C2006/2938, Transcript of Proceedings [2006] AIRCTrans 1300 (11 December 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16207-1

COMMISSIONER SMITH

C2006/2938

FINANCE SECTOR UNION OF AUSTRALIA
AND
NATIONAL AUSTRALIA BANK LIMITED
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2938)

SYDNEY

10.02AM, TUESDAY, 28 NOVEMBER 2006

Continued from 19/10/2006

PN437

THE COMMISSIONER: Ms Maloney?

PN438

MS MALONEY: Commissioner, the first point I think I need to address is that as at this stage the only leave that's been granted to Mr Woods to appear is in respect of a jurisdictional point and you granted that on 3 October. We rely on the submission we made on that day and opposing leave for Mr Woods to appear, however with one amendment to that submission. At that time we reported that the employer had a massive half yearly profit in May of 1.99. We can report to you that NAB has recently announced a net profit of 2006 of $4.39 billion. So in our submission they've got sufficient resources to - - -

PN439

THE COMMISSIONER: I thought you were going to say they can now afford Mr Wood.

PN440

MS MALONEY: They can now afford Mr Wood. But we'd say they have sufficient resources, both in terms of human resources, industrial relations experience, professional experience to advance this case and of course we are at the stage of merit. We're not dealing with jurisdiction. So we reiterate our opposition to legal representation.

PN441

THE COMMISSIONER: Thanks, Ms Maloney. Mr Wood?

PN442

MR WOOD: Commissioner, there are important legal questions in this application that involved the construction of the OH&S legislation, the construction of the agreement, the question of remedy. Indeed, there's a legal question about which section I have to apply under to obtain leave. There are important factual questions. There are three experts that have been called. Those experts deal with, for example, the operation of the OH&S legislation, the question of where the working environment begins, the identification of any hazards of the work site and the practicability of any resolution of those hazards. Also an expert being called on the question of work/life balance and where the outer limits of that term end.

PN443

More importantly, Commissioner, it's an extremely novel and very important case. It's got wide ranging implications, not just for the bank, but for all persons in the financial industry and in industry generally. If the application is successful it will have a major, major impact upon all work performed in environments such as manufacturing, retail, health where shift work is worked and it's the sort of case that is so important in its ramifications and it's flow on, the nature for potential for flow on, that it's the type of case where, under the old test, the Commission would have granted leave and I think you observed last time we were before you, Commissioner, that the test had been loosened under the new legislation and would satisfy the test under the new legislation as well.

PN444

THE COMMISSIONER: Thanks, Mr Wood. Ms Maloney?

PN445

MS MALONEY: Commissioner, we just reiterate the point that the matter before you is a dispute over the application of the NAB Enterprise Agreement 2006-2009. It's an enterprise agreement between two parties. That's the parameters of the dispute under section 170LW of the Act and as much as the trade union would love to rely on outcomes of - - -

PN446

THE COMMISSIONER: Single members.

PN447

MS MALONEY: Yes, and precedents, I think the legislation has slightly changed. So I'm not quite sure it has the ramifications that Mr Wood puts before you. But we just reiterate our opposition.

PN448

THE COMMISSIONER: Thanks, Ms Maloney. I've been assisted by submissions by counsel today. I grant leave. Now, we have one witness this morning?

PN449

MS MALONEY: I was just going to ask, sir, just on procedure, are you going to mark documents that have been filed or will we do that in the oral - - -

PN450

THE COMMISSIONER: Well, I had in mind of doing it when you came to them in oral submissions. That's what I had in mind.

PN451

MS MALONEY: Fine, sir.

PN452

MR WOOD: Commissioner, I think formally the applicant would go first and call its witnesses. There are two in Sydney both of whom we have indicated on Friday through my instructing solicitors, Mallesons, that we do not require for cross-examination.

PN453

THE COMMISSIONER: I'll mark those. What are the names of those witnesses?

PN454

MR WOOD: Isabella Clara Walton, who is attachment 5 to the FSU submissions and Jacqueline Zabat, who is attachment 6 to the FSU submissions.

PN455

THE COMMISSIONER: Now, the witness statement of Ms Walton would be M2 and the witness statement of Ms Zabat will be M3.

EXHIBIT #M2 STATEMENT OF ISABELLA CLARA WALTON
EXHIBIT #M3 STATEMENT OF JACQUELINE ZABAT

PN456

MR WOOD: As a matter of form, Commissioner, I think we are actually asking for the Commission to interpose our witness in the FSUs case given that we're in Sydney. I don't understand the union position for that course and the witness we propose to call is Ms Juliet Bourke, who is outside.

<JULIET LISA ANN BOURKE, SWORN [10.10AM]
<EXAMINATION-IN-CHIEF BY MR WOOD

PN457

MR WOOD: Ms Bourke, you've identified yourself and given your address to the Commission. Who are you employed by?---Aequus Partners. I'm a partner there.

PN458

And what are, or who are Aequus Partners?---Essentially a management consultancy. We consult on organisational change issues around work and family. We conduct workplace investigations and also training.

PN459

For how long have you been a partner of Aequus Partners?---Seven years.

PN460

What did you do before that, Ms Bourke?---Immediately prior I was a senior policy officer, a lawyer for the New South Wales Attorney General's Department and immediately prior to that I was a lawyer at the Commonwealth Director of Public Prosecutions and I had a secondment to the Human Rights and Equal Opportunity Commission.

PN461

When you were a lawyer at the Commonwealth - - - ?---DPP, yes.

PN462

DPP?---Started at the DPP in about 1989 and worked there until about '95 and had a secondment to HREOC in '94.

PN463

What did you with the Human Rights and Equal Opportunity Commission?---I worked in two sections. I worked in the conciliation section as a lawyer, so I mediated disputes and I also worked in the legal section assisting Commissioners conducting hearings.

PN464

You say that you moved to the New South Wales State Attorney General's Department in about 1995. What work did you perform with the New South Wales State Attorney General's Department?---That was as senior policy officer. So I'd moved from litigation when I was at Commonwealth DPP to HREOC which was half litigation, half policy and then I moved squarely into a policy role for the New South Wales Attorney General's Department and my role there was the discrimination of law practice, but I also had a role influencing policy, particularly in the legal profession, I suppose. I was looking more at cultural change issues and that started the direction I took when I started work at Aequus Partners.

**** JULIET LISA ANN BOURKE XN MR WOOD
PN465

Sorry, I just missed that?---That started the direction of work so I moved from litigation to policy and policy is much more about understanding the underlying conditions in work places, so not just waving a big stick at people and telling them what the law says, but actually helping organisations to shift their cultures.

PN466

Did you have any responsibilities in terms of legislative changes introduced during that period?---I was the lawyer responsible for developing the amendments to the Anti Discrimination Act and one of the major things I worked on for five years was amendments to introduce greater protections for workers with care and responsibilities and so that's called the Care and Responsibilities Discrimination. Whereas an amendment to the New South Wales ADA, to protect workers with care and responsibilities from discrimination in the workplace and we developed a new model, essentially a new way of looking at those protections.

PN467

What do you mean by that?---Well, there had been, traditionally workers with care and responsibilities have received, particularly women have received protections under discrimination legislation as a form of indirect sex discrimination so it said that workers with care and responsibilities predominantly are women, to disadvantage those people in the workplace is indirect sex discrimination, and that's not a true picture of care and responsibilities for workers. Of course, men have care and responsibilities. So there had been a shift in understanding about what that legislation should look like, the ambit, and I was tasked with developing something in New South Wales and I wanted to develop something that was cutting edge. So we sort of scanned the horizon to see what other jurisdictions had done and they hadn't really done that much, and develop something in New South Wales that was a new model and that model looked like disability discrimination. So the idea was that the employer was required to accommodate an employee's care and responsibilities unless it would cause unjustifiable hardship and it was quite a new model at the time it was introduced in '99-2000.

PN468

And what impact has that change had?---I think it's been significant, particularly because at the same time as I said, I was involved with legal profession changes and one of the things that we did at the same time was mandate that every lawyer in New South Wales had to undertake mandatory continuing legal education on discrimination law. So at the same time we were introducing discrimination law changes, we were then educating the legal profession on what those would look like. So I think it's had a broader impact on lawyers as gatekeepers and I think it has had, from my experience working with work places, it has had a significant impact on the awareness of employers about their obligations to accommodate workers with care and responsibilities.

**** JULIET LISA ANN BOURKE XN MR WOOD
PN469

Perhaps I can move to that then. Just express that you've been working with people at work places. Is that when you finished working with the New South Wales State Attorney General's Office?---Yes. It would be inappropriate to work with work places in an intimate way whilst I've been a lawyer for the New South Wales Attorney General's Department.

PN470

Just remind me when you finished with the New South Wales State Attorney General?---Well, it was a bit of a hybrid, though I finished work in the office in
'99 and I had leave to do some sort of training work with employers whilst I was working there and then I went on maternity leave in 2000. So the official end date was 2000, but in fact I left the work place in '99.

PN471

And that's when you started Aequus Partners?---Yes, that's right.

PN472

In 2000?---Yes.

PN473

What sort of work have you performed with people in the industry in your role as a partner with Aequus Partners?---There have been three streams. The two main streams are organisational change research and advice. So that is working much more closely with leading organisations and by leading, I mean those organisations who have an interest in work and family. Not every organisation does, but leading organisations to improve the penetration of cultural change. So to analyse for them - they might put in place a policy which has some sort of aspiration round work and family, but then it's actually working with the culture to make sure that it is consistent with that aspiration, so that would typically involve looking at their quantitative data, that's their data that they might get from their staff perspective survey, looking at their turnover figures, looking at qualitative research, so going and doing interviews with managers and staff and putting together a comprehensive analysis of the challenges and opportunities for them to become more work and family friendly, and then coming back to them with some recommendations about what they could do at a systemic work group level.

PN474

How many organisations have you worked with using this, what you call - engaged with what you call organisational change research and advice?---I'd say it's somewhere between 15 and 20 organisations, but an organisation that we would deal with, we would have an ongoing relationship, so we would, for example, there's another bank that we have been working with for the last six, seven years and we would do ongoing projects with them. So they are single client, but because the bank is so large, we would go in and out of that organisation.

**** JULIET LISA ANN BOURKE XN MR WOOD
PN475

Have you performed any work of this nature, that is, organisational change, research and advice work for the National Australia Bank Limited?---I haven't, no.

PN476

Anyone from Aequus Partners?---I don't know if my business partner has, but if he has, he hasn't spoken about it with me. So I don't know if my business partners, Dr Graham Russell, has done organisational change work with the National, I don't know that, but if he has, he hasn't spoken about it with me.

PN477

What about with Mallesons who are instructing?---I've done organisational change work with Mallesons. Most of the sort of leading law firms or banks, we would have done a piece of work for. So I had done work for the National, but - - -

PN478

Sorry, you have?---But not in the nature of organisational change, so there's three strands of work I said we did. One of the strands was organisational change research, and one of the other strands is workplace investigations, I conducted a workplace investigation for the NAB, so the NAB was my client.

PN479

Can you explain what the workplace investigation stream of your business involves?---It would usually be an employee who has made a complaint of discrimination or harassment or bullying, something like that and then the HR Manager would come to Aequus Partners and ask us to conduct an independent investigation of that. So they've come to us for independence. It doesn't really matter that NAB is the one at the end of the day who is my client. I make a finding of fact, as the evidence that's given to me. Essentially what they're buying is a judgment outside of the core arena so that they can assess whether they would terminate the person for those alleged breaches or pay the matter out or litigate it.

PN480

What's the third strand of the business?---It's training. So we train on compliance based issues. So for example, another major bank would train all of their managers around equity and diversity, Occupational Health & Safety, and components of that are around flexibility of workplace.

PN481

How many clients have you been involved with in training programs over the six years that you've been a partner in Aequus Partners?---We tend to deal
with - we've got about three directly that are independent clients. What we usually do is provide a service to another legal provider like Legal Wide Seminars, so that they would be our client and then the people sitting in front of me would be, you know, 20 or 30 different organisations. So it's an on-selling arrangement.

**** JULIET LISA ANN BOURKE XN MR WOOD
PN482

To what extent do you have to keep up with the latest in academic research into your field?---That is a value add. That's how we differentiate ourselves in the market. So we're quite unique given the academic qualifications of the partners and even the people who work for us, it's - anyone can call themselves an HR practitioner, but you distinguish yourself, you have to present much more than that. So the value add that we have, the way that we differentiate ourselves in the market is we are developing that academic stream of thought and we are conscious of it. We go overseas, we research the information, participate at a very high global level, bring that information back to Australia as well. So it's us understanding what's going on, but also leading the field. So we often generate our own research. Say, for example, the Australasian Diversity and Equality Survey is something that I initiated to conduct primary research, so and then we bring that back to our people in Australia, our clients and colleagues through a newsletter that we distribute every month. It's by word of mouth only. We don't market it and we have new subscribers every month to it because it's translating academic research into lay language that people and corporations can directly apply.

PN483

Have you published academically yourself?---Yes. I've published about 50 plus trade articles. I've published a monograph. I've published chapters in four books, published about four or five academic articles. I try and do one major piece of academic work each year and that's an article that's somewhere between 30 and 50 pages in length that's going to go into an international academic journal or a high profile Australian journal. So I was just commissioned to write an article for an American publication that's coming out early next year. I've got other American publications. I go and speak internationally. I've spoken at nine international conferences on these particular issues. I've spoken at over 50 Australian conferences on these issues. I'm often a key note speaker.

PN484

Have you claimed any role as an independent member of any tribunals?---I sit on the GREAT tribunal, the Government and Related Employees Appeal Tribunal as a part time chairperson so it would be a bench of three people and I'll be the legal member or I'll be sitting alone. I haven't done that for about a year, I'm a part time member. There's not much work in that jurisdiction at the moment.

PN485

And have you presented your research to industrial or other tribunals?---I have actually. I've presented it to the New South Wales IRC when they've had their annual retreat. The President, Alex Wright, asked me to come and speak to all of the judges around care and responsibilities and work and family and what I saw as the sort of intersection between discrimination law and HR issues.

**** JULIET LISA ANN BOURKE XN MR WOOD
PN486

Have you prepared a witness statement for this proceeding?---I have.

PN487

Do you have it in front of you, Ms Bourke?---I don't actually. Do you want me to get it?

PN488

Perhaps we can have one handed to you?---I've got a copy in my file if you want me to - - -

PN489

No, this - thank you?---That's my statement. It's dated the 9th day of November 2006.

PN490

And that's your signature at page 9 of the statement?---That's right, yes.

PN491

And does that statement indicate accurately the instructions that you were given?
---Yes.

PN492

And is it a true and accurate - is your opinion expressed in your statement true and accurate?---I think it is.

PN493

I tender the statement.

EXHIBIT #W3 STATEMENT OF JULIET LISA ANN BOURKE DATED 9/11/2006

PN494

MR WOOD: Just before Ms Maloney cross-examines you, Ms Bourke, I want to ask you a question about the FSU’s submissions in reply and in particular - - - ?
---Can I just ask, do you think it's abundantly clear what the New South Wales Equal Opportunity Practitioners' Association is? Do you think that would be known?

PN495

If you want to explain to the Commission what it is, that's - - - ?---That's a peak body of HR practitioners and some lawyers as well who would all be leaders in this field around equity and diversity issues. So it's essentially a professional network, like the Law Society would be a professional network of lawyers, and we discuss every six weeks or so cutting edge issues around - work and family would be one of those topics and I was the president of that for about four years and I am now currently the treasurer. I also chair the Australasian body which is essentially the next level up, so in the same way there is law societies in each state and there is a Federal grouping of these practitioners, and I chair that up. So you wanted to ask me a question.

**** JULIET LISA ANN BOURKE XN MR WOOD
PN496

At paragraph 40 of the FSU's submissions in reply, I think you've read these submissions?---I have.

PN497

They say:

PN498

At paragraph 4.9 of her outline of submissions the applicant contends that the common understanding of work/life balance is one which does not extend to the provision of taxi vouchers for staff.

PN499

This is the FSU speaking:

PN500

We submit that the common definition of work/life balance has been intrinsically linked to working time arrangements and variation is open to varied provisions -

PN501

varied provisions is italicised -

PN502

which assist employees and reflect the diversity of arrangements and needs.

PN503

What comment, if any, can you make about that statement?---I think there is variation within the nature of the arrangements that are implemented at an organisational level, but there are boundaries around that and what that means is that an employee can't seek any workplace accommodation waving a flag of work/life balance and it would be acceptable as part of that definition. So an employee can't ask for a fluffy pillow at night so they can sleep better because that would enhance their productivity during the day. That would be well beyond the bounds. The term has come to mean, modifications to working time and place arrangements and that understanding is both an international and a national understanding and has grown out of a body of research, particularly over the last 10 years, coming through different disciplines. Law is one discipline, economics, psychology, putting some limitations on what it means to use this phrase, work/life balance, and study it in a rigorous way. There is now a rigorous body of research on work/life balance and the implications for an employer.

**** JULIET LISA ANN BOURKE XN MR WOOD
PN504

What do you think generally of the underlying concept, or the concept underlying FSU's submissions that anything that reduces time at work enhances work/life balance?---That's not what the research is showing. There are two different models around work/life balance and one of those models is called the conflict model, where you essentially see work and family or work and life, which is a bit broader than work and family, in conflict with each other and anything that diminishes your time with your family is seen as a negative outcome. So that's the conflict model, and that's a very simplistic and probably a lay understanding of the work and family arena that there's two negatives coming together, but there's been much more in depth analysis of the benefit of work and family, and that's called the enhancement model. The enhancement model says that, actually the way that we manage our work and family arrangements can be greater than the sum of its parts. So, for example, and this comes out of Barnett's research, for example, she looked at shift workers in poor dual income parents or two parents with children, and what she found was that if the working arrangement, if the shift working arrangement is structured where the husband and wife have some control over the nature of that arrangement, the outcomes can actually be better for children than if there is that lack of control, first up, but the underlying idea is that shift working, matching parents shift work, gives one parent the ability to have time alone with their children and that enhances child outcomes. So the model, the conflict model presupposes that the better outcomes for children and families is both parents being present as much as you can be. Whereas the enhancement model says, actually, if you structure your arrangements so you can have one person with time alone, and particularly fathers, if they have time alone with their children, you get better child outcomes down the track. Fathers build independent relationships with their children and children speak to their fathers about what's going on in their lives and fathers are on notice if something is going a bit wrong.

PN505

I don't think there's anything else I have for Ms Bourke, thank you.

<CROSS-EXAMINATION BY MS MALONEY [10.32AM]

PN506

MS MALONEY: Ms Bourke, you've got a copy of your statement, haven't you?
---I have.

PN507

I will be referring you to it. Now, would it be correct to say that from your statement that you've been asked here to provide expert opinion in relation to dispute between the National Australia Bank and Finance Sector Union and you state at paragraph 2 of your statement, if you could go to that, that you are - - -

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN508

THE COMMISSIONER: Have you got a glass there in the witness box?---I have, I'm sorry, it's not - - -

PN509

No, it's all right. I was just concerned whether you had one or not. Sorry, Ms Maloney?

PN510

MS MALONEY: That's all right. Paragraph 2, qualifications and experience. Would it be correct to say that you've been asked here to provide expert evidence or opinion on issues of the work/life balance or work/life issues, would that be correct?---Yes.

PN511

You indicated in your answers to questions from Mr Wood that you have worked for - done previous work for the National Australia Bank. Have you done previous work for Westpac?---Yes.

PN512

And have you done previous work for Newcastle Permanent, if I understand the writing?---Yes. As I said, we've done work for most of the major - and I see those as a lot of the leading organisations in this area, so they're wanting to advance themselves, so of course they're going to consult us.

PN513

So you've done work for them?---Yes.

PN514

Have you - - - ?---We've done work for the unions too.

PN515

Have you yourself ever worked as an industrial relations practitioner or human resources practitioner?---No.

PN516

Now, if I can take you to - I think there's paragraphs - at paragraph - - - ?---Can I just qualify that? When my answer is no, I haven't done work as a human resources practitioner within an organisation, but many people whom I would associate with would see me as part of that HR body.

PN517

But you yourself haven't done practical - - - ?---Within an organisation. I'm an external. We're consultants, engaged by HR people. They would be my key areas within an organisation.

PN518

Now, at paragraph 3 of your statement under the point 3, you state:

PN519

It's not expected that employers, as part of the commitment to work/life balance, can provide to taxi assistance to reduce the employee's travel time

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN520

?---Mm.

PN521

And that the parameters, based on your evidence, that the parameters of work/life balance, and you used those words, do not include the provision of taxi assistance, that would be a correct characterisation of what you're putting, would that be correct?---That's right. I've never seen that - I've never - before today, before this particular case I've never even heard it advocated, and I've certainly never seen it in an organisation.

PN522

On page 2 of your statement I refer you to, you also say that you're not aware of any literature or workplace practice which is inclusive of the provision of after hour taxis. If I can take you down to paragraph 3.1 you state that the term work/life balance has no single accepted definition. So wouldn't it be fair to say that if there's no single definition of the term or the parameters of work/life balance, that it could include travel assistance?---No, because there are some core meanings of work/life balance. What I meant by no single accepted definition, it's not like you could say a table and all of us will have a single accepted definition of an object with a top and four legs on it. That would be a sort of single accepted definition. There are different components of work/life balance and they are mediated at an organisational level and even at a sort of international level, but they have some core, some central themes running through them and the centrality of those themes is around work and time arrangements. That's what it's about. So changes to the way that work is done, when work is done, where work is done, are all within the working environment, not an add on, which would be taxis after.

PN523

Wouldn't it be fair to say that in terms of academic research, which builds upon previous research and studies and there's an involving area, would that be fair to say?---It is an involving area.

PN524

And it goes into areas like, now, we have, as you talked about yourself, in your own experience, talk about equal employment opportunity and, sad to say, it probably wasn't that many years ago when that wasn't a major area of research and concern for organisations, would that be correct?---Yes.

PN525

So academic research itself is an involving area. So it wouldn't be fair to say that we just have academic research and we suddenly put parameters around a concept without any regard to that there might be further areas in which an employee's work/life balance might be addressed by other facilitators and other matters?---It is involving and there are changes at the fringes of concept of work/life balance. I think actually over time it got a bit tighter. I think it was a bit loose at the beginning, what that phrase meant, and then as research has gone on - so, what I mean is, we now have this understanding of the enhancement model, for example. That has been an evolution in our thinking that work and family can enhance each other, not just be in conflict. But there are still some boundaries around, even with a concept of evolution, there are still some boundaries around what we're talking about in this space. The differences might be, at a national level, for example, in the US they have much higher developed concept of what's called concierge services. So concierge services would be you're on the work site and you would have someone come and service your car during the work day. So that is a difference and an evolution in their thinking. That thinking tried to come to Australia, so consultants tried to come to Australia to sell those services and it didn't have any purchase. So whilst I agree with you in theory, it's an involving area. It is evolving within certain paradigms and it's still not going to include everything and I don't think it includes taxi vouchers.

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN526

But you can't categorically say that there would never be a time when
someone - that the concept of work/life balance would not encompass factors that partly aren't contained in existing literature?---I can't say categorically that it wouldn't.

PN527

Yes?---What I say is that logically it wouldn't. It's nowhere near that paradigm now and even if you take concierge services to their limit, they still are services that are provided in the work place during the work day and this would be a quantum leap to say we're moving now outside of the work day to what happens before and after the work day as a concept of work/life balance. That's just not even within the realms of thinking at the moment.

PN528

At page 4 of your statement you say:

PN529

The term, balance, was intended to recognise that equal rating should be given to the work and life aspects of an employee's life

PN530

?---Mm.

PN531

Now, if an employee is working an arrangement where they're required to finish work after 8 pm and that employee has been provided with a taxi to travel home, wouldn't it be correct to say that with the removal of that taxi, that employee's work/life balance has been altered if that employee now takes longer time to arrive home by using public transport as opposed to a taxi, in other words, they've got less time for their own personal life? Isn't it fair to say that balance has been altered?---The paradigm that you're using does not take into account the enhancement model which says that if you take work/life balance, and I want to principally talk about work and family here, because that seems to be where you're coming from as well, if you take the family unit as a whole, what I'm saying is that there is evidence, particularly around shift work, that the absence of one parent can actually enhance family outcomes. So it's actually good for the family for one person to be away, and the father in particular to have time alone. That's one model. The idea of enhancement there as well is that men and women get to balance, they get to discuss with each other how they're going to work out the work and family arrangements, and if they can work it appropriately, they can reduce the cost of childcare because they can mediate issues with each other, I'll do the early shift, you do the late shift. And the other thing at a - so that's the family unit level, where it actually, the enhancement model says that absence from a family can actually be productive for the family. At an individual level, having space for yourself, time alone, particularly at the beginning and the end of the work day, can actually enhance work/life outcomes because you have down time, you have a transition period between work and home. So, you know, you're talking a difference of 30 minutes there, you know, half an hour to an hour, as I understand it. That is not necessarily going to have a negative impact on an individual. It could have a positive impact. They could sit there and listen to music, they could read. I think you have to differentiate that there are different outcomes for different individuals and your - the logic of your argument is just time away from family or time away from life is a negative outcome, and that's not what the research has shown.

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN532

No. The question I put to you whether there was a change in the balance?
---Change per se is not - - -

PN533

Yes, but the question I put to you is that, is there a change in the balance?---No. I don't think there - - -

PN534

Well, if the person was arriving home by using taxis, if they finished work at 9 pm and they arrived home at 9.30 and that was their balance, that was their work/life balance at the moment, and then with the removal of the taxis and a requirement for them to travel on public transport, they were arriving home at 10.30 and in one case of the evidence, which I understand you've seen, 11 o'clock at night, would it not be fair to say that there's a change in the balance in terms of the time they have available to their own personal commitments, whether they've got family commitments or not, their personal commitments?---No, I don't accept that there's a change in balance.

PN535

Well, I put to you that there is an alteration in that balance. If I go to page 5 of your statement and at the top of page 5, you do say that the research on work/life balance has focus on the time and place of work and the hours of work. So in terms of the - so it would be fair to say that an employee's working day, if it's increased, with additional travelling time at the end of the day, that must have some effect on the employee's work/life balance by reducing the time that they have with their family and personal commitments?---No. The centrality of the idea around work/life balance is control. If you determine, if you control when and where you work, it can - it is not necessarily a negative on work/life balance. Okay. So there's a fantastic study done by IBM where they compared workers in the work place with no control over their working hours. You just had to work nine to five, if not longer, in the office and you were sort of under the microscope, and then 50 per cent of the employees were given control over when and where they worked. So they just said, here's the deliverables at the end of the day. You can choose to work from home, you can choose to work in the office, then you go home, then log on later, and what they found is that for those employees who had perceived control, just control in their hands, they worked longer and harder and felt a greater sense of work/life balance than those people who didn't have the control. It wasn't about the hours of work. It was about the person's feeling that they could manipulate those hours of work.

PN536

Well, Ms Bourke, in respect to an employee who's required to leave either Rhodes or King Street at 9 pm at night or after 9 pm, if they're still on call, what control do they have in terms of being required then to go and catch public transport and take up to an hour, or an hour and a half, to get home?---That's not my point. My point is that when we're talking about work/life balance, your argument is just that an extension of the work day is a negative impact on work/life balance and my argument is, it depends on the employee's control over that, and if an employee feels that they have chosen that shift work because their husband, for example, can do the hours at the end of the day, they will feel a sense of control and there won't be a negative impact on their work/life balance because they view work/life balance as my husband, myself and my kids, and it's enhancing the outcomes for our family if I'm not there for a moment. It's not detracting from those outcomes.

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN537

But you're not suggesting that the issue of work/life balance is only important to employees who have family responsibilities?---No. That's why - and I said that before - that work and family is a subset of work life, but it's the one that there's been a lot of research around and it has a very demonstrable outcome, the outcome of children.

PN538

But in respect to employees of NAB, the work/life balance would affect people who have families and people who don't have families?---Of course.

PN539

Now, at page 5 - sorry?

PN540

THE COMMISSIONER: You give a lot of emphasis to the issue of choice and the issue of control, I think in some of them, and in answers you've given also in your statement. How central is that to a person's perception of work/life balance? I suppose because that's the - whether it's objectively with that or not, it's a perception, it's more important, is it?---It's central to it. So the choice that the person makes is, these are the hours that I'm going to work, this is the travel time in addition to that. Do I have choice as to that whole working arrangement and then they fit it into, well, what is my partner choosing or what are my other social - and how do I fit it all together. If a person feels they have choice, then there's less negative impact.

PN541

Yes, thank you.

PN542

MS MALONEY: But just coming back to that issue of choice, and I will come back to that, but just in terms, if they chose to - no, I'll come back to that. If I can just take you to page 5 of your statement, again we're on page 5, you suggest that the most common forms of flexible work practices used in work places concern part time work, job share arrangements, changes to start and finish times, the work day, access to information and the provisions of facilities. Now, it would be fair to say that this is not an exclusive or exhaustive list of the work practices and facilities that could be applied by an employer to enhance the employee's work/life balance?---That's right.

PN543

It could also include, in terms of a facility, there's nothing to say it could not include provision of travel assistance?---There's nothing to say it couldn't.

PN544

That's right, that's the question?---No one has ever done that and that's not within the accepted parameters of work/life balance.

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN545

All right, but there's nothing in that list to say, there's a list there, but there's nothing to say it could not include, if the provision of travel assistance to enhance an employee's work/life balance?---You could include anything on that list. You could include fluffy pillows on that list. If it's going to have resonance for the HR community that this is a legitimate extension of work/life balance, as it's known, then it has to be in some way linked to the rest of the groupings and the rest of the groupings are around working time arrangements and the time that's in the workplace in particular and the location of work. So, working from home or working on site. What you're doing is just trying to use a form of words, work/life balance, to argue beyond the accepted definition within this community of practitioners - - -

PN546

Ms Bourke, what I'm doing is asking you a question about your statement. It's your statement that suggested that these are the most common forms. What I'm putting to you is that what you have identified there in page 5 is not an exhaustive list and that it could include the provision of travel assistance?---And I say it couldn't within the concept of work/life balance include travel assistance. It could include other things, and I said from, you know, the American experience, it could include concierge services. But within the Australian context, I don't think it includes travel assistance after hours.

PN547

THE COMMISSIONER: Could I just ask another question. Does the issue of work/life balance become more difficult in the work place if there is greater rigidity in the working environment?---Yes, and that's the IBM study, so when people perceive they had no control, then they perceived that their work/life balance had decreased.

PN548

Yes?---So that's why what NAB has done in saying, well, there are - if they're exceptional circumstances and you can demonstrate there's going to be a particular impact on care and responsibilities, we would give you the taxi voucher, that's best practice, to say, look, if there's something particular about it for you, then we will modify it. So that gives people a sense of choice in that they can mediate the potential impact of those taxi vouchers. They've got a level of choice.

PN549

Yes, I follow. Thank you.

PN550

MS MALONEY: Now, if I could take you to page 6 of your statement. At page 6 of your statement you state that clause 22 of the NAB agreement is aspirational. Now, you've already given evidence that you haven't had practical working experience in an organisation as an Industrial Relations or Human Resource person, is that correct?---Mm.

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN551

And I assume - or I'll ask the question – you weren't involved in the negotiation of the NAB enterprise agreement?---No.

PN552

Are you aware of the case law on the characterisation of clauses and enterprise agreements?---No.

PN553

So I'm assuming that you're not aware of any recent Full Bench decision in terms of those clauses?---No.

PN554

I put it to you, Ms Bourke, that you're not qualified to give an interpretation on a clause in an enterprise agreement in terms of the characterisation of the clause?

PN555

MR WOOD: I accept that.

PN556

MS MALONEY: Thank you.

PN557

Ms Bourke - - - ?---I didn't even know the law around aspirations before I gave my comment. I just read this at face value and saw it as consistent with this body of knowledge that we aspire to give employees work/life balance.

PN558

Well, I think it's accepted by NAB that there is a characterisation that is acceptable. Now, obviously, or are you familiar with the Industrial Relations legislation generally?---You're going to have to be a lot more specific than that, my area of expertise is discrimination law.

PN559

I'll be a bit more specific with that. You're obviously aware that enterprise bargaining is a basis of industrial relations in Australia?---Mm.

PN560

And it has been for some time, and it probably would be correct to say that enterprise bargaining between employers and unions or employers and employees is a key part of the industrial relations environment?---It's one of the parts.

PN561

Yes, one of them, yes. And would you accept that subject to any legislative restraints in terms of the Act, that what is included in the agreement is up to the parties who negotiate that agreement?---This is beyond my expertise. I'm - - -

PN562

If you give me a minute I'll take you to the question. At page 6 of your statement you say, if I can take you to page 6 of your statement, you say:

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN563

The boundaries consistent with a common understanding of the term work/life balance are that concierge, including referral services, as well as on site care and facilities, for example, childcare, would not be expected to appear in the EA.

PN564

I'm assuming EA means Enterprise Agreement, I've taken that as that's what EA means. I put it to you that what appears in an enterprise agreement, subject to any legislative restraints, is up to the parties who negotiate that agreement. It's not up to what academic research might have established what has or what hasn't been put in an agreements. Would you accept that?---My point here is if the term work/life balance is being used in an agreement, it commonly has some definitions after it and those definitions usually don't include concierge services as well as caring facilities.

PN565

But you would accept the proposition that what is in an agreement, such as the NAB 2006-2009 agreement, is what the parties to that agreement have determined?---Of course.

PN566

Now, if I can take you to paragraph 3.3 on page 6 and you refer in there to the offer of NAB of 11 October and you state at the beginning:

PN567

As noted above, a poor component of the term work/life balance is enabling an employee to make choices about when, where and how they work, whilst still meeting business needs.

PN568

Then at page 7, just over the rest of your statement in respect to that question, the question that NAB asked you, you go on to express the view that the options that NAB had provided in their offer of 11 October, that is moving staff to an earlier shift, and the payment of compensation to remain on the current roster, is consistent with the enabling of this choice. Ms Bourke, I put it to you that an employee who was required to finish work after 8 pm and who was concerned about the risk of their safety when travelling on public transport at that time of night does not have much of an option or choice if the only way they can reduce that risk is by going on to an earlier shift?---That's a bit of a compounded question. I'm not sure what - - -

PN569

Well, I'll put the question to you. If a person decides to take up an earlier shift because the alternate was they would have had to go and travel on public transport and they were concerned about their safety, so therefore the only way that they themselves could reduce that concern was going on to an earlier shift, I put to you that is not a choice, it's not an option?---Can you - sorry, I just don't follow. How does work/life fit into this? I'm going  - -

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN570

No. This is your statement?---On health and safety.

PN571

You put in your statement, you've referred to the options that NAB have offered to staff, including - - - ?---Can you just take out the word "safety" for me because I just - I don't know anything about the safety issues of these people.

PN572

No, we'll go back to your statement?---Yes.

PN573

At the bottom of page 6 you see the question that NAB put at paragraph 33:

PN574

In respect of NABs open offer of 11 October, is this consistent with promoting work/life balance?

PN575

Then you go on to say - and they ask you a question about compliance which I might come back to later. Then you go:

PN576

As noted above, a core component of the term work/life balance is enabling an employee to make choices about when, where and how they work, whilst still meeting business needs.

PN577

And then at page 7 you put the view that the options that NAB has provided, I should say, in their offer of 11 October and the two options that are identified in your statement, and in their offer, is to move staff to an earlier roster, that's one, and to receive compensation. Now, we'll come back - and you've said in your statement, those options that have been put by NAB is consistent with the enabling of choice. What I put to you is, so in other words, so people have a choice about staying on that late shift, or they're not all going on the earlier shift, for this purpose, what I put to you is this, a person who is working on the late shift and who had up till now been provided a taxi home and will now be required to travel on public transport at night and that person has concerns for their safety about travelling on public transport at night, there is no - while I put to you, they don't have any option but to go on to that early shift?---Well, I don't know anything about the health and safety concerns and I can't comment on whether in fact it would be unsafe or not, but if your question is just, do people take into account not just the length of travel, but the safety of that travel, I don't have an expert opinion on that. The only thing I say at the core of that is that people make decisions about their working time arrangements based on the options that are given to them and those options are usually thought of in terms of the start and finishing time of the day. So your question is a bit broad. I don't have any knowledge of Occ Health & Safety issues.

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN578

But you've read all the material that's been filed in this case, I understand?---I have read the material.

PN579

Right, and so you're aware of the witness statements that have been filed in this?
---I've read all the material.

PN580

Right, and you're aware of the statement by Wendy Devereaux where she states that she has asked to be placed on an earlier shift because of her concerns with the safety, that's in her witness statement?---I've read them. I can't comment on those because that's - the area of expertise that I know about is people making choices about their working time arrangements based on the different start and finish times. It doesn't go beyond that to incorporate people's concerns about their safety. It's talking about people making those decisions based on what other interests they have in their life. So for example, there's some great work that's been done by Phil Bohle talking about people making choices about their shift work on the basis that it would sit with their sporting arrangements, but the research doesn't talk about what happens before and after that shift in terms of travel times. It's more how they could meet their other commitments that are simultaneous in time.

PN581

THE COMMISSIONER: But your basic proposition is that where people have made choices about their work/life balance, that empowers them more than if they're not able to make that choice?---It doesn't seem to, your Honour.

PN582

It's not a choice which they believe fits in with family responsibilities or other social needs?---If it's a forced choice it has - it's more likely to have a negative impact on their perceptions of work/life balance, and in formulating that choice it is not just about their personal work/life balance. It's where they sit within the family grouping, how they negotiate with their partner, and how they go to sport, leisure activities.

PN583

That's what I thought, yes. Thank you.

PN584

MS MALONEY: Right, but just for clarification purposes, I understand that you're not being asked to give expert witness evidence in respect of Occupational Health & Safety, I understand that, but your statement in terms of what NAB has put to you in terms of their questions is that the options that they have given to people requiring people - moving people on to earlier shifts, has been put to you to seek your advice as to whether that's a measure that's consistent with promoting work/life balance, and what I'm putting to you is that the rationale of the evidence before the Commission, the reasons why people have been asked to go on to an earlier shift, is not to do with - it's to do with the safety and additional time it takes to get home. So I put to you they don't actually have much of a choice?---I'm not sure that's a matter for me. Is that a matter for me, whether they have choices?

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN585

Well, I'm just putting to you that they don't, in terms of your evidence, it would suggest that people didn't have much choice in going on to an earlier shift if they were concerned about travelling home at night and the extended time it took to get home?---That's a matter for their individual evidence as to whether they feel they have that choice. What I'm suggesting is that choice is broader than just the travel time afterwards. It's also, does that help my partner and I to negotiate our family arrangements, does it help my husband, for example, to have time alone with the children, does it mean - and this came out of Bohle's research too. People factor in, if I have time alone to myself in the morning because I'm doing the late shift, then I can do a whole lot of housework and no one will interrupt me and that's actually good for my work/life balance because I do it in a shorter period of time. So there are sort of a lot of factors, and I just don't know any research that safety is a consideration.

PN586

But it would be fair to say, as you say, there are a lot of factors, but the basic proposition that if someone has less time due to extended travelling time as a result of a change in the working arrangements and they have less time for their own personal life - - - ?---That's been your basis proposition.

PN587

Well, I'm putting - sorry, I'm putting the question, then that obviously must impact - - - ?---No. Right at the beginning of my evidence I disagreed with that because what I said is you've got to take it more holistically than just a change in how the time is spent, because the enhancement model shows that the less time, for example, a mother has with her children at the end of a shift, and we're just talking shift work here, means that the father steps up to the line and has a greater relationship with his children, because it's more one on one time for him, and that has better child outcomes, and mothers know that. So they negotiate, we're now going to do shift work, or I'll do the late shift and you do the early shift, and our kids seem to be happier as a result, that we're both getting one on one time with our kids.

PN588

But the enhancement model that I put is limited to balancing family responsibilities. Not all employees have family responsibilities?---No, no, no. No, no, no. No, the enhancement model goes way beyond that. The enhancement model says that there are outcomes for partners in relationships, if both people feel satisfied with their work and family, then it will be better for the relationship between the spouses. Essentially the research comes down to, if you prioritise work or you just prioritise family or life, then you will have worse work/life outcomes, a worse sense of satisfaction, you'll have higher levels of stress than if you had some meeting of those two dimensions within two individuals or a family unit.

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN589

Just coming back to the NAB offer, which they refer to at para 3, and the second part of the offer that they put to you or asked you the question whether it was consistent in promoting work/life balance was the compensation payment. Are you aware that the compensation payment that was proposed by the bank was a one off payment?---I don't know what the compensation - I can't remember. I'm sure I've read it, but I'm sorry, I can't remember what the amount was or - I don't know even know if I know what the amount is actually.

PN590

No, I’m not asking you what the amount is. I was just wondering if you were aware it was a one off payment. You don't know?---It rings a bell when you say one off payment, but I - - -

PN591

Right. Well, the reason I'm asking you is because they ask the question whether the options that they put to staff in their offer, moving staff to earlier shifts and the received compensation to remain on the current roster, you say in your statement is consistent with enabling a choice for employees in terms of the work/life balance?---Yes. It's the compensation per se that I was emphasising. Not whether it was a one-off or ongoing. It's the fact that a person feels they have that choice to make their - they're sort of weighing up two things, rather than being pushed in a single direction.

PN592

So you're not aware whether it was a one off?---I can't remember. It does ring a bell, as I say.

PN593

But you wouldn't be suggesting that employees need to balance their work life and their personal life because that's what the EBA talks about, the balance between their work and personal commitments, can be brought up by an employer? Well, I'm asking the question?---What I'm saying is compensation gives people a feeling of choice, whereas if you just tell someone you will now be only working this particular shift at this particular time, then you reduce their choices and they feel a negative work/life balance outcome. So I was thinking about compensation within a paradigm of choice.

PN594

If someone was working on shift work or sorry working long hours, you know, 10 hours a day, six days a week, being paid overtime, not shift work, being paid proper overtime in accordance with what the rate is, so they've been offered that overtime?---Yes.

PN595

And they've been given a choice?---Yes.

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN596

Working long hours, six days a week, 10 hours a day, it doesn't affect their work/life balance?---It's not about the length of the work hour day. The IBM study showed that people actually voluntarily worked longer if they perceived they had some control over when and where they were doing those hours, and in fact they had a higher level of satisfaction working long hours than at the bottom end where people felt controlled. At some point people will become absolutely exhausted if they're repetitively working 12 hour days, six days a week, year on and year on. But that's not what we're talking about.

PN597

But your own statement at page 5 does say that research on work/life balance is about the length of the work day?---It is. It's finding where that boundary is, but the lay understanding of this work/life conflict model is, the more you work the less you have positive work/life outcomes, and it is not necessarily about the length of the day. It's about your feeling as to when you do those hours. So, for example, if you were compelled to do your work as an advocate by being in the office from 7 am till 7 pm, that is a very different feeling than thinking, well, I could do a couple of hours of work in the morning. Then I could run down, take my child to school, then I could come back and do five more hours in the office, then I could go home, cook dinner and then I could log back on. That's a very different scenario than 12 hours sitting in an office. That feels worse than the other scenario which is that you sort of mix and match during the day.

PN598

But the point, in your statement in terms of putting, accepting or replying to NABs question at 3.3, you have stated that the compensation or payment which is a one off payment for compensation, does meet an employee's choice in balancing their working life, work/life balance?---The compensation is one way of giving a person a feeling of choice rather than not providing the compensation.

PN599

Right. It might give them the feeling, but it doesn't necessarily balance their working life?---It helps them to feel that they have a sense of control over choosing to work a particular time, and if you have a sense of control over it, you have a more positive feeling of work/life balance than if you feel that you've got no control. So compensation is backed up.

PN600

Right. Well, I put it to you in the terms of what you've had, that I put it to you that a one off payment of compensation would not address the employee's work/life balance?

PN601

THE COMMISSIONER: Sorry, I just want to make sure I understand the concept that Ms Bourke is putting forward. I understand your evidence to be that the modern approach to work/life balance is not arithmetic. It's not the old eight hours work/eight hours play/eight hours rest?---Mm.

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN602

It's a much more dynamic concept which looks at a person's influence over their working life to ensure that that creates a better interaction with other aspects of their life?---That's exactly right. So it's not this sort of zero some gain that everyone used to think it was and that was the model particularly when you have one person in the work place and one person at home. Now, we've got two people in the work place, so it's a different shift.

PN603

Yes, I follow. I'm sorry.

PN604

MS MALONEY: If I can take you to page 8 of your statement. At paragraph 3.5 NAB have asked you a question:

PN605

Do you agree with the assertion that the FSU have amended section 170LW application dated 21 September 2006? That, the decision of the bank to remove the transport assistance from existing employees and not to provide it to new employees is contrary to the provisions of clause 22. If you do not agree -

PN606

I put it to you that - would it be correct to say that for you to answer that question requires you to interpret clause 22 of the agreement?---I had to read clause 22 and understand it to answer the question.

PN607

But it required you to give an interpretation of clause 22 of the agreement?---I had to understand the meaning of the words. Is that what you mean by interpretation? Like, are you talking like a legal interpretation or are you just saying, like, I had to understand the context of the words?

PN608

Well, yes. You've been asked here by NAB the question of whether that what's been put by the FSU is contrary to the provisions of clause 22 and I'm suggesting to you, for you to answer a question as to whether what's been put by the FSU is contrary to the provisions of clause 22 requires you to give an interpretation of the agreement?---I'm not sure if I did an interpretation of the agreement, but I certainly read the agreement and looked at it in the context that they were talking about. I read the words and put some meaning around them. That's what I mean by interpretation.

PN609

Right, and it would be fair to say that based on the evidence you've given so far in terms of your IR experience - - - ?---You told me I don't have any IR experience, but - - -

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN610

That you'd - and in terms of your background, that I put to you that you wouldn't be qualified to give an interpretation of the - - - ?---I'm not giving a legal interpretation. I'm not an IR practitioner. I'm not giving that. I'm just interpreting. I'm - the lay meaning of the word interpret, I'm reading a sentence and understanding what that sentence means. I'm not an IR practitioner. I don't profess to be one.

PN611

Okay. Well, I put it to you, that to come to a conclusion where there's something contrary to an original agreement would require an interpretation to be placed on that provision?---I don't think I actually made a comment that it's contrary to the agreement. I talk about whether the removal of taxi transport assistance would contradict work/life or diminish work/life outcomes for current employees and future employees. So I limited my interpretation of the clause given the level of knowledge that I have.

PN612

I just reiterate that it would require interpretation of the agreement to answer the question?---I don't know if it would require interpretation of the agreement in the way that you are using the word legal interpretation. I based my answer on the knowledge that I have of work/life balance and the, on the face of it, meaning of the clause.

PN613

Right?---I think that goes back to your prior comment about aspirations and that was that I'm just using the word aspirations as a lay person would use the word aspiration. I don't have any IR knowledge about a particular meaning for aspirations.

PN614

If I can just take you to, firstly, attachment 2?---Mm.

PN615

And I just take you to one paragraph - - -

PN616

THE COMMISSIONER: The witness statement of Ms Devereaux.

PN617

MS MALONEY: Ms Devereaux, yes.

PN618

THE COMMISSIONER: Yes, thank you.

PN619

MS MALONEY: If I can just take you to paragraph 16 of Ms Devereaux' statement. If you can just read it for the Commission.

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN620

THE COMMISSIONER: That's all right. I've got it.

PN621

MS MALONEY: All right, and I'll just bring it to your attention. Ms Devereaux, in her evidence, you've read that, that you increased the travel time, she'd go home up to as late as 11 o'clock at night?---Mm.

PN622

If I take you to attachment 3?---Sorry, just one sec?

PN623

THE COMMISSIONER: Witness statement of Ms Otteng.

PN624

MS MALONEY: Of the statement, yes, the statement 3, and if I take you to paragraph 13 of that witness statement, and in that statement, it would take up to, getting home at 10.16 pm at night, at least an hour or more later than she had if she was getting taxis home?---Mm.

PN625

If I can take you to the statement of - attachment 4?---Mm.

PN626

Jasmin Argueta, and I take you to paragraph 14 of that statement?---Mm.

PN627

Ms Argueta said that travelling home on public transport would involve an increase in the time it takes to get home and could get her home up to 10.30 pm or as late as 11.06 pm at night, compared to 9.30 pm when travelling by taxi, and I take you to attachment 5?---Mm.

PN628

Ms Walton?---Mm.

PN629

Can I take you to paragraph 8 of that statement where she says:

PN630

If I tried to catch public transport after finishing work I would not get home until around 11.05 pm compared to around 9.15 pm when travelling by taxis. It means I would have less time to spend with my family.

PN631

And I take you finally to attachment 6, Jacqueline Zabat, in paragraph 9:

PN632

If I was to catch public transport it would mean catching two trains and I would need someone to pick me up. I would not get home until around about 10.30 pm compared to arriving home somewhere between 8.45 and 9 pm when travelling by taxi.

**** JULIET LISA ANN BOURKE XXN MS MALONEY
PN633

I don't take you to any other material there. At paragraph 3.6 of the questions of your statement, NAB asked did the increased travelling time adversely affect employees' work/life balance by the different time that employees had with their families and for leisure. I put it to you, based on the evidence that I've just taken you to that the reduced time - sorry, the increased time that would be involved in these employees being required to travel home from work as a result of being required to catch public transport as opposed to the provision of taxi would decrease the amount of time that they have for their own personal commitments and their own family responsibilities and that that would have an adverse impact on their work/life balance?---I don't agree.

PN634

Commissioner, that's all.

PN635

THE COMMISSIONER: Mr Wood?

<RE-EXAMINATION BY MR WOOD [11.23AM]

PN636

MR WOOD: Ms Bourke, I want to ask you a formal question which might have a sort of a little bit of Donald Rumsfeld about it, the difference between an unknown and an unknown unknown. You said that you have read all the material. Did you mean by that you've read all the material with which you were supplied or all the material that's been filed in the Commission?---I don't know what's been filed. I just know what you've provided to me.

PN637

And can you recall whether you were provided with any of the statements filed by NAB, that is the statement of Stuart Wood and the statement of David Capel?---I might have been. I can check my file.

PN638

Could you just check? Commissioner, could the witness be excused?

PN639

THE COMMISSIONER: Yes, that's fine.

PN640

THE WITNESS: Would this have been in the first bundle of documents?

PN641

MR WOOD: It - - - ?---Or was this in reply?

PN642

I am not really allowed to lead you. I think I know what the answer is, but I'm - - -

PN643

MS MALONEY: Well, you're going to ask the question anyway, so.

**** JULIET LISA ANN BOURKE RXN MR WOOD
PN644

THE WITNESS: If you could just take me to where I need to look in my files, the beginning or the end?

PN645

MS MALONEY: Sir, can we clarify something? Is this arising out of cross-examination, because I haven't gone to either of those witness statements.

PN646

THE WITNESS: I have a statement here.

PN647

MR WOOD: The witness said she's read all the material. I'm just trying to clarify for the Commission.

PN648

MS MALONEY: Commissioner, we will accept that the documents that Ms Bourke has read are the documents that are set out in paragraph 1 of her statement which says, "Formulating my opinion", we'll accept that, that they're the five points.

PN649

MR WOOD: Ms Bourke, it may be that - can you just have a look at your file and I think you've given there a folder of material filed by the FSU?---I haven't got the complete file with me. I've got some of the material, but not all of it. The secondary material that was given to me, I don't have here. But I - - -

PN650

Do you recall whether that was a statement of Mr Peter Laragy and the FSU’s submissions in reply?---I remember reading Peter Laragy's name.

PN651

And the FSU's submissions in reply?---Yes, I did read the submissions in reply.

PN652

And can you recall whether you, at any stage, were given material filed by NAB, that is David Capel and Stuart Wood?---Yes, I was.

PN653

This might appear somewhat self evident, and forgive me if it does, Ms Bourke, but you were asked a lot of questions about the nature of and meaning of the contemporary - or the contemporary meaning to be given to work/life balance. Can that be assessed on a group basis or must it be assessed on some individual or other basis?---I would say that the understanding of the word is assessed on a national basis, then coming down to an organisational basis. The interpretation of that word for an individual is based on their circumstances. So I think there are a number of layers of meaning and it is operational-ised at an individual level, given a person's personal family circumstances.

**** JULIET LISA ANN BOURKE RXN MR WOOD
PN654

Nothing further in re-examination, Commissioner.

PN655

THE COMMISSIONER: Thank you for your evidence. You are excused.

<THE WITNESS WITHDREW [11.27AM]

PN656

THE COMMISSIONER: There's no further evidence today?

PN657

MS MALONEY: Not today, sir.

PN658

THE COMMISSIONER: No further material to put today? No?

PN659

MS MALONEY: Not that I'm aware of. Sorry, sir, there's two - sorry, I do apologise. There's Jasmin Argueta. NAB has advised - that's at tab 4 in the material we filed on 6 November.

PN660

THE COMMISSIONER: Yes.

PN661

MS MALONEY: NAB has advised us that they will not be cross-examining - that she won't be required for cross-examination, so we could mark that statement.

PN662

THE COMMISSIONER: Right. M4, Jasmin Argueta.

EXHIBIT #M4 STATEMENT OF JASMIN ARGUETA

PN663

THE COMMISSIONER: Yes. Is that all?

PN664

MS MALONEY: No sir, that's all.

PN665

THE COMMISSIONER: Before I adjourn, I'm just going to adjourn briefly into conference with the parties.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M2 STATEMENT OF ISABELLA CLARA WALTON PN455
EXHIBIT #M3 STATEMENT OF JACQUELINE ZABAT PN455
JULIET LISA ANN BOURKE, SWORN PN456
EXAMINATION-IN-CHIEF BY MR WOOD PN456
EXHIBIT #W3 STATEMENT OF JULIET LISA ANN BOURKE DATED 9/11/2006 PN493
CROSS-EXAMINATION BY MS MALONEY PN505
RE-EXAMINATION BY MR WOOD PN635
THE WITNESS WITHDREW PN655
EXHIBIT #M4 STATEMENT OF JASMIN ARGUETA PN662