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Australian Industrial Relations Commission Transcripts |
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 11087
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
JUSTICE GIUDICE, PRESIDENT
VICE PRESIDENT ROSS
SENIOR DEPUTY PRESIDENT CARTWRIGHT
DEPUTY PRESIDENT IVES
COMMISSIONER CRIBB
C2003/4198, 4199, 4203,
4301, 4302, 5142, 5143,
5144, 5166, 5167, 5168,
5268, 5272
RETAIL AND WHOLESALE INDUSTRY -
SHOP EMPLOYEES - AUSTRALIAN CAPITAL
TERRITORY - AWARD 2000
CLERICAL AND ADMINISTRATIVE EMPLOYEES
(VICTORIA) AWARD 1999
PHARMACEUTICAL GENERAL: CSL AWARD
1998
METAL, ENGINEERING AND ASSOCIATED
INDUSTRIES AWARD 1998 - PART I
GRAPHIC ARTS - GENERAL - AWARD
2000
BUSINESS EQUIPMENT INDUSTRY -
TECHNICAL SERVICE - AWARD 1999
RUBBER, PLASTIC AND CABLE MAKING
INDUSTRY - GENERAL - AWARD 1998
STORAGE SERVICES - GENERAL -
AWARD 1999
STORAGE SERVICES - FRUIT PACKING -
VICTORIA - AWARD 2002
Application under section 113 of the Act
to vary the above awards
MELBOURNE
10.04 AM, MONDAY, 6 SEPTEMBER 2004
Continued from 3.9.04
PN3131
JUSTICE GIUDICE: Mr Stewart.
PN3132
MR STEWART: Your Honour, I would just like to announce a change of appearance. I have MS J. WATLING assisting me today.
PN3133
JUSTICE GIUDICE: Ms Bowtell.
PN3134
PN3135
MS BOWTELL: Ms McAnda's statement is found at ACTU7. It is tab 24, page 126.
PN3136
JUSTICE GIUDICE: Thank you.
PN3137
MS BOWTELL: Ms McAnda, have you got with you a copy of the statement that I have just referred to - - -?---Yes, I have.
PN3138
- - - headed: Witness statement?---Yes.
PN3139
And are there any corrections or amendments that you would like to make to that witness statement?---The copy I have here, my age has of course changed since that was made, an extra year added on, and point 10 it says that Charlotte would have been eight months old, coming back to work. It should be 10 months. That is the only thing I could pick up.
PN3140
So you were 32 at the time you made this statement?---By the time it was signed I was 32, yes.
PN3141
Thank you. And we change point 10, the 8 to a 10. And other than that, is the statement a true and correct statement?---I believe so, yes.
PN3142
Thank you. I have got nothing further for you.
PN3143
JUSTICE GIUDICE: Yes. Is there any cross-examination?
PN3144
MS WAWN: Yes, thank you, your Honour.
**** CATHERINE McANDA XN MS BOWTELL
PN3145
PN3146
MS WAWN: Good morning. My name is Denita Wawn. I am representing the Australian Chamber of Commerce and Industry and also the National Farmers Federation today, just asking you a few questions. I just want to talk to you about your status between full-time and part-time employment, and this is particularly just prior to your pregnancy. You state in paragraph 4 that you worked full-time but due to your pregnancy you negotiated a part-time agreement with the employer. Was that right?---Yes.
PN3147
And had you previously undertaken any negotiations with your employer prior to your pregnancy to change from full-time to part-time hours or back again at all?---Years before I had at different changes with - changed around.
PN3148
Right. So obviously there had been some - were there any changes at all in the six months prior to your pregnancy?---I can't remember.
PN3149
Can't remember, okay. So you - I just want to talk to you about child care arrangements, and in particular the - you obviously had some issues with child care. The - just one moment, the notes I have got - focused. You say that you had difficulties in accessing suitable child care. How many creches did you think you sought to get your daughter into child care?---Every one in our municipality I approached, and would have - at least four put a deposit down on and was still on waiting lists at others.
PN3150
Right. So therefore you were waiting an awful long time, I understand from your witness statement, on the second day. So, could you explain to me exactly how one day and two days works and sort of why it is more difficult to get more days than those days?---There is a very big shortage of places in our area and when I originally applied they said if I only wanted one day it is much easier to slip into a position, but then two days it is harder to find two days in that age group room, and as it is, she is still on the waiting list for a second day.
**** CATHERINE McANDA XXN MS WAWN
PN3151
So how long has that been now? It sounds like about two years, nearly?---Yes.
PN3152
Right?---We are 99 per cent sure of getting a second day for next year.
PN3153
So that could have been what, about 2-1/2 years, three years, by the time you - from the first time you put your name down?---Yes. She was one when she started at the creche, and she is almost three.
PN3154
Right. That explains it. So obviously if child care had been more accessible, would that have obviously made issues relating to return to work and arranging your hours easier for you?---Yes. Would have been more flexibility.
PN3155
Certainly. Thank you for that. If I could take you to your - about return to work following your return from maternity leave and you - looking at paragraph 19 of your statement, you talked about returning to work on a part-time basis on a roster of two days. Was that right?---Yes.
PN3156
So - and I understand from that then you worked on a Wednesday and a Saturday the first week, and then a Monday and a Friday in the - sorry, that was the first week was a Wednesday and a Saturday, and the second week would have been a Monday and a Friday, and that obviously suited your child care arrangements?---At the time, yes.
PN3157
At the time. And then I understand from paragraph 24 you then - there was an issue about starting times - sorry, finishing times, I should say, and Myer agreed to changing your finishing time to 4.45?---Eventually.
PN3158
Right. So obviously it was difficult for you to get to child care, because child care closed. Is that right?---Yes.
**** CATHERINE McANDA XXN MS WAWN
PN3159
So they have a very strict closing time, do they?---Yes.
PN3160
They do. Right. What are the consequences if you are not there?---Late fees.
PN3161
Late fees?---Because they have to pay the staff to stay back, and there has to be two staff members there, that is why they charge $20 for each 15 minutes you are late.
PN3162
$20 every 15 minutes. Okay. And you state in paragraph 25 that Myer wanted you to change your roster to commence at 10 am. Did that actually occur, or are you still on the - - -?---No. That hasn't.
PN3163
- - - later hours?---No.
PN3164
Right. And so now in terms of your hours you are working on Fridays and alternate Mondays and Saturdays?---Yes.
PN3165
So you have sort of renegotiated slightly again in the previous 12 months?---Yes. Myer had asked me at various times to change the days as the business needs changed, and to the best of my ability I have tried to be accommodating towards them.
PN3166
Okay. And obviously as you said, you have had - during maternity leave - sorry, before maternity leave and again after maternity leave, Myer have accommodated any requests you have had in terms of change of hours over the period of time you have worked for them?---Eventually.
PN3167
You say "eventually". What process did you go through?---Dealing with business leaders and personnel saying what I would ideally like and then coming to an arrangement, sometimes almost immediately, and other times it could be weeks before changes came about.
[10.12am]
**** CATHERINE McANDA XXN MS WAWN
PN3168
You talked a bit earlier about prior to going on maternity leave, you talked about - is it not the case that in November 2000, you negotiated a change from full-time to part-time? Would that be correct?---I don't remember could have.
PN3169
Could have. Okay. And then again in January 2001, you negotiated a reduction from 31 hours to 15 hours?---I don't remember that.
PN3170
Okay. And then in April and June of 2001, you went up to about 19 hours a week?---Could have changed as the business needs changed, but I don't remember exactly what happened then.
PN3171
All right, so it wasn't at your request that those changes were sought?---Some may have been.
PN3172
Right, okay. You talk about the issue of 12 months versus 15 months parental leave. So when did you first seek the 15 months? Was that upon your original application for maternity leave, or did you request the additional three months during your maternity leave?---I initially said that I would like to take the 15 months. Was told, no. And then while I was on maternity leave I applied for the extra three months.
PN3173
Is it correct in us concluding that the reason why there was a rejection of the 15 months that it wasn't part of the agreement at that stage? The enterprise agreement?---No, the business leader who rejected me initially said that she didn't want people off that long.
PN3174
Right. But you actually said in your statement that the 15 months maternity leave was not initially provided because it was only part of negotiations between the parties, that it wasn't - this is on paragraph 8. It talked about the issue of 15 months, and it was part of discussions about the 15 month agreement. So would it be correct in that part of the decision making process of Myer that they only went - agreed initially to 12 months because it was only 12 months in the agreement at that stage? But it was subsequently negotiated to 15 months?---I was not given that impression by the business leader.
**** CATHERINE McANDA XXN MS WAWN
PN3175
Right. So - - -?---I was given the impression she would actually, if she had - if she was able to decide, I would have been back before 12 months.
PN3176
But that wasn't the agreement in the - that wasn't part of the agreement, was it? The agreement was 12 months, and then the agreement changed to 15 months. Is that correct?---Yes.
PN3177
Yes. I have no further questions, thank you, your Honour.
PN3178
JUSTICE GIUDICE: Thanks, Ms Wawn. Any re-examination?
PN3179
MS BOWTELL: No, your Honour.
PN3180
PN3181
MS BOWTELL: Your Honour, there are no more ACTU witnesses scheduled for Melbourne, except for the continuation of Dr Murray, which will take place tomorrow.
PN3182
JUSTICE GIUDICE: Tomorrow, yes.
PN3183
MS BOWTELL: And so on that basis the ACTU has nothing further to do today, and we hand over to the employer advocate.
PN3184
JUSTICE GIUDICE: Thank you. Yes, Ms Wawn.
PN3185
MS WAWN: Your Honour, we have ne witness this morning, and then two this afternoon. And in liaison with my colleague, Mr Stewart, there will be two AIG witnesses appearing this morning as well. So we will be slightly disjointed in terms of those witnesses, but we do have one witness this morning. I understand that she is in the building, but cannot be necessarily located at present. Just got one of - our advocate is trying to find her. So I don't know whether - - -
PN3186
JUSTICE GIUDICE: Yes, well we - - -
PN3187
MS WAWN: We could perhaps adjourn for - I do apologise, your Honour. She was here at 10 o'clock, but they have gone to locate her.
PN3188
JUSTICE GIUDICE: Yes, which one is she?
PN3189
MS WAWN: It is Mrs Porritt.
PN3190
JUSTICE GIUDICE: Yes.
PN3191
MS BOWTELL: Your Honour, perhaps we do adjourn, there is one thing I would like to place on record before the employers do call their witnesses. As we have had some discussion last week, it would be customary for them to open their case before calling their witnesses.
PN3192
JUSTICE GIUDICE: Yes.
PN3193
MS BOWTELL: Because of timetable re-arrangements, that is not going to be the case. We are happy to proceed to cross-examine the employer witnesses without them opening, simply to place on record that if a completely new theory of the case emerges through their opening, that hasn't been foreshadowed in the contentions, that we would reserve the right to have any witness recalled if there is something that emerges throughout that time.
PN3194
JUSTICE GIUDICE: Yes, well I suppose that all sides are under some disadvantage because of the efforts that have been made to make sure we use the available time. Anyway, I note the submission. Where do we find the - perhaps we might spend a few moments on the material. Have you tendered all of the material that - - -
PN3195
MS WAWN: Your Honour, in terms of Prof Murray's documents to be put to her - - -
PN3196
JUSTICE GIUDICE: Yes.
PN3197
MS WAWN: - - - they have actually been collected from your associates to be re-tabbed.
PN3198
JUSTICE GIUDICE: Yes.
PN3199
MS WAWN: And then provided this afternoon.
PN3200
JUSTICE GIUDICE: Yes.
PN3201
MS WAWN: And given that we had done a similar organisational cataloguing, so to speak, of Mr Mitchell's documents, we have done likewise in respect to changing that over as well.
PN3202
JUSTICE GIUDICE: Yes.
PN3203
MS WAWN: And we will now produce both sets of folders this afternoon before the end of proceedings today to ensure that there is no confusion in respect to the documents that we seek to put to the witnesses in regard to cross-examination.
PN3204
JUSTICE GIUDICE: All right. Yes, well, is there any sign of the witness?
PN3205
MS WAWN: There is not. However, Mr Barklamb has just suggested that we could actually start, given that this is theoretically the commencement of our case - - -
PN3206
JUSTICE GIUDICE: Yes.
PN3207
MS WAWN: - - - we could start to at least have the ACCI and NFF documents marked.
PN3208
JUSTICE GIUDICE: Well, that might be useful.
PN3209
MS WAWN: Go through that process and hopefully she may appear once we have concluded that initial process. Thank you. I will now refer to Mr Barklamb in respect to this area.
PN3210
MR BARKLAMB: Thank you, your Honours, Commissioner. And again our apologies for the delay of our witness this morning. To use this time sensibly we will seek to have marked as exhibits that material which has been entered into the case to date. And I will give your associate some brief time.
PN3211
[10.21am]
PN3212
JUSTICE GIUDICE: Mr Barklamb, you handed up a list of common exhibits which we marked.
PN3213
MR BARKLAMB: Yes, there was, your Honour, the first day.
PN3214
JUSTICE GIUDICE: Do I understand that that simply identifies documents which have been filed twice?
PN3215
MR BARKLAMB: It does.
PN3216
JUSTICE GIUDICE: The purpose - Vice President Ross might have a different view, but I think he may have presided at the time this was discussed at the directions hearing - the purpose of a common exhibit is to minimise - is to avoid duplication of filing. It may be that there were not discussions early enough between the parties on this issue, but we seem now to have duplication in the sense that the documents are going to be part of exhibits which are marked twice, but I have in addition given them a common exhibit number. So we have confusion on a confusion.
PN3217
MR BARKLAMB: I think we may have collectively misunderstood the purpose of the common exhibit. You are right, your Honour. It would certainly theoretically obviate the need to have them marked additionally as exhibits. The difficulty now, of course, is we would have to go through and remove material selectively from the folders we have already provided to you.
PN3218
Can I perhaps undertake that we will think more carefully with our colleagues in future about what function a common exhibit might have, because as you point out, it is entirely logically what it would do.
PN3219
JUSTICE GIUDICE: I suppose what it involves is the moving party, as it were, or the party putting in material first having some discussions about that, or at the very least parties who respond refraining from putting the same material in twice, so that in that way there can be a reduction. But the other purpose of the common exhibit book is to, I suppose, identify material which might be non-contentious, for example, public documents, ABS statistics, and so on.
PN3220
MR BARKLAMB: Yes.
PN3221
JUSTICE GIUDICE: And if such statistics are updated during the course of a case, as they might be in a case of this length, then that can be done by simply updating the common exhibit book using the official material. Anyway, perhaps I might be unduly pessimistic, but it seems that this attempt has failed. Is that right?
PN3222
MR BARKLAMB: I share your pessimism in that, your Honour. I think that became clear quite quickly, because we moved into then referring to individual exhibits and documents when we were speaking. So I would agree with that, but can I certainly say that we will in our discussions with our colleagues take the idea of what a common exhibit is to achieve future proceedings, and indeed the extent its relevant closing to these proceedings.
PN3223
Your Honour, with that dealt with, may I now move to have - to seek to have matters we have entered into the case. The initial iteration of these proceedings, your Honours and Commissioner will be well aware of in relation to the construction industry matter. There was a preliminary submission on procedural and preliminary matters from ACCI, ACCI solely at that juncture lodged on 17 November 2003 - - -
PN3224
JUSTICE GIUDICE: You are not tendering that, though, are you?
PN3225
MR BARKLAMB: It was one of the documents that was put in the matter. I do not seek to tender it additionally to rely on it at all, so need that be marked as an exhibit, or shall we just - - -
PN3226
JUSTICE GIUDICE: Well, will the ACTU or the union contentions in that matter marked?
PN3227
MS BOWTELL: Your Honour, they were marked at the time you heard the matter. They have not been marked - - -
PN3228
JUSTICE GIUDICE: Re-tendered?
PN3229
MS BOWTELL: Re-tendered, sought to be re-marked.
PN3230
MR BARKLAMB: Your Honour, I do not seek to rely on those at all. It was for completeness, to simply - it is the first document we commenced with.
PN3231
JUSTICE GIUDICE: In that event, I think we will - - -
PN3232
MR BARKLAMB: In that case the first matter, or the first material that serves to be marked at this juncture of the hearing is the ACCI materials lodged at the end of April this year, which were the ACCI NFF outline of contentions in support of the ACCI and NFF applications.
PN3233
[10.25am]
PN3234
JUSTICE GIUDICE: Yes.
PN3235
MR BARKLAMB: There were two volumes of that material, one volume being the outline itself, and the second being supporting material.
PN3236
JUSTICE GIUDICE: We will mark volume 1, ACCI1. I notice that that includes three witness statements.
PN3237
PN3238
MR BARKLAMB: Thank you, your Honour. Your Honours, there was the second latest submission of ACCI and the NFF which was lodged on 2 July of this year, which contained a set of contentions in response - a set of materials supporting those, and witness statements from a number of persons, some of whom we are to hear from today.
EXHIBIT #ACCI3 SUBMISSIONS OF ACCI AND NFF LODGED ON 2 JULY 2004
PN3239
MR BARKLAMB: Thank you, your Honour. There was then two documents which augmented those. That was a set of additional attachment materials which were lodged - - -
PN3240
JUSTICE GIUDICE: 19 July?
PN3241
PN3242
MR BARKLAMB: And there was an additional witness statement which was of Judy Barnsby of Coles Myer of 26 July and supporting materials.
PN3243
JUSTICE GIUDICE: Well, yes, I think the date on the letter is actually 23 July, but presumably it is the same.
PN3244
MR BARKLAMB: It is indeed, your Honour.
PN3245
JUSTICE GIUDICE: It is a witness statement of 22 July 2004, is that right?
PN3246
PN3247
MR BARKLAMB: Thank you, your Honour. I think my colleague may have already mentioned that we are reorganising the materials we wanted to put to Dr Murray, and ensuring that the comparable materials I foreshadowed in - - -
PN3248
JUSTICE GIUDICE: Yes, we are aware of that. Mrs Wawn mentioned that.
PN3249
MR BARKLAMB: Excellent. With that, your Honour, thank you for the opportunity to have those marked at this juncture, and I will return to my colleague.
PN3250
JUSTICE GIUDICE: Is there an additional set of contentions filed by ACCI on 17 August, in response to the Womens' Electoral Lobby contentions?
PN3251
MR BARKLAMB: There are indeed, your Honour. I do apologise.
PN3252
JUSTICE GIUDICE: Are you tendering those?
PN3253
MR BARKLAMB: Yes, please.
PN3254
MS BOWTELL: Your Honour, the ACTU has not seen that documentation, so if it could be provided to us.
PN3255
MR BARKLAMB: I certainly would undertake to do that. I do apologise if that was not - - -
PN3256
JUSTICE GIUDICE: Yes, well, we will mark that. They are only contentions.
PN3257
PN3258
MR BARKLAMB: Thank you, your Honour.
PN3259
JUSTICE GIUDICE: Now, is there a witness statement for the witness?
PN3260
MR BARKLAMB: The witness statement from - - -
PN3261
MS WAWN: Your Honour, it is ACCI3, tab W, and then it is Statement F.
PN3262
JUSTICE GIUDICE: Is the witness here?
PN3263
PN3264
MS WAWN: Thank you, Ms Porritt.
PN3265
DEPUTY PRESIDENT IVES: Just before you start, could you just give me the location in ACCI3 again, please.
PN3266
MS WAWN: It is at tab W, and it is the witness statement marked "F". I think it is about the fifth yellow page in.
PN3267
DEPUTY PRESIDENT IVES: Yes, I have it. Thank you.
PN3268
MS WAWN: Sorry about that. Thank you. It is not actually tabbed. I do apologise.
PN3269
Ms Porritt, you have prepared a witness statement for these proceedings. Have you got a copy of that with you today?---Yes, I have.
PN3270
And is that a true and accurate record?---Yes.
PN3271
And do you seek any amendment to that witness statement?---No.
PN3272
No further questions, thank you, your Honour.
PN3273
JUSTICE GIUDICE: Any cross-examination, Ms Bowtell?
PN3274
**** MARGARET JOAN PORRITT XXN MS BOWTELL
PN3275
MS BOWTELL: Ms Porritt?---Yes.
PN3276
Yes, Ms Porritt. My name is Kath Bowtell. I wanted to ask you some questions first, some detail about your company. You say that you employ around 48 employees. Can you just describe for us the occupational spread, first of all, how many in sales, in production and so on?---I would think about 90 per cent are in sales and 10 per cent are in logistics and accounting and design and production.
PN3277
So about four or five in logistics and production, something like that?---Probably a little bit more, about eight.
PN3278
Thank you. And the breakdown by men and women across those two areas of the company?---99 per cent women.
PN3279
In both areas?---In both areas.
PN3280
In both areas.
PN3281
JUSTICE GIUDICE: Got half a man?---Well, you are right, he is my son, so he probably is half a man. I don't think anybody else would work with 49 women.
PN3282
MS BOWTELL: And is he employed in the logistics or the sales area?---In logistics.
PN3283
In terms of the part-time and full-time mixture, you say you have had - you do have part-time employees. Are they in sales or in logistics and production?---Sales.
PN3284
All in sales?---They are mostly casual.
**** MARGARET JOAN PORRITT XXN MS BOWTELL
PN3285
Mostly casual?---Of their own choice.
PN3286
So in terms of the mix between permanent part-time and casual, what would that be in the sales area?---Probably either 50/50 or 60/40 being casual to full-time.
PN3287
So 60 per cent would be permanent part-time and 40 per cent casual, or - - - ?---No - yes, correct.
PN3288
That would be - so permanent part-time or permanent full-time, 60 per cent?---60 per cent permanent full-time and 40 permanent casual, if you can say that, or permanent part-time.
PN3289
Well, which is it, Ms Porritt? Are they permanent casuals, or - - -?---Permanent casual.
PN3290
So they are paid a loading and they are not - - - ?---Correct.
PN3291
- - - eligible for annual leave or sick leave?---Yes. All above.
PN3292
And in the production area, the eight or so people, there is one man. What is the permanency to casual ratio - - - ?---Permanent, all permanent.
PN3293
All permanent?---All full-time.
PN3294
And all full-time. And have you ever had a part-time employee in production or logistics?---No. I have tried, and it is impossible. It is not a position that can be part-time.
**** MARGARET JOAN PORRITT XXN MS BOWTELL
PN3295
So you have never had or you have tried - - - ?---I have tried, and it hasn't succeeded.
PN3296
So how long ago did you try that?---I have tried it a couple of times over the last three to five years.
PN3297
So when you said you had not had someone in there, you have had people in there part-time?---For a short period, yes.
PN3298
And was that on a casual basis or a permanent part-time basis?---More on a consultancy basis.
PN3299
Now, you say that you have a history of being a family-friendly employer and that you try to accommodate your staff in arranging rosters. Do you do the rostering yourself?---No. I have a team member to do the roster.
PN3300
And what factors does the team member take into account when they are making the rosters, arranging the rosters?---What is suitable for the team members and what is suitable - we work very closely together.
PN3301
So employee preferences are accommodated where possible?---Absolutely, close to home, what their family commitments are.
PN3302
So the location as well, if the store is closer to their home?---Yes. What works for both of us in the end. That is why I keep my employees for 10 to 20 years, because we work together.
PN3303
I noticed in your evidence that you mentioned that you have a very good retention record, and you say that that is associated with being a family-friendly employer?---Yes. It is the culture of the company.
**** MARGARET JOAN PORRITT XXN MS BOWTELL
PN3304
So there is a link between providing family-friendly work practices and good retention of employees?---Yes. The only thing is, when young women leave to have a family 99 per cent of them don't come back.
PN3305
99 per cent?---Mm.
PN3306
I will come to that in a minute. I was going to ask you a question about how many women you have had take - or how many parents you have had take parental leave over your 30 years' experience?---Well, when they - I don't quite understand that question, but when they leave - - -
PN3307
How many parents have you had have a baby while they have been employed with you, or in the lead-up to having their baby they have been employed with you?---Over 30 years?
PN3308
Over 30 years. It would be in the 100s or 50s or - - -?---Probably 50s, in the 50s.
PN3309
And then you say 99 per cent have not returned to work?---No. When motherhood hits, it is a little bit more than they imagine. I have had one girl come back in the 30 - - -
PN3310
So you have had one return to work - - - ?---That is right, one.
PN3311
- - - in 30 years?---That is correct, come back full-time after three months.
PN3312
In paragraph 22, just taking you to the end of your statement, you say that the other components of the ACTU claim, that is the components that are not related to extension of parental leave and part-time work after parental leave are unnecessary, because you already provide family-friendly working arrangements at Feathers?---Absolutely.
[10.41am]
**** MARGARET JOAN PORRITT XXN MS BOWTELL
PN3313
So you are already doing - there is no need to regulate your business, because you are doing the right thing?---No. Not in a small family friendly - being a single mother and understanding the needs of a woman, and it is so difficult to get child care, you know, that is affordable for mums, that is why a lot of them don't come back.
PN3314
But your statement about whether it is necessary or not, relates to what happens at your company?---Correct.
PN3315
Yes. Because that is your experience?---That is my experience. And I had talked to other retailers as well.
PN3316
Now you provide in your enterprise agreement for four weeks paid maternity leave?---Yes.
PN3317
To be paid one month after the return to work. Is that right?---Yes.
PN3318
You haven't had much call to pay that out yet, have you?---No.
PN3319
No. So the way you have structured the payment is actually as an incentive to return, it is not in recognition of the costs of parenting, or the lost income, it is a - - -?---Yes, it is to - I mean there is a lot of time and effort invested into team members. And I would rather they came back. But sometimes they want - they stop to have one child and then want another one. I have had one team member come back after six years. And she does four days, and her children are now a lot older.
PN3320
And you were able to re-integrate her back into the company?---Yes, yes.
PN3321
After six years?---Mm.
**** MARGARET JOAN PORRITT XXN MS BOWTELL
PN3322
Great, okay. Now in terms of your experience as an employer at Feathers, you put up two sort of competing possibilities, I guess, in relation to parental leave. At paragraph 20 and 21, you say that - and it has now been your evidence that most women will actually not return to work with you when they take - when they have their baby, they don't return?---that is - yes.
PN3323
So if that is the case then - well, the other possibility that you put forward is that they come back and that they find that it is too hard to continue working, and then they resign, and then you have lost the replacement employee as well?---Absolutely.
PN3324
So a system that discouraged people returning and finding it too hard would be a better system than one that sort of perpetuated that, wouldn't it?---I can't answer that question, I don't quite understand.
PN3325
Well, in your - have you had any experience of someone coming back and finding it too hard, and then leaving?---Yes. yes.
PN3326
That was the one person who returned, was it?---No. No, the person who returned full-time, when I answered that question, she came back after three months full-time. I have had a couple return and they couldn't handle motherhood and working as well.
PN3327
And they were working full-time when they returned, were they?---No, they working part-time, and they couldn't - - -
PN3328
And still they resigned?---That was beyond them. We endeavoured to keep that position open for that time, but it was just too hard. It is a big responsibility raising a small baby and coming back to work without family support. Like grandparents and - - -
**** MARGARET JOAN PORRITT XXN MS BOWTELL
PN3329
Yes. I can agree with you on that. You say at paragraph 19, the problem - you refer to the problem of replacement employees. In your experience - it is your experience now, with maternity leave, with 12 months maternity leave, that you have to train a replacement employee, isn't it?---Yes.
PN3330
Yes?---Yes. Yes, go on.
PN3331
Of the 50 or - in the 50s number of employees who have taken - or who have had a baby while they have been in your employment, how many resigned at the time, and how many did you hold the job open for, only to have them not return? So what proportion that you know, that they weren't planning to return sort of at the time they left?---I think about 80 per cent don't resign, because they feel they can come back. Until they actually experience having the child. And then they resign after the 12 months. They realise that it is too hard.
PN3332
So the cost of training the replacement employee is one that you bear now under the existing system?---Absolutely.
PN3333
And if they do resign though, do you normally keep the replacement employee on?---Yes.
PN3334
You do, okay. And you are aware if the staff member did return from parental leave, that you would be under no obligation to keep the replacement employee on beyond the maternity leave?---Just run that by me again, sorry.
PN3335
Well, you say in your statement at 19, that you might not have a position available for the replacement employee when the person, the incumbent in the job returns. You are aware you are under no obligation to have a job available for the replacement employee? You can terminate them at the end of the parental leave?---Yes, but that is - that is a very - look, there are situations on the floor in sales that I can cover. But there are times like now where you have to consolidate your business. We are closing one or two stores. So the position would not be
**** MARGARET JOAN PORRITT XXN MS BOWTELL
there because I would have to put off other full-time employees and in logistics, as I explained, and in production design, accounting, if you keep the position - this is what we have tried in production - open, it is not a job that can come back part-time. Like there are times where you have got to consolidate the business and grow the business. So if you had to keep all these positions available, with people that were replacing, they won't come to you. They won't stay. If they know it is a replacement position, particularly employing nearly 50 women. It just would be impossible. There are times where - there is certainly times on the floor that I can accommodate women coming back after a time, but it just depends on where the business is situated. In the 90s we had to consolidate right back and close a lot of shops, and then grow again in the turn of the century. But that is - you need to do that. You need to be able to have that. And if you have got three or five women on a long maternity, whereas I would try, because of the culture of the company, to keep those positions available. But if I am legislated, it is going to be almost impossible to put in a replacement to say, well, look, I need to put you on for two or five years, but if this person wants to come back, I have got to let you go. I mean, who is going to go to a job like that?
PN3336
When you currently employ a replacement, you tell them that they have got a job for 12 months, and at the end of that time there is no on-going guarantee?---I have a verbal agreement with all team members that the job is for a long term, three to five years. So it takes so long for me to train the team, and bring them in to the culture of not them and us, of a culture of equal and team playing. And, you know, when I opened in the 70s, that wasn't the culture, the 70s and 80s. It was definitely them and us. And to retain this feeling of being such a strong team, and being so dependent and inter-dependent with each other, I ask for a like a three to five year commitment, from both sides. Which is verbal, it is not in writing, but it works both ways.
PN3337
That is fine. I have got no further questions.
PN3338
JUSTICE GIUDICE: Any re-examination?
PN3339
MS WAWN: No, nothing, your Honour.
**** MARGARET JOAN PORRITT XXN MS BOWTELL
PN3340
JUSTICE GIUDICE: Thank you for your evidence Ms Porritt?---Thank you.
PN3341
PN3342
MR STEWART: Your Honour, I rise to my feet, given that I believe it is time for some AIG witnesses. I haven't had an opportunity to confirm whether or not they have actually arrived. I did ask for them to arrive at about 10.30, so I am hopeful that they are here. While I am ascertaining whether they have in fact attended, would it be appropriate to mark the AIG materials?
PN3343
[10.51am]
PN3344
JUSTICE GIUDICE: Yes. There is an outline of contentions dated April 2004. Is that the first relevant document?
PN3345
PN3346
PN3347
MR STEWART: The next document, your Honour, is the outline of contentions of July 2004.
PN3348
JUSTICE GIUDICE: Was there a volume 2?
PN3349
MR STEWART: There is, your Honour. That is supporting materials for July 2004.
PN3350
JUSTICE GIUDICE: And there is a third volume, is there?
PN3351
MR STEWART: There is - sorry, I beg your pardon, your Honour, the volume 2 is the witness statements which we have filed.
PN3352
PN3353
PN3354
MR STEWART: Thank you, your Honour. I have now ascertained that my first witness is available, your Honour. Her statement can be found at AIG5, tab 4. And can I please call Ms Jo Fallshaw-Bishop?
[10.54am]
PN3355
JUSTICE GIUDICE: Yes. I have Ms Bishop's statement at tab 4, actually.
PN3356
MR STEWART: That is correct.
PN3357
PN3358
MR STEWART: Good morning, Ms Bishop?---Good morning.
PN3359
Do you have a copy of your statement in front of you?---I do.
PN3360
And is that a copy of the statement you prepared in this matter?---Yes.
PN3361
And are there any changes you would like to make to that statement?---Just one small change.
PN3362
Yes?---And that is to add to point 11 at (a), in the final paragraph:
PN3363
Although this does cause significant difficult, we agreed to a permanent restructuring of roles (whilst preserving the right to revert to original terms if business requirements change).
PN3364
I see. So that is the third line from the bottom, beginning the sentence: Although, and after the word "roles"?---That is correct. Whilst reserving the right to revert to original terms if business requirements change.
PN3365
And with those changes are you happy for this to be your statement in this matter?---Yes, I am.
PN3366
Thank you very much.
PN3367
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3368
MS BOWTELL: Ms Fallshaw Bishop, my name is Kath Bowtell, and I have got some questions for you this morning. I wanted to get a bit more of a profile of the company and just make sure I understand who is employed where. You have got, you say, about 110 employees, about 90 of whom work in the manufacturing area, and then you go on to give some breakdown in terms of the percentages in assembly. I have worked it out that you have got about 14 women and 13 men in the assembly area. Is that about right, about half/half? You say 55 per cent, 55 of 27?---I have got an organisation chart in front of me that I would be pleased to submit if you would like it. There is - in the manufacturing area there is 64 people of which 22 are female and 42 are male. In the assembly area there are 13 males and 15 females, which comes to the 55 per cent. Basically we have a press shop, which makes metal components, and it is more heavy machinery, an injection moulding department moulding plastic components and then an assembly department where the metal and plastic components are assembled together, and it is the assembly department where the large proportion of women work.
PN3369
But there are 22 women working in the remainder of the production areas, is that right?---Well, 22 - - -
PN3370
Or 22 all up?--- - - - in the production area - - -
PN3371
- - - entirely?---Yes.
PN3372
So that is - leaves the 15, so we have got about seven in the other production areas outside assembly?---Yes. There are two in the press shop and there are three in injection moulding.
PN3373
And they are all employed on a full-time basis?---There is one lady in assembly that is part-time. And yes, I think - I am pretty sure she is the only one, at the moment, at any rate.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3374
Now, your qualifications are in engineering, you say?---Yes.
PN3375
And before you were with the company you worked for a textile manufacturer?---Yes, I worked - - -
PN3376
How long were you there for?---I worked for Callan Textiles, which subsequently became Oztrim Textiles, as a product development engineer, and I was there for about two years.
PN3377
And were you in a management role there at all, or - - - ?---No. I was a product development engineer. I graduated from RMIT University in Manufacturing Systems Engineering, and went straight to Callan Textiles, which became Oztrim Textiles, and then came to work for Fallshaw Wheels and Castors.
PN3378
And you have got no qualifications in any of the sort of behavioural sciences. Your qualifications are all in engineering?---That is correct.
PN3379
Thank you. Has the company been involved in any major industrial disputation over the period that you have been employed there?---No. We have a very harmonious and positive working environment. People are very free to join a union. We have got a good relationship with - I think there are about five people in the union currently, although I am not sure. The Australian Workers Union tends to be a little secretive about exactly how many people there are at any point in time, but we are pretty sure it is less than five, and probably more than two. And I think the reason that people haven't really felt the need to join a union is that there is an open door policy, they are able and they do, walk in at any time to the managing director's office or to my office or to the department manager's offices, and there is a very close relationship. Everyone is on first name basis, and the small work groups mean that if there are any issues we always seek to resolve it within the day or at least to get back to the person within the day to say what the process will be to resolve it, and I think as a result people are basically happy.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3380
Okay. That is a good news story. Can you tell me, you are respondent to the Metal Industry Award, or you just - you say in your statement that you - you don't actually say you are respondent to it, but you say that you pay under it. Is it - are you respondent to it?---I am not familiar with the term.
PN3381
You are not respondent to it. Do you know whether you - you say:
PN3382
Our manufacturing operations apply the term of the Metal Engineering and Associated Industries Award -
PN3383
are you a member of the Australian Industry Group?---Yes.
PN3384
You are. So you would be respondent, you would be formally bound by the award through that membership?---Yes, for the wage staff, yes.
PN3385
But you offer a common law contract on top of that for other matters?---That is right. Basically we have what we call a Working at Fallshaws Handbook, and that lays out or summarises the award conditions that the wage staff, and the vast majority of people in the manufacturing area are wage staff, it summarises the terms or the minimum conditions under which they are employed, but then there are additional criteria that we have. For example, we have got a wage staff remuneration structure that lays out the competency levels that link to base pay, but then we have responsibility allowances on top of that, and that means that because most people have responsibilities over and above their normal basic technical role, most people are paid well above the award.
PN3386
Thank you. Now, can you tell me how many part-time employees you have at the company, across all areas?---Across the whole company I think we have got - well, we have got one part-time sales rep, one part-time assembly operator, a part-time person working in the marketing area, so I think it is three.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3387
Now, can you tell me the number of unfair dismissal claims you have had over the last five years?---None. We have had none.
PN3388
Workcover claims?---We have got I think it is about five. There is three that are - all reasonably minor, three that were not disputed in any way by the company, and two that have been disputed, and that are sort of in conciliation or where there has been a genuine dispute ruled and it is now sort of waiting to see if it will go to court or not.
PN3389
Now, your role in the company is partly the human resource development function. So, are you the HR manager? Is that your job, effectively?---Yes, but it is a shared portfolio with the financial controller, so for example, we have performance bonuses of - for salary staff that are individual key performance indicators that are tied to particular objectives or projects, and he would do the reviews for half of the people and I would do them or assist the manager to whom they report with the other half. There are some things that he does, like payroll, he is responsible for, and other things like Workcover that I am responsible for. But for most HR matters I am responsible.
PN3390
So you are the one who is responsible to be familiar with the award, for example, and legislative requirements and those types of things?---We both have to be familiar with the award. He will - in matters of pay he tends to be the person doing the actual work, and any matters - in other general matters I tend to be the person that would need to deal with it, so we both have to have a general familiarity and know where we go to look when we get to a particular problem.
PN3391
Certainly. Good luck?---Yes.
PN3392
The other question I have is in relation to who is responsible in the company for preparing the company's reports to the Equal Opportunity in the Workplace Agency?---I am.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3393
You do those. Just one other question of clarification before we sort of get into the real questions; your role, you describe yourself variously throughout the statement as an employee and as the employer?---It is because I am both. It is a family business, and I am one of the directors of the company, so I certainly feel a great sense of ownership and responsibility, but in our - we also have a very clear delineation in the company between the rights and responsibilities of shareholders and of board manager - board members and of executive managers, and so for example we have a clear policy that shareholders working in the business are not treated any differently to other employees, so matters of say personal remuneration structure has to be objective and in line with the market and in accordance with all of the normal policies that relate to all employees of the business, whether or not they are Fallshaw family members, and then dividends are a whole separate matter that relates equally to shareholders. So, we try and have a very clear delineation between rights and responsibilities of shareholders versus people working in the business, so I tend to have two hats, and I swap them around.
PN3394
The reason I ask is because you say when you talk about yourself at page 7 of your statement that you successfully negotiated to bring your baby back to work with you for six months. I am wondering with whom you negotiated, given that it is your responsibility to manage these things?---I report to the managing director, so I had to negotiate with him, but it is very important that there is a sense of equity, I suppose, between how Fallshaw family members and how non-Fallshaw family members are treated, and so continuing to be accountable for the results of the department with or without a baby in tow was really important. I also had to negotiate with the sales reps who report to me, but with whom I share an office, or a large work space, and I had to check, did they feel comfortable with me bringing my baby in to work, and you have to read between the lines and make sure that it is going to be palatable to the whole work group for it to be effective, and so that was a negotiation that - where people said, yes, you know, we are happy, let us see how it goes, and it did work well, but if it wasn't, I would have pulled the plug myself on it, because I wouldn't want to be seen as pulling strings, I suppose, in a way that disadvantaged the business. It is very important to me personally to be seen to be contributing and to not be a weak link in the chain.
PN3395
Can you just answer for me who the managing director of the company is?---Robert Fallshaw.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3396
And his relationship to you is?---My father.
PN3397
Okay. Thank you. Now, I wanted to ask you some questions in relation to your - the instance that you give at paragraph 11 of your statement, you give instances of a number of employees for whom the company has found solutions to their work and family dilemmas, and starting at page 8 with point (e), Lee and Matt?---Yes.
PN3398
Matt and Lee. Did their partners have any particular complications with the births of their children?---No, neither of them. They were both straightforward.
PN3399
Both straightforward. So it was just something that the fathers wanted to do to spend some more time at home at the time of the birth?---We are finding that to be a trend, that most - certainly in the last three years, at any rate, more and more men are wanting to spend at least three months, so that they - sorry, three weeks, to get a chance to bond with their baby and be there to support their wife.
PN3400
[11.10am]
PN3401
That is something for you to do if you can?---Yes.
PN3402
Now, you give the examples of Carmen and Margaret - this is at page 9 of your statement at point 11(g), and you say there that - have you got the spot?---Yes.
PN3403
You say there that you were keen to keep the communication channels open with them, and you in fact invited them to functions, and so on. Is it important to keep communication channels open during parental leave?---Definitely, because you can lose track of someone when they disappear for six months, or for 12 months. And they can fall out of the habit of work. They can fall out of the gossip channels, and the sense of what is happening. And you find that the longer somebody is away, the harder it is for them to then reintegrate. I think when it comes to things like technical skills in a role, the longer they are away, the harder it is to slot back in easily
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3404
So communication helps to keep that open?---Communication helps, not in the technical skills, of course, but it does in a sense of involvement, a sense of being part of the team, and an awareness or knowledge of sense of buy-in about changes that are happening. And we compete with a lot of Asian product. We have got a lot of downwards price pressure in our industry, where we are competing with product that can - that in some cases is significantly cheaper than ours. And that has meant that we are needing to add in new product lines that are economy lines, and find ways to compete.
PN3405
I do not want to cut you off, but I think you have answered my question. Feel free to keep going, if you need to, but - - -?---Just to say that when you are going through a lot of change, you need to continue to have buy-in, in a sense of involvement from staff. And if they lose that relationship, and disconnect, then when they come back in they don't feel that they are part of the team any more.
PN3406
So communication is a good thing. Can I ask you about parental leave in the company. You take us through a number of people who have taken parental leave. Can I just - Tamara, to be clear, took parental leave, and she came back after 8 months leave, and that worked - she came back on a full time basis after her first child, did she?---No, no, she didn't. She came back on a part-time basis.
PN3407
Right, okay. And then four months later she fell pregnant again and had a second child?---Yes.
PN3408
And she has come back again on a part-time basis after that?---That is right.
PN3409
So the part-time was after the first child, not after the second child, was it?---It is both.
PN3410
So it is continued after the second child?---Yes.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3411
Okay. And that is working well, is it?---At this time it is working tolerably. There are difficulties when a customer wants to speak to her, and Tamara has been very flexible, she has got her mobile phone on, and she said even on her days off she is happy to talk to customers. But it can be awkward. If there is some sort of technical challenge, or a customer needs an urgent quote on a tender, or something like that, and Tamara is not available for three days, that can be awkward. It is a cost - - -
PN3412
You have chosen not to fill the other two days?---Well, we have restructured internally to fill that. But customers like to have one rep who is familiar with the products that they buy, and familiar with their requirements. And to ask a customer to talk with two different sales people just doesn't work.
PN3413
Can I ask you about Jane C. She came back part time on a different roster. How long was she on maternity leave for? Just let me clarify. She worked for you when she already had her first child, and then - - -?---That is right.
PN3414
So she only had one period of maternity leave with you?---That is right.
PN3415
And then she came back on a part time basis, but then she resigned with her second child, is that right?---When she came to work with us, she already had one child, and she was employed to work 5 hours per day, 5 days per week. So in a part time capacity but evenly spread over the week. Then she asked to change. So it was still part time, but to restructure, so it was full time 3 days a week, and then not working the other 2 days. Then when she had her second child, she decided to leave.
PN3416
To leave?---Yes.
PN3417
Okay?---Again, it was inconvenient, because in her case she did the typing for the Managing Director - - -
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3418
I just want to clarify the facts at this stage?--- - - - and so on the 2 days that she wasn't there, the typing basically fell to me. So we have a senior manager doing typing. Again, an inconvenience, but one we were willing to bear.
PN3419
So you fitted back in well after your parental leave, have you?---Very well.
PN3420
And Carmen and Margaret fitted back well after their parental leave?---Yes, very well.
PN3421
Are these the only examples of parental leave that have occurred over the last, say, 5 years in the company? Long parental leave, not the fathers going off for a couple of weeks?---Yes, yes.
PN3422
So that the five examples are Tamara, the two experiences of parental leave?---Tamara with two.
PN3423
Jane with one, Jo with one, Carmen with one, and Margaret with one?---That is right. In fact, I am not sure that Carmen fit in with that five year window. She may or may not have, I am not sure.
PN3424
Sorry, you are not sure if she - I missed the answer?---I am not sure if Carmen was within the last five years. It might have been seven, or so.
PN3425
Okay, further back?---Yes.
PN3426
Thank you. Now, you say in your statement that you were approached to negotiating depends on a value proposition, in a way: that you are comfortable to grant flexibilities to employees who are an asset to the business. Have there been people who you have said no to, because they are not an asset to the business?---There have been people where we were not able to accommodate a request, not necessarily because they were not an asset, but because it was not possible in the role that they were working in, and they didn't have enough skills to move to an alternate role.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3427
So the asset to the business is not really what you take into account, it is the needs of the business, is it?---No, it is both. There can be very real costs involved in part time work.
PN3428
I am asking what factors you take into account that are associated with the person, rather than the business. I understand the needs of the business are important. I am asking about the attributes of the person making the request. Does that make it clearer?---Yes, I think I understand your question. When the business is asked to incur very real costs, we will do that, if we feel we are getting something back in return. But if we are not, they we won't.
PN3429
So I am just asking this because you mention Elana, is it, or Eleanor?---Elena.
PN3430
And you in fact offered her the prospect of flexible work location before - at the time of recruitment, so she had not proved herself at that stage, had she?---That is because - - -
PN3431
So what were the considerations there with her circumstance?---Because she is working in a computer programming role, which is largely work that can be done at any desk, including her laptop in her home, or in an office.
PN3432
But you didn't know at the time you recruited her whether she was a valuable asset to the company or not?---That is correct, but the nature of that role lent itself to flexibility at a later time.
PN3433
I understand - look, it will make this just go a lot quicker for you if you answer the question that I am asking you. I am asking about the attributes of the person, not the attributes of the job?---It was unknown before we recruited.
PN3434
Now, you say in paragraph 15 that compulsion changes human behaviour. That is an ideological statement rather than a factual statement, isn't it? You don't any qualifications in behavioural sciences?---No, but what I can tell you is this. There are very real costs involved in having to, being forced to provide part time work.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3435
I am not talking about part time work. I am asking you a question. You say in your statement, compulsion changes human behaviour, and I am asking you on what basis you say that is true, and I am putting to you that you have no qualifications to say it, and that it is not in fact true that compulsion always changes - is always a bad thing. Compulsion can be a good thing, can't it? Seat belt laws, for example, are a good thing. They change human behaviour, but not for the worse - for the good of society. Is that right?---Well, I think you are - behind your question is that you are asking me to suppose what I might do in an employment situation - - -
PN3436
No, I am asking you about a statement where you say, compulsion changes human behaviour?---I am saying - - -
PN3437
And that you are saying that that is a bad thing?---I am saying that in a situation where I have to make a recruitment decision in the future, if I am compelled to do something, then my behaviour will be very different. I will be forced to act defensively. I will be forced to take risk management actions in order to defend against higher costs. So my behaviour will change in the future if I am forced to do things.
PN3438
Can I just take you back to what you said about your return to work, and Margaret and Carmen's return to work. The parental leave that those two employees and you got, that arose out of their statutory right, did it not? It was not a negotiated outcome of the company. They had a right to that leave, and you had a right to your leave?---Yes.
PN3439
And that has soured the employment relationship now, has it?---Not at all, but - - -
PN3440
No, that is all right. That is all I am asking?---But if we were asked to reserve a job for them for 24 months, and then alter to part time - - -
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3441
I am not asking you about 24 months, I am asking you ?--- - - - it may well have been soured.
PN3442
Can I ask you the question again?---Sure.
PN3443
You say in your direct experience that rights always lead to negativity and resentment. That is not your direct experience, is it? Carmen and Margaret and yourself have slotted back into the company quite well?---I am not sure that I said they always lead to negativity and resentment. I am certainly sure that in a situation where it is not a negotiated outcome, but rather it is one of an individual asserting their rights regardless of costs to the organisation, and presumably asserting their right to have other employees in the work group pick up the slack, that will change human relationships for sure.
PN3444
Well, we will stick with what you said. Now, you say that you have got currently three part time employees in the company, is that right?---I think that is right.
PN3445
There are two people in the office admin area, is that right?---I think - I am not sure off the top of my head. I think there is - yes, if you count sales and administration, then there are two in the office, and one, I think, in operations.
PN3446
And one in operations?---Yes - sorry, there is also one in the tool room, so that is four.
PN3447
And you say that you believe that every woman with a child would take up part time work if that was on offer. Do you mean every woman with a child at any stage, or every woman returning from parental leave?---I mean in the early stages, that were women given the option, it is my belief that most would take up the option to part time work when their children are little.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3448
Based on your experience at Fallshaws, that is not the case, is it?---Well, it hasn't been widely - it hasn't been an automatic right of return to part time work. It hasn't been an option with people's expectation that it is available. It is somewhere where individuals who have really wanted it have made an individual approach. So it does not surprise me that more people have not taken it up, given that it hasn't been a standard offer.
PN3449
But based on your experience at Fallshaws, which is what you are saying at - I think it is paragraph 35 - you say:
PN3450
My experience working at Fallshaws, I believe that nearly every female employee who has children would access the part time option.
PN3451
In your experience at Fallshaws, yourself and Margaret and Carmen have returned to full time work?---Yes.
PN3452
So two our of five have asked for part time work?---It has not been a standard offer. I have also spoken about the vibe of the relationship, or what people's starting expectations are when they come into a negotiation, whether or not it is a negotiation. If it is one of the defined options in the award, then it will become part of the standard offer that people are given. And then, yes, we will have the right to begin the whole discussion about whether or not it is reasonable for us to decline it.
PN3453
But that is not based on your experience. That is what you will imagine will happen in the future. That is not based on your experience?---Yes, that is correct.
PN3454
Thank you?---Given that they have not been given it as a standard offer, yes.
PN3455
And given you have got, as I take it, four now employees in the company employed on a part time basis, it is not an area that you have a lot of expertise in managing part time work, is it?---That is right.
[11.25am]
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3456
So in fact on the costs that you envisage are associated with part-time work, there may be savings that you haven't taken into account. For example, that you don't know, because you have no experience in managing part-time work?---We do have. We have four examples, in my experience, where we have had to review it as an individual case, and then weigh beforehand what we thought the costs may be, and now we have actual experience of what the costs have been. And in those four cases we are still content with our decision. However, they have involved real costs. In those particular cases, because we have known the individuals and have known the positive parts or aspects that they bring to the role, we are still content with the decision. but there has been a very real trade, where we have something of value from those individuals, and they have something of value from us. It hasn't been something where it is all one way.
PN3457
Sorry, for example, you say in your statement at paragraph 34, I will just check that that is the right place, that you will need double the number of people - twice the number of part-time - - -?---Well, let me give you an example. If - - -
PN3458
That is not necessarily the case, is it? You could have three people sharing two full-time loads, for example. So then you have only - the maths would be different, wouldn't it? If you organised it differently, it would be different?---We have got injection - - -
PN3459
No, no, just as a matter of logic, I am asking you?---Well, as a matter of logic, if you have an injection moulding machine that needs to run over an eight hour shift, and you have got to have a single operator manning that machine, you can have one full-time person man the machine through the whole eight hours, or you could have one person man it for the first four hours, and a second person man it for the second four hours. In that scenario, the machine itself would still run for the whole. But the more likely scenario is that two people, both wanting part-time work, would want to come after school finishes and before school ends, so you would have two people available to run a single operator - a single person operator machine.
PN3460
Well, you don't - - -?---You can't have two people running one machine.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3461
That is what you imagine might happen, but you can't know how people might want to re-arrange their working hours. That is what you - - - ?---We have had requests from machine operators and from assembly operators for part-time work that we have had to decline because it was not suitable. We also have two people teams in assembly where, by design, the machine is geared to have two operators sitting opposite one another, so that they can have conversations as they do repetitive assembly tasks. That is to keep the interest up so that they don't get bored. But again, if only one person is available, rather than two, I mean, you can't have two people - you can't have one person - - -
PN3462
Three people in a two person team though, couldn't you?---Well, yes and no. If you take, for example, a tool-maker there is a set up cost. When ou arrive to do a skilled job you first have to get your bearings, appraise the work, set up the machine, start it running, and then you have to, at the end of the day, clean up. And if you have only got 15 minutes to go, you are not going to start a new job running, so that set-up time of half an hour is either leveraged over an eight hour shift, or a four hour shift. That inefficiencies involve stack up. Now, that is a matter of logic. I don't think you need experience beyond four part-time workers to know that a single operator machine needs one person, not two.
PN3463
Can I take you to the question of 24 months parental leave?---Yes.
PN3464
You say that, most people return to work after six or seven months?---In our experience, they have.
PN3465
You returned after a couple of weeks?---Yes, two weeks, but I brought my baby with me.
PN3466
And Tamara returned after eight months?---That is right.
PN3467
And Carmen and Margaret after 12 months?---Yes.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3468
So that is not your experience, is it, that most people return after six or seven months?---Well, do you want to average the two weeks with 12 months or the eight months?
PN3469
No, I don't want to average. I am saying, in your experience - - -?---My experience - - -
PN3470
Your experience is that two returned after 12 months?---Yes.
PN3471
One after eight months, and one after two weeks. So that is - in fact no-one returning in the six to seven months period, is it?---Okay. perhaps I should - - -
PN3472
I am just concerned about what in your statement is based on your experience and what in your statement is based on what you imagine might happen?---Okay. I am also, you know, a mother with a friendship group of women my age. And so I suppose in writing that exact sentence I was drawing on my wider experience and taking into account my friends as they have returned to work in six or seven months.
PN3473
It actually says, based on my experience at Fallshaws, but anyway?---Yes. Feel free to clarify that, that one sentence in the report.
PN3474
JUSTICE GIUDICE: Do you have long to go, Ms Bowtell?
PN3475
MS BOWTELL: Probably another 15 minutes, your Honour, if you would like a break.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3476
JUSTICE GIUDICE: I think we will adjourn for 10 minutes.
SHORT ADJOURNMENT [11.31am]
RESUMED [11.45am]
JO FALLSHAW BISHOP:
PN3477
JUSTICE GIUDICE: Thanks, Ms Bowtell.
PN3478
MS BOWTELL: Thank you, Ms Fallshaw Bishop, I won't take too much of your time this morning. I wanted to ask you some questions in relation to paragraph 33 of your statement. You said earlier when I was asking you questions, that you were bound by the Metal Industry Award?---Mm.
PN3479
Yes. And that you are the person who is responsible for knowing what is in the award?---With Chandra as well, yes.
PN3480
Yes, okay. So when you complain about the term, unreasonable, it is not a term that is unfamiliar to you. It occurs on my count, I think, 27 times in the Metal Industry Award, does it? Reasonable or unreasonable?---I wouldn't be able to confirm that number off the top of my head.
PN3481
But it is not an unfamiliar concept, is it?---It is certainly familiar to everyone in this room, that the word, reasonable, is open to interpretation. And that is part of the problem that in defending against future claims that something is unreasonable, there would be a lot of administration and documentation involved in basically covering our butt, as it were.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3482
In the past couple of years, the Metal Industry Award has been amended on a number of occasions to include provisions that deal with the concept of reasonableness, and that has not led, on your own evidence to increased disputation at your company?---At our company?
PN3483
Yes, that is right?---Of 106 people?
PN3484
Yes?---It has not.
PN3485
Thank you. Now, I wanted to ask you a question about - you mentioned earlier the need to put in place a risk management strategy. And I think what you were referring to there is the disincentive to employ women; is that right? Women of child bearing age?---It is - I think I can see where your question is going there. And when we - - -
PN3486
I am just asking you whether, when you referred to risk management, when you were here before the break, whether that was what you were referring to? You were referring to that part of your statement that deals with the disincentive to employ the women - - -?---Employing women of child-bearing age would become a significant risk, yes.
PN3487
And you said when I asked you questions, that you are responsible for the HR function, legislative compliance and so on, that that was your role?---Yes.
PN3488
So you would be aware that to assume that a woman is going to have a baby is in fact a breach of the Sex Discrimination Act?---I am well aware of that fact, yes.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3489
But nonetheless you would be tempted to behave in that way?---Let me be very clear on this point, because it is important to us as a company. There is no simple answer to whether or not we would discriminate, were these changes to occur. However, one thing I can tell you is this. Our policy would be very clear, and that is that we will comply with the law of the land, regardless of what the law of the land says. The senior managers will walk the talk. There won't be any sort of subversive undercurrent where we are implying to managers that really they shouldn't follow the policy. So anything in our training or our coaching will remind managers of their legal responsibility to comply with the laws of the land. However, managers will make their decision about employing the best person for the job, and they do currently do that. Because at the moment it is in their interests to employ the best person for the job, regardless of race or creed or religion or sex. And it is in their interests, both for direct reasons like their own pride in their job, in being responsible for a department or a work group that is doing well. It is in their interests, because they share in performance bonuses, as do all the employees in our company, including wage personnel, to have good outcomes. And so it is in their interest to employ the best person for the job, and to not take into account irrelevant features. So just look at how multicultural our work-force is. I think we have got something like 20 ethnic groups or national groups represented. We have got women at very senior positions. There is myself. There is also the supply chain manager, who is on the board, and is in a very responsible position. We have got female fork-lift drivers. We have got 33 people enrolled in the engineering production certificate. More than half of those are women. We have women in non-technical - sorry - in non-traditional roles, in technical roles, in programming and the like, so we consider ourselves currently to not only comply with the laws of the land, but to be good people who are not prejudiced and who have no intention of discriminating based on irrelevant factors. My great concern here, as a mother of a daughter who is one year old today, is that these changes would mean that a person's gender is no longer irrelevant. It goes to the heart of whether or not you would be able to fulfil the performance of expectations of your small - particularly, small department or work group. So, you know, can I ask my managers to do something against their own interests and against the interests of the company, yes. I can ask them to do it. Can I get - can I fundamentally change human nature? Probably not. I don't even know what I would do in a situation where I have got a small work team, and if one person - one new person coming in has the right to go to part-time work, and the right to disappear for 24 months, and have it reserved - - -
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3490
JUSTICE GIUDICE: Perhaps you might stop now, Ms Fallshaw Bishop, I have lost all track of what the question was in the first place. You might go ahead, Ms Bowtell.
PN3491
MS BOWTELL: Thank you, your Honour.
PN3492
I have only got a few more questions, and perhaps if you do confine yourself to answering them, then we will be able to move on more quickly. You say that you believe that most women return to work for financial reasons, this is at paragraph 27 of your statement, and I think I can imply from the second two dot points, that really what you are saying is that once it is sort of nutritionally and developmentally okay for the child to return to work, that most women will return to work for their financial reasons. Is that what your evidence is there?---I have listed three motivations to return to work within 12 months, that many women have to choose from. But my point is that the planning milestones change, if there is a 24 months window, instead of a 12 month window.
PN3493
So the point that i am asking about is whether you still stand by your statement that financial imperatives will be something that most women will take into account in determining when they return to work? That, and the development of their children?---It is - one fact that they will need to consider, yes.
PN3494
And is that based on your experience at Fallshaws generally, or your experience more generally, as someone who has networks and friends and things - with children? Just so I am clear as to how you are answering the question?---I think it is largely as a mother, as well as knowing the women at Fallshaws.
PN3495
You say during parental leave, the practice of the company has been re-allocate the work amongst the remaining employees, although there have been instances when you have employed a replacement. Have you employed a replacement at one time? I am just going to give you the numbers and you can answer, yes or no. It will make it easier. Has it been once?---In the - I think it is - I think we have employed temps three out of the four times.
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3496
So you don't actually normally re-allocate - you normally do get a temporary?---No, it is a mix.
PN3497
Okay?---With Tamara's, we re-allocated. With mine, for the two weeks, we re-allocated. With Carmen's and Margaret's we got temps. In fact, since writing this report, another lady has just last week left, having a baby and we got a temp to cover her. So it is a mix.
PN3498
And I just wanted to go back to the burden on the company. You said at the beginning, when I asked you how many unfair dismissal claims that you had, that you hadn't had any in the last five years?---Not in the last five, but I think in the last seven, we have had two.
PN3499
Two in the last seven years. So when you say at paragraph 9, that dealing with:
PN3500
... onerous and employee biased employment regulation, including unfair dismissal is time consuming ...
PN3501
It hasn't actually consumed a lot of time in the company over the last five years at all, has it?---Workcover certainly has.
PN3502
No, no. Well, you have listed unfair dismissal there as well, haven't you?---Part of the reason that it hasn't gone pear shaped, is that we do our preparation to document and to avoid problems. So that takes time, as we defend against it going pear shaped. But the Workcover does take a significant amount of time. I think I mentioned five cases - - -
PN3503
Two of which you contested?---Exactly.
PN3504
[11.55am]
**** JO FALLSHAW BISHOP XXN MS BOWTELL
PN3505
I have no other questions, thank you.
PN3506
JUSTICE GIUDICE: Thank you, Ms Bowtell. Any re-examination, Mr Stewart?
PN3507
PN3508
MR STEWART: Ms Fallshaw Bishop, you were asked about Elena, who was a computer programmer. Did you, or have you had difficulty in obtaining the skills of computer programmers at Fallshaws?---No.
PN3509
Was the interview process fo Elena a lengthy one, or did she join the company quickly and easily?---Quickly and easily.
PN3510
And do you attribute any of that to the offer you made for work from home?---Yes, it is valued by her.
PN3511
You were asked questions about whether or not you had any qualifications in the human behavioural sciences, because you made a claim about compulsion changing human behaviour. Do you recall those questions?---Yes.
PN3512
Do you seek to make any comment beyond your experiences as a mother and an employer?---No, I don't seek beyond that. When we make decisions about who to employ, or who to promote, we have to understand our own behaviours within a context, and so I make that statement within my experience of employing people, not as a human behaviour specialist.
PN3513
Thank you. Nothing further, your Honour.
**** JO FALLSHAW BISHOP RXN MR STEWART
PN3514
PN3515
JUSTICE GIUDICE: Yes, Mr Stewart.
PN3516
PN3517
MR STEWART: Good morning, Ms Taylor. Do you have a copy of your witness statement there in front of you?---I do.
PN3518
Is that the statement you prepared for this matter?---Yes.
PN3519
And is there any changes you would like to make to that statement?---No.
PN3520
Nothing further, thank you, your Honour.
PN3521
MR STEWART: Any cross-examination, Ms Bowtell?
PN3522
PN3523
MS BOWTELL: Ms Taylor, my name is Kath Bowtell, and I am going to ask you some questions. First of all, thank you very much in your statement for providing the staff profile, because it saved me trying to work it out from the other documents that I might find on the Internet. Can you just tell me whether you and your husband Colin are included in the staff table that you provide on page 2, going over to page 3, of your witness statement?---Yes.
PN3524
So, it is that column on the top line?---Yes.
PN3525
And is that you in the - I am not trying to guess your age. I am not trying to be rude, but you are - - -?---I would be, I think, one of the part time admin people. I have just got to have a look.
PN3526
Okay, well there is two there, and you won't have to tell me which age bracket you fall into, okay?---I would be in the 35 to 45.
**** DIANNE LOUISE TAYLOR XXN MS BOWTELL
PN3527
Okay, that is you. Thank you very much for that. How long have you been employed with the company?---My husband and I started up the company in 1982. At that stage I was not involved to a great extent. In about 1995 I started to work with the company.
PN3528
And your role as Financial Controller has been since?---Since 1995.
PN3529
And in that role you perform the HR functions within the company?---Yes. The title does not cover all of my responsibilities, yes.
PN3530
So you are the person who is responsible for award compliance, and legislative compliance and reporting, and those kind of things?---Yes.
PN3531
Does the company run year round, or do you have an annual close down?---We have a close down over Christmas for about two weeks.
PN3532
Can you describe for me - you say that it takes 6 to 12 months to train an employee in the company. Can you describe for me the training, the investment that you put into your people?---We are fairly unique in what we do. We make custom parts, and it is all short run custom parts. So a lot of the work that we do is not repeated for, sort of between 3, 6, 12 months. So quite often when we employ people, it takes that long for them to become familiar with the business cycle. And particularly production people, they are mostly skilled, and they have to learn how to set up a job and make it, and it often takes about, sort of 6 to 12 months for them to become familiar with the full range of work that they will come in contact with in the job. So the training is predominantly on the job, and it is really becoming familiar with what they can expect to come up against on a daily basis.
**** DIANNE LOUISE TAYLOR XXN MS BOWTELL
PN3533
Now, can you tell me, over the last, let us say, 5 years, how many employees in the company have, first of all, had a baby? Let us start with the women, and then we will move to the men. Perhaps you might know more about the women than the men. They have had a baby, they just physically have it, your Honour?---We have had a number of men whose wives have had babies, but I don't think we have had any women - as you can see, it is predominantly a male environment, and that is just the way it has been.
PN3534
So you have not actually had any parental leave?---Not in the last 5 years, no. We have had parental leave for husbands for a day, or two, or often they take, you know, a couple of weeks off, but not for women.
PN3535
So none of the women have taken parental leave. You say the husbands often take a couple of weeks off. So what do they do? How do they manage that?---Usually annual leave.
PN3536
So because the close down is only 2 weeks, they can manage to keep some annual leave for the birth?---Yes, and the close down is 2 weeks, but usually it only, with public holidays and RDOs, they only actually use about a week of their annual leave entitlement.
PN3537
You describe at paragraph 11 of your statement that you have some fathers starting work at 6, and leaving in time to pick their children up from school. Can you take us through the factors that you weighed up in deciding whether to allow them to make that shift in their shift arrangements?---I think there is two at the moment. One of them requested it, and he has been there for a while, and doesn't need a lot of supervision, and so it was not a problem. He is still working a full 8 hour day. It is just starting and finishing earlier, so that was not a problem for him to simply change. The other one was in a different situation, and we actually moved him into a different capacity within the company as part of accommodating that request.
PN3538
So one kept his duties and just changed his start and finish time?---Yes.
**** DIANNE LOUISE TAYLOR XXN MS BOWTELL
PN3539
And the other had an adjustment to role, as well as start and finish time?---It was - he wanted an adjustment to the role anyway. He was looking for different duties, and so as part of, I guess, the whole thing, yes. That was a factor taken into consideration in making that change.
PN3540
Can you tell me how many - no, you told me how many part time employees because they are there. So you have the two female part time employees in the admin role, that is you an another person?---No, it is not. It is two other people. One is down as a casual. She works Thursdays and Fridays - Wednesday, Thursday, Friday, and at the point of employment we gave both those people the option of taking it, either as ongoing as a casual position, or as a permanent part time position, working Wednesdays, Thursdays and Fridays. She opted to take it as a casual position, because there is very few public holidays on Wednesdays, Thursdays and Fridays, so it benefits her.
PN3541
But in the permanent part time workforce, it is you and one other?---Yes.
PN3542
And - - -?---Actually, no, sorry, there is a permanent part time cleaning person as well.
PN3543
And then there is the cleaning person, and there is the one fitter who is phasing into retirement?---Yes, correct.
PN3544
And have you had much other part time employment over the past 5 to 10 years, or that is sort of the extent of the part time arrangements in the company?---Back prior to 1995 when my husband's parents, who also set up the business with us, were retiring, we negotiated part time arrangements with his mother. His mother and I actually kind of divided the duties, so that she could reduce her hours a little bit. So we had that arrangement. And there was a factory hand arrangement that I have referred to in the statement. That was a part time arrangement. So there has been, I guess - there have been other instances, yes.
**** DIANNE LOUISE TAYLOR XXN MS BOWTELL
PN3545
You refer to the factory hand, not doing the job now, but the young man whose father was keen to supervise him for quite extreme circumstances, really. Can you explain the process that you went through in arriving at that solution?---Okay. The father, his wife left him, and he had a teenage son who was very distraught. And the father came to us, and he actually came to us and he said, I want to resign, I need to be home to supervise my son, I am concerned about him. And I think from memory it was a Friday, and we said, look, just let us think about it over the weekend and see if we can come up with something. And it just came to us that this may be an alternative solution. So we proposed it, and it worked extremely well.
PN3546
So you were prepared to look at ways of both keeping the employee, and if you could, accommodate his fairly extreme family circumstances?---It was, you know, a win-win situation, because we got someone to do factory hand type work that at the time was being done by tradespeople. So for us, we actually - there was a benefit, and for the son there was a considerable benefit.
PN3547
Now, at paragraph 10 of your statement you list a number of flexibilities that you provide to employees, and they include flexibility in the time of taking rostered days off?---Yes.
PN3548
And the ability to make up time, to take time off and make it up at another time?---Yes.
PN3549
And single days of annual leave to be taken when there has been an emergency?---Yes.
PN3550
They are all currently provided for in the Metal Industry Award, are they not, those flexibilities?---Yes. If we applied the award completely rigorously, we may not allow as many single days of annual leave, and things like that. But, yes, generally.
**** DIANNE LOUISE TAYLOR XXN MS BOWTELL
PN3551
We are not the forum to, so you are not applying the award rigorously. Has there ever been a part time machine operator employed at the company - ever? In the last, say, 5 to 10 years?---Not that I can recollect.
PN3552
And what about fabricator?---At the moment we have a guy who comes in from time to time when we are busy. He is like a casual, on call fabricator. We have not, that I can ever recollect, had a part time.
PN3553
And what about customer service operator - officer - I am sorry, I have written down CSO, and I cannot remember what you call them?---No.
PN3554
Have you had requests for part time work that you have been unable to accommodate in the past?---Not specifically. I do give the example of a customer service person who in coming back from maternity leave, or from having children, it was probably maternity leave, wanted to go part time, and she actually recognised that it was not going to be a viable proposition to do her job on a part time basis, the customer service work. And so we negotiated that she would take on a position in accounts, and that worked out fine.
PN3555
So she was able to return to reduced hours, but you were able to negotiate her duties - an alternative set of duties?---Yes, and that came from a large extent from her as well. We also have a fitter and turner at the moment, I think I mentioned it in the statement, who we have actually offered him a gradual wind down into retirement. Again, he has said, no, he thinks that that would disrupt the company, and his work mates, and he doesn't want to do that.
PN3556
So when you say at paragraph 17 of your statement that there are times when it is very difficult or impossible to accommodate a request for extended leave or part time work, in fact the only return to part time work that you have had has been accommodated quite well. It was more than 10 years ago, wasn't it, and she is still employed part time?---That is correct. However, had she said, I want to come back, and I want to do the job that I had done previously - so I guess I was using that situation as an example. Had that gone differently, and she had insisted
**** DIANNE LOUISE TAYLOR XXN MS BOWTELL
on coming back to that customer service position, and under these newer provisions, she would be entitled to do that - or these proposed provisions, she would be entitled to do that, then I think that would have made things very difficult for the company and for her trying to do that position.
PN3557
So if it were clear in our applications that part of the negotiation for return to work part time would be to negotiate both the hours of work and the responsibilities of the job, that would alleviate some of your concerns?---I think - - -
PN3558
Based on your experience?---I think that would help. And I think there also needs to be a provision for plenty of notice, and perhaps some flexibility in terms of the timing.
PN3559
Now, can you tell me what the customer service officers do? What hours do they work? There are three of them, aren't there?---We actually have three at the moment. Two of them basically work 8.30 to just after 5, and one starts at 7.30 and leaves at 10 past 4. Basically we are a very service oriented business, and they would take orders from customers. But our orders, because it is all custom, it often involves the customer explaining the situation, and explaining in detail about what it is that they want to do. And one of the reasons why this is a difficult position in a part time position, is that once a customer has gone through all of that with the person that they have been talking to, it is very frustrating for them to have to then re-explain the whole thing to someone else. And also it opens up a possibility of error. And again, as a custom maker, if we make an error and it is our mistake because we misunderstood something, we basically have to wear that, and re-manufacture the part.
PN3560
No-one else wants it, so you can't pass it off - - -?---We cannot re-use it, no.
PN3561
So these customer service officers, they are entitled to 4 weeks annual leave?---They are.
PN3562
And sick leave, 8 days per annum?---Yes.
[12.15pm]
**** DIANNE LOUISE TAYLOR XXN MS BOWTELL
PN3563
And if they are there long enough, long service leave?---Yes.
PN3564
And parental leave, if they want to take parental leave?---Yes.
PN3565
So there are times, aren't there, when you are open for operation, but the customer service officer that has a relationship with a customer is not there?---That is correct, yes.
PN3566
So what is important from the business point of view is that they can speak to someone who understands what they need, not necessarily the same person every time. It would be impossible to run your business on the same person every time, wouldn't it?---It would be, but it is important from a business operation that the times when they are not able to speak to the person that they are used to dealing with are minimised.
PN3567
Well, you have never had a part-time customer service officer though, have you?---No.
PN3568
So your evidence before, when you said that the customers get frustrated and so on, is more based on what you imagine would happen rather than what you know would happen with part-time customer service officers?---It is based on our experience where we have perhaps employed customer service officers who perhaps have not done the job properly as well, so we have experienced that frustration from our customers.
PN3569
And you have only had one return to work from parental leave that was the part-time which was the admin officer, that was 10 years ago?---Yes.
PN3570
And she is still employed, and happy?---Yes.
**** DIANNE LOUISE TAYLOR XXN MS BOWTELL
PN3571
Okay. So when in your statement you predict that an employee who - I am sorry. I will take you to where it is, on page 10 of your statement, you predict that a return to work that the staff member won't be able to do the job and that will lead to unsatisfactory performance, and then there will be resentment by management and co-workers, and that will in fact lead to the loss of the job of a person either through resignation or dismissal for poor performance, that is not based on your experience as the HR manager at your company, is it? That is based on what you imagine might happen?---It is based on my experience in terms of managing customer service within the company. It is also in line with the customer service officer who did take maternity leave, and that was her opinion as well, as someone who was doing the job. It is based on practical - what is the word - I also say in that same statement that if someone is not there because we have about a five to 10 day turnaround on parts we don't have a day to wait while someone who is not there comes back and then deals with something. Things need to be processed very, very quickly and smoothly.
PN3572
Are you aware that the Australian Industry Group have an application in this matter for job-share, where in effect you don't have those absences because you have two people doing the one job?---I think job-share is great, but I don't think it applies in this particular position, which is what - I don't think it would work for the reasons I said earlier, that people don't want to be explaining something to two different people. We do the job-share that we have in the admin reception job works brilliantly, and it is a great arrangement.
PN3573
You have done some really flexible things in your work place for workers, and by your testimony you say you are already a family-friendly work place. There is no active union presence in your work place?---No.
PN3574
And what has been the dispute history over the last say three to five years?---Nothing the last three or four years. We have had one unfair dismissal which reached mediation and when all of the facts came out it was basically withdrawn. The person hadn't really informed his lawyer of the full sort of facts.
**** DIANNE LOUISE TAYLOR XXN MS BOWTELL
PN3575
Now, at paragraph 21 of your statement, I am going to turn to the issue of unpaid leave now, get off parents specifically. Sorry, it is not paragraph 21; paragraph 19 of your statement, you refer to an employee who inconvenienced others by requiring them to cover for him or her for several weeks every year would be regarded poorly and would put their job security at risk. Would that be if the absence was for any reason, if it was for - - - ?---I guess if the absence was for a reason, I don't know, such as severe illness or something like that there would obviously be a different attitude, but the most common reason that we have people taking extended leave of absence is to go home and visit family because they have originally come from overseas, and under those circumstances - I am not saying we have a problem at the moment, but I think if it happened every year and people were working much harder to cover a person who is away, and missing out on time with their family while the person is overseas having a wonderful time, it is human nature to perhaps feel a little resentful.
PN3576
So if the applications that are before this Commission made clear that the priority for awarding unpaid leave for family purposes should be skewed towards those who have dependents who need their care and support rather than perhaps family reunion or those matters, would that alleviate some of your concerns about employee resentment?---It may help, and I think there is still an issue about - even - okay. I think there are other issues apart from employee resentment in terms of accommodating family leave in school holidays.
PN3577
Certainly. I am asking you about the employee resentment component which you say inevitably leads to job insecurity?---It may help a little bit, but I think in a male-oriented work place where not everyone is necessarily sympathetic to - not everyone has a family of their own, I am not sure, it is hard for me to really speak on behalf of them, but I wouldn't necessarily be confident that that would fully alleviate it.
PN3578
I have got about three more questions for you, and I will just find where they are. In the last dot point of your statement you say you are concerned about the definition of the word "reasonable". You have given evidence that you haven't had a history of disputation over the last 10 years. The award under which you employ people draws up a concept of reasonableness, doesn't it?---I guess it does, yes. Look, to be honest, I am not a lawyer, and I am not fully familiar with it, so yes.
**** DIANNE LOUISE TAYLOR XXN MS BOWTELL
PN3579
But the way you behave at your work place you think is reasonable, and your employees think it is reasonable. There is a common understanding of - by your testimony there is a common understanding of what is reasonable operating well in your company. That is your evidence?---Yes. Look, I would agree with that, yes.
PN3580
Thank you. I have got nothing further.
PN3581
JUSTICE GIUDICE: Any re-examination, Mr Stewart?
PN3582
PN3583
MR STEWART: You were asked some questions, Ms Taylor, about - at paragraph 11, in respect of the two fathers who were starting early to accommodate the needs of picking up their children from school. Do you recall those questions?---Yes.
PN3584
And you said that you could accommodate that because one of them didn't require supervision?---Mm.
PN3585
And the other, that the role didn't have to be significantly adjusted, as I recall?---There was an adjustment in role. There was a vacancy in another part of the business and so he basically applied to be changed to a different position.
PN3586
I see. Can you tell us, what would the case be if the same or a similar application was made by an employee who did require additional supervision, or who couldn't fit that role, what would the company's response be to that employee?---It would be much more difficult to accommodate. We would probably try to find a way around it, but we would probably not be able to accommodate it in that way.
**** DIANNE LOUISE TAYLOR RXN MR STEWART
PN3587
Thank you. You were asked by Ms Bowtell some questions around what you term your family-friendly use of award conditions, and you mentioned flexible RDOs and the like. Do you also at your work place put in place any informal arrangements that don't meet the letter of the award specifically?---What did you have in mind?
PN3588
I was wondering if there is any flexibilities that your company might give to your employees which are not within the terms of the award but meet the needs of that particular situation?---I have pretty much covered most of the flexibilities in my statement. There is probably nothing that is not in the statement.
PN3589
Right. Thank you. You were asked questions about customer service operator positions and in particular you were asked - or it was put to you by Ms Bowtell that in fact you had no direct experience of some of those frustrations which you mentioned in your statement. Do you recall that?---Yes.
PN3590
And I was wondering, is it possible that some of your frustrations could be based om your experience when those customer service operators are in fact accessing their other - - -
PN3591
MS BOWTELL: Is that a leading question?
PN3592
JUSTICE GIUDICE: It sounds pretty leading to me, Mr Stewart. A leading question is one, generally speaking, which suggests the answer.
PN3593
MR STEWART: Yes, certainly. Let me put it this way to you, Ms Taylor. The position of customer service operator, when your experience, is that influenced by your employees taking annual leave? Sorry, I will withdraw the question. I apologise. You were asked some questions about job share, Ms Taylor. Do you have positions in your organisation that do not suit job share arrangements?---I believe so.
**** DIANNE LOUISE TAYLOR RXN MR STEWART
PN3594
Nothing further, your Honour.
PN3595
PN3596
MR STEWART: Your Honour, that concludes the witnesses for AI Group for today. However, given that our materials have now been marked, I feel it is appropriate to put forward an agreement that has been reached by the ACTU and the AI Group with respect to some of the witnesses of the AI Group and the fact that the ACTU does not intend to call all of our witnesses for cross-examination. Ms Bowtell and I have communicated via e-mail correspondence which sets out that agreement, and it might be appropriate if I hand up a copy of that e-mail correspondence to you.
PN3597
MR STEWART: Thank you, your Honour.
PN3598
JUSTICE GIUDICE: I think it might be better in general terms if agreements of this kind can be dealt with other than by familiar communications over the e-mail.
PN3599
MR STEWART: Yes, your Honour. That is definitely the case. I will endeavour in the future to make sure that that is put in a more formal arrangements.
PN3600
JUSTICE GIUDICE: Well, it doesn't have to be terribly formal, but there is a limit to informality, I think.
PN3601
MR STEWART: Yes. Thank you, your Honour.
PN3602
JUSTICE GIUDICE: Mr Barklamb.
PN3603
MR BARKLAMB: Thank you, your Honour. Our next witness to be called today, Tony Reilly, will be available to the Commission in approximately an hour and a half at the earliest. I am, however, after our conversation the other day in a position to commence ACCIs and the NFFs opening to these proceedings, if it will suit the Commission to do that now.
PN3604
JUSTICE GIUDICE: How long will that take you, the opening?
PN3605
MR BARKLAMB: I think the opening in total will take somewhere between three-quarters of an hour and an hour. I was very mindful, your Honour, of the points that you raised on Friday afternoon - - -
PN3606
JUSTICE GIUDICE: Yes.
PN3607
MR BARKLAMB: - - - in relation to a lot of the material being reduced to writing, and I have sought to keep it at the more general level.
[12.31pm]
PN3608
JUSTICE GIUDICE: Yes, well, if you are content to commence now, we could do so, otherwise we can adjourn until 2.00.
PN3609
MR BARKLAMB: Yes, certainly. Well, I think it is appropriate that I commence, given the use of the time we have had.
PN3610
JUSTICE GIUDICE: Yes, thank you.
PN3611
MR BARKLAMB: As we have just noted, ACCI and the NFF have already filed extensive written material in support of our applications, and in opposition to those from our union colleagues. That material goes a long way to identifying the major elements of this case, and the major elements put by Australia's employers. In those circumstances, and in consideration of the discussion on Friday afternoon, this opening statement will be general in nature. It will not traverse the evidence of the witnesses to be called by the employers, nor the written material in detail, other than in general terms.
PN3612
With that said, let us turn to the social and labour market context of this case. The issue of work and family is obviously topical. This is a contemporary issue for many employees and many employers. To a degree it reflects broader changes in our society that fall well outside the determination of this Commission or any single area of public policy or regulation. These changes include, higher female participation in our labour force, more sole parent families, busier lives, changing aspirations and expectations for higher living standards, and things such as de-institutionalisation of caring for the disabled. And tensions created through any desire to maximise family income through work, and to seek to balance that with a corresponding desire to maximise leisure time.
PN3613
As you have been told, our population is also ageing, with the potential for more elder care responsibilities, although there is no real evidence of this generally or materially impacting on employee circumstances. Though it may be an issue for our future across the areas of policy I have charted for you. So, in the above respects and others, it can be said that there are pressures on the reconciliation of work and family. Some of those are the consequence of social change and demography, i.e. population, ageing, and indeed, sole parenting. Some may be linked to government policy, the institutionalisation. And others arise still from individual choices. High work-force participation by women and the push, both higher incomes and more leisure.
PN3614
The point is that none of the above is the consequence of employer conduct, nor employer choices. It is also important to put these developments further into context. There will always and has always been, social change, demographic change and labour market change. This has been the case since the Industrial Revolution. Social change is not a new phenomenon. Family structures have always changed and evolved. And not all these changes are either in one direction, and even the directions of change, in addition to their consequences and any policy responses that may be joined from the - all these things, are highly contested matters. Difficult areas of policy on which there is no single agreed consensus.
PN3615
Other factors, such as increasing divorce rates and sole parent families mean for many working weeks, many parents have no custody or limited access to children, and thereby limited direct caring responsibilities and fewer clashes in regard to work and families. And just as our families have become more diverse, and the changing parts of their lives, they are seeking to reconcile and manage, have become more diverse, so our community as a whole has become much more accepting and more embracing of work being combined with family life.
PN3616
All around us, every day, in every corner of Australia, our parents and our businesses are successfully combining working and family life. So let us not assume that social change is in one direction, nor that it is necessarily making things harder for work and family reconciliation. Many of the changes in our life, our societies and our work, have not done this. If we look at the industrial system and the functioning of our labour market, it is even clearer that change over the past two decades has actually facilitated many parents reconciling their working and family lives.
PN3617
We have put more jobs into our economy, and more flexible forms of work are being offered by our employers. Part-time work, casual work, and independent contracting are all fundamentally important labour market changes that have materially made it easier to reconcile work and family. And, again, if the only work option we offered our parents was just the old stereotype of full-time Monday to Friday work, we would have many more problems in work and family than we have today. And we would have far fewer Australians, particularly women, participating in our labour market.
PN3618
In addition, we have more diverse skills in demand in our labour force, and a growth in service industries. And again, our more diverse economy, and the growth of jobs in such service industry, has facilitated increased participation in our workforce by women and by mothers. And we also have vastly improved systems of training, re-training and capacity for the mobility of skills. Without that successful movements into and out of the labour market for parents would be more difficult.
PN3619
And of course we have a system of agreement making on wages and employment conditions that allows our forms of employment to be varied. It allows our hours of work to be varied. It allows leave and rostering to be varied, from industry-wide regulation to a level of determination far closer to the relationships between our employers and employees. Without the growth in agreement making, or to put it the other way, if all working parents had identical industry wide regulation, then work and family would be more difficult to reconcile.
PN3620
When properly considered, the scope of the system to deliver on work and family needs at the workplace level is in fact a powerful demonstration, not only of the lack of the need for the intervention sought by the ACTU, but also of the validity of the operation of our bargaining system more generally. We have also seen a demonstration, and will also see further, as this case unfolds, a demonstration of the need to look beyond numbers of formal agreements and their texts, as to how matters are being accommodated informally day to day in our workplaces. In short, we will argue that properly considered bargaining will show our system is working.
PN3621
None of this is to say that work and family is not a challenge in today's busy society. In our world, where for one reason or another, we have busy lives and multiple commitments. But societal change and industrial change has not moved in a single direction. The mere fact that women's participation in the labour force and mobility in and out of the workforce after child birth has so dramatically increased, is evidence that we are dong many things right as a society, and in our labour market, in terms of work and family reconciliation.
PN3622
So in this case, we as employers, will be arguing that the challenge of work and family reconciliation is an evolving and on-going one. There is no sudden crisis requiring the heavy handed intervention now sought by the ACTU. We will argue that some of the societal changes in fact cut both ways, and that some changes are made - whilst some changes have made reconciliation more challenging, others have made it easier. And indeed, as I said, the macro numbers are on the board in regard to the capacities of our women and mothers to participate in our labour market. We will say, however, that most labour market change has made this reconciliation easier.
PN3623
We will also say that to a great extent, the societal changes that maybe making it harder to reconcile work and family for some people are essentially the product of individual choices. Some personal, some borne of economic necessity. What then, does this mean for the case? It means that the Commission should conclude that it should be slow - the Commission should be slow to conclude that there is a need for the intervention being debated and that sought by the ACTU.
PN3624
The Commission should further conclude that if there are grounds for it to make some intervention in this are, it should do so only in the light touch, proportionate and flexible manner. The Commission should conclude that there is no mischief arising from the conduct of employers in regard to the reconciliation or work and family life that need be cured or addressed by intervention and additional regulation.
PN3625
The nature of these proceedings. The Commission has a strong record of being able to discern its role from wider public policy debate about issues that in one way or another form the grounds of the claims before it. The Commission has a strong record of being able to delineate its role from that of other parts of the state more generally. This case is no different. The Commission needs to be wary that it is not swept up in the general debate about work and family, where in the past two years in particular, there has been a ratchetting up of the public debate, largely as the consequence of a campaign for paid maternity leave instigated by the Federal Sex Discrimination Commissioner, and then the subsequent upping of rhetoric by politicians on all sides on which has since become something of a bidding war over government policy on paid maternity leave and child care. Neither of which are matters subject to claims in this case.
PN3626
Our point essentially is that these proceedings are not in the nature of a national inquiry into work and family. You will be forgiven for thinking otherwise form some of the material put before you, listening to the ACTU opening, and reading their submissions. However, these proceedings are not of a general inquisitorial nature. They are not a forum for floating ideas or making recommendations on policy. They are no more and no less than a legal and merit consideration of claims for changes to the law that governs matters that pertain to the relationship between employers and employees.
PN3627
The Commission is performing a law making function, not a policy role. And the Commission is being asked to intervene and affect existing rights and to alter existing rights of private businesses in quite fundamental ways. At hand before you are applications made under the Workplace Relations Act, and Act which is solely devoted to industrial matters. Moreover the claims are being pursued as test case applications, with intended operation across industries, across employers, in large, small, and medium businesses, amongst businesses in service industries, and in more traditional trades. In businesses in our urban centres, regional towns and rural outposts.
PN3628
In business where the labour force may be largely male dominated, and in business where the labour force may be largely female dominated. In businesses where most employees may be the parents of toddlers and school children, and in businesses where most of the employees may have adult children. And of course, in businesses that are financially strong and adaptable. As well as businesses that are financially vulnerable and at commercial risk.
PN3629
Although the grounds upon which this application has been nominally pursued are based on work and family considerations, the relief sought by the unions in this matter is in fact of a much more traditional nature. Awards are being sought to be made in relation to matters which are not new to the Commission's history of arbitration. These are applications to vary hours of work, to leave provisions, to vary rosters, to vary forms of employment and to vary monetary and non-monetary entitlements. These are old-fashioned claims, to distort the balance in our workplaces in favour of employees.
PN3630
What does this mean for this case? It means that if the Commission should perform its traditional role and apply its well-established approaches to arbitration in the context of the objects of the Act, what we know of its jurisdiction, and its powers, it should and can do no more. If having regard to the merits of this case and such industrial principles as have been developed, if the - if having regard to those things, the case for relief is not made out, so be it. The work and family policy debate will go on, in that wider context, and there would be no sense that the Commission would not have done its job were it to reject all the claims before it.
PN3631
Claims put by the unions in this matter before the Commission are extensive and far-reaching, as are some of the claims in response. Putting to one side, for the moment issues of merit and proof, this national arbitration may be characterised this way. Where the work and family is best advanced, on the one hand our unions imposing new mandatory costs and obligations upon employers, or on the alternative, allowing awards to facilitate work and family decisions in our workplaces by empowering employers and employees to negotiate mutually beneficial approaches without being restricted to one size fits all constraints.
PN3632
Work and family balance and business measurement - business management, we will argue, are not mutually exclusive, but the issue is not just about rights of individuals to work when and where they want, or for businesses to try and fit around staff choices and preferences. Interesting in this matter, it may be viewed that the two sets of claims before you are not in all cases mutually exclusive.
PN3633
[12.46pm]
PN3634
This is an unusual feature of this case. Not that we are seeking this outcome, and I need to be quite clear on that, but it is conceptually possible to grant some or all claims from both sides: both new rights on some issues, and award based flexibility and facilitation on others.
PN3635
Before referring to the major claims to be arbitrated, it is important to note also that a settlement has been reached in relation to the ACTU and other party claims for carers leave and emergency leave, which I understand has been communicated to your Honours by a number of parties. If this settlement is adopted by the Commission, and we are, and will be urging that it is, then this is a very significant aspect of these proceedings. It is a settlement that will produce some important new benefits for employees, and which we will submit goes a long way to addressing many of the issues raised in the evidence in this matter, without the need - without the need for any further intervention by the Commission,
PN3636
We will have more to say about this in our submissions in due course, but we will also argue further to the Commission that it should be noted that the agreed settlement is not without cost to business.
PN3637
The significance of these claims. The significance of the claims can be seen from a quick summary of the relief sought by the ACTU. The ACTU claims will require every employer to keep an employee's job open for two years after the birth of a child: double our current maternity leave standard. They give employees a further right to ask their employer to keep their job open for 5, perhaps 6 years in total, until a child enters school after its birth.
PN3638
They will give every employee what we will argue is a prima facie right to change their days and times of work to suit their convenience. They will give every employee a prima facie right to change the location at which they work to a place that suits them. They will give every employee a prima facie right to work from home, if that suits them. And they will give every employee a right to be away from the workplace through a salary exchange arrangement, if the employee chooses, for an extra six weeks per year, whether the business can cope with that absence or not.
PN3639
When added to existing rights, that means a permanent employee could potentially be away from the workplace in total for up to a quarter of each year. They will give every employee an absolute right to return to work after maternity leave as a part time employee, whether or not they were a part time employee before going on leave, or whether the business has part time employees more generally or can structure its work to part time employment more generally.
PN3640
They will also give partners a right to take the first two months off work after the birth of a child, even though the other partner is already off on parental leave.
PN3641
Two important things to be noted about the list I have just led you through. These ACTU claims are cumulative upon themselves. Each one is being advanced in combination with the others as a package of measures to be added to our award system. Secondly, the ACTU claims are on top of all existing employment rights, including annual leave, sick leave, personal leave, carers leave which will be increased were the Commission to endorse the agreement put to you, and existing parental leave.
PN3642
They are not placed before you on the basis of any accompanying cost offsets or efficiency trade-offs. To the extent that these claims ask you a question, however, we do not come before you with no answer. ACCI and the NFF have a package of claims or propositions of our own.
PN3643
JUSTICE GIUDICE: Could we come to those after lunch, do you think, Mr Barklamb?
PN3644
MR BARKLAMB: I certainly can, your Honour.
PN3645
JUSTICE GIUDICE: We will adjourn now until 2.15.
LUNCHEON ADJOURNMENT [12.51pm]
RESUMED [2.20pm]
PN3646
JUSTICE GIUDICE: Mr Barklamb.
PN3647
MR BARKLAMB: Thank you, your Honour. I had in opening our case got to a nature break, having talked about the character and subject of the ACTUs claims. In contrast, the propositions put by ACCI and the NFF would provide that all awards should allow part time employment. That award restrictions on the employment of part time employees and on casual employment may be overridden where this meets business requirements and needs - sorry, strike that, your Honour, pardon me. Award restrictions on the employment of part time employees and on casual employment may be overridden where it can assist an employee to meet their work and family responsibilities, and is agreed between the employer and the employee.
PN3648
We will provide, or seek to provide that awards should be varied so that rules about the ways in which rostered days off must be taken can be changed by agreement between employer and employee, where this is requested by an employee on work or family grounds and agreed by the employer.
PN3649
We propose to you that awards be varied so that the payment of the 17 1/2 per cent annual leave loading could be made as an extra 3 1/2 days paid annual leave, rather than as an additional cash payment on annual leave pay, as is presently the only option, where this is requested by the employee on work or family grounds and agreed by the employer.
PN3650
We will propose to you that the awards be varied so that payment of various penalty rates could be made as extra days of paid leave, rather than as additional monies, again, where requested by the employee on work and family grounds and agreed by the employer.
PN3651
We will seem similarly that awards be varied so that the payment of overtime paid could be taken as additional days of paid leave rather than as cash. We also have proposals in relation to annual leave. Awards can be varied - we will seek to propose to you that awards be varied so that more annual leave can be taken as single days, or indeed carried forward. We also propose that awards be varied so that double accrued annual leave can be taken as a half payment where requested by the employee on work and family grounds and agreed by the employer.
PN3652
Also, we make proposals regarding the Commission's long service leave safety net. We propose that awards be varied to allow a number of new options in relation to the use of accrued long service leave. For example, doubling long service leave on half pay, or halving long service leave on double pay, again, where initiated by the employee and agreed by the employer.
PN3653
We also talk about varying awards and rules about the way rosters are set, and that hours that must be worked and breaks taken. We talk about allowing employers and employees greater scope to agree to change that by agreement and in discussion. We also provide that where an employer makes changes to rosters to provide an employee with a roster that meets the employee preference or request, then the employer should not be required to pay a penalty rate to that employee for the hours worked. And that is quite a specific proposal, and it reflect that penalty rates are based in part on the proposition that they are paid for work required to be performed by an employee in hours unsociable or inconvenient to that employee, where we would be talking about a different situation in the scenario we paint, where an employee has in fact specifically requested the hours at their family convenience.
[2.25pm]
PN3654
We also seek that awards be varied to allow more employers and employees direct and practical options for the working of makeup time arrangements. The key to each of these propositions, or fundamental to the propositions in the broad, there are some exceptions for particular claims which we have outlined in our written materials, the key to all this is essentially twofold. Firstly, these new propositions that we are seeking to have incorporated into the award safety net, operate at the employees' initiation. Secondly, and they will operate based on work and family need. They are not propositions at large.
PN3655
These are not changes to penalty rates, for example, at large, nor changes to the award safety net in regard to long service leave at large. They are linked to employee initiation and work and family. Your Honours, Commissioner, will be aware that ACCI is making a challenge to the Commission's jurisdiction to deal with these claims from the ACTU. We will be making two legal challenges to the ACTU claims, one on the grounds that the Commission has no jurisdiction to grant a number of the claims having regard to the limited ambit of the underlying industrial disputes and logs of claims underpinning the awards currently before the Commission in respect of particular parts of the ACTUs claim and particular awards, or in some cases in relation to all of the awards before you.
PN3656
The other core aspect of our jurisdictional challenge is that certain of the ACTU claims are neither industrial matters that can fall within the remit of the award system, nor are they allowable matters within the meaning of the Workplace Relations Act. These matters will be outlined in our oral submissions at the conclusion of the evidence in this matter, or the conclusion of this matter, and I do not seek to dwell on them further at this point. I can, however, indicate that we will lodge in coming days two more of the logs of claims that underpinned the disputes that give rise to the disputes in this matter.
PN3657
I think we clearly foreshadowed in our written materials that we would continue to seek to find those logs of claims, and we have had some success in that and will put that material in shortly. Throughout this case and in our submissions we will refer extensively back to the nature of the safety net role of awards in our contemporary system. We will submit that a safety net already exists on the very matters on which the unions seek to additionally regulate, and that the current safety net is in no way in disrepair. We will argue that the ACTU does not make out a case for change.
PN3658
We will submit that some of the evidence, such as a trend towards return to work after the birth of a child earlier than 12 months indicates that the current safety net which in relation to parental leave is for 12 months is more than sufficient and may in no way be characterised as inadequate. We will say that many of the supposed benefits identified in the literature are already being more than adequately delivered without the intervention sought by the ACTU. We will submit that employee preferences on which the ACTU bases so much of its evidence are a completely inadequate basis for the Commission to be asked to change our law.
PN3659
What people want is of interest, but it is a far from sufficient for law-making and the discharge of the Commission's functions under the Act. We will submit that the Commission should reject the ACTU claims and instead grant the proposition sought by our organisations. We will submit that if the Commission does this, it will be adopting an approach that more closely accords to the functions of the Commission as set by Parliament in both the objects of the Act and also in the specific statutory directions in the Act for award-making and that are relevant to this matter.
PN3660
Turning to the merits of this case, the merit considerations. In the case we will be advancing on behalf of employers, a series of propositions that we will say should lead to the rejection of the ACTU claims and the granting of the ACCI NFF propositions. In making this case we will advance seven over-arching propositions in evidence and submissions. Firstly, that jobs growth must remain Australia's national priority. The capacity of its employers to provide jobs remains the most substantial contributor to family incomes and family wellbeing our society can provide.
PN3661
We will argue that the ACTU claims carry the prospect of undermining job security and job opportunity. Secondly, we will argue that one size does not fit all. Employers do not oppose sensible measures being worked out in our workplaces to try and help staff better balance their work and family considerations. Meaningful solutions to balancing work and family can, however, only be made at the workplace level, and are found in making existing employment regulation more flexible. Meaningful solutions will not be found in new economy-wide employment rights and regulation.
PN3662
Thirdly, we will argue that workplace agreements are preferable to economy-wide regulation. We will argue that we don't need new award rights across the economy, given that workplace agreements can and are now being made and are delivering work and family outcomes. As I said earlier, the scores are on the board and the examples are there for others to follow. Fourthly, there are boundaries to business responsibilities. Businesses are by definition commercial undertakings. When choices are being made in businesses the people making those choices must act in the best interests of the business.
PN3663
Employers accept responsibility for running businesses and for trying to create jobs.
PN3664
Employers do not accept obligations that more properly rest with individuals, their families, their broader communities, and indeed, their governments.
[2.31pm]
PN3665
Fifthly, employers must satisfy multiple commercial relationships and must not - and must seek to meet not only employee demands. Demands of one employee and their family cannot be allowed to compromise the needs of other employees, the needs of clients, the needs of consumers, the needs of contractors, the needs of suppliers, the needs of banks, and in our smaller and medium sized businesses, the needs of proprietors' own families. To ensure that work and family regulation does not work against the employment of Australian women or of our working parents, it is critical that changes to law and policy do not restrict the responsibility of managers to operate businesses based primarily on customer needs and commercial realities.
PN3666
Sixthly, in our over-arching points for this case, substantial progress can, is and will continue to be made without additional regulation. Employers in Australia have a very good track record of dealing with work and family issues at the workplace level. Within business and operational realities, employers have increased workforce participation by women without the need for these new employment burdens now sought by the ACTU.
PN3667
Seventhly, these claims - seventhly, and indeed, finally, these claims come in a context. They come on top of the various other burdens which business must operate under. The ACTU claims come on tope of all existing employment rights, including the costs and compliance costs of annual leave, sick leave, personal leave, carer's leave, parental leave and the wider award safety net. I think I mentioned earlier that it is up to a quarter of a year that may not be worked were the claim to be utilised in full by any particular individual. And indeed, the claims come on top of recent changes in the award - in the burden of the award safety net upon many employers, including new wage and redundancy costs. The claims are in addition, not offset by any cost or efficiency trade-offs. There are core propositions from which a set of more detailed contentions regarding what has or has not been made out, or spring.
PN3668
Arising from these propositions, the evidence and submissions of employers will provide, we say, a strong basis for rejections of the ACTU claims. Aside from the jurisdictional issues, we will also show that the evidence in this case does not demonstrate a need for intervention in the form of new national employment rights. We will argue that the social, demographic and labour market changes outlined by the ACTU, even to the extent they ultimately prove valid, cannot and do not justify the relief sought.
PN3669
As I have mentioned, the ACTU has given you solely evidence from the perspective of need. However, when properly viewed, we will argue there is no basis to conclude that the system is not or cannot meet the needs of employees. Put simply, the ACTU don't go the necessary steps from attempting to demonstrate need, to demonstrating the need for new regulation. There are linkages which are necessary in respect to the ACTUs claims to evidence and merit if the claims were to even begin to be granted.
PN3670
We will argue that the linkages are not in fact validly open to be drawn in support of the ACTU claim. For example, sheet numbers of academic papers included does not equal merit nor relevance nor reliability from which conclusions can be draw. In an overall sense, our case will be that the ACTU claims are dressed up in the new language of work and family, but are in reality old-style union claims for more leave and more employee determination and regulation of, for example, working hours.
PN3671
This is self-evident from the dimensions of the union claims. They seek changes to the rights of all employees, not simply working women, or necessarily working parents. The notion of family is not restricted to issues relating to caring for babies or pre-school children. Nor is it even just about caring necessarily, or aged parents. These are union claims that would allow an employee, male or female, to assert new employment rights over hours, leave, and rosters, simply because they have a self-assessed family issue.
PN3672
We will argue, to the extent that any regulation can provide any solutions in this area. That other regulatory alternatives exist, including other areas of industrial law and existing rights and discrimination law. We will argue that discrimination law and the jurisprudence being created by discrimination law does not justify the making or codification of law as the ACTU asserts. To the extent that the evidence in this case brings before the Commission individual instances of difficulties for any employee, we will submit the tried and true maxim that hard cases make bad law, should be at the forefront of the Commission's mind.
PN3673
Moreover, we will argue that even if the Commission finds facts as asserted by the ACTU, that it should not, having regard for its statutory functions, order the relief sought, given the negative, unfair and counter-productive consequences of doing so for employers, business management and other employees. In this respect, our case will show that the ACTU claims, if granted, will mean less certainty and staffing, managing and business planning. Less efficiency, productivity and competitiveness.
PN3674
Reduced client and customer service. Increased costs of employment and training. Longer hours at work. And less family time for small business managers and owners. More disputes and more discrimination claims, as employers are forced to meet some employee demands but not others. And more hurdles and barriers to permanent employment, leading to the substitute of permanent - substitution of permanent jobs with casual and contract labour.
PN3675
[2.38pm]
PN3676
We will also highlight to the Commission that the work and family debate is not just about families and the work of employees. Most Australian employers are small and medium sized businesses, and this is particularly so in the context of award governed employees where the profile of employees is predominant, and not - this is particularly the case of those employers still covered by our award system, which are not the larger businesses that have primarily moved themselves outside of direct coverage through formalised certified agreements under the Act.
PN3677
As I think I mentioned, these employers have families too, and owners of small and medium sized businesses are particularly circumspect about this issue. The core consideration we will put in regard to this is that the more our small business people are compelled to manage their businesses so their employees can access family time, the harder and longer the managers themselves will have to work, and the less family time and leave they will get.
PN3678
In summary. If the ACTU claims were to be granted, this would be one of the largest single interventions into business management and the capacity to operate our enterprises and employ, that Australian unions have sought from an industrial tribunal using arbitration powers. We must be clear. This is a case and a set of claims of massive propositions. The evidence in this case will not and does not ultimately support the relief sought, or the inferences that the unions seek to draw from the facts.
PN3679
When a dose of evidentiary reality and academic rigour is injected into this case, the facts asserted by the ACTU start to unravel, and the relief sought cannot be justified. In addition, once a much needed dose of business reality is injected into this case, then the facts asserted by the ACTU start to unravel, and the relief sought cannot be justified.
PN3680
To ensure that work and family based regulation does not ultimately work against the employment of Australian women or of working parents, we will argue it is critical that changes to law do not restrict the responsibility of managers to operate businesses around customer needs and commercial realities.
PN3681
When each claim is looked at individually, we will argue, it fails this test in addition to its other wider merit and justification failures, especially for small and medium sized businesses. When looked at collectively, this tranche of claims present a massive threat to business activity in Australia, to business costs, and to the workload of other employees generally, and to the jobs of women and working parents.
PN3682
We will argue that loading Australian employers up with new costs or less scope to productively staff and manage their businesses will offer us no solution at all to the challenge of work/family balance. A better solution is available. It lies in the maintenance and continuance of bargaining in our workplace, and it lies in the propositions we put in this matter.
PN3683
The challenge of reconciling our working and family lives continues to be the subject of significant national community and personal discussion. Barbecues are still being stopped. That will be the case whatever the outcome of these proceedings. Most of the solutions are found in, and must be made in our workplaces, and that should be facilitated by award variations as sought by ACCI and the NFF. It will not be facilitated by new national employment regulation of the character sought by the unions in this matter.
PN3684
That is and will be the heart of the case we will put to you. If the Commission pleases.
PN3685
JUSTICE GIUDICE: Thank you, Mr Barklamb.
PN3686
MS WAWN: Thank you, your Honour. We now turn to another of the ACCI NFF witnesses, and we seek to call Mr Neil Shankly. His witness statement appears at ACCI4 at tab W, and I think it is at H. I think it is right near the end. - I think it is about the ninth yellow sheet of paper in, so near the end of that tab.
PN3687
MS WAWN: Your Honour, before I go on, perhaps I could amend that. It is actually ACCI3, as opposed to ACCI4. I do apologise for that.
PN3688
Thank you, Mr Shankly. Have you prepared a witness statement in these proceedings?---I have, yes.
PN3689
And did you bring a copy with you?---I did.
PN3690
And have you checked to see whether that is true and accurate?---It is correct.
PN3691
Do you have any amendments to that today for us?---No.
PN3692
Thank you very much, Mr Shankly.
PN3693
PN3694
MS BOWTELL: Mr Shankly, my name is Kath Bowtell, and I am just going to ask you some questions this afternoon. First of all, I want to get a bit of an idea about the nature of the catering business that you run. You mentioned in your statement that you cater to aged care facilities. Is that the core part of the business?---Yes.
PN3695
So, do you have any other contracts that provide ongoing, more predictable work?---We do. We provide catering services to Healesville RSL.
**** NEIL JAMES SHANKLY XXN MS BOWTELL
PN3696
To the RSL?---Yes.
PN3697
And what about any ad hoc sort of parties, and - I don't know a lot about the catering industry, but one-off events?---No, we tend to just focus on contracts now.
PN3698
On contracts?---Yes.
PN3699
And the contracts run for a duration of a 12 months, or 2 year or - - -?---Generally reviewed annually, yes.
PN3700
And the hours of operation that you would be engaged in the preparation and organisation of food?---I suppose in the aged care side of things, the earliest start is 6 am, and most sites finish around 6.30 to 7 pm. If you are looking at the RSL, the service finishes about 8.30, and people would be finished by about 9.30 pm.
PN3701
So are you providing catering in other premises, or do you cater in your own premises and then deliver?---No, we prepare on site, so that each site has its own commercial kitchen, and we employ a full time chef/manager to cook and prepare the meals on site.
PN3702
So at each of the aged care facilities you have a full time chef/manager?---Yes.
PN3703
And how many aged care facilities is that?---That is five.
PN3704
And then at the RSL there is one full time chef/manager as well, is there?---Yes, and two part time. One apprentice and a part time chef.
[2.46pm]
**** NEIL JAMES SHANKLY XXN MS BOWTELL
PN3705
And the RSL, that is where the people are employed under the Victorian Clubs Award, is it?---Correct.
PN3706
And the rest of your employees are employed under the - have you recently changed from a common rule award, or are you still under the - - - ?---No, we are still under the Victorian Sector H.
PN3707
Schedule 1A. Now, can you just give us a bit of a breakdown of the staffing profile. You have mentioned that there are five full-time shift managers, an apprentice chef and a part-time chef. What are the other staff? What sort of categories of staff have you got?---Okay. Tend to be permanent part-time. At the RSL we do have some casual employees, but everyone else is on permanent part-time.
PN3708
Everyone else is permanent part-time. So the only full-timers are the chef managers?---No. There are some other full-time employees, sorry, which would be kitchen assistants, and we have some people in supervisory roles.
PN3709
The chef managers, are they men or women, what is the mix if there are some of each?---No. Yes, currently they are all male.
PN3710
All male. Now, the part-timers who you say make up the majority of your staff and are mainly employed as kitchen assistants, they are engaged as regular part-time employees, are they?---Yes.
PN3711
On a permanent basis?---Yes.
PN3712
So they have access to annual leave and sick leave and carer's leave?---Correct. We do pay penalties on Saturdays and Sundays and public holidays as well.
**** NEIL JAMES SHANKLY XXN MS BOWTELL
PN3713
In terms of their rosters, are they reasonably predictable rosters, or do they vary widely from fortnight to fortnight - - - ?---Okay. Predictable rosters. People are rostered on regular days, regular hours, and they would know from week to week what their rosters are.
PN3714
And do you have an annual close-down, or are you a year round operation?---Yes, year round.
PN3715
So what proportion of your employees would be covered by the Licensed Clubs Award?---I suppose about - out of 70 to 80 people we would have about a dozen people under the licensed clubs.
PN3716
And that includes the casuals?---Yes.
PN3717
Have you had much disputation or industrial rest in your company over the last, say five to seven years?---No.
PN3718
Is there a difference between those employed under the licensed clubs and those employed in the aged care facilities, or just across the board there has been - there is no noticeable difference?---No. We - the people in the aged care facilities work very closely with the people in the care role, and they are covered by a federal award, so that we have - even though we are under the Victorian Sector H we have tried to make conditions more towards the federal side of things.
PN3719
When you are setting the rosters for the permanent part-time employees, you say that - well, explain how you go about setting - do you set the rosters?---Yes.
**** NEIL JAMES SHANKLY XXN MS BOWTELL
PN3720
You do. Okay. Can you explain how you go about setting the rosters for the permanent part-timers?---Generally - well, we have - I suppose our base need is that we have got hours of operation so that we are providing three meals a day and we have to allow preparation and cleanup time either end, so that roughly indicates the time frame of the day that we would be working to, and then as I interview staff I find out, you know, what people's preferred hours of work are. If they prefer to - you know, some people perhaps only might want 15 to 20 hours a week, other people might be looking at 30 hours, and then I suppose match that up according to people's previous experience and we formulate the roster from there. There is negotiation between staff in that a lot of people don't like working both days of the weekend, so we try to make it so that people perhaps only work the Saturday or the Sunday. Similarly, if people need a day off, then you know, we ask that people give us notice and then we can have them covered, yes, if they have got a special event or something.
PN3721
If someone's family circumstances were to change, what process would you go through in terms of - and they were to request a change in roster, how would you accommodate that?---Generally people ring me and they say that, you know, they might - for example they might not be able to work a Friday shift any longer, and that I suppose I try to get an indication whether they can't do it or whether it might be that it is just - sometimes it is only a matter of 10 or 15 minutes, in which case we can work the roster round accordingly. Or they might ask other staff members if they can swap rosters on a permanent basis, and you know, work that way.
PN3722
So you think that your employees would think that you behave reasonably in the way you try and accommodate their requests?---I would, yes.
PN3723
And you think that you behave reasonably?---Yes. We - I tend to think we have a great team of staff, we have got some fantastic people working for us, and yes, we haven't really had any issues on those lines.
PN3724
And is it good for business to have that sort of relationship - - - ?---Yes.
**** NEIL JAMES SHANKLY XXN MS BOWTELL
PN3725
- - - where you do behave reasonably towards each other?---Yes, from my point of view, if staff are happy in the workplace then I tend to get less phone calls, and it makes my day easier, and yes, I suppose staff also respect that and they do try to solve as many problems as they can on site themselves.
PN3726
You said in your statement that you have in the past granted unpaid leave when people have had the need for unpaid leave?---Yes.
PN3727
And you list in your statement, and I will tell you where it is, at paragraphs 26, 27, 28, 29, you list the kind of business factor that you would take into account in granting a longer period of unpaid leave. One of them there is at 25, plenty of notice. Is planning important?---It is, yes.
PN3728
Are there any factors that are related to the attributes of the employee that you take into account when someone makes a request? You have listed the business factors which are obviously important. In terms of the attributes of the employee, whether they have been there a long time, or what the nature of the need for the leave is, or - - - ?---Yes. Seniority, for example, if someone has worked for us for a number of years and I suppose I would give them some sort of priority. Yes, sorry, in terms of taking unpaid leave are you talking?
PN3729
In terms of taking unpaid leave, yes?---Also perhaps the sorts of job roles that they do might be an indication in terms of, you know, they - yes, if they are a key staff member, it might be, you know, something whereby the more notice we have got then the easier it is to work around.
PN3730
Now, can I ask you in relation to your experiences with parental leave, have you had any staff take parental leave over the last say five years?---Probably only ever had one staff member who did take parental leave and then came back after a couple of years.
PN3731
After a couple of years?---Yes.
**** NEIL JAMES SHANKLY XXN MS BOWTELL
PN3732
Was it a man or a woman?---A female, a lady, yes.
PN3733
And did she come back to a full-time or a part-time role?---Part-time.
PN3734
Did she leave from a full-time or a part time role?---She was part-time, but working a number of hours, probably averaging 35 hours a week, 30, 35 hours.
PN3735
So she left a substantial part-time job and she came back to the same hours, or reduced hours?---Reduced hours.
PN3736
And how long did she take off, from memory?---Approximately three years.
PN3737
Approximately three years. And you kept her job open for her, or you were just able to re-engage her?---No. I did state to her when she left that if she ever wanted work to contact us in the future, which she did.
PN3738
Have you ever had a mother and a father take leave in relation to the same child?---No.
PN3739
You say in your statement at paragraph 23 that the clause that the ACTU has put forward in relation to work part-time:
PN3740
..provides you with little guidance about how you might negotiate a return to work part-time and the allocation of hours -
PN3741
and so on. Is guidance something that is useful to small and medium-sized business operators in terms of how they apply those things?---Sorry, is in terms of - - -
**** NEIL JAMES SHANKLY XXN MS BOWTELL
PN3742
Is guidance something that is useful to you?---In terms of it being within the legislation?
PN3743
Yes?---Well, yes, it gives us something to work to, yes.
PN3744
At paragraph 7 of your statement - sorry, I will leave paragraph 7. At paragraph 9 you say that it is important that you maintain control over when and where your staff are rostered to work. If the outcome of this case is that there is an award provision which retains that control for you and that you can allocate rosters after taking into account the employees' responsibilities, you can then allocate rosters, continue to allocate rosters in accordance with your business needs, does that ameliorate some of the concerns that you have about our applications?---I suppose I would be concerned in terms of currently things can work at an informal level, and currently staff can approach myself and it has worked well on that informal basis. There is always in the back of your mind that if items re formalised that people can perhaps - yes, abuse that, if there were clauses there then somebody could actually use that as a leverage rather than negotiating on a level field.
PN3745
So if the applications left it up to the work place to decide how formal or informal the processes were, would that give you some comfort in relation to what might happen, if it was left up to the workplace to do - you like informality and the fact that where there is a high trust environment these things can be worked out at the workplace. If the outcome of this case is that the award provisions leave it entirely to the workplace to decide what processes are put in place, would that give you some comfort?---It would. If there was, however, if somebody could choose which workplace that they were to work at and say to me, for example, you know, I don't want to work here any more, but I would like to work on the other side of town, that would then also impact on those employees that are currently there, and I suppose that was a concern of - yes.
PN3746
Sure. So employees shouldn't be able to dictate to you where they work?---Well, no, because there are other people involved as well, yes.
**** NEIL JAMES SHANKLY XXN MS BOWTELL
PN3747
But if the decision is left to you after they have made the request, you give it serious consideration, you can't accommodate it, then you are more comfortable with that?---Yes.
PN3748
At paragraph 19 of your statement, and I want you to think about this in terms of someone taking parental leave for two years, and not five years, so the area where the ACTU has made an application for an employee to be able to elect to stay on parental leave for two years, after that there would be - require employer agreement, so I am talking only about 104 weeks, two years' parental leave, you say at paragraph 19 that it is entirely possible that someone would return to a completely transformed job. If someone was away for two years the job wouldn't be completely transformed, would it?---Well, the example I gave earlier of the lady who left, she was actually a waitress at the time, in the period that she left we lost - we actually left that contract, and she is now employed in administration, so yes our business had totally changed in that period and we weren't involved in aged care at all.
PN3749
You allocated her a different role, but the job of waitressing had not changed so totally in two years that it was unrecognisable from what she was doing two years earlier?---We weren't actually performing that contract any longer, so that our - - -
PN3750
So that job wasn't there for her to come back to?---No.
PN3751
No. But if the job had been there for her to come back to, if the job had - pace of change in the industry is not so great that it is a totally different job in two years, is it?---No.
PN3752
I have nothing further, thank you, Mr Shankly.
PN3753
**** NEIL JAMES SHANKLY RXN MS WAWN
PN3754
MS WAWN: Thank you, your Honour.
PN3755
Just one question to you, Mr Shankly. You talked earlier about the part-time employee that returned to work after maternity leave. Did she take 12 months - did she take maternity leave?---No, she had actually resigned her position, she left her position, in that her - she wasn't sure of what her future needs were at the time, so she left our employment and then, on the understanding that if she wanted to return to the work, to give us a call, and - yes.
PN3756
Great, thank you. That is all I have for you. Thank you, your Honour.
PN3757
PN3758
MS WAWN: Thank you, your Honour, we now call Ms Toni Riley to the stand, please. And she is at ACCI3, tab W, and witness statement G, which I think is the one directly prior to Mr Shankly's statement.
PN3759
JUSTICE GIUDICE: You heard my views on the benefits of consequential numbering of exhibits, Ms Wawn.
PN3760
PN3761
MS WAWN: Thank you, Ms Riley, just to clarify for the Bench, you have prepared a witness statement for the proceedings in this matter?---i have, yes.
PN3762
And that is a witness statement of 47 paragraphs dated 1 July 2004?---That is right.
PN3763
That is right. And is that a true and accurate record, or do you have any amendments to make to that statement?---No, that is an accurate record.
PN3764
Great, thank you very much. I have no further questions, thank you, your Honour.
PN3765
PN3766
MS BOWTELL: Thank you, your Honour.
PN3767
Ms Riley, I am Kath Bowtell, and I have got some questions for you. The - I want to get a bit of a feel for the nature of your business. You have three pharmacies, and you employ 49 staff. Can you explain the split between qualified pharmacists and pharmacy assistants, what the split is - yes?---Yes, certainly. So I have three separate pharmacies, that is correct. I have nine pharmacists. I would be the tenth. And then three couriers, an office person, and the rest are pharmacy assistants.
PN3768
Okay. And in terms of the pharmacists, we deal with them first?---Yes.
PN3769
Only because there is fewer. Are they full-time or part-time?---All bar two are full-time.
**** TONI ELIZABETH RILEY XXN MS BOWTELL
PN3770
And so two part-time. Are the full-time pharmacists men or women?---Two are men.
PN3771
Two men, two - - -?---Excuse me, I am telling a lie. Three are men.
PN3772
Three men, so we have got three men - - -?---And they are there full-time.
PN3773
And so we have got four full-time women, plus yourself; yes?---That is correct.
PN3774
Right. And at the - I am going to lose it now - the two part-time pharmacists are both women, both men, one of each?---Both women.
PN3775
And in the office, breakdown between full time and part-time?---One full-time lady.
PN3776
One full-time woman. That is it?---Yes.
PN3777
The couriers?---Are three men.
PN3778
Three men. And are they full-time or part-time?---It is sort of difficult. One is full-time, and two are part-time. So it equates to two full-time positions.
PN3779
Yes. No, that is fine. We are talking about the people rather than the equivalent?---Yes, I understand that.
PN3780
That is my question about full-time - people rather than equivalents. Yes. Now, in your retail area, the breakdown in the retail area, can you do that first of all between full-time and part-time and any casuals, if you have those?---This is a guess. Our casuals - there is only about five or six.
**** TONI ELIZABETH RILEY XXN MS BOWTELL
PN3781
Yes?---As in part-time. You know, they are not working full-time.
PN3782
As in casual - - -?---We don't - we haven't got any casual employees.
PN3783
No casual employees? Okay?---No, no, they are part-time or full-time.
PN3784
So part-time would be five to six - - -?---Yes.
PN3785
- - - employees. And are they men or women?---In the retail, they are all women.
PN3786
All women. And in - so the remaining - I can't work it out now but you have got about 30 odd full-time pharmacy assistants. And they are all women?---Yes.
PN3787
And the hours of operation of the business - businesses?---Most of them are 9.00 to 5.30. Monday to Friday, and 9.00 to 2.00 on Saturday, and not open on Sunday. And the other one - two are that. And the other one is 8.30 to 6.00 Monday to Friday - oh, no, Fridays til 9.00. Saturdays, 9.00 to 4.00. Sundays 11.00 to 3.00.
PN3788
So you have got one long opener?---Yes, one seven day.
PN3789
Okay. And are they - all three are year round operations, are they?---Oh, yes, yes.
PN3790
Now, there are regulations governing who can be employed in your businesses. Can you just explain for the Commission the regulations governing, first of all the employment of pharmacists?---Well, a pharmacy can't be open, obviously, without a pharmacist in the presence. In fact the only person who open and have keys to a pharmacy is a pharmacist. So when any of the pharmacies are open, there has got to be a pharmacist there.
**** TONI ELIZABETH RILEY XXN MS BOWTELL
PN3791
And they have to be qualified obviously?---Yes.
PN3792
Hold their registration?---Yes.
PN3793
The Pharmacy Board?---You have to be a registered pharmacist in Victoria to work in - to be pharmacist.
PN3794
And then you also have a quality accreditation. Does that impose additional requirements on the pharmacist?---All staff members in the pharmacy are involved in the quality assurance program, yes.
PN3795
But in terms of their qualifications, do they have to have additional qualifications?---No, it is a - it is a constraint within the pharmacy. Does that answer that?
PN3796
For the pharmacists?---Yes.
PN3797
The pharmacy assistants, there is also within the award and within the quality assurance program, some requirements in terms of their training?---Most definitely. We have got pharmacy assistants who are currently studying their certificate 2 and 3. We have got some ready to start certificate 4. But most of them have at least got certificate 2. Even the part-time staff.
PN3798
And there is quite significant skill shortages in the pharmacy area, particularly in rural areas, at the moment, aren't there?---You are right there, yes.
PN3799
Is that across both pharmacy - pharmacists and pharmacy assistants?---Yes, it is.
**** TONI ELIZABETH RILEY XXN MS BOWTELL
PN3800
And what do you think is driving those skill shortages, particularly for the pharmacists, perhaps if we start with them?---Considering pharmacists, I guess it is the fact that there is a number of pharmacists that are in the workforce, and that, you know, the increased hours that pharmacies are working. But it is a very hard question to give a definitive answer to.
PN3801
Have you had a history of disputation in any of your businesses, industrial disputation or unrest?---Not at all.
PN3802
Is it you who allocates the rosters?---Each of the stores has a pharmacy - a shop manager. And they do their own rosters. I sign off on them eventually, but they are done by the shop manager.
PN3803
And so staff are allocated to a particular store, are they, generally?---Yes.
PN3804
So they don't move around at all?---Not usually.
PN3805
Okay. And in allocating the rosters, you said before you don't need casual staff, so they are all entitled to annual leave and sick leave, and those sorts of things. In allocating the rosters, what factors are taken into account?---Factors we take into account when we work - allocate a roster, are the demands of the business on that time of the day. So we have records that show us, you know, the amount of customers and things like that, and history, historically. And we allocate rosters that way.
PN3806
And are any employee factors taken into account at that time, or is it all solely the needs of the business? Availability constraints and things like that? Are they taken into account?---We certainly take into account that, yes.
**** TONI ELIZABETH RILEY XXN MS BOWTELL
PN3807
And if someone's family circumstances were to change so that they were to take on a more significant caring role, perhaps an elderly relative becomes more dependent or a teenage child is in touch with the justice system, and needs some extra supervision, these things happen, how would you - would there be capacity to adjust the rosters to accommodate that?---We do that all the time. We accommodate that all the time.
PN3808
[3.12pm]
PN3809
In terms of the history of parental leave in your stores, have you had a number of people taking parental leave?---Currently I have got three people on parental leave, and over the years I have had numerous.
PN3810
Would three a year be an average, or would that be a bit higher than normal?---Lately it is.
PN3811
What is the sort of history of the duration of parental leave that you are accustomed to? Do most of your employees take the full 12 months, or do their return to work patterns vary?---I haven't ever had an employee take the full 12 months maternity - I call it maternity leave, but I suppose I should call it parental leave.
PN3812
That is all right. It is maternity - if it is the mother taking it, it is maternity leave. That is fine, yes?---Yes, So I have never had anybody take that. I have had people back as early as six weeks.
PN3813
You mention in your statement that you would be concerned about an extension of parental leave - the ACTU claim - at paragraph 11 you say:
PN3814
The ACTU claim for two years parental leave would be extremely significant.
**** TONI ELIZABETH RILEY XXN MS BOWTELL
PN3815
Now, in light of your experience, and the numerous employees who have taken maternity leave, I find it difficult to reconcile the two statements, that in your experience people do not take 12 months, yet an ability to take two years would be extremely significant. You would agree that there is a contradiction there, isn't there?---Potentially. What I am saying is that while people can take up to - you know, women can take up to 12 months leave, it is not my experience that they do do that. If for whatever reason things changed, and women were choosing to take longer, you have already mentioned how difficult, you know, workplace shortages, work shortages in our industry, it is easy to cover for a shorter period of time. As time gets longer, it really makes a huge impact and impost on the rest of the team that is working.
PN3816
So if you were covering by just re-allocating duties, I can understand that, but if you are covering by recruiting or replacement, there are up front costs associated with that which can be amortised if the replacement is there for a longer period than a shorter period, and surely that is right, is it not?---I agree with you, but it is virtually impossible in our industry to replace maternity leave positions.
PN3817
Whether they are 12 months or 2 years, or you do not - - -?---That is right.
PN3818
But you have had no experience of trying to replace for 2 years?---I have tried.
PN3819
Sorry, for 2 years, you have had no experience of trying - - -?---No.
PN3820
So it may be - it is perfectly possible that a 2 year replacement position might be more attractive to an applicant than 6 months or 12 months, is it not?---Yes, but my experience is with staff going off on maternity leave, that they apply for 12 months maternity leave and don't take it, so they give me a month's notice and come back to work earlier. It is not going to be any different, whether it is 12 months or 2 years, they can still decide to come back earlier. And I can't give that guarantee of length of work to the person I would have employed in that position. That is my concern.
**** TONI ELIZABETH RILEY XXN MS BOWTELL
PN3821
It is the predicability of the period of leave that is important?---Yes.
PN3822
You mentioned in your statement at 15, that the longer someone is away from the job, the more the competency is lost. You do not actually competency when you are away. It may be that things change, but you do not lose competency while you are away from the workforce, do you? If you can do something, you can do it?---It depends on your definition of competency. In our industry it is a knowledge basis, how competency is accounted for. It is not like riding a bike. Once you know how to ride a bike, you will always know how to ride a bike. Your knowledge base diminishes the further - you know, the longer the time you are out of the industry, things to change, I acknowledge that, and it is harder for people to come back and pick up the same role.
PN3823
As I understand it, the Pharmacy Board Regulations provide that a pharmacist can have two years off the roll, and can be readmitted to registration simply by paying their fee. That they do not have to pass any competency based assessment. After two years, they have to pass a competency based assessment, but before that time, if they are off the roll for two years, they simply pay the fee and they are back on the roll. Is that your understanding of the Pharmacy Board's registration process?---I am pretty sure that is correct.
PN3824
You say in your statement at paragraph 30 that the ACTU application for the right to request a variation in the hours times and place of work, that you are concerned that you would no longer control when you rostered staff. If the outcome of this case is that what you are required to do is balance the needs of the employee with the needs of your business, which would include obviously your legal obligation to have a trained pharmacist on site, and that if you could not meet your legal obligations you would of course not be required to grant an employee's request. Would that give you some comfort? If your business needs are paramount, at the end of the day your business needs are paramount, that must give you some comfort?---Yes, I agree with you.
**** TONI ELIZABETH RILEY XXN MS BOWTELL
PN3825
And the same would be true at paragraph 25, where you say that in making - in considering an application for unpaid leave, you have to take into account your capacity to cover the absence in fairness to your other employees. So if your capacity to take those things into account was maintained, that would give you some comfort? To take those into account, and for them to be paramount in the end - at the end of the day?---Yes. I can see it as a difficult thing to maintain, though.
PN3826
I have just got one question in relation to simultaneously - at paragraphs 40 and 41. Have you ever had two staff members take leave in respect of the same child?---No.
PN3827
JUSTICE GIUDICE: You will have two answer, because the - - -?---I said no, sorry.
PN3828
MS BOWTELL: I have nothing further. Thank you.
PN3829
JUSTICE GIUDICE: I just ask a question about employees who leave to have a baby. Are there a percentage who leave and just never come back?---In my experience, I have to say I have only had one person who did leave and not come back, but to tell the truth, she came back 12 months later - you know, 12 months after that 12 months, because her position had changed.
PN3830
So you really you have a hundred per cent retention rate after someone leaves to have a child?---That is right.
PN3831
How is business in Bendigo?---Not bad, thank you.
PN3832
Any re-examination?
**** TONI ELIZABETH RILEY XXN MS BOWTELL
PN3833
MS WAWN: No, thank you, your Honour.
PN3834
PN3835
MS WAWN: That concludes the witness evidence for today. I thought I might provide the bench information in respect to tomorrow's proceedings, and then refer to Mr Barklamb to go through the issues of the documents for Murray, and also the evidence of Mitchell. In terms of programming, and in terms of people's availability, Mr John Byrne, as per the original programming, will be appearing as an ACCI and NFF witness first thing in the morning, to be followed by Dr Murray. And then late in the afternoon the two AIG witnesses of Andrew Israel and Chrissy Maloney.
PN3836
We believe, given the time needed for Dr Murray, that would very much take up the proceedings of all of Tuesday. Then I think on Wednesday there is the evidence of Cheryl Wollard, and that will be followed by the opening of AIG. So that would then conclude the evidence required in Melbourne, and then proceed to Sydney. I will now refer to Mr Barklamb.
PN3837
JUSTICE GIUDICE: Yes, thank you.
PN3838
MR BARKLAMB: Thank you, your Honours, Commissioner. We have had some exchange with the bench about the material which was provided to Dr Murray the other day, and the form and useability of it. I am pleased to be able to say that in the wake of that, we have been able to reorganise the materials for her in a numbered form. So the difficulty we got into with alphabeticising it, which I must admit was not one of my better ideas, will not now occur with her.
PN3839
We have put in front of that an index to the materials which clearly indicates their status as to whether they are materials that were directly cited by her, or new factual materials of the nature which one might otherwise hand to a witness during the course of a case regarding something they are saying.
PN3840
I can indicate that I am actively working on - and I do apologise, I do not have one for my colleagues at the moment, because we are running short of the folders, but I will have tomorrow morning, in a numbered form. And I will certainly show them this before we leave. I might indicate that I am in the process of re-examining Dr Murray's evidence from Friday, and considering the questions. So I am working on truncating elements of what I have done - what I was intending to do for things she has already answered.
PN3841
So it may be that we are not ultimately taken to each and every source that is in there that I initially apprehended as we go. Particularly, we dealt with on Friday a number of elements and parts of her report, and I went back and re-read it on the weekend. So I may not need to use all of the material, but I certainly did not want to remove any of it, having done so.
PN3842
The second is the cross-examination of Professor Mitchell on Thursday in Sydney. Commissioner Cribb I think indicated that she would be assisted by seeing this material early, and I think that is a very prudent course. What this material is, is a number of the sources which the Professor has directly relied on to compile his costing. The only of the sources that is not directly cited by him is Blank and Freeman. I apologise, that is one of the things relied upon to make - it is one of the sources to be relied upon primarily by one of his sources. And I will indicate that at the time we move to the examination. I cannot tell you, I am afraid, now.
PN3843
That again has been organised sequentially and numerically, and should make, we hope, the material fairly easy to follow with him on the Thursday and Friday in Sydney.
PN3844
With that, your Honour, I will resume my seat.
PN3845
JUSTICE GIUDICE: Yes. Has anybody got any ideas about what we do now?
PN3846
MS BOWTELL: Your Honour, I have no ideas about what we do now, except I have got one problem with this material. The paper provided at - I have got absolutely no idea where it is provided. It is - - -
PN3847
JUSTICE GIUDICE: Ms Bowtell, I am wondering whether it might not be appropriate if you had a look at this material, now that you have got it all in the form which apparently it is going to be used, and take what instructions you need to in relation to the witnesses. And then perhaps you can address us in the morning, if there are any problems.
PN3848
MS BOWTELL: Yes, certainly that is fine. That is probably the best way forward. Yes, I will do that, your Honour.
PN3849
JUSTICE GIUDICE: Yes. And perhaps if there are some problems you foresee, you might let Mr Barklamb know as soon as possible, so that we can dispose of any preliminary issues, and get to the witnesses as quickly as possible.
PN3850
MS BOWTELL: Certainly. Yes, thank you, your Honour.
PN3851
JUSTICE GIUDICE: Is there anything else this afternoon? In that event - yes Ms Warn?
PN3852
MS WAWN: Your Honour, just unfortunately with the changes, we were unable to provide additional witnesses this afternoon, due to their availability. So we did try to get a few more today, which were available through Mr Stewart, but Mr Byrne is unable to attend until tomorrow, and I think that is likewise for the remaining AIG witnesses.
PN3853
JUSTICE GIUDICE: Well, we seem to be slightly ahead of schedule for this week anyway.
PN3854
MS WAWN: Surprisingly so, yes.
PN3855
JUSTICE GIUDICE: All right. We will adjourn now until 10 o'clock in the morning.
ADJOURNED UNTIL TUESDAY, 7 SEPTEMBER 2004 [3.28pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
CATHERINE McANDA, SWORN PN3135
EXAMINATION-IN-CHIEF BY MS BOWTELL PN3135
CROSS-EXAMINATION BY MS WAWN PN3146
WITNESS WITHDREW PN3181
EXHIBIT #ACCI1 VOLUME 1 INCLUDING THREE WITNESS STATEMENTS PN3238
EXHIBIT #ACCI2 VOLUME 2 SUPPORTING MATERIAL PN3238
EXHIBIT #ACCI3 SUBMISSIONS OF ACCI AND NFF LODGED ON 2 JULY 2004 PN3239
EXHIBIT #ACCI4 ADDITIONAL ATTACHMENT MATERIALS LODGED ON 19 JULY 2004 PN3242
EXHIBIT #ACCI5 WITNESS STATEMENT OF JUDY BARNSBY DATED 22 JULY 2004 PN3247
EXHIBIT #ACCI6 SET OF CONTENTIONS FILED BY ACCI ON 17 AUGUST IN RESPONSE TO WOMENS' ELECTORAL LOBBY CONTENTIONS PN3258
MARGARET JOAN PORRITT, SWORN PN3264
EXAMINATION-IN-CHIEF BY MS WAWN PN3264
CROSS-EXAMINATION BY MS BOWTELL PN3275
WITNESS WITHDREW PN3342
EXHIBIT #AIG3 OUTLINE OF CONTENTIONS DATED APRIL 2004 PN3346
EXHIBIT #AIG4 VOLUME OF SUPPORTING MATERIALS PN3347
EXHIBIT #AIG5 WITNESS STATEMENTS JULY 2004 PN3353
EXHIBIT #AIG6 SUPPORTING MATERIAL JULY 2004 PN3353
EXHIBIT #AIG7 OUTLINE OF CONTENTIONS IN REPLY OF JULY 2004 PN3354
JO FALLSHAW BISHOP, SWORN PN3358
EXAMINATION-IN-CHIEF BY MR STEWART PN3358
CROSS-EXAMINATION BY MS BOWTELL PN3368
RE-EXAMINATION BY MR STEWART PN3508
WITNESS WITHDREW PN3515
DIANNE LOUISE TAYLOR, SWORN PN3517
EXAMINATION-IN-CHIEF BY MR STEWART PN3517
CROSS-EXAMINATION BY MS BOWTELL PN3523
RE-EXAMINATION BY MR STEWART PN3583
WITNESS WITHDREW PN3596
EXHIBIT #AIG8 E-MAIL CORRESPONDENCE PN3597
NEIL JAMES SHANKLY, SWORN PN3687
EXAMINATION-IN-CHIEF BY MS WAWN PN3687
CROSS-EXAMINATION BY MS BOWTELL PN3694
RE-EXAMINATION BY MS WAWN PN3754
WITNESS WITHDREW PN3758
TONI ELIZABETH RILEY, SWORN PN3761
EXAMINATION-IN-CHIEF BY MS WAWN PN3761
CROSS-EXAMINATION BY MS BOWTELL PN3766
WITNESS WITHDREW PN3835
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