C2013/3732, Transcript of Proceedings [2014] FWCTrans 283 (2 June 2014)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1049997-1

DEPUTY PRESIDENT ASBURY

C2013/3732 B2013/1546

s.739 - Application to deal with a dispute in relation to flexible working arrangements

Queensland Nurses' Union of Employees
and
Blue Care
(C2013/3732)
Blue Care/ Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2011

(ODN AG2011/12230)
[AE888490 Print PR514930]]




Brisbane

10.10AM, MONDAY, 19 MAY 2014

Continued from 17/02/2014

PN1

THE DEPUTY PRESIDENT: Good morning. Please be seated. Can I just start by taking appearances.

PN2

MR HEALY: Yes, if the commission pleases my name is Healy, H-e-a-l-y, initial M, counsel directly instructed by the Queensland Nurses’ Union of Employees. I appear for the applicant.

PN3

THE DEPUTY PRESIDENT: Thanks, Mr Healy.

PN4

MR PARRY: If the commission pleases, my name is Parry. I seek permission to appear with my learned friend, Mr Murdoch, for the respondent employer. If the commission pleases.

PN5

THE DEPUTY PRESIDENT: Thank you.

PN6

MR HERBERT: Yes, if it please the commission my name is Herbert, initial A, counsel. I seek permission to appear on behalf of the Australian Workers’ Union.

PN7

THE DEPUTY PRESIDENT: Yes.

PN8

MR PEVERILL: Deputy President, Mr Peverill, initial D on behalf of United Voice Industrial Union.

PN9

THE DEPUTY PRESIDENT: Thank you. Given that most of the parties are legally represented I don’t think any issue of fairness as between them arises and I am satisfied that, given the complexity of the matter, it would make it much more efficient if all parties were legally represented so permission is granted. Now, as I understand it there’s some submissions that were received this morning in relation to objections to some of the evidence that the QNU intends to rely on. Is it best that we deal with those at the outset or wait until each of the witnesses is going to be called and deal with it at that point?

PN10

MR HEALY: Your honour, it’s necessary for me to raise some preliminary issues around that issue. It really is for a couple of reasons and I will come to those as quickly as I can. The only preliminary issue that I’m aware of, your honour, is the one that you raised. That is, objections to evidence and I say at the outset in fairness that the QNU also raises some objections to evidence to be led by Blue Care but having received the documents I have just received, I have received a detailed list of particulars of objections to evidence. I have also received some amended submissions which I have not had a chance to read but I will come to those issues in a minute. Your honour is aware that these issues were raised by both parties in this respect effectively last Friday which is the eve of trial.

PN11

It’s important in the context of this case because the applicant’s material has been filed and available for 7 months and the respondent’s close to that. Your honour, in the QNU’s submissions objections to evidence, that is some paragraphs and some particulars, are one thing but this is a different case of affairs altogether it seems. For the applicant in this case to be informed on the eve of – partly on the eve of trial but in the main this morning as the trial is about to commence, that the majority of its material ought be excluded from the proceedings is quite another. That’s a different matter altogether. This is material that the respondent Blue Care has had for over 7 months. The objections, and I don’t have any knowledge of what they are because I have not had an opportunity to read them yet, have the potential in the QNU submission to have a fundamental impact upon these proceedings.

PN12

Objections to evidence of this scope, the respondent seeks to have four of the QNU’s seven witnesses excluded from the proceedings, your honour. Objections of this sort and this scope, as counsel for the parties are well aware, are not dealt with in this manner elsewhere. In places like the Federal Circuit Court and the Federal Court of Australia and in other tribunals, they are dealt with well in advance of hearings. In my submission, there are very good and very obvious reasons for that. The first one is that it assists the parties to know the case that they are going to be permitted to bring by, and in this case, by the commission. Of course, fundamentally, secondly it allows parties to know what case they will have to meet.

PN13

It also serves a critical purpose in the sense that it’s incumbent upon the commission to control its own process at all times in order for the matter to be disposed of in an orderly way and fairly and justly. These matters ought to be dealt with well advance. This is an old fashioned ambush, in my submission, your honour. Section 577 of the Fair Work Act 2009, your honour, in my submission is an important provision in the context of what is transpiring as we speak in this case. It has some simple but very, very important provisions. Section 577 provides that:

PN14

The Fair Work Commission must perform its functions and exercise its powers in a manner that is fair and just.

PN15

Everybody in this room and certainly the commission as it’s currently constituted will have a comprehensive understanding of what that means and the import of it. The commission is mandatorily required to conduct its functions and exercise its power in a manner which is fair and just. Your honour, I concede or I submit that in another case, some other dispute, these types of issues may not loom so large. The parties may each have different views about how such matters ought be dealt with and the parties would, with the assistance of the commission, get on and do their best to deal with them. That may or may not, of course, occur in this case.

PN16

The commission as it’s currently constituted, your honour, and the parties in this room are fully aware that the work that’s performed by assistance in nursing and personal carers, the nature of that work, the correct classification of that work, the eligibility to cover that work is a matter which has been in, at some times, fierce contest and over in excess of 20 to 25 years in Queensland and has been the subject of some very significant litigation and a great many cases. The commission and the parties are also aware that it is undeniably, in my submission, an issue of the utmost import to the parties before you today, your honour. In the QNU submission, it cannot be fair or just for issues to be resolved in what might be a final way on the basis of procedures, processes which it seems, we’re told now this morning, at the start of the trial may materially affect the case which the QNU might be permitted to run and indeed the case that it may now have to meet. As a matter of balance, your honour, I indicate that the QNU has objections to some of the material to be led by the respondent’s witnesses. Nowhere in the summary outline of those objections that I have provided to my learned friends at the same time I received theirs, does the QNU seek to exclude in total witnesses proposed to be called by Blue Care. I assume that had that been the case that the QNU would have provided that advice long before now.

PN17

It’s a matter of procedure but in my submission, your honour, it’s a matter of substance and it goes to the very heart of the way in which this matter ought to be disposed of or not be disposed of. Your honour, this dispute before you was filed in this commission in March 2013. There should be no party before you who is compelled to deal with this very, very important case on the hop and on the run with one or one and a half hands tied behind its back. That’s what Blue Care, the respondents, seek to do. They seek to remove from the proceedings four of the QNU’s seven witnesses. Not just on the eve of trial, but on the morning of trial. That’s not fair, that’s not just, that’s not a proper process. We’re not going to get a fair hearing. There’s virtually no prospect of that.

PN18

We won’t know until objections are heard what sort of a case we might have left to run. There won’t be an opportunity to obtain on-the-fly, as it were, proper and considered instructions in relation to whatever matters might remain of the QNU’s case. It’s entirely unsatisfactory in the QNU’s submission. Your honour, I have just been handed and as I say I have not had an opportunity to look at them at all, six pages of detailed objections to the evidence of the QNU. As I say, they seek to exclude at least four witnesses from the proceedings completely. Perhaps more material and my learned friends will be able to advise the commission otherwise, but perhaps more materially we have received this document as well, your honour. I don’t know if the commission has that.

PN19

THE DEPUTY PRESIDENT: Yes, amended outline of submission, yes.

PN20

MR HEALY: It’s not delineated in any way, shape or form as to what the amendments are. I understand that there are amendments to the submissions. These are not curial proceedings, Commissioner. The parties were compelled by directions issues by the commission early on to issue their submissions in the case. The witness evidence aside, these are the sole documents which provide each party with an opportunity to understand the case to be put by the other and the case that it has to meet during the course of the hearing.

PN21

THE DEPUTY PRESIDENT: It’s also a case where there’s a question for arbitration so I don’t know that I’m troubled by amended submissions, Mr Healy, when there’s a question for arbitration that’s been there since day dot and submissions can develop on the run as it were given, you know, the way that evidence falls in a particular case. They were just outlines of submissions and obviously parties would make closing submissions which may not be limited to what they raised in their outlines at the conclusion of all of the evidence.

PN22

MR HEALY: Well, I can only make some submissions to the commission on the material that’s before me, your honour. What I have is an amended outline of submissions. I have not been told what it contains. I’ve not been told whether there are any material differences to the case that the respondent seeks to run. At the very least, at the very, very least in my submission the QNU needs an opportunity to consider what those amendments are and I will need an opportunity to take some instructions about the import or otherwise of those.

PN23

THE DEPUTY PRESIDENT: Okay. So you would like to do that before we start the hearing?

PN24

MR HEALY: Yes, your honour.

PN25

THE DEPUTY PRESIDENT: Okay.

PN26

MR HEALY: Once we know what the amendments are - - -

PN27

THE DEPUTY PRESIDENT: Okay.

PN28

MR HEALY: Other than that, your honour – I’m just reminded that there is one witness statement of the respondents that is sought to be excluded as a whole from the respondent’s material and that’s the statement of Jacqueline Anne Clark, your honour.

PN29

THE DEPUTY PRESIDENT: Okay.

PN30

MR HEALY: Those are the submissions I wish to make in respect of this preliminary issue at this stage, your honour.

PN31

THE DEPUTY PRESIDENT: Thank you. Mr Parry, do you want to say anything in response?

PN32

MR PARRY: If the commission pleases. As regards to the amended outline, as they say they replace and incorporate the earlier submissions. They are construction and legal arguments based on the proposed evidence. I’m not going to oppose my learned friend having a short break as he seems to be asking for to look at those before we commence. The commission commenced asking about dealing with objections to evidence. In the circumstances it might be appropriate that we deal with the objections to each statement at the time they are called, at the time the witness is called if that’s satisfactory to the commission.

PN33

THE DEPUTY PRESIDENT: Then we will be dealing with the possibility that some will be entirely excluded and I think Mr Healy wants to know what the outcome of that will be before he starts his case, as I understand it. I have to say, Mr Parry, the usual approach in these types of proceedings is that both parties are legally represented by very experienced counsel and really it’s a question of the weight, if any, that can be put on – I mean, I accept that some things on the face of it are impermissible opinion like for example the legal capacity of AINs or personal carers to administer medication. That’s a matter I have indicated right from the outset but I don’t think it’s the subject of the opinions of any of the people performing the work and it’s a matter for the regulatory authority and I assume if there’s an issue with it, parties would take it up with that authority. I accept that there are some things that, on the surface of it, are impermissible opinion but the other matters seem to be really issue of relevance and the weight, if any, that should be put on the matters. If you want to plod through one by one and deal with them, then I guess that’s the position that we will take. You know, I note your objections but the prospect that I’m going to exclude entire statements is probably fairly limited in the circumstances.

PN34

MR PARRY: We have the objections and we press the objections but - - -

PN35

THE DEPUTY PRESIDENT: I understand.

PN36

MR PARRY: We understand the commission is a bit more flexible than many tribunals given the statutory requirements. Hopefully we don’t push objections that don’t take that position but some of the evidence falls into the category of being hearsay of the most extreme kind. That is, “I have travelled around, I have spoken to everybody and they agree with me”. Now, ultimately things fall off – they get to a stage where really they shouldn’t be admitted, first point. Secondly, there is some opinion evidence which is really attempting to answer the questions that the commission is meant to be answering. So they are the sort of objections we press more seriously than some of the others that the commission has identified.

PN37

THE DEPUTY PRESIDENT: I have read all the statements and I accept there is some hearsay in them, there’s some comments that are opinion that perhaps not a lot of weight would be put on but I’m not of a mind to totally exclude the evidence of any witness. Perhaps on that basis, Mr Healy, we can deal with each one as the evidence is given, that’s going to give you time to look at them.

PN38

MR HEALY: If that’s your ruling, your honour, and that’s the case then that certainly satisfies that part of it.

PN39

THE DEPUTY PRESIDENT: I have read the statements and I’m not minded to exclude anybody’s statement at this juncture but I also accept there is some legitimate objections that have been raised in that list of objections and will have to deal with them one way or the other because I’m sure if I take some of those things into account that won’t be the end of this matter regardless of which way the decision goes. Who were you planning to call first?

PN40

MR HEALY: Just before we do that, two things your honour. Do you have the respondent’s objections to evidence? The document which I - - -

PN41

THE DEPUTY PRESIDENT: Yes, I do. I got it at 9.02 and I did my best to look at it before I came in but I had already read the statements and I have to say some of the things I went yes, tick, some of those things just are plainly not matters that a lot of weight should be put on, if any.

PN42

MR HEALY: Your honour, in that case for the sake of completeness can I hand up to you a copy of the objections by the QNU to the evidence of the witnesses to be called by Blue Care.

PN43

THE DEPUTY PRESIDENT: Sure.

PN44

MR HEALY: Your honour, one other matter – can I ask through the commission for the respondent to identify what the changes are to the amended outline of submissions so that I can deal with that as quickly as possible and I would seek that the matter be stood down so that I can consider those issues.

PN45

THE DEPUTY PRESIDENT: I don’t think that needs to be done on the record. I can stand the matter down and Mr Parry can tell you what the changes are during the adjournment.

PN46

MR HEALY: As your honour pleases.

PN47

THE DEPUTY PRESIDENT: I also need to indicate that on Thursday morning I need to do something for the Road Safety Remuneration Tribunal that President Acton has asked me to do that I just have to do so I wouldn’t be looking at starting until 1 o’clock on that day. If that assists parties in planning their witnesses etcetera. If we have to sit late, we have to sit late because I think we need to try to finish as much of this as possible given there’s another matter in the wings which is the agreement. All right. I will adjourn say, what, 20 minutes and Caroline will come back in and see if you are ready or do you want to make it 30?

PN48

MR HEALY: Yes, please.

PN49

THE DEPUTY PRESIDENT: Okay.

<SHORT ADJOURNMENT [10.29AM]
<RESUMED [11.13AM]

PN50

THE DEPUTY PRESIDENT: Thank you. Mr Healy?

PN51

MR HEALY: Thank you, your honour. Your honour, the QNU thanks the commission for the opportunity to consider this amended outline of submissions. Can I say firstly that the opportunity has been too limited. The QNU was provided with one copy only of the submissions. There weren’t any others available. The discussions that I had with my learned friend as it also transpires were of no assistance to the QNU in respect of the changes to the respondent’s case which have been made. Your honour, if it’s of assistance I can quickly go through the material that is new and make whatever submissions I am able to make on the hop at this stage - - -

PN52

THE DEPUTY PRESIDENT: Well, do you want some more time Mr Healy? I don’t want you to be on the hop and we would have made you some extra copies if we had known. You only had to come around to the registry counter and we would have made you as many as you wanted.

PN53

MR HEALY: We were able to discuss what issues we could discuss in half an hour, your honour, but it might be of assistance if I – certainly the point I was going to come to is that the QNU at a very minimum seeks the opportunity until after the luncheon adjournment to consider the impact of these matters and to report back to the commission on its position in relation to them and what it says ought to happen to the proceedings. Can I indicate because I think it’s appropriate at this stage, what the difficulties are and why they present a difficulty?

PN54

THE DEPUTY PRESIDENT: Sure.

PN55

MR HEALY: Your honour, I was informed by my learned friend that I should start at about paragraph 4 and just really focus on 4, 5 and 6. The truth of the matter, your honour, is that these are in substance and in effect brand new submissions. They are additional to and not a replacement of or an amendment to the submissions that have previously been filed. Just to give examples, I won’t labour the point unduly now because perhaps it can be dealt with in some greater detail when we come back if some further time is allowed. The first thing I note is the original paragraph 1.2 is missing where the respondent asserted that the commission’s jurisdiction in this matter is derived from section 793 of the Fair Work Act. We don’t know at this stage whether there is any significance in that. Your honour, paragraph 1.4 is different. Paragraph 2 is new. Paragraph 4 is entirely new. Paragraph 5 is entirely new.

PN56

THE DEPUTY PRESIDENT: But paragraph 4 - what the whole of 4?

PN57

MR HEALY: Yes.

PN58

THE DEPUTY PRESIDENT: But that’s pretty unremarkable, isn’t it? It’s just summary of the approach to be taken in the construction of instruments, isn’t it?

PN59

MR HEALY: It is, your honour. That’s not our major difficulty. I’m simply highlighting at this stage what matters are new. Paragraph 5 is new and it’s a different case. Paragraph 6 is new and it’s a different case and like many of the other examples I can point to, your honour, and perhaps I should take the commission to it straight away, the real issue in all of this arises out of the directions made in this matter and the way the matter progressed, your honour. The key directions order in the matter was issued on 6 September 2013. The programming of the matter provided that the applicant was to file its material by 11 October 2013. That included submissions and witness statements. The respondent’s submissions and witness statements by 8 November 2013. My recollection is that that deadline was extended to some degree but direction number 5 provided that the applicant file any submissions and witness statements in reply subsequent to that. The QNU had and was to have an opportunity to file both witness statements and further submissions in reply to the respondent’s material.

PN60

The effect of an import of these submissions is that the QNU has been denied that opportunity and would be denied that opportunity. Paragraph 6 is the first example of that, your honour. Much is made, indeed the paragraph extends for several pages, of the context of the agreements between the parties. As everyone present is aware there is a significant history in relation to those matters and evidence would have been necessary and it would have been needed to be put on. Paragraph 7 is entirely new. It deals with the subject of legislative reform. Had that paragraph appeared – of course, this is all speculation, your honour, because we weren’t provided with these submissions when we were supposed to be, but it goes right to the heart of the case that the QNU could have and probably would have filed and ran.

PN61

In the face of another two and a half pages of materials in respect of legislative reform, the QNU would have been on notice about the case that Blue Care intended to run about these significant matters and would have been in a position to consider whether reply statements needed to be filed and served, whether it needed to obtain expert evidence, whether it needed to call departmental officers. These are not fanciful matters, your honour. In cases that have dealt with this issue in the past such as the Churches of Christ case, some very senior experts have been called to give evidence. If this case was to be a bigger case than the one which the respondents have, until today, indicated they intended to run the QNU would have run a bigger case undoubtedly. It has done it before and it would do it again but it’s been deprived of the opportunity to do that. Paragraph 8 is brand new, your honour. “Models of Care”.

PN62

THE DEPUTY PRESIDENT: Sorry, is the statutory declaration of Ms Webbing new? Arguably that material was dependent to the statutory declaration, wasn’t it? It says – all of this is just referencing, isn’t it? Every paragraph is footnoted and it’s referencing of statutory declaration that was filed. I have seen Ms Webbing’s statutory declaration.

PN63

MR HEALY: You are referring to paragraph 8, your honour.

PN64

THE DEPUTY PRESIDENT: Paragraph 7. The bit about the legislative reform, there’s all references to statutory declaration of Glenys Webbing and I - - -

PN65

MR HEALY: There are references, your honour. What I’m able to do at the moment is indicate what’s new. The QNU has not had a proper opportunity to consider the full import and significance of this and for the reasons I outlined this morning and that I am outlining now, that’s a matter of the utmost importance to the applicant in this case.

PN66

THE DEPUTY PRESIDENT: Right.

PN67

MR HEALY: It’s simply, in my submission, not procedurally fair to deal with this extent of material and these number of potential issues as the trial commences. Having 20 minutes or so just to read through it is not the way in which these things are done. These things are filed, a whole range of people get to consider them, a whole range of people have to provide instructions, a whole range of decisions are made. They are not made on the fly during the course of the hearing and the QNU ought not be put in that position, in my submission. If I can continue, your honour, paragraph 9 contains elements which are new. Now, one might answer that the principal purpose test is a matter of the authorities. Well, that’s so but new submissions are made in respect of it. That gives rise to the same issue that I - - -

PN68

THE DEPUTY PRESIDENT: You’ve raised the principal purpose test as well. You’re both telling me that’s the test so you agree, that’s the test. What does it matter what a submission – I mean, I’m perfectly capable of reading the cases about the principal purpose test which I have for other reasons and say, well, I think the question is this and not that. What difference does it make what’s in the submission? The cases are the cases, the legislation is the legislation.

PN69

MR HEALY: The difference is makes, your honour, is the difference I outlined this morning. These aren’t curial proceedings that the case that’s to be run by a party is in accordance with the directions, to be set out in the written outline of submissions. We begin a 5 day trial with a whole lot of new material. Without being able to make any assessment, any proper assessment that one would in the usual way as to whether further material would have been file and further submissions would have been made. I’m coming to more significant issues as well, your honour.

PN70

THE DEPUTY PRESIDENT: Yes, okay.

PN71

MR HEALY: I say those are all potentially significant. The submission from the QNU really is your honour that – take the observations that your honour has made but the QNU hasn’t been able to properly consider all of those matters in the manner in which it ought to have been able to. There are new submissions in relation to the key witnesses in the case. Ms Scott and Ms O’Neill. It goes without saying that there has been – and they appear in paragraphs 9.13 to 9.17. It goes without saying that there has been no opportunity to obtain further reply material from them.

PN72

Under the heading “Other witnesses” your honour, the respondents make my case for me, make good the submission that I raised this morning. Here is in this outline the respondents submit that three of the seven witnesses to be called by the QNU are entirely irrelevant to the dispute and that a further statement, that is the statutory declaration of Mr Shepherd, amounts to a submission so that four of the seven statements should go. Again, that is an issue that the QNU should have been on notice about back in November 2013 when the respondent was required to file its submissions. Paragraph 10 is new, your honour, “Consideration of Blue Care models of care”. Again, QNU has been deprived of any opportunity to address those matters in its reply material and reply submissions.

PN73

Paragraph 11 on top of page 15, your honour, “Consequences of change in classification”. Again, new and when one looks at paragraphs 11.1 to 11.3, in my submission, potentially matters of significance your honour. The directions are made in these proceedings for proper reasons your honour. They’re two primary purposes I suppose, one can observe. It enables the QNU to understand firstly what the respondent says or what the respondent says its evidence establishes and fundamentally then secondly the case that that QNU has to meet at the trial. In my submission, even without having a further opportunity to consider the full nature and import of these entirely new submissions, it is obvious on the face of those that further and different material in reply and further and different submissions in reply would have been made by the QNU. The QNU has been deprived of an opportunity to run the case that it would otherwise have made.

PN74

THE DEPUTY PRESIDENT: So you need an adjournment essentially, Mr Healy, in your submission.

PN75

MR HEALY: The matter is set down for 5 days, your honour. That’s a serious matter. That’s a serious allocation of the commission’s time however the QNU’s position is the situation is serious. It’s fundamentally serious to this union. The respondent knows that. It has known it for 25 plus years. This won’t do as a process and as a procedure, this is entirely unsatisfactory in my submission. It’s also not one of the QNU’s making at all. The only suggestion that I can make at this time other than to formally seek an adjournment, your honour, is to seek some further indulgence from the commission so that myself and my instructors and perhaps others in the decision making position within the union can consider its position in respect of an application for an adjournment.

PN76

THE DEPUTY PRESIDENT: All right. When you go back through the material, look, I have got tailor made care on the file. We have been talking about, you know, the fact that Blue Care has got a tailor made policy is nothing new. That was discussed right from the outset that that was what was governing their – so now they have put some submissions in about it.

PN77

MR HEALY: Well, your honour makes my point for me. The interesting thing is that the new submissions, all 15 pages of them, there’s no mention of tailor made anywhere.

PN78

THE DEPUTY PRESIDENT: Yes, there is. I just read it.

PN79

MR HEALY: As a matter of emphasis, your honour, there was a 24 page written outline previously from the respondents in which, on one view, the respondent intended that tailor made was the ultimate justification for the changes it has made, seeks to make, wishes to make but that does not seem to be the case that is advanced now.

PN80

THE DEPUTY PRESIDENT: It’s mentioned in the amended outline as well, the tailor made hair models at Blue Care, section 8 of the submission. Essentially what would you like? A further short adjournment to see if you are going to get instructions about adjourning this entire week and reprograming it or are you making a submission that we should adjourn this matter, vacate the dates that we have listed for this week and issue further directions. Is that your submission? Or do you want to get instructions?

PN81

MR HEALY: The applicant would prefer some further time to consider its position and - - -

PN82

THE DEPUTY PRESIDENT: How long would you like?

PN83

MR HEALY: Probably as I indicated until after the luncheon break, your honour.

PN84

THE DEPUTY PRESIDENT: I would have broken for lunch at 1 o’clock. Do you want to come back at 1 o’clock? Do you want to come back at 12.30?

PN85

MR HEALY: 1 o’clock should be satisfactory.

PN86

THE DEPUTY PRESIDENT: All right. We will adjourn.

<SHORT ADJOURNMENT [11.30AM]
<RESUMED [1.17PM]

PN87

THE DEPUTY PRESIDENT: Mr Healy?

PN88

MR HEALY: Thank you, your honour. Thank you again to the commission for the opportunity to consider the matter. Your honour, I hold the instructions of the secretary of the Queensland Nurses’ Union of Employees to seek an adjournment of the hearing on the basis of the matters which have already been party ventilated this morning. Your honour, can I make some submissions in support of that application now. Firstly, I make some submissions in respect of the amended outline of submissions of the respondent and then move to some other matters of significance which the QNU contends ought weigh in favour of an adjournment.

PN89

Your honour, the very first thing to notice about the amended outline of submissions of the respondent is set out in paragraph 1.1 and that is that they are said to replace the submissions of the respondent of 20 November 2013. So it follows that whatever is in this document is new and it is in the QNU’s submission a new and a different case that the QNU has to meet. Paragraph 1.2 from the original submission is missing. That goes to the basis of the jurisdiction of the commission in these proceedings. There is no explanation given by the respondent for that omission. In the QNU’s submission it is safe to assume that some significance ought be attached to that. The respondent is not just coy about that issue, it is silent about it but the QNU certainly intends to ask.

PN90

THE DEPUTY PRESIDENT: If there was going to be some submission that this matter was not properly covered or able to be articulated under section 739 of the Act I would have thought there would be submission about it.

PN91

MR HEALY: The QNU no longer has any confidence about what may or may not be raised against it in these proceedings, your honour, because of the way they have proceeded. I should preface all of these submissions by saying your honour that by way of a general submission, the QNU is still not content that even now making these submissions about the respondent’s amended submissions that it has even now had a proper opportunity to consider the full import of them. We are simply doing the best that we can.

PN92

THE DEPUTY PRESIDENT: Section 793 wasn’t even the right section, was it?

PN93

MR HEALY: No.

PN94

THE DEPUTY PRESIDENT: It was section 739. I mean, we all know how we are here, surely.

PN95

MR HEALY: Yes, your honour. Your honour, paragraph 1.4 of the amended submissions again highlights the difficulty that the QNU are placed in. There is a paragraph that looks like paragraph 1.4 in the original submissions but the final sentence is new. The respondents now contend that the work that is required of these employees to deliver the model of care implemented by Blue Care is that of PCs performing the range of duties contemplated in the Carer’s Agreement. In the previous outline of submissions it was the Aged Care Policy that was the impetus of these changes and the prime motivator for them. So it’s a new case that we now need to meet in this respect. It’s now asserted that it’s work that actually contemplated by the Carer’s Agreement.

PN96

THE DEPUTY PRESIDENT: That’s the whole case. That has been the whole case, hasn’t it? There’s nothing new about them saying this is work that’s contemplated by the Carer’s Agreement. We wouldn’t be here if they didn’t contend for that proposition Mr Healy. What’s so remarkable and new about the sentence in clause 1.4?

PN97

MR HEALY: Your honour, I have a whole series of issues to raise. I don’t say that they are all of equal import. I say that taken together as a whole they mean that there is a significantly new case for the QNU to meet and that it is entirely inappropriate in the case of this nature for the goal posts to be shifting anywhere at this stage of a trial. That’s the fundamental submission, your honour. Your honour, paragraph 4 is new. The submissions about instruction of industrial instruments.

PN98

THE DEPUTY PRESIDENT: I could have lifted that from one of my decisions, Mr Healy, and bunged it in really. Again, I understand, you know, you are going through a list of things but really the principles that underpin the approach to the construction of agreements are pretty well established, aren’t they?

PN99

MR HEALY: Yes, your honour. It is a matter of law and in the QNU’s submission it’s a matter of law that ought to have been raised squarely on 8 November 2013 and not now. Paragraph 5 is a matter of greater significance. It is also new. The submission in paragraph 5.1 has not been put either in terms or plainly in the earlier submissions (indistinct) meant to have been. The submission potentially shifts the focus in the case and whether it shifts it wholly or not, it is a significant change in the focus. New paragraph 5.2. The respondent now contends that the requirements of the position which is what a lot of the material goes to, do not really assist in identifying who comes within the classification. Your honour, that submission goes right to the heart of the question for arbitration. The question for arbitration is centrally concerned with whether or not the work performed by these individuals falls within that classification.

PN100

THE DEPUTY PRESIDENT: I think again there is nothing new I have observed on a number of occasions in the long saga that this matter has become that the words of the agreement don’t assist in interpreting either the nursing agreement or this agreement and it has been – I have been dealing with this issue since, I think, around 2004 and I have said, a number of members of the commission have said the same thing. Again, I don’t see what’s remarkable about that comment. We wouldn’t be here if the words of the agreement did assist.

PN101

MR HEALY: Your honour, the real issue is that the case is important. It was incumbent upon the respondent to make its case in its submissions relevant to its material in November 2013 and it has failed to do so and the QNU is prejudiced as a result.

PN102

THE DEPUTY PRESIDENT: Mr Healy, I hope we all appreciate the case is significant for both parties because if your client’s argument is right, on my calculations it’s about at least $1 possibly $1.50 an hour on the base rate of every personal care attendant employed by Blue Care so I accept the case is significant for you, but it should come as no surprise that Blue Care thinks it’s a significant case as well.

PN103

MR HEALY: No, they don’t. That’s exactly why Blue Care should be prohibited from changing their submissions and thereby changing the nature of their case at the commencement of the trial, your honour. Paragraphs 5.1 to 5.5 are new. They go right to the heart of the matter, your honour. Those submissions there, your honour, notwithstanding the disadvantage the QNU finds itself at, they clearly give rise to a consideration of the evidence which ought to have been and would have been called in reply by the QNU. That is further witness evidence and further statements. Your honour, paragraph 6 is brand new. There was no mention of any of this material in the original submissions. These are further submissions of the utmost important, in particular new submission. They go to the history of negotiations between the various parties. They go to what was allegedly agreed, what occurred with respect to both Ms Scott and Ms O’Neill. They go to the industrial understandings between the parties which are directly relevant to the construction of agreements.

PN104

The respondent Blue Care places a new focus and emphasis upon the construction question. These are matters which ought to have been raised. The QNU ought to have had an opportunity to put material on in respect of what the respondent now alleges are key matters. These matters occupy two pages of their amended submission and we have heard nothing about them before. The respondent has chosen to make a series of significant assertions not necessarily through any witnesses but perhaps it is a case that they will seek to explore and establish during the course of cross-examination. These things ought not be done by stealth, your honour. In non-curial proceedings they ought to be done out in the open and they ought to be done at the time they are directed to be done.

PN105

THE DEPUTY PRESIDENT: Mr Healy, surely you don’t suggest that the respondent wouldn’t be at large in cross-examination to cross-examine about whatever might be – and really the only issue would be relevance.

PN106

MR HEALY: I don’t suggest that, your honour. The submission was that the QNU – this is put now to the commission as a key matter. It has never been raised before by the respondent in this case. The QNU has had no opportunity to consider the issue in the context of this case, to consider whether it should put reply material on, to consider what submissions it would make in reply. It’s all brand new and not only do we have to contend with a 5-day trial, a difficult and in some respects complex 5-day trial, we have got to deal with a new case on the run in circumstances in which we simply have no capacity to do that. If it’s of assistance, your honour and it might be in respect of this issue, in paragraph 6.3 Blue Care, the respondent, really answers that question for me and for the commission. It says in 6.3, “The above context is relevant in a construction exercise” so Blue Care itself assets that this new material, this new context, is relevant. Again, your honour, the QNU ought to have been put on notice so that it could meet that case. Whether its witnesses were to be subjected to cross-examination in respect of those matters is neither here nor there. They would have been far less susceptible to such a cross-examination had key matters such as those been able to be addressed in witness statements and in submissions.

PN107

Paragraph 6.5, your honour, is new. It squarely raises the prospect of or would have given the QNU cause for concern and raises the prospect for the QNU of calling further expert nursing evidence. If the respondent wished to re-agitate questions, fundamental questions such as the nature of nursing work and non-nursing work then the QNU would certainly have been anxious to meet those arguments as it always has been. There was no such mention of a matter of that sort. Your honour, paragraph 7 is brand new and it is a matter of fundamental importance to the QNU in the context of this case. The submission which is all new runs for over 2 pages.

PN108

THE DEPUTY PRESIDENT: Paragraph 7?

PN109

MR HEALY: Yes, your honour.

PN110

THE DEPUTY PRESIDENT: I have got – really? I have got, in the original submissions, I have ticked every paragraph except for 7.1 and 7.9 as being in the original submission. Here we go. 3.1 “Legislative reform” is exactly the same as I read it as 7.2.

PN111

MR HEALY: There are now 11 paragraphs not eight, your honour.

PN112

THE DEPUTY PRESIDENT: Yes.

PN113

MR HEALY: I have done what I sought to do, your honour, during the break and I have taken some instructions. There are matters raised therein which give the QNU cause for grave concern and I think your honour raised with me earlier the fact that the QNU ought not complain about not being on notice about this because one of the witnesses for the respondent, Ms Webbing, had given some evidence about that. In the QNU’s submission Ms Webbing, who is apparently a human resources manager, director of strategy I think, filing a statement by Ms Webbing in relation to this issue disguised not highlighted the potential significance of the evidence, your honour, and running it up in a new and a different way now in the submissions changes the nature of the case. Again, it’s a submission that ought to have been made in this form at the time it was directed to have been made.

PN114

It ought to be placed in context too. This is a 15-page outline. The previous outline was 24 pages. The previous outline was replete with the references to the tailor made model and Blue Care’s internal policies. This outline of submissions places a much heavier emphasis upon the legislation and legislative reform. I already have instructions from my client that they would seek need to and seek to call expert evidence in respect of these matters and industry evidence in respect of these matters and seeks the opportunity to do that. Your honour, paragraph 8 is new and again is of fundamental import to the case. It is true that models of care were addressed in the previous submissions but paragraphs 8.2 to 8.6 are completely new. They bear no relation whatsoever to the previous submissions. They are brand new submissions. This issue again goes to the heart of the question for arbitration and the matter for determination in this case.

PN115

Broadly speaking, Blue Care contends in one major respect that the tailor made model justifies the changes to classification and employment that it has made, wishes to make and continues to make. It is a vital part of the submissions in the case for the QNU is required to meet.

PN116

THE DEPUTY PRESIDENT: It was at the beginning because 4.5 of the original submission said everything except there has been some words deleted, “Providing case by doing things with clients instead of for or two them”. Other than that 8.2 is the same as 4.5. 8.3 is the same as what was in the previous submission to assist as 4.6 and 8.6 is essentially the same as 4.10. There has been a few deletions, a few additions but - - -

PN117

MR HEALY: That’s the QNU’s point and the position it finds itself in, your honour. Given that these matters are fundamental to the case and go to the heart of it, why would the QNU be put in a position of having to deal with a different case as it commences the trial?

PN118

THE DEPUTY PRESIDENT: I guess I’m not understanding how it’s such a substantially different case at this point, Mr Healy. Especially in the context of the litigation that has been surrounding this issue with the filing of the QNU’s objection to the approval of the agreement with the bargaining representative argument with this issue, I can see nothing new or novel in the submissions. I accept you got them late and they have been fine-tuned but I can’t see the drastic difference because legislation is legislation. It’s there. I’m required to take it into account, aren’t I?

PN119

MR HEALY: Well, if it’s relevant, your honour. The QNU sees things vastly differently, your honour.

PN120

THE DEPUTY PRESIDENT: Yes. I understand your submission. You want an adjournment to put on material in reply.

PN121

MR HEALY: Yes, your honour. There are a couple of further matters that I need to raise if I may - - -

PN122

THE DEPUTY PRESIDENT: Sure, sorry.

PN123

MR HEALY: - - -which are new and additional. Paragraph 9 under the heading “Principal purpose test” there are a series of new paragraphs. Paragraph 9.6 which appears on the bottom of page 11.

PN124

THE DEPUTY PRESIDENT: Yes.

PN125

MR HEALY: Again, it raises fundamental questions in issue between the parties. Questions as to what is nursing work and what is not. That is a new approach and a new emphasis from the respondent and the numbering then is out of sequence but over on page 12, paragraphs 9.4 to 9.9 are new material. There, your honour, a new emphasis is placed upon – not a new emphasis, new submissions are made in respect of care plans and matters which the QNU would have been uniquely in a position to obtain some instructions about and file some further material about. It has been denied that opportunity. Paragraph 9.9, the emphasis and the focus on the significance of the employer’s intentions to the resolution of the question for arbitration is new and the respondent contends that a great deal of significance ought to be attached to it. Given that the parties agree that this is the test to be applied in the arbitration, QNU ought to have been given a full and a proper opportunity to put material on in relation to all of the matters canvassed between the first paragraph 9.6 and then paragraphs 9.4 to 9.9.

PN126

THE DEPUTY PRESIDENT: The intention of the employer is only part of the principal purpose test surely because by the other side of the coin is you can term a classification whatever you want to but you have got to look at what the person does, the nature of the work, not what it’s entitled or what it was intended to be.

PN127

MR HEALY: My recollection, your honour, is that the authorities relied upon by both the applicant and the respondent do not, in respect to the principal purpose test, do not talk about the intentions of the employer at all. There are a range of them this year derived from a decision of a single commissioner.

PN128

THE DEPUTY PRESIDENT: It sounds like you can make a submission about it, Mr Healy, so it’s not even determinative what the employer’s intention was. I mean, the fact that they have put it in the submission, really is it such a fundamental issue that we need to vacate a 5-day - - -

PN129

MR HEALY: In the QNU’s submission your honour, they are factual matters that are raised by the respondent in those paragraphs, 9.6 and then 9.4 to 9.9. Any party, the QNU in particular as the applicant, ought to have a proper opportunity to consider those, take instructions, prepare further affidavit material if it wishes to do so and make submissions. 9.4 deals with care plans. 9.5 deals with training, tasks, duties. 9.6 deals again with these questions of whether tasks are identical and whether the role is wider or not. 9.7 makes a further submission about additional duties. These are all matters which the QNU ought to have been able to address in reply in a proper way and put its evidence on in an orderly, proper way in a manner that it wished to do so. It’s the QNU’s dispute. It bought it. It sought the agreement and the assistance of the commission to settle the question. It ought to be permitted, in my submission, to run its case properly.

PN130

Your honour, there’s a couple of further matters. The submissions in relation to Ms Scott and Ms O’Neill have changed. Again, they are the – it is true that in the broad those issues are raised in the earlier outline of submissions but because the question for arbitration deals essentially with the work they perform, those submissions ought to have been made in the way that the respondent wishes to make them in the first place. They should have been made, like everything else, in November 2013. In paragraph 9.17 the case for Blue Care is expressed differently. It says:

PN131

The position descriptions applicable to Ms O’Neill are different in a number of ways. As a PC Ms O’Neill can be required to complete a broader range of tasks that in a role as a IN.

PN132

Again, had the respondent made these contentions on the basis of the witness evidence that they filed, further and proper instructions would have been obtained and witness evidence would have been filed. The paragraph on other witnesses, 9.18 and 9.19 has been dealt with to some degree, your honour, and I have raised that twice previously. In the previous submissions there is not even the remotest suggestion that an exclusion of their evidence would be considered. There evidence was simply addressed along with the evidence of Ms Scott and Ms O’Neill. The QNU would have been placed on proper notice to consider its case and to consider what other evidence it ought to have called.

PN133

Now we have a situation where your honour has made, what I might term a preliminary ruling or a ruling, about the fact that those statements won’t go in there to totality but that’s no consolation.

PN134

THE DEPUTY PRESIDENT: I don’t think I have done that, Mr Healy. I have simply indicated a preliminary view that on the face of it there’s a number of matters that probably aren’t relevant or admissible that’s in those statements. I haven’t made any ruling about it. I have indicated I would hear further submissions on it at the point that the witnesses were going to give evidence and that I’m not minded to rule any statement out completely.

PN135

MR HEALY: The submission is this, your honour, that if the respondent wished to take this position in respect of half – sorry, four out of the seven witnesses to be called for the QNU that’s a matter that should have been squarely raised in November 2013 so the QNU could have had a proper opportunity to consider its position, the nature of its case, what other evidence it might need to put on, should put on. It’s now in a position where your honour is going to be asked to rule either on the whole affidavit because my learned friend says the objections are pressed or upon significant parts of that affidavit. The respondent was required to put on reply material including reply submissions. They ought to have been there – the failure to raise a matter of such fundamental significance has caused prejudice to the QNU.

PN136

THE DEPUTY PRESIDENT: Assuming that there was an adjournment, Mr Healy, how long would you need?

PN137

MR HEALY: I have had a preliminary discussion with my instructors about that. We think perhaps 2 months. Every new matter raised, your honour, which goes to a significant matter which is part of or an element of the question for determination in this case has the serious potential to prejudice the QNU’s case. Running a different case now ought not to be (indistinct) but there is no other way around it, it seems to the QNU, other than to adjourn the matter and try and address matters as it ought to have been able to in November 2013. A couple of final matters, your honour. Paragraph 10 is new so far as I can tell. As I say, trying to match up various parts of these submissions has not been easy even in the time available with what else has had to be done. Again, it’s a consideration of Blue Care’s models of care. In the context of the case in which quite clearly tailor made and any other model of care that’s discussed is fundamental to the respondent’s claim that these employees ought to be classified as personal carers and paid under another agreement.

PN138

THE DEPUTY PRESIDENT: It’s really an argument about managerial prerogative and how that should inform the decision and that has been an issue that’s raised in the submissions from the get go.

PN139

MR HEALY: And that’s precisely the point, your honour. If that’s a major part of the respondent’s case and clearly it is, then the submissions that it wished to make about its model of care ought to have been made when they were directed to be made so that they could be dealt with. They can’t be dealt with now. Paragraph 11 is new and they are new submissions which go to the essence of the case. They make certain or raise certain contentions about the relief sought and the consequences of the relief sought. Paragraph 11.3 raises an issue for the first time about the validity of the nursing agreement. Your honour, we are not told and may or may not be told why these amended contentions are being trialled on the first day of trial but one can hazard a reasonable guess, I think, your honour in one respect at least. As your honour says, there’s quite a context to these matters and it’s perhaps the case that these new submissions and this new case has all the hallmarks of a new and innovative way of seeking to circumvent the consequences of the decision of the Full Bench in Uniting Church in Australia Property Trust trading as Blue Care and Wesley Mission Brisbane v Queensland Nurses’ Union of Employees decision of Senior Deputy President Acton and Senior Deputy President Drake and Commissioner Booth on 24 March 2014.

PN140

The ratio of that decision, your honour, which follows decisions from 1993 to the present would one imagine cause the respondent in this case all sorts of difficulty and the ratio can be found in at least paragraphs 37 and 44. The full bench - a decision which would in my submission be binding on this commission – the full bench found that these decisions, that is the history of the decisions from 1993 onwards and the industrial instruments, given definition to the term assisted in nursing and the QNU eligibility rules. They indicate that:

PN141

As assistant in nursing, an assistant nursing and nursing assistant are terms used interchangeably. Further they indicate that an assistant in nursing who is an employee other than a nurse who under the supervision of a nurse is solely required to assist the nurse in the performance of nursing duties or care may also perform time consuming domestic duties or other peripheral duties or incidental work within the context of nursing and the provision of nursing services in the particular environment concerned without ceasing to be an assistant in nursing

PN142

THE DEPUTY PRESIDENT: But that decision is about whether the QNU can cover certain types of work, not about whether agreements cover it or not. It’s about whether the QNU could be a bargaining representative of certain employees and the other side of the coin, Mr Healy, might be that you can cover the work, it doesn’t mean that an agreement that you say covers AINs covers these people. That’s the issue that’s still alive.

PN143

MR HEALY: Your honour, paragraph 37 of that appealed decision and paragraph 44 which is in very similar terms in fact takes into account, as the last matter I think, the classification statement from the nursing agreement 2013 with Blue Care. In my submission, it’s a very clear finding that that work falls squarely within the agreement. Very clearly so and that it would cause significant problems for the respondent in this case if not insurmountable problems. What we see now in this amended set of contentions or submissions – now I am partly compelled to meet a case which says that the work of Ms Scott and Ms O’Neill is not nursing and there is a theme right throughout these new contentions that care plans aren’t nursing care plans that delegation and assignment of tasks has little to do with nursing, that anyone can do it. There is this new emphasis and this new theme in these brand new submissions. If there is a new case to meet, your honour, the QNU ought to be given a proper opportunity to meet it.

PN144

THE DEPUTY PRESIDENT: But Mr Healy, when did outlines of submissions become like the Ten Commandments carved in stone? When has that ever been the case? All that was required was outlines of submissions be put in. There’s no new evidence. The evidence is in. The outline of submissions is simply that and at the end of the hearing there’s nothing unusual about more detailed submissions being made and a different emphasis being placed on the evidence. I just don’t see why - there would be nothing stopping the QNU from making different submissions or taking its submissions beyond the scope of what was in the outline because that is what typically happens.

PN145

MR HEALY: That’s a different issue from the submission that I am making, your honour. The submission I made this morning was that in non-curial proceedings like these, those documents are very important and again, your honour, probably important that I take the commission back to the directions that were made in the matter.

PN146

THE DEPUTY PRESIDENT: Yes.

PN147

MR HEALY: They are, in my submission, of great significance. You know, this is not an unfair dismissal case or a dispute about uniform allowances or anything else, your honour. It’s an important case.

PN148

THE DEPUTY PRESIDENT: Got it Mr Healy.

PN149

MR HEALY: Your honour, the timetable – and it’s the directions order, your honour’s directions order of 6 September 2013, clearly what would have occurred is that the applicant, having filed its material on 11 October 2013, the respondent would have filed its material on 8 November 2013. That material included its outline of submissions and its witness statements and then directions order 5 provided that the QNU have an opportunity to file submissions and witness statements in reply subsequently. It’s those directions that, in my submission, are of significance. Perhaps in an ordinary case, your honour, a fundamental shift in the submissions might not cause the parties a difficulty. The QNU’s submission in this case is that the matters now contended for by the respondents do and that the QNU has been denied the opportunity that it had under the directions order number 5 to put on the material that it would otherwise have put on in order to prosecute its case.

PN150

THE DEPUTY PRESIDENT: Did the QNU file submissions and statements in reply?

PN151

MR HEALY: Yes it did, your honour, from each of its witnesses.

PN152

THE DEPUTY PRESIDENT: Any submissions were left as optional so there would be nothing – other than you say you now haven’t got time to file or to call further evidence in reply, I mean, you wouldn’t be able to call some evidence in reply or some further evidence in reply during the proceedings this week?

PN153

MR HEALY: No, your honour, no.

PN154

THE DEPUTY PRESIDENT: All right.

PN155

MR HEALY: There would be no opportunity to take instructions, to obtain that evidence and furthermore the QNU ought not be put to that trouble in the course of attempting to run the trial properly. Don’t have the resources of our opponents, your honour. It’s simply not practical. The QNU would not only have to deal with this trial which involves the complexity that your honour’s referred to but it would be required to meet a new case on the run. The QNU’s position is that its prosecution of the matter is fundamentally prejudiced. On the contrary the QNU contends that there is no prejudice to the respondent. I can’t recall which of the respondent’s witnesses says so but it said plainly in their material that they are clearly implementing the changes that they wish to make, that they have made under tailor made in spite of what the QNU claims about the industrial instruments which it says apply to the work.

PN156

Your honour, finally in my submission, one matter which might tip the balance in favour of an adjournment for the QNU is that it is the QNU’s dispute. It was lodged by the QNU in March 2014. It’s its case that it’s concerned about. If it, as the applicant, is seeking an adjournment so that it can put on the material it believes it needs to put on in order to properly run the case then that ought to be a paramount consideration in the mind of the commission. Unless I can assist any further, those are the submissions.

PN157

THE DEPUTY PRESIDENT: Thank you, Mr Healy. Mr Parry?

PN158

MR PARRY: If the commission pleases. It is a major case for the employer. The QNU says in regard to the application for an adjournment it wants to call new evidence. Whilst that hasn’t been particularly clearly articulated it has been described in terms of industry and other and some expert. It’s sometimes called reply evidence. The way it has been described might put some question mark over whether it is reply or not or simply evidence it seeks to supplement the material that’s already in. We don’t want to be seen as precluding the calling of further evidence or the full articulation of issues in a major matter such as this. Ultimately, the procedure of the commission is a matter for the commission. I’m not going to stand up here and strongly oppose an adjournment where a party stands up and says it wants to call further evidence. However, we will say that nothing that has been submitted today or that’s contained within our written material handed over this morning would justify an adjournment itself or warrant any criticism by the commission.

PN159

We totally reject the sort of arguments that have been run which seem to suggest that we can’t do what we have done. It appears to be the argument put on the other side that they haven’t read the earlier submissions or the evidence and we would be gravely concerned if any, in the event there was an adjournment, there was any suggestion that we have not behaved appropriately. In the end submissions are constructional legal arguments well known to those practiced in industrial jurisdiction. They are arguments that are based on the proposed evidence. They articulate reasons as to why the instrument should be construed as we would have it. They are arguments we could have run at the end, in any event.

PN160

Indeed, large parts of the outline of submissions dealing with legislative reform and models of care are simply re-wordings of what’s already within the instrument. As we say ultimately, we will cooperate with the commission. If there is to be a 2-month adjournment then well, we will cooperate with whatever directions the commission deems appropriate. We don’t accept that the evidence that is articulated will necessarily be in reply. Indeed, we apprehend that it will be an attempt to bolster the case that they have already foreshadowed and in that circumstance we would not want to be precluded from calling our own evidence if we need to. Can we also within this mix throw something else, that is the proceeding next week. There’s a proceeding next week which is described as the approval application. We received submissions from the QNU in respect of the application for approval and the QNU have said in their submissions to us they’re going to refer to and rely upon such material as is relevant from the abovementioned proceedings.

PN161

It seems that if they are to call further evidence in these proceedings, then that’s going to impact on the prosecution or the completion of that application for approval and one can hardly see that proceeding in the current circumstances. We would prefer less than 2 months. We think that this matter has been around for a while. We will cooperate in a shorter timeframe if the commission were to go down that track. I’m not sure I can assist much further unless there is something you want me to deal with, Commissioner – I’m sorry, Deputy President.

PN162

THE DEPUTY PRESIDENT: Thank you. I’m sorry Mr Parry, I’m just thinking on the run. How long would you need once you had seen the QNU’s material to see if you wanted to put anything in further?

PN163

MR PARRY: There’s a bidding war behind me. 3 weeks.

PN164

THE DEPUTY PRESIDENT: There’s three fingers up. I thought I saw two fingers.

PN165

MR PARRY: Two and then four went up and I averaged it out.

PN166

THE DEPUTY PRESIDENT: Right. I would also like to try to deal with this matter as expeditiously as possible. I’m just looking at when – the next time that I would have, and I think we are going to need 5 days if I was putting a bet on, I would say 5 days.

PN167

MR HEALY: I think that’s right, Deputy President.

PN168

THE DEPUTY PRESIDENT: Mr Parry, would you agree with that?

PN169

MR PARRY: Yes, we would agree with 5 days.

PN170

THE DEPUTY PRESIDENT: All right. If we work backwards the next available block of 5 days that I would have would be, I think, 28 July.

PN171

MR PARRY: What about the following week?

PN172

THE DEPUTY PRESIDENT: That’s a full bench roster week and I give a way days that far in advance. I can’t so I could do the 11^th – that’s the public holiday in Queensland for the show. If we could all miss that? We can take it on another day but I could do the week of 11 August or 25 August.

PN173

MR PARRY: 25^th is good. 25 August.

PN174

THE DEPUTY PRESIDENT: 25 August?

PN175

MR PARRY: Yes. That suits me, your honour, for what it’s worth.

PN176

THE DEPUTY PRESIDENT: Mr Healy?

PN177

MR HEALY: That’s suitable, thank you your honour.

PN178

THE DEPUTY PRESIDENT: All right. Given we have got that timeframe, Mr Healy, can we perhaps look at getting your material in say 6 weeks? That way we will all have a chance to be on top of it.

PN179

MR HEALY: I’m just concerned there about decisions are made to obtain expert evidence and so forth, your honour. There might be delays with that. I said 2 months because I think having regard to the issues and the resources to obtain the evidence, I think it’s more realistic. I would rather do it in 2 months and do it on time - - -

PN180

THE DEPUTY PRESIDENT: All right, well that gives you until 14 July. It would give the respondent until 4 August.

PN181

MR HEALY: Thank you, your honour.

PN182

MR PARRY: We’re just discussing the impact on the matter next week - - -

PN183

THE DEPUTY PRESIDENT: Yes.

PN184

MR PARRY: - - -and what we can put to you about that. We appreciate it’s not listed before you, Deputy President but - - -

PN185

THE DEPUTY PRESIDENT: It is. Sorry, I was hoping that perhaps it wasn’t but it is. I have got the appointment next week.

PN186

MR PARRY: I haven’t spoken to - - -

PN187

THE DEPUTY PRESIDENT: Would you like to take 10 minutes because I think you both need to think about that matter next week.

PN188

MR PARRY: Yes, if the commission pleases.

PN189

THE DEPUTY PRESIDENT: I will stand the matter down for 10 minutes.

<SHORT ADJOURNMENT [2.06PM]
<RESUMED [2.29PM]

PN190

THE DEPUTY PRESIDENT: So the matter next week?

PN191

MR HERBERT: Might I be heard in relation to that matter, your honour?

PN192

THE DEPUTY PRESIDENT: Before you are, Mr Herbert, can I just say while you are all – I know this matter is not listed and while you are all here, I may as well raise it because while I have been out of the room I have had a look at the file and there might be, well, I think there is an issue with the notice of representational rights in light of the full bench decision in the Peabody matter which I sat on that notice of representational rights that’s attached to the agreement contains additional content to what’s in the required form. It’s not stapled to it, it’s not appended to it, it’s in it. So I flag that with the parties because if that is the notice it might be a moot point what we are going to do with that matter next week.

PN193

MR HERBERT: Your honour, I was only going to ask that the next week be – the hearing be vacated and the matter be changed to a mention for a range of reasons and not the least of which being that the submissions that have been lodged by the QNU in respect of which we amongst others are required to respond are completely outside the terms that your honour directed that they contain and in fact assert that no useful purpose would be served by articulating the submissions in support of objections and then proceeds not to do so. Not to outline the matters which your honour articulated the objections, sorry in the directions that were intended to be proposed, your honour’s directions of 9 April at paragraph 4.1, the submissions must include all relevant facts, dates and incidents to support all claims made.

PN194

If your honour has the file your honour will see what purports to be an outline of submissions by my learned friend, Mr Healy, which has 7 paragraphs. Paragraph 3 “The central controversy and the matters in dispute” etcetera, “are very well known to the parties having extensive history in these proceedings the QNU will refer to and rely upon such material as is relevant on the above proceedings”. Given the size and the complexity of the material and the fact that it’s now going to be changed we can’t possibly have the faintest idea what that’s supposed to be a reference to and so the submissions are grossly deficient and we are unable to answer them. Paragraph 5, “The QNU also refers to and relies upon the F18 statutory declaration” and in paragraph 6, “No useful purpose is served by any further elaboration of the grounds of objection which are already set in detail”. The very purpose of the submissions was to do that thing and my learned friend’s submission says that he’s not going to do it.

PN195

That, of course, doesn’t help us because there is a very wide range in notice of objection which sets out a whole raft of different things none of which is supported by the submissions that your honour directed be put on. We listen with some interest to my learned friend, Mr Healy’s objections to what Blue Care has done in relation to their submissions because they’re different. At least in relation to Mr Healy’s submissions in the matter next week they’re chameleon submissions. They can be converted into any colour that he proposes at any time and that is both in relation to the material that is the evidence upon which he proposes to rely as well as the submissions he proposes to make. At least Blue Care put on a comprehensive submissions to start with and then refined it. This isn’t a comprehensive submission and doesn’t meet the directions.

PN196

As we understand it, Minter Ellison on behalf of Blue Care have written to the QNU complaining about this issue and have received a response this morning which has been copied through to the AWU to the effect that they will consider the request. So as late as today there is no concrete proposal that this submission is to be turned into something that was directed to be put on and that leaves the AWU and others, one assumes, in the egregious position that we don’t have the submission that we can properly reply to in relation to that matter which means that the matter next week could not, in all conscience, be required to proceed lest my learned friend have all the advantages that he was complaining about in his earlier submissions today and that is he can make any submission he likes at the end of the day and my client would not have had the opportunity to put on evidence and submissions in advance to answer what we believe was coming in that regard.

PN197

There would appear that due to the way matters have fallen out today, that the only sensible approach to that matter is that the hearing date next week be vacated in relation to the approval of the agreement and that that matter, however, be listed for a mention but in the meantime the QNU be required to lodge a submission between now and then which complies with your honour’s direction in that regard and has the content that your honour directed it have when you made the original - - -

PN198

THE DEPUTY PRESIDENT: Well there might be a more fundamental issue, Mr Herbert and I’m not going to require anyone to go to any more effort to put on material in relation to the matter. I think probably I have said what I’m going to say about it. I think the consideration needs to be given to that issue and perhaps if – I don’t know what Blue Care’s view is about an adjournment at this point either or just having the matter listed for mention. Mr Parry, I accept you may not have instructions about the matter but it’s clearly going to have an impact.

PN199

MR PARRY: When you say have an impact the matter your honour raised when you came on the bench - - -

PN200

THE DEPUTY PRESIDENT: Yes.

PN201

MR PARRY: Well obviously we have heard and we will investigate that fairly carefully. I haven’t looked at it, I wouldn’t know.

PN202

THE DEPUTY PRESIDENT: No.

PN203

MR PARRY: In those circumstances I would imagine from what’s been said, we’re not going to be bound by any directions in respect of replying and I’m not sure whether we would propose at least the matter be brought back next week before the commission for at least a mention.

PN204

THE DEPUTY PRESIDENT: Yes, I think that’s probably prudent and at that point you will have been able to look at the point about the notice of representational rights and see whether it is an issue Minter Ellison were in that too. I think you need to look at it and we can mention the matter next week. I think that’s probably the best option if the applicant wants that and want to pursue the applicant and then we will mention it next week. If you can let me know. The matter is listed for the 28^th.

PN205

MR HERBERT: Yes.

PN206

THE DEPUTY PRESIDENT: If you can let me know by, I don’t know, Friday afternoon. Would that be sufficient time?

PN207

MR HERBERT: If the commission pleases, yes.

PN208

THE DEPUTY PRESIDENT: Let me know by Friday afternoon whether you want the matter listed for mention or not.

PN209

MR HERBERT: In the meantime in light of all of those matters, would your honour vacate order 3.1 of the original directions because that would require my client as an applicant in the matter to put on a lot of material by - - -

PN210

THE DEPUTY PRESIDENT: By the 21^st, yes.

PN211

MR HERBERT: Which is Wednesday of this week. So it relieves them of the – given what your honour has said, we will also investigate that matter but we would prefer obviously not to have to go to that trouble if what your honour says proves to be - - -

PN212

THE DEPUTY PRESIDENT: I accept it’s not the same point as was argued in the Peabody matter but I think the Peabody decision is going to have some relevance so yes, I’m happy to vacate that aspect of the directions and wait until Friday to receive advice about what the applicant’s position is in relation to that agreement. In the meantime, if the QNU has its 8 weeks to put in its response and then the employer has a further 4 weeks, we are still going to meet the timeframe easily for the 5-day hearing in August so we will issue directions to that effect - - -

PN213

MR HEALY: Thank you, your honour.

PN214

THE DEPUTY PRESIDENT: - - -and adjourn these proceedings. Thank you.

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