AM2016/31, Transcript of Proceedings [2017] FWCTrans 531 (15 December 2017)

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PN1

VICE PRESIDENT CATANZARITI: We will take the appearances in Melbourne first.

PN2

MS R LEIBHABER: May it please the Commission, my name is Leibhaber, R, from the Health Services Union. We have our counsel, Ms Doust, appearing on behalf of us in Sydney.

PN3

VICE PRESIDENT CATANZARITI: Thank you.

PN4

MR A McCARTHY: If the Commission pleases, McCarthy, initial A, for the Australian Nursing and Midwifery Federation.

PN5

MR G BOYCE: If the Commission pleases, Boyce, initial G, for the Aged Care Employers.

PN6

MS L HEPWORTH: If the Commission pleases, Hepworth, L, on behalf of the Private Hospital Industry Employer Association.

PN7

MS L FISHER: If the Commission please, Fisher, L, also on behalf of the Private Hospital Industry Employer Association.

PN8

VICE PRESIDENT CATANZARITI: Thank you. Who will be the spokesperson?

PN9

MS FISHER: Ms Hepworth.

PN10

VICE PRESIDENT CATANZARITI: Thank you, Ms Hepworth. Ms Doust, you are in Sydney?

PN11

MS L DOUST: Yes. I seek permission to appear for the HSU in this matter, Vice President.

PN12

VICE PRESIDENT CATANZARITI: Thank you, Ms Doust.

PN13

MS DOUST: Might I just ask whether there is any facility for raising the volume in Sydney. It's very faint.

PN14

VICE PRESIDENT CATANZARITI: They will be working on it now, Ms Doust.

PN15

MS DOUST: I'm grateful, your Honour.

PN16

VICE PRESIDENT CATANZARITI: We will go to Brisbane.

PN17

MS C BRATTEY: ...initial C, appearing on behalf of Blue Care this morning, your Honour. I seek permission to appear. I am a solicitor from Corrs Chambers Westgarth.

PN18

VICE PRESIDENT CATANZARITI: Thank you. We cut out your appearance. Can you just do it again.

PN19

MS BRATTEY: Sure. It's C, surname Brattey.

PN20

VICE PRESIDENT CATANZARITI: Yes.

PN21

MS BRATTEY: B-r-a-t-t-e-y. Solicitor appearing on behalf of Blue Care.

PN22

VICE PRESIDENT CATANZARITI: Thank you. We will go to Newcastle.

PN23

MS K THOMSON: If the Commission please, Thomson, initial K, seeking permission to appear on behalf ABI and the New South Wales Business Chamber.

PN24

VICE PRESIDENT CATANZARITI: Thank you. Is there any objection to any of the legal representatives appearing from anybody? Permission to appear is granted to all the representatives. Now, before we start, there are a number of housekeeping matters I want to deal with. The first matter I want to deal with is who are going to be the actual witnesses for this part of the case. We received communication which said that there were only four people required for cross‑examination. Does that remain the case?

PN25

MR McCARTHY: Yes, your Honour. That's correct.

PN26

VICE PRESIDENT CATANZARITI: We note that Ms Ball is going to appear tomorrow. We propose, on the basis that that is the only witness tomorrow, we are going to start at 9 o'clock. Does that cause a problem to anyone?

PN27

MR McCARTHY: Only that it's 8 o'clock in Brisbane, so I'm not sure - - -

PN28

VICE PRESIDENT CATANZARITI: Where is Ms Ball? How about we split the difference and make it 9.30.

PN29

MR McCARTHY: Okay, your Honour. I'll pass that on.

PN30

VICE PRESIDENT CATANZARITI: I would imagine Ms Ball is not going to be very long.

PN31

MR McCARTHY: No, I agree.

PN32

VICE PRESIDENT CATANZARITI: Yes, all right.

PN33

MS BRATTEY: That's fine for Brisbane, your Honour.

PN34

VICE PRESIDENT CATANZARITI: Yes. We're going to start at 9.30 Eastern Standard Time tomorrow. The next thing, I've been through - as have the members of the bench - the material as filed. When I met over the last occasion, a series of directions were issued for the further conduct of this matter and the case has narrowed quite somewhat. Between now and 9.30 tomorrow, I would like the parties to have discussions about the amended directions which I issued on 19 October. It seems to me that those directions are overly generous. They have a timetable which would expire on 30 April to put in the submissions in this matter and, as I say, the matter has narrowed dramatically.

PN35

It does seem to me that the parties would not need that amount of time, on the face of it. If the parties wish to argue that they do need until 30 April, then they better be in a position by 9.30 tomorrow morning to explain why they need such an extended timetable on a matter that has dramatically narrowed in scope, accompanied by a raft of previous written submissions.

PN36

The next housekeeping matter is that AiG have corresponded with the Commission and have indicated that they will not be here, and they're going to rely on their previous material. All right. Are there any other housekeeping matters before we start today from anyone?

PN37

MR McCARTHY: Your Honour, I just note that the witnesses are in the courtroom in Brisbane.

PN38

VICE PRESIDENT CATANZARITI: Yes. Could the witnesses please vacate the courtroom. I assume, Ms Doust and Ms Thomson, there is nobody else in your courtrooms.

PN39

MS DOUST: There is, your Honour. It's Mr - I think it's Halpin, from the Aged Care Employers is present, but I understand Mr Boyce is the representative for his organisation.

PN40

VICE PRESIDENT CATANZARITI: Okay.

PN41

MR M HELM: Commissioner, if I could just correct that. It's Helm, initial M, from Aged Care Employers. That's quite correct that Mr Boyce of counsel is representing us from Melbourne.

PN42

VICE PRESIDENT CATANZARITI: Thank you. There is nobody in Newcastle?

PN43

MS THOMSON: No, your Honour.

PN44

VICE PRESIDENT CATANZARITI: Thank you. All right. So if there are no other housekeeping matters, we will now commence and we will hear the opening submissions.

PN45

MR McCARTHY: Thank you, your Honour. I will just make a brief opening statement. As you have noted, there have been prior written submissions and there is further opportunity for written submissions - - -

PN46

VICE PRESIDENT CATANZARITI: Sorry, just before you start, there was one other final housekeeping matter. The bench just wanted to make sure that all conciliation has been exhausted. In other words, is there any benefit of having any further discussions amongst the parties with the assistance of a member of the bench before we finalise the matter. What is the view of the union?

PN47

MR McCARTHY: We have had some discussions and we didn't get much closer. They were some time ago. I have my doubts that we would get much closer, but it could be a possibility. I'm not too confident, especially as there has been witness evidence put on. I'm not opposed to having further discussions with other parties, but - - -

PN48

VICE PRESIDENT CATANZARITI: Well, I won't delay the start, but it's just a question to keep in mind if it transpires in the course of the day that you think there is some utility, particularly as I anticipate today is going to be quite short with these witnesses.

PN49

MR McCARTHY: Yes. I agree, your Honour.

PN50

VICE PRESIDENT CATANZARITI: Yes, okay.

PN51

MR McCARTHY: Okay, so I'll just briefly provide some background; just a quick summary of what the ANMF proposals are. The ANMF claims are in four broad groups. There are claims relating to allowances; claims relating to on call and recall; there is a claim relating to rest breaks between rostered work; and there are a couple of related claims related to meal breaks. Those witnesses being cross‑examined today, three from the ANMF and one from Blue Care, are especially relevant to three of those four groups. Not so much about rest breaks between rostered work. All of those witnesses, they're former employees or current employees of the Blue Care.

PN52

I will just briefly outline each ANMF proposal relevant to these hearings. The first claim is for an in‑charge allowance. The ANMF witness statements present evidence relevant to this claim, which is to insert an allowance regarding registered nurses levels 1 and 2 who are in charge of a facility during any time of the day or night. They are the only registered nurses on the premises. A manager is not usually present.

PN53

We say the evidence will show that RNs in charge take on significant additional responsibilities in addition to their normal duties and, therefore, they should be compensated for that under the award. We say that under the award there is no compensation for those additional duties. A lot of these additional duties would be at a higher level. For example, registered nurse level 3.

PN54

For example, the descriptors talk about an RN level 3 doing allocation and rostering of staff, and being accountable for the management of human and material resources. That is the in‑charge allowance claim. The on call and recall group has three elements - - -

PN55

VICE PRESIDENT CATANZARITI: Just before you finish that, the argument that seems to be against you is it's a capacity to pay argument. Do you want to say something about that in your opening; about whether that is a relevant factor that should be taken into account?

PN56

MR McCARTHY: Obviously it is a matter that is, you know, relevant to the modern awards objective. We're not talking about many RNs. We're talking usually just one RN on each shift. I think it was actually in our submissions. I think I said the amount that would be added to labour costs would not be high. In any event, some agreements have in‑charge allowance in the - although many don't.

PN57

VICE PRESIDENT CATANZARITI: In the submissions material it says that is the place it should be done, not in the modern award. That's why I'm teasing it out. Is it that it should be done in the modern award or should it be left to agreements?

PN58

MR McCARTHY: Well, we say it should be in the safety net. It's a very, very common role that is performed and we say that that should be the basis of agreement making. As a default, that should be in any agreement. Because they're such significant duties that are being done and the workloads are so high, it is fair and relevant that the safety net include an allowance for being in charge.

PN59

VICE PRESIDENT CATANZARITI: Yes.

PN60

MR McCARTHY: Okay. Moving on to the on call and recall group, this has three elements. The first one is in relation to an allowance for telephone and other remote recall. This proposal is to ensure that there is suitable compensation for nurses who, while they're on call, get rung up or are otherwise required to perform work without returning to the usual work premises.

PN61

The ANMF evidence relates to the nature of these types of events, including their frequency and their duration. Also in relation to the impacts on employees, including in terms of their work‑life balance. There is always a recall clause in the award. We say that that clause is capable of applying to recall performed where a nurse is not actually physically called into work. There is a claim from the Aged Care Employers, I believe, which relates to this same issue. They are asking for a remote communication allowance, so there is some overlap there.

PN62

Our key point is that this type of work needs to be compensated. It needs to be clear in the award what the rate is and our argument is that it should be at an overtime rate and then there should be a minimum amount paid for each time somebody gets called up at home. If there aren't any questions on that one, I'll move on to the next element.

PN63

The next element of on call is a claim in relation to excessive on call. This claim is to increase the amount of compensation payable for being on call by accrual of additional annual leave. We argue that the current award on call amount is insufficient to compensate employees for the impacts on them of performing on call, especially if significant amounts are performed.

PN64

The ANMF witness statements go to this question. They show how frequent being rostered on call can be at particular workplaces and we're submitting that significant amounts of rostered on call is occurring. Our evidence also shows the impact on the private life of nurses, impacts on work‑life balance, OHS and those witnesses also state that they consider the compensation is inadequate for being on call.

PN65

The third related claim relating to on call is a claim that there are existing provisions in the award which state that a nurse must be free from duty. It is, on average, two full days per week. Our claim is that that clause should be amended to include time spent on call, not just actual work. There is evidence before you that there are inadequate breaks from all work commitments, i.e., both work and on call, so working on call has effects. Even if you're not called up, that still have effects on your private life and also significant amounts of on call often occur on top of normal work duties, and therefore that has significant impacts on nurses. That is the on call and recall group.

PN66

The third claim - I don't think the evidence is specifically directly relevant to this today, but that is a claim to increase the rest break between rostered work from eight hours to 10 hours. There is some evidence that has been provided, especially some expert evidence, but those witnesses have not been required to be cross‑examined today.

PN67

VICE PRESIDENT CATANZARITI: The bench notes that and we have read that expert evidence.

PN68

MR McCARTHY: Thank you. The final group of claims relates to meal breaks. We say the evidence shows that nurses are either not getting meal breaks at all or, if they are, these meal breaks can be after many hours or they're frequently interrupted, or both. In addition, nurses frequently or usually cannot leave the premises.

PN69

Accordingly, our claim is to clarify the timing of the meal break, which is important because the existing clause states that if you do not take the break you get overtime from the time of the meal break, but if we don't know when the time of the meal break is, then there's no way to trigger the overtime component of the clause making that clause effectively redundant.

PN70

The other part of the claim is to make it clear that an allowance is payable when an employee is required to remain available. It's not clear under the award what the situation now is. The award already mentions remaining available, but it is a bit unclear what the consequence of that is. We would like to clarify that to make it clear that a payment should be made for someone who is effectively on call during their meal break. We have also provided evidence of the impact of having no breaks or inadequate breaks, including fatigue.

PN71

That is the four broad areas of the ANMF's claim. There are some statements of ANMF witnesses who are not being cross‑examined. I was just wondering whether you would like me to tender those now or after the other opening statements.

PN72

VICE PRESIDENT CATANZARITI: We will just get the other brief opening statements first and then we'll do all that - - -

PN73

MR McCARTHY: Okay. Thank you, your Honour.

PN74

VICE PRESIDENT CATANZARITI: Ms Doust?

PN75

MS DOUST: Yes. Thank you, Vice President and members of the bench. The HSU's position has been articulated in its written submissions filed already in the Commission. In the broad, can I say we support the claims that are advanced by the ANMF and which were just outlined by Mr McCarthy.

PN76

Can I clarify that there was one claim advanced by the HSU in respect of clause 14.2 of the exposure draft which concerns the payment of shift allowances on weekends. That is not a matter which is presently pressed. We don't ask the Full Bench to determine that claim in the context of these proceedings and we take that position without prejudice to our rights to pursue that claim at an appropriate time in the future.

PN77

Otherwise, the only additional matter independently pressed by the HSU that wasn't touched upon by Mr McCarthy in his opening is the question about the overtime clause, which is at clause 15 of the exposure draft. The HSU advocate for some provisions to be incorporated into that clause to make it clear that each shift week or fortnight or averaged period is to be dealt with independently for the purpose of calculating overtime.

PN78

That's not a matter that we apprehend will occupy the members of the Full Bench today and tomorrow in dealing with the witnesses that are brought before the Commission and are going to be cross‑examined. Unless there are any questions, those are the only comments I propose to make in opening.

PN79

VICE PRESIDENT CATANZARITI: Thank you.

PN80

MS DOUST: Thank you.

PN81

VICE PRESIDENT CATANZARITI: Who wishes to go next? Mr Boyce, do you want to go next?

PN82

MR BOYCE: Thank you, your Honour. The Aged Care Employers press two variations to the award in the substantive sense. One of those is set out in the submissions of 15 July 2015. That is a change to clause 8.2 of the exposure draft in relation to rostering. It merely provides that where the employer and employee agree, seven days' notice of a change of roster does not have to be provided by the employer. So that if the employer and employee seek a roster change, then if that's agreed that can be implemented accordingly even though the employer hasn't provided seven days' notice.

PN83

VICE PRESIDENT CATANZARITI: Why don't you think that can't be negotiated as an agreed position?

PN84

MR BOYCE: Well, it's met with resistance. I'm not clear why.

PN85

VICE PRESIDENT CATANZARITI: That clause is simply if the parties agree - - -

PN86

MR BOYCE: Yes.

PN87

VICE PRESIDENT CATANZARITI: Yes.

PN88

MR BOYCE: I think it's said that 8.2(f) might cover the situation, in the sense that the employer can override the requirements for notice in cases where an employee is absent due to illness or in an emergency. The Aged Care Employers have four witness statements identifying that there is a whole raft of reasons other than illness. If one takes a strict view on what is an emergency - - -

PN89

VICE PRESIDENT CATANZARITI: Yes, I follow that argument.

PN90

MR BOYCE: Yes. Do I tender now my statements or they're already taken as - - -

PN91

VICE PRESIDENT CATANZARITI: No, you can do the statement in a moment.

PN92

MR BOYCE: Okay.

PN93

VICE PRESIDENT CATANZARITI: We're just doing a broad opening.

PN94

MR BOYCE: Clause 8.2 is, in my submission, a fairly straightforward, basically innocuous variation that ought be made by the Commission. The second variation is in relation to remote communication allowance and that allowance provision has been narrowed somewhat to that contained in the submissions of Aged Care Employers filed 17 March 2017.

PN95

That is effectively, firstly, the employee must agree to be on call to take remote calls in relation to issues that may arise in the facility. Secondly, they're paid at 50 per cent of the current on call allowance, which is effectively for recall to work. Thirdly, they're paid a minimum of one hour at overtime rates for any work performed and anything beyond one hour is paid at overtime rates for the time so spent in doing the work.

PN96

That contrasts to the ANF proposal, whereby effectively employees who may take one call for two minutes, get three hours' overtime pay. The evidence is accepted by Aged Care Employers and on the Nurses evidence, that employees are required to do this remote - - -

PN97

VICE PRESIDENT CATANZARITI: So the only argument on this clause is really how much should be paid?

PN98

MR BOYCE: Yes, and whether people should be unjustly enriched in circumstances where they may only take one small call. Obviously there will be instances and occasions where there is more than one call and there is more than one hour's work performed, but in those instances it would be for the time so spent. Remembering, as well, that the employee can say, "Look, I don't want to do this",

PN99

for whatever reason.

PN100

DEPUTY PRESIDENT BOOTH: The 50 per cent of the current on call allowance, are you suggesting that that's agreed? You just said there is just one area, which is what they're paid, but you're also proposing that the on call allowance itself be halved?

PN101

MR BOYCE: Yes, for the - yes, so effectively the position is because employees may never be called to provide remote assistance, then it's a 50 per cent allowance, and because if they are called they get a one‑hour automatic overtime payment.

PN102

DEPUTY PRESIDENT BOOTH: But the competing claim is not for a 50 per cent on call allowance for those who are standing by to take phone calls. It's presumably still the full on call allowance.

PN103

MR BOYCE: As I understand it, yes, plus three hours' overtime.

PN104

DEPUTY PRESIDENT BOOTH: Yes.

PN105

MR BOYCE: So it's Aged Care Employers' submission that this is an appropriate safety net provision for this work that is performed. It's found in a number of enterprise agreements, but equally should be available to those who aren't covered by enterprise agreements particularly in circumstances where clearly there is a dispute between employers and the unions as to what actually happens.

PN106

I think the unions take the view that it's a minimum overtime payment as soon as a call is made in circumstances where the employee doesn't have to actually leave home or leave their social function or actually go anywhere, but maybe duck out to a quiet area for five or 10 minutes and take a call. In my submission, this is the appropriate reward for that type of work being agreed to. If the Commission pleases, I don't have anything additional to add. Thank you.

PN107

VICE PRESIDENT CATANZARITI: Ms Hepworth?

PN108

MS HEPWORTH: Thank you, your Honour. We represent the largest group of employers covered by this award who, in turn, employ in excess of 75,000 nurses. We refer to and rely upon our submission in reply of May 2017 in relation to the substantive changes to the Nurses Award being proposed by the Australian Nursing and Midwifery Federation. In summary, we refer to the decision of the preliminary jurisdictional issues, dated 26 March '14, at paragraph 60(3), which tells us:

PN109

The Commission is obliged to ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net taking into account, among other things, the need to ensure a stable modern award system.

PN110

The decision goes on to tell us that -

PN111

A party seeking to vary a modern award...must advance a merit argument...supported by a submission which addresses the relevant legislative provisions and must be accompanied by probative evidence.

PN112

When considering the terms of a modern award, section 183 of the Fair Work Act reminds us that a modern award must include terms that it is required to include only to the extent necessary to achieve the modern award objective. Therefore, we feel the questions to be answered are will the ANF's proposals assist the Commission maintain a fair and reasonable safety net; will the proposals help ensure a stable modern award system; does the ANMF advance merit arguments supported by submissions which address the relevant legislative provisions; is this accompanied by probative evidence; and are the ANMF's proposed changes necessary to achieve the modern award objectives?

PN113

We believe the answer to all these questions is a resounding no. The ANMF's proposals do not meet any of these targets and, in summary, these proposals are - as Mr McCarthy has pointed out - the introduction of an in charge allowance for RNs who are in charge of a facility or a section of a facility which, in our position, could be a ward. As noted on pages 4 to 7 of our May 2017 submission in reply, an application for an in charge allowance has previously been rejected by the Commission.

PN114

The second one was the introduction of a new leading hand allowance for ENs and nursing assistants. The third, the introduction of a new - - -

PN115

VICE PRESIDENT CATANZARITI: Sorry, you say previously rejected by the Commission. I'm aware of that decision. Your argument is that there is nothing that has changed. You say there is no basis for a change. Is that the primary argument?

PN116

MS HEPWORTH: Correct. The introduction of a new telephone and other remote recall allowance, we do not believe that this is an extension of the recall or the on call provision, but a new substantive proposal. The granting of extra leave for being on call, allowing an employee to be free from participating on the on call roster on their days off and increasing the rest breaks between rostered periods of work from eight to 10 hours, these matters are not minimum conditions.

PN117

These matters do not have historical connections to pre‑reform nursing awards. These matters do not form part of a fair and relevant minimum safety net. These are matters found in a union's log of claims in preparation for an enterprise agreement negotiation. These are matters for the tightrope and not the safety net.

PN118

In reviewing the evidence submitted in support of these claims, there are witness statements from two nurses employed in the same 40‑bed regional private hospital in Queensland and which refer to particular conditions in this one workplace. These statements explain how these two people - one of whom is a level 1 RN and the other a level 2 RN - either feel that a payment is insufficient for the work being done or that work demands are too intrusive on their personal time.

PN119

Now, these may be valid arguments in above‑award discussions with this hospital, but they are not relevant arguments for this review which is considering a fair and relevant minimum safety net of terms and conditions applicable, in our position, to 624 private overnight and day hospitals comprising just under 32,000 beds employing, as I've mentioned, in excess of 75,000 nursing personnel across Australia.

PN120

As noted in page 6 of our May 2017 submission, nurses employed at this hospital, which is the Gympie Private Hospital are covered by an enterprise agreement in which level 1 RN rates are 28.6 per cent above the award minimum hourly rates, and level 2 RNs are on average 44.8 per cent above the minimum hourly rate. In consequence we would respectfully suggest that no weight be given to the evidence of these two witnesses.

PN121

The last remaining claim in the ANMF's submission relates to the unpaid meal break. Because this matter does have a historical connection with pre-reform nursing awards, and because the current clause blurs the significant difference between remaining available and being on duty during a meal break, we agree with the ANMF that clarification is required. We do not agree, however, with the wording proposed by the ANMF and have suggested an alternate in our submission, and perhaps further discussions would be held with regards to reaching some agreement in that regard. In closing - - -

PN122

VICE PRESIDENT CATANZARITI: That would be a good thing, if we can narrow the matter even further.

PN123

MS HEPWORTH: Certainly. In closing, other than for the unpaid meal breaks, PHIEA does not believe the substantive variations proposed by the ANMF are necessary to meet the modern award objective in this matter. Thank you.

PN124

VICE PRESIDENT CATANZARITI: Thank you. Ms Brattey.

PN125

MS BRATTEY: Thank you, your Honour. We seek to rely on the outline of submissions that have already filed in this matter for Blue Care. In summary, Blue Care's position is still that it opposes the following award variation that the ANMF have proposed; that's all five that have been previously outlined this morning by Mr McCarthy.

PN126

That is that in-charge and leading hand allowance, our submission on that point is that that matter has already been heard by Watson VP in 2012, and we see no further evidence presented by the union today that would alter or change that decision.

PN127

In respect of recalled to work clarification, as outlined in our submissions, we disagree with the ANMF on that point and the representation about the Pulan decision, which we say is wrong in our view, and that Pulan does not support a case to have recall to work classification altered.

PN128

Regarding the third point, extra leave for excessive on call, we say there is no need to have such a provision in the award; and in fact to do so would go well beyond the minimum requirements in the safety net that the Commission is required to take into account when varying the award. The free from duty and on call clarification, same points.

PN129

And with regards to increase for minimum rest breaks between shifts, we say that that's a matter that's best reflected in the enterprise agreement. Currently Blue Care do allow for 10 hours between respective - rest breaks between shifts. So to that extent we don't necessarily oppose the increase to the time of the rest breaks, but what we certainly do oppose is the penalty that's being proposed by the ANMF on that clause.

PN130

And finally with respect to the timing of meal breaks and compensation, we again oppose the variation to that clause and again just seek to rely on the outline of submissions. We have nothing further, really, to add at this stage.

PN131

VICE PRESIDENT CATANZARITI: Yes. Thank you. Ms Thomson.

PN132

MS THOMSON: Thank you, your Honour. I won't propose to expand on any of our written submissions. Suffice to say we rely on the submission filed in May 2017, which broadly is in opposition to the ANMF's claim, subject to the claim with respect to remaining available during a meal break. But the wording proposed by the A Industry Group is supported, rather than the ANMF proposal.

PN133

VICE PRESIDENT CATANZARITI: Thank you. We will now tender the statements, Mr McCarthy.

PN134

MR McCARTHY: Yes, your Honour. I would like to tender the statement of Sonia Le Compte dated 25 February 2017.

PN135

VICE PRESIDENT CATANZARITI: That will be exhibit ANMF1.

EXHIBIT #ANMF1 STATEMENT OF SONIA LE COMPTE DATED 25/02/2017

PN136

MR McCARTHY: The next statement, your Honour, is the statement of Sherrelle Fox dated 27 February 2017.

PN137

VICE PRESIDENT CATANZARITI: Exhibit ANMF2.

EXHIBIT #ANMF2 STATEMENT OF SHERRELLE FOX DATED 27/02/2017

PN138

MR McCARTHY: And the final one is the statement of Prof Drew Dawson and Dr Jessica Patterson dated 16 and 17 March 2017.

PN139

VICE PRESIDENT CATANZARITI: That will be ANMF3.

EXHIBIT #ANMF3 STATEMENT OF DREW DAWSON AND JESSICA PATTERSON DATED 16 AND 17/03/2017

PN140

MR McCARTHY: That's all, your Honour.

PN141

VICE PRESIDENT CATANZARITI: Your remaining witnesses are here for cross-examination?

PN142

MR McCARTHY: That's correct.

PN143

VICE PRESIDENT CATANZARITI: We will deal with those now before we have other witness statements that Mr Boyce and others put in, so let's deal with your witnesses. Call your first witness.

PN144

MR McCARTHY: The ANMF calls Cherise Matthews.

PN145

THE ASSOCIATE: Could you please state your full name and address for the record.

PN146

MS MATTHEWS: Cherise Nicole Matthews, (address supplied).

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PN147

MR McCARTHY: Cherise, it's Andrew McCarthy from the ANMF in Melbourne. Can you hear me?‑‑‑Yes, I can.

PN148

You've made a statement for the purposes of these proceedings dated 23 February 2017. Do you have a copy of that with you?‑‑‑Yes, I do.

PN149

Yes, you do. Attached to that statement is time sheets and workload forms. Is that correct?‑‑‑Yes, that's right.

PN150

Are the contents of that statement true and correct?‑‑‑Yes.

PN151

I tender that statement, your Honour.

PN152

VICE PRESIDENT CATANZARITI: That will be exhibit ANMF4. Is there any objection to that statement?

PN153

MR BOYCE: No, your Honour.

EXHIBIT #ANMF4 WITNESS STATEMENT OF CHERISE MATTHEWS DATED 23/02/2017

PN154

MR McCARTHY: Cherise, you will now be asked some questions by some other parties. I think it's only Blue Care, your Honour.

PN155

VICE PRESIDENT CATANZARITI: Yes. Only Blue Care wishes to ask questions. Okay. Thank you, Ms Brattey.

CROSS-EXAMINATION BY MS BRATTEY牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [10.53 AM]

PN156

MS BRATTEY: Good morning, Ms Matthews. I'm the representative for Blue Care this morning, I'm going to ask you some questions about your statement. You're still currently working for Blue Care?‑‑‑Not any more.

PN157

When was your last date of work?‑‑‑19 July this year.

PN158

Up until 19 July this year you were a registered nurse level 1, pay point 4, and you worked at the Vinyada centre of care?‑‑‑Wirunya.

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PN159

Wirunya centre of care, okay?‑‑‑Yes, that's right.

PN160

That's in Beenleigh, Redland Bay Road, Queensland?‑‑‑Yes, that's right.

PN161

We have noted that you predominantly worked the evening shifts from 2.15 around about 10 o'clock, working seven shifts a fortnight, according to your statement?‑‑‑Yes, that's right.

PN162

Paragraph 6 of your statement - well, paragraph 4 to 6, I should say, of your statement - you outline to the Commission a variety of duties that you've carried out during your time working for Blue Care. I take you to paragraph 4, please. You say:

PN163

Most days our manager is off-site as she also manages four other facilities.

PN164

Is that a manager, somebody that you can call upon for clinical advice; or is it a manager that you call upon for other assistance?‑‑‑She is normally someone that you can call on for both.

PN165

For both?‑‑‑Yes.

PN166

And is it correct that she manages four other facilities, or is it three?‑‑‑She manages Wirunya, Bethania, Yurana, and I believe she does community care, I believe.

PN167

That's not a facility. So it's just three facilities. Is that correct?‑‑‑Yes, three facilities ‑ ‑ ‑

PN168

And you state that you ‑ ‑ ‑

PN169

VICE PRESIDENT CATANZARITI: Just hold on. Can you just speak up, please, Ms Matthews. We're having a bit of difficulty hearing you?‑‑‑Yes, sure.

PN170

MS BRATTEY: So just to clarify, that was three facilities, not four?‑‑‑Yes, three facilities and community.

PN171

And you state that you were the most senior person on the shift as an RN?‑‑‑That's correct, yes.

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PN172

But you could call for assistance from this manager for support as and when required?‑‑‑Supposedly, yes.

PN173

Supposedly. Were they not available?‑‑‑No. Many times I called and the phone was not answered.

PN174

Did you raise that concern with anyone?‑‑‑No, I don't believe I did.

PN175

You state that you supervised six assistants and one kitchen staff member?‑‑‑(No audible reply)

PN176

Most shifts you have to replace staff who have called in sick; and dealing with rostering arrangements?‑‑‑(No audible reply)

PN177

You also state you're expected to attend to any maintenance issues - this is paragraph 6 of your statement - that arise on your shift as there's no one else to attend to these things?‑‑‑Mm‑hm.

PN178

Is it the case that there was a maintenance person on site most days?‑‑‑Yes, there was a maintenance officer on site from 5.30 in the morning till 1.30 in the afternoon. So by the time I would get to work, he had already gone home for the day. We weren't allowed to call him after hours. And when I would call the help desk for assistance, or my manager, no one would answer.

PN179

Was there an on call property number for you to call as well?‑‑‑Yes. Same thing.

PN180

So you registered your maintenance issues through a different on call service?‑‑‑Yes.

PN181

It's not the case you were expected to carry out the maintenance duties yourself, it's ‑ ‑ ‑ ?‑‑‑The duties that I was carrying out were to secure the premises or the facility, so it's ‑ ‑ ‑

PN182

But that's not maintenance, you would agree. Maintenance requires fixing things ‑ ‑ ‑ ?‑‑‑Fixing a gate to secure the premises so that people couldn't escape, I would consider a maintenance issue.

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PN183

Okay. So securing a gate on the premises?‑‑‑To get out a screwdriver and fix it night after night because it wasn't attended to, even when I raised it with the maintenance officer.

PN184

Okay. You're paid an allowance for being the only registered nurse in charge. Is that correct?‑‑‑Yes.

PN185

What do you understand you're paid that allowance for?‑‑‑For being the most senior person on site without any support staff or having to replace staff that call in sick; for having to supervise the other staff.

PN186

And you state that you have to answer the telephone from the time you start your shift as there's no receptionist. You have six other carers working with you as well. Do they take their turn at answering the phone?‑‑‑No. The direct line is forwarded through to the registered nurse at 4 o'clock in the afternoon.

PN187

Is that on the mobile phone that you carry around?‑‑‑It's on the DECT phone, yes.

PN188

Is there anyone DECT phone?‑‑‑No, there are multiple DECT phones, but it doesn't matter because whatever calls go through to the carers, they usually can't deal with the situation and they have to put through to me anyway, so it's easier for them to put it through to the nurse, which is what they normally do.

PN189

Okay. Carers can take the call in the event that you're not available, and take messages?‑‑‑I guess, yes.

PN190

Paragraph 8 of your statement, this paragraph reads to me that there is another on call nurse, another RN from another facility that, according to your statement, seems to be available for you. Is that perhaps not correct, there was no other on call RN, the RN that was on call was yourself working the shift?‑‑‑No. I have an on call roster which I was not a part of, so there would be an RN at home somewhere who was on call in the evenings, from 4.00 in the evening to 6.00 in the morning.

PN191

Okay. So the context of that paragraph suggests that although there is another on call nurse, there are no other RN from other facilities more senior than I. It suggests to me that you had access to that when you were working; but that's not correct, is that right?‑‑‑Yes, they were there. They were there to be called while I was working, but as I've written, they're no more senior than I am. So I would offer and ring them and they had no idea what to do. So they might be there, but there was no support from them.

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PN192

Can you bear with me, your Honour. I would like to take instructions just on that point, please.

PN193

It's Blue Care's position that you were the RN that was on call during your shift between the hours of 2.15 and 10.00. There was no one else for you to call at the time apart from your manager because you were the most senior nurse on charge for that shift?‑‑‑I never participated in the on call roster, and there was always a nurse on call.

PN194

Was that your manager?‑‑‑No, it wasn't. It was another nurse that was on call, another RN.

PN195

Paragraph 9 of your statement, coming back to what you previously said about being able to lock up facility. You were also expected to lock up the facility after hours and then answer the front door if there are visitors after this time, which they always are?‑‑‑Mm‑hm.

PN196

Did you work with Blue Care on that particular point, and there's a solution we put in place since you've made that statement?‑‑‑I constantly brought it up at registered nurse meetings, about the time that it took to be constantly answering the front door. Prior to my leaving they had discussed possibly putting in a key card so that family could get in without having to constantly ring the staff to let them in, but when I left, nothing had happened as of that date.

PN197

That was certainly a proposal that was being discussed to address your concerns?‑‑‑That was something that was brought up at a meeting, yes.

PN198

You're governed by the enterprise agreement, the Blue Care Mission Brisbane Nursing Employees Enterprise Agreement 2017. Are you familiar with that document?‑‑‑Yes.

PN199

You are, okay. Sorry, 2013, not 2015. I beg your pardon. Within this enterprise agreement there are a variety of different terms and conditions, one of which covers meal breaks?‑‑‑Mm‑hm.

PN200

You state in your statement that you've not had a meal break is beginning of 2013?‑‑‑Mm‑hm.

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PN201

Due to horrendous work levels, and that there is no set time to take a meal break?‑‑‑That's right.

PN202

You're the RN that's on charge during that time?‑‑‑Mm‑hm.

PN203

And you work from 2.00 in the afternoon till 10.00 in the evening?‑‑‑Yes.

PN204

I believe you have a clinical nurse on duty to support you between 2.15 approximately, and half past 4 in the afternoon?‑‑‑Maybe technically, but no, she was always gone by 3.00. And for three of those years we didn't have a clinical nurse at all.

PN205

So you had your six assistants to help you run the shift?‑‑‑Yes.

PN206

You're responsible for managing their time as well as your own. Is that correct?‑‑‑Mm‑hm.

PN207

And so it's your position that at no time during your shifts were you able to find the time to take a meal break?‑‑‑That's exactly right. There just was not any time. I could either look after the residents or I could have a meal break, but I couldn't do both unless I wanted to leave something undone.

PN208

But your assistants would have taken meal breaks. Is that not the case?‑‑‑Yes. I would try and make sure that they were having a break. Probably within the last eight months before I left it got to the point where even they weren't having breaks.

PN209

So if you look at the enterprise agreement - if I could just hand you a copy of this - at 7.2. Your Honour, for the record, I'm showing Ms Matthews a copy of the Blue Care enterprise agreement 2013. I would like to direct her attention to clause 7.2 of that agreement.

PN210

Is it the case your shifts are set up with a built in 30 minute unpaid meal break. Is that correct?‑‑‑Yes, that's correct.

PN211

And you would agree with me that in the event that you don't take your meal break, you should be paid a form of overtime?‑‑‑I should be, yes.

PN212

And the way in which that's done is the overtime for the meal break is recorded on your day sheets so that the business is aware that you're not taking your meal breaks?‑‑‑Yes, that's right.

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PN213

So if you haven't had a meal break since 2013, you would be submitting claims for, at the very least, the ordinary time payment of that 30 minutes?‑‑‑Yes.

PN214

And you say you submitted?‑‑‑Not always. I was called into the manager's office in 2015 and told to stop writing my overtime on my time sheet because Blue Care could not afford it, so I needed to stop doing it. So some shifts, I would write that I had missed a meal break, and some I wouldn't, because I knew I wasn't going to get paid for it.

PN215

So paragraph 18 of your statement you state:

PN216

On the day sheet you have to fill and sign on a daily basis. I would also include my meal breaks and overtime, but they were never paid.

PN217

?‑‑‑I would always put my overtime. I wouldn't necessarily say that I had missed a meal break.

PN218

And if you look at the attachments to your statements, we agreed that you would normally put your meal breaks on the day sheet. None of the sheets that you have submitted with your statement contain a claim for meal breaks. Is that correct?‑‑‑I'm not sure at this stage. I would have to look at them again.

PN219

Let's maybe look at one just so that we can all see what we're looking at. Unfortunately these aren't numbered, but if I could direct the Bench's attention to one of the forms. It is headed up "Day Sheet" that's attached behind the union forms that are submitted with Ms Matthews' statement. It has a day and it has a time range, with figures, names down the left‑hand side. The names have obviously been redacted, but Cherise's name appears halfway down. I'm noting the column where you can refer that in your statement. You have that attached to your own statement. There is a column on the day sheet that's headed up "Comments Including Allowance Claim". That's where you would put your claim for meal breaks. Is that correct?‑‑‑(No audible reply)

PN220

So you normally put your claim for meal breaks in that column?‑‑‑Mm‑hm.

PN221

Out of all the day sheets that you've submitted I can't find a single claim for meal breaks. Is that correct?‑‑‑If you say so. If that's from - the majority of those would be from this year, though, would they not?

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PN222

It's in your statement?‑‑‑I would say so, yes.

PN223

Okay?‑‑‑So, I mean, after I was told not to write it on the time sheet; some I did, some I didn't. So probably if there's none from this year, then I didn't obviously, yes.

PN224

You say that you were told not to write that on your time sheet, okay, so that you wouldn't be paid your overtime?‑‑‑Mm‑hm.

PN225

So just on the basis of what you say, that would be potentially an issue under the enterprise agreement, because the enterprise agreement provides for you to be paid, and if your evidence before this Commission is that you were not paid for those meal breaks; in some cases you claimed for them and were not paid; and your evidence, as I understand it, is you were told not to make a claim for those meal breaks?‑‑‑That's right.

PN226

Did you raise that matter with your union?‑‑‑No, not at the time. No, I didn't. The manager who told me that was just an acting manager at the time. I then told my regular manager once she returned from leave, but she basically said the same thing, there's no money for overtime. So we can write it down as much as we like, but nothing is going to happen.

PN227

You would agree that this would be quite a significant amount of overtime that you're missing out on if you're not able to be paid?‑‑‑Mm‑hm.

PN228

Yet you didn't force the issue any further by raising it through the union or any of the dispute procedures that are under the enterprise agreement?‑‑‑No. My concern was more the work load, and that was the issue that I raised. But as you know, I don't work for Blue Care any more, and that's why.

PN229

Just prior to you leaving Blue Care I believe that you did have various meetings to do with the on call rostering?‑‑‑Mm‑hm.

PN230

So you got your union involved to support your position about the on call rostering at that time, and there was a grievance raised to do with the on call rostering?‑‑‑That's right, yes.

PN231

You also then had a meeting with your manager, Ms Kelly Margaret, at the time of your resignation, roughly on 5 July?‑‑‑That's right.

PN232

You recollect that meeting?‑‑‑Yes.

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PN233

What did you raise with her during that meeting?‑‑‑Several concerns. I basically told her why I was leaving, because the work load was horrendous; because I had been bullied by a previous manager.

PN234

Did you raise any issues about pay?‑‑‑Yes, I told her that I was there working hundreds of hours of overtime every year that I wasn't being paid for, and she said to me, "Well, let's talk about that. Why are you there for so long?" That's what she said to me.

PN235

Did you raise concerns about your leave loading?‑‑‑Yes, I did.

PN236

And about being paid carers leave?‑‑‑I asked her if that was an option.

PN237

But again, nothing raised about meal breaks?‑‑‑Well, it had been four years. I didn't think I was going to get anywhere then. And by that time I was resigning, so.

PN238

But you were resigning in circumstances where you were still asking for leave loading and paid carers leave. Would it not also be appropriate to ask for meal breaks at that time, given that you were leaving?‑‑‑Well, to be honest, I was so downtrodden by that stage I just didn't see the point. I was ready to go. The purpose of me bringing up those things with her was to let her know why I was leaving.

PN239

I have no further questions, your Honour. Thank you.

PN240

VICE PRESIDENT CATANZARITI: Does anyone else want to ask questions of this witness? Thank you. Any re‑examination?

PN241

MR McCARTHY: I have no questions, your Honour.

PN242

VICE PRESIDENT CATANZARITI: Thank you. You're excused. Thank you for your attendance?‑‑‑Thank you.

<THE WITNESS WITHDREW牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.14 AM]

PN243

MR McCARTHY: The ANMF calls Susan Fletcher.

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PN244

THE ASSOCIATE: Could you please state your full name and address for the record.

PN245

MS FLETCHER: Susan Elizabeth Fletcher, (address supplied).

<SUSAN ELIZABETH FLETCHER, AFFIRMED牋牋牋牋牋牋牋牋牋牋牋牋 [11.15 AM]

EXAMINATION-IN-CHIEF BY MR MCCARTHY牋牋牋牋牋牋牋牋牋牋牋 [11.15 AM]

PN246

MR McCARTHY: Sue, this is Andrew McCarthy from the ANMF in Melbourne. Can you hear me okay?‑‑‑Yes, I can.

PN247

Now, Sue, you have made a statement for the purposes of these proceedings, dated 27 February 2017. Do you have a copy of that with you?‑‑‑Yes, I do.

PN248

Are the contents of that statement true and correct?‑‑‑They're true and correct.

PN249

Okay. I tender that statement, your Honour?‑‑‑Well, can I just make an amendment there. In (7) where I - we talk about the calls. Things have changed a little and the call bell system is actually a new system - - -

PN250

VICE PRESIDENT CATANZARITI: Just slow down.

PN251

MR McCARTHY: Hold on, Sue.

PN252

VICE PRESIDENT CATANZARITI: We need to follow this properly. Slow down where the changes are, please.

PN253

MR McCARTHY: What paragraph, Sue?‑‑‑Paragraph 7. I just wanted to say that the call bell system is a new one and it's functioning better. That's a change I would make.

PN254

VICE PRESIDENT CATANZARITI: How do you wish to amend that?

PN255

MR McCARTHY: You mean it's functioning better now. Is that right?‑‑‑Yes. It's a new system and, yes, it doesn't - well, because it says in there that it breaks down a lot, it doesn't any more.

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PN256

Okay. All right?‑‑‑It's a better system.

PN257

Okay. Thank you, Sue. Apart from that, there are no other corrections?‑‑‑No, I couldn't see any. I've read it several times and felt that it was still applicable.

PN258

Great. Thank you. I tender that statement, your Honour.

PN259

VICE PRESIDENT CATANZARITI: Well, do you want to amend paragraph 7 to say something like, "The system now works", at the end of the paragraph?

PN260

MR McCARTHY: Yes.

PN261

VICE PRESIDENT CATANZARITI: Yes, we'll put that into the document. It will be ANMF5. Any objections to this statement?

PN262

MR BOYCE: No, your Honour.

EXHIBIT #ANMF5 STATEMENT OF SUSAN FLETCHER DATED 27/02/2017

PN263

MR McCARTHY: Sue, you're now going to be asked some questions from Blue Care in the room there?‑‑‑Okay.

CROSS-EXAMINATION BY MS BRATTEY牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [11.17 AM]

PN264

MS BRATTEY: Ms Fletcher, like was said, my name is Claire Brattey and I'm acting for Blue Care this morning?‑‑‑Yes.

PN265

I'm going to ask you some questions about your statement?‑‑‑Yes.

PN266

So you still work at Blue Care?‑‑‑Yes, I do.

PN267

You do. Still at the same centre?‑‑‑Yes, I am.

PN268

Are you still working the same shifts as you've outlined in - - -?‑‑‑Yes, I am.

PN269

Weekdays and weekends?‑‑‑That's correct.

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PN270

Six shifts a fortnight?‑‑‑Yes.

PN271

You work the day shift from half past 6 to 2.30 in the afternoon?‑‑‑That's correct, yes.

PN272

Now, your statement references that you're also the RN that is in charge of that shift?‑‑‑Mm‑hm.

PN273

You are the only RN that is in charge during that shift?‑‑‑Yes. There would be one exception on a Thursday when there's now a clinical nurse there, but if she is away, like she is now, I'm the only RN and the manager may or may not be there. I don't know what day she comes. Generally speaking, I'm the only RN.

PN274

Okay. There is a manager, I think, that's available for you to call?‑‑‑Yes, there's a manager to call.

PN275

Yes?‑‑‑If I wish to call, yes.

PN276

Okay. That person also is responsible for three other facilities. Is that correct?‑‑‑Yes. There's three or four. I'm not sure of the number now.

PN277

If I said to you three, would you agree with me?‑‑‑Yes, yes, I think so.

PN278

Yes, okay. All right. Now, you say that as you're an RN and you're in charge for the shift, you are paid an additional allowance for being in charge?‑‑‑Yes. Recently - in times gone past, I have not been getting the supervisor's allowance, so when I worked weekends - - -

PN279

But you were paid a supervisor's allowance at the time of - - -?‑‑‑Up until recently, yes.

PN280

If we perhaps have a look at the enterprise agreement just to clarify what you are paid. Bear with me one second. You're familiar with the enterprise agreement?‑‑‑I hope to be. I usually read it, but I haven't - yes, I do know it.

PN281

You are aware it covers your terms and conditions?‑‑‑Yes.

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PN282

And it has terms in here about overtime?‑‑‑Yes.

PN283

Meal breaks and things like that?‑‑‑Yes.

PN284

So if I wanted to find out about how much you were paid for being in charge, this is the document that we would go to?‑‑‑Yes.

PN285

Okay. So if I give you a copy of this document and we have a look at clause 6.8.3. Do you have a copy of that there?‑‑‑(No audible reply)

PN286

You would see that that clause provides for the supervisor allowance that you've mentioned in your statement for an EN in charge?‑‑‑Yes.

PN287

What we have there at 6.8.3(a) is that:

PN288

A registered nurse who is required to perform the duties of morning/afternoon/night supervisor is to be paid an additional amount as provided in schedule 2.

PN289

Schedule 2 is at the back of this agreement. It's at page 43. The page numbers are at the top, unhelpfully. You have that there?‑‑‑Yes.

PN290

If we look down the allowance on the left‑hand side you will see, "Supervisor allowance RN." Across the top are the dates; "Jan‑16", it's 12.40 per shift. Is that correct?‑‑‑Yes.

PN291

So when we have a look at your statement - at paragraph 11 of your statement - which says you are paid a supervisor allowance for two hours per fortnight - - -?‑‑‑Yes.

PN292

- - - is that correct? Do you wish to change that?‑‑‑I would have to look at my pay slips because they changed. Recently that has been changed and I don't get it at all. You know, I would - although my hours are 44, often you are on your own and you are making all these decisions, and you are the only RN. Yes, if there was a major calamity I would probably ring my manager, but basically you are left doing the responsible things on your shift.

PN293

For that, you would agree with me then that the agreement provides that you're given an allowance per shift - - -?‑‑‑The agreement does.

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PN294

Yes, the agreement - - -?‑‑‑If that happens because, like I was saying, I'm not getting a supervisor's allowance at present.

PN295

At the time you made this statement you were being paid - - -?‑‑‑Yes, I was being paid probably for my afternoon - my morning shifts on the weekend currently.

PN296

So you would agree with me to the extent that - and we can't check your wage slips at the moment?‑‑‑Yes.

PN297

But certainly the agreement provides for 12.40 per shift if you're in charge?‑‑‑I'll have to just agree with you, because it says it there and I'd have to look at my pay slip.

PN298

Okay. You state at paragraph 7 of your statement that the additional duties for being in charge include doing regular and updating quarterly care plans?‑‑‑Yes.

PN299

Again, this document that we have had - the enterprise agreement - sets out the duties - - -

PN300

VICE PRESIDENT CATANZARITI: Ms Brattey, how is this going to assist the Commission you asking questions about what the agreement says when we don't have in front of us what the pay slips actually - Mr McCarthy, we're trying to conduct a proper review here in this matter. Are you going to tender the pay slips? I mean, we're asking a person what is in an agreement and then we don't have the pay slips. It does not assist the bench.

PN301

MR McCARTHY: We can certainly get those pay slips. Do you still have those pay slips, Sue?‑‑‑They're at home in my office. I don't have them with me.

PN302

VICE PRESIDENT CATANZARITI: Presumably, Ms Brattey, if you're asking these questions then you're going to make some submission that the pay slips say something otherwise, are you?

PN303

MS BRATTEY: I'm going to make a submission that her statement is incorrect, your Honour. I was hoping that it was merely a typo, but if that appears not to be the case, then it will be my submission that she is not correct in her statement because the enterprise agreement is clear - - -

***牋牋牋� SUSAN ELIZABETH FLETCHER牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� XXN MS BRATTEY

PN304

VICE PRESIDENT CATANZARITI: Well, we will need evidence, not what the agreement says. We will actually need evidence what is in the pay slips. One or other party has to provide the pay information. It is not useful to ask a witness about what an agreement means, you know, if the - how the witness is answering without the pay slips. If Blue Care is in the best position to provide that material, then it should do so. Is this witness available tomorrow morning?

PN305

MR McCARTHY: I'm not sure.

PN306

MS BRATTEY: We can certainly track down the pay slips, your Honour, this evening. Perhaps it's something that can be resolved between myself and Mr McCarthy before tomorrow morning.

PN307

VICE PRESIDENT CATANZARITI: Yes, well, that would be more useful rather than do it this way.

PN308

MS BRATTEY: Moving back to your statement, Ms Fletcher, one of the things being asked around is the additional duties that you're required to do as a registered nurse?‑‑‑Yes.

PN309

You state in your statement that additional duties for being in charge include doing regular and updating quarterly care plans?‑‑‑Not while I'm in charge. It's just my duties that I'd need to do and that is additional to what you're doing regularly as a shift. It might be part of your duties list, but it's an extra lot of work to do. That's part of the problem.

PN310

Okay. So your statement is not correct to the extent it says it's additional duties for being in charge. These are just additional - - -?‑‑‑That's probably not written very well, additional duties for being in charge. They're just additional duties.

PN311

Okay?‑‑‑But it's being an RN - - -

PN312

Yes, okay?‑‑‑That's probably the use of the words.

PN313

Thank you. Again at paragraph 8 then of your statement when you state you're required to attend meetings, issues and any events arising from the day, is it the case that's just additional duties as part and parcel - - -?‑‑‑That's just what may happen and you do it, yes.

***牋牋牋� SUSAN ELIZABETH FLETCHER牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� XXN MS BRATTEY

PN314

So that is again not for being in charge. That's just - - -?‑‑‑It's because you're the responsible person on duty. You're the responsible person. You're the only person. You will have to deal with whatever - it's the fire you've got to deal with; the fire. You've got to deal with a broken washing machine or dishwasher. If all the electricity goes down, you'll have to ring people and get it fixed, so, yes, it's part of what is required of you.

PN315

Okay. Thank you. Paragraph 12 of your statement; you're rostered to be on call once every fortnight?‑‑‑That is correct as of March, but I was on sick leave because I broke my leg, so - but at that point that is true. Then since I've returned in July - on 1 July - there is still an on call roster for all the other RNs, but I have not been included. That's fine, because that's what I was complaining about, anyway, but I have not been included on the on call roster since I returned.

PN316

So at the time that you were on the on call roster, you state that the remuneration was $30.91 for the time that you were on call?‑‑‑That's what I believed when I read the EB.

PN317

Okay. Have you done any on call at all?‑‑‑No, because I was first - the manager at the time told me that I would start in March because we had - well, three RNs had objected to being on call because we felt it was not appropriate for us to be on call. It was difficult to come to - like I've explained in here. So I was on sick leave from 14 March until 1 July, so I didn't end up being on call because of that reason.

PN318

Okay. So you haven't - - -?‑‑‑No, I had not, because I had said I was unable to be on call because I didn't agree with the way - the processes of it all.

PN319

Paragraph 19 of your statement, about meal breaks?‑‑‑Yes.

PN320

Is it the case that your shifts are rostered so that there is 30 minutes deducted from your roster arrangement for a meal break; so a 30‑minute unpaid meal break?‑‑‑Yes, that's right.

PN321

You state it's a rare occurrence for you to have a meal break. Do you put in for overtime for your meal breaks?‑‑‑Not for meal breaks, no. I put in for overtime if I go over my time at work, because - - -

PN322

Okay?‑‑‑And then I still haven't had my meal break. I still haven't had my meal break, but I don't put in overtime for my meal break. I didn't believe I would be paid if I put in overtime for my meal break.

***牋牋牋� SUSAN ELIZABETH FLETCHER牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� XXN MS BRATTEY

PN323

Okay?‑‑‑But I could put in overtime if I went past my finishing time.

PN324

So in terms of your meal break, you're aware that the enterprise agreement also sets out terms for your meal break time and, if you aren't getting your meal break, you should be paid for it?‑‑‑Okay. That's frequent - that's more than frequent.

PN325

Okay?‑‑‑That's pretty much all of the time. I'm quite happy to put in for my meal break overtime.

PN326

You weren't aware of - - -?‑‑‑Actually, no, and actually that isn't really the point. It's the workload that makes it so you don't get your meal break. The point of my statement is that the workloads are untenable really.

PN327

So you don't feel that you can take a meal break during your shift?‑‑‑I try.

PN328

You try?‑‑‑I try very hard, but if you read my statement, I talk about all the interruptions that you get.

PN329

Of course?‑‑‑You get phone calls - I mean, who has to take the phone calls. Even the receptionist, she has to pass them on because they're clinical or family asking questions.

PN330

Could somebody take a message for you when the phone comes through for you to call back, so that you do get a meal break?‑‑‑Hands on help - urgent - the person at the other end wants to speak to the RN on the floor about something. Maybe it's clinical. Maybe it's to do with their family member being sick.

PN331

But is there a possibility somebody could take the message for you?‑‑‑I guess so. There's always the possibility.

PN332

And answer the phone for you to - - -?‑‑‑I've still got to do it at some stage during my day.

PN333

Of course, but there's a time management part to you - - -?‑‑‑Yes. There's a time management, so you do prioritise, yes.

PN334

I have no further questions, your Honour. Thank you.

***牋牋牋� SUSAN ELIZABETH FLETCHER牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� XXN MS BRATTEY

PN335

VICE PRESIDENT CATANZARITI: Any re‑examination?

PN336

MR McCARTHY: Yes, just a couple of questions, your Honour.

PN337

VICE PRESIDENT CATANZARITI: Yes.

RE-EXAMINATION BY MR MCCARTHY牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.32 AM]

PN338

MR McCARTHY: Sue, it's Andrew McCarthy from the ANMF again?‑‑‑Yes.

PN339

I just had a couple of questions arising out of those questions you've just received?‑‑‑Yes.

PN340

Now, you said you do maintenance issues as part of your in charge role. Who would deal with maintenance issues if you were not in charge and you were a registered nurse on the floor?‑‑‑Well, I guess through the week there is the maintenance man who is there and he - most people may directly go to him, but the staff come to the person in charge of the shift, so it's usually - - -

PN341

Sorry, could you please repeat that last sentence?‑‑‑The staff who have got the problem usually come to the registered nurse on duty or the EN, so you're seen as the person - the go‑to person.

PN342

The senior registered nurse?‑‑‑Yes, yes.

PN343

Okay. If you were not the senior registered nurse - - -?‑‑‑Yes.

PN344

- - - would they come to you?‑‑‑Well, if there was - - -

PN345

For maintenance issues?‑‑‑If the manager was there, they would probably maybe take it to the manager.

***牋牋牋� SUSAN ELIZABETH FLETCHER牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 RXN MR MCCARTHY

PN346

Okay. Thank you. One more question. You said that you didn't believe you would be paid for meal breaks. Why was that?‑‑‑Well, I've always understood that that was an unpaid half hour, so that was - I've always called it my time. So, yes, I didn't know if you didn't have it that you could get paid for it. I have spent the last two and a bit years working through my meal breaks. I try not to. I try to go to my meal breaks, because you do need to do that, but if you do you still get phone calls, you still get staff wanting something or a resident is sick and you really do need to respond.

PN347

All right. Thank you, Sue. No further questions?‑‑‑Okay.

PN348

VICE PRESIDENT CATANZARITI: You're excused.

<THE WITNESS WITHDREW牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.34 AM]

PN349

VICE PRESIDENT CATANZARITI: We will take a short adjournment.

SHORT ADJOURNMENT牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.34 AM]

RESUMED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [12.03 PM]

PN350

VICE PRESIDENT CATANZARITI: Thank you. So, Mr McCarthy, that concludes your evidence and you'll have one witness tomorrow?

PN351

MR McCARTHY: That's correct, your Honour.

PN352

VICE PRESIDENT CATANZARITI: All right. Mr Boyce, we'll deal with the tendering of your statements.

PN353

MR BOYCE: Yes.

PN354

VICE PRESIDENT CATANZARITI: I take it that none of them require cross-examination?

PN355

MR BOYCE: That's correct. So the first one is Ms Kalina Jefferson, 26 July 2016.

PN356

VICE PRESIDENT CATANZARITI: Yes, I have that. We'll make that exhibit A.

EXHIBIT #A WITNESS STATEMENT OF KALINA JEFFERSON DATED 26/07/2016

PN357

MR BOYCE: The next one is Karen Foster, 25 July 2016.

***牋牋牋� SUSAN ELIZABETH FLETCHER牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 RXN MR MCCARTHY

PN358

VICE PRESIDENT CATANZARITI: Exhibit B.

EXHIBIT #B WITNESS STATEMENT OF KAREN FOSTER DATED 25/07/2016

PN359

MR BOYCE: Mark Douglas, 1 August 2016.

PN360

VICE PRESIDENT CATANZARITI: Exhibit C.

EXHIBIT #C WITNESS STATEMENT OF MARK DOUGLAS DATED 01/08/2017

PN361

MR BOYCE: Finally, John Favalora of 1 August 2016.

PN362

VICE PRESIDENT CATANZARITI: Exhibit D.

EXHIBIT #D WITNESS STATEMENT OF JOHN FAVALORA DATED 01/08/2017

PN363

MR BOYCE: That's - - -

PN364

VICE PRESIDENT CATANZARITI: That's the evidence in your case?

PN365

MR BOYCE: That's my evidence. I've just been asked and I'll just bring your attention to our submissions of 22 May 2017 which encapsulates our summary of opposition to the nurses' claims which are opposed by Aged Care employers.

PN366

VICE PRESIDENT CATANZARITI: Thank you, and that leads us to the Blue Care witness. Ms Brattey, you're calling Ms Rolfe?

PN367

MS BRATTEY: Sorry, I beg your pardon? Ready for McLaughlin-Rolfe?

PN368

VICE PRESIDENT CATANZARITI: Yes.

PN369

THE ASSOCIATE: I'll just ask you to state your full name and address for the record.

***牋牋牋� SUSAN ELIZABETH FLETCHER牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 RXN MR MCCARTHY

PN370

MS M McLAUGHLIN-ROLFE: I'm Maria McLaughlin-Rolfe, (address supplied).

<MARIA MCLAUGHLIN-ROLFE, SWORN牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [12.06 PM]

EXAMINATION-IN-CHIEF BY MS BRATTEY牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [12.06 PM]

PN371

MS BRATTEY: Ms McLaughlin, you have a copy of your statement in front of you that was signed and witnessed some time ago. Would you like to make a change to that statement?‑‑‑Yes, so in point 17 in relation to the on call rosters stating that it's related to the Metro South region, that's actually on behalf of Blue Care - so all of Blue Care, not just Metro South.

PN372

Blue Care Queensland?‑‑‑Yes, that's right.

PN373

Okay, so it's in connection to the fifth line down, "Metro South region", should be changed to, "Blue Care Queensland"?‑‑‑Yes, that's right.

PN374

One further point, at paragraph 18 of your statement you note that you've reviewed Ms Ball's rostering records and provide the following comments. Could I give you a copy of the roster arrangement that was tendered to the Commission over the weekend? A copy has already been provided to Ms Ball's representative. Can you confirm to the Commission that that's the roster that you looked at for the purposes of paragraph 18 of your statement?‑‑‑Yes, that's right.

PN375

Your Honour, we'd like to tender that as an exhibit to the statement, please.

PN376

VICE PRESIDENT CATANZARITI: Well, Ms Brattey, what I have in front of me is an email which was sent from cause indicating the statements attached and the statement had with it the exhibit. What I do note is that the statement does not have - it doesn't appear to be executed with the exhibit attached to it. That was sent to the Commission on 24 May 2017.

PN377

MS BRATTEY: I see.

PN378

VICE PRESIDENT CATANZARITI: Is that the document we're referring to?

PN379

MS BRATTEY: Your Honour, I have a copy of her signed statement in front of me. If that wasn't the one that was tendered then my apologies for that. We tender the witness statement signed and we seek leave to have a new exhibit attached to that statement as well.

***牋牋牋� MARIA MCLAUGHLIN-ROLFE牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� XN MS BRATTEY

PN380

VICE PRESIDENT CATANZARITI: Yes, that's what I've got. So just so we're clear on this, the document of 24 May 2017 has MMR1 attached to it but is unsigned and there is a second document you're also adding to it?

PN381

MS BRATTEY: Yes, please.

PN382

VICE PRESIDENT CATANZARITI: Yes. Can we have for the Commission's files then a signed version which incorporates both documents?

PN383

MS BRATTEY: Of course. I have no further questions for our witness. I seek to tender the statement as signed with the two exhibits.

PN384

VICE PRESIDENT CATANZARITI: Yes, I've just done that, exhibit 1.

EXHIBIT #1 WITNESS STATEMENT OF MARIA McLAUGHLIN-ROLFE DATED 24 MAY 2017

PN385

MS BRATTEY: Thank you.

PN386

MS DOUST: Your Honour, I had a couple of objections to that statement. They're just brief - it's paragraph 14, which is just an expression of the witness's opinion and in the nature of a submission.

PN387

VICE PRESIDENT CATANZARITI: Have you had a discussion, Ms Doust, with Ms Brattey about this statement?

PN388

MS DOUST: No, I'm sorry, I haven't. I just have the two objections, Vice President.

PN389

VICE PRESIDENT CATANZARITI: Yes - what is the second objection?

PN390

MS DOUST: At the first sentence in paragraph 17 - it's in the same nature. It's of the same nature.

PN391

VICE PRESIDENT CATANZARITI: Yes. What do you say about that, Ms Brattey?

***牋牋牋� MARIA MCLAUGHLIN-ROLFE牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� XN MS BRATTEY

PN392

MS BRATTEY: It certainly is an expression. It's an opinion that's given. It's perhaps less dealt with in the - it does seek to go to the heart of the submissions and perhaps that is the best place for it to be dealt with.

PN393

VICE PRESIDENT CATANZARITI: Yes, okay - I'll strike out paragraph 14 and the first sentence of paragraph 17. All right, who is going to ask questions of this witness?

PN394

MR McCARTHY: I will, your Honour.

CROSS-EXAMINATION BY MR MCCARTHY牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [12.12 PM]

PN395

MR McCARTHY: Ms McLaughlin-Rolfe, it's Andrew McCarthy from the Australian Nursing Midwifery Federation. Can you hear me?‑‑‑Yes, I can, thanks.

PN396

Okay, I'm just going to ask you a few questions on your statement?‑‑‑Sure.

PN397

Now, in paragraph 6 of your statement you say: "Additional duties for nurses in charge can include organising replacement staff." You see that?‑‑‑Yes.

PN398

Yes, okay - it's not uncommon for staff to call in to say they cannot attend work, is it?‑‑‑That's correct, yes.

PN399

If you're the person trying to replace staff, it would be the case that potential replacements will sometimes not answer their phones, correct?‑‑‑Yes.

PN400

Those potential replacements may take some time to respond to any messages they receive, correct?‑‑‑They could, yes.

PN401

If you're the person trying to replace staff, sometimes you'd have to call an agency to obtain a replacement, is that right?‑‑‑Yes.

PN402

Okay. Now, in paragraph 7(a) you talk about maintenance staff performing maintenance-related tasks. Now, if I said maintenance workers work on the premises at Wirunya, their hours at the premises would be about 5.30 am to 1 pm. Does that sound about right?‑‑‑I'm not aware of the hours they work at Wirunya. It's usually the day-time hours.

PN403

So ordinary business hours?‑‑‑I don't know exactly the hours that they work.

***牋牋牋� MARIA MCLAUGHLIN-ROLFE牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 XXN MR MCCARTHY

PN404

Okay?‑‑‑But it is predominantly through the day-time hours.

PN405

Okay. Now, in 7(b) and (c) you refer to ordinary business hours. What times do you mean by that?‑‑‑Usually ordinary business hours can be anywhere between 8 am and 5 pm.

PN406

Okay, thank you. In 7(b) you talk about managers not being physically present on site. How many facilities does a manager manage?‑‑‑So for - it varies across our services so in this case for the Logan River Valley, which Wirunya is attached to, the manager manages three facilities within a geographical location.

PN407

Okay, thank you. And it's correct, isn't it, that a manager may not be immediately contactable?‑‑‑No. Managers are contactable at all times. So they have communication devices with them, so they are available. And if - yes, so they are available.

PN408

I put it to you there will be times when a manager will not be able to answer their phone when called by the nurse in charge because they will be dealing with other issues?‑‑‑We've got a practice in place that if managers are in meetings or in other things, that they actually will text the manager so that they can actually see those requests if it's urgent or anything, so they can actually respond.

PN409

Okay?‑‑‑Because managers will hold their phones on them at all times.

PN410

In 7(d) you say that:

PN411

The performance of these additional tasks is incidental to the nurse's normal duties, and a small component of all duties they actually perform.

PN412

You don't really know how much time is spent on these additional duties by particular nurses in particular workplaces, do you?‑‑‑No, I probably don't know exactly the amount, but there are other processes in place that support some of these other duties that are stated. Did you want me to add to that?

***牋牋牋� MARIA MCLAUGHLIN-ROLFE牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 XXN MR MCCARTHY

PN413

I put it to you that there's a significant amount of time spent by nurses in charge doing these additional duties?‑‑‑Well, in all of our facilities the nurses that are in charge have access to a manager at all times, and that is 24/7, so the manager is always available for them. In relation to our maintenance, we actually have a 24-hour property line, so it would just involve a phone call. So as I said, those supports that are available 24/7 for people who would be deemed in charge of a shift.

PN414

Thank you. I just want to move to the comments about excessive on call, so paragraph 17. Your Honour, I would like to put a document before the witness.

PN415

VICE PRESIDENT CATANZARITI: Have we already got that in Queensland?

PN416

MR McCARTHY: Yes. My colleague in the room there, Ms Rowsell, has two copies of a document there that - she could provide that to the witness and to the Minister's representative.

PN417

Has the document been provided to you, Ms McLaughlin-Rolfe?‑‑‑Yes, it has, thank you.

PN418

Is that document headed Residential On Call Roster?‑‑‑Yes, it is.

PN419

And that document, in the first sentence, refers to Lynette Harding and Blue Care?‑‑‑That's right, yes.

PN420

Ms Harding used to work for Blue Care. Is that right?‑‑‑That's right.

PN421

She was a manager?‑‑‑She was. She no longer works for Blue Care.

PN422

That document is of four pages, with a calendar on each page?‑‑‑Yes.

PN423

Dated from December 2016 to March 2017?‑‑‑Mm‑hm.

PN424

Each date has one name next to it. Is that right?‑‑‑That's right.

PN425

Do you recognise the names of the people in the document?‑‑‑Not all of them. I know of some of them.

PN426

I put to you that those are names of employees at Blue Care?‑‑‑Yes.

PN427

Cherise would be Cherise Matthews. That's correct?‑‑‑Yes, I assume so.

***牋牋牋� MARIA MCLAUGHLIN-ROLFE牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 XXN MR MCCARTHY

PN428

And Sue F would be Sue Fletcher?‑‑‑Okay.

PN429

Do you agree?‑‑‑Yes, I suppose. That's what I'm looking at.

PN430

The names of the people in the document refer to registered nurses, don't they?‑‑‑Well, yes. That's what the on call roster is meant to list.

PN431

Thank you. Would you agree that the people in the roster are on call in relation to three facilities when they are on call?‑‑‑Yes, that's right.

PN432

Which facilities would those be?‑‑‑So that would be Wirunya, Bethania and Yurana.

PN433

Would you agree that this is a fairly ordinary on call roster put out in relation to these three facilities - fairly typical roster?‑‑‑I've also seen other rosters that were later which are different to these rosters.

PN434

Would you agree ‑ ‑ ‑ ?‑‑‑In relation to the make-up.

PN435

Sorry?‑‑‑Just in relation to the make-up.

PN436

Okay. So different names?‑‑‑Yes.

PN437

Would you agree that the on call hours for these three facilities were from 4 pm to 6 am on weekdays?‑‑‑So once again, so that can vary according to when managers are on site and when they leave the facilities; also when other clinical staff might be leaving. So that start time could actually vary, as well as the end time, according to when registered nurses come on for the next morning.

PN438

So could vary in relation to these three facilities, or are you talking about facilities more generally?‑‑‑This roster is only specific for these three facilities; other facilities have different rostering arrangements. But here it really does depend on a day to day basis as to when clinical staff finish up for the day, as well as when they start in the day for these three facilities.

***牋牋牋� MARIA MCLAUGHLIN-ROLFE牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 XXN MR MCCARTHY

PN439

Would you agree that in relation to the weekend shifts there, the on call hours, subject to what you've just said, would be approximately 4 pm Friday afternoon to 6 am Monday morning?‑‑‑For the people doing the weekend, do you mean? On call for the weekend?

PN440

Yes, that's right?‑‑‑So on these rosters it is stating that the same person is doing Saturday and Sunday, so that would be for - could you just repeat that for me, please.

PN441

Yes, sure. I said basically late afternoon Friday - I said 4 pm - to early Monday morning, and I said 6 am. Would that be broadly the time that those nurses are on call if they're on a weekend?‑‑‑Not for that 48-hour period because registered staff would be working through, particularly the morning shifts. So it would actually take into account when there's no registered staff on shift across that period. So it doesn't necessarily mean that they would be on call all of that time, but on call would kick in in the hours that a registered staff wasn't on site, because there are managers on call as well across this time.

PN442

I'm just going to run through some names?‑‑‑Sure.

PN443

1 December is Suzanne?‑‑‑Mm‑hm.

PN444

Hopefully this won't take too long. Would you agree that Suzanne's name is mentioned nine times in that document? I can point you to the dates?‑‑‑Across the whole document?

PN445

Across the whole document. If you can quickly skim it, if that's possible?‑‑‑Yes, that would be right.

PN446

That's right? Okay. Would you agree that Jenny's name is mentioned 12 times?‑‑‑Yes.

PN447

I will just go to the ANMF witnesses. Would you agree that Cherise is mentioned five times?

PN448

VICE PRESIDENT CATANZARITI: I must say, I'm having trouble finding five times for Cherise.

PN449

MR McCARTHY: I can give you the dates for Cherise if that's easier.

PN450

VICE PRESIDENT CATANZARITI: Yes, you better do so.

***牋牋牋� MARIA MCLAUGHLIN-ROLFE牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 XXN MR MCCARTHY

PN451

MR McCARTHY: 13 January - sorry, 13 December; 17 January.

PN452

VICE PRESIDENT CATANZARITI: 17 January?

PN453

MR McCARTHY: 17 January; 9 February; 21 February and 14 March.

PN454

VICE PRESIDENT CATANZARITI: Okay.

PN455

MR McCARTHY: Would you agree Cherise is there five times, Ms McLaughlin-Rolfe?‑‑‑Sorry, I thought you were asking the other person. Yes. I've counted those, yes.

PN456

Just one more, I promise.

PN457

VICE PRESIDENT CATANZARITI: Why don't you just give the dates. It might go faster.

PN458

MR McCARTHY: Yes, okay. I'm just going to point out Esther. Esther is 16 to 18 December; 30 to 31 December, that's five?‑‑‑Yes, I can see all of Esther's.

PN459

1 to 2 January, that's seven; 20 to 22 January, that's 10; 17 to 19 February, that's 13; and 17 to 19 March, that's 16. You would agree that adds up to 16?‑‑‑Yes.

PN460

Would you agree that those RNs who are rostered on for Saturday are also rostered on for Sunday and Friday?‑‑‑For on call?

PN461

For on call, yes?‑‑‑Yes. For on call, yes.

PN462

For on call, yes. Would you agree that a lot of the nurses who are on call for the weekend - sorry, who are on call - would also be working the same day at the facility?‑‑‑I don't know. I haven't seen the rosters to see who's actually working on the weekend, so I can't confirm that. Sorry, I don't know that information, to know whether they are rostered through the days as well.

PN463

Sure. Okay. But they will be working - obviously they will be working some days?‑‑‑They will be working some days across the week, definitely.

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PN464

I don't want to go through every single person here, although I think Mr Boyce wants me to.

PN465

VICE PRESIDENT CATANZARITI: I think if your proposition, Mr McCarthy, is that in fact whilst the witness originally said in answer to one of your questions that they wouldn't be on for the full period; if they are in fact working as a real worker, if you like, and on call, it is important the Bench understands that for that period. So what Mr Boyce is perhaps suggesting, ought to happen.

PN466

MR McCARTHY: That I go through each one?

PN467

VICE PRESIDENT CATANZARITI: You go through each one. Because the witness has given an answer saying, as I recollect, that they wouldn't be working through. And it is quite significant evidence, on one view.

PN468

MR McCARTHY: Sorry, I'm not quite sure I fully understand. I could go through each person and say how many days that they are on call if that's necessary.

PN469

VICE PRESIDENT CATANZARITI: There was a question and answer earlier on where the witness said - taking Jenny for an example, right - that Jenny would not be working from 4 pm on Friday right through till Monday morning. If you're suggesting that in in addition to the on call, they're actually at the facility working, we need to understand that.

PN470

MR McCARTHY: No, I'm not. I'm not suggesting that.

PN471

VICE PRESIDENT CATANZARITI: Then we should clear that up. When are they actually working, is the question.

PN472

MR McCARTHY: If I'm getting the issue correct, Ms McLaughlin-Rolfe, in relation to Jenny, who is listed as being on call on 2 to 4 December?‑‑‑Yes.

PN473

She's on call. She would not be working in the facility on those days, would she?‑‑‑Not necessarily. I'm not sure. I would have to know her roster, but she may not be.

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PN474

You said earlier that - I think you agreed with me earlier that the people who are on call on the weekend are on call from late Friday to early Monday, subject to the clinical coverage at the facility. Is that right?‑‑‑That's right.

PN475

Right?‑‑‑?‑‑‑Yes, that's right.

PN476

So at least on the Saturday they would not be working. Is that correct?‑‑‑(No audible reply)

PN477

Is that right, Saturday? Yes, so they wouldn't be working on the Saturday. They would be on call but they wouldn't be working. Is that correct?‑‑‑Well, I don't know, because the rosters - well, how can I say? The rosters are actually rotational, so people actually work lots of different days through the week, so I'm not sure. There could be some days that they could be working on that Saturday; there would be other days that they may not be, so - across the weekends, that is. We don't have regular staff who only work weekends. Our staff actually work across all shifts across the week. So in relation to these days, I don't know whether they would be working on that Saturday or Sunday in addition to also being on call. I don't know unless I went back to the actual rosters to see.

PN478

Okay, so you don't know.

PN479

VICE PRESIDENT CATANZARITI: That's the difficulty that I'm having, speaking for myself.

PN480

MR McCARTHY: There is another significance to this roster, I submit, so I might ask a question of the witness.

PN481

Ms McLaughlin-Rolfe, I put it to you that this roster - under this roster the RNs are rostered on for between five and 16 on call shifts over this four-month period. Would you agree? Does that sound about right from what you've looked at so far?‑‑‑Did you say five to 16?

PN482

Yes. Yes, that's right, between five and 16. So we've gone - Cherise had five; we agreed that Esther had 16; we agreed that Suzanne was nine; we agreed that Jenny was 12. So on that basis would you agree that registered nurses in that four-month period are rostered on for between five and 16 on call shifts?‑‑‑From those figures, yes.

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PN483

Yes?‑‑‑Some of those - can I say something else? Some actual nurses also request to be on call. So they actually make requests, so they will actually put their requests in, as to when they actually would like to do the on call shifts as well. So that's why you will see some of them are doing more than others.

PN484

Okay, but just in relation to that point. I have calculated that there 13 people on that roster, and the average - if you divide up all the days by the number of people, the average is 9.3 per person over four months. Does that sound about right to you, that they would have done about nine shifts - on call shifts - rostered for nine on call shifts in four months?‑‑‑If that's what these rosters are saying, that's for this particular area, then yes, if that's the figures that you've worked out, I'm sure that's right, if that's the case. What did you say, nine point - 9.3, okay.

PN485

Just moving on from that roster ‑ ‑ ‑

PN486

VICE PRESIDENT CATANZARITI: Are you tendering this document?

PN487

MR McCARTHY: Yes. Yes, I am, sorry.

PN488

VICE PRESIDENT CATANZARITI: ANMF6.

EXHIBIT #ANMF6 ON CALL ROSTER DATED DECEMBER 2016 - MARCH 2017

PN489

MR McCARTHY: Just a few more questions relating to meal breaks. In paragraphs 28 and 29 of your statement you say:

PN490

A meal break is to be taken at a time not to affect the continuity of work.

PN491

And you cross-reference the Blue Care enterprise agreement. That's correct, isn't it?‑‑‑That's right, yes.

PN492

And you say that, "The scheduling of meal breaks" - in 30 - sorry, 29:

PN493

The scheduling of meal breaks differs depending on the facility in question. The timing of the meal break depends on a variety of factors.

PN494

In other words, there's no set time to take a meal break, is there?‑‑‑No. It's at the discretion of the staff according to the care needs across the facility. But it is the expectation that staff do take a meal break.

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PN495

In the next page, in paragraph 30(b): if a nurse was dealing with a particular resident, you wouldn't expect them to leave the resident mid-task to take their meal break, would you?‑‑‑No. That's where we talk about taking a break in relation to when it is mutually convenient for what care activities were happening at the time.

PN496

I'm not sure if you've got the agreement in front of you, but to your knowledge the agreement doesn't specify that the actual timing be decided or agreed between employee and manager, does it?‑‑‑You mean the exact time that they take a break?

PN497

That's right?‑‑‑No. No, that's really - I mean, the manager, when they're on site, would work with the employees in relation to their break times. When they're off site it's actually up to the staff to take that at a time that's going to be convenient, that's not going to interrupt those care requirements. So if they were in the middle of a care, no, they wouldn't be going off and taking it mid-care.

PN498

I put it to you that there are no actual - unless the manager is on site, I put it to you that there are no actual discussions between the facility managers and nurses setting a time when the meal break will occur on a particular day?‑‑‑No, not in relation to setting a time. However, managers and staff are regularly communicating about the requirement to take meal breaks. So the expectation is that all staff will take a meal break.

PN499

But an expectation doesn't mean that they're taking the meal break, does it?‑‑‑Well, it's up to the staff members to actually take those meal breaks. I mean, we can't force people to take meal breaks. However, we understand the relevance meal breaks for fatigue management, et cetera, and they need to take some time out. So we very much encourage and request that staff do take their meal breaks. But we can't force people to take meal breaks, obviously.

PN500

You personally don't really know whether or when particular employees are taking breaks, do you?‑‑‑I don't work in the facility, so the advice that I've just been given is from the managers of these facilities.

PN501

I don't have any further questions, your Honour.

PN502

VICE PRESIDENT CATANZARITI: Thank you. Any questions from you, Ms Doust?

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PN503

MS DOUST: Yes, I did, Vice President. Unfortunately the volume has dropped very low again.

PN504

VICE PRESIDENT CATANZARITI: We will just see what we can do about that.

PN505

MS DOUST: I can hear you better now, Vice President. Just a couple of matters.

PN506

VICE PRESIDENT CATANZARITI: Yes. Go on, Ms Doust.

CROSS-EXAMINATION BY MS DOUST牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [12.38 PM]

PN507

MS DOUST: Ms McLaughlin-Rolfe, my name is Ms Doust. I appear for the HSU in this matter. I just have a couple of questions for you?‑‑‑Sure.

PN508

Thank you?‑‑‑Can you hear me all right?

PN509

Yes, I can hear Brisbane fine. It was just Melbourne that was the problem. Earlier on when Mr McCarthy was asking you some questions about Ms Matthews and the manager on call you said that the manager on call was in charge of three facilities, and you named them. Is that manager also in charge of - is it Care in the Community services that are provided by your organisation?‑‑‑No, not that manager.

PN510

All right, but some ‑ ‑ ‑ ?‑‑‑She's only responsible for the residential facilities in that area.

PN511

Is that a responsibility that some other of your managers have in some circumstances?‑‑‑All of our integrated services have different arrangements according to the types of services they have within their geographic area. So yes, some do have a mix.

PN512

Can I just ask you just to go ahead, then, to paragraph 17, if you don't mind. In terms of your calculation of the average on call requirement, did you count covering an entire weekend from Friday through to Monday as a single shift?‑‑‑From Friday - no, each instance of on call, we - so each day is considered a separate instance of on call.

***牋牋牋� MARIA MCLAUGHLIN-ROLFE牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 XXN MS DOUST

PN513

Yes. Can I ask you, in that calculation did you have a large number of nurses that were - did you have a high turnover of nurses during the period that you looked at?‑‑‑Probably I can't give you an answer to that, because we pulled this out of the payroll system, so that doesn't show me nurse turnover or anything relating to that, sorry.

PN514

Did you look at the range of numbers of on call shifts that were worked during the course of a year, or you just got that single average number?‑‑‑We looked at - so it was a period of time - I will have to go back and remind myself of the period - but that was a 12-month period that we pulled out the data of on call activities from our payroll system across Blue Care Services Queensland.

PN515

Did you do any analysis to see whether the on call duties were being disproportionately carried out by some members of the staff?‑‑‑No, I didn't.

PN516

All right. So in terms of the distribution of the on call duties across the nurses, you're not in any position to really comment on that?‑‑‑No.

PN517

Thank you. They are my only questions.

PN518

VICE PRESIDENT CATANZARITI: Thank you. Any re‑examination?

PN519

MR McCARTHY: No.

PN520

VICE PRESIDENT CATANZARITI: Thank you. You're excused.

<THE WITNESS WITHDREW牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [12.42 PM]

PN521

VICE PRESIDENT CATANZARITI: That concludes the evidence for today?

PN522

MR BOYCE: Yes, for me it does.

PN523

MR McCARTHY: Yes, your Honour.

PN524

VICE PRESIDENT CATANZARITI: Anything further we need to deal with today?

PN525

MR BOYCE: There was the issue about the timetable. For my part I'm prepared to just go along with whatever. If there's a more condensed timetable, that's ‑ ‑ ‑

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PN526

VICE PRESIDENT CATANZARITI: I was hoping the parties could actually agree to it, rather than being imposed - have a discussion between now and tomorrow.

PN527

MR BOYCE: Yes, that's fine, your Honour.

PN528

VICE PRESIDENT CATANZARITI: All right. Then we will adjourn until 9.30 tomorrow morning. Thank you.

ADJOURNED UNTIL TUESDAY, 28 NOVEMBER 2017 牋牋牋牋牋� [12.42 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ANMF1 STATEMENT OF SONIA LE COMPTE DATED 25/02/2017 PN135

EXHIBIT #ANMF2 STATEMENT OF SHERRELLE FOX DATED 27/02/2017 PN137

EXHIBIT #ANMF3 STATEMENT OF DREW DAWSON AND JESSICA PATTERSON DATED 16 AND 17/03/2017................................................................................. PN139

CHERISE NICOLE MATTHEWS, SWORN.................................................... PN146

EXAMINATION-IN-CHIEF BY MR MCCARTHY....................................... PN146

EXHIBIT #ANMF4 WITNESS STATEMENT OF CHERISE MATTHEWS DATED 23/02/2017................................................................................................................................. PN153

CROSS-EXAMINATION BY MS BRATTEY.................................................. PN155

THE WITNESS WITHDREW............................................................................ PN242

SUSAN ELIZABETH FLETCHER, AFFIRMED............................................ PN245

EXAMINATION-IN-CHIEF BY MR MCCARTHY....................................... PN245

EXHIBIT #ANMF5 STATEMENT OF SUSAN FLETCHER DATED 27/02/2017 PN262

CROSS-EXAMINATION BY MS BRATTEY.................................................. PN263

RE-EXAMINATION BY MR MCCARTHY.................................................... PN337

THE WITNESS WITHDREW............................................................................ PN348

EXHIBIT #A WITNESS STATEMENT OF KALINA JEFFERSON DATED 26/07/2016牋 PN356

EXHIBIT #B WITNESS STATEMENT OF KAREN FOSTER DATED 25/07/2016 PN358

EXHIBIT #C WITNESS STATEMENT OF MARK DOUGLAS DATED 01/08/2017牋牋牋牋� PN360

EXHIBIT #D WITNESS STATEMENT OF JOHN FAVALORA DATED 01/08/2017牋牋牋牋 PN362

MARIA MCLAUGHLIN-ROLFE, SWORN..................................................... PN370

EXAMINATION-IN-CHIEF BY MS BRATTEY............................................. PN370

EXHIBIT #1 WITNESS STATEMENT OF MARIA MCLAUGHLIN-ROLFE DATED 24 MAY 2017......................................................................................................................... PN384

CROSS-EXAMINATION BY MR MCCARTHY............................................ PN394

EXHIBIT #ANMF6 ON CALL ROSTER DATED DECEMBER 2016 - MARCH 2017牋牋牋 PN488

CROSS-EXAMINATION BY MS DOUST........................................................ PN506

THE WITNESS WITHDREW............................................................................ PN520

Fair Work Commission Transcripts

AM2016/31, Transcript of Proceedings [2017] FWCTrans 531 (15 December 2017)