C2003/4198, Transcript of Proceedings [2004] AIRCTrans 5067 (23 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 11232
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE, PRESIDENT
VICE PRESIDENT ROSS
SENIOR DEPUTY PRESIDENT CARTWRIGHT
DEPUTY PRESIDENT IVES
COMMISSIONER CRIBB

C2003/4198, 4199, 4203,
4301, 4302, 5142, 5143,
5144, 5166, 5167, 5168,
5268, 5272

RETAIL AND WHOLESALE INDUSTRY -
SHOP EMPLOYEES - AUSTRALIAN CAPITAL
TERRITORY - AWARD 2000

CLERICAL AND ADMINISTRATIVE EMPLOYEES
(VICTORIA) AWARD 1999

PHARMACEUTICAL GENERAL: CSL AWARD
1998

METAL, ENGINEERING AND ASSOCIATED
INDUSTRIES AWARD 1998 - PART I

GRAPHIC ARTS - GENERAL - AWARD
2000

BUSINESS EQUIPMENT INDUSTRY -
TECHNICAL SERVICE - AWARD 1999

RUBBER, PLASTIC AND CABLE MAKING
INDUSTRY - GENERAL - AWARD 1998

STORAGE SERVICES - GENERAL -
AWARD 1999

STORAGE SERVICES - FRUIT PACKING -
VICTORIA - AWARD 2002

Application under section 113 of the Act
to vary the above awards

MELBOURNE

10.03 AM, TUESDAY, 14 DECEMBER 2004

Continued from 13.12.04

PN7507

JUSTICE GIUDICE: Ms Bowtell.

PN7508

MS BOWTELL: Thank you, your Honour. When we left off yesterday I was addressing the matters that the employers have brought before these proceedings, and I will continue to do that for about probably 20, 25 minutes and then that should be the end of the ACTU this morning. The ACTU outlined yesterday that we oppose a number of the employer applications in relation to the flexible use of casual and part time employment and hours of work on the grounds that they provide for unlimited facilitation and opting out of the award protections that are provided, in particular in the hours of work clauses.

PN7509

Anther ground for our objection to the employer applications is that they allow for the working of long and unsafe hours of work, and so we object to them on those grounds. The particular clauses that we object to on the grounds of long and unsafe hours of work are the Australian Industry Group application which is entitled: Work and family balance, and it is found at ACTU1, page 15, which provides for employees and employers to agree to the working of the averaging of the ordinary hours of work over a 12 month period, and for the working of up to 12 hours in any one day. On our reading of the clause, it would be possible under that clause for an employee to work 12 hour shifts back to back without a break for, in fact, an unlimited period until they had reached their annual allocation of hours. And we say that that is an inappropriate amount of flexibility to be afforded to the parties.

PN7510

In regard to the ACCI claim for flexibility to balance work and family responsibilities, which is found at page 11 of ACTU1, which provides for no limit on the agreement between the parties as to how hours are organised, we also say that is unreasonably wide. With regard to the ACCI application for the taking of single days of absences of annual leave, unlimited access to all annual leave on single days, we oppose that on the grounds that it is also available there to employees to work for long periods of time, many years, without taking any break of any reasonable period of time. It would be possible under their clause for an employee to never take a break of more than, you know, a day or two here and there. And we would say that employees should not be able to with their employer agree to have no long period of break from work and to opt out of that requirement that there be some respite from work throughout the year.

PN7511

And on the same grounds, we oppose the ACCI claim for the unlimited carry forward of annual leave, which is found at ACTU1 at page 24, on the same grounds that, in fact, the employee could then work for many years without taking a reasonable period of time away from the workplace for the purposes of their rest and recreation.

PN7512

JUSTICE GIUDICE: But isn't that at the employee's election?

PN7513

MS BOWTELL: It is at the employee's election, your Honour, but there is -just because the employee may elect to work for a long period of time without rest and recreation is not to say that it is not an ill-effect on the employee. And, of course, in relation to fatigue, that is not just a risk to the individual employee but it is also a risk to their co-workers. And so there is a high obligation in just to protect the employee, but also to protect their colleagues at the workplace. That is particularly acute in relation to the long hours of work rather than the long duration of work, but fatigue can build up over a long period of time as well. And, in particular, if you have the two of them operating - - -

PN7514

JUSTICE GIUDICE: That seems to assume that people will act unreasonably.

PN7515

MS BOWTELL: Your Honour, we are talking about people who have pressure in relation to their - how they are balancing their workloads now, and they may - they may act unreasonably. They may act not in their best health interests. They may put ahead of their own health and safety the requirements of their family, for example. But in the long run there should be some limits as to what people can agree in their own - in the interests of their own health and safety.

PN7516

In particular if we talk about the 12 hour shifts, for example, the working of 12 hour shifts in some intense industries could result in not only danger to the employee and the colleagues but also to members of the public who are also affected by the work of that employee. And certainly working longer than 12 hour shifts as is envisaged under the ACCI application, where there are no limits on the hours of work that can be worked, raises that risk. So we say there is a need for limits and that the awards that are in place have considered the limits that are appropriate for the occupation and industries that they cover and that there is no evidence before you which would warrant employees being able to go outside those hours - hours of work clauses.

[10.08am]

PN7517

We also argue that the - a number of the employer applications should be imposed on the grounds that they allow the working of unsociable hours with no compensating additional wages and we argue that in relation to the makeup time clause which is found at ACTU1, page 17. Flexibility to balance work and family responsibilities and work and family balance which are the ACCI and AI Group hours of work clauses found at 11 and 15 respectively. In relation to makeup time, your Honours and Commissioner Cribb, as we read the clause which, as I said, was found at ACTU17 - - -

PN7518

JUSTICE GIUDICE: ACTU1, page 17?

PN7519

MS BOWTELL: ACTU1, 17. While there is agreement to the fact that makeup time might be worked there is no indication as to how the timing of the makeup time is to be arranged and we - there is no - we have no confidence that the clause would prevent an employee who had taken time off in the morning, for example, being directed to work to make up those hours at a time that was in fact completely contradictory to managing their work and family responsibilities. Late at night, over the weekend and so on.

PN7520

So the clause does not specify the hours at which the makeup time is to be worked - is also by agreement and without that confidence we are concerned that employees may be in debt to their employer to make up time and then be directed to work at a different time.

PN7521

JUSTICE GIUDICE: But if it provided for employee agreement to the time at which the debt was to be repaid, as it were, wouldn't it fall into the same category as the matter that we were just discussing where you were concerned that - I think that is the question of deferral of annual leave.

PN7522

MS BOWTELL: Yes - - -

PN7523

JUSTICE GIUDICE: That still the employer might act unreasonably and contrary to their own best interests.

PN7524

MS BOWTELL: Perhaps if I could just clarify on the deferral of annual leave. The ACTU has an alternative proposal which is to allow the deferral of annual leave for up to two years, your Honour, so we don't oppose a carry over of annual leave entirely but simply an unlimited carry over of annual leave. We can see some benefit in employees being able to accumulate annual leave so that they can take longer periods of time but we can't see any benefit in the employee being able to do that for an indefinite period and have - be able to work for a long, long period of time with no access to annual leave.

PN7525

In regards to the makeup time, your Honour, there are two questions that arise in relation to someone working evenings or - weekends or whatever making up the time that they have taken off during the ordinary hours of work. The first is that just because the employee has required that change because of their work and family responsibilities does not make the hours less unsociable. They are still unsociable hours even if the employee has requested the change.

PN7526

JUSTICE GIUDICE: Is that necessarily the case? They may be unsociable from the perspective of one person but convenience in the perspective of another because of the commitment of a father, for example, to working hours at other times and there may be all kinds of - - -

PN7527

MS BOWTELL: Yes, your Honour, the AI Group - - -

PN7528

JUSTICE GIUDICE: Shades of difference in personal circumstances.

PN7529

MS BOWTELL: There possibly are, but for example, we have brought forward the witness, Sonia Tatchell who does in fact work nights and weekends so that she can balance that work and family responsibilities. And her evidence went entirely to the impact that that has on her family. The pressures it places on her in-laws who look after the children while she is working in the evenings. The fact that her husband doesn't like the fact that she is never home on weekends. So although - and her witness statement is found at ACTU7, page 17 and page - I don't know what page it is.

PN7530

JUSTICE GIUDICE: But this proposal, as I understand it, is for working time to be swapped - - -

PN7531

MS BOWTELL: Yes.

PN7532

JUSTICE GIUDICE: - - - on the basis of family responsibilities. So the point of the provision seems to be that it - a concession to the normal working regime is made because of family responsibilities but the time is simply being made up at some other time.

PN7533

MS BOWTELL: Yes, our objection to the unsociable hours goes more to the issues of that being a long term arrangement that could be put in place under the hours of work clauses.

PN7534

JUSTICE GIUDICE: I see.

PN7535

MS BOWTELL: So it is particularly a one-off arrangement, your Honour and you can understand that that might be of benefit to people. But if, for example, an employee was to be - take for example the employee who says,well, I would like to be put on the night shift next year because I can't get child care for my child. And the second employee comes along and says, well, I would like to be put on the night shift next year because my rugby training is at 3 o'clock in the afternoon.

PN7536

The employee who asks for family purposes would be paid at the ordinary rate of pay for working night shift and the employee who asks for - to be shifted over to the night shift for football purposes, would be paid penalty rate.

PN7537

JUSTICE GIUDICE: Do you say that that would permissible under the makeup time claim?

PN7538

MS BOWTELL: Under the makeup time claim you would have two makeup time clauses operating in awards. You will have two RDO clauses operating awards. You will have two time off in lieu clauses operating an award. So you have the employees who access those facilities due to their family commitments are compensated at a different rate of pay than employees who access them for other reasons whether it is employer or employee initiated. And so we would say that would result in, not only confusion that there are two - certainly if there was - if the employer was flexible and there were lots of capacity to swap around you wouldn't say it was for family purposes, you would be inclined to say you had some other reason for wanting to swap.

PN7539

Because otherwise you are going to be compensated at ordinary rates of pay while your colleagues are being compensated according to the more general time off in lieu or makeup time arrangements.

PN7540

the fourth reason that I was going to come to today was that because the clauses will lead to confusion and inequity, because they sit side by side with similar clauses and awards, and employees accessing those facilities under the work and family responsibilities provision have inferior arrangements in terms of their wages and compensation than other employees. In relation to the - did that answer - - -

PN7541

JUSTICE GIUDICE: Yes. Thank you.

[10.16am]

PN7542

MS BOWTELL: In relation to the applications for single days of annual leave, long service leave in single days, and in particular the cashing out of long service leave, the ACTU opposes those clauses as antithetical to the purpose for which they were introduced into awards. Those applications are found at ACTU1 page 22 for single days of annual leave, and ACTU1 page 43 is the applications in respect to long service leave, flexibility applications in respect of long service leave. Flexibility, of course, brought by both the AI Group and ACCI, although the AI Group application does not involve the cashing out of long service leave.

PN7543

So the cashing out is antithetical to the purpose, and the single days of long service leave, again, is antithetical to the purpose. In relation to single days of annual leave as well, we oppose that on the grounds that there is going to be a differential impact between men and women. The problem with using an entitlement for one purpose for a separate purpose is that it diminishes the original purpose. So annual leave is provided for the purpose of rest and recreation. Employees, if they can use the entire year's 20 days annual leave in single day absences will not have the rest and recreation, and it is more likely that women will be in that position than men, and therefore it is more likely that women will end up unable to take reasonable blocks of time away from the workplace for their rest and recreation.

PN7544

JUSTICE GIUDICE: Is it your concern that employers would somehow or other bring about that situation, or that the employees concerned need to be protected from their own impulses to take time off for caring purposes.

PN7545

MS BOWTELL: Well, it is not an impulse, your Honour, so much as faced with the alternative, what is the least worst option? I will go without my annual leave, and that is the position that employees are in. Now, to some extent the settlement that we have reached in relation to carers leave with alleviate the need for single day absences of annual leave because it has extended access to an individual's sick leave for the purposes of caring. So the carers will diminish their own personal sick leave and may be able to keep their own personal annual leave intact, to some extent. But our concern, in particular, went to - - -

PN7546

JUSTICE GIUDICE: I must say I am just having difficulty with your approach to a number of these provisions, because it seems to me that the ACTU case is really directed towards giving carers, particularly women, I suppose, more options in terms of the ability to balance their responsibilities. Yet, in relation to these matters perhaps you are restricting the options.

PN7547

MS BOWTELL: Your Honour, it is not an intention to restrict options, but it is an intention to make sure that that is not completely unbalanced with the needs of the employee, as well as the people who are dependent on them for care, and we have

PN7548

to ensure that the employee is not - their own health and safety is not jeopardised.

PN7549

JUSTICE GIUDICE: But you seem to be - perhaps I am focussing too much on one part of your submissions, but you do seem to be submitting that in some way they need to be protected from making bad decisions about annual leave, for example, or time off in lieu.

PN7550

MS BOWTELL: The primary argument in relation to protecting employees from making bad submissions - - -

PN7551

JUSTICE GIUDICE: Decisions.

PN7552

MS BOWTELL: - - - is attaching to the hours clauses.

PN7553

JUSTICE GIUDICE: Yes.

PN7554

MS BOWTELL: It is where people are making a long term adjustment to the way they organise their hours of work that could be detrimental to their health and safety. That is where the main thrust of that argument comes from.

PN7555

JUSTICE GIUDICE: Yes.

PN7556

MS BOWTELL: In relation to the other clauses, our concern is more the issue of having two separate clauses in the award dealing with the same thing, and the inequity that that creates. So, if that gives you some indication of the weight we put on our submissions, in relation to health and safety it is weighted towards the hours of work; in relation to the make up time and RDOs and time off in lieu it is really related more to the inequities that that creates within the workplace where employees with family responsibilities are compensated differentially to their colleagues.

PN7557

JUSTICE GIUDICE: Yes. [10.20am]

PN7558

DEPUTY PRESIDENT IVES: Do you oppose the level of single day absences for annual leave, Ms Bowtell?

PN7559

MS BOWTELL: No. We have, in fact, put forward a proposal as well in this matter which is that the employees could access rather than five days per annum, which we are perfectly comfortable with that provision in the personal carer's leave test case and, in fact, in some awards it has been extended to ten. Two of the awards before you today have ten days access to single days annual leave. But what we have put forward is that an employee could access five of any of the twenty that they have so that if they can accumulate leave up to two years, that, in fact, gives them ten days that is available if they have been accumulating their leave.

PN7560

So if there is any of the single days untaken in a year, they would be able to be accumulated. So certainly it is a flexibly - it is not a question of absolute opposition. We support the outcomes from the personal carer's leave test case as suitable and balanced ways for employees to manage their work and family responsibilities, and we are more than comfortable with those being inserted into awards. They are already the safety net of the Commission and we don't oppose them in any way. It is the sort of extension of those to a point where they - the purpose for which they are there is overridden by other concerns.

PN7561

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Is there a limit on the time over which people can accumulate leave?

PN7562

MS BOWTELL: Well, under the ACCI proposal, there is no limit. The ACTU has put forward a proposal that you could accumulate two years of your annual leave - in terms of our proposal for the five days in any twenty?

PN7563

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Well, no, you referred to if an employee had been accumulating leave. I am wondering over what period they can accumulate leave.

PN7564

MS BOWTELL: Well, the ACTU had a look at that in our assessment of awards, and I am trying to remember exactly how many provided for the accumulation of annual leave. From memory, it was about half of the awards that we looked at, 77 had unlimited accumulation.

PN7565

JUSTICE GIUDICE: I think a number of State - - -

PN7566

MS BOWTELL: 42 allowed for accumulation of annual leave. So in that case we don't seek to disturb awards that provide for the accrual of annual leave and in those awards the employee would accrue, if they haven't taken their five days, would keep accruing five days per annum as well. So they may build up quite a bank of single day absences that they could take. In awards that don't provide for accrual of annual leave, we are saying it is appropriate that you would allow for up to two years accrual and in that case the employee would be able to accrue up to ten days and, if untaken, they could continue to accrue. So it is not limited to five days in any one year.

PN7567

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes. Were you suggesting that in those awards where accrual is possible you mentioned unlimited accrual, is that the case?

PN7568

MS BOWTELL: Yes. You would then be able to unlimited - if the award provides unlimited accrual of annual leave, you would also have unlimited accrual of the five single days. So the accrual of the single days would be linked to the accrual of annual leave. So you are simply accruing five days per 20 that you can take as single days, and if the award stops you accruing that 40, then that is when you stop but if - and effectively awards don't stop you accruing because if you aren't taking the leave, it is not taken out of your entitlement. I mean, although awards may not provide for accrual of annual leave, if the leave is not taken you don't lose it. So even those awards that don't explicitly allow for it and explicitly prohibit it, if the leave is not taken the leave is not lost.

PN7569

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Do I take it from your earlier submission that you would want to impose some limitation on the period over which leave can be accumulated because people would not be getting the rest and recreation that is provided for?

PN7570

MS BOWTELL: Our proposal is not to change those awards that provide for it, so we are not seeking to interfere with those awards. But where awards don't provide it, then the two year cap prevails. And there is certainly in the ACCIs submissions about this indications that employers have concerns about unlimited accrual of annual leave from accounting purposes and health and safety purposes as well. So, again, we are not opposed to the concepts that underpin the applications. It is the detail; the devil is in the detail. And it is in the implications for equity at the workplace into some regard.

PN7571

The final grounds on which we oppose the applications for I guess time shifting are that they abolish the majority facilitation arrangements in those few awards that continue to provide for majority facilitation and that goes to the applications for rostered days off, flexibility, make-up time, time off in lieu of overtime, the introduction of 12 hour shifts, and the averaging of hours; so the two hours applications and the three that arise from the personal and carer's leave test case.

PN7572

It is our submission that majority provisions have been introduced in awards over time in light of the particular circumstances that prevail in the industries and occupations that those awards cover, and that they have been reviewed in the context of the Workplace Relations Act, as it now exists. And they have been deemed under that review process to continue to have relevance in those awards. They don't remain in many awards but where they do remain, they have been seen by the Commission and the parties to the award. Sometimes the parties have not seen eye to eye with what the Commission has deemed, and at other times the parties have agreed that they continue to have relevance in those industries and occupations.

[10.28am]

PN7573

We certainly oppose any submission that there is - the Act favours individual agreement-making over collective agreement-making at the workplace level. There is no reading of section 3(c) or 3(d)(i) of the Act or section 143 which can be seen to favour the making of agreements between an individual employee or a group of employees. The term used in those clauses is the making of agreements between employers and employees. It does not favour individual over collective agreement-making at the workplace.

PN7574

The majority provisions, we say - well, majority provisions have to be understood that they are about enterprise access to these flexibilities, they are not about individual access to these flexibilities. So once the enterprise has agreed that the flexibility will be in place, then individuals can access them at will. So it is a once-off decision of the enterprise to introduce a time off in lieu arrangement, it is a once-off decision of the enterprise to introduce 12 hour shifts. Having done that, individuals have the capacity to access those arrangements within the award framework.

PN7575

Say, for example, a majority provision which provides for the substitution of a rostered day off, well, this one - yes, the majority provision that provides for the substitution of a rostered day off is a decision about whether the enterprise will open or close on a particular day, and it is appropriate that they be a majority decision. That is not a decision that an individual can make unless the individual is the employer. But individual employees can't make a decision about whether the enterprise is going to open on a day that it is not scheduled to open, and nor can they make a decision that it is going to close on a day that it is not scheduled to close. So substitution of rostered days off is actually about how the enterprise operates in large measure and not about how the individual operates.

PN7576

Similarly, a majority provision could be appropriate in relation to breaks. If the taking of a break requires the entire operation to stop work. So an employee - an employer might be quite comfortable to change the timing of the taking of a break but if that requires that there is no longer continuous operation of the work, then the other employees have a legitimate role in that decision. If one employee comes to the employer and says, well, I would like to work longer than five hours, I would like to work six hours and take my break a bit later, in some enterprises that involves shutting down the entire production line. Well, that is - the employer might not care whether it is taken at 12 o'clock or 1 o'clock, the break, but the other employees may well have a concern about that. So there are times when the majority facilitation is entirely appropriate and that - it is those type of examples where it tends to be maintained in the award system.

PN7577

We conducted an assessment of the 77 awards which is provided for the Commission in ACTU8 and a summary of that assessment of the majority facilitations is found at ACTU8, page - it is actually in our submission - sorry, no, it is not. It is at page 85 to 86, where we conducted an assessment of the majority provisions for time off in lieu - - -

PN7578

JUSTICE GIUDICE: I am sorry, this is ACTU8?

PN7579

MS BOWTELL: ACTU8.

PN7580

JUSTICE GIUDICE: That is the outline of reply contentions?

PN7581

MS BOWTELL: That is right, your Honour.

PN7582

JUSTICE GIUDICE: For some reason the document on the web only seems to go to page 50 but maybe - - -

PN7583

MS BOWTELL: I am sorry, your Honour, there is no consecutive numbering, it is - oh, yes, there is, so, there is consecutive numbering.

PN7584

JUSTICE GIUDICE: Perhaps the pagination is different. What is the paragraph number?

PN7585

MS BOWTELL: Paragraph number 21.

PN7586

JUSTICE GIUDICE: Yes. On this document - - -

PN7587

MS BOWTELL: It is tab 2, your Honour, it has come through as tabs on the web - no, it hasn't. It is not there on the web.

PN7588

JUSTICE GIUDICE: It doesn't appear to be there. That explains another problem I was having yesterday. In any event, we will have a look at the - - -

PN7589

MS BOWTELL: Sorry, there is a problem that the attachments to ACTU8 are not available on line, is that - - -

PN7590

JUSTICE GIUDICE: I think that is so. I am sure we will have the hard copies though. Yes, what was the page again, Ms Bowtell?

PN7591

MS BOWTELL: It is page 85.

PN7592

JUSTICE GIUDICE: Yes, thank you.

PN7593

MS BOWTELL: It simply outlines how time off in lieu majority provisions operate in the awards that we examined and the thing to be noted is that once the vote is taken to introduce a time off in lieu arrangement, and it may be in part of an enterprise, not the entire enterprise, that is the end of the matter. It doesn't go back each time someone wants to exercise their time off in lieu arrangements to see whether that is appropriate, it is about enterprise level access to the flexibility. After that, the individuals can access the flexibility as they deem appropriate and as their employer agrees.

PN7594

So we reject the notion that there is a majority veto over employees exercising these flexibilities. The purpose of the employee vote in the first instance is simply to cast an eye over whether it is appropriate to the type of work conducted at that enterprise and after that the individual can effectively access the flexibilities provided under the majority flexibility provision.

[10.35am]

PN7595

The final set of applications by the employers that I wanted to address this morning is the - - -

PN7596

JUSTICE GIUDICE: Just before you leave that majority facilitation point - - -

PN7597

MS BOWTELL: Yes.

PN7598

JUSTICE GIUDICE: - - - is there a ready reference to the areas in which you say there should be a majority facilitation rather than an individual agreement?

PN7599

MS BOWTELL: Your Honour, we don't seek to say there is and isn't. We say it is appropriate for that to be determined at award level.

PN7600

JUSTICE GIUDICE: At award level?

PN7601

MS BOWTELL: Yes. So we are saying that the majority provisions that exist in awards, and the individual flexibility provisions that exist in awards, and in circumstances where there is no flexibility in a particular area in an award, is something that has been determined appropriate to what takes place to the work that is performed pursuant to the award.

PN7602

JUSTICE GIUDICE: So that shouldn't be disturbed?

PN7603

MS BOWTELL: And we are saying that - well, it certainly shouldn't be disturbed without examination of the nature of the work covered by each award and we are saying that that was what happened during the award simplification process and what has fallen out of that process is that a fairly recent review of each award has taken place to see whether they are still appropriate or not.

PN7604

JUSTICE GIUDICE: Yes.

PN7605

MS BOWTELL: In many industries they were not maintained, but where they have been maintained we have to presume it was for good reason.

PN7606

JUSTICE GIUDICE: Yes, thank you.

PN7607

MS BOWTELL: I think that is probably our most important point, is that there is no evidence before the Commission that these are causing problems in particular awards. No evidence has been brought of any employers or employees covered by these awards who are having particular problems. There was the evidence - the witness statement of Ms Ellars provided by the ACCI at ACCI1, tab W, where she indicates that the chamber employs her - the ACT Chamber of Commerce and Industry does advise employers of their rights and entitlements under awards, but she did not give any indication as to whether that happens once a week, once a year, no indication of the extent of the problems.

PN7608

She gave no examples and she gave no - was unable to - or did not provide any information from which the Commission could conclude that there is widespread problems with the operation of majority clauses in awards. Now, in relation to the applications for casual and part-time flexibility - and they are found at ACTU1, pages 8 and 9 - both applications seek to allow an employer and an employee to opt out of any award regulations governing how part time and casual work is to be performed.

PN7609

On reading the ACCI arguments and submissions in relation to this it appears that there is no real argument in relation to the arrangement of hours. They devote only one paragraph to it, in which they say that there don't appear to be actually unduly restrictive clauses relating to the arrangement of hours for part timers. It appears more to be an argument about removing the limits on the duration of casual employment in awards. Now, the ACCI failed to bring forward any evidence that there is a problem in respect of work and family balance in terms of employees seeking long, ongoing casual employment and being unable to access that due to clauses in awards that limit the duration of casual employment.

PN7610

And the ACTU provided the Commission - and this is at ACTU8, page 344 - with a table from the Australian Bureau of Statistics survey of New South Wales workers who manage work and family responsibilities, which showed that the working arrangements - it measured the types of flexibilities that employees say that they want in order to manage their work and family responsibilities and the number indicating that they wanted to work casual work was too small to provide a statistically reliable estimation. So there is no incidence of unmet demand for casual employment for the purposes of balancing work and family responsibilities.

PN7611

And if you read the contentions of ACCI v The Commonwealth in relation to this the reason they get away with saying that workers want casual employment is because they conflate casual employment with part time employment. There is no absolutely no doubt that employees with intense caring loads value reduced hours work, but they value the hours of work and not the mode of employment and it is our submission that you can't conflate the mode of employment with the hours of work.

PN7612

JUSTICE GIUDICE: But is it possible that some of the respondents to the survey conflated part time and casual work?

PN7613

MS BOWTELL: It is possible that they conflated a whole lot of things, your Honour, but given that they had the two options there - I am not sure whether the options are read out or whether employees are simply asked to nominate, but I presume that the options are, sort of, you know, tick a box type of thing.

PN7614

JUSTICE GIUDICE: Yes.

PN7615

MS BOWTELL: In which case when you have got two options you would assume that there is then an informed decision to opt for the part time work rather than casual work. We also provided - and this is at ACTU8 over the page from that one, so it must be page 345 - HILDA data, which showed the reasons why people work part time by the type of employment contract that they are engaged under. Now, we have supplied this because the ACCI supplied a witness, Mr Hargreaves, whose witness statement is at ACCI1, tab W, witness B, who indicated that in his view employees with - workers with family responsibilities value casual employment because they value the additional wages that it brings in and it is that wages that help them balance their work and family responsibilities.

PN7616

So we have provided this to rebut that contention of Mr Hargreaves and it shows that of workers - if we look across the columns to workers engaged on a casual basis, the reasons that they work part time - it is not entirely right because it is why do they work part time. They work part time not to attract the casual pay premium. So only 0.6 per cent of them, if you look down the column, attracted to the pay premium attached to part time casual work. Very few did it to get the extra money. They worked - - -

PN7617

JUSTICE GIUDICE: But is it extra money? Isn't the casual premium related to foregone sick leave and - - -

[10.43am]

PN7618

MS BOWTELL: Yes. But the contention in Mr Hargreaves witness statement - - -

PN7619

JUSTICE GIUDICE: I am sorry. You are responding to what he said, yes.

PN7620

MS BOWTELL: - - - is that - yes. Is that - - -

PN7621

JUSTICE GIUDICE: I follow.

PN7622

MS BOWTELL: - - - people work casually because they value the money over the time.

PN7623

JUSTICE GIUDICE: Yes, I follow. Yes.

PN7624

MS BOWTELL: And we say that this shows that they don't work to get the premium.

PN7625

JUSTICE GIUDICE: Yes. Just incidentally though, that table shows a fairly low incidence of positive responses in relation to the reasons, caring for disabled or elderly relatives or other person or family responsibilities.

PN7626

MS BOWTELL: For casuals, or for across the board?

PN7627

JUSTICE GIUDICE: Well, across the board I think. It never gets to 2 per cent.

PN7628

MS BOWTELL: No. No, that is right. It is children - - -

PN7629

JUSTICE GIUDICE: Caring for - - -

PN7630

MS BOWTELL: If you take this - if you take it - - -

PN7631

JUSTICE GIUDICE: Caring for children, yes.

PN7632

MS BOWTELL: They are all low though, your Honour, because you have to take out the not asked. So that - the table should have been filtered. Looking at it, the table should have been filtered for the not asked.

PN7633

JUSTICE GIUDICE: I assumed that was no asked whether they wanted full-time work.

PN7634

MS BOWTELL: I think it is probably actually - your Honour, I will have to check the date.

PN7635

JUSTICE GIUDICE: Yes.

PN7636

MS BOWTELL: I think that it is probably that they shouldn't have been included.

PN7637

JUSTICE GIUDICE: Yes, well look - - -

PN7638

MS BOWTELL: That it may include the full-timers.

PN7639

JUSTICE GIUDICE: Well, it is - - -

PN7640

MS BOWTELL: It is people who have been - people who have been asked shouldn't have been asked the question.

PN7641

JUSTICE GIUDICE: Yes.

PN7642

MS BOWTELL: To the 80 per cent of people who were not asked.

PN7643

JUSTICE GIUDICE: I thought that meant they weren't given the option of working full-time.

PN7644

MS BOWTELL: Well, these are people who are working part-time. It should be people who are working part - should only include people who are working part-time.

PN7645

JUSTICE GIUDICE: But it is working part-time, rather than full-time.

PN7646

MS BOWTELL: If we take - nonetheless, even if we take out the 80 per cent who were not asked, it shows that by - overwhelmingly the reason that people work are - work on a - work for - work part-time, is caring for children. The highest response is caring for children, and then the next highest response is going to university and school.

PN7647

JUSTICE GIUDICE: Sorry. Which column are you looking at?

PN7648

MS BOWTELL: I am looking in the casual column there, although it seems to be for the other two columns as well. Or not so much permanent and ongoing, but for casuals it is going to university and school, and caring for children.

PN7649

JUSTICE GIUDICE: Yes. Thanks.

PN7650

MS BOWTELL: I am prepared to come back with an answer as to why there is 80 per cent not asked though.

PN7651

JUSTICE GIUDICE: Well, there are two not asked, of course. There is a vertical and a horizontal.

PN7652

MS BOWTELL: Yes. Yes. Simply to say though that there is no indication in any of the evidence that has been brought forward that people value the casual loading.

PN7653

JUSTICE GIUDICE: Yes. I understand that was the point of the reference. Yes.

PN7654

MS BOWTELL: Yes.

PN7655

JUSTICE GIUDICE: I got distracted. I am sorry about that.

PN7656

MS BOWTELL: Very quickly, your Honours, I have gone longer than I planned to, you have before you five applications that are related to effectively accessing unpaid leave. They are found - the two purchase leave applications are found at page 35 of ACTU1. There are two applications for unpaid leave adjacent to annual leave, and the ACTU and AI Group perhaps need to have a discussion about these applications, because we put forward our proposal in response to AI Group's proposal, but AI Group say in their submissions that they put forward their proposal in response to our proposal.

PN7657

So neither party has actually put forward any argument as to why the proposal should be put before you, which perhaps leaves you with a bit of a problem. But nonetheless, there is applications for parties to be able to effectively take some unpaid leave adjacent to their annual leave and, if possible, average pay over that time, and then the ACCI have a proposal for double annual leave at half pay. All of the parties support the purposes behind these applications, clearly, and simply to say that the principles we say that you should - should guide you in deciding between the five is that we say you should focus on people who have acute caring needs, and if you focus on people who have acute caring needs then you will be more disposed to place some obligation on the employer to try and accommodate the requests, and therefore our right to request model is favoured.

PN7658

If the obligations are more broad and go to, you know, going on long holidays overseas with your family and so on, then clearly the right to request model is less valuable, and the ACTU says that in relation to workers with family responsibilities the ones who we should be assisting through the award safety net are those with acute caring needs, and that if we are assisting those workers then that justifies our right to request and not unreasonably refuse model being included in those applications. Before I move off purchased leave, I think I was a little bit confusing yesterday in my explanation of the differences between ourselves and the AI Group, so I just wanted to take you to page 39 of ACTU1.

PN7659

There is in fact - no, it actually starts on page 38 and goes over to page 39, and there is in fact no difference between the ACTU and the AI Group in relation to the calculation of the purchased leave. The purchase leave calculation operates, as I explained yesterday, that an employee's weekly ordinary rate is reduced by the amount of leave that they are purchasing, and in the example that the AI Group provide there, if someone purchased two weeks annual leave, or two weeks purchased leave, they would be paid for 38 hours work at 38 by 96.1538 per cent of the ordinary weekly wage.

PN7660

If they were to work overtime they would be paid 38 hours by 96.1538 per cent for the 38 hours that they have worked, and then however many overtime hours at that by the ordinary overtime rate, so that by 150 per cent, for example. If they were to proceed on annual leave they would be paid during their annual leave four weeks pay at the 96 per cent rate, plus the annual leave loading of 17.5 per cent of the 100 per cent rate. So that perhaps makes it a bit clearer.

PN7661

The difference between ourselves and the AI Group is found on page 41 of the application of ACTU1, and it relates to the difference between the effect of purchased leave on other award entitlements, where the ACTU says that purchased leave - we agree that purchased leave doesn't count for the accumulation of other entitlements, but does count for service for the purposes of notice of termination and severance pay, eligibility for parental leave. Both parties were concerned that they might have missed something out there, so the ACTU says that any other provisions which we have not specified, purchased leave counts as service towards those. Whereas, the AI Group says any other provisions we have not specified, purchased leave does not count as service towards those, and that is the difference between the parties there.

[10.49am]

PN7662

Your Honours, we say that the ACCI and AI Group applications in these matters are not based on any strong evidence. They have shown no problems at the workplace level in employees accessing the flexibilities that arise out of the - arose out of the Personal Carers Leave Test Case. They have shown no problems at the workplace level in relation to employees accessing part-time or casual employment, due to restrictions in the way those modes of employment operate in awards. The AI Group has brought forward no evidence that job share cannot be achieved through the existing part-time provisions in awards, and the applications that allow employees and employers carte blanche as to how they organise their hours of work are antithetical to employee health and safety.

PN7663

They are inconsistent with the Commission's approach to facilitation, which provides safeguards for employees, and should not be granted on those grounds. If your Honour pleases, that is our submission.

PN7664

JUSTICE GIUDICE: Thank you, Ms Bowtell. Mr Green?

PN7665

MR GREEN: May it please the Commission. May I hand up to the Members of the Full Bench some hard copies of our written submissions filed on 19 November?

PN7666

JUSTICE GIUDICE: It is the same as was filed, Mr Green, is that right?

PN7667

MR GREEN: It is the same one that was filed, your Honour. I just ask the Members of the Bench, once they have got a copy, if they would go to page 15, paragraph 51. It is at page 15.

PN7668

JUSTICE GIUDICE: Yes.

PN7669

MR GREEN: Paragraph 51. May I ask the Members of the Full Bench to delete from Roman (ii), towards the bottom of the page, the words "for the".

PN7670

JUSTICE GIUDICE: Yes. I think we might mark the submission so that we just keep track of it, Mr Green.

PN7671

MR GREEN: May it please your Honour.

EXHIBIT #ACCER1 WRITTEN SUBMISSIONS

PN7672

MR GREEN: For the uninitiated, may we say that the ACCER represents Catholic church organisations in the sectors of health, education and community services, and in diocesan and parish administration. Catholic social teaching recognises the importance of balancing work and family responsibilities. In that context we are conscious of the significance of the test case that is before the Full Bench. The submission that we would advance today is that work and family need to be looked at as a totality. There is, we lament, currently a duality between work and family which is unsatisfactory.

PN7673

In keeping with the principles of Catholic social teaching, the ACCER supports the ACTU claims for consultation during parental leave and for reasonable time off for unpaid emergency leave. It also supports in principle but with qualifications the balance of the ACTU claims. The ACCER is conscious that there is a great diversity amongst industries, workplaces and the needs of individual employers and employees. For this reason in paragraph 51 of our submission we proposed an award prescription that was designed to strike a balance, as we saw it, between the needs of the employer and the needs of an employee.

PN7674

In substance, we are advancing the contention that employees should have the right to request the relevant leave or flexible working arrangements which the ACTU propose. As the ACCI and National Farmers Federation have said in their submissions on 19 November last, one size does not fit all. We submit that the grant of an absolute entitlement to employees, as proposed by the ACTU, would fail to take into account relevant practical considerations, such as the impact on co-workers, cost factors, and whether work arrangements can be recognised to accommodate the request.

PN7675

By the same token, the fact that economic and organisational considerations may mean that the claims are not workable in some workplaces is not a reason against providing an award prescription to improve work and family life balance in other workplaces. According to our proposed clause, the employer must not unreasonably refuse to grant a request. The proposed clause provides a non-exhaustive list of factors that the employer is enjoined to consider in determining whether to grant the request.

PN7676

The following factors are factors that are much the same as those, we acknowledge, identified in the contentions of the States and Territories in paragraph 120 of their contentions dated 14 May 2004, namely, the employee's family and personal circumstances, the cost of accommodating the employee's request, the capacity to re-organise work arrangements to accommodate the employee's request, and the effect on the employee and her or his dependents of the request not being granted. However, the ACCER has identified further factors that it submits are relevant to the employer's decision.

PN7677

These are the nature of the employee's work, the requirements of other industrial laws affecting the employer and employee, and the impact on third parties of accommodating the employee's request, including the impact on co-workers, those with and without families, and also service recipients, such as clients and customers. Because the clause we propose would require the employee's request to be determined on a case by case basis it addresses concerns raised by the employer associations in relation to the potential impact on small business, the cost of implementing the request, organisational issues such as the location and time of work, and obtaining majority approval in respect of facilitative provisions.

PN7678

It also addresses issues which the ACTU have raised in relation to changes in the labour force, the importance of caring responsibilities, and the use of enterprise bargaining to achieve family-friendly working arrangements. May we say that we expect that most decisions will be appropriately determined at the workplace. The non-exhaustive list of factors to be considered that we have set down and the requirement to provide written reasons would, we submit, guard against arbitrary decisions, or decisions being made without regard being paid to the full consideration of the circumstance as a whole.

PN7679

However, we observe too that the clause would also enable an employee to seek an internal review of the decision, and if the matter couldn't be resolved, either party could refer the matter to a Registrar. And we draw to the Commission's attention the various powers conferred upon the Registrar or Deputy Registrar and we refer to section 67(2) of the Workplace Relations Act - section 79. And there is capacity for an appeal with leave from a Registrar to the Commission under section 81. So it is, if the Commission pleases, that the clause proposed by ACCER attempts to balance the needs of both the employer and employee and to assist employees to balance work and family responsibilities where more flexible working arrangements can be accommodated. May it please the Commission.

[11.00am]

PN7680

JUSTICE GIUDICE: Thank you, Mr Green.

PN7681

MS DOYLE: I think by agreement between the parties I am the next cab of the rank - - -

PN7682

JUSTICE GIUDICE: Yes, Ms Doyle.

PN7683

MS DOYLE: - - - and I propose to make submissions in support of the contentions of the states and territories. The Commission should have our closing contentions dated 19 November, it is a single bound volume and I would ask that those be available and marked in the proceedings.

EXHIBIT #S and T5 CLOSING CONTENTIONS

PN7684

MS DOYLE: I think in the other numbering, your Honour, we are up to S and T5.

PN7685

JUSTICE GIUDICE: Are we? I am sorry, I just misread something, yes. Sorry, about that. S and T5, yes.

PN7686

MS DOYLE: If the Commission pleases. What I propose to do this morning is deal with some aspects of those closing contentions. They are comprehensive and the bench will see that in various parts they outline the proposal put forward by the state and territory Governments. They deal with some of the evidence that pertains to why change may be required and I don't intend to rehearse that this morning. That is dealt with in everybody's contentions and it has been dealt with by Ms Bowtell. That is in parts B and C of our written contentions.

PN7687

Part D deals with why we submit an award entitlement or variation is necessary. Part E deals with why we propose a right to request one and that is really where the bulk of my time this morning will be spent. Part F of our contentions deal with a comparison with the UK model, which in some aspects, is similar to the right to request the model we propose. Again, I don't intend to dwell on that segment of our contentions this morning. It has been deal with again in everybody's contentions and by Ms Bowtell.

PN7688

Part G of our submissions deal with the business case for the introduction of family friendly measures and again our written contentions speak for themselves in that context. Parts H, I and J deal with employer objections and I only propose really to deal with part J in that context. The clauses proposed by the states and territories are set out in a table which is attachment one of our closing contentions and from time to time this morning I will go to those because the table sets them out in a form where they can be seen in comparison with the ACTUs position and that table and the proposed drafted clauses appear at page 78 onwards of our written contentions.

PN7689

You will see from that table and from the contentions as a whole that the states and territories support the making of award provisions or variations in the following way. They support a small list - a short list of employee entitlements. They support a number of rights to request which an employer must no unreasonable refuse in the light of certain criteria which I will develop in a moment. And, finally, they support a capacity for employers and employees to agree in relation to one element and that is periods of unpaid child rearing leave up to the school age.

PN7690

Now, returning to the first category of entitlements the states and territories support an employee entitlement of the following kind. Four weeks simultaneous unpaid parental leave after the birth or adoption of a child. And the evidence that we have collected that deals with the necessity for that provision appears in part C of our contentions at page 23. The states and territories also support an entitlement to meaningful consultation while on parental leave. And, again, we have collected evidence and submission in that context in part C at page 36.

PN7691

Now, that matter is mostly the subject of agreement between the ACTU and the employers now, but I do just pause to note that there is one difference and it is one in which we join, in the sense that we similarly submit that an obligation to provide information and notice ought to be a mutual obligation and I think there is agreement roundly about that. But we endorse the ACTUs submission that that obligation to provide information is somewhat empty if it does not also have as a springboard a capacity to discuss.

PN7692

So in a sense it comes down to a difference over one or two words in the proposed clauses, but it is our submission, that without that add-on, the exchange of information becomes an empty exercise. We also of course support the agreement that has been reached in relation to an entitlement to personal and carer's leave and that is set out in ACTU8 and I don't intend to dwell on that. Now, the bulk of our proposal which differs from the ACTU and has some overlap with the submissions Mr Green made this morning, is that in relation to a right to request an employer obligation to not unreasonably refuse.

PN7693

The benefits that we have organised under this heading - or the rights to request that we have organised under this heading, are these. The capacity to extend that simultaneous parental leave from four weeks to eight weeks. And, again, I just note that the evidence and submissions we make about that in particular appear in part C of page 23. We also support a right to request an extension of the current 12 months unpaid parental leave for a further 12 months, or in other words, up to a total of 24.

PN7694

And, again, the evidence we have collected about that, or summarised, appears in part C, page 25. We support a right to request a return to part time work after parental leave in one or more periods until the child reaches school age and that is dealt with in part C of page 31. We support a right to request up to six weeks additional unpaid or purchase leave in order to assist employees organising work and family responsibilities or a reasonable period of unpaid leave immediately following a period of annual leave.

PN7695

And the evidence about those species of extra leave, whether it is unpaid or purchased, appears in part C, page 30. We also support a right to request flexible working arrangements in respect of variations to hours or time of work. And I just repeat what Ms Bowtell alerted the bench and the parties to yesterday that, we will no longer - we do no longer press the right to request in the context of variation to location of work. We do, however, support the ACTUs note or submission that it is a matter pertaining and would therefore be a suitable matter for workplace bargaining.

PN7696

But as we are not the principle moving party in this context we no longer press that as an award variation in this context. And just for completeness, the evidence and submissions we make about that right to request flexibilities in terms of hours or time, is collected in part C, page 34. Now, these employee right to request that we endorse all revolve around a requirement that the employer, faced with such a request, not unreasonable refuse it. And so in that sense the entitlement is conditioned by this obligation that the employer give it consideration, and as we say, not unreasonably refused but it is given content by the criteria that we propose.

PN7697

And we propose that the employer in considering the obligation - in considering the request is obliged to have regard to the following criteria. Three of those criteria are focused on the needs of the employer or the business imperatives and those three criteria are the cost in accommodating the employee's request, secondly, the capacity to reorganise work arrangements to accommodate that request and thirdly, the impact on delivery of customer service.

PN7698

Then there are two criteria we advance that are focused on the employee's side of the story or the employee's caring or family's responsibilities and needs. And those two criteria are the particular circumstances of the employee, especially the nature of his or her caring need and the impact on the employee and his or her dependence on the request not being granted. That is right to request model in a nutshell. I will come back to it in a moment. Can I just finish this segment by indicating that we also endorse a capacity to agree a species of means of accommodating the work and family balance.

PN7699

And in that context, we support an award provision which would provide a capacity for employers and employees to agree to further periods of unpaid child rearing leave up to the child reaching school age. The material that we advance in relation to that proposal is organised in part C, page 30. I think - - -

PN7700

JUSTICE GIUDICE: I am just looking at your summary in paragraph 5.

PN7701

MS DOYLE: Yes.

PN7702

JUSTICE GIUDICE: That last matter you mentioned, where does that come into those?

PN7703

MS DOYLE: That is - because that is under the heading of a capacity to agree, the section that deals with that starts at paragraph 12. This is different, this is not conditioned by the obligation to - - -

PN7704

JUSTICE GIUDICE: I follow, yes.

PN7705

MS DOYLE: - - - not unreasonably refuse or consider any criteria. And the reason we make it quite explicit in that section is this. That notion of what might be quite long periods of leave - unpaid leave over a longer period in an employee's working time or position - - -

PN7706

JUSTICE GIUDICE: Yes.

PN7707

MS DOYLE: - - - is something that, we submit, explicitly is something that should be available but should only be available by agreement between the parties. Because of its different nature it may be more difficult to accommodate.

PN7708

JUSTICE GIUDICE: Yes, I was just more interested in the structure of the submission. I thought that the additional period of parental leave, the additional year, was in the same category.

PN7709

MS DOYLE: Not it is in the - falls under the right to request model.

PN7710

JUSTICE GIUDICE: I see.

PN7711

MS DOYLE: So, for example, that appears in the table at page 82.

[11.12am]

PN7712

And the right hand column deals with the states and territories position, and you will see that it - after reciting the existing entitlement, the 12 months, it then notes:

PN7713

In addition parents shall have a right to request an additional combined total of 52 weeks unpaid parental leave.

PN7714

And then repeats all of the aspects of the right to request model that we endorse under each relevant heading.

PN7715

JUSTICE GIUDICE: Yes. Yes, thanks.

PN7716

MS DOYLE: Now, if I can return in a little more detail to the content of the right to request model. You will have seen already, if the Commission pleases, that it is a recognition of a right to request which is an explicit acknowledgment of the importance of family and caring needs and there is some value in that, and in a moment I will go to some comments made in the reasonable hours test case which endorsed that. But because it is conditional on an employer obligation to consider the request in light of a number of factors, it is our submission that it provides the best mode of balancing the needs of business against the caring or family needs of an employee who makes such a request.

PN7717

We also submit that reasonableness is an appropriate and helpful objective standard. Reasonableness is objective but, of course, it is capable of flexible application. I read in the employers' submissions on occasions some of the criticism about reasonableness, or unreasonableness, is that it can lead to different results. Well, in our submission that is precisely the benefit that that model offers, because it is one standard - an objective standard. But as the Commission well knows, because of its use in awards in the unfair dismissal regime, and in other contexts where it is familiar to industrial practitioners, it, of course, despite its objective application, has a particular operation in each workplace.

PN7718

If I can take the Commission to page 5 of our submissions where some of this is touched on, and then I will turn to part E, where we deal in more detail with the right to request model. As our submissions note in paragraph 7 this model permits a balancing exercise to be carried out, but against the backdrop of objective criteria. Now, the criteria are going to apply in every case but what they don't mandate is a particular outcome in every case, and, of course, the catchcry of the employer submissions is also that one size does not fit all and to that extent this model preserves that reality. What this right to request model also provides is the capacity for each individual case to be considered on its merits at the workplace level, but within the same framework of consideration. In our submission that avoids ad hoc responses or blanket refusals without consideration of the content of the request. So in that way - - -

PN7719

JUSTICE GIUDICE: Is there a possibility that a model might create friction, where none might otherwise exist, by the requirement to consider a range of factors and possibly spend time looking at those in detail and so on?

PN7720

MS DOYLE: I wouldn't have thought so, your Honour, because it will be horses for courses in this sense. A one off request to access the emergency - it is probably not the best example - a request to access the part time return to work might be something that will involve some detailed consideration of particular workplaces because it might be the first time it has been tried, or because there might be a need to reorganise shifts, and that might be something that would involve more time. But a request from somebody already on parental leave to extend parental leave for a couple more months in circumstances where there is a large flexible workplace, where that poses no difficulty, shouldn't cause any unreasonable timeframe, but also shouldn't cause any friction.

PN7721

It will really be a question of looking at those criteria, but, of course, we don't propose that there be a Royal Commission into every application, or that there be a requirement to demonstrate a certain level of investigation in relation to each of those criteria. They are much like the criteria proposed in the reasonable hours test case, in that they organise relevant material under headings for the employer, but they don't mandate a week long investigation into whether it is going to be suitable in the instance. So I wouldn't have thought that it should create that species of friction in the circumstances. And, of course, as the end point our model suggests that if a resolution is not reached the dispute settling procedures of the Commission be accessed, and I will go to that in the course of our submissions.

PN7722

If I can turn now to part E of our submissions and the relevant part commences at page 51 of the contentions. The criteria are repeated there. Perhaps I will turn to page 52. The states and territories submit that some benefits flow from the creation of this explicit right to request. One of the criticisms made in the employer's submissions is well, we already do it. We do it in a less formal way. We don't necessarily always consider the same criteria but we have advanced evidence which demonstrates that on occasion employers have managed to reach one off agreements or even certify agreements that deal with these sorts of matters.

PN7723

We don't dispute that and we say to the extent that those practices exist in an ad hoc way or a more formal way, they are to be applauded, but what this explicit right to request does, is provides a firm basis for employees who may not otherwise have the capacity, the bargaining power or the courage to make such a request. When it is in the award it is much more likely that someone will consider making the request and it also ensure that the request won't be refused in a vacuum or arbitrarily or capriciously, or if it is there will be a requirement to revisit those criteria.

PN7724

I want to remind the Commission of some comments that are quite apposite made in the reasonable hours test case. For the most part they are actually extracted in our submissions and I note that the ACTU have provided a copy of the case at tab 27 of their folder of authorities. There is probably no need to go into it now, as I can identify for the Bench the passages we rely on which are very relevant to the model I am making submissions about at the moment. At paragraph 278 of that decision the Full Bench in that reasonable hours test case, in the context of describing the clause it proposed in relation to the right to refuse overtime, said the following:

PN7725

In our opinion it is desirable that the test case provision should provide some guidance to the parties on the matters which should be taken into account in deciding whether the working of overtime would result in an employee working unreasonable hours.

PN7726

Now, the Full Bench then noted that while they had considered the factors proposed in the ACTUs claim, it was the Bench's opinion that the absence of any factors referable to the circumstances of the employer was a serious defect in the claim. Now, having taken that on board the states and territories propose a list of criteria, three of which focus on the needs of the business and the organisation of its work and two of which focus on the employees' particular caring need or family responsibility. And as it said, the Full Bench in that matter did include criteria which reflected on the circumstances of the employer and the employees.

PN7727

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Is there evidence you draw upon to suggest that they are the right criteria?

PN7728

MS DOYLE: There is experience we draw upon in part F which deals with the application of the comparison with the UK model. In terms of evidence, no, because there is no direct comparator in any particular other legal system or other industrial system. But in a legal sense we draw on the example of the reasonable hours test case and the criteria proposed there, and in another sense on common sense, because the employers' submissions are replete with references to the need to take into account matters which might fall under the first three criteria, and the evidence advanced by the ACTU provides a huge body of material that would endorse consideration of the second two criteria, the employees' caring needs and the impact on their dependence.

PN7729

So in that way, yes, but organising them in this mode as this precise list. The best example - or the best comparator would be the recent reasonable hours test case itself. Continuing with what the Bench said in that matter at para 278 - I just note also that the Full Bench said:

PN7730

We are also conscious that the provision must be capable of application to a broad range of situations.

PN7731

And that for that reason it was preferable to deal with matters on a general level rather than attempting to list every single factor, and in our submission we have hit the right balance in that regard as well. Rather than attempting to imagine every conceivable issue which would arise in respect of such a request, we have organised them into those that are likely to arise in each typical workplace. At para 279 the Full Bench noted that:

PN7732

It could be said of course that an employee's right to refuse to work overtime is already implicit in the existing award structure.

PN7733

And to some extent as the employers say time and time again in these proceedings, well, employees can make requests of their employers and here is material which evidences the fact that they do. As I said, we accept that, but the Full Bench went on to say - and we endorse it in these circumstances too:

PN7734

But we think there are a number of advantages in making such a right explicit and moreover the evidence before us supports the creation of an award right of the type we have determined. The provision of an explicit right to refuse to work overtime in the circumstances specified will provide employees with a firmer basis upon which to refuse to work unreasonable overtime.

PN7735

We say the analogy here is clear. And finally at para 281 in the reasonable hours test case the Bench went on to say:

PN7736

The creation of an explicit right also has the advantage of providing an opportunity for overtime issues to be raised at an ...(reads)... in the relevant award.

PN7737

The Bench noted that a weakness in the current reasonable overtime provisions is that an employer may be found to be in breach of the provisions some time after the working of the overtime in question while the new award right will provide a potential for greater certainty for both the employers and employees. And with respect, we would submit, that our model achieves the same end in the sense that it makes the right explicit so it provides employees with a firmer basis to make their case for their entitlement.

PN7738

It provides criteria which are useful but not so specific as to be burdensome. It allows the matter to be raised at the time it is relevant to the employees' caring need, and all other things being equal, it then provides a mode by which the request can be considered at that time judged against the criteria. If the application of those criteria and reasonable minds are not able to reach a result, then as was the case in the reasonable hours test case, there is the advantage of recourse to the Commission.

PN7739

And later in my submissions I am going to compare that with the capacity that employees have to draw on the anti discrimination or equal opportunity regime to achieve the same end. There is no dispute it can be done if the facts are there and the law is on your side. But, of course, commencing proceedings in this state, for example, in VCAT or in the Federal regime, in jurisdictions which can attract awards of costs, in jurisdictions which are sometimes characterised by delay and difficulty and different legal standards. That does not provide a true alternative to the model that we are suggesting and access to the Commission's procedures under dispute settlement mechanisms.

PN7740

One of the advantages of having access to the Commission's - or to the relevant awards dispute settling procedure is that it avoids the stalemate. The Bench, your Honour and Commissioner Cribb, you may have noticed that the discrimination cases summarised by nearly all of the parties in their submissions, when you look at the evidence in those cases, there is a striking similarity. The employee, often someone on maternity leave or who has returned from maternity leave, makes a request to vary time of work or offer to convert to part-time hours.

PN7741

And there is a remarkable similarity in the facts in the sense that there is a request made in a vacuum as I would describe it, a flurry of correspondence which passes like ships in the night between the parties and ensuing stalemate, employment relationship ends and proceedings are commenced, whether it be in VCAT or another jurisdiction. The model proposed by the states and territories avoids that, in most cases we would say and hopefully all of them, avoids that stalemate and avoids the situation where the only way to vindicate a right is to commence legal proceedings.

PN7742

We acknowledge, as has been pointed out in some of the submissions, that it is a different mode of review than the UK model. It is the case that the UK model proposes access to a, or permits access to a Tribunal, but that the Tribunal is limited to reviewing the procedure adopted by the employer who considered the request. But the beauty of the dispute settlement procedures already in our awards. Some of them are slightly different but most have the same core elements. They provide a series of escalating steps at the workplace and a fora in which to have negotiations and discussions and at the end of the day recourse to the Commission. So it is different from the UK model to that extent, but to that extent we say that is a strength and not a weakness of the model.

PN7743

I won't take the Commission in other respects to part F of our submissions. As I said, they deal with a more detailed comparison with the UK model and with the findings from the UK research. Fairly early days but an indication that it is working and having some success in that context.

PN7744

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I think a question was asked yesterday of Ms Bowtell to which she was going to return, along the lines of ..... satisfied that the jurisdiction exists for the Commission to deal with individual cases for both those general and ..... issues.

PN7745

MS DOYLE: Yes.

PN7746

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Sorry, that is not quite the terms in which it was asked.

PN7747

MS DOYLE: No, but I have had a look - I remember the question and I have had a look at the transcript this morning as well to remind myself. And, yes, I noted that question and have had a look at and I have them available for the Commission if it helps, had a look at the dispute resolution provisions in the awards before the Commission. And, as I said, of course, these award clauses vary across the country but the ones at issue in these proceedings are remarkably similar and they are quite routine in the sense that they provide the very traditional escalating steps, involvement of the supervisor, union rep or other representative. And most of them have the following touchstone:

PN7748

If the matter cannot be resolved it may be referred to the Commission for resolution.

PN7749

So others are more explicit but each would tend to suggest that either party can refer it to the Commission. Now, it is possible that in a particular case a clause might be constructed, I would say, perhaps poorly in the sense that I am aware of some that require a joint referral to the Commission which can be problematic, but I believe that most, these days, have that mechanism which allows either party to refer it to the Commission.

PN7750

In the jurisdictional context I would have thought that in most cases it would be an industrial matter capable of resolution in the ordinary way. That doesn't discount the possibility that in a particular case an employer may raise a jurisdictional hurdle and may argue that a particular request has not been converted into or can't have the character of something the Commission can deal with, but I would have thought it unlikely and in light of the words of the Full Bench in the Reasonable Hours Test Case which seemed to envisage that those sorts of disputes would come before the Commission. Those are, for the most part one would think, very individual matters but there would be others where a whole crew or shift might say, well, we refuse to work the overtime.

PN7751

But, similarly, there might be workplaces in this context where a number of parents say, yes, we would like to go part-time and there would evidently be the requisite jurisdictional link. There might also be other workplaces where there is, nonetheless, industrial dispute about one parent's insistence on pressing their right to request return to work part-time. It will depend on the facts but we took some comfort from the comments of the Commission in the other matter and don't see any impediment, at least to granting the clause, and if in a particular case a jurisdictional point is raised it will be dealt with, one would think, on the facts pertaining to that particular application.

PN7752

Part D of our contentions deal with why we propose an award entitlement and I suppose are addressed at countering the employers' submissions that we should use what we already have. And in that context the employers say, well, let us stick with the informal agreement-making at the workplace level about which some evidence has been advised. Let us continue to support the primacy of workplace bargaining and certified agreements and let us have employees continue to access the discrimination regime where appropriate.

PN7753

Now, the states and territories don't deny that those other modes of accommodating the work/family balance exist. And we don't seek to criticise them in the context of these proceedings but we do endorse creation of new rights through these award variations we propose. We say that leaving issues to be governed by ad hoc workplace negotiations or once-off agreements is inadequate. We say the same about certified agreements and in a moment I will go to the recent material that the ACTU brought to the Bench's attention yesterday about the low incidence of family friendly provisions in certified agreements.

PN7754

And we say that leaving the management of this matter to the workplace has not succeeded uniformly. It has delivered uneven benefits. It has benefited some people in some sectors. It has benefited a number of individuals in many workplaces but what it hasn't done is advance or provide across the board the same minimum entitlement in the context of our claim to request these sorts of entitlements that would enable finding a balance between work and family.

PN7755

I will also deal with the matter of discrimination law in more detail. I won't deal with the substantive law, I understand that Ms Young for HREOC is going to deal with that, but I will note the distinction we draw with that regime. And the point we make is that it is not adequate to resolve the competing demands of work and family at the time they arise and that, of course, it is essentially a necessarily reactive, not proactive, cannot create new rights and it cannot promote new ways of organising work. It is simply not designed for that task and nor could it achieve it. That is why the states and territories endorse a series of award variations rather than maintenance of the status quo. So dealing with - - -

PN7756

JUSTICE GIUDICE: Ms Doyle, do you see any difficulty in any case in defining what family responsibilities are?

PN7757

MS DOYLE: Well, the touchstone in each of the provisions we put forward is slightly different depending on the context, but family responsibilities is one of them. If I could just remind the Commission that the touchstone, for example, in relation to part-time is hinged on time, so it arises after the date of birth of the child until the child reaches school age.

PN7758

JUSTICE GIUDICE: Yes. I wasn't referring to those, I was referring to the ones where the criterion is to assist balancing work and family responsibilities.

PN7759

MS DOYLE: Well, I am using that phrase as a catch-all but, of course, there is more content in the particular clause we propose. For example, right to request variation in hours or time of work. Our proposed clause reads:

PN7760

An employee shall have a right to request a variation in hours or time of work to enable the employee to provide care and support for an immediate family member or household member.

PN7761

So that is more specific than the broader phrase I have been using for convenience this morning. But in relation to unpaid leave, yes, your Honour is right, the touchstone is in order to meet his or her caring responsibilities. There is no specific definition, that is true. It may be that there is a need for consequential amendments to deal with that in that context and in annual leave, but on the other hand that terminology was deliberately used in a fairly broad way because the states and territories acknowledge and expect that if these sorts of rights to request are made by way of variation to awards, they will be accessed, one would hope, by parents in many different circumstances and not always the primary carer.

PN7762

In order to address this deficit in terms of take-up rates by men, if rights are all hinged on some sort of very specific and discrete notion of the primary carer it will, yet again, be women for the most part who access these provisions. Whereas if there is a broader notion injected such as age of the child or - that is referrable just to the age of the child, or caring responsibilities, well you may find that the non-primary carer but one who wants to enable their partner to study on Thursday afternoons or to do part-time work on Friday mornings will then access the right to request. So if there is any deficiency in that terminology we would submit it could be addressed by perhaps a definitional clause, but it was our intention to leave it broad for the most part to create a circumstance in which non-primary carers, vis men, might access the clause.

PN7763

JUSTICE GIUDICE: Yes. Thank you. We might adjourn for about 10 minutes.

SHORT ADJOURNMENT [11.35am]

RESUMED [11.48am]

PN7764

JUSTICE GIUDICE: Yes, Ms Doyle?

PN7765

MS DOYLE: If the Commission pleases, just before turning to part D of our contentions in detail, could I just revisit one of the questions this morning about why these particular criteria were chosen, and remind the Commission that in our first submissions, which are S and T1, at paragraphs 121 to 122, we noted the fact that the factors which are set out in the UK legislation, there were many more of them than these criteria, but that ours were drawn from them, and at paragraphs - sorry, pages 57 to 58 in our closing contentions S and T5, we reiterate the same matters, and note that the three business factors or employer factors that we have identified as criteria fall among the most common reasons given by UK employers for refusing a request.

PN7766

So in light of that it seemed to us that those were sensible matters to advance. Although I note that cost in accommodating the work arrangements ironically was not - did not figure highly, except among small businesses, and so because of their role as employers, of course, we have accommodated that in including that as a criteria. In terms of the application of those criteria I should also emphasise a matter. The States and Territories intend that the application of the criteria, and any consideration of what, for example, caring responsibilities means, is not to be used in a way to advance what you might call lifestyle choices, because our criteria focus on the acuteness of the caring need.

PN7767

So, for example, if the request put forward is to go with the zoo with the kids on Friday because it seems like a good idea, the acuteness of the caring need will rocket down the list of criteria in the employer's assessment. But if the request is hinged upon a need to be a support person in a hospital with a sick child, or to be the primary carer at home while working part-time hours over an extended period, then that caring need, one would expect, would rocket up the list of criteria because of the acuteness of the need and the nature of the need, and the ongoing nature of the need in relation to at least part-time work, as an example. So it is about caring responsibilities, not mere preference or lifestyle choice.

PN7768

DEPUTY PRESIDENT IVES: It might be dangerous to have the kids at the zoo on their own though.

PN7769

MS DOYLE: It may well. No dispute with that. But also, one would expect no dispute from a reasonable employer about the acuteness of a need to be a primary carer at home, after school with children, if that is the way the family is going to organise their caring responsibilities and their income, or the acuteness of the one off example I gave of a child in hospital.

PN7770

JUSTICE GIUDICE: Ms Doyle, just a general question about the scheme you propose. In the working hours case, the clause gave the employee a right to refuse overtime. What is proposed here is an obligation on the employer to consider in accordance - - -

PN7771

MS DOYLE: And not unreasonably refuse.

PN7772

JUSTICE GIUDICE: Yes.

PN7773

MS DOYLE: It is a mirror provision, I guess.

PN7774

JUSTICE GIUDICE: Yes. Is there any significance in that difference?

PN7775

MS DOYLE: The practical significance is of course huge. The burden falls on the employer, but the trigger is still advanced by the employee who makes the request. Whereas, in the reasonable hours context these hours might have been being worked for years before the employee puts up their hand and says, "Well, this week it is unreasonable and I am not doing it." So the factual circumstances are going to be very different. But in both cases what I would call a tactical burden would fall on the employee in any event to advance their case to state why they seek the entitlement, to advance the matters that are peculiarly in their knowledge. What is the nature of their caring need?

PN7776

On the employer's side, of course, they will have to identify what is the cost problem, what is the inability or incapacity to re-organise work, and what is going to be the impact on the delivery of customer service. So, in a sense, it splits the burden perhaps a little more than is the reality in the reasonable hours context, where more of the focus might be on, "Well, today it is too many hours," or "This week it is too many hours," because this might pertain to ongoing arrangements. But I don't see in any other fundamental sense it being very different in the sense that it is conditioned on the same notion, unreasonableness, and it is conditioned on a meeting of the minds between the employee and the employer about both sides of the story, the business' needs and the employee's needs. So it is quite similar in that regard.

PN7777

JUSTICE GIUDICE: But it creates a liability in the employer, doesn't it?

PN7778

MS DOYLE: It does, because if an employee or their representative forms the view that the clause has been breached, and I just use - - -

PN7779

JUSTICE GIUDICE: And in fact it has been.

PN7780

MS DOYLE: I just that term in a loose sense - - -

PN7781

JUSTICE GIUDICE: Yes. Yes.

PN7782

MS DOYLE: - - - to mean the following. One option is to seek a penalty in the Federal Court. Hardly attractive, or a very useful outcome.

PN7783

JUSTICE GIUDICE: Well, that is true, but - - -

PN7784

MS DOYLE: The other alternative is to seek to resolve the dispute at the workplace. There might be interplay. There might - an employee might come with a request that they think is the only way of managing their caring responsibilities. The employer might refuse it but say, "What about this alternative?" And, in fact, commonsense would tend to dictate that that will often be the way that minds will meet. But they may not, and that is why we endorse the dispute settling mechanism as a way to have the matter before the Commission where the criteria will, one would expect, be also considered by a third party, who might say to the employee, "That is an unreasonable request, because the shift isn't going to work without you there."

PN7785

On the other hand they might say to the employer, "That is an unreasonable refusal because can't you see that it is a very simple matter to organise the job share arrangement that the employee is putting to you?" There will be all kinds of outcomes. There will be a myriad of facts that will come into play. But it remains the fact that an employee, for some reason, might decide that instead they will access the Federal Court regime. But I would struggle to think of when and where that would be very helpful in terms of use of resources.

PN7786

JUSTICE GIUDICE: I asked Ms Bowtell yesterday about whether it was of concern to the ACTU that provisions the ACTU was proposing might have deterrent effect in relation to female employment.

PN7787

MS DOYLE: Yes.

PN7788

JUSTICE GIUDICE: Or carer employment, I suppose.

PN7789

MS DOYLE: Well, I heard the answer Ms Bowtell gave, and of course I endorse it. It can't be a reason not to fashion a suitable award variation that employers say, "We will breach the law. We will breach the Commonwealth law and State law," or "We will harbour these secret views that we don't want to employ women, particularly women of child-bearing age," and in light of the obvious fact that there has been historically systemic discrimination against women, as Ms Bowtell said, well, in a sense we are now in a position of looking at what will be the benefits to women who are primary carers against the possibility that some employers will maintain the position that they are expected or entitled to breach the law. What can one do about that except continue to police it and continue to oppose the suggestion that that is appropriate.

PN7790

The other practical aspect that Ms Bowtell touched on is the concentration of women in particular industries may well mean that this suggestion that women will be discriminated against won't be borne out as a matter of fact, and I would have thought, in light of the material put before the Commission in this case, that the problems that we will have with our ageing population, one would think, might cancel out any desire to discriminate against women in sectors where there is a need to employ them, which will be the case in the future. So the States and Territories aren't troubled by that argument, "We are going to break the law so don't do it." We are not troubled by that as a significant or appropriate basis on which to oppose the variation of the awards.

PN7791

I was going to turn to comparing the award entitlement proposed by the States and Territories to the three other existing ways of perhaps achieving the work/family balance that the employers and, at least in one instance, the Commonwealth say should be the way to go. We say in part D of our submissions that ad hoc local agreements are just that. They are ad hoc and they are individual. What the ad hoc or the localised approach does is it doesn't benefit those who are unable to successfully advocate their position. It doesn't advance the situation of those who aren't regarded by their employer as valuable.

PN7792

Now, in paragraphs 131 onwards of our submissions we deal with some of the material before the Commission about this, and we rely for example on the Whitehouse article, cited in para 131 of our submissions - it is ACTU6 - where it is pointed out that there is an uneven distribution of policies, family friendly policies depending on industry and sector. We also rely on the other material put together by Gray and Tudball, which we cite at paragraph 133, and that is - that appears in our materials, S and T2, at tab 4. The evidence seems to demonstrate that employers are more likely to offer family friendly work practices or policies to employees who they feel are valuable, by which they mean employees in whom they have invested training, or who are costly or difficult to replace.

PN7793

Occupation is also a powerful factor. It would appear that professionals and managers and administrators are much more likely to have, for example, control over working hours, or even minor accommodations, like access to a telephone for family reasons, than workers in other sectors, particularly blue collar workers. It is obvious, in a sense it is just commonsense, that employees who are most likely to be able to negotiate successfully in relation to their work conditions are those who have had the most success in achieving these local policies or ad hoc arrangements to suit their caring needs.

PN7794

The other side of the coin is true as well. We cite, in paragraph 135, some of the Gray and Tudball material which indicates that employees with the lowest levels of education, job tenure and organisation - and organisational provided training are the least likely to have access to family friendly work practices. So the laissez faire approach, or the suggestion that, "Leave it to the workplace. They have been doing it thus far. They will do it in the future," has some truth to it. There are people who will continue to advantage from that possibility. They are, in light of the material I have just referred to, quite unlikely to be people reliant on the award safety net, of course.

PN7795

So, in the context of this proceeding, those sorts of examples are nice, they are good to hear about, but they don't help people who don't have access to that sort of bargaining tool or capacity. The next of the other regimes that is suggested should be relied on instead is, of course, formal certified bargaining, and the Commonwealth, in particular, submits that the primacy of workplace bargaining given by the Act dictates that that should be the place where all of this give and take occurs. Now, the evidence reveals that bargaining has taken place over work and family issues, but it hasn't delivered family friendly arrangements uniformly, and it hasn't - it has benefited some sectors and some workplaces, but the results are uneven and mixed.

[12.01pm]

PN7796

Now there is debate in the materials between the parties about what definition to adopt of family friendly measures. Leaving that, in terms of how to identify them in certified agreements. But even leaving that debate to one side for a moment, and even adopting the broadest approach, and to that extent accepting that the Commonwealth submission, if we look at the material we have identified and the dot points on page 42, of our contentions, this is the material drawn from the original DEWR report. And of course, yesterday Ms Bowtell updated that by providing ACTU14.

PN7797

And overnight I have had at a look at the incidence of family friendly provisions as reported originally. I think it was 2000-2001. And compared it with what is now reported in 2002-2003. And it is striking that although in relation to some benefits, you can see a small increase in the incidence of these sorts of family friendly provisions, in relation to family or carer's leave there was a reduction. The same can be said about access to single days leave.

PN7798

In many instances, for example, career break or all purpose paid leave the outcome has been the same. And in other areas a slight increase. ACTU14 itself, despite that there is some limitations in the data collection as Ms Bowtell identified yesterday, what it confirms is that there is still a sprinkling of industries and certified agreements that have achieved a good outcome for those covered by them. But it doesn't demonstrate any general trend towards improvement.

PN7799

We are not seeing, for example, figures of access to leave for caring purposes, going from 20 per cent in one year to 25 the next, to 30 the following. They are sticking at very similar figures in each year in which data is collected. And it would tend to support the submission that isolated pockets are achieving good outcomes in terms of bargaining, and they should be encouraged to keep doing so. But where change is required, at the award safety net level, there would be a number of people, or many people, who don't have access to these sorts of benefits at this stage.

PN7800

That sort of comparative material is set out in ACTU14, at page 57, which sets in two columns the figures from 2000-2001, in direct comparison with 2002 to 2003. Most strikingly, if the Commission pleases, you will notice in relation to family and carers' leave, the incidence went down from 27 to 25. In relation to access to other leave from caring purposes, it went down from 19 to 18. Part time work one can see increased but only from 25 to 26 per cent. So we are looking at quite consistent reporting over that period of time.

PN7801

There is also material that has been submitted by the ACTU - and this appears in ACTU6C at tab 52 - which indicates that the incidence of family friendly measures in certified agreements is not spread evenly across industries. And there is a concentration of such benefits in community services, electricity, gas and water, recreational and personal services, wholesale and retail trade but, again, the results are patchy.

PN7802

At paragraph 147 of our submissions - and I think this quote became a favourite among all of the parties - we refer to the fact that many employees lack sufficient bargaining power to insist upon these sorts of outcomes. And in support of that quote the Full Bench of this Commission in the safety net review decision 2004 which refers to the fact that not all employees are capable of bargaining. It is not a practical possibility for those without bargaining power. And we would say that in this context that has been shown to be true because of the uneven and patchy results in terms of the outcomes of family friendly measures in certified agreements.

PN7803

SENIOR DEPUTY PRESIDENT CARTWRIGHT: In this case do we have any evidence of employers refusing to include such things?

PN7804

MS DOYLE: I will be assisted - - -

PN7805

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Or are you only looking at the outcomes?

PN7806

MS DOYLE: I would be assisted by the ACTU in that context, but I can recall a lot of evidence about employers initially or ultimately refusing requests but I can't - in relation to an individual, but I can't offhand recall evidence about a failed outcome in a round of bargaining. But I will seek some assistance from the ACTU in terms of answering that.

PN7807

SENIOR DEPUTY PRESIDENT CARTWRIGHT: You see, in one sense the submission depends on an assumption about bargaining power rather than any evidence in this case.

PN7808

MS DOYLE: Well, the evidence is the outcome. I am not suggesting that there is evidence which explains the rounds of negotiations that have occurred and which demands have dropped off the table. That would be a mammoth task to - and in many cases impossible to advance that sort of evidence. But all we can do is point to the outcomes; point to the incidence of family friendly provisions. It is not fail safe but I would submit not a bad tool in terms of identifying what has happened. It is difficult to fill in the gaps and ask what was - or determine what was asked for but Ms Bowtell reminds me that the evidence of Edith Rapana and Maurice McMahon deals with certified agreements and demands made in rounds of certified agreement bargaining. The other evidence, as far as I recall, is about specific requests made.

PN7809

The third alternative regime is that of discrimination law and I have touched on this already in some respects this morning. But as we say in our contentions, discrimination jurisprudence is based on the notion of the comparator which dictates equal treatment. So in this context it requires equal treatment between male and female employees, and employees with and without children. The submission of all parties, in particular HREOC deal in some detail with how this works - what is direct discrimination, what is indirect discrimination - and I don't intend to dwell on that today.

PN7810

But what discrimination law cannot do to any great degree is acknowledge that in some circumstances family responsibilities require special accommodation. They require different treatment. So while discrimination law being hinged on the notion of the comparator may guarantee as a matter of law equal treatment, what it can't do is create the new right. What it can't do is suggest the new way of organising work to accommodate your family. It is just not operating in that realm.

PN7811

The other difficulty with discrimination law in this context is that it is necessarily reactive, not pro-active. As I suggested this morning, it is almost invariably engaged only after the employment relationship is irrevocably broken down and, in fact, nothing is guaranteed to end it than commencing litigation. So in that context it is dealing with questions after the event, and dealing with them through the prism of quite costly dispute resolution compared with this arena.

PN7812

I am not going to deal with the decisions which are discussed in paragraphs 154 onwards of our submissions, save to note the interesting discussion in Howe v Qantas, and we note this in paragraph 157 of our submissions. In that case which concerned part time work by a woman returning from maternity leave at Qantas, Federal Magistrate Driver noted what might be called the irony of the comparator approach which is that this may not necessarily be correct as a matter of law but that it has come to be the case that as a matter of fact some employers defend these matters on the basis that they consistently refuse part time work so in that sense are not discriminating when they decline to confer that benefit as some federal magistrates have described it on women who seek access to part time work.

PN7813

That may be a limitation in some senses of the reach of the discrimination law. Discrimination law has its role to play; it has its work to do. And you will see from the list of decisions, particularly in the federal arena, that it has been found in some instances that a failure to afford women part time work constitutes indirect discrimination. But as I said a moment ago, what it can't do is create a new way forward; what it can't do is assist the parties at the time the problem arises to fashion a workable outcome. Because there is no capacity to have an independent party deal with balancing the criteria from the time the question arises, although ironically the reasonableness element of indirect discrimination does have some parallels with the criteria we propose. It is just that they are applied after the event, rather than when the problem arises.

PN7814

The difficulty also with discrimination law is, of course, it is case and problem specific. While, of course, it can generate discussion, it can generate statements that might be binding in subsequent cases, it doesn't generate new ways forward or new procedures or rules capable of general application. It can also be costly and time consuming. It is an obvious point but it ought to be remembered, as we say at para 165 of our submissions, that applications to the Commission, federal and state, can typically take many months to reach conciliation and then trial if necessary.

PN7815

The Schou case is referred to many times in these submissions of all the parties. It is a matter dear to my heart, having appeared in it on and off since 1998. It is a case in point. Ms Schou's claim was the subject of prolix litigation by the time of the final Court of Appeal decision, the child who was 18 months old when she made her request was about to start high school. It underscores the fact, as do the comments of the federal magistrates in cases like the Qantas case, Kelly case and the others, that discrimination law can deal with the individual case and deals with it through the prism often of indirect discrimination. But it deals with it after the event, and the states and territories propose a model which would enable, as the Bench suggested in the reasonable hours test case, enable the problem to be dealt with in a more timely fashion by balancing the relevant criteria.

PN7816

Now, we have also in our submissions dealt with current public sector practice. That is in part J of our submissions and it is really in response to the employer objection which we just described in a shorthand form as, well, you don't do it. And the submission of the states and territories is that they do; not uniformally, not in the same way in each workplace, not in the same way in each state and territory, but they do provide a range of family friendly policies as well as entitlements to their employees.

PN7817

Now, these are collected in a table that we provided in S and T1; yes, S and T1, there is a table at the back of that document called Attachment 2. I will just be identifying some aspects of it so it may not be necessary for each member of the Bench to have it, but attachment 2 deals with states and territories, public service work and family standards. And the table is indicative in the sense that it provides a summary of some of the entitlements currently available to public service employees in each of the states and territories. And the table is organised under the heading of each state and territory.
[12.13pm]

PN7818

So what it indicates, this is just by way of example, is that, for example, in relation to part-time provisions, or the capacity to return to work part-time after parental leave. There is a particular provision in New South Wales that department heads may grant leave without pay including part-time leave without pay if there is good and sufficient reason. By way of comparison you will see across the top of the chart that there is a capacity to agree to such an arrangement in Victoria. That in Queensland there is a capacity to make an application but it must be approved by the chief executive.

PN7819

In Western Australia, by way of example, there is a provision of a similar type subject to employer approval, and provides for reversion to full time after two years and so on. And if you have a look at the chart in detail you will see that in relation to Tasmania, the Northern Territory, the ACT and the other states and territories I have mentioned already, and in relation to each proposal, or each segment of the ACTUs claim, there is some provision for an entitlement like it across each of the states and territories.

PN7820

In relation to annual leave and single day absences, which is dealt with on page 67, I should just note in light of the discussion this morning with Ms Bowtell that there are differences across the states and the territories and many in the public services have access to annual leave in single days already and some have it beyond the five days which is proposed. And we touch on this in those contentions, S and T1 at page 67. We support the capacity to access five days in single leave days as a safeguard and as an appropriate bedrock for employers and employees. But we have to acknowledge that across the public service you will find awards and you will find certified agreements that allow accrual of a higher number of days or even over longer periods than the two years suggested.

PN7821

And we don't seek and we don't take the ACTU to seek to upset that balance where it is already arbitrated or agreed. Those provisions will continue to operate because in those parts of the public service they have evidently been regarded as appropriate arbitrated or agreed outcomes. So they will continue to operate in that way.

PN7822

Continuing with this chart it then deals with leave without pay. It deals with unpaid parental leave entitlements on page 69 and, again, you will see although they are quite similar across the board you will see that there is different entitlements. For example, the Northern Territory has a quite different entitlement. Employees might elect to take unpaid leave up to the child's sixth birthday on a shared basis. If one compares that with Victoria you will see 52 weeks parental leave as described there comprising paid maternity leave and other aspects, but with the agreement of the employer leave without pay may be granted as an extension of that leave while it can't exceed seven years.

PN7823

So you will see different touchstones and you will see different entitlements. And we don't come before the Commission to say they are all the same, we don't come before the Commission to say they all mirror the application for the award variation that we endorse. What we do say is that where there is coincidence between those entitlements presently available and our proposed clauses, making the award variations will simply codify them. Where there is a gap, what the variation will do is improve the position for public servants and those in the private sector.

PN7824

Where there is a difference where there is a certified agreement that delivers more, good luck to the parties in a sense. And that is as equally likely to be true in the public sector as in the private sector. There will be a difference by sheer virtue of the fact that certified agreements will override the award in any event. Let - - -

PN7825

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Just looking across the table, with the exception of Tasmania and Northern Territory, they all seem to be 52 weeks?

PN7826

MS DOYLE: With the exception of, sorry?

PN7827

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Tasmania and the Northern Territory.

PN7828

MS DOYLE: No, in Victoria there is the capacity with the agreement of the employer to extend the leave.

PN7829

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes, further down, yes.

PN7830

MS DOYLE: Up to seven years and you have to renew your application. So that is a quirk of that condition. And you will see in relation to New South Wales that it is a more complex provision, what it allows, is with commission that the leave be taken on a part-time basis up to the child's second birthday. So you can extend it by that mode of taking it on a part-time basis. And you will also see at the bottom of that - - -

PN7831

SENIOR DEPUTY PRESIDENT CARTWRIGHT: In Queensland.

PN7832

MS DOYLE: Sorry?

PN7833

SENIOR DEPUTY PRESIDENT CARTWRIGHT: In Queensland there appears to be provision for extension.

PN7834

MS DOYLE: That is right. And to complete the picture with New South Wales there is also a capacity to take extended parental leave any time up to two years from the date of birth of the child. It is just that they are all expressed in different ways and no doubt fashioned to suit the situation in relation to the public service in the particular state or territory but - - -

PN7835

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I am sure you are not suggesting an imbalance of bargaining power.

PN7836

MS DOYLE: No. Different outcomes. For example, when one applies these criteria, if the award variation were made, you would find requests granted and denied in different public services because of their different circumstances. By way of example, a request made in the Northern Territory or, in a remote part of Victoria or Queensland, might be refused because there is not a workforce available to fill the gap. So if there was a rural part - or a part of the public service offering a rural community service or the Northern Territory that might be the reason, it might not be unreasonable.

PN7837

But if a request is made in a large public hospital where everybody is on shift work as it is and it is evident that it is easy to slot someone into the employee's position when they take an afternoon off on Friday well, then, it will not be reasonable to refuse the request. And that is just two ways that the model might work in the public service and two ways that it might lead to a different outcome in a request made in Sydney or Melbourne compared with a request made in remote parts of other state or of the territories. It would just depend on the workplace and it will depend on balancing the criteria as we have identified.

PN7838

If there are no questions those, really, conclude our submissions. In all other respects we rely on the written material. As I have identified, we didn't seek today to rehearse the evidence we rely on, that is all summarised in the contentions. And in terms of employer objections in relation to cost or in relation to what they already do in their workplaces. That material is dealt with in parts H and I of our submissions. And in terms of what I would call the business case evidence, the comparison with the UK and more general business case evidence to support the granting of our variations, that is dealt with in parts F and G of our submissions where the material deals with the sorts of matters such as improve morale and lower turnover rates is summarised. Unless there are any questions about that, I don't propose to go into that as it would be repetitive of other submissions.

PN7839

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Can I just ask one question? You make the - or the proposition is put that it needs to be done in this particular way so that the benefit is available to all.

PN7840

MS DOYLE: Yes. The right - well, for the most part that the right to request is available. Of course, the outcome can't be dictated.

PN7841

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes. Now, the argument may be put, well, why shouldn't the employer be the judge of whom to give the benefit to? What do you say to a proposition such as that?

PN7842

MS DOYLE: To a degree. At the moment the request is made the employer will be the judge in the first place because it is the employer who has the capacity to refuse or deny. Of course we say that is conditioned by an obligation to consider these criteria, not act unreasonably. And we say it will be reviewed by a third party if needs be. But in a practical sense on the day the request is made it is the employer who has the practical capacity to refuse or deny the request.

PN7843

If your Honour's question is directed more at whether the employer should have the capacity to determine whether it should be - whether flexibility should be advanced to those without family responsibilities but just for other reasons, then that is not the suite of variations we propose. This test case is firmly grounded in the submission that families matter and that it is important to enable parents to manage the work family balance and that it is good for business to enable them to do so, to maintain women's attachment to the labour market.

PN7844

And this test case is not advanced, as far as I understand it, it is certainly not the reason that we endorse the model we propose, it is not advanced in order to secure flexibilities across the board for all manner of reasons, it is firmly grounded in caring responsibilities for elderly parents and children and it is firmly grounded in the acknowledgment that the attachment of women in particular to the workforce is important and that encouragement of take-up rates by men would be beneficial for families as well as employers. So that is something that is frankly acknowledged.

PN7845

That doesn't stop an employer who wants to generally be a reasonable sort of a person, or generally be a flexible sort of an employer, can't reach all kinds of other one-on-one accommodations with their employees for all kinds of reasons ranging from rugby to squash to taking the kids to the zoo. But that is out of the ambit or the context of the proposal that the states and territories put forward.

PN7846

JUSTICE GIUDICE: Ms Doyle, can I ask you a question about paragraph 53 of the submission?

PN7847

MS DOYLE: This is the comparative material concerning - - -

PN7848

JUSTICE GIUDICE: Yes, and the statement there that is quoted:

PN7849

Australia falls into a group where the presence of young children appears to be the major factor in depressing female employment rates creating a - - -

PN7850

MS DOYLE: Yes. And I think Ms Bowtell drew attention to the source material for this yesterday.

PN7851

JUSTICE GIUDICE: Yes. But my question was, leaving aside what I might call anecdotal evidence of individual witnesses that we have heard in the case, is there any evidence of a causal relationship between the conditions prescribed in awards and that phenomenon that has been identified?

PN7852

MS DOYLE: The kinds of conditions described in Australia, for example, compared with?

PN7853

JUSTICE GIUDICE: No, well, just looking at the potential causal relationship between award conditions and that effect, bearing in mind that employers, of course, can agree to all sorts of leave without pay, for example, without there being an award requirement to do so.

[12.25pm]

PN7854

MS DOYLE: I think it would be a matter of inference and it is somewhat like the way in which the submission is put about the outcomes in certified agreements; you don't exactly what the ambit of the round of bargaining was. All you can do is look at the outcome.

PN7855

JUSTICE GIUDICE: Yes. I am not suggesting that this would be a critical issue because there would, no doubt, be public interest arguments why awards should encourage a contrary effect.

PN7856

MS DOYLE: And it is almost certainly, your Honour, multi factorial in the sense that the evidence would tend to suggest that when families, in particular women, are making choices, they are affected by working conditions. So, therefore, that would include award provisions, but also the access to child care, also the social security regime as you find it, the taxation regime as you find it. So, no doubt, it is accepted that all those things interplay.

PN7857

JUSTICE GIUDICE: Yes, they are all sorts of factors. But I suppose what was in my mind was the fairly low take up rates of the parental leave entitlements which exist.

PN7858

MS DOYLE: There is - well, there is a take up rate, which as far as I understood the evidence is consistent with the number of women of child-bearing age in employment anyway. But what you do get, which is quite striking, I would accept, is the almost uniform return to work after 12 months and it is very hard to break the cycle to determine whether people do that because that is what they are entitled to or whether people do that because that is their preference.

PN7859

JUSTICE GIUDICE: Yes.

PN7860

MS DOYLE: It is something that it is almost impossible to divine.

PN7861

JUSTICE GIUDICE: Yes.

PN7862

MS DOYLE: But as the ACTU has advanced quite powerfully, there is another body of evidence which says that mothers would like to be with their babies longer and that babies would benefit from them being with them longer where the family wants that to occur. And so if that were made available in the way we suggest, as a right to request, where an employer can accommodate it it will enable that family to have a parent, often the mother, but sometimes a father, at home for that extra year or part of it. But I would acknowledge there is a difficulty, there is a catch 22 in all the material. We don't know why women routinely come back after 12 months. It could be because they are very attached to the workforce or their family need the pay cheque.

PN7863

It could be because it is all they have got or it could be because it is all they feel their child needs. It is difficult to guess at this stage and it would only be in the fleshing out of the award clause and applications for rights to request that we would start to discover the rationale behind that.

PN7864

JUSTICE GIUDICE: Yes.

PN7865

MS DOYLE: What is clear, as that international comparison material revealed, that your Honour has drawn attention to, is that for some reason Australia is lagging behind other OECD countries in relation to that employment gap for women with young children. If there are no further questions they are the submissions of the states and territories.

PN7866

JUSTICE GIUDICE: Yes, I think there may be one more question.

PN7867

SENIOR DEPUTY PRESIDENT CARTWRIGHT: In the material you have dealt with three alternatives that may be postulated.

PN7868

MS DOYLE: Three aspects of the status quo, yes.

PN7869

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes, the ad hoc agreements or I think you referred to laissez faire approach.

PN7870

MS DOYLE: Yes.

PN7871

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Certified agreements or reliance on the anti-discriminatory legislation. As I read the material, and particularly given the early part of the submission relating to the - well, social policy goals, another alternative could be a legislative response. Is there anything you would like to say about that?

PN7872

MS DOYLE: Of course that is an alternative and as far as I understand it in some states and territories there is a limited - there has been a limited legislative response in terms of access to part-time work after parental leave, but again it is patchy and it is limited and it is a matter for government at each level. The Commonwealth would have some difficulties in enacting provisions just for constitutional reasons. The states may have other difficulties for practical reasons, but there is no doubt that is a possibility.

PN7873

Whether one looks at that in combination with award variations is a matter for the future, but in this context the states and territories submit that there should be a variation to the safety net in federal awards, and don't advance any suggestion that there is other legislation in the wings that could or should perform the task better in this context. If the Commission pleases.

PN7874

JUSTICE GIUDICE: Thank you, Ms Doyle. Ms Young.

PN7875

MS YOUNG: Your Honours and Commissioner Crib, I make these submissions on behalf of the Human Rights and Equal Opportunity Commission, an intervenor in these proceedings. How things have changed since our system of conciliation and arbitration started 100 years ago. Way back from the beginning of that time, in a social context of a very different kind from the one described by Ms Bowtell yesterday, and the subject of the ACTUs evidence, discrimination has taken - discrimination against women has taken a very different form these days.

PN7876

It has had a variety of forms over the last 100 years and this Commission and its predecessors have been well accustomed to receiving and determining arguments such as the deterrent argument over the course of time. Over the last 100 years women have not always been encouraged or supported to participate in the paid workforce, especially if they have family responsibilities, and the Commission will recall the first formal consideration of the issue of equal pay for women under the Conciliation and Arbitration Act of 1904 and the famous fruit pickers case in 1912, where his Honour Higgins J, a member of the Commission's predecessor, the Industrial Relations Court, considered the problem of female labour. In that case claims were made by unions for equal pay for equal work where members picked, dried and packed fruit.

PN7877

The Court was of the view that the claim for equal pay had an attractive sound and seemed to carry justice on its face, for obviously where a woman produces as good results as a man in the same kind of work, she ought not to get less remuneration. But his Honour went on to comment that the phrase was really ambiguous and that it had implications. This is the first time that this Court has had to deal directly with the problem of female labour. The unions here insist on equal pay for equal work. If the phrase means equal pay for those who turn out the same result in quantity it means piece work. For 100 tins of fruit so much pay. For 80 or 50 tins of fruit so much less.

PN7878

As Mr Cater justly says equal pay for equal work involves unequal pay for unequal work. If, however, the phrase means that there shall be equal pay given to men and to women for work of the same character, its meaning is consistent with the prescribing of a minimum wage under section 40 of this Act. The employer is not bound to retain a woman in his employ if her work is not up to his standard. But if he do retain her he practically admits that it is. Of course, over the years deeply entrenched in the applications before the Commission and its predecessors has been the notion that certain work has belonged to men and other work has fallen to women and, in fact, in the fruit pickers case the Industrial Relations Court even formulated a test to ascertain which of the sexes owned the work.
[12.34pm]

PN7879

His Honour Higgins J considered that the best test for determining whether the work belonged to men or not was if the employers had to pay the same wages to women as to men, they would always or nearly always employ the women. This concept of certain work belonging to men led to another notion which played a significant part in the court's assessment of the basic wage for men and for women. That is that women in the paid workforce competed with men or invaded their male territory. His Honour commented:

PN7880

There has been observed for a long time a tendency to substitute women for men in industries, even in occupations which are more suited for men and in such occupations it is often the result of women being paid lower wages than men. Fortunately for society, however, the greater number of breadwinners still are men. The women are not all dragged from the homes to work while the men loaf at home.

PN7881

And his Honour went on:

PN7882

I assume that female workers will be kept to their distinctive work as heretofore if an attempt be made to put them to work which is now entrusted, and properly entrusted, to males. I may have to reconsider the clause on an application to vary it.

PN7883

The reasoning was that women who performed work traditionally performed by men should be paid the same rate when they did men's work. And that was all well and good, but the thinking and practice was that this requirement to pay a woman worker a man's wage for doing men's work would provide a powerful disincentive to employers to employ women, and a basis for preferring to employ men, women presumably being unavailable in those circumstances as a cheaper source of labour; of course, resembles the deterrent argument put before you in this case by certain employers.

PN7884

This argument was actually accepted by Deputy President Webb in a liquor trades case concerning an employer by the name of W. Ashton in 1926. Disappointingly, it still hangs around, unfortunately, in 2004 although in a different context where, of course, an employer would be behaving unlawfully and in contraventions of the standards of the community in preferring an employee without family responsibilities to an employee with family responsibilities who is perceived as being a cheap source of labour.

PN7885

Deputy President Webb in 1926 was deciding upon an application for equal pay for equal work for barmaids and barmen, and he rejected that claim because from time immemorial men have been employed on a man's wage and women have been employed on a woman's wage. And it is one of several in which a similar state of affairs exist and must exist. I call to mind all kinds of domestic service: clerical work, work in shops and so on where men are employed on a man's wage and women are employed on a woman's wage and where, in my opinion, they must continue to be so employed.

PN7886

I can understand an equal wage being awarded in an industry where it is desired to push women out of employment but that object is disclaimed in this industry. Now, over the years women - and especially mothers and carers - have been discouraged from participating in the paid workforce by a number of disincentives and encouraged to continue to perform exclusively their unpaid work in the home, full time. There are a variety of means but first, while the Industrial Relations Court had held that women performing men's work should be paid the same minimum rate, women's work was assessed as being far less valuable and was paid considerably less.

PN7887

Second, in determining the minimum or basic wages set by the Court, the Court had regard to the needs or perceived needs of employees. And, of course, in the famous Harvester case of 1907 the Court set a living or basic wage by reference to the normal needs of the average employee regarded as a human being living in a civilised community. The needs of male employees and female employees was the subject of the Fruit Pickers decision of Higgins J after extensive evidence had been taken about the needs of men in supporting families, about the prices of meat and clothing, and that kind of thing, other necessities, women apparently having no such needs.

PN7888

Now, in the Fruit Pickers case it was determined that the rates for female trades and professions should be set without reference to any family responsibilities that women might have. His Honour said:

PN7889

In fixing the minimum wage for a man, I have been forced to fix it by considerations other than those of mere earning power. I have based it in the first instance so far as regards the living or basic wage on the normal needs of the average employee regarded as a human being living in a civilised community.

PN7890

Those were his Honour's words in the famous Harvester decision. No one has since urged that his - that this is not a correct basis. Some employers have expressly admitted that it is. I fix the minimum in 1907 at seven shillings per day by finding the sum which would meet the normal needs of an average employee, one of his normal needs being the need for domestic life. If he has a wife and children he is under an obligation, even a legal obligation, to maintain them. His Honour then asked how such a minimum would be relevant to a woman picker where fruit picking was a male occupation:

PN7891

How is such a minimum applicable to the case of a woman picker? She is not, unless perhaps in ...(reads)... recognised as that all or nearly all milliners are women and that men are usually not in competition with them.

PN7892

Now, again in the fruit pickers case his Honour deal with a submission of the union that female fruit pickers should be awarded the rates for adult males contending that they did that work. His Honour said:

PN7893

The same may be said of many juvenile who, in fruit picking, equal the work of male adults, but it would ...(reads)... having regard to their individual requirements and also to economic results.

PN7894

Now, of course, in those days, in addition to the minimum or basic wage awarded by the court, employers paid a secondary or marginal payment on top of that wage on the basis of skill and then a discretionary over award payment on top of that. Women were regarded as being as less capable and less skilled by reason of their sex and were usually not the beneficiaries of the exercise of the employer's discretion to award over award payments. In a Federated Clothing Trades case in 1919 his Honour Higgins J evaluated a woman's capacity to work. He relied upon evidence that:

PN7895

The unmarried as well as the married woman is subject to the physical limitations of her sex and each suffers alike from those incidents of industrial work most detrimental to the female reproductive system, such as overstrain from the excessive speed and complexity, prolonged standing and the absence of monthly days of rest.

PN7896

Again, in an Australian Saddlery, Leather Sale, Canvas Tanning, Leather Dressing and Allied Workers Trades Employees Federation - we thought we had long acronyms now for unions - v Carter Patterson and Company in 1925, the Court examined work to be performed by men and women in the bag and leather goods trade and said:

PN7897

I found that girls were also employed in the manufacture of the smaller types of attache cases ...(reads)... The line has to be drawn somewhere and I am informed that in the industry it is drawn at 13 inches.

PN7898

His Honour then goes on to refer to the girls encroaching on the men's work and that being unacceptable. So, your Honours, in the early days women missed out at every conceivable opportunity, including in awards and laws of this country that provided for a systemic form of discrimination. And despite that and overtime, women's participation in the paid workforce has increased, employers continue to employ women, including mothers, and in industries regarded as male dominated, and our society has continued to grow and function.

PN7899

We had equal pay cases in the Commission in 1969 and in 1972, consistent intervention by women's groups in National Wage cases throughout the '70s, '80s and '90s. We had the 1979 Maternity Leave case, the 1985 Adoption Leave case, the 1990 Parental Leave case, the Reasonable Hours test case and other cases determined by this Commission in the last decade. Despite all of those constraints and difficulties and discrimination, women have continued to increase their participation in the paid workforce despite the deterrent argument being brought out at every opportunity. Now, your Honours, I see the time. I am sorry, I have trespassed a little over quarter to one.

PN7900

JUSTICE GIUDICE: That is all right. You have a little while to go, I take it.

PN7901

MS YOUNG: I have about 20 minutes.

PN7902

JUSTICE GIUDICE: Yes. We will adjourn until 2.15.

LUNCHEON ADJOURNMENT [12.48pm]

RESUMED [2.20pm]

PN7903

JUSTICE GIUDICE: Ms Young.

PN7904

MS YOUNG: Members of the Commission. Before lunch I was reminding the Bench of the history of obstacles faced by women in employment and obviously these applications have a very special significance to working women and working mothers who continue to bear the greatest load of responsibility in caring for children and other dependants. The point I made to you was that the deterrence argument raised in this proceeding was argued in a slightly different context in 1926 before the Industrial Relations Court in the Liquor Trades case that I referred to and in that case Deputy President Webb had a view that the awarding of equal rates of pay to men and women performing the work under consideration in that case, which was the work behind a bar at a hotel, would result in the work being exclusively performed by men, there being a disincentive to employ women if they were not around as a cheap source of labour.

PN7905

Now apart or in spite of all of the obstacles to equal and free participation of women in the paid workforce over the years, the rate of employment of women and mothers has continued to increase. We have had a maternity leave case, a paternity leave case. Twenty years ago this year the Sex Discrimination Act was enacted and indeed in a recent speech celebrating the 20th anniversary of the SDA, the Sex Discrimination Commissioner reminded an audience of the things that were then said about the Sex Discrimination Act, it being one of the most hotly contested and debated pieces of legislation.

PN7906

In the Senate, Senator Creighton-Brown said that the real intention and purpose of the Act was to destroy the structure and fabric and intrinsic role of the family unit, which for centuries had been the foundation of our orderly and disciplined society and culture. Another senator, Senator Boswell, warned that the clamour for equality originated in eastern Soviet Bloc countries and that he was sure that Australian women didn't want the same rights as women in India and Iran. Now, two short points, members of the Commission, in relation to the deterrence argument, which has been dusted off and injected with a little bit of life for the purpose of these proceedings.

PN7907

HREOC, first of all, supports the submissions of the ACTU and of the states and territory governments that the deterrent argument does not form a proper basis for a refusal of the applications. What, in effect, it puts to you is that there should be a freezing in time, a time in which there is discrimination against employees with family responsibilities. We say that is not a proper basis on which to determine these applications. But, secondly, members of the Commission, we say that experience tells us that the employers' fears about this matter may well not come to fruition, that it may well not have the deterrent effect that the employers say that they fear.

PN7908

Of course, it is a speculative unknown. We are talking about a prospective, hypothetical situation. But at the moment we have an entirely different system of laws, a different lot of community attitudes and a growing participation of women in the paid workforce, despite all of the obstacles. Now, from the outset of its participation in this case, HREOC has identified its position and it has done so again, of course, in its final submissions. The members of the bench have a copy of the final submissions. Could I ask that they be marked, please, your Honour.

PN7909

JUSTICE GIUDICE: Yes. They are the submissions that were filed on 19 November?

PN7910

MS YOUNG: Yes, that is so.

EXHIBIT #HREOC2 FINAL SUBMISSIONS FILED 19/11/2004

PN7911

MS YOUNG: In those submissions, it is made crystal clear that HREOC does not address each of the applications before you or make any comment or submission about the appropriate form of award variations. What HREOC does say is that it supports the introduction of award provisions that assist working parents and carers to balance their work and family and caring responsibilities and it submits that the proposals advanced to you by the ACTU and by the state and territory governments are worthy of very close and serious consideration.

PN7912

Now, HREOC did not participate in any way in the adducing of evidence before the Commission and says that to the extent that the evidence supports - or, rather, the extent that the evidence supports the applications made by the various applicants is entirely a matter for the Commission. But it does offer the comment that the description of the evidence articulated by Ms Bowtell yesterday, to the extent that it concerned the tension between attending and carrying out work, especially full-time work, and fulfilling family responsibilities and the hardship and difficulties encountered by working parents is consistent with HREOCs experience in dealing with discrimination complaints on the grounds of sex, pregnancy and family responsibilities.

PN7913

In paragraph 10 of its submission, HREOC makes it submission clear that it supports the insertion of specific award provisions that assist employees to balance their work and family and caring responsibilities effectively, and which would be accessible at the initiative of the employee, but it does not support the introduction of award provisions that would reduce existing employment conditions or have the effect of resulting in a diminution of employment conditions for employees with family and caring responsibilities as compared with other employees.

PN7914

Now, there are a number of reasons, in my submission, as to why this position is appropriate. Some of them are advanced in HREOCs submission in paragraphs 32 to 67 and they concern the constraints and limitations of the Australian Anti-Discrimination legal laws and processes in providing a framework and certainty to employers and employees in negotiating family friendly conditions. Those are matters which Ms Bowtell has made submissions upon and my learned friend, Ms Doyle, has again this morning as well.

PN7915

There are a few propositions that emerge from HREOCs submissions and having regard to the submissions of all of the other parties in the case, we would not have thought that they were controversial. The first is this: the current legal framework that accommodates the concerns of employees wishing to have or needing to have more flexible working conditions in order to balance their work and family and caring responsibilities is a process that assumes the existence of a conflict that has already arisen, a dispute between an employer and an employee. It is a system based upon complaints made by an employee against their employer. It is no secret that suing your employer is not necessarily going to win you a popularity contest.

PN7916

The system, fortunately, does involve an emphasis upon conciliation and trying to encourage the parties and give them an opportunity to sort things out between themselves. If unsuccessful, it then provides for an adversarial process for a hearing and determination of the dispute, and the outcomes of those cases provide some guidance to employers, but there really is little certainty to the parties about what their rights and obligations are in specific circumstances. Now, in paragraphs - and I appreciate the Commission might not have these at their fingertips but can I just remind you that in the contentions of HREOC dated 14 May 2004, some information was provided in paragraphs 19 to 21 about the number of complaints and the nature of the complaints received by HREOC in the financial year 2002/2003 and just very briefly - - -

PN7917

JUSTICE GIUDICE: What is the date of that document, Ms Young?

PN7918

MS YOUNG: 14 May 2004.

PN7919

JUSTICE GIUDICE: Thank you.

PN7920

MS YOUNG: In that financial year, HREOC received 380 complaints under the Sex Discrimination Act. Now, 87 per cent of the complaints related to discrimination in the area of employment. Employment has always been an extremely important, significant area in the area of anti-discrimination. Now, 380 of the complaints, which equates to 66 per cent, related to discrimination on the grounds of sex, pregnancy or family responsibilities.

PN7921

Just for the information of the Commission, 43 per cent of the complaints settled through a conciliation process. We know, because the reported cases have been referred to by many of the parties in this case, that there is only really a handful of them, about seven, that proceeded to final determination through a hearing and the Commission can safely assume that the other cases, other than the 43 per cent that settled through conciliation and then the handful that were determined at a final hearing were either withdrawn or resolved at some stage after the conciliation but before a hearing.

PN7922

HREOC also contended in its contentions in paragraph 21 that the complaints that it receives in respect of these issues surrounding family responsibilities represent only a small proportion of the incidents of this form of discrimination in the community. It noted in that year, 2002/2003, there was an increase in the percentage of complaints alleging pregnancy discrimination and that in the past three reporting years there had been a 19 per cent increase in these complaints. Now, in the final submission, members of the Commission, in paragraphs 64 to 66, HREOC updates that information in relation to the financial year 2003/2004.

PN7923

You will see that in that year, 88 per cent of all complaints related to discrimination in the area of employment, so continues to remain high, and 64 per cent of the total number of complaints made under the Sex Discrimination Act related to the grounds of sex, pregnancy and family responsibilities. Again, just less than half settled through HREOCs conciliation processes and again we know that only a handful ran to hearing, so the others must have been withdrawn or settled before hearing and after conciliation. Again, there is a note that the complaints alleging discrimination on the basis of pregnancy have increased by approximately 19 per cent.

PN7924

Now, of course, the Members of the Commission will appreciate that HREOC is not the only body dealing with complaints of discrimination on these grounds and, indeed, there are very powerful reasons why employees choose to complain to a state agency rather than HREOC. Given the difficulties in some of the federal anti-discrimination legislation, it relies for its validity upon certain constitutional grounds. There are gaps and there are many technical and quite complex legal arguments that arise from its constitutional reliance upon certain grounds of the Constitution.

PN7925

Now, Ms Ellison from HREOC who is appearing with me today very helpfully had a look, just by way of example, at the Victorian system today, and bear in mind that there are local laws in every state and territory in Australia. But the Equal Opportunity Commission in Victoria in 2003 and 2004 in its annual report reported a total number of complaints of 3186. Now, that compares with less than 400 of HREOC. The total in employment was 2469 and the total on the grounds of sex, pregnancy or parental status, marital status or carer's status was 639. Just pardon me one moment.

PN7926

Now, the Victorian Civil and Administrative Tribunal, which is the body that hears and determines the complaints should they be referred to it where parties have not resolved their differences and wish to proceed to hearing, received 400 referrals and 26 per cent of those related to sex discrimination and sexual harassment and 30 per cent were simply characterised as other. Each of the sex discrimination and other categories could have incorporated family responsibilities, or sex or pregnancy as a ground.

PN7927

So it is crystal clear, Members of the Commission, that there is concern on the part of quite a number of employees about their working conditions, having regard to their family responsibilities and that this issue is alive and well. The other thing that is clear is that many employees and employers are not only conflicted about what their relevant rights and obligations are, they are uncertain about them; and little wonder.

PN7928

The few matters that have gone on to final hearing and determination at a federal level in the last few years mostly have been framed as indirect discrimination cases. They are very complex and they tend to at times go on appeal. All of the parties in this case have had a good deal to say about them. HREOC also refers to these cases in paragraphs 44 to 54 of its submissions. Ms Doyle drew your attention this morning to one very concerning feature of these cases; that by the time they reach this stage of hearing and determination, the employment is well and truly over, it is ended.

PN7929

But debating and arguing about flexible working conditions, especially in the absence of a framework of any certainty, is likely to lead to conflict and tension and a destruction of an employment relationship, and those practising in the anti-discrimination area unfortunately see this all of the time. In the absence of some more certain standards, it is unsurprising that those relationships end. Ms Doyle reminded you this morning it can take a very long time to get any answer to that, and she drew your attention to the Schou case. It was dear to both of our hearts because we locked horns in it for five years of our working lives. But in that case, Ms Doyle being for the complainant and I was for the bad guys, Ms Schou was employed from 1979 - - -

PN7930

JUSTICE GIUDICE: The ones with the horns.

PN7931

MS YOUNG: Yes, your Honour.

PN7932

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Who we note from the decision that the bad guys won.

PN7933

MS YOUNG: We did, but Ms Doyle still speaks to me.

PN7934

SENIOR DEPUTY PRESIDENT CARTWRIGHT: So be definition you were the good guys.

PN7935

MS YOUNG: Yes, ultimately. I don't know - not in everybody's eyes, your Honour. But the point is this, that these parties had a very good employment relationship from 1979 until 1996 and it was in relation to an area of highly skilled work, Parliamentary reporting. Not many Parliamentary reporters in Australia; a very short pool of employees to call upon. All of the evidence in the case was about the strong, trusting, good relationship between the managers and this particular employee. In about the last year of her employment they tried to find ways to accommodate her need to spend more time with her young son who had childhood asthma. Part time conditions were offered but they were not acceptable to her. She had a view they weren't the appropriate ones.

PN7936

The resignation occurred on 1 November 1996. The complaint was made in October 1997. A five day hearing ran before VCAT in December '99. A decision was given in April 2000. An appeal from the decision to the Supreme Court was lodged on 20 July 2000. It was heard on 5 June 2001. And shortly thereafter the Court decided to remit the matter back to VCAT. We had a second hearing on 6 and 7 March 2002. A further decision given on 23 July 2002. An appeal heard by the Court of Appeal on 10 November 2003, and a judgment given on 13 April 2004. There was then an application for leave to appeal to the High Court. It was discontinued within the last few months.

PN7937

Now, I certainly don't say that every indirect discrimination case takes eight or nine years to resolve, or that it necessarily involves the complexity that arose in that case. But most of them do concern some quite difficult points, but the point to be made is that it took some years for the parties to have any understanding as to what the benchmark was in terms of the employer's obligations in the matter, a resignation having occurred in November 1996, it taking until April 2004 to actually identify what the obligation was.

[2.40pm]

PN7938

And that was unsatisfactory, we would say, and a great shame that that employment relationship was lost. So, the provision of a framework which provides greater certainty and consistency is likely to be very useful to employers and employees in resolving issues concerning work and family responsibilities. And that is why we have joined with the other parties in drawing the Commission's attention to the recently enacted legislation in the United Kingdom at paragraphs 68 to 78 of the HREOC submissions.

PN7939

Now, the ACTU have referred you to what was described as the Lovell report, and if I can just draw your attention in the HREOC submissions to the footnote numbered 126, and the reason I do that is that HREOC simply makes the point to assist the Commission that the Lovell report was actually a survey of employers that was done at about the time of the introduction of the UK legislation. What HREOC has done is updated and supplemented that information by providing to you a further survey which was actually of employees that was done at a much later time by the time that the legislation had been in place for a year.

PN7940

You will see at the last couple of sentences of paragraph 76 of the HREOC submissions that the survey was conducted in April 2004 to assess the impact of the new laws for employees. And a copy of the survey is actually attached to the submission. But the point we want to make is this. And I should say we certainly don't suggest that the Commission should just pick up provisions of other countries and pop them into our own system. I think ACCI described this as slavishly aping international trends in some colonial cargo cult-like way. That is not what we suggest that you do.

PN7941

JUSTICE GIUDICE: Did Mr Barklamb say that?

PN7942

MS YOUNG: We don't suggest we should adopt French as our national language or start using the Euro as our national currency, but what we do say is that this survey provides some interesting and very positive guidance as to how such provisions may go and the good news is that there was a very positive response of the 3485 employees surveyed over a four month period. There was a 65 per cent response rate, you will see, in paragraph 77. You will see that more than half of the employees were aware of the new laws and that there had been a number of requests.

PN7943

And you will see on the page, on page 27, the very promising, encouraging finding that a total of 86 per cent of all requests were fully or partly met by employers. 77 per cent were fully met and 9 per cent partly met. And that that was a marked improvement on the overall employer acceptance of flexible working arrangements. And you will see further down below 75 per cent stated that they were content with their present arrangements. So we simply draw that to the Commission's attention as a positive indication of the experience in another English speaking country on which our legal system is partly based.

PN7944

JUSTICE GIUDICE: That suggests a take-up rate somewhere between 20 and 30 per cent.

PN7945

MS YOUNG: A take-up of, your Honour?

PN7946

JUSTICE GIUDICE: Well, utilisation or requests under the legislation. If only half the employees were aware.

PN7947

MS YOUNG: Of the existence of the new - - -

PN7948

JUSTICE GIUDICE: Yes. And 16 per cent of females and 10 per cent of males. So extrapolating, one might expect somewhere between 20 and 30 per cent.

PN7949

MS YOUNG: Yes, your Honour.

PN7950

JUSTICE GIUDICE: That is quite a lot, isn't it?

PN7951

MS YOUNG: Yes, it is, for the first year of operation.

PN7952

JUSTICE GIUDICE: Yes.

PN7953

MS YOUNG: Finally, members of the Commission, there are obviously a number of sources of the Commission's obligation to determine applications in a way that gives effect to the objects of the Act and to assist employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers, to respect and value diversity of the workforce and help prevent and eliminate discrimination on the grounds that we have mentioned and also to assist in giving effect to Australia's international obligations in relation to labour standards.

PN7954

Now, HREOC has referred to the relevant provisions of the Workplace Relations Act in paragraphs 12 to 16 of its submissions, the Commission will be well aware of those provisions. Of course, one of the objects of the Act, as I mentioned, is to give effect to Australia's international obligations in relation to labour standards. HREOC has identified those in paragraphs 17 to 31 and addresses you on these having regard to the provision in section 88B(1) of the Workplace Relations Act that the Commission is to have regard to those.

PN7955

And in paragraphs 32 to 63 HREOC has set out the relevant provisions of the Sex Discrimination Act and a relevant provision of the Disability Discrimination Act. I don't propose to take you to those given the multiple sources of the obligation to have regard to family responsibilities and prevention of discrimination. It is really not necessary for you to have an especially technical understanding of the provisions of the relevant pieces of the anti-discrimination legislation. You have been addressed on the principles embodied in those pieces of legislation, that is what the Commission should have regard to. If there is anything further I can assist the Commission with I would be happy to do so otherwise those are the submissions of HREOC.

PN7956

JUSTICE GIUDICE: Thank you, Ms Young. Mr Barklamb.

PN7957

MR BARKLAMB: Thank you, your Honour. I might commence by seeking to have marked - - -

PN7958

JUSTICE GIUDICE: Mr Barklamb, I wonder if I could excuse you for a moment - excuse myself for a moment. There is a submission from the Women's Electoral Lobby who have indicated they don't intend to appear to support that submission orally. It is contained in a document entitled Final Submission of the Women's Electoral Lobby, November 2004, under a covering letter dated 19 November addressed to the President of the Commission. I will mark that submission WEL1.

EXHIBIT #WEL1 SUBMISSION FROM WOMEN'S ELECTORAL LOBBY, NOVEMBER 2004

PN7959

JUSTICE GIUDICE: Yes, thanks, Mr Barklamb.

PN7960

MR BARKLAMB: Thank you, your Honour. And perhaps I will commence by seeking to have the two folders of ACCI and the NFF's closing submissions marked.

EXHIBIT #ACCI7 FOLDER 1

EXHIBIT #ACCI8 FOLDER 2

PN7961

MR BARKLAMB: Thank you, your Honour. Your Honours, Commissioner, we are at the end of a long road in this case. This has been a case of massive proportions. It can validly be viewed as multiple test cases in one. On our assessment it is perhaps the biggest ever in terms of the sheer volume and breadth of award change canvassed. There is, we say, a massive set of claims before you from the ACTU. There is also a robust set of alternative propositions from employer parties. However, in essence, when you cut through the complexity and material in this matter we say you can boil much of this case down to a set of core conclusions and considerations.

PN7962

Firstly, we say the evidence in this case shows you that things are working. There is evidence that you have been given of the success of work and family accommodation through bargaining and through determination at the workplace level. The evidence is of success of employees and their employers in accommodating work and family considerations in our workplaces. Social and familial change that we have heard so much about is being matched by changes in the way we work day to day. The evidence is simply not there of the wrong and the mischief that the ACTU says need to be addressed in this case. No case has been made out, we say, for urgency, nor for radical changes of approach.

PN7963

Secondly, the ACTU claims in this matter will endanger successful accommodation of working and familial concerns in our workplaces. We say there is clear evidence that these are flawed ideas that will deliver bad outcomes. We say the ACTU claims are a threat to the successful outcomes being secured in our workplaces. Thirdly, we say that the ACTU lacks proper evidence to make out a case in support of its claims. We all know, and in fact I have the visual confirmation before me, that there is lots of material that has been put in this case. Exhibits ACTU6A, B and C are rather heavy, but the weight and the width of one's researches do not add up to rigour, nor do they add up to relevance inherently and of themselves.

PN7964

We say the research introduced into this matter properly examined, properly gone into, looking at its foundations, does not in fact support the ACTUs claims. And we spent much of our written submissions looking into things at that fundamental level.

[2.53pm]

PN7965

Compounding that error there is a major failure of deductive logic in the ACTUs case. There is no nexus drawn at any stage of these proceedings we say between the generalised research on social and societal change, nor between generalised research even on the importance of work and family or combining work and family life and the particular prescriptions the ACTU puts to you. Research and evidence fundamentally fails to show you why these particular claims and approaches should be granted.

PN7966

We say that that error was repeated in the ACTUs closing put to you yesterday. You have been provided with no basis of the conclusion of this case to validate any particular approach from the ACTU. We also say fifthly that the ACTU arguments do not get much beyond employee preference. An argument that one party or another wants something is not of itself a merit argument. We say that even this in fact is not made out by the witness evidence, we say there is a very mixed picture of employee demand in fact.

PN7967

Further demand for particular approaches in no way proves a connection to the employment relationship, nor validly to the responsibilities of the employer. That leads to the sixth point. The ACTU in making its claims and in prosecuting its case fundamentally misconceives the proper boundaries between employer, government and societal responsibility. We say massive tranches of this case and the material adduced before you go to issues of government responsibility that have absolutely nothing to do with employers nor the employment relationship.

PN7968

We then say, we also say in conclusion, that the key purported expert evidence is, when properly assessed, as we have done throughout this case, either expert in content and reliability nor very strong evidence. We say that the purported expert evidence before you in substantial part is of no assistance to you in the decision you must make in this matter. We also say that the statute and the framework under which this case must be determined does not favour or assist the ACTU in its approach. We say in fact that the statute and the framework for your decision in this matter actually embodies a strong presumption against the granting of the relief sought by the ACTU.

PN7969

It is not only a barrier to the granting of their claims, we say, but we say a proper examination of the framework shows the claims are misconceived in the contemporary context. We also say that the ACTU claims would carry significant additional costs and economic detriment at odds with the statute. We say that they could set work and family back in Australia. And we also will say in some detail shortly that the claims of business benefits off setting costs that has been advanced to you consistently by the ACTU is fanciful.

PN7970

We also say that the ACTU has simply put up before you bad award provisions. Aside from a lack of merit and justification this is flawed law that is being put before you and bad regulation in its form, content and likely operation. We say it is just plain confusing and poorly designed, and we say that that came out yesterday in discussions. Bad concepts, bad ideas, have translated into bad proposed rules. You have however before you a superior alternative. To the extent that this case asks a question of it all - of us all - that question being what more or what extra could or should the award system do to assist the balancing of work and family.

PN7971

Our answer is not nothing. We have an answer to that question. We have, we say, a superior set of propositions for you, we have genuine alternatives through the applications we make. We say they are equally, or to an even greater extent supported by the literature, by the international lessons to the extent relevant, and by the evidence in this case, to the approaches advanced by the ACTU.

PN7972

VICE PRESIDENT ROSS: Mr Barklamb, if we accept what you say that everything is working well, as you suggest, why would we grant your claims?

PN7973

MR BARKLAMB: Indeed a fair question, Vice President. The short answer to why you would grant our claims is that there is an opportunity to provide some more options and approaches. We don't say however that the case is absolutely overwhelming to disturb the status quo. We will show you shortly we say that Australia is on a satisfactory path to the balancing of work and family, the changes are being made, that gains and accommodations are being secured in our workplaces. But we think a valid question has been asked by the ACTU in raising this case and we say that we think there are opportunities for the award system to do a little better. Thank you.

PN7974

We also say that our alternatives are more supported by the Act, or in fact are supported by the Act, by common sense and by what we know works in contemporary Australia. Of course the case is significantly more complex than this and our points go well beyond these. This is an introduction to some of the core points which we will commend to you in closing this case. However I also opened the case by advancing seven propositions to you which we also say are valid in closing and should be borne in mind.

PN7975

In summary they were that jobs growth and the importance in employment opportunity must remain Australia's national priority. We say the capacity of employers to create jobs, to provide employment opportunity and the incomes and societal participation which that creates is in fact the most substantial contribution employers can make to families and family life in Australia. We say in fact that the ACTU claims carry some prospect in undermining job security and job opportunity.

PN7976

We also say to you or said to you in opening that one size does not fit all, an employer claim that has been noted by a number of parties. Employers don't oppose sensible measures being worked out in workplaces, however meaningful solutions can only be made at the workplace level we say, and we say that has been bolstered by an understanding of the evidence which you have before you. We say solutions can only validly be found in making existing employment regulation more flexible, not by new economy wide rights.

PN7977

We say the workplace agreements are not only as a matter of statutory construction but as a matter of the evidence as a matter that comes from the conclusions we must reach based on common sense and what the witnesses told us. We say that shows that workplace agreements is preferable to economy wide regulation. We also say that there are boundaries to the valid responsibilities of Australian businesses. Businesses are commercial undertakings and must act in their best interests on that basis.

PN7978

Employers accept responsibility for running businesses and for trying to create jobs. We cannot however accept obligations that more properly rest with individuals, their families, or as I shall get to shortly, the broader community and our governments. Of course employers must also satisfy multiple competing demands of their commercial and other relationships and not just employee demands, and we say that is also important in the assessment you must make. And as I have indicated to you we say substantial progress is being made without additional regulation.

PN7979

Also finally business costs are already increasing. We have had major decisions carrying costs in the area of redundancy, we are about to go through a major tranche of change in the Victorian system which carries additional costs, and there are thereby additional costs which employers are already assuming in our economy. We say such points remain highly valid in the conclusion of this matter. The ACTU has not provided sufficient material to dislodge or disturb the foundations we commend to you for this case, these remain overarching considerations.

PN7980

Broadly today I want to speak to you today and tomorrow in two halves. Firstly I want to go to a range of the overarching matters that the ACTU has introduced as crossing its claims, which we will respond to, and matters we say cross over the various claims before you. Broadly that is to take you to folder 1, exhibit ACCI7. Then we trill down and go to the specific claims, folder 2, exhibit ACCI8. But before I do that there is one rather out of order matter I do want to take you to in your consideration of the context of this case, and that actually arises from ACCI8, which is folder 2 of what I have handed you.

PN7981

And it comes up at page 5-7 which appears under the tab - it appears in fact under the first of the tabs in relation to working time. This material is ABS material on employee demand for changes based on work and family. It is a carer leave - it is a survey of carers who are employees about what they want to assist in their caring. And it comes to you not as new material but from attachment 9 of ACTU8. The ACTU has introduced this into the case. I want to take you to table 4 on page 5-7, carers who are employees reporting on whether they wanted to make more use or in fact use of more of their working arrangements to care.

PN7982

I want to look at the middle column, those who did not want to make more use of their working arrangements to care. This shows us of men 89.8 percent of them appear to be quite happy with the extent to which their working arrangements contribute to their caring. For women only marginally lower, 86.4 percent, and overall 88.2 percent.

[3.04pm]

PN7983

Ms Bowtell told you yesterday, and in opening, that there is a crisis, or the rather unfortunate metaphor of an accident black spot. In fact, data they have introduced into the case shows that over 88 per cent of employed carers don't want to make any more use of their employment arrangements to undertake their caring. This is actually a basis to send both the ACTU and ourselves packing. It really shows the paucity of demand for change at this time. What we say is that, in fact, it shows that the metaphor for urgency of action and for particular approaches cannot be borne out. To return to folder 1, ACCI7 - - -

PN7984

JUSTICE GIUDICE: I supposed that doesn't really tell you anything about people who aren't in the workforce.

PN7985

MR BARKLAMB: No, it would not. People on carer's pensions perhaps but to a great extent they are not the subject of this case. The case has not been prosecuted specifically with those people in mind like - - -

PN7986

DEPUTY PRESIDENT IVES: Well, it wouldn't be only people on pensions though, would it, Mr Barklamb? I mean, it won't be people that had ceased to be in the workforce because their caring responsibilities were such that they determined that it was inappropriate or impossible for them to be still employed.

PN7987

MR BARKLAMB: Indeed, Deputy President. I didn't mean to suggest that everybody who has caring responsibility that is not in the workforce is on a pension. That was the one that came instantly to mind but you are correct, and there are considerations underway, we understand, to attract more of those people back into the workforce in due course. But we say that the most - the basis of the prosecution and foundation of this case has been a consideration of those in work with caring responsibilities, and what more can or should be done to assist them in their work and family balance. And we merely wanted to put into its context the lack of demand for new approaches from those people.

PN7988

To move to the very heart of what we are doing and, in fact, the very foundation of what we are doing is, of course, the Workplace Relations Act. The basic schemer of the Act relevant to this matter we say is clear. Primary determination of terms and conditions of employment is to be by agreement making at the workplace level. Awards, the subject of these claims, are to operate as a safety net underpinning agreement making.

PN7989

We say this creates a clear statutory presumption that consideration such as those raised in this case will be addressed via agreement, not award prescription. We say Parliament has not left us at large on this. They have told us how these considerations are to be addressed under the Act. We also say that the schemer embodied in the objects of the Act, for example, is backed up by specific provisions throughout the Act which focus on agreement making and awards in their role as a safety net in contemporary award setting.

PN7990

In terms of the statutory scheme, we say the award has before - a set of applications advanced by employer parties which further and are supported by the objects of the Act. We say the Commission also has before it applications by the ACTU which are inconsistent with and are not supported by the objects and the schemer of the Act. We say the ACTU has treated the objects of the Act very selectively. They have ignored or underplayed the primacy accorded to bargaining under the objects.

PN7991

They are wrong in ignoring the centrality of economic and efficiency outcomes in the objects of the Act and they presented, we say, something of a distortion of the extent to which discrimination, work and family and international obligations are important. Of course, you don't pick and choose from the objects like this. A proper and complete consideration of them is the course that should be undertaken, and we say it strongly mitigates against the ACTUs claims. We now wish to turn to some of the objects that are directly relevant. Section 3(I) of the Act requires the Commission to have regard to:

PN7992

Assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers.

PN7993

"Mutually beneficial work practices with employers." We think this lend weight to a view that facilitation is preferred to the imposition of one sided and non-supported by both parties additional new rights. Facilitation allows solutions to be developed at the workplace level. It, therefore, allows inherently a far greater consideration of work practices that are mutually.

PN7994

We say the ACTUs claims are not in this form. They solely provide employees with additional rights and capacities, and limit employer capacity or, in fact, under a myriad wording, in fact, render it almost a nullity to refuse the exercise of those rights. We say there is no regard, proper regard, for mutual benefit and, therefore, the package of claims can't gain solace from section 3(I).

PN7995

In particular, we will strongly dispute, or we do strongly dispute at the end of this matter the business benefits thesis advanced by the ACTU. We say that it is not valid and it cannot be relied upon, as my friend claimed yesterday, to deliver the mutuality which the Act demands. In particular, we say that any economy-wide or aggregated assumption of benefit would be inconsistent with 3(I). We suggest that when looking at the objects as a whole, section 3(I) is clearly targeted to the conditions of particular employers and employees in their particular workplaces yielding mutual benefit, not some form of macro or overall assessment.

PN7996

The ACTU state at paragraph 22 of their closing that our agreement to conciliated set of carers' leave claims implies that we accept that awards play a role in assisting employees to balance their work and family responsibilities. Of course we accept that awards play a role in assisting employees to balance their work and family responsibilities. That is why we are applicants in the current matter. Our approach is, however, we say the correct approach to this balance and would allow awards to function in a manner which better supports the reconciliation of work and family responsibilities.

PN7997

We also say more generally that there are various other sections of the Act which are advanced by the ACTU in support of its claim at various points: sections 88B(2), section 88B(3), sections 90, 93 and 93A. We say that there is a range of duties and balances embodied in these sections of the Act. It is not enough merely that various of these sections mention familial concerns directly or that you can create some argument to link familial concerns to them as is done with section 90. The ACTU needs to show, to hark back to what I said in opening, the ACTU has got to show you a nexus between the statutory presets under which this case will be determined and its particular set of prescriptions. We say that cannot be proved.

PN7998

The ACTU put a conception of section 90 to you in closing yesterday. We don't say that the public interest is solely about economics. But by the same terms, section 90 is not a single line section saying that the Commission is to have regard to the public interest, full stop. It does contain detail and guidance on how the public interest is to be assessed, and we say this places a primacy and a preference to economic considerations in assessing the public interest.

PN7999

We say the ACTU fails to show you a nexus between its supposed public interest considerations and the Act. Not all matters of social policy will gain an inherent legitimacy or reinforcement by section 90. I will come back under the section on costs to address further what we say section 90 means to this matter; in particular, in regard to the ultimate status we say costing material can have before you. At that point with that brief introduction I commend to you the first sections, or the introductory sections of folder 1 of our final submission.

PN8000

Essentially we are saying to you the Act is not as the ACTU sees it. We say the properly considered statutory matters fundamentally confound the ACTUs approach; that the Act offers multiple grounds on which the ACTU approach should be eschewed and in favour of those of ACCI and the NFF. We say the Act is a positive barrier to the granting of the ACTUs claims.

PN8001

With that, I would like to move one of the major fallacies and misrepresentations we say has pervaded this matter as prosecuted, and that is the suggestion of a bargaining or market failure. We have said that there is a clear statutory presumption in favour of matters being resolved at the workplace level: in favour of matters being addressed by agreement, rather than additional award regulation, and in favour of awards only operating as a safety net.

PN8002

We say this statutory presumption means that any party trying to secure an outcome at odds with this presumption to overturn it by, for example, significantly adding to award obligations and extending the award system would bear a heavy onus to overturn the presumption. We say in this case this can be conceived of in terms of a market or bargaining failure. If a party was to be able to disturb the statutory presumption against award making, it would need to prove that very significant additional award approaches should be adopted at odds with the Act and that, in fact, the preferred approach under the Act - that of bargaining - has failed and was not delivering. We say the ACTU has not proved this contention and could not prove it. We say the evidence in this case is that bargaining is operating successfully precisely as envisaged by the Workplace Relations Act.

[3.15pm]

PN8003

We say we show this in detail in section 9 of exhibit ACCI7. Firstly, we say there is clear evidence of formal bargaining operating successfully in extending to the issues sought to be covered by the ACTU claims. Part 2 of section 9 of our submission shows that even within the small sample of employees brought to you by the ACTU, within their witness sample, many of them work under certified agreements which directly address the issues raised by the ACTU in its claims. The Red Rooster agreement does this. Coles-Myer agreement does this. The David Jones agreement does this, as does the Qantas agreement. They show direct bargaining on things like, increasing parental leave above 12 months. Direct bargaining on matters such as a part-time return to work. And other matters that directly cut into the ACTUs claims.

PN8004

We also say that these certified agreements, even this narrow sample, which we were able, in two hours, to extract from the certified agreements the witnesses worked under, shows that there is a more general address of work and family in such agreements. And that they cover matters not only included in previous test cases, that is true, but also going beyond this. We say this shows a clear capacity to bargain on leave, hours, and other matters directly, that the ACTU would have the Commission address using the award system. We say further it shows a capacity to bargain across a diverse range of industries, and thereby shows you that the intervention sought is not needed.

PN8005

The ACTU spent some time yesterday saying that you should not accept the evidence of the pervasiveness of work and family clauses in certified agreements based on data that has more recently been produced by the Commonwealth. We don't intend to go to that in detail and to leave that to other parties. We do, however, say two things. One is to reiterate what i have just said. Even if the overall incidence data does have some challenge made to it, you have the evidence of certified agreements brought forward in this matter, touched on by as representative a sample of cases as the ACTU claims for its witnesses.

PN8006

Further, however, we will spend some time going to the incapacity or inaccuracy of some agreement research. You have heard a lot about Gray and Tudball, you have heard a lot about Whitehouse. We will go to that material and show you some reasons that it can't be accepted on its face uncritically. Secondly, and more importantly to this question as to whether there has been a bargaining or market failure. There is absolutely no evidence in this matter of unions being unsuccessful in pushing campaigns for these particular conditions, prior to coming to this Commission for award relief.

PN8007

We say this is the key and crucial piece of information that a party prosecuting these claims would need to bring to you. The ACTU cannot and does not bring it before you. The most obvious piece of evidence that would be required. We say further that the construction of the Workplace Relations Act in fact demands some effort from an applicant party prior to trying to overturn the presumptions in the Act. There was some discussion under this point of Ms Rapana, and I will leave colleagues more expert in her evidence to respond to that. Even if that were entirely the correct - that would be evidence of a single individual. It would not be enough to disturb a macro level presumption under the Act.

PN8008

Thirdly, of course, bargaining under the Act is not restricted to capital B, headline certified agreement making. The Act also clearly recognises non-formalised day to day commonsense, working things out agreement in our workplaces. The evidence in this matter, both from the employers that we bring to you, but also from the hand-picked selection of ACTU witnesses, is overwhelmingly of successful agreement on work and family accommodation, day to day, day in, day out, commonsense at the workplace level.

PN8009

Problems are solved, reasonable approaches are being taken on both sides. For example, nine of the ACTUs witnesses asked for part-time work, and nine of the ACTUs witnesses got part-time work. To link back to the statute, we actually say the objects support you having a focus on the day to day workplace level accommodation of this issue. Objects 3B, 3C - 3C, especially 3C, and 3D(1) support a focus on agreement making not necessarily brought to you for formalisation. I now wish to turn to part 4 of section 9, and the published material relied on by the ACTU and some of its witnesses on the paucity of bargaining on work and family matters.

[3.22pm]

PN8010

We say that this material - and we are particularly talking about Whitehouse v Zeflin, Gray and Tudball and the like - is dated. Even when it is published within the last five years this material may miss, and we have an apprehension that it does miss, a fairly significant amount of change in bargaining and in the content of agreements coming before the Commission. We say further it is subject to conceptual and methodological argument. The research is based on lots of personal opinion and value laden construction of what is and not a work and family friendly measure. There is in short an eye of the beholder problem in analysing the outcomes of agreement making.

PN8011

We say, for some reasons I will get to shortly, that such academic research on agreement content and agreement - the product of the bargaining system, could not be preferred validly to the more contemporary picture being illustrated by the witnesses and by the agreements that they work under that are caught up in this matter. And, as I have said earlier, we also say that the objects of the Act support a focus not just on capital B certified agreement making. I may, in fact, at this point spend some time directly with that material. Section 5 of the ACTUs final contentions address bargaining and precisely the considerations I have just outlined.

PN8012

We say the material, as I have said, is wrong because it relies on dated, partial and incomplete research. We say a great deal has changed since 2001 when the Whitehouse research was undertaken. Even apparently this comparatively recent research may mask, we say, some major changes in awareness and importance regarding this issue in recent years. We have evidence from the agreements that have come before you. There have been newer changes in the Coles Myer agreements, for example. We have evidence of the emerging importance of this issue in recent bargaining through statements from the witnesses.

PN8013

We don't have a concrete opinion - or we don't have a concrete set of data to put to you on this, but we say that there is a genuine apprehension that there may be - apprehension that there may be significant movement in this area in recent times. One of the things which I can say just in terms of analysing this date is that you have had discussion before you of a confusion in knowing what is and is not a work and family measure. When one reads the certified agreements, the very recent ones, which the ACTU witnesses are subject to, and are working under, a number of them are very express in articulating the work and family measures they contain.

PN8014

It may be - and I have nothing other to put to you than this - than an apprehension - but were the Whitehouse material repeated on a more contemporary sample of agreements it would be a lot clearer as to what is and is not a work and family measure. And, of course, more fundamentally, not all work places will place priorities on any particular package of flexibility selectively chosen to be examined by any researcher, be it Whitehouse, be it ACCERT, be it the Commonwealth, be it whomever. We have never said that 100 per cent of workplaces want a 100 per cent of possible changes in this area; I don't think anybody is saying that.

PN8015

But certified agreements should not be judged on this basis, as apparently the ACTU would have it. We say that ultimately the research in this area can be notoriously unreliable. It is very difficult merely from analysing the text in an agreement to tell which particular provisions may operate in a family friendly manner. The ACTU also states at paragraph 645 of its closing of ACTU12 - and I don't need to take you to this in any detail - that the agreements which contain flexibility for employers are somehow anti family or anti working family. We completely reject this notion.

PN8016

This would be complete - to completely misunderstand the mutual nature of bargaining under the Workplace Relations Act. Employers in no way apologise for having needs and priorities in bargaining, nor for securing such an approach. An approach which denies capacity to employers in that area would be at odds with the mutuality of the Act, and in particular, as I have said, section 3I. We say, in fact, that research that counts an agreement as not being family friendly purely because it contains any give and take to the employer, we say that that research really shows you how plain silly and extreme some of the literature can be in this area, and, of course, we say the Commission would not adopt such an approach.

PN8017

But as the ACTU would have it the Commission is not at large to eschew bargaining on this issue because it may involve trade-offs. Parliament tells us bargaining is pre-eminent under the Act. The fact that bargaining is operating successfully, as envisaged by the Act, further ensure there could not be any valid basis, as I have said, for a change of approach. The ACTU, and we - from recollection the states and territories this morning raised the Gray and Tudball research. This is research they based on the AWERS 1995 data set. It is worthless. It is ridiculous to rely on data that old.

PN8018

There have been multiple generations of agreements since this time and without being flippant, the children have gone from primary school to learners' permits or from nappies to high school. Such old data, in fact, permeates much of the research, Australian and domestic, which the ACTU and some of its witnesses seek to rely on in this matter. Watching out for and avoiding old data traps is one of the core difficulties in this matter.

PN8019

The ACTU also chooses, at paragraph 671 of its final submission, to attempt to raise casual employment in this matter. Casual employment is only raised in this matter by our applications in regard to casual work and otherwise the capacities of casual employees to secure particular work and family accommodations are irrelevant.

[3.28pm]

PN8020

The ACTU also raises convention 156 of the International Labour Organisation at paragraph 32 of ACTU12. In a throwaway line, apparently saying, linked to its contentions on bargaining failure. We say in regard to international materials, and this is a point to which I will return, the Australian Parliament has told us how we are to discharge our responsibilities under convention 156 and all of Australia's international responsibility. That is via the mechanism of the Workplace Relations Act as a whole, the scheme as a whole and the checks and balances it contains. It is by, we say, the presumption in favour of bargained approaches and in favour of awards only being a safety net.

PN8021

If the Parliament had meant us to do something special or different with regard to international obligations it would have directed us to. That is one-half of bargaining failure. What do we know? We know that the picture of what is in agreements is far more family friendly than some data may suggest. We say there is a genuine picture presented of successful capital B bargaining in certified agreements but, more importantly, through the evidence in this matter, through the evidence of our employer witnesses, but also from the ACTUs own employee witnesses of success under the Act.

PN8022

What then of the other half of what has been put to you in regard to market failure?

PN8023

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Mr Barklamb, are you putting the proposition that basically we should disregard studies based on old data albeit that they are based on a reasonably comprehensive set of data and instead place reliance on the selection of agreements that we have been pointed to in this matter which is a very small selection?

PN8024

MR BARKLAMB: The selection of agreements, your Honour, and the evidence of the employee witnesses and, we say, the evidence of more recent indications of a spread of bargaining in certified agreements more generally. So I think I indicated we don't make a submission, a detailed submission in support of the latest Commonwealth data on certified agreement-making but we certainly say that may still be relevant to your considerations in a statistical sense to back up what the particular exemplars may tell you.

PN8025

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And that is the evidence that we are relying on of the more recent success of bargaining?

PN8026

MR BARKLAMB: That certainly is the major evidence you have been presented with for a success of bargaining in this area. It is as wide, of course, inherently, as the evidence the ACTU presents for its employee propositions. It is the same coverage. You have a diversity of businesses being called up by the employee witness evidence and indeed by some of the employer responses across retail, across manufacturing, across hospitality. So that we say there is a pretty robust set of exemplars that are called up there.

PN8027

And indeed, of course, it is precisely the same set of enterprises the ACTU would call up to argue bargaining failure to you. Yes, that is, your Honour, that is what we say. And to further answer that question, just by underscoring - the AWIRS '95 data set precedes the creation of the statute in its current form and based on three year agreements we could be into four generations of agreements since then, three or four. And that time since 1995 is a time where work and family considerations have been to the forefront of human resource teaching and research. They have been to the forefront of media attention, guiding employee wants and desires. So we really think there is a very substantial basis to conclude that a large amount would have changed since that data and research was undertaken. The - - -

PN8028

JUSTICE GIUDICE: What about employees who aren't covered by agreements?

PN8029

MR BARKLAMB: Well, the employees who aren't covered by formal certified agreements, your Honour? We say that there is no reason to conclude that those people don't have the abilities to secure the day-to-day accommodations in the workplace illustrated by the employee and employer evidence in this matter. I might, for example, just - Neil Shankly was a witness of ours. You will recall he was the caterer who did a range of work in the health and aged care sector.

PN8030

Not only is he not covered by an agreement up until, you know, another, let me see, 15 days now he will be covered by schedule 1A of the Workplace Relations Act prior to the changes in Victoria. So not only did he not have an agreement, he actually doesn't have an award. He gave you overwhelming evidence of the capacity to accommodate quite a few requests, or substantially accommodate employee requests within his enterprise. I don't understand Ms Riley, the pharmacist in rural Victoria, to have been covered by a certified agreement, yet she provided evidence of day-to-day accommodations and managements of this issue. Thank you, your Honour.

PN8031

The next tranche of the bargaining or market failure argued by our colleagues is the notion of adverse selection which was introduced into this case, we say, as something of an afterthought by Professor Mitchell. We don't intend to take you in detail to the adverse selection thesis that he advances. We address it in part 5 of section 9 of our final submission. The ACTU rely on it, I think, at paragraph 37 of their final submission, ACTU12. In essence, however, we say that this is white board rarefied text book economics. When you step away from that into the real world, when you add even a single minimum wage, let alone a multiple minimum wages system like Australia, let alone the introduction of protective laws in relation to discrimination and wider employment regulation, this theorem completely breaks down.

[3.36pm]

PN8032

We also say, of course, the real world evidence is simply not there to this theory. But any examination of the companies who do, who are leading, who are at the forefront, who are recognised in terms of work and family, shows that they are not low wage ghettos, as the theory would demand. Best practice in this area goes along with best practice generally, and we say above median pay. I don't want to spend too much time on this. We say it is an irrelevance that has been inserted into this case. And whilst I am on irrelevance and inaccuracy, and Prof Mitchell, I would like to turn to costings.

PN8033

The ACTU advances an argument in this matter, and in fairness it was refined yesterday to a fairly cautious and something less than ambitious argument. They advance an argument that the costs of their propositions are negligible. The ACTU appears to rely solely for this claim on the work of Prof Mitchell of the University of Newcastle. They have nothing more. All of their costs eggs are in a single basket to prove its contentions in regard to the negligible impact of its claims.

PN8034

We completely reject this costing material. For the reasons I will come to shortly, we say the material for Prof Mitchell is absolutely valueless. It advances the ACTU claim not a single centimetre. We say that it is in fact so flawed that the ACTU ultimately presents the Commission with no reliable information on the costs and impacts of its claims. Now, we will come to the consequences of that. A question in those terms was put to me in an earlier stage of this matter, and we will certainly address you on what we say are lack of any costing means.

PN8035

We examined the insurmountable and inherent problems confounding the ACTUs costing information in section 10 of ACCI7. And they are illustrated further in detail by our examination of Prof Mitchell on 9 September. We say they are not answered in any way by the material from the ACTUs final submission which commences at paragraph 803. We say the ACTU completely failed to resuscitate Prof Mitchell's evidence, and we commend this detailed material to you.

PN8036

As we have said, the ACTU places all its costing eggs in the basket of Prof Mitchell. As a basket of supporting evidence, we say this evidence is as watertight as a string bag. We say, in essence, Prof Mitchell attempts to only cost some of the ACTUs claims. So even if he got it all right, even if his material was all perfect, he simply didn't set out to chart enough of the ground to present you with any robust costing. He failed to examine the costs of the purchase leave component of the purchase leave claim entirely, the proportionate pay adjustment.

PN8037

He failed to examine multiplying leave by new - for new fathers eight fold. He failed to consider up to four to four and a half years, of additional parental leave, through the child rearing leave claim. Thus before we even get to the errors and faults of his research, we find it is incomplete, and it doesn't do what it purports to do. That is cost the ACTUs package of claims.

PN8038

It should also be recognised, of course, that for various of the claims nominally included in the analysis, Prof Mitchell doesn't provide a costing number of the type included in the earlier parts of his report. He doesn't attempt to provide any ultimate costing number on purchase leave. Nor for the hours of work changes. Therefore, of course, he can't provide you with any aggregated costing assessment. And the conclusion to his report, section 9, doesn't report a final summary number or table of the style that the ACTU attempts in various other of its claims, such as the wages claim, on the impact of these changes across the whole economy.

PN8039

The ACTU appears to argue in its conclusions that you can extrapolate from those costings that are attempted, to those that are not attempted. that appears to be what they are saying at paragraph 810 of ACTU12. We simply say there is no basis for this assumption from the ACTU. It just sits in the ether. We say that it is a function of fact that one of the key methodological and conceptual flaws in the ACTU claims, which I shall spend some time on, and that is the error that I have referred to as the typological error, or the nomenclature error.

PN8040

The ACTU assumes that because one set of measures that are labelled work and family have a particular effect, therefore their particular set of claims that are labelled work and family, will have an identical effect. Purely on a similarity of description, a similarity of terminology. It is that kind of thinking which would underpin and extrapolation from what Prof Mitchell does do, to what he doesn't do.

[3.42pm]

PN8041

We also say that Professor Mitchell, in fact, costs something other than the ACTU claims in this matter. In key areas what he purports to cost is not what the ACTU is actually seeking. In manifest and complete error the Mitchell report assumes a 12 month qualifying period for access to the new right for employees to unilaterally vary their hours of work or to unilaterally enter and set purchase leave arrangements. Now, this may not have been his fault, it may have been a function of the instructions, but it is just plain wrong, those are not the claims. It is a - - -

PN8042

JUSTICE GIUDICE: Mr Barklamb, are you reading from somewhere in your submissions?

PN8043

MR BARKLAMB: No, I am not your Honour, I apologise. I should have made that clearer. I am providing what I say is a precis of what we argue in section 10. I can take you to particular parts if you need me to.

PN8044

JUSTICE GIUDICE: That is all right. I am just trying to find where you are up to.

PN8045

MR BARKLAMB: No, that is fine, and I apologise. With that I - - -

PN8046

JUSTICE GIUDICE: I thought you were still on section 9.

PN8047

MR BARKLAMB: No, I do apologise, your Honour, I was - yes, it is - no, what I sought to assist the Commission by - and I should have made this clearer - is rather than - I may revert to this in some sections rather than leading you through page by page. I attempted certainly in ACCI7 to distil our core messages into a restatement that would be more convenient and interesting.

PN8048

JUSTICE GIUDICE: Well, the purpose of the oral submissions, of course, is to elucidate what has already been filed and I presume we are to deal with some matters that have been put against you which you haven't had an opportunity to deal with. But for our part, as you have already noticed, there is quite a lot of material and I suppose we are particularly assisted where we get a tendency to summarise or crystallise the propositions rather than put them in different terms.

PN8049

MR BARKLAMB: Certainly, your Honour. This is not a particularly long section of what I have to say and I can truncate it somewhat.

PN8050

JUSTICE GIUDICE: I am not suggesting you should, I am just making a very general observation about, I suppose, the desirability of reducing the complexity of the material.

PN8051

MR BARKLAMB: Yes, your Honour. To go then to the next point. We say the Mitchell report is compromised by a deficiency of data. He simply doesn't have the necessary prerequisites to undertake a proper costing of the ACTUs claims. Effectively he acknowledges it and when you read his report and you go through it in detail, time and time again, clause and clause again, it is the paucity of proper Australian data that means he can't cost it, and it is the paucity of that data that means a number of assumptions throughout this case can't properly be made. We say, in fact - we don't know the time scale that Professor Mitchell worked on for the ACTU.

PN8052

We have a suspicion with a bit more time he actually might have been able to address some of these data deficiencies by purchasing unreleased data from the ABS. However, that wasn't done and the errors are there. The ACTU says at paragraph 813 of its final submission, ACTU12, that ACCI and other respondents fail to come up - essentially they say that we failed to come up with anything better. Now, as I said, I will come to the section 90 considerations in a second. But we say that is not really our job. We are not the ones prosecuting these claims. It is not our job to make them work, nor to find data to reinforce them when the prosecuting party cannot.

PN8053

We do come up with something better, we say, in evidentiary terms and that is the evidence of our witnesses on the cost of these claims. The ACTU describes these witnesses at paragraph 840 of its final submission as select. Well, witnesses are always select in these matters. We think this is a fairly irrelevant comment. If the ACTU wants to get into an argument about how to choose the so called employee exemplars it brought forward, and the extent to which their experiences are representative, so be it, but at this stage both parties have brought forward significant samples of employers and employees on the basis that they are representative and illustrative.

PN8054

We say further, Professor Mitchell recognises the problems in his report and he can't correct them as a function of the data deficiencies. His answer to this - his sole answer in cross-examination and in his report was to be transparent in his assumptions. Well, we say this is a little bit like an elephant trying to sit on a wine glass; the fact that something is transparent doesn't make it a stable foundation. Whilst the attempt at transparency is admirable and appropriate it is not a substitute for proper data. There is also, as pervades the ACTUs material throughout this case, and the assumptions it makes and other make, an inappropriately flawed and simplistic assumption of comparability between national approaches.

PN8055

In addition to being uncritical of the veracity and reliability of the international materials he identifies to support his thesis, Professor Mitchell fails to properly consider the extent to which they are actually comparable to the considerations at hand. We say, for example, and we will come to this in some further detail tomorrow, I suspect, that the UK right to request is not the ACTU claim. The UK hours changes made prior to 2003 are not the ACTUs claim. We say, for example, that the US Family and Medical Leave Act, in fact, was the setting of standards way below those already in place in Australia.

PN8056

Professor Mitchell falls into one of the key errors that pervade the thinking of the ACTU and its core witnesses, and that is again what I referred to earlier as the typology or nomenclature error - oh, this is work and family, it has these effects, that must apply over here as well. There is also a failure, as I

PN8057

indicated previously, of critical analysis and that, for example, was illustrated when I took him to the underpinnings of the UK costing research that pervaded his material and there was a 20 per cent figure for the cost of replacement employment. A figure that had no foundations at all and when tested was simply being taken as a matter of faith. One example, we say, it is illustrative of the approach throughout the report. I will come tomorrow, I think, to the Lovell CIPD material which we have had repeated to us today from, I think - I think we have had repeated or relied upon by most parties and intervenors you have heard to date.

[3.49pm]

PN8058

It is a foundation which we say is totally worthless for the reasons we will come to tomorrow. We also say that the errors in the Mitchell report are cumulative. They are set up at the start of the report and then are used as a methodology throughout. The prejudice and render unreliable the data which follows. I am going to attempt to move through this fairly quickly, he also adopts theory that is at odds with common sense such as the assumption that parental leave behaviours are entirely and necessarily and in all case guided solely by financial considerations.

PN8059

What he does not recognise that we say is an important consideration in this matter in particular is that levels of entitlement - what we say is that levels of entitlement will structure usage particularly in regard to parental leave and that that will lead to usage levels far above those he assumes. There is also something of an internal inconsistency to what Professor Mitchell puts to you. He said at one point that parental leave is used primarily by women earning over $70,000 a year and then he costs using average weekly earnings.

PN8060

It is just not following through the research that he puts at the start. He makes some unsustainable assumptions about scenarios. He says to you, for example, in regard to the use of part time return to work, oh, well, I will cost on three scenarios, low costs, 10 per cent, medium cost, 20 per cent and high cost of 30 per cent. Well, those figures are totally unsupported; unreferenced in his analysis. How do we know that low cost is at 70 per cent, medium cost is 80 per cent and high cost is 90 per cent. There is no reinforcement to these numbers.

PN8061

He also, for example, assumes a return to work period on part time work of six to 12 months and costs those two scenarios. Now, we understand, in fact, that the ACTUs claim is for much longer periods or its conception of its claim is for much longer periods of part time work preceding entry into formal care or pre-school or school. We say, for reason we have been to already, that the assumptions about costs off-setting are fanciful. In particular he inserts into the case, or attempts to insert into the case, labour replacement of the under employed.

PN8062

For the reasons we set out in our closing we say that just simply is an unreliable assumption. He also fails to make any assessment at all of any administrative and transactional costs to employers flowing from the ACTUs claim. Now, we will get shortly to the work of Dex and Scheibl where we will show you that they have clearly apprehended the work and family measures carry transactional and administrative costs to employers. Precisely the costs that Professor Mitchell omits. We say, ultimately, that Professor Mitchell stands for nothing at all.

PN8063

It is unreliable and flawed and compromised to the point where the ACTU does not have a costing. So having shown you the ACTU has no costing where odes that leave the Commission. The answer we say is that the Commission is not left at large on the costs of the ACTUs claims nor on their anticipated impact on the public interest consideration set out in section 90 of the Act, in the objects and other section. The Commission has before it clear evidence that goes directly to the cost considerations it must have regard to.

PN8064

And why must the Commission have regard to these costs consideration, because it is examining claims that clearly call up an apprehension of additional cost doubling parental leave. And not only doubling it, then giving another four and a half years. Simultaneously for new fathers, increasing it eight fold. Changing something so fundamental to the day to day capacity of any business to operate and operate commercially as how it staffs its hours and sets its hours of work.

PN8065

Changing something so fundamental to how a business operates as the mix between part time and full time employment; changing something so fundamental to how a business operates as to change the availability of employees from 48 weeks a year down to, potentially, 42 weeks a year, these are precisely the type of things that ensure cost must be a relevant consideration in this matter, relevant and inescapable.

PN8066

We say the Commission is not left at large. It has evidence that goes directly to these considerations and it is the evidence of the employer witnesses. More importantly, it tells a consistent and reliable story against the ACTU claims and a clear story of the additional costs impacts which would result which are directly relevant to your considerations under section 90. The evidence of these people goes directly to their decisions regarding pricing and thereby inflation. Efficiency, productivity, etcetera, are thereby national and aggregate productivity. Their capacity to create and maintain opportunities and thereby national outcomes in regard to employment.

[3.56pm]

PN8067

We set out in detail in our submissions, the wide ranging evidence of the negative costs and operational impacts inherent in the ACTU claims, in section 10 of our final submissions. And we simply say that can clearly be contrasted with the story told by Prof Mitchell. We say a consistent story is told by these witnesses across businesses in different industries. You have witness evidence on the negative cost of these claims in services, hospitality, manufacturing, retail and other industries.

PN8068

A consistent picture is told of the additional cost impact of these claims across businesses of different sizes. And you also have evidence of the negative cost impact of these claims across different regions in the cities, in regional centres, and further than that. We say that this material was not assailed ultimately in cross-examination.

PN8069

There is one course that say the Commission certainly should not adopt in closing this matter, when moving to consider the cost of these claims. That would be to work on the basis that despite the flaws in the Mitchell report, it is the best available material on costs you have been presented with, and should be treated as somehow indicative. We say that the flaws we have revealed with the Mitchell research are so fundamental, that it can't validly be treated as any form of indication or guide, and that it is, as I have said, absolutely valueless. Under a section 110 of the Act, this could not be a piece of evidence that carries any substantial merit.

PN8070

Having said this, this begs a logical question. If we say the ACTU claims suffer from being fundamentally at large as to costs, don't we suffer the same fate in regard to the propositions we put before you? Isn't our case equally compromised? We say that is not the case, because there are qualitative and operational differences between the provisions we put forward and those advanced by the ACTU. The proposals put before by ACCI and the NFF operate at all times by consensual agreement. Not by imposition or compulsion. We say they are inherently self-correcting as to their impact on labour costs and as to the particular inflationary and employment considerations under section 90 of the Act.

PN8071

The consensual clause delivers a capacity for the decision makers who make decisions on prices and who make decisions on employment to also be considering particular work and family propositions that are put before them. Of themselves, they will yield superior approaches under section 90. They will do this because they deliver precisely the capacities for business assessment that the ACTU claims were denying.

PN8072

Now, I would like in closing on the issue of cost, to take you to the relevance - to take you to a couple of questions that arose during earlier stages of these proceedings. I have already indicated - sorry, I was asked at the completion of Prof Mitchell's evidence, at paragraph number 5475. I think it was very clear at that stage what I was going to say ultimately about the value of his evidence. And I was asked, well in the - effectively we were asked, in the absence of any costing from the ACTU, do you put a costing? We do not put a costing of the ACTUs claims.

PN8073

We say firstly, that an inherently macro level calculation of a single overall number is not the only way to consider costs under the Workplace Relations Act. As we have said under a passage of comparable matters, one of the effects of that kind of exercise can serve merely to wash out or dilute the differential impacts of additional imposts upon particular industries, upon particular workplaces. And across the labour force generally. It can hide the particular impacts by sector, and by the size of the business.

PN8074

Our witness, Ms Margaret Porritt, told your Honour, I think, that she had a very wide and regular instance of maternity leave. Our other witness, John Byrne, working in the motor vehicle industry, indicated a rarity of claims for parental leave. Now, if you average out the Margaret Porritts and John Byrnes of the economy, you are hiding the impacts on the Margaret Porritts in the economy. We say that it is perfectly valid to put to the Commission that section 90 considerations can be assessed based on micro level considerations, and based on witness evidence.

PN8075

Section 90 does not compel a macro level perspective. It compels a macro level perspective. It does compel a consideration of factors which are usually measured and reported on at the aggregately national level. That is true. Economic indicators, employment and inflation. However, the headline numbers merely illustrate combinations of micro and firm level considerations. It is perfectly valid for the Commission to make an assessment of the expected macro level outcomes and impacts based on a package of individual witness evidence. And, as I have indicated, that is the only reliable material you have been presented on - presented with costs on, regarding costs in this matter.

PN8076

There is also, of course, the consideration that the Commission discharges its functions, all its functions with an assessment of section 90 day in day out. It doesn't demand in any each matter that comes before it, detailed econometric modelling or single numbers. We say the Commission considers the expert, the evidence it has before it, to the extent that section 90 is put, and it makes an expert arbitral extrapolation from the particular to the general, based on the evidence at hand. This case calls on you to no more than that in the area of costs this time. And to have regard to the wide range of employer evidence I have given to you.

[4.03pm]

PN8077

Pages 10-91 to 10-100 of our final submission go into that in more detail. Having looked at the issue of the costs of the various propositions before you, the corollary of costs is of course any assessment of benefits to business which may flow from some measures in some circumstances. The ACTU and various of its witnesses, in particular Dr Murray and Professor Mitchell, spent some time on this. They make various contentions and assumptions about the benefits of the ACTU claims will have to businesses that will assume new compliance and costs obligations under the ACTUs model.

PN8078

We also now see from the ACTUs closing submission yesterday that business benefit is their sole answer to their claims being of mutual benefit as required under the workplace relations scheme. And I refer here, in moving onto business benefits, to section 11 of our submissions. And, your Honour, I am making again a broad prece of a number of the arguments which have been put. ACCI completely rejects the key contention from the ACTU that there is an inherent or necessary net benefit of its particular package of claims to all businesses in all circumstances that will outweigh costs and detriment.

PN8079

Properly considered and with any rigorous consideration of the evidence and the basis for this claim from the ACTU this core ACTU supporting contention should be rejected as fallacious and groundless exaggeration. These claims have been made consistently by the ACTU throughout this matter and they were given again yesterday. That the claims will assist businesses necessarily and in all cases in regard to attraction and retention, recruitment and absenteeism costs, productivity. But also further than that in very difficult to quantify areas such as business image, job satisfaction, and the like.

PN8080

As we say, section 11 goes into the - of our final submission, ACCI7 goes into this material in detail. And we say we expose in detail the failings in the material relied upon by the ACTU and how the ACTU has sought to employ it. I do however want to spend a little time on some core points we do make in closing. We have never said, and do not stand before you to say today, that there cannot be business benefits from work and family measures in particular workplaces. A range of companies and employers have created a range of mutually beneficial models and approaches with their employees.

PN8081

They have done so by agreement and they have done so based on their needs and circumstances. This is precisely for example what the ACCI BCA national work and family awards recognise and promote on an annual basis. Some companies celebrate and promote the benefits they consider and calculate as flowing from these measures, and that is fantastic. What that doesn't tell you is that the measures apply or the benefits apply universally. That is the key point. These companies have developed and evaluated the measures they pursue based on the unique employer and employee needs and circumstances.

PN8082

The measures have worked and yielded the benefits celebrated precisely because they were developed and implemented within the workplace and based on the workplace. The evaluation frameworks and success criteria are also company based and of course they show successes based on the criteria considered important to that company and its employees. Again as in so much of this case, the ACTUs error on business benefits boils down to errors of exaggeration and undue extrapolation. It has been simplistic and uncritical with material that it believes supports it and rigorous consideration can't support that proposition.

PN8083

It fails to recognise and take into account the genesis and purpose of much of the information it relies upon. Of course promotional and proselytising information is unashamedly positive and uncritical on the benefits of work and family measures. It is inherent in its nature. Pamphlets, promotions, etcetera, a good example of this was the work of Johnson that was cited by Professor Mitchell. It is aspirational, it is effectively marketing based, it is singing the praises of these measures, the error is to confuse that with properly balanced research evaluation.

PN8084

The second error of the ACTUs claims is confusing the effects of measures generally with its particular claims. As we say repeatedly in this closing work and family measures and their effects are not some inherent type of regulation or outcome that can be assumed to generate particular outcomes in all cases. The one set of nominally work and family based measures yielded particular outcomes cannot lead to a conclusion that the ACTUs materially different package of regulatory interventions will yield identical outcomes, especially in a completely different regulatory context to that of the UK or US.

PN8085

And to make this live a bit at this point, I don't want this to be dry repetition, I will come to Dex and Scheibl shortly, but Dex and Scheibl is basically a secondary literature review of a range of measures taken in the UK and the US. Dex and Scheibl is said to report, and I will come to this in a second, but it said to report positive outcomes. Now one of those work and family measures was the provision of an amount of some hundreds of pounds to return to the workplace after parental leave. Great, the UK bank paid the money, paid the pounds, got the people back, fantastic, but that does not validly get extrapolated to retention and return to work benefits of this particular set of measures, like would not be being compared with like.

PN8086

The US Family and Medical Leave Act, that is the provision of an initial 12 weeks paid leave akin in this case most directly to parental leave where we already have a 52 week standard and we are debating an increase to 104. It is akin to emergency leave settled by a conciliated agreement in this matter. And it is akin to sick leave which we already have in Australia. So when you properly look at the foundations of what is being evaluated, and the business benefit said to be yielded, like is not being compared to like.

PN8087

In regard to the accuracy, methodology, reliability and comparability of the materials relied upon by the ACTU and business benefits, we say in essence that much of the research is secondary. The primary materials are not presented to you. There is a reasonable apprehension we say that the primary materials reporting so called business benefits are very dated. Dex and Scheibl for example appears to contain a number of sources that date from the mid-1990s or even earlier. Based on inherently non-comparable populations, managers, highly paid professionals.

PN8088

I think when I re-read Dex and Scheibl one of the organisations reported on was Price Waterhouse. Their capacities to retain highly paid accountants with major client bases, and the benefits of doing so, are scarcely comparable to the propositions in this matter. Of course because this is secondary research, even we are not going to be able to go back and get all of the primary research so we can't necessarily have any confidence on the methodology or comparability for the material presented.

PN8089

Even more fundamentally what this business benefits research reports on are the benefits of agreed not imposed approaches. Dex and Scheibl is telling you what UK banks, US financial organisations, UK local governments etcetera, have been able to do by agreement under precisely the model that we are putting to you and precisely the model the ACTU would have you reject. Again the business benefits material can't be compared or extrapolated to the ACTU claims.

PN8090

JUSTICE GIUDICE: What is the essential difference between your model and the ACTU model?

PN8091

MR BARKLAMB: Our models, your Honour, and I am speaking a level of generality because there is a set of propositions in both - - -

PN8092

JUSTICE GIUDICE: Yes.

PN8093

MR BARKLAMB: - - - provide that where an employee makes an initiation or request there is a capacity under the award to give effect to that request. And there is a paramountcy - I am not sure that is a word - that request becomes a paramount consideration under the award and the award allows that to be given effect to. The ACTUs claims in contrast would (a) impose specific duties on the employer, they wouldn't leave the employer able to make a proper evaluation of a particular request, they place we say unbalanced, impractical, contradictory and multiplied obligations on employers they won't be able to steer their way through, and won't be able to make decisions in their commercial interest, and they force the work and family accommodations into very narrow spheres.

PN8094

So they force the work and family accommodations into the narrow spheres of additional parental leave. A very specific changes in hours that can only be accommodated if they meet - and we heard something on this this morning and yesterday - if they are entirely consistent with the existing hours structures of awards, or if they meet particular models for purchase leave etcetera. And the other very core contrast between the ACTU claims and ours is we say you can deliver additional capacities to employers and employees in workplaces without substantial additional cost.

PN8095

JUSTICE GIUDICE: So is the ACCI model, if I can use the same level of generalisation, similar to the UK legislation?

PN8096

MR BARKLAMB: The UK legislation, your Honour, is essentially a prescription of procedure, it regulates a procedure for dealing with requests for employees. And in fact seeing you have taken to me - this is one of the very crucial points when we get to the consideration of the working time claim. The ACTU claim is not the UK model.

PN8097

JUSTICE GIUDICE: No, that is not the question I am asking. I am asking about the ACCI model and the UK legislation.

PN8098

MR BARKLAMB: Well, okay, yes, okay, your Honour. We do not seek to prescribe how employers consider particular claims that are brought to them. So we seek to empower employer and employee agreement because we say there is evidence now of a well developed capacity to make common sense accommodating flexible approaches to work and family accommodations within the workplace, and we say that is met by as simple a clause and process as possible. The UK regulates employer behaviour in significant detail, it is a matter of detail, it is a detailed regulation of process that is quite lengthy, it is somewhat akin to a dispute resolution procedure.

PN8099

JUSTICE GIUDICE: And you don't think that is appropriate?

PN8100

MR BARKLAMB: We don't think that is appropriate. We do want to come to that in some detail. Also of course the difference between - I understand your question was not about the ACTUs claims but to contrast them with ours - the ACTUs claims create strong prima facie assumptions or presumptions in favour of outcomes in favour of the employee.

PN8101

JUSTICE GIUDICE: Yes, is that a convenient time, Mr Barklamb?

PN8102

MR BARKLAMB: It is indeed, your Honour.

PN8103

JUSTICE GIUDICE: We intend at the moment to resume at 9.30 in the morning unless somebody persuades us that that would be onerous. Well that is what we shall do.

ADJOURNED UNTIL WEDNESDAY, 15 DECEMBER 2004 [4.17pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ACCER1 WRITTEN SUBMISSIONS PN7672
EXHIBIT #S and T5 CLOSING CONTENTIONS PN7684
EXHIBIT #HREOC2 FINAL SUBMISSIONS FILED 19/11/2004 PN7911
EXHIBIT #WEL1 SUBMISSION FROM WOMEN'S ELECTORAL LOBBY, NOVEMBER 2004 PN7959
EXHIBIT #ACCI7 FOLDER 1 PN7961
EXHIBIT #ACCI8 FOLDER 2 PN7961