out in that statement true and correct?---Yes, they are.
PN621
To the extent that you've expressed some opinions that you've formed based on the factual material, they're opinions which you genuinely hold?---Yes.
PN622
I tender that, thank you.
PN623
THE COMMISSIONER: Is there any objection? No? Cool, thank you. I shall mark the witness statement of Michael Joseph O'Connor dated 7 November 2011, together with two attachments, as exhibit R2.
EXHIBIT #R2 WITNESS STATEMENT OF MICHAEL JOSEPH O'CONNOR DATED 07/11/2011
MR HORNEMAN-WREN: Thank you. That's the evidence-in-chief.
PN625
THE COMMISSIONER: Thank you, Mr Horneman-Wren. Ms Semple.
<CROSS-EXAMINATION BY MS SEMPLE [12.55PM]
**** MICHAEL JOSEPH O'CONNOR XXN SEMPLE
PN626
MS SEMPLE: Hello, Mr O'Connor, just a couple of questions in relation to your statement. If I can take you to MJO1. It's just a rather difficult to read spreadsheet. Nevertheless, I can. Just let me lean back a bit, read it. Can I take you to line 56. It's Christine Bier. Can you see that?---Yes.
PN627
You have got a base rate there under the heading TriCare EB, a base rate of 17.0969 - - -?---Yes.
PN628
- - - as rate of pay. Then over under the modern award, as a comparator rate, you've got 16.9276?---Yes.
PN629
So where do you get the figure of 16.9276?---Basically with the rates of pay, the column on the right-hand side is taken from the modern award at the level from the table that Mr O’Brien prepared that relates to that step.
PN630
Do you know what that step is called?---Well, Christine Bier, she's a PC step 1, attaching column B. This actual spreadsheet doesn't show what award level that is.
PN631
Would it surprise you to know that that's the level for first year nursing assistant?
---I just don't have that in front of me so - - -
PN632
I can provide you a copy of that. I think it's attached to my statement.
PN633
THE COMMISSIONER: Yes, that's where I think it is.
PN634
MS SEMPLE: There is a wages scheme that has been prepared by the Queensland Nurses Union which - I've provided evidence to say that that is the same rate which the Fair Work Ombudsman publishes on the web site for a first year - can I just show the - can I also provide the witness with a full copy of the Nurses Award 2010.
**** MICHAEL JOSEPH O'CONNOR XXN SEMPLE
PN635
THE COMMISSIONER: I'm sure he'd be delighted.
PN636
MS SEMPLE: No-one has any objection because the wage sheet might not make much sense without it. If you just turn to page 9 clause 14 of the - - -?---Sorry, which page?
PN637
Page 9?---Yes.
PN638
Clause 14. Now, I can say that those wages are those from July 2010. It's not the wages I'm interested in, but can you see how those nursing classifications are named there - nursing assistant, I beg your pardon, at 14.1?---Yes, I can see those.
PN639
So can you just read out what that says, please, onto the record?---Under 14.1 it says: first year, $622.10 a week. Second year, $632.40 per week.
PN640
MR BUTLER: That's not the current - - -
PN641
THE COMMISSIONER: I don't think these are the right rates.
PN642
MS SEMPLE: No, they're not the right rates, but the point is the way they're described.
PN643
THE COMMISSIONER: Okay. Because you said earlier - - -
PN644
MS SEMPLE: Well, the - - -
PN645
THE COMMISSIONER: - - - you weren't interested in the rates?
PN646
MS SEMPLE: I said earlier that they're old rates, yes.
**** MICHAEL JOSEPH O'CONNOR XXN SEMPLE
PN647
THE COMMISSIONER: Okay.
PN648
MS SEMPLE: The correct rates are in the wage sheet.
PN649
THE COMMISSIONER: Yes.
PN650
MS SEMPLE: Because of the transition - - -
PN651
MR HORNEMAN-WREN: So that we're not all cross-purposes, I think we might be able to provide a copy of the current award.
PN652
THE COMMISSIONER: I just want to double-check. 643.30?
PN653
MR HORNEMAN-WREN: 653.90.
PN654
THE COMMISSIONER: Yes.
PN655
MR HORNEMAN-WREN: 664.80.
PN656
THE COMMISSIONER: Yes.
PN657
MR HORNEMAN-WREN: And 686.20.
PN658
THE COMMISSIONER: Correct.
PN659
MR HORNEMAN-WREN: Thank you.
PN660
MS SEMPLE: They are the weekly rates in the QNU's wage sheet as well. So I really just want to establish that you agree that the award describes those rates as belonging to first-year, second-year and third-year nursing assistants?---As they're in front of me, yes.
**** MICHAEL JOSEPH O'CONNOR XXN SEMPLE
PN661
Do you see any other qualifications for nurses at those levels?---Not as presented in front of me, no.
PN662
So would you agree then that, under the award, the rate of 16.93 - same, rounded up - is the award rate for a first-year assistant in nursing?---It does appear to be, yes.
PN663
So can you tell me if Christine Bier is in her first year of employment at TriCare?
---I don't know that. She is paid, according to the spreadsheet, as a step 1, but I don't know how long she's been employed.
PN664
So you don't know - if she was in her second year of employment under the award, if she was under the award, she'd be entitled to $16.93 an hour, wouldn't she, according to the wage sheet, 5A?---Sorry, can you ask that question again?
PN665
If Ms Bier was in her second year of employment, according to the award that you've got in front of you and using the hourly rates in the QNU's wage sheet, she'd be entitled to $17.21 per hour?---That's correct.
PN666
If she was in her third year, she'd be entitled to $17.49 per hour. Is that correct?
---Yes.
PN667
You can't say what year she's in?---No, I don't know.
PN668
So she could be in her third year?---I have no idea.
PN669
But she could be?---Yes.
PN670
What about Ms Lauren Russo at line 79. Is she in her first year of employment?
**** MICHAEL JOSEPH O'CONNOR XXN SEMPLE
---I don't know.
PN671
Could she be in her third year?---She could be.
PN672
Just one other thing. Did any of the employees on this roster work more than 76 hours in a fortnight?---Not from my recollection. Not that I recall.
PN673
Did any of them do voluntary extra hours that you're aware of?---No.
PN674
They didn't?---Not that I'm aware of.
PN675
I haven't got any further questions, thanks.
<CROSS-EXAMINATION BY MR COURT [1.04PM]
MR COURT: Just one question, Commissioner.
PN677
I take you to point 18 of your witness statement which has been submitted. In it, you indicate that there are a number of award agreement entitlements that you didn't deem it was possible or necessary to do a comparative analysis of. One of those was annual leave. I was just wanting to get some more explanation of you as to why - firstly, a question that employees who were on annual leave, they were not included in this analysis?---I think, as it says in my statement, that the determination of how that leave would be paid was a more complex matter than the simple spreadsheet could determine. So for example, you would need to understand how they had been rostered previously to determine their entitlements - the loading, for example - and that's much more complex than what this tool could do and, for that reason, I believed it was more appropriate to consider that as a separate exercise to this model.
PN678
So in the analysis that is in the spreadsheets which is an attachment to the statement, any calculation of any difference that somebody might have got while they were on annual leave, if they were under the proposed EBA 5 as opposed to being under the relevant modern award, was not taken into account?---That's correct.
**** MICHAEL JOSEPH O'CONNOR XXN COURT
PN679
No more questions.
<CROSS-EXAMINATION BY MR BUTLER [1.06PM]
MR BUTLER: Dealing firstly with the nature of your analysis, of the 175 people whose roster you looked at, does the analysis show the hours that they actually worked, or does it show what they were rostered to work?---No, it shows their actual rostered hours.
PN681
What about - - -?---Their actual worked hours.
PN682
In terms of the two centres that you chose, how many employees do they employ total?---I don't know that off the top of my head but I could tell you that number by counting them as they appear on the spreadsheet. You might notice that there are a number of lines - I believe they're lines where - - -
PN683
So 175. Would that help?---Well, there might be more staff employed. Some of them may not have been rostered that fortnight.
PN684
Of the 1200 roundabout figures that we're talking for employment under this agreement, your survey deals with 175?---Yes.
PN685
The centres that they work at, being Jindalee - does Jindalee operate exactly the same roster as other centres?---I wouldn't say exactly the same; I would say it's similar.
PN686
What about Bundaberg?---Again, I wouldn't say it's exact, but it's similar.
PN687
So the information you've provided, how confident are you that it represents the BOOT test for every TriCare employee covered by the agreement?---I am confident.
**** MICHAEL JOSEPH O'CONNOR XXN BUTLER
PN688
Could you tell us why?---I'm familiar with the rosters for every TriCare centre and I'm not aware of any peculiarities in any centre where there's a totally different shift, for example, that would attract different penalties, or - the general make-up of each roster is the same in that there's a morning shift, an afternoon shift and a night shift and there aren't wild variations to the make-up of the roster.
PN689
So what makes a roster vary? What are the variations on a roster?---Just in the general sense, ordinary hours compared to weekend hours; morning compared to afternoon shifts, night shifts. Is that what you mean?
PN690
Yes. So different employees could work very different rosters?---Definitely.
PN691
And, therefore, be entitled to different pay arrangements?---That's correct.
PN692
So do you still support your view about the representativeness of your survey?
---Yes, I do.
PN693
Even though what each individual employee earns depends on each individual employee roster?---What I saw in the Bundaberg and Jindalee calculations led me to believe that it wouldn't matter what pattern a person was rostered, the pattern that they would be rostered could not affect the outcome of the calculation. So it's - - -
PN694
But the hours they worked could?---Of course, the hours they work determines the pay, determines the difference between the EB and the award, but what I'm saying is that I don't think there would be any variations to what I saw in Bundaberg and Jindalee in the other centres.
PN695
Can you guarantee that?---No.
**** MICHAEL JOSEPH O'CONNOR XXN BUTLER
PN696
So it's representative?---Yes.
PN697
It doesn't guarantee that each award-covered employee is better off?---Can't guarantee that.
PN698
Now, one other matter, and I don't intend to take too much time with it. In terms of - and you've mentioned that you are familiar with the TriCare corporate structure?---That's right.
PN699
How many companies are there in the corporate structure?---Right off the top of my head I can't give you an exact number. It would be around 50.
PN700
Commissioner, could I show my exhibit. Commissioner, could you mark that - - -
PN701
MR HORNEMAN-WREN: No objection.
PN702
THE COMMISSIONER: Okay, thank you. I shall mark a document headed ASIC And Business Names Organisational Search Browse as exhibit U1.
EXHIBIT #U1 ASIC AND BUSINESS NAMES ORGANISATIONAL SEARCH BROWSE
MR BUTLER: Could you indicate to me which is the ultimate holding company of TriCare?---I don't believe it's on that list.
PN704
It's not on here. Can you tell us who it is?---I believe the ultimate holding company is TriCare Group Pty Ltd.
PN705
Where is TriCare Group - how does TriCare Group exist? What is it?---I'm not sure how to answer that question.
**** MICHAEL JOSEPH O'CONNOR XXN BUTLER
PN706
Is it a registered company?---Yes, it is. To my knowledge, it is.
PN707
Whereabouts?---I believe it's registered in Norfolk Island.
PN708
Does it control all the other companies and subsidiaries of TriCare?---In the sense that it's the ultimate holding company, yes.
PN709
Does it control - is it capable of directing them?---Yes. To my knowledge, yes.
PN710
Who are the - how does it exercise that control?---I don't know the answer to that.
PN711
Are all the other companies subsidiaries of TriCare Group?
PN712
MR HORNEMAN-WREN: Well, that's actually a question of law and the answer to that is to be found in the documents, the government registration of the companies. I withdraw the objection. There's one question of fact that might be relevant?---Again, I'm not confident to answer that question.
PN713
MR BUTLER: Thank you, I have no further questions.
PN714
THE COMMISSIONER: Mr Horneman-Wren?
PN715
MR HORNEMAN-WREN: No re-examination, thank you.
PN716
THE COMMISSIONER: Mr O'Connor, thank you for your evidence. You are discharged. You may step down.
<THE WITNESS WITHDREW [1.16PM]
THE COMMISSIONER: Cool.
PN718
MR HORNEMAN-WREN: Before I close my case, in an evidentiary sense, though, I will tender some company documents.
PN719
THE COMMISSIONER: Cool.
PN720
MR HORNEMAN-WREN: They're current company extracts for each of the following entities. TriCare (Annerley) Pty Ltd. I'm content for them to be a bundle, if that's convenient to you.
PN721
THE COMMISSIONER: Might be.
PN722
MR HORNEMAN-WREN: But I should read them to the record, each of the names.
PN723
THE COMMISSIONER: Correct, save me.
PN724
MR HORNEMAN-WREN: TriCare (Country) Pty Ltd; NCA Pty Ltd; TriCare (Mermaid Beach) Pty Ltd; Netanya Noosa Pty Ltd; TriCare (Walker) Pty Ltd; TriCare (Hostels) Pty Ltd; TriCare (Logan) Pty Ltd; TriCare Holdings Pty Ltd; TriCare (Stafford Hts) Pty Ltd; TriCare (Kawana Waters) Pty Ltd; TriCare Ltd. I tender those as a bundle and provide copies to our learned friends. They are not in the same order. Might I just - I've just got to put them in some order. Could I just try and do that for our learned friends. Can I have the exhibit back?
PN725
THE COMMISSIONER: Sure. I was about to say, do you want - hang on. In two secs.
PN726
MR HORNEMAN-WREN: Yes.
PN727
THE COMMISSIONER: Let me just - I need it.
PN728
MR HORNEMAN-WREN: Thank you.
PN729
THE COMMISSIONER: Is there any objection from any of the unions?
PN730
MS SEMPLE: No.
PN731
THE COMMISSIONER: Okay. I shall mark the bundle of current extracts from ASIC and business names that were specifically identified by Mr Horneman-Wren a moment ago as exhibit R3.
EXHIBIT #R3 CURRENT EXTRACTS ASIC BUSINESS NAMES REGISTER
MR HORNEMAN-WREN: Thank you. For my purposes, if I can just borrow back the exhibit - - -
PN733
THE COMMISSIONER: Of course you can.
PN734
MR HORNEMAN-WREN: - - - we can just put it in proper form for our friends.
PN735
THE COMMISSIONER: That's fine.
PN736
MR HORNEMAN-WREN: But otherwise, that's my evidentiary case. Thank you, Commissioner.
PN737
THE COMMISSIONER: Okay, lovely. Thank you, Mr Horneman-Wren. On the basis of the discussions earlier, I think the plan is that there would be a video - no, I'm coming up. Sorry. Maybe I should go off the record for this.
<OFF THE RECORD [1.21PM]
<ON THE RECORD [1.21PM]
PN738
THE COMMISSIONER: On the basis of the discussions off the record regarding future programming of this matter, this matter will be adjourned to a date to be set. The hearing will be held in Brisbane over the course of a day. I'd like to thank everybody for the sense of humour that everybody has had in the proceedings today, that has been helpful to everybody I think in terms of getting through a lot of material, and for dealing with matters that are serious matters for all the parties and "heartfelt" might be the wrong description, but I think everybody probably understands what I'm trying to say. So I appreciate that. This matter is now adjourned.
<ADJOURNED INDEFINITELY [1.22PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
ANNE STEVENS, AFFIRMED PN79
EXAMINATION-IN-CHIEF BY MS SEMPLE PN79
EXHIBIT #Q1 AMENDED STATEMENT AND ATTACHMENT OF ANNE STEVENS DATED 02/11/2011 PN97
CROSS-EXAMINATION BY MR HORNEMAN-WREN PN100
CROSS-EXAMINATION BY MR BUTLER PN165
RE-EXAMINATION BY MS SEMPLE PN186
THE WITNESS WITHDREW PN202
VONNIE SEMPLE, SWORN PN202
EXAMINATION-IN-CHIEF BY MR DOUGHERTY PN205
EXHIBIT #Q2 STATEMENT OF VONNIE SEMPLE DATED 03/11/2011 PN211
CROSS-EXAMINATION BY MR HORNEMAN-WREN PN218
RE-EXAMINATION BY MR DOUGHERTY PN311
THE WITNESS WITHDREW PN314
CHRISTOPHER JOHN O’BRIEN, SWORN PN320
EXAMINATION-IN-CHIEF BY MR HORNEMAN-WREN PN320
EXHIBIT #R1 STATEMENT OF CHRISTOPHER JOHN O’BRIEN DATED 07/11/2011 PN331
CROSS-EXAMINATION BY MS SEMPLE PN334
EXHIBIT #Q3 CORRESPONDENCE AND ATTACHMENTS DATED 01/07/2011 PN366
EXHIBIT #Q4 JCT MEETING MINUTES OF 21/07/2010 PN397
EXHIBIT #Q5 JCT MEETING MINUTES OF 10/02/2011 PN414
CROSS-EXAMINATION BY MR BUTLER PN445
RE-EXAMINATION BY MR HORNEMAN-WREN PN565
THE WITNESS WITHDREW PN605
MICHAEL JOSEPH O'CONNOR, SWORN PN617
EXAMINATION-IN-CHIEF BY MR HORNEMAN-WREN PN617
EXHIBIT #R2 WITNESS STATEMENT OF MICHAEL JOSEPH O'CONNOR DATED 07/11/2011 PN624
CROSS-EXAMINATION BY MS SEMPLE PN626
CROSS-EXAMINATION BY MR COURT PN676
CROSS-EXAMINATION BY MR BUTLER PN680
EXHIBIT #U1 ASIC AND BUSINESS NAMES ORGANISATIONAL SEARCH BROWSE PN703
THE WITNESS WITHDREW PN717
EXHIBIT #R3 CURRENT EXTRACTS ASIC BUSINESS NAMES REGISTER PN732
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