AM2014/67, Transcript of Proceedings [2015] FWCTrans 90 (2 March 2015)

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Four yearly review of modern awards
(AM2014/67)
Black Coal Mining Industry Award 2010

(ODN AM2008/2)
[MA000001CRV Print PR985111]]

PN1.

VICE PRESIDENT HATCHER: Yes, can I take the appearances, please.

PN2.

MR TAYLOR: May it please the Commission, my name is TAYLOR, I seek permission to appear with Mr FAGIR for the Construction Forestry Mining & Energy Union and the Association of Professional Engineers Scientists and Managers Australia.

PN3.

VICE PRESIDENT HATCHER: Mr Taylor.

PN4.

MR Y SHARIFF: May it please your Honours I appear for the Coal Mining Industry Employer Group instructed by Ms FAIRHALL from Ashurst, my name is SHARIFF, S-h-a-r-i-f-f.

PN5.

MR B FERGUSON: If the Commission pleases my name if FERGUSON, initial B, for the Australian Industry Group.

PN6.

VICE PRESIDENT HATCHER: Yes, thank you. Is there any opposition to the applications for permission for representation by lawyers?

PN7.

MR FERGUSON: No opposition.

PN8.

VICE PRESIDENT HATCHER: We grant that permission. Mr Taylor.

PN9.

MR TAYLOR: If it pleases today we are dealing with, one, a particular subclause of the Black Coal Mining Industry Award, currently numbered 14.4(c) and propose to be number 21.4(c) in the exposure draft of the 2014 award. We have provided to the Bench some slim white folders headed in effect "The union's authorities" and the relevant clause 14 is behind the first tab of that folder.

PN10.

Your Honours will see that the subclause in question places an age-based restriction on a right to retrenchment pay. What I propose to do after identifying the submissions and evidence that are before the Commission is deal with the matter in five steps. I want to start with the clause, then identify its history, its genesis and original purpose, but third I want to move to the evidence and identify how the factual and legal situation has changed from the point where the clause first emerged. Fourth, I want to deal with a matter which is apparently in issue, and that is whether it is discriminatory, and then fifth, perhaps unusually but it seemed convenient, is to deal with the issue of the power to make the variation that the union seek, that variation being the removal of the subclause numbered 14.4(c).

PN11.

VICE PRESIDENT HATCHER: Your proposal there would be no provisions substituting for the existing provision?

PN12.

MR TAYLOR: That is correct, and that last step, that is looking at the question of power, we will also deal briefly with the referral from the Australian Human Rights Commission, and the nature of that referral and the consequence of it. But can I start by identifying the materials upon which we rely. The unions for whom I appear filed submissions originally on 20 October 2014, and I hope that the Bench has a copy of those. There will be some aspects of those that I will be turning to shortly.

PN13.

The unions also supplied a further submission titled a reply submission more recently. It was on 5 February of this year and went on to the website on the following day, 6 February.

PN14.

The evidence upon which we rely are two statements of Catherine Bolger. Each one was filed with each of the submissions I have identified; the first one on 20 October and the second on 5 February, and I will identify briefly those parts of it that we place reliance on. Ms Bolger is not required for cross-examination and w ask for that material to be received formally onto the record of this proceeding.

PN15.

VICE PRESIDENT HATCHER: I just might mark that. Is there an executed version of the first statement? The copy I have got is undated.

PN16.

MR TAYLOR: I understand there is an executed version, but not with me in court. I have no difficulty with undertaking to have that filed.

EXHIBIT #1 STATEMENT OF CATHERINE BOLGER FILED ON 20/10/14

EXHIBIT #2 AFFIDAVIT OF CATHERINE BOLGER AFFIRMED ON 06/02/15

PN17.

VICE PRESIDENT HATCHER: Is it convenient if we deal with any other evidentiary material at this stage?

PN18.

MR TAYLOR: It would be. I understand Mr Shariff has some material to tender and there's no objection to that material, nor a need to cross-examine on it.

PN19.

MR SHARIFF: Yes. May it please your Honours, my clients rely upon a statement of David Gunzburg. G-u-n-z-b-u-r-g. That's dated 12 November 2014. It may have been annexed as CMIEG4 to my clients primary submissions. Those primary submissions, your Honours, were dated 12 November 2014. It might be page 113 of the overall document.

PN20.

VICE PRESIDENT HATCHER: Yes.

EXHIBIT #3 STATEMENT OF DAVID GUNZBURG DATED 12/11/14

PN21.

MR SHARIFF: Before I move on from that statement by email dated 5 February 2015 we sought to update annexure DG2 to that statement. Did your Honours receive that?

PN22.

VICE PRESIDENT HATCHER: I have a page marked "replacement" in mine, so I assume that's it.

PN23.

MR SHARIFF: Yes. What I was tendering was the statement with the updated annexure.

PN24.

VICE PRESIDENT HATCHER: I mark that statement exhibit 3.

PN25.

MR SHARIFF: There is also a statement of Hannah Martin, and that's dated 4 February 2015. I seek to tender that.

EXHIBIT #4 STATEMENT OF HANNAH MARTIN DATED 04/02/15

PN26.

MR SHARIFF: Now, as an attachment to our primary submissions there were three other exhibits; the first was CMIEG1, which was a decision of Commissioner Wilkes, I don't seek to tender that, but the second document commencing on page 18 is a product disclosure statement for the AUSCOAL Superannuation Fund, I seek to tender that.

PN27.

VICE PRESIDENT HATCHER: That goes all the way through to page 89, does it?

PN28.

MR SHARIFF: Yes, your Honour.

EXHIBIT #5 PRODUCT DISCLOSURE STATEMENT OF AUSCOAL SUPERANNUATION FUND

PN29.

MR SHARIFF: And your Honour will note commencing from page 92 through to page 98 are some submissions that the CFMEU filed in the awards simplification process of 1999. I am happy to tender that, or your Honours might receive it.

PN30.

VICE PRESIDENT HATCHER: I don't think that's necessary.

PN31.

MR SHARIFF: Yes. Then the other document within that bundle commences on page 99 and that's a transcript of proceedings before Commissioner Wilkes, and again that falls into the same category.

PN32.

VICE PRESIDENT HATCHER: Yes, I don't think it is necessary to mark that.

PN33.

MR SHARIFF: Yes, and that's the evidence from my client.

PN34.

VICE PRESIDENT HATCHER: Mr Taylor.

PN35.

MR TAYLOR: Your Honours, Commissioner, as I identified the clause in question , clause 14, is found behind tab 1 of the folder. It is an industry specific redundancy scheme that makes provision for payments to be made to an employee made redundant as defined in subclause (2). Such an employee is potentially entitled to two types of payments. The first type of payment is a severance payment which is identified in subclause (3); that is one week for each year of service, it is not capped, and there is an exception, the only exception is that set out in the exemption in subclause (5) dealing with a situation in effect where suitable alternative work has been found.

PN36.

That first payment was introduced first in April 1973 by the Coal Industry Tribunal. The second type of payment which an employee made redundant may be entitled to is the retrenchment payment identified in subclause (4). That provides for a further two weeks of pay for each year of service, so that there's three in total, where the redundancy is for three specified reasons. It also is subject to the exemption in subclause (5) and the further limitation which is the subject of these proceedings.

PN37.

COMMISSIONER JOHNS: Severance payment isn't effective obviously by 14.4(c).

PN38.

MR TAYLOR: That is correct, your Honour, yes. It's only the retrenchment payment which is affected by 14.4(c), and that is a payment which, as you will have seen from our submissions, my clients contend discriminates the basis of age is an acronysm and should be removed. In its terms the effect of it is that an employee who is approaching the age of 60 has their retrenchment payment reduced so that it is not more than that which they would be paid up to the age of 60, and whilst not apparently contemplated by the text of the clause, for reasons I am about to come to, once you hit 60 your entitlement is removed entirely. So the effect is, in short, that someone who has been, as may well be the case, if you are at the age of 60, employed for 40 years or so, is disentitled from something in the order of 80 weeks redundancy retrenchment pay.

PN39.

COMMISSIONER JOHNS: They would also not be entitled to the MES.

PN40.

MR TAYLOR: They would also not be entitled to the MES, that is correct, yes.

PN41.

SENIOR DEPUTY PRESIDENT HAMBERGER: Because it's an industry scheme.

PN42.

MR TAYLOR: Because it is an industry scheme, that is correct, Deputy President. The next thing I wanted to deal with is to identify the history and original purpose of this clause, something which is of some particular importance in understanding the notion of where it came from, but also grappling with the notion which is put against us that this is somehow an integral part of the scheme.

PN43.

We have attempted to summarise that in the first submission, the first union submission, from page 2 under the heading "History of the redundancy pay provisions". The subclause in question went in at the time that the clause as a whole - sorry, at the same time as the subclause (4) went in by the Coal Industry Tribunal in 1983, and as I will identify it was intended as a means to prevent those being made redundant receiving more by way of retrenchment pay than they would have if they were to remain employed until the then statutorily required age of retirement. So at that time in the '80s the mine workers affected by these industry awards were required to retire at 60 by statute.

PN44.

The fact that that was the reasoning is - the reasoning is something that one finds by reading the decision which is behind tab 2 in the folder. The relevant parts have been extracted in the written submission from paragraphs 5 and following. In the coal industry the employers were resisting the introduction of the additional retrenchment payment, but put a further alternative submission which one finds summarised and extracted in paragraph 5 of our submission. Mr McLeod for the Queensland Coal Owners Association proposed a limitation to avoid what he described as a windfall gain to those about to retire, and the text is there set out in paragraph 5 that there should be a provision preventing an employee receiving more than he would have received had he remained at work until his retirement in accordance with the statutory requirement provision in the industry.

PN45.

At paragraph 6 of our written submission identifies what the statutory retirement provisions were at the time, and in paragraph 7 we identify that in that decision, the decision number 3132, the unions didn't contest the proposed restriction and that the decision ultimately records the decision of the tribunal that there would be a retrenchment pay added to the clause, but it would be limited on an amount occasioned by approaching retirement through age, which was the subject of the submission by Mr McLeod.

PN46.

This tribunal decision was occurring, as we note in our written submissions, at about the same time as the Federal Commission was considering the first TCR test case provision, and the outcome of that proceeding is recorded in our written submissions at paragraph 10. The Commission included a limitation in the then standard TCR clause in these terms:

PN47.

Severance payment shall not exceed the amount which the employee would have earned if employment with the employer had proceeded to the employee's normal retirement date.

PN48.

Outside of the coal industry of course one didn't have necessarily statutory enforced retirement dates.

PN49.

To complete the history of this consideration of this in a more general Federal level we identify in our written submission that the Federal Commission re-examined that particular limitation that we have set out in paragraph 10 in the 2004 review of the TCR test case, and for this purpose could I ask your Honours, Commissioner, to open my friend's authorities. In my friend's authorities one finds that 2004 decision at tab 9, redundancy test case.

PN50.

The relevant paragraphs dealing with the question of the retirement date limitation commenced at 159 at page 199 of the reported decision and go through to 168. The Bench determined not to remove the restriction at that time, and at 164 the Bench identified the ACTU argument and then said that they didn't find those arguments persuasive, and then said this:

PN51.

It seems to us that despite - - -

PN52.

And I am now reading halfway through 164:

PN53.

It seems to us that despite the passage of age discrimination legislation the concept of a normal retirement date will continue to be relevant where a particular occupation or industry continues to have a fixed retirement date.

PN54.

So here the Full Bench is identifying at one circumstance where it's relevant where there is a fixed retirement date, and then secondly the Bench went on to identify that where employees and employers agree in advance to a retirement date the principle underlying the current provision will also continue to be relevant. It's not uncommon for employees and employers to discuss and plan retirement dates in advance. Where they do so the principle underlying the existing retirement age provision remains relevant.

PN55.

So it was only those two circumstances which led the Bench to consider the provision one that should remain within the standard TCR. It is a fact that that standard TCR provision is not of course replicated in the NES, but as the Deputy President rightly identified here we are talking about an industry scheme, not the NES.

PN56.

VICE PRESIDENT HATCHER: A provision of that nature would not be discriminatory?

PN57.

MR TAYLOR: I think that is right, your Honour, it wouldn't be discriminatory. It could have clearly an indirect discriminatory effect, which itself turns on questions of reasonableness, but as we are about to hear one of those two limbs that justified its continued inclusion, that is an industry mandated retirement, is something that no longer exists in this industry.

PN58.

The next thing I wanted to turn to is this issue of the statutory and factual position having changed since the original clause was drafted. In that case we start by identifying the commencement of the Age Discrimination Act at the end of June 2004. Now we have extracted in our folder of authorities some of the sections of that Act, including section 3 "The objects of the Act". Section 3(a) identifies that one of the objects of that Act is to eliminate as far as possible discrimination against persons on the grounds of age, and in subsection (b) to ensure as far as practicable that everyone has the same rights to equality before the law regardless of age. Provisions which find their basis at international law in articles 2 and 7 of the International Covenant on Economic Cultural and Social Rights.

PN59.

This form of legislation is a form that follows the form that deals with race and gender; that is that people are considered equal, to be distinguished perhaps from disability legislation where the legislation commences from the point of view that people in respect of whom the legislation is seeking to protect have a disability and then there needs to be provisions to prevent them being discriminated against beyond that which is necessary or inherent in a position. Age is not in that category and as the Act makes clear that the approach of the legislation is that people should not be treated differently because of their age.

PN60.

The second change that emerges from the evidence - sorry, the second statutory change before I come to the evidence is the removal of the statutory mandated retirement ages. We have identified those in our submission. The last one to be removed was in New South Wales in 2006 and in our submission we have quoted at paragraph 12 from the Second Reading Speech where the minister identified that the passage of age discrimination legislation was one of the reasons why it was necessary and appropriate to remove an obligation to retire at the age of 60.

PN61.

Earlier states had removed the statutory mandated retirement age at an earlier time, and it is noted in the employer's submissions that the Queensland statutory provision had been removed in 1997 prior to Commissioner Wilkes considering the question of whether this clause was discriminatory in the year 2000. As I will come to shortly when we look at that decision we say that the Commissioner proceeded on the basis, the consent basis, that whatever the statutory position was in Queensland in practice there was a retirement age in Queensland of 60 years of age.

PN62.

Turning to the evidence, the evidence firstly of Ms Bolger is that - turning to the evidence more broadly there is no contest that there is now employees employed under the coverage of the Black Coal Mining Industry Award 2010 who are over 60 years of age. Ms Bolger at annexure 6 to her first affidavit marked exhibit 1 extracts an Australian Bureau of Statistics 2011 publication which records that 5 per cent of employees in the Coal Mining Industry of New South Wales are over 60 years of age; 5 per cent.

PN63.

Ms Bolger goes on to identify that APESMA membership records identify that 11.5 per cent of members are over 60 years of age, and that is of some importance because as one sees from the evidence of Ms Bolger the majority of CFMEU members are covered by enterprise agreements which contain a redundancy clause in similar terms, or the same terms as clause 14, but without the age-based restriction, whereas some 88 per cent of APESMA members are not covered by an enterprise agreement, and in respect of whom the Coal Mining Industry Award would not only cover them but would apply to them.

PN64.

VICE PRESIDENT HATCHER: So these former statutory restrictions applied equally to APESMA members as much as CFMEU members?

PN65.

MR TAYLOR: Yes, to the extent to which the award applies it applies to all those covered by the award which includes both the mine workers covered by the CFMEU and the staff, as they are colloquially referred to, by APESMA.

PN66.

VICE PRESIDENT HATCHER: So my question was did the former statutory retirement ages apply equally across everybody?

PN67.

MR TAYLOR: I am sorry, your Honour, I misunderstood. Yes. When decision 3132 - following the making of the decision of 3132 the order was made which is numbered 3169 - I don't have a copy of it with me, but it was an order that varied a range of industry awards which affected both staff and mine workers, in the same terms.

PN68.

VICE PRESIDENT HATCHER: And staff had to retire at age 60?

PN69.

MR TAYLOR: I'm sorry. Yes, and the statutory requirement also applied to staff, yes. So Ms Bolger's evidence that something in the order of 5 per cent are over 60 is in effect confirmed by the employer evidence. Mr Gunzburg, an HR consultant to the industry, was given data. His amended DG2 annexure that your Honour the Vice President noted that was a replacement page that records the percentage of workers in Queensland and New South Wales based on data that had been provided by the industry to Mr Gunzburg and which - I am sorry, I should correct that - data provided in respect of New South Wales only which record that those over 60 made up 2.8 per cent of the workforce in 2007. It was 4.7 per cent in 2013 when the data ceases.

PN70.

The previous page, DG1, identifies that of those made redundant in the last two years 10 per cent of those made redundant were over 60 years of age, which led us to submit that it would appear that those over 60 are twice as likely to be made redundant.

PN71.

VICE PRESIDENT HATCHER: Say that again.

PN72.

MR TAYLOR: Those over 60 make up about 5 per cent of the workforce, but 10 per cent of those employed, and so the incidents - sorry, 10 per cent of those retrenched.

PN73.

VICE PRESIDENT HATCHER: Yes.

PN74.

MR TAYLOR: So 5 per cent of those employed, 10 per cent of those retrenched, which means that they are disproportionately represented at a factor of two to one.

PN75.

SENIOR DEPUTY PRESIDENT HAMBERGER: Does that mean people who are compulsorily made redundant? When you say retrenched do you mean people who had no choice?

PN76.

MR TAYLOR: Well, it would certainly cover that. There is a range of potential ways in which people can be retrenched. They can be voluntary schemes. The clause would apply whenever it falls within a definition of redundancy, and in this case where the redundancies occurred due to specific reasons, but we accept that that certainly arises in forced redundancies, but can also arise in a voluntary redundancy situation.

PN77.

COMMISSIONER JOHNS: Mr Taylor, you get that from extrapolating the data in DG2, preferring it to DG1?

PN78.

MR TAYLOR: Yes.

PN79.

COMMISSIONER JOHNS: And over a different time frame.

PN80.

MR TAYLOR: I accept that it's a broad submission rather than a specific one, but certainly one does seem to find broadly that the workforce in the last couple of years are in the order of four and a half, 5 per cent, and the specific figure is in the order of 10 per cent for retrenchments.

PN81.

COMMISSIONER JOHNS: Given the trend in DG2 one would expect that the number over 60 has probably increased.

PN82.

MR TAYLOR: That I think is a fair submission. It might be my friend says that the numbers have stabilised in the last couple of years, but in circumstances where there's a greater proportion of over 60 being made retrenched it does at least say - we can at least say that if not higher it's unlikely to be lower than the 4.7 per cent.

PN83.

COMMISSIONER JOHNS: The number, or the percentage of persons aged over 60 who have been retrenched might include for example persons who voluntarily accepted redundancy, but we don't know how many were compulsory and how many were voluntary.

PN84.

MR TAYLOR: To the extent to which there are voluntary schemes, and there is no evidence about this, but I do understand that they do occur from time to time, yes, that is certainly possible. The other evidence that the employers have filed the statement of Ms Martin marked exhibit 4 is dealing with the data for Queensland, and that shows that those age 60 and above were in the order of five and a half per cent in Queensland in 2009 and in 2014 were 4.3 per cent.

PN85.

So one thing the evidence makes clear of course is that consistent with the removal of the statutory retirement age and the introduction of the Age Discrimination Act this industry like others has people who are continuing to work beyond the age of 60, and whilst the employers identify that it's certainly not the majority it is still a sizeable number of people who are over 60 who are working, and there is no reason why one would assume any more, as was assumed at the time that the clause was introduced and at the time that Commissioner Wilkes considered it, that all employees will have ceased work at the age of 60.

PN86.

VICE PRESIDENT HATCHER: The cap will also have effects on people who are just under 60.

PN87.

MR TAYLOR: Yes, and there appears to be increasing numbers at that age if you look at the material. I haven't separately identified that in my submission to date, but the same material that I have taken the Commission to indicates that the workforce is growing older more generally and there will be increasing numbers affected by that aspect of the restriction as well.

PN88.

VICE PRESIDENT HATCHER: Does clause 14.4 operate by reference to industry service or service for the single employer?

PN89.

MR TAYLOR: My reading of it is service for the employer. There is a long service leave scheme which allows employee service to transmit, but I will check that and if that's wrong I will come back to that.

PN90.

The next thing I wish to go to because it is relied on by the employers is the decision of Commissioner Wilkes who considered the question of whether the subclause was discriminatory in 2000 following a referral from the Full Bench. The decision is found at tab 8 of the employers folder of authorities and there are some aspects of it that I wish to draw attention to. Starting with paragraph 10 I identified earlier that there was a common understood position from which Commissioner Wilkes proceeded. The first thing to note I should have added that in this case the parties proceeded on an agreed basis; that is both parties were putting to the Commissioner the proposition that the clause did not amount to direct discrimination and therefore did not need to be removed as part of the simplification process, and to the extent which it did give rise to indirect discrimination the indirect discrimination was reasonable in the circumstances.

PN91.

Now, the circumstances are set out in paragraph 10 where employers put submissions about the normal retirement age and identified that it was a statutory position in New South Wales, and that - and I am now looking at the last words of paragraph 10:

PN92.

The practical situation remains the same in both states; that is the normal retiring age is 60 years.

PN93.

At paragraph 20 the Commissioner dealt with the submission that the clause was not discriminatory on a direct discrimination basis, and did so by identifying that the clause applies to all employees. He said there was no different formula that applied and then gave an example as to why it wasn't direct discrimination.

PN94.

If an employee retires at the normal retiring age of 60 years he or she could not earn more than that. It follows therefore that the clause is intended to avoid the potential for employees to obtain an unintended or windfall gain from being made redundant at a point where he or she is coincidentally nearer to the normal retirement age that another employee who for no reason is also made redundant but maybe much further from the normal retiring age of 60 years.

PN95.

It's clear that integral to the reasoning of the Commissioner was the fact that there was a retirement age at that point, and that age was 60 years of age, and in paragraph 21 the Commissioner went on to identify that:

PN96.

Any differential in monetary entitlement is a function of the point in time at which the retrenchment occurs and is not based on a formula which relies upon the age of the individual.

PN97.

At paragraphs 22 to 25 the Commissioner dealt with the issue of indirect discrimination and identified in the middle of that paragraph that the apparent discrimination is, as I have already said, not primarily caused by the clause, but rather by the timing of the decision to retrench employees, and goes on to identify by reference to an example an employee who is 58 years and six months and who has 30 years continuous service, and another one who is 59 years of age and has the same amount of service, and say that both of them are going to work to the normal retirement age of 60. It's the fact of the redundancy which determines the employee's entitlement, the clause merely ensures that no employee can receive more than he or she would have received if no redundancy had occurred at all.

PN98.

So clearly the basis of the decision, at both direct and indirect discrimination, was that employees would retire at 60, and on that basis based on the consent submissions of both parties the Commissioner agreed that the clause did not need to be removed as part of the simplification process. That is to be distinguished of course with the fact situation now. If you have two employees each with the same amount of service one postulates one employee is 55 years old and intends to retire at the age of 60 and the second employee is 60 years of age and intends to retire at 65 both have the same amount of service, both have five more years of work that they intend to have, and yet the way the clause operates is now that the 55 year old would receive 60 weeks of retrenchment pay and the 60 year old who has the same amount of economic loss, an expression my friend's submissions adopt as a rationale, gets nothing.

PN99.

We say that whilst there might have been a rationale at the time the clause was inserted and at the time that Commissioner Wilkes considered it that rationale has now gone. The thought that someone does not suffer an economic loss because they are close to 60 when they had every intention of continuing to work is a proposition which has, we say, nowadays simply no proper basis, and Ms Bolger gives some evidence using the most basic of calculation tools available from the ASIC website which demonstrates well over $100,000 of additional superannuation is available to someone who chooses to work an extra five years on the very straightforward assumptions that she sets out in her evidence as to a particular employee.

PN100.

We have identified in our submissions the relevant statutory provisions which this Commission will take into account when determining and exercising its discretion. They are of course very familiar to you all, but they include of course section 578 which obliges the Commission to have regard to the objects of the Act, one of which is the prevention of discrimination, another of which is enhancing Australia's international obligations, but 578 goes further, it also itself in subsection (c) contains a provision that the Commission when exercising its powers will take into account for a need to respect and value diversity in the workplace by helping to prevent and eliminate discrimination on the basis of, inter alia, age.

PN101.

The second area of the statute which is clearly apposite is section 153, which states that a modern award must not contain discriminatory terms, and the expression is that they are terms that discriminate against an employee because of or for reasons including the employee's, and amongst other matters, the listed age.

PN102.

That takes me to this next stage of the submission, is this a provision which is discriminatory. We say self evidently it is. It permits an employer to pay less based on age, and the earlier factual example I gave we say makes it clear that what this clause does is differentiate between two groups, and cause one group to receive less than the other based on one criteria only, and that is age, and on that basis it meets the test of discriminate against, which means it would be contrary to section 153.

PN103.

We have identified in our reply submission the relevant paragraph from the Full Bench decisions four yearly review, jurisdictional issues decision. That decision itself is found in the folder that we have provided, and at paragraph 45 of that decision the Full Bench examined the issue of what does discriminate mean, and in short terms identified that the Act itself doesn't define discriminate or discriminate against, so one would proceed with the ordinary or natural meaning, which is to distinguish between employees whose employment is regulated by a modern award. The Full Bench identified that what is proscribed is a differentiation which is against an employee and there's some negative consequence.

PN104.

As we understand the submissions that Mr Shariff's client wishes to put it is that this clause does not discriminate on the basis of age, and apparently that is because its true purpose is not to treat employees adversely because of their age, but rather to set a reasonable limit on compensation for those, particularly in light of the fact that people have superannuation entitlements. There is some attempt to rely on a line of authority which applies in adverse action cases where the focus of a court is to discern what was the reason or reasons why a particular act was taken which is an act which affects adversely someone's workplace right. Here the analysis is not on the question of what the reason is at any particular point where an employer is making an individual redundant, the focus is on the clause itself and what is the intention of the clause.

PN105.

A statutory provision can be presumed to have the effects that it has if that is the intended effect, and here it clearly has the effect that a person is differentiated to their detriment because of their age. To put it another way why is the entitlement extinguished at the age of 60 under this clause, and the answer is because someone has become 60. One doesn't need to go behind it, that's simply what the clause says, that is its effect, that is its intention. It is clearly discriminatory, and one doesn't really need to get into interesting arguments as to whether the word "discriminate" at this particular point of the Act, and section 153 incorporates direct and indirect or simply direct discrimination, just applying the ordinary words it differentiates between two groups to the detriment of one of them for a reason which is a prescribed reason.

PN106.

Can I move to the power to remove, where the power to vary comes from in circumstances where it is put against us that the Commission does not have the power to do that which my clients ask it to do; that is to vary this clause by simply blue lining out subclause (c), and they rely on the fact that it is an industry specific redundancy scheme and that section 141 of the Act contains a limitation on the power to vary. In particular subsection (3) provides that the Fair Work Commission may only vary an industry specific redundancy scheme in a modern award under division 4 or 5, those divisions including the modern award review powers, in two circumstances; (a) by varying the amount of any redundancy payment in the scheme, or (b) in accordance with the provisions of subdivision (b) of division 5 which deals with varying modern awards in some limited situations.

PN107.

It is said that this deletion does not meet the requirements of (a) and that (b) doesn't apply. We say that there is power to vary for three reasons, two of which are set out in our submissions and there is one further reason which is not found in our submissions, but which I wish to put today. The first reason is that we say that to delete subclause (c) does vary the amounts of any redundancy payment, and such is permitted by subparagraph (s) of section 141(3). The employers say it doesn't directly and of itself vary the amounts, but if one considers what is happening and one goes to the words of the subclause currently the amount is two weeks for each year of service, but a lesser amount for those coming up to the age of 60 and the amount of zero for those who are over 60. They are the current amounts. To remove the cap will alter the amount that is then payable to certain categories of employees; that is approaching 60 and over 60. So much we think is clear - - -

PN108.

VICE PRESIDENT HATCHER: Presumably they are covered by the scheme even if they're over 60, it's just they don't get - because the scheme covers the two elements and they're covered by the scheme, it's just that if they're over 60 they don't get any - - -

PN109.

MR TAYLOR: Your Honour is correct. So the clause continues to apply to them, it's just the particular retrenchment payment in subclause (4) the amount of that payment is affected by their age, and that is clear from the words which start, "the amount of payment due". It's a subclause which is on its terms dealing with the amount of payment, and so to remove the clause will vary the amount of payment, and we say that means there is no difficulty with simply - there is no difficulty that arises from that subclause.

PN110.

VICE PRESIDENT HATCHER: So that means that even without a discrimination finding if it was found for example it was anachronistic or unfair we could just vary it under 141(3)(a) ?

PN111.

MR TAYLOR: Yes, that is correct, your Honour. There are two other bases upon which we say there is a power to vary, and they are found in sections 160 and 161, both of which are in subdivision (b) and therefore not caught by the limitation. Can I deal with them firstly in this order, by dealing with 161 first which appears in our written submissions. Section 161 applies in circumstances where the Australian Human Rights Commission president has made a referral to the Commission.

PN112.

In this case the Commission has before it such a referral that occurred on 10 October 2014, and we have dealt with this in our reply submission from paragraphs 32 and following, but in short what one finds from the letter from the president of the Human Rights Commission to his Honour the president Ross J is a report that following a complaint made by APESMA that two companies, Centennial Myuna and Centennial Angus Place, had done an act which was complained to be a discriminatory act, that is it made four members of the union redundant, each of whom were over 60 years of age, and failed to pay them retrenchment pay, denying them some over a hundred thousand dollars each, and the president writes to Ross J indicating that she has formed a view that the act was a discriminatory act, an act that would be unlawful under the Age Discrimination Act, but for that provision in the Age Discrimination Act which is found in subsection (8) of section 39 of that Act, which permits acts done in direct compliance of an industrial instrument to be accepted from what would otherwise be the requirements of the Act. That subsection is found as part of the extracted material that has been placed in the folder.

PN113.

As you will have seen from our reply submission, it's our contention that the scheme of the legislation is such that having there been a referral the Commission is then at that point obliged to review the award in light of the referral, and under subsection (3) of section 161 is required to vary where the award requires a person to do an act that's unlawful.

PN114.

VICE PRESIDENT HATCHER: Does that restrict the type of variation that can be made?

PN115.

MR TAYLOR: It does. A variation under subsection (3) must be a variation, and I am quoting the final words of the subsection:

PN116.

So that it no longer requires the person to do an act that would be so unlawful.

PN117.

It doesn't restrict it beyond that, but it in effect requires the discrimination to be removed. It doesn't mandate how the new clause would look provided there is no discriminatory requirement.

PN118.

VICE PRESIDENT HATCHER: For example if we decided to change the clause so it had a cap which was not age related that could be done under 161(3)?

PN119.

MR TAYLOR: It would give rise to questions as to whether the new cap is one which is indirectly discriminatory, which would mean that there would still be a discriminatory effect, but if it could be done in a way wherein there was no discrimination of either a direct or indirect nature, then yes, that would be something that could be done under subsection (3).

PN120.

VICE PRESIDENT HATCHER: That's a subject to which we will return in a short while.

PN121.

MR TAYLOR: In our submission we have identified what can be said against us is that this provision doesn't require an employer to discriminate, it permits them to do so, that is an employer can choose to pay people without the limitation, and we have quoted in our reply submission at paragraphs 40 and 43 from the decision in Telstra v Peisley, P-e-i-s-l-e-y, that the word "require" can be read broadly to include a situation where there is in effect a choice. Peisley involved whether voluntary overtime when worked was work that was required, and the court accepted that in that case the word "require" could extend to a situation where employees agree to work overtime.

PN122.

We say the scheme of this legislation is clear, that is employers are protected where there is an award provision which permit them to discriminate on the basis of age from a complaint being made against them for breach of the Federal Act, but that upon that provision being identified there is then a mechanism by which that provision which so permits discrimination not only can be but should be removed.

PN123.

The alternative submission we also put, that is even if the obligation that the Commission has to remove only arises where the clause is drafted in mandatory terms - and I just add if you actually look at the clause it is drafted in terms which would appear to be mandatory - it says:

PN124.

The amount of payment due under clause 14.4 is not to be more than that would - - -

PN125.

It's drafted in terms which are directive. But even if that doesn't amount to a requirement of the sort that is caught by subsection (3) of section 161, nevertheless under section 161(1) there is a power to review the award. We say that power is one that carries with it the power to vary which is contemplated in 141(3). So 141(3) says you can vary, it's like a modern award review, if you are doing so pursuant to one of the sections and subsection (b). One of those subsections is section 161 which provides a power to review, and reading them together, in our submission, the intention is that the restriction in 141(3) doesn't apply to restrict the power of this Commission as part of its modern award powers to vary the award where it is conducting a review emerges from a referral.

PN126.

Can I now identify the third way in which we say that there is power to vary, which we accept does not merge from our written submissions. Your Honours, Commissioner, may recall that there was reference in correspondence with the president concerning the timing of this proceeding to Federal Court proceedings before Buchanan J involving one of my clients, the CFMEU, and the terms of an enterprise agreement which in effect replicate the terms of clause 14 of the award, and in that case his Honour is considering whether the subclause that we are examining is of no effect as a matter of law.

PN127.

It goes this way, the argument goes this way; section 137 of the Act provides that a clause in a modern award is of no effect to the extent to which it contrives section 136. Section 136 in subsection (2) provides that an award must not contain terms that contravene subdivision (d), and section 153, which is the section which says that a modern award shall not contain discriminatory terms is in subdivision (d).

PN128.

VICE PRESIDENT HATCHER: Just slow down. So 137 the term has no effect. What is the 136 reference?

PN129.

MR TAYLOR: Section 136(2):

PN130.

An award must not contain terms that contravene subdivision (d).

PN131.

And one finds section 153 in subdivision (d). So one of the matters his Honour is considering is whether the clause of that enterprise agreement, and I might add in circumstances where there are provisions equivalent to 137 and 136 in respect of enterprise agreements, whether the clause in the enterprise agreement is of no effect to the extent to which it contravenes section 153.

PN132.

VICE PRESIDENT HATCHER: Does that mean we don't need to do anything?

PN133.

MR TAYLOR: It means this certainly, that if this case was argued Monday of last week it means that if a view is formed that the subclause itself is of no effect and can be blue lined out, then we say that that would leave by parity of reasoning the current modern award having a subclause which is of no effect but which appears in the award, and we say as a result under section 160 the powers would remove ambiguity and uncertainty. It would make obvious sense to remove it, and when making the new award to ensure that that wasn't there, it being of course of no effect.

PN134.

Whether what the Commission is here doing is otherwise affected by that decision depends somewhat on the decision. This Commission in making a new modern award and when considering the power to make a modern award with an industry specific scheme can consider the extent to which the new award needs to be varied in any particular respect. It may well be his Honour takes a different view about the provision, and I identify in that case the employers are contending, amongst other matters, that if his Honour did form a view that the subclause was discriminatory he should not simply blue line out that clause, but should remove the entire subclause 14.4 or indeed the entire clause 14, the industry scheme.

PN135.

That is the proposition was put to him that in order to remove one small part that's discriminatory the solution was to remove the entire scheme, a submission which is repeated here as a matter of discretion.

PN136.

VICE PRESIDENT HATCHER: By the agreement?

PN137.

MR TAYLOR: Sorry, in that case in the enterprise agreement, yes.

PN138.

VICE PRESIDENT HATCHER: So if we determine a modern award has no effect does that have any implications about our power to vary; that is can we vary something that in legal terms doesn't exist?

PN139.

MR TAYLOR: The award will continue to exist, there's no doubt about that, and there will be - there is the potential, I acknowledge from the arguments that apparently have been put, that the whole of clause 14 is to be said to not exist anymore, something that seems an unlikely outcome, but there is that unlikely potential that there isn't a clause 14 there that can be varied any more. That would necessarily though still lead the Commission to have to consider what clause should be in the award that deals with this subject matter.

PN140.

VICE PRESIDENT HATCHER: In clause 14 there's no industry specific scheme for us to vary, is there, that's 14.3 - 14.4.

PN141.

MR TAYLOR: Well, that depends - it does depend on what his Honour determines. I don't think that there is any likelihood - sorry, I withdraw that. A submission has been put formally, I think, that the whole of clause 14 should be removed. So long as the industry specific scheme remains then there is a provision that can be varied and can be varied as to the amount, and the obvious variation - if 14.4 was to be removed the obvious variation would be to put it back without an age-based discriminatory provision, because that is the scheme that has been in place for decades.

PN142.

SENIOR DEPUTY PRESIDENT HAMBERGER: That sounded a bit like if you had a clause in an award that said men will get paid $100 more a week than women, the answer is it's discriminatory so we will just take out the wage clause.

PN143.

MR TAYLOR: It does seem an unlikely submission, I am very quick to adopt that proposition, and likely one to be adopted at the Federal Court level, but I am indicating what I understand is being put.

PN144.

VICE PRESIDENT HATCHER: So the effect of the current clause if you do some rough maths is that there's a cap, effective cap on the retrenchment payment of 80 weeks.

PN145.

MR TAYLOR: Of the retrenchment pay in that order, yes.

PN146.

VICE PRESIDENT HATCHER: So if we delete the provision why should we simply leave it uncapped so that there's a new escalating possibility of payment?

PN147.

MR TAYLOR: At the moment it is a provision which turns on length of service. It doesn't from our side seem to be a basis upon which whilst it's unlikely to be over 80 weeks one reintroduces in effect an indirectly discriminatory provision which will mean that those who continued work to an older age will start losing benefits over time. So that someone at the moment - it may well be that most people are now working until 60 to 65, but as Ms Bolger's evidence reveals life expectancies are continuing to increase, the age of people continuing to be able and wish to work continues to increase. It doesn't seem that there's a need to put a cap at any particular level, but rather continue the industry scheme of simply basing it on years of service.

PN148.

It is said against us in this area that to remove this clause is to cherry pick and to take out an integral part of the provision, and it is said against us, we understand from the written submissions at least, that because this subclause - sorry, if this Bench were against the employers on the view as to whether it is discriminatory and form the view that it does discriminate then a solution is to remove the entire industry scheme. That is because it discriminates against a group of people who are 60 everyone should lose their entitlement.

PN149.

VICE PRESIDENT HATCHER: What was the rationale for the scheme in the first place as to retrenchment plan? Why does this industry have a special scheme?

PN150.

MR TAYLOR: What emerges from decision 3132 is that this was a time in the early ‘80s, like what was occurring in the economy generally where there were significant retrenchments. Evidence was put before the Coal Industry Tribunal in a contested matter and it being a separate tribunal determined that this was an appropriate outcome for this particular industry where workers don't have the same capacity to simply move off to other industries, they were employed in the industry. It's an occupation which is then maintained ordinarily for the whole of their life. This tribunal formed a view that in circumstances where people are being retrenched this was an appropriate outcome, and no doubt they took into account the usual range of factors including the employer's capacity to pay and the like, and determined that this was an appropriate scheme. It's a scheme that has been in place thereafter for over three decades.

PN151.

DEPUTY PRESIDENT GOSTENCNIK: But why isn't it considered to be an all in scheme in the sense that the deal done for 14.4 was you get the extra two weeks, but in exchange for that the employer gets the cap, and therefore if the cap goes the extra two weeks goes. It is not as though the employees are left without a payment, they still get the severance payment under 14.3. Why isn't it considered a whole package that if part of it goes all of it goes?

PN152.

MR TAYLOR: Commissioner, there might be something in that if at the time it came in it was intended to be somewhat of a quid pro quo as an offsetting that there were employees who worked beyond 60 and it was decided that there should be some offset, such that those above a certain age would simply lose an entitlement. That wasn't the rationale. It was never an integral part of this scheme that workers who are 60 or 61 or 62 who have every intention of continuing to work and who have the same economic loss as someone who is 55, 56, 57 who has the same desire to work the same period of time, it was never an integral part of the scheme that they should not get any redundancy pay. It was simply a provision which recognised the concept of the windfall gain up to the point of actual retirement.

PN153.

The notion that there was some sort of overall deal is not what emerges from the decision in 3132. It was nothing more than saying that this is a provision which is providing for economic loss, that is the loss of the job, particularly in this industry where once the coal price tumbles it's not as if you can just wander to the next mine because they will be recruiting, it tends to be the whole industry is affected. The decision is made at that point that three weeks is paid and the only provider is but you can't get more to the age of retirement. We forcefully reject the notion that there was some sort of industrial deal here done which meant the employers were sort of getting some benefit here. It was simply where is the economic loss. Because the notion of forced retirement has gone, because as a matter of fact people can choose and do choose to keep working well beyond 60, then the rationale for it has gone and the thought that this is somehow a benefit, it's become a benefit to the employers, that was not part of the rationale. It's become a benefit, they can now - the 10 per cent who have been retrenched to the extent to which the employer is applying the award provision they are not paying them the retrenchment pay that the 57, 58 year old is being paid.

PN154.

DEPUTY PRESIDENT GOSTENCNIK: And it can be a significant benefit to the employer because if they had an employee who started work at 20 and one who started work at 40 and they needed to make one redundant it would be more cost effective for them to make redundant the person who started at 40.

PN155.

MR TAYLOR: And that is one of the reasons why we say as a matter of discretion should be removed. There should be no provision

[END OF TURN AT 11.45.08]

START OF TURN 1145:00

PN156.

That is one of the reasons why we say, as a matter of discretion, it should be removed. There should be no provision in the award which creates a financial incentive to an employer to discriminate against someone because of their age.

PN157.

MR TAYLOR: Possibly.

PN158.

THE SENIOR DEPUTY PRESIDENT: Would you agree that in making a variation to this award as you propose, we have to have regard to the impact on business and including costs. If we were to do what you propose, presumably that would involve some increase in costs for the employers?

PN159.

MR TAYLOR: Yes.

PN160.

THE SENIOR DEPUTY PRESIDENT: That is obviously something we need to have regard to. What do you say about that?

PN161.

MR TAYLOR: It does increase costs but in a way that was never – these aren’t costs that were ever intended.

PN162.

THE SENIOR DEPUTY PRESIDENT: No, I understand.

PN163.

MR TAYLOR: We say that, yes, we accept part of the matters that you will take into account will be an effect on employers’ costs. When one is removing discrimination, it is not unusual, and certainly has been the case in gender discrimination, that there will be costs associated with that. We accept it’s a fact to be taken into account but certainly not one that would override the imperative to remove discrimination. After all, recall that the people whose costs are being – what happens when the employer saves costs is that people are not getting retrenchment pay, notwithstanding they’ve worked for decades, simply because of their age. When one is considering whether there’s going to be an increase in employer costs, one has to consider whether it’s justified or not. There’s often a justification for increasing employer costs. Certainly the mere fact that it increases employer costs is never a bar to a variation for an award.

PN164.

THE VICE PRESIDENT: That consideration might be brought to bear in considering what part of the variation it is that should be made.

PN165.

MR TAYLOR: Yes. What we say as to that is that when one is considering an industry scheme and considering the history of the scheme, one is looking at what was originally intended. All that was originally intended was to avoid the windfall gain of people who are just about to retire. One would maintain the scheme as closely as possible and one wouldn’t create a cap of the sort that the employer is suggesting, 18 weeks, which would completely alter the scheme. We say that the fact that historically things have moved on, there’s just no need for an age-based restriction any more. Simply, employees should be treated as the scheme has always otherwise treated them, simply based on years of service.

PN166.

THE DEPUTY PRESIDENT: Why is there a need for an 80 weeks scheme then?

PN167.

MR TAYLOR: Pardon.

PN168.

THE DEPUTY PRESIDENT: Why is there now a need for an 80 week severance payout?

PN169.

MR TAYLOR: Why is there a need for it?

PN170.

THE DEPUTY PRESIDENT: As opposed to a 52 week, or a cap like that?

PN171.

MR TAYLOR: One of the things we say about that, Commissioner, is that if there is going to be an alteration to the scheme to introduce different caps, there would need to be a substantial evidentiary case put against us and the employers have not chosen to do that. This is a situation where the scheme would ordinarily not be altered, other than to the extent to which necessary. In this case, all that’s necessary is to remove the discrimination.

PN172.

THE VICE PRESIDENT: That depends upon the basis upon which the variation was made, but if it was made under 41.3, it’s slightly different.

PN173.

MR TAYLOR: As I said, your Honour, it’s our case that the notion that because certain people are being discriminated against, in circumstances where no employer case is put before the Commission as to costs, as to the nature of the people being affected and the like in a broad proper basis, there is no basis upon which this Commission would need to do or would go beyond simply removing the discrimination.

PN174.

THE VICE PRESIDENT: That’s true if we simply proceed on the discrimination proposition, but if we proceed on the general industrial proposition that the scheme was constructed by reference to retirement age which no longer exists, that invite the conclusion that we need to reconsider the scheme in the light of contemporary circumstances.

PN175.

THE COMMISSIONER: Perhaps to put it another way, the scheme already provides for a cap but it’s a cap that operates in a discriminatory fashion. One looks to resolve that by imposing a cap that is not discriminatory.

PN176.

MR TAYLOR: Yes, and our primary position is there is no need. The idea of the cap was only ever to prevent windfall. There is no need for a variation that would do anything beyond that. Nowadays, people can keep working. There is no normal retirement date, so there is simply no need for it at all. What the TCR full test case considered was that there was some remaining potential value in a clause which did not allow for redundancy pay beyond a retirement date, because there might be situations where employees and employers agreed on a retirement date, and so the windfall provision still had some potential work to do. Beyond a form of words of that nature, which we say really aren’t needed any more, given the way in which there is no such thing as normal retirement dates, but certainly beyond those words, we say there is no need to go any further than that.

PN177.

They are my submissions.

PN178.

THE VICE PRESIDENT: Mr Shariff.

PN179.

MR SHARIFF: Yes, your Honours. I propose to deal with four areas; the first was to address initial issues about the meaning of discrimination for the purpose of the Act; the second was to address whether the impugn clause is in fact discriminatory; the third was to address the power of the Commission; and the fourth was to address, if your Honours find that the clause does operate in a discriminatory way or discriminates against employees on the basis of age, what variation would be made.

PN180.

Can I just make a couple of points before I address each of those four topics. I wanted to hand up a document which reviewed all the modern awards, 122 of them, by reference to their redundancy provisions. Can I just explain what we have done here. The first page just simply outlines section 119. From page 2 through to page 8, what we identify are those modern awards where the redundancy or severance entitlement is different to the standard in the NES. On our count, there are 10 awards where there are differential entitlements to the NES. In almost every case, bar one, the entitlements are less beneficial than the NES, on one view or another. The one exception that we can find is the Higher Education Award and we set that out on page 3, where the NES standard is enhanced by a cap of 52 weeks.

PN181.

When your Honours comes to the questions of what are appropriate variations et cetera by reference to contemporary standards, and accepting that there was an industry specific redundancy scheme in place here, the incontrovertible fact is that the scheme that was enshrined by this award is far more beneficial in comparative terms to just about every other award, all 122 awards. This is the most beneficial scheme. That rather invites the question, as the peak industrial body dealing with a four yearly modern award review, whether if one finds the clauses discriminatory, and for reasons that we submit it’s not, but if one does find that, whether this clause, in the form either that Mr Taylor submits or in some other form, remains a fair and relevant minimum safety net, to use the words of section 134.

PN182.

One thing that Mr Taylor hasn’t addressed your Honours on are the modern awards objectives or how this particular aspect of the proceeding fits in within those, so that when your Honours consider, as a matter of discretion, if a variation is necessary, your Honours don’t do that in a vacuum but your Honours do so having regard to the fact that what your Honours are doing is opposing a minimum safety net.

PN183.

The flip side of that, of course, is that there is an attendant economic cost of doing so. To use one of Mr Taylor’s earliest examples that he did in oral address, was to use that of an employee with 40 years’ service. If that employee is currently over the age of 60, under the current schemes drafted, other than the one week per year of service which the employee would get for severance, that employee would get zero for retrenchment pay. The effect of the variation that Mr Taylor proposes, would be to increase the cost of business by two weeks per year of service for that employee with the years’ service. In other words, a cost of 80 weeks at the ordinary rate of pay, per year of service.

PN184.

We think it’s a rather childish point to come along and say the employer’s run an evidentiary case to meet that. It is as self-evident as Mr Taylor suggests the discrimination aspect of the case is. In fact, we would say that it’s the unions that haven’t run an evidentiary case to support why the entitlement should be entirely uncapped at all because as your Honours, the Vice President and the Deputy President put to Mr Taylor, by reference to the origins of the scheme, why do those purposes still stand today.

PN185.

Why is it in 2015 there should be an uncapped entitlement in this particular award, by reference to all other awards and by reference to the minimum standard. Every single minima in this area of severance entitlements, whether it’s under the NES, under the various awards, under the Employment Protection Act of New South Wales, under the TCR standard, under the revised 2004 standard, has a ceiling. Every single minima has a ceiling. The effect of Mr Taylor’s submissions would be that this would be the novel award, the one award where, without any merit-based case, the unions seek an uncapped entitlement and we say your Honours wouldn’t accept that.

PN186.

I just wanted to make those brief opening remarks before turning to the issues I wanted to address.

PN187.

The first issue I wanted to address is that of definition. As Mr Taylor pointed out, the five member Full Bench in the four yearly modern award review indicated that the word “discrimination” is not defined in the Fair Work Act, nor are the words “discriminate against”. That rather invites this Full Bench to examine what is meant by “discriminate” and “discriminate against”. In that regard, can I take your Honours to tab 11 of our bundle of authorities, which is the decision of the High Court in Street v Queensland Bar Association (1989) 168 CLR 461. I am taking your Honours to the passage, the oft quoted passage of Gaudron J, commencing at page 570. Just bear in mind, what Mr Taylor submitted was that the meaning of the word “discriminate” was simply to make a distinction of a difference. We say that is a far too simplistic view of the word. If I can start from the bottom of the page.

PN188.

UNIDENTIFIED SPEAKER: What page?

PN189.

MR SHARIFF: 570.

Although in its primary sense "discrimination" refers to the process of differentiating between persons or things possessing different properties, in legal usage it signifies the process by which different treatment is accorded to persons or things by reference to considerations which are irrelevant to the object to be attained. The primary sense of the word is "discrimination between";

‑ but I stress:

the legal sense is "discrimination against".

Where protection is given by anti-discrimination legislation, the legislation usually proceeds by reference to an unexpressed declaration that certain characteristics are irrelevant within the areas in which discrimination is proscribed.

PN190.

And then her Honour cites examples of the Anti-Discrimination Act. She then continues:

The framework of anti-discrimination legislation has, to a considerable extent, shaped our understanding of what is involved in discrimination. Because most anti-discrimination legislation tends to proceed by reference to an unexpressed declaration that a particular characteristic is irrelevant =

‑ and I stress these words -

it is largely unnecessary to note that discrimination is confined to different treatment that is not appropriate to a relevant difference.

I also stress the next words:

It is often equally unnecessary to note that, if there is a relevant difference, a failure to accord different treatment appropriate to that difference also constitutes discrimination.

PN191.

Her Honour then refers to what was then the seminal case on the meaning, the South West Africa cases in the judgment of Judge Tanaka, where his Honour stated:

... the principle of equality before the law ... means ... relative equality, namely the principle to treat equally what are equal and unequally what are unequal. ... To treat unequal matters differently according to their inequality is not only permitted but required. The issue is whether the difference exists.

PN192.

Then her Honour cites a judgment of the European Court of Justice where they stated:

Material discrimination would consist in treating either similar situations differently or different situations identically.

Then there’s a reference to an Indian Constitutional Court case, which I won’t take your Honours to.

PN193.

That part of her Honour’s decision was then picked up in Castlemaine Tooheys v South Australia. That’s another High Court decision behind tab 4 of our bundle. If I can take your Honours to the judgment of Gaudron and McHugh JJ at page 478, just picking up from about point 5 on the page:

In Street v Queensland Bar Association … Gaudron J. made reference to the general considerations which, statute aside, result in particular treatment being identified as discriminatory. By reference to those considerations it is possible to identify the general features of a discriminatory law. A law is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant to the object to be attained; -

And I emphasise those words –

a law is discriminatory if, although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support that distinction. A law is also discriminatory if, although there is a relevant difference, it proceeds as though there is no such difference, or, in other words, if it treats equally things that are unequal - unless, perhaps, there is no practical basis for differentiation.

PN194.

The force of these passages emphasises that what is relevant to an examination as to whether there is discrimination is the purpose sought to be attained by the impugned provision, and whether the distinction that is made is relevant or necessary to the object to be attained, whether the provision treats equal things that are equal, or whether it treats things which are unequal equally.

PN195.

A premise in the submissions of the unions is that the class of employees that we’re dealing with are relevantly equal, that is, that they are in materially the same position as all other classes of employees. That’s a proposition with which we take difference.

PN196.

The essential analysis in this case is one that invites this Commission to consider whether there has been discrimination against an employee because of age. That necessarily we say requires an examination of purpose. Your Honours get that because of the words, “because of”, which appear in section 153. In our written submissions we have pointed out that the words, “because of”, which are a causal connector, have been examined most recently in adverse action cases, but they’re not confined to adverse action cases. To that extent, can I take your Honours to the decision of Purvis, and that’s at tab 7 of our bundle.

PN197.

Whilst your Honours are going to the judgment in Purvis, can I just make this observation. There appears to be a debate in the authorities as to whether the act, when it uses the word “discrimination” incorporates both direct and indirect discrimination. In our respectful submission, that’s probably a distinction that’s unnecessary to decide in the present case, because as I have submitted, when one goes to the authorities, the basic legal usage of definition, it doesn’t invoke differences between direct or indirect discrimination. They’re simply labels which various other statutes, not this particular statute, have given to particular aspects of discrimination or the way it manifests itself.

PN198.

If I can take your Honours to the judgment of Gleeson CJ in Purvis at page 100, at paragraph 8. This was dealing, as your Honours might know, with the Disability Discrimination Act:

Section 5 of the Act relevantly provides that a person, the discriminator, discriminates against an aggrieved person on the ground of a disability if, because of the aggrieved person's disability, the discriminator treats the aggrieved person -

and I stress the words -

less favourably than the discriminator would treat a person without the disability in the same circumstances. Two related questions arise. First, in comparing the treatment of the aggrieved person -

In that case it was the student Purvis –

with the treatment that would be given to a person (another pupil) without the disability in the same circumstances, what, if anything, is the other pupil to be assumed to have done?…

PN199.

I won’t read the rest. Then if I could take your Honours to paragraph 12:

If the appellant's argument is correct, the comparison required by the Act is purely formal. If the person without the disability is simply a pupil who is never violent, -

Bearing in mind the student in that case the student, Purvis, I think had bipolar disorder and was acting violently in the classroom.

then it is difficult to know what context is given to the requirement that the circumstances be the same.

And I stress those last words.

Furthermore, if the appellant's argument is correct, the Act places a school authority in a position of conflict between its responsibilities towards a child who manifests disturbed behaviour and its responsibilities towards the other children …

I won’t read the rest because it goes on to a policy purpose.

PN200.

In the judgment of Gummow Hayne and Heydon JJ, similar points were picked up. If I can take your Honours to page 160 at paragraph 222:

It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the "circumstances" to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires.

In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled.

PN201.

I won’t read the rest. The relevance of all that here is that a person, as we have outlined in our submissions and in the evidence, a person who is at the age of 60 and above, is not in the same position as a person at the age of 60 and below. Historically, the reason for that was because a person at the age of 60 was subject to a mandatory retirement age. It does not follow from the removal of the mandatory retirement age that a person of the age of 60 and above is in materially the same position as a person below that age.

PN202.

THE VICE PRESIDENT: Why is that?

PN203.

MR SHARIFF: I am about to answer that. The reason for that, if your Honours go to our submissions, at paragraph 2.9, the fact is that employees at age 60 and over are able to make tax-free withdrawals from their superannuation fund. There is a sliding approach to that from age 55 to 60, but it’s not on a tax-free basis.

PN204.

THE VICE PRESIDENT: That’s an after the event rationalisation of it. That’s not the reason why the distinction exists.

PN205.

MR SHARIFF: No. The reason why the distinction exists, if one was to examine its purpose and object back in 1981, was because of the existence of the mandatory retirement age. What’s now being put against us is that you don’t really look at the purposes from there, because the purposes don’t matter for the purpose of whether there’s discrimination. You look at what the effect is now with the mandatory retirement age having been removed. Our answer to that is that if one is looking at discrimination now, by reference to the purposes and effects now, we are saying you are not treating like with like. Employees at age 60 and over are in a different position to those under the age of 60.

PN206.

THE VICE PRESIDENT: That might be right but if you go back to the passage in Castlemaine Tooheys, the different treatment in the award it is not appropriate to adapt it to that difference, is it, because it was never constructed by reference to that difference.

PN207.

MR SHARIFF: Can I just answer that question by taking it a step back. The purpose of retrenchment and severance pay, and I am about to shortly take your Honours to the TCR case, was never to impose a standard whereby an employer is to compensate an employee for every item of economic loss that flows from retrenchment. It never was, never has been. The cost of the social dislocation that follows from retrenchment is shared between employers and the community at large, the government, et cetera.

PN208.

What we’re saying is that pursuant to this scheme the employer had agreed to share a part of that burden, up to a point. The balance of that burden fell elsewhere, whether it was pursuant to a mandatory retirement age and therefore access to superannuation entitlements or by means of social security or other means.

PN209.

THE VICE PRESIDENT: There was no burden because there was nobody over 60 being retrenched when this clause was constructed. It wasn’t the case of shifting the burden to somebody else. It was a scenario which simply was not contemplated.

PN210.

MR SHARIFF: Yes. So whatever economic consequences flowed from that, was something that was catered for within the particular social resolution that was passed at the time, including the scheme that existed then in respect of the mandatory retirement age.

PN211.

Now if one looks at it, the effect of what Mr Taylor submits to your Honours is to shift the entire burden of that on to the employer, without in any way taking into account that there is compensation available to employees over the age of 60 from other sources.

PN212.

THE COMMISSIONER: Mr Shariff, the discussion about the comparatives in Purvis related to attributing to the non-violent student – sorry, having a comparative of a non-violent student was artificial and that one needs to attach to that person the attributes of the student with disabilities who had said the violence was a product of the disability. But here, if I take you to the tax-free aspect or access to superannuation contributed, how does that apply to a person who’s 50? Doesn’t the clause, in effect, discriminate between a person who is 60 and a person who is 50, because you can’t have the relevant comparative, because a person who is 50 can’t access their superannuation entitlements?

PN213.

MR SHARIFF: We say that is precisely why the clause provides compensation to that person, because that person isn’t able to access those entitlements.

PN214.

THE COMMISSIONER: If the law were to change and the person could access those entitlements, they would be treated in the same way as they are now. They would get the bumped up benefit.

PN215.

MR SHARIFF: Yes, that would be so, but that’s not the current position that prevails. The force of my argument is simply to point out that we are not treating like with like here. Persons over the age of 60 who are retrenched are not in the same position as those who are under the age of 60 and being retrenched. That’s the point, as it currently stands.

PN216.

The purpose of going to the comparative analysis is to say this can’t just be a superficial analysis of saying these people are in a like position and therefore the people over the age of 60 are being discriminated against, because that removes from any analysis whether they are being treated less favourably in the same or materially the same circumstances. The point we are trying to make is that they are not in materially the same circumstances, as it currently stands.

PN217.

What we say fundamentally is that, yes, the clause - - -

PN218.

THE SENIOR DEPUTY PRESIDENT: Do the laws actually change when you turn 60 or do they change when you turn 55 and then progressively change?

PN219.

MR SHARIFF: From the age of 55 you can access entitlements, I think it’s up to a level of $185,000, tax-free, and that’s it. After 60 you can make withdrawals that are entirely concessionally tax treated and that is a relevant difference.

PN220.

THE VICE PRESIDENT: The problem is this, it changes every few years. I mean I don’t know that we can keep up with that.

PN221.

MR SHARIFF: It may. It may change and that may mean that what I am saying is a materially different factor may no longer exist and I think that’s the thoughts of the Deputy President’s question to me. It may change.

PN222.

THE VICE PRESIDENT: I think when I went to the Bar I accessed nearly all of my super. I don’t think you do that now.

PN223.

THE COMMISSIONER: It also doesn’t take into account the fact that somebody who is over 60 may not have been in a superannuation fund nearly as long as somebody who is finding it’s a product of how long they have been in the industry and how long they have made contributions.

PN224.

MR SHARIFF: We accept that. The point is that we are not treating – just going back to the fundamental point – we are not treating differently those people who are the same. In other words, we are treating equally those who are equal and unequally those who are unequal, as a general rule. The clause obviously has to be applied to individual circumstances, but the clause applies as a general rule and we have put it on the basis that it provides a limit to economic compensation, the burden of which that the employer carries. Yes, at a particular point in time, a line was drawn by reference to a mandatory retirement age that no longer exists, but it doesn’t follow from that that all employees, at least in these two classes that we’re talking about, are in the same circumstances.

PN225.

THE COMMISSIONER: What I can follow from all that is that we have a scheme which was not designed for contemporary circumstances and needs to be reviewed.

PN226.

MR SHARIFF: If your Honours are against me on that, I think I would have to accept that. I was going to come to this. When one examines the true purpose of redundancy payments, as your Honours would know, their purpose is to compensate for loss of non-transferrable credits. In fact, now might be an appropriate time to go to the TCR case that’s in our bundle at tab 12.

There is no doubt that there is hardship necessarily inherent in redundancy situations, but we have provided for extended notice on termination of employment and we have imposed obligations on employers which will assist employees in finding alternative employment. In these circumstances, it is arguable that the employer should not be required to do more. Redundancy caused unemployment is no different from unemployment due to any other event and through legislation the community at large accepts the burden of paying unemployed persons amounts determined appropriate. However, the material examined by the Commission indicates that in many different heads of loss or damage are being considered relevant in matters involving the assessment of redundancy paid.

PN227.

There is then a reference to the Clerks Oil Companies case and they pick up what was said in the helicopter pilot’s case:

The determining of reasonable compensation for a variety of matters, including the degree of hardship likely to be suffered by way of loss of accumulated benefits of service, lost opportunity, other and more secure employment and cost of movement …

Then over the page on 72, there’s a reference to what Gaudron J said in the Wattie Pict case, where her Honour reasoned that an entitlement to severances was necessary to mitigate the hardship necessarily inherent in the retrenchment of employees and she referred in particular to the financial hardship or fear it caused.

PN228.

In the next paragraph, their Honours said this:

In these and other cases, in determining a level of severance payment, a wide range of factors have been identified as relevant, such as age -

In other words, you are positively taking into account age –

seniority, period of notice, availability of alternative employment, compensation already available to the workers, benefits foregone, and the reasons for retrenchment.

PN229.

After examining those reasons, their Honours on page 73, the first complete paragraph:

Having regard to the other aspects of our decision, and having regard to what we have said about the existence of and reason for unemployment benefits –

I emphasize these words:

We do not believe that the primary reason for the payment of severance pay relates to the requirement to search for another job and/or to tide over an employee during a period of employment.

PN230.

THE SENIOR DEPUTY PRESIDENT: My understanding is the rules in relation to unemployment benefit have changed fairly significantly since this time. In fact, the way that the unemployment benefit system works, it does actually oblige you to – you don’t get unemployment benefit while you’ve got access to redundancy pay.

PN231.

MR SHARIFF: That may be so. I can’t answer that question for your Honour but that may be so.

PN232.

Two paragraphs down:

We prefer the view that the payment of severance pay is justifiable as compensation for non-transferrable credits and the inconvenience and hardship imposed on employees. In this respect, we agree with the conclusions contained in the CITCA report but would indicate at this stage that in fixing the quantum we have been prepared to take into account the standards established in recent decisions …

We are aware that extended notice, which we have granted, will not be sufficient to ensure that all employees find alternative employment and we are aware that these provisions will not solve the problems of the chronically unemployed. However, these must remain, in our view, primarily a social rather than an industrial responsibility.

Nevertheless, as we have indicated earlier, it would be misleading to assume that success in obtaining a new job indicated that an individual made redundant had managed to recover the security built up over years of service …

PN233.

Then in the next paragraph their Honours say this:

We are prepared to have regard to length of service in determining an appropriate quantum … and we have decided –

They say, in rejecting the ACTU’s views –

not to provide for age-related payments. Of course, indirectly, older employees will benefit from a scale of payments based on years of service.

PN234.

As your Honours know, a limit based on years of service, as I said earlier, has been the minima everywhere. Mr Taylor somehow now says that would be indirectly discriminatory. That rather just proves our point as to the primary issue why discrimination, just on a superficial analysis, is not made out by pointing to difference. One has to look at the relevant difference and whether it’s appropriate and adapted to the purpose to be obtained.

PN235.

THE VICE PRESIDENT: In clause 14, what separate work does the severance payment do, as distinct from the retrenchment payment? What different losses are they compensating for?

PN236.

MR SHARIFF: As I understand it, that seems to have been - and Mr Taylor’s clients might know this better - a product of a historical compromise reached. By 1981, as I understand historical position, the severance entitlement of one week per year of service had existed from 1973. The additional two weeks was some kind of, as best as I can tell, quid pro quo achieved as part of some industrial historical bargain struck. Outside that, I can’t point to any additional purpose or benefit for the retrenchment part of the entitlement is directed to, but the severance entitlement is not directed to. It would seem, just as a matter of logic, that what we’re talking about here is not the notice entitlement. We’re talking about a severance entitlement, labelled as a retrenchment benefit. Ordinarily, those entitlements are directed to loss of non-transferrable credits.

PN237.

THE VICE PRESIDENT: That’s not the only reason given. I mean the difficulty is in finding another job as referred to here, isn’t it? Older workers actually have more difficulty in finding another new job.

PN238.

MR SHARIFF: I think what they’re saying is the primary reason for it isn’t simply to find another job. Yes, it’s to compensate for the hardship associated with losing a job in these circumstances but the relevant hardship being that you have to start at year zero at your next place of employment, on your service related benefits.

PN239.

THE VICE PRESIDENT: That was one factor.

PN240.

MR SHARIFF: Yes.

PN241.

THE VICE PRESIDENT: Not the only factor.

PN242.

MR SHARIFF: No, no, I accept that. The point I am trying to reach to is this that in this industry, in terms of loss of non-transferrable credits, the fact is that there is a long service leave scheme that’s industry based. In a sense there is no loss of non-transferrable credits on that front.

PN243.

In the case of personal carers’ leave, if I can invite your Honours to go to the exposure draft of the current award, at clause 20.5(b).

PN244.

THE VICE PRESIDENT: Where is that?

PN245.

MR SHARIFF: This is the exposure draft that your Honours have issued. Do your Honours have that? I might have a copy.

PN246.

THE VICE PRESIDENT: No, I’ve got that. Thank you.

PN247.

MR SHARIFF: It’s the equivalent of clause 13.5 of the Extant Award. Your Honours will see that employees covered by this award have the benefit to payment out of accrued personal carers’ leave. Mr Taylor doesn’t suggest that this clause operates in a discriminatory way to those employees who don’t retire, but that’s by the by.

PN248.

The fact is that in this industry there is adequate compensation for loss of non-transferrable credits. There is adequate compensation via notice and the severance entitlement for hardship associated with loss of employment. The real question is, to use the expression that’s required, why is it a fair and relevant minimum safety net to have a completely uncapped entitlement, having regard to contemporary circumstances, having regard to the purpose of redundancy payments overall, having regard to the fact that employers are never intended to bear all of the burden of economic loss and having regard to the fact that non-transferrable credits have been provided for.

PN249.

I have jumped around a bit because of the questions your Honours have raised with me but I am probably now coming to the question of what power does the Commission have. I am sorry, before I come to the question of powers, can I just examine what the purposes were of the scheme as enacted. For that, if I can take your Honours to Mr Taylor’s bundle. Behind tab 2 is the decision from 1981, and if I can take your Honours to page 37, numbered at the top, the second complete paragraph:

The decision will be implemented in the following manner. The existing severance pay provisions are to be retained, subject to removal of the barrier.

That was a barrier for, I think, five years’ service.

There will be a further provision made for retrenchment on the specified ground of technological change, market forces and diminution of reserves. This further provision, which will provide for two weeks’ pay for every completed year of service, with a minimum of two weeks’ pay for every employee, will be in addition to the adjusted provision for severance pay. The provision, apart from its requirement for notice of one month, will only require such payment if not a job within the industry in the district in which the mine is situated is not found or made available.

The replacement job must be at least the same award rate of pay. New South Wales and Queensland each have three districts already recognized in various awards which will be the districts for the purposes of the new provision.

There will also be a limit on amount occasioned by approaching retirement through age. -

Which was the subject of the submissions by Mr McLeod -

In view of the events which occurred at Australian Iron and Steel Pty Ltd Mines in the (indistinct), in view of the fact that this provision is by way of being in a code which specified what is to occur in the circumstances specified. The provision will be conditional on normal work being carried out during the period of notice. This condition will modify retrospectively.

PN250.

The rationale for the extension of this payment, but at a cap, seems to have been by reason of the agreement of the parties that it ought to apply. What we say are the purposes of that can be discerned from the scheme, is that it was a scheme that was always intended to operate with a limit. It was not a scheme that was entirely mean to be unlimited. Yes, the limit was at that time set by reference to a mandatory retirement age that no longer exists, but that doesn’t remove the fact that a limit was considered appropriate.

PN251.

The need for a limit or a cap is something that’s been recognized as I say in the TCR case and in other standards that have been enshrined by Industrial Tribunals. The purpose of having a limit of that type is directed to dispersing the economic burden of social dislocation arising from redundancy, but it doesn’t squarely fall within the hands of employers. A further purpose was expressly to ensure that an employee didn’t obtain a windfall benefit.

PN252.

We say, although the mandatory retirement age no longer exists, the relevant distinction made by the clause is not discriminatory, because it remains a relevant distinction to be made. That’s all I really wish to say about the discrimination issue. I was then going to move on to questions of power.

PN253.

Can I take your Honours to section 141. When looked at perhaps in isolation of this particular award, it would appear that the purpose, just reading these provisions, together with those relating to the National Employment Standard concerning severance pay, was to permit awards to contain industry specific redundancy schemes that might have been less beneficial to employees than the NES. That’s reflected by the fact that in the vast majority of modern awards, bar the two exceptions I have taken your Honours to, this award and the Higher Education Award, the schemes that have been implemented have in some way or another been less beneficial than the NES.

PN254.

We are dealing here with a scheme that’s clearly more beneficial than the NES. If your Honours look at section 141.3, there’s a limit on how your Honours can vary the industry specific redundancy scheme. Your Honours can only do that by varying the amount of any redundancy payment. Just pausing there, we say that if your Honours remove clause 14.4(c) from the existing award, your Honours would be doing more than varying the amount of the payment. Your Honours would be fundamentally altering the purpose and character of the scheme. I know your Honour looks perplexed about that, but you would be doing so because you would be converting what is currently a capped scheme to something that is an uncapped scheme.

PN255.

THE VICE PRESIDENT: That’s saying you’re varying the amount. That’s another way of saying you’re varying the redundancy payment.

PN256.

MR SHARIFF: What your Honours are doing is not varying the quantum of the amount. Your Honours are removing what is a cap to payments.

PN257.

THE VICE PRESIDENT: The only purpose of a cap is to limit the quantum of an amount payable by the employer. It doesn’t do anything else.

PN258.

MR SHARIFF: We say that would fundamentally alter the nature of the scheme and that would be an appropriate restraint upon the exercise of power. It’s a matter of discretion in this case. One, we say it’s not a variation of the amount and our second contention on that is one of discretion, that you wouldn’t do so because of the effect that it would have.

PN259.

On the second limit on power, that all hinges upon an argument that Mr Taylor puts that, based on section 161(3), that clause 14.4C of the award requires an employer to do an act that would be unlawful. There are a number of premises within that that we say haven’t been made out. First, all there has been is a referral by the Australian Human Rights Commission. That’s not a determination by any Tribunal or Court that’s binding on this Commission that there has been an unlawful act. That’s the first point.

PN260.

The second point is that we say it strains the words of subsection 3 as applied to clause 14.4C, to say that clause 14.4C requires an act, something to be done that’s unlawful. Our first answer to that is, for all the reasons I have already said, it’s not discriminatory in its purpose or effect, and secondly, the clause itself does not require an employer, in the ordinary sense of the word to do - - -

PN261.

THE COMMISSIONER: It only really permits “facilitates” assuming the act is unlawful.

PN262.

MR SHARIFF: Yes. We say my friend’s contentions for a variation don’t meet either subparagraphs A or D, but if they do, if we’re into the territory of your Honours are satisfied that there is a discriminatory effect here, and your Honours are satisfied that your Honours have power to vary, the question is, what are your Honours then going to do.

PN263.

We say that the unions, and I might now be repeating myself because I am going to aspects that I have already addressed, the unions have put forward – they complain about what we haven’t done but they haven’t put any merit-based cogent reason, argument as to why this award should have a completely uncapped entitlement. There’s nothing.

PN264.

THE VICE PRESIDENT: The type of variation that can be made may depend upon the basis upon which we act. That is, at first blush, it seems to me, speaking for myself, that 141.3 provides a broader scope in which to act that 161.3 does.

PN265.

MR SHARIFF: Yes. I think I accept that. Sorry, one other limitation I should have drawn your Honour’s attention to is subsection 4, where there’s a limit upon what the Commission can do in terms of extending the coverage of scheme to classes of employees that it did not previously cover. There are three arguments that need to be raised about that.

PN266.

The first is that any new employee covered by the award is a new class of employee who has not previously been covered by the scheme. The unions have said nothing about that, yet they’re inviting your Honours to vary.

PN267.

THE VICE PRESIDENT: Say that again.

PN268.

MR SHARIFF: Any employee who hasn’t previously been covered by the award, i.e. prior to 2010, prior to this award coming into existence, is a class of employee that has never been covered by the scheme.

PN269.

THE SENIOR DEPUTY PRESIDENT: Sorry, I am not following that. I understand what you’ve just said, I think, but what’s the consequence of it.

PN270.

MR SHARIFF: There’s a limit. If your Honour looks at section 4A on the Commission extending the coverage of the scheme to employees that it previously did not cover.

PN271.

THE COMMISSIONER: But doesn’t that mean that persons who are now aged 60 or over were not employed before they were aged 60 or over.

PN272.

MR SHARIFF: No, no. I am saying for a completely new employee who’s employed, may not have been a person previously covered by this.

PN273.

THE COMMISSIONER: They’re covered by the scheme. They’re just not entitled to the 14.4 benefit. They’re entitled to the 14.3 benefit.

PN274.

MR SHARIFF: I can see your Honour’s argument, but we would say that the effect of it would be to extend the coverage of the scheme to someone who it previously did not apply to. An analogy to that might be, your Honour might recall that with the section 119 severance benefit that was imposed, the Transitional Act, schedule 4, item 5(4), imposed a limitation for the purpose of calculation of service, such that service for the purpose of the calculation of that entitlement didn’t extend past 1 January 2010, where a previous entitlement did not exist.

PN275.

That rather assists in the argument I was putting before that it seems that the purpose of the industry specific redundancy scheme was to permit variations to the NES scheme that might have been less beneficial. Here we’re dealing with a scheme that’s more beneficial but we would say a legislative intention can be discerned from the Act. A concern stated that the schemes, whatever they are, not extend beyond their extant coverage.

PN276.

THE SENIOR DEPUTY PRESIDENT: Are you saying that the scheme shouldn’t allow any new employees to be covered by it? Maybe I should let you finish, but that’s the way you seem to be - - -

PN277.

MR SHARIFF: That’s a first limitation on power. The second is that - - -

PN278.

THE VICE PRESIDENT: They are employees from what date?

PN279.

MR SHARIFF: From 2010. The second argument is that employees over the age of 60 are not a class of employee who are covered by the retrenchment pay part of the scheme and that must be so.

PN280.

THE SENIOR DEPUTY PRESIDENT: Clearly the scheme isn’t just a bit of the scheme. It’s the scheme set out in clause 14, the whole scheme.

PN281.

MR SHARIFF: It depends at what level of extraction you’re looking at the scheme.

PN282.

THE SENIOR DEPUTY PRESIDENT: This scheme applied to them, otherwise the NES would apply.

PN283.

MR SHARIFF: Yes, but if one looks at how the scheme came about, the 1981 decision was dealing with extending the scheme to the retrenchment pay part of it. The retrenchment pay part of it, we would submit, is a separate scheme to which employees over the age of 60 would not - - -

PN284.

THE SENIOR DEPUTY PRESIDENT: So clause 14.1 of the award which is wrong.

PN285.

MR SHARIFF: Yes.

PN286.

THE SENIOR DEPUTY PRESIDENT: You just give it no weight. It says that:

Redundancy arrangements in this award are an industry specific redundancy scheme.

That clearly includes, one would think, the whole clause headed under “Redundancy”.

PN287.

MR SHARIFF: I accept the issue at a different level of obstruction and regard the entire entitlement under clause 14 as the entire scheme, if you’re against me on that argument.

PN288.

The third argument we would put as a restraint on power is that your Honours would nevertheless need to be persuaded by the Modern Award objectives. So if I can turn to those.

PN289.

The first of those is relative living standard for the low paid. We say that doesn’t arise here. The second of those – this is in section 134.1 – is the need to encourage collective bargaining. We say collective bargaining is encouraged if this award operates as it should as a minimum standard. The third, which is to promote social inclusion through increased workforce participation. We say this is a double edged submission for the unions because, as I understand the logic of their argument, they say that there would be an incentive for employees to remain working past the age of 60, but for the purpose of losing their job by way of retrenchment.

PN290.

THE SENIOR DEPUTY PRESIDENT: I think it’s rather become more serious than that. It’s really that as things stand there’s a financial incentive, and a reasonable financial incentive, for the employer to make anybody over the age of 60 redundant, whereas there’s a general policy, if you like, which is reflected in this clause, which is part in effect in this clause – it doesn’t specifically refer to that here, but to increase workforce participation of older workers. Actually this clause creates quite an incentive to actually get rid of your older workers first.

PN291.

MR SHARIFF: If you follow that logic through, if you remove the cap, if one is assuming this hypothetical employer increase in an incentive to simply focus on employees with lesser periods of service when redundancies are being made, so that it actually has a reverse discriminatory effect on those who are younger or who have shorter periods of service.

PN292.

THE SENIOR DEPUTY PRESIDENT: The trouble is we don’t actually have a lot of direct evidence about that point.

PN293.

MR SHARIFF: No, I accept that.

PN294.

THE SENIOR DEPUTY PRESIDENT: The argument would be, I think, that somebody who is retrenched at the age of 61 is going to have a very difficult time finding another job, and so they’re likely to end up out of the labour marker, whereas if you retrenched somebody who was 31 or 41, possibly even 51, that’s getting more arguable, is going to actually find it easier to find another job. I mean there’s not a lot of evidence about this but I just think that is clearly the purpose of this sub clause.

PN295.

MR SHARIFF: The example your Honour has raised with me would mean that you’re discriminating against other employees on the basis of their age. That’s who you are targeting for retrenchment.

PN296.

THE SENIOR DEPUTY PRESIDENT: If you looked at the quote from the TCR decision, I think that is part of their rationale. They were responding to submissions from the ACTU that there should be additional benefits for older workers. They said, “Well, we won’t provide specific additional benefits, but we will base it on years of service, which indirectly benefits older workers. I think there was an attempt to indirectly discriminate in favour of older workers.

PN297.

MR SHARIFF: But subject to a cap on normal retirement age.

PN298.

THE SENIOR DEPUTY PRESIDENT: Because people retired, yes, that’s right, in those days.

PN299.

MR SHARIFF: To answer a question I think Gostencnik DP raised with Mr Taylor, one shouldn’t assume that because there’s been marginal percentage based increases here or there from year to year in the number of workers working over 60, that that either will continue or its going to increase unabated.

PN300.

The Queensland data that was attached to Ms Martin’s statement shows that – if we turn to that. That’s exhibit 4. It outlined that in Queensland the mandatory retirement age was removed in 1997. That data shows that in 2009 there were 5.5 per cent of people over the age of 60 and that was some 12 years after the removal of the mandatory retirement age. That dipped to 3.1 per cent in 2010. As at 2014 it’s 4.3. So we’re talking about a small portion of the workforce, but the economic cost that flows from that, as I said in my earlier example, it’s not just the additional two weeks per year of service post 60, it’s the impost of the whole retrenchment entitlement for all years of service. We say, in effective terms, subparagraph C of 134.1, dealing with social inclusion in the workforce participation is neutral because it works both for younger employees and older employees.

PN301.

The next criteria in terms of flexible modern work practices and the efficient productive performance of work, well we have pointed to what the cost impost would be.

PN302.

The next one is the principle of equal remuneration for work of equal comparable value. Although that might be a wage based activity, we have pointed to the schedule that says that this is the most beneficial redundancy scheme out of all the 122 awards and it exists in circumstances where employees covered by this award have a portable long service leave scheme and have an entitlement to pay out of their accumulated sick leave. That, in fact, suggests that they are somehow treated as being more special than every other employee within the economy.

PN303.

Subparagraph F, the likely impact on the exercise of Modern Award powers on business. We have addressed that. The need to ensure a simple, easy to understand and stable sustainable Modern Award system. We have said that on our alternatives you either go back to the NES or you impose, as a further alternative, a higher service based cap, which is referrable to the NES standard at nine years of service.

PN304.

The likely impact of any exercise on Modern Award powers on employment growth and inflation, there’s no evidence either way on either of that in terms of economy-wide issues.

PN305.

As we see it, if your Honours are at the point of dealing with a variation, your Honours have got the union’s contention of a completely uncapped entitlement. You’ve got our primary contention that you should revert to the NES and you’ve got our alternative contention that it should be a service based cap, by reference to the maximum service prescribed in the NES itself, which is nine years.

PN306.

It may be that your Honours are not satisfied that any of those alternatives are appropriate as a variation. If we’re in that territory, all I can really submit to your Honours is that if we’re in that territory, your Honours ought to make a finding on the primary issue, which is whether the clause is discriminatory, and then invite the parties, or tell the parties, that each of the proposals that have been put forward have not persuaded your Honours that they would be the appropriate variation to be made and invite the parties to address your Honours on what would be an appropriate variation. We say that the ones we’ve put forward are appropriate. I’m sorry, Deputy President.

PN307.

THE DEPUTY PRESIDENT: That’s all right. You make this submission dependent on this Tribunal being satisfied with the provisions discriminatory but do we have to go that far? Hatcher VP earlier indicated that the one that might be relevant or contemporary and a different clause should apply.

PN308.

MR SHARIFF: Yes, and I can understand as a matter of logic that your Honours could come to that conclusion without needing to make a finding on the anterior issue, because ultimately the statutory task that your Honours are conducting is a four yearly Modern Award review, guided by the Modern Award’s objectives. It would be, I think, within your Honours powers to come to that view.

PN309.

What we don’t think your Honours could do and I thought this was what Mr Taylor was urging at one point, by reference to section 160 of the Act, is to say this clause has a discriminatory effect and therefore is invalid and we just excise that part and leave the rest of the scheme in there. We think that wouldn’t be a proper exercise of discretion because on the four yearly review, your Honours need to be satisfied that each of the Modern Awards objectives are still being satisfied. That raises issues about contemporary standards and issue with both you, Deputy President and the Vice President have raised with me.

If your Honours just give me a moment. I have instructions to put to your Honours that if your Honours are minded to say to the parties that none of their submissions are persuasive as to a variation, we would wish to be heard further on a different appropriate variation.

PN310.

Unless there’s anything further that I can assist your Honours with, those are our submissions.

PN311.

THE VICE PRESIDENT: Thank you, Mr Shariff. How long will you be Mr Ferguson?

PN312.

MR FERGUSON: Very brief, your Honour.

PN313.

THE VICE PRESIDENT: Go ahead.

PN314.

MR FERGUSON: A few minutes. Thank you. The Bench would be aware our group has already filed detailed submissions and we’re content largely to rely on those and we have endeavoured to be comprehensive in putting that material forward. Other than to indicate our strong support of what’s been put on behalf of the Coal Industry employee group.

PN315.

One issue that I did want to raise in relation to this, to the issue of whether clauses which differentiate redundancy entitlements, based on age, should be regarded as discriminatory, is the fact that there’s nothing novel about these sorts of provisions. Not only historically have awards often included caps in relation or connected to age, but of course many modern awards included transitional arrangements which continued the operation of state based redundancy schemes, which contained differential entitlements for employees, based on age.

PN316.

I would suggest many or most awards contained a transitional arrangement which perpetuated, for example, the New South Wales Common Scheme which had different entitlements for employees either below or over 45 years of age.

PN317.

We would say a concern has never arisen that those schemes are themselves discriminatory, certainly nothing was raised with the Bench or identified by the Bench in making the awards, or indeed reviewing them. If the simple proposition that any differential based on age was discriminatory was accepted, then of course that would have implications for the validity of those clauses, especially the operation of section 136 if the answer was held to be right.

PN318.

I just wanted to raise that additional issue. Beyond that point, we would echo the comments of the employers that if the Bench was minded to make a variation to the scheme, we would welcome the opportunity to make further submissions in relation to that.

PN319.

We have obviously proposed one alternative ourselves, which was to link the cap to eligibility for the pension, if you will. We have put that in fairly simply terms but we would welcome the opportunity to make some additional submissions if that was the path you were proposing to tread.

PN320.

I don’t intend to make any additional comments, unless you wish to raise any questions about our material.

PN321.

THE VICE PRESIDENT: Thank you, Mr Ferguson.

PN322.

Reply, Mr Taylor?

PN323.

MR TAYLOR: Yes, if I could just have one moment. Those instructing me have asked whether I could, before I complete the reply, have five minutes with them. I note the time. My submission that I intended to make was in the order of about 10 minutes long. Would it be convenient – well, it probably won’t be so convenient but could I ask for an indulgence to have a short adjournment?

PN324.

THE VICE PRESIDENT: Is this a real five minutes or is that just a phrase.

PN325.

MR FERGUSON: A real five minutes, I am told.

PN326.

THE VICE PRESIDENT: We will adjourn for five minutes.

SHORT ADJOURNMENT [12.56 PM]

RESUMED [1.04 PM]

PN327.

MR TAYLOR: I thank the Bench for that opportunity. Can I just start by saying this: one could be forgiven, having heard Mr Shariff, to think that his client’s case was to vary to the award to introduce a cap. His client’s case is to not vary the award at all, and consistent with that, there has been no case run to convince the Commission that there is a proper basis to make a fundamental change to the provision, rather there’s been an opportunistic attempt in response to the need to remove discrimination to seek – to fundamentally alter an industry scheme, but without having, as I said, established an evidentiary basis for a need to do so.

PN328.

We, like them, start from the proposition that is set out in the four-yearly review of modern awards decision, which is behind tab 4 of the folder. And particular the Bench there set out, in summary, the general observations that are to be made, and made clear in paragraph 3 that:

PN329.

As a general proposition, where significant change is being proposed, it must be supported by a submission which addresses relevant legislative provisions accompanied by probative evidence properly directed to demonstrating facts supporting the proposed variation. In conducting the review, the Commission will have regard to historical context –

and it goes on to say:

PN330.

Previous Full Bench decisions should generally be followed in the absence of cogent reasons for not doing so.

PN331.

That is, that the notion that is being put, not as their primary case, but in the alternative, that this scheme is in some way inappropriately generous, is something that if they were going to put, that should have been their case, they should have put that forward, and put appropriate material before the Commission to satisfy the Commission of that proposition.

PN332.

The starting point is that the industry scheme arrived at, 30-odd years ago, and placed into the modern award is appropriate subject to a capacity of a party to convince the Commission to alter it, and so the notion that because there is a need to remove a discriminatory aspect, opens the door to some fundamental and wholesale review, which they have not attempted, but nevertheless stand up and submit should now be adopted, we say, will be rejected, and the alternative attempt to say, in effect, to accept that they haven’t put that case, but to invite you to simply find discrimination and then let them put that case, would similarly be rejected.

PN333.

Rather what the approach should be, we say, is to examine this industry scheme, which, by the nature of the legislation, whether it’s more or less generous or it’s simply different to the NES, the legislature has considered that industry schemes are appropriate to include in the award, and determine only so much as is necessary to identify the case that has been put before the Commission, noting that different cases can always be put at different times, but at this stage the evidentiary case that’s put before the Commission is limited to addressing one issue, and one issue only, and that’s the discriminatory effect.

PN334.

As I said, the notion that there should be some fundamental and significant change that emerges out of that, is one that we say the employers simply haven’t attempted to demonstrate. Their submission is no greater than, currently there is a cap. Well, currently what there is is a provision which historically was only intended to limit redundancy payments to the date by which someone was to retire, that they wouldn’t get more pay than that. That’s what the clause was always intended to do. The fact that, over time, it had had the effect of allowing them to not pay people at all, once they hit 60, was never intended.

PN335.

We say that their proposal invites – and they were quite open about this – invites the Commission to examine the rationale for the original quid pro quo. But what follows from that is that they must set out a substantial case to demonstrate that there’s been change that means that the current scheme, the scheme for 30 years, is no longer appropriate. And beyond simply pointing out that it is more generous than other schemes, they have not attempted to make good that proposition. They have not examined the reasons why those particular amounts were considered appropriate at the time. They haven’t attempted to demonstrate there have been fundamental changes in this industry since that would give cause to a different conclusion. And, in short, simply making bald statements from the Bar table, that these things are no longer appropriate or overly generous, is not a proper basis, if one – consistent with the approach to four-yearly reviews, that would lead the Commission to make changes to an award.

PN336.

COMMISSIONER JOHNS: You’ve probably said this, but how was this issue dealt with when the modern award was made?

PN337.

MR TAYLOR: When the award was simplified, and at that point, the provisions remained unchanged, and when the modern award was made, it was inserted, as far as both parties have been able to ascertain, without any reference by either party or the Commission, to this issue. Am I wrong about that?

PN338.

MR SHARIFF: By the consent position. No - - -

PN339.

MR TAYLOR: Sorry, my friend says and it was a consent position. That is true too.

PN340.

MR SHARIFF: Yes. But, could I just correct one thing?

PN341.

MR TAYLOR: But the previous one was a consent position, too. That didn’t stop a lot of debate about it.

PN342.

MR SHARIFF: But if I can just correct that. It was a consent position in 2010. In the award simplification case, which my friend just stated, there was actually a positive submission put by his clients to the contrary effect, and we’ve attached those, and that - - -

PN343.

VICE PRESIDENT HATCHER: But it’s not read into the modern award. It was no longer serving the purpose of operating in conjunction with the retirement age. That purpose had already gone past.

PN344.

MR SHARIFF: Yes, that is true. But at that point the position went forward as consent position. Neither party attempted to change any aspect, whether that aspect nor the aspect about the apparent generosity of the scheme. It was seen as appropriate - - -

PN345.

VICE PRESIDENT HATCHER: Things were still booming.

PN346.

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, different times in the industry I think. There weren’t too many people being made redundant, I suspect, in 2010.

PN347.

MR TAYLOR: Can I just interpose something as to what I was saying while I recollect. Your Honour the Vice President asked what rationale one would find for 14.4, given the existence of 14.2. What at least emerges from the text is that 14.4 are additional payments in certain specific situations, being situations which one could readily infer are situations where it’s less likely that there will be alternative employment in the industry at that time, particularly, in effect, reductions in coal price, but also changes in technology. If there are wholesale industry changes going on, which is going to lead to substantial reduction in employment, then they are the circumstances which give rise to the payment. But I go back to my general proposition that if - - -

PN348.

VICE PRESIDENT HATCHER: I think the decision at page 36, which introduces retrenchment payment referred to the circumstances of the original payment being related to, “natural disasters including, flood, fire, explosion and (indistinct),” whatever that is, at about point 7 on page 36.

PN349.

MR TAYLOR: Your Honour, as I indicated the employers, we say, cannot, in a sense, through the back door, simply assert that, without actually proving that circumstances have changed, demonstrate that the conclusions that were reached then had been seen by the party to be appropriate, and had been adopted by the award. Without actually proving a case that things have changed, there is no proper basis to come to a conclusion that there ought to be a fundamental change to the quantum of the payments.

PN350.

The submission seems to be one that, for our part, my clients, having identified discrimination, they then must justify the whole scheme. They reject that proposition. They say that the scheme is one which there’s an onus on those who are trying to alter it fundamentally to demonstrate as wrong. It was never a proposition that the party coming, seeking to maintain the scheme had an onus to demonstrate why it should stay the same and that, having failed to do so, the Commission should then, in the absence of such material, commence a broad-ranging inquiry.

PN351.

But can I indicate what we say is all that the Commission need do, if the Commission is of the view that it is discriminatory, but that the simple removal of the provision, which we say and press, is the only thing that needs to be done. If the Commission is of the view that my friend’s submissions have some force, that there needs to be some maintenance of some sort of cap, then, in the alternative, my instructions are to put the proposition that the cap should be no more or less than it was always intended to be, that is that the words which were adopted by the original TCR test case, and which were maintained in 2004, can be used in their place, that is, that the redundancy payments are paid to these employees, but shall not exceed the amount which the employee would have earned if employment with the employer had proceeded to the employee’s retirement date.

PN352.

I deliberately not added the word “normal”. There was in the original TCR provision the word “normal”, but that word tends to, in our submission, give rise to potential ambiguity as to what that means in circumstances where there’s no such thing as a normal retirement date any more. But if the Commission accepts the proposition that the original intent of this limitation was no more or less than to avoid an employer having to pay more to an employee than they would have had to pay them if they continued to employ them, then the words can be replaced with such words which will imply - - -

PN353.

COMMISSIONER JOHNS: You don’t think those words give rise to any ambiguity?

PN354.

MR TAYLOR: Well, Deputy President, the words were considered by the Full Bench in 2004, and they considered those words would have effect in two circumstances. One, where there was an industry or employer specific compulsory retirement date, so there was a known date. That doesn’t apply. And the other circumstance was where an employer and an employee had reached an agreement, and they knew that there was a fixed retirement date. Those words were considered to have that meaning then, and those words, in my respectful submission, would have that meaning. That’s not ambiguous. It’s those two circumstances only.

PN355.

COMMISSIONER JOHNS: (Indistinct) can operate relevantly where, at the time of the decision to make people redundant and terminate their employment because of that, a particular employee had indicated to the employer that they were going to retire in two years’ time, or 12 months’ time, I think it was.

PN356.

MR TAYLOR: Yes. I think it would only – it may well be that this can be made clearer by not using these precise words, but certainly my instructions are limited to, for obvious reasons, only so much of, was always intended to be the limit, so to the employee’s actual retirement date. And see, if the word “actual” avoids the ambiguity that has been identified, then it should be included. So, that is, where the employee has a retirement date, then the limitation is one which would bite, but otherwise it wouldn’t. We think that is precisely what was always intended by the limitation.

PN357.

The only other alternative is to specify a monetary cap, but again, we say the employer has not established a case for altering the current provisions. Currently, there is an actual cap, which works out to, in effect, about 80 weeks, because it’s unlikely that someone would have started before 18, and once they hit 58, it starts biting, so it’s around that figure.

PN358.

If subsection (c) is removed there remains, in effect, a cap. It is so long people will continue to work and live, but it will vary based on the individual, and will no longer be based on their age, but simply on their length of service. But we accept that, our primary case therefore, is that one simply can remove this without making any fundamental change. We have established a case to do with that. There’s been no case established for fundamental change vis-à-vis the generosity, or otherwise, of this scheme. All that would need to be done, if you were against us, is limit it in the manner that I’ve identified.

PN359.

VICE PRESIDENT HATCHER: Mr Taylor, I’m assuming that you rely on the decision of Telstra v Peisley to rebut the proposition about when – that the clause does not require an act of discrimination?

PN360.

MR TAYLOR: Indeed. I didn’t deal with it in detail, in my oral argument, but I earlier, when I was on my feet, alluded to the fact that we do rely on it for that purpose, and we have set out that out in our written submissions in reply. Thank you.

PN361.

VICE PRESIDENT HATCHER: Mr Taylor, in the event that we were to reach the conclusion that clause 14.4(c) is not appropriate to remain in the award, and also in the event that we thought that simple deletion of that clause, without anything else being done, was not the appropriate course to take, it is appropriate in that circumstance that we invite the parties to be heard further as to the appropriate variation to the award. And if the parties think it would assist to provide some conciliation about that matter.

PN362.

MR TAYLOR: Yes. My friend has said that is a course open to the Commission. I cannot deny that it is open to the Commission. What my clients certainly would resist is any notion that, having not run the case, as to the need for any substantial change that that – that anything that this Bench would say would give credence to the notion that having, in effect, lost the case they then can start running a whole new case, which they haven’t run to date, and we say that the Bench wouldn’t invite that as an approach at all.

PN363.

MR SHARIFF: Your Honour, may I just be heard on the proposal that Mr Taylor had raised. I think, Deputy President, you’ve raised some practical issues for that. But the practical issues with Mr Taylor’s proposal would be myriad. How would an employer make an assessment, a future assessment, as to when the retirement date of any particular employee would be?

PN364.

SENIOR DEPUTY PRESIDENT HAMBERGER: It’s a question of drafting, isn’t it? If one were to simply have put that the employee shouldn’t receive any more than they would have earned at their retirement age, and then define retirement ages, and agreement in writing between the employer and employee that specified a date on which they were to retire.

PN365.

MR SHARIFF: But what that would lead to, is for employers covered by the award to go to employees and say, “You need to tell me now when you’re retiring.” And that’s the kind of practical difficulty that that’s going to impose on these particular group of employers. That would be an invidious position to place on an employee, equally, it would be an invidious position to place on employers. That’s not the kind of conversation we would be suggesting should be had at the workplace about when, on the thrust of what Mr Taylor wishes to submit to you, employees want to work for as long as they want to work. And one would think, taking up Hamberger DP's concerns earlier, that that may actually lead to the type of discriminatory effects that are sought to be avoided here. We just don’t think it’s practical. It doesn’t meet one of the modern award objectives which is to have a clause or an award that’s simple and easy to understand.

PN366.

As for what Mr Taylor says about onus and not making good a case, it’s his client who’s seeking a deletion of a clause, the result of which would be to impose an economic cost to employers, and he has said nothing about that. And it would be wrong, we would say, as Ross P has indicated in other phase directional hearings in other modern award reviews, that the Tribunal doesn’t operate in these reviews by reason of applications made by parties, it informs itself as it considers fit. We would have thought that the suggestion raised by the Vice President that if a termination was made to invite conciliation or further submission, was an appropriate one in the context of this four-yearly review. That’s all I wish to say in response to Mr Taylor.

PN367.

VICE PRESIDENT HATCHER: Mr Ferguson, what would you say?

PN368.

MR FERGUSON: If I can just indicate that we strongly support the course of action your Honour proposed in terms of allowing parties a further opportunity if you were to find as you have suggested. I make the same point that this isn’t simply an application for a different process. But I also make the point that what’s been proposed by the unions has evolved itself during the course of today, as a matter of fairness we should be given the opportunity to comment on that proposal if that was something to be seriously ventilated.

PN369.

VICE PRESIDENT HATCHER: Yes, all right. If there’s nothing further, we thank the parties for their submissions, and we’ll reserve our decision.

ADJOURNED INDEFINITELY [1.24 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT 1 STATEMENT OF CATHERINE BOLGER FILED ON 20/10/14..... PN17

EXHIBIT 2 AFFIDAVIT OF CATHERINE BOLGER AFFIRMED ON 06/02/15
............................................................................................................................... PN17

EXHIBIT 3 STATEMENT OF DAVID GUNZBURG DATED 12/11/14............. PN20

EXHIBIT 4 STATEMENT OF HANNAH MARTIN DATED 04/02/15............... PN25

EXHIBIT 5 PRODUCT DISCLOSURE STATEMENT OF AUSCOAL SUPERANNUATION FUND............................................................................................................................... PN28

Fair Work Commission Transcripts

AM2014/67, Transcript of Proceedings [2015] FWCTrans 90 (2 March 2015)