JUSTICE ROSS: Can I just deal with some housekeeping matters. We received correspondence from Mr Pegg indicated the parts of Mr Moody's statement that are not read. We'll mark that as exhibit NDS3.

EXHIBIT #NDS3 PARTS OF DAVID MOODY’S STATEMENT NOT READ

PN1915

JUSTICE ROSS: We've received an email from Mr Robson, confirming that Mr Smith is happy to have his statement dealt with as a submission. On that basis, we assume he's not required for cross-examination.

PN1916

MR BULL: No.

PN1917

JUSTICE ROSS: As I understand it, the schedule for today would be now dealing with objections to evidence. We've received correspondence from Ai Group, setting out it's objections to Dr Stanford's evidence. Then the witnesses would be Mr Miller, at 11.15, or the first witness, in any event, then Dr Stanford following him. Then this afternoon Darren Mathewson, at 2, and then Mr Wright at 2.30.

PN1918

We've also received a document from Ai Group, the parties discussions regarding directions, et cetera. We note the agreement that the proceedings presently listed for the 21st to the 23rd be vacated, we'll do that.

PN1919

Regarding the request for a conference to do with the 24 hour care issue, that matter will be discussed with the parties, by Lee C, when we adjourn, immediately after we adjourn the evidence today.

PN1920

In relation to the directions, I probably haven't made my position clear, in relation to it, but the direction for parties to file the material at A, B, C and D, that's going to be done before we issue a background paper. Because the background paper would then refer to that material and have a complete list of all the submissions filed and all the evidence and witnesses, et cetera.

PN1921

So I take it, and I put this as a question and the parties can - you can confer, at some time during the day, but it was originally proposed that those outlines of submissions would be filed within four weeks of the publication of a background paper. So I'm assuming it could be filed within four weeks of the conclusion of tomorrow's proceedings.

PN1922

Once I know when that's filed, I can let you know when the background paper will be released. So if you can give some thought to that. When are you going to be able to file the material A through to D.

PN1923

MR BULL: Your Honour, just in relation to the agreed tenders, we've circulated to the parties, (indistinct) I can hand up.

PN1924

JUSTICE ROSS: Does everybody have a similar document? This is material that's not in the court book that you wanted to tender?

PN1925

MR BULL: There's only one statement. Well, there's another statement, the amended statement of Melissa Coad, which is not objected to now. I've also got a copy for each member of the Full Bench and my friends also have a copy of this statement.

PN1926

JUSTICE ROSS: So you're proposing to - - -

PN1927

MR BULL: We can provide it by email - - -

PN1928

JUSTICE ROSS: Yes, to tender the copy of - - -

PN1929

MR BULL: (Indistinct) statement, as amended.

PN1930

JUSTICE ROSS: - - - the statement of Melissa Coad, dated 12 October, as exhibit UV7, any objection? No. We'll mark that as exhibit UV7.

EXHIBIT #UV7 STATEMENT OF MELISSA COAD DATED 16/09/2019

PN1931

JUSTICE ROSS: Where will we find the statement of Jared Marks?

PN1932

MR BULL: There's a fuller one in the court book, which is 4720.

PN1933

JUSTICE ROSS: Well, we can just mark this one page document as exhibit UV8, and it notes, as did Mr Pegg's, which paragraph of Mr Marks' statement are not to be read.

EXHIBIT #UV8 STATEMENT OF JARED MARKS DATED 03/10/2019

PN1934

JUSTICE ROSS: Did anyone else want to tender anything that's not in the court book? No?

PN1935

MR ROBSON: We will, but we're still discussing objections to evidence, so hopefully this afternoon we'll be able to give you a list.

PN1936

JUSTICE ROSS: That's fine. Did you want to deal with your amended claim?

PN1937

MR SCOTT: I'm happy to.

PN1938

JUSTICE ROSS: Did you have a discussion with them?

PN1939

MR SCOTT: It was a brief discussion and I might let my friends deal with the union's position in relation to it. I'm happy to address the Bench on the amended claim, but my understanding was the Bench posed whether there was any objections and we're waiting to hear back, in relation to that.

PN1940

JUSTICE ROSS: All right. Are there any objections to the amended claim?

PN1941

MS DOUST: No, your Honour. We can deal with the determination, we're obviously not consenting to it, but in a position to argue it.

PN1942

JUSTICE ROSS: Yes, I understand that. Yes, yes. All right, if you can file it and we'll grant leave to you to amend the claim.

PN1943

MR SCOTT: Thank you, your Honour. It has been filed electronically.

PN1944

JUSTICE ROSS: All right. In terms of the objections to the evidence, which - how do you want to deal with that?

PN1945

MR FERGUSON: Well, I think there was a proposal to slightly change the timetable and deal with Mr Miller first, given that he's here in the room, he's waiting.

PN1946

JUSTICE ROSS: So you want to deal with Mr Miller now?

PN1947

MR FERGUSON: Yes.

PN1948

JUSTICE ROSS: Is there any objections to his statement?

PN1949

MS DOUST: Yes, there are, your Honour. I think - - -

PN1950

JUSTICE ROSS: Have you had the discussion with the other side?

PN1951

MS DOUST: Yes. I've - the other side's been notified of the objections, that's (indistinct). We had some discussion yesterday and I didn't receive a - well, can I just say, our discussions didn't result in any resolution of the matter. Does the Bench have copies of my schedule of objections to the material?

PN1952

JUSTICE ROSS: I don't. I don't.

PN1953

MS DOUST: I thought I handed them up at some stage. If you'll just bear with me for a moment.

PN1954

JUSTICE ROSS: Is it paragraphs 28, 29, 30?

PN1955

MS DOUST: Sorry, 26, 28 and 29.

PN1956

JUSTICE ROSS: Twenty-six?

PN1957

MS DOUST: Twenty-eight and 29.

PN1958

JUSTICE ROSS: Twenty-eight and 29, okay.

PN1959

MS DOUST: Can I just illustrate the objections, which are on the basis that they're opinions, without the factual basis being disclosed, by asking the members of the Bench to go to paragraph 25 first? There's a reference there - - -

PN1960

JUSTICE ROSS: The breakdown of the spread of hours, yes.

PN1961

MS DOUST: There's a breakdown across 10 facilities, approximately 40 customers, and the spread of hours approved in the relevant SIL quotes from the NDIS.

PN1962

JUSTICE ROSS: Yes?

PN1963

MS DOUST: What's then produced is some material about the average workers required per hour.

PN1964

JUSTICE ROSS: Yes.

PN1965

MS DOUST: And then what follows, at 26 and so on, is references to average appointment lengths in the morning or in the evening. And we say what's provided in the table - - -

PN1966

JUSTICE ROSS: Doesn't support the assertions in the - - -

PN1967

MS DOUST: - - - isn't any - yes. So it's an opinion which hasn't exposed the facts upon which it's based.

PN1968

JUSTICE ROSS: The basis rule is not an exclusory rule, it's a rule as to weight.

PN1969

MS DOUST: Yes. We say, in these circumstances, it really does render the material opaque and very difficult for us to grapple with, if no facts supporting those conclusions are disclosed.

PN1970

JUSTICE ROSS: Sure. We don't propose to delete the material or uphold the objection. It can be dealt with in one of two ways. Either in cross‑examination the witness can be asked as to factual basis, but I accept that's often a course that you're not going to want to do.

PN1971

MS DOUST: Yes.

PN1972

JUSTICE ROSS: But, secondly, it does appear that the statements in those paragraphs don't derive their basis from the material that appears above.

PN1973

MS DOUST: Yes.

PN1974

JUSTICE ROSS: To the extent that the basis is not disclosed, we would propose to give that material very little weight.

PN1975

MS DOUST: If it please the Commission.

PN1976

JUSTICE ROSS: All right. Will we deal with Mr Miller? Is Mr Miller NDIS's witness?

PN1977

MR PEGG: NDS.

PN1978

JUSTICE ROSS: NDS's witness, sorry. Mr Pegg, you can deal with the question of weight we should apply to the objected paragraphs in the course of your submissions when we come to that. Okay? It's just at the moment on the material we have before us, that would be our inclination.

PN1979

THE ASSOCIATE: Mr Miller, please state your full name and address.

PN1980

MR MILLER: Steven Miller, (address supplied).

<STEVEN MILLER, AFFIRMED [11.17 AM]

EXAMINATION-IN-CHIEF BY MR PEGG [11.17 AM]

PN1981

MR PEGG: Mr Miller, it's Michael Pegg from NDS. Can you hear me okay?‑‑‑Yes, Michael, I can.

PN1982

Just for the record can you confirm your name, please?‑‑‑Steven Miller.

PN1983

And your occupation?‑‑‑I'm head of operations for service delivery and Endeavour Foundation.

PN1984

Have you prepared a statement dated 28 June 2019?‑‑‑Yes, I have.

PN1985

Do you have a copy of that with you?‑‑‑I do indeed, yes.

PN1986

Is that statement true and correct to the best of your knowledge?‑‑‑Yes, it is.

PN1987

Thank you.

PN1988

JUSTICE ROSS: If you tender the statement, I'll mark the statement as exhibit NDS2.

*** STEVEN MILLER XN MR PEGG

EXHIBIT #NDS2 STATEMENT OF STEVEN MILLER DATED 28/06/2019

PN1989

JUSTICE ROSS: Ms Doust?

PN1990

MS DOUST: Mr Robson, I understand, has questions.

PN1991

JUSTICE ROSS: Yes.

CROSS-EXAMINATION BY MR ROBSON [11.18 AM]

PN1992

MR ROBSON: Mr Miller, can you hear me?‑‑‑Yes, I can.

PN1993

Thank you. My name is Michael Robson. I'm an industrial officer from the Australian Services Union. I'm going to ask you some questions. Do you have a copy of the Endeavour Annual Report 2017‑2018?‑‑‑I've got a few reports here. Yes, I do.

PN1994

Excellent. Can I ask if the Bench has got copies?

PN1995

JUSTICE ROSS: I did have. Just bear with me for a moment. Yes, there are two documents. Is that right, Mr Robson?

PN1996

MR ROBSON: Yes.

PN1997

JUSTICE ROSS: Financial report for the year ended 30 June 2018 and the annual report for 2017‑2018?

PN1998

MR ROBSON: Yes, but I think I'll only use the annual report.

PN1999

JUSTICE ROSS: All right.

PN2000

MR ROBSON: Mr Miller, can you go to page 44 of the report?‑‑‑Yes.

PN2001

On that page there is a five‑year summary of financial performance?‑‑‑Correct.

*** STEVEN MILLER XXN MR ROBSON

PN2002

What was the organisation's annual turnover in 2018?‑‑‑(No audible reply.)

PN2003

Or, should I say, operating revenues?‑‑‑286,669.

PN2004

Has that increased each year since 2014?‑‑‑Since 2014? Yes, it has.

PN2005

Sorry, that's millions. Is that correct?‑‑‑That's correct.

PN2006

In 2018, the company made a 2,419,000‑dollar profit?‑‑‑That's what I see, yes.

PN2007

Yes. There have been surpluses each year since 2014?‑‑‑Operating surplus, I see a deficit in 2016.

PN2008

Of course, but a net surplus that year, as well?‑‑‑Yes.

PN2009

In 2017, there is a net surplus despite the company having to refund $4,740,000 in the salary packaging fee?‑‑‑From this information that's what I see, yes.

PN2010

Yes. Again looking at the summary of the financial position, in 2018 the company's total liabilities were 51,464,000?‑‑‑That's what I read, yes.

PN2011

What were the total assets?‑‑‑The total assets, 176,389,000.

PN2012

What were the net assets of the company?‑‑‑Net assets, 124,925,000.

PN2013

Just taking you to page 2 of the document, the company raised roughly $30 million in 2017‑2018. Sorry, no. Apologies. The second page of the document - it's un‑numbered. Other side of the cover page?‑‑‑Yes.

PN2014

Apologies for that?‑‑‑That's okay. Sorry, what was the question?

PN2015

The company raised $30 million, roughly, in 2017‑2018?‑‑‑That's what I see down the bottom left‑hand corner.

*** STEVEN MILLER XXN MR ROBSON

PN2016

Endeavour has a number of different areas of operation. It provides supported employment services, it runs disability services including individual supports, group supports?‑‑‑Correct.

PN2017

It also runs a lottery?‑‑‑Correct.

PN2018

It also runs disability employment services?‑‑‑Yes, we do, in supported employment.

PN2019

So the organisation is fairly diverse?‑‑‑Correct, yes.

PN2020

Has it been growing?

PN2021

JUSTICE ROSS: In what sense?

PN2022

MR ROBSON: In your experience has the company been growing in the number of services it provides?‑‑‑I can only really comment - my area of operations is within the national disability and insurance scheme services. They are the only services that my team handles and I would have to say we have grown in that sphere, but we only fully transitioned into that service on 31 July this year. It was with our last client transition. That growth, for me, has predominantly been through the organic transition of customers from block‑funded services into the NDIS.

PN2023

Of course. Thank you. Can I take you to paragraph 41 of your statement.

PN2024

MS DOUST: Are you going to tender that?

PN2025

MR ROBSON: Sorry, I tender that, your Honour.

PN2026

JUSTICE ROSS: I'll mark the annual report of the Endeavour Foundation for 2017‑2018 as exhibit ASU3.

EXHIBIT #ASU3 ENDEAVOUR ANNUAL REPORT 2017-18

PN2027

THE WITNESS: Yes, paragraph 41.

*** STEVEN MILLER XXN MR ROBSON

PN2028

MR ROBSON: At paragraph 41, you say that:

PN2029

Endeavour's one‑on‑one support and group based services, we average over 50 cancellations a month.

PN2030

?‑‑‑Yes, that's correct.

PN2031

How many services do you provide each month?‑‑‑In those categories?

PN2032

Yes?‑‑‑Currently I wouldn't have the total amount of services we provide under those at hand, that information, so I - yes, I'd be speculating to hazard a guess on the total.

PN2033

In terms of broken shifts, you have provided at paragraphs 21 through 39 of your statement some information about broken shifts at Endeavour?‑‑‑Mm‑hm.

PN2034

You have not provided there any information about the incidence of broken shifts in your company?‑‑‑No, the evidence I provided was on the basis of what we see in the planning and required delivery of service to customers and, therefore, what we attempt to roster to as a business to deliver those services. The evidence is based on what we have seen in approved services that we could provide coming back from the NDIS from the planning stage requirements.

PN2035

You have not provided any information about your employees' minimum shift lengths?‑‑‑No. From a rostering perspective - and I don't claim to be a people and culture or industrial relations or payroll specialist - we operate on our award when we are rostering staff, which is the minimum engagement to our - - -

PN2036

So is that minimum engagement of two hours for all employees?‑‑‑It's for - the rostering that we provide is for support workers.

PN2037

Okay?‑‑‑And that's where we apply it.

PN2038

Thank you. Is that for casual support workers?‑‑‑It's for our casual and part‑time.

PN2039

Thank you. When you're rostering, do you instruct your staff to avoid rostering split shifts wherever possible?‑‑‑Wherever possible. We certainly have the team trying to put staff on as long an engagement as possible, but we are restricted obviously by what we are provided; what the NDIS approves.

*** STEVEN MILLER XXN MR ROBSON

PN2040

Thank you very much. I don't have any further questions.

PN2041

JUSTICE ROSS: Any other cross‑examination?

PN2042

Mr Miller, can I just ask you a couple of questions. Can I take you to paragraphs 10 through to 12 where you talk about your workforce?‑‑‑Yes.

PN2043

So the foundation employs 4684 people. Leave aside for the moment that a number of them are covered by a collective agreement. If you didn't have the collective agreement, how many of that 4684 would be covered by the SCHADS Award?‑‑‑To my knowledge - and again I don't profess to be an industrial relations expert in the business - my assumption would be that the 1260 support workers that we actively roster would be impacted.

PN2044

You provide a breakdown of them by full‑time, part‑time and casual in paragraph 11?‑‑‑At the time of writing, yes.

PN2045

Can I take you to paragraph 22?‑‑‑Yes.

PN2046

You say there:

PN2047

The NDIS approves appointments for customers for accommodation and in‑home services with a minimum appointment length of one hour in many cases.

PN2048

Can you just explain how that works?‑‑‑Yes, certainly. What we see coming through and part of what we do in the rostering process is that we - on the back end of the planning process with clients, both for in‑home and one‑on‑one services, we will get a plan that has been approved between the client and the NDIS, and basically we get out of that what is called a roster of care that we attempt to roster to. What we were seeing at the time of writing this was that in some cases we were seeing the one‑hour shifts built in for individual clients. The planning process has changed. We do on rare occasions recently see half an hour, but it is very, very rare. That's what we have to roster to because that forms the basis of what the NDIA allows us to claim for to deliver those services. That minimum appointment length sort of, in summary, is what we are seeing coming back in client plans and what we're seeing coming back in accommodation house floats for group so clients.

*** STEVEN MILLER XXN MR ROBSON

PN2049

If I go to paragraph 30, this provides some information in relation to six of your clients over a two‑week roster period about their appointments?‑‑‑Yes.

PN2050

Do I read it this way: if I look at the first table, at 5 am, 11 clients required assistance and the average amount was 2.5 hours. Is that how you would read it?‑‑‑Yes, that's correct. From our rostering system for those clients over that period, in our system we had a total of 11 shifts that had a 5 am start time or 11 support shifts and the average duration of those was 2.5 hours.

PN2051

What do you mean by a shift in that context? Is that how long - - -?‑‑‑What do I mean by - - -

PN2052

Do I read it that there were 11 employees who commenced work at 5 am and had an average duration of working two and a half hours or am I reading it incorrectly?‑‑‑No, it's a little bit back from that. On the rosters of care for the customers that we have to roster staff into, we had 11 approved shifts for clients that started at 5 am and the average duration was 2.5 hours.

PN2053

Then you roster your employees to meet the various requirements that your clients have - - -?‑‑‑That's correct.

PN2054

All right. You were asked a question about broken shifts. As I understood it, your evidence was that you endeavour not to roster employees for broken shifts. Do you have or are you able to get any information about the incidence of broken shifts that you would roster? I mean, for example, are 10 per cent of the shifts you roster employees on - so I'm talking about the employee shifts here - are they broken? Is it a higher number, a lower number?‑‑‑Yes, certainly I don't have that information on hand at the moment. The document I wrote was around the shifts that are approved by the NDIS for clients.

PN2055

Yes?‑‑‑It's certainly information we could potentially pull from our system, but I would have to take that on notice.

PN2056

All right. That's fine. If you can take that on notice and provide some information to Mr Pegg, and he'll provide it to us and the other parties?‑‑‑Yes.

*** STEVEN MILLER XXN MR ROBSON

PN2057

Can I also ask when you're doing that, is it usual when you do roster an employee for a broken shift that there is only one break in the shift or do you have multiple breaks in the shift?‑‑‑It's difficult to comment on 'is it usual'. Certainly from anecdotal conversations with the rostering officers and without actual hard data in front of me, the majority of our broken shifts are only one break. We do, however, have incidents - it is rare, but we do have incidents of double breaks. That is predominantly for in‑home clients because we see a lot shorter shift length so they have a lot more choice and control over when they can receive - - -

PN2058

All right?‑‑‑When we do those, however, it is generally the choice of the support worker.

PN2059

Okay?‑‑‑If they want to work a double broken shift.

PN2060

That might be also something - if you wouldn't mind covering that in the material to Mr Pegg?‑‑‑Mm‑hm.

PN2061

There is a final question for you. In response to a question from Mr Robson, I had understood your evidence to be, Mr Miller, that in relation to - I'm talking here about employee shifts that you would roster in response to client demand?‑‑‑Yes.

PN2062

I had understood your evidence to be that the minimum duration of a shift would be two hours and that was the case for casual and part‑time employees. Was that what you said?‑‑‑No, that wasn't my intent behind that answer. Our minimum engagement is two hours, but that doesn't refer to a single shift length. That's my understanding of our - - -

PN2063

All right. So how do you see it working?‑‑‑Again I'm not an expert on our industrial agreement so this is my interpretation of our wording if it's a minimum engagement of two hours in a single day, but I would have to defer back to - - -

PN2064

No, no, that's all right. I wasn't so much asking you for an interpretation of the agreement or the award?‑‑‑Yes.

PN2065

I was just trying to get an understanding of is your practice - - -?‑‑‑Yes.

PN2066

What is your practice in relation to rostering part‑time employees, for example. If you had a split shift, for argument's sake, on a particular day - - -?‑‑‑Yes.

PN2067

- - - or even a single continuous shift on a day, do you have any information about, well, what is the usual practice in relation to how long such an employee is engaged continuously? For example, with a part‑timer - - -?‑‑‑Yes.

PN2068

- - - is it the usual practice that they would work for a minimum period of time on each day? Continuously here is what I'm talking about?‑‑‑Mm‑hm.

*** STEVEN MILLER XXN MR ROBSON

PN2069

For argument's sake, if you had a split shift and they were working a period in the morning and a period in the afternoon, is there a usual minimum period that applies to both the morning and afternoon; because I think I've misunderstood your answer to Mr Robson and I just want to understand in a bit more detail how you go about that. I appreciate that you don't have the material in front of you and you'll need to confer with your rostering staff, and you can provide that material to Mr Pegg. Okay?‑‑‑I would certainly like to, yes, have a look at the data on that rather than making any sort of assumptions.

PN2070

That's fine?‑‑‑I would say that we apply - we try to apply in the rostering practice day‑to‑day some fair and reasonable sort of, you know, allocation of shifts and we try to avoid calling people in for shorter shifts if we can.

PN2071

Yes, okay. Thank you. Is there anything that arose from those questions that you wanted to cross about, Mr Robson?

PN2072

MR ROBSON: Well, we don't have access to the information he's going to provide - - -

PN2073

JUSTICE ROSS: No, no, I appreciate that. We will get the information and if we have to recall the witness, we'll recall the witness.

PN2074

MR ROBSON: We would like to reserve our rights after we've seen that.

PN2075

JUSTICE ROSS: Of course.

PN2076

MR ROBSON: Thank you.

PN2077

JUSTICE ROSS: Yes, of course. Anybody else?

PN2078

MS DOUST: I think we're in the same position as Mr Robson. If something further comes in, we might need to look at that.

PN2079

JUSTICE ROSS: Of course. Yes, of course. Anyone else cross‑examining? No? Any re‑examination, Mr Pegg?

PN2080

MR PEGG: No, your Honour.

*** STEVEN MILLER XXN MR ROBSON

PN2081

JUSTICE ROSS: Thank you very much for your evidence, Mr Miller. You're excused.

<THE WITNESS WITHDREW [11.38 AM]

PN2082

JUSTICE ROSS: Mr Pegg, once Mr Miller provides the information to you, if you can forward it to us and we'll forward it to all the parties and provide the parties with some period of time in which to indicate whether or not they wish to ask any further questions or need clarification. It may be that they can resolve that issue with you directly without having to recall Mr Miller, but we'll see how we go. Thank you. In relation to Dr Stanford's evidence, do you want to deal with the objections to that now?

PN2083

MR FERGUSON: Sorry, your Honour? I missed that.

PN2084

JUSTICE ROSS: Did you want to deal with the objections to Dr Stanford's - - -

PN2085

MR FERGUSON: Yes, I do. There have been some discussions and some rationalisation.

PN2086

JUSTICE ROSS: All right. What's left?

PN2087

MR FERGUSON: Probably by reference to the document I've just filed - - -

PN2088

JUSTICE ROSS: Yes.

PN2089

MR FERGUSON: - - - it's easiest to take you through it and say what's not read or pressed and then go back to the top and have the argument.

PN2090

JUSTICE ROSS: Sure.

PN2091

MR FERGUSON: In relation to paragraph 12, the final sentence, that's not read. That's item 3.

PN2092

JUSTICE ROSS: Yes.

PN2093

MR FERGUSON: Turning over the page, going to item 10, paragraph 55 - - -

PN2094

JUSTICE ROSS: Item - hang on a minute. I thought you were on item 12.

PN2095

MR FERGUSON: No, I was on item 2, paragraph 12.

PN2096

JUSTICE ROSS: Yes, yes.

PN2097

MR FERGUSON: Sorry.

PN2098

JUSTICE ROSS: Item - - -

PN2099

MR FERGUSON: Item 3.

PN2100

JUSTICE ROSS: So it's paragraph 12, the third sentence is not read?

PN2101

MR FERGUSON: No, we're working from two notes. Item 3, paragraph 12, the final sentence, not read.

PN2102

JUSTICE ROSS: Right, yes. What is the next one?

PN2103

MR FERGUSON: Then item 10, paragraph 55, the second sentence.

PN2104

JUSTICE ROSS: Yes.

PN2105

MR FERGUSON: It's not read.

PN2106

JUSTICE ROSS: Yes.

PN2107

MR FERGUSON: Then 55, the final sentence is not read in its entirety. That's item 11, but the outcome was different.

PN2108

JUSTICE ROSS: Yes.

PN2109

MR FERGUSON: The agreement was to not read - - -

PN2110

JUSTICE ROSS: So it's 55.

PN2111

MR FERGUSON: The final sentence.

PN2112

JUSTICE ROSS: Final sentence not read, yes.

PN2113

MR FERGUSON: Not read.

PN2114

MR ROBSON: That deals with items 11 and 12, just for ease of understanding.

PN2115

MR FERGUSON: That's right.

PN2116

JUSTICE ROSS: I see, yes. Right.

PN2117

MR FERGUSON: Then in relation to item 16 - - -

PN2118

JUSTICE ROSS: Yes.

PN2119

MR FERGUSON: - - - paragraph 72(c) is not read.

PN2120

JUSTICE ROSS: Yes, that follows from the other one.

PN2121

MR FERGUSON: Yes. Then another objection wasn't on the sheet. It relates to paragraph 77.

PN2122

JUSTICE ROSS: I don't have that.

PN2123

MR FERGUSON: It's not on the sheet. It came up in submissions.

PN2124

JUSTICE ROSS: Right, okay. Just bear with me for a moment.

PN2125

MR FERGUSON: Yes.

PN2126

JUSTICE ROSS: Yes.

PN2127

MR FERGUSON: The first and second sentence are not read.

PN2128

MR ROBSON: No, the first sentence isn't read. That's the discussion you raised with me.

PN2129

MR FERGUSON: Well, I might be misunderstanding.

PN2130

JUSTICE ROSS: The second sentence doesn't make any sense if you take out the first.

PN2131

MR ROBSON: All right. We'll take out the second one then.

PN2132

JUSTICE ROSS: All right.

PN2133

MR ROBSON: Sorry, I had misunderstood their request.

PN2134

JUSTICE ROSS: That's fine. Right.

PN2135

MR FERGUSON: Sorry, backtracking, item 13, as well.

PN2136

JUSTICE ROSS: Just a moment. Is this the first sentence?

PN2137

MR FERGUSON: Yes. It's not read.

PN2138

JUSTICE ROSS: Yes.

PN2139

MR FERGUSON: And we don't press our objection in relation to paragraph 14.

PN2140

JUSTICE ROSS: Which is item what?

PN2141

MR FERGUSON: Item 14, sorry.

PN2142

JUSTICE ROSS: Sorry?

PN2143

MR FERGUSON: Item 14, paragraph 69. We don't press our objection.

PN2144

JUSTICE ROSS: Right.

PN2145

MR FERGUSON: I might note for the record that these objections were raised jointly by our self and ABL.

PN2146

JUSTICE ROSS: Sure. What we have left, what about the objection at item 2, the third sentence in paragraph 12? Doesn't that relate to the same thing that you've conceded won't be read later?

PN2147

MR ROBSON: No, I think it exists in a different context.

PN2148

JUSTICE ROSS: All right. No, that's fine. I just was asking. What we have is the items that it's agreed would not be read; paragraph 12, the final sentence.

PN2149

MR FERGUSON: Yes.

PN2150

JUSTICE ROSS: Paragraph 55, the second sentence; paragraph 55, the final sentence; paragraph 59, the first sentence; paragraph 72(c); the first and second sentences of paragraph 77. The objection at item 14 in relation to paragraph 69 is not pressed. Is that where we are?

PN2151

MR FERGUSON: Yes.

PN2152

JUSTICE ROSS: All right. Is there anything you want to add in relation to the other objections?

PN2153

MR FERGUSON: Yes, I might do this generally rather than repeating the argument.

PN2154

JUSTICE ROSS: Yes, sure.

PN2155

MR FERGUSON: There is a theme that runs through it in - - -

PN2156

JUSTICE ROSS: Well, yes, let me pick up the theme. If I look at items 1, 4, 5, 6, 7, 8, 9, and 15, they all relate to statements along the lines of, 'The people interviewed for this study said' - X,Y and Z.

PN2157

MR FERGUSON: Yes, so primarily on the basis that it's hearsay, there is - - -

PN2158

JUSTICE ROSS: But also its qualitative research. It's always going to be hearsay.

PN2159

MR FERGUSON: That's right, but as I understand it from the discussions, the unions rely on it to establish the truthfulness of what was actually put by those persons rather than just a basis - - -

PN2160

MR ROBSON: I apologise. I misunderstood that one. I spoke to Ruchi before we went in. It is qualitative research and that's the basis, but I'll address the reason later.

PN2161

JUSTICE ROSS: Yes.

PN2162

MR FERGUSON: I appreciate it's qualitative research, but it is in one sense analogous to the evidence in the first tranche from Mr Eddington, in the sense that it essentially doesn't rise above this witness re‑stating the statements that were made by individuals as to what happens factually. Now, we don't know them, they're not named, they're not identified, we can't test any of that evidence. On that basis, for the same reasons there, we say it is quite unfairly prejudicial.

PN2163

JUSTICE ROSS: Well, the same thing arose in the penalty rate case and we admitted the material. The employers called for the record of the interviews that took place. You can call for the record of the interviews and you can go through the base material, if that's what you want to do.

PN2164

MR FERGUSON: Our view would have been that that should have been sought - - -

PN2165

JUSTICE ROSS: It has been sought.

PN2166

MR FERGUSON: Sorry, that had been led so we could assess it in the first instance.

PN2167

JUSTICE ROSS: It doesn't need to be led. It wasn't led in that case. You call for it, it's provided and you can ask whatever questions you want based on the record.

PN2168

MR FERGUSON: Even if we had that information, that wouldn't enable us to test the veracity of what those witnesses were saying. What I was trying to get to is if this was only being relied upon to establish the basis upon which the opinions in the statement were formed rather than the truthfulness of the factual assertions of those employees, we wouldn't be taking issue.

PN2169

JUSTICE ROSS: All right.

PN2170

MR FERGUSON: But it's relied on - - -

PN2171

JUSTICE ROSS: What is the basis that you're relying on?

PN2172

MR ROBSON: We rely on it as expert evidence. He has given opinions about what is happening in the industry - sorry, he is giving an opinion on the connection between - excuse me. Mr Stanford's evidence relates to a number of things. Firstly, it discusses a survey of statistical data available about the industry.

PN2173

JUSTICE ROSS: Yes.

PN2174

MR ROBSON: Noting some of the limitations on the statistical data. He then gives an opinion on the training and skill needs in the industry.

PN2175

JUSTICE ROSS: Yes.

PN2176

MR ROBSON: He gives an opinion on the workforce as it currently exists and whether the industry is attracting enough skilled, qualified staff and whether they're retaining them. He then gives an opinion as to why that's happening.

PN2177

JUSTICE ROSS: Yes. In these parts that are objected to - - -

PN2178

MR ROBSON: Yes.

PN2179

JUSTICE ROSS: - - - what he is saying is that - and he's referring to the various articles and reports that are attached to his statement.

PN2180

MR ROBSON: Yes.

PN2181

JUSTICE ROSS: And saying, look, in conducting that research employees express certain opinions to him.

PN2182

MR ROBSON: Yes.

PN2183

JUSTICE ROSS: Based on that, he is reporting those opinions that were expressed to him and he then expresses a view, 'Well, based on what I've been told, I think' - X,Y and Z.

PN2184

MR ROBSON: Yes, that's what he is doing.

PN2185

JUSTICE ROSS: But is that all he is doing?

PN2186

MR ROBSON: Yes, indeed. We're not trying to prove anything about a particular individual in a particular circumstance. He is explaining the basis for his opinions - - -

PN2187

JUSTICE ROSS: All right.

PN2188

MR ROBSON: - - - and presenting his qualitative research.

PN2189

JUSTICE ROSS: All right.

PN2190

MR ROBSON: Which, as you say, is a legitimate research need.

PN2191

JUSTICE ROSS: All right.

PN2192

MR ROBSON: And we would agree. The statements being filed since 2 October, there has been ample time for any party to request his research papers. I also recall from the penalty rates case - I believe it was Dr Fiona Macdonald who presented qualitative research and the employer advocates were able to - - -

PN2193

JUSTICE ROSS: No, there was a forensic examination of a transcript of the interviews with the participants who provided the basis for the qualitative research.

PN2194

MR ROBSON: Indeed, sir.

PN2195

JUSTICE ROSS: All right. Well, having regard to what Mr Robson has clarified - - -

PN2196

MR FERGUSON: We don't need to press it if that's the extent to which they rely upon it.

PN2197

JUSTICE ROSS: All right. That leaves not much, but my note had - I think there was your item 2.

PN2198

MR FERGUSON: Yes.

PN2199

JUSTICE ROSS: So paragraph 12, the third sentence. What is the relevance objection?

PN2200

MR FERGUSON: The evidence goes to the commonality for disability support workers being required to transport clients in their own vehicles. I'm not sure that that seems to go to any of the claims that are before us. It's an issue that's picked up in some of the articles and so forth, and I understand why it might have made its way into the statement, but issues around transportation of clients just isn't a live issue in these proceedings.

PN2201

JUSTICE ROSS: We might just take a short adjournment.

SHORT ADJOURNMENT [11.49 AM]

RESUMED [11.56 AM]

PN2202

MR FERGUSON: If I could circumvent this, we've had a discussion. I don't need to press the objection. That evidence is only going to be relied on to the extent that it might inform the witness's opinion rather than the evidence of the facts in issue.

PN2203

JUSTICE ROSS: Then ‑ ‑ ‑

PN2204

MR FERGUSON: I think that's it.

PN2205

JUSTICE ROSS: Yes, okay. Thanks. I'll do a note of my record as to what's not read and put that on the website just so the parties are aware of - just in case there's anything that I've missed.

PN2206

MR ROBSON: Do you want me to hand up a marked up document?

PN2207

JUSTICE ROSS: With the bits not read?

PN2208

MR ROBSON: Yes.

PN2209

JUSTICE ROSS: Yes, that'd be helpful. Thanks, Mr Robson.

PN2210

MR ROBSON: Thank you.

PN2211

JUSTICE ROSS: If you can have a - just check it with Mr Ferguson and then do that, thanks. After all that no Dr Stanford, but ‑ ‑ ‑

PN2212

MR ROBSON: Run away.

PN2213

JUSTICE ROSS: Probably not the only one feeling that way.

PN2214

THE ASSOCIATE: Please state your full name and address.

PN2215

DR STANFORD: James Stanford, (address supplied).

<JAMES STANFORD, AFFIRMED [11.58 AM]

EXAMINATION-IN-CHIEF BY MR ROBSON [11.58 AM]

PN2216

MR ROBSON: Mr Stanford, have you made a witness statement in these proceedings?‑‑‑Yes, I have.

PN2217

And do you have it in front of you?‑‑‑Yes, I do.

PN2218

Apologies, Dr Stanford. And is everything in it true and correct?‑‑‑Yes, it is.

PN2219

Thank you. I tender the statement.

PN2220

JUSTICE ROSS: I'll mark Dr Stanford's statement as exhibit ASU4.

EXHIBIT #ASU4 STATEMENT OF DR JAMES STANFORD

PN2221

JUSTICE ROSS: Might just note that we'll replace the current statement with the one that you provide later, Mr Robson, with the annotations.

*** JAMES STANFORD XN MR ROBSON

PN2222

MR ROBSON: Yes, sir.

CROSS-EXAMINATION BY MR FERGUSON [11.59 AM]

PN2223

MR FERGUSON: Dr Stanford, my name is Mr Ferguson. I represent the Australian Industry Group, and I have some questions for you this morning, soon to be this afternoon. I understand from your report, and in particular, paragraphs 3 and 4, that your expert opinion is based primarily on research that you conducted as a co-investigator of two research projects, wasn't it?‑‑‑Yes.

PN2224

And the first of those research projects involved qualitative interviews with some 19 disability support workers working in the Hunter region of New South Wales; is that right?‑‑‑Yes, that's correct.

PN2225

And the interviews were conducted in 2018, weren't they?‑‑‑Yes.

PN2226

Are you able to give me some more specific indication as to when in 2018 the interviews were conducted?‑‑‑Sir, I'd have to check my calendar. I believe it was February.

PN2227

February or thereabouts?‑‑‑Yes.

PN2228

And those 19 workers that were interviewed they were referred to the interviewers by the ASU, weren't they?‑‑‑In part. We made some initial contacts with the ASU people and then we used what the qualitative research community calls a snowball sampling methodology where we use an initial group of contacts to try and identify other potential informants in the project.

PN2229

But the interviewees were all working in the specialised area of helping people with intellectual or other cognitive disabilities or psycho-social disabilities, weren't they?‑‑‑They were all disability service workers, and most of them specialised in cognitive and intellectual disabilities, but I don't believe it was exclusive. I believe there were workers who did other functions as well.

PN2230

How many workers doing other functions?‑‑‑I do not recall. I'd have to go back and look at the transcripts from our 19 interviews. The majority of them were certainly working with patients or clients with intellectual and cognitive disabilities.

*** JAMES STANFORD XXN MR FERGUSON

PN2231

Yes. Thank you. Were the interviewees asked whether they were covered by an enterprise agreement?‑‑‑We did not specifically ask that question. We had a semi-structured interview format where we had some broad questions that guided myself and the other principal investigators in conducting the interviews, and there was not a specific question to that but we did ask where they worked, what type of work they did, and the broad nature of the terms and conditions that they faced.

PN2232

Sorry, finish. Yes. Did those conducting the research take any steps to actually verify whether or not the interviewees were covered by an enterprise agreement?‑‑‑It was not a specific question in our interview. I - again, we could check the transcripts of the interviews if you'd like, but in my recollection the majority of the interviewees were covered by the award.

PN2233

But aside from questions you asked you didn't take any steps to go and actually ascertain whether or not an agreement applied to that work that they were ‑ ‑ ‑?‑‑‑That was not one of the specific questions in our questionnaire or our structured format.

PN2234

Yes, the interviewers didn't take any other steps, such as searching a database to see whether there were any agreements that might apply to their employees?‑‑‑No.

PN2235

Were the employees actually asked whether or not they were covered by the SCHADS award?‑‑‑Again, it wasn't an explicit question. That was not the purpose of this project. The purpose of this project at the time was to gather a broad qualitative database on the nature of working conditions in the sector and how it was changing under the NDIS rollout, and so our specific concern was not whether people were covered by an award or by one of the enterprise agreements. There was a mixture of experience across the interviewees.

PN2236

No, I understand. You'd accept, wouldn't you then, that such a small sample of interviewees who are employees, most of whom are working in a specialised field in regional Australia, can't be said to be necessarily representative of the experiences of all disability support workers throughout Australia?‑‑‑I would not put it that way. The sample for this type of qualitative research was not small. There's lots of experience in academic peer reviewed research ‑ ‑ ‑

PN2237

How ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑to use samples.

PN2238

MS DOUST: I object, sorry.

PN2239

MR FERGUSON: I've stopped.

*** JAMES STANFORD XXN MR FERGUSON

PN2240

MS DOUST: It was to my friend asking a further question before the witness had finished.

PN2241

JUSTICE ROSS: Sure. Yes.

PN2242

MR FERGUSON: As soon as I saw him continuing I stopped?‑‑‑So I would not say that 19 is a small sample for this type of project. It's a community in regional Australia but it was a community that was selected because it was one of the trial locations for the roll out of the NDIS, so this is a community where there was specific experience with the NDIS in the form of work that was there. Now, is this representative of all the conditions in the industry as a whole, certainly not, and there's no database. Even a quantitative database will never be fully representative unless it's a complete census, so I don't see it as a small or unrepresentative sample.

PN2243

How many disability support workers are there in Australia?‑‑‑We don't know for sure. This is one of our problems. Probably around 100,000.

PN2244

If I just take you to paragraph 8 in your statement. You there give evidence about the impact that the NDIS is having on the disability support service industry and you say partway through that paragraph that - and I won't read the whole paragraph. You say that:

PN2245

Demand for specific services fluctuates constantly due to changes in the number of clients, their approved budgets, their specific choices of services, and other services and other factors.

PN2246

What are the other factors that you refer to? Yes, seven lines down, sorry, to make it easier?‑‑‑Yes. Thank you.

PN2247

And the reference to 'factors' there, what are the other factors?‑‑‑Could be factors such as seasonal timing. It could be factors such as holidays, could be factors such as the medical or clinical factors or features that the other - that the clients are experiencing. So I think it's a generic term that refers to a range of other determinants of when specific services are requested by individual clients.

PN2248

It's your view, isn't it, that employees in the sector are structuring the way that the work is being undertaken in order to meet the needs and preferences of NDIS participants, aren't they?‑‑‑No, that's not my assertion.

*** JAMES STANFORD XXN MR FERGUSON

PN2249

Do you accept that they're structuring the way they roster work partly in order to align their staffing levels with the preferences of when clients want to be serviced?‑‑‑It is certainly true that agencies and providers in this industry face a number of pressures and constraints in structuring their work and the rostering. One of those is the desire and preferences of the individual clients, but there are other factors which influence their decisions in this regard including minimising their own costs and making it convenient for management to perform their management function, reducing financial or operational risks to the agencies, so I would not accept that this whole pattern of work that we've portrayed in our research is the result of organising work solely to meet the preferences and choices of NDIS participants.

PN2250

But you'd accept, wouldn't you, that agencies either do not have, or at least have a much reduced capacity, in times gone by to dictate when a client will be serviced?‑‑‑It is certainly the case that agencies and employers in this sector have to address and respond to the hard to predict needs and preferences of their client base.

PN2251

And they can't simply tell a client when the service will be offered and expect the client will accept that, can they?‑‑‑In my knowledge, based on the interviews, there's some capacity for agencies and organisations to influence and schedule and arrange when clients are served. Similar, I suspect, to how a doctor's office or a dentist's office works. They can't tell their patients when to show up for treatment, but they certainly have some capacity to organise their scheduling of treatment ‑ ‑ ‑

PN2252

But they might ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑in a way that makes it feasible for this organisation to function.

PN2253

But if they don't service the client at the time they want they run the risk of the client electing to go to another provider, don't they?‑‑‑To some extent that is true of any market-based delivery system. In an industry where you service individual clients you have some ability to try and manage and smooth demand and feed it into an efficient delivery structure, and if the client or customer or patient has other options, then clearly one constraint on management's leeway is the concern that the customers will go somewhere else.

PN2254

Yes. Can I just take you to paragraph 11, and coming down to the second sentence, you there say that hourly wages in this industry are generally low and that hours are already uncertain and often inadequate, and you go on to describe that as an unappealing starting point. Now, I take it that it's your view then that employees in this sector, or if the employees in this sector - well, withdraw that. I take it it's your view that employees in this sector often aren't given as many hours of work as they would like?‑‑‑Many of the respondents in our research indicated that they did not receive as many hours of work as they would like to work.

*** JAMES STANFORD XXN MR FERGUSON

PN2255

So you'd accept then that if there was a change to the award that operated to cause employers to offer individual employees fewer hours of work that this might further undermine the attractiveness of employment in the industry?‑‑‑I cannot comment on the question given the vagueness of what you've indicated, the change in the award that would reduce the hours offered.

PN2256

So if the award was varied in a manner that caused employers to offer fewer hours of work to individual employees, would you accept then that that might undermine the attractiveness of the employment in the industry?‑‑‑It depends on the nature of the change in the award and what else was in play there. There could be workers who would accept fewer hours of work but more predictability in the work or accept fewer hours of work but better compensation, so I can't possibly answer the question in the general form that you've put it.

PN2257

There's a high proportion of employees in this sector that are engaged on a part-time basis under the award, isn't there?‑‑‑A high proportion of part-time workers, and there's an even higher proportion of casual workers.

PN2258

I'm just asking about the part time. Do you know what proportion of the workplace is engaged on a part-time basis?‑‑‑Again, with all of this analysis in the sector we're constrained by the inadequacy and comparability of the data sources. You'll see from my submission that we've relied a lot on the NDS Workforce Wizard database to make judgment such as this, and by my recollection in that database an approximate breakdown of their sample of the workers would be a little bit over 50 per cent in casual positions, under 10 per cent in permanent full-time positions, so that would be something in the order of 35 to 40 per cent in permanent part-time positions. But I'm going by my recollection and we could confirm that against the current NDS data as required.

PN2259

Just I want to ask you to, for a moment, make an assumption about the way the award works. If we assume for a moment that the award currently permits an employer to reach, or currently requires an employer, to reach agreement with a part-time employee on the number of hours that they work each week, but it permits the employer to offer additional hours of work to those employees without payment of penalty time rates. Can you just make that assumption for the moment?‑‑‑Okay.

PN2260

If the award was amended to require that overtime rates were payable for any additional hours, that's at hours beyond those agreed hours, would you accept that this would create a financial disincentive for the employer offering any such additional hours?‑‑‑I don't think I could make that assertion without understanding the other parameters of their staffing model. It would depend on the other options facing the employer about how staff were allocated to different functions.

*** JAMES STANFORD XXN MR FERGUSON

PN2261

I'm not trying to be difficult?‑‑‑Yes.

PN2262

If the award currently allows you to offer additional hours without paying any penalty rates everything else remains constant, but the award was changed to require payment of overtime penalty rates, time-and-a-half/double time, you'd accept that that would be a financial disincentive for the employer offering those employees those additional hours?‑‑‑It would be one financial disincentive that they would have to consider in the overall costing model, and there are many situations where employers voluntarily pay overtime premiums or penalties in order to elicit desired labour supply which, in their judgment, would still be cheaper than the alternative, so ‑ ‑ ‑

PN2263

If they didn't ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑that as one factor they're shifting the relative cost of overtime hours, other things being equal, would clearly shift the calculations. Whether that resulted in lower hours of work or not depends on the other factors.

PN2264

Yes. Would you accept then that one option they might take in response to that is to potentially allocate those hours to different employees, that they rationally might be inclined to pursue that course of action?‑‑‑Certainly that's a possibility and employers can and do do that all the time.

PN2265

Would you accept then that one rational response to that change in regulation that I've foreshadowed might be that employers would seek to make greater use of casual employment rather than part-time employment?‑‑‑Employers obviously face constant optimisation problems in the language of economics to decide which of the various forms of employment that are open to them under the way the industry currently works including the terms of the award are optimal in terms of their operational effectiveness and minimising their costs, and in that optimising exercise they're going to take a lot of different factors into account. Right now based on the trends in employment they have decided that casual work is the most optimal from the employer's perspective which is why the large majority of new positions being created are casual.

PN2266

Just taking you back to the question, if in that scenario the employer, and I won't labour the point, the employer was potentially required to pay additional overtime penalties if they offered additional hours to a part-time employee, do you accept that they might try to avoid those penalties by making greater use of casuals rather than allocating additional hours to the part-time employees?‑‑‑That is a possible outcome but it's not the only possible outcome, and I can imagine situations where they could actually end up hiring more permanent staff despite having to pay part-time workers extra for those extra hours, depending on their judgments about the other factors that go into their optimisation model.

*** JAMES STANFORD XXN MR FERGUSON

PN2267

Yes?‑‑‑Including the costs of retention and recruitment of casual workers.

PN2268

Can I just take you to paragraph 57? You see that there?‑‑‑Yes.

PN2269

Starting from the second sentence you expressed an opinion, and I'll summarise the effect of it, and ask if you disagree, but you expressed an opinion, the effect of which is, that the award fails to incentivise or pressure employers to organise work in the most efficient and stable manner, and in particular you go on to contend in part that there is little incentive to geographically plan the assignment of appointments to minimise travel time. That's a fair summary of ‑ ‑ ‑?‑‑‑That's what I wrote, yes.

PN2270

You say that there are shortages in labour supply in this sector, don't you?‑‑‑Yes, elsewhere we talk about the evidence regarding employer's inability to attract applicants for the vacancies which they've advertised.

PN2271

Given labour shortages, you'd accept then, wouldn't you, that in general it's in employers' interests to structure work so that an employee can visit as many clients as possible in a day, isn't it? They'd want to make optimal use of the labour they have?‑‑‑Well, optimal use depends on how the costs and benefits of the decisions are shared between the different players in the process of providing the service. It's clearly more optimal for a worker to have a series of visits organised effectively in terms of their geography and in terms of their timing to minimise the total amount of transportation time and the potential downtime between visits.

PN2272

But ‑ ‑ ‑?‑‑‑From the workers' perspective that's clearly optimal, but from the employer's perspective unless they're trying to identify an indirect benefit to the employer of having a happier worker, a more satisfied worker, there's no direct financial incentive for him in a situation where they are not incurring additional financial costs because of the transportation time or the downtime.

PN2273

To perhaps ask it a different way, if you've got an employer that doesn't have enough disability support workers, and you'd accept that there are some employers that don't have enough?‑‑‑Certainly there are.

*** JAMES STANFORD XXN MR FERGUSON

PN2274

There's an incentive to allocate the clients that they are servicing in a way that minimise the amount of unproductive time that that person spends waiting around, travelling, doing activities not servicing clients?‑‑‑It's an indirect incentive because it's the - at this stage, it's the employee who bears the cost of the idle time or the unnecessary travel time, so I can assure you, in my experience as a labour economist I've met lots of employers who haven't figured out yet that they're actually better off when their workers are better treated.

PN2275

I ‑ ‑ ‑?‑‑‑And therefore voluntarily undertake measures to enhance the benefit, so there's - the point that I'm making in this paragraph is that the incentive and pressure on employers to more efficiently rationally allocate those tasks would be strengthened if there was actually money attached to the decision. Right now the pressure, if you like, or the incentive is indirect only from an employer that is enlightened enough to realise that a more satisfied employee is more likely to be a long-term and motivated employee.

PN2276

So you agree that if they recognised that employees are dissatisfied with breaks and so forth that they may take measures to minimize those breaks?‑‑‑They certainly may if they're enlightened but they're not required to and the ‑ ‑ ‑

PN2277

But do you also ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑requirement of keeping the worker happy is an indirect one.

PN2278

Yes. There's also an incentive for them to be able to structure the work in a way that lets the employee visit as many fee paying clients as possible in a day, isn't there? If they've got a shortage of workers?‑‑‑Well, the shortage of workers per se is difficult to measure and interpret relative to how workers are utilised, so employers do face a challenge in recruiting new individuals to come and work for them, yet despite that we also see employers having a pattern of under-utilising the workers that they have in terms of the fragmentation of work, the very low average hours of work and the unreliability of the hours of work.

PN2279

That might be because they don't have any other option but to roster it that way in some circumstances. I'm sure you accept that?‑‑‑But if they already experience an incentive to try to utilise the individuals as fully as possible, despite the absence of cost penalty to employers of fragmented work, then you would think they would be doing a better job of utilising those workers, and clearly they're not. The hours of work are very low in the sector. Many workers indicate that they would like to work more and the work has been very fragmented in the sector.

PN2280

No further questions.

PN2281

JUSTICE ROSS: Any other cross-examination? Any re-examination, Mr Robson?

RE-EXAMINATION BY MR ROBSON [12.23 PM]

*** JAMES STANFORD RXN MR ROBSON

PN2282

MR ROBSON: Yes, sir. Mr Stanford, you were asked about the pressure placed on an employer to keep their employees satisfied and how that might affect how they structure work. Is that the most important pressure on an employer?

PN2283

JUSTICE ROSS: It arises.

PN2284

THE WITNESS: I believe that it's something that a smart employer will take into account, but I don't believe that the impact of that incentive is as direct or as powerful as a more tangible financial or economic incentive which they would face, and in my experience in labour economics simply showing employers that they do get some benefits from a more satisfied workforce that feels it's been treated fairly, a workforce that's able to combine its work life with its family life is not always enough to elicit respect or do attention to those goals unless there's also some more tangible profit and loss related considerations that come into play. That's why we have labour regulations and benchmarks and norms because leaving it up to the voluntary wisdom and willingness of employers to do the right thing has not been reliable.

PN2285

MR ROBSON: Mr Stanford, you were asked about the shortage of employees in the industry and the desire of employers to optimally use their labour. Are there any features of the industry that would suggest to you that labour is not being optimally utilised in disability services?‑‑‑I'll mention findings from both our original quality of research in the Newcastle area as well as our review of published literature and other sources that are out there including the NDS database. In terms of the aggregate data the evidence is very clear that workers do not feel that the current conditions of work, the instability of hours that they face, and the compensation, the effective compensation which they receive, are adequate to maintain this as their career path. So the overall turnover rates in this sector are very high according to the NDS database. One in four workers in the sector changes their job in the course of a year and that's a turnover rate approximately three times as high as for the labour market as a whole. We also see evidence of the departure of senior workers. Our qualitative interviews highlighted that many longstanding employees in the industry as the structure of service delivery changed under the NDIS found the turmoil and instability of their work intolerable and that was contributing to their departure from the career as well. The inability of the industry to attract, first of all, enough workers period but, secondly, workers with the skill level that most experts in the sector think is essential is also clear. We had the data that I mentioned from NDS on the number of vacant positions that can't be filled. We also have data from the NDS about the relatively low levels of formal qualifications of the workers who are attracted. So put all of that together, quantitative and qualitative indicators, we see an industry that needs to grow but isn't able to maintain its current workforce let alone attract in significant numbers the new workers with the skills that are going to be required to live up to the mandate that the NDIS undertook.

*** JAMES STANFORD RXN MR ROBSON

PN2286

Thank you. And is there anything about the practice of broken shifts, and I'm not asking you to comment on the award, that might lead to less than optimal utilisation of labour.

PN2287

JUSTICE ROSS: He wasn't cross-examined in relation to broken shifts.

PN2288

MR ROBSON: I apologise. I withdraw that question. Thank you, no further questions.

PN2289

JUSTICE ROSS: No further questions for the witness? Thank you, Dr Stanford, you're excused.

<THE WITNESS WITHDREW [12.27 PM]

PN2290

JUSTICE ROSS: So is the plan ‑ ‑ ‑

PN2291

MR SCOTT: Sorry ‑ ‑ ‑

PN2292

JUSTICE ROSS: No, you were about to tell me the plan. I'm ‑ ‑ ‑

PN2293

MR SCOTT: I was - yes, subject to your views, your Honour. There's two witnesses scheduled for this afternoon. They're ABI witnesses.

PN2294

JUSTICE ROSS: Yes.

PN2295

MR SCOTT: Mr Mathewson and Mr Wright. I understand Mr Mathewson is in the vicinity. It may be, subject to your views, if we break until 1 pm and then we can deal with the two witnesses back-to-back.

PN2296

JUSTICE ROSS: Everyone content with that?

PN2297

MR FERGUSON: Yes.

PN2298

JUSTICE ROSS: Anyone opposed to that might be the - no. Have we dealt with any objections to the statements?

*** JAMES STANFORD RXN MR ROBSON

PN2299

MR SCOTT: I understand we have resolved the objections in respect of both of those witnesses.

PN2300

JUSTICE ROSS: That's fine. Yes, all right, so we'll adjourn until 1? Thank you.

LUNCHEON ADJOURNMENT [12.28 PM]

RESUMED [1.04 PM]

PN2301

MR SCOTT: Your Honours, in respect of the ABI witnesses this afternoon, I thought it may just assist we've prepared a proposed exhibit list which, as your Honour directed the parties to do yesterday or the day before. The proposed exhibit list for the subsequent exhibits was circulated to the parties, but I thought it may just assist if I hand a copy up to the Bench.

PN2302

JUSTICE ROSS: Sure.

PN2303

MR SCOTT: Thank you. So your Honours will see ABI2, 3, 4 and 5 are the additional documents not in the court book. We now call Mr Darren Mathewson.

PN2304

JUSTICE ROSS: Are there any changes to his statement or anything like that, as a result of the discussions?

PN2305

MR SCOTT: No. Your Honour will recall that attachment C to his statement, the summary document, was not admitted.

PN2306

JUSTICE ROSS: Yes, that's right.

PN2307

THE ASSOCIATE: Please state your full name and address.

PN2308

MR MATHEWSON: Darren John Mathewson, (address supplied).

<DARREN JOHN MATHEWSON, SWORN [1.06 PM]

EXAMINATION-IN-CHIEF BY MR SCOTT [1.06 PM]

PN2309

MR SCOTT: Mr Mathewson, do you have a copy of your statement in front of you?‑‑‑I do.

*** DARREN JOHN MATHEWSON XN MR SCOTT

PN2310

Can you confirm that that is a statement of 74 paragraphs?‑‑‑I can.

PN2311

And can you confirm that the contents of that statement is true and correct, to the best of your knowledge and belief?‑‑‑I can.

PN2312

I tender that, your Honour.

PN2313

JUSTICE ROSS: I'll mark that exhibit ABI2.

EXHIBIT #ABI2 WITNESS STATEMENT OF DARREN MATHEWSON

PN2314

MR SCOTT: Nothing in chief.

PN2315

MR BULL: I was going to ask this witness a few questions, your Honour.

PN2316

JUSTICE ROSS: Sure.

CROSS-EXAMINATION BY MR BULL [1.06 PM]

PN2317

MR BULL: Mr Mathewson, my name is Stephen Bull, I work for United Voice, which may be a place familiar to you. I'm going to ask you a few questions about your statement and some of the matters which have been annexed to your statement and some general matters. I might, just for the assistance, I'm directing this to the Bench, I've got a bundle which essentially contains the documents that I may ask some of the employer witnesses to refer to. Unfortunately the imperative expressed by Lee C about saving trees, we haven't been able to comply with that. I've got a digital copy in the office and I can send that. So the bundle is, essentially, and I've provided copies to my friends just now, it's paginated, there's a page number in the top right-hand corner and the material could be relatively self-explanatory.

PN2318

Mr Mathewson, I might also give you, I may refer to this, this is a statement of one of our witnesses, Melissa Coad, so thanks.

PN2319

JUSTICE ROSS: Did you want us to mark this other bundle of material, or are you tender it, as we come to it?

PN2320

MR BULL: I'm happy to - look, my friends have only just received it, so perhaps we'll - - -

*** DARREN JOHN MATHEWSON XXN MR BULL

PN2321

JUSTICE ROSS: All right. Well, you can tender it, if you need to, at an appropriate time.

PN2322

MR BULL: It's essentially material which is gazetted, in the sense that it's price guides for the various employer providers, which they're required, by legislation, to place on the internet, and general information, which is also on the My Gov site and so forth, so it should be uncontroversial.

PN2323

JUSTICE ROSS: I like your optimism Mr Bull, but okay.

PN2324

MR BULL: Apparently I'm a pessimist but I'm glad that you view me as an optimist, it's a good thing.

PN2325

Now, Mr Mathewson, have you got a copy of Melissa Coad's statement?‑‑‑I do.

PN2326

Could you just take a look at paragraph 18 of the statement? If you could just maybe read it?‑‑‑'There is a substantial amount of - - -

PN2327

You don't have to read it aloud?‑‑‑Okay.

PN2328

The Bench has a copy?‑‑‑Sure, okay.

PN2329

Just tell me when you've finished?‑‑‑I'm finished.

PN2330

To summarise it, it's saying there's unspent funds in entitlements, in terms of subsidy entitlements, so the persons in need of care are not exhausting their entitlement which they receive from the Commonwealth, you'd agree with that proposition?‑‑‑Correct.

PN2331

Thank you. Now, could you look at paragraph 20? That's, once again, stating that providers receive their money, their subsidy money, from the Commonwealth, a month in advance. So that is the practice in the industry?‑‑‑That's correct.

PN2332

So at least in relation to the component of their revenue, which is the subsidy from the Commonwealth, they get it a month before the work is performed?‑‑‑Correct.

*** DARREN JOHN MATHEWSON XXN MR BULL

PN2333

That money is just general revenue for their purposes, is that correct?‑‑‑Until it's expended, yes.

PN2334

So there's no - they don't have to hold it in a trust account or anything like that, do they?‑‑‑There's no current prudential requirements, no.

PN2335

Wages, by and large, in the sector, are not paid a month in advance, that's correct?‑‑‑That's correct.

PN2336

It's the usual practice where they're in arrears, arrears means that the work is performed and then at some other date in the future, maybe a week, a fortnight or a month, they're paid, that's correct?‑‑‑Correct.

PN2337

Could you look at paragraph 27? Have you read it? That's basically just saying that for aged care services demand is much greater than supply?‑‑‑Correct.

PN2338

So a person in need of care may have to, frankly, just choose whichever provider is ready, willing and able within, potentially, a significant waiting period to provide that person with the care they need, you'd agree with that proposition?‑‑‑The person who is on the prioritisation list comes off that list and has the ability, through a period of time, to choose the provider of their choice. That was the whole move from the system where the package used to attach to the provider itself, now it's actually owned by the client. So the new client coming off the list gets the ability to choose which provider is available to them, through the My Aged Care system.

PN2339

All right, but they still may have to wait for a while?‑‑‑As they go through the process, yes.

PN2340

And there's some significant waiting periods. Could you look at the bundle? Have you got a - I might put it to you again, do you - so when you select the provider, you're in the queue for that provider, is that correct?‑‑‑No, you're in a national queue.

PN2341

So, what, your choice can shift, is that so?‑‑‑Yes. It's actually a national prioritisation list and as you are approved to come off that list, because a package becomes available, you have the choice of which provider you can then go to. That was the point of moving to the consumer choice system.

PN2342

So the queue is the queue though?‑‑‑Yes, the queue is the queue.

*** DARREN JOHN MATHEWSON XXN MR BULL

PN2343

I might just show you - did I give you a copy of this bundle? I'll give you a copy of this bundle. Could you turn to page 5? So that's just talking about the approximate wait times. So for a level 1 care package it's three to six months?‑‑‑That's correct.

PN2344

And those numbers are broadly consistent with your experience?‑‑‑Yes.

PN2345

Okay, thank you. I'm going to tender the whole bundle at some stage, so I might resist tendering them now. One of the features of consumer directed care, or the kind of structure, is that there are exit fees?‑‑‑Correct.

PN2346

So providers are required to have an exit fee?‑‑‑They're not required, they can charge an exit fee.

PN2347

Yes, they can charge. But they have to actually advertise an exit fee, that's correct?‑‑‑They have to publicise their exit fees and their pricing.

PN2348

And they may not charge it?‑‑‑That's correct.

PN2349

Why would a provider not charge an exit fee?‑‑‑Because they - that may be the model they follow, where they choose not to charge an exit fee. We found, in the early stages of moving to this system, the exit fees were quite high. What we're seeing occur over time is those prices come down significantly.

PN2350

But if - from a rational, economic point of view, if your customer is leaving you for another provider, why wouldn't the company, if it's legally able to, and there's, so to speak, money to pay something, why wouldn't they charge an exit fee?‑‑‑It's hard for me to answer that for individual providers. We're quite a diverse sector, it may be part of their purpose or their charitable approach that they choose not to do that.

PN2351

Well, you'd agree that the facility of an exit fee would certainly act as a calming effect on volatility, in relation to persons in need of care just chopping and changing providers?‑‑‑It may do, but the system was set up to deliver choice for people and certainly the policy makers seem to be encouraged by the fact that they wanted some freedom of movement. It certainly was the view of the consumer organisations.

*** DARREN JOHN MATHEWSON XXN MR BULL

PN2352

Well, the Commonwealth, no doubt, wants cost recover and, no doubt, I would have thought the providers, as rational economic actors, would also want cost recovery. Are you saying that they don't charge exit fees?‑‑‑No, I'm not saying that at all, I'm saying there's a variety of approaches to exit fees.

PN2353

So is it very rare that exit fees are not charge?‑‑‑Yes, it's rarer than it is - it's normally - I think the average is around $200 to $250.

PN2354

So they usually charge $250 as an exit fee?‑‑‑That's on average.

PN2355

So they actually do charge, but $250?‑‑‑Yes, some do.

PN2356

As an exit fee?‑‑‑Yes.

PN2357

Well, that does seem to be the standard MO, you'd agree with that?‑‑‑Yes.

PN2358

There has been a change in some of the rules about funding. Since 1 July this year all providers have to publish a price guide, on the government website?‑‑‑Yes.

PN2359

So they have to clearly disclose to consumers their hourly rate, the daily rate they charge for - I'm talking about home care here, and exit fees and additional charges?‑‑‑There's a mandatory publishing of prices and there's the ability for consumers to look at a comparability table as well.

PN2360

There was also a change, on 1 July, where it became permissible to set travel to visit the client. This is not necessarily the kilometre rate, but the time the employer might pay the employee to travel to a client, it became permissible - the Commonwealth would accept a zero value, are you aware of that?‑‑‑Yes.

PN2361

Are you able to tell us why that occurred?‑‑‑It was a decision made by the Commonwealth, at the end of the day, about - a number of the key stake holders fed in, but the decision to - what the table ended up looking like and what the various ranges were was a decision for the Commonwealth.

PN2362

Home care is domestic assistance in persons in need of care homes, you'd agree with that proposition? So unless - - -?‑‑‑It's probably broader than that, than just domestic assistance.

*** DARREN JOHN MATHEWSON XXN MR BULL

PN2363

Exactly, that's the bottom level and it gets a higher acuity, in terms of the sort of assistance which is provided. But it's not, obviously, in a hospital, it's not in a nursing home or what have you. If any provider who has employees providing home care, those home care workers are going to have to travel to see the person they're providing care to, you'd agree with that?‑‑‑Yes.

PN2364

There may be a provider where there is an intensity, geographically, of all the persons in need of care very closely knit and there would be limited travel. But that is not the case, is it?‑‑‑No, that's not.

PN2365

That's partly because of the consumer directed care, the competitive model, which has been applied, you'd agree with that?‑‑‑Yes.

PN2366

No provider can corral a suburb, no one - there isn't one provider that will have all the old people in Glebe, for example?‑‑‑No. The geographical boundaries have been weakened, although some of them still do exist, just simply historically.

PN2367

So very varying degrees of travel will be encountered by any provider of any substantial size, you'd agree with that?‑‑‑Yes.

PN2368

Their workers will just have to travel. Do you think it was wise - could you just say 'Yes', if you're answering questions, sorry?‑‑‑Yes.

PN2369

So a provider can, effectively, in its submission to the Commonwealth, put in zero for travel?‑‑‑Yes.

PN2370

What's your view as to the wisdom of that possibility?‑‑‑It's a decision for the provider.

PN2371

All right. Well, would you advise a provider that it was wise to, in a submission to the Commonwealth, this is about telling the Commonwealth the money they're going to claim, that it would be wise to claim zero for travel?

PN2372

MR SCOTT: Objection, your Honour. I'm just not sure the relevance of what Mr Mathewson might advise a provider. I'm not sure his capacity upon which he's giving evidence is as an advisor to provide - - -

PN2373

MR BULL: Well, he's the head of an industry - he's involved in an industry association, the Aged and Community Services Australia, he's essentially go the capacity likely to give some sort of opinion. He's a stakeholder. I think it's a relevant question. He clearly knows what I'm asking him about. I think it's of assistance to the Commission. I might withdraw the question.

*** DARREN JOHN MATHEWSON XXN MR BULL

PN2374

You'd agree that, prior to 1 July, you had to put in some value, other than zero?‑‑‑Mm hm.

PN2375

Most providers would put in a value higher than zero?‑‑‑That was normally the case, yes.

PN2376

That's because they were taking into account the fact that their employees travelled to do their job, you'd agree with that?‑‑‑Yes.

PN2377

Would you - the principle instrument, if you like, that determines the relationship between a provider and a person in need of homecare, and we're talking about homecare packages, is the Homecare Agreement, you'd agree with that?‑‑‑Yes.

PN2378

There's a significant amount of flexibility and latitude as to what a provider and the person in need of care can negotiate and having that homecare agreement?‑‑‑Yes, there is.

PN2379

So there's a basic hourly rate which can be charged?‑‑‑Yes.

PN2380

And that can vary, you'd agree with that?‑‑‑Yes.

PN2381

There's also a basic daily fee?‑‑‑Yes.

PN2382

That can also vary?‑‑‑It may be charged.

PN2383

But that's a mandated fee?‑‑‑No. The daily fee can be waived.

PN2384

But it's mandated in the sense that it's contemplated within the funding arrangements, you'd agree with that?‑‑‑Yes.

PN2385

There's also management fees?‑‑‑There's care management and package management fees, correct.

PN2386

They're in the similar sense, they're mandated in that they can be waived, but they're contemplated by the Commonwealth as items which are subsidies, you'd agree with that?

*** DARREN JOHN MATHEWSON XXN MR BULL

PN2387

JUSTICE ROSS: I'm not sure it's an accurate characterisation they're mandated if they can be waived. You're putting that they're contemplated in the package.

PN2388

MR BULL: They're allowed.

PN2389

JUSTICE ROSS: Yes.

PN2390

MR BULL: Can you look at page 11? I'll withdraw that. The point is, they're all items, there's an hourly fee, there's a daily fee and there's a management fee. They're three things that are allowed by the Commonwealth?‑‑‑Correct.

PN2391

But there's also other fees that a provider can charge, that's correct?‑‑‑Correct.

PN2392

The provider can, in a sense, charge whatever it wants, to a certain extent?‑‑‑No. It's determined. There is a pricing schedule that they have to publish and the items are the same for all providers. The reason that was done is so the consumers can compare. So they did standardise the various items in that comparability schedule.

PN2393

Well, a provider could have an agreement where they do your shopping and they take a 5 per cent cut from whatever your grocery bill is, that could be in a home care agreement?‑‑‑It possibly could be, but it's not likely.

PN2394

You don't think so?‑‑‑No.

PN2395

All right. Can I show you, can you go to the bundle, it's the Hammond Care Pricing Agreement, which commences on 33. Can you go to page 37? Can you look at the bottom of page 37?‑‑‑Yes.

PN2396

Now, Hammond Care is a highly reputable, well-organised provider, you'd agree with that proposition?‑‑‑I would.

PN2397

They will procure things for persons who make homecare packages with them, you'd agree with that's what procurement means?‑‑‑Yes.

PN2398

So if you need a new fridge, they will go out and buy you a new fridge for a very reasonable 5 per cent, they'll take 5 per cent of the value of the fridge. So you agree that that is consistent with the current arrangements?‑‑‑Yes.

*** DARREN JOHN MATHEWSON XXN MR BULL

PN2399

So there's great flexibility in the way a provider can structure a homecare package with a person in need of care?‑‑‑There is that flexibility, yes.

PN2400

Can you look at paragraph 24 of your statement and only just familiarise yourself with it?

PN2401

JUSTICE ROSS: Did you say 24?

PN2402

MR BULL: Twenty-four of the witness's statement, your Honour. Now, how are you going, Mr Mathewson? Sorry, just tell me when you've finished reading, because I don't want to interrupt you if you're reading, and so forth?‑‑‑Finished.

PN2403

You've painted a picture here of volatility, in terms of what persons in need of care are seeking and so forth. You'd agree that one of the purposes of the homecare package is, in a sense, to calm that volatility, to agree to what services will be provided to the person in need of care, you'd agree with that proposition?‑‑‑I'm not quite sure. Can you reframe the question, I'm not quite - - -

PN2404

Well, you're talking about:

PN2405

Consumers being able to direct their own care and support has meant providers are required to respond to individual needs and requests and therefore have to be able to access service beyond their scope at times, or deploy staff at short notice, or for shorter periods.

PN2406

Now, in relation to at least the lower acuity care which will be provided under homecare packages, the whole point of the homecare agreement is to structure the provision of the service. So to actually avoid this volatility that you seem to be suggesting in that paragraph, you'd agree with that?‑‑‑Not necessarily, because the homecare agreement will determine the shape of the service and, in the past, homecare agreements have been relatively aligned, but they've changed, as consumers have chosen different arrangements, which are reflected in that. And it's not just reflected in the homecare agreement, it's reflected in their care plan, which would determine the service mix and the timing of such services.

*** DARREN JOHN MATHEWSON XXN MR BULL

PN2407

Well, there's no impediment to a provider, we're talking about lower acuity needs, having in the homecare package, which it makes with the person in need of care, an agreement saying, 'We will come and shower you and cook your breakfast and tidy up your home, between the hours of 8 and 10 on Tuesday, Wednesday and Fridays'. There's no impediment to such a term, is there?‑‑‑There is an impediment in terms of quality standard 1, which does actually require choice, dignity and respect. The Quality and Safety Commission will test providers, in terms of the processes in allowing consumers to make those choices. So, yes, a provider can do that, but they may find they don't align with the standards, when they come to be assessed.

PN2408

All right. An elderly person who's not getting around as much as he or she used to needs someone to come to their flat, home, and tidy up the place three times a week, get rid of all the dirty dishes and so forth, how is it an affront to their dignity of somebody comes and does it on weekdays between 8 and 10?‑‑‑There's still a choice for the consumer, in terms of timing and when it suits them.

PN2409

Well, if the consumer wants that person to come at 11.30 on a Saturday to do that work, because that's what they want, is it an affront to their dignity to say no?‑‑‑No. Well, it could be argued, yes. They could be subject to complaint if they did say no.

PN2410

Come on. Do you really think 11.30 in the evening, on a Saturday, is an appropriate time to do, essentially, work, which during the week has a minimum wage of around $24?‑‑‑I'm not making a comment on that, all I'm saying is the principle of the system is that decision actually can be driven by the consumer, if they choose to go that way.

PN2411

It's confected, isn't it, Mr Mathewson?‑‑‑No, that's the system that's been put in place.

PN2412

You, at least, are using quality standards, which are broad and admirable, which concern the dignity of the individual, to justify quite different matters, namely, not structuring work in an appropriate and proper manner?‑‑‑I don't agree.

PN2413

Could you look at paragraph 29 of Melissa Coad's statement, and tell me when you've read it?‑‑‑Yes, I've read it.

PN2414

Do you broadly agree with what Ms Coad has deposed to, in her statement?‑‑‑I would, broadly, when a service is in place, yes.

PN2415

Continuity and predictability is also, frankly, consistent with respecting and the dignity of the individual receiving the service, you'd agree with that?‑‑‑I think once the service is established, yes.

*** DARREN JOHN MATHEWSON XXN MR BULL

PN2416

So in relation to routine services, which a lot of homecare is, not all, predictability is consistent with the person in need of the care, the worker delivering the care and also the employer who's essentially managing the delivery of the care. You'd agree with that proposition?‑‑‑It may be, not all the time.

PN2417

When would inconsistency be consistent with dignity for the consumer?‑‑‑Look, there may be disruption to services, to do with people going into respite, people being admitted into hospital, people going on holidays. There's a whole range of things. Family circumstances may change. So service arrangements do shift.

PN2418

No, I'm not suggesting that if somebody gets gravely ill, or whatever, that there may not be a need to assist that person into hospital. But let's put to one side going to hospital or these sort of emergency type situations, in what circumstances would inconsistency of delivery of service be consistent with dignity of all parties concerned?‑‑‑I'm not quite clear on the question because, at the end of the day, there are changes that are made to the provision of services, whether it be home support or whether it be through packages, from time to time, and through a range of factors. I'm not sure, necessarily, it's dignity related, rather than it's simply a logistical management issue.

PN2419

Well, can the provider renegotiate the homecare agreement?‑‑‑They can make, by mutual agreement, changes to the homecare agreement, where required.

PN2420

Is there any time limit on when that can occur?‑‑‑Not as I understand it.

PN2421

One of the flexibility of homecare agreements is that it can set all sorts of terms. It can also set terms, in relation to client cancellation, you'd agree with that?‑‑‑Yes.

PN2422

So it can say that if you cancel before five there will be something deducted from your entitlement, or you'll be charged a fee?‑‑‑Look, it's a matter for the individual provider in their homecare agreement. It may, I'm not sure. I'm not - - -

PN2423

But it's essentially open?‑‑‑It can deal with cancellations, yes.

PN2424

That will determine the money that goes from the consumer to the provider, the homecare agreement?‑‑‑Yes.

PN2425

Could you look at paragraph 31 of your statement? Just tell me when you're - - -?‑‑‑Yes, I've read it.

*** DARREN JOHN MATHEWSON XXN MR BULL

PN2426

Could you turn - just a general question. You saying that 10 per cent of revenue is from the person in need of care to the provider?‑‑‑Correct.

PN2427

That number is, in a sense, uncapped, if you understand what I mean by that term?‑‑‑No, I don't.

PN2428

I'll elaborate. The Commonwealth doesn't set a limit on the contributions that a provider can seek to derive from a person who's got a homecare package?‑‑‑The daily fee is a scaled percentage and it is capped, and the income tested for these is subject to an income assessment, through Centrelink, and that's quite specific and the cost of that comes off the subsidy that the Commonwealth pays.

PN2429

Yes, I understand that. But a provider is approached by a person who is eligible for a homecare package. They can sign up the person and if that person agreed, within the context of making the homecare agreement, to contributed any amount of money for an additional service, such as completely refurnishing their home, or whatever, that would be permissible, under a homecare agreement?‑‑‑There are additional private arrangements that could be put in place, yes.

PN2430

But it could be put in the homecare agreement?‑‑‑It could be.

PN2431

It could piggyback, so to speak, on the government money, which is coming from the Commonwealth? So what I mean - sorry?‑‑‑It's possible.

PN2432

Yes. So what I mean the 10 per cent is uncapped, it could be significantly greater if providers were, for want of a better term, entrepreneurial in relation to the way they structured homecare agreements?‑‑‑It's possible.

PN2433

Just quickly, you worked for the LHMU?‑‑‑Back in history.

PN2434

So I just take it from that that you're experienced, industrially?‑‑‑Quite a few years ago now but, yes.

PN2435

Do you, in your current position, do you get industrial issues percolating up to your desk, in terms of what's going on in the aged care sector?‑‑‑Look, I generally rely on my employment relations manager, who manages that unit. I have a number of other portfolios I'm across as well, so I don't necessarily deal with them directly.

PN2436

But you have some idea of what goes on?‑‑‑Some idea.

*** DARREN JOHN MATHEWSON XXN MR BULL

PN2437

You've been CEO for the Aged and Community Service Australia for nine years?‑‑‑No. I was the CEO in Tasmania, not Australia.

PN2438

Sorry. But you've been working in a senior person in an industry association for nine years?‑‑‑Yes.

PN2439

One of our claims is to vary the roster provision where currently there's a requirement - I might give you a copy of the award.

PN2440

I won't be much longer, your Honour.

PN2441

Turn to clause 25?‑‑‑Clause 25?

PN2442

Clause 25 of the current award?‑‑‑Yes.

PN2443

Currently there's a requirement to give seven days notice of a roster variation. There's a number of exceptions and so forth. We're seeking to insert a term where if there isn't agreement to a roster variation, and it doesn't fall within one of the many exceptions, that overtime will be paid for the work which is done. Now, what I wanted to ask you, you've got - - -

PN2444

MR SCOTT: Sorry, your Honour, can the witness just be taken to the relevant part of clause 25, and I apologise if he was, but clause 25 is quite long.

PN2445

MR BULL: Well, 25(d).

PN2446

MR SCOTT: Maybe 25.5(d).

PN2447

MR BULL: Yes, that's what I said, 25.5(d). I'll just ask you a general question, are you aware of any civil penalty proceedings, industrial disputes, in relation to employees who are alleging that their employer, in the homecare sector, or a sector covered by the award, has breached rostering rule?‑‑‑No, I'm not aware of those.

PN2448

So in your nine years you've never come across anything like that?‑‑‑As I've said, I haven't practiced for many years, decades, in fact.

*** DARREN JOHN MATHEWSON XXN MR BULL

PN2449

All right. Now, just in relation to training, you'd agree that having stability and certainty, less broken shifts and so forth, would assist in staff retention - retaining staff, and so forth, by providers?‑‑‑We've made a number of statements about the need to enhance working conditions, but we've also made that in the context of some of the constraints faced by the industry at the moment.

PN2450

Well a situation where a care worker has up to five increments of work a day, with breaks, that's not a good working condition, is it?‑‑‑Well, my understanding is you're having some discussions around how you can deal with that. I haven't got anything, really, to add to that, other than it's not a matter I've considered.

PN2451

Well, you're the CEO of - - -?‑‑‑I'm not the CEO.

PN2452

In Tasmania you were. You work for the Aged Community Services?‑‑‑I beg your pardon?

PN2453

You work for Aged and Community Services, you're in a senior position for a stakeholder in the industry, you've got no opinion whatsoever?‑‑‑As the CEO in Tasmania, I didn't undertake an industrial relations capacity in that state.

PN2454

But you understand what broken shifts are?‑‑‑I do understand what broken shifts are.

PN2455

And you understand that there is a practice, in the homecare industry particularly, where there are some providers who have lots of broken shifts, or they roster their employees in that manner?‑‑‑They may well, yes. Yes.

PN2456

You're aware of that?‑‑‑Yes.

PN2457

You're not able to hazard any opinion as to whether that's a good or a bad employment practice?‑‑‑It's probably not a preferred employment practice, but if it's desired, in the circumstances, then employees have the choice to undertake that.

PN2458

It's desired by employers, you suggest?‑‑‑Well, to deliver the services, yes.

PN2459

Nothing further.

PN2460

DEPUTY PRESIDENT CLANCY: Can I just ask a question, please?

*** DARREN JOHN MATHEWSON XXN MR BULL

PN2461

JUSTICE ROSS: Are you going to cross-examine, Ms Doust?

PN2462

MS DOUST: Yes, just briefly. Happy to go whenever.

CROSS-EXAMINATION BY MS DOUST [1.45 PM]

PN2463

MS DOUST: Just briefly, Mr Mathewson, you're taking about the price guides that organisations operating in this area are obliged to publish, do you recall those questions?‑‑‑Yes.

PN2464

And it's up to the organisation itself to determine the terms which it offers to provide particular services, do you agree with that?‑‑‑Yes.

PN2465

I just want to run through a couple of things that may appear in an organisations price guide. First is a fee for care management, you recall you discussed that?‑‑‑Yes.

PN2466

Could you just describe, for the Commission, what's involved in care management?‑‑‑It's a general delivery of care coordination, so ensuring that the parties, both within and even outside the organisation, are connected around the individual to ensure that there's a continuity of care and support, as required.

PN2467

So it's that process of overseeing, in a clinical sense, the wellbeing and the delivery of service to the client, is that a fair description?‑‑‑Not just a clinical sense. It's overall wellbeing.

PN2468

Clinical and personal wellness sense?‑‑‑Yes.

PN2469

Secondly, another potential fee was for package management?‑‑‑Correct.

PN2470

Is that dealing with the liaison with the Commonwealth, and so on, in relation to the administration of the package?‑‑‑Yes. That picks up the support around the budgeting component and also the compliance of the organisation, with the quality standards. Because the reality is, private providers don't have to comply with quality standards, so they don't have the overheads that come with that.

PN2471

So a deal of the administration that needs to be carried out by organisations administering the delivery of services will be caught up in that capacity to charge a package management fee, do you agree with that?‑‑‑I do.

*** DARREN JOHN MATHEWSON XXN MS DOUST

PN2472

Now, just in terms of the way in which price guides are structured, do you agree with me that this is something that's commonly featured in those price guides, differential hourly rates, depending on the days of the week and time of day?‑‑‑Yes, it can.

PN2473

So you might have rates for weekdays between certain hours and then rates outside those hours, either early in the morning or late at night?‑‑‑You can do. It's not common, but you could do.

PN2474

You could also have differential rates for Saturday, Sundays and public holidays?‑‑‑Yes.

PN2475

So just turning to the example that you were asked before, about someone asking for their cleaning to be carried out at 11.30 on a Saturday night, it's a time I often turn my mind to that task, it would be the case, you'd accept, that the application of a differential fee on weekends is one factor that might provide an incentive for package users to choose to seek that service at a different time of the week?‑‑‑So let me be clear on what you're asking?

PN2476

Can I put it in a different way, the way in which those rates are structured, in the price guide, might be something that persuades a client to choose a different time of the week to seek a service?‑‑‑Well, generally, if they're a higher charge they probably wouldn't be encouraged to pick it up at that time.

PN2477

Yes. They might still seek the service at that time, but they accept that there are some consequences is that the service might be more expensive?‑‑‑That's correct, yes.

PN2478

You accept, as well, that it's something that can feature in price guides, that there's an emergency callout rate?‑‑‑There is for some, I think, yes.

PN2479

Yes. So - - -?‑‑‑I don't think it's specifically in the mandatory table that they have, they have to publish.

PN2480

No. But it's open to providers, in the way in which they structure their prices to provide set prices for particular times of the day and day of the week, that's one aspect of it. They might also feed in, in their price guide, an additional rate where there's some unplanned attendance or emergency call out?‑‑‑They can do.

*** DARREN JOHN MATHEWSON XXN MS DOUST

PN2481

Thank you. Nothing further.

PN2482

DEPUTY PRESIDENT CLANCY: I just had a question about cancellation fees, and whether you have any knowledge of how they're applied. If you could turn to the bundle there, at page 41?‑‑‑Sorry, which bundle?

PN2483

Sorry, the bundle of documents that Mr Bull gave you that - yes, that one, I think. It's a schedule from the Hammond Care, and you see down there, towards the bottom, in table 4, it's got Cancellation Fees?‑‑‑Yes.

PN2484

Now, it says:

PN2485

One unit of service to be charged at the appropriate rate.

PN2486

Do you have any knowledge of how cancellation fees are recovered in the industry? Is that - I know you can't comment on how Hammond Care does it, but is it deducted from the client's package, or is it a fee that is recovered and the client's required to pay to their provider? If you don't know, that's fine?‑‑‑There may be a difference with providers, but I suspect it's generally recovered from the client's budget, if that's what's in the agreement?‑‑‑So it will just come off the top of whatever they've got in their package?‑‑‑Yes.

PN2487

JUSTICE ROSS: Anything arsing, or any re-examination?

RE-EXAMINATION BY MR SCOTT [1.51 PM]

PN2488

MR SCOTT: Mr Mathewson, you were taken to the statement of Melissa Coad, can I take you to paragraphs 18 and 20 of that statement that you were taken to earlier and if I can just ask you to refresh your memory of those paragraph?‑‑‑Mm hm.

PN2489

If you look at paragraph 20 first, you were asked about the Federal Homecare Package Subsidy, and that was paid, effectively, to providers monthly in advance?‑‑‑Mm hm.

PN2490

In respect of, then, paragraph 18, there's a reference to unspent funds, are they different things?‑‑‑Yes.

*** DARREN JOHN MATHEWSON RXN MR SCOTT

PN2491

In respect of unspent funds, and it says there, halfway down that paragraph they're saying, 'There was about $539 million in unspent funds, as at the end of the 2018 financial year'. Do those unspent funds - sorry, where do those unspent funds sit, do you know?‑‑‑Those unspent funds sit with the provider until the client needs their service. It may also be worth noting, in 20, paragraph 20, that there's now a live consultation in moving to a payment in arrears system, the same as disability, for aged care.

PN2492

Can I then just take you, briefly, to the bundle of document that you were handed, and to page 5 of that bundle? You were asked some questions about delays in the delivery of homecare packages?‑‑‑Yes.

PN2493

Can I just clarify, the delay here, or the approximately wait time, I understand that's approximate wait time for a eligible individual to have their homecare package approved?‑‑‑Their - it's the time between when they're assessed as eligible and then when they potentially get approval to receive that package, yes.

PN2494

I take it that an individual cannot obtain services from a provider until their package has been approved?‑‑‑They can't receive subsidised services, correct.

PN2495

Once an individual has their package approved, is there any wait time, do you know, before they can obtain services through providers?‑‑‑There is often some practical lag, in terms of they've got a period where they can choose their provider. There's a time that they've got to provide a homecare agreement. That gives them the ability to assess homecare agreements and then there can be extensions to that if they've still not taken it up.

PN2496

The references there, on that page, to three to six months, or 12 months plus, is not a reference to the time after their package has been approved?‑‑‑No.

PN2497

Thank you, Mr Mathewson, nothing further from me, your Honour.

PN2498

JUSTICE ROSS: Nothing further for the witness?

PN2499

MR BULL: There's one matter which arises, just from my friend's re-examination, if I might just ask a question to clarify it?

PN2500

JUSTICE ROSS: Well, are you suggesting his re-examination went further than the cross-examination?

PN2501

MR BULL: There's a matter - could I seek leave to ask one question in cross-examination?

*** DARREN JOHN MATHEWSON RXN MR SCOTT

PN2502

JUSTICE ROSS: Well, what's the question, and then we'll - - -

PN2503

MR BULL: It just relates to the waiting time and what I thought may be of assistance to the Commission is it appears that the numbers, on page 5, relate to once you're eligible for the homecare package, till you get it. What I wanted to ask the witness is - - -

PN2504

MR SCOTT: No, that's not what - - -

PN2505

JUSTICE ROSS: That's not the witness's evidence.

PN2506

MR BULL: Well, the assessment period, how long that takes. Because eligibility implies that you've been assessed as eligible. How long is it from application to eligibility. That was the issue which I wanted to clarify.

PN2507

JUSTICE ROSS: So, Mr Mathewson, are there these steps, you're assessed as being eligible, then you have to seek approval of a homecare package. That approval period, the time it takes to get approval, depends on the level of package that you're seeking, according to this document?‑‑‑No. That's - so you're assessed as eligible, you go onto a waiting list. You come off the waiting list, you'll get a letter of approval. You then accept that letter, you can then enter the system and start to choose your provider.

PN2508

So once you get that letter that's when you start engaging with providers to deliver the services you want?‑‑‑Correct. Yes. This table merely reflects that those people that are on the waiting list at the moment, that may be eligible for a level 3, have to wait anything from 12 plus months before they eventually get that letter.

PN2509

Do you know anything about the delay between when they get the letter and when they get a provider to deliver the service?‑‑‑That could be highly variable, depending on the consumer. Some consumers are quite proactive once they get the letter, in terms of entering the market, if I could call it that, and others - and it may be particularly special needs group needs assistance with navigation, My Aged Care and a phone number are not the easiest things for older people to deal with at times, so it can take a period of time.

PN2510

Is there anything else?

PN2511

MR BULL: No, thank you.

*** DARREN JOHN MATHEWSON RXN MR SCOTT

PN2512

MS DOUST: I have one question that arises out of what the witness just said, if I might?

PN2513

JUSTICE ROSS: Sure. You'll be able to re-examine in relation to this, Mr Scott, if you want to. Add to the confusion.

FURTHER CROSS-EXAMINATION BY MS DOUST [1.57 PM]

PN2514

MS DOUST: Mr Mathewson, you just said that the time between getting that approval for a homecare package and sorting out with your provider can be variable, depending on the consumer. Is there any variability, that you're aware of, that's dependent on the availability of organisations who provide the services?‑‑‑It may vary, depending on where that person lives would be probably the strongest variable, in terms of whether there is a service available with the capability.

PN2515

All right. So when you say 'strongest variable', do you mean stronger than the consumer zone preferences, the variable that you mentioned before that was related to the consumer or that - or geography would be the strongest factor affecting supply?‑‑‑No. I think there's a range of variables. I was specifically talking about, for example, rural and remove. If someone picks up a package in a rural and remote area, it actually is not an easy solution at times, when they go onto My Aged Care and they may find there's not an organisation delivering in that space. It doesn't mean they can't get access to a package, yes.

PN2516

Thank you.

PN2517

MR SCOTT: Nothing, thank you.

PN2518

JUSTICE ROSS: Nothing further for the witness? Thank you, Mr Mathewson, you're excused.

<THE WITNESS WITHDREW [1.59 PM]

PN2519

JUSTICE ROSS: Mr Wright?

PN2520

MR SCOTT: Yes, the next witness is Mr Wright. Now, your Honour, it might be convenient, I understand we dealt with objections. There was one matter, for which I was granted leave to clarify, the basis upon which there's an assertion made in his statement.

*** DARREN JOHN MATHEWSON FXXN MS DOUST

PN2521

THE ASSOCIATE: Please state your full name and address.

PN2522

MR WRIGHT: Jeffrey Sidney Wright. My work address is Judd Avenue at Hammondville.

<JEFFREY SIDNEY WRIGHT, SWORN [2.00 PM]

EXAMINATION-IN-CHIEF BY MR SCOTT [2.00 PM]

PN2523

MR SCOTT: Mr Wright, thank you for waiting. I understand you've given a statement in these proceedings. Is that right?‑‑‑Yes.

PN2524

You have a copy in front of you?‑‑‑(No audible reply.)

PN2525

Can you confirm that it's 46 paragraphs long, your statement?‑‑‑Yes.

PN2526

Is that statement true and correct to the best of your knowledge and belief?‑‑‑Yes.

PN2527

I tender that, your Honour.

PN2528

JUSTICE ROSS: I mark that exhibit ABI3.

EXHIBIT #ABI3 WITNESS STATEMENT OF JEFFREY WRIGHT

PN2529

MR SCOTT: Mr Wright, can I take you to paragraph 17 of your statement and to the last sentence there. It reads:

PN2530

Typically our care employees are often working around their own commitments, for example study or school-age children, and part-time hours allows them the flexibility they need.

PN2531

Are you able to indicate to the Commission the basis upon which you make that statement?‑‑‑From both experience, personal observation, and interaction with care staff.

*** JEFFREY SIDNEY WRIGHT XN MR SCOTT

PN2532

And so when you say 'interaction with care staff', can you elaborate as to what that interaction was?‑‑‑Knowing them personally, and conversations or staff meetings; involved in the recruitment process, so knowing their background, why they wanted to come and work for HammondCare, and around what availability that they were offering in that employment process.

PN2533

And when you say knowing 'what availability that they were offering', you're referring to the individual's availability to work for HammondCare?‑‑‑Yes. And the reasons why they only chose certain times and not others, whether it's working around university, or caring for children, or even elderly parents.

PN2534

Thank you, Mr Wright. Nothing further from me.

PN2535

JUSTICE ROSS: Cross-examination?

CROSS-EXAMINATION BY MS DOUST [2.02 PM]

PN2536

MR DOUST: Mr Wright, HammondCare provides aged care, both in a residential context and in a home care sense. Is that correct?‑‑‑Yes.

PN2537

And so far as HammondCare provides home care services, is this right, you've got offices in Merimbula, Batehaven, Picton, Horsley and Nowra ‑ ‑ ‑ ?‑‑‑South.

PN2538

‑ ‑ ‑ to the south, Port Macquarie, Kyogle, Coffs Harbour to the north, on the North Coast, the Mid-North Coast?‑‑‑Yes.

PN2539

Cardiff, Scone, Gosford, on the Central Coast and the Hunter; and you've got Wentworth Falls, Bathurst, Broken Hill out west?‑‑‑Yes.

PN2540

And you've also got a range of locations in metropolitan and outer-metropolitan Sydney?‑‑‑Yes.

PN2541

Have all of the offices that I've just referred to then, are any of them new, been established in the last couple of years?‑‑‑In the last couple of years, yes.

PN2542

Most of them?‑‑‑No. Let me use an example. Nowra has been there for several years, but Batemans Bay, Merimbula would be examples of new offices; or even Canberra in the ACT. In the north, Port Macquarie, Coffs are new. Kyogle, we took over that business, so that would - that was an existing business, that's a new office from the HammondCare perspective. The others have been around for a few years, yes. At different stages, yes.

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2543

In your statement you've referred in a couple of locations - I will just take you to them in a moment - to clients having choice and control over their visit times and visit lengths?‑‑‑(No audible reply.)

PN2544

If you answer, can you please make it audible, rather than a nod, so that the transcript picks it up?‑‑‑Sure. Sorry.

PN2545

Thank you. One of the places where you've made that reference is in paragraph 18. Do you just want to have a quick look at that one?‑‑‑Yes.

PN2546

And also you refer to that choice in paragraph 23, just over the page, you talk about clients choosing to have shorter duration visits?‑‑‑Yes.

PN2547

So just to be clear on this, you're not suggesting that HammondCare has a legal obligation to offer services to anyone who demands it at any time of day. That's right, isn't it?‑‑‑That would be right, yes.

PN2548

You offer services based upon what you advertise in your price guide as the sort of services that the organisation is prepared to offer?‑‑‑Yes.

PN2549

And I presume it's fair to say that HammondCare determines the range of services and the pricing that it applies to those services, depending upon its own costs and its own ability to provide those particular services?‑‑‑And also what the client requires. They may require some services and not others, or variables of that.

PN2550

But you offer - you set out the range of services that you will offer in the price guide?‑‑‑Yes.

PN2551

And can I suggest this: one of the strategies that HammondCare uses to deal with the - shall we say the difficulties that may arise from shorter engagements, is having a higher rate for a half-hour engagement. You agree with that?‑‑‑We do offer half-hour engagements, yes.

PN2552

But your half-hour engagement rate is more than half your hourly engagement rate. Do you agree with that?‑‑‑I'm aware of that. The price guide isn't operational, but yes, I understand what you're saying, and that's right.

PN2553

So you adopt that practice of having an increased penalty or additional payment ‑ ‑ ‑ ?‑‑‑Or a cost to a client.

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2554

‑ ‑ ‑ to the half-hour base rate?‑‑‑Yes.

PN2555

Thank you. And that's about 70 per cent of the hourly rate where there's a half-hour consultation?‑‑‑If that's in the price guide. If you've got it there.

PN2556

All right. One of the things that HammondCare does in terms - actually, I will show you the guide, if I might Can I just ask you to have a look at that document, please, Mr Wright. Is that something you recognise?‑‑‑I see it from time to time, but it's more in that operational space that people in human resource don't get to see quite that often.

PN2557

Do you accept this is HammondCare's guide to the fees and charges for the provision of home care and some other services?‑‑‑Yes.

PN2558

Nursing care and so on?‑‑‑Yes.

PN2559

I will just take you to the first page there, if I might. For home care workers, the first table on that first page under the heading Care and Support Services sets out the relevant charges for the provision of that service?‑‑‑Yes.

PN2560

And so we can see there's an hourly rate for a basic Monday to Friday 6 am to 8 pm service?‑‑‑Yes.

PN2561

And there's a minimum charge for a half-hour booking, which is more than half of that hourly rate?‑‑‑Yes.

PN2562

And there's a range of differential rates, depending upon the time of day or day of the week that you operate?‑‑‑Yes.

PN2563

Thank you. And if we turn over the page to page 2, in-home respite care is also care that's carried out by home care workers. Is that right?‑‑‑Yes.

PN2564

And so we have a schedule of rates there. I think it's identical sets of rates. Do you agree with that?‑‑‑I'm okay with that, yes.

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2565

And just if we go further down on that page, we can see that Hammond adopts an approach of levying fees for management of the care plan of the clients based upon the level of package that they are party to. Is that correct?‑‑‑For the home care packages, yes, there's four levels.

PN2566

And they go from 1 to 4, from the lowest level of acuity to the highest level?‑‑‑Yes.

PN2567

Thank you. And another type of fee that Hammond charges, if we go over the page, is for package management?‑‑‑Yes.

PN2568

And again that varies considerably depending upon the level of package that the individual is in receipt of from the Commonwealth?‑‑‑Yes.

PN2569

I tender that.

PN2570

JUSTICE ROSS: I will mark that exhibit HSU7.

EXHIBIT #HSU7 SCHEDULE OF FEES FOR HOME CARE SERVICES AT HAMMONDCARE

PN2571

MR DOUST: Mr Wright, I just want to show you a document, if I might. Have you seen that document, Mr Wright?‑‑‑Yes.

PN2572

Is that a document you recognise?‑‑‑Yes.

PN2573

Is that a proforma of the contract that HammondCare uses to engage home care workers?‑‑‑Casual home care workers.

PN2574

Casual. Thank you. And these are the workers that are providing care in the home and community, so not in a residential aged care setting, just to clarify?‑‑‑Correct.

PN2575

And one of the requirements for the position, if we just go in that first - or if you turn over from the first page to the schedule of employment conditions, we will see that if you look at the left‑hand column, the reference to driver's licence and vehicle insurance requirements?‑‑‑Yes.

PN2576

See on the right-hand side it says:

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2577

The worker is required to have a reliable vehicle which is appropriate insured and registered, and maintained in a safe condition -

PN2578

And so on - 'for the purpose of employment'?‑‑‑Yes.

PN2579

Is that a requirement for all the workers in this category?‑‑‑For home care workers. They need to use their own private vehicle, yes.

PN2580

HammondCare doesn't provide the vehicle to travel back and forth to see clients?‑‑‑No. There might be the odd one occasion where there's a pool car in, say, a country location where terrain can be difficult, but the majority is their own care.

PN2581

And just in terms of the mechanics of doing the job, is it the case that home care workers are required to report in to HammondCare's premises every day, and then they move out to do their jobs from there?‑‑‑No. That wouldn't be practical.

PN2582

They are required to go directly to the client's home?‑‑‑First client.

PN2583

And then during the course of the day, on to such further clients as they're seeing?‑‑‑Correct.

PN2584

And just in terms of performing that sort of work, in order for HammondCare to be able to give them directions in the course of their work, it's necessary that they be contactable?‑‑‑Yes.

PN2585

Does HammondCare contact them by telephone?‑‑‑HammondCare provides each care worker with a smartphone, if you like, and it has their roster information and all contact details on it.

PN2586

So does HammondCare communicate with them via email as well as by phone?‑‑‑It can do, yes.

PN2587

Do you use any apps on the smartphone for the purpose of maintaining records relating to clients or anything like that?‑‑‑Yes. There's a software system called CommCare which the phones tap into, so there's a connectivity between managers, schedulers, care workers. So there's that constant communication.

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2588

Is that software that's specific to Hammond, or are you aware that that's software that's available generally?‑‑‑Other providers may have it. I'm aware of different types of software, but CommCare is a commercial software that others can purchase for this purpose.

PN2589

HammondCare currently has an enterprise bargaining agreement that covers its home care at home employees?‑‑‑Yes. Is that right?

PN2590

Yes, I tender that. Sorry, can I go back to the contract of employment and tender that.

PN2591

JUSTICE ROSS: Make that exhibit HSU8.

EXHIBIT #HSU8 CONTRACT OF EMPLOYMENT FOR HAMMONDCARE HOME CARE AT HOME EMPLOYEES

PN2592

MR DOUST: Mr Wright, under the terms of the current enterprise bargaining agreement that applies to HammondCare home care at home workers, is this correct, employees can be required to work broken shifts?‑‑‑Yes.

PN2593

And there's no requirement for agreement from the employee?‑‑‑Correct.

PN2594

And ‑ ‑ ‑ ?‑‑‑For home care workers. Let me clarify. There's residential in that agreement as well as home care, and there is a distinction made.

PN2595

Yes, that was precisely the point. For home care at home workers agreement isn't required otherwise under the agreement for people in the residential care setting?‑‑‑Correct.

PN2596

Which I think covers some nurses and different categories of employees?‑‑‑Care workers and nurses in the residential setting, yes.

PN2597

We're just dealing with the home care at home workers in this ‑ ‑ ‑ ?‑‑‑Yes, I'm with you.

PN2598

‑ ‑ ‑ in this proceeding. The minimum period of work for those workers is one hour?‑‑‑You're referring to the broken shift?

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2599

Yes?‑‑‑If they have a broken shift, the minimum is one hour. So if it only goes for half an hour, they have a broken shift, and then they go on to another client, that half hour will be paid at an hour.

PN2600

So but that's the sort of minimum period within a broken shift, is one hour of work. So the minimum engagement, if you like. Is that right?‑‑‑Yes. Can I put that in context, but for the overall dates ‑ ‑ ‑

PN2601

MR SCOTT: Your Honour, sorry to interrupt, but it may assist if Mr Wright is given a copy of the enterprise agreement, because I'm looking at his statement, and I'm not sure whether or not it's a correct characterisation of the enterprise agreement.

PN2602

JUSTICE ROSS: Have you got a copy of the agreement?

PN2603

MR DOUST: Yes, I do. I think it's ABI1.

PN2604

MR SCOTT: I think that's right.

PN2605

MR DOUST: Yes. No, that's correct.

PN2606

JUSTICE ROSS: it has been handed through Ms Waddell. We have one spare copy.

PN2607

MR DOUST: I think broken shifts are dealt with at paragraph 13 or clause 13, which is page 19 of the agreement, Mr Wright, if you need to look at that. But do you agree that the minimum engagement within a broken shift is a period of one hour?‑‑‑Yes.

PN2608

Can I just ask you this: that period of paid time won't necessarily include the travel to a client at the start of a shift?‑‑‑On any start of a shift there's no paid time or travel time to the commencement of the shift, whether it's a broken shift or not.

PN2609

So the employee starts from home, travels out to the client, and that travelling time is not compensated for with any hourly rate of pay?‑‑‑Correct.

PN2610

Nor with any allowance pertaining to use of the vehicle and use of the petrol?‑‑‑Correct.

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2611

And the same applies at the end of any shift of work?‑‑‑Yes.

PN2612

And the same - sorry. This is right, isn't it: the time taken to travel is only paid when it's undertaken between two clients and there isn't a broken shift between those clients?‑‑‑Correct.

PN2613

And I think the minimum payment under the agreement - and this is just looking at 13.3, which should be on that page open in front of you, Mr Wright - minimum payment is for two hours each day of work. That applies to part-time employees?‑‑‑Yes.

PN2614

So one of the types of working arrangements that Hammond could operate under this agreement would be for a worker to attend a two hour appointment in the morning, be paid for two hours, and receive no payment for the travel time there and back, no payment for the use of their vehicle in each direction?‑‑‑That's right. Let me just clarify. They just had a two-hour visit, for example, went to the client, then went home again.

PN2615

Yes?‑‑‑They would only be paid for the two-hour visit.

PN2616

Two-hour visit, yes. Are shifts of that type in fact utilised by Hammond?‑‑‑Rarely, because we try and give runs to people. That's why we have a clause of travel in extraordinary circumstances further on. So where a care worker believes that they're being hard done by or it's not fair, they're able to raise it with their manager or - apart from the dispute process, or even involve HR - to say 'this is unfair'. But schedulers aim to give them a run so it's a worthwhile shift, if you call it that. But there are times when we do pay for travel going from home to the first client. Let me give you an example. Sydney, we have clients at Bundeena, which is an isolated part of Sydney. A care worker would travel from, say, Sutherland. We would pay the kilometres from the turn-off on the highway out to Bundeena to the client, and back again, because that's reasonable for - that's how we work operationally. So we would make sure that it's a worthwhile shift or visit for that particular care worker.

PN2617

And this is - you're referring there to clause 23.2 of the agreement, the Travel in Extraordinary Circumstances provision?‑‑‑Correct.

PN2618

But you agree that it's open to Hammond to operate shifts of the type that I described?‑‑‑Yes.

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2619

Travel to, work two hours, be paid for two hours, nothing else, and then that's the end of your day?‑‑‑That would not be common. I can't say it doesn't happen, but efforts would be made to give a care worker a worthwhile shift pattern.

PN2620

And another type of working arrangement Hammond could utilise under this agreement would be for a worker to attend a one-hour appointment in the morning, a further one-hour appointment later on at some stage, and they would receive a two-hour payment, plus a broken shift allowance of $22 under the agreement?‑‑‑Correct.

PN2621

No payment in respect of the kilometres travelled during the course of that day?‑‑‑That's correct.

PN2622

And no payment in respect of the time spent travelling?‑‑‑Correct.

PN2623

And are shifts of that type in fact utilised by Hammond?‑‑‑It's interesting you say that, because some care workers - and we know this because I've had to give an interpretation on paying the broken shift allowance - where care workers put their availability at the beginning of the day and the end of the day. So they've determined - in effect getting a broken shift because they're not available between a shift in the morning and a shift in the afternoon, because that suits their particular circumstances or responsibilities. So that's an example that you said, they do one shift in the morning, not get paid travel either side of the client; get a one-hour payment; and then when they're available in the afternoon, it suits their availability, they do another one-hour shift and get paid the hour, but no travel either side. So it's driven by the care worker sometimes, and obviously driven by the business sometimes.

PN2624

So does that mean the answer to my question is yes?‑‑‑It does happen, yes.

PN2625

Under the pricing guide that I've just shown you before, this is the case, isn't it, Hammond can charge the client under the package for the travel that has been undertaken by the worker?‑‑‑Yes.

PN2626

And it can charge at a rate of $1.20 per kilometre?‑‑‑Does it say that in the guide, does it?

PN2627

Yes. I just take you to page 4 of that price guide, which is HSU7?‑‑‑Okay.

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2628

You see on that page, down the bottom of the page, there's a heading Other Charges?‑‑‑Yes.

PN2629

And it says Travel?‑‑‑Yes.

PN2630

'Our staff travel costs is $1.20 per kilometre'?‑‑‑Yes.

PN2631

So you will charge the client for the travel that's undertaken by the worker in that case, but won't ‑ ‑ ‑ ?‑‑‑Or maybe not in ‑ ‑ ‑

PN2632

‑ ‑ ‑ the worker won't receive any payment in respect of travel?‑‑‑Maybe not in that case. I would have to get confirmation from operations, how they do charge in that case, because obviously there's no kilometres that we're paying. I don't know the answer to that one, whether it's yes or no.

PN2633

This seems to contemplate the capacity on the part of HammondCare to chare $1.20 per kilometre of travel to go out and visit their homes?‑‑‑Yes.

PN2634

Correct?‑‑‑Yes.

PN2635

So in accordance with this, you can charge a client for that travel at that rate of $1.20 per kilometre?‑‑‑Yes.

PN2636

If you were paying any travel allowance, that would be at the rate of 78 cents a kilometre under the agreement, wouldn't it?‑‑‑Yes.

PN2637

But in the instances I've just described, you wouldn't be?‑‑‑I don't know the answer to whether the client is charged or not.

PN2638

Generally Hammond's approach would be to recover all charges that it would be entitled to as against clients. Do you agree with that proposition?‑‑‑As per the pricing guide, they do charge the client, yes, in terms of their budget on their package, yes.

PN2639

Can I ask you just to go to paragraph 29, please, sir?‑‑‑Of my statement?

PN2640

Yes, of your statement ‑ ‑ ‑ ?‑‑‑Sorry, I just ‑ ‑ ‑

PN2641

‑ ‑ ‑ go back to that one. Sorry, 29.

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2642

JUSTICE ROSS: 20?

PN2643

MR DOUST: 29, sorry.

PN2644

Do you have that one, Mr Wright?‑‑‑Yes.

PN2645

See you refer there to the vast majority of client cancellations being within zero to six hours of a scheduled commencement time of the service?‑‑‑Yes.

PN2646

It follows, doesn't it, from what you've said there that for the vast majority of cancellations, HammondCare is entitled to charge 100 per cent of the cost of the cancelled service?‑‑‑For home care packages, yes; but for other packages, no, because in the block funding for the other packages, which is about - can I give a context: home care packages comprise about 50 per cent of the total packages, and the other 50 per cent is made up of other packages. The home care packages, while they don't allow or disallow, we have a cancellation policy that applies to the home care packages. But for other packages, such as CHSP, there's no provision for cancellation because there's a block funding in those other packages that you pay for the service provided. Does that make ‑ ‑ ‑

PN2647

If it's block funded, the organisation gets the money anyway, doesn't it?‑‑‑No. It only gets the money for services provided.

PN2648

At paragraph 29 you refer to the vast majority of client cancellations?‑‑‑Yes.

PN2649

And you then refer to the ability to charge the client for the cancellation?‑‑‑Yes.

PN2650

If it's less than 24 hours?‑‑‑Yes.

PN2651

What I want to suggest to you is this: it follows, doesn't it, that in the vast majority of cases of client cancellations, HammondCare is able to charge?‑‑‑In the home care packages, yes, that's in their agreement, and there's a cancellation clause there. Even then we may not charge them, depending on the circumstances. Like I say in clause 30, it is determined on a case by case basis. Some clients, for example whether it's death or sudden hospitalisation, it's not really their fault that the cancellation happened, so there's some flexibility there. On other services other than home care packages there is no compulsion to charge a cancellation fee for them. In the funds they get for those packages, it's for the service only. There's no provision for cancelation in those package funds.

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2652

Yes. Thank you. I just ask you to go to paragraph 35, please. You refer there to the number of hours provided to part-timers in the month of May, and that's some 14,000 additional hours?‑‑‑Yes.

PN2653

Is that amongst - what number of employees?‑‑‑It's just under 1000. You could use 1000 as a round number.

PN2654

So for May 2019 there was, what, an average 14 additional hours per part-timer that month?‑‑‑It's not per part-timer. There was additional hours provided. It doesn't - I know you're using averages, but it doesn't affect every care worker, it's only those who did the additional hours.

PN2655

So for some it might be a great deal more than 14 hours in the month?‑‑‑Yes.

PN2656

Is that a usual number of additional hours for the month of May?‑‑‑It's not unusual. I would have to go back and look at data on different months, but that's why - given when the statement was requested, we picked the month of May to come out with that number.

PN2657

And that was 14,000 out of a proportion of how many hours worked overall?‑‑‑Sorry, I couldn't give you an exact number on that, on total hours worked. No, sorry, I can't answer that question.

PN2658

Out of that thousand, are you able to say how many of them were asked to work some additional hours?‑‑‑I can't answer that question now.

PN2659

Can I ask you, has HammondCare given any thought to reviewing the definite hours that it offers to part-timers?‑‑‑Well, couple of things: (1) we offer contract hours and additional hours. We offer additional hours, and care workers actually try and do what they can to get additional hours within their availability, of course. And it's part of - and even in our enterprise agreement there's a provision there for part-timers, if they're regularly doing, that they can renegotiate their contract hours up. So it is a fluid situation. And the hours - it gives the flexibility for both HammondCare and the care workers to meet client needs, pick up additional hours, and I suppose the - I will let you ask more questions.

PN2660

No. Sorry, please go on if you ‑ ‑ ‑ ?‑‑‑Just from the overtime, and it's finishing off that clause, and if we were to pay overtime for those 14,000 hours for the month, that's $175,000 or a couple of million dollars in a year in terms of a cost if it was to be at half time extra.

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2661

So just going through your answer, then, do I take it then that the answer to my question is, 'No, HammondCare hasn't gone back to review whether it should offer some additional guaranteed hours to part-timers in response to that number of additional hours?‑‑‑When you say guaranteed, do you mean contract hours?

PN2662

Yes?‑‑‑Yes, we review them. And that's an obligation in our enterprise agreement that we do that.

PN2663

No, I'm not talking about that process of review. I'm saying as a consequence of racking up that many hours in the month of May, did that cause HammondCare to think, 'Oh, maybe we need to get some people onto some greater guaranteed hours per week'?‑‑‑(1) We were able to meet those additional hours through our care workers who want them, so it serves the operational purpose. In terms of recruiting additional staff, that's operating in a different environment, because additional staff are difficult to obtain in the current environment. For instance, that's why we say on our enterprise agreement we offer a broken shift allowance. That's one of the differentiators we use to separate us from other providers. Our care workers are ‑ ‑ ‑

PN2664

Do I take it that the answer ‑ ‑ ‑ ?‑‑‑ ‑ ‑ ‑ happier to get those additional hours, and we look to review their contract hours, and we do look at recruiting additional staff where we need to.

PN2665

All right. But does that mean that the answer to my question is: 14,000 additional hours in May didn't lead to HammondCare reviewing the amount of guaranteed hours it offers its part-time workforce?‑‑‑I would just agree with you - agree with your answer, given the explanation ‑ ‑ ‑

PN2666

If they in fact did, please let me know. If HammondCare in fact did that, please let me know?‑‑‑I only know from operations that they review hours all the time. So they've got to match the care hours with the staffing hours, so there's always a match there. If we run out of hours to meet the care needs, then obviously that's a recruitment need. So that's up to a site, an office manager or area manager to review its hours constantly: do we need to recruit extra staff to meet the care hours; or are there sufficient hours on those additional hours that are presently picked up by staff who are happy to pick them up? So to come back to answer your question, an area manager would review its hours on a monthly basis in its operational area.

PN2667

All right. But you don't have any direct knowledge of this having taken place?‑‑‑No.

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2668

Do you agree with this: in the period since the introduction of consumer-directed care, HammondCare's financial position has improved dramatically?‑‑‑Can you repeat that question?

PN2669

In the period since the introduction of consumer-directed care, HammondCare's financial position has improved dramatically?‑‑‑Based on our annual accounts, you're referring to?

PN2670

Yes?‑‑‑Can I say our financial position is strong, yes, although the accounts for the year ended June 2019, which aren't available yet, they will be available at the end of this month, our CEO has informed us that we've taken a hit of 81 per cent reduction in operating surplus. So in a difficult operating environment we've lost a significant surplus.

PN2671

Let me take you to some documents. Before I do, do you agree with this proposition: one of the strengths of HammondCare's approach is that it has an integrated range of services?‑‑‑Yes.

PN2672

In fact, that's the story Hammond tells to the world, that its strength comes from the fact that it has diversified its service offering?‑‑‑Yes. And also evidence-based practice.

PN2673

I just want to take you, if I might, to a page from the latest annual report.

PN2674

Show the witness those.

PN2675

Do you recognise the page that I've given you, Mr Wright?‑‑‑Yes.

PN2676

It comes from the latest annual report for HammondCare?‑‑‑Yes.

PN2677

And we see there total revenue for the company increased in 2017-2018 to 276.8 million. That's up from last year?‑‑‑Yes.

PN2678

If we look down the bottom of that page, which is numbered 44, and we just take the HammondCare at home part of the equation, do you see the reference there?‑‑‑Yes.

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2679

That part of the HammondCare business has grown by 13.8 per cent for the most recently reported financial year?‑‑‑Yes, for 2018.

PN2680

And if we look across the page to the net asset position on page 45, we see total assets of 731 million, and net assets of 328 million. Yes?‑‑‑Yes.

PN2681

I tender that. I would like to take the witness to another document, if I might.

PN2682

JUSTICE ROSS: Mark that exhibit HSU9.

EXHIBIT #HSU9 EXTRACT FROM ANNUAL FINANCIAL REPORT 2017-2018 REPORT OF HAMMONDCARE

PN2683

MR DOUST: I will show you a further document, if I might. I ask you to have a look at that document, Mr Wright?‑‑‑Sorry, I've got marks on that one. Is that ‑ ‑ ‑

PN2684

Perhaps we can swap?‑‑‑Shouldn't have said anything.

PN2685

I hope I haven't made any untoward annotations in the margin. Are those documents, Mr Wright, that you're familiar with?‑‑‑Some years ago. You've just taken them from our annual report from 2015.

PN2686

For HammondCare. If we just look at the - if we look at the inside page, which was the eighth page - this is an extract, I should say, from the financial report for that year ended 30 June 2015. We can see there, can't we, and please correct me if I'm wrong, just from page 8, that for 2015 the revenue was 186,670,000. Do you agree with that?‑‑‑Yes.

PN2687

And that compares, for 2015, with the amount that's on that earlier page that I gave you, which is 276.8 million for 2018. That's the comparable figure, isn't it?‑‑‑Yes, it is.

PN2688

And for 2015 we had a surplus for the year of 8 million?‑‑‑Yes.

PN2689

When I say 'we' I mean HammondCare. HammondCare did. That's right, isn't it?‑‑‑Yes.

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2690

And the comparison, if we go back to the first document I gave you, is on the front page under that heading Surplus. You can see net surplus for 2017-2018 was 12.1 million, a 19.8 per cent increase?‑‑‑Yes.

PN2691

That's correct?‑‑‑Yes.

PN2692

All right. And what we see from that first page of the 2015 financial report is that there has been - sorry, I will just go over the page if I might. We can see for 2015 the total assets, this is on page 9 from the 2015 report?‑‑‑Mm‑hm.

PN2693

Do you have that? And we have a total assets there of 450 million. Do you see that figure?‑‑‑Yes.

PN2694

No reason to think that this is incorrect?‑‑‑I've got no reason to think it's incorrect, no.

PN2695

And going back, the comparator for that figure on the annual report 2018 extract I gave you, is the figure of 731 million in total assets that's at page 45 of that first document?‑‑‑Yes.

PN2696

So there has been a growth in total assets of about just shy of 300 million, 280 million-odd?‑‑‑Yes.

PN2697

And looking at the net asset base, in 2015, if we go down the page to the final sort of box on the page, we see a net asset figure of 190 million there. Do you have that?‑‑‑Yes.

PN2698

And that compares, doesn't it, to net assets for the 2018 financial year of 328 million?‑‑‑Yes.

PN2699

HammondCare has, in that period, grown like Topsy. Wouldn't you agree?‑‑‑It has grown significantly, yes.

PN2700

I tender both of those - the second document.

PN2701

JUSTICE ROSS: I will mark that exhibit HSU10.

EXHIBIT #HSU10 EXTRACTS FROM THE HAMMONDCARE CONSOLIDATED FINANCIAL REPORT FOR THE YEAR ENDED 30/06/2015

*** JEFFREY SIDNEY WRIGHT XXN MS DOUST

PN2702

MR DOUST: Mr Wright, can I just go back to the question of cancellation I asked you about before, where I was asking you about paragraph 29 and paragraph 30. And you suggested that there cannot be a cancellation fee charged under the CHSP scheme. Do I understand your evidence correctly?‑‑‑Yes.

PN2703

You're saying that it cannot - you're saying definitively you cannot charge a cancellation fee under that scheme?‑‑‑Out of the package funds that you get for that scheme.

PN2704

Could I just ask you this: is it possible you're mistaken on that issue?‑‑‑I'm happy for you to correct me, or I can - that was - my understanding from the operations people is CHSP, you get the block funding; it's spent on the service for the client; what's not spent goes back to the government. And in that funding, because it's funding for service, there's no provision in that funding for charging the client cancellation fees out of that block funding.

PN2705

But your understanding there is based on what you've heard from other people in the organisation?‑‑‑From operations people who are in that space within the organisation, yes.

PN2706

All right. But is it something that you feel any level of certainty about? Are you advancing it as something you're certain about?‑‑‑I'm relying on information that has been provided by me from the operational people.

PN2707

All right. Thank you. Nothing further.

PN2708

JUSTICE ROSS: Any other cross-examination?

PN2709

MR BULL: I've got some very brief questions.

CROSS-EXAMINATION BY MR BULL [2.46 PM]

PN2710

MR BULL: Mr Hammond, have you got a copy of the agreement with you - Mr Wright, sorry. I withdraw that. My name is Stephen Bull, and industrial officer for United Voice, which may or may not be a union you're familiar with?‑‑‑Yes, I am.

PN2711

We have coverage of home care workers, and that's our interest in these proceedings. You've indicated in your statement - first of all, I congratulate you on providing home care workers with a mobile phone?‑‑‑Thank you.

*** JEFFREY SIDNEY WRIGHT XXN MR BULL

PN2712

Could you turn to paragraph 36 of your statement. You're dealing with - do you want to just - have you got it in front of you?‑‑‑Yes.

PN2713

And have you also got a copy of the agreement with you?‑‑‑Yes.

PN2714

And you've refreshed your memory about what you say there?‑‑‑In terms of clause 36?

PN2715

Yes. You're basically saying that if the company was required to pay overtime to part-timers who worked in excess of their contracted hours, that it would cause difficulties?‑‑‑Yes.

PN2716

Under your agreement part-timers have an entitlement to overtime. That's correct?‑‑‑In the overtime clause, where they work in excess of 76 hours, or 10 hours in a day; the standard overtime clauses. But are you suggesting if they work more than their part-time hours, that they get overtime?

PN2717

No, I'm not suggesting that?‑‑‑I just - sorry, I want that ‑ ‑ ‑

PN2718

No, no, I'm not suggesting that. I'm saying ‑ ‑ ‑ ?‑‑‑If you could clarify the question, that would help.

PN2719

MR SCOTT: Can I suggest if he's asking about the enterprise agreement, he can take him to the relevant clause, otherwise ‑ ‑ ‑

PN2720

MR BULL: Clause 23.2(a). The gentleman is the head of HR?‑‑‑Clause 24.

PN2721

24, is it?‑‑‑Point 2.

PN2722

Sorry, I apologise. I withdraw that.

PN2723

And there's also provisions relating to roster changes without seven days' notice for employees.

PN2724

MR SCOTT: You need to take him to clause ‑ ‑ ‑

*** JEFFREY SIDNEY WRIGHT XXN MR BULL

PN2725

MR BULL: Just one minute.

PN2726

And that's clause 14, which is in the rostering clause of the agreement. And perhaps the relevant part of the rostering clause is 14.3?‑‑‑Yes.

PN2727

Whilst there isn't something called overtime, if a part-time worker isn't given seven days' notice and they don't fall within the exception, and the employer, you, require that part-time worker to work additional hours, there is some penalty paid, isn't there?‑‑‑Work the additional hours is by agreement.

PN2728

Let's say there is an agreement. So you desperately need a particular part-time worker to come in because there's no one else who can do the work, and you have to direct that person to come in?‑‑‑Can I refer you to clause 11.3.3.3, it says:

PN2729

In the event where all other available options are exhausted, HammondCare may direct a part-time employee to work beyond their rostered hours on any one day. Only in these circumstances are these additional hours to be paid in accordance with 24.2, which is overtime.

PN2730

In annexure A of the agreement there's something called a roster change allowance. You would agree with that?‑‑‑Sorry, we don't have that in our agreement.

PN2731

I've got a copy of the agreement. Could you turn to the HammondCare Residential Care Victoria - I withdraw that. I've been given the wrong agreement. That's my fault?‑‑‑So that's a residential agreement, that one.

PN2732

Yes, I apologise for that?‑‑‑And yes, there is an allowance in that particular agreement.

PN2733

Just quickly, in relation to clothing, you haven't mentioned whether you have a clothing allowance?‑‑‑No, we don't, nor uniform allowance.

*** JEFFREY SIDNEY WRIGHT XXN MR BULL

PN2734

What do you do with - do you provide a uniform to your staff?‑‑‑No. HammondCare doesn't have a uniform. It's a deliberate decision because whether it's residential or home care, we don't want to institutionalise any form of care, so rather than have, in the home care space, someone roll up in a uniform or a badged car, we don't want to flag to the community that this particular client at home is receiving this service. So it's very much bring it back to a home care, a home-like environment where there's no branding. If I can stop there. Anyway, it gives you the context of why no uniforms.

PN2735

So the issue of clothing allowance isn't relevant because you made a decision not to have uniforms?‑‑‑No. The major decision is how we relate to our clients or residents in the residential space, to remove that institutionalise. But there's no clothing allowance or uniform allowance or laundry allowance.

PN2736

They're the only questions I wanted to ask.

PN2737

JUSTICE ROSS: Any other cross-examination? Any re‑examination?

PN2738

MR SCOTT: No, thank you, your Honour.

PN2739

JUSTICE ROSS: All right. Thank you for your evidence. You're excused.

<THE WITNESS WITHDREW [2.53 PM]

PN2740

JUSTICE ROSS: Can we just go through the program for tomorrow?

PN2741

MR SCOTT: I'm happy to take your Honours through it if that assists. Tomorrow, based on what I think is the latest version of the schedule, we have six witnesses, five ABI witnesses and one from ASU; starting with Mr Shanahan at 9.30 am via telephone, and then Ms Ryan also by telephone. They're the two Coffs Harbour-based witnesses. Mr Harvey at 11 am in Sydney. Mr Encabo, I understand is an ASU witness who I think arrangements may have been made from Albany Magistrates Court. And then a further two ABI witnesses.

PN2742

And so in terms of objections, I've had discussions with my colleagues about those objections. We've rationalised those significantly. Whether we deal with those this afternoon, whether we deal with those first thing in the morning, or whether we deal with those as each witness is called, I'm in your Honour's hands.

PN2743

JUSTICE ROSS: Are there very many for each witness? Is it more convenient to deal with them as each witness is called, or would you rather deal with them - what's the preference of ‑ ‑ ‑

PN2744

MR DOUST: I'm in your Honour's hands. Most of them have resolved.

PN2745

MR SCOTT: I think a quick number - sorry. I think there's about 10 across five witnesses, so it's not a huge number of objections.

*** JEFFREY SIDNEY WRIGHT XXN MR BULL

PN2746

MR DOUST: But they're vehement.

PN2747

JUSTICE ROSS: Sorry?

PN2748

MR DOUST: But they're vehement, your Honour.

PN2749

JUSTICE ROSS: Of course they are.

PN2750

MR DOUST: There may not be many, but they're fierce.

PN2751

JUSTICE ROSS: We can deal with them as each witness is called.

PN2752

MR SCOTT: As the Commission pleases.

PN2753

MR BULL: There's a separate matter I will raise if there's a moment.

PN2754

JUSTICE ROSS: Sure.

PN2755

MR BULL: Your Honour, there was - in relation to Deon Flemming - and it's AiG1, which is a confidential exhibit - essentially that contains the lists of client names and so forth. The original statement had a redacted list. We would like to have a formal order made to protect the identity of ‑ ‑ ‑

PN2756

JUSTICE ROSS: When it came up I indicated that you should reach an agreement and submit a consent order.

PN2757

MR BULL: We haven't, unfortunately.

PN2758

MR FERGUSON: (Indistinct) the only issue we've raised is the form of the order that has been proposed I think is in a form that the Commission doesn't have power to issue, because it goes to potentially directing parties not to disclose the information to other third parties. We've volunteered to give a relevant undertaking, but for the order to deal with just the publishing of material, I think that's a sticking point between us, because I think there's a view that the Commission can more widely give order.

PN2759

And the second thing is we've just said we do propose to talk to the employer about the roster, which they undoubtedly have, and that's a sticking point between the parties. Otherwise ‑ ‑ ‑

PN2760

JUSTICE ROSS: Why can't they talk to the employer about the roster?

PN2761

MR BULL: They haven't - they didn't cross-examine this witness on this material. My friend does not appear to have a relationship in the sense that the employer is not a member; there does not appear to be a solicitor-client relationship; I can't see any conceivable reason why - isn't confidentiality about not telling third parties or effectively strangers? So we are concerned about - our member has anxiety, and it's just proper that an order should be made essentially drawing a veil over the names of persons in the document.

PN2762

JUSTICE ROSS: Each of you file a copy of the order you're seeking, and Clancy DP will deal with it in due course.

PN2763

MR BULL: I can file a copy now, or I can do it electronically.

PN2764

JUSTICE ROSS: No, file it electronically. Anything else? Yes.

PN2765

MR DOUST: Can I raise one thing, your Honour, and that's this: I'm sorry if I'm wasting anyone's time, I just wanted to clarify the position in respect of one of ABI's witnesses that appears in the court book at page 181, Mr Collins, Mr Andrew Collins.

PN2766

MR SCOTT: I can indicate we're not relying on that witness. The statement won't be tendered.

PN2767

JUSTICE ROSS: It's in the court book so it's before us, so what you will need to do is just send a note in saying you ask for the relevant parts of the court book to be withdrawn.

PN2768

MR DOUST: And just for the record, he was a witness who we required if he was - sorry. We had asked for him to be available for cross-examination in the event he was to be relied upon.

PN2769

JUSTICE ROSS: Sure. But he's not, so yes.

PN2770

MR DOUST: No, I appreciate that.

PN2771

JUSTICE ROSS: Anything else? All right. Then just to remind you to give some thought to the question I raised about the directions and when you will be able to finish the - or get that material in that's listed in A through to D in Ai Group's proposal. If you can let me know that at the beginning of tomorrow. And once we adjourn, Lee C will have a chat with you about that 24-hour clause issue. Nothing further? Thanks. We will adjourn.

ADJOURNED UNTIL FRIDAY, 18 OCTOBER 2019 [2.59 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NDS3 PARTS OF DAVID MOODY’S STATEMENT NOT READ PN1914

EXHIBIT #UV7 STATEMENT OF MELISSA COAD DATED 16/09/2019 PN1930

EXHIBIT #UV8 STATEMENT OF JARED MARKS DATED 03/10/2019 PN1933

STEVEN MILLER, AFFIRMED..................................................................... PN1980

EXAMINATION-IN-CHIEF BY MR PEGG.................................................. PN1980

EXHIBIT #NDS2 STATEMENT OF STEVEN MILLER DATED 28/06/2019 PN1988

CROSS-EXAMINATION BY MR ROBSON.................................................. PN1991

EXHIBIT #ASU3 ENDEAVOUR ANNUAL REPORT 2017-18.................. PN2026

THE WITNESS WITHDREW.......................................................................... PN2081

JAMES STANFORD, AFFIRMED.................................................................. PN2215

EXAMINATION-IN-CHIEF BY MR ROBSON............................................. PN2215

EXHIBIT #ASU4 STATEMENT OF DR JAMES STANFORD.................. PN2220

CROSS-EXAMINATION BY MR FERGUSON............................................ PN2222

RE-EXAMINATION BY MR ROBSON.......................................................... PN2281

THE WITNESS WITHDREW.......................................................................... PN2289

DARREN JOHN MATHEWSON, SWORN.................................................... PN2308

EXAMINATION-IN-CHIEF BY MR SCOTT................................................ PN2308

EXHIBIT #ABI2 WITNESS STATEMENT OF DARREN MATHEWSON PN2313

CROSS-EXAMINATION BY MR BULL........................................................ PN2316

CROSS-EXAMINATION BY MS DOUST...................................................... PN2462

RE-EXAMINATION BY MR SCOTT............................................................. PN2487

FURTHER CROSS-EXAMINATION BY MS DOUST................................. PN2513

THE WITNESS WITHDREW.......................................................................... PN2518

JEFFREY SIDNEY WRIGHT, SWORN......................................................... PN2522

EXAMINATION-IN-CHIEF BY MR SCOTT................................................ PN2522

EXHIBIT #ABI3 WITNESS STATEMENT OF JEFFREY WRIGHT....... PN2528

CROSS-EXAMINATION BY MS DOUST...................................................... PN2535

EXHIBIT #HSU7 SCHEDULE OF FEES FOR HOME CARE SERVICES AT HAMMONDCARE............................................................................................. PN2570

EXHIBIT #HSU8 CONTRACT OF EMPLOYMENT FOR HAMMONDCARE HOME CARE AT HOME EMPLOYEES.................................................................................. PN2591

EXHIBIT #HSU9 EXTRACT FROM ANNUAL FINANCIAL REPORT 2017-2018 REPORT OF HAMMONDCARE....................................................................................... PN2682

EXHIBIT #HSU10 EXTRACTS FROM THE HAMMONDCARE CONSOLIDATED FINANCIAL REPORT FOR THE YEAR ENDED 30/06/2015.................... PN2701

CROSS-EXAMINATION BY MR BULL........................................................ PN2709

THE WITNESS WITHDREW.......................................................................... PN2739