|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 1348
A 24.1.02
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
JUSTICE GIUDICE
VICE PRESIDENT ROSS
VICE PRESIDENT McINTYRE
COMMISSIONER GAY
COMMISSIONER FOGGO
C2001/348, 362, 2248, 2251,
2256, 2514, 2515, 2516, 2528,
2648, 2757, 3141, 3356, 3441,
3233, 3234, 3686, 3687 and 3688
COAL MINING INDUSTRY (PRODUCTION AND ENGINEERING)
CONSOLIDATED AWARD 1997
AMBULANCE EMPLOYEES - VICTORIA INTERIM ORDER (1994)
RETAIL AND WHOLESALING INDUSTRY - SHOP EMPLOYEES -
AUSTRALIAN CAPITAL TERRITORY - AWARD 2001
AUSTRALIA POST GENERAL CONDITIONS OF EMPLOYMENT
AWARD 1999
RAILWAY PROFESSIONAL OFFICERS AWARD 1974
TENIX DEFENCE SYSTEMS PTY LTD (DRAUGHTING,
TECHNICAL AND SUPERVISORY EMPLOYEES) AWARD 2000
SPACE TRACKING INDUSTRY AWARD 1998
HORSE TRAINING INDUSTRY AWARD 1996
AUSTRALIAN PUBLIC SERVICE AWARD 1998
NATIONAL ELECTRICAL, ELECTRONIC AND
COMMUNICATIONS CONTRACTING INDUSTRY AWARD 1998
INSURANCE INDUSTRY AWARD 1998
TEACHERS (VICTORIAN GOVERNMENT SCHOOLS) CONDITIONS OF EMPLOYMENT AWARD 2001
MEDICAL OFFICERS (NORTHERN TERRITORY PUBLIC
SECTOR) AWARD 1994
AIRLINE OPERATIONS - FLIGHT ATTENDANTS LONG
HAUL - QANTAS AIRWAYS LIMITED - AWARD 2000
Applications under section 113 of the Act by the Construction,
Forestry, Mining and Energy Union and Others to vary the above
awards re reasonable hours of work clause
CLERICAL AND ADMINISTRATIVE EMPLOYEES (VICTORIA)
AWARD 1999
RETAIL AND WHOLESALE INDUSTRY - SHOP EMPLOYEES -
AUSTRALIAN CAPITAL TERRITORY AWARD 2000
Applications under section 113 of the Act by the Australian
Chamber of Commerce and Industry to vary the above awards re
reasonable hours of work clause
STORAGE SERVICES - GENERAL - AWARD 1999
CLERICAL AND ADMINISTRATIVE EMPLOYEES (VICTORIA)
AWARD 1999
BUSINESS EQUIPMENT INDUSTRY - TECHNICAL SERVICE -
AWARD 1999
Applications under section 113 of the Act by the Victorian
Employers Chamber of Commerce and Industry and Others to
vary the above awards re annualised wage rates
MELBOURNE
10.05 AM, WEDNESDAY, 21 NOVEMBER 2001
Continued from 20.11.01
PN2051
JUSTICE GIUDICE: Mr Watson.
PN2052
MR MARLES: Your Honour, I might just try and keep you updated with where we are at in terms of witnesses. Ms Heiler is obviously ready to give evidence now, and in the event that she is not finished by lunchtime, would be in a position to give evidence tomorrow morning. Professor Dawson is only available this afternoon, so I think we would need to move on to him if we are not finished with Kathryn Heiler. The other issue is that Dr John Buchanan is only available tomorrow and so it might again mean putting Dr Campbell off until after him, so the order may well now be Heiler, Dawson, Buchanan, Campbell.
PN2053
PN2054
MR G. WATSON: Ms Heiler, did you have a chance to look at the claim in this matter overnight?---Yes, I did.
PN2055
Have you got a copy of it there with you in the witness box?---Yes, I do.
PN2056
Yes. Do you see that part 1 of the claim is that:
PN2057
An employer must not require an employee to work unreasonable hours of work.
PN2058
You understand that that paragraph does not limit employees from working unreasonable hours of work if they choose to do so?---That appears to be required by that clause, yes.
PN2059
Did you understand that that is a conscious step by the applicants in the proceedings to ensure that employees were not limited in their ability to work hours that they agreed to work?---I guess I am aware of that, yes.
PN2060
Yes. Now, do you see subclause 2 of the proposed clause?---Yes.
PN2061
And do you see the second paragraph of that says:
PN2062
An employee may refuse to work hours in excess of ordinary hours on a particular day for reasons which may include but not be limited to an employee's family responsibilities or the prearranged personal commitments of the employee.
PN2063
?---Yes.
**** KATHRYN HEILER XXN MR G. WATSON
PN2064
Now, you understand that that is a significant change from the current ability of employees to refuse a request or direction to work reasonable overtime?---I thought about that last night. I thought very carefully about what it might mean, last night, as I watched the soccer, and I have to admit that upon reflection I think, without trying to second-guess the intention of whoever drafted it, I think that what the intention is is an attempt to codify what is implicitly going on at the moment. In other words, there is an implicit right that people have to refuse overtime. Whether or not that becomes a subject of disputation I guess depends on the circumstances, but my guess is that what that is doing is trying to codify, however perhaps inadequately drafted, but an attempt to actually set out under what conditions employees have a right to refuse overtime; a right that I believe is actually part of current practice at the moment.
[10.10am]
PN2065
You accept that in the coal industry where the ordinary hours are 35 per week for production and engineering employees covered by the award subject to these proceedings, that rosters invariably incorporate rostered overtime, do you accept that?---Yes, I do.
PN2066
And for example a 12 hour shift roster based on four 12 hour shifts in an eight hour eight day period, which involves an average of 42 hours per week over the period of a cycle, do you accept that?---I do accept that, yes.
PN2067
That this clause would enable an employee when they move into the overtime element of the roster to say I don't want to work the rest of this shift, I want to go home and watch the soccer on the television, and could refuse to work the remainder of the shift insofar as that constituted rostered overtime, do you accept that?---No.
PN2068
Well, why don't you accept that?---Because I think that the refusal to work overtime is a current right and I think that what occurs at present in practice is that to varying degrees the workplace parties accept a degree of overtime.
**** KATHRYN HEILER XXN MR G. WATSON
PN2069
But Ms Heiler, this says an employee may refuse to work hours in excess of ordinary hours on a particular day. And in the example I have given you - - -?---Yes, I understand.
PN2070
Yes. Why can't an employee say, I want to go home and watch the football on television, I don't want to work the rest of this shift because it is overtime? You must accept that that can occur under that clause?---I guess while I have no way of knowing is what weight, when it is balanced against 2.1, that right of refusal over employee's family responsibilities, or pre-arranged personal commitments may include.
PN2071
Well, let me put it this way if the clause could lead to an employee having the right that I have just described to you, that would be ridiculous wouldn't it?---I guess no more ridiculous than the right that is implicitly contained within the notion of reasonableness at the moment. I mean there is a level of commonsense negotiation - - -
PN2072
So you regard that as ridiculous do you?--- - - - that does go on at a workplace level.
PN2073
Well, this could be a problem that also applies for a standard Monday to Friday, five day eight hour roster in the coal industry, rotating shifts or fixed shifts, where usually the final hour of each shift in the week is overtime isn't it?---Yes.
PN2074
What is to stop under this clause the dragline operator saying, "I want to go home early this afternoon or tonight, I have got an important golf game tomorrow. I want to get a good night's sleep and I don't want to work the rest of the shift and leave an hour early." If this clause allowed that, that would be ridiculous, wouldn't it?---If the clause did allow that, yes, that would be ridiculous. I agree with you.
PN2075
And if that sort of practice was allowed to occur, then the employer would need to have other mechanisms in place in order to ensure that production was continued?---I am prepared to agree with you that that particular clause can do with some redrafting. I agree with you on that.
**** KATHRYN HEILER XXN MR G. WATSON
PN2076
Yes. Well, let's return to my question. If the clause operated in that way, then the employer would need to make other arrangements to ensure that production was not interfered with by the right created by that clause?---Yes, I have agreed with you that it would create operational problems. I agree with you.
PN2077
Yes, yes. And one of the mechanisms that the employer would need to seriously consider would be to look at other employees working overtime to cover for the people who chose not to work the overtime in question?---Theoretically, if it was taken to its most ludicrous extremes, yes.
PN2078
Well, you understand that the regime sought to be created here is for no limitation on employees' rights to volunteer for overtime, but additional limitations on the employer's ability to require employees to work overtime; do you accept that?---As I said yesterday, I agree with the principles underpinned by the application, not necessarily every detail of it.
PN2079
Yes. My question was do you appreciate that the regime sought to be created here is for no limitations on employees volunteering for overtime, but restrictions on an employer's ability to require employees to work overtime?---Within the limits set out further in the clause.
PN2080
Yes. Now, would you accept therefore that with the regime that I have just described and you have agreed, subject to a general rider, is accurate, that there is a real risk of there being greater dispersion of overtime practices dependent on the individual preferences of employees?---I am thinking. I don't - that is contingent on that clause creating the kinds of problems that you are proposing.
PN2081
Make the assumption that it has the effect and it is the type of regime that I have described and you have agreed is accurate conditionally?---I guess it is like yesterday where it is contingent on so many other factors that I feel uncomfortable about accepting a proposition that doesn't also take into account the other mediating factors that we know realistically - we know realistically - would occur at a workplace level.
[10.20am]
**** KATHRYN HEILER XXN MR G. WATSON
PN2082
Well, can I take you to paragraph 29 of your coal industry statement, which was ACTU4, now - - -?---Excuse me, I'm sorry, I only have my copy. I don't have - - -
PN2083
Do you have your - - -?---- - - paragraph 29, sorry.
PN2084
Yes, paragraph 29?---Yes.
PN2085
I assume your copy has the same numbered paragraphs?---I assume so.
PN2086
Now, this is in relation to a particular site you made this comment, isn't it?---Yes.
PN2087
And you say:
PN2088
Some of the reasons these hours are worked at this site include a combination of the following.
PN2089
Now, the first point is the employees involved have been locked in to additional money delivered by overtime?---Yes.
PN2090
So do you accept that that is a possible explanation of employees willingness to volunteer for overtime?---One of them, yes.y
PN2091
Yes. And the second dot point is another one of those which relates to the uncertain future of the mine and a desire to - - - ?---Yes.
PN2092
- - - earn as much as they can because of their fear of the future?---Yes.
**** KATHRYN HEILER XXN MR G. WATSON
PN2093
And then the next point relates to management's management of individual hours?---Excuse me, what does the next point mean?
PN2094
It relates to management's management of individual hours?---The way that overtime had been managed, yes.
PN2095
Yes, of overtime hours. And the next three points also deal with management's consideration of options and preferences for using people on overtime for a variety of reasons, rather than employing additional staff?---Yes.
PN2096
Now, do you accept that in a regime which involves no limitation of employees volunteering for overtime that the risk management responsibilities of management as they exist now will still have to be exercised in the same way - in the same manner or even in an increased manner in an environment created by the clause, by the claim where there are no limits on employees working overtime, but increased limits on employers requiring employees to work overtime. Do you accept that?---That the duty of care to risk manage those factors would still be there, even under those conditions.
PN2097
Yes?---Yes. Yes.
PN2098
Yes. And it may even be greater given the limitations on the company in requiring employees to work overtime in an effort to spread the load of overtime more evenly amongst the workforce?---However, the working of overtime is not management's only option, as was exposed in that particular example. When management chooses to carry a large overtime load, then they also have to manage the risks associated with that.
PN2099
Yes, well - - -?---There were other options.
**** KATHRYN HEILER XXN MR G. WATSON
PN2100
Yes. Well, assuming that overtime is the option they choose, then their responsibility in the duty of care and risk management is at least as high, and possibly greater, under the regime of the claim compared to the current situation?---I think that responsibility is there, irrespective of the claim.
[10.25am]
PN2101
Now, figure 6A of your Coal Industry report in exhibit ACT4 is information relating to a particular mine, isn't it?---Yes.
PN2102
And you have undertaken not to disclose the identity of any of the mines for which you - - -?---That is correct.
PN2103
- - - provided details. And I don't want you to breach that undertaking?---I will not. I will not breach that.
PN2104
And I want you to understand that?---I do understand that.
PN2105
Yes. Do you see that some of the employees in question - a number of them - are around about the 48 hours per week on average?---Can I just double-check with you that we are looking at the table that is after paragraph 24?
PN2106
It is just before paragraph 24 in my version, and it is figure 6A, "Average and overtime hours February to June 2001"?---Excuse me, is that the - which statement was that, I am sorry? I just - - -
PN2107
It is the Coal Industry one?---I have only got figure 6, sorry, in my copy.
PN2108
I see. What is your figure 6 title?---"Average and overtime hours February to June 2001".
**** KATHRYN HEILER XXN MR G. WATSON
PN2109
Yes. And I think this figure is in both reports, isn't it?---Yes.
PN2110
And it is the one which has got on a vertical axis hours per week, and 10 employees across the horizontal axis?---Excuse me, is it possible that I could - so that we could look at the same copy?
PN2111
COMMISSIONER GAY: Yes, perhaps we will show the witness, Mr Watson?---Yes.
PN2112
JUSTICE GIUDICE: What document are you looking at, Ms Heiler?---Yes, I am sorry, it was just figures, slightly differently. The figure 6A I didn't have the A on top of mine in my original one. It is possible that I copied at work a slightly earlier draft of that.
PN2113
It might be desirable - Mr Marles, have you got a spare copy so that it might reduce the confusion?---I am sorry about that. I am working with records from away from work.
PN2114
MR G. WATSON: Yes, I do, your Honour. Obviously it contains another witness statement on the back.
PN2115
Now, do you see that a number of the employees at just below or just above the 48 hours per week average over the period February to June 2001?---Yes, I do.
PN2116
Yes. And do you understand that part 3 of the claim in the matter is to provide an additional benefit for employees if they work an average of 48 hours per week over a 12 week period?---Yes, I do.
**** KATHRYN HEILER XXN MR G. WATSON
PN2117
Do you accept that in a regime where overtime is voluntary, and there is no limitation on employees volunteering for overtime, and working long hours, that the effect of the claim may be to provide an incentive for employees to reach that 48 hours per week level in order to obtain the extra benefits provided for in the clause?---Well, I guess the clause makes it possible for employees to accept the overtime, but it doesn't make it compulsory for employers to provide it. So I guess the trick would be to make sure that whatever overtime was being provided fits within that 48 hour limit over six months, 12 months.
PN2118
Yes. And do you accept that it might be more difficult for the employer to spread the overtime if they cannot require people who are unwilling, conscripts for overtime, and that people who volunteer may indeed see something of an incentive of getting to that 48 per week average in order to qualify for the extra benefit?---I understand what you are saying. I guess my view would be from what I have seen is that that would just require more active management. I don't think it necessarily means that there be a greater incentive to work it. I guess the incentive will be for management to manage it better. The right to accept it doesn't impact on - - -
[10.30am]
PN2119
Have you conducted any study of collective bargaining in the coal industry to determine what has been achieved in terms of hours of work issues and lengthy hours in the coal industry?---In terms of hours claims?
PN2120
Yes?---I am generally aware, but no I haven't conducted a detailed study.
PN2121
Would you take the view that collective bargaining has not had an impact in limiting the working of excessive hours in the coal industry?---I would agree with that. I would agree that the unions are just as culpable in that regard.
PN2122
I am sorry, I didn't hear that, the unions - - -?---I would agree that the unions are culpable in that regard.
**** KATHRYN HEILER XXN MR G. WATSON
PN2123
And are you aware that enterprise agreements in the coal industry often incorporate specific rosters?---Yes.
PN2124
In other words the rosters are the subject of negotiations?---Yes.
PN2125
And that enterprise agreements also incorporate flexibilities in working hours?---They can do.
PN2126
Now, I take you to one aspect of your other statement which is in exhibit ACTU2. It is entitled, how effectively do we regulate excessive hours of work in Australia?---Yes.
PN2127
It is tab 6.
PN2128
JUSTICE GIUDICE: Just before you go to that Mr Watson, can I ask you a question, Ms Heiler, about figure 6A?---Yes.
PN2129
I do not want to assume anything about your position on the detail of the ACTU claim, but is it your position that all of the - or each of the 10 employees averaging more than 48 hours per week should not be permitted to work hours above that figure?---Is it my personal view?
PN2130
Well - - -?---Over that period of time?
PN2131
Yes, I suppose - - -?---Yes, okay. Well, my view is that the requirement to keep average hours, average hours - now the - as you know, the claim allows for 60 hours per week averaged over a month which is - - -
**** KATHRYN HEILER XXN MR G. WATSON
PN2132
Over a shorter period, yes?---Yes, that's - I mean that allows for great fluctuations over that month. So it does actually allow for enormous hours to be worked over a shorter period with the aim to try to rein it in over a longer period of time. And my personal view is that that would be a progressive achievement, yes. Because they are struggling to maintain that longer average.
PN2133
But if one were looking at this chart?---Yes.
PN2134
In the - it might be imagined if the claim were granted, would nobody average more than 48 is that the desirable end from your point of view, this being a chart I think over about four and a half, maybe five months?---I do believe that an overall average of 48, with the kinds of higher averages allowed for under the claim, is a reasonable claim. Because what you are trying to do is allow for short term, very long working hours, but with the incentive to try to manage those very long hours over the longer term. And so what that is trying to ensure is to provide regular cumulative time away from work instead of a sustained pattern of 60, 70 or even in excess of 80 hours every week. What it does is it provides an incentive to try to rein that in over a longer period of time, without taking away the flexibilities that organisations need from time to time to work people longer hours over a week or even two. So to me it seems like it is a modest claim in that respect, given it allows for 60 hours a week averaged over four weeks. Theoretically you could work 120 hours in one week, so it allows for very long short-term hours with the aim of trying to average those hours out over a more reasonable referencing period. And that is what we are lacking at the moment, any kind of referencing period that tries to manage those long hours over a longer term.
[10.35am]
PN2135
I was going to take you to table 3, which on my version is page 23 of the discussion paper you have prepared for the Victorian Government?---Yes.
PN2136
And you see that this is the table where you give examples of statutory limits in the working week. Now, the entry for the UK, you say there is a statutory maximum working week of 48 and, under the heading of examples of flexibility allowed for, you have said:
**** KATHRYN HEILER XXN MR G. WATSON
PN2137
Averaged over a 17-week period.
PN2138
Are you aware that in the UK the 48 hours maximum is able to be opted out of on an individual basis by agreement?---I knew that there were some opting out provisions, yes, I am not - it is not my area of expertise, so - - -
PN2139
Yes. Well, I suggest to you that it could be opted out of by an individual agreement between an individual employee and an individual employer; does that - do you accept that that is the nature of the limitation?---I do not know the details of that opting out provision.
PN2140
If that was the nature of the flexibility - well, firstly, why didn't you mention the detail of that particular flexibility under the table that you have set out there?---Well, because I did not include the details for any other country. It was an overview, more of an illustration rather than a detailed portrayal of what was happening.
PN2141
Well, do you accept that, if I am right in what I have suggested to you is the case in the UK, that it really is not a statutory maximum in a true sense. It is really only a limit on the working of compulsory hours above that limit?---I am sorry, I do not know the details of the claim. I cannot confirm that. I have to take your word for it.
PN2142
Yes, but what I am putting to you is that it is of quite a different nature if you accept the nature of the limitation that I have put to you?---I am sorry, I just do not know what the conditions that underpin those opting out provisions are.
PN2143
And you have not looked at it in any of that sort of detail?---It is not my area of expertise, no.
PN2144
Now, in the preparation of your reports you have used published data as well as some material that you have come into possession of in the course of consulting assignments; that is correct, isnt't it?---That is correct.
**** KATHRYN HEILER XXN MR G. WATSON
PN2145
And you have undertaken to keep confidential the identity of any particular operations where you have used data emanating from that source?---Absolutely.
PN2146
Yes. Now, you are aware that use of some of this material has caused concern with one of your clients who believe that you may be using this information without its permission?---I find that comment, after what has transpired over that incident, excuse me, to be a cheap shot, quite frankly.
PN2147
Well - - -?---That issue has been resolved, as far as I am concerned anyway. You try and cast aspersions on my use of that data. The person who gave me that data has written a formal letter saying that that data was used with permission. And I am not prepared to engage that, because I feel that what you are going to try to do is cast aspersions on that, and I find it completely unprofessional, I am sorry.
PN2148
Well, what I suggested to you was that it did cause some concern - - -?---I am well aware of that.
PN2149
Yes. So you accept that. And you investigated whether you could change your statement in the light of those concerns?---You know that I did, yes.
PN2150
Well, perhaps not everybody here does, so that is why I am asking you the questions, so you can give the answers?---Yes, I did ask whether I could use a different table, yes.
PN2151
And the CFMEU told you it was too late to make the changes?---That was my belief, yes.
PN2152
And this information was in fact compiled by management as part of the consideration of risk assessment, wasn't it?---I am not going to comment on that.
PN2153
Well, can I ask you whether these tables and the example we have just looked at, which is figure 6A in our version, was that prepared by you or was it prepared by the company in question?---Is it possible for me to take any other direction than this?
**** KATHRYN HEILER XXN MR G. WATSON
PN2154
JUSTICE GIUDICE: Well, unless there is an objection from your counsel, Mr Marles, you are required to answer the question unless you can persuade us there is some reason why you should not?---I am beholden to not reveal the identity of the company from which I obtained that information, and I will not do that. And given that there have been discussions about the source of that data and about my permission to use it, which have been satisfactorily resolved, as you know, I just feel very uncomfortable with why it is that you are asking me these questions, and - - -
PN2155
What is the relevance of the question, Mr Watson?
PN2156
MR G. WATSON: Well, the relevance of the questions go to comments made by Ms Heiler, which I will be wanting to take her to, relating to the company in question, and in the context of the comments made in her report about the situation concerned.
PN2157
JUSTICE GIUDICE: Well, Ms Heiler, what is the objection to answering the question about whether you prepared the table or somebody else prepared it?---No, I did not prepare the table.
PN2158
Well, can we move on to the next question.
PN2159
MR G. WATSON: Yes, I will. The company brought you in to assist with their risk management in the sense of work schedules, didn't they?---Yes.
PN2160
And you commend them for that?---I do, yes, I do.
PN2161
And you have told them that you believe site personnel have produced much innovative work in the area of risk assessment of work schedules?---I do - I did say that.
**** KATHRYN HEILER XXN MR G. WATSON
PN2162
Yes. And you told them that they should be proud of that?---I did. I said other things as well.
PN2163
Yes. And you said that you in no way wished to denigrate company personnel?---Some company personnel.
PN2164
Now, isn't it a bit extreme in the light of that, that in paragraph 26 of your coal industry statement you liken the table - the figures in the table in figure 6A as more reminiscent of an hours schedule one might see in a third world coal mine?---I stand by that.
PN2165
Yes?---I absolutely stand by that.
PN2166
You accept that so long as employees can voluntarily work whatever overtime they wish to work, that the sort of pattern that is reflected in figure 6A by way of example is not guaranteed to change?---I think it is the duty of care of management to not offer that overtime and to know who is working it and where it is being worked. And that was the problem at that site.
PN2167
Now, in your communications to the company in question, you indicated that you looked forward to arguing the case in this matter?---I do.
PN2168
I have no further questions.
PN2169
PN2170
MR MOIR: Good morning, Ms Heiler. I just wanted to ask you some questions dealing with that part of your report about the occupational health and safety issues?---Sure.
**** KATHRYN HEILER XXN MR MOIR
PN2171
Then I will hand over to Mr Cole who will ask you some questions about the award system and the enterprise bargaining system?---Excuse me, may I know where you are from please?
PN2172
Yes, I am from the Australian Industry Group?---Thank you.
PN2173
Just before I touch on the OH and S issues, Ms Heiler, I noted that you said before in response to a question from Mr Watson about collective bargaining in the coal mining sector, that collective bargaining heavily involves the relevant union; that is true, from your experience?---It does, generally. Generally.
PN2174
Yes, and is - - -?--- - - - but increasingly, you know, there are instances now of non union agreements in the coal industry.
PN2175
Right. And I think you said that the collective bargaining in that sector has not prevented long hours from being worked?---I agree with that; it has not, no.
PN2176
Yes. And in fact you said the unions are culpable in that regard?---I do. I do.
PN2177
Why do you make that statement?---Because I do not think that there has been adequate recognition from the trade union movement of - I do not think they have kept their eye on the ball in terms of understanding the dispersion of hours that can be worked. In other words, there has been an assumption that collective bargaining would control hours of work, and I think from time to time at a site level those hours have spun out of control.
PN2178
Based on your experience, the unions are democratic organisations; they put forward the views of their members, they put forward claims which are meant to be in the interests of their members. Is that correct?---Imperfectly from time to time, I would be honest in saying that. It is not a perfect system.
**** KATHRYN HEILER XXN MR MOIR
PN2179
But by and large they do advocate and represent the wishes and views of their members?---Again, I would say imperfectly, and sometimes not as well as they should.
PN2180
Yes, I asked you as a general rule, would you agree with that?---Well, I do not think that their performance has been consistent in that regard.
PN2181
Okay. So it is not possible then that unions in, say, the coal mining sector, in allowing long hours practices to occur, whether it be under collective bargaining or otherwise, it could not simply be that they are representing the wishes and needs and preferences of their own members?---I think sometimes they struggle to rein in their members. I think at times they are in conflict between what they might like to do and what their membership wants to do. I think those conflicts exist.
[10.50am]
PN2182
All right. Now, you talked somewhat about preferences amongst employees for overtime, I think in response to a question from Mr Marles. If I could just turn now to the other side of the equation, that is the demand side of overtime practices. You would agree that based on your experience in the field that employers will require overtime to be worked for a number of operational reasons?---From time to time, yes.
PN2183
Yes. They would include, for example, replacing other workers who are away on leave?---Well, some sites operate without overtime it is fair to say, so not - especially sites that have structured 12 hour shifts often have a couple of hours built in but do not have additional overtime. So it is not a consistent story across the board, there tends to be, you know, a degree of dispersion in times of overtime practices as well.
PN2184
Just based on your experience you have seen this practice of overtime being used to replace workers who are away on leave?---Maintenance shut downs or long haul moves or - - -
**** KATHRYN HEILER XXN MR MOIR
PN2185
Okay. So completing particular projects such as a break down, matching peak demand, seasonal demand?---Yes.
PN2186
Yes, you will have to speak up?---Yes, sorry, I beg your pardon. Yes.
PN2187
Would you also agree that overtime is only one of a number of options which is available to an employer to meet these types of circumstances. I think you said earlier on in fact that there are other options?---There appear to be, yes.
PN2188
So you would agree that - yes. Some of those options would include for example engaging supplementary labour such as casual employees, labour hire workers, would you agree with that?---All of which are used, yes.
PN2189
And would you agree that those types of options, such as engaging supplementary labour, they often do come into plain in award covered areas of work because of the obvious additional cost impact associated with overtime penalty rates, you would agree with that?---Excuse me, could you just - would you mind rephrasing that question.
PN2190
Certainly. What I am asking you is these other types of options, such as engaging supplementary labour, employers will use those where they perceive the additional costs imposed by overtime penalty rates as a less advantageous method of meeting the particular circumstances?---Possibly, cost will determine what they do, yes.
PN2191
And the penalties imposed, the cost penalties imposed through working or requiring the work of overtime, that can often steer an employer towards less costly means such as engaging a casual employee or a part-time worker?---I guess so, I guess those considerations come into it, yes.
**** KATHRYN HEILER XXN MR MOIR
PN2192
Sure. That would be, of course, assuming that the training barriers for supplementary workers such as a labour hire employee, that is assuming those training barriers are not too high, an employer may therefore go for the option of engaging a supplementary labour - - -?---Yes, if they can access skilled employees.
PN2193
Now, Ms Heiler, if employers were faced with an obligation to provide paid breaks after employees perform a certain amount of overtime, that would clearly have an additional cost impact upon the employer, above and beyond the provision of the penalty rates, you would agree with that?---Only if they couldn't meet the hours as set out in the kind of application as set out here, which as I indicated before allow for quite significant short-term fluctuations in hours.
PN2194
Yes. But if an employer perceived that they were going to run across that threshold, which required paid breaks to be provided, that would obviously be seen as imposing an additional cost impost upon the operations?---My view is that the planning that would be required to stay within those limits are achievable and I think would not limit to any great extent the kinds of decisions that sites would make in that regard.
PN2195
That is your view, that those operating within those limits are achievable. But if you are in the shoes of an employer who perceives perhaps that those limits are not achievable?---Mm'm.
PN2196
hen you are going to run into this additional cost impact aren't you, above and beyond the provision of the normal penalty rates?---Well, if they were discharging their duty of care under risk assessment, those considerations would be coming into it now.
PN2197
Yes. But to answer my question, they would face this additional cost impact?---I don't think it is any more of a cost impact impost than the one that they are under at the moment, if they were risk managing their rosters.
**** KATHRYN HEILER XXN MR MOIR
PN2198
Well, it is pretty obvious though isn't it, Ms Heiler, that if I am an employer who requires my employees to work an average of 48 hours over 12 weeks, and this claim were granted, then I would run into an additional cost being imposed, not just a provision of normal penalty rates, but two day paid breaks?---It would depend on the extent of the breach. It would depend on how many employees exceeded that threshold and where those employees were working.
PN2199
All right, yes. Okay. Well, if employers were faced then with this potential additional cost impact, they would have those range of options available to them that we talked about before wouldn't they, of engaging supplementary labour for example?---Yes.
PN2200
And where possible, it is likely that employers might decide to cut existing levels of overtime in order to fall below these thresholds which require paid breaks to be provided?---Yes, they might.
PN2201
And why do you say that they might?---Well, it also would carry the cost of the additional two days leave.
PN2202
So could you see a circumstance where employers would cut the level of overtime for existing employees in order to fall below these thresholds and simply engage supplementary labour to make up for the work shortfall, if you like, the work deficit?---My guess would be that they would plan to keep overtime levels within those limits.
PN2203
That is a yes to my question. So in other words could you perceive that this type of regime of paid breaks being imposed after a certain pattern of hours is worked, could you perceive that that would in effect impose a de facto limit on overtime for many employees?---I'm sorry, you will have to repeat that question. I just want to be clear that I am answering your question.
PN2204
Well, just to take you back then. You said before that you could see a circumstance where in response to paid breaks having to be provided, that employers would simply cut the level of overtime for existing employees and engage supplementary labour?---I guess it is possible, yes.
**** KATHRYN HEILER XXN MR MOIR
PN2205
So that would in effect impose for those employees, the existing employees, a de facto limit on the overtime that they can work?---That is the intention of the claim, yes.
PN2206
And that limit would apply even where the employees themselves may prefer to work above and beyond those particular thresholds?---Yes.
PN2207
And in addition to imposing a de facto limit on overtime being performed by existing employees, it could also lead to the increased use of casual labour throughout the workforce, could you perceive that as a possible outcome?---I couldn't comment on that. Because I am just not sure how if, if such a framework came into play how sites would choose to manage it. My guess would be that they would probably try to choose to manage it within the existing regime. Yes, that would be my guess.
PN2208
And one possible response is that sites would opt for increased use of supplementary labour such as casual workers, labour hire workers?---Well, they do that now, they do do that now. So it wouldn't be a new practice.
PN2209
No, it wouldn't be a new practice?---No, no.
PN2210
But could you see it being extended?---I guess if they continually breach that threshold that would be the case, but my guess would be that it would act as an incentive.
PN2211
Well, not just in cases where they actually breach the threshold, but to ensure that they don't go over the threshold, surely that would be the outcome?---Possibly.
PN2212
Now, you said before that, yes, the purpose of this claim as you see it is that part of the claim dealing with paid rates, is to impose a de facto limit on overtime. Presumably the purpose of these additional paid breaks is to afford employees time away from work so that they can rest and recuperate, is that your understanding of the purpose - - -?---My - my guess - - -
**** KATHRYN HEILER XXN MR MOIR
PN2213
- - - the purpose of the paid breaks?---Yes. My guess, and I could be wrong about this because I was not involved in the formulation of that claim. So my guess is that the role that those two days break, that the two days break would play would be to provide a) a trigger to managing hours over that 12 week period; and secondly, it would act as a cost disincentive which is the same disincentive contained within penalty rates and paid overtime, that is the function of it, to act as a disincentive against excessive hours. So, yes, it would play that role.
PN2214
All right. Now, I am talking specifically about cases where the employees go over the threshold and the paid breaks become activated?---Yes.
PN2215
What do you see is the purpose of those paid breaks, is it to afford the employees rest and recuperation from the work?---As I said, yes, I think it would provide that plus a trigger.
PN2216
So the purpose of the paid breaks themselves, where they come into play, you would see that as a type of anti-fatigue measure if you like?---I guess it is providing for cumulative rest breaks.
PN2217
I see. So in that sense does it really make any difference whether the break is paid or unpaid. I mean if the objective is to provide time away from work so that people recover, it really doesn't make one iota of difference whether it is paid or unpaid, except for the obvious cost impact upon the employer?---Well, this goes back to my previous point about the intention of that break. And my guess is that it is meant to fulfil a dual function which is to provide a rest break, as well as providing a financial disincentive to getting to that point. In other words it is trying to act as a trigger so that hours are managed within that referencing period in a way so that they do not exceed it. Yes.
PN2218
I guess what I am asking you to do is just to look specifically at circumstances where the paid break comes into play, where the thresholds are gone over and people become entitled to that break. In relation to them - - -?---I understand, does it lessen the value of the break if it is unpaid; no. No, it doesn't.
**** KATHRYN HEILER XXN MR MOIR
PN2219
All right. If I can now turn to the OH and S issues which are raised by your report, and I am referring here to exhibit ACTU2, tab 6. You would agree, Ms Heiler, that under OH and S legislation in all States and Territories, employers have a positive duty of care to ensure the health and safety of employees?---Yes.
PN2220
And these statutory regimes also provide for workplace based consultation in OH and S matters, for example provision of OH and S committees and - - -?---It depends on the jurisdiction.
PN2221
Yes, but as a general rule there is provision there for workplace based consultation?---There is provision there for it, not always taken up, but there is provision for it.
PN2222
And those statutory regimes impose substantial penalties upon employers who fail to comply?---That's if you can demonstrate that they haven't complied, that's the trick.
PN2223
Yes, they do impose substantial penalties?---In theory they do, yes.
PN2224
And there are only limited statutory defences which are available to employers under these regimes. For example, the main defence which is available is quite a narrow one and that is that the employer must show that it was not reasonably practicable to comply with the legislation, you would agree with that?---Yes.
PN2225
So for example if an employer is shown to have taken remedial action in response to an incident, then they will invariably be unable to successfully invoke that defence because they have taken this remedial action which obviously could have been taken prior to the incident occurring, you would agree with that?---Would you mind repeating that, I'm sorry.
PN2226
Sure, sure. If an employer - - -?---Yes.
**** KATHRYN HEILER XXN MR MOIR
PN2227
- - - takes remedial action in response to a particular incident - - -?---After the fact?
PN2228
After the fact?---Yes.
PN2229
Then the possibility of the employer invoking this reasonably practicable defence is pretty remote because obviously they could have taken that action - - -?---Yes, I see.
PN2230
- - - before the accident occurred?---Yes, theoretically, yes.
[11.05am]
PN2231
That legislation also imposes a potential liability in fines upon directors and other key decision makers within firms?---Theoretically and potentially.
PN2232
And there are specialist enforcement agencies in each state to not only educate people about the provisions of the various Acts but also to enforce them?---They exist. The degree of their effectiveness, I believe, is questionable.
PN2233
Are you aware, for example, in New South Wales prosecution rates have been dramatically increasing over the past four years?---I think there has been renewed activity in New South Wales, yes.
PN2234
Yes. And also here in Victoria?---I am not as familiar with the situation in Victoria.
PN2235
Right, and what about Queensland?---Are we talking more generally or with respect to coal?
**** KATHRYN HEILER XXN MR MOIR
PN2236
In respect of enforcement rates?---I couldn't comment about the rate of prosecutions in Queensland.
PN2237
Okay, that is fine. Now, you would accept that under these pieces of legislation employers, or the duty of care which is imposed on employers, that extends to providing safe work schedules which would permit an adequate amount of time for an employee to sleep, rest and recover from work; do you accept that?---There is a general duty of care provision in most of the state Acts to ensure that systems of work are safe. And in some jurisdictions now there are specific references made to fatigue. So there is the beginning of a recognition that systems of work also include issues associated with shift systems and thus fatigue.
PN2238
Yes, and one of those jurisdictions where there is a reference to fatigue, and it is interfaced with work practices and working time arrangements, is New South Wales; you are aware of that?---Yes.
PN2239
Yes. Perhaps if I could just show you a document. Ms Heiler, the document which I have just presented to you, it is an extract from the new Occupational Health and Safety Regulation 2001 of New South Wales?---Yes.
PN2240
It is a regulation which, as I understand it, came into force on 1 September of this year, and it was made by the Governor of that State in pursuance of the New Occupational Health and Safety Act of 2000?---Yes.
PN2241
Which also came into force on the same day; you are aware of all of those developments?---Yes.
PN2242
And this particular extract deals with regulation 9 of the new regulation found in chapter 2. And you will see there the regulation imposes an obligation upon all employers in New South Wales to:
**** KATHRYN HEILER XXN MR MOIR
PN2243
... take reasonable care to identifying any foreseeable hazard that may arise from the conduct of the employer's undertaking and that has the potential to harm the health or safety of an employee or other person at the place of work.
PN2244
And then if you go to subsection 2 of that regulation it then identifies the hazards or the steps - sorry, the elements to which employers must take reasonable care to identify particular hazards, and (b) includes reference to work practices?---I do see that.
PN2245
Yes, work systems, and shift working arrangements including hazardous processes, psychological hazards, and fatigue related hazards. Now, you would obviously see this as a welcome development in occupational health and safety legislation, that for the first time, in New South Wales at least, the interface between the duty of care and fatigue related hazards posed by working time arrangements is now being expressly recognised. You would see that as a welcome development?---Yes, I agree with you. Yes, I do, I think it is progressive, yes.
PN2246
Yes, and why do you see it as progressive?---Because I think that despite there being a general duty of care responsibility to have already done that under the Act and Awards under systems of work, that that by and large the hazards associated with working hours have not been effectively addressed under existing - under the existing regulatory framework. So I think it is a welcome first step, yes.
PN2247
Nevertheless, you take the view in your paper that OH&S legislation is not an effective mechanism for safeguarding against the health and safety risks posed by long hours. I think the words you use are that this legislation is not an appropriate trigger. That is obviously not the view which has been taken by not only the elected representatives, at least in New South Wales, but also the specialist agencies which obviously provide advice and support to those representatives?---My opinion about the effectiveness of the health and safety framework in terms of applying a risk assessment approach to fatigue is based on what I have seen in the field. In other words it is based on my experience of
**** KATHRYN HEILER XXN MR MOIR
attempting to apply that framework in a practical sense at a workplace level so that I believe it is useful in terms of identification and I think it is interesting to note that in part 2(b) it says that they must take reasonable care to identify hazards. Of course, there is a responsibility if you identify hazards to put in place controls, assess the risks. My experience is that it is effective for identifying hazards, even for assessing risks, but that as it stands because of the lack of performance standards around what constitutes unsafe work systems and the lack of agreement about that, that it is not providing - it is not providing consistent control measures, or any guarantee that those control measures are put in place. And that has been very much my experience of attempts to do that in the field. Sometimes despite the best of intentions, I might add.
PN2248
The implementation of this legislation has always been a matter of both educating employers and employees about requirements under the Act, and also about external enforcement of those provisions. That has always been the case, hasn't it?---Yes.
PN2249
Now, would you also accept that under the various OH&S regimes employees have a reciprocal duty, if you like, to use their time away from work in a responsible and safe manner. For example, to ensure that they obtain a sufficient sleep and recovery time in order to complete their duties in a safe and responsible manner; you would accept that?---I do accept that.
PN2250
Yes?---Yes.
PN2251
So the occupational health and safety regimes in each state and territory, they are based upon a notion, if you like, of shared responsibility towards health and safety in the workplace?---Yes, yes.
PN2252
Now, you would accept that - or you have accepted that under these statutory regimes the principle or primary obligation of the employer is to ensure, in a sense, to make certain, to guarantee the health and safety of persons at work, including employees, and that there are only limited defences available to employers. So I take it from that that would you agree that if an employer was found to have breached their duty of care by requiring an employee to work so-called unreasonable hours then it would be no defence under this legislation, would it, for the employer to argue that the employee was generously remunerated for the work? That would be no defence, would it?---No.
**** KATHRYN HEILER XXN MR MOIR
PN2253
Under this legislation?---No, it wouldn't, no.
PN2254
And it should not be any defence, should it?---No.
PN2255
And why do you say that?---Well, because we have stopped paying danger money for a whole range of different practices. We no longer pay dust money or dirt money or height money. So it is also not appropriate to reward excessive hours of work, although I don't believe that there is a strong recognition about the relationship between those two, no.
PN2256
Right, I see. All right, so safety is paramount, and that is recognised through these pieces of legislation. It should not be undermined by elements such as generous portions of remuneration or leave entitlements which might be provided by the employer; you would agree with that proposition?---Yes.
PN2257
All right, well, if I could take you to the proposed clause by the ACTU in this matter. You have got a copy of that in front of you?---Yes, I do.
PN2258
And in particular if I could take you to subclauses 1.1 and 1.2. 1.1 includes the general obligation not to require unreasonable hours. Then 1.2 sets out the various factors that can be considered. They are not exhaustive. But paragraphs (f) and (m) touch specifically upon occupational health and safety matters. Can you see that?---Yes.
PN2259
(f) refers to the risk of fatigue and (m) refers to the exposure to occupational health and safety obligations?---Yes.
PN2260
Now, you would agree that those relevant OH&S issues, they are only one of a number of factors which would be taken into consideration?---Yes.
PN2261
Other factors which might be taken into consideration include, for example, in paragraph (g), the remuneration received for the excess hours. And there is also a reference in paragraph (l) to performance based pay schemes. Do you see that?---Yes.
**** KATHRYN HEILER XXN MR MOIR
PN2262
So you understand that if this clause were ratified then in assessing whether a person's hours of work are reasonable or unreasonable the parties, or the Commission if it got that far, or a relevant Court, would have regard to or could have regard to all of those factors, and possibly others which are not set out there. You understand that is the nature of the clause?---Yes.
PN2263
And, of course, OH&S issues are only two out of about 15 here, and it could be two out of an unlimited number of factors which are taken into account; you would agree with that?---Yes.
PN2264
Yes, and you have agreed earlier on that safety is paramount, it ought to be treated as paramount. Our occupational health and safety legislation requires that. It should not be undermined by references to, for example, remuneration scales, pay schemes and so forth; you agreed with that earlier on, did you not?---I did.
PN2265
So isn't there a risk in all of this that it could lead employers and employees to give less weight to occupational health and safety issues which you have recognised should be paramount?---No, I don't agree with that. I read that in the AIG submission and thought quite a lot about it, and - no, I don't think there is a risk of that. I think that the duty of care under health and safety legislation remains, notwithstanding other factors that may be considered under industrial relations legislation. So I think - myself, my opinion is that the two are not mutually exclusive and that there is - I wouldn't be concerned about an overlap or diminution of concerns about health and safety and industrial relations legislation.
[11.20am]
PN2266
In your experienced based upon your extensive dealings in the field, Ms Heiler, has it been your experience that not only managers and supervisors but employees, they place a good deal of weight in what their relevant award says. If an issue arises they will go and consult the award, see what it says, and discuss it amongst themselves; has that been your experience?---If they are under an award?
**** KATHRYN HEILER XXN MR MOIR
PN2267
If they are under an award, that is what they do?---If they are under an award, yes.
PN2268
Yes, they have done that. So isn't there a risk that, if a matter arises about somebody's patterns of hours, that they go and consult their award in the normal way? And we are just talking about ordinary people here, supervisors, many of whom perhaps have come up from the shop floor, workers themselves, union delegates. They go to this clause and they have a look at all the factors there and OH and S issues, well yes, sure, it is there, it is two factors, but gee it is only two of 15, and it is two out of possibly an unlimited number of factors?---I see.
PN2269
There is a real risk there, isn't there, that the parties themselves will place reduced emphasis upon OH and S issues?---No, I don't believe that is the case.
PN2270
So you don't think that there is a risk that in the minds of the - or in the practices of the workplace parties themselves, that the risks which might be posed by so-called unreasonable hours, whatever that is, those risks could be traded away for increased remuneration, more leave entitlements, that sort of thing could occur, the trading off?---I understand what you are asking. My experience of that is that at the moment those provisions are not in the industrial relations legislation, and they are being traded away anyway. So, even though at the moment you have got primary focus, theoretically, potentially, on managing fatigue issues under the health and safety legislation - so in other words we have, I guess, what you are proposing to be the best situation where those issues are dealt with under health and safety legislation rather than an individual system - what I can see is that, no, there is robust trading away of conditions without due regard for health and safety. So at the moment we have a duty of care to manage those issues under the health and safety legislation, and I don't believe it is working.
PN2271
All right. Well, you allege that health and safety issues are being traded away out there in practice at the moment. That is surely a matter for appropriate enforcement and education to be applied; correct?---What I said was that there were - - -
**** KATHRYN HEILER XXN MR MOIR
PN2272
You are nodding your head, Ms Heiler; is that yes?---Excuse me, I am sorry. I was thinking, that was an expression of mental processing.
PN2273
Right?---No, what I - - -
PN2274
You are saying no now. You were nodding your head?---I beg your pardon. It is confusing, isn't it? No, what I would say instead is that there has not been the acknowledgment of those people discharged with duty of care of the health and safety implications of industrial relations changes to work practices. I think that is where the gap lies at the moment.
PN2275
But surely, if I am an employer and I am requiring my employees to work - the expression you use - unconscionably long hours, if I am such an employer, then I should be dealt with under the law. I should be prosecuted, I should be taken to Court?---That is the ideal.
PN2276
That is right, and that is how the occupational legislation is structured?---Well, in theory it is, it is just in practice that is not how it is happening. It is not how it is working.
PN2277
And you agreed earlier on that there are increasing rates of prosecution, at least in New South Wales?---Not for fatigue there is not, not for fatigue-related issues there is not. They are isolated at best. Any kinds of prosecutions for fatigue-related issues are extremely rare.
PN2278
You are aware that there have been extensive public education campaigns in various states, including Victoria and New South Wales, by the relevant Workcover agencies. You are aware of all of that, aren't you?---Indeed. I think what it shows is that they are largely ineffective.
PN2279
All right. Well, that is your view. I will hand over in just a moment to the Commonwealth - or Mr Banks, I am not sure. There was just one question I had regarding another aspect of the regulatory framework you referred to, Ms Heiler. On page 3 of your report - - -?---Sorry, which statement?
**** KATHRYN HEILER XXN MR MOIR
PN2280
This is the Victorian Government discussion paper?---Yes.
PN2281
On page 3 of the report, you refer to the recent unfair dismissal case of Aggenbach v TXU Networks Pty Limited, and you describe that case in the first paragraph in which his Honour, Senior Deputy President Kaufman, found that the applicant had been working unconscionably long hours, and that the remedy of reinstatement was warranted. You would regard that decision - you have read that decision obviously?---Yes.
PN2282
You would regard that decision on its merits as quite fair and reasonable and just - as a just outcome?---It appears to be how the Commission perceived it.
PN2283
Yes. But you read the experience of this fellow, Mr Aggenbach, didn't you?---I did.
PN2284
Okay. And what was your view about his case? I mean did you believe that his dismissal had been harsh, and that he ought to have been reinstated? Was that your view?---I guess - yes.
PN2285
So you agreed with the decision which was made by the Commission in that matter?---Well, it seemed fair from what I read.
PN2286
So on your reading it is quite a fair and just outcome which applied there?---Which applied there?
PN2287
Yes, in this case?---It appears to be the outcome.
PN2288
I am sorry, I missed that?---That appears to be the outcome; that is all I am aware of. The case that I read was that he was reinstated on the basis of - - -
**** KATHRYN HEILER XXN MR MOIR
PN2289
And you believe, based upon the facts as set out in that judgment, you believe that that was a fair, reasonable, just outcome?---Well, I guess I would have to say yes.
PN2290
That is fine, I wasn't trying to trick you or anything. What I did want to ask you though is this: wouldn't you agree that this decision which you have described as fair and reasonable and just, isn't that an excellent illustration, if you like, of how a part of the existing regulatory framework, in this case the unfair dismissal laws, isn't that a perfect illustration, Ms Heiler, of how the existing framework does offer protection for employees who may work long hours?---No, I think it shows quite the opposite.
PN2291
PN2292
MR P. GALLAGHER: If it please the Commission, I appear for Australian Mines and Metals Association.
PN2293
Ms Heiler, you expressed, upon entry to the witness box, a disinclination to accept the efficacy of the Roben style legislation within occupational health and safety, that is the less regulatory, less prescriptive, but more reliant legislation upon duty of care. You suggested that that related to your assessment of the risk assessment practices within the field, and you have also suggested that those risk assessment practices and procedures are good at discovering risks or hazards, to some extent identifying risks, but certainly not at the moment able to regulate controls. Is that not right?---With respect to fatigue.
PN2294
Yes. There is a substantial move, however, from the UK report to move occupation and health and safety legislation in the direction of a generalised duty of care, is there not?---Yes, there is.s
PN2295
And you have noted the Western Australian Department of Mines fatigue management for the Western Australian mining industry - - -?---Yes.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2296
- - - which came out in 2000, the Queensland Department of Natural Resources and Mines guidance note for the management of safety and health risks - - -?---Yes.
PN2297
- - - and associated with hours of work arrangements in the mining industry?---Yes.
PN2298
That came out in 2001?---Yes.
PN2299
You have also noted the New South Wales general rule 2000, and there has been reference to the guidance note in New South Wales - - -?---Yes.
PN2300
- - - and also the regulations in 2001, reference regulation 9. Those, I would suggest, are possibly very new, are they not?---Yes, they are.
PN2301
Now, is it a possibility that the industry is developing towards greater controls associated with the appropriate resourcing, training and understanding of those new legislative guidelines?---I think that is a fair comment, yes.
PN2302
Now, given the reference to Part 1 of the union's application that you so adequately describe as inadequately drafted - - -?---In parts.
PN2303
In parts, like the curate's egg. In answer to Mr Watson, you suggested that the reliance or the dissolution of control at the workplace occasioned by that might well require a greater risk management responsibility for management in relation to the practical application of that clause; is that not right?
PN2304
MR MARLES: Well, your Honour, I object to that. I am not sure that that was what Ms Heiler said at all.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2305
JUSTICE GIUDICE: Yes. Well perhaps you could confirm with the witness your understanding of what she did say?---I thought that what I said was that it didn't require any greater responsibility than it currently does, that there is an existing requirement for pro-active risk assessment now, and I don't believe the claim requires - anything in the claim would require any greater risk assessment than is required now.
PN2306
MR GALLAGHER: I apologise. I am sorry, I misunderstood. The question then falls back, I presume, in my opinion to whether or not that risk assessment as such can be improved within the industry. In your research, is there any work being carried out to incorporate greater controls or greater codification within risk assessment?---Yes, I am involved in a project at the moment along with Syntars to try to refine a risk assessment approach to fatigue management.
PN2307
Right?---Yes.
PN2308
And what would that lead to?---Well, I guess if you had have asked me 12 months ago I would have been much more confident than I am now, that it would have led to a more robust framework that would have provided much stronger guidance for the parties. And I will be very honest with you in being concerned about how effectively, really how effectively that the refinement of that framework is going to be in practice. That has been my experience to date. That is all I can go on.
PN2309
I presume - - -?---But I - sorry.
PN2310
Yes, sorry?---Well, just that, I guess, that there were great hopes that that would provide the kind of trigger and the kind of management tool that would be effective. And I guess the point that I am at now is that from what I can see, and from my experience of how those risk assessments have been utilised in the field today, even where Australian Standards have been followed, is that they have fallen away at the end. In other words, they come up with a robust assessment but when it comes to, if you like, finishing off in terms of generating controls and putting them in place, that is where there appears to be a very great weakness with that approach.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2311
Right. I was drawn to your statement where you suggested that the work presently being down in the mining industry group would possibly, as your quote, is highly likely the findings will translate into a code of practice for this section of the industry. That is not your hope now?---Well, it depends what is in the code of practice.
PN2312
Well, a code of practice, I understood was a legislative assistance to management to associate their risks and their appropriate actions in order to understand the liability?---I think - I think really anything we can do will be helpful. Whether or not it will be finally or ultimately effective is another matter.
[11.35am]
PN2313
Right. I don't wish to be brazen - - -?---No, it is okay.
PN2314
- - - but there is an old adage about people seeing things half-done; is it not possible that your view will change with the framework of development that is presently a creature of creation? At the moment there are enormous resources being poured in at the state level in these guidelines and in work and management is now aware of and enforcing a framework of duty of care. Is it not possible that your present disappointment may be tinged by an inability in the field to achieve what you were setting out to do?---I see where your point is and I agree in part. However, my belief at present is that the weakness is associated with other factors in play at a workplace level in that the issue of managing rosters is not simply a health and safety issue, and that is why we are finding at the point of control that a risk assessment framework that can apply to something like strata control or handling of chemicals, quite effectively where very clear controls are thrown up through that risk assessment process, it is just not effectively dealing with an issue as multi-factorial as fatigue, an issue that overlaps between physiological and cognitive impairment, impact on family, remuneration, staffing levels. It is because of the nature of that issue I believe that we are struggling to apply the risk assessment framework as cleanly to that as we would to other health and safety issues.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2315
There are indeed - - -
PN2316
JUSTICE GIUDICE: Mr Gallagher, we intend to take a break for a few minutes.
SHORT ADJOURNMENT [11.37am]
RESUMED [11.50am]
PN2317
JUSTICE GIUDICE: Thank you, Mr Gallagher.
PN2318
MR GALLAGHER: If the Commission pleases.
PN2319
Ms Heiler, it had been a subject of our discussion in relation to the amount of new legislative frameworks within the state jurisdictions in occupational health and safety; do you see that as a valuable tool?---Yes.
PN2320
Are you comfortable that those resources that are being poured in may well bear fruit in the future with regard to concrete codes of conduct performance indicators for the industry?---With respect to fatigue and hours of work, no, not confident - no, I am not confident of that.
PN2321
This is because of the ephemeral nature of fatigue and the associated influences and variables within the industry affecting people's behaviour?---Yes, I think that is fair to say that, and also because it is a difficult to enforce.
PN2322
Indeed, indeed, as is anybody's behaviour. The controls that are presently set, however, are pointing in the right direction?---I would say that is an inconsistent picture. Some sites are doing well and other sites are not doing well at all, so that is with respect to the mining industry which I am most familiar with.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2323
But the legislative controls that are presently in place are all heading in the right direction, allowing enforcement and identification of hazards, the assessment of risks and eventual requirement under law for controls to be placed to control those hazards?---My view is that the greatest weakness in that process is that when it comes to assessing what control and the effectiveness of those controls and then therefore whether any breaches have occurred or whether those controls are adequate in terms of being able to enforce them or inspect, you know, whatever process you have in place, that at present there is nothing substantive to assess them against. That is the greatest weakness with that process at the moment. In other words, the performance standards for hours of work are not widely accepted and the views that I can see across the industry range from very progressive ones, where there is a strong capacity and intention to control hours and the associated risks, through to a view that says it doesn't matter how many hours are worked, when they are worked or what schedule is in place, the basic criteria against how they are assessed is whether or not people are choosing to work there.
PN2324
Yes. Given, however, the - - -?---Preference, in other words.
PN2325
Yes, preference is always an issue. Given the present enforcement codes in the Labor controlled states having been beefed up by this legislation and there being what you consider progressive and best practice practices within the industry to copy, do you not see it as likely that employers under this ephemeral duty of care will look very, very quickly and very rapidly to a legislative compliance to enhance and find those best practices and copy them?---I think there will be pockets of that, sir, but I don't think it will be widespread, and that is because of the interface with the industrial relations situation.
PN2326
Right. You see that a lot of employers will ignore their liability under law?---I think they will, yes.
PN2327
And then it comes down, of course, to enforcement?---And that is the weak link, in my view.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2328
Yes, yes. Taking you then to part 3 of the application, being the allowance of two days leave for the deemed extreme hour blocks, how do you see what - the effect of that in practice? What, in your best assessment, will happen?---I guess what I would be hopeful of is that a claim such as this, and I am not saying necessarily in an identical form as this, but a claim such as this would provide the guidance and the trigger that is currently not there under the occupational health and safety regulatory framework. In other words, what it might provide is a trigger that alerts companies to be better planning their hours of work, workload levels, staffing requirements, so that the vagaries and inconsistencies of production are not the only things driving hours of work. In other words, it will allow for flexibility when needed, but it will also provide a regulatory trigger that says, here is a limit, it is a broad limit, it is a modest limit from all comparisons, but what it may provide a trigger for is for those sites that are currently not planning and managing their hours in a responsible manner. For those who are, there is nothing to fear from this claim.
PN2329
And you have mentioned the fact that you have seen that as a trigger and also as a prescription, as a penalty, a disincentive?---A disincentive, yes, a disincentive.
PN2330
Yes. Given your experience that you have noted at clause 38 of your submission, and I quote:
PN2331
The assumption that setting overtime payments and other penalty rates for weekend and night work would act as an effective disincentive for employers no holds, especially as we have seen in the coal industry.
PN2332
Do you not see the possibility that this clause will go the way of all flesh?---I think the difference with this clause is that it is not just about payment, it is actually about setting the parameters within which work needs to be organised. Overtime payments have never - they have addressed an amount, but they have never been structured within an overall framework that says, you know, we are aiming to reach these kinds of averages over a period of time. In other words, the thing that has always been absent has been a referencing period, and I guess that is what I like about the claim, that it attempts to set a broad referencing period within which hours of work can be flexibly managed.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2333
Yes, yes. Within your submission, however, you have suggested that 80 per cent of certified agreements or collective agreements have associated effects on hours clauses. Do you not see the possibility that this clause, being so disruptive of present roster systems, there might be a temptation by both sides to negotiate it away to allow for the existing rosters to be maintained and certified agreements to change that if it was brought into an award, thus losing its efficacy?---Well, I guess there are two parts to that answer - to that response, if I may. With respect to the mining industry where you have compressed rostered arrangements, from what I can see, many of those are not worked with overtime anyway. In other words, most of them will fit within the referencing period outlined, so because it allows for 60 hours over four weeks, even where you have long distance commuting sites, most of them, I think the vast majority, even the two weeks one week off, will fit within that general referencing period so long as over a six-month period they discharge that 48 hours. So I don't think that with respect to the compressed regimes, maybe unless some sites work them with overtime which they shouldn't be doing anyway because compressed regimes are not meant to be extended by overtime, I think the challenges will be for those sites that are working large amounts of overtime that are concentrated within maybe 10 per cent of the workforce. That will be the greater challenge for those sites. But I don't think it is anything that is going to be out of their control. I think it is - I don't think it is going to be disruptive; I think it is manageable.
PN2334
You understand that it is not just overtime that the part 3 application applies to, it is blocks of extreme hours - - -?---Yes, I do.
PN2335
- - - not just overtime?---I do, but the 60 hours averaged over four weeks allows for very highly compressed work scheduled to be worked without there being any penalty, so long as over a six month - over a 12 week period they are discharged.
PN2336
So my assumption from your response is that you see it having no effect whatsoever?---No, I didn't say that, I didn't say that.
PN2337
No, it is an assumption?---I said that what I thought was that it will be the pockets of the industry that are currently not working with insensible regimes that will be affected, and that is the whole intention of the application.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2338
Right. Taking those pockets that are working those extreme hours, is it not possible that given the nature of the issues of hours being addressed at the site level that it may well just be dissipated in negotiations into a CA that may well find itself within the same rosters it had before, but possibly at a - - -?---I guess we will have to wait and see. I guess we - we don't know. I don't know. There are many ways, of course, around a set of regulations, aren't there, but I think that at the moment the application exists in the absence of anything else. At the moment we have nothing else that that attempts to set any kind of guidance of limits on excessive hours, and that is what the application tries to do.
PN2339
Yes?---It won't affect the majority of sites even where they have short term fluctuations. I think that probably well over 50 per cent of the industry will manage probably even without changing current practices, but there may be small pockets even at some of those sites that will have to be more actively managed. It is a management issue; that is what I see - - -
PN2340
That then brings it back to an issue of risk management, doesn't it?---Also operational and financial management. Some sites often, for example, measure overtime in aggregate; in other words, they will know how many hours are worked over a month in a production area, but they won't know that some of their people are not working any and some are working excessive hours. So it will also provide a trigger to make sure that you have a better auditing system of hours in place, and in terms of risk management that will provide another trigger to ensure that that occurs.
PN2341
Right. Given your reluctance to accept the value of legislative penalties on the mining industry, do you see a possibility that this award application would be ignored by unscrupulous employers?---Well, I didn't completely reject enforcement on all issues. What I said was I didn't see it being effective in the area of fatigue.
PN2342
Right. You suggested that employers may ignore the law?---Well, some employers within any industry are always operating on the outer edges. I don't think that is confined to mining at all.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2343
[12.05pm]
PN2344
I understand. Referring to your submission at clause 12, you speak of contributory negligence?---Yes.
PN2345
Of employees. That is a hard word. Could you elaborate what you mean by contributory negligence?---At some - and this is based on my experience in the field, at some workplaces, both the unions and employees I believe are allowing for unconscionable hours along with management, because it is of short-term expediency, it is easier short-term. For the operational managers, say the ops managers or the maintenance managers, sometimes it is easier to hide extra costs in overtime rather than trying to justify the employment of new people. So that takes the pressure off them from senior management who do not want to see any increase in staff. For employees it can be a short-term mentality driven by job insecurity, the loss of seniority across the industry. Sometimes overseen by the union who - I know it is harsh, but in those cases where unconscionably long hours are being worked, I think it is contributory negligence from both sides. I am not just laying the blame at the feet of the employers here.
PN2346
No. You refer to contributory negligence based on or related to personal and corporate financial incentives?---Yes.
PN2347
You are painting a picture of a fairly avaricious workforce who are incapable of looking after themselves in a search for very high dollars?---I think it is more that there are pockets of employees who understand that their job skills are not as transferable outside the industry, see that there are high levels of insecurity in the industry, know that seniority is gone, and so are driven to try to - especially for example where a mine is closing, they do not know if they are going with the new mine, they do not know if they are going to get a job elsewhere, the temptation is to go for the money while it is there.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2348
If there is an assumed effect of reduction of overtime in a rostered sense and a revision of rosters to incorporate lesser hours, what would be, in your opinion, the impact on employees' choice in relation to working in that industry, given that presently it is a highly remunerated industry, driven by those hours?---With respect to the coal industry, I do not think that recruitment of skilled employees in an industry that pays handsomely, I do not believe, although I am not an expert about the labour market at the moment, I do not think that will be of particular concern. And again it is pockets, and I think I try to argue that in my paper, that it is a dispersion of these arrangements and the pockets of excessive hours that require some stronger and more active regulatory trigger. Are you saying would people leave and then the industry be confronted with a labour shortage?
PN2349
Not at all, no - - -?---I do not believe so.
PN2350
- - - no, what I am suggesting is that the employees may well react adversely to a regime which reduces their income?---Well, I do not think that we reward unsafe behaviour in other areas by money. We do not say, well, just because somebody is earning more money for something, we will continue to allow them to do that, because if we took it away they would be unhappy. So I do not think that we should apply that principle to excessive hours any more than we should apply it to working with dust or noise or working at heights, or unrealistic production targets. I think it should be a consistently applied principle that we do not reward unsafe work practices with money.
PN2351
Yes. That is taken on the assumption that there is some documented connection, causal connection, between unsafe and long hours. I think that has to be taken as part of your argument?---And that is exactly why, if you look at voluntary compliance, those argument are the ones that will come into play, show us the evidence that there is a relationship between excessive hours and increased accidents or incidents. And that is always the argument I am confronted with at a site level.
PN2352
And you do not have an answer?---I do. I say if you do not look for something you will not find it.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2353
Right. But at the moment you do not have a specific data to show that connection?---Well, I think as Qantas very eloquently argues, who take fatigue very seriously, the first precondition for knowing whether or not you have an increased risk of incident and accident is to collect the kind of data that would show you whether or not you do, and for that you need to be collecting incident and accident data by time of day, by point in the roster, you need to be collecting that rigorously for accident damage, for near misses, for unforced errors, looking at absenteeism rates and monitoring hours.
PN2354
Yes?---By and large, those practices are very unevenly applied across the industry. There is an accepted industry reliance on lost time injury frequency rates. They will tell us nothing about what is happening with respect to fatigue. So in other words, if there is no pattern, it is because we are not collecting the data that will give us the information that we need.
PN2355
So what you are suggesting is that whilst there has been an increase in hours over the industry, the change or the reduction in lost time injury frequency ratios in the industry over the last 10 years really means nothing in relation to unsafe work practices?---Well, unless we want to have an argument about the robustness of lost time injury frequency rates as a measure of safety performance at a workplace level, I think it is pretty well accepted across the industry that lost time injury frequency rates are a good measure of how lost time injuries are being managed. They do not really reflect how - it does not reflect safety performance at a workplace level. The review into safety in the New South Wales mining industry slammed the continued reliance on lost time injury frequency rates, and responsible companies are using now a variety of indicators, not just lost time injury frequency rates. The Join Coal Board, at a recent Institute of Mining Engineers conference was very strongly showing that as lost time injury frequency rates across the industry declined, costs in fact had been increasing before of retrenchment of employees with compensable claims, a reduction in employment across the industry, at the same time as there was an increase in the costs associated with the claim. So a decline in lost time injury frequency rates over the last 10 years tells us nothing. Nowra and Longford had declining lost time injury frequency rates. It tells you nothing about how catastrophic risk is being managed at all. And the industry accepts that.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2356
I accept that myself, that indeed issues of in-rush and other areas catastrophic are not predicated by any data, in most cases, that is predictive. The question that I would ask is that in relation to your preferred system, in your submission 13, clause 13, you state:
PN2357
What is urgently needed is a set of modernised regulatory provisions with performance standards that can be used to effectively control and protect employees against the worst cases of excessive hours.
PN2358
?---I agree.
PN2359
Now, do you see the present application as being validated against any standards?---I think it is a start. I think that the average of 48 hours over a 12-week period is one that is broadly consistent with attempts to provide referencing periods overseas. I think it allows for flexibility over the short term; probably too much, in my view, flexibility over the short term, but I am not here to change the claim. But I think that the broad parameters that it sets out with the continued requirement that sites undertake robust risk assessment is a good combination, because one or the other on its own I believe is not going to be effective, and will not penalise companies who are doing the right thing at all.
PN2360
You do not see any impact whatsoever - - -?---None at all.
PN2361
- - - with the rosters associated with fly-in, fly-out mining?---There may be a couple around the margins who are working very very long periods of compression, but my understanding is that even in isolated parts of Western Australia companies are even moving away from the two weeks on one week off regime to more like 9 and 10, because of the recognition of the sort of problems associated with long periods of compression.
PN2362
Yes. It is suggested that a two and one roster would average out at 56 hours, thus bringing it within the framework of the extreme hours clause. Have you had a lot of research within the fly-in fly-out - - -?---No, my area of expertise does not lie in fly-in fly-out. I know little bits about some of it, but no, that is not my area of expertise.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2363
So you are not holding out an expertise in relation to those sort of rosters?---No.
PN2364
You have done some work, however, in terms of overtime. Could you agree with me that the overtime within the mining industry is generally paid?---Yes, generally, yes.
PN2365
You note in your submission 21, limits on overtime, suggesting that within the mining industry some 54.4 per cent of mines have an overtime cap. Can you elucidate what this overtime cap is?---It can range anywhere from 10 hours up to 18.
PN2366
Right, but the cap itself. How is it controlled? What control is there? What is it? Is it a type of CA or - - -?---Yes, sometimes it is, sometimes it is a localised site agreement, so sometimes it can be a district limit, but then individual sites in the coal industry can opt out of that for whatever reasons. So the caps exist but they are pretty wide.
PN2367
So there are a number of certified agreements that have a cap of overtime?---I think - I am not sure; I could not comment whether they exist within certified agreements. My knowledge of them is that they tend to be local agreements.
PN2368
Right. There are management controls in all of those?---Sometimes they are negotiated controls.
PN2369
Right. Is there any suggestion that there is a breach in certified agreement caps?---I think there probably is, yes.
PN2370
Right. Given that there might be a breach of certified agreements, what is to stop the breach of another award clause, similar - - -?---Well, that is - I agree the trick is always in the enforcement.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2371
Yes?---But the more broadly standardised the parameters are and the more commonly accepted they are, I think the more likely it is that there will be adherence to them. Where you have lots of localised dispersions occurring, that also tends to be where you have breaches.
PN2372
Yes. Given the fact that this application is for an award variation, there is still a likelihood that that may well be subject to certified agreements or other instruments at a local level that may override those; is that not correct?---I am not sure how these issues will be bargained out.
PN2373
All right. Such is life. The clause to enforce was part of a fairly contentious issue of - - -?---Excuse me?
PN2374
Clause 24, the individual study, which was somewhat contentious in the morning session, you have given an example of 10 employees who work some significant overtime. What data did you have to support your contention that this could be extrapolated across the entire industry?---I used that data and some other data in the other paper in an illustrative sense. The work that I have undertaken both in training and my involvement in either a risk analysis or risk management, risk assessment processes at other sites I believe affords me a pretty clear sense of what is going on across the industry more generally. Remember too that we also co-ordinated the survey of rostering and shift work and hours arrangements across both the coal sector and the metal sector, where we had well over 90 per cent response rates. So it is based on a combination of where I have actually done field work combined with a lot of contact with both employees and management across the industry.
PN2375
Right. And that would be significantly - the majority would be in the coal industry; is that not right?---Yes, more recently I have been undertaking work in the metal sector.
PN2376
Right, right. The section 28 states that this instance of overtime occurred where there was a registered agreement?---Yes.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2377
And active union, paid overtime, voluntary?---Mm.
PN2378
And that there had been a recent risk assessment done under Australian Standards. The question I would ask is that why have not the hours in that issue been a problem for the employers, the union, the OH and S experts during the review - - -?---I think that is a very good question.
PN2379
Why is it only yourself that sees that as a problem?---Well, I really did not want to focus on this site for reasons that I am sure you understand. But at this particular site, the reason was because until they did a detailed analysis of individual overtime rates they actually did not know what their workforce was working.
[12.20pm]
PN2380
I see?---I think it's fair to say that senior management was not initially convinced that it was an issue. It was very much driven from a middle-management level by one individual at that site.
PN2381
So therefore, it may well be an aberration?---I don't believe it is. I don't believe it is and I can think of probably another half a dozen sites where there are similar pockets of excessive overtime being worked by some individuals.
PN2382
Yes?---And I can even think of sites with 12 hours - with 12-hour shifts that are not meant to be worked with overtime that are being regularly having overtime worked.
PN2383
Yes. Apart from that, a somewhat anecdotal response, you don't have any specific data that you can provide the Commission in relation to that?---Not with my - not here at the moment, but I would be prepared to provide that.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2384
Equally, your reasons for hours worked including the point - dot points of 29 - - -?---Mm.
PN2385
- - - they again come from your personal conjecture? Or do you have data to support those reasonings?---They come from six years of working almost exclusively on this issue in the mining industry.
PN2386
Right. With the pre-conceptions that you hold in relation to mismanagement and other - - -?---I don't believe I had those pre-conceptions. As I said yesterday, I was extremely hopeful about that framework when I started working on it and I don't believe that I am closed to it at all. I can see real benefits in its application. I just don't believe it is robust enough to rein in the most excessive hours worked where both management and employees are determined that they will be worked. I don't think that on its own it is enough. I think it is a supplementary, a supplementary strategy rather than a complete strategy.
PN2387
Returning to the occupational health and safety issues that - or the legislation that is presently being drafted, why do you see the legislators moving away from a prescriptive regulation that is almost mirrored in this framework of the application?---Why do I see continued emphasis on duty of care .....
PN2388
Why did they move away from prescription?---Well, I guess there was a perception that just because you had specific regulations on specific hazards, you know, a box shall be placed X number of metres from a door, that that didn't mean that that was going to keep up with changes in work practices or that it was going to keep up with changes in technology or other kinds of emerging hazards. It was based on the Robens Report in the UK and we don't need to go into that.
PN2389
Right?---I think it would be fair to say, however, that in the mining industry there has still been a desire to keep at least some semblance of regulations, codes of practice more prescriptive legislation in conjunction with the general duty of care provisions. So that where there needs to be technical guidance on the management of particular hazards, then that is seen to not be inconsistent within a general duty of care provision. Queensland has gone that way. I am not sure what the outcome will be in New South Wales.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2390
Yes, well, within the New South Wales the general rule 2000 suggests specific guidelines in relation to areas of hazards in relation to plant and the like?---Yes.
PN2391
So you suggest that that, indeed, is valuable as a technical guideline?---Well, I think the industry at least there seems to be some agreement that that combination of technical guidance where necessary combined with the retention of the General Duty of Care provisions is not a bad way to go.
PN2392
Would you agree with the submission that the move from prescription was due to the fact that it did not work?---Yes. Yes. Yes.
PN2393
Why then is the suggestion that this prescriptive application will work in that sort of framework?---That's a fair question. I think that the view that prescription alone didn't work does not mean that there is now a new view that self-regulation works perfectly. My view is that amongst occupational health and safety practitioners there is a growing view, in fact, that where necessary we need a combination of prescription and self-regulation where self-regulation on its own doesn't appear to be effective.
PN2394
Do you see the application supporting a growth of the occupational health and safety industry into industrial relations jurisdictions? The reason I am thinking of is the - any dispute in relation to Part I relating to reasonable hours might well engender a growth of OH and S experts being put forward to an industrial tribunal and the industrial tribunal having to juggle issues that may well not beyond their gamut of expertise?---Well, they are dealing with those issues now. I mean, the Aggenbach case is a case in point where the Commission was called upon to determine whether or not that work schedule was excessive and they came down and decided that in their expertise they were unconscionably long hours and that the work system that supported it was not appropriate. So the Commission is already deliberating where required on those kinds of issues.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2395
Is this a valuable progress, given the parallel jurisdiction of State legislation and the inspectorates?---I just don't think - I understand, I just don't think it is going to be ever possible to completely divide, artificially separate the issue of fatigue. In other words, the issue of rosters is always going to be a combined issue of industrial relations issues and health and safety issues. Appropriate rosters are not just about human physiological and cognitive limits.
PN2396
Yes. You describe the development of Western Australian and other state guidelines in the fatigue area and the management of long and extended hours, in your submission, clause 42, you state the author's experience in the field suggests that despite being well intentioned that the pressure from the industry in both Western Australia and Queensland meant that the guidelines fall far short of actually providing anything but background material and some general process control?---Yes.
PN2397
What data do you have to support your contention in your submission to this Commission?---Well, I was - - -
PN2398
That there was industry involvement in pressuring?---I was - I had close contact on both occasions with the development - with how those guidelines came to be with the people who developed them, and I was certainly aware that both in WA and Queensland there was considerable pressure from the industry to take anything that looked like firm guidelines or firm parameters out. In other words, in Queensland, for example, in the first draft there were examples of the AMA safe hours schedule, there was a European directive, just as - by way of example of other jurisdictions or other industries who had tried to provide parameters and they were taken out.
PN2399
Right. This is the AMA being the American Medical Association?---No, the Australian Medical Association.
PN2400
Australian. Right. I was looking at the present debate in New South Wales with regard to the issue of medical association guidelines?---Yes.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2401
In relation to legislation?---Yes.
PN2402
Your suggestion was that they were watered down to the point where they were not prescriptive enough for your flavour. There was not enough salt?---My - I don't think that that is only my view. I think that is actually a view from people at the workplace who were looking for some greater guidance that was included. The pressure to take them out tended to come from the employer associations, I believe, rather than from the ground itself.
PN2403
Right. Your reliance upon these workers, where you say it is not only yourself but workers, the employees on the floor?---I speak regularly - - -
PN2404
Where is the data?---I speak regularly at industry conferences, at occupational health and safety conferences. I have pretty regular contact with a range of different practitioners across the industry. That is what I do.
PN2405
Yes. And yet that same industry is progressively moving away from prescription to a duty of care, which some employers would agree lies a greater duty on them to actually ascertain, go out and search and be more positive rather than reliance upon a codified framework where they say she'll be right Jack, I'm within the paradigms, I'm right?---Yes.
PN2406
Whereas the - you are suggesting that somehow this is not the right move. This is a development that should be more prescribed?---No. No. What I said was I believe - and it's only my opinion, obviously, and I guess that is why I am here, because I am meant to have an opinion that is bigger than just myself - - -
PN2407
Of course?---I mean, it seemed to be based on something.
PN2408
That is obvious?---I think that there is a view that a combination of prescription where needed combined with an overarching general duty of care provision seems to be, at least as far as I am award, hold some support.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2409
Right. And continues to be replicated in Queensland, New South Wales, WA, not in Tasmania.
PN2410
So really, the evidence you have for pressure from the industry came from conversations at conferences and in-house talkfests; is that right?---If you like, yes.
PN2411
Right. The issues noted at 45, that is that there was a suggestion that would have greatly facilitated the risk management of the issue, was in actual fact ignored on the basis of cost associated with lost production?---Yes. Yes.
PN2412
Again, from your previous comments, the assumption is that you are implying an extrapolation across the entire industry?---No, I was giving example.
PN2413
Just one example?---Mm.
PN2414
Okay. So it is purely illustrative of one site and the response of one employer?---I think I give examples from a number of different sites.
PN2415
You go on to make another example where a risk assessment was decided not to occur on the basis of cost?---Yes. Well, no, it - - -
PN2416
Do you know what state that company was working in?---Would I state the company?
PN2417
No, no, no?---No.
PN2418
No, no, not at all. No, no, heaven forbid?---No, no.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2419
No. No, what state of Australia the company might have been in?---I won't even say that.
PN2420
Right, right, because it is such a small industry that you would possibly - - -?---Yes, it is. It is just too small.
PN2421
Right. Given the fact that there is regulatory control in most states, what do you feel would be the effect of present legislation in relation to duty of care on that employer?---Unless something happened, practically nothing. Unless the regulatory authorities decided to prosecute on the basis of having a risk and not having responded to it, I think the chances of prosecution are low.
PN2422
But there is in actual fact a fairly significant penalty if something occurred on site that would allow the Pandora's box to be opened?---In the event that something occurred, yes; after the fact, yes.
PN2423
Yes. So in actual fact, if it was unsafe and something occurred, that would be a problem, but if it is not unsafe and something doesn't occur, then it is all right?---Do I think that that is all right?
PN2424
No, no, I am saying that you are suggesting that if it is unsafe and something occurs, there will be penalties accruing?---Perhaps, although the history of prosecutions over fatigue related issues would suggest that we are not on strong ground in that area.
PN2425
Might I suggest that that may well be occasioned by the newness of the legislative guidelines and requirements within the states?---That is possible; that is possible.
PN2426
So if nothing does occur, that framework is safe and thus there are no penalties?---What, just because nothing happens, we can assume that the roster system is safe?
**** KATHRYN HEILER XXN MR GALLAGHER
PN2427
Well, how do you define unsafe if you don't look at risk - - -?---A system of work can carry risks before it manifests itself in an incident, a reportable incident.
PN2428
Yes?---You can have a cluster of different indicators like trucks, people falling asleep as I have seen, and wheel tyres heading off the road. There can be clusters of maintenance damage, there can be reports of workers involuntarily nodding off before you get to a point of having a reportable incident. That doesn't mean that there is not a risk there. That is the whole aim of duty of care legislation so that you don't get to the point where you actually are only managing after the fact. It is too late; it is too late then.
PN2429
Yes. The conclusion to your submission in 52 suggests that the ACTU application proposes a range which triggers compensation in the form of paid leave. Now, your words, "inadequate drafting" and your words, "a good start", imply just that, that you see their application as being a good start because it is prescriptive?---I think it is a good start because it tries to fill a gap, a vacuum that is currently there in either jurisdiction which is - - -
PN2430
Right. That is a prescriptive guideline in relation to performance?---It is a very broad and modest prescription.
PN2431
But it is a prescription?---It is.
PN2432
And you support it because of that?---No, I don't support it purely because it is prescriptive and I have some ideological bent towards prescription. I support it because I believe that it has - at least it provides a start towards requiring companies to think about how they are managing hours than is required by the existing regulatory framework. I think that is why it has some - I think it has some credit, that we need to give some credit to it, because at the moment there is nothing else.
[12.35pm]
**** KATHRYN HEILER XXN MR GALLAGHER
PN2433
That is in spite of your work on code of practice in the industry?---I think I've failed.
PN2434
You have failed?---Yes, I think I have.
PN2435
Is that because you have not been able to develop a prescriptive guideline?---I think it is because what the sites are looking for when it comes to the development of controls they say, what are the standards, what are working towards, how long is too long, over what length of time. So the sites, in my experience, only my experience, in my experience many of the sites themselves are looking for greater guidance than is currently contained within the broad general duty of care provisions under the Act.
PN2436
So you are suggesting that in real terms reliance on Part 1 of the application will be fraught with great difficulty, that is the assumption of what is unreasonable is the same, how long is a piece of string, it has a subjectivity to it which is similar to the subjectivity that you are looking for in terms of your risk management controls?---I understand. Except that in the other parts as claim it does attempt to set out a broad framework that could be broadly considered to be excessive. In other words - - -
PN2437
Yes. There is a difference, as you might be aware, within the application the utilisation of the excessive clause is not seen to be read as unreasonable, therefore, you can't extrapolate between the two in the way you - - -?---Yes, I understand what you are saying and I think it would be helpful to be able to flesh out what would be considered to be both reasonable and unreasonable.
PN2438
And do you see the problems associated with industry are associated with the risk management of fatigue and the inability to find some credence and credibility and structure; what is too long, what is something that will create fatigue, do you see that as paralleling the same problem for industry that this application could generate in its present drafted, as you say inadequately drafted form?---I will regret saying that later.
**** KATHRYN HEILER XXN MR GALLAGHER
PN2439
No, don't?---Are you talking about Part 1 or Part 2?
PN2440
Part 1?---In terms of - - -
PN2441
Do you see it on a parallel between your argument of the inadequacy of risk management?
PN2442
MR MARLES: Well, your Honour, can I just - I think Ms Heiler's comments in relation to the drafting were specifically about Part 2. Mr Gallagher has confused us a couple of times.
PN2443
JUSTICE GIUDICE: Well, I haven't noticed that Ms Heiler has been having difficulty dealing with the questions.
PN2444
MR GALLAGHER: I am sorry, your Honour, I didn't - - -
PN2445
JUSTICE GIUDICE: Ms Heiler, if you do not understand a question or you disagree with some assumption it is based on, then by all means say so?---Yes.
PN2446
MR GALLAGHER: What I was really attempting to do was to draw a parallel without the utilisation of your words necessarily, between your obvious concern at the risk management controls that are presently in place, and I emphasise the word, controls, the designation of - and the definition of the issue, the definition of controls and the appropriate problems, or the associated problems that Part 1 of the application would provide an employer. The same lack of, or the ephemeral nature of the issues to be addressed will create that same problem for an employer?---Are you suggesting that in the claim, so that I can just understand that I have the question correct, are you saying that in the claim that an employer must not require an employee to work unreasonable hours of work, bears no relationship to paid breaks after extreme working hours, are you saying the two are not in any way connected?
**** KATHRYN HEILER XXN MR GALLAGHER
PN2447
Well, if you read the last section of Part 3?---Yes.
PN2448
It specifically states that it is not to be implied that they are unreasonable because they are extreme. And I am just sort of really not worrying about the extreme hours, I am more worried about the issue of identity of factors and the problems associated with the claim, within a practical sense for an employer. And I was paralleling your concerns for the employer and the whole group, in addressing the ephemeral nature of the controls in relation to mismanagement issues?---I think with respect to working hours the clearer that we can be about what is meant by these provisions the better. That is my view.
[12.40pm]
PN2449
And did you agree that there will be problems for employers in addressing those - in relation to those factors, in a similar event?---I think that at least part 3 of the claim is clear.
PN2450
Yes, but I am talking about part 1, the variables, in relation to the same problems associated with the risk management that you had experience with?---My understanding, I guess, was that unreasonable hours of work would be read within the context of part 3. I could be wrong about that. I haven't drafted this claim, so I will stand corrected about that if that is the case. My understanding was that an understanding of what would be considered to be unreasonable hours of work would be understood in terms of the parameters that were set in part 3. That was my understanding of the claim.
PN2451
Yes, I think that may well be your understanding of the claim?---Yes.
PN2452
I appreciate your points, and thank you very much for your time?---Thank you.
PN2453
JUSTICE GIUDICE: Is there more cross-examination?
**** KATHRYN HEILER XXN MR GALLAGHER
PN2454
MR BATES: Yes, your Honour.
PN2455
JUSTICE GIUDICE: Yes, all right. Well, we will adjourn until 2.15. How long will your cross-examination take, I should have asked.
PN2456
MR BATES: I would have thought mine would be reasonably short, but there are some other people to follow me, as I understand it.
PN2457
JUSTICE GIUDICE: Yes.
PN2458
MR COLE: I could indicate the Commonwealth will be about half an hour to 40 minutes, your Honour.
PN2459
JUSTICE GIUDICE: Yes, well, it may be necessary for Ms Heiler to return. In any event I will leave that to you. We will adjourn now until 2.15.
LUNCHEON ADJOURNMENT [12.42pm]
RESUMED [2.20pm]
PN2460
JUSTICE GIUDICE: Mr Marles.
PN2461
PN2462
MR MARLES: Your full name is William Andrew Dawson?---That is correct.
PN2463
Your address is 167 Tapley's Hill Road, Seaton in South Australia?---Yes.
PN2464
And you are currently the director of a sleep research centre at the University of South Australia?---That is correct.
PN2465
Could you briefly outline for the Commission your qualifications?---I have an honours degree in psychology completed in the mid-eighties followed by a Ph.D. That Ph.D was completed at Flinders University in Adelaide. Following that, I did post-op studies at Harvard University in Boston and then Cornell University at White Plains in New York, and since returning from the US in the early nineties most of my research has been based around the effects of hours of work, shift work, fatigue and sleep.
PN2466
Indeed. Could you outline for the Commission your areas of research in more detail, and in particular your publications and experience?---Yes, over the last couple of years we have been working primarily in the area of sleep, or lack thereof, and in particular looking at the effects of hours of work and lack of sleep on people's performance in a variety of settings, both laboratory based as well as simulated performance in the transport sector. The other area that we do a lot of research in is the area of psycho-social modelling of the effects of different hours of work strategies on the wellbeing and otherwise of families working those hours. The other area that we work is we run a lab that does pharmacological work looking at the effects of particular drugs on sleep, in particular related to the thermo-regulatory effects of that.
PN2467
Thank you. Now, Professor Dawson, in the course of these proceedings you have prepared a report which is entitled: Extended Working Hours in Australia, Counting the Costs. Your Honours and Commissioners, that report appears at ACTU tab 3.
**** WILLIAM ANDREW DAWSON XN MR MARLES
PN2468
JUSTICE GIUDICE: ACTU?
PN2469
MR MARLES: It is ACTU2 at tab 3.
PN2470
JUSTICE GIUDICE: Well, there is another publication that Queensland have - is that the same - - -
PN2471
MR MARLES: Yes, it is, your Honour.
PN2472
JUSTICE GIUDICE: - - - in all relevant respects?
PN2473
MR MARLES: Yes. I think that - - -
PN2474
JUSTICE GIUDICE: There are some pictures and so on, but it is the same document, yes.
PN2475
MR MARLES: The words are the same, your Honour.
PN2476
JUSTICE GIUDICE: Thank you.
PN2477
MR MARLES: Professor Dawson, are the contents of that report, including the opinions expressed in it by you, true and correct?---Yes.
PN2478
Now, Professor Dawson, have you read a report prepared by Professor Mark Wooden entitled: Working time patterns in Australia and the growth of unpaid overtime; a review of the evidence?---Yes, I have.
**** WILLIAM ANDREW DAWSON XN MR MARLES
PN2479
Professor Dawson, at page 21 of that report, Professor Wooden makes observations with respect to working hours preferences and concludes that:
PN2480
The majority of Australians working long hours appear to want to do that.
PN2481
What do you say in response to that?---It is a difficult question and it is an argument that has been raised over the centuries, I guess. My concern with this data is the way in which it has been particularly interpreted, and that is in my opinion there is a degree or there is an error of logic, and the logic is very - if you cut away all of the additional bits, the logic goes something along the lines of people who work jobs with long hours like to work those jobs, therefore they like to work long hours. And that is the general logical approach that has been used in terms of much of this research, both by Mark and other people, and my concern about that is while that may be true, most of the research would suggest otherwise. That is, the proper way to ask this question is if somebody enjoys their job and whether they enjoy working long hours are actually separate issues. So the proper way to ask this question would be to say, for example, go to a doctor working very very long hours and say, "Do you like your job?" "Yes". "Do you work long hours?" "Yes". "Would you still like your job if you worked less hours?" And what is very clearly the answer to that is probably "Yes". And I think that is where a lot of this research has fallen down with a basic error of logic, which is to say because people work long hours and they like their jobs, therefore they like working long hours. And in my opinion the research does not, when it is done properly, support that opinion in the same way as it is placed in this particular document.
PN2482
Yes, thank you. Now, Professor Dawson, on pages 23 through 26 of Professor Wooden's report, he sets out three tables; they are tables 15, 16 and 17. What is your view about the data in those tables?---The basic area that Mark is talking about here is related to the effects of long working hours on stress. And then he goes on to show with an analysis that there does not appear to be a strong relationship between the number of hours worked and the levels of stress experienced by an individual. But the difficulty with this argument is that on the surface that looks reasonable, but if you actually think it through a little bit more carefully, then I am not sure that conclusion holds up. And the reason is, for
**** WILLIAM ANDREW DAWSON XN MR MARLES
example, that most of this research, as Mark points out in his critiques of this research, is that this is a very bad way of actually testing the question. But he tested the question using this because that was the only data that was available in the ABS - sorry, AWIRS employee survey. And I think he actually says that this is a very crude attempt to look at this hypothesis. What happens unfortunately in this particular study is that it looks at people working long hours or it looks at people working short hours and then says there are no higher levels of stress in people who are working the longer hours compared to those who are working the shorter hours. And on the face of it, that is true. On the other hand, there is a complexity here which says that people who are working the long hours and the people who are working the short hours are not necessarily the same people. And there are a number of methodological criticisms that have been made of this study. The first and probably the most important is that if you look at a single point in time at a group of people who have been working long hours and look at their stress levels, many of the effects that we know from the literature to be associated with long hours of work actually force people out of that group of subjects. That is what you will find is that they are no longer in the pool of data. So you may find what we call a survivor bias; that is, the only people who are left in the group working extremely long hours are those ones who can cope with stress. On the other hand, a large number of people have fallen out of that group and either been injured, returned to work in jobs at standard hours or maybe are in rehabilitation and are working on shorter hours. Those individuals are actually lost from the data analysis. So the general feeling for people who work in this area is that we should approach this as a question of multitudinal studies; that is let us look at individuals in the same occupation or across time to see what the effects of long hours of work are. And again, there is a little bit of a difficulty here, because in the executive summary to this report the weaknesses of this analysis are not referred to, yet in the substance of the document they are clearly pointed out in excruciating detail why this is not a great way of actually doing the analysis. But it was the best we had on the basis of the data.
PN2483
So you mentioned occupation. Would you expect the occupations in the lower hours categories to be the same as those in the higher hours categories?---No. And again if you look at the analysis, and again this is paraphrasing what Mark has said in the report, is that there are a lot of difficulties with approaching a question from this perspective. He has done on a cross-sectional approach - that is to take all of the people at a given point in time and try to vary the effect by occupation. What he has said is do hours of work affect in different occupations. And as he says it is not possible to actually test that statistically from this data set,
**** WILLIAM ANDREW DAWSON XN MR MARLES
because they do not actually have the data there. The major criticism of this is that when you break this down by occupation, that is do certain individuals and certain occupations who work long hours also work - also experience high levels of stress, then the analysis that is done here does not actually test that hypothesis. It tests whether there is an affected occupation and it says yes, there is a very big affected occupation; that is depending on what job you do, the level of stress that you experience is higher or lower based on occupation. And it goes on to look at is there effect of number of hours worked. And for the reason I talked to you about before, that is many people who have not survived have been eliminated from the analysis, plus the fact that you would need to use - I do not want to get too complicated here, but you would need to do an interaction analysis to say what were the effects of hours of work while controlling for occupation. And again that analysis has not been reported here and has been glossed over in the executive summary.
PN2484
Professor Dawson, in table 17 you will see that there are a number of asterisks that appear and, where there is a single asterisk, Professor Wooden is referring to a relative standard area greater than 25 per cent, and, where there is a double asterisk, it is saying the relative standard is too high in excess of 50 per cent in practical use. Could you give your view, given that about the robust of those figures are?---What is means is where the asterisk occurs in that table it just means can we trust these data as being representative of the hypothesis we tested. And as the author says, there is a large number of problems with this data set, firstly because of its size and certainly because of the way it was constructed, that mean that many of the estimates here of incidence do not accurately reflect what the real state of the world is. That is, because it is under-powered as a statistical methodology, its chances of finding a difference when one exists are very poor. And I think, for example, if you look at the literature on insomnia, it will say that on total across all employees the incidence of insomnia is .7 per cent. Well, that is a very interesting finding, because that goes against everything we know from the sleep research literature, which says using this methodology in the general population, that is where you include workers, that the incidence of that should be somewhere between five and eight times greater. So the first time when you start to look at this data, and Mark has freely admitted this, is that it is a very small study, it is not ideally suited to answer any question, and as a statistical methodology it has a number of very significant flaws. That is not to say that it is not true. It is not a definitive study, and when you start to look at the literature as a whole, my impression would be that the reason that they failed to find a difference in this study, as the author has indicated, is because of the poor
**** WILLIAM ANDREW DAWSON XN MR MARLES
methodological and statistical design of the data set. But it is also important to understand that when you work in these areas; you cannot always design perfect experiments. You work with what you have got. And provided that you place caveats that indicate the limitations of your interpretation, that is normally considered to be an appropriate way of managing it. On the other hand, while those caveats and the weakness of the design are clearly outlined in the substantive elements of the report, they are actually eliminated in the executive summary, and I think that is a problem that I have because I think in terms of intellectual honesty it is much better to actually say there are some weaknesses to this conclusion and none of us will ever do the definitive experiment. What we look for is the weight of evidence over time or the convergence of different experimental approaches to show similar results.
PN2485
Yes. Now, in the executive summary, Professor Dawson, Professor Wooden on page (iv) in the first full dot point which appears on that page, it is the paragraph which starts "Longer working hours", halfway through that paragraph Professor Wooden makes this statement:
PN2486
Stress per se however is not necessarily harmful to individuals.
PN2487
What is your view about that statement?---He is absolutely right. He is absolutely right. In the past when people talked about stress, what they actually meant was a failure to cope with a stressful environment; that is a non-coping outcome. On the other hand, when most of the survey methodologies that his approach was based on were used, then they would typically say to people do you feel that your job or the hours that you are working are stressful? And unfortunately there is a difference between the lay interpretation of stress and the academic interpretation of stress. We talk about good and bad stress and the ability to cope with it. Because a job can be so boring that it becomes bad for you in the same way as it can be too demanding. And what I think is the issue that we have to think about here is that with those sorts of issues there are quite significant I guess what I would call apples and oranges weakness. They are trying to compare one thing with another thing and they do not actually compare very well. And I guess if I was asked to sort of reflect on this in detail, I would say we have to be very careful when we talk about the issue of stress, and what we have to do is talk about people's ability to cope with a stressful environment, and the medical conditions that are referred to there indicate in the general literature a failure to
**** WILLIAM ANDREW DAWSON XN MR MARLES
cope with stress. But again the same problems that I outlined before, that is about the bias of the cross-section of data approach, the fact that some people survive or do not within the two groups, makes it very difficult to draw too strong a conclusion on this.
[2.35pm]
PN2488
Well, now again tables 15, 16 and 17 of the report that I referred to you earlier, there are a range of reports of surveys in relation to stress. In your experience when people, or rather in your experience the people who are answering questions in relation to stress, would they appreciate the academic distinction of stress that you have just taken us through?---No, in fact the fact that we don't is something that you trade on where we would run stress reduction groups. We say to people, they say, my job is so stressful, we say is it good stress or bad stress, and they look at us as if we are mad and we use that as actually the starting point to go on to talk about that what most people mean when they talk about being stressed, is a failure to cope with the stress levels produced by the environment. And I think that is where the difficulty of this is, is that if you take an academic interpretation of stress it is not the same way it is de-constructed or unpacked by people filling in these surveys. And there has been a lot of research on this that would support that view, is that just because something is stressful doesn't mean it is necessarily bad for you, but our traditional understanding of that is stressful means that I am experiencing difficulties coping and are exhibiting stress related symptoms associated with that.
PN2489
Now, on page 25 of Professor Wooden's report, at about half way down the page, Professor Wooden makes this statement:
PN2490
With respect to some of the illness conditions often thought to be stress related such as ulcers, recent medical research has demonstrated that other factors are far more significant.
**** WILLIAM ANDREW DAWSON XN MR MARLES
PN2491
What is your view of that statement, Professor Dawson?---Well, again, it is absolutely correct because there is no doubt in the last five years there has been a fundamental shift in the stress literature which says in the past stress was seen as the sole cause of ulcers; that is, you have a stressful job, you excrete too much gastric acid, and therefore that burns your stomach lining out and you experience gastro-intestinal problems. What the research that was actually pioneered in Australia shows, that stress is necessary but not sufficient, that is you also need the presence of a bacteria called helia bacter-pylori, and that it is the combination of stress and exposure to that bacteria which actually results in the stress related problems with those individuals. So the fact that a bacteria is involved in promulgating the disease and the fact that long hours of work stress that and, therefore, make you more likely to experience an ulcer, to say that therefore long hours of work are not stressful is not just logically plausible. I think there are a lot of parallels within this document where those sorts of fallacious arguments are put forward, because a does not go with b, therefore a is not necessarily stressful. And that error of logic is right through this document.
PN2492
Thank you. Now, Professor Dawson in the materials that have been lodged in this Commission by AMMA, they have made reference to a roster pattern of 14 days on, 7 days off, 14 days on. Do you have any view as to the likely health and fatigue implications of such a pattern?---It would go against current health and safety guidelines, but I would have to be a little more knowledgable about that. Where you have got 14 on and 7 off, is that 14 day shifts in a row; 7 days and 7 nights; or 14 nights, or combinations thereof?
PN2493
Well, perhaps if you could comment on all of those?---Okay. If an individual was working 14 12 hour day shifts in a row, I wouldn't be overly concerned about that. On the other hand if they were working 14 12 hour night shifts, or they were working a combination of 7 days and 7 nights or 7 nights and 7 days, what we know from the biology of this is that the toxicity of a given shift pattern is primarily related to the amount of sleep that you don't get when you undertake that schedule. And as anybody who has worked shift work knows it is where shift work involves working night, that is when you are meant to sleep, it involves trying to sleep during the day, then people find it exceptionally difficult for both strong biological reasons, they have a body clock that says it is good to sleep at night and it is bad to sleep during the day. What we find is, is that because of
**** WILLIAM ANDREW DAWSON XN MR MARLES
those biological factors that determine our capacity to sleep, if you are working 14 days or 7 days and 7 nights or vice versa, then we would see a significant amount of sleep loss across that 14 days. I have done a lot of work in Western Australia with mining companies trying to work out alternative approaches to that and it is a difficulty. But I think the problem that we don't understand, and I think this reflects probably industrial relations emphasis on these issues, is that the toxicity of a shift is related to your access to social time and your access to biologically appropriate sleep time. If a shift stops you being able to sleep at the right time for sleeping, then you would build up a sleep ..... and that will result in increased incidence of accidents and injuries, poorer health. There are a whole range of those sorts of things that the literature is unequivocal about. But 14 days in a row is fine, because you would be ostensibly given a significant amount of time, 12 times at night, and most people in most environments, and particularly this is used a lot in fly-in, fly-out roster operations as I understand, if somebody was working 14 days straight, particularly if it is a dry mess, as the expression goes, we wouldn't see that as a particularly difficult issue of working that many hours in a row.
PN2494
Well, Professor Dawson, in your experience what is the incidence of 14 day shifts?---That varies enormously on the industry and geographical location in Australia. My understanding is Kathryn Heiler is the current recognised expert in that area. My understanding of what she has said in that area is that the incidence, particularly in the mining industry and in Western Australia is extremely high, and it typically reflects the cost consequences that flow from fly-in, fly-out operations. If you have a fly-in, fly-out operation, you don't want to be flying people in every six or seven days. The other difficulty that we find with those schedules in fly-in, fly-out operations there is some good anecdotal evidence from one of my colleagues, Angela Baker who has been working in Western Australia.
PN2495
Yes?---And it actually shows that longer hours of work in certain mining environments like that actually produce better outcomes than people working less hours because they have less access to alcohol. So, for example, people who are having eight hours to work, eight hours to drink and eight hours to sleep, end up doing themselves a lot more harm than having 12 hours work and no drinking. So it is a combination of both biological and social factors and it is not easily predicted on the basis of the number of hours that you work. I think that is a really important issue and this whole question is that if you want to just say you
**** WILLIAM ANDREW DAWSON XN MR MARLES
can only work this many hours or this type of shift, the problem with that is the research shows that you have got to look at that in context. Say for example, on a remote mining site you could put forward a reasonable argument why working longer hours of work could actually be in better interest. On the other hand my experience is that there is very few mining sites where staff are working just 14 hour day shifts on a fly-in, fly-out operation. But again, Kathryn, would be able to tell you that stuff in detail.
[2.45pm]
PN2496
Yes. Further in - - -?---Look, this is terribly embarrassing; I just turned it off, and it called me back.
PN2497
That is all right.
PN2498
COMMISSIONER FOGGO: It is not all right, Mr Marles?---No, it is terribly embarrassing.
PN2499
MR MARLES: Professor Dawson, further in the AMMA material, there is a suggestion that reduction and lost time injury frequency rates in the mining industry is indicative of improved safety. What is your view of that statement?---I think at a global level, LTIRs have come down and you could mount a reasonable argument to say that, therefore using that global measure, the industry is safer. On the other hand to then go on and say - and again it is the same error of logic, just because we work long hours in this occupation and the safety levels are improving doesn't mean that we don't have a problem, for example, related to fatigue. You could show that while other sources of safety or other sources of accidents and injuries were improving, what we have found in many of the organisations that we have looked at is that you have two things working in opposing directions, that is you have improving safety through declining incidents related to other factors, for example protection, education and training, counterpoised by increasing levels of accidents and injuries due to, for example, fatigue or other aspects. So when you unpick this a little bit, just because the over-all level is declining doesn't mean that the effects of long hours of work are necessarily not there. What we find in many of the sites - in fact road transport in Australia is a very good example of this. The relative contribution of fatigue-related accidents to over-all accident and injury rates in Australia is going up exactly because of that. This is the only thing that is not managed and that you can actually probably hurt yourself as a consequence of.
**** WILLIAM ANDREW DAWSON XN MR MARLES
PN2500
Yes?---So to use LTI data - and again you could probably seek much better opinion from others - they are now generally not regarded as a good indication of a safe workplace, that is just because you don't have them. On the other hand, if you do have a bad LTI rate, that probably is a good indication. But there are reporting biases, there are a whole range of problems. I think current recommendations from the Occupational Health and Safety Commission both here in Australia and right around the world is that we should move away from LTI-based models because they give us a false sense of security.
PN2501
And why is that? You mentioned the reporting of it?---Because they don't actively look for a problem. They say if it is not recorded a problem doesn't exist. And what we know from safety culture is that there is a tip of the iceberg. You know, one or two near miss events can tell you the system is very unsafe. They didn't just happen to happen on this occasion. And this kind of gets statistically esoteric, but where you have a small number of individuals in an organisation, even though it is very unsafe, it might take two or three years statistically for that accident to happen, and then what people say is, look, we haven't had an accident for two or three years, we must be safe. And as James Reason, a very famous academic in this area, said: one of the problems with promoting safety culture is it is the creation of a dynamic non-event, and management find it very difficult to deal with non-events. And I think this is one of the reasons why Worksafe in Australia and ILO in other health and safety commissions in North America are saying it is not a good measure any more. It was great in our first phase, but it is no longer sophisticated enough, it is too crude.
PN2502
Thank you. I have no further questions, your Honour.
PN2503
PN2504
MS McKENZIE: Your Honour, my colleagues have very kindly allowed me to commence Professor Dawson's cross-examination.
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2505
Professor Dawson, I represent Qantas Airways Limited, and I have just got a few questions because you have got some particular expertise in relation to the management of fatigue in the transport industry. Qantas is a respondent to the Long-haul Flight Attendants Award. Do you understand that that is one of the awards which is the subject of the ACTUs test case claim?---Yes, I do.
PN2506
You were aware of that before, were you?---Yes.
PN2507
The report that you have - - -
PN2508
JUSTICE GIUDICE: Professor Dawson, your evidence is being recorded, so you will have to say yes or no?---I am sorry, yes, I am aware that they were parties to this.
PN2509
MS McKENZIE: Yes, thank you. Professor Dawson, the report on standard hours was commissioned by the Queensland Industrial Relations Department?---That is correct.
PN2510
And was it written with a view to it being used as evidence in these proceedings?---You would have to talk to the Queensland Department of Industrial Relations. When I was first approached, they approached me as the Department of Industrial Relations.
PN2511
I see?---I subsequently became aware that it was going to be used, but initial discussions were based on it being a Department of Industrial Relations project.
PN2512
I see. But presumably they discussed with you its use as evidence in these proceedings?---They did subsequently, yes.
PN2513
The focus of your report, I think you would agree, would you not, Professor Dawson, is extended hours of work in Australia?---That is correct.
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2514
And you define extended hours as hours in excess of 44 hours per week?---For the purposes of that report, yes. There are other definitions; I am perfectly aware of that, yes.
PN2515
Yes. For the purposes of the report, extended hours means hours over 44 per week. But you also used the expression during the report - the term long hours is used. Is there a difference between long hours and extended hours?---No. I don't make a technical distinction between those, no.
PN2516
I see. So we can assume that where you are talking about long hours or extended hours it is the same; the same definition applies?---Yes, I think I got sick of writing extended so many times.
PN2517
I am sorry?---I got sick of writing extended so many times, so I think I just tried to balance things up a bit.
PN2518
I see. At page 31 - you have got that in front of you, have you?---Yes, I have.
PN2519
I am referring to the copy which is part of ACTU2 at tab 3 - I am not sure if there is a different version of that, but hopefully the page numbering is going to be the same. Page 31 of 48, it is numbered; do you have that?---Yes.
PN2520
And you have got a heading there, "Policy Initiatives" and under that heading you identify three separate initiatives, one, the European Community Directive on working time?---Yes.
PN2521
And then the Australian Parliamentary Inquiry?---Yes.
PN2522
That is the Senate Inquiry into fatigue management in the transport industry?---That is correct.
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2523
And the third one is the ACTU test case on reasonable hours. You see the three of those all as policy initiatives? Is that how you would describe them?---Yes, I guess, but I am not a policy expert, so there might be some technical definition, but from my perspective, yes, I view them all as policy initiatives.
PN2524
And you see them as equal alternatives to dealing with the same issue, do you?---Well, they actually evolved out of different bases. The European Directive, and particularly the stuff that happened in France, was as much about job creation as it was about health and safety.
PN2525
Yes?---Whereas the Australian Parliamentary Inquiry - and I haven't read it all exhaustively, but we made a number of major submissions to that. My impression of the inquiry was that it was more focussed on the social and occupational health and safety costs to industry and to the taxpayer rather than job-creation aspects. Although a number of people who made submissions did actually talk about the fact that a reasonable hours approach based on the French evidence could result in reductions in unemployment as a consequence.
PN2526
It is in the nature of legislation, in effect, isn't it, the European Directive?---I am not an expert on that. I couldn't tell you. My understanding is that they have inspectors racing around car parks seeing if people are still there after 6 o'clock at night, so I presume it has some legal support.
PN2527
I see. And the parliamentary inquiry, that was a Senate Committee of Inquiry, a Parliamentary exercise?---Yes.
PN2528
And there were - for a lengthy process, and submissions were received from a wide range of people?---I think it was a House of Representatives Committee actually off the top of my head.
PN2529
I think you are right, Professor Dawson, yes?---Yes, I think it was.
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2530
I think you are right. And the ACTU test case, you understand that the application before the Commission is for a standard award clause to be inserted into the awards which are the subject of the present application, but that it would become, in effect, a standard award provision?---Yes.
PN2531
You say at page 32, Professor Dawson, under the heading about the ACTU test case, you describe the aim of the clause?---Yes.
PN2532
Is that your understanding of the aim, or have you taken that from some ACTU description of its claim?---It is probably a combination of both.
PN2533
The reason I ask is you have got ACTU 2001 in brackets?---Yes.
PN2534
Are you quoting there from some ACTU literature?---I don't know whether - I probably, if I was a very special and wonderful person, would have put it in inverted talking marks if it was a direct quote, and it would have been cited differently, so my guess would be that this is a paraphrase, not a direct citation. But I wouldn't want to swear on that.
PN2535
I see. Does that sentence there accord with your understanding of the aim of the claim?---Broadly speaking, yes.
PN2536
Now, you understand, don't you, that the ACTU claim relates to reasonable hours?---Yes.
PN2537
And you understand that there is possibly a difference between unreasonable hours of work and extended hours of work?---Yes.
PN2538
So do you understand that the ACTU claim potentially goes beyond dealing with the particular question of extended or long hours of work?---Yes, that is my understanding, yes.
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2539
And in your report you refer to - or you provide a list of dot points which define unreasonable hours, and you will see that some of those - - -?---Which page is that?
PN2540
At the bottom of page 32. See the row of dot points?---Yes, okay.
PN2541
Ahead of that it says: "Unreasonable hours are defined by" and there follows those dot point matters?---Yes.
PN2542
And you agree that some of those referred to the length of time, but there are other factors included there?---My understanding is that they are a set of dimensions that should be addressed in order to determine whether something is reasonable. So you wouldn't want to end up in a situation where somebody says: are those hours reasonable, and the person says: sure, or no, they are not reasonable. So the idea in my understanding was to create a set of dimensions that could be used to determine whether the number of hours worked were or were not reasonable.
PN2543
Do you understand that each of those dimensions stands alone, or is it your understanding that they are in some way cumulative?---I am not sure what you are trying to say.
PN2544
Is it your understanding that any one of those dimensions could lead to working hours being unreasonable, or do you understand there needs to be a combination of one or more of them?---My guess would be it is very difficult to make one size fits all rules, so to work on any single dimension would probably not produce good outcomes. So yes, I would take that as a basket of factors or dimensions that were actually important to take into consideration when determining what was or wasn't unreasonable.
PN2545
Well, perhaps if I can quote to you one in particular. It is the third dot point from the bottom, fatigue risk. Is it your understanding of the ACTU claim that fatigue risk, considered as a dimension in isolation from the actual duration of hours, could lead to hours of working unreasonable, for the purposes of the ACTUs claim?---I am not sure I understand the question.
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2546
All right. You see that there is a separate dot point "fatigue risk"?---Yes.
PN2547
And you see that you have said above that that:
PN2548
The ACTU reasonable hours clause states that employers must not require employees to work unreasonable hours as such unreasonable hours are defined.
PN2549
And I think you have said that they are each individual - a list of individual dimensions. What I am asking you is whether it is your understanding of the significance of fatigue risk appearing there as a separate dot point or dimension that fatigue risk could in itself, considered alone, be a cause of working hours being regarded as unreasonable?---Okay, thank you. Now I think I understand. The answer to that is complicated, and I apologise for that. But the reason that I have over the last couple of years supported the idea of separating fatigue from hours of work, and as other people would comment that I have argued that controlling hours of work isn't necessarily a good way of controlling fatigue. The reason behind that is, to determine how tired somebody is based on the number of hours they have worked on these dimensions is difficult, because it doesn't actually deal with the fundamental issue. If you want to know how tired somebody is you have to know how much sleep they are getting, and that is the fundamental issue that you need to focus on. So what, in this particular, I guess, policy initiative is that you need to separate out - just because you work less hours doesn't mean that the roster has a less risk of fatigue. Now, the difficulty historically in Australia is that we have always tried to regulate or manage fatigue by controlling the number of hours that people work, and most typically by controlling the length of shift. But anyone who has worked shift work will know that, if you work a 12 hour shift during the day, then you can get a good sleep at night. There may be some social costs associated with that. On the other hand if you work 12 hours at night, exactly the same duration of time, the amount that you would get would be fundamentally different. And I think what we are trying to say is, just because you are working 40 hours a week - I could put those 40 hours a week together in a way that would make you incredibly tired. And conversely there are ways, as with the project that we are doing with Qantas at the moment, is that just because somebody is working 48 hours a week doesn't mean that they will necessarily be tired. So there is a separation between those concepts.
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2550
I take it from that answer - and I hope I am not doing an injustice - that what you are saying is that fatigue risk cannot in fact be considered in isolation from the other factors which go to make the working hours. Is that what you mean?---Yes. You need to take all of those factors into account. I mean I think some very simple examples of that is, we were talking before about fly-in/fly-out mining sites. One of the things that has been argued quite reasonably is, because people fly away from their families, the normal pressures to engage in social and family activities are precluded anyway. So why not let them work in that situation.
PN2551
Yes?---On the other hand, it can be the case that you can have somebody working 20 hours a week, and to take the ridiculous situation, if I said, okay, I want you to work from 8 o'clock this morning till 4 o'clock the next morning on a mining truck or flying an aeroplane, that is only 20 hours a week. But you can see the way that 20 hours is put together is not necessarily safe.
PN2552
So in the context of this report, when you refer to fatigue risk, you are talking about fatigue risk as a contributing factor, or as a relevant factor, in extended hours or long hours, is that right?---Yes. What we are talking about there is the risk in terms of the susceptibility of the task. In my language - now I don't want to talk for the ACTU because I can't - but in my mind when we talk about fatigue risk as distinct to fatigue, we are acknowledging the fundamental fact that somebody who is operating a photocopy machine tired is probably at less risk to themselves and the community than somebody landing a Jumbo Jet tired, because you could run up a billion dollars worth of accident costs and kill 300 people. So when you want to work out whether hours are unreasonable, you have to take into account not just the hours worked but the risks of a fatigue-related error in that particular occupational task.
PN2553
Professor Dawson, can I just take you back now to the Parliamentary inquiry, the passage in your report at page 31 refers to that - - -
[3.00pm]
PN2554
JUSTICE GIUDICE: Just before you go to that, Professor, could I just ask you a question about the paragraph that Ms McKenzie has been questioning you about. About four lines down under the heading ACTU Test Case Unreasonable Work Hours, there is a statement that:
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2555
The claim doesn't attempt to prescribe a numerical limit on hours worked as this will vary with each industry and situation.
PN2556
But then you go on later on to set out the extreme working hours. What did you mean by that sentence?---Well, for example, if you look at the European Initiative, there was a thing to say it is this many hours and that is it. It doesn't matter how they are put together, you are only allowed to work so many hours. And I guess what I was trying to get at there is that the ACTUs approach was a little bit more sophisticated in a sense - and I think this reflects its health and safety bias, where as the European Directive was focussed on a job creation bias rather than a health and safety one. What they are trying to do is say, we are not going to say, you know, 48 or 44, you have got to take a number of factors into account to work out and here is some general guidelines or dimensions that should be considered in that discussion. That is what I meant, I - - -
PN2557
Yes. But it nevertheless does put some numerical limit on hours worked?---Yes, you are right, but I was thinking of it more in terms of the very simplistic approach that the European Initiative did which was - in terms of job creation and that is if we only work 35 hours, we can create 200,000 more jobs. They didn't actually address how those hours were put together, what the health and safety implications were, etcetera, etcetera.
PN2558
Yes, I see. Thank you.
PN2559
MS McKENZIE: Professor Dawson, just before I take you to the inquiry, on the last page of your report you - - -?---Can you give me the number for that.
PN2560
I am sorry, 33; page 33?---Yes.
PN2561
See the paragraph, the ACTU Test Case. You conclude that the test case is certainly a step in the right direction in addressing the issue of extended working hours, and you then go on to say:
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2562
The initial point made, that an employer must not require an employee to work unreasonable hours of work, is fundamental to the work hours debate. The point is absolutely essential and should be embedded into the industrial relations landscape.
PN2563
Do you mean by that that you support the ACTUs claims to include the test case provision into awards?---I fully support the idea that the concept of reasonable hours should be embedded within awards because it provides us the capacity to then manage in my particular area of interest the social and the health and safety consequences that have not been managed well up to date.
PN2564
Yes. So when you refer to "embedded in the industrial relations landscape", you mean put into awards as minimum award provisions?---Yes, like the Harvester case, embedded in the landscape.
PN2565
Yes, all right. Well, can I just take you now to the inquiry. You refer in your report to appendix J, document appendix J. Have you got the appendices there?---Yes, I have.
PN2566
Can I ask you to just go to appendix J?---Yes.
PN2567
Have you got that, Professor Dawson?---Yes, I have.
PN2568
Now, in your report you refer to the inquiry being included in appendix J, but appendix J is not the report, is it, of the inquiry?---No, that was our submission to that report.
PN2569
I see. So it was a submission put by your organisation, the Sleep Centre, to that inquiry?---That is correct, yes, yes.
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2570
You see down the bottom of that first page of your submission, you make the statement that:
PN2571
The lessons learnt from industry based collaborations suggest that responsible fatigue management requires fatigue to be managed as an occupational health and safety issue rather than as an industrial issue.
PN2572
?---That is correct.
PN2573
Yes:
PN2574
Moreover, fatigue management should be viewed as a shared responsibility.
PN2575
And you then talk about the duty of care of employers and employees. Do I take it from that that you are talking separately about fatigue management in the transport industry there rather than the broader comments you were making in your report to the Queensland Department?---I would have that opinion beyond transport. I have been on the record on a number of occasions saying that managing hours of work as an issue, and particularly in terms of promoting safety, it is critical that it is seen as a health and safety issue, not a negotiable IR one. And I think our experience has been - we have looked at a lot of awards over the last few years. There has been a tendency for employees without good information at their fingertips to trade away hours of work in exchange for short term financial gains which in the long term have become, at a community level at least, reasonably questionable. And I think that is the point I am trying to get here is if we fail to view fatigue and hours and work as an occupational health and safety issue, then we have a major problem, and I think there has been reasonable evidence to suggest that we have assigned primacy to the industrial aspects of it and under-emphasised the health and safety aspects. That is not to say that it doesn't have industrial implications. I am not suggesting that it should be handed over lock, stock and barrel to health and safety, because we would end up in the same problem we are now. It is acknowledging that it is both an industrial and a health and safety issue and you need to acknowledge both of those aspects in order to control it well within the workplace.
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2576
Right. Well, can I ask you to have a look at - I am afraid this appendix - pages are not numbered - six pages in, it is the second last page of the appendix?---Yes.
PN2577
Under the heading 4A Strategies to Increase Regulatory Responsibility?---What paragraph is this?
PN2578
It is the second last page, there is a heading, 4A Strategies to Increase Regulatory Responsibility. It is about six pages in to your appendix J?---I have got it. It is on the second last page, and how far up from the bottom?
PN2579
Sorry, it is the second last page, I am sorry. About three paragraphs down. The paragraph that commences "To increase industrial flexibility"; do you see that paragraph?---We must have different numbering systems here.
PN2580
I am sorry. Have you got the heading, Strategies to Increase Regulatory Responsibility?---Strategies to Increase - yes, I have.
PN2581
Right. The fourth paragraph, I think it is?---Yes, I see that one.
PN2582
"To increase industrial flexibility"?---Yes.
PN2583
You say:
PN2584
...we would recommend that prescriptive hours legislation should be eliminated and fatigue should be specifically defined and managed as an identifiable workplace hazard and controlled under existing state and federal OH and S legislation.
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2585
Are you talking about prescriptive hours regulation there in those particular industries where there is legislation that actually specifies hours?---Specifically, I was looking for example in aviation, the flight and duty times, CA048, in terms of road transport the NRTC guidelines and relevant state departments which say you can drive for so many hours without a break and those sort of things.
PN2586
And the reason for your view that there should not be separate regulation or regulation of the hours, but that it should come under one OH and S umbrella, is that that will provide for more effective management of the issue of hours of work; is that right?---That is my opinion, yes.
PN2587
Yes. And you mentioned the Civil Aviation Regulations; there are currently regulations that prescribe flight times and duty times for air crew. That is right, isn't it?---That is correct.
PN2588
Yes. And you are aware that arising out of this inquiry there is going to be a major overhaul of that system?---I am on the committee doing it, yes.
PN2589
And CASA, the Civil Aviation Safety Authority, is now moving to a more integrated system of fatigue management and there is a project team set up to look at that with representatives of Qantas and other main players, and you are on that project group?---That is correct, yes.
PN2590
And what is the purpose of the project group, as you understand it?---The purpose of the project group is to collect sufficient data so that employees and management can sit around and determine what is a reasonable fatigue management system based on scientific evidence rather than what I would called sort of industrial might or strength on one day versus another. It grew out of a Commission ruling on the Sydney-Perth-Johannesburg-Harari flight several years ago, and one of the things we identified there was that because of the primacy of industrial relations, it was assumed that provided people agreed to work the EBA requirements, then it would be safe by definition. And I think what both ourselves and others have shown is just because people agree to a contract of employment doesn't necessarily ensure that that results in safe work practices.
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2591
Yes. And that project group has arisen by way of implementation of one of the key recommendations of the parliamentary inquiry?---Absolutely, yes.
PN2592
Yes. And that recommendation was that CASA should implement a fatigue risk management system to regulate flight and duty times for air crew?---That is correct.
PN2593
And it is anticipated, isn't it, that at the conclusion of the process, there will be new regulations which reflect the integrated risk management system which will arise out of your project?---That is correct.
PN2594
And it is the case, isn't it, Professor Dawson, that at the moment the group of focussing on the technical air crew flight and duty times only?---That is correct.
PN2595
The flight attendants are not yet part of that study, but it is anticipated that once there has been some progress in relation to the tech crew, then flight attendants will be included in that study. And it is the case, isn't it, that the expected duration of the project group is approximately three years?---The project with respect to flight crew is three years. There is no current project with respect to Qantas and the FAAA. There have been discussions and there has been what I would call polite pressure from the regulator to say it would be a really nice idea if you had this, but there is no defined project at this stage. So there is no intention stated to flow this project on to deal with FAAA and flight attendants yet, but - - -
PN2596
But the CASA recommendation is intended to encompass all air crew, cabin crew and technical crew, is it not?---At this stage, no. Our specific brief is related to CAO48 which is the flight duty for pilots, effectively, both in long haul, international and general aviation. But there is nothing with respect to flight attendants, yes.
[3.10pm]
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2597
Yes. Are you aware of the response of the Federal Government to Senate Inquiry?---Yes, I am.
PN2598
Yes. And if I can just perhaps read a relevant passage in relation to the government's response to recommendation 5. It sets out the terms of reference of the project and you have referred to those, and it says that:
PN2599
The fatigue risk management project group is currently focussing upon fatigue management principles for members of the flight deck crew. As the project progresses cabin crew representatives will join the group to design a fatigue risk management system to regulate flight and duty times for all air crew.
PN2600
You recall that?---I know it's written there.
PN2601
Well, you would agree that there is at least an intention at the moment on the part of the Government and CASA that in due course the process will be rolled out to include flight attendants?---That's correct, yes.
PN2602
Yes, thank you. I have no further questions of Professor Dawson. Might I seek leave to be excused at this stage, your Honour?
PN2603
JUSTICE GIUDICE: Certainly.
PN2604
MS McKENZIE: Qantas will be in and out of it. We do not - are not going to participate where there is witnesses that I do not wish to cross-examine. So I won't be probably back for the remainder of this week, but perhaps next week if with the leave of the Commission I can do that.
PN2605
JUSTICE GIUDICE: Yes. Yes, thank you.
**** WILLIAM ANDREW DAWSON XXN MS McKENZIE
PN2606
PN2607
MR COLE: Professor Dawson, I have a few questions on behalf of the Commonwealth related to your statements. You obviously have a copy of extended working hours, Counting The Costs, do you have a copy with you there of your second paper, Fatigue and the Law?---Yes, I do.
PN2608
Could I direct your attention first in Counting The Costs to page 27 in section 3.1 under the heading, Initiatives Debate?---Yes.
PN2609
In the second paragraph you say:
PN2610
There are numerous examples of negative cost transfers associated with industrial reform. Over the last 10 to 15 years industrial relations reform has permitted employees and employers to negotiate hours of work agreements that are inconsistent with the occupational health and safety requirement for a safe system of work.
PN2611
And I leave the quotation there. And then in Fatigue and the Law, which is at tab 7 of the ACTU exhibit, you make a similar point at page 8 under the heading, Industrial Relations; do you have that page? Page 8 of Fatigue and the Law?---Hang on, I will just look up where it is, 48.
PN2612
It is part of the Executive Summary?---Oh, well, I'm looking at the appendix, and so that is probably not a good place to look. Executive Summary and on what page is that on, 5 - - -
PN2613
Page 8, the executive summary starts - - -?---Yes. Yes.
**** WILLIAM ANDREW DAWSON XXN MR COLE
PN2614
- - - in my document at page 6, and then at page 8 in the right-hand column there is a heading, Industrial Relations?---No, we've got different numbered copies. So this is - - -
PN2615
MR ..........: I think you are at cross purposes?---Could I have a copy of your copy? Is that possible?
PN2616
JUSTICE GIUDICE: Well, it is an exhibit. Can you - - -
PN2617
MS BISSETT: Your Honour, we have a spare copy of that.
PN2618
JUSTICE GIUDICE: Yes. Well, I think it is desirable the witness has got the - in all cases has a copy of the documents that have been provided to the Commission.
PN2619
VICE PRESIDENT McINTYRE: Maybe the contents page has got the wrong page numbers on it.
PN2620
MR COLE: I had observed that, but I was intending to be charitable?---Which page?
PN2621
It is page - in the document I understand you now have, it would be page - the page numbered 8 in the bottom right-hand?---Yes, I've got that.
PN2622
You have that. And under the heading Industrial Relations, you see that heading?---Yes.
PN2623
And you say there:
**** WILLIAM ANDREW DAWSON XXN MR COLE
PN2624
Fatigue management issues may form a proper subject matter for negotiation in award or workplace agreements. Technically, this could lead to a lowering of standards as employees bargain away their rights.
PN2625
And I pause there. Now, that is essentially the same point that you were - that I directed your attention to in the - in Counting The Costs?---Yes.
PN2626
But in point of fact, both of these statements are not the full story, are they, Professor Dawson, as you yourself go on to make clear?---Yes, that's correct.
PN2627
And could you just explain that to the Commission?---Which - - -
PN2628
You go on to clarify this issue about people ostensibly bargaining away their rights or ostensibly agreeing to things that are inconsistent with occupational health and safety legislation?---What we've seen in some situations is, for example, some work that we did several years ago with an oil company in Australia. They wanted to roll in their rates - - -
PN2629
No?---Oh, sorry.
PN2630
If I might interrupt you, my question was that you go on to correct the impression that those two statements may give. And in point of fact you do that, don't you, at page 21 of Fatigue and the Law?---Which one? Which paragraph are we talking to here?
PN2631
So this is the headed Industrial Relations and could you just have a look at the second paragraph, is that not your attempt to correct whatever possibly misleading impression might have been created by quotations such as the previous two that I have taken you to? Perhaps you could read that out to the Commission?---It says:
**** WILLIAM ANDREW DAWSON XXN MR COLE
PN2632
The first point that must be made -
PN2633
is that the one you are - - -
PN2634
Yes?---It says:
PN2635
The first point that must be made is that it is not possible to contract our of obligations imposed by statute. Therefore, the duties imposed by occupational health and safety legislation - ie to create and maintain a safe environment - would still be in existence even if a workplace agreement or award waived or provided for unsafe conditions.
PN2636
Thank you. So you would agree that that, essentially, corrects the possibly misleading interpretations that might have been taken of quotations such as the initial two that what might ostensibly appear to be the case is, in fact, not legally the case?---That was not what I intended. What I was specifically addressing was the issue that we have many award agreements in Australia where people have agreed to work certain types of - numbers of hours of work, certain types of rosters or schedules that have been ratified through the industrial process, but are clearly inconsistent with occupational health and safety law. That is, there has been a - - -
PN2637
And to that extent they - the effect of the Workplace Relations Act is that they do not operate. That is correct, isn't it?---No. I would say on the contrary, exactly the opposite. That is, the failure to enforce the Occupational Health and Safety Act has resulted in the unsafe circumstances that we see. That is, the Act is there, but it is not policed or reinforced because in general hours of work and shift work and rosters are viewed as, that's the IR HR people, it's nothing to do with health and safety.
**** WILLIAM ANDREW DAWSON XXN MR COLE
PN2638
But - - -?---What I am trying to point out is that there is a legal framework for managing this, but in practice it hasn't been done to date. And that is why in the parliamentary inquiry I suggested that there be a specific direction from the government to assign occupational health and safety responsibility in part for this issue.
[3.20pm]
PN2639
So you have given a response addressing practice, but what I put to you was that a legal point, that in point of fact whatever may be ostensibly agreed in Federal certified agreements or Federal Australian Workplace Agreements, that is inconsistent with State occupational health and safety legislation to the extent of that inconsistency the agreements do not operate as a matter of law. Do you agree with that?---Well, I can't comment because I am not a lawyer.
PN2640
Well, what did you mean by including footnote 30, at that point, do you see you have footnote 30?---I will just go to that. Yes.
PN2641
So does that jog your memory that essentially what I said is correct, that by dint of application of those sections that agreements that might ostensibly appear to have the character of relieving an employer for example of the duty of care or some important dimension of a duty of care, if that was in conflict with the State legislation it could not operate. In other words the employer would retain the duty of care notwithstanding the provision of the certified agreement or the Australian Workplace Agreement?---I think my opinion on this, and I cannot talk as a lawyer because I am not a lawyer, my opinion on this - - -
PN2642
But you have quoted the sections of - - -?---Well, there are several authors to this paper, one of whom is much more legally talented than I am. The general principle that we were trying to address in this particular essay or paper was to say that many awards have ratified hours of work practices that are demonstrably unsafe. On the other hand by putting in to place prescriptive industrial relations regulations to manage this, I put forward the position is that there is currently existing legislation that would enable us to do that. But I would also point out is
**** WILLIAM ANDREW DAWSON XXN MR COLE
that it is not enforced on any regular or systematic basis and that is because we fail to acknowledge the hours of work typically have on occupational health and safety consequence to them. And that is because we ..... primacy in this negotiation to the industrial relations process. And I think what we have seen in the last few years is that the number of third party representations in these discussions have produced a number of problems. If an enterprise agreement is ratified between employees and their employer, what we have characterised emerges is, is a conspiracy agreed, that is we agree to - - -
PN2643
Well, Professor Dawson, perhaps I can stop you there. I was interested in the legal point, but you have made it clear that you do not consider yourself expert in commenting on that. Now, at page 12 of counting the costs, there is a section there, 1.3, reasons for working long hours and you see the second paragraph it says, there is firstly a reference to working long hours, the most obvious reason for working long hours is monetary gain. And then you say in recent years declining and real pay rates mean that many workers now manage their daily family budget through dependence on overtime and shift premiums. Now, there is a reference there to Myshioma and Johnson, and if one looks at the references that has something to do with the Japanese production system. So is that a reference to a decline in real pay rates in Japan?---No, it is a relation to the tendency to supplement with additional work decline in pay rates.
PN2644
But you are not saying are you that in recent years there has been a decline in real earnings, for example, in Australia?---I would argue that.
PN2645
You would. So you would argue that notwithstanding I could put to you, that in the period from June 1990 to June 2001, the real growth in average weekly earnings was 18.5 per cent?---I don't dispute that, but that is an aggregate figure. What I was suggesting is that there are certain examples where real wages in organisations have resulted in decline of real pays at certain organisations as a result of the EBA process.
PN2646
So how is the Commission to understand, as they read this document, which statements are applicable to the Australian context, and are based on data, empirical data from Australia; and which statements may relate to other countries?---I think if you look in - are you talking about whole paragraph or the - - -
**** WILLIAM ANDREW DAWSON XXN MR COLE
PN2647
In general, in general terms, taking that as an example?---Okay.
PN2648
How can this Commission understand it, must the Commission go to each of the references and satisfy themselves that a statement that is not specifically attributed to Australia may have some application, is that what you intend?---I think it is trying to explain the very general principle that in many cases we have seen awards go up with the number of hours worked and that people have used overtime not as a management of peak operating circumstances within an organisation, but as a consistent way of maintaining higher income. That is I will work 48 hours by working a guaranteed extra shift every week in order to maintain lifestyle.
PN2649
Professor Dawson, that had almost nothing to do with what I asked you. The question was how is the Commission to ascertain whether particular statements that are attributed to particular references, draw on Australian empirical data or not. Is the proposition that the Commission to satisfy themselves on that point will need to look at each of the references to work out whether the statement does or does not apply to Australia and is or is not based on Australian empirical data?---Well, personally I think you are being extremely captious here, because I haven't defined that it was Australian. I have said, in fact one of them, it goes there are three main reasons individuals choose. I haven't said it is Australian and then illegitimately quoted research from somewhere else, I am taking a general, what I call OECD phenomena and referencing it to those organisations and research done through that group of organisations or countries.
PN2650
Well, I understand your answer, but the Commission I think is on notice as to an issue ..... I was interested in your discussion with the previous representative from Qantas on the fatigue risk criterion among the 15 criteria that the ACTU itemises in the reasonable hours or unreasonable hours clause. And as I understood what you were saying, Professor Dawson, you seem to be suggesting that there could well be differences between, for example how you as an expert academic in the area would understand the concept of fatigue risk and how other people might understand - how a lay person might understand the same words. Was that a sort of correct understanding that I was taking from your evidence?---No, unfortunately not.
**** WILLIAM ANDREW DAWSON XXN MR COLE
PN2651
So you think everybody would have the same understanding of the concept of fatigue risk?---No, fatigue risk is a very important point to understand. And the way to best think about it, and as I said before is that the risk of a fatigue related accident or injury must take into account the nature of the task that you are taking. Say for example all of us sitting here today are unlikely - well, I was going to say this big window and there could be a plane coming, but we are unlikely to be in - - -
PN2652
JUSTICE GIUDICE: Professor, I hesitate to interrupt you, but I think Mr Cole's question was about the extent to which your understanding of the term fatigue risk might equate with the understanding of an untrained academic of what that term means. Is that right, Mr Cole, was that the question?
PN2653
MR COLE: Yes, it was, your Honour.
PN2654
JUSTICE GIUDICE: Did you understand that to be the question, Professor?---No, I thought you were asking what people understood by fatigue risk.
PN2655
Perhaps you should ask the question again.
PN2656
MR COLE: Perhaps I should rephrase the - thank you, your Honour, for pointing to the confusion.
[3.30pm]
PN2657
Perhaps I could put the question more directly, Professor Dawson. You have explained what fatigue means from an expert academic point of view?---Yes.
**** WILLIAM ANDREW DAWSON XXN MR COLE
PN2658
You gave an understanding - you conveyed an understanding of that, explained that to the Qantas representative. My question to you is do you think that that understanding and appreciation of the term fatigue risk would be typically shared and understood by ordinary lay people? Or do you think they might have a different understanding as to what fatigue risk might constitute?---They could possibly. I cannot comment on what their perception of that would be. And, as I am aware, nobody has looked at that as a research topic to this date, so no, I do not know necessarily. I would be surprised if they interpreted it differently, but I cannot say one way or the other.
PN2659
At page 10 of Counting the Costs, and this is in the section headed: Background information, the change of nature of work, this document says:
PN2660
Throughout the last century -
PN2661
Throughout the last century, I emphasise -
PN2662
the standard working week consisted of work between 9 am and 5 pm Monday to Friday.
PN2663
And then there is a reference as an authority for that proposition. Well, that seems to be talking, Professor Dawson, about an eight-hour day or a 40-hour week; would you agree?---Yes.
PN2664
And it seems to be saying that that applied throughout the last century?---That is correct.
PN2665
But that is not correct, is it?---I do not know what you are trying to say.
PN2666
Well, is it correct or not, or don't you know?---That the standard - when people talk about a standard working week, it was Monday to Friday 9 to 5, yes, as far as I am aware, and certainly - - -
**** WILLIAM ANDREW DAWSON XXN MR COLE
PN2667
Are you the author of that part of this report?---Yes, I am.
PN2668
And are you aware that the 40-hour week in the Federal sphere was brought about by the 1947 Standard Hours Case?---I am not an IR person, no, of course I am not.
PN2669
But you have actually drawn this proposition apparently from that particular reference that you have cited there; is that where it comes from or not?---Certainly, but - - -
PN2670
So it is not right, is it?---I am sorry, you are going to have to explain to me what you mean.
PN2671
It is not correct to say throughout the last century the working week consisted, if you like, of an eight-hour day, or the working week was a 40-hour week?---I am not suggesting that everybody worked it, I am just saying when people talk about a standard working week, the general implication of that is Monday to Friday 9 to 5, about 40 hours a week.
PN2672
Throughout the last century are your opening words?---That is correct.
PN2673
So if the standard working week of 40 hours came into effect from 1947, it was not throughout the last century, was it?
PN2674
MR MARLES: Your Honour, can I object. I think Mr Cole has asked this question a few times, and Professor Dawson has answered it inasmuch as he asserts it is correct as far as he is aware.
PN2675
JUSTICE GIUDICE: Yes. Well, I think he has indicated he is not aware of the matters you are putting to him, Mr Cole.
**** WILLIAM ANDREW DAWSON XXN MR COLE
PN2676
MR COLE: Well, perhaps if I could move to something else then, your Honour.
PN2677
[3.35pm]
PN2678
Where you have drawn a reference such as that evidently from a particular source, it would appear from this exchange Professor Dawson that you have taken the source at face value, you haven't necessarily set about or had anybody independently check the material you have drawn from the source?---I have certainly read the source and the way that I'm using it was not using standard in any industrial relations legal sense. And if I have made that mistake I am terribly sorry. It wasn't meant to be a formal definition, it is what the general lay community perception of the standard working week is.
PN2679
Thank you. I think you have clarified it. If I could take you back to page 27 of counting the costs, and the paragraph in the middle of that page starting, "In many cases the indirect costs associated with changes and hours of work," do you see that paragraph?---Yes.
PN2680
And that reference to indirect costs, this goes direct to your central thesis in effect does it not, that decisions that businesses may make on working hours may involve indirect costs for the community?---And the employees. But I would also point out that employees could equally make those decisions.
PN2681
And you give two examples in that paragraph and these examples relate to the working 12 hour shifts in mining communities. And the second example there, and I just quote this, it starts with the word, "Simply many," in about the sixth last line of that paragraph, it said:
PN2682
Simply many of the female partners indicated that the transition to 12 hour shifts had provided four day periods of leave on a regular basis, with subsequent increase in the time spent away from family engaged in male only leisure pursuits, eg fishing and shooting and farming. Thus the flow-on effects of extended hours may be relatively localised, that is related to factors costed within the workplace, eg health and safety or maybe more diffuse and impact more slowly.
**** WILLIAM ANDREW DAWSON XXN MR COLE
PN2683
Now, are you seriously putting to this Commission that under some future award based regime for regulating unreasonable or excessive hours that the Commission should concern itself with inquiring into what may be the leisure pursuits of people on their days off?---Of course not.
PN2684
Well, what did you consider particularly useful about this particular example?---I was trying to illustrate the point that when we look at the costs associated with hours of work policy, that the effects aren't immediate and short term. It is not just necessary how much money you take home or what your profitability as an organisation is next year. It might flow on and that what initially looks as a good short term gain may turn in the long run, may turn out in the long run to be a longer term consequence. And it may cost you a lot more. So that just because it is profitable in the short term doesn't mean it is profitable in the long term. And they were two examples that were put forward to show how people had initially regarded changes in hours of work policy as positive, but on reflection subsequently realised that it wasn't all beer and skittles, that there were some down sides associated with it as well.
PN2685
But you are adamant that that would be an example of an indirect cost, that should be of no concern to the Commission or any other Tribunal adjudicating in a future situation?---No, no, that is not what I said. You are putting words in my mouth.
PN2686
Well, I thought you did agree that it was not a matter that the Tribunal should not concern themselves with how employees devote their time in their days off?---There is a very important distinction between how they spend their time off and whether they have time to spend off, and that is the fundamental distinction I would like to make about what you are saying. What I am suggesting as part of my argument is we need to take into account the fact that as a community we need to provide people with adequate access to the opportunity for sleep and the opportunity for family and social life. How they spend that I would argue is always that individual's choice, and I wouldn't expect the Commission to engage in it.
**** WILLIAM ANDREW DAWSON XXN MR COLE
PN2687
Now, at page 36 of counting the costs, and this is more or less the last issue I wish to raise with you and it follows on from what we have been talking about. You deal with a - the conceptual triangle and you say in the last sentence of the first paragraph:
PN2688
Thus it would appear reasonable to limit working hours to a specified maximum threshold as has occurred in Europe and has been proposed by the ACTU.
[3.40pm]
PN2689
So firstly, Professor Dawson, is that your understanding of the present ACTU claim, is it, that it seeks to limit working hours to a specified maximum threshold?---No, I don't agree with that. I would say the central thesis of this is that what we need to do is to look at both the workplace and the extra workplace costs when we evaluation what is a reasonable amount of hours and what is a reasonable income. The reason that I talked about that particular point was to say that I thought that there should be a threshold at which the onus of responsibility shifted to the employer to demonstrate why the overall costs of that number of hours per week is in the long term community interests.
PN2690
So how do you see that threshold itself being established?---My personal opinion?
PN2691
Do you see that that is a role for the Industrial Relations Commission?---I think it is stipulating that the process should be engaged in would be reasonable for the Commission, but to tell people how to do it and what to do, I think would be entirely inappropriate.
PN2692
So essentially, it is a matter that the parties at the industry level should agree on?---No, that's not the same thing.
**** WILLIAM ANDREW DAWSON XXN MR COLE
PN2693
Well - - -?---What I am saying is is that I think it is reasonable for the Commission to insist on a process of approaching this. That is, for example, to say, look, there is a certain threshold in this industry, if you're going to work more hours than this you need to demonstrate no net disadvantage. You need to show us that this is in the community interests and you're not taking a short term gain at the long term expense of the community. My - - -
PN2694
So as I understand the proposition, Professor Dawson, there are two stages. Firstly, somehow or other the threshold itself has to be established, and then if in relation to a particular award, industry, enterprise or workplace, whatever it is, that the parties wish to exceed that threshold, then they have to make out a case to exceed the threshold. So there are two stages?---Yes.
PN2695
So how is that? Is the first stage you contemplate, would that be expressed as a numerical limit that would be appropriate to the particular industry or award or enterprise? What essentially, is the concept that you have in mind of a specified maximum threshold? Is it a numerical concept?---It's not a specified maximum threshold. They are saying there is a point at which the onus shifts away from the employee to the employer to demonstrate that these hours of work are consistent with the factors outlined in the dimensions for the ACTU. That is, we need to say, is this a sustainable work practice? Or is it just going to give us a short term productivity gain, but the community and the taxpayer will pick up the long term costs of it.
PN2696
But as I understand it, you are notwithstanding the reference here to as has been proposed by the ACTU, this is some allusion on your part, is it, to some other proposal by the ACTU. It is not how you have characterised or it is not something that you see integral to the actual terms of the present claim?---I think you misunderstand the origins of this report. This report was commissioned by the Queensland Department of Industrial Relations to say, look at the issue and put forward some ideas on how you think we might manage that sort of issue. Subsequently the ACTU came along and said, can we use this to form part of the submission? So this is my conceptual framework, or the authors of the paper's conceptual framework and not surprisingly it is different to the ACTUs position on that. But this was a conception framework put forward to the Queensland Department of Industrial Relations as what we thought would be a good way to move forward with it.
**** WILLIAM ANDREW DAWSON XXN MR COLE
PN2697
Thank you, Professor Dawson, I think you have clarified that that is not then necessarily an interpretation of the existing ACTU claim?---No, not at all.
PN2698
If the Commission pleases, we have no further questions of this witness.
PN2699
PN2700
MR MOIR: Thank you, your Honour.
PN2701
Professor Dawson, could I please take you to - this is in exhibit ACTU2, tab 3, Counting the Cost Report, to appendix E, pages 2 and 3. I am focussing particularly upon - - -?---Hang on, just getting there.
PN2702
- - - the bottom of the second page which has a heading, Work Related Fatigue?---I may be missing the appendix E page, so just hang on one second. Is this the Fatigue Modelling? Yes, yes, I have got it.
PN2703
Yes, that is right, second page, last paragraph reads:
PN2704
In addition to time of day and number of hours worked, there are many additional work and non-work factors that contribute to fatigue. In general, non-work related fatigue factors are highly variable from individual to individual and also from day to day.
PN2705
Examples are then given and the conclusion is made on the next page:
PN2706
These factors are extremely difficult and sometimes impossible to measure and manage.
**** WILLIAM ANDREW DAWSON XXN MR MOIR
PN2707
I take it from that therefore that it can't be said that there is any automatic threshold of hours which might be worked over which a person becomes fatigued, that is impaired from performing their job safely?---I think there certainly are thresholds. I don't think you could ever say if somebody is working like a junior doctor, 100 hours a week, that that could ever be safe. On the other hand, there is a gray zone where, say around 48 to 50, where depending on how it worked, what other things could be taken into account, you may like to think that through a little bit more carefully.
PN2708
Right, okay. Now, you accept that current occupational health and safety legislation which imposes a duty of care upon employers to safeguard against risks perhaps imposed by work schedules, that is based upon a risk management approach which takes into account factors such as the characteristics of individual workers, the type of work performed, the work environment; you would accept all of that?---I probably wouldn't say it takes into - the characteristics of the individual employee, but for the others, yes, I think that is fair.
PN2709
And when you are analysing all of these factors which, as you say in the report, this appendix, that they are extremely difficult and sometimes to measure and manage. You have obviously got considerable expertise in this area; it would, in your view, require that kind of expertise to analyse all of these factors and work out at what points things are safe as opposed to unsafe?---No, it is very simple.
PN2710
You think it is very simple, do you?---It is very simple, and the way that is commonly done, however, is not by reference to hours of work.
PN2711
Right?---Hours of work would be one of the factors that come in. But if you want to know about fatigue specifically, then where I have talked about a shared responsibility, we say the employer has a shared responsibility to provide a system of work that allows people enough time to sleep and enough time to discharge their family and community activities. On the other hand, employees have a shared responsibility under the Act to use adequate amount of time given off. So the key factor that links all this together is, from a fatigue perspective, how much sleep you are getting. So from an employer/employee perspective, it
**** WILLIAM ANDREW DAWSON XXN MR MOIR
is reasonably simple to set a threshold of how much sleep they are getting, and again separating my position here in this paper from the ACTUs position which would be to say that asking people how much sleep they are getting in a workplace would be one of the ways - I am not saying you force them to tell you, but you can have the discussions and say, okay, are people finding that they are getting enough sleep on that short changeover in a fly in/fly out situation. If people are going, no, then that is maybe a question you need to go and look at in some detail. So I think in terms of the practicalities of managing this, it is relatively simple and straightforward and a large number of indices across Australia are doing this on a regular basis. But as to intruding and measuring each individual, that would be absurd. We don't do it for hazardous chemicals. We set guidelines. We set guidelines for manual handling limits and we assume that there are average aspects of individuals. Fatigue is no different. We can look at population averages in the same way as hazardous chemicals or manual handling.
[3.50pm]
PN2712
Yes, so we can perhaps form - we can perhaps form some generalised views but when it comes to applying such an assessment on an individual basis, and all the complex - or the interplay of complex factors which were set out here, it becomes an extremely difficult and, as you say here sometimes, impossible task to determine?---Sometimes yes, but having a workplace policy that says nothing simpler than if you have had less than five hours sleep in a night then in the 24 hours prior to starting work notify your supervisor, is not particularly complicated.
PN2713
You have made mention of some project work which is under way in the aviation sector and of course there is one of the appendices to your report deals with an inquiry into the transport sector, would you agree that fatigue and its impact upon health and safety in the workplace, it has been identified as more of an issue in some industries as opposed to others? Good examples being, say, the transport and aviation sectors?---By that, are you suggesting that fatigue is more of a problem or that the consequences of fatigue related errors are more public?
**** WILLIAM ANDREW DAWSON XXN MR MOIR
PN2714
Well, perhaps I will just stick to my question. Do you or do you not agree that it has been identified - fatigue management has been identified as more of a critical issue in some sector of the economy than others?---Certainly where the consequences are more expensive it tends to be more spectacular, yes. But that is not to say that there are not consequences in other industries. They may be fragmented and lots of small things rather than Chernobyl or Three-Mile Island or something like that.
PN2715
Right. If I could take you now to appendix J which is your submission to the Parliamentary Inquiry into Managing Fatigue in Transport, the representative of Qantas took you to this report, and I only wish to explore therefore a couple of brief points. On page 6, which is the second-last page, which I think you have looked at before, you were not taken to the third paragraph in any great detail, but it begins with the statement:
PN2716
From a practical perspective it is preferable that any legislative changes associated with fatigue management do not necessitate the creation of new legislation or bureaucratic structures.
PN2717
Can I just ask you - - -?---I am just - I still have not found it yet.
PN2718
It is the second - it is with the heading: Strategies to increase regulatory responsibility. Second-last page of the appendix?---Yes, okay. Well, just let me read it.
PN2719
Just read the first sentence of paragraph 3, "From a practical perspective"?---
PN2720
From a practical perspective it is preferable that any legislative changes associated with fatigue management do not necessitate the creation of new legislation or bureaucratic structures. This could be unnecessarily complicated and expensive and divert resources away from the effective development of - - -
**** WILLIAM ANDREW DAWSON XXN MR MOIR
PN2721
Yes, I will just stop you there, Professor Dawson. In relation to the first sentence, could you just please outline to the Commission why, from a practical perspective, it is so preferable not to create new legislation or bureaucratic structures?---The reason that I have put that forward is that there has been an attempt in the last couple of years to rewrite for example trucking hours of work, and the difficulty that has emerged around that, both here and right around the world, is that the legislation in and of itself does not guarantee that you solve the problem, because you can say to truckdrivers you are only allowed to drive for eight hours and then you can inspect their log book and they will say to you "Which log book?" So what I am trying to suggest is that creating rules or creating bureaucratic departments of inspectors to go out and do that will not necessarily actually change anything, and that we have currently existing legislation which could be used and enforced to achieve that goal, as is the ACTUs position.
[3.55pm]
PN2722
And so what as a community we should stick to that existing - those existing rules, those existing statutory frameworks and ensuing bodies of case law?---No, no, that is not what I am saying. No, what I am suggesting is that creating new ones won't solve the problem. But if you read other parts of the report you will see it also points out that the currently existing frameworks while exist are not enforced and are not used as part of the dialogue about this overall issue.
PN2723
And then in the following paragraph that you were taken to by the representative from Qantas, you make or state a fairly clear view there that legislation governing - prescriptive legislation governing hours should be eliminated and fatigue should be defined and managed as a workplace hazard, an identifiable hazard and controlled under existing OH&S legislation. Are you aware of new legislation or regulations which have been enacted which do exactly that, specifically define or identify fatigue as a possible workplace hazard which should, therefore, be controlled by employers, are you aware of that?---There is legislation in Western Australia, the Department of Transport for road transport, and I think there are guidelines by the National Road Transport Safety Commission at the moment at least. And there are some other initiatives, the CASA one that we talked about. There is also some limited steps in that direction by the rail industry in Australia.
**** WILLIAM ANDREW DAWSON XXN MR MOIR
PN2724
And are you aware, for example, of new regulations which have been passed in the State of New South Wales, which cover all workplaces there, which identify that - which require employers to take reasonable care to identify hazards arising specifically from work systems and shift working arrangements, are you aware of that?---Yes.
PN2725
Yes. And you would see that as a positive development?---It's a potentially positive development, yes.
PN2726
And earlier on in response to a question from Qantas representative, you stated that it is difficult to make one size fits all rules. I assume you meant by that rules governing hours of work and its interaction with fatigue?---That's correct.
PN2727
Why did you say that?---Well, I think as the ACTU point out in their submissions that it is the same principle, that if you come up with very simple rules then generally they don't fit well and they don't provide the flexibility in, you know, the diversity of workplaces we have in Australia. So for example where the European directive has been put in place of 35 or 40 hour or those sorts of things, one of the things we find is as a geographic experience, Europe is relatively geographically homogenous and people don't have to drive thousands of miles, they don't fly to mining sites, they drive to and from their house to a mining site. In Australia, however, we have some very unique situations which I think make it difficult to just take one size fits all rules and move them across. So I think what I am trying to put forward here is the position is that I think it is important that legislation be put in place or, you know, changes be made to legislation that say you need to consider the fatigue costs, or the social costs associated with hours of work policy, to actually - it's been my experience that where that has been done and people sit down and do that in a meaningful way, then we get very good outcomes. But to say that a co-regulatory approach, that is where we both sit down and talk about it is fine, is not to imply that the failure to have anything in place is necessarily good. And I think that is one of the key issues that we have seen over the last four or five years with respect to awards, is that because there is no requirement or no principle embedded in that award structures of those reasonable hours, and because hours of work are typically negotiated in the industrial setting, that we see people making decisions that aren't in the long term
**** WILLIAM ANDREW DAWSON XXN MR MOIR
best interests to themselves or the community, and the community and the tax payers and the families pick up those costs. Sometimes they get the benefits as well, but not always.
[4.00pm]
PN2728
Right. And you see that as a concomitant, if you like, of having a co-regulatory approach, that where fatigue management is treated not just as an OH and S issue, but also as an industrial issue, it does lean towards this tendency of the risk of fatigue being traded off for - over other industrial matters such as pay rates and other benefits?---There is very clear evidence to support that. But it's not just about fatigue. It's about the social consequences of it as well.
PN2729
Yes?---And if you embrace both of those notions of cost and take a broad view of cost, then I think embedding a principle of reasonable hours is very, very important, because it forces people to actually think about the long term sustainability of the work practices. And so we don't just - I mean, for example, we don't just say to people, right, work a 60-hour week and then we find that our staff turnover rate goes up to 70 per cent.
PN2730
But if this concept of reasonable or unreasonable hours becomes embedded into the industrial landscape, as you put it, the award system, where risk of fatigue is identified as one of a number of factors to be taken into consideration, won't it just give rise to the same mischief which you are saying is going on presently? In fact, won't it even perhaps propel it even further?---I am not sure why embedding reason - of the concept of reasonable hours will force it to get worse.
PN2731
Well, can I just take you to front section of your report?---Yes.
PN2732
To page 32 of the Executive - I am sorry, the chapter 1, Background Information?---That is page number - - -
PN2733
It is page number 48, sorry, page 32?---Okay.
**** WILLIAM ANDREW DAWSON XXN MR MOIR
PN2734
And at the bottom right-hand corner, or the bottom of the page, I should say, you set out the ACTU-proposed clause, at least the first part of it?---Yes.
PN2735
You will see there that the clause states:
PN2736
Employers must not require employees to work unreasonable hours.
PN2737
And then unreasonable hours are defined by reference to. And there is a series of dot points there?---Yes.
PN2738
I think there are 15, yes, that is right?---Yes.
PN2739
You understand that the way this clause would operate, if it were ratified, is that the parties, employers and employees and possibly this Commission in adjudging where the hours of work are reasonable or unreasonable, they would have regard to this list of factors. However, quite crucially those list of factors set out there are not exhaustive. There could be other factors which are taken into account; you agree with that?---Yes.
PN2740
Yes. And you will see that out of the list of 15 factors two of them deal specifically with OH and S issues, the sixth dot point deals with risk of fatigue?---Yes.
PN2741
And the third-last dot point, Exposure to OH and S Hazards. So OH and S issues are nominated as two out of 15 factors and possibly two out of an even greater number of factors to be taken into account, isn't there a real risk that when it comes to determining whether a person's hours of work are reasonable or otherwise, isn't there a real risk that the OH and S issues, the two dot points identified here, they simply become submerged amongst all of the other what you might call industrial issues? For example, the references to remuneration received for excess hours worked, it is the second-last dot point on the page 32?---First page, yes.
**** WILLIAM ANDREW DAWSON XXN MR MOIR
PN2742
And there is also a reference to performance-based pay schemes in the fourth-last dot point. Surely, Professor, given that you have stated, completely unprompted, I might say, you have stated that within the industrial sphere you believe there is a propensity for safety issues to be traded off by industrial parties isn't any real risk that the same behaviour would continue under this sort of approach?---I would have thought not, and I think the reason is that it would force people to address those issues, and they have stated there that these are the dimensions that you would need to look at if you want to work out what is reasonable or not. But you don't have a simplistic view that says in a coercive situation: do you guys reckon this is reasonable to work 80 hours a week, and they are all threatened for their jobs, they go yes, yes, we reckon it is reasonable, to keep our job. So the point that I am trying to make that I think is very important here is - and I am already on the record as saying that I think the ACTUs claim here is very modest. I think it could go a lot further, but that is for the Commission obviously.
[4.05pm]
PN2743
Yes?---But I think what this does very importantly will force a dialogue, and it will require people to think about things other than the short-term monetary gain associated with that set of rosters or hours of work principle.
PN2744
But if I am an employee who is receiving generous remuneration in exchange for very long hours, whatever that might be, surely there is a evident risk that the parties will simply rationalise the working time arrangements by reference to a clause like this, saying that: sure, there may be safety risks posed, but taking into account your remuneration, the hours are not unreasonable. Surely there will be a propensity for that sort of rationalisation to occur, given what you said earlier on?---If by that you are saying that people will assign primacy to income, they have. But one of the things that this would force in the negotiation process is a process of actually talking about some of those other issues. Now I am not suggesting at the end of the day that people are all going to turn over and say no, my family and community is everything and the money doesn't matter. Of course not. But what is absolutely essential about this is that it forces a dialogue so we do not end up focussed purely on the short-term financial consequences, and that, I think, from both our research and many other people's has been quite clear, that is the failure to look at the longer term health, welfare and social costs of
**** WILLIAM ANDREW DAWSON XXN MR MOIR
extended hours of work is where many of the community transfer costs are actually associated with these practices. I think it is not too difficult to say, okay, guys, you need to define reasonable more broadly than just money or just because people agreed to do it.
PN2745
And, Professor Dawson, doesn't this sort of approach fly directly in the face of the submission which you made toward the Parliamentary Inquiry into the transport sector, namely that co-regulatory approaches should be in effect eliminated, and that hours of work and its interface with fatigue should be dealt with exclusively as an OH and S issue?---I think you misread my submission to the inquiry. What I said was that deregulatory models do not work, and that co-regulatory models would be a better way to go. So that to deregulate and say to an organisation: you work it out yourselves without actually saying, here are the criteria of what constitutes a good solution, that is the fundamental issue. And I think what the ACTU are putting forward in a prescriptive model which I take that is different from my approach, but what they have put forward and say is a set of criteria that will determine what is reasonable. It is a very reasonable set of criteria for determining reasonable.
PN2746
Well, I put it to you, Professor Dawson, that you are now in effect changing the evidence which you have given to this Commission. Earlier on you were quite explicit in response to questions, not only from me but from the representative of Qantas about what your attitude was in relation to treatment via OH and S legislation or industrial legislation. It is only now when I have taken you to the terms of the ACTU clause that you are now saying that you did not mean co-regulatory approaches, you are now saying that co-regulatory approaches are in some way allowable in your view, or permissible?---That is absolutely right. But what you are trying to say - if I get this right and I may be wrong - is that that Parliamentary Inquiry was written with respect purely to the occupational health and safety and fatigue consequences, that is how do we manage fatigue in the transport sector. The ACTUs reasonable hours case has fatigue as one of many dimensions. So to say because I took a different point of view in a very narrow debate about fatigue and how it should be managed in another submission, in my opinion is not the same as saying, therefore I have contradicted myself with respect of the ACTU, because their reasonable includes a very strong social capital element as well as occupational health and safety and remuneration. So they are dealing with a much bigger issue than the narrow aspect of occupational health and safety in that Parliamentary Inquiry.
[4.10pm]
**** WILLIAM ANDREW DAWSON XXN MR MOIR
PN2747
All right. Can I just ask you one final line of question. If employees were given afforded a right to refuse to work overtime for any reason, then it is fair to assume isn't it that extra workloads might then be imposed upon the remaining volunteers?---No, I don't think, and I think the research in Europe countervails that exactly, which is to say that you end up employing more people so the work load is down regulated again.
PN2748
Well, you say that research, I note you haven't included any such research in your paper that - - -?---Well, that is because the first presentations of the French experience were only made in the last couple of weeks. So - and this was done many months ago so there are - - -
PN2749
Well, that debate is for another day I think. But you do not think it is fair to assume that if some members of the workforce in a particular firm do not want to work the overtime, and are not required to do so, you do not think it is fair to assume that the remaining volunteers will pick up the slack, you do not think that will occur in at least some instances?---Well, if you gave one individual the right to refuse it then I presume all individuals - - -
PN2750
Yes, I am talking about the remaining volunteers, the ones who do want to work it, you would assume, therefore, that there is more overtime work available for them to perform, that is right, you are nodding your head?---Well, you are right, but it is based on the fallacious assumption that staffing levels stay the same. And what I am trying to suggest to you is our experience elsewhere in the world has told us very clearly is that understaffing that is cut heads, get rid of people, drive the overtime up, is a very common strategy in OECD countries.
PN2751
That is not the question I am putting to you?---Well, it is because what you are saying to me is that the others will have to carry the slacker.
**** WILLIAM ANDREW DAWSON XXN MR MOIR
PN2752
No, what I am saying is that the remaining persons who are available to work the overtime want to work the overtime, they will have possibly more overtime work available to them, on the basis that others have refused?---It's the same as putting the argument forward that if one heroin addict chooses not to take heroin, then the other ones will be - have access to more. Now, what you are assuming there is that this sort of quaint notion that somehow people choose to do long hours of work, and therefore because they choose to do it, it is not harmful. And what I would suggest is that the research is very unequivocal about that.
PN2753
No, I am not suggesting that at all, Professor Dawson. If you just listen to me carefully. What I am saying to you is this, you have agreed earlier on that many employees want to work overtime because of the additional remuneration which it attracts. I think you even labelled it in some sense as a conspiracy of greed, surely it is possible then that if employees are given the right to refuse overtime and some workers within a particular firm take up that right, then the remaining employees who want to work the overtime, want to gain the additional income, the additional income, there will be more work available for them to perform, more overtime that they can undertake, given that there are fewer employees doing the work than before?---But again I reiterate that is based on the assumption that there is a fixed number of employees. What happens in most organisations is they drive the overtime level down, they hire more staff. And, therefore, the workload is more equitable. So we have 10 people working 40 hours a week instead of 5 people working 8.
PN2754
Yes, that is an option which is available to an employer to put on more staff, it may include more supplementary staff. But the other option which might be available - - -
PN2755
MR MARLES: Your Honour, I think Mr Moir is about to ask the question for about the fourth time, and Professor Dawson has answered it.
PN2756
JUSTICE GIUDICE: Yes. Well - - -
**** WILLIAM ANDREW DAWSON XXN MR MOIR
PN2757
MR MOIR: Look, I will go straight to my point then, isn't there a real risk, Professor Dawson, that if employees are able to refuse overtime and some people take up that option, but others don't and continue working the overtime, isn't there a real risk that they will in fact end up working more overtime, become more fatigued and, therefore, expose themselves to greater hazards?
PN2758
MR MARLES: Well, your Honour, that is sounding a lot like the last question.
PN2759
JUSTICE GIUDICE: Yes. Well, I think the witness can defend himself fairly adequately?---It's a preposterous position to take. You are saying effectively because we restrict somebody from working everybody is going to work more. But surely that restriction would then kick in for those other individuals, they have the right to refuse it too.
PN2760
Yes. I am talking about the ones who do not want to take up the restrictions, they want to work the overtime, they want to get the additional income, they are quite keen to work the overtime. And because some of their colleagues don't want to work the overtime there is more work available there for them to perform as overtime?---What you are talking about there is the right to voluntarily refuse overtime.
PN2761
Yes. And conversely the right to volunteer to perform it?---But I have at no point argued that those are contingent.
PN2762
MR MOIR: Yes, I think we are at cross purposes here, Professor Dawson, I will leave it at that.
PN2763
JUSTICE GIUDICE: Yes. Is there any other cross-examination?
PN2764
MR G. WATSON: Yes, your Honour.
**** WILLIAM ANDREW DAWSON XXN MR MOIR
PN2765
JUSTICE GIUDICE: How long will you be, Mr Watson?
PN2766
MR G. WATSON: Around 10 minutes.
PN2767
JUSTICE GIUDICE: Yes. Look, we will take a break for a couple of moments. Have you got much re-examination, Mr Marles?
PN2768
MR MARLES: At this point, your Honour, I don't, except that it is not so much re-examination, but what again came up in Mr Coles' cross-examination is that I failed to actually get the witness to adopt one of his papers and I think for the record I should do that.
PN2769
JUSTICE GIUDICE: Yes, well, that is the fatigue one, is it?
PN2770
MR MARLES: Yes.
PN2771
JUSTICE GIUDICE: Yes. Well, that probably won't take long. We will take a break just for a couple of minutes and then we will resume for about - we have only got about 15 minutes that we can sit, but if we do that we might be able to finish Professor Dawson today.
SHORT ADJOURNMENT [4.17pm]
RESUMED [4.25pm]
PN2772
MR G. WATSON: Professor Dawson, I was interested in that part of your report dealing with case studies, and I would like to ask you a couple of questions in relation to those. You have included material relating to case studies which are not simply research projects but also arose from consultancies that you have been involved in, in several of those areas; is that correct?---That is correct.
PN2773
And you have used that material with permission of those employers usually who have commissioned your assistance?---That is not technically the case here. These were commissioned by the Federal Department of Industrial Relations, as part of the best practice program, and one of the criteria for participation and funding for the organisations was that they make the information public domain available.
PN2774
I see, yes. Now, do you accept from your experience working with - in the particular case studies that are involved there that circumstances and the interaction of factors varies markedly throughout industry and workplaces in Australia?---Which factors in particular are you referring to?
PN2775
The factors which bear upon hours of work?---Yes, I guess.
PN2776
Yes. And there really is a complex mix of factors such as the culture of the workplace, the expectations and the needs and aspirations of employers and employees at the workplace level, isn't there?---Yes.
PN2777
Yes. And would you accept the proposition that it is important to consider all of those circumstances in approaching what hours of work are worked at a particular workplace?---Yes.
PN2778
And would you accept the proposition that the site by site approach as evidenced in some of the case studies allows the involvement of employees and employers and insofar as it does that it is likely to lead, with appropriate guidance and advice and knowledge and analysis, assistance, to an appropriate solution to the working hours issues at that workplace?---Yes.
**** WILLIAM ANDREW DAWSON XXN MR G. WATSON
PN2779
And part of the reason why it is important to involve the employees and employers at the workplace level is that it is very important that there be joint understanding and joint commitment to the principles and the aspects of the overall approach to working hours?---So you mean for example the principles like the ACTU guideline points? Is that what you mean by principles?
PN2780
Well, whatever the arrangements which are formulated at that workplace through the complex interaction of factors, the needs, the aspirations,
PN2781
the needs of the employer, the needs of employees, the safety considerations, all those factors that are taken into account as far as working out appropriate working hour schedules, it is important for employers and employees at the workplace level to understand that and be committed to the result of working hours that arise from such a process?---I think it is important to understand in terms of that particular report that you are referring to. It certainly is the case that we suggested, as a result of these case studies and the general principles that were emerged, is that workplace consultation is absolutely critical in terms of that. But as that report also states, there is a set of general dimensions which must be covered through that negotiation process. So there was a centralised set of principles not dissimilar to the ones that were put forward by the ACTU which said okay guys, we want to work on a solution together but here are the dot points that you have to cover in terms of working out what the solutions were. So in each of those case studies, where we were negotiating hours of work, what we are saying is what is reasonable? What is safe? What would be the impacts on the family? What are the remuneration concepts of it? And it was about taking what we call a whole basket approach, and I think that is why the Department of Industrial Relations wanted to move in that way, because what they realised is you need a combination of both localised capacity to develop flavour of the solution, so it actually represents the needs of that workplace, but you also need centralised control that says these are the issues you need to talk about in determining in this case what is a reasonable hours of work. So it is a two-tiered process which has some centralised principles or values that define what constitutes an adequate solution, but it does not try to impose the specific solution. It says you have to have regard to the following factors, and you cannot ignore factors on the list in terms of producing a solution.
[4.30pm]
**** WILLIAM ANDREW DAWSON XXN MR G. WATSON
PN2782
Yes. And because it doesn't impose a particular result, when employers and employees com to look at those factors and they check off every one of the matters that they should give attention to, what might be appropriate at one workplace may not be appropriate at another; do you accept that?---Certainly, yes, but defining what the checklist is, is consistent across workplaces.
PN2783
The checklist is consistent?---The checklist as in here are the dimensions that you need to address in order to determine whether your solution is reasonable.
PN2784
Yes. Now, one of the case studies you dealt with was concerning drivers in South Australia employed by Mobil. Now, would you accept that that was an example of a successful change process?---With some minor caveats, yes, it was viewed at the time. I haven't spoken to Mobil in the last couple of years, but my understanding at the time it was picked as a case study because they felt comfortable with it.
PN2785
You are not aware that the operations have since been contracted out?---I do know that that process is occurring at the moment, yes.
PN2786
Yes. But putting that to one side, that was a workplace which did have very significant average weekly hours of work prior to this particular study occurring; is your answer yes?---Yes. Sorry, yes, yes, it was.
PN2787
And that had been the case for a considerable period of time. There was a long history of that situation occurring prior to this study and change process in the early 1990s?---That is correct.
PN2788
And in that particular study there was a work team established to consider recommendations as to how to modify the business and the work arrangements so as to address the various matters which corresponded with the check list?---That is correct.
**** WILLIAM ANDREW DAWSON XXN MR G. WATSON
PN2789
Were you a consultant to that work team or were you involved in advising that work team?---Yes, both myself and other people within the centre, yes.
PN2790
Yes. And there were 31 recommendations made by the work team all of which were ultimately accepted by all of the stakeholders and those involved?---Yes. Whether it is 31 or 30, I can't particularly tell you, but yes.
PN2791
Yes, okay, in that order?---Yes.
PN2792
So would you describe this exercise as having benefits for employees and the employer, the acceptance of the outcome of that exercise?---Yes, I think it was reasonably successful and there were some quite important reasons for that which might be useful.
PN2793
And would you accept that the outcome was a responsible and appropriate outcome and approach to the issue of working hours?---I wasn't completely comfortable with all of the outcomes that they came up with, but it was certainly a very significant move in the right direction.
PN2794
Now, would you agree in relation to that process which is described in the appendices to the report, that there is some advantage in having an analysis of those working hours factors away from an environment of enterprise bargaining as such where there can be trade offs and other issues intrude?---We have certainly argued that, yes.
PN2795
Yes?---It might be worth clarifying the reason that we did that in that particular case was that they had had a large number of trips to the Commission in the previous year-and-a-half and there was a lot of confrontation in the EBA process, and in Melbourne 80 staff had been sacked, so we wanted to separate out the heat from the light, so to speak.
**** WILLIAM ANDREW DAWSON XXN MR G. WATSON
PN2796
Yes?---But that doesn't always happen in those case studies. Some have been done in the context of EBA.
PN2797
Yes. But I take it from your earlier comments this afternoon that you thought dealing with matters at the workplace level and away from the more adversarial aspects of enterprise bargaining may be the best way to deal with working hours arrangements?---No, that is not what I was trying to say. I think what I was trying to say is that you need a combination of both. You need to have - for example, it is quite illustrative here, when Mobil went down this path, the key change concept that drove this from that employer was they decided to embrace the idea of we need to work out what are reasonable hours. And then we went through a process of saying, well, what would constitute reasonable to you as management, and that was certain deliveries at certain times to certain cost. And then we went through it with the employees and they talked about income and family and social life and they particularly wanted the four-day breaks in the 12-hour roster system. But I can't emphasise that commitment to fair and reasonable hours at management level, and Mobil is one of the more progressive companies in this area and has been for many years, that was what drove the process. And at the local level, if there hadn't been a requirement to do that from on high, it would never have happened. So I think the local workplace process is necessary, but it is not sufficient.
PN2798
And in that particular case you accept that the outcome involved fair and reasonable hours?---Fairer and more reasonable hours. Whether they were actually fair and reasonable, I have some comments on because they still - some of the guys were still working very long hours even at the end of that process.
[4.35pm]
PN2799
Right. In terms of the average, by the new work roster that was formulated, the average hours under that roster was 48 per week. Do you accept that in the circumstances of that workplace, given where they had been from - come from and the process that they have gone through and the commitment of all of those, the expert advice and assistance they had, that that was a - that average was a fair and reasonable approach to the issue of working hours?---Yes, I do.
**** WILLIAM ANDREW DAWSON XXN MR G. WATSON
PN2800
Nothing further, your Honour.
PN2801
JUSTICE GIUDICE: Professor, can I just ask you a question about perhaps on a global level about limits on hours. If the Commission were convinced that some limits should be put on hours, questions would arise as to whether the limits proposed by the ACTU were appropriate, or some other limit was appropriate, is it your position that the long run average of 48 hours per week is the most that can be worked as a general prescription without the undesirable consequences of various kinds to which you refer?---Yes. I wish I could say yes or no, but the important - as with many workplace hazards, hours of work is a gradated hazard. So as you work more and more hours there are more and more negative side effects to it. There is not some artificial transition that at 48 - over 48 it gets really bad and anything under that is okay. What we know from the literature is that as you go from 40 to 50 there is very little doubt amongst the researchers looking at this area, that once you start working consistently more than 50 hours a week there are generally a large number of research papers that will show significant effects. And once you go under 40 there is very little evidence of negative effects due to long hours. There is some qualifications to that based on gender and demographics and stuff, but it is that range in 40 to 50 where the transition seems to occur.
PN2802
And is that regardless of occupation?---No, it's not regardless of occupation, because in many cases the occupations determine how those 48 hours are used. So for example, if it is 48 hours of daytime work in a managerial position, many people can deal with that reasonably well. Your kids may not know your name, but you know, you will certainly not have the higher level social and health costs. On the other hand, we know, for example, in women working 48 hours because of the amount of unpaid work, that that 48 hours actually turns into 58 or 68 in reality, and therefore we pick up effects at a lower level. And I am reluctant - what I have said in the Queensland Industrial Relations one is, I am comfortable with the idea, as you move past the 44 to 48 hour boundary then increasingly the emphasis should be on the person proposing those hours to demonstrate why in this case they have taken risk control measures or hazard reduction measures or training and education to reduce it. But as I said before, the reality is if you go up to the north-west coast of Western Australia you are going to have to work long shifts just because of the economics of it. But what we can actually do in that
**** WILLIAM ANDREW DAWSON XXN MR G. WATSON
situation is say, because the onus is then on the employer to demonstrate what measures they are putting in place to minimise the problems, then you can have people working 50 hours who have good risk management in there. So good health care, good training and education about the problems, you can actually support that process. And that is why I have argued, not in this document, but in others, that around about 48 hours is where I see the onus being transferred on to the person proposing that. That is, you show us why this is not going to produce what the literature tells us? So that is a kind of a roundabout answer, but I think in that 44 to 48 hour range is where we start to see the flip.
PN2803
Yes. Professor Dawson, I should have done this at the outset, but you have written a report with Mr Chris Jones entitled Fatigue and the Law?---Yes.
PN2804
Your Honours, that appears at tab 7 in ACTU2.
PN2805
Professor Dawson, are the contents of that report, including the opinions expressed in it by you true and correct?---By myself and Chris Jones, who was the other author, yes.
PN2806
Thank you.
PN2807
PN2808
JUSTICE GIUDICE: We will adjourn now until 10 in the morning.
ADJOURNED UNTIL THURSDAY, 22 NOVEMBER 2001 [4.41pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
KATHRYN HEILER, ON FORMER OATH PN2054
CROSS-EXAMINATION BY MR G. WATSON PN2054
CROSS-EXAMINATION BY MR MOIR PN2170
CROSS-EXAMINATION BY MR GALLAGHER PN2292
WILLIAM ANDREW DAWSON, SWORN PN2462
EXAMINATION-IN-CHIEF BY MR MARLES PN2462
CROSS-EXAMINATION BY MS McKENZIE PN2504
CROSS-EXAMINATION BY MR COLE PN2607
CROSS-EXAMINATION BY MR MOIR PN2700
WILLIAM ANDREW DAWSON, ON FORMER OATH PN2772
CROSS-EXAMINATION BY MR G. WATSON PN2772
WITNESS WITHDREW PN2808
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AIRCTrans/2002/289.html