C2003/4198, Transcript of Proceedings [2004] AIRCTrans 5043 (23 December 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 9507
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

9.36 AM WEDNESDAY, 15 DECEMBER 2004

Continued from 14.12.04

PN8104

VICE PRESIDENT ROSS: Mr Barklamb, just before you get into your stride can I raise something that speaking for myself I am having a little trouble following and I would be assisted, if it can be done without too much difficulty, by a document perhaps prepared in collaboration with the others that sets out the claims that each party is now prosecuting, and that would also link up with, I think, the issue that was raised with Ms Bowtell about the consent arrangement and I think something was going to be done in relation to that as well. But it is just there has been a shift over time and I recognise - readily accept that the various parties have identified what the changes are.

PN8105

I just - in reviewing the material I don't want to think you are pursuing something you might not be and then spend a lot of time analysing it only to discover that it is not sought now. Can you give some thought to that and perhaps discuss with the others and if it can be done easily, then let me know.

PN8106

MR BARKLAMB: Vice President, we will talk with the others in the break this morning about that. We had clearly apprehended ourselves before commencing this closing week that there were a large number of claims and there had been some movement in them, so we certainly think you would be assisted by that type of stocktake at the end of the matter.

PN8107

VICE PRESIDENT ROSS: Thank you

PN8108

MR BARKLAMB: Thank you.

PN8109

JUSTICE GIUDICE: Yes, well, I second that suggestion.

PN8110

MR BARKLAMB: Thank you, your Honour. Before I resume this morning I want to briefly take stock of where we are going in the completion of our submissions today. We commenced yesterday with an examination of the core evidence the ACTU relied upon to make its case. We did this - we have placed this case, we say, in its proper statutory context. We have indicated that the ACTU is wrong in relying on any failure in bargaining the key ACTU contention, and we have also indicated that bargaining can and is delivering outcomes sought to be addressed in this case.

PN8111

We have indicated in some detail why you can't conclude the ACTUs claims can be delivered at low or no cost and I am part way through showing you we say the ACTU claims will not deliver any corresponding benefits to business, which further support the granting of the ACTU claims, another ACTU contention. I am then going to complete addressing the remaining matters of generality that the ACTU argues supports its claims. That is the bulk of the matters addressed in ACCI7 and showing you that the ACTUs generalised propositions don't stand.

PN8112

That will include going to the proper relevance of childcare in this matter, showing you that international models and approaches do not provide the support to the ACTU as asserted, showing you the proper relevance of discrimination law in this matter and again that it doesn't support the ACTU claims as asserted, and showing you that generalised labour market considerations, including issues such as fertility, stress and childhood development do not support the particular prescription sought by the ACTU as is asserted. I will then complete the matters included in ACCI7 by talking to you briefly on ambit. Then we will move the specific ACTU and ACCI claims that are addressed in ACCI8.

PN8113

There will be an emphasis not so much on restating arguments in detail, but on responding to what you have been told in the matter and on the core conclusions we say you should reach. Before moving into the completion of our analysis and response to business benefits, which was of its nature fairly detailed and in some contrast to some of the other things I will tell you, I had cause last night to look again at the transcript of Monday and to consider what was told to you yesterday by the ACTU and other parties, and doing so to reread ACCI 7 and 8, and to make a general comment, and one we will return to, you were, as is perhaps correct in a closing, told nothing new by the ACTU in closing its case.

PN8114

You were told nothing new and the argument was not advanced. We say as a general comment we have comprehensively dealt with each of the matters you were told in closing this case by the ACTU already and in writing, and we commend the detail of ACCI7 and 8 to you. I was part way through the relevance of business benefits and I had just indicated to you that we address in part 2 of section 11 of our closing submissions in detail the purported business benefits and rebut those. I talk to you about the research being secondary. That the research, fundamentally, reports on agreed rather than imposed approaches, so it is an evaluation of the benefits of something that is not actually before you from the ACTU. The research also stands for the capacity of companies to make an evaluation, to look at particular measures and to evaluate them based on their own commercial frameworks.

[9.41am]

PN8115

The ACTU also, in presenting its case, glosses over conditionality of the research sites and the benefits being weighed against costs, being weighed against detriments and difficulties. We also say that a lot of this benefits research - and you will recall yesterday that I used the word, proselytising in nature. It has a point to provide and a point to advance. Much of this research and commentary in support of business benefits emphasises unduly, we say, the soft and unmeasurable outcomes that don't stand up to rigorous analysis or quantification, positive company image, employee morale, commitment and the like.

PN8116

They are intangibles, they are hard to measure. We also say the ACTU ignores the proper extent to which the research brings forward, actually does acknowledge costs to business. We mention that, for example, at paragraph 11.32. And also the very research that the ACTU relies upon highlights the extent to which the cost benefit analysis will be different in businesses with different sizes. My friend took you to the work of Dex and Scheibl in closing and said that we had failed to acknowledge that there were benefits to small business countervailing costs.

PN8117

We would encourage the Commission to look at that extract of Dex and Scheibl and indeed the research in full to understand what they were saying. Dex and Scheibl may have been acknowledging that a number of the small businesses - or small business case studies they looked at did generate business benefits but they were also saying that the costs were far greater for small businesses than they were for big businesses. I will come back to Dex and Scheibl slightly more in a second. In addition, fundamentally, much of the research relied upon for the business benefits thesis concerns employment which is entirely distinguishable from the Australian award system.

PN8118

Layers, accountants; management consultants, the evaluations simply aren't comparable. We also say that these are in substantial part evaluations of single benefits or initiatives. When you read Dex and Scheibl - or a bank did this single thing here, how a company did this single thing there and got increases - benefits in terms of reduced absenteeism. The ACTU would have you accept a package of changes all of which we say carry detriments. There are also issues of data limitations and cautions. There is an issue of the representativeness. We don't know in relation to any of this research how validly or exhaustively the authors sought to analyse business benefits from the range of work and family initiatives that were taken.

PN8119

There may be an apprehension, we suggest, that this is scraping the cream off the top to try and make a representative case. And there is also, fundamentally, a failure to isolate the extent to which the benefits reported on are actually a function of work and family change. If I take a work and family initiative as part of a broad tranche of HR strategies, and indeed probably cultural and commercial improvement within a firm, how can I then say it was the HR strategy that yielded productivity and improvement.

PN8120

When I have started five horses, how can I say that one particular horse was the one that got us over the line. We also address, we say, in section 7 of our closing submission at ACCI7 in more detail issues such as contentions on recruitment, attraction, retention turnover, etcetera. Before going any further we ask you - we ask the question, what is to be preferred. The ACTU and its witnesses are telling you a story of business benefits. However, it also flies directly in the face of the reportage of all the employer witnesses in this case.

PN8121

We say there is a weight of consistent employer evidence that the business benefits thesis does not fly in the Australian workplace. Far from there being any inherent basis to conclude in favour of business benefits the opposite must be found to be the case.

[9.46am]

PN8122

There are real and necessary costs inherent in the ACTUs particular models. The costs in inflexibilities are significant and a constant picture of detriment and damage appears to have been told to you across industries and across businesses of different sizes. So what is the Commission to make, therefore, of any witnesses' acknowledgment that some of the approaches under consideration in this case may be of some benefit to them? Once again caution should be exercised in any extrapolation and in properly considering the extent of contingency to the particular circumstances concerned. For all the reasons just outlined the Commission should eschew any conclusion from a very limited range of witness material that some companies may have assessed net benefit for some employees in some circumstances of particular measures, does not mean all can.

PN8123

There is also the case that companies may have had the right to make an assessment of business benefits. There is also the extent to which any company making such a suggestion may be speaking at large, yes, we have some benefits from being able to be flexible with hours in some circumstances with our employees. That is not positive evidence in favour of the ACTUs particular model. It may well have been evidence on a practical day to day common sense problem-solving approach that is not bureaucratic, is not detailed and is not time-consuming. Also, of course, the clear evidence in this matter is that the ACCI applications offer a much better vehicle for business benefits.

PN8124

They allow companies to assess the benefits - and I will get to our applications in some detail when we move into ACCI8 - they allow companies to make assessments to genuinely innovate, in agreement with their employees, in regard to the issues canvassed in this matter. Your Honours, a number of witnesses in this case have referred to the Lovell CIPD research in the UK and I think I indicated yesterday that we hold that research to be of very, very little determinative value to you. I think it is well understood the basis on which we object to that research, so I really only want to make a couple of summary points on it.

PN8125

There are two iterations of the research. There is the initial one that was on the mere doorstep of the new rights in the UK commencing and then there is a later one. The later one should be looked at because it tells you methodologically and in regard to sample - it gives you proper information as to the methodology and sample of the Lovell CIPD population than the first one. There is a qualitative difference in the explanations of the methodology. Now, our apprehension is it is essentially the same survey, but the second one elucidates the first.

PN8126

That said, the Lovell CIPD survey reports a response rate that is simply unacceptable statistically. The Commission will be well aware of what the ACTU in other proceedings tells you about response rates, what its expert in the wages case, Professor Gordon, will tell you about not being able to rely on information of response rates below 30 per cent; this thing doesn't get much beyond 10. The Lovell CIPD population is unduly skewed to large businesses and it is unduly skewed to the public sector. We also say that the Lovell CIPD research is not experiential, that a number of people are reporting on the UK changes without having them initiated in their workplace.

PN8127

VICE PRESIDENT ROSS: Was any testing done of non-response bias in the survey?

PN8128

MR BARKLAMB: No party has produced anything further on Lovell to go behind it, apart from our analysis. The only two pieces of information that have been brought forward are Lovell 1 and 2 effectively, the two iterations of their survey by any party.

PN8129

VICE PRESIDENT ROSS: There is no mention in those of any testing for non-response bias?

PN8130

MR BARKLAMB: No, there isn't, your Honour, and I - this is our apprehension, the Lovell methodology just doesn't go into that type of rigour. There is also an undue skew to the public sector in the responses to the Lovell CIPD surveys and there are clear timing effects. As I said, this is on the mere doorstep of the UK changes, it can't be a reliable picture of what is going to happen there. And in support of that = and I am somewhat moving from my notes for a second - but you will recall that I took Professor Mitchell to the work of Waldfogel in the US regarding the US Family and Medical Leave Act.

PN8131

What the Waldfogel research showed is that, in fact, employer reportage of business detriment increased as the system matured. So the very initial reportage on the US Family and Medical Leave Act, some two years after its introduction, recorded a far more positive picture of employer capacity to comply than the latter five year assessment. What that shows you is that the first blush type analysis, which the Lovell CIPD material clearly is, must be questioned in the light of later analysis.

PN8132

One final thing before I go into Dex and Scheibl, the ACTU raised UK DTI material yesterday as evidence in support of negligible costs and ultimate benefit to business of its claims. And in fact just before I go on to that that is not a point to be glossed over. There is a question about whether we are talking about negligible cost or benefit to business. The two do seem to blur together in much of this material. We rely on part 4 of section 111 of our closing submission. Crucially, if we have the correct source which is that, we understand, mentioned in ACTU3 at - it must be paragraphs, I do apologise - 326 to 342. The ACTU itself outlined what was examined in this study, emergency leave, parental leave or below our existing standards.

[9.52am]

PN8133

So we say that to the extent there is an examination of UK research showing negligible business detriment or net business benefit that is of interventions which are not under consideration in this matter. Matters that either form part of our existing safety net are not part of the claims in this matter, or indeed, have been dealt with by conciliation in this matter. Again, to go back to what I said in opening, this is the nomenclature or typology error. It is assuming because a set of business - of work and family changes yield one set of outcomes in one set of circumstances, that because we are attaching the same label to something else, it must yield the same set of circumstances and outcomes in the Australian context.

PN8134

In support of its business benefits thesis the ACTU actually went to a second piece of research and that is the final thing I want to say on this and that is the research of Dex and Scheibl which the ACTU emphasised in support of its argument on positive business outcomes which is addressed at paragraph 6.21 of the - of ACTU12 and was put yesterday. We say you have heard nothing to counteract or contradict our extensive examination and qualification of this material in section 11 of our final submissions at ACCI7.

PN8135

Now, the ACTU sought to correct us only on Dex and Scheibl in regard to small business and I have made that point earlier that we say the small business point stands. We say the material handed to you yesterday - and there was an extract that was handed up - doesn't fault our general conclusion in regard to small business. There may be benefits in some cases but they clearly say - more clearly say, indeed, that there will be disadvantages and disincentives. However, more fundamentally this is a five year old secondary analysis of even older case studies in the UK and US.

PN8136

The primary material examined is not all from the private sector. It examines, for example, workplace change in major regional utilities within the UK. Large company data is primarily reported on. Lots of examples are from non profit and Government organisations. It reports on multiple self assessments of business benefits. It doesn't indicate, for example, the consistency of methodology. It is also not clear, as I have said, that all the initiatives being examined are those that are under consideration here. It includes, as I think I have already mentioned, the return to work bonus. It includes analysis of the benefits of paid child care.

PN8137

Dex and Scheibl also clearly apprehend and indicate levels of cost increase - administrative cost increase which are not properly taken into account by the ACTU. And I wish to make a couple of selective quotes from Dex and Scheibl. Boyer - this is on page 271 of ACTU - pardon me, your Honour. 6C, page 271. One of the researchers, Boyer, found that:

PN8138

Employers viewed part time managers as more committed and productive than full time counterparts.

PN8139

So, firstly, we are talking about managers, not part timers, generally. However, the same employers were concerned that part time working increased administrative costs - 92 per cent of respondents - and benefit costs, although it is unclear what that is, 89 per cent of respondents. They thought that issues of promotion became very complex with moves into part time work, 84 per cent. And 81 per cent reported that day to day management of the part time work arrangement became more difficult. Concern was also expressed regarding the lack of continuity and limits placed on task completion.

PN8140

Precisely the matters that our witnesses apprehend and have difficulties with in regard to part time work. There is also a clear issue of family friendly - they report on the work of Forth et al at page 275 on British employers and I merely take you to the following quote:]

PN8141

The main disadvantage is related to increased administration and having to cope with staff absences.

PN8142

Your Honour, that is rather disjointed but I did want to take you to those matters to show you that the ACTUs analysis of Dex v Scheibl, and of business benefits generally, doesn't present, we say, the full picture of what actually comes out of the research. One of the other core considerations in this matter is childcare. It is one of the core considerations, we say, to come through the evidence in this matter, be it from employees, employers or experts.

PN8143

We say the evidence goes to the centrality of childcare availability in determining the capacity of parents to balance their work and caring. The ACTU relies on changes in childcare to support its claims. We argue there is significant evidence that employers are already providing assistance to employees in minimising the pressures between childcare issues and employees' work commitments. This is the evidence, we say, coming overwhelmingly from the employee witnesses and the employer witnesses in this case.

PN8144

The actions of employers or the interaction between employers and employees on day to day accommodations and day to day management of this issue, may not be exactly what employees want every time, but accommodations are being reached without the ACTUs proposed approach. Ms Keen, one of the ACTU witnesses, for example, got the chance to be highly selective in her choice of childcare arrangements successfully with her employer. Ms McAnda was able to secure agreed approaches, even through a passage of difficulties, in accessing the childcare she wanted; there were others.

PN8145

We also argue at a more fundamental level considerations such as the provision of child care, and that is for governments and community, not employers, there is no valid nexus, we say, between childcare problems and the employment relationship. The ACTS has not made that nexus out. They simply haven't shown a proper role for employers in meeting perceived inadequacies in care. We argue the ACTUs claims don't really get a long way beyond employee preference. They prove an unmet level of demand for childcare in the community. But they really do nothing more than to prove that employees may want specific accommodations in their work and have - or have a preference for them, but they fail to show that employees can't already secure these accommodations.

PN8146

We also say that childcare was a major issue in play in the recent Federal election. Initiatives have been taken in a range of childcare areas in the 2004-2005 budgetary process and this issue was, as we say, the subject of quite detailed consideration in the election and the government was elected with a clear platform to make changes. So the ACTU is saying there is a deficiency in childcare. To the extent that is correct the government has an intention to address that deficiency. Quite significant moneys were promised and a policy choice was effectively made by the electorate.

PN8147

VICE PRESIDENT ROSS: That is in relation to the childcare benefit, isn't it?

PN8148

MR BARKLAMB: I understood, your Honour, there was also significant discussion of funding provision for childcare places and the availability of places as well.

PN8149

VICE PRESIDENT ROSS: After school care or centre based care?

PN8150

JUSTICE GIUDICE: Well, what is it, Mr Barklamb, I think that is the question.

PN8151

VICE PRESIDENT ROSS: Yes.

PN8152

JUSTICE GIUDICE: Mr Cole might be able to enlighten us in due course.

PN8153

MR BARKLAMB: We might come back to that in due course and perhaps Mr Cole can enlighten you. But the point we say is that it was in play as a policy issue. A policy choice was made and reforms were due to be made, anyway, proceeding the election to address precisely the issues the ACTU brings to you. We say the choice - these policy changes should be allowed to run their course, be implemented and have their effect. The ACTU said at certain points that its caring based rationale would exist even if there was a surplus available - a surplus of available caring opportunities, and they have said that again in closing. We don't understand what that means. I am - we are none the wiser ultimately as to what the ACTU is trying to tell you here.

PN8154

The only thing we can say is that it looks like showing you that this doesn't get anything - anywhere beyond employee demand and it shows a fairly one sided conception to the ACTUs claims which would be inconsistent with the mutuality emphasised in the Act. I do have that childcare information, your Honour, and I am told it is at 6.22 of ACCI7 and it is also at attachment Q of our outline of reply contentions from July, although that, of course, would be the information that proceeded the further Federal election announcements. That is certainly about assistance in regard to finance, as your Honour's question was. There were also 44,000 more childcare places announced at that time, so that is a fairly significant change to go back to what I was just saying.

PN8155

VICE PRESIDENT ROSS: I am just having trouble identifying that page, Mr Barklamb. What - - -

PN8156

MR BARKLAMB: It was attachment Q to our reply submission, your Honour, which was - - -

PN8157

VICE PRESIDENT ROSS: I thought you said ACCI7.

PN8158

MR BOWTELL: I apologise. At ACCI7 it is paragraph 6.22.

PN8159

VICE PRESIDENT ROSS: Yes, I see it.

PN8160

MR BARKLAMB: But it is also - more detailed information is also provided at attachment Q to exhibit ACCI3.

PN8161

VICE PRESIDENT ROSS: Thank you. Perhaps this is more a question for Mr Cole, but I have always been curious about policy announcements that increase the number of places of childcare. I am not sure how, given that centre-based care is now predominantly in the private sector, how one goes about doing that, but in any event thank you for that, Mr Barklamb.

PN8162

MR BARKLAMB: The ACTU also tells you that you should, and I quote, "take the world as you find it" in regard to childcare. Well, without going into it any further we say the world is set to change so we can't take it exactly as we find it today. But we also say this is not a recipe for seeking to counteract or second guess or somehow obviate changes in government policy by imposing obligations on employers, which is the course the ACTU would have you take in regard to childcare. We note, for example, that the Commission has consistently refused to plug gaps or to counteract government changes in tax policy.

PN8163

The Commission has rightly, we say, operated for some decades on the basis that the government sets taxation parameters and the Commission works within those, and we say this is a directly analogous situation. With that, your Honour, I would like to move on to the status and relevance of international research and materials that have been introduced before you in this case, and its relevance to the actual determinations you must reach. This arises for three reasons. The ACTU itself directly relies on international research materials. Folders ACTU6A to C are dotted with international research.

PN8164

They also rely on the research of Dr Murray to argue particular international trends which they say favour its claims and the Commission should follow. And they also rely quite directly on specific international examples and developments in support of their claims, including most notoriously that from the UK in 2003. However, that said, in examining in ACTU12 and what we heard on Monday, it is not actually clear how much ultimate reliance the ACTU places on the work of Dr Murray in the international material.

PN8165

That said, we say that the ACTU should not, and does not, gain the ultimate support from the international material that it claims it does and that it further, and more importantly, the international material doesn't assist you in the decisions you must make in this matter. And we go in some detail in section 7 of exhibit ACCI7 to the reasons why that is the case. I just want to make a key set of summary points and I will return to a couple of particular international matters arising in relation to specific claims. We say that the - - -

PN8166

JUSTICE GIUDICE: While you are on the international front, 93A - - -

PN8167

MR BARKLAMB: Yes, your Honour.

PN8168

JUSTICE GIUDICE: - - - uses the expression "should" - or the term "should". I am sorry, it uses the term "must":

PN8169

The Commission must take account...

PN8170

Faced with the material in this case do you say that we can best take account of the principles in the convention by doing nothing?

PN8171

MR BARKLAMB: The principles - yes. The principles in the convention demand measures consistent with national laws and structures. In some countries that will be direct legislation by parliament, particular rights and outcomes. In other collective bargaining systems it will be rights and outcomes being set by social partners at national and major level dialogue. In the EU - many countries in the EU, this may be secured at the super and national level through EU constructs and subsequent national implementation. In pre bargaining Australia this may have been secured through the award system.

PN8172

However, Australia's international compliance with its obligations is now secured under the Workplace Relations Act as it operates and it is quite valid for the Commission to conclude that the outcomes talked about, to the extent there are specific outcomes talked about in 93A, are being delivered through the schema of the Act operating as it is envisaged. The Commission has before it, we say, evidence that workplace bargaining - and you will recall yesterday I used that constructive capital B bargaining and practical day to day bargaining - the combination of those two things is certainly meeting, we say, the outcomes in 93A.

PN8173

I say something else about this at this point. Australia has never been subject to any sanction or complaint under these materials to our knowledge. The ILO assesses us as being in full compliance.

PN8174

JUSTICE GIUDICE: But, Mr Barklamb, what have sanctions got to do with it? I am talking about the obligation on the Commission.

PN8175

MR BARKLAMB: Yes, but I am indicating that - - -

PN8176

JUSTICE GIUDICE: I am asking whether ACCI submits that that obligation can be discharged in light of all the evidence in this case by simply rejecting all the applications?

PN8177

MR BARKLAMB: Well, we certainly - - -

PN8178

JUSTICE GIUDICE: It is a fairly simple question.

PN8179

MR BARKLAMB: Yes, certainly, your Honour. We certainly don't say that is the case. We say that we have a superior set of applications that will - - -

PN8180

JUSTICE GIUDICE: I thought they were alternatives to doing nothing. I thought your primary position was we should do nothing.

PN8181

MR BARKLAMB: No, your Honour, I apologise if that hasn't been clear. Our primary position is that you give effect to our applications.

PN8182

JUSTICE GIUDICE: I see.

PN8183

MR BARKLAMB: And that we say that by doing so you will meet and secure, to the extent that it is relevant, furthering the principles that are there.

PN8184

JUSTICE GIUDICE: I follow. I misunderstood your submission yesterday about that.

PN8185

MR BARKLAMB: Yes, I do apologise, for that, your Honour.

PN8186

JUSTICE GIUDICE: Yes, yes. No, there is no need for an apology. That explains the position.

PN8187

MR BARKLAMB: If I may come back a little further to the relevance of international standards. There is also the issue that - yes. I will perhaps come back and spend a little more time on international standards shortly. We say the ACTU makes fairly partial and selective use of international material in advancing its claim. We say there is evidence, for example, and I have already talked about the Waldfogel evidence, of changes in the US regulatory system as it matures providing fewer and fewer employers with an ease of compliance. We say there are also, for example, from the overseas literature, clear recognition of the negative impacts of regulation on employers in this area.

PN8188

That, for example, is the research of Baum - B-a-u-m - cited by Professor Mitchell. There is also - and I will come to this under parental leave - you were taken by my colleague to a table at page 150 of ACTU12 - now, I will come to this in due course, but we say that it illustrative, and the analysis that was put to you yesterday, is illustrative of the selectivity that pervades the international presentation of this case by the ACTU.

PN8189

And indeed, by Dr Murray. We say the international examples, properly examined, do not support the ACTU claim. There are crucial differences. We will come to the differences between the UK right to request changes in hours model and the ACTUs completely and qualitatively different proposal shortly. But also, for example, the ACTU relies on outcomes under the US Family and Medical Leave Act. Well, that Act is restricted to employers, 50 or more employees. The UK right to request changes in hours, which I will come to further, also applies only for children and for disabled children, not to the scope of persons the ACTU would you apply its distortion of this model to.

[10.13am]

PN8190

There is also - you were taken yesterday to the Netherlands and the UK and Germany, I think, in regard to a capacity to change the length of the working week. It was, effectively, as I understood it, a claim of international support for part time work - a right to part time work. When you looked at that, for example, that was subject to a minimum number of employees in the enterprise. 10 employees in one of the countries and 15 in another. The other thing to note about the international material is the ACTU has been quite uncritical in its examination of it.

PN8191

There is no need to go to this in detail but we took Dr Murray, in cross-examination, to a number of her sources and we showed things like small samples, flawed methodology based on industry responses to matters that can't be compared to the award populations under consideration in this matter. I have already talked about the doctors, the lawyers, the highly paid people in particular economies. And there is also in the UK reportage that preceded the commencement of the changes they purported to report on. Hardly reliable information.

PN8192

We also say in direct contradiction of the evidence of Dr Murray that no trend can properly be discerned on the international level. We spent some time rebutting Dr Murray in our closing submission from page 7-41. We commend the detail of this to you. In summary, Dr Murray looked at too few countries to prove any international trend to you. She looked at eight countries. That can't prove anything. Her countries constitute no form of representative sample of the world nor, we say, necessarily reliable comparative to Australia. She looked only to the EU and as we find yesterday in relation to the parental leave table on page 150 of CTU12, only just some countries from the EU.

PN8193

Outcomes varied even within the hand selected set of countries Dr Murray brought before you. There was diversity even within the eight that, we say, precludes the finding of a trend. There is also the question of the overall relevance of any trend argument, even if it were there. And we do say that Australia doesn't slavishly follow international trends. We may, perhaps, have been a bit too extreme in the language we are using, seven - paragraph 172(c) of section 7, but we say it is not necessary the case that an international trend, is of itself, determinative of action for Australia.

PN8194

We also say that Dr Murray's key thesis about a trend towards legal interventionism is particularly irrelevant. We say that really doesn't get beyond being a fairly obscure academic theory. It is no more significant a conclusion that the mere fact that one particular country that doesn't usually do something has done something. That is all that the theory really tells us. Of course the UK approach in more recent years is guided by its growing integration into Europe. There is the politics of the UK, and I probably don't need to go into that much, but there may be a political imperative for action. There is a different Government in power than once was there.

PN8195

JUSTICE GIUDICE: Are those considerations relevant?

PN8196

MR BARKLAMB: Well, Dr Murray said to the Commission, your Honour - put to the Commission, your Honour, that it is relevant that the UK, a non interventionalist legal state, under her characterisation, has recently changed to make interventions.

PN8197

JUSTICE GIUDICE: The reason they have done that, is it relevant?

PN8198

MR BARKLAMB: Well, I would say that that is directly relevant. She is saying that it is material that they have chosen to make - an intervention, this work and family area.

PN8199

JUSTICE GIUDICE: Would we disregard legislative developments in other areas because that occurred for a particular reason?

PN8200

MR BARKLAMB: She wasn't supporting, your Honour, the substance of the development, she was talking about the mere fact that the UK had chosen to legislate; not leave it to the common law or collective bargaining.

PN8201

JUSTICE GIUDICE: Yes, I am just questioning what the relevance of that - of your submission is to our task.

PN8202

MR BARKLAMB: We are suggesting, perhaps, that the development of any law need be seen in its national context and we are supplying reasons to you that could not be germane. We are saying that there were reasons for the UK developments that could not be germane to your considerations.

PN8203

JUSTICE GIUDICE: Because we are not under pressure from the EU?

PN8204

MR BARKLAMB: Nor from the UKTUC, to be frank. We also say - we will take you in detail on this, to parental leave, but the actual trend, we say, in numerical terms in regard to a number of the claims is actually away from the ACTU claims. The ACTU would actually have Australia move ahead of international practice directly contrary to what we say you were told yesterday. The claims would see us, far from follow a trend or move to consistency, they would see us become an outlier. The ACTU also in international terms relies on changes that are below the safety net as it is and certainly well below the safety net as it is claimed to be.

PN8205

What, for example, could a UK change from 25 to 37 weeks parental leave tell us about a change from 52 to 104 weeks. What can the US, going from nought weeks to 12 weeks tell us about us going from 52 to 104. Also - and we need spend little time with this - we also must be careful not to blithely assume we can sever or transplant particular national approaches from their sociological, and indeed we have just been through this, their political context. This is not a minor point. We are saying - not saying that international material can never be relevant but consideration need be taken of the context in which it arises.

PN8206

Also, as we have said, there is the nomenclature typology area. Much of the international research examines interventions which are not comparable to those under consideration here. In particular, your Honours, in consideration of, for example, the efforts in the UK and the US, they arise in a context in which there is not an award system. They arise as additional obligations in a very different regulatory framework. Your Honour asked me earlier a question as to international standards, and indeed, the link to your duties under 93A of the Act.

PN8207

We put to you in some detail, in section 7 of ACCI7, material on international standards and what is to be drawn from them. We say in particular - and I don't need to dwell on this because I have made some answer, but the international obligations don't compel any particular action or approach in this case. And the ACTU has failed to show a nexus between an international obligation and its particular prescription. And to repeat that clarification, your Honour, that we made earlier, we say our claims, equally, and in fact better, meet the international obligation.

PN8208

Your Honours, Commissioner, another of the matters the ACTU and other parties have raised in support of these proposals, is the relevance of an anti-discrimination law. It has not been made explicitly clear the linkage of this law to any particular claims but it appears to us that it has been claimed to bolster the claim in regard to hours and in regard to a part time return to work. We strongly oppose the relevance of this material to your considerations. We say it is largely irrelevant. It is not of any assistance in making the particular decision the Commission must make which is two-fold, whether to make, or not make, additional regulation and to decide between the approaches of the ACTU and the employers.

PN8209

We say that the conclusions that are put can't validly be drawn from the material and that the ACTU has mistaken its relevance under the Act. We say the ACTU misunderstands anti discrimination law. Anti discrimination law is a remedial framework where each case is determined on its own facts. The law is there for contingent upon the circumstances of each case. And the particular extrapolation at the level of generality attempted by the ACTU is not possible. Importantly, fundamental to the discrimination law itself, is a balancing of the factual circumstances in each case.

PN8210

We say that is the key message to be taken from the material on discrimination supplied by the ACTU and all other parties. They are complex decisions based on complicated circumstances. And the ACTU proposition in this case would take particular approaches and precedents developed on the basis of contingency and conditionality, on that specific basis, and then rob them of the countervailing assessment. We also say that the picture or trend from the law the ACTU would have the Commission follow is not as claimed.

PN8211

There are other case, and we cite some in our materials, which do not support the picture the ACTU is trying to paint. The lessons or trends are not as clear as they would eb put. And we say, fundamentally, the law is simply not settled enough for the codification the ACTU would attempt. We looked again at what Ms Bowtell told you on Monday and essentially we commend that analysis of discrimination law to you. It is not showing a clearly or settled enough picture for you to act on to codify it. The ACTU itself tells you this in its outline and concluding contentions.

PN8212

It describes the position - various of the propositions in anti discrimination law as developing and emerging. We say, it concedes the law isn't settled. And we say that the ACTU says that its claim - says of its claim, no more than; that the evolution of case law appears weighted towards the authorities relied upon by the ACTU. And we say that is not a very strong basis for codification. We say therefore that the nexuses that are claimed between discrimination law and the Workplace Relations Act can't stand, primarily, as a function of difficulties with the discrimination precedent itself.

PN8213

I have indicated to you that it would rob discrimination law of its recognition of contingency and of reasonableness. This is quite a fundamental point. Parliament is essentially saying in regard to discrimination law that respondents have a right to argue reasonableness and countervailing considerations. For example, section 7B of the Sex Discrimination Act. This is the policy balance upon which Australian discrimination law is based and operates. It provides specific considerations for and of respondents to be taken into account in relation to all claims.

PN8214

Yet, the ACTU would have you codify discrimination law in regard to, for example, a return to work part time as an absolute right. That could not be a codification of a law that allows reasonableness to be taken into account. The ACTU attempts in its final submissions at paragraph 950 of ACTU12 an analogy of OHS - an analogy with occupational health and safety law stating that the Commission should act to prevent the risk of discrimination. We welcome that analogy.

PN8215

We understand that the trend in occupational health and safety law is away from specific prohibitions and rules and in fact towards more generalised duties to provide safe workplaces which have the effect of not limiting employer liability in merited circumstances and allowing Courts and enforcers to consider the proper range of circumstances in each case concerned. This is precisely the opposite of what the ACTU is saying to the Commission and precisely the opposite of the affect that their claims would have on discrimination law.

PN8216

We also say that the ACTU is not telling you a very strong story on indirect discrimination. I don't need to go into this in much detail, but at paragraphs 931 through, for example, to 943 of ACTU12, they use, we say, some not particularly strong words to describe the precedent they would have you codify. They use words such as, can, can be, maybe, may if unreasonable, more difficult and common observation from general knowledge. And we say that when you look at this stuff it is hardly a very strong basis for codification.

PN8217

More fundamentally, we spent some time in our earlier submissions indicating to the Commission that this is an issue for Parliament and for setting out the proper role and operation in setting discrimination law. The ACTU proposes that the Commission make a codification of anti-discrimination, or its partial understanding of discrimination law, and that the Commission materially alter the operation, we say, of anti-discrimination law, both in regard to it being properly triggered by applicants and removing the consideration of reasonableness.

PN8218

We say that the magnitude of change to the operation of discrimination law in the factual circumstances concerned proposed by the ACTU is such that that is properly a matter for Parliament in addressing the shape and future of discrimination law. The redress for the ACTUs particular concerns lies elsewhere. Therefore, and fundamentally to something that the ACTU has prosecuted this case on, it is not for the Commission to counteract or correct any male access or non-access to discrimination redress, to the discrimination provided by Parliament. The Commission is entitled to conclude that Parliament wanted males to have precisely the access to discrimination law that they do have and that the ACTU should seek to change that rather than the award system.

PN8219

We also say that an unbalanced set of rights or an absolute right would, in fact, of itself, be inconsistent with international foundations and obligations. Australia gives effect to its international obligations, including under the UN convention for the elimination of all forms of discrimination against women via our anti-discrimination statutes. We say firstly, and I think we have already gone to this, the Commission has been provided with no information to conclude that Australia is anything other than in full compliance but we also that by removing proportionality, reasonableness and conditionality in favour of blanket approaches would not, itself, be consistent with international discrimination law.

PN8220

We say that you can read into those instruments validly a level of balance, a level of reasonableness and consideration of circumstances which the ACTU would remove. We have also highlighted the extent to which simplified awards should not contain a codification of redress available in other areas of law and we highlight at paragraph 8.14 of our final submission that that is the case. If the ACTU is correct in saying it is attempting little more than a codification of anti-discrimination law, then we invite the Commission to conclude that this would yield a clause directly comparable with those deleted and rejected in the award simplification passage of cases. And we note, for example, that HREOC prosecuted in the award simplification proceedings a specific model work flexibility clause and that the Commission declined to include that in its awards.

PN8221

Ms Bowtell mentioned a couple of things in closing in discrimination that we wish to respond to. She said that the notion of reasonableness that the ACTU is including in various of its constructions, principally its hours of work claim and its purchased leave claim, was directly imported from section 7B(2) of the Sex Discrimination Act. We say that when one looks in detail at section 7B(2) of the Sex Discrimination Act, that is not a valid conclusion. The ACTU clause fails to import the checks and balances inherent in the Sex Discrimination Act to construction. They don't import even the full balances within that provision of the Act cited, section 7B(2). Qualitatively and operationally, the two propositions are dissimilar.

PN8222

We also - and I have been in some detail to the question of some people not having a capacity to claim. Ms Bowtell cited males as not having a capacity to claim under the Sex Discrimination Act. I have already indicated to you we say that is the will of Parliament and if you want Parliament to change it, that is the avenue. There is also, of course, the existence of state avenues of redress. I will move to the states shortly but there are clearly state discrimination acts, which we understand to not be so limited. The states and territories also provided you with submissions yesterday on two rather, we say, apparently contradictory grounds.

PN8223

On discrimination law, the states and territories told you that the remedies under their own laws are inadequate for a variety of reasons. For example, they mentioned the delays, the time it takes to bring matters to conclusion and commencement, etcetera. Well, that is criticising the system that you are responsible for. Changes to that system lie with the states and territories. They told you, however, remember that is a paradigm of delay, combat and complication. However, they then told you, effectively, that award remedies are superior in no small part because they provide dispute settlement mechanisms.

PN8224

That, to us, appears something of a contradiction, that they are still talking about having these matters ultimately dealt with via a dispute paradigm. They asserted then that few employees would take action for an award breach because it involved making an application to the Federal Court. Well, that is, we would think, as costly, complicated and time-consuming an avenue as anti-discrimination law. That would be no easier or more convenient a redress to that they are saying you should assume in favour of creating an award obligation.

PN8225

The bottom line, we say, is that the vagueness and imprecision of both the ACTU and the state and territories versions of the right to request model, which we will come to, are imprecise and will lead to confusion and disputation. Therefore, the idea that these are somehow superior to dispute based redress under discrimination law is not correct. Ultimately, if the employee thinks their request is reasonable and the employee and employer can't resolve the matter, you are going to end up in the Federal Court anyway.

PN8226

We, more fundamentally, say that award clauses shouldn't be designed based on an understanding that dispute resolution will have to be frequently invoked, but that is exactly what would arise out of the ACTU claim or the state and territories version of it. The dispute resolution process we have in awards is not, of itself, cost free and painless for any party, particularly for employers. We also ask the question as to whether creating disputes, as the ACTU and state and territories would have it, is actually consistent with the fundamental nature of the Workplace Relations schema and the objects and, indeed, core goals of the Act.

PN8227

The state and territories also appear to say in relation to discrimination law that it doesn't allow you to acknowledge that family responsibilities may require special accommodation, particular measures, active measures to be taken for the work family balance. To the extent that is correct, the award system, we say, already embodies a principal of special accommodations for the work family balance. Carers leave is already in the system. In addition, there is a further settlement in relation to carers leave in this matter. We say the notion of additional rights for families is already delivered and will be delivered either by the matters we put in this matter or the status quo and that of itself the failure of discrimination redress to yield these things does not advance the ACTUs claims.

PN8228

The other criticism was that jurisprudence develops on a case by case basis and doesn't provide certainty. Well, neither would the ACTU and state and territories' approach, if granted. The ACTU and the state and territories effectively told you that the extent to which a particular outcome would occur for any workplace would be based on a contingency and the circumstances concerned. So, basically, they are telling you that the outcomes of the provision they seek would be the same as would be yielded by discrimination law. As I have said, in relation to their other submissions on the success or otherwise of state and territories discrimination law, those matters are not set in stone.

PN8229

Reform in those areas lies with the state and territory governments, particularly in the areas of the cost of their jurisdictions, the rapidity of redress and the extent to which applications proceed satisfactorily to applicants and respondents. Your Honours, Commissioner, the ACTU has extensively relied in this matter upon labour market change and labour market considerations in support of its claims. It did so again on Monday in closing its case. We respond to this at an overarching level in section 12 of ACCI7 a the level of core points that we say you should draw out of the research of Dr Campbell. More detailed analysis was explored in cross-examination of Dr Campbell.

PN8230

The ACTU told you on Monday in closing its case that, and I quote, "you can't rely on sweeping generalisations." Yet, we say, properly considered in relation to labour market and the labour market engagement, that is precisely what it is asking you to do. I merely want to take you in very short to a couple of the core points we say you can distil from Dr Campbell's research. This is, we say, a restatement of unremarkable and well understood phenomena. We all know about the ageing population, we know about changes in care and we know, for example, about growing female labour market participation.

PN8231

There is, again, crucially to this case and fundamental to the way the ACTU has presented and constructed this matter, a failure of reasoning and a failure of causation. Having recited labour market and social change, the ACTU then fails to show you a nexus, both to award redress at the first level but then secondly there is no nexus to the particular claims it would advance. You don't get from A to B based on what the ACTU has provided you. Dr Campbell paints nothing other than a very generalised picture. Even to the extent he paints a picture of some need or indication for change, he doesn't tell you or doesn't assist you with choosing between the ACTUs changes and ours.

PN8232

In particular, labour market change does not help the Commission with its decision between a compulsive and consensual approach to this issue. We also say that, properly considered, the work of Dr Campbell stands for a level of complexity in labour market change ignored by the ACTU in presenting its evidence. Importantly, we say Dr Campbell gave you an ultimately successful picture of labour market change and work and family accommodation in contemporary Australia. The M-shaped graph Dr Campbell showed you essentially showed us that Australian women have been able to maintain their labour market participation throughout the years in which child bearing and raising occurs for most women and increasingly can do so.

PN8233

There is a picture in which to the extent our award system contributes to this it is yielding improved outcomes devoid of or without any of the changes under consideration in this matter. The extent to which, for example, married women have been able to continue participation in employment is a positive change in our system without the intervention sought. The extent to which maternal employment has increased almost universally during the past two decades is precisely the kind of change that the system is yielding without the ACTUs proposed intervention.

PN8234

JUSTICE GIUDICE: Mr Barklamb, is it part of your position that those changes would have occurred without the award changes that relate to those issues?

PN8235

MR BARKLAMB: Your Honour, ACCI is supportive of maternity leave standards. It forms part of the core safety net of conditions that we would support. I am not sure, sensibly, that a retrospective consideration of a labour market with and without intervention could be done. Having said that, it may be that the creation of a maternity leave standard was important to securing maternal labour market engagement in Australia. It doesn't follow, however, that doubling it will necessarily not be inimical to labour market engagement for women in the future, nor that it would actually secure any gains. It is - - -

PN8236

JUSTICE GIUDICE: So it is a question of the degree of intervention?

PN8237

MR BARKLAMB: It is a question of the degree of intervention. The intervention has been made. Perhaps it is a case that the intervention that was made kicked off the improvement. That may be the case, but it is certainly not the case, we would say, that there is any particular case that has been made out to assume that a further intervention would have a further positive outcome.

PN8238

And that - thee has been no quantification or modelling of that that was presented to the Commission at any stage. Overwhelmingly, we say, based on what we say is a fairly successful picture illustrated by Dr Campbell, is not only that no changes compel, but no sense of urgency was provided to the Commission for any particular changes of approach. And in doing so, of course, the collision metaphor that my friend put to you, we say, is not borne out by the data. And we say the extent there was any collision - I don't want to get into mixing this metaphor - but to the extent there was an interaction between work and family, or is any interaction between work and family, flexible approaches are meeting those things.

[10.43am]

PN8239

The existing award safety net overpinned by the flexible day to day practical common sense working things out approach which comes very clearly through the witness evidence, is clearly allowing an increasing proportion of Australian women and Australian mothers, to participate in our labour market. It is, we say, a fairly simple story. Other evidence in this matter shows extensive use of flexibilities that are available, and as I opened right at the start of what we were talking about, very little demand amongst those with caring responsibilities for more flexibility.

PN8240

We also say that Dr Campbell's evidence coalesces or converges with that - with what really should be taken from that of Dr Murray, is that Australia is not falling behind in international terms. We say that Australia - it is clear that the Australian system is improving female labour market engagement, maternal labour market engagement and we say improving the capacity of parents to balance work and family. We think Dr Campbell ultimately tells a good story on the success of the system as it is without the ACTUs proposed changes in securing key gains for women and parents and carers.

PN8241

To go to this in slight detail we think that the Commission has before it simply a different construction and read of the figures. The ACTU has, at page 273 of ACTU12, a table which says, in their view, that we fall behind the OECD. Our recollection is that Dr Campbells' evidence was more mixed than that and a better international picture was put in more detail in my rather extensive examination of him on our comparative performance against OECD countries. We also say that it is important not just to consider the level which Australia has reached in regard to maternal or female employment, but also the direction and pace of change.

PN8242

We - our understanding of Dr Campbell's tables is that almost universally the couples, parents and families were - sorry - particular cohorts of the labour market, such as mothers, such as women, were increasingly able to participate and participate successfully. So change is moving in the right direction. The - one of the other key labour market matters or the set of additional and overarching considerations the ACTU put to you is a consideration of fertility. The ACTU has throughout this matter made, we say, a fairly ambitious claim and goes as far as to suggest that its claims will increase fertility in Australia.

PN8243

What I am seeking to hand to you now, your Honours, is information that has become available only within the last week. You will recall that the ACTU brought before you, perhaps Australia's premier demographer, Professor Peter McDonald. And Professor McDonald put to you various serious concerns with Australia's fertility performance and essentially put a picture to you that Australia's fertility will only be redressed and improved by a range or package of Governmental or regulatory approaches across a range of areas one of which was, effectively, more family friendly workplaces.

PN8244

Well, within the last week we have fairly significant - or we say, very significant new fertility data. A rise of 2.9 per cent in births directly defying expert predictions of a continuing decline. And I should, your Honours, for completeness, describe what this is. This is an extract from The Australian Newspaper of 9 December entitled, "Mid 30s mums give birth rate a much needed bounce." And the extract is from pages 1 and 6. So what we have is a sharp rise in fertility in Australia based on the most recent ABS data.

PN8245

VICE PRESIDENT ROSS: It is still below the replacement rate though, isn't it?

PN8246

MR BARKLAMB: Well, I hadn't gone to the level of whether it is below the replacement rate or not, your Honour.

PN8247

VICE PRESIDENT ROSS: But isn't that what the document says?

PN8248

MR BARKLAMB: It may indeed be but it is showing that within the fertility - within fertility itself, a sharp increase, so - - -

PN8249

JUSTICE GIUDICE: We are not slipping back as quickly? We are not slipping back as quickly?

PN8250

MR BARKLAMB: That would appear to be the case, your Honour. The point is that Professor McDonald came to you on the basis of the need to make a reversal in our fertility rate and that reversal has been revealed within the last week and it has been revealed within the last week based on, primarily, Governmental parameters and changes, on the one hand, but also to the extent - Professor McDonald basically came to us and said the workplace is important in this. Now, we don't refute his evidence to say the workplace is important.

PN8251

What this would show you though is that to the extent that he were correct about that, our workplaces are already making their contribution to fertility increases without the interventions now sought by the ACTU. Now, it is also worth recalling in this article exactly what Professor McDonald says to us. He describes Australia as having done the job and arrested its decline in fertility rate thanks mainly to women in their mid to late 30s.

PN8252

JUSTICE GIUDICE: Well, what are we to make of newspaper articles commenting on ABS statistics?

PN8253

MR BARKLAMB: Well, you are correct, your Honour, we have not put Professor McDonald back in the box to go to this material. He has made a headline comment on the front of the paper, we say, that goes directly to his evidence. He talks here about the European and East Asian path. And as I recall his evidence and the two articles he directly went to in his evidence that was precisely the apprehension he had concerns about at a national level.

PN8254

VICE PRESIDENT ROSS: You mean he has reported to have said that?

PN8255

MR BARKLAMB: He is indeed reported to have said that. We know of no basis on which he has written to the paper to contradict it. If he wished to contradict what was on the paper that would be something that the ACTU could seek a further affidavit from him on.

PN8256

JUSTICE GIUDICE: Is there any historical - there is some historical material in the exhibits, no doubt, which would give us an indication of the fluctuations, if any, historically. What do these figures update, let me put it that way?

PN8257

MR BARKLAMB: They update the annual rates of births in Australia - - -

PN8258

JUSTICE GIUDICE: Sorry, is there an exhibit somewhere that has the earlier data?

PN8259

MR BARKLAMB: Your Honour, I will try and find that answer for you in the break.

PN8260

JUSTICE GIUDICE: Yes, yes, so that we - - -

PN8261

MR BARKLAMB: We will have to go back to Professor McDonald's evidence on that.

PN8262

JUSTICE GIUDICE: Yes.

PN8263

MR BARKLAMB: I think the primary point though, which I would like to have taken out of this, is - oh, my colleague, indeed, points out to me that Australia's birth rate is in fact now just above the world's population - or Australia's population growth rate. We were talking - your Honour questioned me about replacement rates or about overall assessments. Australia's population growth - - -

PN8264

VICE PRESIDENT ROSS: But how does that fit with what is on the document? The column on the right hand side, one in, there is a statement but the big picture remains bleak with projections that the population will continue to age due to fertility staying below the 2 per cent replacement rate at about 1.75 per cent.

PN8265

MR BARKLAMB: Yes, indeed, there is, your Honour, that is, of itself, unsourced. If you read the article it is not clear where that came from. It may, indeed, be the case that ultimately we still are facing difficulties. The - - -

PN8266

VICE PRESIDENT ROSS: Does the ABS data tell us whether we are below the replacement rate or not? Actually I think the replacement rate figure is dealt with in other material.

PN8267

MR BARKLAMB: Yes, perhaps, we will see if we can have a bit further look at that.

PN8268

JUSTICE GIUDICE: Things are a bit grim in the ACT. Their birth rate is point 2 per cent.

PN8269

MR BARKLAMB: Perhaps that is - - -

PN8270

JUSTICE GIUDICE: They are waiting for the troops to come home.

PN8271

MR BARKLAMB: Not heeding the treasurer's advice, perhaps. The key point to be drawn from this is, we say, is a reversal afoot. That Australia may, and indeed, does still face a serious challenge. We have also indicated other places, for example, the population policy is not restricted entirely to birth rates and fertility, that migration concerns do play a role. The point being - the point we would seek to have you draw from this, and we will return to it, is that the reversal has been secured without the intervention sought.

PN8272

The claims were made of the pressing necessity for the particular changes put by the ACTU and the changes have occurred without it. With that I think we will do no more than commend to you the detail of section 12 of our final submission. We say, in short, in section 12 of ACCI7, that the ACTU doesn't gain the solace from issues of fertility and we said that even prior to this latest data. The ACTU doesn't gain the solace and support from considerations of fertility that it would claim.

PN8273

JUSTICE GIUDICE: Mr Barklamb, there is quite a lot of comment in this article, of various kinds. I take it you are only relying on the parts you have referred to?

PN8274

MR BARKLAMB: Your Honour, we are relying on the reportage of the data, which to our analysis of the ABS material we appended, is correct. And we are relying on the reported comments of Professor McDonald. Now, as to the voracity of the Comsec graph, we would have no reason to doubt it, but as his Honour, the Vice President took me to the comment about the big picture remaining bleak, I don't know where that comes from. In the construction of the article that is not attributed.

PN8275

And, principally, of course, we rely on the data and the change in the 2.9 per cent increase in the number of births.

PN8276

JUSTICE GIUDICE: Yes. Are you tendering that?

PN8277

MR BARKLAMB: Yes, I am, if your Honour pleases.

PN8278

JUSTICE GIUDICE: Yes.

EXHIBIT #ACCI9 DOCUMENT

PN8279

VICE PRESIDENT ROSS: The ACTU has also pursued its claims based on something of a grab bag of other matters that it asserts to you warrants the claim it seeks. This is a fairly disparate set of additional social developmental and health considerations that are claimed supports its particular approaches and this is repeated in closing. In regard to stress, maternal and child health and everything from pedagogy, early childhood development, lifetime health outcomes through the juvenile crime. You could not accuse the ACTU of being modest in the aspirations it has for its case, and indeed, it should be recalled the ACTU cautioned us not to rely on sweeping assertions in this matter.

PN8280

This includes in particular the evidence of Dr Strazdins and Professor Oberkland. We respond to this in detail in our initial reply, ACCI3, and in particular in part four of section 12 of ACCI7. We commend this detail to you and I don't intend to take you to it. We say these aren't even considerations relevant to this matter. They are major issues of public and social policy and this is neither the place nor the time to try and address them. They are, at best, obliquely linked to the world of work, properly considered, we say and in fact this verges on gilding the lily.

PN8281

There is no nexus proven between the generalised observations of these witnesses and the ACTUs particular approach. The evidence of these experts stands for no more, at very best, than the importance of supportive workplaces to the particulars matters they address, be it stress, be it the matters that Professor Oberkland took you to. [10.58am]

PN8282

These people can't tell you, or don't tell you, and their expertise could not allow them to tell you, what a supportive workplace is, what constitutes it. He couldn't tell you what success or evaluation measures to apply in determining what a successful workplace is. He couldn't tell you what regulatory approach, if any, could or would deliver these workplaces and they can't tell you whether those workplace supportive structures are in place already, even before we start this matter, and indeed, we would say you have got evidence before you from witnesses that shows you that the status quo is delivering the quality of workplace which they broadly describe.

PN8283

We say, in particular, the type of witness evidence provided by Professor Oberkland and Dr Strazdins is no help in the particular task which confronts you in choosing between our approaches to this issue and the ACTUs. They stand for no more than all workplaces should play a role. Well, yes, we say they should play a role in one way; the ACTU says they should play a role in another. They don't assist you in resolving that. As I said, in no small part this arises because these witnesses are not experts in work, nor in the regulation of work.

PN8284

Professor Oberkland attempts at paragraph 212 of the ACTUs final submission in an extract there, some discussion of this issue, but even he, as is correct for someone making a witness statement at the verges of their expertise, does not validate the ACTUs claims. The ACTUs witnesses also fail to examine the particular consequences for issues such as stress, children, childhood development, etcetera, which may flow from the imposition of the approaches sought by the ACTU. They don't evaluate the relative superiority of agreed and consensual approaches. There is no evaluation of our models against those of the ACTU.

PN8285

They don't, for example, consider the stresses that imposing an obligation to force something on your employer might carry for an employee. It is worth, we say, considering that, the right to request model, creating the disputation that the states and territories and the ACTU say is a valid way to proceed in this area. What does that do for someone's personal levels of stress and what they take home from the workplace? We say that we are offering a path to delivering precisely the changes that Professor Oberkland believes are important, delivering a path that to the extent that there was any validity in Dr Strazdins' contribution to this case, and we say there wasn't, even were that valid we are delivering a path to redressing these concerns.

PN8286

We are also saying - also saying quite clearly that in raising issues such as stress the ACTU is attempting to rerum and rego over ground we have already been over. Stress was a consideration raised in the reasonable hours case and the Commission dealt with particular claims there prosecuted on the basis of stress. Stress was dealt with in the redundancy case and was specifically dealt with there on the basis of the final decision. The ACTU is rerunning, we say, an area the Commission has already dealt with. We say nothing adverse should be drawn from our non-examination of various of the witnesses brought forward by the ACTU.

PN8287

We don't dispute the expertise of people like Professor Oberkland, nor his perspective. I wouldn't presume to argue or attempt to validate or invalidate his expertise in the area of childhood development. There would be no point. The point is that no nexus has been drawn between his evidence in this case that he doesn't support the ACTUs claims. And it is also worth for a second - the ACTU has on a couple of occasions noted that we didn't examine Professor Oberkland. They have sought to attach some significance to our non-testing of his evidence and they have sought to rely very strongly on his evidence.

PN8288

Well, the ACTU did not examine Ms Allars, of the ACT Chamber. The ACTU did not examine Mr Hargrave of the Printing Industries Association. The ACTU did not examine various of our witnesses in support of our claims. We say their evidence remains as strongly on foot as that from any other non-examined witness. I want to take you in some detail on one particular witness that we did examine, however, and that was Dr Strazdins. Dr Strazdins primary evidence was challenged and I think - and I understand that on Monday you were told we did not challenge Dr Strazdins' on the issue of stress.

PN8289

Your Honours, Commissioner, we directly challenged Dr Strazdins on the issue of stress in our cross-examination and in our final presentation of her material in the final section of exhibit ACCI7. Much of her material relates to stress through working extended hours of work. This is directly on point with the issues examined in the 2002 working time test case. Extended hours of work were canvassed, stress was extensively canvassed and the Commission awarded an approach in relation to a specific claim from the ACTU. The main story Dr Strazdins has to tell on stress is one the Commission has heard before.

PN8290

The key source that she relies upon to make her contentions or her evidence before you on stress is a US source. That is the source of Jacobs and Gerson. What she is saying there we understand is twofold, and I am - to go to the Jacobs and Gerson quote which she relies upon.

PN8291

JUSTICE GIUDICE: Where is it, Mr Barklamb?

PN8292

MR BARKLAMB: I do have additional copies of an extract from Jacobs and Gerson which to be clear this was previously tendered when we examined Dr Strazdins and it is a research source she cites.

PN8293

JUSTICE GIUDICE: It is already in the evidence, is it?

PN8294

MR BARKLAMB: I understand it is, your Honour, yes.

PN8295

JUSTICE GIUDICE: Well, where is it?

PN8296

MR BARKLAMB: My colleague is just going to try and find that. It is an ACCI exhibit as I understand it.

PN8297

JUSTICE GIUDICE: Well, we can use this I suppose in the meantime. Where is the part of the evidence that this is relevant to?

PN8298

MR BARKLAMB: Dr Strazdins indicated to you, your Honour, that the nature of - - -

PN8299

JUSTICE GIUDICE: Yes, but where? Is it in the transcript or in the - - -

PN8300

MR BARKLAMB: Dr Strazdins was raised by my friend in closing on Monday, her evidence on stress, and we understand that to have been prosecuted also in ACTU12 as one of the specific grounds you should include this case having regard to.

PN8301

MS BOWTELL: Your Honour, I don't recall this being given to the witness at the time; I would have to check the transcript, but I don't recall having seen this document at all. So we would like some time to have a look at it before reliance is put on it.

PN8302

JUSTICE GIUDICE: Do you want an adjournment for that purpose?

PN8303

MS BOWTELL: Perhaps just a second to read over it.

PN8304

JUSTICE GIUDICE: Yes, I will - in the meantime perhaps you could identify where in the transcript this was put to - or this was - where in the relevant part of the statement.

PN8305

MR BARKLAMB: Yes, yes, we certainly - I will read to you from the statement. What she is saying in her - - -

PN8306

JUSTICE GIUDICE: Where is it?

PN8307

MR BARKLAMB: Her statement?

PN8308

JUSTICE GIUDICE: Yes.

PN8309

MR BARKLAMB: Her statement appears in the ACTU statement of witnesses, which I think was ACTU - - -

PN8310

MS BOWTELL: 7, your Honour.

PN8311

MR BARKLAMB: 7. Thank you. At 7 she makes a witness statement which attaches a report.

PN8312

JUSTICE GIUDICE: Yes, what page is it?>

PN8313

MR BARKLAMB: It is at page 339.

PN8314

JUSTICE GIUDICE: Yes.

PN8315

VICE PRESIDENT ROSS: Sorry, the page again, Mr Barklamb?

PN8316

MR BARKLAMB: 339, your Honour. Now, in the second - and you will note Dr Strazdins brings before you evidence on parental work and child well-being, part of which is an assessment of stress. In the second paragraph she talks about changes in the labour market and labour force participation by mothers and by parents and families, and she talks about particular stress arising from the combined participation in work by both parents. And she talks there about hours and the increase in unpaid hour - overtime and increase in the number of hours worked during the last decades.

PN8317

Now, we have already gone to indicating to you this was extensively canvassed in the reasonable overtime - the hours case that you had before you a couple of years ago and there she notes that the particular changes she talks about are compounded in families where both parents are employed and in doing so she relies directly and introduces into this matter the research of Jacobs and Gerson. And she says that that shows that it affects the ability of parents to parent their children. All we wish to note is we - you have had put to you that we - - -

PN8318

VICE PRESIDENT ROSS: Where she says that these changes could bee compounded.

PN8319

MR BARKLAMB: She does indeed make that - she does indeed make her contention on that basis. You are right; it is not as strongly as to say is or will, but could be compounded for parents where both families work. All I wanted to put to you today, your Honours, was an understanding that her research foundation comes from the US and that the particular couples she is talking about for this particular stress contention are simply not comparable to the cohorts which are under examination for this matter. And that is my point in the extract we handed to you from page 60 of the Jacobs and Gerson paper, and they say in there, and I quote:

PN8320

In addition, although overall changes in working time are modest the past several decades have witnessed the emergence of a segment of employed couples who are putting in very long work weeks of 100 hours or more.

PN8321

That is her contention about the particular stresses on dual work couples. Okay, that is what she says, that they - you can see where - what her point is there. However, the second paragraph is what is important - the second sentence is what is important:

PN8322

These couples are likely to be concentrated among highly educated workers who tend to occupy the most prestigious jobs and occupations.

PN8323

So we are saying that the - not only did we put to Professor Strazdins, and my friends have taken out for me the paragraph number where we did run through this with her - it was paragraph number 1861 from 2 September and at that time we directly put to her that the foundations she is relying on are not comparing like with like in this matter, the most prestigious jobs of the highly educated. Now, frankly, to go to the research of Dr Strazdins, what corporate lawyers and management consultants are doing in New York cannot be relevant to your determinations in this matter for the Australian award population.

PN8324

In addition, this Commission has already considered in considerable detail how to address longer hours of work for the award population and has addressed that in its working time decision. We say further, and this was put to her, that her material on the stresses of restructuring and downsizing is based on entirely distinguishable overseas circumstances clearly not - I do apologise, my colleagues further point out to me that we put further to Dr Strazdins at paragraphs 1873 onwards a discussion of this issue.

PN8325

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Mr Barklamb, the Commission does have this document that you have handed up already before us. It wasn't marked at the time.

PN8326

MR BARKLAMB: Thank you.

PN8327

SENIOR DEPUTY PRESIDENT CARTWRIGHT: But the highlighting on my copy suggests that the particular passage you drew attention to had already been discussed at some point in the evidence.

PN8328

MR BARKLAMB: Thank you, your Honour. We said further, having taken her to the lack of foundation for this dual income earner stress model that she puts, is based on an entirely distinguishable set of research and circumstances. Her second thesis was about the stressors resulting from restructuring and downsizing in the economy. Now, our first response to that is that you have dealt with that in the redundancy proceedings which you had before you later last year and earlier this year, but also that her material on restructuring and downsizing is based on entirely distinguishable overseas circumstances again, and this was clearly put to her in her evidence.

PN8329

She was reliant for this contention solely on the work of Kivimaki from Finland. Kivimaki looked at the stresses of closing a municipal depot in Finland and essentially looked solely at survivor syndrome. She also relied on some other research, I am told, being De Witte and Naswell. The link was not made to the Australian context. We further say that this link could not be relevant to your determination of an overall standard because downsizing in the Australian economy is falling, and that was also put to her. We say, fundamentally, or in summary, that the evidence of Dr Strazdins, when you look at its foundations, should not be of any assistance to you in determining this matter.

PN8330

It is also important to note that Dr Strazdins admitted in cross-examination that stress is very complex and that stress is handled differently by different individuals in different circumstances. We would say that contingency and conditionality that her evidence ultimately stands for precludes the kind of generalisations that are being made on stress by the ACTU in closing its case and, again, the ACTU has cautioned us to beware of generalisations in this matter. Many of the other matters raised by the ACTU are just not measurable or sensibly defined such that they could be of value to you in determining this case, marital harmony and equality of home life, for example.

PN8331

The ACTU is also persisting, in closing its case, with raising the gender allocation of tasks within households. As we have set out repeatedly and rely on in closing, it is not for this Commission nor us nor the regulation of work to try and re-engineer gender relations within our households. Three key points remain unproven by the ACTU on this consideration. They don't prove the Commission has the power to take action on this basis under the Act. More importantly, they don't prove that the regulation of work can, in fact, secure any changes in the allocation of paid or of unpaid work within the household between men and women.

PN8332

Again, going to the fundamental errors we say the ACTU make in this matter is an error of causation. There is no nexus between the regulation of work and how men and women spend their time in parenting and caring tasks. Also, of course, there is a further failure of causation. The ACTU don't show that their particular model can secure any particular outcomes. Finally, of course, in relation to these generalised issues of family life, of stress, of maternal health and well-being, pedagogy, childhood development, etcetera, the final point, of course, is to recall what the witnesses actually told us in this matter.

PN8333

In essence, the very employee witnesses the ACTU bring before you show the success of employees in securing the accommodations in their working time and work arrangements that they want. Under the current system they have secured these successes and they have secured them without the intervention sought by the ACTU. The supposed accommodations and changes said by the ACTU to redress the familial stress and health concerns in advances are already able to be delivered. No case for change has been demonstrated.

PN8334

JUSTICE GIUDICE: Mr Barklamb, the Jacobs and Gerson article, if you place any reliance on it, should have been tendered when it was produced as part of the cross-examination and, furthermore, should have been tendered this morning the second time you sought to rely on it. Do you think you could, at some stage, make sure we have got a full copy of it and we can mark it as an exhibit?

PN8335

MR BARKLAMB: Yes, indeed we will, your Honour, and I apologise for not having that in a fulsome form. We were attempting to do so last evening and we weren't able to source it at that time or I would have done so, rather than just having a single page, which we had earlier. We will endeavour to do that. We will produce the document, your Honour, yes.

PN8336

JUSTICE GIUDICE: Yes. For my part, I take very little notice of documents that might be produced from time to time but which never become part of the record and are never tendered.

PN8337

MR BARKLAMB: Yes. Thank you, your Honour.

PN8338

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And just following on from that, the document that we already had was the same two-page extract, not the full article.

PN8339

MR BARKLAMB: Yes. Thank you, your Honour - - -

PN8340

JUSTICE GIUDICE: Yes. It may be that you only want to rely on the extract.

PN8341

MR BARKLAMB: That is all we want to rely on.

PN8342

JUSTICE GIUDICE: And if nobody else wants the whole article, then that is sufficient. But if somebody suggests we should have the whole article, then - - -

PN8343

MS BOWTELL: Your Honour, we would certainly suggest if reliance is placed on this article to discredit Dr Strazdins that we have an opportunity to see the whole article.

PN8344

JUSTICE GIUDICE: Yes, by all means. Well, you will have to sort that out. We are running out of time this week.

PN8345

MR BARKLAMB: Yes, your Honour. I might also note, without seeking to take this too much further, but this is one of the difficulties attendant to a witness that presents you with a literature review. We requested of the ACTU, and don't want to labour this, but we requested of some of their witnesses all of the sources, and that wasn't forthcoming. It would be of assistance to future matters, and I am saying no more than this, that if a witness presents a literature review, a compendium of the literature in full being brought forward by any witness would be very useful, be it someone we bring forward or the ACTUs. Then all the matters would be in evidence before we start. But with that, I don't need to take that any further.

PN8346

The final matter I wish to address, your Honour, from ACCI7 is the question of whether the ACTU claims fall within the ambit of the disputes which underpin various of the awards before you. ACCI raised these concerns initially in our reply submission, exhibit ACCI3, sections 5 and section 13. This was refined and prosecuted in detail in our written closing, sections 4 and 5 of ACCI7. We have the ACTUs first and only written response in its closing at pages 17 to 43 of ACTU12 and the response in orals yesterday.

PN8347

To turn to where we are at the completion of this case in regard to ambit, firstly, we welcome the ACTU resiling from its claim to deliver employees autonomous discretion over where they work. This obviates the key tranche of our ambit argument. This is, to be frank, what raised the ambit concern with us. However, we do continue to object to two further ACTU claims which remain before you: that in regard in to purchase leave and that in regard to child rearing leave. Before I move into the detail of the ambit, it is worth just taking pause for a second on child rearing leave. It is not clear to us at the end of this case whether the ACTU is still prosecuting this claim.

PN8348

The ACTU did seek to reinforce their arguments on ambit in relation to it in opening but then all subsequent, or all, or certainly the vast bulk of subsequent comment and support for their parental leave claims were framed in terms of the two-year claim, not in terms of the extension till the time the child reaches school age. An examination of the final ACTU exhibit, ACTU12, also makes very clear that in completing their prosecution of this case, the ACTUs very strong emphasis is on its two-year parental leave claim and very little is said about the time from the child's second birthday to the time the child enters school.

PN8349

So it is not clear to us, completing this matter, the extent to which the ACTU ultimately seeks to prosecute its child rearing leave claim. To go into the ambit of that, however, we are not saying that all awards or all of the awards before you lack ambit for this claim, which was our position in regard to the location of work. It is, unfortunately, more complicated than that. Some awards will contain the ambit, some will not. Some claim unlimited extended parental leave above two years. In that case, we have no ambit objection to such an award.

PN8350

VICE PRESIDENT ROSS: So it is not a case that none of the awards - you don't say that none of the awards contain the requisite ambit, some do and some don't; is that the position?

PN8351

MR BARKLAMB: Yes, some do and some don't.

PN8352

VICE PRESIDENT ROSS: Isn't that the case with any test case? Once a test case decision is made in respect of a claim, provided there is ambit in at least one of the awards before the bench, whenever application is made to implement the test case standard in another award it will always be a question about whether or not there is the requisite ambit. This was an issue back following the TCR decision in '84. It has been an issue in relation to parental leave, for example, in the Hospitality Award. Isn't it something you just do on a case by case basis post the decision?

PN8353

MR BARKLAMB: In the ordinary run of the mill of a decision it may be the case. We say, in fact, in this case, however, that there is a genuine apprehension based on the small sample of awards we have been able to identify of fairly significant ambit problems. So even with the sort of six or seven logs we have been able to bring before you of the nine awards subject to this case, we are finding some serious ambit difficulties in relation to those.

PN8354

VICE PRESIDENT ROSS: But my point is really that there is no - you are not suggesting there is a jurisdictional impediment to us dealing with the claims at least in those awards that are before us which have sufficient ambit.

PN8355

MR BARKLAMB: No, we are not.

PN8356

VICE PRESIDENT ROSS: No.

PN8357

MR BARKLAMB: No.

PN8358

VICE PRESIDENT ROSS: So it is a question of degree.

PN8359

MR BARKLAMB: It is a question of - well, it is a question of coverage. Because your Honours may get - as a hypothetical, if you gave full effect to the child rearing leave claim, you would then find that only part of the award set of vehicles allowed you to do that.

PN8360

VICE PRESIDENT ROSS: Yes.

PN8361

MR BARKLAMB: And in the settlement of orders we would find that only some awards could settle - orders could settle.

PN8362

VICE PRESIDENT ROSS: I don't think it would take very long for ambits claim to be served though, do you?

PN8363

MR BARKLAMB: It is, your Honour, a very expensive exercise and I - the time at which that does - and I am not trying to be disingenuous, that is an issue for our colleagues. It may take some time to do it.

PN8364

VICE PRESIDENT ROSS: I am just struggling to find why it would be a problem for ACCI, because you are opposing the claims in any event. At worst, if we were to accede to the claims, then the problem you have referred to would delay the spread of any award through the award system.

PN8365

MR BARKLAMB: You correctly identify that it would not be a problem for us, although this case has been very specifically prosecuted on advancing a new system-wide set of standards and outcomes. What the ACTUs recipe ultimately puts to you is that you would end up with a very patchy award standard where ambit was lacking in particular awards. So, for example, within the sample of awards we have - and I haven't gone and done a detailed matrix of where we are with ambit. My friend raised a number of rebuttals which I say don't necessarily stand in closing on this issue on Monday. But you end up with a recipe, even within this sample of awards, of not extending, in fact, a new test case standard because it may be in name but in coverage it doesn't provide the same standards in the rubber and plastic industry, for example, that it might in the shops industry.

PN8366

We have an apprehension of very patchy coverage after the completion of this matter. It makes it very difficult for our members to properly advise and to develop an industry understanding of what are and are not standards in relation to particular things. There is also the issue, your Honour - and, as I said, the key of our ambit objections has been removed by the ACTU resiling from its claim. But there is also the issue of the extent of the ambit difficulty we think we have brought to your attention. It may be that in regard to some standards, like parental leave or even the TCR standards after 1984, some awards may have been lacking; some minority of awards may have been lacking ambit. We have got an apprehension here that a fairly significant set of awards of the Commission will lack ambit.

PN8367

VICE PRESIDENT ROSS: What do you base that apprehension on ?

PN8368

MR BARKLAMB: On the fact that of the sort of seven or so logs we have looked at in this case, even within those we find a lack of ambit and we suggest - - -

PN8369

DEPUTY PRESIDENT IVES: Yes. Well, Ms Bowtell addressed some of that on Monday. Have you got something to say in response to anything that Ms Bowtell put to the Commission on Monday of this week?

PN8370

MR BARKLAMB: Yes, certainly. I will get to that shortly, Deputy President. We dispute, for example, that a claim for paid childcare, which is a claim for an employer to pay for a provider service, can change its nature to become leave. We understand, for example, the reasoning in Galvin was that the demands and logs of claims have to be assessed purposively as to the purpose they are trying to secure in their outcome. However, logs of claims are quite discrete in their demands as to leave.

PN8371

An employer is entitled to respond to a log of claims with a heading if it says parental leave, we have a claim for two years to accept or reject the claim on the clear face of the log they have before it. And whilst there can be - whilst in exactitude in a log is not necessarily demanded for award relief in the future, we think there has got to be some nexus between the particular claim made and the relief sought. And if a log of claims was very explicit in seeking 12 months, as is the case in the Rubber, Plastic and Cablemaking Award, or two years, that that award could not be varied to put parental leave in above two years.

PN8372

JUSTICE GIUDICE: Mr Barklamb, we have decided that you need a break and that, in fact, we are going to offer you a cup of tea and some sustenance in the foyer along with the other participants in the case. So we will adjourn now for that purpose.

SHORT ADJOURNMENT [11.30am]

RESUMED [11.53am]

PN8373

JUSTICE GIUDICE: Yes. I take it there will be no references to the Commission giving out the goodies for the rest of this case.

PN8374

MR BARKLAMB: No, indeed, your Honour.

PN8375

JUSTICE GIUDICE: Yes, Mr Barklamb.

PN8376

MR BARKLAMB: I was, your Honours, part-way through our discussion on ambit at the completion of this matter, and we had discussed the ultimate relevance of ambit at this point of the proceedings. The point I wish to very briefly complete what we say its overall relevance is and then to, as questioned by his Honour Deputy President Ives, move to specific responses to the matters that were raised with us yesterday by the ACTU.

PN8377

In short, we are at the end of this matter merely indicating our belief that we say that certain of the applications before you don't have ambit in the area of child rearing leave and purchase leave, and that were you to make an award in test case terms it could not extend to certain or quite a set of the awards which are actually before you. And we think this indicates that there will be other awards in the system that also lack ambit, and that ambit will be fare more live a consideration in giving effect to this matter than it will be in many other matters that come before the Commission.

PN8378

With that, I want to turn to some of the matters that were put to you yesterday and, prior to that, indeed, to commend to you section 4 of exhibit ACCI7 which we say addresses these claims at the end in detail; and, of course, part 2 of section 4 of ACCI7 no longer being relevant because the place of work claim is not put. Your Honours were told yesterday that a claim for wages to be paid in a particular form demanded by the employee may assist you in awarding a claim as to pay averaging, if I understood the contention correctly. We say that is not the case.

PN8379

A claim as to the form of payment is about the choice of EFT, cheque, cash, etcetera. It is not about the calculation of payment, it is about the form in which pay is ultimately delivered. I have already indicated to you in a further response that employers are entitled to sensibly respond to logs based on the heading of particular claims. An employer has before them a claim in regard to parental leave and that claim is, for example, for two years, be it paid. I mean, a number of the logs we acknowledge contain claims for paid leave. An employer is entitled to reject or give assent to a log of claims based on what is very clearly on the construction of the log the particular demand in regard to parental leave.

PN8380

The same goes, we say, for annual leave. Where there is an annual leave boundary in an award - sorry, in a particular set of demands at a particular level of weeks, an employer is entitled to sensibly respond to that on its terms. There is also the more fundamental issue of the extent to which an annual leave claim actually supports the ACTUs purchase leave proposition in this matter. The ACTU has been, we say, fairly unclear as to whether its purchase leave claim is for annual leave or not. At various points we recall that the ACTU has suggested to you purchase leave is not annual leave. If that is their case and that is their submission, it can gain no solace, we say, from a demand in a log of claims relating to annual leave.

PN8381

A claim for childcare, as I think I had already briefly talked about, is a claim for a paid service or for a service funded by the employer. It is for an outcome; childcare, the children are cared for, be it the employer is forced to create a service within their workplace or forced to fund an employee in regard to that service. It is difficult, we would say, to see that translate into unpaid leave. Leave is leave, a service is a service.

PN8382

It is also interesting that the ACTU cites a number of provisions in logs of claims in relation to annual leave that just don't get it to its claim. There may, indeed, be eight weeks annual leave in the retail log. That doesn't get you to the ten weeks off that the ACTUs claim would deliver in regard to purchase leave. The ACTU also indicated that one of the logs of claims sought or demanded a minimum level of a particular entitlement without a maximum. Without wishing to make this point too forcefully, we have an apprehension that actually means that the dispute shouldn't have been found in relation to that particular claim because it is not bounded. It doesn't have the exactitude for which rejection or assent could properly be supplied.

PN8383

The Commission, of course, will be familiar with - and I don't intend to go to this in detail - the notion of logs being fanciful. You would think unlimited leave should really perhaps potentially have been objected to in the making of the award. Now, I don't wish to take that any further. I just ask the question as to whether it could be a reliable foundation for a finding of ambit for a particular claim.

PN8384

The ACTU seeks to rely also on particular additional weeks at double pay: having had the chance to look at transcript, that was paragraph number 7026, We say that that kind of demand in a log of claims couldn't give you any solace either. This is not about particular levels of pay for leave. This is a claim for unpaid leave so the quantum of the leave demanded in the log is important, not the extent to which it is unpaid, paid or otherwise.

PN8385

The ACTU also said that one of the logs of claims contains a claim for ten days without indicating whether it is yearly or not, so there is a flat ten day claim for a purpose that they say is linked to this claim. The ACTU says, well, you could just as easily imply that to be per occasion in the - within the absence of an express indication that it is per annum. Well, you could just as easily imply it is ten days forever in the entire employment relationship. In the absence of proper detail, we think it would be a very sensible way to interpret that as an annual claim. Again, and we don't seek to labour it, properly that shouldn't have been part of the dispute. It lacks an exactitude for the employer seeking to exceed or deny the log of claims.

PN8386

The ACTU refers at paragraph 51 of its closing submissions to a 208 week claim for parental leave in one of the retail logs, for example. Yes, that is fine: that is four, 4-1/2 years; that doesn't get you to six or 6-1/2 years. So even where there are some extended claims, that doesn't get you to the quantum sought by the ACTu in regard to entering school.

PN8387

We also draw the Commission's specific attention to the log of claims in the Rubber Plastic and Cablemaking Award which we address at ACCI7 at paragraphs 4.6.9 at page 4-16 of folder one. The demand in that case for parental leave appears to have been quite explicitly to 12 months and no further under the heading of parental leave. So in the variation of awards in the wake of this - your decision, you do have one award before you which is not capable of even being varied for that part of the ACTUs claim which we would suggest it is pressing at the completion of this matter.

PN8388

We also say that the ACTU, particularly turning to purchase leave, the ACTU has no claim in regard to pay averaging - or, pardon me, the ACTU affiliates have failed to serve any demands that can properly be linked to pay averaging in a number of these awards. Now, the ACTU say in response to this that there is a sense that can be drawn from a number of the logs of claims and demands that supports this. However, we say that the logs of claims are properly analysed very specific on where paid and unpaid leave is sought. And they are also very specific on the payment of wages and penalties. So when regard is had to the sense of the logs, it is not of the assistance to the ACTU it would claim.

PN8389

The ACTU cites various authorities in regard to arbitration and ambit at various points in its closing submissions: ACTU12 at paragraphs 56, 57 and 58, for example. We say that this material is not of assistance to the ACTU in the way that is claimed. I don't need to go into it in particular detail, we would suggest, but a construction that is indicated to you that child rearing leave or pay averaging was in the mind of those who serviced the logs when they were served we would say is not consistent with the thinking in the sixties and seventies and perhaps eighties when a lot of these logs were created. We can't see that we can historically go back on that basis.

PN8390

The ACTU make extensive reference to the re Galvin authority. Now, we can see the point of that passage; that you look to the purpose of what is sought to be achieved in the logs. However, there has got to be some nexus we say between the terms of the logs and the clauses now sought. We can't see that the Galvin authority provides scope to impose something utterly new or foreign like pay averaging or pay - pay averaging which could have been included in the award in its own - in the log of claims in its own right were the unions to have pursued it.

PN8391

Now, I would like to finally turn to the additional argument the ACTU makes on the extent to which logs of claims are extended beyond their formal terms. The ACTU raises the prospect of some actual level of disputation extending the scope of logs of claims, and it raises the decision in the PKIU ex parte Vista Paper Products decision which it does at paragraph 7033 of this matter from Monday, and also in addition paragraphs 64 to 71 of ACTU12.

PN8392

There is two tranches to this. The first is an argument, as we understand it, that because we had conciliation discussions on this at a peak level, the dispute somehow got wider. We really strongly urge the Commission to reject this argument. ACCI, the NFF, the ACTU, etcetera, are not capable of being in dispute in these matters. We are not employers. The ACTU is not a union with direct members; it is a peak council of unions. In addition, our assent or refusal of the claims being put in conciliation would be irrelevant to how they would operate on the ground.

PN8393

Also, importantly, think about what the awards are in this matter. The last time I checked ACCI doesn't run a print shop. We don't run a shop in the ACT. We don't make antivenene. We don't work on sheet metal. In contrast to Vista Paper, Vista Paper was the employer in that circumstance. Also the ACTU doesn't have rules coverage I suspect. I don't know if the ACTU has rules at all. I suspect incidentally it might have members to whom employees could more conveniently belong.

PN8394

We say effectively there is a complete contrast between a test case and the circumstances that led Gaudron J to make her decision in Vista Paper. When you read the Vista Paper decision, it is clear that the negotiations were being undertaken in the context of an instant or hot dispute, or the prospect thereof. We say, to use the old fashioned terminology, men on the grass could perhaps extend the scope of the paper dispute, as could negotiations in that direct oppressing context. Mere conciliation of a paper claim due to an arbitrated test case claim could not.

PN8395

Also, such an approach would render the notion of logs of claims and dispute based arbitration irrelevant. Unions could save quite a bit of money on registered mail because all they would need to do is show their real hand later after serving some sort of very brief ambit claim on a few employers. You could make a fairly ridiculous level of claim and flesh it out in full behind closed doors later and thereby extend the scope of a dispute.

PN8396

JUSTICE GIUDICE: Mr Barklamb, the Act doesn't say anything about written demands, does it?

PN8397

MR BARKLAMB: The Act does not, indeed, say anything about written demands at all.

PN8398

JUSTICE GIUDICE: Isn't it just a question of evidence as to whether there is a dispute within the meaning of the Act? And sometimes the evidence might be provided by the service and rejection of a log of claims, and in other cases it might be something that is not documented.

PN8399

MR BARKLAMB: Yes. There is two halves to what I am going to now. The first is the suggestion that we, as a peak body, by participating in conciliation in this matter have widened the dispute.

PN8400

JUSTICE GIUDICE: Yes, I understood that point, yes.

PN8401

MR BARKLAMB: And the second one I will come to is whether the particular activities of individual employers in this matter somehow extend the dispute.

PN8402

JUSTICE GIUDICE: You submit that in participating in the discussions with the ACTU you are not representing the constituent bodies that might or - might be parties to awards or might be - might have members who are parties to awards.

[12.08pm]

PN8403

MR BARKLAMB: We certainly are representing the parties who might have members that are able to occur in awards, but in a conciliation framework, in a without prejudice framework to the ultimate arbitration of the matter our instructions on the arbitration are quite different.

PN8404

JUSTICE GIUDICE: Yes, but you were acting at all times in a representative capacity not, as it were, as some independent disembodied participant.

PN8405

MR BARKLAMB: No, no, we - you are right, your Honour, we always act in a representative capacity for our members. But - - -

PN8406

JUSTICE GIUDICE: Yes. And the ACTU similarly would act in that capacity, wouldn't it?

PN8407

MR BARKLAMB: It would but it is bounded by the - its capacity to extend the coverage of particular awards and disputes that would not occur, because it is not the union party to those awards and disputes.

PN8408

VICE PRESIDENT ROSS: It is representing those parties.

PN8409

MR BARKLAMB: It is, your Honour. I wonder whether the ACTU - if this were a valid construct, if this were a valid way to extend a dispute, whether those parties would have needed to make a specific endorsement under their rules for the ACTU to extend that dispute through the conciliation process.

PN8410

JUSTICE GIUDICE: Yes. I was just questioning the capacity in which the parties were - - -

PN8411

DEPUTY PRESIDENT IVES: Given your concession, at least as I understood it, at the outset that jurisdiction at least in respect of some of those awards exists, that the ambit is wide enough to provide a jurisdiction, then what are you suggesting the Commission should do, Mr Barklamb?

PN8412

MR BARKLAMB: Your Honour, make orders in this matter only to those awards where power exists. Decline to make orders in those where - those areas where power doesn't exist, and indicate that the applications no longer do remain on foot - as the ACTU would have you do - because they are not applications that could properly have been made. We also suggest the Commission might think about a further step in relation to this. There is an apprehension, we say, based on the material we bring forward that there may be more significant problems with ambit in the system and, where in other matters the Commission may leave notions of ambit to be argued by - purely by respondent parties, we think it is important in this matter that the Commission note an apprehension that ambit will be a consideration when awards are varied in the wake of the test case, or any test case decision, and make that a clear indication of something that should be considered in the implementation of the decision in any award.

PN8413

VICE PRESIDENT ROSS: That apprehension is based on your review of the seven logs, is that right?

PN8414

MR BARKLAMB: It is.

PN8415

VICE PRESIDENT ROSS: And how many of those logs are deficient in ambit, in your view?

PN8416

MR BARKLAMB: It has become somewhat more complicated, your Honour, in regard to the chopping and changing of the place of work claim. We say there is deficiency in ambit in relation certainly to the Rubber, Plastic and Cablemaking Award. We say there are deficiencies of ambit in relation to a number of the other awards. I am remiss in not having prepared for you a table of ultimately where we say the awards are deficient. If the Commission would be assisted, I could certainly draw that up in relation to the two claims that are outstanding.

PN8417

VICE PRESIDENT ROSS: But my difficulty is you are then extrapolating that analysis in relation to seven awards, to the entire award system, hundreds of awards. And you are making an assumption that there is a problem in - for example, if - say there is a problem in three of the seven, you are assuming that 40 odd per cent of awards generally might have an underpinning ambit problem in relation to some claims in this case. Is that what you are putting?

PN8418

MR BARKLAMB: Not quite that strongly, your Honour. We are not necessarily saying that the three of the seven will become 40 per cent in the system. But there was no particular science, as we understood, it from the ACTU in its selection of awards in this matter bar the usual attempt to cover some representative ground in the sample of awards to initiate a test case. Some of these awards are fairly major awards of the Commission with a wide range of coverage. Some of them are parent awards to other models and approaches. We have already seen, for example, in relation to the AMWU that there is a commonality of logs and the SDA I think used fairly standard logs, and a number of unions do. So we do think there is the basis for some apprehension that it may be there

PN8419

VICE PRESIDENT ROSS: Yes, I see.

PN8420

MR BARKLAMB: I think the final point I would just like to make on the macro point about our participation in conciliation somehow extending a dispute is that obviously the policy consequences of that are very concerning. The recipe for that is that we would refuse to conciliate because we would inadvertently be extending any set of demands made against us so - I mean, I am obviously talking about the technical, legal proviso but it is not a recipe at odds with the healthy approach to dispute resolution and a robust examination of issues as required by the Act. There was also an argument I think from the ACTU, if I understood it correctly, that specific disputation by some individuals - - -

PN8421

DEPUTY PRESIDENT IVES: Sorry, before you go on, Mr Barklamb, you mentioned that you might be able to put together some form of document which outlines those awards amongst the seven that you claim lack ambit. I think that would probably be useful in the circumstances, and on what basis you say that is.

PN8422

MR BARKLAMB: Yes, indeed, Deputy President. I apologise, I really - if I had a little more time, I really - that is logical that I should have done that for you this morning.

PN8423

VICE PRESIDENT ROSS: Mr Barklamb, it is also within the concept of an industrial dispute that it covers a situation that is likely to give rise to an industrial dispute. Do you say that the service of the claim and the subsequent discussions between representative bodies is not a situation that is likely to give rise to an industrial dispute? I am happy for you to deal with that later.

PN8424

MR BARKLAMB: Can I think about that one?

PN8425

VICE PRESIDENT ROSS: Certainly.

PN8426

MR BARKLAMB: Because that carries some interesting questions in my mind, even just from the outset. The ACTU appear to rely - or rely on a further argument at paragraph 7040 that disputation by individuals can extend the log of claims, could extend the scope of the dispute. And I think the ACTU specifically cited employee disagreement with David Jones and Oxfam were the two that were raised. Now, as I have indicated, we don't dispute that a hot dispute - and to use the old fashioned vernacular - men on the grass can extend the scope potentially of a dispute to attract your award-making capacities. But a number of points can be made in relation to this.

PN8427

Even if the ACTU were entirely valid in what they are saying, or their arguments were entirely valid, that wouldn't extend the dispute for the entire range of respondents to the ACTU Shops Award; it would extend it for David Jones. It wouldn't extend the dispute for the entire range of respondents to the Victorian Clerical Industry Award; it would extend it for Oxfam, at very best. Also the dispute itself would need to directly validate the particular relief sought.

PN8428

Now, we understood the primary area of dispute in relation to, for example, the - to Cynthia Tutalo at David Jones was over which part of David Jones she would work in in her return to work which we would question as to whether that was an industrial matter, not a matter otherwise of employer and employee dealings.

PN8429

More fundamentally, we are not a hundred per cent sure that an individual's grievance could, in fact, extend a dispute which is between a business, as a commercial entity, and a union, as a collective registered entity. If an individual pursues a dispute and discussion, we are not clear that that could extend the dispute between the union and the employer. What if, for example, the individual who had the grievance with the employer and came to the Commission did so without the assistance of the union? How could that change the scope of the dispute between the union and the employer which is fundamentally what underpins the ambit of any log? We say perhaps that it only strikes hot disputation or the prospect thereof between unions, as such, on a collective basis and employers which could extend disputes.

PN8430

With that, your Honours, I will leave the notion of ambit for now. I will come back to the table that his Honour Deputy President Ives requested from us, and I will consider further the question from his Honour, the Vice President in relation to ambit in due course. I will perhaps come back to you on that one after lunch.

PN8431

With that, your Honours, Commissioner, we complete our analysis of the matters we say overlay the claims. We say we have responded to the matters the ACTU prosecute as overarching this matter, and have also supplied further information on the matters we say overarch this matter. It is appropriate at that juncture, therefore, to turn to the particular claims in this matter.

PN8432

Firstly, to turn to the claim in regard to parental leave. We have argued at section 6 of folder 2, ACCI8, in some detail in regard to the appropriateness of the existing entitlement. Your Honour put a question to me this morning about the extent to which our arguments are in support of the status quo or changes that we initiate. This is an area where, with one exception, we say the status quo, being an internationally high 52 week standard, should be maintained and the ACTU claim rejected in full.

PN8433

We say essentially there is insufficient evidence that has been put before you to establish a need to re-adjust this existing test case standard. We say that to the extent there is evidence of demand that has been put before you, that demand has been met. Agreed approaches - and I went through yesterday the extent to which the schemer of the Act contains a strong presumption towards agreed approaches are delivering. We note the ACTU resiling from its - sorry, we have an apprehension, we think there is a question mark as we come to the end of this matter the extent to which the ACTU actually prosecutes its claim for leave above the 24th month.

PN8434

To the extent that it does maintain that proposition going into the completion of this matter, that part of its claim is particularly without merit and support. And we note in that regard the failure of the ACTU in ACTU12 and in closing to add particularly to its suggestion that such a long period of leave is needed. The negative cost, operational and management consequences dictate that these ACTU claims should not be given effect to. This may be quite a predictable response from us but nonetheless it is a correct one. We say the evidence for - the evidence we provide of cost, operational and management detriment inherent in doubling parental leave clearly outweighs any argument in favour of improvement of deficient demand which the ACTU relies on. When prioritised, we say, this can be bargained successfully.

PN8435

It is not just theory, we say, that Australian employees and employers can bargain on extended parental leave. They are actually doing it and have been for some years. This contains or extends to both halves of the bargaining system. In the capital B bargaining, certified agreement making, we see that Coles Myer, for example, has moved from a 12 months standard to an 18 months standard as was indicated in the evidence of Ms Barnsby; and that is, indeed, Australia's largest employer. In the unregistered scale, only two employees were brought before you that sought extended parental leave: Ms Gray and Ms McAnda.

PN8436

Their evidence was that they were able to secure the level of parental leave they sought. To turn to practical considerations arising from the claim, what we - one of the key tranches, or one of the key tranches of our argument against this proposition is that it would yield, in practical terms, an unknown period of leave. The capacity is for an employee to apply for 104 weeks of leave, that he or she is able to notify the employer at any point within that time of an intention to return with one month's notice. We say this creates uncertainty and cost implications not only for the employer, but for the remainder of staff and, where relevant, the replacement employee.

PN8437

Now, such problems are already relevant or already demonstrated, we say, in regard to the 52 week entitlement. It is already a problematic level of uncertainty as to when employees return. However, we say the longer you make it, the more uncertain it becomes. And the more likely it is that you are going to have difficulty retaining replacement employees who are only being offered employment of limited tenure incidentally and that you will have turnover within those persons.

PN8438

MR BARKLAMB: There is also the issue of the re-integration of the returning employee and costs and operational detriment which results from it. You have evidence from Ms Fallshaw Bishop that says that the longer that somebody is away the harder it is for them to re-integrate into the firm. As we have said, the problems associated with absences from work are already evident with the existing provision. We don't criticise the existing standard; we support it. But we say that it is already fairly difficult to comply with and extending it would create significant further difficulties.

PN8439

Ms Keen, for example, gave clear evidence of her difficulty re-integrating into the workplace and of re-training her replacement employee. She indicated, I think, that she had to train him for 12 weeks and he still didn't do the complete job that she did, indicating the type of costs that employers are assuming with replacement employees. Mr Shankly, a witness of ours, provided evidence of the need for employees to receive on-going food handling training and the costs associated with using external trainers. The longer you indicate that someone stays away the more training is needed when they return and the more potential training for multiple replacement employees.

PN8440

Ms Riley gave evidence of diminished knowledge and capacity to do the job over extended time out of the work force. Mr Shankly for example, indicated that where he had had extended parental leave he found that the employee returned to a qualitatively different business to that which they left and that there were costs and operational detriment in their re-integration. We say that the ACTUs contentions don't get far beyond indicating that some employees would like particular levels of parental leave and they say, or rely upon particular developmental milestones and child health indications.

PN8441

We don't doubt the desirability of children reaching particular developmental milestones but however the question must be asked as to the extent to which this is relevant for establishing a minimum award safety net and why employers should, effectively, be liable for consequences that flow from individual parental choice. Again, the question mark is where the appropriate limits of employer obligation are. You had considerable evidence put before you of difficulties or the transaction or process of various witnesses accessing parental - child care places.

PN8442

What the evidence ultimately stands for however is a capacity of such employees to bargain with their employers successfully under the current approaches; either for extended parental leave or for other accommodations in the return to work which obviate their concerns based upon child care and we set that out. For example, through paragraphs 6.90 of ACCI8. There is also of course the cost of this claim. This does not produce a cost neutral effect. The nominal fact that this may be unpaid leave should not be allowed to disguise the cost it draws on employers.

PN8443

Employers are struggling frankly we say in some cases to accommodate the existing parental leave standard in some circumstances. We note that this clause would see an employer carry a responsibility for a full cost of a replacement employee broadly the same as recruiting someone entirely knew. And we go, for example at paragraph 6.108, to those costs. The costs can include; administrative costs of processing the leave arrangements and the potential, under child rearing leave; the child rearing leave claim to do this more than once.

PN8444

There is also the costs of maintaining and communicating during parental leave which we will come to shortly. The cost of recruiting the replacement; costs in uncertainty; difficulties in planning because the employer cannot be sure whether the employee will return. There is also the potential increase in wages for the replacement employee due to uncertainty in their term of employment. In short, if I am going to take on a tenuous job it may last 12 months; it may last three months; it may last 18 months; it may last 2 years and my employment is entirely determined by the will of someone I have never met and I don't know what they are doing; I am going to want to pay premium to do that.

PN8445

JUSTICE GIUDICE: Is there evidence about that in the context of the current provisions?

PN8446

MR BARKLAMB: Whether the evidence in regard to the - my colleague - I am indebted to my colleague from the Australian Industry Group who indicates that Mr Israel, one of his witnesses gave evidence to that effect and I might leave it to him perhaps to explore that further with you. And Ms Porritt gave extensive evidence, we say, of this occurring with the two year entitlement. It is not a direct answer to your question but it validates the point I was just making.

PN8447

JUSTICE GIUDICE: Is that in relation to the pharmacy?

PN8448

MR BARKLAMB: No, Ms Porritt runs the chain of fashion shops - - -

PN8449

JUSTICE GIUDICE: Yes, yes, that is right.

PN8450

MR BARKLAMB: And it is Ms Riley that runs the pharmacies in rural Victoria.

PN8451

SENIOR DEPUTY PRESIDENT CARTWRIGHT: You referred to paragraph 6.108 in your submission. That says:

PN8452

Assessing a typical estimate from these surveys is difficult but a replacement cost equivalent to one year's salary is fairly representative. The equal opportunity for women in a work place agency use this figure.

PN8453

And then the footnote says:

PN8454

When assessing the benefits from offering paid maternity leave, on the ground that paid maternity leave would help retain key staff.

PN8455

Paid maternity leave almost by definition would involve one year's salary. What are you trying to say there?

PN8456

MR BARKLAMB: Your Honour, we might need to check on that. I am - I wasn't responsible for that and we should have certainly noted the correct source.

PN8457

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I am it seems like a self evident statement the way it is put.

PN8458

MR BARKLAMB: Yes. We will have a look at that in completing the matter. I think the point is that turn over - the point we are attempting to make is that turn over and recruitment costs can be very significant and those costs are already being borne. The Commission need look to no more in considering the costs of doubling this entitlement than the evidence it has received from employers of the costs of any - of its existing form. But we will look further into that.

PN8459

There are also of course the costs of training and orienting the new employee and, indeed, they are precisely the costs that Ms Keen went to in talking about her efforts to train her replacement and there is also the lower productivity outputs typical of new employees, compared to the experienced ones. Labour is not purely interchangeable in these terms. Having a disruption to the employment flow for an employer is a significant issue and the potential for multiple interruptions the employment flow that would result from a longer period of maternity leave and a higher prospect of turnover and replacement employees is a valid consideration.

PN8460

The ACTU also relies on some international comparisons in regard to standards in regard to parental leave. And I want to briefly take you to that. We went incidentally to this issue at part 5 of section 6 of ACCI8. We presented a table there. What we were attempting to show you is that the ACTU would have Australia become an outlier to the extent that the ACTU is trying to tell you that Australia needs to move from 52 to 104 weeks to be consistent with international practice; the ACTU is not presenting, we say a proper picture of what international practice is. What we do at page 6.28 of our final submission, which moves in to the landscape format is present an average or a tabular assessment of the parental leave standards in the material Dr Murray gave you.

PN8461

What that shows you is that the parental leave standards, even within the hand selected set of countries from the ACTU - the ACTU brought forward just don't get you to 104 weeks. Canada, 87 weeks; the US, 24; Ireland, 54; even Germany that is sighted gets - Germany is the one that is sighted that gets you beyond 104 weeks. To the extent that there is a trend or something to be drawn from this material it is that Australia is already showing good comparative performance. Now we say that the international presentation of material has been selective to try and claim there is a trend to the contrary.

PN8462

JUSTICE GIUDICE: Can I just ask you a question about the figures there.

PN8463

MR BARKLAMB: Certainly, your Honour.

PN8464

JUSTICE GIUDICE: Is it - are you referring to which column?

PN8465

MR BARKLAMB: I was looking directly down the column which is the most that can be gained under the system is, "Total if both parents off".

PN8466

JUSTICE GIUDICE: I see.

PN8467

MR BARKLAMB: And I was going to the point that would assist the ACTU best. Even when it is accessed by two people, only Germany can get you to anything like what the ACTU is talking about.

PN8468

JUSTICE GIUDICE: Yes. I follow. Yes, thanks.

PN8469

MR BARKLAMB: Now you had this material updated before you yesterday with some other examples but - and I - - -

PN8470

JUSTICE GIUDICE: I think was it a question about overlap with Carer's leave or something of that kind?

PN8471

MR BARKLAMB: Not all systems do maintain the same architecture that we maintain.

PN8472

JUSTICE GIUDICE: Yes.

PN8473

MR BARKLAMB: I think there is a double barrelled form of entitlement in the UK for example. My understanding of the material we present at 6-29 - and I didn't compile it, but is that we pick up - that is the explanation for the multiple columns for what is a relatively simply concept in Australia and we attempt to sum the total of what is entitled under all the different iterations.

PN8474

Your Honour, in closing this matter on Monday you had further information put to you and that wa san update of the material that Dr Murray put, commencing I think at paragraph 7.302. What I would like to do is to take you to the ACTUs closing materials at ACTU12, page 150. This was a landscape table of statutory parental leave arrangements at the end of 2003. At paragraph 7.302 onwards my friend from the ACTU sought to reinforce their argument of a trend or international level supporting the ACTUs claim, sighting various of the countries from this table.

PN8475

However, a more complete examination is required and it is worth going through this. Austria, yes it has two years; Belgium, three months only. Denmark, 32 weeks only. Finland, yes up to the third birthday. France, yes up to the third birthday. Germany, yes up to the third birthday. Greece, however 3 and a half months; Hungary, yes it take you there, it gets you to the child's third birthday. Ireland was ignored - 14 weeks per parent. Italy, 11 months. Luxembourg, 6 months. The Netherlands, 3 months. Norway, 42 or 52 weeks. Poland, yes that gets you there - 3 years per parent. Portugal was sighted, yes that gets you to two years. Slovakia, yes, although we do have a question mark in some of these countries about the extent to which their stuff is observed.

PN8476

But Slovenia, 230 days. That is less than a year. Spain, yes that will get you there that is three years. Sweden, one and a half years; that is 18 months, that doesn't take you to 104 weeks. The UK - 13 weeks per child. This underscores one of the key points, we say, in relation to the ACTUs international materials. Any - - -

PN8477

JUSTICE GIUDICE: Can I just ask you about the UK. I notice this isn't your exhibit, but the 13 weeks for a child under the duration and then under "other" there is long prior maternity leave - 52 weeks. I am not sure how those two relate.

PN8478

MR BARKLAMB: If we go back, and I am not the person within our organisation who is expert with this but at folder 2, page 6-28 we make a far more extensive analysis of what the maximums are in the UK under their revised arrangements and that gets you to potentially 80 weeks, or 65, at very best, although I don't understand the UK to enjoy a particularly generous reputation in this area. I am not sure how that is reconciled. But even that, your Honour, even if you add up everything in the UK, that is not getting you to 104 weeks.

PN8479

JUSTICE GIUDICE: But the submission you just made suggests that it was only 13 weeks.

PN8480

MR BARKLAMB: Yes, your Honour. I was reading out of that first column. I may, perhaps, have omitted the other column. However, just looking at that other column, I am - the only other possible extensions are in relation to multiple births, adoptions and flexibility and usage. So I apologise for having made an omission but we certainly don't think looking at the tables on page 150 from the ACTU that is any widespread diminution of the point we were trying to make.

PN8481

JUSTICE GIUDICE: No. Anyway, you have set out what you say it amounts to in relation to the countries covered in the table on page 6-28.

PN8482

MR BARKLAMB: With the further extrapolation that when you go to the further range of countries the ACTU have brought into the matter at its last iteration, we say that reinforces our point that there is no trend. The ACTU would have Australia become an outlier. We are not behind in international terms. Your Honour, I have reached something of a break in what I was saying. Is this the time you had intended - - -

PN8483

JUSTICE GIUDICE: Yes. We intend to resume a little bit earlier. We will adjourn now until 2 o'clock.

LUNCHEON ADJOURNMENT [12.42pm]

RESUMED [2.02pm]

PN8484

JUSTICE GIUDICE: Yes, Mr Barklamb.

PN8485

MR BARKLAMB: Thank you, your Honour. We were part way through the material on parental leave and I was then to proceed into our response to some of the arguments from the ACTU in closing its case. We say the ACTUs argument in favour of an increase to parental leave, essentially a doubling, is basically an argument about demand, no more. Basically, they are saying that there are benefits to employees in having a longer entitlement to parental leave. However, the ACTU also tells you a fairly contradictory story. They say on the one hand that labour market and demographic change means that parental leave is now a much more mainstream arrangement, is a heavily used entitlement and, for that reason, you need to increase the quantum of it.

PN8486

One does not follow properly from the other. Usage rates, of themselves, could not show you that an entitlement need be increased. In fact, they would be evidence that an entitlement was on the mark. However, in addition to, on the one hand, saying that parental leave is widely used, the ACTU then said on Monday that demand for extended parental leave will only ever be modest, so it won't have a major impact on business. Therefore, they claim, you can increase it in the knowledge that it won't be a major increase in the amount of parental leave people actually take.

PN8487

We really question that this can be both. You have got something that is really widely used, that lots of people are doing but then if you increase it, it won't really affect too many people. We say that that is not a consistent position. The question which the ACTU does not answer, which is the question the Commission must address, is what, in fact, is an appropriate safety net level of entitlement in regard to parental leave that properly balances the interests of employees and their employers.

PN8488

The ACTU also rely on the evidence of Professor Oberkland and Dr Dissanayake in support of their claim. What they claim for these propositions is that having regard for the early childhood development of children, that two years of parental leave represents a more appropriate juncture for division between parent and child into care. The first thing to note is that it can equally be concluded from the evidence of these experts and, in fact, particularly from Dr Dissanayake, that it would actually support a range of policy provisions, one of which would be actually reducing parental leave to six months.

PN8489

Now, we don't make that claim but, to the extent that Dr Dissanayake actually said to you 12 months is a bad time to divide child and mother, to the extent that were true, her evidence, from our understanding of it, would be that six months may, in fact, in childhood development terms, be a more appropriate time. At best, examining her evidence in its proper context, 18 months is the most that her evidence could support. The second and quite obvious thing to note, of course, in regard to this material is that the decision of an employee to return to work following a period of leave is the decision of that employee. No doubt there are many factors, one of which is income, as was supported by the evidence of Mr Best at paragraph 6127. Income is important but the picture can be more mixed.

PN8490

It should also not be assumed, and the evidence, in fact, tells us the opposite, that the level of an award safety net entitlement is a barrier to employees taking longer periods of leave in any or all cases. The evidence in this matter was of employees' successfully both, as I said in B and workplace bargaining, successfully negotiating longer periods of leave where they wish it. And, in fact, and this is something we don't think should be missed in this matter, we actually have an application before you, it may be a single line but we do have an application before you in regard to longer parental leave.

PN8491

We think that the standard in the award system can appropriately indicate that employers and employees are free to agree parental leave in excess of 12 months and that is, as we understand it, entirely consistent with the ultimate submissions of the state and territories on child rearing leave. They commend to you a largely similar approach by agreement. We have had substantial evidence, we say, as I indicated, of formal and informal bargaining. You have the evidence of Ms Smalley that she was able to have a successful agreement negotiated in her workplace. You have the evidence of Ms Porritt, our witness, that she had someone return to her employment after six years.

PN8492

I have already run through with you some of the indicative costs that arise in this matter and the ACTU, we say, on Monday recognised quite clearly that costs and operational difficulties do flow from this entitlement, saying to you that there are costs of parental leave per se, not parental leave over two years. That is true. What it shows is that it is difficult enough, we say, for employers to cope with parental leave as it is, without extending it. Significant cost and operational issues are already occasioned. There are also, of course, the inherent increases in relation to replacement employees I have gone to.

PN8493

There is also, in regard to the question of whether you consider costing at a macro level or a micro level, very wide differences between businesses in regard to parental leave, and I think I indicated when I was talking about costs, the difference between Ms Porritt's business, where she apprehends that a number of her employees are potentially in an age and stage of life where parental leave is an issue and she deals with multiple requests to management, and Mr Byrne, of the car dealership, who indicated that it was a rare concern in his workplace.

PN8494

Now, I noted before the evidence of Mr Shankly. Mr Shankly told you, for example, of substantial change in his workplace and a transformation in the time they were away. Ms Porritt gave you evidence at paragraph 3336 where she spoke of the severity of retail business cycles. Sometimes her business expands, sometimes it contracts. It cannot be assumed, she says, that over longer periods she can reliably integrate people back into her workplaces and, as I indicated, Bri-Anne Keen gave clear evidence from the employees side of precisely the things we are talking about. She talked of changes in procedures, things becoming more electronic in the industry she works at during the time she was away in the workplace and that was only over a mere period of 12 months.

PN8495

The changes she adverts to, we say, will be more likely and potentially exacerbated by a longer period. We summarise in chapter 9 of our final submission, at ACCI8, the employees who successfully accessed parental leave in excess of 12 months drawn from within the ACTUs own sample of employee witnesses. They are Catherine McAnda, Annette Rowlands, Sonia Tatchell, Jacqueline Luttick, Patricia Jack, Cynthia Tutalo, Kathleen Smalley, Rosemarie Gray and Leonie Grant. These 10 witnesses hardly stand for evidence that it is difficult to secure extended parental leave through bargaining. This leaves us, we say, with no evidence of bargaining failure, plenty of evidence of cost and operational difficulties and, in balance, no case for an increase in the safety net. With that, I commend the detail of our rebuttal to the parental leave clause to you.

PN8496

The second tranche of the ACTUs claim for parental leave is that for child rearing leave. As that has not been actively prosecuted to you, we rely on our written material in regard to that. The ACTU also has before you a claim to increase the simultaneous leave for new fathers, that is, leave where both the father and mother may be away from the workplace or, indeed, the mother, when the father stays at home in some circumstances, eightfold, from a single week under the current standard to eight weeks. I want to firstly go to rebut some of the issues the ACTU put to you in support of this and then to precis for you our final argument more generally.

PN8497

The ACTU pointed out to you on Monday that an extension of simultaneous leave for fathers from one week to eight weeks means that a mother loses eight weeks of her entitlement, that one of the foundations of the parental leave standard of the Commission is that the leave taken by one parent can be used to discount the other. The ACTU appear to suggest, therefore, that its claims are without cost. We say a few things about this. One is that is true; it is true that is what the award says. In theory, that is how it operates. In practice, our firm understanding from our members is that few, if any, practically deduct the leave of one partner from the leave of the other.

PN8498

Often and primarily, and for the purposes of this case, sensibly, we can assume in all cases father and mother work for different companies. The father's company will have absolutely no knowledge of how many weeks the mother is having off, in practical circumstances. They may, in fact, have no knowledge whether she is taking parental leave at all. They are not going to be able to sensibly make or discuss any deductions of paternal initial leave with the mother's company. Conversely, the mother's company is not going to discount from her weeks, be they 52, 104 or any other combination, the leave of the father. In fact, you could apprehend that mere contact between the companies would be some vast invasion of privacy and some form of discriminatory harassment, potentially.

[2.14pm]

PN8499

Put simply, any deduction from the mother's aggregate period of leave would not save the father's company any money. The father's company is still being asked to assume the burden of eight weeks leave with no recompense or deduction for it. This is not any mitigation, we say, of the costs and impacts we identify of simultaneous leave. The ACTU argue further, based on this thinking or this particular balance in the architecture of the parental leave provisions, as we understand it, that employers already face the risk of a father taking parental leave after the birth of a child for some extended period in substitution for that of the mother.

PN8500

That a father may, after a very initial period of confinement after the birth, themselves take an extended period off while the mother returns to the workplace. We disagree that this is comparable to what is being sought. Parental leave would, in that case, be used by a father as a primary care giver. That is a different circumstance to what is claimed here which is an initial period for fathers after birth. Also, we must practically understand and it is - we say this would be undisputed that this is a very rare circumstance that employers formally - that fathers formally substitute their leave for that of the mother after some period for an extended time off.

PN8501

The evidence in this matter, as my colleagues points out to me, is that employers - employees, in practice, use periods of annual leave. That is how initial time off is met. Now, the ACTU also rely on problems at the time of birth and that there is a health or - a health necessity for this time off. We don't dispute that there can potentially be problems at the time of a - of childbirth. That doesn't necessarily equate, we say, with the need for a standard eight fold increase being included in a test case. Firstly, the potential problems associated with the birth of a child would not have changed since the Commission originally provided for simultaneous leave in the 1970s.

PN8502

Birth hasn't changed since 1979 nor since 1990. The ACTU has provided no evidence that disputes have arisen in relation to simultaneous leave for fathers that would require a significant change to the current provision. We understand there to be no evidence that fathers, where there is a genuine health concern, are not practically accessing time off. The only evidence of any problems at all was that of Annette Rowlands and we say her husband's concerns would have been met by the less onerous provision of an increase by agreement, which is that proposed by us.

PN8503

We also say, and this is to proceed to our precis of the stuff - the material we put on simultaneous leave, that we are not coming to you saying that there should be no change or no solution in relation to simultaneous leave. We raise with the Commission a range of flexibilities that will deliver, we say, more capacities to - for employees to access flexible leave arrangements at their work and family election and initiation. In particular, the match, we say, for simultaneous leave, is a capacity to carry forward annual leave.

PN8504

Or, and we acknowledge that only a subset of employees have this, to use long service leave more flexibly. We have a third option and that is, accessing annual leave for twice the amount of time at half the pay. So there are three options directly within the matters that we put to you that we say meet this concern. To return briefly to what we put before you in closing. Section 7 of ACCI8 addresses parental leave - the simultaneous leave proposition in some detail. We address there the basis for the existing entitlement and, in particular, the passages of the parental leave test cases where the Commission specifically set the one week standard that appears in awards.

PN8505

The Full Bench, at that time - this is part 3 of section 7 of ACCI8. The Full Bench, at that time, acknowledged that its decision may not meet the needs of all families. But, equally, it said it balanced the need to take into account the public interest and the economic basis - or the economic impact, should I say, of setting a new standard in this area. We say the ACTU has not gone to these issues and has not provided a basis to disturb the balance that was set by the Commission at that time. In particular, we say they don't provide evidence of costs and impacts on employers and don't provide impacts on that having - of that having changed such as to overturn the Commission's reasoning in the setting of this standard in 1990.

PN8506

I spent some time yesterday talking with you or addressing you on the contributions to this case of Professor Mitchell. It serves only to say he didn't cost at all or consider the simultaneous leave claim. The one thing I do additionally need to mention before moving off this issue is that, in addition to the solutions we proposed through our applications of other areas of more flexible leave, we do think that the award may make a specific recognition under the simultaneous leave provisions that are there that there should be an employer - an employee capacity to agree longer periods.

PN8507

So the existing clauses in the form of, from recollection, there shall be one week for birth, there shall be three weeks for adoption, we think the Commission may, sensibly, not only adopt our options to make other areas of leave more flexible, but also assist parties with guidance in the award to say that longer periods may be agreed. The next of the tranche of ACTU claims in regard to parental leave is in regard to consultation. With the clarification that was made yesterday, and we apologise for any confusion, the one matter that is in dispute between us is the extent to which the employer should be under an obligation to provide an opportunity to discuss particular changes in the workplace in addition to the agreed approach or the agreed additional provisions relating to the provision of information.

PN8508

So we have agreed with the ACTU that an information exchange should occur. Where we differ is whether there - we should go beyond that to demand an opportunity to discuss. I might say, however, in making that submission, we don't address you on whether the exchange of information is, in fact, allowable. We say a few things in relation to this. By requiring consultation following the provision of information, the ACTU is seeking the provision of a right that we don't understand other employees to have access to.

PN8509

Consultation is a non-allowable matter in accordance with the award simplification test case. It appears to us the ACTU is seeking a right for persons on maternity leave in regard to a - particular opportunities to discuss change that are not there for employees generally. Further, we say the ACTU has failed to take into account the additional redundancy disputes clause resolved by agreement in the redundancy test case so recently determined by the Commission. That right would extend to persons on maternity leave. We also say that we have - - -

PN8510

JUSTICE GIUDICE: Sorry, Mr Barklamb, you say that the same thing can be achieved through the redundancy disputes clause?

PN8511

MR BARKLAMB: No, I am saying, your Honour, that the particular subset of disputes that would fall into those circumstances would see that employee have the capacity to access a dispute. We don't say that that is all circumstances of organisational change but the - to the extent that particular discussions are relevant, one subset of those relating to changes that will become redundancies or may become redundancies has been dealt with - - -

PN8512

JUSTICE GIUDICE: Yes.

PN8513

MR BARKLAMB: - - - and that extends to these employees. Also, more fundamentally, it is worth recalling exactly the change that has been consented to here. This clause will, if the Commission accepts the position that all parties are putting before it, accept a fairly significant change in responsibilities in regard to an information exchange. We say that this may well obviate a number of the concerns the ACTU brings to you. That the Commission should allow the exchange of information envisaged to run, to have its effect and not to add to it with an unnecessary further obligation.

PN8514

Now, in relation to what we say at section 8 of our submission regarding this, I need only put this in very summary terms. We say that the further obligation sought by the ACTU is not allowable for the reasons we set out there. We say that the ACTU provides very, very limited examples of disputation in relation to this matter of the wrong it seeks to have redressed existing at all and not being able to be redressed by existing approaches. We also say that you have evidence in relation to various of the employees that came before you, Ms Gray and Ms Smalley, that the information and consultation process on maternity leave can be addressed in agreement making.

PN8515

Ms Tutalo had a re-structure of her position while she was on maternity leave, as we understand it, and that would have been communicated to her under the position that we say should prevail in this matter, without the additional material sought by the ACTU. We say, ultimately, there is no evidence for any other approach. To turn now, your Honours, Commissioner - to part time and casual work. I am going to start by noting something that we understand was said on Monday. Ms Bowtell appeared to say, in relation to our claims regarding part time work and casual work, well, there is no real problem accessing them so we don't need the ACCI, NFF claims.

PN8516

Well, equally, that could apply to the ACTU's proposition. If there is no problem in accessing part time work, why run an additional award right? More fundamentally, the ACTU's story on part time work is very similar to its story on parental leave. It doesn't get much beyond a claim of employee demand. All parties in this matter have accepted the utility of part time work in allowing employees to balance work and family responsibilities. This is especially true for employees who have young children. So our submission - this is not questioned.

PN8517

However, the question is, how best to implement it. The ACTU clause creates an absolute right. And we say the evidence in this matter does not justify a clause of the strictness sought. This clause - the ACTU's clause would apply whether or not particular changes in the balance of part time, full time work are sustainable in particular business circumstances, whether or not that employee has previously worked part time or casually, whether the business has part time or casual employees at all, whether or not, in the honest and experienced assessment of the employer, the job can be performed on a part time basis.

PN8518

Even worse, as became very clear in the Commission's exchange on this matter with our friends from the ACTU on Monday, the clause leaves the employer and employee absolutely in the lurch and unguided about how to determine the actual times and hours of any new part time work arrangement. Part time work encompasses a very broad range of potential situations. Anything from, perhaps, four hours a week to 35 hours a week. We say we have a very clear apprehension that the clause, if granted, would lead to significant disputation and conflict at the workplace level.

PN8519

A far superior approach would be a facilitative one that allowed employers and employees to agree on part time work arrangements where they were mutually beneficial and where they were possible. That is, we say, what our clauses in this case would achieve. We also say there is an overwhelming lack of evidence from the ACTU of any significant problem in employees being able to secure part time work now. As I think I indicated in opening, of nine employees who wanted part time work in the evidence that is brought before you, nine of them secured it without the intervention sought by the ACTU.

PN8520

The ACTU also indicated to you on Monday that employers can accommodate part time work in nearly every situation because they are doing it already. That of itself would be no basis to change the award safety net. Rather, it is the opposite. That shows that the safety net underpins genuine workplace practice. Employers, however - that is not, however, the picture that was painted to you. Employers did give evidence that they had, on occasion, made assessment that some jobs couldn't be performed on a part time basis and this assessment was often made in an attempt to be fair to the employee and to his or her peers.

PN8521

Mr Best said, at paragraph 10 of his statement that it would depend on the role. Mr Byrne said it can sometimes be difficult to modify a full time role to a part time one. He also stated that it might involve hiring an additional staff member which can be very difficult. Skills are not precisely inter-matched. Mr Stevens, in his witness statement, talked about the need to have key staff rostered at particular times, i.e., a continuity across a full time job. Ms Riley said, at paragraph 32 of her statement, and I quote:

PN8522

Based on my professional and managerial experience, not all provisions are suitable for part time work.

PN8523

Neil Shankly underscored the extent to which certain provisions are required to be full time for operational reasons and Mr Shankly, it should be pointed out, had, in his workplace, a need for very specific continuity in regard to cooking to particular health requirements and mandated health and safety concerns.

[2.30pm]

PN8524

Ms Porritt gave evidence of having attempted to restructure positions into part time ones and of it being unsuccessful. The bottom line, we say, is that the evidence is there, contrary to what the ACTU state really, and this is common sense. The concept that some jobs just aren't suited to be done on a part time basis is a valid one. We say, in conclusion, the ACTU claim is not supported by evidence. You have evidence of demand, something which no party has ever questioned. The evidence of any need for the clause is lacking. Where employees want it, they can get it. The claim is essentially unjustified. Further, we say granting the claim - further we say it is not the case that the claim can be granted without doing damage. As we have said some positions cannot be changed in that way. With that we commend the detail of section 9 of ACCI8 to you.

PN8525

We go in detail there to the construction of the ACTUs clause to the extent to which the clause itself is flawed; to issues relating to the very extended notion of school age and the extended period for which employers would be required to assume a sub-optimal structuring of their work. We go to the issue of employees changing their mind. We say it is a well understood phenomenon that employees, returning from periods of parental leave, calculate they can embark on particular working patterns and approaches and then find they can't and want to make adjustments to them. The ACTU clause does not properly deal with these situations - assuming, blithely as it does, full capacity to agree the hours and arrangements of part time work in all situations.

PN8526

We also note, in ACCI Chapter 9 - chapter 9 of ACCI8 that Australia already achieves very high levels of part time work. The data on the labour market creation of part time jobs is showing significant opportunity and demand for part time work without this. We say there is no demonstrated need for the claim as I have indicated. The ACTU doesn't find the solace in the parental leave test case that it claims and there is no need - there is no demonstration we say by the ACTU that its claims will actually redress the roles it claims.

PN8527

There is also evidence, your Honours, that this is able to be addressed in formal bargaining through certified agreements and Ms Weiland of the Australian Industry Group noted that the EBA that that company works under has been able to address this issue. We also note, and I think I have averted to this already but I wish to take it to you again, that the international material sighted do not in fact support the ACTUs claim. Yes, there may be a right to restructure hours in the Netherlands and Germany however they are subject, very clearly, to 10 and 15 employee thresholds for the size of the business. In the Netherlands, an employer of 10 or fewer people does not assume the obligation.

PN8528

In Germany, an employer of 15 or fewer people does not assume the obligation. This international material doesn't stand for a complete and universal right as claimed. This is not however, or we do not say however as I have indicated that part time work has no role to play in the work and family interface. We in fact say it has a role to play well beyond the initial return from the period of child birth and that is what leads us to advance the applications that are prosecuted in final in section 10 of ACCI8. I want to first go to a response to the ACTUs - a preliminary and overarching response to the ACTUs response to this proposition from us.

PN8529

The ACTU effectively says to you in this matter that employee need is to paramount and pressing that an absolute right should be created that will countervail and paper over or be superior to any interest of the employers. That is essentially the balance of considerations that the ACTU is putting to you. But then when we put to you a proposition that a right to part time work or a right to a capacity for agreed part time work may be so important that it should overcome award barriers, or existing award structures the argument on primacy from the ACTU falls down.

PN8530

So it so important that the job should be structured sub-optimally against the commercial interests of the employer, against the interests of one peer - one peers, but then when we say you should turn around and make a change to the award to give it some paramountcy there the ACTU won't go with us on that proposition. I don't wish in detail to go to section 10 of our final submissions suffice to say we say to you it is a fulsome and robust prosecution of our propositions regarding a right to part time and casual work where agreed and the importance of that assuming some primacy under the award.

PN8531

We do however wish to engage the ACTU on the extent to which it says our clauses constitute an opt-out and exceed the scope of valid facilitation. I have already indicated to you and we say it is not an opt-out; it is about ensuring the primacy of scope for part time work. At all time this will operate at the employee's election. It is not a recipe to enter employment arrangements contrary to those under the award. It is not a total opt-out, we say. It is about access to award arrangements under the award. The water echo science analogy put to you on Monday, we say, is wrong.

PN8532

This is not saying when you enter this path you abandon the award entirely. It is about access and capacity. There is no question, for example, under our complementary provision on casual work that the casual loading is still payable. With that, your Honours, I don't intend to take you any further into those propositions. We put them; we say they have been robustly put. We say there is evidence for them; we do not join the ACTU in attaching any significance to their decision not to cross examine Mr Hargraves. His evidence stands. It wasn't examined. It validates the approached casual employment we put to you.

PN8533

I next want to address your Honours various propositions in this matter in regard to leave. We looked, your Honour, in this case as I have indicated to you to the extent this case asked us to question we looked at it robustly - to the extent this asks of all of us what more could and should the award system do to assist persons with their work and family responsibilities we started with a clean sheet of paper and we thought about what the award system could do. That led us to think about some flexibilities in existing entitlements that might assist employees.

PN8534

The first of those is in relation to leave loading. We address this at section 12 of our final submissions. The ACTU has been absolutely silent on our leave loading claim in ACTU12 and in closing its submissions. We rely on section 12 of our final materials. We say we are about offering the option of an extra three and a half days leave and for a straight conversion of leave loading to additional leave for those employees who want it. At all times this would operate by election. We say there is no loss to employees being carried in this proposition; we say it is about choice.

PN8535

There is no gain to an employer - three and a half days would be the direct equivalent of 17 and a half per cent leave loading. As indicated, it is about providing more options for more work and family priorities for more employees. We say in detail in section 12 that this is not inimical or inconsistent with the purposes of leave loading. We say this is in no way inimical to the purposes of leave loading. We go to some detail in section 12 in that argument, returning to the original leave loading cases. We also note that it is entirely consistent with the original claims from which leave loading was ultimately the result.

PN8536

It is indeed, in fact, your Honours properly viewed as an identical principal to the ACTUs purchase leave claim. The ACTU is effectively already telling you that purchase - annual leave - sorry, the wages, was something so fundamental to an employee's employment exchange and the award system has wages themselves - can be exchanged for additional leave. All we are doing is making a much more minor adjustment or providing an option at the employee's election to make a much more minor adjustment to a minor additional payment that attaches to a period of annual leave.

PN8537

DEPUTY PRESIDENT IVES: Mr Barklamb, I don't recall - I may not have read this - but does your claim make that available on request by the employee or is it subject to employer agreement?

PN8538

MR BARKLAMB: It is subject to employer agreement as the standard formulation of all of our claims. The phrasing is:

PN8539

An employee may elect with the consent of the employer to exchange annual leave loading payable under clause X for an equivalent amount of additional annual leave.

PN8540

So, we say, that is an agreement based model. An employer may have operational reasons why they would - - -

PN8541

DEPUTY PRESIDENT IVES: Yes, I understand. I just wanted to clarify what - - -

PN8542

MR BARKLAMB: Yes, yes. I don't need to take you further to that.

PN8543

VICE PRESIDENT ROSS: But there is no constraint on the reason that might be given for refusal. The reason - it could be refused unreasonably?

PN8544

MR BARKLAMB: It could indeed. It is a facility - it is a capacity for agreement recalling that if it were refused unreasonably the employee is exactly where they have been in relation to leave loading for 30 years. They take 17 and a half per cent with their annual leave. We also note in support of this that it is not - it is far from an unknown concept to the system of incomes being exchanged for leave. We note that leave loading is regularly cashed out in fact in agreements. That it effectively is a step or two along from the proposition we are talking about; absolutely no loss or diminution will result and, as I said, it will only ever operate by agreement.

PN8545

There is no evidence, we say, of any threat of avoidance. It does not threaten leave loading, we say - we can't understand that the ACTUs suggestions in that regard ever get beyond a level of rhetoric and with that we intend to leave that proposition and commend it to you. I have already indicated, your Honours and Commissioner, that we also have a proposition for the carrying forward of annual leave and this is a proposition my friends did go to in closing their case. Awards do contain constraints on the capacity of employers and employees to carry forward annual leave. There was - we recall some exchange between your Honours, Commissioner and our friends from the ACTU on whether awards actually did this.

PN8546

We - under some awards, and some major awards being the awards in the clothing trades area, the horse trading industry as pure exemplars you must take annual leaved within six months of it falling due. And in fact at part 2 of section 13 of ACCI8 we provide some examples of the extent to which awards make this limitation from a sample of awards we look at and whilst there is some dispute between the ACTU and ourselves on what is a valid sample of awards; what is the top 100; what are the most regularly accessed, etcetera, we do say there is a significant component of awards which contain these type of difficulties. We note in there things like the Dry Cleaning award, the Building and Construction Award, etcetera in there in section 13 in part 2.

PN8547

So we say there is a live problem. We say that allowing employees some flexibility to carry forward some proportion of their annual leave - again, where they elect it and with the consent of their employer. Provide solutions precisely for things like simultaneously for new fathers; provide solutions precisely for things like planned holidays and recreation with family. It is precisely the sort of thing that can be met with this additional option. We are not saying it is the sole option; it is about providing additional avenues in the system to do a little more.

PN8548

Some awards, of course, already provide the flexibilities we talk about. Some awards don't choose to prescribe in detail or in very narrow terms the time in which annual leave must be used. So we say it is not an unknown concept, the award system, to provide employees and their employers with more scope for agreed carrying forward of annual leave. We go in some detail in section 13 to the types of experiences that can be met.

PN8549

JUSTICE GIUDICE: I am not quite sure how this proposal squares with the purpose of annual leave.

PN8550

MR BARKLAMB: We say, your Honour, that the purposes of annual leave was always about rest and recreation with family for familial purposes. Whether that arises on the dot of 12 months and within six months of it falling due is something we would question in contemporary Australia. A very wide range of workplaces have instances of leave being carried forward and the ACTU is entirely correct in saying that is a concern for many of our members. It is a phenomenon of employee choice and priority to carry this forward in a number of cases. It is already being done, is the short answer, we would say, to that, your Honour.

PN8551

We talk, indeed, about changes in holiday making and changes in demand. Gone are the days, necessarily, where people took the same four weeks every year for the same purposes every year. Now, the ACTU says to you that, well, the ACCI-NFF proposal would allow for indefinite carrying forward of annual leave and you would never take it. Well, the short answer to that is that is not what we intend. That is certainly not what we say would happen with an employee request initiated model. We also note that it is not in the employer's interests to do that with levels of wages growth during that time.

PN8552

We say it is absolutely unnecessary to inject a further safeguard into what we have said. However, if the Commission were mindful to do so, a limit on the carry forward may conceivably be put, but it would be sensible at somewhere the three-year limit, not the two-year limit put by the ACTU. Now, we say that the ACTU effectively accepts, as we understand it, the proposition that carrying forward annual leave has a role to play. The question is about whether a boundary is needed and what that boundary may be, and we note in regard to that the necessity of actually placing a boundary on this clause that awards do already contain, and this would remain operational, capacities and specific provisions on what happens where parties disagree on the taking of annual leave.

PN8553

With that, your Honours, Commissioner, I commend our proposition to you to provide a little more in terms of options for employees to balance their work and family by agreement, using the tool of their annual leave. The next of our propositions is that regarding single day annual leave and its utility to the work/family balance for employees. Again, the picture is one of changing demand, changing circumstances and we say an increasing heterogeneity of what employees want to do with their annual leave in regard to their work and family.

PN8554

We say it has already been recognised by the Commission in the personal and other leave test cases that single days annual leave have a very clear role to play and they maintain that role in contributing to work and family despite and through the creation of carers leave entitlements. We commend section 14 of our submissions to you in prosecuting this claim. We say that section 14, in fact, comprehensively deals with each of the matters that was put to you by the ACTU in reply.

PN8555

It was never our intention, once again, in prosecuting this clause, that there be no opportunity for rest and recreation. It was never our intention that annual leave be used entirely in single days and we say that is not the likely result of this clause. We want to point out most forcefully this is no gain to employers. We are not putting this forward as a gain to our members. This is about the award system doing more for employees seeking to balance work and family. We say the Commission, the ACTU and ourselves have all accepted the principle that access to single days can assist in work/family balance. The question is how?

PN8556

The ACTU says to you that should you accept a proposition that single days have a further role to play that there should be a limit. We say a couple of things in relation to this. At paragraph 14.14 we point out to the Commission that not all of its awards presently contain limits. The Contract Call Centre Industry Award is a very recent award of the Commission, made, as we understand it, by an ACTU affiliated union, made, indeed, by one of the unions that would be an applicant in this matter, with provision for effectively unlimited access to single days of annual leave. It is not an unknown or inherently undesirable concept based on the evidence of the existing award safety net.

PN8557

That said, if the Commission is mindful to put some limit on the numbers of single days annual leave, there is a mechanism to do so. We say that the ACTU put to you a very confusing proposition in reply to our proposition here. They said, well, you could use five days in every 20 accrued. We say that is unclear and would not deliver the benefits this claim is prosecuted to advance. A superior approach would be solely in those awards, and I want to be very clear about this, a superior approach would be solely in those awards where limits exist, so an award like the Call Centre Award would not be touched.

PN8558

Solely in those awards where limits do exist of less than 10 days, which is the approach under the metal industry award, we say validly the Commission could consider expanding that towards the 10 single day standard of the metal industry award. As I said, our primary submission is not that that occur. We think that - we say we have advanced fairly robustly in section 14 of our final submissions. Using the evidence of the witnesses we brought before you and a consideration of the paucity, ultimately, of the ACTU reply, we have put a case to make the clause we sought. However, were you mindful for a different limit, that certainly can occur.

PN8559

The final of our leave based propositions, your Honours, Commissioner, was in regard to flexibility in long service leave. Examining the final ACTU submission, ACTU12, and considering what was said to you in closing, we say to you that the ACTU has very little ultimate response to this proposition. Section 15 of our closing submission, ACCI8, we say we have put a robust case to add more flexibility to the way long service leave operates under awards of this Commission. We say the ACTU effectively appeared to say to you in closing solely that our propositions were inconsistent with the rationale for long service leave.

PN8560

Well, we say in some detail in our closing submissions that that is not the case. We note at page 15-17 that we address in detail the ACTUs suggestion that this is inconsistent with the purposes of long service leave and we say we answer it. We note, of course, also, as we have been through in some detail, that this would at all times operate solely by employee election. An employee who wants to make traditional use of their long service leave as and when it arises would be at all times, under our proposition, entirely free to do so. The ACTU also put their final contention that this would be unduly used by women. We find this a very curious submission.

PN8561

It is effectively an argument against providing any additional work and family capacities, as women will disproportionately use them. We feel there is something of an air of paternalism that pervades such a submission. We say that families, women, employees generally should be empowered to agree very flexible use or as flexible a use as is appropriate of their entitlements with their employers and that is merely what we are suggesting with the additional options in regard to long service leave. Again, I commend the detail of section 15 of our closing submission to you.

PN8562

With that, your Honours, we get to the issue of working time. Firstly, we argue that the ACTUs claim in regard to reasonable hours of work is directly comparable and covers identical ground to the first of the three tranches of the reasonable hours claim. The ACTU, we say, brought precisely this wrong, in its view, to you to or three years ago in the Hours case, ie, that ordinary hours of work - pardon me, your Honours. The ACTU brought you precisely this wrong that it sought to have remedied in relation to ordinary hours of work and their impact on work and family considerations in the Hours case. That was tranche 1 of the ACTUs claims.

PN8563

We set out at section 1 of ACCI8 the ACTUs claims in the Hours case and we say they are directly comparable, not only to the form of clause sought by the ACTU but also, as I have indicated, to the evidence the ACTU relied on on that occasion. Extended hours, work stress, work and family considerations, this was how the Hours case was prosecuted. The Commission heard this material and rejected tranche 1 of the ACTUs claims on that occasion. This is an attempt to re-run a directly congruent claim.

PN8564

The Hours case was not restricted to overtime and it extended to ordinary hours of work and that claim was rejected. We say also, it wasn't just the particular construction of the clause that was rejected in the Hours case; it was the introduction of a standard of reasonableness itself that was found to be inappropriate to determining the ordinary hours of work.

PN8565

We note that the Full Bench reproduced a passage from the ACTU submissions in how the reasonableness standard was to work and that appears at the top of page 1-6 or our final submissions. Specifically, that describes exactly the situation that would operate under the test that is now sought. This was rejected. The Commission rejected the notion of reasonableness as a test because it would undermine the concept of a specified number of ordinary hours for a week's work. The certainty and predictability of a normal working week based on a number of hours would give way, and this is what we understand the Commission to have said, to an imprecise and less predictable tests based on reasonableness and that this would have serious consequences.

PN8566

The Commission also appeared to be saying that it is inherently inconsistent with the concept of quantified ordinary hours that a requirement to work ordinary hours may render the employer in breach of an award on the basis that the hours are somehow unreasonable. It is also inappropriate, it was said at that time, that an employer be at risk of being in breach of an award because, having regard to the employee's social and community life, the 38-hour work week may be considered unreasonable. The Commission effectively determined that the 38-hour work week standard already took into account the matters the ACTU was prosecuting. At paragraph 243 of the Hours decision, the Commission noted that:

PN8567

The existence of the hours of work provisions of awards as they already are indicates that, at least in relation to ordinary hours, the interaction between work and the personal and family circumstances of employees is already recognised in a significant way in the award safety net.

PN8568

We say this is a Full Bench conclusion directly and unambiguously at odds with this fresh claim from the ACTU. And this is a rejected claim effectively being re-run. We also say that the ACTU is seeking to have you regulate an essentially procedural requirement. We say it is a substantive requirement in respect that it has teeth but that it is a matter of process very much of the nature of that which should be left to the enterprise under section 143(1)(b). We also note that the ACTUs own evidence and the evidence of employers, as you have heard me say in relation to a number of tranches of this claim show that precisely these concerns are able to be successfully addressed through bargaining. The ACTU brought you - brought forward witness evidence in an attempt to show the importance of working hours change to employees.

PN8569

To the extent that it did so, it showed you that working hours change is being accomplished without the intervention sought and we go into some detail in section 1 of ACCI8 to that witness evidence. We also say and we say this came out very clearly in discussion on this clause on Monday this is a bad clause. It would - it asks of the Commission the awarding of bad law. This is effectively a threefold jeopardy to persons seeking to comply with it. There is an initial obligation to consider it and not unreasonably refuse. Then there is a further double barrelled obligation; an obligation to explore reasonable alternatives and then a sweeping obligation to only refuse if the employee's attendance at the work place is necessary and no other options will meet the needs of the enterprise.

PN8570

We say there is no basis to determine which of these obligations should apply. Is it the obligation to consider and not unreasonably refuse or is it the manifestly stricter obligations that follow? This came out very clearly, we say, in the ACTUs attempt to explain the clause, that it prosecutes, to you. It cannot be sensibly explained to the Commission and therefore we say it cannot be sensibly awarded or complied with in the real world. Really, we say that the ACTUs clause comes down to onus. In direct contrast to the UK model an employer will assume the entire onus under the ACTU claim as formulated.

PN8571

There is a strong presumption - we say an unbalanced presumption, under the clause that each and every employee's request made under such a clause will be given effect to. An employer would assume a very steep onus to prove that the employee's attendance is absolutely essential and that no other option will meet the needs of the enterprise. This will be the sole basis for a valid refusal of the employee claims. And even then we say there is an option for ongoing disputation, clearly apprehended by the ACTU and those who support this model.

PN8572

What does no other option mean? Is that no option that carries a certain percentage of cost; that carries a certain threat to efficiency, productivity and continuity of service? These are very difficult, we say impossible, thresholds to determine. What are the needs of an enterprise? How is that to be determined? Is this based on operational concerns, is it based on the needs of clients, is it based on whatever? We don't know. What exactly are the other options? What are the limits on the other options - what are the limits on the adjustments?

PN8573

We say fundamentally that these provisions render the notion of exploring alternatives effectively nugatory. They are unnecessary. You won't get to exploring alternatives because you are already concerned about what other options are. We say the model would create and exacerbate disputes; not prevent and settle them effectively. It is also - I have indicated that it is a regulation of process. That is true to some extent, however, there is a direct contrast between the UK model which is procedural in its obligation and the ACTU model which is in fact a claim to directly guarantee and deliver particular outcomes for employees.

PN8574

I indicated to you that the ACTU claim is not a UK model. We address this in detail at part 5 of section 1 of ACCI8. We go in detail to show you the contrast between the UK model and the ACTU model. We say that when this is taken into account the ACTU model cannot gain the solace from the UK example and experience that is claimed. The ACTU is not coming before you comparing like with like. The UK working time regulations contain for example, and this is just an introduction - they contain a qualifying period - they contain a qualitatively different definition of households and caring. A much stricter control on the scope of the obligations than that put by the ACTU.

PN8575

There is also a very fundamental difference and this cuts through to a number of the difficulties we are talking about. It is also a ver;y fundamental difficulty where an employer and employee cannot ultimately reach agreement. Where an employer reaches a valid judgement, based on the prescribed grounds in the UK model, and they reach a judgment if they follow the procedure that is the end of the story. No ultimate concession is wrought from the employer under the UK model. This is a complete contrast not only to what the ACTu has put to you but also the various alternatives talked about by the State and Territories and, to a lesser relevance, from the ACCER.

PN8576

There is no right, in the UK, for any particular agency or reviewer to question the ultimate decision of an employer based on the prescribed grounds. The only error an employer can fall into in the UK is not following the process directly. Now, with that I want to make one final comment before coming back to one more fundamental point on the UK. The UK approach has not matured yet. This is very new law. In addition to not properly translating the UK approach to the Australian system, as the ACTU may understand itself to have done, it is not following a law - the effect of which we can have any confidence of knowing.

PN8577

This is too new to know whether this is good law, bad law or otherwise. I want to return briefly to the notion, or the concept, of employer refusal under the UK provisions and contrast them with that proposed by the ACTU. Section 80(g) of the UK's Employment Act 2002 indicates that the employer's duties are - - -

PN8578

JUSTICE GIUDICE: Can we find that set out somewhere conveniently?

PN8579

MR BARKLAMB: You do, indeed, your Honour. Page 1-46 of exhibit ACCI8.

PN8580

JUSTICE GIUDICE: Thank you.

PN8581

MR BARKLAMB: Thank you, your Honour, and I am going to subparagraph 1(b) of that. The employer has a duty in the UK to only refuse an employee application because he considers that one or more of the following grounds apply. And then it goes, specifically, to the burden of additional costs, the detrimental effect of the ability to meet customer demand, inability to reorganise work and inability to recruit additional staff, detrimental impacts on quality and performance, insufficiency of work during the periods the employee proposes to work, planned structural changes and perhaps some other grounds that may be proscribed in the future. Importantly, that is the assessment of the employer, based - - -

PN8582

JUSTICE GIUDICE: But wouldn't that have to be objectively valid? It wouldn't subjective, would it? Or you think it is?

PN8583

MR BARKLAMB: Your Honour, we think that provided the employer follows the proscribed procedure and indicates that they have made an assessment. There reading, for example, of customer demand may ultimately be wrong but as long as they have looked at it and considered customer demand, that is the end, we say, of the obligation in the UK. We say the supporting materials which were elsewhere tended in this matter, I don't have them to hand, made quite clear that an employer's obligations do not extend to necessary concession to employee demands.

PN8584

They are about consideration only. We also say that there is direct guidance in these particular grounds to have regard to business circumstance. The ACTU would have you adopt not only a model that requires ultimate concession, we say, but does so only on very vague and imprecise grounds. The three fold contradictory and internally inconsistent tests the ACTU would apply. You have, however, heard, in recent days, of other approaches including that of the states and territories.

PN8585

You have, however, your Honours heard of the states and territories - indicate to you or attempt to put to you that they are charting some middle ground in regard to the proposal to regulate the ordinary hours of work. However, we say this is not middle ground at all and the states and territories' proposition and, to a lesser extent of relevance that from ACCER, falls into the same difficulties we say confound that of the ACTU. They are still trying to weld to the not unreasonably refused model which is at large, which provides no guidance to employers about their actions, and still incorporate the reasonableness test specifically rejected by this Commission in the working hours case.

PN8586

They are trying to weld to an unreliable and inappropriate foundation a set of criteria. And that is, specifically, that an employer take into account the following. Now, that is, take into account the following. Now one or more of the following as is done in the UK. So we don't have an indication that one may be sufficient to reject claims if an employer believes that they are there. And it is also expressed if you look - and I am reading from the states and territories. I apologise, I should have made this clearer. It is at paragraph 6 of the state and territories' closing submissions.

PN8587

Where they talk about the particular criteria which they say could be attached to the unreasonably refused model. And what they have done is transform a version of the UK model devoid of the guidance it offers employees - employers, should I say. They have removed the guidance the UK model offers employers in how to look at these requests and they have grafted on the inherently confusing notion of mixing employer and employee issues. So, yes, there is a recognition of costs. It is not expressed in terms of a burden as clearly as it is in the UK.

PN8588

The notions - a lot of the notions in the UK model specifically fall off. The very detailed indication to employers about how they consider costs and the impact on their businesses. But also they are asked to consider the particular circumstances of the employee, including their caring need. We say this verges on a particularly difficult consideration for an employer.

PN8589

JUSTICE GIUDICE: Well, they said they got those from the example, if you like, of the hours provisions which came out of the working hours case.

PN8590

MR BARKLAMB: The exemplars from the working hours case, your Honour?

PN8591

JUSTICE GIUDICE: Well, the approach of listing a number of considerations.

PN8592

MR BARKLAMB: Of listing a number of considerations may be an approach that has some merit in particular clause circumstances. However, this is not a list of necessarily - this is not a list of indicative circumstances. As we understand it, they are matters that the employer would have to take into account under the state's model. I may - they appear to us to be matters that would be added to the notion of not unreasonably refusing requests. They are also not in terms, we say, of providing the type of guidance to employers and how they consider things that the UK is.

PN8593

I am not sure that is an answer to your question as to their genesis. We are suggesting that the list of matters is wrong for two reasons as I was going to. One is it is grafted on to the confusing notion of reasonableness. Secondly, we say, it requires a complicated set of considerations of the employer.

[3.14pm]

PN8594

In very different terms to that of the UK. And the - what we say the State and Territories' Governments model effectively tries to do is to take two bites of the cherry as to the confusing notion of reasonableness and balancing. Firstly there would be an at large duty to act reasonably but then enlisting a set of concerns that go both to employer considerations and employee considerations the State and Territory Governments would leave our members - those who comply with awards, in a complete quandry as to how to balance these things. You will recall that the UK model indicates an employer may refuse a request on one or more of the set of listed grounds.

PN8595

The employee - the State and Territories model would indicate a set of grounds all of which presumably you are to take into account and attempt somehow to balance. It doesn't tell an employer how to balance the cost and detriment to their work and business with their understanding of the employees' particular needs. It provides no guidance to the type of balance it assumes. In short, we say the State and Territories model is the same confusing and in-exact approach of the ACTU in a different livery.

PN8596

It is in no way qualitatively superior in its operation and all of the faults and difficulties we identify in section 1 of our final submission will attach to the alternative put by the States and Territories. The ACTU also indicated to, your Honours and Commissioner, on Monday its description of its hours of work clause as of being a facilitative provision providing an opportunity to take advantage of existing flexibilities or, in the words of the ACTU at that time:

PN8597

To provide a capacity for employees to exploit the boundaries.

PN8598

And according to the ACTU the employer has an opportunity to refuse based on operational requirements. We say the window of opportunity for an employer to refuse is effectively minute. We say the clause will be a signal for employees to seek flexibility of hours in significant proportions and numbers and that it creates a substantial new right that does not currently exist. The test of unreasonableness, we say, as I have indicated is confusing and highly restricted.

PN8599

We say there is a great deal of uncertainty as to precisely what the ACTU is prosecuting after the uncertainty it got into regarding whether paragraphs 5 and 6 of its claim are ultimately necessary to what it is trying to do. We say that this ACTU final position is not good enough in terms of prosecuting its case. The substantial practical problems we say we allude to and those other persons allude to in these matters, and those indeed of the witness evidence before you, shows in no way are alleviated by saying that the detail of the case can be worked out in due course.

PN8600

The ACTU contended that the reasonableness test of its hours of work provision is similar to the test specified in section 7B(2) of the Sex Discrimination Act. I think I have already gone to this at some stage but we reject this notion. We say the Sex Discrimination Act provides for a proper balance of considerations in determining a test to reasonableness. The triple barrelled test of the ACTU does not. We also say, further, that this capacity to set ordinary hours of work finds no solace in international models as claimed by the ACTU.

PN8601

Its only nominal or superficial solace would be the UK model and for the reasons I have set out we say it is not the UK model. Once again to come to one of the fundamental themes that pervades our approach to this case, and we say a proper construction of the evidence in this case, the scores are on the board in regard to the capacities of employers and employees to work this out at the workplace level. The ACTUs own witnesses, in substantial part, indicated success in bargaining on this issue. The ACTU has failed to put to you or failed to correctly understand, in closing this case, that its witnesses were able to achieve without the assistance of its claim the specific outcomes it now seeks.

PN8602

The witness evidence of Ms Keen and of Ms Dennington are clear examples of informal agreement at the workplace level where hours of work provisions or hours of work have been able to be varied so as to satisfy family responsibilities. Ms McAnda, Ms Tutalo, Ms Luttick and Ms Drayton negotiated variations to their hours of work all provided on the basis of specific provisions they were able to agree in certified agreements. In the case of Ms Drayton her ability to gain flexible hours of work went well beyond the already, we say, comparatively generous provisions to do so in her agreement.

PN8603

So not only do we have a capacity to make agreements we have even got a capacity to secure further flexibilities above and beyond agreements without the intervention sought by the ACTU. The ACTU argue, we understand, that certified agreements themselves may not be providing for family friendly measure as we assert. We disagree with that proposition. We say the ACTU cannot argue that the bar should be raised so high in the award system; that it covers not only award employees but employees covered by agreements already going to these issues.

PN8604

We also say that the ACTU attempts to ultimately prosecute its claims in terms of what we would term a regulatory fallacy. That is, that if a formal agreement doesn't contain a specific provision of a form the ACTU can identify as consistent with its claim then the accommodation, in relation to hours of work, does not occur.

PN8605

Well, not only is that at odds, as I have indicated, with the construction of the Act, which tells the Commission and parties to have regard not only for formal bargaining within the Act but for other options outside it, it is also at odds with the success of the witnesses the ACTU brings forward. The ACTU has also, we say, ultimately failed to counter our arguments that this is a matter of detail and process inherently that should be dealt with at the enterprise and further arguments in section 143(1)(c).

PN8606

We go in detail, your Honours, Commissioner, in section 2 to the evidence in this matter. I don't intend to take you to the detail of this evidence now. However, we say that when scrutinised, particularly in regard to the expert evidence or nominally expert evidence in this matter, it is irrelevant or misused and doesn't make the case out as the ACTU claim. We would encourage the Commission to have regard to part 4 of section 2 of our closing submission, ACCI8 in particular, and what the employees tell you. As I have said, that is an overwhelming picture of success. Your Honours, Commissioner, we did, at section 3 of ACCI8, address to you the claim for varying the place of work, the location of work and we welcome that that is no longer put.

PN8607

ACCI also has proposals for you in relation to working time. At section 4, in relation to these claims, we make a number of general observations and contributions to this case. We say they address not only the foundations for the changes we seek; they also address a number of the rebuttals that have been put against us and we commend the detail of that to you. We also say, going into section 5 of our closing submission - pardon me, your Honours. Your Honours, I was addressing section 5 of our submission. This is where we put to you the ultimate prosecution of our proposals regarding rostered days off, make-up time, time off in lieu of overtime and time off in lieu of penalty rates and, in addition, our wider proposal for flexibility in hours of work.

PN8608

Your Honours, we say, as we did with our other proposals in these matters, this remains a robust set of alternatives for you to consider going into arbitration. We say we have provided a more sound set of concepts; they are clear in their operation; they will operate efficiently in a well-understood manner; they are supported by the evidence; they will operate at all times via employee election and employer consent; and that they will operate at all times based on work and family needs, in summary. They are, we say, superior in conception, in operation and in prosecution to the claims put by the ACTU in regard to working time, as we say our claims are more generally.

PN8609

I wish briefly to go to these matters and some of the objections raised by the ACTU to this material. I want, firstly, to go to the issue of demand and to take you back to where I effectively started this submission with an extract from the ABS in regard to demand for caring. This is page 5-9 of our closing submission, ACCI8. This is an assessment of those employees with caring responsibilities who wanted to use more work arrangements to undertake their caring. So you will recall that I indicated for the Commission that only a minority of employees actually had this desire when I placed this case in its correct context.

PN8610

Of those who do, however, we say significant proportions wish to take up or pursue precisely the options we are putting to you: 13.7 per cent of people expressed an interest in using RDO arrangements; 14.5 per cent of people expressed an interest in using time off in lieu; 11.4 per cent of people expressed an interest in using part-time work, and 15.5 per cent of people expressed an interest in using an informal arrangement with the employer. We will acknowledge that there is a much lower figure here for an interest in using casual employment.

PN8611

However, we say that casual employment can still remain a valid option for the meeting of work and family responsibilities and given that at our particular clause in regard to casual employment, which I have already been to in conjunction with our proposals on part-time work, given that it would at all times operate consensually and via the initiation of the employee, it still can play a role, even if perhaps a lesser one. That said, we say that table 5 on page 5-9 tells a clear story of demand for precisely the options we say the system should extend in regard to working time.

PN8612

We prosecute through the remainder of section 5 the various proposals we have, including our proposal for further flexibility in hours and remuneration for those hours. You had various replies to our hours of work proposals put to you. Pardon me. Before I get there, I don't intend to take you to the detail of our prosecution of our hours claim. We say it is robustly put in conclusion in section 5. To take you briefly to some of the replies, however, that you have heard, the ACTU tells you our claims will generate long, unsocial or unsafe hours. This is not a new suggestion from the ACTU. It was replied to in detail at page - from page 5-17 of our submissions. It was addressed in detail from page 5-17 of our submissions. We say the idea that our claims will inherently generate unsafe hours of work is a fallacy. Put simply, our claims cannot and do not disturb in any way employers duties under occupational health and safety law. They could not do that. An employer has, and will maintain, duties to provide a safe workplace and in regard to the health and safety of their employees.

PN8613

Occupational health and safety law extends quite validly to employees being able to refuse unsafe hours of work and, indeed, extends to an employer, in fact, refusing employee requests for unsafe hours of work. A standard overtime clause would remain in place, on our understanding of our clause, and that clause would be the one arising from the working time decision. We are also, we say, making absolutely no variation to the notion of penalty rates generally. However, we are saying that a particular hours of work arrangement ceases to be unsocial when it is worked at the specific request and initiation of the employee.

PN8614

When an employee initiates a particular pattern, it ceases to be something that need be remunerated by specific additional recompense. The ACTU also introduces the notion of needing safeguards. But we ask the question simply, in summary terms from page 5-22 of ACCI8, safeguards from precisely what? From employees taking responsibility to set their own hours of work? From employees being able to negotiate with the employer how they want to work and what suits them and their work and family?

PN8615

Without labouring this point at this hour of the day, we think this lays bear a fair amount of paternalism in the views of the ACTU. We invite the Commission to consider whether the ACTU's response to us on Monday extended much beyond this. With that, we move to the more detailed propositions we are making regarding some other hours provisions. From page 5-30 of our final submission - and it may, in fact, be worth your Honours considering the hour. I might just indicate to you precisely where I am going with the completion of our submission.

PN8616

I am completing for you our working time propositions, including the rostered days off, the make up time, the time off in lieu. I have just gone to our more general provisions regarding working time. Having completed this, I will go to purchased leave. Then we have completed the substantive propositions before you in this matter. I want briefly to talk to you or to direct your attention to our overviews of the evidence. Then to briefly respond further to the States and Territories and to briefly conclude.

PN8617

JUSTICE GIUDICE: How long will that take, Mr Barklamb? Briefly?

PN8618

MR BARKLAMB: Briefly. Your Honour, I think the - once I am - certainly once I am passed purchased leave which shouldn't take too long, given that I am essentially providing precis of our information to you and responding to the suggestions made by our friends from the ACTU. I would think that wouldn't take more than an hour, perhaps less.

PN8619

JUSTICE GIUDICE: Yes.

PN8620

MR BARKLAMB: Thank you, your Honour.

PN8621

JUSTICE GIUDICE: Is that an hour all up or - - -

PN8622

MR BARKLAMB: An hour all up, I would hope.

PN8623

JUSTICE GIUDICE: Yes. Yes.

PN8624

MR BARKLAMB: Yes. In regard to rostered days off, we put from page 5-30 our proposal for rostered days off flexibility - and I will move through these things in summary terms. We have taken a set of well understood and well known concepts from the award system. Abilities to bank RDOs, abilities to shift RDOs and abilities to take RDOs in part day amounts. They are all known to the system and some awards contain all of those flexibilities where RDOs exist. What we have said is - or what we have thought is that these provisions have a role to play.

PN8625

They can provide employees and their employers, where they want to use them, with more options. What we have done though is analyse the award system as providing inconsistent access where RDO arrangements are in place to these type of options where they can be agreed. And we seek that a standard package of measures arising from this case incorporate these options into RDO clauses. Now, our friends indicate that this already the subject of test cases of the Commission. That is correct except that we say that the test cases have not provided a consistency of outcomes that would be consistent with the role that these provisions can play to work and family.

PN8626

Awards will, in the wake of this matter should your Honours, Commissioner, choose to award a package of measure - if that is the ultimate result, awards will be varied. A tranche of changes will be made. We put these propositions into that tranche, we suggest, because that should deliver a standard nature of change to RDO provisions and a more standard package of outcomes. I will come, in a second, to the extent to which majority facilitation is raised by these propositions. RDOs, your Honour - options for RDOs in part day amounts, in banking and in alternative days will provide, in summary, two essential contributions to work and family.

PN8627

They will provide the single day option with all of the different myriad of work and family concerns that can meet and I need not go into those in detail. They will also provide, through banking, access to extended options for work and family. The holiday options, the extended caring options etcetera. We say that, as I have indicated, these are known concepts for the system. We say there is no detriment to the employee and that we have already found, incidentally, in the parental and other forms of leave case, that RDOs have a role to play in this area.

PN8628

Also I note that RDOs are very regularly dealt with flexibly through agreement-making and that it is far from unknown to the system for RDO change to be made.

[3.36pm]

PN8629

This is not however - to briefly address the ACTU as we understand them to have addressed this clause, this in no way should be confused with employers securing any control over RDO timing. We say that, based on the construction of our clause, this could not occur. Similarly, we come to make up time and that we come to at page 5-47 of ACCI8. Again, we say that - well, we say have two solutions or two complementary options; the adjustment of hours, a further capacity to adjust hours which we say obviates a number of points put by the ACTU in regard to the adjustment of hours more generally.

PN8630

We can well apprehend that hours may need to be adjusted on familial grounds, on short term and non-continuing bases. To meet that we suggest that the Commission adopt options for more flexible usage of hours that are already well known to it in the system. That is, the concept of make up time and the concept of time up - time off in lieu. These are provisions that are already known to the system that we have a demonstrated capacity to support the work and family reconciliation in work places. Not for everybody but for those people who can use them. In those circumstances where they are interested and their employers can agree.

PN8631

The ACTU will tell you again, "Well, this is subject to a test case, what are you doing this for - this is a reason not to do it". Put simply, the test case has not delivered practical access to make up time in work places. The fact that the words, "make up time", or "TOIL", appear in the index to an award of the Commission does not equal a practical capacity to access make up time or time off in lieu of overtime. When you go to the detail of the clauses far too many of them, and we provide examples of them here, are in the form of allowing discussion towards, "with the agreement of the union and the majority of the workplace you may set up a system of", that is not direct access.

PN8632

We say the time has come in the award system where able to agreed direct access to these agreements, these options, in simple terms to well understood industrial concepts be delivered and that is what we are talking about on work and family grounds. The ACTU indicated to you yesterday, "Well, this is not a barrier that operates again and again. You really only have to get the agreement once and then you have got a system of make up time or TOIL". Well, yes. But the barrier is there. An individual woman in a workplace wanting to access make up time or TOIL would need to convince the bulk of the workplace around her, and indeed her employer, to have the kind of ballot or majoritarian process conceived of in the award.

PN8633

What if that woman didn't enjoy the support of her peers - what if she was unable to attract the majority to what she wanted to do for her working circumstances? What if she wasn't a union member - what if the union had no interest in agreement with the employer on anything? Put simply we say that the work and family balance of interests we have had as presented to us in this case as being so paramount over the interests of the employer in all matters to the extent that the paramountcy argument is right it should be paramount in ensuring award clauses actually deliver outcomes.

PN8634

VICE PRESIDENT ROSS: Is there any evidence before us about the failure of majority clauses to deliver outcomes - any evidence where there has been an attempt made to implement some facilitation that it has been rejected by a majority?

PN8635

MR BARKLAMB: We don't have any direct evidence to that effect, your Honour, although I might indicate that were one to advise an employer of that process we have an apprehension that an employer might say that is a very complex to go to to meet an individual demand.

PN8636

VICE PRESIDENT ROSS: Well, you might have an apprehension or a supposition but my question is is there any evidence of where these provisions have been in awards for a number of years where is the evidence that they haven't worked?

PN8637

MR BARKLAMB: I don't the express evidence to that effect. However we do say that where these processes can operate there is no error or wrong that need have any process put - that any process is unnecessary to proceed them. That it is appropriate that direct access be offered and direct access is far from unknown to the award system. There are make up and TOIL provisions that operate quite directly at an industry wide level without individual construction, but that concept is known.

PN8638

Now it was also said in the working of make up time as I understood it that make up time involves an operation where the employee is in debt of hours to the employer and that an employer may insist on the employee working those hours at unreasonable times. We think this is a little fanciful. In practice it was certainly our intention that employer and employee, in entering the make up time arrangement, have an agreed approach to how the make up time would be used. We also note of course that an employer cannot open at a time outside their usual working hours.

PN8639

In an ACT shop an employer is not going to be opening the shop at 3 o'clock in the morning to take advantage of someone's make up time debt to them. That said, however, if the Commission were to consider that our make up time provision would be assisted by requiring of parties at the time they enter the make up time arrangement to agree when the time would be made up that would be a valid proposition. So if the apprehension is that an employee will end up in a form of debt to - time debt to their employer that can be exploited in that case we don't necessarily agree that it the case but if that was an apprehension provision should be made at the time of - of the time being made up be agreed at the point of entry into the arrangement.

PN8640

VICE PRESIDENT ROSS: Mr Barklamb, can you just refresh my recollection is it part of your proposal that those arrangements for make up time be recorded in the time and wages records?

PN8641

MR BARKLAMB: Your Honour, it was not. We kept it very simple and straightforward. We would have absolutely no objection if it were considered necessary to manage and - - -

PN8642

VICE PRESIDENT ROSS: Just thinking of - I mean in years past maybe when I had an involvement in the hospitality industry there seemed to be a series of disputes where people had different recollections - - -

PN8643

MR BARKLAMB: Yes.

PN8644

VICE PRESIDENT ROSS: - - - to put it neutrally, about what they had agreed to by way of these sorts of arrangements.

PN8645

MR BARKLAMB: We do understand that make-up time in some awards does actually incorporate that detail. If that were considered a safeguard essential to operating the clause, we certainly would have no objection to that and, indeed, if the Commission was to feel that the clause would be assisted and the ACTUs concerns would be removed in regard to when make-up time might be worked, it may be that reducing the arrangement to writing in the records may be of some assistance to employers and employees in regard to that ultimately.

PN8646

In regard to time off in lieu, I needn't go again to the question of whether this is an existing standard. Again we say that it is time for the system to deliver meaningful capacities for time off in lieu. I note that our friends from the ACTU acknowledge that the standard is effectively one at a time for time level under test cases of the Commission. I think it serves only to commend to you part 7 of ACCI8 in regard to time off in lieu. Were the Commission to be of an opinion that time off in lieu were to join make-up time in needing to be predicted as to when the time is taken off, the time of entering the arrangement, that that could validly be incorporated, although you would imagine there may be lesser cause to demand that of a time off in lieu arrangement where the employee will then take time off for their work and family needs.

PN8647

Now, the ACTU has, however, missed half of our TOIL proposals. We don't just say there should be time off in lieu of overtime. We say there should be time off in lieu of penalty rates. The ACTU having rested on its earlier responses on this issue, we need do no more than point out that part 8 of section 5 of ACCI8 goes in detail to that claim. Once again, as was the case in regard to the annual leave loading proposition, which is analogous, this is about providing employees with options to convert additional moneys to time, if that is what they wish, and again this is not a concept that is unknown to the award system. We have, in fact, directly drawn it from an award of the Commission.

PN8648

It seems like a valid and interesting additional option that the system could rightly put in supporting parental work and family balance. If the Commission has no further questions on our proposals in regard to those matters, I will move to purchase leave.

PN8649

JUSTICE GIUDICE: Mr Barklamb, would it be within your contemplation that the Commission might introduce provisions on the express understanding that for a period of time they would be tested?

PN8650

MR BARKLAMB: That certainly could be a valid proposition and it would certainly, your Honour, go to some of the additional safeguards that have been suggested by our colleagues in regard to a number of the proposals we put to you. His Honour Vice President Ross just asked me a question about recording understandings in the time and wages records in regard to make-up time. It may be that is precisely the sort of thing one would put into the award to see whether it was necessary and whether it did remove disputes and whether disputes actually did come to pass in regard to these matters.

PN8651

It may be, for example, that I have indicated to you that if you wish, if it is considered necessary, you may appropriately consider a threshold on single day annual leave, an increase from five to ten. Where thresholds currently exist of below ten, it may be the Commission might specifically do that on an understanding.

PN8652

JUSTICE GIUDICE: I was really thinking of this, that apart, perhaps, from the extension of paternity leave from 12 to 24 months, a lot of the issues that separate you seem to be ones of process or safeguards as to how access to additional periods of leave might be governed, and in that context I suppose one way to test the competing theories of efficacy of those various means of accessing leave would be to pick one of them or a number of them and test them for 12 months and see what happened.

PN8653

MR BARKLAMB: Your Honour, that certainly might be a valid approach to a number of the propositions we have put, if there were substance to what has been put by our opponents and we say, for the reasons we set out in some detail, properly examine those suggestions aren't there, that there isn't substance to the sorts of objections that have been put to us. But it is our firm proposition that the ACTU hours provision is just a bad clause. It would wrought considerable harm in workplaces.

PN8654

JUSTICE GIUDICE: Yes. So you wouldn't be opposed to such a test as long as it was in relation to your proposals.

PN8655

MR BARKLAMB: I don't say that merely because they are our proposals, your Honour.

PN8656

JUSTICE GIUDICE: No, I understand that. I wouldn't really have expected you to say anything else.

PN8657

MR BARKLAMB: But the reason we say it - I do want to elucidate, the reason we say that is that there are fundamental flaws and inherent costs to the ACTU of the type we have identified, which we say preclude a more experimental or grandfathered model. Other propositions at other times, it is a very valid approach and it may be for some of the things that are on the table here. But the core ACTU propositions and claims really don't fit within that nature. The other thing which would perhaps preclude that type of thinking is that we are discussing with at least some of these claims things that are quite fundamentally well understood in the community, parts of the safety net. So, for example, one couldn't double parental leave and then, when the particular detriments we apprehend do come to pass, take it away again lightly.

PN8658

JUSTICE GIUDICE: Well, I think I excluded - - -

PN8659

MR BARKLAMB: Indeed, your Honour. You did indeed, your Honour, but we are talking about very major changes in a lot of the things that are here.

[3.50pm]

PN8660

The other thing, your Honour, my colleague quite correctly points out to me that our propositions operate by agreement. Now, they are, of themselves, effectively - and I am sure the Commission correctly understands the context in which I use this word - they are themselves experimental. If there is no demand nor interest, they won't be used. There is no detriment to the system in providing new agreed options in contrast to some of the other provisions you have before you.

PN8661

I was, your Honours, moving into the final of the substantive major claims from the ACTU and our alternative in regard to purchase leave. We are - I have re-read exhibit ACTU12, the ACTUs written closing, and we are happy with the extent to which our section 11 of ACCI8 makes a full and robust response to each of the issues and to the fulsomeness of the ACTUs ultimate prosecution of this material. I wish only briefly to precis that view in a second. However, we do want to go to three particular issues we say arise from the ACTUs closing of this matter.

PN8662

The first is in relation to the extent to which the ACTU say the reasonableness test applies. I don't need to go to this in detail because we have explored this test and the difficulties with it in regard to the hours changes. But we say, once again, in closing that the test proposed for the ACTU is not one of reasonableness. This is not a right to request. It may wear that livery but, properly examined and in its operation, it will be a highly confusing and inherently dispute creating test that ultimately generates forced concessions from the employer.

PN8663

The second, of course - and this was very clear in the ACTUs attempt to explain the operation of its clause - is that we specifically have had highlighted to us in closing the inherent complexity of this clause. It simply doesn't work. It is difficult to understand, if not impossible to understand. And we say that the ACTU effectively concedes that it has purchased leave clause is wrong and prescriptive because of the complexity of the provision and the concept. We say a couple of things about that.

PN8664

As a consequence, the provision cannot be consistent with the objects of the Act for award making, nor the provisions of section 143. This is inherently a matter of detail and process best left to the enterprise. And that was illustrated by the ACTUs attempt to explain the clause. The ACTU believe this is really a fairly simple proposition yet even within the clause as drafted, there are multiple permutations as to the use of the provision in each individual workplace. So I think, and I will find this for you but we calculate that due to the employee having full discretion on the pay discounting across the number of weeks provided for, there are multiple possible permutations of the calculations in this, even, even were able to be complied with. And we go there at page 11-18 to all the possible iterations that an employer may have to calculate which are - this will make every rate of pay in an award potentially into seven rates of pay.

PN8665

We also say that this highlights the extent to which any generic test case proposition is inappropriate in this area and this is best left to implementation in the workplace. There is also, as we come to the very end of this matter, existing confusion as to the extent to which the ACTU says this is allowable. Ultimately we understand that they are not telling you this is annual leave. And for the reasons I set out earlier, that precludes the reliance on the annual leave provisions of various logs of claims that they otherwise attempt in prosecuting this case. They tell you, however, that this is a like form of leave. I do understand - we have already talked about that. We say in detail in section 11 the extent to which this is not, in fact, a like form of leave and I will come to that reference in a second.

PN8666

So briefly to indicate to you for your benefit in following this up in due course what we say in section 11. We question the ambit; we have gone to that. We say the clause is long and detailed; we have gone to that. We go through in detail the inability to reconcile the allowability of this clause with any part of section 89A(2) and we go in detail there to the like forms of leave test case, and the ACTU do not develop, we say, any rebuttal to what we say at page 11-8 in regard to this claim.

PN8667

We go in detail to the section 143 considerations on page 10 of section 11, and the failure for this to meet the qualitative standards of award regulation the contemporary Act provides. Once again, and the consistency of this is at once what makes my submissions rather dull in regard to these things because we keep coming back and back to the same themes; this is being achieved through bargaining. Certified agreements in particular, we say, are replete with purchased leave arrangements.

PN8668

We say something else that goes a little further than that. The complexity of this provision demands firstly that it be something for enterprise determination. When one goes to certified agreements and looks at purchased leave provisions, you can very clearly see the different workplace iterations, pay iterations and concerns, and operational iterations and concerns which people take into account in implementing these clauses. It clearly indicates that this is a matter for the workplace.

PN8669

The clauses - and a proper examination of them, however, take you a step further - even within certified agreements that provide for purchased leave, the most common model is to provide that much of the detail and practical operation of the arrangement will be worked out at the supervisor and employee level at the time of initiation. So even when we are able to agree the broad parameters of this in an agreement, the detail is left for later because it is so difficult to work out. And it is precisely those type of problems which pervade the design of the ACTUs clause.

PN8670

There is also capacities, of course, and I think the question may have been put at some stage, this can be done by informal agreement to some extent now to unpaid leave, with pay averaging achieved by the employee themselves, in addition to a capacity to do it by formal bargaining. The states and territories, we say, are quite interesting and illustrative in regard to purchased leave because purchased leave or, in substantial part, our understanding of purchased leave is that this notion arises from public sector bargaining.

PN8671

Now, what do the states and territories in their own capacities as employers, which is a theme I will return to shortly, what do they tell us about purchased leave? At page 67 of the states and territories final contentions in this matter, they indicate in response to some matters we put the extent to which in their public sector they address these matters. For example, in Queensland, the majority of public sector agreements provide for a 48/52 arrangement. Just to go there for a second, we say that to the extent there is any purchased leave standard in Australia and the community, it is 48/52 not 46/52, and indeed that came through on the very small research - or the one piece of research Professor Mitchell was able to find in examining this issue. The leave standard is not as it is being prosecuted.

PN8672

But in Queensland, the majority of public sector enterprise agreements provide for 48/52 where an employee and the CEO can agree. And it is agreed also in Western Australia. There is also, for example, in the Northern Territory by agreement, including the agreement of the relevant union and the employer's approval. It is unclear in New South Wales and the ACT and Victoria - I apologise, in Victoria it would operate also via agreement. We say that even within the laboratory of the states and territories, which we say is to some extent the genesis of purchased leave, it operates by agreement and it operates by agreement because it is inherently difficult and impractical to do in any other way.

PN8673

We highlight these practical considerations from page 11-16 of our submission. There is, once again, an assumption in this clause, as there is in relation to the taking of - or to the entry into part-time work, there is once again an assumption that the time at which the leave will be taken will sort itself out. So create the entitlement and the rest of it will take care of itself. The clause doesn't tell you how to deal with disputes and we say will generate disputes regarding the time at which the employee is to take the leave. And it is worth considering - let us consider practically what this is going to mean.

PN8674

An employer is not going to have a single female employee asking to take school holidays off work. They are going to have multiple employees asking to take school holidays off work. How are they to reconcile the multiple competing demands? How are they to make the choices between one and the other and how to manage these additional leave obligations. The ACTU clause doesn't answer this. It merely sets up the pool of additional leave. It doesn't tell you what the rights and responsibilities are in relation to the taking of that leave. And because this is not annual leave, it is specifically not prosecuted as annual leave, the provisions of the Act and the annual leave clauses that tell you about disagreements on the timing of annual leave would not apply.

PN8675

VICE PRESIDENT ROSS: Don't the same difficulties arise now with the taking of annual leave? If you have got a group of employees or a significant proportion of your employees want to take leave over the Christmas school holidays, over another period of school holidays, you have still got to do a balance as to who goes and when.

PN8676

MR BARKLAMB: We say a couple of things in relation to that, your Honour. The first is you are trying to balance a significantly smaller pool of leave at any given time. It is a four-week challenge, not a 10-week challenge, which the ACTU would impose upon us. The second is that there are robust provisions in awards, to the extent they have been considered necessary, that address the circumstances where it is agreed and disagreed. So there is, as I understand - it is some time since I have had a look at these, bar the consideration in this case, of the thresholds for taking it within six months or a year, which I went to earlier, but the provisions on agreement and disagreement, as I understand it, talk about consent in the first instance and then an employer capacity to direct at a certain point and an employee capacity to initiate, if it is not provided within a certain period, in their right.

PN8677

Now, I may have that reading slightly wrong, someone else may correct me, but that is as I understand how the clauses work. So there are answers within the clauses as presently constructed. Now, that architecture would not save this clause, however, because if you set that up in relation to this clause or if you just said, well, all the purchased leave becomes annual leave, you are creating a much bigger problem. So where it is exceptional now, we say that annual leave can't be agreed and we don't understand there to be too many disputes, even in workplaces, frankly, where you have got multiple parents all seeking school holiday access to leave and the like.

PN8678

This is a reasonably marginal concern. If you multiply the extent of leave you are juggling, we say the concern is going to become a far greater one and really quite an operational challenge for the reasons we set out in our submissions. Once again, you come down to issues of replacement employees, managing leave accruals and the like. It is worth just taking pause briefly on the notion of replacement employees and inserting replacement labour because perhaps as we come to the end of our submissions or towards the end of our submissions, you have heard about the replacement of labour in relation to very different clauses and it is probably worth recalling there are differences in the considerations involved.

PN8679

Replacement of somebody for a period of two years or, even to the extent the ACTU is still prosecuting this, until the child reaches school age, is a very different proposition to replacing somebody going on simultaneous leave for some unknown period up to eight weeks or, indeed, if I have understood the ACTUs claim in regard to purchased leave correctly, two weeks here, two weeks there, two weeks here, two weeks there across school holidays. Those shorter periods of replacement employees can't be assumed to carry, and we don't say this is correct, but a simple cost of the wages not being increased plus some transactional cost about recruiting a replacement.

PN8680

I might put that a little more clearly. If I have got someone for two years to replace a parental leave employee, it could be argued my additional costs are the cost of attracting, recruiting and retaining that replacement employee for that extended period. When you come to these shorter periods, what are we talking about? We are talking about proprietors taking on more work themselves because you just can't get people in to do jobs for these short periods. You are talking about casuals, where you pay an extra loading. We are talking about paying other employees overtime. We are talking about jobs just simply not being done and costs to the employer, detriment to custom on that basis.

[4.05pm]

PN8681

These are just not periods for which the notion of straight labour replacement, even were they felt, and we say it certainly carries more costs than one might - than might instantly appear, that notion doesn't apply to the small and periodic absences that this would yield. Importantly, in relation to purchased leave, is the issue of payroll administration and the complexity and cost that this would create. We are talking about making vast distortions to pay rates and making complex calculations to make this work.

PN8682

We said - we have indicated earlier that each rate of pay in an award can potentially, or in any workplace, could potentially become several rates of pay and that complex averaging arrangements, which under the ACTUs clause are entirely at the discretion of the employee as to whether they want to buy one week or six, in addition - complex pay arrangements would certainly be the result of this. This not only has extra administrative cost and burden and complexity and makes the pay task considerably more difficult it intersects with the technology of pay. We have a genuine apprehension and we say that our evidence went to this; that payroll software and technology simply may not be able to do this.

PN8683

So, in addition to saying that the employer has got the operational cost of doing this; the replacement cost not only do they need someone to do the administration of payroll and such they may have to make an infrastructure investment to actually make this work in technical or IT terms. And we run through such concerns for example from page 11-25 of our final submission. There is also of course the issue of chopping and changing of this arrangement and of employees moving into and out of the purchased leave arrangement.

PN8684

Now we understand this to be an issue that our colleagues from the Australian Industry Group may go to in the contrasting of their proposals in this area with the ACTU. But, however, the raising of this issue comes about as a function of considering the extent to which the UK model which is of course for a different proposition which is the changing in hours, there is a restriction on how often employees can ask for these things. The ACTU model, as we understand it, would allow employees free access to exit these arrangements if they find for example they have been ambitious about the extent to which they can discount their pay and still maintain their family budgets, but allow a right to keep initiating these claims; to experiment.

PN8685

So not only have we got the potential of multiple employees having multiple iterations of pay discounting but even then within each employee we have got the prospect of chopping and changing.

PN8686

JUSTICE GEODIC: Is that a convenient time, Mr Barklamb?

PN8687

MR BARKLAMB: It certainly is, your Honour.

PN8688

JUSTICE GEODIC: Yes. We will resume in the morning at 10 o'clock.

ADJOURNED UNTIL THURSDAY, 16 DECEMBER 2004 [4.09pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ACCI9 DOCUMENT PN8279