AM2014/204, Transcript of Proceedings [2015] FWCTrans 75 (23 February 2015)

	Home \| Databases \| WorldLII \| Search \| Feedback Fair Work Commission Transcripts

PN1.

THE COMMISSIONER: Good morning. Just before I do the introduction, just for the benefit of everyone who is here, I decided to have the conference recorded and transcribed. It's not for the purposes of holding people permanently and definitely to anything that they say, but rather to assist in just making sure that we capture everything that needs to be captured. There's just so many people participate in these conferences and so much to try and keep track of, that sometimes it gets lost. So it's for that purpose.

PN2.

For the people who were before me yesterday with respect to the nurses, the transcript - what I discovered after the conference yesterday is we don't need to put the transcript on the web. I can just distribute it to the people who are present at the conference, so it would be my intention to do that from today, just to distribute it to the people who are present at the conference and for the people who were at the nurses' conference yesterday, the same thing will happen for that. Okay?

PN3.

MR BOYCE: Terrific.

PN4.

THE COMMISSIONER: So that just clarifies. And if there is a need for any reason to not have something transcribed then we can go off the record. That's easily done. So unless that's a problem for anyone, we will proceed on that basis. Everyone in Melbourne happy with that?

PN5.

UNIDENTIFIED SPEAKER: Yes.

PN6.

UNIDENTIFIED SPEAKER: Yes.

PN7.

THE COMMISSIONER: Yes. Sydney?

PN8.

MR BOYCE: Yes, that's fine.

PN9.

THE COMMISSIONER: Yes. Brisbane?

PN10.

MS FISCHER: Yes, that's fine, Thank you, Commissioner.

PN11.

THE COMMISSIONER: And Adelaide.

PN12.

MS HARRIS: Yes, thank you, Commissioner.

PN13.

THE COMMISSIONER: Okay. Well, we might just start with some introductions. We will start here in Melbourne.

PN14.

MS M ANTHONY: Yes. My name is ANTHONY, M, and I'm representing APESMA.

PN15.

THE COMMISSIONER: Thank you, Ms Anthony.

PN16.

MR BUTLER: Michael BUTLER from APESMA.

PN17.

THE COMMISSIONER: Mr Butler.

PN18.

MS L SVENDSEN: Leigh SVENDSEN from HSU.

PN19.

THE COMMISSIONER: Ms Svendsen.

PN20.

MR M McLEAY: Mark McLEAY from the Health Services Union.

PN21.

THE COMMISSIONER: Yes.

PN22.

MS K MINOGUE: Kelly MINOGUE from AI Group.

PN23.

MS J LIGHT: Jessica LIGHT from AFEI.

PN24.

THE COMMISSIONER: Yes.

PN25.

MR N BARKATSAS: Nicholas BARKATSAS from VECCI.

PN26.

THE COMMISSIONER: Mr Barkatsas.

PN27.

MS J O'BRIEN: Jane O'Brien from Sladen Legal on behalf of the Chiropractors Association of Australia.

PN28.

THE COMMISSIONER: Thank you.

PN29.

MS J SHIELDS: Joanna SHIELDS from Sladen Legal on behalf of the Chiropractors Association of Australia.

PN30.

THE COMMISSIONER: Thank you. And in Sydney.

PN31.

MR G BOYCE: BOYCE, initial G, for the Aged Care Employers, with MS ANSON and MR SHEERGOULD.

PN32.

THE COMMISSIONER: Thank you, Mr Boyce.

PN33.

MR S BULL: Stephen BULL for the United Voice.

PN34.

THE COMMISSIONER: Thank you.

PN35.

MS Z JENKINS: And Zoe JENKINS for AVI and the New South Wales Business Chamber.

PN36.

THE COMMISSIONER: Thank you, Ms Jenkins. Anyone else from Sydney? No?

PN37.

MS M EAMER: Yes. Michelle EAMER. Wentworth Advantage on behalf of the ADA, Australian Dental Association.

PN38.

THE COMMISSIONER: Great. Thank you very much.

PN39.

MS E NORMAN: And Emma NORMAN. Emma Norman from Wentworth Advantage on behalf of the Australian Dental Association as well.

PN40.

THE COMMISSIONER: Thank you. Brisbane.

PN41.

MS L FISCHER: Lucy FISCHER and Linda HEPWORTH on behalf of the Private Hospital Industry Employers Association.

PN42.

THE COMMISSIONER: Thank you, Ms Fischer. And in Adelaide.

PN43.

MS D HARRIS: HARRIS, initial D, for Business SA.

PN44.

THE COMMISSIONER: Great. Thank you very much. The purpose of calling this conference today is just to - at a relatively early stage of this particular award being reviewed, the four-yearly review, is just to make sure that the parties are on track in terms of dealing with all of the issues that are going to have to be dealt with. The period of time that we have got, or the - you know, that we all have to deal with the four-yearly reviews is quite restricted, so the process of working through the various proposals from the parties with respect to the various amendments that people might seek to have made to this particular award needs to be processed and moved along relatively quickly. We're not going to be sitting here talking about the Health Professionals and Support Services Award in six months time, so people just need to be aware that this is not going to be a long and drawn-out process, but a process that is going to be moved along as quickly and efficiently as it can be, if I can use those words.

PN45.

There are a number of issues that have been identified both as variations that people want made to the award and as issues with respect to the exposure draft, noting that all the exposure draft comments aren't yet closed. Having had a look through that material, some of the issues that people have raised with respect to the exposure draft flow a bit from the variations that they're also seeking to have made as such. And in that respect, I should just make sure the parties are clear that in terms of the exposure draft that has been issued by the Commission, it's not the intention that that draft should change any of the rights or obligations that exist under the current modern award. It's just a rewrite of the award.

PN46.

Now, in the process of doing that rewrite, we all recognise that things get lost and cross-references disappear and clauses might get put in places where you think that they shouldn't have been put, you think they should belong somewhere else. So in terms of the commentary on the exposure draft, to the extent that it deals with those technical issues, that's not going to be a major problem for the Commission because we have to get - the final version has to reflect properly what would be in the award if there were no other variations, what is currently in the award if there were no other variations. But as I said, it seems that some people's comments on the exposure draft actually go to the variations that they are also seeking to the award.

PN47.

What we have been attempting to do here at the Commission is to do what we can to assist the parties and work through the variations that they're seeking, and the problems that they have identified with the exposure draft, with a view to getting as much agreement as is possible between the parties, but also recognising that there may be areas where there is no agreement. So that's where we are at today. It's just starting the process off and it's me being comfortable that there is a process in train that parties are talking to each other, as we need to get the talking done now and not later.

PN48.

In terms of this award, I have received a copy of a discussion paper that HSU put together with respect to the hours of work issues, and I have to say that looking at the award - looking at everyone's proposals for variations, it seems that it all sits around the question of hours of work, overtime, when penalty rates are paid and when they're not paid, and so on. So I think unless anyone has anything they want to say in terms of some introductory comments, I think that I will probably just hand over to Mr McLeay from the HSU, if people are comfortable with that. Yes?

PN49.

UNIDENTIFIED SPEAKER: Certainly.

PN50.

MR McLEAY: Sure. Thanks, Commissioner. With me is Leigh Svendsen, our other industrial officer. One of the things that I should say the parties have met with an initial phone conference, similar to the phone conference that happened with the Nurses Award. Initially, you know, we discussed the different clauses and some issues that arose out of the exposure draft. This award has had a number of changes over the years. Through the 2012 review, the issue of span of hours, the interaction with shift rostering, overtime, the additional week of annual leave was all raised, but not necessarily - well, it was addressed but not necessarily answered, and that's where - and you will see that the vast majority of issues that the parties have raised have been about that.

PN51.

We have put together the span of hours paper. Essentially, of course, there's a bit of misunderstanding or uncertainty about how all the clause interrelate. We think that there - the ordinary hours provisions are pretty clear, but once you moved beyond ordinary hours it gets messy. Currently there are five different span of hours. Some of them refer to day work. Most of them refer to day workers, one doesn't.

PN52.

MS SVENDSEN: Two.

PN53.

MR McLEAY: Two, sorry. Two don't. That has an impact about whether or not you're eligible to receive the shift work loading. We have put forward proposals, you know, simply just to delete "day worker". In its being done in isolation we think it will cause further difficulties in the award. It won't make it clear, but we think that all of the issues need to be dealt with as a package.

PN54.

We have proposed that there be essentially two spans of hours. One is the default, the Monday to Friday, 6 to 6, and the second, which is summarised in the summary, being Monday to Friday, 7 to 7, and Saturday, 8 to 2, for a group that essentially we would call primary care practices, or something like that, which would be the allied health clinics, the dental clinics, the doctor clinics; those sorts of operations, whereas everything else would be captured by the default scheme, the Monday to Friday. We have put - - -

PN55.

MS SVENDSEN: Can I just - sorry, I didn't really want to interrupt, Mark. It was just the more we went into this is we tried to actually sort out what would be our final wording around even the span of hours itself, the more we found it ourselves confusing, and that's why the discussion paper at the end of the day because we just thought that it - we can make a whole set of proposals, including those ones, around, you know, what the span of hours might look like, and we can have a lot of barneys about whether it should be 8 till 2 or 7 till 4 or 7 till 9 pm, Monday to Friday, all of those sorts of things that end up with another - we have another three applications and mooted in the discussion were in fact more applications.

PN56.

So the discussions we had last week - and it just seemed to us that we were going to end up with even more spans of hours than the five we already have, and that there were a few things that flowed from that and which is evident in at least one submission that there is some confusion about what shift allowances or weekend rates and those sorts of things are payable. So there's at least one person who thinks that if their span of hours includes Saturday morning that they don't have to pay Saturday rates of pay.

PN57.

I suspect that those sorts of confusions are a bit more widely-spread than would look on face value, so the more we looked at it, the reality was there was no definition of ordinary hours and it was used in at least two different fashions in this award. "Span of hours" seemed to mean the same thing, but not always. "Day worker" and "shift worker" got confusing, and that's leaving aside the definition of "shift worker" for annual leave which is very clear and a separate definition.

PN58.

When shift penalties apply, when weekend rates pay applied, when overtime might apply, because on one reading of overtime, if you work outside the span of hours you get paid overtime. And clearly, I have to say that, I mean, it might be a nice thing to kind of go with, but clearly that is not the intention. If you had overtime for all of those hours, why would you have shift rates and weekend rates and public holiday rates? So none of that actually makes a lot of sense when you kind of drill down, so that's why the discussion paper, at the end of the day.

PN59.

MR McLEAY: So with the discussion paper, what we hoped to do was look at - or at least amongst the parties have clear idea of where the problems are, what possible solutions may be and try and map out a way to work through it. We think there's probably a consent position that's able to be reached, but it will need some work, and from the HSU, our feelings are that it will probably need some further conferences and facilitated by the Commission. When we have looked at this, we have had a look at how - we have run a couple of scenarios, and the different scenarios sort of all point to us that if the span of hours clause was done away with, that the impact would be minimal. And we say minimal because at the moment we can't really find that many instances where the dollar value of a pay rate would be different to what we say it currently is.

PN60.

MS SVENDSEN: Although we have identified that in the paper.

PN61.

MR McLEAY: Yes.

PN62.

MS SVENDSEN: There's two things that we think stand out. One is the seven-day medical imaging practices, which for some unknown reason, has got a difficult weekend penalty rate attached to it. But that's actually not the span part. That's actually a different rate of pay applicable for Saturday and Sunday rates. And the other is whether or not shift allowances are payable Monday to Friday if you're in your span of hours, and that's not a definitive, that's a - I mean, I think that's an interpretation of the shift allowance. And they're the only two things that we can actually see or identify, other than the issue about the overtime, which we actually say is - I mean, we will admit that that's not a correct interpretation of the overtime clause, that if you're working outside that span of hours you are paid overtime for every hour outside that span of hours.

PN63.

MR McLEAY: So I think that's a general summary of the paper and the issues that fall out of it. The paper has only just been provided to parties late last week. It was Friday afternoon. I think it may have even been after the close of business hours, so we haven't had - we didn't seek feedback before today, so we don't know how it has been received, whether it's deemed to be helpful or a hindrance. But that's the big issue for us and I think it's the big issue for the other parties, and the other thing that falls out is casuals and the implication this has on casuals.

PN64.

THE COMMISSIONER: Yes. Okay. So what would your proposal be, Mr McLeay, on how to progress these issues?

PN65.

MR McLEAY: For the future, I don't know how much particularly on this one we can do today considering parties may not have - we would like to do some today if it's possible. If we can't, well, we can't. Commissioner, I might just have a quick - - -

PN66.

MS SVENDSEN: I think that's it. I mean, I think that if people want to start that discussion today then that will be great. If not, can we set up a time to start that discussion when people will be comfortable, because we recognise that we have actually looked at this for three solid days before the paper came together, and more than just Mark and myself, and had time in between to cogitate about what it means and then come back and write it up again. So we are very conscious of that so we would like that as a first step. And if we can't actually have any constructive discussions today, even a bit of feedback about whether you would like to do that or not would be good, but if we can't have any further constructive discussion today, I would suggest, Commissioner Bissett, that we just went through some of the other things.

PN67.

I would just make the comment that there are quite a number of identified issues that all of us have identified, things like definition of shift worker or when penalty applies, that actually sits quite definitely in the scope of this discussion as opposed to necessarily outside it on its own.

PN68.

MR McLEAY: I think the issues raised by the Chiropractors Association sort of capture all of those issues. They capture all of the issues and it's a good sample.

PN69.

THE COMMISSIONER: Yes. Okay. Well, I think what I might do is just go around and just see whether people agree that a discussion about this broader issue of hours work is really the way that we need to progress. If you have got other things that are in your list of variations that you are seeking that you don't think are related to the hours of work, then you might just flag those as we go around as well.

PN70.

MR McLEAY: We do, Commissioner. Should we flag them now or do you want to come back to us?

PN71.

THE COMMISSIONER: I will come back to you.

PN72.

MR McLEAY: Thank you.

PN73.

THE COMMISSIONER: APESMA.

PN74.

MR BUTLER: Yes. Thank you, Commissioner. Our interest in this award revolves around a claim that we have foreshadowed that we would seek to extend the coverage of the award to cover those persons engaged as interpreters are not covered by any other modern award. Interpreters are mainly employed - and this is outside the court registry. Interpreters are mainly employed by labour hire agencies who provide services to the justice system, the immigration system and government services. The relevant classifications that we would be seeking to extend for occupational coverage is in the support services stream, as - - -

PN75.

THE COMMISSIONER: But aren't they already in there?

PN76.

MR BUTLER: Well, our understanding of the award is they are currently limited to the health industry, and - - -

PN77.

MS LIGHT: Well, the award covers the health industry. I guess from the employers' perspective, we're all a little confused about the utility of putting people in legal services who are currently potentially already covered by the miscellaneous award under an award that has no coverage to the remainder of the industry.

PN78.

MS SVENDSEN: So I think it does as health professionals but it doesn't for support services.

PN79.

MS LIGHT: For health professionals, most certainly, but - - -

PN80.

MS SVENDSEN: Yes. The health professionals is an occupational award and the support services is an industry award. It's the only hybrid.

PN81.

MR BUTLER: So, Commissioner, our claim is to deem those classifications in the support services stream, which would be level 5 and level 7, currently cover two grades of interpreters, for those classifications to cover interpreters generally employed who are not covered by another modern award, and that's essentially the claim.

PN82.

THE COMMISSIONER: Sorry, can I just go back to that, because I think that this is an issue that's going to arise, and this is about what the current award is intended to cover.

PN83.

MR BUTLER: Yes.

PN84.

THE COMMISSIONER: So, Ms Svendsen, you said it was an occupational award ‑ ‑ ‑

PN85.

MS SVENDSEN: For health professionals.

PN86.

THE COMMISSIONER: Health professionals.

PN87.

MS SVENDSEN: And an industry award for the support services.

PN88.

MR McLEAY: Industry award for the support services.

PN89.

THE COMMISSIONER: And an industry award for support services. Support services for what?

PN90.

MS LIGHT: In the health industry.

PN91.

MR McLEAY: Just in very simple terms, Commissioner, there's a definition of the health industry in the award.

PN92.

THE COMMISSIONER: Yes.

PN93.

MR McLEAY: The support service stream - we tend to describe it as streams, and so you have the occupational stream, similar to occupational coverage in modern awards, so it goes across the whole - you know, no matter where they are, they are all under that stream, they are governed by this award. So, for instance, there are health professionals covered by this award who work in aged care, whereas there is a separate aged care award.

PN94.

THE COMMISSIONER: Separate.

PN95.

MR McLEAY: Yes. The support service stream is defined by the industry coverage.

PN96.

THE COMMISSIONER: So support services within that health industry.

PN97.

UNIDENTIFIED SPEAKER: Health industry.

PN98.

MS SVENDSEN: Sorry.

PN99.

THE COMMISSIONER: Okay. The health industry is defined in the award, isn't it?

PN100.

MR McLEAY: Yes.

PN101.

MS SVENDSEN: It is now. It actually wasn't previously. The new exposure draft provides it (indistinct) industry, Commissioner. Everybody just sort of assumed it, really.

PN102.

THE COMMISSIONER: So are you saying, Mr Butler, that what you want is this award coverage extended to interpreters working in the health industry?

PN103.

MR BUTLER: No, Commissioner, I - - -

PN104.

THE COMMISSIONER: Sorry, I just - - -

PN105.

MR BUTLER: Yes. Sorry. I would say that interpreters employed in the health industry are already covered under this award. We're seeking to extend the coverage of this award so it's an occupational award for services employed outside, so - - -

PN106.

THE COMMISSIONER: So you want to extend the coverage of this award to other industries beyond the health industry.

PN107.

MR BUTLER: Yes, yes.

PN108.

THE COMMISSIONER: That's going to be a major issue, I would think.

PN109.

MR BUTLER: Yes, I understand.

PN110.

THE COMMISSIONER: And is there anyone else that you want to put in the award in the process of extending it?

PN111.

MR BUTLER: Any other - - -

PN112.

THE COMMISSIONER: Occupations or - - -

PN113.

MR BUTLER: No.

PN114.

THE COMMISSIONER: No?

PN115.

MR BUTLER: No, Commissioner. No.

PN116.

THE COMMISSIONER: Anything else from APESMA?

PN117.

MR BUTLER: That's the outside claim, which I think will keep us fairly busy.

PN118.

THE COMMISSIONER: Okay. AI Group. Ms Minogue.

PN119.

MS MINOGUE: Yes, Commissioner. Just sort of canvassing the span of hours issue, happy to sort of work in addressing the, I suppose, knock-on effects of the span of hours shift work/day worker scenario, and AI Group would be coming from the point of view, I suppose, of a consistent approach to not simply just reflecting, you know, a subsector's group of their hours as they are currently operating today, but to actually look at applying a consistent approach to what is a shift worker, when do penalty rates occur, when do shift allowances occur, so that it's not driven by what could change in five years but that the principles of those apply appropriately and consistently to any of the occupations within this award, covered by this award.

PN120.

On our two issues is simply proposing an inclusion to enable the five-hour maximum period before an unpaid meal break to six hours by agreement, and premised on the basis of greater flexibility, and also to create, I suppose, a more - our understanding from our members is that there is a lot of interest in being able to work notionally a family responsibility shift length.

PN121.

THE COMMISSIONER: Interesting how everything becomes all about families, but there's - - -

PN122.

MS MINOGUE: But this is sort of seen as that sort of spread, that sort of sufficient need to enable child-friendly hours. Secondly is a possibility of an inclusion of an annualised salary clause for the health professionals stream and, say, more senior positions within the support services stream, by agreement if possible. That's all, Commissioner.

PN123.

THE COMMISSIONER: Great. Thank you. Ms Light, AFEI.

PN124.

MS LIGHT: Certainly. Our claim was primarily or only with regard to the span of hours. As the HSU have already canvassed, it's something that we have ventilated in the context of both the award modernisation process as well as in the two-yearly review. We are in a position where we do think that there is utility in adopting a single stream of hours, but from our perspective, we have great difficulty with our members who currently have quite generous spans of hours to go backwards, which they would under the HSU's current proposal.

PN125.

So I guess we are approaching this from the perspective that we are happy to discuss and we do want to try and reach a consent position with respect of those issues, and obviously the on-flow issues of, you know, shift workers, overtime, et cetera, but we are not in a position where we are willing to reduce the span of hours that's currently afforded to, in particular, private medical imaging and the private practice dental practices. We don't think that there's any utility in ventilating those types of discussions because they are met with fairly strong opposition from our perspective.

PN126.

THE COMMISSIONER: Thank you. Mr Barkatsas.

PN127.

MR BARKATSAS: Thank you, Commissioner. So I'm appearing today on behalf of the Australian Physiotherapy Association and also the Australasian Podiatry Council. The former of those groups, the Physiotherapy Association, currently has their own stream within clause 24. Effectively their claim is to tinker with that span of hours. Effectively the change that is being proposed is a change from currently 6 to 6, Monday to Friday, and - sorry, I should also add the physiotherapists gained their own stream at the latter end of the modern award-making process, and via a decision late, I think it was, in February or March 2010.

PN128.

As most of the modern awards have processed, that was a middle ground or an attempt at rationalising what the different state-based awards were, what the physiotherapists would seek is a slight alteration to that in the sense of currently 6 to 6, Monday to Friday, moving that to 7 to 8, and from Saturday it's currently 6 am to 12 noon for the ordinary hours, and amending that for 7 am to 2 pm. Effectively, that's in the context of allowing greater flexibility and greater, I suppose, reflecting the current standard practices of their members, so the physiotherapy practices. On the other hand, the Australasian Podiatry Council currently falls under the broad or bulk sort of stream in clause 24.1, and they would seek to be able to have their own span of hours specific to their type of practices, and they have proposed a span from 7.30 to 9 pm, Monday to Friday, and 8 am to 4.30 pm on Saturday.

PN129.

With respect to the issues paper and the matters that have been raised and the flow-on effects, I guess our members' interests are narrowly, I suppose we could say in respect of the span of hours themselves, but we recognise, of course, that the flow-on effects, either in isolation from the variations we seek or otherwise from the award itself, we would reserve our right to participate in such discussions and seeing how we can assist if not.

PN130.

THE COMMISSIONER: Thank you very much. So, Ms O'Brien or Ms Shields.

PN131.

MS O'BRIEN: Certainly. The nature of the proposed substantive amendments that the Association are seeking do largely relate to the issues with the current span of hours and associated flow-on effects, namely the inconsistent use of the term "ordinary hours", the definition of a shift worker and the entitlements of shift workers, when and how the shift work loading applies and the interaction between the shift work loadings and weekend penalties. We have certainly had the opportunity to give some thought to the issues with that interaction, which is well ventilated in the materials that we have filed thus far, so we are certainly open and prepared to having discussions in relation to those matters today.

PN132.

The other claim that we are intending to make in relation to this award is the inclusion of an annualised salary provision. Where our stance differs to the stance reflected by some of the other parties is that the annualised salary provision that we would be seeking would cover both health professionals and support services staff, so it's the addition of support services staff where our position is slightly different to the others that have been advocated thus far.

PN133.

THE COMMISSIONER: Did your annualised salary provision cover everyone covered by the award or is it limited to the higher levels?

PN134.

MR O'BRIEN: Not limited to the higher levels. It would certainly be a broader classification. Our interest is in relation to health professionals working within chiropractic businesses and the administrative staff within those practices. There are some additional support services staff that don't necessarily fit within those distinct categories, so we're open to having discussions about whether it's appropriate that an annualised salary provision would cover those staff. There's gardeners, for example, and the like, but certainly our position is that it would cover anyone working within our client's industry.

PN135.

THE COMMISSIONER: Thank you. We might go to Sydney. Mr Boyce.

PN136.

MR BOYCE: Yes, thank you, Commissioner. We are certainly happy to enter into discussions about span of hours and those related matters. The HSU material that has most recently been provided was only provided this morning to us, so we haven't had a chance to go through that or we're not in a position to comment.

PN137.

Our variation in part relates to hours issues and it's a variation clause, the existing clause 25 rostering which has been replicated in the exposure draft at 8.3. Subclause (b) of 8.3 says seven days notice will be given of a change in roster. The Full Bench in Leading Aged Services Australia [2014] FWCFB 129 at 30 identified that even where the employer and employee agree, there's still seven days notice that's required to be provided of a change in roster. So that if an employer says to an employee on a Monday, "Look, I would like you to work Wednesday instead of Thursday," then that change can't go through because there needs to be seven days notice, even where the employee agrees to that change.

PN138.

So one change is to say notwithstanding 8.3(a), which requires rosters to be posted two weeks in advance, where the employer and employee agree, those roster changes can occur effective immediately, the second part of the clause limits the changes of rosters without seven days notice to illness or an emergency. There are a vast array of other reasons why an employee can't attend their rostered shift. Therefore, we're expanding that to "or an employee is unexpectedly absent from duty, including on account of illness. So it's not just limited to illness or emergency but broader issues as to why employees can't attend their rostered shifts and gives the employer the ability to alter the roster to pick up that change. So that's the only variation that Aged Care Employers see. I think at this stage the nature of the matter would be by way of submission and appealing to the Commission's common sense to make the variation, but - - -

PN139.

THE COMMISSIONER: I take that as a compliment.

PN140.

MR BOYCE: Yes. Sorry. Yes.

PN141.

THE COMMISSIONER: Can I just ask in terms of your proposal on rostering, what is the default notice of a change in roster that you're aware?

PN142.

MS SVENDSEN: Seven days.

PN143.

THE COMMISSIONER: Is that to remain at seven days by your client?

PN144.

MR BOYCE: Well, you know, (a) is two weeks.

PN145.

THE COMMISSIONER: So you have got to post a roster two weeks in advance.

PN146.

MR BOYCE: Yes. And so you would make - if you have got appropriate time, you would put changes to the roster in that two weeks. The trouble is there's limitations brought in through the part-time provisions, and laid on top of this is the consultation requirements which the employer would have to go through as well. So it's not as straightforward as the employer and employee agreeing, in that the employer must first consult and do those things in the exposure draft, clause 28. But where there is agreement as a result of the consultation occurring, then that can occur effective immediately.

PN147.

THE COMMISSIONER: Okay. Was there anything else on - that was the only other variation you had, wasn't it, Mr Boyce?

PN148.

MR BOYCE: Yes, that's the only one.

PN149.

THE COMMISSIONER: Yes. Ms Jenkins.

PN150.

MS JENKINS: Yes, Commissioner. We don't actually have an application, I believe, in this award but we do have a very strong membership interest, and we're certainly happy to have more of a discussion with the parties today regarding the various span of hours applications.

PN151.

THE COMMISSIONER: Thank you. And Ms Eamer or Ms Norman, do you have?

PN152.

MS EAMER: Thank you, Commissioner. Really a lot of our issues are actually covered by the other parties in their applications in regards to, say, shift loadings and the weekend penalties and so on. However, we would be strongly opposing changing the span of hours for dental practices under this award as they currently satisfy now the majority of dental practices around Australia, and this span was devised from pre-modern awards that were applicable, already put in practices before the modern award was drafted.

PN153.

THE COMMISSIONER: Yes. Ms Norman. Yes. We didn't change anything from the pre-modern awards and we wouldn't have created any modern awards, but I understand what you say about meeting your requirements. All right. Okay. Mr Bull.

PN154.

MR BULL: We haven't made an application to vary the aspect of the current award. We have got some members throughout Australia covered by the current award. We're brutally supportive of the HSU's decision and we reserve our right to participate in these proceedings.

PN155.

THE COMMISSIONER: Yes. Certainly. Thank you. In Brisbane. Ms Fischer.

PN156.

MS HEPWORTH: Ms Hepworth here, Commissioner.

PN157.

THE COMMISSIONER: Ms Hepworth.

PN158.

MS HEPWORTH: That's fine. We have a significant concern about the span of hours, in particular how it operates for a 24/7 business. The award is quite quiet in relation to how it's to be interpreted. There are concerns obviously not only with the span of hours but, as other parties have mentioned, the flow-on effects and how it's to be interpreted. We would be more than happy to participate in further discussions in relation to whether or not we can agree on a consistent approach. If that's not at all possible, we will be making an application for a variation to include provisions for private hospitals.

PN159.

THE COMMISSIONER: Certainly. Thank you. And, Ms Harris, in Adelaide.

PN160.

MS HARRIS: Thank you, Commissioner. As parties have identified, we are concerned about the span of hours and the flow-on effects. Our members do find difficulty with the range of span of hours, and I think discussions today would be helpful towards progressing the matter. We are still seeking further member feedback, so we wouldn't be able to come to a definitive position today but we would be interested to hear other parties' proposals.

PN161.

THE COMMISSIONER: Thank you. Yes. It's certainly not my expectation, but I would be very pleased if it did happen, that a definitive position is going to be reached by anyone today, so I think we don't have to worry about that. Okay. So most of the issues - sorry, the HSU have a couple of other - - -

PN162.

MR McLEAY: Yes. Thank you, Commissioner. So apart from what has already been said, the other issue for us is the classification definitions. We would propose a changing of the language that's used in the classification definitions to reflect the language that is used in the AQF, the Australian Qualification Framework, and so this morning we have put to the parties what we're thinking about and we have provided the marked-up copy of that. Also to clarify where interns are paid or where they fit in the health professionals stream, and we say they fit in the pay level 1. So that's included.

PN163.

We have provided to the parties the changes to the list of common health professionals. We have grouped it by practice area and then with some indicative titles underneath. We say it has always been an indicative list, as it says, you know, List of Common Health Professionals. It's not meant to be exclusive and it reflects that job titles change. But we think that having it by practice area just makes it clearer about who is captured in that.

PN164.

We have a proposal for a training plan to be inserted into the award, and we have also got a proposal to vary the ceremonial leave to reflect - just to change a couple of words. We think of all the proposals that that is the least contentious, and that's why it has been provided to parties today. We have also got some work to do - and based on the other issues, there's span of hours, rostering, overtime payments, annual leave, ordinary hours of work and the definitions.

PN165.

THE COMMISSIONER: Just one question. Just in terms of the annual leave for shift workers, you raised that, I think?

PN166.

MR McLEAY: Yes.

PN167.

THE COMMISSIONER: HSU raise that. Is that being dealt with by any other Full Bench?

PN168.

MS SVENDSEN: Yes.

PN169.

MR McLEAY: No. Well - - -

PN170.

THE COMMISSIONER: Is the Annual Leave Common Issues Bench dealing with ‑ ‑ ‑

PN171.

MS SVENDSEN: No.

PN172.

MR McLEAY: No.

PN173.

MS SVENDSEN: This is actually the definition of shift worker for the purposes of - - -

PN174.

THE COMMISSIONER: Yes.

PN175.

MS SVENDSEN: Yes.

PN176.

THE COMMISSIONER: Yes.

PN177.

MS SVENDSEN: Yes. And the common matters doesn't deal with those things because they're differential.

PN178.

THE COMMISSIONER: Yes.

PN179.

MR McLEAY: Yes.

PN180.

MS SVENDSEN: They are completely different by award.

PN181.

THE COMMISSIONER: It's not an issue that has been raised by the Fair Work Ombudsman in terms of inconsistencies between the award and the NES, has it?

PN182.

MR McLEAY: I don't - - -

PN183.

MS SVENDSEN: Partially but not - no, that's not the application we are making, and bluntly, it's about the definition of shift worker for the purposes of the additional work flow - - -

PN184.

MR McLEAY: Essentially, we're seeking to take it back to the 2010 award.

PN185.

MS SVENDSEN: That was - - -

PN186.

MR McLEAY: Rather than the variation that was made in 2012.

PN187.

MS LIGHT: That was subject to a Full Bench decision on appeal in the last review.

PN188.

MS SVENDSEN: So in the 2012 revisions and it doesn't preclude is from making a fresh application, and we're making a fresh application.

PN189.

MS LIGHT: Certainly. Well, I think they're likely to be met with the same arguments that were met with in 2012.

PN190.

MS SVENDSEN: Yes, I know, but we might actually be able to ventilate them though.

PN191.

THE COMMISSIONER: Yes, okay. We're not going to have a big argument about what happened in 2012 here.

PN192.

MS SVENDSEN: No.

PN193.

THE COMMISSIONER: No. Okay.

PN194.

MR McLEAY: So essentially, our application with that one is to take it back to what was in the award when the award was first made.

PN195.

THE COMMISSIONER: What was in the award when it was first made?

PN196.

MR McLEAY: Essentially, regularly work Saturdays and Sundays and public holidays. Saturdays, Sundays and public holidays.

PN197.

THE COMMISSIONER: Yes. Saturday, Sunday and public holidays.

PN198.

MS SVENDSEN: It was on 10 or more occasions on weekends.

PN199.

THE COMMISSIONER: Okay.

PN200.

MS SVENDSEN: Weekends on 10 or more occasions for four or more hours.

PN201.

MR McLEAY: Yes. . And then as part of the 2012 review, it got varied to Sundays and public holidays.

PN202.

THE COMMISSIONER: Okay. So putting aside the span of hours and all the matters that sort of naturally fall out of that, the other issues go to classifications and the list of common issues, training plans, ceremonial leave and the definition of shift workers for HSU. There are two proposals with respect to annualised salaries. There's a proposal with respect to meal breaks, and the Aged Care have got the rostering issues. So I think that that's sort of where everything falls out. So I think that there is a nice, neat delineation between the hours of work issues and the other matters.

PN203.

My proposal to the parties would be certainly that we can start some discussion now about the hours issue, if that's possible, just given that the parties - certainly the HSU have tried to keep up that discussion but parties haven't had long to absorb that category through how it interacts with what their interests might be. On the other issues, can I - I think that the parties need to have discussions around those. It really is incumbent on those who are pursuing those particular issue to put forward some draft words so that other people can look at them and see if you can come to some level of agreement.

PN204.

The one thing that I would remind the parties of in terms of the discussions, particularly around the span of hours, is that this award is a safety net award. It's not about setting, necessarily, the actual specific terms and conditions. Necessarily they would apply, but from group to group, if I can call the matters in the health industry employment. The interest of the Commission is ensuring that we have a proper and effective safety net and that the award is easy to understand and is accessible by anyone who accesses it.

PN205.

So whether it's a podiatrist who decides to set up their own business and employ someone, that they can pick up the award and read it and understand it and pay their employee properly, or whether it's an aged care establishment that's looking to make sure that it's paying its employees properly, or whether it's someone thinking of going and working in the industry, that they can actually pick that up and work out what's going to happen.

PN206.

So, you know, the approach of the Commission is very much bound up by the objectives of the four-yearly review, the objectives of modern awards, and ensuring that awards are accessible. Just in that respect, most of the people here I suspect have seen the decision of the Full Bench from December last year where we did deal with some of the broader general issues to do with modern awards, things like whether you should list the things that a casual loading is in lieu of. The exposure draft for this award came out before that decision was issued, so that's why there's a bit of a crossover between what's in that decision and what has been in the exposure draft, and you can accept that the decision of the Full Bench at the end of last year will be reflected in the exposure draft, in its awards that are subsequently put out and draft that are subsequently put out. Okay. So having said that, Mr McLeay, where do you want to go in terms of the discussion on the hours?

PN207.

MR McLEAY: Commissioner, we think we have outlined what happens or how you can read the award. It might be more helpful if the other parties tell us if they agree, or if they don't agree, where we may have got it wrong, so that at least we have got the framework about what's there. The other thing is it might be helpful if the other parties let us know if there are things that we have missed that should have been in the discussion paper. It was just something that we took upon ourselves to do.

PN208.

THE COMMISSIONER: Yes.

PN209.

MR McLEAY: After lots of consultation with our branches and lots of time trying to get our head around what it actually is, remembering what happened in 2012 - and most of the parties here were involved in the award review and then the appeal of the decision - this was one of the issues that came up then, and I think in the questioning, or in coming to make the decision of the appeal of the Full Bench, these were a number of issues that were addressed then so we have just sort of tried to capture the things that were raised in that that weren't finalised. So we would prefer that we get some feedback, in short.

PN210.

THE COMMISSIONER: I was going to propose that - but I probably don't need to be here for the sort of next level of discussion, but leave you guys with the video link so you can continue the discussion.

PN211.

MR McLEAY: Sure.

PN212.

THE COMMISSIONER: I think that that might be useful. Can I also say that if it's of help to the parties when you're having future discussions, if we can assist by providing a video link if that's going to assist your discussion, and if it's possible and we have got facilities that are available at the time you want them, then we can do that as well. My one final question is whether, Mr McLeay, what - and I'm not putting it on you, and someone else can jump in and say, "No, no, we want to do it". It's useful for me and for the Commission if we have got sort of a point of contact or someone sort of taking the lead in terms of coordinating the group.

PN213.

MR McLEAY: Sure.

PN214.

THE COMMISSIONER: So my question is, is that you, Mr McLeay, given - - -

PN215.

MR McLEAY: I would like to say yes, Commissioner, but I - - -

PN216.

MR SVENDSEN: I would like him to say yes too.

PN217.

MR McLEAY: I'm about to change roles and move to our New South Wales branch.

PN218.

THE COMMISSIONER: Okay.

PN219.

MR McLEAY: So it will fall to Leigh Svendsen to do, and the HSU is happy to take that role.

PN220.

THE COMMISSIONER: Yes. Just so the parties are clear, it doesn't mean I'm going to have discussion with Ms Svendsen that I won't be having with other people, but it just gives me a point if I need to get some information of where we are at, and I will ask Ms Svendsen if she is - well, actually - well, we have got it now. Mr McLeay, on the emails you have sent to us, we have got a list of everyone's emails, so we can communicate with this group. It doesn't mean that if other people come into the process we won't add them in as well. Okay?

PN221.

MS SVENDSEN: I will endeavour to keep you or your associate, I should say, up to date in terms of the list of people, but I will confirm that list and make sure we add everybody on it, because I think there might have been something we left off this morning.

PN222.

MR McLEAY: There was one change from this morning. Yes.

PN223.

MS SVENDSEN: And if people have received those emails this morning from Mark and want anybody else added to that list other than the person we have sent it to, please let me know.

PN224.

MR McLEAY: We might distribute the list as well, just so everyone can confer with the - - -

PN225.

THE COMMISSIONER: Yes.

PN226.

MR McLEAY: Commissioner, before you go, there are a couple of general questions that we had. I don't know whether we should leave them for now or later.

PN227.

THE COMMISSIONER: No, do it now.

PN228.

MR McLEAY: In terms of proposing words, does the Commission have a preference for working off the exposure draft or working off the award?

PN229.

MS SVENDSEN: We actually had the discussion yesterday about the Nurses Award.

PN230.

MR McLEAY: Because we have had this discussion internally and we have been split upon our views, so we are just seeking some guidance.

PN231.

THE COMMISSIONER: I would work off the exposure draft, only because that's the document that we're working off. That's the working document.

PN232.

MR McLEAY: The other thing, Commissioner, you may or may not have an answer for this one and it might be something that the president would have to consider. At this point, parties haven't had to put forward solid details about what their variations or claims. A couple of parties have put in, for instance, VECCI on behalf of the people - I think it's the podiatrists and the physios have put forward some draft determinations. Is there any idea of when the Commission will ask or will set a timeframe for more defined detail about the claims?

PN233.

THE COMMISSIONER: It's a matter for the president. I think that this award also is listed for mention on the 19th.

PN234.

MR McLEAY: On the 19th.

PN235.

MS SVENDSEN: On the 19th, the same time as the nurses.

PN236.

THE COMMISSIONER: Yes. So I expect that we might get to some detail then.

PN237.

MR McLEAY: We might get some detail then.

PN238.

THE COMMISSIONER: But ultimately, you know, if you could find some common ground so that it's clear what is in dispute between the parties and it's clear what's agreed between the parties, then it's going to be easier for the Commission to deal with it.

PN239.

MR McLEAY: Yes. Sure.

PN240.

THE COMMISSIONER: Just letting you know, I will provide a report to the president from today, just so he knows where this particular award is up to. Ultimately, it will be up to the president how the award gets dealt with. In some other areas, major issues, where they are going to take up substantial amount of time in terms of submissions and/or evidence have been referred to separate Full Benches to deal with. Whether the president would be of a mind to do that with this particular award, we will just have to wait and see, and it depends on how big the issue ends up being.

PN241.

The other thing that I should just mention to the parties, because there are some here who weren't here for the nurses yesterday, as I said earlier, this is not going to be a long, 12-month process. This is - people will get a fair hearing, but it's going to be quicker than perhaps traditional processes in the Commission have been in the past, so parties are going to have to be prepared to put in, you know, solid written submissions on things that they want changed, proposals that they have got, at the appropriate point in time.

PN242.

You're not going to get to put in written submissions and then have two days before the Full Bench arguing your written submissions, because if we did that on every matter before us we would never get out. So the parties just need to be mindful that there will be tight timetables, but it is the intent of the Commission always that people get an opportunity to comment and to make their submissions. We're not going to cut people out of processes or ram through new award provisions that no one has had a chance to have a look at and comment on and make submissions about. Okay?

PN243.

MS SVENDSEN: Commissioner, if it assists, in terms of the phone hook-up we had, we discussed a similar - - -

PN244.

THE COMMISSIONER: Timetable?

PN245.

MS SVENDSEN: - - - conceptual timetable that we discussed with the nurses, so the - as opposed or agreed between us in terms of the general issues, which was - and, you know, I don't have the dates in front of me, but essentially the second week of March, the third week of April for in reply, and then hearings the last week of April/first week of May as some kind of target approximation for those of us here as well that weren't here yesterday.

PN246.

THE COMMISSIONER: Yes. And that of course will be dependent on what timetable the president ultimately sets for this group of awards.

PN247.

MS SVENDSEN: It will, yes.

PN248.

MS LIGHT: Commissioner, would you be available to facilitate another conference, just with a view to the timeframes and the breadth of issues that the parties are going to need to confine? I know that in vehicles it has been quite helpful to have you available to kind of, I guess, light a fire and kind of encourage those discussions.

PN249.

THE COMMISSIONER: That was "light a fire", for the people interstate who didn't hear it. I have become a pyromaniac.

PN250.

MS LIGHT: No.

PN251.

THE COMMISSIONER: No, I understand.

PN252.

MS LIGHT: But it has been very helpful to have some set timeframes.

PN253.

THE COMMISSIONER: I imagine there certainly will be a member of the Commission who will be available to convene and assist the parties. At the moment, assume it's me, and if that changes then we will let you know.

PN254.

MS LIGHT: Thank you.

PN255.

THE COMMISSIONER: Okay. So I will leave you with the video link. If I could just - we will turn off the transcript. Do you want a transcript?

PN256.

MR McLEAY: No.

PN257.

THE COMMISSIONER: No. We will turn off the transcript.

ADJOURNED TO A DATE TO BE FIXED [11.23 AM]

Fair Work Commission Transcripts

AM2014/204, Transcript of Proceedings [2015] FWCTrans 75 (23 February 2015)