PN1

JUSTICE ROSS: Good morning. Is there any change in the appearances? No? I note Mr Booth is observing. Other than that, it looks like the appearances are the same. Ms Burke?

PN2

MS BURKE: Thank you. Good morning members of the Full Bench. In the ACTU's closing submissions this morning I have four broad topics that I would like to address. The first is the legal issues that the Full Bench needs to determine; second, something briefly about the merit of the application; the third broad topic concerns some operational matters; fourth, I will address some of the outstanding evidentiary issues.

PN3

So as to the legal issues, I have grouped them into uncontroversial matters, somewhat contested matters and contested matters. The uncontroversial matters I'll just quickly identify. The first of those is the legislative framework. All parties - by which I mean the ACTU, the Australian Industry Group and the Australian Chamber of Commerce and Industry - don't take issue with the Commission's observations regarding the applicable legislative framework as set out in the first background paper.

PN4

Second, on whether the Commission has jurisdiction to amend personal carer's leave to enable award‑covered employees to access it for the purposes of taking family and domestic violence leave, all parties say that this would contravene section 55 because it would exclude the beneficial effect of that entitlement. I understand that the MGA don't press their submission to the contrary now. Third, on changes to the unpaid model leave term, this question has really crystallised into the question of removal of the model leave term from a small number of modern awards and I understand all parties agree that the proposed variations to those awards should be made.

PN5

Fourth, in what I hope is now an uncontroversial matter, there was a question about whether the ACTU's claim will regulate over‑award payments. We have responded to that in the second background paper; to question 8. I just want to clarify that it's not the ACT's intention for modern awards to regulate what I might describe as contractual rights. That is, a contractual entitlement to a payment that is above the award minimum. We understand the operation of modern awards in that sense.

PN6

Now, looking at what I've categorised as somewhat contested matters, the first of those is the Commission's proposed approach to this review and that is identified in the second background paper at paragraph 32. The ACTU and the Australian Industry Group agree that the approach proposed by the Commission is permissible, but ACCI cautions against it. It contends that the Commission should not adopt the provisional view that a particular determination should be in all modern awards without being satisfied that the determination is necessary for the individual award and that to do so would create a reverse onus, and that section 157 requires the Commission to make an assessment and at award‑specific level.

PN7

I just want to briefly say three things on this topic. The first is that there's nothing in section 157 that requires the Full Bench to make an assessment at an award‑specific level, but, in any event, that is precisely what the Commission is proposing to do with its approach. Second, given this review is continuing under section 156, something I confess I had missed until it was pointed out in the Commission's first background paper, section 156(5) applies which provides that the requirement to review each modern award in its own right does not prevent the Commission from reviewing two or more awards at the same time.

PN8

Third, I'll just refer to and repeat the ACTU's February submissions at paragraphs 23 and 24 on this topic. The ACTU's position is that the process proposed by the Fair Work Commission does not contravene section 156 or section 157.

PN9

Next, on the question of change in circumstances, which might be described as a mixed question of fact and law, ACCI have confirmed that they are not contending that there's any jurisdictional requirement that the Commission be satisfied that there has been a material change in circumstances since 2018 before it can make the variations sought by the ACTU, or, for that matter, any variation in any other terms, but it has reframed this concept as a merit issue, the relevant proposition being that there should be - quoting from the submissions at 7.14:

PN10

There should be some justification or rationale for a different decision by the Full Bench in 2022 than the one arrived at in 2018.

PN11

In my submission, this is still problematic because it simply dresses up the material change in circumstances test in different clothing, converting it from a jurisdictional threshold to a merit threshold, whereas, of course, the Commission's exercise of its power in this review is not so constrained.

PN12

It is also problematic because it mischaracterises the nature of the 2018 decision. As I stated in opening submissions, the 2018 decision was stated in terms to be a cautious regulatory response and the Full Bench expressly reserved to revisit the question of whether provision should be made for paid family and domestic violence leave after the unpaid term had been in operation for three years, and so here we are and, in that sense, the door has never really closed on the question of paid leave.

PN13

Given that, it means that the correct starting point for this review is not, as suggested, I think, in ACCI's submissions, the starting point is not that the Commission reached a definitive conclusion in 2018 and any proponent of a variation has to persuade the Full Bench that that decision was either wrong or has been substantially overtaken by new events, and it also means that ACCI is wrong when it suggests that a different result in this review to the decision in 2018 would be akin to - and I'm quoting - 'an arbitrary change of mind by the Full Bench.' That's at paragraph 7.16 of its submissions. This is wrong because the Commission did not definitively make up its mind in 2018.

PN14

So, it is open to the Full Bench to make the decision it considers appropriate and which is consistent with the relevant legislative provisions, unconstrained by any material change in circumstances test, whether that is jurisdictional or merit based.

PN15

JUSTICE ROSS: Ms Burke, just in relation to that, speaking for myself, I see the force in the proposition that ACCI may be overstating the significance of the 2018 decision. That said, though, you accept in your written submissions that changes in circumstances between the time of that decision and now are relevant to our determination in this case. I didn't take it that ACCI was saying that the relevant test is any different to the statutory test, which is: are the changes proposed necessary to ensure that the relevant award achieves the modern award objective?

PN16

As for the decision being wrong, I'm not sure they characterise it that way. I wonder if I can just test, perhaps with each of you, this proposition. I would think - look, again, speaking for myself, in the normal course, if there was to be a decision in favour of paid leave in some form or another, then it's likely that there would be an explanation as to, well, why has that result been arrived at now when that wasn't the decision in 2018?

PN17

Accepting your point that I think the position in respect of the 2018 decision is perhaps more nuanced than put by ACCI, it was a cautious response and it was plainly foreshadowed that the issue would be revisited. Nevertheless, at that time, the Commission did determine that it wasn't satisfied that paid leave was necessary to achieve the modern award objectives in modern awards.

PN18

I had taken Mr Arndt to be saying, in essence, that, well, if we're minded to grant the ACTU's claim in any respect, then we should articulate why, and we should articulate why by reference to why have we adopted that course now when a different course was adopted in 2018. Mr Arndt can correct me if I'm wrong about this, and I may have misconstrued his submission, but I hadn't taken it that he was advancing his point as a merit threshold, but rather that we should be transparent in our decision-making and, if we arrive at that position, articulate why, and that would obviously include a discussion of the 2018 decision.

PN19

MS BURKE: Yes.

PN20

JUSTICE ROSS: So I'm not sure it's - look, it may be, Ms Burke, that I've misread it, but that's how I had seen it. Look, it might be convenient to ask Mr Arndt and then go back to you, Ms Burke, and just see if we can get some clarity around this point about exactly what's being put.

PN21

I don't say this pejoratively, Mr Arndt, but your position has evolved over time. I think it was at least characterised in a provisional way in the background paper as perhaps raising the need, a jurisdictional need, to establish material change in circumstances and you have clarified that that's not the case and it's the relevant statutory provision that govern it, but can you, perhaps without responding - because you will have an opportunity to do so to what Ms Burke has said about the change in circumstances - but can you respond to what I've put?

PN22

MR ARNDT: Yes, your Honour. To clarify, or for what it's worth, the intent wasn't at the outset to put forward a jurisdictional argument. The argument that we've put may have changed in expression, but it remains the same and it's as you put it. Perhaps leaving aside what I think might be a bit of a red herring in terms of the material change in circumstances test, what we're putting is the much more fundamental proposition, which is that decisions of the Full Bench should generally be followed in the absence of cogent reasons for departing from them.

PN23

It's a fairly fundamental proposition and I think you have put it in a very simple and clear way, perhaps that we didn't, but that is all we are putting: if the Full Bench is to come to a different decision now, it should provide reasons for doing so and, I must say, I imagine it would.

PN24

JUSTICE ROSS: All right. Thanks, Ms Burke, sorry for interrupting.

PN25

MS BURKE: Not at all.

PN26

JUSTICE ROSS: Is there anything further you wish to say on that point before you move to - - -

PN27

MS BURKE: Yes. So, just briefly, certainly, you know, we are very pro transparency in terms of explaining the decision in 2018 and a decision in 2022, if, of course, it is different. Certainly I'm not arguing against that for a moment. It's just that I think it's important to characterise the 2018 decision in the terms I have suggested. I'm not saying it was provisional, but it was cautious and it expressly reserved certain matters for later consideration. And I think also what I want to emphasise is not that it's necessary to demonstrate that something has changed between 2018 and 2022 but that there may be some differences in the evidence, for example, before the Commission in that time.

PN28

By way of example I can candidly say that the ACTU's evidence on the likely cost of the provision, I think, is improved in 2022 to what it was in 2018. And that may be a relevant difference but that doesn't necessarily reflect any change in the circumstances. So I hope that addresses the point.

PN29

But I think it's possible that with the exchange with Mr Arndt it might be - this topic could be moved into the non-contested section of my notes but we will await that outcome.

PN30

Now in terms of legal issues that are contested there's really one significant one which is the interaction or the intersection of the ACTU's proposed claim with the National Employment Standards and this is put in two different ways.

PN31

First, ACCI have submitted that the ACTU's claim is inconsistent with the NES because it's unfair and confusing and irrational for Award covered employees to have an entitlement, that is to paid Family Domestic Violence leave, it's different to the NES and that Award-free employees don't have.

PN32

And the Ai Group make a similar submission which is in their submissions at paragraph 96. And I have assumed, of course, that this point is directed to the merit of the ACTU's claim and not any legal impediment to granting it. I will come to the Ai Group's submission on section 55 shortly.

PN33

But with that caveat there is no single set of minimum entitlements. The Fair Work Act, including via sections 55, 134 and 139 plainly contemplates the Modern Awards can contain terms covering similar subject matter but in different terms to that provided for in the NES, subject of course, to section 55.

PN34

So it follows that the mere existence of differences between the terms of an Award and an NES provision in respect of the same entitlements like leave is not a relevant consideration to determining whether a proposed variation is necessary in order to meet the Modern Awards objective.

PN35

As to the Ai Group's contention at paragraph 92 of its 28 March submissions that the NES unpaid leave entitlement is a comprehensive scheme that submission is unsupported by analysis is wrong and it should be rejected.

PN36

The second limb of the ACCI argument - if I can put it that way - is that it's unfair, confusing and irrational for Award covered employees to have an entitlement that Award-free employees do not have. And, really, the only thing I need to say about this argument is that if it's accepted it could have the effect of quite radically rewriting section 136 and related sections of the Fair Work Act, and introduce new non-statutory element to the test in section 138, and in sections 156 and 157.

PN37

Now, separately the Ai Group contends that the ACTU's claim would contravene section 55 of the Act. The submission is that the clause would exclude the NES - the NES provision for unpaid leave - because in practical terms Award covered employees would first utilise the paid leave provision, and then the unpaid NES entitlement.

PN38

And we have addressed this argument in our February submissions at paragraph 16 to 22. The Ai Group's response in its 28 March submissions do not advance their argument or alter the ACTU's response. Nevertheless, I am going to say a few more things about it.

PN39

As stated, the gist of the Ai Group's submission is that a more favourable Award term - in this case, of course, the paid Family and Domestic Violence leave - will exclude, for a period of time anyway, the less favourable NES entitlement and thereby contravene section 55(1).

PN40

The Full Bench will, of course, be familiar with the orthodox authorities on the meaning of section 55(1), which is that a provision of the NES will be excluded by an Award if the term would:

PN41

'In its operation result in an outcome where employees do not receive in full or at all the benefit provided for in the NES.'

PN42

That's from Re: Canavan [2014] FWCFB, 3202, at paragraph 36. 'Or would negate the effect of the provision in accordance with the alleged NES inconsistencies.' [2015] FWCFB, 2032.

PN43

So the Ai Group's submission can only succeed if it can establish to the requisite state and satisfaction that an Award term that is more favourable than the NES terms, such that it is utilised first for the NES terms, has the effect - and I am quoting here from the AiG's submissions at paragraph 67, 'Has the effect that employees do not receive a benefit under the NES.'

PN44

That argument fails because, first, there's no evidentiary basis for the proposal that employees will only utilise the paid leave provision, not the unpaid leave provision. Employees may need both. And, in fact, the ACTU's clause expressly contemplates that they will.

PN45

Second, there's no basis and authority for the proposition that a more favourable Award term is property characterised as depriving employees of receiving, in full, the NES benefit.

PN46

And, third, and in any event, Award covered employees will still have access to the NES entitlement. And they still can receive the benefit of it. The NES entitlement is not excluded by operation of the ACTU's clause. Unlike the facts in some other authorities, dealing with this issue, employees are not required to use the Award clause before they use the NES clause or otherwise constrained from accessing it.

PN47

As stated in the February submissions, the Ai Group hasn't identified any authority in favour of what I will characterise as a quite courageous submission that a more favourable Award term, or looking at the full words in section 55(1), more favourable enterprise agreement term is 'exclusionary' within the meaning of section 55(1).

PN48

Instead, the Commission is told at paragraph 69, the text of section 55(1) does not expressly or impliedly provide that a term of an Award or an agreement - sorry, I have just cut off my own notes - term of Award or agreement that is more favourable in the NES terms does not exclude it.

PN49

Essentially, the Commission is urged to construe section 55(1) as stating a term that might be more beneficial to an employee does not exclude the NES. And this interpretation, in my submission, very considerably strains the meaning of the text and is unsupported by ordinary principles of statutory construction.

PN50

The other basis on which the Ai Group says that the ACTU's proposed variation offends section 55 of the Act, is they would - 'Negate the effect of the NES provisions that provide for a scheme of unpaid leave in specific circumstances at paragraph 67.'

PN51

And this construction necessarily depends on a finding that the NES entitlement is intended to cover the field with regard to Family and Domestic Violence Leave. But there's nothing in the legislation to support this finding. And there are numerous sections of the Act that make it clear that instruments such as Awards and Enterprise Agreements can include terms that deal with leave.

PN52

The ACTU's primary position is that the term is permitted by section 139(1)(h). It is not prohibited by section 55 if it doesn't exclude the NES entitlement. And so that really is the end of the matter. If necessary, we also rely on section 55(4) in that the term is supplementary to the NES entitlement.

PN53

And I frankly acknowledge that that provision is perhaps most applicable to the unpaid leave component of the ACTU's claim, and that is addressed in any event, in the February submissions at paragraph 22.

PN54

So I am turning now to the merit issues. I am sure I will be corrected if I am wrong about this, but both ACCI and the Ai Group acknowledge that paid Family and Domestic Violence Leave is desirable, or at the very least is beneficial for some employees.

PN55

It seems to me that the issue is really in this space between desirability and necessity. And as the ACTU has submitted consistently and repeatedly, while unpaid leave is necessary it is not sufficient to constitute a minimum safety net in the terms and conditions of employment for affected employees.

PN56

The authorised absence from work in such circumstances, which the unpaid leave entitlement delivers, is the bare minimum for affected employees to maintain their connection to employment, but, as the Full Bench observed in the 2018 decision, the minimum safety net of terms and conditions in section 134(1) is more than the bare minimum. The safety net must also be fair and relevant. The evidence that we've addressed in our submissions on evidence demonstrates that paid leave is necessary for the safety net to be fair and relevant.

PN57

The Ai Group acknowledges that the Commission has power to vary modern awards in terms that might otherwise or also be taken up by Parliament. It candidly acknowledges that its preference is that paid family and domestic violence leave be introduced by legislative amendment. I note it appropriately acknowledges that this preference is not a legal impediment to the Commission making the variation sought by the ACTU.

PN58

However, the Ai Group contends that the Full Bench should, relevantly - I'm reading from paragraph 91 of their submissions - 'have regard to, and be guided by, the approach adopted by Parliament', but why is that? In essence, the submission is that this Commission should as a matter of merit subordinate its role to Parliament, should infer from Parliament's lack of action that it has determined that paid family and domestic violence leave is not appropriate or necessary and should follow Parliament's lead in this regard. Obviously there is no basis in the legislative scheme for this approach.

PN59

Nor does this approach make sense in light of the facts, which is that in respect of unpaid leave it was Parliament that followed the Commission's lead, if there was any leading and following at all. Parliament did not independently determine that unpaid family and domestic violence leave should be in the National Employment Standards. It took, if I may say with great respect, unprecedently rapid legislative action as a direct result of and as guided by the 2018 decision.

PN60

This isn't acknowledged or even addressed in the Ai Group's submissions, but the Ai Group has put a proposal to government that there be a government‑funded scheme for five days' family and domestic violence leave and this proposal does raise a number of matters relevant to the review. The first of those is that it must be implicit in the Ai Group's proposal that they accept there is a need for such a scheme. At the very least, they consider that paid family and domestic violence leave is meritorious.

PN61

It says that the Full Bench should not infer from the proposal that the Ai Group considers it's necessary, but that really does beg the question as to why the Ai Group would propose a scheme that isn't necessary. If I had someone to cross‑examine, I would of course ask them ask them about that.

PN62

Second, it must follow from the Ai Group's proposal that its concerns expressed in this review about the impact on employers of paid family and domestic violence leave, other than the cost of leave, are exclusory at best and outright invention at most. I'm sorry, it's a little difficult to hear. Did I cut someone off who was perhaps asking a question? No? Okay.

PN63

JUSTICE ROSS: I think it was just a cough.

PN64

MS BURKE: Okay, good. Thank you. So in particular the Ai Group's submissions about the potential impact on productivity, the regulatory burden of replacement costs for employees who are absent because they're on family and domestic violence leave, training for employers, et cetera, et cetera, are either not real or they are capable of being managed and minimised.

PN65

Third, the Ai Group proposal compared to its position in this review does raise legitimate questions about whose interests the Ai Group are representing in this review. What I mean by that is who is the Ai Group speaking for when it makes submissions about the impact of the ACTU's proposal on employers, specifically which employers?

PN66

Now, part of the answer to that question can be found in the Ai Group's rules, which are available on the Commission's web site. They show that the Ai Group, as we know, is a registered organisation. It has branches in New South Wales, Victoria, South Australia and Queensland, and the objects of it include promoting the interests of the industries represented in it and to, among other things, participate in -

PN67

advocacy processes including promoting or opposing legislative or other regulatory measures affecting or likely to affect the industries.

PN68

Those industries, in rule 4.1, mean:

PN69

The metal trades industries, the metal trades and manufacturing industries.

PN70

It is by reference to that industry that a person is eligible to be a member of the Ai Group, so accordingly - and this is my fourth point - the Commission should steadily bear in mind that as a registered organisation the Ai Group represents a fairly limited sector of Australian employers and from only four out of eight states and territories in Australia.

PN71

It does not have a mandate to represent or speak for a broad range of employers across Australia and so its submissions about the interests of employers should be limited to employers in the metal trades and manufacturing industries.

PN72

VICE PRESIDENT HATCHER: Ms Burke, are the interests of those employers likely to be, for the purpose of this, significant different from any other employers?

PN73

MS BURKE: Well, as to that, Vice President, I note that just 20 per cent of the manufacturing industry operates under an award. The rest are under an enterprise agreement or individual arrangements or owner/managers, so it's not - at least with respect to the manufacturing industry - a sector that is heavily award‑dependent so there may be some caveat with regard to that.

PN74

The manufacturing and metal trades industries is, in terms of employees, predominantly comprised of male employees, so those are factors relevant to keep in mind. My overarching point is that there isn't a mandate - the Ai Group doesn't have a mandate to speak on behalf of all employers and that those industries should be kept in mind.

PN75

There is no evidence before the Commission about those employers' position regarding paid leave. Buried, I might say, in the Ai Group's submissions at paragraph 156 is a statement that no criticism should be made of the Ai Group for not calling the evidence for employers because it can't compel its members to give evidence and, anyway, people are quite busy and there are limited resources; but, given that the Ai Group's purpose or on of them is to engage in advocacy in processes such as these, that isn't really an illuminating response.

PN76

Both parties say, 'Well, we are not seeking a variation so we don't bear any evidentiary burden here and we don't need to put on any evidence from any employers', and that submission really misses the point. It's not sufficient for a party opposing a claim to simply come up with a list of objections and then say, 'Well, you, moving party, haven't addressed any of these.' If a party is making a positive assertion, such as here where there is a lot of submission about the impact on employers, then that party should make good the factual basis of the assertion.

PN77

Where there is a certain catastrophising quality to some of the submissions on the impact of employers, it should be borne in mind that many of the impacts such as the replacement costs for employees are already being experienced where employees take unpaid leave and yet there is nothing from any employer who says, 'This impact of having to replace employees who are on unpaid leave has been burdensome, disruptive or otherwise problematic.'

PN78

In light of these matters and the seemingly contradictory position that the Ai Group has adopted in this review compared to its proposal for a publicly funded scheme, its submissions concerning the interests or conduct of employers should be treated with caution.

PN79

Now, as to certain operational issues, these have been addressed in the ACTU's final submissions but I do want to say something briefly more about the definition of 'family and domestic violence' and something very quickly about casuals. As to the definition, the ACTU has proposed a small but important expansion of the definition of 'family and domestic violence' in the Act to include violence from a member of an employee's household and this expansion is opposed.

PN80

ACCI say that this would lead to an extraordinarily complex scenario and would be unworkable and inappropriate to have different definitions in the NES compared to awards, and the Ai Group say the expansion is far too broad. These submissions, respectfully, overstate the impact of the proposed amendment. It is not a wholesale rewrite of the definition. It is simply an expansion in one small way of the eligible criteria and that is not unusual in the context of modern awards.

PN81

It was precisely in fact what happened, albeit in a far more detailed way, as a result of the family‑friendly work arrangements case. Modern awards now contain additional provisions to the statutory right in section 65 to request a flexible working arrangement, and the award clause refers to section 65 and then prescribes additional obligations on employers and employees.

PN82

Something very similar and far less complex could be arranged here. The award clause could refer to the statutory definition and note that, in respect of an award entitlement, it also applies to violence by a member of a person's household.

PN83

JUSTICE ROSS: Sorry, Ms Burke, in practical terms, what is that capturing that the statutory definition doesn't? Just looking at the definition of 'immediate family' in the Act, what are we capturing that's not captured there?

PN84

MS BURKE: The definition in section 106B of The Fair Work Act, does your Honour have that?

PN85

JUSTICE ROSS: Yes, got it.

PN86

MS BURKE: I think it's 106B(2):

PN87

Family and domestic violence is violent, threatening or other abusive behaviour by a close relative of an employee -

PN88

and then we are proposing adding in the words 'or a member of an employee's household that' - et cetera, et cetera - no change.

PN89

JUSTICE ROSS: Subsection (3) says a close relative is - leaving aside (b):

PN90

(a) is a member of the employee's immediate family.

PN91

MS BURKE: Yes.

PN92

JUSTICE ROSS: And then 'immediate family' is defined in section 12.

PN93

MS BURKE: Yes, that's right.

PN94

JUSTICE ROSS: I'm just trying to work out who would be in a household who is not part of the immediate family?

PN95

MS BURKE: Well, there are circumstances where people have flat mates or house mates who they may live with for any length of time and, in those circumstances, it is a domestic living arrangement and there are numerous definitions of family and domestic violence in state criminal legislation where family and domestic violence includes violence by a member of a person's household. We have identified those in our written submissions and I'll get the reference for you.

PN96

JUSTICE ROSS: All right, thank you.

PN97

MS BURKE: I'll come back to that reference, if that's all right.

PN98

The Ai Group puts forward a further objection to the ACTU's proposed definition of family and domestic violence, or, I should say, a different objection. It contends that the clause would require employers to exercise a degree of judgment over whether the conduct that the employee has been subject to is - and I'm quoting here:

PN99

properly characterised as violent, threatening or abusive, or whether it seeks to coerce or control the employee, causes them harm or to be fearful.

PN100

The Ai Group says:

PN101

This is a difficult and confronting assessment that would be plainly difficult for employers to make in some circumstances and it will require the employers to assess the intent of a perpetrator's actions and potentially the feelings of the employee in order to assess if the obligation to provide paid leave arises.

PN102

This is referred to in the Australian Industry Group's submissions at paragraphs 144 to 146 and 169.

PN103

This submission is completely misconceived. Neither the NES entitlement nor the ACTU proposed clause requires an employer to conduct this sort of inquiry. Instead, both provide a right for an employer to request reasonable evidence that the employee is experiencing FDV.

PN104

This is a very similar mechanism available to personal leave. Employers are not expected to investigate whether or not an employee is in fact experiencing a personal injury or illness. This would, of course, be highly inappropriate and completely unworkable. Rather, the National Employment Standards provide an employer with the capacity to request evidence that would satisfy a reasonable person that leave is in fact taken or sought to be taken for the stated reason. In effect, an employer can seek expert assistance on the question.

PN105

Certainly there is no evidence before the Commission that any employer has grappled with these issues since the introduction of the unpaid leave entitlement, so the Ai Group's submission about what employers might be required to do is pure hypothesis and based on a misreading of the proposed clause.

PN106

I also just want to say something briefly about casual employees and section 15A of the now Fair Work Act, which is raised as having the potential to introduce some complexity to the ACTU's clause. The purpose of the casual definition legislative changes was to overturn aspects of the common law which required a court to assess the substance and totality of an employment relationship in order to determine if an employee was truly a casual employee, so as to limit back pay claims by employees who claimed to be wrongly classified.

PN107

Section 15A then defines a casual employee by reference to offer and acceptance. There is nothing in the section that precludes or conflicts with the provision of paid leave, or unpaid leave, for that matter, to casuals. In other words, access to leave is not a relevant factor in determining if an employee is a casual employee.

PN108

So, it's really not clear what the difficulty is with section 15A. If an employer satisfies the requirements in that section, then the employee is a casual employee, but there's nothing in 15A and the related provisions that is inconsistent with any instrument, including the NES or awards, that provides paid or unpaid leave to casuals.

PN109

VICE PRESIDENT HATCHER: So how do we know when a casual would have otherwise been working, particularly, for example, if they are not a casual who's on a roster?

PN110

MS BURKE: Yes, so that's by reference to the amended clause that the ACTU provided on 28 March.

PN111

VICE PRESIDENT HATCHER: That's the one at the end of the submissions?

PN112

MS BURKE: I'm sorry?

PN113

VICE PRESIDENT HATCHER: Is that the one at the end of the submission?

PN114

MS BURKE: Yes, it is. The answer to your question, Vice President, is it is determined by reference to the rate of pay. So, if they have worked - if they have a roster, then that answers that question. Otherwise, you look at the average of what they earned in the previous six weeks, and if it's very, very little - - -

PN115

VICE PRESIDENT HATCHER: But that tells you what they should be paid if they took the day.

PN116

MS BURKE: Yes.

PN117

VICE PRESIDENT HATCHER: I'm asking you a prior question, that is, how do you tell what is a working day for the purpose of a casual who is not on a roster, that is, there's a sort of casual you might be working frequently, but the sort of casual you bring in as needed.

PN118

MS BURKE: Yes.

PN119

VICE PRESIDENT HATCHER: How do you tell what is a working day for that sort of employee so that they can take it off and be paid in the first place?

PN120

MS BURKE: It's about the right to refuse work without there being consequences that the employee is otherwise not engaged. Can I just take a moment to mute myself and confer with Ms Ismail? Sorry. Yes, thank you, so, Vice President, yes, it's about the employee's availability to work. So, if, for example - I'm aware that there are examples where a casual employee will say, 'Well, I'm available this week and you can call me for any shift' and people have rung up in the morning and told, 'Can you come in, we've got a shift for you.' In those circumstances, the employee is entitled to say, 'No, I can't, I need to take family and domestic violence leave on this day.' If that happens, then the rate of pay available to them is as calculated in clause (c).

PN121

VICE PRESIDENT HATCHER: I mean the conceptual problem is that an employer has no right to bring them in anyway, so really they're saying, 'Well, yes, I accept the shift, but I'm going to take it off and get paid.' Is that the way it looks?

PN122

MS BURKE: Yes, that's right.

PN123

VICE PRESIDENT HATCHER: All right, thank you.

PN124

MS BURKE: Turning to the evidence, as to the Duncan reports, everything that we wish to say about that has been covered in the submissions and in the response to the background paper. And can I thank, in particular, the Commission or the Commission staff who prepared the background paper of Professor Duncan, the summary of his analysis, which was very clear and saved me and perhaps everyone a lot of time in having to go through those topics now.

PN125

I just want to reiterate with Professor Duncan's evidence that his estimates are based on actual data derived from the personal safety survey and other credible sources, including HILDA, about how many workers affected by family and domestic violence, took time off work as a result. And that his estimates, properly tested are that, first, if the predicted proportion of eligible Award covered workers take 10 days' paid leave a year, the total cost is $17 million.

PN126

If eligible Award covered workers take less than 10 days, in accordance with Dr Stanford's 2016 estimates, the total cost is naturally less - about 13 million. And if doubled the predicted proportion of eligible Award covered workers takes a full-time 10 days paid Family and Domestic Violence leave the total cost is $34 million. And there is nothing in the employer's submissions, or in their cross-examination of Professor Duncan that has undermined these conclusions at all.

PN127

Relatedly though, the Ai Group asserts that the ACTU consistently understates the extent to which an employer may be impacted by the claim. And here, just to be clear, I am addressing points that are summarised in the second background paper at 283 and 285, which we foreshadowed in the ACTU's response filed yesterday would be addressed today. That's a reference to paragraph 17 of the ACTU's response yesterday.

PN128

So now I am going to respond to it and by way of illustration the Ai Group relies on Dr Stanford's evidence that a workplace with a thousand full-time workers could expect to incur about 45 additional days of leave per year, which the Ai Group says equates to over two months of paid leave. And then it makes the type of submission I have been expressly warning against being accepted at face value. It says, 'This would amount to a significant additional costs disruption and regulatory burden.'

PN129

Well as to disruption and regulatory burden those costs are already being incurred if they exist and are absorbed via the entitlement to unpaid leave. And as to employment costs taking the example relied on by the Ai Group indicates those costs are likely to be proportionately miniscule.

PN130

An employer with a thousand full-time permanent employees, which is the example in Dr Stanford's evidence has to pay or make provision for 20 days' annual leave for each of those employees. Twenty days for a thousand employees is 20,000 days per year or the equivalent of 54.7 years of annual leave.

PN131

And it's on this basis that the Ai Group says an additional two months of leave, in this scenario, will cause significant additional costs et cetera. The submission is completely out of proportion to the reality.

PN132

As to the Stanford Report most of those but not all of what we need to say about the Stanford Report was covered in our response to the background paper, except for a few matters which I will now address. And the first of those is at paragraph 13 of the AiG's submissions where it states that: 'A number of opinions expressed by Dr Stanford, and without reference to any source or basis.'

PN133

It might be helpful if members of the Full Bench could have Dr Stanford's report to hand. And I'll just give you the relevant court book references. The first of those is page 909. Do members of the Full Bench have that?

PN134

JUSTICE ROSS: Just bear with me for a moment, Ms Burke.

PN135

MS BURKE: Yes.

PN136

JUSTICE ROSS: Was it at court book 509?

PN137

MS BURKE: 909.

PN138

JUSTICE ROSS: 909.

PN139

MS BURKE: Or paragraph 10 of the Dr Stanford report if you're working off that as an independent copy.

PN140

JUSTICE ROSS: No, that's fine. I think we've got it.

PN141

MS BURKE: Thank you. And to be clear these are the - I'm going now to the examples or the parts of Dr Stanford's report that Ai Group criticised in its submissions. So the first of those is at paragraph 10 from the fourth sentence onwards, which starts: 'Costs to employers from domestic violence include lost work time.' I'm just going to skip - read it in a brief summary way.

PN142

JUSTICE ROSS: Yes.

PN143

MS BURKE: Reduced productivity, higher turnover - et cetera, et cetera. The proposition that costs to employers from domestic violence include lost work time, reduced productivity at least is not a proposition I understand to be contested. Surely, it's self-evident. Similarly, with higher turnover resulting in an increase for equipment and training costs a similar point is made. As to the risks of violence spilling over into the workplace itself that is the footnote to report by Ludo McFerran that makes with that. But as I say I don't understand this to be a hotly contested proposition.

PN144

The next of those, on the same page - sorry, over the page at paragraph 15 - from the second sentence onwards, starting with - 'But being able to undertake legal medical relocation and other measures to address their situations', et cetera.

PN145

This paragraph 15 is part of Dr Stanford's report which he describes as providing a general discussion of the economic costs of domestic violence, including impacts on work, absenteeism, productivity retention, turnover and other variables. It's relied on by the ACTU in that sense which is part of the general discussion.

PN146

Next, is paragraph 31, which is at court book 914 towards the bottom and it's the fourth sentence which starts: 'Second, some of the organisations which provide paid FDV leave through terms of EAs may also have some employees whose terms and conditions are set according to Modern Awards. In some cases those workers may already be covered by paid FDV leave.'

PN147

This is expressed as a possibility, not a definitive conclusion, and in any event surely it's not an opinion, but a fact. It is certainly a fact, or at the very least a possibility that some organisations which provide leave through enterprise agreements may also have the employees in other departments, locations and classifications whose work - who are covered by Modern Awards but who, nevertheless, have access to the entitlement. So there's nothing in that that is so fatal.

PN148

And, finally, paragraph 90 to 92 are criticised on the basis of not having any source or to them, but of course what those paragraphs are doing is expressing Dr Stanford's conclusions, based on his review of the data in the preceding section.

PN149

So, for example, if you look at paragraph 88, Dr Stanford indicates there: 'The preceding discussion indicated' - et cetera. And then his opinion is that it's an insignificant change in working hours that would not be observable in aggregate economic data. This section begins on page 931 of the court book, Part 5 Responses to Specific Questions. And it follows the discussion and the analysis in the preceding section.

PN150

So that's part of the first objection, if I an put it that way to Dr Stanford's evidence. Then there's a submission that the Commission should apply findings in the Shav case in respect of Dr Stanford's evidence to this case. And that is really not an appropriate submission at all.

PN151

Whatever the deficiencies that the Fair Work Commission found in Dr Stanford's evidence in that case they cannot simply be imported to this evidence, and there's no basis anyway to do so. Dr Stanford's conclusions are explained by reference to the data, about which I might add there didn't seem to be any difficulty in cross-examining Dr Stanford about, and there's no conflation of sources as there was in the SCHADS case.

PN152

The second criticism of Dr Stanford's evidence is that his conception of family and domestic violence is not on all fours with the ACTU's definition and that this undermines its relevance. The Ai Group points to reference PN 923 of the transcript in support of that submission. I might just read it out, if that's the most convenient. It's not long. Dr Stanford was asked:

PN153

You there deal with various, I think you characterise as 'economic aspects of domestic violence'. When you say 'family and domestic violence' in your report, what do you mean?

PN154

The answer is:

PN155

I'm understanding in what I would consider to be the common usage of the term as being people who experience violence or psychological abuse at the hands of members of their family, including their spouse, or potentially other members of their family, even children.

PN156

Now, this definition appears to capture all of the ACTU's claim other than possibly violence from household members and, in any event, of course, all data sources proceed from the definitions of family and domestic violence that may have minor differences, but the substance of the definition is the same, and it's really hardly a basis for throwing out the research. This criticism is, in my submission, at the margins of relevance.

PN157

Finally, in the sense that I'm addressing the criticism of Dr Stanford's evidence that are not addressed in our response to the background paper filed yesterday, finally, Dr Stanford is criticised for not accounting in his estimates of the costs of family and domestic violence leave for employee replacement costs, that is, if somebody's on leave, whether or not you bring someone in, a temp or a casual, to replace them.

PN158

These costs, if they need to be incurred at all, as I have stated, are already being incurred as a result of the unpaid leave entitlement and, in any event, as Dr Stanford observes in paragraph 81 of his report, which is what this criticism is directed to, his estimates in that paragraph are based on a deliberately high utilisational rate and also do not account for the proportion of the workforce who already have access to paid family and domestic violence leave. So, it's already an overestimate - we have been careful with that - and so any criticism that it doesn't take a different cost into account is absorbed by reason of the overestimate.

PN159

Now, as to the lay evidence, the conclusions to be drawn from the lay evidence are as set out in our written submissions. Primarily, the debate around the lay evidence is about the weight to be given to that evidence. We have set out why we say that evidence should be given considerable weight.

PN160

Both opposing parties have made a really extraordinary submission, which is that this Commission, which is not constrained in the way in which it can inform itself, which is not bound by the Rules of Evidence, which is required to conduct proceedings in a manner free from technicalities and which, of its own motion, is conducting a review which is not an inter partes dispute, to nevertheless apply the strictest possible construction of the Rules of Evidence, in substance if not in form, and simply disregard or exclude from consideration evidence from 10 witnesses of considerable professional standing, who have years of experience working with persons affected by family and domestic violence, who have given evidence based not on one person's opinion or observation or experience but based on years, in some cases decades, of observation, whose qualifications, training and experience was not challenged in any way and whose evidence was not challenged or contradicted in any way.

PN161

It is my submission that if the Fair Work Commission were to take the step of simply rejecting or giving no weight to all of this evidence, it would constitute a fairly radical departure from the Commission's usual approach.

PN162

As to the specific allegations made by the Ai Group, or submissions, I should say, made by the Ai Group, working from the background paper summary at paragraph 169, which was reserved for answering today, in the first dot point there, the Australian Industry Group suggests that what the ACTU's lay witnesses have been told by people they have worked with may or may not be true.

PN163

With great respect, there is no evidence that people routinely lie about their experiences of family and domestic violence and it is simply not rational or credible to suggest that it's an odds on chance that half of what the witnesses were told was not true. It's much more likely that the experiences conveyed by the persons affected by family and domestic violence to these witnesses are truthful and the witnesses accurately conveyed what they were told.

PN164

Moreover, if the Ai Group were going to contend that it was possible that what the witnesses were told was not true, then it could, and arguably should, have put that to our witnesses, meaning, for example, they could have said, 'Did you know if this was true? Did you take any steps to independently verify it?' Had the Ai Group done that, I could have sought to explore in re-examination, for example, whether the person's report was typical of what they'd observed or been told over the years and the matter could have been explored and interrogated in that way.

PN165

As to the criticism that parts of the evidence, the lay evidence, concern unidentified persons, that is addressed in our submissions on evidence at paragraph 23. It is simply not rational to expect that a witness giving evidence of their observations drawn from their professional experience should be expected to identify each and every person from which that evidence is drawn.

PN166

VICE PRESIDENT HATCHER: Ms Burke, to be clear, those parts of the evidence which was admitted on a limited basis, that is as evidence of what persons were told, what use do you seek that we make of that?

PN167

MS BURKE: Certainly we accept that it's admitted as evidence of what they were told, but it doesn't prevent the Commission from determining that what they were told and their reporting of it is credible and, when viewed as a whole, the preponderance of the evidence goes to support of the conclusions that the ACTU identifies. So, we have numerous witnesses saying that they have observed or been told by people that, for example, a reason for not proceeding with legal proceedings or seeking health care and so on is because they don't have enough money and they're worried about taking time off work. So, the weight of all that evidence, viewed collectively, is consistent with - it's internally consistent and should persuade the Commission that that is a factor relevant to its consideration of this application.

PN168

VICE PRESIDENT HATCHER: Thank you.

PN169

MS BURKE: To the extent that the criticism is maintained that the ACTU didn't call evidence from any person who has experienced family and domestic violence, this was addressed in our opening submissions. But, of course, even if we had called evidence from employees who have experienced family and domestic violence and the witnesses were cross-examined and their evidence was not undermined, I can boldly predict that the Ai Group would now be saying to the Full Bench, 'Well, this is evidence of one person, it's not representative of employees as a whole, it's not even representative of employees in a certain sector or industry here.'

PN170

The reason I can confidently predict that is because that is precisely the approach they've taken in respect of other evidence in this case, for example, Ms Walsh's evidence and Ms Jones' evidence, which is summarised in the final three dot points on page 50 of the second background paper.

PN171

In relation, finally, or sub-finally, to Dr Jones' evidence, we don't contend that her evidence is representative of all employees who have experienced family and domestic violence, but it is representative of some.

PN172

In relation to Ms Kingston's evidence, the attack there is that her experience is limited to Queensland. Well, yes, of course, Ms Kingston's evidence doesn't establish that the process of applying for protection orders in Queensland is identical to the process elsewhere, but that's not really the point. In all relevant senses, Ms Kingston's evidence is consistent with the evidence of other witnesses on this topic, including Ms Craig and Ms Parker, both in New South Wales, and that is that the commencement and continuation of legal proceedings is time-consuming and whether or not a person can afford to continue to take time off work is highly relevant to their decision to proceed. Further, I note there is nothing special about Queensland or New South Wales that suggests that people interacting with the courts in those states have unique experiences that are not highly likely to be replicated across the country.

PN173

Now, finally, the Commission provided an information note and some additional references in a statement released on Tuesday. I do want to say something briefly about those and I will do that now, but I might just note that certainly in respect of the two research papers, the ACTU has prepared a very useful - for my part - summary of those two papers. If it would be helpful we can provide those, but I'll just perhaps tell you what I think are the highlights from those two reports.

PN174

The first of those is the Australian Domestic and Family Violence Death Review Network Data Report. What that report shows is that family and domestic violence can often be fatal, mostly for women more than - sorry, the next point is that only approximately one‑third of all homicide offenders and victims were engaged in paid employment at the time of the homicide.

PN175

The reason this is relevant the report identifies, or significant, is because they say workplaces can offer an additional side of intervention for domestic and family violence, so that point really undermines the significance of the workplace in terms of being a mechanism by which somebody can ameliorate or deal with the effects of family and domestic violence.

PN176

I think this statistic is quoted in our second background paper response. The report demonstrates that perpetrators used a wide range of physical and non‑physical violence to dominate or control their partners in the lead‑up to the homicide, and that the period leading up to and immediately following separation involves a heightened level of risk. These points are relevant because one of the suggestions made by the opposing parties is that it may be the case that different forms of violence justify leave, whereas others do not. The response to that, which I said, is in our second background paper response. It's that there is really no relevant basis to distinguish between forms of violence in that regard.

PN177

Then the second paper that is identified in the statement is the 'Economic insecurity intimate partner violence in Australia during the COVID‑19 pandemic'. This was an analysis of an online survey of over 10,000 adult women aged 18 and over in Australia. It demonstrated that there was strong evidence of a relationship between economic insecurity and recent family and domestic violence.

PN178

Now, the paper says that it's not clear from the survey whether the relationship between the two is one of causation or correlation. For our part it doesn't matter; correlation is sufficient. In other words, there is a correlation between economic insecurity and family and domestic violence is a reason for introducing paid family and domestic violence leave.

PN179

That paper also found that economic disparity within relationships was associated with family and domestic violence leave even after controlling for economic insecurity. So, in other words, it's not just about whether you are economically insecure before the violence happens or during it. It's about the disparity within the relationship itself and that's consistent with matters that have been identified in our submissions.

PN180

As to the Australia government budget papers and statements, very handily summarised in the information note, the only two things I need to note about that is that the initiatives funded indicate that leaving violence is costly and difficult, and there are recognition of that, but that in any event no provision is made for paid family and domestic violence leave. So to the extent that there is a hope out there that this will be dealt with by Parliament, that certainly has not been realised. Thank you. Unless there are any questions, those are the final submissions of the ACTU.

PN181

JUSTICE ROSS: I had two matters I wanted to raise with you, Ms Burke.

PN182

MS BURKE: Yes.

PN183

JUSTICE ROSS: Just in relation to your submission responding to the questions put in background paper 2, in particular at paragraphs 3 to 5 - this is where you deal with the over‑award point.

PN184

MS BURKE: Yes, yes.

PN185

JUSTICE ROSS: The other issue that arises is that the rate of payment that the ACTU is proposing in respect of paid family and domestic violence leave differs from the rate of pay that is prescribed in respect of paid leave in the NES. For example, the payment for annual leave and the payment for paid personal carer's leave are both at the employee's base rate of pay or the employee's ordinary hours of work in the relevant period.

PN186

'Base rate of pay' as defined in section 16 does not include overtime or penalty rates or the various matters that you seek to include.

PN187

MS BURKE: Yes.

PN188

JUSTICE ROSS: That is by, you know, applying the same logic that ACCI raises in relation to differences between the NES and the award provisions, and it's also one of the matters put against you in relation to the proposed change to the definition for access. Then it could also be said that providing a different payment method may give rise to some confusion and complexity.

PN189

MS BURKE: Excuse me, sorry. Yes, I mean, the fact that there might be differences between the award and the NES is not by itself a reason not to grant the claim. The merits of seeking a rate of pay at the rate that we are seeking have been addressed in our submissions. The fact that there is a difference is not by itself sufficient, we say, so, yes, I accept of course that the base rate of pay is payable in the NES for other types of paid leave, but nevertheless this is the rate of pay that the ACTU considers is appropriate in the circumstances.

PN190

JUSTICE ROSS: All right. My final question in relation to your submission goes to paragraph 12 of your submission in response to the background paper. Can I take you to that.

PN191

MS BURKE: Yes.

PN192

JUSTICE ROSS: I have re‑read paragraph 102 of your July submissions and paragraph 47 of the ACTU's December submissions. It's not clear to me how those paragraphs reference any evidence to support the proposition that supplementary unpaid leave of the nature that you're seeking in the claim is necessary in the section 138 sense.

PN193

MS BURKE: Yes, I understand. Just a moment, please.

PN194

Yes, your Honour, the necessity of the additional unpaid - supplementary unpaid leave for five days - arises from the fact that if somebody continues to need time off work to deal with family and domestic violence and, of course, we're dealing with very limited proportion of people in this circumstance, then the need continues to exist regardless of whether leave is available or not. And so it's appropriate that it continue to be available. Other than that I don't have anything to add other than what is in our written submissions.

PN195

JUSTICE ROSS: All right. Thank you. Are there any other questions for Ms Burke, from my colleagues? No? All right. Thank you, Ms Burke. Mr Arndt?

PN196

MR ARNDT: Thank you, your Honour. Can you hear me all right?

PN197

JUSTICE ROSS: Yes.

PN198

MR ARNDT: It's been noted a number of times the parties have been afforded considerable opportunity in these proceedings to convey their positions in writing. Equally, the Full Bench has been able to ask a number of questions of the parties prior to the hearing and the issue of the information notes and the background papers, which have been both very comprehensive but also very helpful I might say. And between those submissions and the background paper responses, from my part broadly what can be said, has been said, so I will be mercifully brief this morning.

PN199

I want to make a few short points. The first point relates to the relationship between these proceedings and the four-yearly review proceedings or it's variously been described as the 2017 or the 2018 proceedings. Those proceedings concerned what we say was basically an identical claim. And they were full and comprehensive proceedings. And the position that was arrived at, at the conclusion of those proceedings, was that five days' unpaid leave was necessary to satisfy the Modern Awards' objective, and that paid leave was not.

PN200

Now, as your Honour, and as the ACTU noted this morning, that decision was not quite as simple as that. That's acknowledged. It wasn't merely a rejection of the ACTU's claim. We accept that. It included a review process or foreshadowed a review process. It acknowledged that it as a cautious response. And as such we have to accept it didn't, as it were, close the door on any form of paid domestic violence leave ever being brought before the Commission again.

PN201

It was a decision, however. I should say on my reading of the decision it did reserve one matter - for later consideration. It reserved the personal carers' leave, whether you can take personal carers' leave for the purposes of domestic violence. It did expressly reserve that. But it didn't defer any decision on paid leave. It made one, and I think that's been acknowledged or, at least, referred to by your Honour this morning.

PN202

It decided, at that point in time, paid leave was not necessary to satisfy the Modern Awards' objective. That's why we're in a review of the matter. And it's a revisitation of the question but I think it would be incorrect to characterise this as, or characterise such decision as holding the question open or, sort of warming up people for the fact that paid leave might be phased in. It was a decision. And I don't want to labour the point as to our submissions about the reasons that might need to be had by the Commission for making a different decision now - in 2022 - as it did in 2018.

PN203

We don't say the Full Bench couldn't make a different decision now. It certainly could. We simply say it would need a reason to make a different decision now, and we say there is no reason why it should make a different decision now.

PN204

We ventilated those reasons in our written submissions and we'd say that the evidence put in these proceedings don't rise to a level which would warrant a different decision. Now, on the point of evidence, the ACTU to its credit has been quite candid to say that its evidence brought is not perfect, and perhaps there is no perfect evidence about these matters. Or perfect data source and I think that's a fair observation.

PN205

Part of that is the subject matter. Part of that is the Pandemic. Part of that is the nature of industrial proceedings. But the task of the Full Bench isn't with respect to merely accept what the best evidence that the proponent of a claim says. It is to determine whether that evidence is sufficient. And we say that it's not in these proceedings.

PN206

One point about the character of the evidence - in our submission, this case is not about employees losing their jobs, in circumstances where they're subject to domestic violence. Some of the ACTU's submissions suggest the claim is necessary because it will ensure that employees retain their employment when they are victims of domestic violence, or going through circumstances of family and domestic violence.

PN207

We say the evidence in these proceedings doesn't bear that out. If anything it probably turns against that proposition. The fact that we have an NES entitlement to unpaid leave, and entitlement to absent yourself to deal with these circumstances, also tends against the proposition.

PN208

The reason why I raise that is because, really, what this case is about is the payment. And there is no argument from our side that additional financial resources to employees will benefit employees. That's uncontroversial. The question is whether businesses should provide that additional financial resource.

PN209

Now, in these proceedings, the ACTU has brought evidence about what the claim might cost and for the reasons which we have already canvassed we say that that's not evidence on which the Full Bench should confidently rely. The employees, as a collective, I might say, has addressed this very substantially in the submissions.

PN210

In terms of the assumptions used by the experts, it's not surprising, as in any case, with experts and data, assumptions are looked at and are queried. And by definition there's probably no perfect assumption. We do say that the assumptions that are used to underline the data in this case should be - well, certainly aren't robust, and that if the Commission were to rely on those assumptions they would be taking a risk that those assumptions were not correct.

PN211

Again, it is not the task of the Full Bench to simply accept what the so-called best evidence brought by the proponent of a claim is in making a decision. It's to determine whether the evidence is sufficient or satisfactory.

PN212

On that basis, we say like in 2018, the Full Bench should remain cautious and should not accept the costings that have been provided. Or what's particularly concerning to the members of the organisations we represent is on the ACTU's own case or on the evidence of the ACTU's own experts, at least, it's small to medium businesses who will bear the greatest costs from the introduction of 10 days' paid family and domestic violence leave.

PN213

And we say that that's a fundamental step which should be closely considered and, ultimately, it wouldn't be in keeping with a fair and reasonable safety net.

PN214

One further point on the evidence, and it's just arose this morning. Specifically, the lay evidence - the only observation I would make about the lay evidence is that evidence admitted for purpose other than proof of an asserted fact, shouldn't be relied on to establish that fact.

PN215

I'm not sure if that's the intent of the ACTU's submissions this morning but I make that point just in relation to the lay evidence.

PN216

In closing, and I did say I would be brief, I really do need to stress how unusual this form of leave would be if granted in its proposed form. It's inconsistent for the application of the leave, when you would be able to take it, is inconsistent even from the unpaid domestic violence leave currently in the NES. It includes paid leave for casuals, which is a concept that's causing the ACTU confusion and difficulty even now, this morning.

PN217

I can say, for our part, it causes us confusion and difficulty, and this is all before this entitlement even goes live, so to speak, with employers, particularly small employers, who have to administer the entitlement. It is extremely unusual, novel and I believe, at least currently, completely unique to have a paid form of leave for casuals. There are good reasons why even large employers with generous family and domestic violence policies with paid leave do not extend paid leave to casuals. Not totally and not everyone, but there's good reasons why many large employers don't.

PN218

It is not just the casual issue that makes this form of leave distinctive, and a lot of these points have been hit so far this morning, it's a paid leave entitlement that's available in full at the start of any year or at the start of employment and it doesn't accrue. That is very, very unusual. The rate of payment, as your Honour has raised this morning, is not at the base rate, which would normally be the case for something like annual leave and personal carer's leave. It's unusual in that it's a very substantial amount of leave in circumstances where, on the ACTU's case, it would be very rarely used and, of course, it is unlimited in that the unpaid leave entitlement is on a per occasion basis that doesn't have any cap on it.

PN219

There are excellent reasons, differing reasons but excellent reasons, why existing forms of leave under the Fair Work Act don't have these characteristics, and I must say, for many of these distinctive features or distinctive characteristics of the ACTU's claim, the ACTU have really done very little to actually establish why it would be necessary, for instance, why the definition be necessary to be different, why - they have made some efforts to explain the casual point - but, for the other aspects, why the rate of pay should be different. Very little in this case have actually addressed any of those matters. As I say, there are very good reasons why leave is not normally like this, and the Full Bench should have regard to those matters in determining the claim.

PN220

VICE PRESIDENT HATCHER: Mr Arndt, does ACCI have a fallback position to advance in the event that we were persuaded to grant some form of paid leave, and I'm particularly interested in what you say about the accrual point in that context.

PN221

MR ARNDT: I would need instructions to provide a full fallback position, obviously, but I think in terms of the accrual point, I have made a submission previously, or at least my clients have made a submission previously, that on the accrual point, a method of accrual would be easier to administer and possibly more preferable from the position of the employers than a lump sum up front payment. I think that would be relatively uncontroversial and, given we have put it in submissions, I'm comfortable and confident to say that.

PN222

VICE PRESIDENT HATCHER: Would it follow from that that it would accrue from year to year?

PN223

MR ARNDT: It wouldn't, it wouldn't, no. I understand the Vice President's question now. No, it wouldn't. That is something I do not have a fallback position on.

PN224

VICE PRESIDENT HATCHER: If it progressively accrued within a year but then didn't accrue from year to year, wouldn't you end up with a position that - let's say, for argument's sake, your day one was 1 January, you'd start off with zero on day one, you'd get up - say the entitlement was, for argument's sake, 10 days, you'd get up to 10 days at the end of the year, then you'd click back to zero the following year? Is that - I'm just trying to work out how that would marry together.

PN225

MR ARNDT: I have considered what your Honour is putting, and a third alternative would be that it is actually capped at the end of that first year and that it doesn't necessarily click back to zero. I have to acknowledge there would be an arbitrariness on day 364 of your employment, having whatever it is, X entitlement, and then, on day 366, going back to zero, I think we would have to accept that, but that's as far as I can take that.

PN226

VICE PRESIDENT HATCHER: All right, thank you.

PN227

JUSTICE ROSS: Mr Arndt, can I take you to two things and they arise from the ACTU's response to background paper 2, if you have that in front of you.

PN228

MR ARNDT: I do, your Honour.

PN229

JUSTICE ROSS: You will see at paragraph 10, the ACTU responds to your submission in respect of an aspect of Professor Duncan's analysis and the ACTU suggests, respectfully, that you may have misunderstood the nature of the calculation in table 4. Was there anything you wanted to say in response to that aspect of the ACTU's submission?

PN230

MR ARNDT: Your Honour, our position remains that - I mean our position in a global sense is that the assumptions used in this calculation at various points have arbitrary best guesses as to increases in utilisation. I understood, and Professor Duncan was potentially quite patient with me in explaining that there is a difference between an increase in incidence rates or how many people might take the leave and how much leave they will use when they do take it.

PN231

JUSTICE ROSS: Yes.

PN232

MR ARNDT: My observation would be that the Professor Stanford report, the 2016 report, includes an assumption that the proportion of people who take it will double if you introduce a paid leave entitlement, and then Professor Duncan uses the idea of doubling again, and I'm loath to use that word because Professor Duncan didn't seem to like it at all, that the actual leave taken will double again. I have to acknowledge that what Professor Duncan was doing was providing a range of estimates, so, in some sense, it's fair to say, and it was fair for him to say, that it doesn't quite matter where you apply the times two multiplier.

PN233

The overarching observation I would make about that material is that we are placed, or rather the Full Bench is placed, in a position where the expert material that it is relying on has an expert, with very, very little reasoning provided, saying, 'Well, if this goes from unpaid to paid, I guess twice as many people will take it' and then another expert saying, 'Well, if it goes from unpaid to paid, they'll probably pay twice as much.' Now, I'm not saying there's anything fatal to that reasoning, but it does seem rather arbitrary from my perspective, and certainly the concept of doubling - the idea that going from unpaid to paid will necessarily result in either twice the number of people taking it or twice the leave taken once they do take it seems quite arbitrary and not something that I consider is particularly robust.

PN234

JUSTICE ROSS: As you say, Mr Arndt, Professor Duncan provides a range of options, so whether you accept the doubling of the amount of leave they would take or not may not matter that much because he also provides an estimate if they take the full amount.

PN235

MR ARNDT: Precisely, your Honour, and that's what I was getting at. I don't think Professor Duncan - Professor Duncan's evidence contains a range of assumptions, some taking 10 days, some taking the relevant amount that Professor Stanford estimated, so, in that sense, it's arbitrary. That's part of the problem from our client's perspective. These are numbers, and I don't do any of the experts in this proceeding, I don't do the disrespect of saying these are numbers pulled from thin air, but, in our submission, they are best guesses and I and those who I represent are not overly persuaded that the reasoning behind those best guesses is particular robust.

PN236

JUSTICE ROSS: All right. The last thing I wanted to raise with you is at paragraph 11 of the ACTU's response. You'll see that - no, that relates to Dr Stanford. I will put it to you, but it's probably more of a question for Mr Ferguson. The ACTU makes a number of relatively minor corrections to the characterisation of Dr Stanford's methodology in the background paper. Do you take any issue with those corrections?

PN237

MR ARNDT: I'm very comfortable to rely on Mr Ferguson to make submissions about that, your Honour.

PN238

JUSTICE ROSS: Okay. All right. Thank you. Any other questions for Mr Arndt? No? Look, we might take a short adjournment, Mr Ferguson, until 11.15, then we will return and hear you.

PN239

MR FERGUSON: I was going to seek your indulgence for just slightly longer, perhaps 15 minutes, your Honour, and that might also let us deal with that question that you have just raised.

PN240

JUSTICE ROSS: How long do you anticipate your submissions will be?

PN241

MR FERGUSON: Well, certainly I don't expect they would be longer than half an hour.

PN242

JUSTICE ROSS: All right. Is it convenient then to adjourn until 11.30?

PN243

MR FERGUSON: It would be appreciated. Thank you.

PN244

JUSTICE ROSS: Okay. No objection? All right, we'll adjourn until 11.30. Thank you.

SHORT ADJOURNMENT [11.11 AM]

RESUMED [11.30 AM]

PN245

JUSTICE ROSS: Thanks, Mr Ferguson.

PN246

MR FERGUSON: Thank you, your Honour. I might, just so I don't forget, deal with your question first. We reviewed the ACTU's corrections to the Commission's summary of the methodology of Prof Stanford and we can't see issues with the corrections. The Ai Group has already filed two sets of detailed submissions. We filed a response to the background paper. We don't traverse that detail, so we just rely on that material.

PN247

What I want to do really is deal with some new issues that have arisen in the material and also today. In that context I want to deal specifically with three issues. Firstly, I want to spend a little bit of time focusing on the changes that the ACTU have made to their claim and the core issues that we say flow from that; then I want to respond in some detail to what I might characterise as the renewed push in the ACTU's final submissions for extension of the entitlement to the casual employees; then I want to come back to issues that have arisen in response to the background paper and today.

PN248

Before I get into the substance, I just mention two threshold matters though. The first is obviously there has been a flurry of material published by the Commission and filed by the parties, including the detailed submissions from the ACTU in relation to the background paper. I don't protest around that information. I just note that obviously much of the material has been canvassed in our material in any event and we rely on that in response, but I don't want the Bench to think that in the absence of a response to any of that material - and particularly the union's material - means that we accept the force of their submissions. It's just a matter of logistically we haven't had time to prepare a response to everything.

PN249

The other point I just want to raise is in relation to the amended claim - the most recent amendments to the claim - that has been advanced now. There is a submission that the employer parties aren't prejudiced by the late amending of that claim and that's the amendments that came in not in reply, but in response to the final submissions well after they had been advised of all the concerns that Ai Group had.

PN250

We're in a position to raise concerns about the clause today productively, but the prejudice that we've really suffered is we just in a practical sense haven't had an opportunity to engage with our members and with industry to test all the issues that might flow from specific elements of their proposal. For example, the extent to which payroll systems could cope with some of their proposals and so forth.

PN251

All I say in relation to that is not to seek any opportunity now, but that if the Full Bench was ultimately potentially minded to grant the claim in the terms sought, we would want another opportunity to deal with those issues; but that of course may not arise so I just leave that there. What I would propose to do is, firstly, start with the detail of their claim, your Honour, and in that context I would take the Full Bench to their amended claim which is annexure A to their final submissions. Does the Full Bench have a copy of that to hand?

PN252

JUSTICE ROSS: Yes.

PN253

MR FERGUSON: I just walk through the main changes. I'm not going to address the changes that are just minor drafting issue. The first issue that I think requires some detailed consideration is the change to section 106B(c). Now, section 106B is the provision that sets out when, in effect, the circumstances would arise that someone is eligible to take the leave.

PN254

If you look at the provisions, of course the employee has to be experiencing family and domestic violence at the relevant time; then they need to be doing something to deal with the impact of that violence; then at (c) - and this is the important point - it needs to be impracticable for the employee to do that thing outside the employee's ordinary hours of work. Now, that's the provision under the original claim and that's as it is under the Act, of course.

PN255

The ACTU have removed the word 'ordinary' from that term. We say that is a very significant variation of a fundamental rule as to the nature of the entitlement. It expands eligibility, but it also renders the clause potentially quite uncertain and confusing in its operation. Now, the obvious source of confusion is that it's a subtle wording change. Although significant in effect, it means that there is a subtle wording change between the provisions of the Act and the provisions of the award clause, and we say that in itself would be apt to confuse and is inconsistent with the notion of a simple and easy to understand system.

PN256

Our concern is, more gravely, that it just raises a whole raft of questions about what are an employee's hours. Are they the rostered hours, are they the contracted hours or are they hours that you may have given an employee - full‑time or a casual - some indication that are likely to be offered, but an indication that's short of a firm advanced commitment as to what is likely to be given.

PN257

I use that in the sense that does it capture overtime, for example, because - we'll come back to the overtime issue, but we think certainly in the context of both casual employment and the allocation of overtime hours, it is often the case that employers may suggest to an employee that hours might be available or are likely to be available but they're not necessarily ultimately always afforded. Then it just raises the sort of questions where is the line, which hours will actually be caught by this proposal?

PN258

Now, there is a fairly limited explanation for the answer to this in the ACTU's material, but what does seem apparent is that they anticipate that it would include rostered overtime hours. We say that raises, well, at least four different issues. The first is the manner I've referred to - and I'm reduced to submissions from the bar table given the matter that has unfolded, but it's no doubt common in industry that employers give employees some expectation that overtime may be available, but it's short of an absolute guarantee that those hours will actually be worked. Whether they're worked or not depends on the needs of the day and whether they're busy or whatever the production requirements might be in some sectors, for example. I think the application of the clause in that context would be particularly unclear.

PN259

Second, we say it's simply not fair to expect an employer to compensate in the context of the safety net an employee for overtime hours that are not worked. The reason we say that, firstly, is that awards generally don't conceive of overtime as a guaranteed entitlement and it shouldn't be elevated to that in any sense. Of course we also say that it's not generally conceived within the NES that overtime entitlements will form part of the payment for any paid leave entitlement. I'm sorry, that issue of the proposal being out of step with the NES is the third point I was going to raise.

PN260

Then fourth point I would make is it hasn't been established that there is any need for any additional leave entitlement that entitles people to be absent from overtime work beyond what is already provided for, in effect, under the NES. The simple point there is there is just no evidence before the Commission of employers hampering people's ability to deal with things associated with the experience of family and domestic violence by requiring them to work overtime. It just doesn't seem to be a phenomenon that's established in the material.

PN261

We will come back to the issues around rates and whether the overtime rate should be payable in a moment, but they are the main issues around section 106B unless there are any questions on that point. That then brings me to the rate of pay issue and that's dealt with at clause C. I note we similarly raised concerns about previous claims potentially capturing over‑award payments. Pleasingly that has been addressed, but the key issue that still remains outstanding in respect of all types of employment is to the proposal to capture all amounts covered by the award and we say that is problematic and unjustified on multiple fronts. Firstly, it will obviously capture various penalty rates - be it overtime penalty rates, weekend penalty rates, public holiday rates, shift loadings. But also allowances, that the entitlement to which would ordinarily be triggered by the employee working in particular circumstances or experiencing some particular disutility that would justify the payment of that premium.

PN262

Now we say there is no justification for the application of those amounts in circumstances where a person is not working and not experiencing those circumstances or disutility. And on that basis this approach adopted should just - or proposed - should not be adopted.

PN263

But I think it's useful for the Full Bench to think about and not just the rates, but the application for allowances. It seems, on its face, very unjustifiable, for example, why certain expense-related allowances and so forth might be payable, in circumstances where the expense might not be incurred at all, which is meal allowances - for example.

PN264

And I could go on. But I think that provides an illustrated example. But I think the other sort of - if I can describe it as the thematic problem with this proposal, is that it requires employers to speculate on what special rates or amounts might be payable, depending on whether or not an employee works. And that's going to, in practise, we suggest potentially give rise to all sorts of complexities, uncertainties - you know - even disputes. Because employers are going to be able to have to guess what amounts might be payable.

PN265

And if I can use an example? Awards include various allowances, for example, depend on what work was actually done on a particular day. You ordinarily identify what's payable by examining what work was actually undertaken. Take, for example, travel allowances and many awards differently named provide entitlements to per kilometre rates where people use their vehicle in the course of work. Well, if somebody didn't drive in the course of work how would you, as the employer, hope to calculate what amount might have been payable, had the employee taken leave. It's depending on the variable of what driving they might have done on that day.

PN266

And I could spend much of the morning working through Awards, giving you other scenarios, I mercifully won't - but you just have to think about things like, you know, dirty work allowances and so forth. Things that may or may not be payable depending on the sort of variables at the day at hand.

PN267

And we say that this approach of making employers guess what might be payable is completely unworkable. That then takes me to clause (c)(2), which is the proposal around part-time employment.

PN268

Now, it seems to be there's little put by way of justification for it but there seems to be two ways a part-timer would work and be paid. It's on the first basis that it would be for the hours that they would have worked, or based on the amount they would have earned had they work. Or you have to do some sort of comparison to the amounts they have worked over the previous six weeks.

PN269

Now the first point is there is just no basis set out in the material for why employers should have to go through this comparison. Justification for it is just not explained. And, secondly, I think - you know - on its face it appears to be potentially be burdensome. This comes to the point I have said. You know, we would have a concern - the payroll processes and so forth - may not be able to grapple easily with these sorts of processes.

PN270

But, in any event, it potentially also delivers an unjustifiable benefit. If you think about it for a moment - if an employee was going to say on a particular day work a small number of hours - two or three hours - but was absent because of the need to deal with something related to the experience of family domestic violence leave, why should their earnings for that day be inflated, by reference to some greater earnings in a previous period? You know, and particularly if they generally worked much longer days earlier in the week. Why should that be taken into account?

PN271

But also, why should for example, you know ad hoc earnings in relation to a spike in overtime that might have occurred at some point in the last six week be taken into account? There just doesn't seem to be any justification for it and it would be plainly unfair, in our submission, to expect employees to be paid in this way.

PN272

That then takes me to clause three, and I will deal with clause four as well. These are the clauses dealing with casual employment. The first issue relates to where a casual has rostered or agreed hours. And I will note that we have dealt with these issues in our submission to some degree as well - probably it's another claim - but our submissions are still relevant.

PN273

I think the point to make here is it's going to be confusing in the context of contemporary casual employment. What are rostered or agreed hours? You know, firstly, of course, a lot of Modern Awards and many Modern Awards don't require rostering of casuals.

PN274

And it's not entirely clear what arrangements would be caught by the word 'rostering'. But in any event, casuals often don't need to work - even if they're allocated - in the sense that they may be free to refuse. Or an employer - even if they've notionally allocated work to someone that may be subject to the basis that the operational requirements change. The employer doesn't need the casual and they finish early.

PN275

We think it's just going to be very confusing how you identify whether hours are rostered or actually agreed where there are those sorts of variables involved. But, in any event, it raises a bigger problem when you get to point four and it's the point that I think his Honour Vice President was dealing with.

PN276

Well, point four was dealing with casuals who don't have rostered or agreed hours. So put aside how you paid people. The real issue is 'Well, what are their hours of work?' If they don't have agreed or rostered hours, how do you work out whether they've satisfied the eligibility requirements under 106B - C - or (1)(c). What are their hours of work?

PN277

And it just seems to be a completely impossible situation. You know we have advanced much more detailed submissions in both sets of written submissions in relation to the inappropriateness for extending an entitlement to casuals. I'll just give the Bench, briefly, the references. In our February submissions they're contained at pages 384 to 492 of the court book and in our March submissions they're at paragraphs 137 to 142 of our submissions. And I say that because the ACTU responded to some of the issues but certainly not all of the issues that we raise.

PN278

That then takes me on to other or to responding to the ACTU's final submissions around why the entitlement should be extended to casuals. And putting aside our sort of headline opposition to it for the reasons set out in the submission I've just put.

PN279

The unions say, or they make an appeal to the implementation of entitlement for paid Pandemic leave in a temporary entitlement that was inserted in a small number of awards dealing with workers in the aged care sector, or dealing with the aged care sector.

PN280

Now, we really say that really takes them nowhere. And the first is that obviously that entitlement was granted in a very different context to what this application is dealing with. And it was a temporary entitlement dealt with in urgent proceedings. And I think, you know, obviously the Bench would be mindful. It was a response to the pressing issue and specific context of the issue of the Pandemic. In a context where we had unions arguing that an absence of entitlements to casual leave - for casual employees - was causing people to work when they were sick, and spread the virus, and cause the deaths in people.

PN281

Now, it is a different context first and foremost. Secondly, the point I would make is that the ACTU appear to have adopted the framework of that leave entitlement. But they've just selectively cherry-picked elements of the entitlement. What they have left out is the fact that under that provision a casual employee couldn't access the leave unless they were engaged on a regular and systematic basis.

PN282

And secondly, for full time and part time employees the payment was calculated by reference to the employees' ordinary hours of work. Not overtime. And then, thirdly, in order to access the entitlement permanent employees first had to utilise their personal carer's leave entitlements. So we say that is not a compelling - the reference to that leave availability does not assist their case.

PN283

Look, secondly, they make an appeal to the fact that enterprise agreements - some enterprise agreements include paid leave entitlements for casuals. Look, the weight that can be given to that is limited by a number of factors. But the most obvious is just because a provision is in an enterprise agreement doesn't mean that in practise it's operating swimmingly. But, in any event, even if it does it may well be because of the specific circumstances of that particular enterprise. They may engage casuals on a particularly regular basis for example.

PN284

What it doesn't establish is that the paid leave entitlement that they have proposed would be workable across all Modern Awards and the context of all enterprises covered by Modern Awards. Instead, we say the fact that those sort of entitlements exist in enterprise agreements really just bolsters our arguments that this is a matter that is capable of potentially being dealt with and is best dealt with at the enterprise level and potentially through enterprise bargaining.

PN285

Then I just want to respond to their appeal to the Victorian sick pay guarantee. Again we say this does not take their case any further either. We don't contest the proposition that governments could implement a paid leave scheme. Indeed, we have obviously publicly lobbied for it. But that doesn't mean that a scheme in the awards isn't at all workable. What it does put into focus, though, is a need to consider the interaction between the award clause, if one was granted, and the operation of that scheme. As we understand the eligibility rules under that scheme, an employee, if a new paid family and domestic violence leave entitlement was granted under the awards, an employee could potentially access an entitlement under both instruments, and we say that would be an unjustifiable outcome.

PN286

Similarly, if we were wrong and the implementation entitlement under awards disentitled an employee to that amount, that would only have the effect of transferring costs directly to individual employers and we say that would be unfair and an undesirable outcome that would not be necessary in the relevant context.

PN287

Those were the submissions I want to make around casual employment in reply to the final submissions.

PN288

I just want to respond to a small number of issues raised by the ACTU in the background paper firstly. First then I will deal with an issue raised by the ACTU at paragraph 16.

PN289

JUSTICE ROSS: Mr Ferguson, is this in the ACTU's response to background document 2?

PN290

MR FERGUSON: Yes, it is.

PN291

JUSTICE ROSS: And it was paragraph 16, you said?

PN292

MR FERGUSON: Paragraph 16, your Honour. They there respond to or criticise our proposed conclusion that employers typically take a compassionate and (audio malfunction) approach to supporting employees that experience DV. The proposition is that, if we're right, it suggests that employers are not adverse to providing paid FDV leave to employees who need it, and that indicates that section 134(1)(d) and (f) of the Fair Work Act are neutral considerations. They are the provisions of that Act that, in short form, deal with, you know, the need to promote efficient, productive performance of work and the impact on employers in terms of costs and so forth.

PN293

I think we obviously reject the proposition that there's any connection between the grant of that - or that compassionate approach, if you will, and any assertion that leave doesn't cost employers or money or that it doesn't have a disruption on their business, we certainly don't accept that the employers would only grant leave or respond in a compassionate way if it didn't have a cost upon them. We simply say that some employers are, are prepared to, and are able to assist employees, and do, but it really highlights the point we raise that employers are in different situations. While some can assist, and the evidence is they do, not all employers would be in a position where provision of paid leave will impose a reasonable and sustainable burden upon them, and that can't be assumed, but we certainly reject the contention that our proposition would support a view that those are neutral considerations.

PN294

JUSTICE ROSS: While we are on that area, Mr Ferguson, you will see in the paragraph above, the ACTU takes issue with your characterisation of employers typically taking that approach. In an effort to narrow some of the issues, is it broadly accepted that, as the ACTU puts it, the finding that would be uncontentious is that many employers are supportive of their employees and will act in a compassionate and collaborative manner in relation to those employees who are experiencing family and domestic violence?

PN295

MR FERGUSON: We don't take issue with that proposition. We agree with that proposition, your Honour. I think in answer to that question, but in answer to that paragraph as well, I think we would take issue with the proposition that it is simply an exercise of good will, and that was the point I was making, that there are cost considerations in people's capacity to assist that also governs the response, in our submission.

PN296

JUSTICE ROSS: Yes.

PN297

MR FERGUSON: And that's obviously part of the contention by, we say, taking a standard approach of mandating a particular amount, a particular 10 days, which is the claim, is a step too far.

PN298

I will move on, your Honour. I want to say something about the evidence of Dr Stanford, partly in response to what's fallen today and partly in response to what was put in the background paper as well.

PN299

To be clear, the broad thrust and intent of our cross-examination was, in large measure, to challenge, if you will, the efficacy or the utility of some of the research and reports that Dr Stanford relied upon in reaching various conclusions, and we say when the Bench looks at that cross-examination and also looks at that material for itself, it's evident that it is limited in various respects and, clearly, in our view, the Full Bench must reach a conclusion that, as a result, the ultimate conclusions reached by the professor are of limited, very limited weight in relation to the matters before it.

PN300

Of course, the second point counsel for the ACTU referred to is our other observation was that there are tracts of the report by the professor that constitute conclusions, but that didn't give the apparent basis set out in the four corners of the report for those conclusions. Now, we identified a number of examples. I just wish to be clear.

PN301

JUSTICE ROSS: Yes. Just before you do, Mr Ferguson, you have referred to 'in the professor'. Are you talking about Professor Duncan or are you talking about Dr Stanford?

PN302

MR FERGUSON: Sorry, Dr Stanford. I'm sorry, I slipped between the two. Dr Stanford, to be clear.

PN303

JUSTICE ROSS: All right.

PN304

MR FERGUSON: The point I was making is that we haven't sought to be exhaustive in our identification of every paragraph where there was a conclusion that wasn't properly supported by any reference or basis for that. We were giving some illustrative examples and, of course, we were trying to draw an analogy to the approach the Full Bench identified in the SCHADS proceedings, because, obviously, we say where an expert witness provides a conclusion but doesn't provide a basis for it, that shouldn't be given significant weight, and nor should we be criticised for not cross-examining in relation to that conclusion. It, obviously, as a matter of fairness, can't be expected of us to sort of grope around blindly looking for why the professor reached a particular conclusion in any certain issue.

PN305

JUSTICE ROSS: Well, to the extent there's no evidence in support of a particular conclusion or it's not transparent, that would be clear on the face of the report. It seems to me a different issue arises, though, in paragraph 22 of the ACTU's submission. Do you see that? It's put there that to the extent you are pressing a submission that Dr Stanford did not bring an independent or objective mind to the task of preparing his report, what is put against you is that should have been put to Dr Stanford and it wasn't, so it's a Browne v Dunn point. What do you say about that?

PN306

MR FERGUSON: I don't think I need to in that respect deal with the Browne v Dunn issue because we don't press that submission.

PN307

JUSTICE ROSS: All right.

PN308

MR FERGUSON: Our point - if that makes sense, your Honour?

PN309

JUSTICE ROSS: The same Browne v Dunn point is put at paras 26 and 27 in relation to other aspects of Dr Stanford's evidence.

PN310

MR FERGUSON: Yes. Let me deal with that there then.

PN311

JUSTICE ROSS: Sure.

PN312

MR FERGUSON: We say that the Commission shouldn't, in this context, exercise any discretion to disregard the submissions that we advance because of a Browne v Dunn point given the nature of these proceedings. They are not party/party proceedings and, of course, ultimately we say - - -

PN313

JUSTICE ROSS: It doesn't matter whether they're party/party or review proceedings. Browne v Dunn is a rule of fairness to a witness that if you're going to later criticise the witness in a particular way in submissions, then you should put that criticism to the witness to give them an opportunity to respond to it.

PN314

MR FERGUSON: I understand. The point I was coming to is that ultimately, your Honour, the Commission has to form for itself a consideration in this type of proceedings what weight or value could be given to particular evidence. Now, we say that it shouldn't blind itself to submissions that establish or set out in any salient considerations.

PN315

If some other approach is needed in order to rectify the fairness issue, we say the ACTU ought seek an opportunity to (audio malfunction) that could be adopted to rectify it. I think for our part there certainly wasn't any calculated approach. I think it was perhaps a splitting up of cross‑examination, but that's not the point. The issue we make is that ultimately you have got to make a decision as the Full Bench about the weight of the material and the logical force of what we're saying shouldn't simply be ignored.

PN316

JUSTICE ROSS: Well, I agree that we have to make a decision about the weight of the material. I'm not sure it would be a matter for the ACTU to recall a witness to put a proposition that you have put in submissions.

PN317

MR FERGUSON: All I was putting is that if there was a fairness issue that was pressed, there might be other avenues to address that issue, but I can't take that much further.

PN318

JUSTICE ROSS: The other avenue would be to recall the witness and for you to put the question, so you would have to make that request.

PN319

MR FERGUSON: Yes, that would be the other matter for rectifying it. I mean, I haven't given consideration as to whether we press that. Our view would be the submissions have logical force, anyway.

PN320

JUSTICE ROSS: All right.

PN321

MR FERGUSON: I can't take it further, your Honour.

PN322

JUSTICE ROSS: Okay. I'm sorry, Mr Ferguson, you were going to other aspects of the ACTU's submission in relation to background document 2?

PN323

MR FERGUSON: Yes. Thank you, your Honour. Still on the evidence of Dr Stanford, just dealing with a discrete point, it's the point that's raised at paragraph 24 of the ACTU's submissions in response to the background paper. I think there the ACTU takes issue with our submission that the evidence of Dr Stanford ignores the micro‑economic effects of paid leave which diminishes the utility of the Commission. We point out that we haven't explained what we mean by the term 'micro‑economic effects' or why that evidence would be necessary or how it's relevant or necessary.

PN324

I think the point we were trying to come to is this - and it has broader implications - the evidence of Dr Stanford in large part seemed to deal with macro‑economic issues in terms of dealing with issues about the utilisation or the cost implications or the productivity implications of the grant of paid FDV leave at the economy‑wide scale, or in the context of employers as a broad group. The point we have been trying to make through our submissions is something that the Commission also needs to consider; the effect at the individual enterprise level.

PN325

It may be all well and good to make arguments about, you know, the limited extent to which it will be utilised across the whole workforce, but the impact on a particular employer needs to be carefully considered. In particular we urge the Full Bench to be mindful of the impact of a grant of, say, 10 days' paid leave on a small employer. It would be, in our submission, no small imposition for an employer with, say, one or two employees to have to accommodate not only an absence but the provision of 10 days' pay. Think of a small cafe, for example.

PN326

We say that those sorts of factors also need to be considered as well as the macro‑economic considerations. It's no comfort to that employer that there aren't many other employers - if we were to accept the ACTU's submissions - that aren't experiencing the need to grant the leave. We're just suggesting that both contexts need to be considered by the Full Bench in weighing what is fair and reasonable.

PN327

JUSTICE ROSS: I think we understand that. I mean, the modern award objective considerations go to both employment costs and the aggregate effect.

PN328

MR FERGUSON: That's the point and I think, you know, we perhaps hadn't been clear in our submissions. That just takes me to some submissions that fell this morning from counsel. The first is the NES inconsistency point. I think the first observation we would make is that I think counsel has glossed over the detail with which we have tried to address this issue in our second set of submissions where we have sought, more comprehensively than our first set, to deal with the statutory scheme of an interpretation which should be addressed in relation to these issues.

PN329

I would say though we don't shy away from the proposition that our central contention - or the contention in relation to the operation of section 55(1) - is that it doesn't require an assessment of whether a provision excludes a term of the NES or a provision of the NES. It doesn't entail any assessment that's more favourable. It either excludes or it does not exclude the provision.

PN330

I will come to the basis on why something excludes it or does not, but that's to be contrasted with other parts of section 55 where there are subsections such as the provisions that contemplate the inclusion of supplementary terms that permits them, if look at the scheme of 55 as a whole, provided they don't breach that caveat that they're not detrimental in any effect in respect to an employee. Section 55(1) just turns on whether or not there is an exclusion.

PN331

That really then takes me to the point of why does it exclude it? Our primary submission in that respect does rely on the logical approach adopted in Canavan and in the NES, and consistencies with review proceedings. It obviously to some extent as a primary point is based on the contention that it negates the effect of the NES provision, which is - if you look at the provision in entirety - a scheme for unpaid leave which is defined as unpaid leave under the Act, not under an award.

PN332

So the proposition is that what the ACTU have established through the approach - and it is just confined to the approach they have taken - is they have proposed a separate award scheme which is something entirely different to the NES. It operates differently. It deals with broadly similar subject matter, but it is different. It's a different regime and it doesn't interconnect in any way. It doesn't extend the NES entitlement in some way that might be considered supplementary, drawing analogies to the examples of the supplementary terms. It just operates separately and on its own.

PN333

Now, we accept there is no evidence around whether in practice it will or will not. It is difficult of course to advance evidence on that point when it's an entirely new entitlement and it would be necessarily speculative, but of course if you look at the subject matter we're talking about here, one is a scheme that delivers paid leave and the ACTU's approach - very generous approach - to paid leave and the other is a scheme that is unpaid leave. I think it is difficult for the Full Bench to simply assume on the absence of evidence that people aren't going to refrain from accessing the unpaid entitlement.

PN334

JUSTICE ROSS: Well, even if you assume that to be the case, Mr Ferguson, that's based on the personal preference of an individual with an entitlement in the event the ACTU's claim is granted under a modern award and the NES to choose one or the other. How is that excluding their entitlement to unpaid leave under the NES?

PN335

MR FERGUSON: It does rest - and I'll come back in a second to this, but it rests on the proposition that the NES does establish a comprehensive scheme in relation to leave for personal carers - - -

PN336

JUSTICE ROSS: Well, except that the scheme of the Act contemplates that the Commission has power to include in a modern award a provision dealing with leave.

PN337

MR FERGUSON: I accept that, as well, and we have accepted that in our submissions. It is the simple proposition - I might be making it too simple - that in its operation, leaving aside the fact it is someone's personal preference, that it will negate or exclude the operation of the NES. Now, it might be an understandable basis because it's preferential to an employee, but section 55(1) is not couched in terms that enables any consideration of what is better - - -

PN338

JUSTICE ROSS: But the grant of (indistinct) in an award will not exclude the capacity of any employee to access the statutory benefit.

PN339

MR FERGUSON: Yes.

PN340

JUSTICE ROSS: But they choose to use it, it seems to me to be an entirely different question as to whether their capacity to utilise the benefit is excluded.

PN341

MR FERGUSON: And I think if you frame it as a capacity issue you're right for one of the terms in the awards, which I will come to. If we had conceived of it as in its operation. If in its operation it's not being utilised as a regime for leave because of the existence of a separate award regime that's been made up, it's like an award suddenly creating a new annual leave regime.

PN342

It would in its operation negate the operation of the NES entitlement. But I don't think the consideration of 55(1) turns on whether or not there's a capacity issue. But if we're wrong in that respect there's two points I have raised. And the first is that when you look at the text of the clause and you read it particularly in the context of the submissions - for what that's worth - new clause (d) of the ACTU's proposal provides upon exhaustion for leave entitlement in clause (a)(1) employees will be entitled to take up to five days' unpaid family domestic violence leave on each occasion for the purpose of the clause set out in (b)(1).

PN343

Now for the purpose of (b)(1) it's just talking about the circumstances. I think when we read the ACTU's submissions, it was framed in the way counsel - correct me if I am wrong - that they were reframing the NES entitlement so that it was a provision that was available following the exhaustion of the paid leave entitlement.

PN344

Now, if that's the effect of those words, with intent, then that does seem to more directly and expressly exclude the operation and element of provision of the NES. Now, I might say that even if we're - and I hadn't intended to delve into this much detail in this context - even if we're wrong about the technical points in relation to section 55, it is certainly confusing to have two schemes dealing with similar but different subject matter providing two different regimes as a source for leave. And that alone, should be a basis for rejecting the approach proposed by the ACTU.

PN345

Secondly, we're not saying that you couldn't reframe an entitlement to paid leave, if they're calling for it of course, in a manner that more squarely supplemented the NES. And we accept in that context, your Honour, of course that the Awards do permit the Commission to regulate the matters related to leave - matters about leave.

PN346

But we do say that there are issues in relation to the potential inconsistency with section 65. But there are other ways home if you will. I don't now if I can take that much further. Obviously, we have tried to deal with it in detail as well in our submissions. Your Honour, if there are any further questions?

PN347

JUSTICE ROSS: No. Thank you.

PN348

MR FERGUSON: The point I wanted to make is just in response to submissions from counsel in relation to Ai Group's rules. I think the first is we don't accept their interpretation of our rules as accurate but I'm not able, on my feet, to deal with the complexity of the proper interpretation of our rules. Obviously, we have as I understand it, various categories of membership. We also have multiple entities that people can be a member of.

PN349

I think the reason why, ultimately, this issue doesn't need to be determined is we say the Full Bench should rely on the logical force of the submissions that we're advancing and that's the basis upon which we are advancing them, rather than necessarily on technical points around - you know - the interpretation of one of our entities.

PN350

JUSTICE ROSS: I understand what you say about that we will look at the merit of the argument. But (indistinct) registration and in that capacity you can only represent the interests of those who are entitled to join the registered - - -

PN351

MR FERGUSON: Yes. And we are a recognised Council on the Fair Work Act as well, your Honour. The point I make is I don't - I can't accept the interpretation of our rules (indistinct) complex and certainly the interpretation (indistinct) my understanding but - - -

PN352

JUSTICE ROSS: But you accept the general proposition that you're representing those who you're - the registered organisation is entitled to - well, those who are entitled to join the registered organisation.

PN353

MR FERGUSON: Yes.

PN354

JUSTICE ROSS: Whatever that is.

PN355

MR FERGUSON: Yes, of course. And look there are. Certainly there are on the basis that that's what we're doing in this capacity (indistinct) as well Vice President Hatcher said we don't accept that employers' interests, you know, in the narrow group contemplated by ACTU are necessarily divergent or markedly divergent from other employer groups. And, of course, in the context of these proceedings what is done - we're looking potentially at something that has been done across the system.

PN356

And, of course, what is done for other industries will have a bearing on, for example, manufacturers and so - you know - I think the simple point is we think that there should be - given the breadth of the impact of the change, there is it falls to our involvement for the Council as well, your Honour. I don't intend to take that further unless there are any additional questions?

PN357

JUSTICE ROSS: No.

PN358

MR FERGUSON: In relation to the lay evidence, I don't intend to deal with the detail of it further. I think the simple caution that we'd raise is that obviously there was a hearing in relation to the admissibility of much of that evidence and some of it was included on a limited basis in part and reliance upon the limited basis on section 60 of the Evidence Act.

PN359

It seems to us that the ACTU is now pressing reliance upon it but extends beyond that limited basis. That they are, in effect, in a roundabout way seeking to rely on the truth. It is establishing the truthfulness of what was said in the hearsay evidence for example, when all that was - the limited basis upon which it was to be admitted was that it was said.

PN360

We say it would be inappropriate for the ACTU to be permitted and unfair to be permitted to rely on in a broader context. They're the submissions. Unless there are any further questions?

PN361

JUSTICE ROSS: No, thank you, Mr Ferguson. Ms Burke? Anything in reply?

PN362

MS BURKE: Yes. Just three matters and a note. The first note is in answer to the vice President's question I said I would give the Full Bench some references to our submissions where we address the question of household members and the definition of family and domestic violence leave - or, sorry, the definition of family and domestic violence. The legislation I referred to in paragraph 81 of our February submission. And that topic is addressed from paragraphs 77 to 81 in February. In paragraph 72 in December and in paragraph 114 to 117 in July and those paragraphs refer not just to the argument around there but also where that definition exists in other settings.

PN363

Then, in reply, I just wanted to say something briefly in response to a comment or an observation by Mr Arndt regarding or that paid family and domestic violence leave is unusual. To be clear paid family and domestic violence leave has been part of the industrial landscape since 2010 which was when the first enterprise agreement containing it was approved. And it's only increased since then and it's now in, we say, a substantial proportion of enterprise agreements and it is arguably a really pretty orthodox response to the interaction of family and domestic violence and the workplace. So, it's not unusual in that sense.

PN364

In fairness to Mr Arndt, the points that he made when developing that submission related to particular what I might call mechanical or operational aspects of the ACTU's proposed clause. There are a couple of things that we would like to say about that. With leave, I would like to ask Ms Ismail to address the Full Bench on those topics. This is really her special subject.

PN365

JUSTICE ROSS: Sure. Ms Ismail?

PN366

MS ISMAIL: Thank you, your Honour, and in reply to Mr Arndt's earlier submission, I would like to reassure the Full Bench that the ACTU is in no way confused about how our clause is intended to operate. Under the ACTU's proposed variation, each employee, whether they are full-time, part-time or casual, is entitled to 10 days of paid leave per year. A day of leave means an entitlement to be absent for whatever hours you might have worked in the relevant 24-hour period.

PN367

We certainly accept that there are some operational challenges in relation to providing paid leave to casuals, but we say that those challenges are not insurmountable and that to deny paid leave to casuals will, as the Full Bench noted in the first proceeding, deny leave to many employees who need it.

PN368

One of the points raised by the Australian Industry Group was the removal of the word 'ordinary'. Now, we say that doesn't change the scope of our clause. That's simply been removed to align the words in that part of the clause with the meaning of a day in that it encompasses all hours worked in a day and also the rates of pay which encompass rostered overtime and other allowances.

PN369

I did want to address the question about how you calculate the hours of work for a casual. Vice President, I understood your question earlier to relate to casuals who have highly variable hours of work who don't have agreed or rostered hours ahead, and we accept that there are some difficulties in relation to calculating paid leave for that group of workers, so we have added an averaging formula that would enable a calculation of the rate of pay that's proportionate to their average weekly earnings.

PN370

In relation to casuals that have rostered or agreed hours, we say that that's a question of fact in any given circumstance and we say that there is no confusion in relation to that category of casuals in terms of the leave that should be paid or the hours that they work. We certainly accept - - -

PN371

VICE PRESIDENT HATCHER: To be clear, my question wasn't directed to the rate of pay but to the entitlement itself, that is, if you are not on a roster, what is the circumstance that entitles you to a paid day off? That's what I'm still unclear about, with respect.

PN372

MS ISMAIL: Yes, and we say that, for example, for an early education worker who would frequently be rostered on the morning, that she can say, 'Look, I'm not available, a family violence incident has come up', she has no rostered or agreed hours, but she works, you can calculate the rate of pay for that day based on her previous six weeks of work, and that is based on the paid pandemic leave case.

PN373

VICE PRESIDENT HATCHER: So there needs to have been an offer of work on the day in question?

PN374

MS ISMAIL: Well, for the second category. The first category where there's an agreed or rostered - - -

PN375

VICE PRESIDENT HATCHER: Yes, I understand that part.

PN376

MS ISMAIL: We recognise that there is a second category of employee that may not have had an agreed - an offer, but they are unavailable for work and if there's a reasonable expectation that they might have been asked to work on that particular day.

PN377

VICE PRESIDENT HATCHER: They haven't been offered a day's work?

PN378

MS ISMAIL: No, so, for example - no, they haven't been offered, but they usually are, and the practice for casuals in early childhood is an illustrative example of, you know, a worker who is generally called up, she works at one centre, she works a number of hours a week, but she's called up each day, but she hasn't been called up on that particular day, but she notifies her employer, 'Look, I'm not available for work on Monday and Tuesday, this has come up' and the employer then would work out her leave for those two days based on her average. And we recognise that, you know, this is something of a challenging area and the Full Bench grappled with it in the paid pandemic leave case and came up with an averaging formula, which is what we have based this on.

PN379

VICE PRESIDENT HATCHER: All right, thank you.

PN380

MS ISMAIL: The final point is in relation to overtime. Mr Ferguson was questioning how the clause would work in relation to overtime that might not otherwise have been worked. Our clause specifies that an employer would only be responsible for overtime that was rostered, and that's at clause C2.8 and 1.

PN381

MS BURKE: Thank you, members of the Full Bench, those are the reply submissions of the ACTU.

PN382

JUSTICE ROSS: Thank you very much, Ms Burke, and thanks to the other advocates. We will adjourn and reserve our decision.

ADJOURNED INDEFINITELY [12.25 PM]