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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 57819-1
VICE PRESIDENT LAWLER
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER BISSETT
AM2010/147
s.158 - Application to vary or revoke a modern award
Application by Victorian Employers' Chamber of Commerce and Industry
(AM2010/147)
Clerks - Private Sector Award 2010
(ODN AM2008/7)
[MA000002 Print PR985112]]
Melbourne
10.05 AM, TUESDAY, 19 JULY 2011
Continued from 10/12/10
PN102
VICE PRESIDENT LAWLER: Good morning. Appearances, please. Mr Nucifora?
PN103
MR J NUCIFORA: Thank you, your Honour. I did appear earlier in the proceedings some time ago but before this Bench was constituted before his Honour, the President. Nucifora, initial J, on behalf of the Australian Services Union.
PN104
VICE PRESIDENT LAWLER: Mr McKenney, announce your appearance - your continuing appearance?
PN105
MR McKENNEY: Good morning, I appear for the applicant.
PN106
VICE PRESIDENT LAWLER: I think the question of permission to appear has already been dealt with, hasn't it?
PN107
MR McKENNEY: It has, your Honour, yes.
PN108
VICE PRESIDENT LAWLER: Ms Marriott, good morning.
PN109
MS MARRIOTT: Good morning. I'm not appearing (indistinct)
PN110
VICE PRESIDENT LAWLER: Thank you. And I think your submissions are supported by VECCI?
PN111
MR McKENNEY: That's right - - -
PN112
VICE PRESIDENT LAWLER: And I think, Mr Nucifora, you're holding the candle for the ACTU as well.
PN113
MR NUCIFORA: Thank you.
PN114
VICE PRESIDENT LAWLER: Yes, Mr McKenney? And just - so I understand the situation. Some statements were filed last year, there was an extended program for the filing of additional evidence and submissions. There's been, in fact, no additional evidence filed. There have been some submissions. There's an agreement there's to be no cross-examination, and so it's simply oral submissions supplementing the written submissions by reference to the material filed last year.
PN115
MR McKENNEY: Yes, your Honour, that's essentially so. And it was unclear last week as to the (indistinct) number (indistinct) I can certainly indicate to the Bench that there's no expectation that the matter will continue beyond today.
PN116
VICE PRESIDENT LAWLER: Yes.
PN117
MR McKENNEY: (indistinct)
PN118
VICE PRESIDENT LAWLER: And we're only confined - concerned with the Clerks Award now.
PN119
MR McKENNEY: That is so, your Honour, please.
PN120
VICE PRESIDENT LAWLER: Well, please proceed?
PN121
MR McKENNEY: If the Tribunal pleases, the application in relation to the Clerks Private Sector Award 2010, the application is made under section 157 of the Act. The schedule to the application, dated 1 August 2010 contains the proposed variation to the award. And there are two clauses in question. Clause 11.5, and clause 12.4. And they dealt with part time and casual employment respectively.
PN122
The schedule 1 to the application, dated 1 August, sets out the proposed variation. Clause 11.5 deals with part time employment. And clause 12.4 deals with casual employment. There are essentially three key features in the proposed variation. Firstly, there's an employee initiated request to vary the minimum engagement period; and the second aspect is that the employer would need to agree to the variation and engagement of less than three hours. And, thirdly, it's dependent upon a change being motivated by personal circumstances. And the personal circumstances are (indistinct) in the Act. It's in section 114 (indistinct) and includes family - issues such as family responsibilities.
PN123
I advised - - -
PN124
VICE PRESIDENT LAWLER: The way this phrase is drafted, the employer can't direct or require an engagement for less than three hours. It's got to be at the initiative of the employee.
PN125
MR McKENNEY: That is so. Yes. In relation to the casual employment clause and the proposed variation, one thing that's occurred to me - I've got instructions about, was whether we needed to amend that further. I've advised Mr Nucifora this morning of a proposed amendment to the application.
PN126
VICE PRESIDENT LAWLER: Yes.
PN127
MR McKENNEY: If I could hand up the text of the proposed alteration.
PN128
VICE PRESIDENT LAWLER: Please do. Mr Nucifora, I should just deal with one small piece of housekeeping. The ACTU wrote some time back and applied for summary dismissal of the applications. If my recollection serves me correctly, the indication in reply was that that application would be dealt with today. I take it that there's no - there is no be no separate argument or pressing of that application?
PN129
MR NUCIFORA: No, your Honour.
PN130
VICE PRESIDENT LAWLER: Effectively, for practical purposes it's - it's gone the way of the dodo.
PN131
MR NUCIFORA: Yes, your Honour. In fact, I just checked the forms here and that was, indeed, the case.
PN132
VICE PRESIDENT LAWLER: Yes. Because I think at one point there was - when there were still many awards being the subject of the application, there was some prospect that this would be dealt with as a separate question initially and if it was resolved in favour of the ACTU then that would be the end of the matter. But in circumstances where there's only one award left, I'd assume that the ACTU would effectively abandon pressing that summary judgment application, and you have no confirmed that.
PN133
MR NUCIFORA: Yes, that assumption is correct.
PN134
VICE PRESIDENT LAWLER: Thank you.
PN135
MR NUCIFORA: (indistinct)
PN136
VICE PRESIDENT LAWLER: Thank you.
PN137
MR McKENNEY: Your Honour, this is a - with your Honour's permission, this is a proposed amendment to the application at clause 12.4 would be a sentence added to the end of the proposed variation.
PN138
VICE PRESIDENT LAWLER: Yes.
PN139
MR McKENNEY: And I'd seek leave for that to stand as the - as part of the amendment.
PN140
VICE PRESIDENT LAWLER: I take it you've got no objection to that course, Mr Nucifora?
PN141
MR NUCIFORA: No. It's the first time we've seen it - - -
PN142
VICE PRESIDENT LAWLER: But its - you hardly - you're not going to suggest you're prejudiced by that.
PN143
MR NUCIFORA: No. I indicate it's the first time we've heard today, and the ACTU will (indistinct) on that day.
PN144
VICE PRESIDENT LAWLER: Yes.
PN145
MR NUCIFORA: Your Honour, it's an extension of the same paragraph.
PN146
VICE PRESIDENT LAWLER: Leave to amend is granted. Just for the purposes of the transcript, the schedule to the application is amended by adding to the proposed clause 11.5 and proposed clause 12.4 the following sentence at the end in each case, "where such an agreement is reached between an employer and an employee. The minimum payment of three hours worked will not apply."
PN147
Yes, Mr McKenney?
PN148
MR McKENNEY: Yes. Your Honour, it's important in view of the submissions that have been filed by the ACTU to respond about what is the proper characterisation of this clause, it is put forward as a facilitating clause, in essence, to enable (indistinct) work place between employees and employer about reduction in the engagement period. It's seem as supplementary to the minimum engagement provision of the award. The ACTU have, in their submissions, characterised it as intent by the applicant to remove long standing - - -
PN149
VICE PRESIDENT LAWLER: I take it your position would be the individual flexibility - the flexibility clause in the modern awards is a clause that would enable individual flexibility agreement to be reach in any event to accommodate this. But this simply allows for an agreement without any - as it were, consideration being provided.
PN150
MR McKENNEY: Yes, your Honour.
PN151
VICE PRESIDENT LAWLER: Yes.
PN152
MR McKENNEY: It's complementary to the - to that scheme.
PN153
VICE PRESIDENT LAWLER: But in a sense it doesn't - maybe this is something for Mr Nucifora to think about in due course, but it really doesn't add very much to the facility that is already there by the flexibility clause?
PN154
MR McKENNEY: Your Honour, it's an attempt, essentially, to provide simple arrangement, as it were, under the award for such variation to be made to the arrangement.
PN155
VICE PRESIDENT LAWLER: Yes.
PN156
MR McKENNEY: That's as it is now compared to the other arrangements. It might be a factor in some sense, but what we put forward is a quite simple proposition that's put - - -
PN157
VICE PRESIDENT LAWLER: Yes.
PN158
MR McKENNEY: - - - on that basis. And the question of the use of these types of clauses in awards is not new. I have cause to look back - it's not in the written submissions - I had cause to look back at the Casual Test Case in 2000. The decision of the then Commission, and it's print T4991, a decision of the Full Bench, dated 29 December 2000. And that was a test case in relation to a whole range of matters involving the Metals Engineering and Associated Industries Award as it then was by the AMWU. One of the issues addressed by the full Bench in that case dealt with their engagement provisions, and also facilitating provisions that I've - I want to hand to the Bench an extract from that decision. We'll deal with those matters.
PN159
VICE PRESIDENT LAWLER: Thank you.
PN160
MR McKENNEY: And I've extracted the cover page - the summary - the many issues that were dealt with in that case, and I've extracted paragraphs 132 to 134 that dealt with the Bench's determination in the engagement provisions for casual or part time employees of that award. The Bench determined, as can be seen at paragraph 133 that it was unnecessarily excessive to (indistinct) for a period of six hours, the Bench considered there should be a minimum.
PN161
But for relevant purposes today I draw attention to the last sentence of paragraph 133, the Bench states, and I quote:
PN162
PN163
And then we go to a period for casuals:
PN164
Where an individual employee sees a shorter time to apply for personal service.
PN165
And the point gets made at 134 that:
PN166
In determining a minimum engagement for any particular award that's not set a general standard necessarily.
PN167
And regard is had, I suppose, a suggestion is made - or the point is made by the Full Bench that in setting the period for that award, the Metals Award, but in other awards the facts and circumstances might be different and the needs and aspirations of both employees and employers are different - different awards.
PN168
One of the things that I'll come to in due course in considering section 134 of the Act, which concerns the question of the Metal Awards objective is that question of the minimum safety net being fair and relevant. And the applicant would place emphasis on relevance of that safety net. And one of the issues of relevance is, what are the needs and aspirations of employers and employees.
PN169
Now, that leads to one further document. I don't continue to burden the Bench and my friend a (indistinct) of documents but there's a statistical analysis in the Administrative and Clerical Sector, which is done by the Australian Bureau of Statistics as is done for all different types of occupations on a regular basis. And I had cause to look at the relevant ones for the May of 2011 which is the last - the last up to date figures of statistics.
PN170
Now, I won't claim expertise on suggesting - or analysis. I will hand up an extract
I'm short of some copies, I'm afraid, if the Bench please.
PN171
VICE PRESIDENT LAWLER: Copies can be made. That's fine, if you can hand it up one of the associates will - - -
PN172
MR McKENNEY: Thank you. And one for my friend. My friend might have an advantage over me being the union representative, he might know these figures. They come from the ABS - - -
PN173
VICE PRESIDENT LAWLER: We'll just go through that.
PN174
MR McKENNEY: Perhaps, I can return to that, your Honour, while that's being done. I'm happy to (indistinct) some of the formalities.
PN175
VICE PRESIDENT LAWLER: Mr Nucifora, you've got a copy?
PN176
MR NUCIFORA: No, I don't, your Honour.
PN177
MR McKENNEY: I will wait until they come back. Your Honours and Commissioner, there's - purely for the Tribunal in terms of written submissions as the Bench is aware, there's the submissions dated 8 October 2010, and there's a number of appendices and witness statements which I'll come back to later. There's a short supplementary submission, dated 11 October 2010 in relation to the Full Bench decision on 8 October 2010 in relation to appeals by the (indistinct) Grocers Association.
PN178
I'm jumping now - I'll come back to the ABS statistics and its relevance to the application later. That decision as the Bench is no doubt aware with the Full Bench decision of 8 October 2010, dealt with two important matters in the applicant's submission. The first one is the interpretation in section 157, and at paragraph 23 of the Full Bench's decision, dated 8 October 2010 is extracted in the supplementary outline of submissions, dated 11 October 2010, at paragraph 4.
PN179
The effect of the Full Bench's - - -
PN180
VICE PRESIDENT LAWLER: Sorry, paragraph 4 of 8 October 2010?
PN181
MR McKENNEY: There's a short supplementary submission - - -
PN182
VICE PRESIDENT LAWLER: Sorry.
PN183
MR McKENNEY: - - - dated 8 October 2010.
PN184
VICE PRESIDENT LAWLER: Yes.
PN185
MR McKENNEY: And there's a reference there to what the Full Bench has said about the - - -
PN186
VICE PRESIDENT LAWLER: Yes.
PN187
MR McKENNEY: - - - interpretation. And there's also, in terms of the question that is raised in proceedings such as this under section 157 what the Full Bench refers to at paragraph 27 of the decision and the ultimate question. That's extracted in the advocate's supplementary submission on 11 October at paragraph 9. Whether - the ultimate question being whether the Tribunal is satisfied of the variation it's necessary to (indistinct)
PN188
Now, I won't traverse further the - if I may go back to that document I've handed to the Tribunal. There's two pages to that document. The source of the document is the ABS forms of employment, statistical data. And there's two - there's two pages of statistics relating to the (indistinct) of this year. The first deals with division that is hours of work - the hours of work a casual (indistinct) average hours. So there's a breakdown in the column of hours worked. And the Bench will note that there is a category 1 to 15, 16 to 29, and 30 to 34, which would encompass casual and part time employment as understood under the award. And there's then a proportionate breakdown as to the hours worked by gender comparison between males and females.
PN189
Now, this goes to the applicant's submission about relevance in terms of section 134 that it is clear on the basis of these statistics that there is a significantly high proportion of females employed in a casual - on a casual basis than there are males.
PN190
VICE PRESIDENT LAWLER: Yes. I find this a little intriguing.
PN191
MR McKENNEY: Yes.
PN192
VICE PRESIDENT LAWLER: The first line is zero hours worked, and then the next line is 1 to 15 hours.
PN193
MR McKENNEY: Yes.
PN194
VICE PRESIDENT LAWLER: And yet there's supposedly 12,000 employed doing zero hours. I don't understand how you get employees if you're doing zero hours.
PN195
MR McKENNEY: I always apprehend, your Honour, that I'm - just trying to deal with statistics and I get myself into trouble, and I think I probably just - perhaps - I'm not sure how to answer that.
PN196
VICE PRESIDENT LAWLER: In any event, you're not responsible for explaining the statistics. They are what they are on their face and we interpret them as best we can.
PN197
MR McKENNEY: Yes.
PN198
VICE PRESIDENT LAWLER: But you say irrespective of that wrinkle, it's clear from these figures that females are disproportionately represented amongst casual employees.
PN199
MR McKENNEY: Yes, yes. And in terms of issues about personal circumstances and requisites in the Act of family responsibilities, it is significant that there is a question about the relevance of (indistinct) engagement provisions and how they operate when they may disproportionately affect section of the workforce, in this case, females.
PN200
VICE PRESIDENT LAWLER: Yes.
PN201
MR McKENNEY: And so as that ties in with the question about what might be relevant for the minimum safety net under section 134.
PN202
COMMISSIONER BISSETT: Isn't it true of less than full time hours generally across (indistinct) industries, that women are more highly represented in the group who work less than full time hours than men?
PN203
MR McKENNEY: Commissioner, I - - -
PN204
COMMISSIONER BISSETT: It's not particular to this industry, is it?
PN205
MR McKENNEY: I wouldn't necessarily say it's confined to this industry, and I've not looked at analysis of other occupations, but in terms of this award and it's application and the question of whether the award, as it currently stands, meets the minimum awards objectives, there is questions about the relevance of a provision that requires (indistinct) engaged in circumstances where there may - there is, on the face of it, a disproportionate number of females in forming this occupational category in casual or part time work.
PN206
Now, Commissioner, I don't have to hand, obviously, details about other awards or other circumstances but what I would submit to you, Commissioner, that there's a need to have regard to the application of this award in the circumstances of the history of the clerical employment, which is defined in the award.
PN207
COMMISSIONER BISSETT: This document doesn't tell me anything about what they - what the employee requirements might be though, does it? It just tells me there's more women than men.
PN208
MR McKENNEY: No, it doesn't, your Honour. Obviously, we need to go beyond what the - what the statistics are, which are - that's the proportion.
PN209
COMMISSIONER BISSETT: Yes.
PN210
MR McKENNEY: And what I'm essentially suggesting to the Tribunal is to infer - because of the greater number of females within casual and part time employment in these categories and because of the inferences that can be put on that family responsibilities and personal circumstances, that a question of relevance for a minimum engagement period (indistinct) in terms of what is relevant to the minimum safety net referred to in section 134.
PN211
The second page, if I may, if the Tribunal pleases, then deals with the status of employment by average hours and compares full time and part time. And I won't read out the category, the total is essentially directed at the same point we were making about the question of relevance. It is a very stark disproportionality in terms of number of females employed part time compared to part time employee hours worked.
PN212
VICE PRESIDENT LAWLER: Mr McKenney, we haven't marked anything yet.
PN213
MR McKENNEY: Yes.
PN214
VICE PRESIDENT LAWLER: It's probably desirable just for convenience and reference in due course to mark documents.
PN215
MR McKENNEY: Yes, your Honour.
PN216
VICE PRESIDENT LAWLER: Your primary submission is the submission of 8 October 2010?
PN217
MR McKENNEY: That's so, your Honour.
PN218
VICE PRESIDENT LAWLER: We'll mark that as exhibit VECCI 1.
EXHIBIT #VECCI 1 PRIMARY SUBMISSION OF 8 OCTOBER 2010
VICE PRESIDENT LAWLER: Mr Nucifora, I'm assuming from the nature of the way this case has been conducted that there's not going to be any objections. If I'm wrong in that assumption just speak up at any particular point, will you?
PN220
MR NUCIFORA: No, your Honour, I'm just wondering whether - there's also obviously new submissions.
PN221
VICE PRESIDENT LAWLER: Well, we'll get to them. So exhibit VECCI 1 for the submission of 8 October. The submission of 11 October is the next one, Mr McKenney?
PN222
MR McKENNEY: Yes, your Honour.
PN223
VICE PRESIDENT LAWLER: Exhibit VECCI 2.
EXHIBIT #VECCI 2 WRITTEN SUBMISSIONS OF 11 OCTOBER 2010
MR McKENNEY: And there's a third written submission, your Honour, which is the submissions of the applicant in reply dated 7 December 2010, which is a reply to the ACTUs submission on 23 November.
PN225
VICE PRESIDENT LAWLER: 7 of?
PN226
MR McKENNEY: December 2010.
PN227
VICE PRESIDENT LAWLER: That will be exhibit VECCI 3.
EXHIBIT #VECCI 3 WRITTEN SUBMISSIONS OF APPLICANT IN REPLY DATED 7 DECEMBER 2010
MR McKENNEY: Now, I've indicated - - -
PN229
VICE PRESIDENT LAWLER: Now, the witness statements are all annexures to the - - -
PN230
MR McKENNEY: Yes.
PN231
VICE PRESIDENT LAWLER: - - - to exhibit 2 - VECCI 2.
PN232
MR McKENNEY: Perhaps - - -
PN233
VICE PRESIDENT LAWLER: So they don't need to be separately marked.
PN234
MR McKENNEY: No. What I should indicate, your Honour, because a number of awards have been - applications are very (indistinct) I should indicate the appendices numbers that the - - -
PN235
VICE PRESIDENT LAWLER: I should have said VECCI 1 there, sorry. Yes, sorry, go ahead?
PN236
MR McKENNEY: Now, they are as follows, your Honour: appendices numbers 3 - - -
PN237
VICE PRESIDENT LAWLER: Sorry, these are the ones that are not being relied upon?
PN238
MR McKENNEY: These are the ones that are - there's a longer list of ones being relied upon, your Honour. These are the ones that are being relied upon.
PN239
VICE PRESIDENT LAWLER: Not - are being relied upon.
PN240
MR McKENNEY: Yes.
PN241
VICE PRESIDENT LAWLER: Okay, fine, that's good.
PN242
MR McKENNEY: If that's convenient to do it that way. Appendices 3, appendices 7, appendices 14, 18 - 14, 17, 18, 19 and 20, 21, 23, 26, 28, 31, 36, 40, 43, 47, 48, 51, 52 and 53.
PN243
VICE PRESIDENT LAWLER: So in exhibit VECCI 1 we note that the following appendices are relied upon: 3, 7, 13, 17, 18, 19, 20, 21, 23, 26, 28, 31, 36, 40, 43, 47, 48, 51, 52, 53. The balance of the appendices are not relied upon.
PN244
MR McKENNEY: That is so.
PN245
VICE PRESIDENT LAWLER: Fine. Thank you. I don't think there's any need to separately mark those appendices because they are readily identifiable by reference to the appendices number in exhibit VECCI 1.
PN246
MR McKENNEY: Yes. I've indicated that the - - -
PN247
VICE PRESIDENT LAWLER: Now, is that the end of your - what should be marked next? We should mark this ABS statistics that you've handed up.
PN248
MR McKENNEY: Perhaps, I might - your Honour, perhaps, the amendment, perhaps ought to be marked.
PN249
VICE PRESIDENT LAWLER: Yes. The amendment will be exhibit VECCI 4.
EXHIBIT #VECCI 4 AMENDMENT
VICE PRESIDENT LAWLER: The ABS Statistics Extracts will be VECCI 5.
EXHIBIT #VECCI 5 ABS STATISTICS EXTRACTS
MR McKENNEY: Now, your Honour, as there are submissions in writing and the submissions of the applicant in terms of the primary applications, (indistinct) submissions of the applicant in reply to the ACTU application to have the matter dismissed. I don't intend for your Honour and Commissioner to go into detail of those submissions.
PN252
VICE PRESIDENT LAWLER: Do we need to - do you seek to rely upon it?
PN253
MR McKENNEY: I do seek to rely upon it.
PN254
VICE PRESIDENT LAWLER: In your case in chief as distinct from a reply case. Because the ACTU is not pressing its summary dismissal application.
PN255
MR McKENNEY: Yes.
PN256
VICE PRESIDENT LAWLER: And at first blush one would then disregard all of the submissions in relation to that, but to the extent that you think that they're relevant to your case in-chief, please identify them?
PN257
MR McKENNEY: I'll identify - it will only be VECCI 3, your Honour, that will be relevant in that regard - - -
PN258
VICE PRESIDENT LAWLER: Yes.
PN259
MR McKENNEY: - - - in terms of what's relied upon. What would be relied upon in VECCI 3 is paragraphs 32 and 33 of that submission in reply.
PN260
VICE PRESIDENT LAWLER: So that we can disregard - exhibit VECCI 3 other than paragraphs 32 and 33.
PN261
MR McKENNEY: Yes, yes, that's right.
PN262
VICE PRESIDENT LAWLER: Thank you, Mr McKenney?
PN263
MR McKENNEY: The submission, dated 8 October, is VECCI - - -
PN264
VICE PRESIDENT LAWLER: VECCI 1.
PN265
MR McKENNEY: - - - VECCI 1. Your Honour, it does set out the - - -
PN266
VICE PRESIDENT LAWLER: Mr McKenney, please don't feel like you have to refer to them by exhibit numbers. You refer to them which ever way is most convenient, but I know that when it comes to writing a decision it's going to save a lot of typing if we've got exhibit numbers rather than the narrative descriptions of submissions.
PN267
MR McKENNEY: I understand that, your Honour. And paragraph 7 to 33 of VECCI 1 is where the applicant sets out the statutory context of the applications. I just wish to draw your attention to some key features of that. Firstly, in relation to paragraph 7 itself that an award under section 139 of the Act may include terms about any of the following matters: and I draw attention to paragraph 7 to paragraph (b) and (c). And I've emphasised the words "facilitation of flexible working arrangements, particularly for employees with family responsibilities."
PN268
And also at paragraph (c) "Variation of working hours." And as already submitted that's a feature of the applications. The question under section 157 of course is discretionary in nature. There's two aspects to the application of section 157 in the applicant's submission. The first is that the Tribunal will have to be satisfied - that's the first test. And that's a term that's been interpreted and used on a number of occasions. I don't need probably to address in any detail rather than to say the facts and circumstances must give rise to the circumstances being present for the activation of the discretion (indistinct)
PN269
VICE PRESIDENT LAWLER: Yes.
PN270
MR McKENNEY: I've quoted in the submission a reference to the Coal and Allied Operations about the nature of discretionary powers. In that same decision, there is a reference to the question of the Tribunal being satisfied to the (indistinct) but reference has been made to the facts and circumstances. It obviously depends on the material that's before the Tribunal.
PN271
Clearly, interpreting a provision of an Act, the object of the part, the Act itself - the (indistinct) itself are relevant. Section 134, of course, is describing the Act as the overarching provision in the legislation. So that obviously has to be the critical guidance in terms of whether an application in section 157 will succeed as to (indistinct) facts to be satisfied that it's necessary to achieve what the rules objective (indistinct)
PN272
VICE PRESIDENT LAWLER: Mr McKenney, can I just ask you this question?
PN273
MR McKENNEY: Yes.
PN274
VICE PRESIDENT LAWLER: I just haven't done it myself - or at least haven't done it yet. Have you or someone on your behalf searched through the submissions that were made to the Award Modernisation Full Bench to see the extent to which submissions were made about the subject matter of this application in the modern award proceedings.
PN275
MR McKENNEY: Not specially, no, your Honour.
PN276
VICE PRESIDENT LAWLER: All right.
PN277
MR McKENNEY: Not specifically.
PN278
VICE PRESIDENT LAWLER: My recollection is that the - there's not an awful lot in the submissions about minimum engagements and next to nothing in the decisions of the Award Modernisation Full Bench.
PN279
MR McKENNEY: And I think, your Honour, certainly I was involved - the same applying in those matters - not in relation to this award, in relation to another award. But I think, perhaps, the reasonable explanation - and I think that is correct, your Honour, is because the minimum engagement provisions have been established at the stage in the awards that proceeded.
PN280
VICE PRESIDENT LAWLER: I think it was just - I mean, the practical reality if one is going to be a realist about this on a jurisprudential perspective - - -
PN281
MR McKENNEY: Yes.
PN282
VICE PRESIDENT LAWLER: The practical is that the task was so gargantuan, and not only from the Bench but from the parties as well that efficient well resourced organisations found themselves deeply stretched. I don't need to tell Mr Nucifora this because he was deeply involved in it extensively. But there just wasn't enough time to cover every topic that one would want to cover in the depth that one would ideally like to cover it. And I suspect that this issue of minimum engagements and the extent to which they might be relaxed is something that just never really received the attention that it might have received if there'd been a different set of circumstances where the issue was being considered.
PN283
MR McKENNEY: Yes.
PN284
VICE PRESIDENT LAWLER: It just struck me during that process that often calls were being made on matters in very, very short space of time, but in different historical context would have occupied a Full Bench for weeks of hearing and arguments.
PN285
MR McKENNEY: Yes.
PN286
VICE PRESIDENT LAWLER: And I suspect that this whole topic fell into that category. Mr Nucifora, you can, no doubt, deal with that to the extent that you need to in due course but I just - so that - I think it's necessary, at least, to expose my thinking about this that I don't know that an enormous amount of weight can be attached to the fact that the Award Modernisation Full Bench didn't relax the minimum engagements in the manner that VECCI now seeks to have them relaxed and that really - yes, the prima facie not a vast amount of weight should be to that. So, Mr Nucifora, that's a matter that you can pursue in submissions in due course.
PN287
MR McKENNEY: Your Honour, what might be of assistance is you referring it back to the ACTU submission in attachment 2. It sets out the minimum engagement provisions in relation to this award under pre existing awards. So it's certainly my recollection that the issue wasn't agitated in any way because they were already been established in a number of awards.
PN288
VICE PRESIDENT LAWLER: Yes.
PN289
MR McKENNEY: And further translated - whatever the appropriate term is - to a modern award.
PN290
VICE PRESIDENT LAWLER: I think the magical expression was critical mass.
PN291
MR McKENNEY: Critical mass.
PN292
VICE PRESIDENT LAWLER: If one could find a critical mass in the underlying awards for a particular standard that intended to become the standard unless there was some good reason not to adopt it.
PN293
MR McKENNEY: Yes. The other aspect in terms of interpretation is obviously section 3 and the Tribunal may well know that the appendices that are relied upon come from, in the mains, for employers, and some meetings (indistinct) employers. And that is relevant to section 3(g) where the objects of the Act acknowledge the special circumstances of small and medium size enterprises.
PN294
There's also a reference in the objects to social inclusion, which is a feature of section 134 in terms of the grounds contended for. The applicant has dealt with that issue at paragraphs 27 to 33 of VECCI 1.
PN295
COMMISSIONER BISSETT: Can I ask you, Mr McKenney, how it - how this application addresses the social inclusion issue - - -
PN296
MR McKENNEY: Yes.
PN297
COMMISSIONER BISSETT: - - - given that you actually have to be employed first before you can then request the change in hours? Or are you suggesting that you can request the reduced hours as part of your engagement?
PN298
MR McKENNEY: There's be no reason, Commissioner, why you wouldn't cover that scenario you've just described.
PN299
COMMISSIONER BISSETT: So it could be a condition of employment?
PN300
MR McKENNEY: It could well be. Certainly, from the applicant's point of view, it would be (indistinct) to allow the (indistinct)
PN301
COMMISSIONER BISSETT: So what's the job they apply for?
PN302
MR McKENNEY: The job would be, obviously, the casual employee performing administrative and clerical tasks, Commissioner.
PN303
COMMISSIONER BISSETT: At what hours? I mean, it - the issue - the thing that interests me is this question of if it's at the employee's instigation - - -
PN304
MR McKENNEY: Yes.
PN305
COMMISSIONER BISSETT: - - - how do you protect from the job only being offered at lower hours, at fewer hours.
PN306
MR McKENNEY: Commissioner, the question of - well, I suppose that's - I suppose that's a question of then looking at what is the fair and relevant safety net for section 134 purposes.
PN307
VICE PRESIDENT LAWLER: I think that the Commissioner is identifying a slightly more structural issue - - -
PN308
COMMISSIONER BISSETT: Yes.
PN309
VICE PRESIDENT LAWLER: - - - and that is that in the way that the amendment is cast the request initiates with the employee. If it's a casual employee then - who doesn't have an engagement or no guarantee of engagement, the employer will be engaging them by the employer initiating an offer of an engagement. The Commissioner's question is can the employer offer it be less than three hours, or must the employer offer three hours and then it's for the employee to say, "Well, I'm happy to take one and a half, but not three."
PN310
MR McKENNEY: Yes, I follow, Commissioner and your Honour, and in an endeavour to answer your question, Commissioner, the structure of the minimum engagement under the award, absent the proposed variation, is that it be the - that it be the (indistinct) and then it may arise in the context of a discussion with their respective employee about whether that employee is going to work those hours. There may be a request not to work those hours.
PN311
But it's - but the structure, to answer your Honour's question - the structure as it currently stands, obviously requires absent the variation the need to be engaged on that period. Now, the practicalities of whether someone needs to be engaged first and then they make the request of work to be done as a condition of employment
- - -
PN312
VICE PRESIDENT LAWLER: I think what the Commissioner is really driving at is that how this will pan out in practice for employees, is that it's - it will be the initiative of the employer not the initiative of the employee that is practically operative.
PN313
MR McKENNEY: Well, this clause - this proposed variation is designed (indistinct) an employee directly making the request. Well, the effect of it is - whether - in terms of its drafting and whether it treats that objective (indistinct) in terms of the award might be a different question.
PN314
VICE PRESIDENT LAWLER: Yes.
PN315
MR McKENNEY: The objective is clear. The practicalities of - - -
PN316
VICE PRESIDENT LAWLER: You're not seeking to achieve an outcome where the employer can, at its initiative, dictate an engagement less than three hours? You're not seeking that?
PN317
MR McKENNEY: No, no, no. And that's the - the applicant is very conscious of that, to make it a clause that's initiated by the employee.
PN318
VICE PRESIDENT LAWLER: So you'll have no objection if we were with you and were minded to grant the application, if we adopted a different form of words that ensured that you weren't achieving that objective that you're not seeking to achieve, you'd be content with that?
PN319
MR McKENNEY: Yes. Indeed, indeed. As they say in the classics (indistinct) the drafting might need to cover the contingency that's been raised. But the objective is clear in terms of the application and the process of it as to the employee because of personal circumstances to (indistinct) have a minimum engagement commitment as specified under the award. But the drafting is to have - deal with the issue the Commissioner raised - it may be some further details, some further amendments, some further provision to deal with that issue to cover that scenario - to prevent the employer - that's not the intention of the applicant to prevent the employer dictating what might be his or her preferred (indistinct)
PN320
VICE PRESIDENT LAWLER: Yes.
PN321
MR McKENNEY: What's intended should be clear, I hope, is that it's employee initiated. There's obviously consideration that suits the employer (indistinct) agreement about that, but at (indistinct)
PN322
COMMISSIONER BISSETT: So the employee has to be - so you have to be in employment before you can initiate?
PN323
MR McKENNEY: Yes, well, that's right. And, maybe, raising practicalities, Commissioner, about - if there were discussions going on between the employer and the employee about engagement in some way, how that might affect the operation of this clause. That might be a practical question - - -
PN324
VICE PRESIDENT LAWLER: I mean, you could amend the clause to say, "An employer shall not seek to offer any casual employer an engagement for less than three hours, however" - and then continue with your words.
PN325
MR McKENNEY: That would one way of dealing with it, yes. In the aim of simplicity we've got to make it as simple as possible in terms of employee requesting and the employer agreeing that's - that's what the outcome is.
PN326
I think I've indicated enough in my submission already that the interpretation of section 134 of the Act, which is to ensure the (indistinct) in terms of the additions, is obviously - that's the ultimate - that's the ultimate question that the Full Bench referred to in the 8 October decision last year as to whether the Bench could be satisfied that it achieved that. And the applicant has placed some emphasis of relevance, and relevance in the context of this type of application and the scenario of minimum engagement is that it would need, in the applicant's submission, to be of some utility to both employees and employers to be (indistinct)
PN327
And if the employee saw it as (indistinct) to him or her to have a period less than the minimum engagement then the clause is designed to facilitate that amendment and then hence emphasise the relevance of the (indistinct) of his or her circumstances.
PN328
I'm aware from reading the transcript from - in relation to the (indistinct) appeal was reserved, and I think, your Honour, the Vice President, sat on that appeal in relation to - - -
PN329
VICE PRESIDENT LAWLER: Yes.
PN330
MR McKENNEY: - - - school children. And the clause in relation to that matter and the application there, and I'm aware from reading that transcript that there was an exchange between yourself and counsel for STA about section 134 and what is the issue about what is the test here (indistinct) safely take into account the factors that are listed in section 134. So, in my submission, the question is what is the fair minimum safety net - relevant safety net, whether it was necessary to achieve that objective of having such a safety net described as fair and adequate, and to take into account that there is factors.
PN331
VICE PRESIDENT LAWLER: Yes.
PN332
MR McKENNEY: But it's essentially a composite concept as directed at whether it can be achieved - when I say "composite" if you look at section 134(1)(a) through (h) I think it is, and see whether those factors that might be in play lead to a conclusion that the variation such as ones who appear will achieve a fair and relevant minimum safety net. Now, that's obviously a question of the assessment of the evidence in the proceedings.
PN333
Before I come to the (indistinct) of that evidence, can I say in relation to the ACTUs position on this that it's stated that the test in section 157 sets a significant hurdle and that variations (indistinct) available outside the schedule review of the awards. I think the Full Bench made it clear on 8 October decision that one does (indistinct) on the words of section 157, the question of whether it's necessary to achieve. So it's not helpful to say there's a significant hurdle. That calibration of the ACTU seek to put on the way the Tribunal should assess the application, in my submission, should not be accepted and - - -
PN334
VICE PRESIDENT LAWLER: And this hasn't been finalised yet, but it's more than tolerably clear from the regime that the parliament intended the reviews to be the occasion when what constitutes the safety net of this up for grabs and that there should be a limited capacity only in the intervening period between reviews to vary the safety net and that's what that word "necessary" is there to do.
PN335
MR McKENNEY: Yes.
PN336
VICE PRESIDENT LAWLER: Now, I don't - I'm not saying I disagree with your submission in respect to the ACTU argument, but don't you really have to demonstrate that the safety net as it stands in inadequate for the variation to be necessary - just using that word in the ordinary English sense.
PN337
MR McKENNEY: Yes.
PN338
VICE PRESIDENT LAWLER: By the way you would, no doubt, submit, well, it is defective because there were a group of employees who are being prejudiced in respect of their work, and employees being prejudiced as well, that a proper safety net would eliminate the prejudice.
PN339
MR McKENNEY: In response to a - of course, I accept, there's obviously a statutory regime where the modern awards were made to provide the minimum safety net. There's obviously the statutory scheme itself which is the national employment standards referred to in section 134. There's obviously that review that's referred to in the legislation. But I suppose the window between the time of the modern awards being made and the review, and how that safety net operates and applies, is a question of looking at whether, in fact, it achieves the modern awards objective.
PN340
Saying it sounds obvious in a sense but it's not a question of saying, "Well, it's limited circumstances," it's a timeframe, essentially, between the making of the modern awards and the reviews. And the question for any applicant who comes to seek a variation is whether it can establish that test of necessity to achieve the fair and relevant minimum safety net. And what the applicant says is it has adduced evidence in the appendices referred to that deals specifically with such issues as the difficulty of implementation which is section 134(1)(f) and the impost on business including costs, which is 134(1)(c) - sorry, 134(1)(d) - flexible modern work practices, 134(1)(d) and social inclusions, in section 134(1)(c).
PN341
Now, the Tribunal will note from the form of the appendices that the applicant, VECCI, provide the framework for those statements which deals with the different topics I've just identified, and what the members of VECCI, the employer members who respond is to identify in relation to those issues where there is concerns or issues about the operations of minimum engagement provisions. That's essentially the structure that's been adopted in those - in those witness statements.
PN342
Now, the Tribunal, having admitted the material as an exhibit, can consider whether the material that's adduced does make out issues that are relevant to section 134, bearing in mind the ultimate question that it satisfies the relevant minimum safety net, but what is being attempted to be done here is to identify by employee members who will adopt (indistinct) enterprises where the operation for engagement provision gives rise to the very issues that are relevant for the Tribunal's consideration under section 134.
PN343
Now, the Tribunal will note that the ACTU has responded not by my own contradictory evidence or material (indistinct) but have prepared an attachment 1 to their submission on 27 May 2011 that makes, what I can only refer to, as general observations. Although identified in particular statements that are relied upon by the applicant, makes some very brief comments about those statements. In no way, in my submission, are those comments getting substantive response to the issues that have been raised.
PN344
The Tribunal will note, upon considering the material, that each of the employees have written their own statements, essentially, subject to the - subject to either the structure I have outlined and have provided, provide some degree of authenticity about the circumstances that affect their respective businesses in terms of the application - the engagement provisions.
PN345
So my response to the ACTUs submission is that it's not an effective response to provide a general and somewhat dismissive approach to the material by saying it doesn't identify the specifics in particular circumstances or those sorts - in the absence of why its contradictory evidence to that that's been performed - - -
PN346
VICE PRESIDENT LAWLER: Well, it needs to be said, perhaps, that it's inherently difficult to prove these propositions. In inherently difficult to get evidence to prove them in a practical fashion.
PN347
MR McKENNEY: And I can recall your Honour's observations in the - I think it was the stay application - that the report in the (indistinct) case, it is inherently difficult. The union might say, "Well, you've give, five, six, seven statements, shouldn't you have 20, 30, 40." I mean, it is inherently difficult.
PN348
VICE PRESIDENT LAWLER: It would be far more challenging than that.
PN349
MR McKENNEY: Far more challenging. I'm sure that's referenced. But what the applicant says it's gone to its members about this issue of minimum engagement directly. It says, "How is impacting on your business? Has it affected your flexibility? Has it affected employment opportunities?" And the statement has come back responding to those issues.
PN350
Now, the Tribunal will need to assess that material in light of (indistinct) objective and matters contained in the account, but what I would emphasise is what is paramount in this case is the question of relevance (indistinct) in these circumstances when they go to clerical employees.
PN351
Can I just have a moment?
PN352
VICE PRESIDENT LAWLER: Yes.
PN353
MR McKENNEY: Now, when the Tribunal stands the Tribunal will read the material and you may have already done so, and so I don't intend to go through each of the (indistinct) separately, but I hope I've indicated on the structure our address. I'm obviously content to answer any questions that your Honours may have about any of the submissions or materials that have been put to you.
PN354
VICE PRESIDENT LAWLER: Thank you, Mr McKenney.
PN355
MR McKENNEY: Thank you, your Honour.
PN356
VICE PRESIDENT LAWLER: Mr Nucifora?
PN357
MR NUCIFORA: Yes, thank you, your Honour. I'm not sure (indistinct) I wasn't intended to be too long in our submissions. They won't be (indistinct) process is, there's brevity in submissions. Your Honour, as indicated earlier - - -
PN358
VICE PRESIDENT LAWLER: Before you start, Mr Nucifora, can I just put proposition which - I don't necessarily invite you to deal with right up front, but it's probably better that I raise it beforehand rather than at the end so that you can keep it in mind when you're drafting your submissions. It's got to do with this problem being the intrinsic difficulty of producing cogent evidence of social circumstances - let's call it that way - or the circumstances of employers generally. There's an attempt - I hypothesise an attempt to conduct a survey, for example - that was what was done in the School Students appeal that Mr McKenney was referring to, but constructing a statically and scientifically robust survey is, itself, a very significant undertaking and such a survey will invariably be subject to the trenchant criticisms of academic statisticians and less is (indistinct) robust.
PN359
And it's really quite difficult and certainly a very substantial undertaking to do that sort of research. We know that organisations like Hilder do it, but they're operating almost full time and with very substantial government funding and a little team of academics who beaver away, it makes it rather difficult for these sort of one off cases to be handled in that fashion.
PN360
And it just occurs to me that anecdotal evidence of the sort that VEECI relies upon here ought not be just dismissed out of hand. If it strikes a cord with the Bench's own understanding and sense of what's happening in the society and in the workforce generally, this is a specialist Tribunal, the High Court's had some things to say about specialist Tribunals bringing their specialist expertise and experience to bear, and that that feature of this Tribunal may provide a - in conjunction with anecdotal evidence, a sufficient basis to reach the level of satisfaction that section 157 refers to.
PN361
And it's that, sort of, combination of the anecdotal material with the specialist Tribunal's experience and practical understanding of what happens out there will (indistinct) I refer, perhaps, to the Commissioner rather than myself on that front, but that's something I think you probably need to address at some point.
PN362
MR NUCIFORA: Your Honour, of course, that cuts both ways when unions, on behalf of employees, seek to make their cases - - -
PN363
VICE PRESIDENT LAWLER: Too right. Too right.
PN364
MR NUCIFORA: - - - and we know what the national wage case - - -
PN365
VICE PRESIDENT LAWLER: But I think it's sort of implicit in the application that has been made here and pressed by VECCI that the rationale for minimum engagements is almost implicitly accepted. We know that employees can be exploited. We know that there's significant time and monetary cost involved in an employee getting to and from a job and, you know, they think they're going there for a half a day's work and end up doing one hour. They can be quite significantly prejudiced by that. But it's implicit in the form of the amendment application that's sought here that VECCI recognises that.
PN366
Yes, in any event, I just think that's an issue that you probably need to address at some point.
PN367
MR NUCIFORA: Your Honour, we were seeking to be dismissed of the evidence, but I was going to give some details about that, but not too much, but certainly - - -
PN368
VICE PRESIDENT LAWLER: Sorry, but just so you're perfectly clear - - -
PN369
MR NUCIFORA: Yes.
PN370
VICE PRESIDENT LAWLER: - - - taking - attacking the VECCI evidence is a bit like shooting fish in a barrel, it's pretty easy to do. One swallow doesn't make a spring, neither does seven or eight spiders, how ever many, statements there are, but it's that connection with the specialist Tribunal's experience which is the thing that you need to think about in terms of making some submissions at some point. Thank you.
PN371
MR NUCIFORA: Thank you, your Honour. I might come back to that question of evidence. Your Honour, the ASU supports, of course, the ACTU submissions today and that is that VECCI had not made out a case to vary the minimum hours of engagement. What I wanted to do before I went any further is certainly go to the ACTUs submissions to make sure that they're - any evidentiary materials is there before you as exhibits. Now, I'm relying on everything that was lodged and, certainly, on the Commissioner's website, but - and I may - I don't want to miss anything but, of course, in terms of everything the ACTU have submitted.
PN372
Of course, there are other parties that have submitted submissions but, of course, all those applications - they related to a number of other applications - we were left with this one before you. But I'm just - if I could refer you to the outline of submissions of the ACTU, your Honour, dated 23 November 2010.
PN373
VICE PRESIDENT LAWLER: Yes.
PN374
MR NUCIFORA: That may - if we may tender that as an exhibit - - -
PN375
VICE PRESIDENT LAWLER: Just pardon me a moment, please, Mr Nucifora.
PN376
MR NUCIFORA: - - - if I may, on behalf of the ACTU.
PN377
VICE PRESIDENT LAWLER: Pardon me one moment. So that - those submissions will be exhibit ACTU 1.
PN378
MR NUCIFORA: Yes, your Honour.
EXHIBIT #ACTU 1 WRITTEN SUBMISSIONS OF THE RESPONDENT
MR NUCIFORA: Your Honour, in terms of - if I do miss, I know there's been a few letters to and fro with Fair Work Australia and the Bench, and your office, your Honour, in tendering these exhibits I wasn't seeking to, in any way, take anything away from those other letters. But the next one that ought - that's important in terms of evidentiary material and have been referred to today, is correspondence - it's correspondence with attached tables that - the correspondence is dated 27 May 2001(sic) from Erin McCoy on behalf of the ACTU.
And, of course, those tables have been referred to by my friend, Mr McKenney today.
PN380
We would certainly seek to have that letter and that table - if you like, that bundle of documentation, but particularly the table tendered as evidentiary material.
PN381
VICE PRESIDENT LAWLER: What date was that, Mr Nucifora.
PN382
MR NUCIFORA: Sorry, 27 May 2011.
PN383
VICE PRESIDENT LAWLER: So the letter of 27 May 2011 from Erin McCoy on behalf of the ACTU will be exhibit ACTU 2.
EXHIBIT #ACTU 2 LETTER OF 27 MAY 2011 FROM ERIN McCOY ON BEHALF OF THE ACTU
MR NUCIFORA: That's quite relevant to the remaining matter before you, that is 2010/147, the Clerks Private Sector Award.
PN385
VICE PRESIDENT LAWLER: I'm just looking at the date of those ACTU submissions, Mr Nucifora, are they, again, the primary submissions?
PN386
MR NUCIFORA: Sorry, which ones are they, your Honour?
PN387
VICE PRESIDENT LAWLER: The exhibit ACTU 1.
PN388
MR NUCIFORA: That was the 23rd of the 11th 2010. That's at the end of the submissions, 23 November.
PN389
VICE PRESIDENT LAWLER: Thank you. Yes, go ahead, please?
PN390
MR NUCIFORA: Your Honour, there is a letter, dated yesterday, and other letters, I haven't got the benefit of the full website material tendered before me, but - and I'm seeking to tender this last letter, dated 18 July from Ms McCoy, once again, from ACTU. I'm not seeking to, in any way, downgrade the significance of any other correspondence that was sent to your Honour, but that is the most recent one and it does confirm - sorry, this is 18 July 2011 from Ms McCoy. I think my friend has copies of all of these. And we seek to tender that as an exhibit.
PN391
VICE PRESIDENT LAWLER: Yes, the letter of 18 July 2010 from the ACTU will be exhibit ACTU 3 - sorry, 2011, thank you.
EXHIBIT #ACTU 3 LETTER OF 18 JULY 2011 FROM ACTU
MR NUCIFORA: Thank you, your Honour. Your Honour, as I say, there are other - there are other, I think, letters that were lodged by the ACTU and there may be material within them. I haven't - as I say, haven't got the material within them that are important in this case and don't want - I certainly don't want to take anything away from the submission side of those letters. But the only - as I indicated earlier - - -
PN393
VICE PRESIDENT LAWLER: Pardon me one moment, Mr Nucifora.
PN394
SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Nucifora, I'm just having some difficulty in understand how we're to approach our task. You're seeking to tender some material.
PN395
MR NUCIFORA: Yes.
PN396
SENIOR DEPUTY PRESIDENT KAUFMAN: But then you're saying in relation to the other material that's been filed, some of it's important and you still rely on it. How would you know what it is that you wish on in that other material?
PN397
MR NUCIFORA: Well, your Honour, in the former submissions - and some of those earlier submissions went to timetabling and, in fact, striking out applications. These exhibits that I've tendered before are important ones. I'm not saying they're more important than the others but they do - there is evidentiary material within these - that we'd seek to rely on, whereas the others should be taken in the form of submission.
PN398
So we're not seeking to in any way - but all I'm saying is that if we haven't tendered any exhibits today we weren't seeking to in any way reduce the significance of those submissions - - -
PN399
SENIOR DEPUTY PRESIDENT KAUFMAN: That's what I don't understand.
PN400
VICE PRESIDENT LAWLER: Sorry. I think we are at cross purposes. Mr Nucifora - - -
PN401
MR NUCIFORA: Yes.
PN402
VICE PRESIDENT LAWLER: It's the practice of the Courts never to make submissions as exhibits.
PN403
MR NUCIFORA: Yes.
PN404
VICE PRESIDENT LAWLER: It's the practice of this Tribunal and its predecessor or the practice of many of members of this Tribunal and its predecessor to mark submissions or things that are properly described as submissions as exhibits, even though they don't have the status as evidence as such.
PN405
MR NUCIFORA: Yes.
PN406
VICE PRESIDENT LAWLER: They fall within that rubery gold Chief Justice Barwick's observations in Melbourne Metropolitan Tramways that the Tribunal can act upon unchallenged or uncontested submissions, and so it's convenient to make submissions as exhibits, even though they don't have that full evidentiary status. They only have that qualified evidentiary status Chief Justice Barwick refers to in Melbourne Metropolitan Tramways.
PN407
I think the Senior Deputy President is saying to the extent that you wish to rely upon submission in that way, tell us. And if you want to say the totality, then that's fine, but then we should mark all of them.
PN408
MR NUCIFORA: Well, your Honour, in that case, we should mark all of them. At this stage, what I was going to refer you to in terms of submissions today are in those three exhibits.
PN409
VICE PRESIDENT LAWLER: Yes.
PN410
MR NUCIFORA: And to the extent that - I wasn't seeking to in any prejudice any other submissions that might have been made in passing.
PN411
VICE PRESIDENT LAWLER: No, I think what the Senior Deputy President - if I'm reading his mind correctly, not that he's articulated it, is that it's a little bit frustrating from the perspective for a member of a Bench to be told, "Out there in all that bundle of paper, there's may be something that's relevant and if it is we rely upon it." And then you leave it to us to trawl through it, looking for the relevant material, whereas what we're seeking is the assistance to say, "Well, in that submission it's really paragraphs" - like, Mr McKenney did, "paragraph 32 and 33."
PN412
MR NUCIFORA: Yes. I'll be referring to three exhibits- the three exhibits that are tendered and would seek to otherwise hold up to the Bench in relation to other correspondence that has been tendered.
PN413
VICE PRESIDENT LAWLER: All right.
PN414
MR NUCIFORA: As I indicated earlier, your Honours and Commissioner, the ASU, represented earlier by the ACTU certainly supports a submission in exhibit ACTU 1, 2, and 3. And as indicated earlier we don't believe that VECCI had made out a case in terms of varying this last application before you in relation to the Clerks Private Sector Award, minimum hours of engagement for part time and casual employees.
PN415
Your Honour, you indicated earlier that there was the Award Modernisation Process that a number of wish we didn't have to go through, but we had to. It was parliament had intended and we went through a process where all parties, including VECCI, that all parties had the opportunity to put submissions to the consultation process in relation to a modern award that would replace a number of previous (indistinct) awards and in this case, stay awards, and a number of national, federal awards.
PN416
Your Honour, you indicated that that may not have been a definitive outcome but there were certain calls made and one referred to was, of course, the critical mass of awards. I think your Honour may be - I stand to be corrected, but my figure a phrase, that once first heard yourself refer to - there are a number of awards that were replaced by the Clerks Private Sector Award and the greater majority of those, some of them were indicated, of course, in the - in exhibit ACTU 2, attachment 2. They were the actual State award or State award equivalents in attachment 2.
PN417
But a greater majority of the critical mass of clerical awards, they were unpinning the Modern Clerks Private Sector Award had minimum hours of engagement of three hours for part timers and for casuals. And the Bench at the time was aware that - well, most of the essentials that were required in terms of the safety net and, of course, the various underpinning awards that we now have replaced by the Clerks Private Sector Award.
PN418
But at no stage through that process did VECCI indicate what their position was, or they had any concern with the minimum hours of engagement. Had - they had the opportunity - I think that's the key question, your Honour - they had the opportunity to raise it then, and that was back 2009/2010. We had the exposure drafts. The Bench had come to a decision on what exposure should be and we knew from that - from the clauses before you in question, what the minimum hours of engagement would be.
PN419
Now, we know that the process was quite unique. It wasn't like the old processes that we had pre modernisation where we had extensive cases and test cases. I will say, your Honour, the conditions haven't changed in that time. We're talking about pre 2010, through the award modernisation process, you still have very vulnerable clerical and administrative employees. We know from the ABS statistics that are tendered today, we know that the greater majority of females employees - we have used a - we haven't used ABS in recent times, but generally it's around 70 per cent plus.
PN420
And my friend doesn't dispute the greater majority of female employees - the greater majority of those clerical employees in the private sector are not unionised and haven't been for a number of years. It's a highly ununionised area, so they are award reliant when it comes to some of your basic award conditions. The pay varies, of course, between small and medium large business, but these employees are award reliant when it comes to the safety net and, in particular, minimum hours of engagement.
PN421
Your Honour, had we been prepared for that sort of case through the award modernisation process, that we would have gone down that track. Of course, we didn't mean to because as indicated before, all the parties that were, IAG were there, and there were other employer organisations: I mean, ACCI may have spoken on behalf of VECCI, but VECCI wasn't there. So you had a process of what, we believe, to be a former - I won't call it litigation - but a process that we have accepted as being a package. And there were things that were - - -
PN422
VICE PRESIDENT LAWLER: The bottom line of your position is, "Look, if VECCI or ACCI or IA group, or anyone else had a problem with the exposure draft and the minimum hours clause, they could have said something about it, objected to it, raised the argument, they didn't, and they're stuck."
PN423
MR NUCIFORA: It's an important question, your Honour, because - the employees - the same employees - well, let's face it, we're talking about VECCI, a sectional employer of peak body in Victoria, but we're talking about a particular State. In that State the clerical employees lost 33.3 per cent casual loading. They’re now down to 25 per cent. Now, we copped that as part of the package. I'm talking about unions, and our union, in particular relation to that award. That was a standard. That was part of our approach.
PN424
So, your Honour, we say that if you go post modernisation as I like to call it, post modern - might want to come along and say, "Well, it wasn't one through the litigation of the award modernisation process but we now - we couldn't get it through the front door, we'll now come to the back door and see if we can achieve that." That's something we are opposed to. There's an award review process. That was a window of opportunity to go through the sorts of maybe analysis that you indicated earlier that might require extensive research and academic evidence and surveys, all of that material. That, I guess, was envisaged might have been something that occurred through the award review process.
PN425
Now, your Honour, we've mentioned at the beginning of these applications when there was 80 of them and we knew we had a number of awards before the Bench, that we have raised this concern consistently since the Award Modernisation Bench created the modern award. That if there were applications in between now and the award review, there has to be good reason, there has to be ambiguity or if there are errors - if there were things that were missed through that exhaustive period the banks went through with all the parties. This is not an ambiguity or uncertainty. This is something that's picked up a standard, it was only varied a year or two ago.
PN426
Yes, the legislation has changed since those unpinning awards were created. But that legislation was there and, certainly, in contemplation of the parties when the modern awards were made. So they had the opportunity then to pursue some of the arguments as said to you now. And if they weren't able to achieve it then, then is the award review and we would wait for that.
PN427
Now, we're not all willy white in this situation - I'm not saying that all unions have taken this position but we have tried to stick to a principle not to re-litigate matters that were determined through the award modernisation process. Unless there's an ambiguity, or an error, or an admission, an oversight, a typo - whatever it might be, and to also support, in fact, or not oppose applications by (indistinct) - seek to do that. But it would otherwise wait for the award review.
PN428
And your Honour we say this is outside the award review and it's a political call we understand from the employer community. We understand what happened with the retail industry award but we're getting back to one award here, the Clerks Private Sector Award. We know - it's not surprising that we've left with the Clerks Private Sector Award, VECCI are - the constitutional coverage is the clerical industry. We are left with this one award before you and we are left evidentiary material from, I think, it's 22 witnesses as my friend, Mr McKenney has referred to.
PN429
All of those witnesses are either employers or employer reps - representatives. They're either HR managers, directors, financial controllers. They do range from some of the employers themselves may say so, "It's my business." They are small business people. They are the same arguments that were put up pre modernisation. And if they were going to be put up, put up through the award modernisation process. We didn't give that at that time.
PN430
There is no evidence from employees. And the whole premise of this application by VECCI is that it gives the employees the right to choose. And it's at their instigation - the reality is, it doesn't end up their initiative. More often than not it ends up the initiative of the employer. Now, we don't have all that evidence here before you, but there is no employee evidence, no employee evidence amongst the 22 statements that are there.
PN431
Now, those 22 statements are template witness statements and we were used to that, sort of, approach with matters before the Tribunal and previously before the Industrial Relations Commission, but some of them are unsworn, as I understand, and, of course, they're not available here for cross-examination - some of them I think are unsigned. But even if they are signed, even if they are sworn, even if they were available here for cross-examination - and I raise - - -
PN432
VICE PRESIDENT LAWLER: They're not available here for cross-examination as I understand it by agreement between the parties.
PN433
MR NUCIFORA: I understand - I understand that. It is a question of weighting. Your Honour - - -
PN434
VICE PRESIDENT LAWLER: I don't know about that, Mr Nucifora. We were not advised that the agreement was - that the arguments in relation to weight on account of them not being cross-examined. And I'm sure if that had ever been flagged VECCI would have been saying, "Well, bring them along for cross-examination."
PN435
MR NUCIFORA: Yes, I withdraw that, your Honour.
PN436
VICE PRESIDENT LAWLER: Yes.
PN437
MR NUCIFORA: That aspect of - your Honour, the witness evidence that's there is on behalf of the - - -
PN438
VICE PRESIDENT LAWLER: Just so you're clear, I inferred from the position that the ACTU had adopted that they were confident that even before that evidence was accepted without qualification, it wasn't going to be sufficient to make up a statutory type hearing.
PN439
MR NUCIFORA: Yes. And that's our position today.
PN440
VICE PRESIDENT LAWLER: Yes.
PN441
MR NUCIFORA: Sorry. I withdraw that, your Honour. It - that was an agreed - that was an agreed position between the ACTU and VECCI. But, your Honour, when you look at the witness evidence - and tabled in the exhibit ACTU 2, takes it to that witness evidence. I won't take that any further except, of course, we're now only looking at those witness - the witness statements that were referred to by Mr McKenney. And then, of course, I mentioned before the attachment 2 relates to clerical awards, the major State or equivalent Territory Clerical Awards Clerical Awards (indistinct) award that applied before the modern award.
PN442
And we would say that - as this would have been confirmed through the award modernisation process, that the exposure draft did represent a critical mass. In addition to those awards - that there were several clerical awards that were replaced by the Clerks Private Sector Award and they did have a minimum hours of engagement of around three hours for part timers and for casuals.
PN443
Your Honour, you've indicated earlier - I don't - we're not seeking to say anything further in terms of the evidentiary material before you, your Honour - - -
PN444
VICE PRESIDENT LAWLER: I think in summary your position it's so thin as to the useless, as a proper foundation for reaching the level of satisfaction, that one accept and requires.
PN445
MR NUCIFORA: Yes. And, your Honour, we otherwise rely on submissions that we've made, that the Tribunal shouldn't depart from the decision of the Award Modernisation Full Bench in terms of the Clerks Private Sector. As I guess, in a sense, the applicant here has conceded in relation to the rest of the (indistinct) approach that we're removed. We say the principle is the same and your Honour other than - unless there's any further questions, if your Honour pleases.
PN446
VICE PRESIDENT LAWLER: Thank you, Mr Nucifora. Mr McKenny, is there any reply?
PN447
MR McKENNEY: Just very briefly, if the Tribunal pleases. I just will need to emphasis that this (indistinct) provisions of the current provision (indistinct) the union said - we had an opportunity to deal with these issues of award modernisation. Well, of course, wants needed to exercise the Bench's mind is the operation of the modern award once made. And there's capacity, obviously, when one looks at the legislative scheme in section 157 and section 134 to make an application to vary in that intervening period. So the question is whether one could be satisfied - to use the words of the legislation - it's necessary to achieve that objective. It's referred to in section 134 by reference to the criteria that's in section 134.
PN448
So, I mean, that's the critical question. It's not a - in my submission, it's not - it's directly relevant - - -
PN449
VICE PRESIDENT LAWLER: What the Full Bench did, yes.
PN450
MR McKENNEY: Yes. What was decided the members - the question - it's a contemporaneous analysis - - -
PN451
VICE PRESIDENT LAWLER: Well, as I said, Mr McKenney, there's a sort of a starting point, not an end point, but a starting point that one assumes that the Full Bench satisfied itself that the modern award that it actually made was an appropriate safety net.
PN452
MR McKENNEY: Yes.
PN453
VICE PRESIDENT LAWLER: And to the extent that there was a minimum engagement clause in it, the Full Bench regarded those appropriate.
PN454
MR McKENNEY: Yes. And I've already referred your Honour to what the Full Bench said in the appeal last year for the National Retail and Master Grocers' decision. Obviously, they're relying on paragraph 27. The (indistinct) but the question of the parties of position taken in the - early in proceedings in the making of the award are not relevant to that decision. It's my submission it's not directly relevant, the question is, with respect, whether, in fact, the modern awards objective is now through the current clause.
PN455
The variation - I think there's two questions there. Whether, in fact, the current clause meets the modern award objective and then the second question that flows from that is, essentially, will the proposed variation achieve an objective.
PN456
SENIOR DEPUTY PRESIDENT KAUFMAN: But there seems to be an underlying submission from the union's - or the union and the ACTU and that is you had you go, you didn't raise it this when the modern award was being made, but you didn't raise it in the context of knowing that the modern award would apply for four years until there was a review unless the section 157 circumstances arose. It's almost a form of estoppel. Why should you now raise an issue that wasn't raised, and Mr Nucifora said, there's swings and roundabouts. They lost their casual - part of their casual loading, you've lost part of your flexibility, why - why are you entitled to raise something that wasn't raised.
PN457
I assume you accept that it wasn't raised in the award modernisation procedure?
PN458
MR McKENNEY: Yes, yes, your Honour. It's - - -
PN459
VICE PRESIDENT LAWLER: Because you're not super human, I imagine is the answer to that.
PN460
MR McKENNEY: I certainly accept that, your Honour.
PN461
VICE PRESIDENT LAWLER: Well, I don't mean you personally, Mr McKenney, I mean, people who (indistinct) VECCI it's a peak body, it's a large organisation (indistinct) resources but limited staff and they were, you know, 16 hour days and just couldn't cover everything I'm quite sure.
PN462
SENIOR DEPUTY PRESIDENT KAUFMAN: Is that your answer to my question, Mr McKenney.
PN463
MR McKENNEY: I'm happy to take guidance from (indistinct) Senior Deputy President. It's true to say I was involved with VECCI but it was in relation to another order, but that was our (indistinct) because certain members (indistinct) but be that as it may, to answer your question, Senior Deputy President, the - in terms of estoppel, in terms of how this should operate in the content of this Tribunal, what I would submit, your Honour - and this goes to the question the (indistinct) raised. Well, the onus is on the applicant - is the onus is on the applicant to establish various things that are necessary and you must do them to achieve a modern awards objective.
PN464
But, with respect, the obligation is on the Tribunal to ensure, as a matter of continuity, that the modern awards objective is met. And if a party to a proceeding makes an application that raises issues about whether, in fact, that objective is continuing to be met, whether these can be dealt with. That would be my response, your Honour.
PN465
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, thank you, Mr McKenney.
PN466
MR McKENNEY: And that goes to section 134 in its interpretation and the obligation - the mandatory (indistinct) by this Tribunal on a continuing basis. Excuse me one moment. Just in light of some questions that happened earlier this morning in terms of the structure - (indistinct) the Tribunal was satisfied that a variation was to be made. The applicant would certainly be prepared to contribute further, so to speak, as to the terms of - the appropriate terms of the clause to immediate concerns that the Bench might have. The intention to re-state it correctly is to ensure that the facilitating provisions provided for the motivation of employees as opposed to the employer.
PN467
Just one final thing, we've been marking documents, if it's appropriate to mark the relevant - the ACCI wrote to the Tribunal yesterday in support of the VECCI submissions, it's dated 8 July 2011.
PN468
VICE PRESIDENT LAWLER: The letter from ACCI of 8 July 2011 will be exhibit ACCI 1.
EXHIBIT #ACCI 1 LETTER FROM ACCI OF 8 JULY 2011
MR McKENNEY: Just one final point, my learned friend - my friend raises about no evidence from employees. Evidence has been gained obviously from employer who are members as the applicant, that's not to be unexpected. If the union or the ACTU has got a concern about the state of evidence - they've had the opportunity, itself, to bring contrary evidence if, indeed, a different view was taken.
PN470
COMMISSIONER BISSETT: Mr McKenney, can I just - just on that evidence, I've just had a quick glance through - I've had a chance to have a look at the witness statements and, in particular, the ones you rely on.
PN471
MR McKENNEY: Yes.
PN472
COMMISSIONER BISSETT: And I might be wrong, there might be one or two that are otherwise, but it seems to me that all of them are employers who operate in some primary industry, that's not the clerical industry. So they're manufacturers, or in transport and logistics, or retail or somewhere - so the awards that apply to them are the clerical award, but subject to this application, but also a number of other awards that they mention in the statement. And then they make a range of statements about the operation of the minimum engagement.
PN473
MR McKENNEY: Yes.
PN474
COMMISSIONER BISSETT: How - in terms of what the Vice President raised before in terms of our general knowledge, you know, the area in which we operate - how am I to know whether the complaint is about restrictions in the Clerks Award, or restrictions in the Pharmacy Award or the Manufacturing Award or the Construction Award, because they don't seem to distinguish in the witness statements in terms of having looked through them about whether there are problems with the Construction Award or the Clerks Award that apply in their particular business.
PN475
VICE PRESIDENT LAWLER: Yes, where it's a (indistinct) that they're clerical employees or they're production employees as the case may be.
PN476
MR McKENNEY: Well, Commissioner, I don't think should (indistinct) obviously we've adduced evidence about the number of the awards - I accept what you say, there is - in some of the statements, that is not necessarily made clear. I accept - accept that it's not obviously made clear, but what is attempted to be done here, Commissioner, is to be asking for - if your covered by certain awards, do those awards - generally speaking - do they inhibit you in certain ways, other issues about the evidence is directed at that question.
PN477
COMMISSIONER BISSETT: A number of them, for example, operate in the retail sector and one assumes they are tied up in other proceedings. They have an interest in other proceedings, not a direct interest, but a general interest in other proceedings.
PN478
MR McKENNEY: I suppose the Tribunal - from a litigation point of view in terms of assessing evidence, the applicant has put forward the evidence, but the respondent to this application, those who oppose the application need to make out some sort of case that rebuts the submissions. But, in my submission, it's not going to go anywhere.
PN479
SENIOR DEPUTY PRESIDENT KAUFMAN: That's because their case is that you haven't made out your position.
PN480
VICE PRESIDENT LAWLER: Yes. The onus of proof is on the applicant I think is the - - -
PN481
MR McKENNEY: The - - -
PN482
VICE PRESIDENT LAWLER: - - - of the opponent's case.
PN483
MR McKENNEY: In my slight variation to that view, your Honour, is that the onus is that the Tribunal ensure that the awards, as a continuous (indistinct) maintain the (indistinct) and that's the submission - - -
PN484
VICE PRESIDENT LAWLER: Thank you, Mr McKenney. Mr Nucifora, do you want to say something more?
PN485
MR NUCIFORA: Just very briefly, your Honour, and I raised this, I think, the first day this matter was heard before this Bench was constituted before the President. Once again, concern about the integrity of the Award Modernisation Process, whatever we said through that process and post that, we're going to face the full force of that integrity of modern awards as of later this week and over the next coming weeks with the loss - the termination of modernisable instruments, NAPA and all those State awards.
PN486
So we have come to accept what we've got as modern award, including the Clerks Private Sector award, then we have to confront the reality, coming out of that, that there are going to be awards terminated and they could potentially be employees award (indistinct) we're going to try and argue the case. And there will be loss of conditions out of that. And, of course, we're putting the case for the loss - - -
PN487
VICE PRESIDENT LAWLER: The conditions are already lost, aren't they?
PN488
MR NUCIFORA: Sorry?
PN489
VICE PRESIDENT LAWLER: Conditions are already lost, aren't they? The modern awards have been applying since - - -
PN490
MR NUCIFORA: Yes.
PN491
VICE PRESIDENT LAWLER: - - - 1 January.
PN492
MR NUCIFORA: Yes. Those - all of those awards took a long time to create at the State and Federal level, but they were - they are going - your Honour, I'm just - what I want to go back to my original point in this matter, and that is the integrity of the award modernisation process is challenged each time there's application like this that goes to the fundamental question not seeking the very - for ambiguity and uncertainty. And I don't - and, certainly, in terms of witness evidence, it's difficult enough to get employees to be witnesses in a case where unions or employees - or unions are applicants, let alone when we're seeking to respond to matters listed. If your Honour pleases.
PN493
VICE PRESIDENT LAWLER: I take it you don't have a response to that, Mr McKenney?
PN494
MR McKENNEY: No, your Honour. I just say this: you did ask Mr Nucifora the question about interaction between what you'd referred to (indistinct) other evidence - making specialist Tribunal. They were given a response to that, if the Tribunal pleases. And it goes to - before I make - - -
PN495
VICE PRESIDENT LAWLER: I don't - I'm quite sure I know what the answer is if he was going to address it specifically which is, "Well, whatever advantage the specialist Tribunal has it doesn't overcome the deficiency of evidence in this case." That's his case and you've got your case. I understand that.
PN496
MR McKENNEY: In my submission, it's not a direct characterisation as to (indistinct) all that's being offered is really a preference to something different. There is actual evidence adduced that's not responded to in any substantive way.
PN497
VICE PRESIDENT LAWLER: Yes. Thank you, Mr McKenney. We'll reserve our decision.
<ADJOURNED INDEFINITELY [11.44AM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #VECCI 1 PRIMARY SUBMISSION OF 8 OCTOBER 2010 PN219
EXHIBIT #VECCI 2 WRITTEN SUBMISSIONS OF 11 OCTOBER 2010 PN224
EXHIBIT #VECCI 3 WRITTEN SUBMISSIONS OF APPLICANT IN REPLY DATED 7 DECEMBER 2010 PN228
EXHIBIT #VECCI 4 AMENDMENT PN250
EXHIBIT #VECCI 5 ABS STATISTICS EXTRACTS PN251
EXHIBIT #ACTU 1 WRITTEN SUBMISSIONS OF THE RESPONDENT PN379
EXHIBIT #ACTU 2 LETTER OF 27 MAY 2011 FROM ERIN MCCOY ON BEHALF OF THE ACTU PN384
EXHIBIT #ACTU 3 LETTER OF 18 JULY 2011 FROM ACTU PN392
EXHIBIT #ACCI 1 LETTER FROM ACCI OF 8 JULY 2011 PN469