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Fair Work Act 2009����������������������������������������������������




s.158 - Application to vary or revoke a modern award


Application by Shop, Distributive and Allied Employees Association & Shop, Distributive and Allied Employees Association and Others



General Retail Industry Award 2020




2.01 PM, WEDNESDAY, 17 MARCH 2021


JUSTICE ROSS:  If I can go through the appearances as I've been provided with them.  When I finished if I've missed anyone if you can indicate that.  In no particular order, for the ACTU, Mr Borenstein, with Mr Kemppi; for the AWU, Mr Crawford; Mr Booth for the News Agents Association; for the SDA, Mr Friend with Ms Burnley and Mr Macken; for the Attorney-General's Department, Ms Durbin; for the MGA, Mr de Bruin ‑ ‑ ‑


MR DE BRUIN:  Mr de Bruin.


JUSTICE ROSS:  ‑ ‑ ‑ and Ms Brown; for ABI, Mr Izzo; for the NRA, Mr Millman; for the ARA, Mr Tindley; for Ai Group, Mr Ferguson; for ACCI, Ms Lawrence; for RAFFWU, Mr Cullinan with Ms Ekonika.  And I think - I'm not sure if COSBOA has joined yet, but I had an appearance confirmed from Mr Strong and Mr McKenzie.


Have I missed anybody?


SPEAKER:  Mr Van Mensburg from the SDA is observing.


JUSTICE ROSS:  Thank you.


SPEAKER:  Thank you, your Honour.


JUSTICE ROSS:  Anybody else?  Okay.  Well, if you wouldn't mind just keeping your microphones on mute unless you're wanting to say something to the rest of us.


Can I turn first to the report filed by ABI by Professors Gollan, O'Brien and Hamberger.  It would appear that no party has sought to cross-examine the authors of that report; is that right?  Anyone got a different view about that?  No, all right.


MR CULLINAN:  Yes, Mr President.




MR CULLINAN:  So we received the report but it wasn't put on as an expert report, and no witness statement was made with it, so there was no witness to cross-examine, your Honour.


JUSTICE ROSS:  Mr Izzo, do you seek to tender the report?


MR IZZO:  We seek to tender, your Honour, and if someone had wanted to cross-examine the authors we were going to put forward - we were going to make that available.  Professor Gollan was available to be cross-examined.  He's the person that signed off on having complied with the expert witness code of conduct.  But no one indicated wanting to examine the authors of the report.


JUSTICE ROSS:  I think that's right, Mr Cullinan.  When we spoke about this earlier it was indicated that Mr Izzo would circulate the instructions in respect of the report; that parties would provide an indication as to whether or not they wished to cross-examine any of the authors of the report.  Do you want to cross-examine - it's going to be tendered.  Do you wish to cross-examine Professor Gollan?


MR CULLINAN:  We're not prepared to cross-examine today, Professor Gollan, but we do wish to cross-examine anyone ‑ ‑ ‑


JUSTICE ROSS:  You wish to do what?


MR CULLINAN:  ‑ ‑ ‑ who's - we do wish to cross-examine anyone who's going to be giving evidence on the basis of that report, yes, your Honour.


JUSTICE ROSS:  Nobody is giving evidence on the basis of that report.  The report is being tendered, and the question is it's put by Mr Izzo.  You've had the opportunity, but are you saying you wish to cross-examine Mr Gollan?  Mr Gollan is not going to - it's not proposed that he put in a witness statement or that he provide any evidence supplementing what's in the report.  That's as I understand it, Mr Izzo.


MR IZZO:  That's correct.


MR CULLINAN:  Yes.  So, your Honour, my recollection was that there was no indication that there was the responsibility on any party to identify that they were wishing to cross-examine a person associated with that report.  We had expected that there would be the ordinary witness statement or expert report witness statement that goes with these types of documents.  And because there wasn't we didn't express an interest earlier today in cross-examining that witness.


JUSTICE ROSS:  But I take it you're not opposing the tender of the research report?


MR CULLINAN:  So we - our position is this, that we do not consider that research report as evidence.  It might be an addendum to the submissions of ABI, but we do not - so to the extent that it's being tendered as evidence then we do oppose that.


JUSTICE ROSS:  All right.  I'll hear from you in a moment about this, Mr Izzo.  There are two matters I want to draw the attention of the parties to in respect of the authors of the report.  The first is that Mr Paul Gollan is known to me.  Some 20 years ago we co-edited a book, that I'm sure is on all of your book shelves, about works councils.  It was so popular that I haven't retained a copy of the book.  I have not - to the best of my recollection had little or no contact with Mr Gollan since and I've certainly not discussed anything about this matter or his research relating to this matter.


Similarly Mr Hamberger was a former Deputy President, Senior Deputy President of the Commission.  I have had no discussion.  I've conferred with my colleagues, they've had no discussion with Mr Hamberger about this matter or his research in relation to it.  But I thought for those of you who are unaware of the antecedents I should bring that to your attention.


Mr Izzo, what do you say about the basis on which you're wanting to advance the report?


MR IZZO:  Your Honour, we say it is evidence.  It is in fact evidence about an activity that was conducted by the authors in relation to particular things that they were asked to look into.  In some senses it constitutes opinion evidence because they are setting out opinions about the matters that they have gleaned from their research.


However, we say that we are allowed to rely upon the exemptions in the Evidence Act that pertain to expert opinion evidence in the sense that these are academics who are experts in their field of research.  They have set out the basis upon which they've made the findings that they have, and the matters that are attested to are factual matters, and so it is, by its nature, evidence, opinion evidence, which is capable of being tendered and relied upon pursuant to the Evidence Act and the normal rules of evidence that apply to these types of reports.


Our understanding was that if anyone wished to cross-examine we would've been notified.  We received no notification.  I certainly - I must say I did double check with both the ACTU and SDA.  SDA didn't respond to me, ACTU said they didn't want to question the author.  I didn't check with Mr Cullinan, but having said that, there were directions in place for this matter, and so we do wish to tender the report.  If Mr Cullinan has questions I can scramble to see if Mr Gollan is still available.  He certainly was going to be available, and I told him not to worry about two hours ago.  So I could scramble to see if he's available to answer questions.


JUSTICE ROSS:  All right then.


MR IZZO:  But we rely upon it as evidence.


JUSTICE ROSS:  Well, other than the position expressed by Mr Cullinan, does any other party object to the tender of the report?  No?  Mr Cullinan, was there anything you wanted to add to your objection?


MR CULLINAN:  Your Honour, I'm not able to find the purported expert statement that was said to be attached or appended to the report itself, so I just raise that as a concern I guess.  In terms of the document and what it sits as a document that it shows, that there was a survey conducted, and that there were numbers of responses that were indicated in the various ways, if that is the - (indistinct) that's of Mr Professor Gollan's capacity to respond to questions then we have no interest in cross-examining Mr Gollan.


JUSTICE ROSS:  I should draw to your attention that the agreement to be bound by the code of conduct with respect to the harmonised expert witness code of conduct published by the Federal Court appears on page 14 of the document.


I understand there are various other criticisms of the report in the submissions that have been put in as well, but no doubt parties can elaborate on that.


Is there anything further in respect of this issue?


MR CULLINAN:  No, your Honour.


JUSTICE ROSS:  Look, rather than adjourn and confer with my colleagues, I'd suggest that we'll each give our view of the admissibility of the report.  For my part I would admit the report on the basis that it's put forward and I would mark it as exhibit ABI1.  Deputy President Asbury?


DEPUTY PRESIDENT ASBURY:  Yes, I agree with that.


JUSTICE ROSS:  Commissioner Hampton?




JUSTICE ROSS:  Thank you.  I'll mark the report as exhibit ABI1.



Can I go to the background paper that was published this morning?  Can I invite the parties to respond to the questions that were posed towards the end of that background paper in the course of your oral submissions rather than taking the time of the proceedings to do that now?  There was also a suggestion at the end that there be discussions between the proponents of the joint application and the ABI proposal and Ai Group and the News Agents Association with a view to resolving what had been identified as some technical issues.


Is there anything arising from those discussions that you want to deal with now or are you content to deal with that in the course of your submissions?


MR FERGUSON:  We're content to deal with that in the course of submissions if that's convenient, your Honour.


JUSTICE ROSS:  That's fine, Mr Friend.  Mr Izzo, are you content to do the same thing?


MR IZZO:  I am.


MR FERGUSON:  Your Honour, there might be one issue I can raise to simplify matters.




MR FERGUSON:  We had discussions with ABI around the matters raised at paragraphs 50, 51 and 52 of our submissions.  In light of those discussions we don't press those paragraphs.


JUSTICE ROSS:  So that's ‑ ‑ ‑


MR FERGUSON:  They were the issues ‑ ‑ ‑


JUSTICE ROSS:  ‑ ‑ ‑ 51 or 52?


MR FERGUSON:  Fifty, 51 and 52.


JUSTICE ROSS:  Yes, okay.  Yes.  It still leaves the question around what you've framed as the misalignment between the catalyst for the right to request in clause 15 - sorry, clause 10.5 from paragraphs 23 on.




JUSTICE ROSS:  But when we come to it, Mr Ferguson, I'll get you to just explain what the issue is.  Speaking for myself, I had a bit of trouble following the point that was raised, but you can - if you can take us to that when we come to you that'd be helpful.


MR FERGUSON:  We will.  And I don't think we made that point in the clearest terms, but I'll just advise the Bench that we've had discussions with the parties and I think there's been some progress that's not been resolved, but the others may speak to their positions in their submissions first.


JUSTICE ROSS:  No doubt.  Look, in terms of the order, I was proposing to go to the joint applicants and those supporting their position.  Then I'd go to API, the ARA, NRA and Ai Group, and then provide an opportunity for the other interested parties, RAFFWU, the newsagents and the Department as they don't conveniently fit into either group to make whatever submissions they wanted to make.  Then you will have an opportunity to reply to whatever anyone else says.  If there is no objection to that procedure then I am not sure whether it's you, Mr Friend, or Mr Borenstein, but perhaps if one of you leads off.


MR FRIEND:  I don't think we have tossed a coin, but I am happy to lead off, your Honour, as one of the applicants.  The background paper if I may say so has very helpfully summarised a great deal of what we would need otherwise to do by way of the submissions, and of course the Commission has the benefit of very detailed written submissions from all of the parties.  We, the SDA, also rely on the submissions of the MGA and the ACTU.


JUSTICE ROSS:  I am sorry, Mr Friend, I am sorry to - - -


MR FRIEND:  That's all right.


JUSTICE ROSS:  - - - I should have mentioned at the beginning the point you have just raised that we have had the benefit of reading the submissions, and this isn't directed at you, Mr Friend, it's a general observation, but in order to provide an opportunity for each party to focus on the issue of particular concern to them we would encourage each of you not to repeat what you have already put.  We understand the submissions put.  Where we haven't understood it we have asked the question, or we will ask the question.  Yes, Mr Friend, I am sorry, go on.


MR FRIEND:  Thank you, your Honour.  Some of the submissions seem to characterise this proceeding as in effect a choice between the proposal put forward by the joint applicants and the proposal put forward by ABI.  We submit that that's not really the situation here.  We have elaborated in our submissions the reasons why we haven't really been in a position to deal with the ABI proposal as an application for a permanent change to the modern award.  That's a very big question and a very major issue.  We haven't seen their proposal until a little under two weeks ago, and their final proposal only in the last couple of days.  So if there were to be considerations of permanent change we have said in the submissions we want a better opportunity to deal with it by way of evidence and submission.


We came here as the joint applicants in order to try and achieve something in the short term of a temporary nature to assist with the situation that has arisen out of COVID-19, and that's the way we put our case.  There can however be some clarity achieved by comparing the two proposals and the background document does this if I can just touch on these things.


The joint applicants want a temporary change to deal with the COVID issue.  Employers, the ABI proposal, wants a permanent change.  The joint applicants want to have a situation where there is one agreement in respect of each period of work.  Now, it may be a single additional shift and it may be an agreement covering some months in which additional time will be worked, but just one agreement in respect of each of those circumstances.  The ABI proposal is for there to have to be two agreements; one for a general agreement to be available, and then a second for an agreement on each occasion and availabilities called upon.


We in the joint application want there to be definite hours.  The ABI applications want standard authorisation.  The joint application seeks arbitration be available in respect of hours becoming permanent.  The ABI doesn't want arbitration available.  It doesn't mean that the ABI adopts the position where that issue can never be litigated, because of course as it's part of the award the question can come before the court.  So what they really want is a situation where a quick, simple and effective solution to the problem is not available, only an expensive and time wasting one which will involve a year or two of litigation before one of the Federal Courts.


The joint application seeks that a part-time employee have at least nine permanent hours before additional hours can be added.  The ABI application has no limit, no lower limit, and we would take from that that the only limit is the minimum engagement under the award, a part-timer has to be employed for at least three hours per engagement, and that's where they see as being an opportunity for use of their proposal, which is that someone be employed for three hours and then have to give an undertaking or the opportunity to make themselves available for any number of hours up to 38 in every week.


If you compare those two systems the joint application we say is one which gives flexibility in a fair and measured way which is supported by a number of employers, and MGA and COSBOA coming along supporting this application meant that a number of small businesses also support that.  The change proposed by ABI sweeps away what has been understood as the basis of part-time employment in this industry for a very long time, and replaces it with something which moves towards, we say, a zero hours contract.  Obviously it can't be a zero hours contract because the employee has to be employed as a part-timer, so for three hours, but it would leave open the situation where there can be people employed for three hours and asked to indicate availability for a much longer time and have some ability to refuse work in a legal sense, but maybe not a lot of ability to refuse work in a practical sense.


Now, we have said a lot about this in the submissions and I don't want to go over it again.  Perhaps if I can turn instead to what seemed to us to be the three basic grounds of opposition.  The first of those which is raised substantially by ABI, to a lesser extent by AiG, ARA and the NRA, that what the joint application achieves can already be done under clause 10.6.  If one reads the employer's submissions carefully it seems clear that that's not clear.


ABI make the argument that type of situation is available.  AiG describe it in paragraph 7 as arguably the case, where in paragraph 22 as 10.6 being not sufficiently clear.  ARA equivocate by saying if they're understanding 10.6 is correct then there is no need for the joint application.  The NRA put it in paragraph 3.11 on the basis that 10.6 appears to grant the ability to do what we're proposing.  Well, if you look at the MGA submissions they make it clear that the Master Grocers liked the clarity of what is being proposed by their application.


It is obviously the case that it's not clear to all of the employers out in the High Street, and bearing in mind that this is an industry with a very large number of small employers, I think in our submissions we point out that of those who have employees almost all are less than 20 employees.  The joint application makes it crystal clear how these additional hours can be altered and in a sense provides a checklist for how to do it in the course of the application.  So it provides that clarity, it provides flexibility, and it also provides protection with the employees.  So we don't accept that it's unnecessary because it can already be done under 10.6.  It's obvious that 10.6 is not understood in that way in the industry, and if that needs to be fixed that's a matter for another day we would say after a proper review of the award and the history and a proper opportunity for the parties to consider various changes.


The second major point that is raised against us is that it's said that the joint application is complex.  We don't accept that, we say it's simple and it's clear and easy to understand.  It is less complex than the ABI's proposal which involves as I said two agreements on each occasion an employee is asked to do additional hours.


The further point that's put against us is one that is raised in the background document as question 9, "Did the SDA support the approval of the three agreements set out in paragraph 30; the Kmart, Woolworths and Coles agreements, and if so what's the difference between those arrangements and the ABI proposal?"  The answer to that question is, yes, the SDA did support the approval of those agreements containing those clauses, and the difference is a substantial one.


Firstly, those were agreements and had to pass the BOOT, and so one has to consider any detriment which might flow from the standing agreement provision against the other benefits in the agreements which were provided to employees, including around rostering shifts, et cetera.  Secondly, in each of those organisations the SDA has a long history of involvement with the workforce, a delegate structure, and the ability to deal with disputes through agreements by arbitration.


So you have got a well represented workforce which is unlikely to be exploited in a way which could occur in circumstances where a standing agreement could be used in an opportunistic way by an employer.  So they're very substantial reasons why the SDA can't agree to this going into the award where there is really no ability to enforce or police or view what's happening in all those thousands of workplaces where it could be used, which is why something that is clear, as we submit, and easy to apply is what has been proposed in the present circumstance.


Those as it seemed to us were the three major points raised by the employers against us.  If I can turn now to the questions raised in the background document starting with the question at paragraph 18, do we agree with the summary at paragraphs 10 to 18?  The answer is, "Yes."  Similarly do we agree with the summary at 19 to 20, "Yes."  There is more detail, but we are not assuming that the summary is ignoring all of the detail.  We are then asked at question 3 under paragraph 36, "What is the effect of the note under clause I.2 of the appendix?"  The effect is intended to ensure that every additional hours agreement verse the complies with the requirements of clause 10.5 of the award, that is that the hours and days are identified, and the agreement was made in writing.  The times are identified and meal breaks, et cetera.  It's to ensure that there is clarity moving forward for the employee and the employer about when the work is going to be undertaken, and how it's to be done.


The second part of that note is to say that the making of the additional hours agreement will be an agreement to mutually change a roster to include the increased hours in the roster.  That's obviously the case, but one should clarify this.  If it's a one‑off ad hoc arrangement for additional hours, it's not an ongoing change to the roster.  If it is an agreement for a number of months or for a period of the agreement to work additional hours on particular days, well, then that would be a change on the roster.


This also raises one of the points which has been referred to in the background paper raised by the Newsagents, where it's said at (8) to (10) about the rosters being changed or not changed.  The explanation for that is the roster is changed.  If there is an ongoing agreement it's a one‑off, then the roster is not changed.  If the roster is changed, then rostering principles apply, but obviously consultation, for instance, is not necessary because there is already an agreement before you even get to the stage of making the change.  The second question - - -


JUSTICE ROSS:  I'm sorry, just before you leave that one can we stick with I.2 for a moment.




JUSTICE ROSS:  The introductory words there say, "Subject to clause 15."




JUSTICE ROSS:  For myself, I don't understand why you would need to put the words "subject to clause 15" as the schedule that you're proposing does not in any way alter the operation of clause 15.


MR FRIEND:  No, well - yes, I understand what your Honour is saying.  That has probably been drafted in order to ensure that the protections in clause 15 continue as necessary.


JUSTICE ROSS:  All right.  Well, it's a question I'll put to Mr Izzo in due course because one of the questions to ABI was whether the various limitations in clause 15 apply to their arrangement and I guess the same issue arises that on its face their proposal doesn't alter it, so therefore it would.  I understand you're sort of more for clarity or an abundance of caution.  Is that - - -


MR FRIEND:  Correct.  That's the way I understand it, your Honour.


JUSTICE ROSS:  All right.  Okay.


MR FRIEND:  It has just been put to me in a message that it's also to alert the parties - this is perhaps what your Honour was saying - that 15 continues to operate.




MR FRIEND:  But I thought that was the case.  Now, if I can move on to clause 1.3.  It is not the intent that an employee should be paid if he or she is not ready, willing and able to work.




MR FRIEND:  It only applies if they're not required to work.




MR FRIEND:  There is an entitlement to be paid if the employer says, "You stay home today."  This isn't something that the employer can turn off and on.  That's one of the important, we say, significant protections for employees which doesn't appear in the ABI proposal.  It's one of the significant aspects of part‑time employment as opposed to casual employment.  The ABI proposal really takes us to casual employment without casual loadings and that's the significant objection we have to it.


The next question is in respect of clause 1.4, why do you need the 24 hours' notice.  It is, with respect, your Honour, a good question.  I think again that is there to perhaps indicate to parties that it shouldn't be just done on the spur of the moment, but of course if there is agreement there is agreement, so it's perhaps not as necessary as it might otherwise be thought to be.


If I can then move on to question 9.  I have dealt with that in the submissions dealing with the submissions of the employer parties, which takes me then to the final question, question 10:  if the Commission is minded to vary the award to provide for standing availability, what additional features are then proposed.  We're not really in a position to answer that in any thoughtful or helpful way.  As I said, we have only had this proposal for a short time.  My clients object to it very strongly.  It is a really big change to the way that part‑time work operates under the award.


It's one that is not - as we have set out in the submissions and I don't want to go over them, but it's not supported really by any evidence.  The expert report doesn't take things anywhere, in our submission.  Until we have a better idea about what was happening, it's very difficult to say what protections should there be other than those that we've put forward in the proposed appendix I.  I can't be more helpful than that.


It comes back to also the point that we have said in our written submissions and I said at the beginning, it's very difficult for us to mount any sort of case.  We haven't been able to mount any sort of case in the time available about a permanent change to the award if that is what is being contemplated, especially at this stage.  We have made that complaint.  If that's contemplated, we want more time, we want the ability to put on evidence and to think about things, but all I can do is make that submission at this stage given the way that matters have proceeded.


I think that deals with all the questions in the background paper.  As I said, I don't want to re‑hash everything that we've written.  I'm happy to deal with any questions that the Bench might have in respect of matters raised in our submissions, but otherwise those are the oral submissions of the SDA.


JUSTICE ROSS:  Thank you, Mr Friend.  Mr de Bruin, I wonder, are you content if I go to Mr Borenstein from the ACTU now, hear what he has to say and then come to you or did you want to go next?


MR DE BRUIN:  No, I'm happy with your proposal.  Thank you, your Honour.


JUSTICE ROSS:  All right.  Mr Borenstein, if we can go to you.  I can't hear you, Mr Borenstein.  If you're talking, you might be on mute.  Is Mr Kemppi there?  Just bear with me for a moment.  While we're seeking to connect with them we might go to you, Mr de Bruin, and whether there was anything you wished to add or anything you took issue with in the background paper, or anything you wanted to add to your written submission.


MR DE BRUIN:  Thanks, your Honour.  We agree with Mr Friend and his responses to the questions that you have asked in the background paper.  We have always sought the simplest form of agreement for our members; the small business and family enterprises.  We believe that what we have within the joint application satisfies those needs of our members, so, no, we have nothing further to add.


JUSTICE ROSS:  All right.  Thank you, Mr de Bruin.  We might go to Mr Borenstein now in relation to the ACTU's position.  Mr Borenstein, as you go through what you wanted to cover orally, if you can also deal with the questions that were set out in the background paper.  I can see you, Mr Borenstein, but I can't hear you.


MR FRIEND:  Your Honour, Mr Borenstein is in a room next-door to me or two doors up.  I might just go and grab him - - -


JUSTICE ROSS:  Yes.  Thank you.  Mr Borenstein, Mr Friend is coming to rescue you.  I don't think he can hear me.  Mr Borenstein, can you hear me?


MR BORENSTEIN:  I can.  Thank you.


JUSTICE ROSS:  Okay.  You want to be careful Mr Friend doesn't start charging you rent.


MR BORENSTEIN:  We've already had that availability agreement entered.


JUSTICE ROSS:  All right.  Well, as I was indicating before, if in the course of - we've had the opportunity to read the ACTU's submission.




JUSTICE ROSS:  There is no need to take us through that in terms, but in the course of your oral supplementation if you could also deal with the questions that were posed in the background paper.


MR BORENSTEIN:  Yes.  I must say that we had made our written submissions expansive to avoid the need to spend much time orally supplementing them.  The central theme that we wished to convey is that which the Commission has summarised and extracted in the statement or document that was prepared this morning, at paragraph 25.  The central aspects that we wished to emphasise were that this is an application that is before the Commission in particular times and the Commission should approach it cognisant of the special nature of the times that we're in.


That is, coming through the effects on the economy of the pandemic over the last year and the slow and perhaps uncertain emergence from that, and the particular effects of all of that on the retail industry.  Our concern was that the application is one that deals with a hopefully temporary problem and provides a temporary solution rather than attempting a permanent rewrite of the idea or concept of part‑time employment.  That is a central theme of the submission which we've made.


The second thing is that we have expressed considerable concern about the effect that the ABI application will have on the established structure of part‑time employment under the award.  The ACTU is very concerned about the real potential for it to be an impetus for considerable casualisation of the part‑time workforce in the retail industry.  That's viewed by the ACTU as a retrograde step and not one that should be welcomed particularly where it's being sought to be introduced in a period where the workforce - which is vulnerable, in any event - is under greater pressure as a result of the pandemic and now the imminent withdrawal of the JobKeeper supplement.


They are the two main themes that our submissions seek to address and to advance in support of the schedule I application by the unions, MGA and in opposition to the other application.  We also made some submissions which I would just like to mention before I go on to the questions.  We also made some submissions about the arbitration clause and the dispute between the competing parties about whether that clause should include arbitration for refusal of the upgrade of hours.  We wanted to simply draw attention to the fact that not including that in the arbitration clause does not make those disputes go away.


Those disputes will be had and the only question is where will they be resolved.  The choice is they can be resolved in a complex, technical, drawn out, expensive process in the Federal Court with penalties attaching or they can be resolved in a fit for purpose tribunal like the Fair Work Commission which is experienced with industrial issues, potentially experienced with the particular industry in question where the process is far less formal, far quicker and far less expensive.


So we say that in terms of the arbitration clause that is the choice to be made, not whether the Commission should enter into how a business runs itself, because that will be an issue which the court will venture into if it goes to court.  It's not as though that's an issue that is out of bounds.  It is very much in bounds and the question is who will decide it.  We would say strongly that the most suitable tribunal to decide that is clearly the Fair Work Commission.  I don't want to say anything more about those submissions unless the Commission has some questions for me.


In relation to the specific questions which are set out in the document, I won't deal with questions 3, 4 and 5; they can be answered by the actual applicants.  In relation to questions 6, 7 and 8, they are answers for the ABI.  Question 9 is an answer for the SDA.  Question 10 is a question for the SDA and the ACTU.  We have a problem with answering that question, your Honour, and the problem stems from the wording of the question.  We're not clear about what is the intention of the question.  The question says:


If the Commission was minded to vary the Retail Award to provide for a standing availability of the type proposed by ABI -


now, what we're not clear about, your Honour, is whether what that's referring to is the ABI package - that is, the proposed variation which the ABI is putting forward as a package - or whether the question is referring simply to the first stage of that proposal which is the discussion between an employer and employee where the employer effectively says to the employee, "I'm going to employ you to work on Monday and Tuesday, but I might have additional hours beyond that.  Are you interested and what days would you be interested in?" and some arrangement is reached about that.


Now, we're not clear whether it's that latter matter that the question is referring to or whether it's the whole of the package.  It would assist us in answering that question if that could be clarified for us.


JUSTICE ROSS:  I'm not sure speaking for myself, but if I turn my mind to which of those propositions I think it's fairly clear from the terms of the joint application and where it differs from relevant parts of the ABI proposal.  For example, in the right to request additional hours it's clear what the differences are and you have indicated your support for the joint applicants' position.




JUSTICE ROSS:  The question was really - not to put fine a point on it, Mr Borenstein - to draw out the argument from both organisations because the proposition seemed to be certainly by the SDA, as Mr Friend has confirmed, that, well, they're not, you know, particularly contemplating the ABI proposal and it ought not to be granted in any form.  If you take the two propositions you were advancing, then answer with respect to each proposition as best you can.


MR BORENSTEIN:  Well, if the question is dealing with the ABI package as a whole, then my instructions are that the ACTU use that package as so retrograde and so undesirable that it cannot see that it can be retrieved.  The effects that are seen to flow from it are so significant and detrimental that the ACTU does not see it as being capable of being modified unless you really re‑engineered the whole thing so it doesn't do what the ABI wants it to do, which is to effectively casualise the workforce.


If we're talking about the second proposition, which is simply the idea, the initial stage where there is the discussion which I spoke about where an employer says to the employee who is starting work, "Would you be available for extra hours if we had them and what particular days would suit you best so that we can plan if they come up?" and if that's recorded in a document that wouldn't cause the same offence.  If we're asked what additional features we would attach to that, we would say that schedule I which is being proposed would readily then slot in under that initial conversation.  We would see that that initial conversation is the sort of conversation which one might expect would occur every day of the week in a workplace where a new part‑time employee comes in.


What the ABI feature adds, the initial part of it, is that it is formalised.  The formalisation of it doesn't really cause any offence.  It's when the actual additional hours come to be implemented; that's when the risk of the problems that we've identified in submissions arises.  So if it's the second scenario that I spoke about, simply the reaching of an understanding between new employee and new employer about what additional hours the employee might be available to do, that doesn't cause us any difficulty.  It's what follows.


We would say what should follow from there is the attachment of schedule I and the conditions in schedule I to follow on from that, but in terms of the package as a whole, as I said, I'm instructed that we could not - given the approach and the view we take of the effect of that package - add additional features to it.  Any features that we would want to add to it would be features which would take away from the package so that you would end up with something that the ABI was not suggesting in the first place.


JUSTICE ROSS:  When you say the proposed schedule would then follow, do I take it that what you have in mind there is there might be some discussion and agreement or recording of an employee's availability - - -




JUSTICE ROSS:  - - - but where you part company is you say that the employer no doubt would have regard to that availability and offering additional hours - - -




JUSTICE ROSS:  - - - that the employee could accept and that would be subject to the requirements of 10.5, recorded in writing, et cetera, in advance of the working of the shift.


MR BORENSTEIN:  Well, I think that in our schedule there is a greater degree of flexibility than that.


JUSTICE ROSS:  That's so, yes.


MR BORENSTEIN:  What I was proposing was that the provisions of the schedule would then come into play following that.  We would see the first discussion or agreement as a sort of an information step which would allow an employer to sort of plan their workforce requirements into the future and when they got to the stage of actually having a particular proposal to put to a particular employee based on that initial conversation, that proposal would then be made following the procedure in the schedule.


JUSTICE ROSS:  Okay.  I follow.  All right.  Thank you, Mr Borenstein.  Was there anything further you wished to put?


MR BORENSTEIN:  Not unless there's something that I can assist you with, no.


JUSTICE ROSS:  Thank you.  There was nothing from me.  I will just check with my colleagues whether they have any further questions for either yourself or Mr Friend.  Deputy President Asbury?


DEPUTY PRESIDENT ASBURY:  No, I have no further questions, President.


JUSTICE ROSS:  Thank you.  Commissioner Hampton?




JUSTICE ROSS:  All right.  Was there anything you wanted to add, Mr Crawford, from the AWU's perspective?


MR CRAWFORD:  No, thank you, your Honour.  We support the submissions from the SDA and the ACTU, and there's nothing additional I wish to add at this point.


JUSTICE ROSS:  Okay.  Thank you.  I think that takes us to you, Mr Izzo.


MR IZZO:  Thank you, your Honour.  I might start by addressing most of the questions in the background document, then I'll turn to our submissions if that's most convenient.  The first question that is addressed to ABI and all parties is whether we agree with the summary at paragraphs 10 to 18 of the statement.  We do, subject to one caveat and that is at paragraph 10.  The background paper says:


It appears to be common ground between various interests supporting either the joint application or the ABI proposal that there is a need for an additional degree of flexibility for part‑time employees in the Retail Award that is not otherwise permitted by its present terms.


We agree with that, save that we do wish to make the point - and I'm going to elaborate on this in due course - that when we talk about an additional degree of flexibility, what the union parties and MGA appear to be talking about is a most insignificant incremental addition in terms of flexibility, but subject to that caveat we agree with paragraph 10.


The second question is whether we agree with the summary in the background paper at paragraphs 19 and 20.  Again we broadly agree, but there is one caveat.  On page 6 of the background paper at paragraph 19, bullet point 3, and in the third bullet point under paragraph number 3, the background paper says:


The joint application model provides that an additional hours agreement may be terminated by mutual agreement with 24 hours' notice, such agreement not to be unreasonably withheld. The ABI proposal contains no such mechanism.


We would just like to clarify that.  The ABI proposal does contain a mechanism for revocation of any standing agreement and that is it can be unilaterally revoked by an employee at any time.  You go on to identify that, anyway, in the background paper, but I just wanted to note that point of clarification with respect of the comments in that third bullet point on page 6.


JUSTICE ROSS:  Mr Izzo, the revocation, that is in relation to the standing written agreement?


MR IZZO:  It is.  Are you drawing a distinction, your Honour, between the standing agreement and the subsequent agreement to work hours?


JUSTICE ROSS:  I am, yes.


MR IZZO:  Yes.  In that instance in our view, and I'll come to this, once an agreement is reached to work additional hours - that is, the employer has offered and the employee agrees - they would constitute ordinary hours that ordinarily no party could rescind.  If the employer sought to pull out from those hours, the employer would still need to pay.  Equally, if the employee was unavailable - often you would see that coming up in a form of leave being exercised under the NES - they simply couldn't


seek to, having agreed to a particular shift, unilaterally withdraw.  That is correct.  If that's what bullet point 3 is directed at, then I suppose in that sense it is accurate.


JUSTICE ROSS:  Look, it clarifies the distinction between the two in any event, Mr Izzo, so that's fine.


MR IZZO:  The next question is how does ABI envisage that it's proposal would operate in practice.  I am happy to take you through it, your Honour.


JUSTICE ROSS:  Can I just elaborate on that issue.  If I look at paragraphs 103 to 108 of your submission, and perhaps if I can step you through it, but that seems to be how you would envisage it operated.


MR IZZO:  That's correct, and what I am proposing, your Honour, I don't propose to go through the safeguards, because I think they're well understood and have been well ventilated, so there is no need to go through them, but it's really this standing agreement mechanism and then how you actually work the hours.  So what we envisage is that the starting point is that the parties will make a written standing agreement so it is in writing, and that the employee will outline the types of additional hours they may be willing to work at ordinary time rates.


Now, for some employees it might be, "I'm just available to work Fridays.  As well as my current Monday and Tuesday shifts I can work Friday 9 to 5."  For other employees they might indicate a broader availability in terms of additional hours.  It might be the balance of the days of the week on which they're not currently rostered, but they indicate in advance the ordinary hours they will be prepared - so the additional hours they will be prepared to work at ordinary time rates.


The next step that the standing written agreement contemplates is that it is made very clear to everyone in the agreement that the employee has a right to accept or refuse the additional hours.  It's quite important we put this in the written agreement itself so that an employee doesn't have to have regard to the award, they're actually told about their right in the written document itself, but they are also told once they accept an offer of additional hours they become ordinary hours, and that really feeds into the point of clarification I made earlier, your Honour.  Once that offer of work is accepted neither party can really rescind unless there is a legitimate form of leave on the part of the employee, or on the part of an employer if the work is not required they could pay for the shift in any event, which sometimes might happen.


The third element is that the agreement makes clear that it can be terminated at any time, and we make the point that that termination may not take effect until the next roster period, and where we envisage that having operation is if an employee hasn't accepted any shifts it's of no consequence.  The employee can terminate, they don't have to accept any shifts from that moment onwards, they won't work any additional hours.  Where that termination clause about operating from the next roster period has effect or utility is if an employer has offered work, the employee has accepted, and then after having accepted they terminate the standing written agreement.  In that circumstance the written agreement gets terminated from the next roster period, but it is envisaged that an employee would still work out whatever shift that they had accepted, and that's why that provision is drafted in that manner.


JUSTICE ROSS:  So, Mr Izzo, to be clear there's the broad availability standing availability agreement which has the features you have suggested, and then that agreement does not commit the employer to offer any shifts.


MR IZZO:  No, it does not.


JUSTICE ROSS:  No.  So that might be seen as the first stage, and in each and every case there's a second stage, and you describe that at paragraph 106 as the offer and acceptance; the offer by the employer of the additional hours, which presumably will be within the employee's stated availability, and the acceptance of that offer by the employee, and as you have indicated there is the protection that on each occasion the employee can refuse that offer, even though it's within their availability.


MR IZZO:  That's right, and the distinction here, much noise is made about first and second steps, and I will come to that in due course, but the distinction with this second step, if we can call it that, is because a standing written agreement has already been made the employer has the advantage of knowing when the employee is generally available, that they're generally open to working these hours, and what is contemplated is that in some form the employer will request, but we're trying to ensure that this actually is sufficiently flexible so the employer will use it.  So we are not trying to restrict how they request.  They may verbally speak to the employee if it arises on the day.  They may text the employee, they may email, they may use electronic rostering software.  They might use any means, but what they need to do is indicate, as a matter of practical reality they need to indicate a request for the employee to work.


The employee needs to do the same thing back, the employee indicate whether they're prepared to work or not, and again that could be a thumbs up in the store on the day, or that could be a text or some other form.  But what we are trying to do is ensure that that ad hoc offer and acceptance of extra work that is allowed to take place without a regime of stringent written requirements being imposed on it, and why we say we can do that is because we have the standing written agreement in advance, as well as an express right of refusal that has been communicated to the employee both through the award and the standing written agreement.  So that's how we see the second step working, your Honour.


JUSTICE ROSS:  Just exploring that for a moment, you have got an obligation under the regulations to identify which overtime hours are worked and the rate of pay and what have you.  In the circumstances you have outlined where there might be a level of informality about the offer and the acceptance, how do you deal with a subsequent dispute that might arise about whether or not the employee agreed to work those hours as additional hours as opposed to overtime hours?


MR IZZO:  Your Honour, we would say the employees have already provided that agreement in writing.  That's the purpose of the standing written agreement.  We think the more important question at that point in time is did the employee agree to work the hours at all.  So we say there is a standing written agreement to perform them as ordinary hours.  That has already been given.  The next question is when the actual need arises to work the shift does the employee actually agree to come to that shift, are they available, and at that point what's being sought from the employees is not agreement to work at ordinary time rates or not to be overtime, that was already given.


What's being sought is just agreement to work that shift, and you would look for the types of objective evidence that one would normally look for if there was a dispute, what was said by the parties, if there was something in writing what was it, what was witnessed, what was heard.  The fact that the employee turned up might also be an indication of the fact that they accepted the offer, and what we are conscious of is that the employer nevertheless does have an obligation to at least record hours of work for the purposes of making payments, and so there will be a record of that nature, but there won't be an overtime record as such because it doesn't constitute overtime.  But we say the employer won't be put to proof on that point because of the standing written agreement.


JUSTICE ROSS:  I see.  Okay.


MR IZZO:  I think in terms of the practical operation - let me just see if there was any other point I wish to address - and I have already addressed the right of revocation, your Honour, and how that's intended to work.  We make it very clear if there is going to be variation of the standing written agreement that also needs to be kept as an employee record, as does the written agreement itself, and just to address your question, your Honour, about the employee agreeing to these matters being overtime, I mean at the end of the day if the employee at any point has any discomfort about being offered hours that they no longer wish to be overtime they have a ready means to address that, they can just terminate the agreement.  There is a unilateral right of termination.  So they aren't in any way wedded to this arrangement if it does not work for them, and that's a point that we wish to make very clear.


So that's how we see it working in practice.  As I said the safeguards I think are relatively self explanatory where each of the parties sit on that.  You then asked in the seventh question whether the limitations in clause 15 apply to our proposal.  The short answer to that question is we see clause 15 as being applicable.  If I can draw just a couple of - just make it comprehensively clear how we see that working; 15.1 to 15.5 are all about the spread of ordinary hours, what are ordinary hours, how many you can work in a day, those types of things.  Naturally they would all apply.


Clause 15.6 is about full-time employees, so that doesn't apply.  15.7 is about rosters, and it talks about you can't work more than five days per week save for an exception, and if you're working six days in a week there has got to be four days off the following week.  There's provisions about consecutive days off.  All of those would continue to apply.  15.8 is about regularly working Sundays and if you do end up working Sundays you need to work them in such a way that you have three consecutive days off.  That would still apply.  Then 15.9 is about notification of rosters.


To the extent that an employer is rostering 15.9 would also apply, but what we say is that if you have an offer that's made outside of the rostering process, that is an employee might be working a shift and they're offered extra work that night or the next day, if there's an offer, do you want to do this extra shift, and an employee accepts, well that's not really rostering, that's not the employee mandating any additional work.  So 15.9 might not be applicable in that sense because its provisions don't go to that type of arrangement, but broadly speaking clause 15 continues to be operative, and to the extent it is relevant it will apply to the additional hours.  So for instance if the additional hours are rostered then 15.9 would certainly apply.  But that's our answer to that question, so broadly 15 is not in any way overridden by this clause, and to the extent it is relevant it applies.


The next question related to an employer discussing with an employee the request and exploring whether they can reach agreement on an increase to the number of hours, and the Bench has asked why we haven't adopted the phrase "Genuinely try to reach agreement", which is both I know in the union draft, but also my attention has been drawn to the fact that it's in some annual leave provisions in that award as well.


We did intentionally depart from that language.  We intentionally departed from that language because we had a concern about what the exact impact of genuinely trying to reach an agreement is.  For instance if the request to convert is possible in the employer's operation, but not practicable, for instance it might have financial consequences, it might have operational adverse impacts, theoretically does genuinely trying to reach agreement mean the employer is required to overlook those financial impacts or operational hurdles because it has to genuinely try to reach an agreement, notwithstanding that the employer has a right to refuse on reasonable business grounds, and - - -


JUSTICE ROSS:  Wouldn't a financial impact if it wasn't insignificant constitute a reasonable business ground to refuse?


MR IZZO:  It would, your Honour, but I suppose we had a level of discomfort between our genuinely trying to reach agreement to convert since with reasonable business grounds.  I suppose if it's genuinely trying to reach agreement having regard to the fact that you're not required to if there's reasonable business grounds, and if that's all understood then perhaps the concern goes away.  I am just conscious that in the annual leave provision that the concept that an employer should try to reach an agreement with an employee, I mean probably does have greater impost an employer.  There may be financial or operative - sorry, operational adverse impacts on an employee taking annual leave, but it is the employer's obligation to try and make it work, because this is an entitlement under the Act that an employee has a right to take.


In this case, yes, there's a right to convert, but there is a significant qualification about reasonable business grounds, and that's why we had this comfort about putting that level of an onus on the employer.  Similarly if we look at the casual conversion provisions of this award, which ostensibly deal with the same type of concept, they do not use any, or they do not impose any obligation on employers to genuinely try to reach agreement.  So that's why we tried to explore a formulation of wording that encourages consultation and a good faith process without going that further step.


I think my submissions might delve into some hypothetical level of concerns, your Honour, and in terms of the materiality of some of the matters we are going to deal with today this is probably not high on the list from our perspective.  We think the clause still has good work to do regardless of the formulation chosen, but that is one, the wording we went with.


JUSTICE ROSS:  That's fine.  Thank you, Mr Izzo.


MR IZZO:  So they are the questions.  I'd now like to address the Bench on five broad matters, your Honours, and I'm very conscious of Ross J's reminder that you've all read the submissions and that you don't want them reread back to you, and I'm conscious of that, but I think these are the five matters that we need to canvass.


The first, and I say the most important, is that there are two fundamental threshold issues that must be addressed if one is to seriously consider the union application, and they relate to clauses 10.5 and 10.6, and I'll come back to that.


The second is I would like to very briefly just outline our position with respect to both claims, that is, what we support and what we do not support.


The third was that I was going to explain our proposal, but I've actually already done that, so we can skip that.


The fourth is that I'd like to cite two particular matters in support of our claim that warrant particular focus, and the fifth is I do need to respond to some matters that have been stated in the written submissions overnight and orally today.


If I can come to the issue at the heart of these proceedings from our perspective, your Honours.  The award currently contains a mechanism for varying the hours of a part‑time employee.  That much is indisputable, because that 10.6 says you can vary a regular pattern of work.  So there's clearly a mechanism to vary the pattern of work of a part‑time employee.


We have set out in our submissions a number of matters that we say substantially and compellingly demonstrate that what 10.6 does is it enables an employer to agree with a part‑time employee at any point in time to vary their pattern of work so they can do extra hours or different hours, provided it is in writing and it is done before the change in hours takes effect.


Mr Friend has indicated that he doesn't think - when I say "he", the SDA doesn't think it's clear, and Mr Friend's pointed to some submissions from other employer organisations and tried to draw that out, that the operation of these clauses is unclear.


He hasn't really explained why.  Mr Friend hasn't actually posited a view as to what 10.6 means or how it operates or what the point of it is, he's just said it's unclear.  I say with the greatest of respect that this position is manifestly unsatisfactory, and the reason it is unsatisfactory is because the SDA is repeatedly on the record saying that the clause does the very thing I say it does, and Mr Friend has not engaged with that at all.


JUSTICE ROSS:  Leave aside that, for the moment, Mr Izzo, I must say, reading what I'll refer to it as the Gollan report, exhibit ABI 1, it seemed to me that some of the participants in the focus groups and some of those who responded to the survey may also not understand your position as to how the provision works.


You've also got Ai Group's submission which indicates it could do with clarification, and they think it works in a particular way.  So there doesn't seem to be a unanimity of view about what the clause permits or doesn't permit.


MR IZZO:  I agree, your Honour, that employers have difficulty understanding what it permits and does not permit.  I agree that I think the Gollan report tends to draw that out.  I think it's a point that the MGA have - whether it's in their submissions or in statements they've made in conferences prior, I think it's a point they make as well.


I agree that in practice, employers are having difficulty applying clause 10.6, and our response to that is to somewhat clarify the wording, but from a legal standpoint, we hold the firm view that it provides a very basis to vary hours of work in advance, provided it's in writing, and if that is indeed what it does, then it makes for significant concerns about the union application, because the union application imposes a whole suite of new burdens on employers so that they can do what they are already permitted to do under the award.


I'm not going to repeat the provisions in our submission, but I will note the paragraphs for your reference.  We identify at paragraphs 18 to 20 of our submissions the actual decisions of the Full Bench at the time that made the award about their view about how these provisions operated, and that they were of the view that the clause would enable variations to be made for additional hours to be worked at single time rates provided it was in writing.  That's located at page 6 of our submissions.


Paragraph 21 is where the SDA itself has concurred with that view, and the SDA talks about variations to part‑time work being able to be achieved through processes in the part‑time clause which allow agreed variations to the agreed pattern of work, and that is then repeated again at paragraph 24 of our submissions, where we quote the SDA in relation to the Coles enterprise agreement.


But at its heart, what we say is you don't even need all those authorities.  The natural and ordinary meaning of the words here talk about "You can vary the regular pattern of work provided you do it in writing".  Well, the regular pattern of work's been set.


If I want an employee to work an additional day next Friday I vary the regular pattern in writing.  I write to them.  I set out, "For next week can you please, as part of your regular pattern, also work an additional Friday", or, "Instead of your regular pattern, work Friday.  Do you agree?"  The employee signs off and I've done it, and then if I want to vary it back I can either do it by way of a subsequent agreement, or perhaps I could embody it all in one written agreement.


But we say that the plain meaning of 10.6 could only be of that effect, otherwise I'm not sure what it is that they're varying, and that's why when I said that the position of Mr Friend is unsatisfactory, it's unsatisfactory because how do they say it operates?  If they don't say it has my effect, what is the countervailing interpretation as to how 10.6 operates?  What are you varying then if not the hours of work?  I do think that there is a real problem for the SDA position, because they have repeatedly stated that it provides an ability to vary agreements.


The final thing I would say on that is this was looked at, this provision, in some detail by Deputy President Gostencnik when the Coles enterprise agreement was reviewed.  That's outlined at paragraph 25 of our submissions.


Deputy President Gostencnik formed the view that the flexibility that Coles achieved through a standing written agreement already exists in the award because, he says, an employee and Coles are able to agree on a variation contemplated by the award, and then he goes on to say:


But through a scheme involving less frequently executed written variation agreements.


Clearly what the Deputy President is referring to is the fact that under 10.6 every time you vary hours of work you would need to execute another written variation agreement.  That's the mechanism that's being put to the Bench by the union application today, is different written agreements every time you want to change someone's hours of work, and Deputy President Gostencnik's decision, outlined in our submissions at page 25, seems to clearly express the view that that can already be done.


So we say all of this for two reasons.  (1) we make the point clear in our submissions that if the Bench agrees with us that this is the legal effect of clause 10.6, there are fundamental problems with including the union application in the award.


One is there's a section 138 problem.  Section 138 of the Act says that the Commission should only include in modern awards terms to the extent they are necessary to achieve the modern awards' objective.  If this is a flexibility that already exists, then it's not clear inserting it again is necessary to achieve the modern awards' objective.


Equally, sections 134(1)(g), which talk about a simple, stable and sustainable award system, and 134(1)(f), are offended by the union application, 134(1)(f) dealing with the impact of modern awards on business and regulatory burden, because you are inserting a flexibility that already exists to operate in parallel but with additional burdens which don't currently exist, and so we say there are material problems with accepting the application.


I agree, your Honour, that it is not well understood, and perhaps not understood by some of the employer organisations, the point Mr Friend makes, but the answer to that is to amend 10.6 so that it can be better understood.  That doesn't necessarily need to happen - I mean, we've proposed the mechanism for that to happen, we've proposed a consequential amendment, we say, so that 10.6 is properly understood, but that can be done either as part of these proceedings or shortly after these proceedings, in due course.


That's the solution.  If the flexibility already exists but the award doesn't express it clearly, let's express it better.  Let's not introduce a whole suite of new provisions.


That comes to the second threshold issue.  Your Honours, I know you've been quoted this decision a thousand times before, but there is a decision called the 4 Yearly Review of Modern Awards:  Preliminary Jurisdictional Issues decision (2014) FWCFB 1788.  In that decision the Full Bench identified that where there are to be substantive changes to the award, they should be supported by evidence and cogent reasons, with submissions and evidence going to that point.


In this case we have a suite of new burdens being imposed on employers but with no correlating flexibility being attained, and if that's the case, the question arises, well, why are any of these additional burdens required?  Is the flexibility not being abused currently?  Is the flexibility being subject to disputes that require arbitration currently that are resulting in protracted court hearings?


No evidence has been put that the flexibility as it currently operates requires these safeguards.  I think the highest it gets is that the flexibility is not properly understood.  Well, if it's not properly understood, as I said, the course of action that's most appropriate is to rephrase it so it can be understood.


So we say these fundamental issues need to be grappled with if the Commission's minded to approve - or to grant the union application, because you will be inserting a flexibility that already exists.


The final thing is - and we note that we were startled by the position of Master Grocers and COSBOA.  We maintain that surprise, because if it is clear that the flexibility� <table cellpadding=0 cellspacing=0>� <tr>�� <td width=195 height=145 bgcolor=white style='vertical-align:top;background:�� white'>�� <table cellpadding=0 cellspacing=0 width="100%">��� <tr>���� <td>��� �<div style='padding:3.6pt 7.2pt 3.6pt 7.2pt'>���� <p class=MsoNormal align=right style='text-align:right'>


JUSTICE ROSS:  Can I just go to that, Mr Izzo?  You say you're startled, but as I read the Gollan report, ABI and the ARA, I think, selected the focus group participants.


MR IZZO:  Yes, your Honour.


JUSTICE ROSS:  They don't seem to think that you've got the flexibility in 10.6 that you assert is there.  Look, I understand what you say about it, but at the moment I've got your position and, I think, Mr Tindley's, or it might be Mr Millman's, submission to a similar effect, but the very evidence that you rely on from people that your respective organisations have identified suggest that they don't think it has that effect.


MR IZZO:  It's not understood.  I have to accept that lay employers in the industry do not understand its operation.  I accept that, your Honour.




MR IZZO:  But the submission that I'm putting is that as a matter of construction the flexibility does exist, and that's why I keep saying, if it's not understood properly, and if lay employers don't understand it, we need to change the wording, but not just reintroduce it again.  I suppose that's my point.  So they are the two threshold matters, and ‑ ‑ ‑




MR IZZO:  Yes, Commissioner?


COMMISSIONER HAMPTON:  It's Commissioner Hampton here.  Just before you leave the - I think this is the first issue you identified, and in particular you have been dealing with the implications of the award as your clients currently see it.  Can I just call you a little further on the import of clause 10.10.  This is an issue you raise at paragraph 10 of your submissions.  I appreciate that this is a roster provision, but I'm not sure what - the point you're making about the impact of this on the joint applicants' proposal and I'm not sure also how it sits with your proposal.


MR IZZO:  Commissioner, I agree that if one reads 10.10 there is a little tension between 10.10 and the provisions that precede it.  My understanding of 10.10 is that - well, sorry, if I can go up a little further before I get to that.  Before we get to 10.10, if I can take you to 10.8.  10.8 talks about:


For any time worked in excess of the number of hours agreed ... the part‑time employee must be paid at the overtime rate.


That is an interesting formulation of words because what 10.8 doesn't say is if employees work different days or if they work different times, overtime doesn't apply.  That is if they work outside the regime agreed in 10.5, there isn't necessarily an overtime obligation.  It's only when you exceed the number of hours and that's an interesting provision given that you can only agree to changes to the 10.5 arrangement by mutual consent.  It's intriguing that the overtime penalty is only to working a larger number of hours.


I think that's an important contextual consideration when you get to 10.10, because then when you get to 10.10 is talks about the employer being able to change the roster of an employee with seven days' notice.  So reading all those provisions together, I formed the view that an employer can change an employee's hours unilaterally by notice of the change pursuant to a roster.  Now, that sits a little uncomfortably with 10.6, but it does sit comfortably with 10.8.


I don't see how 10.10 could have any other application. It's quite express and plain in its terms.  The roster may be changed by the employer giving notice.  It certainly doesn't contemplate mutual agreement, so we say that the security offered by clause 10.5 in terms of certainty over hours and days and time is actually somewhat qualified by the fact that you can still roster the employees at different times, it appears.  I have to concede there is a level of tension between the provisions, but that's how it seems to operate.


COMMISSIONER HAMPTON:  All right.  Mr Izzo, just to be clear then, do you say the proper application of that provision in context is that a roster change of the kind contemplated there would not require overtime to be paid?


MR IZZO:  That's right, but that roster change, Commissioner, could not involve more hours being worked or additional hours which 10.10(a) makes quite clear.  The applications before you are all about working extra hours, not about changing someone's existing load of hours to re‑cut them a different way.


COMMISSIONER HAMPTON:  All right.  Thank you, Mr Izzo.  Of course any other party that has a view on the operation of 10.10 and the import, I would invite you to deal with that in your submissions either in due course or as part of a reply.  Thank you, Mr Izzo.


MR IZZO:  Thank you, Commissioner.  The final point I wanted to make about the threshold issues when I referred to the preliminary issues jurisdictional decision is given the magnitude of the burdens being imposed one would have thought the Bench would require, whether it's some evidence or some submission, as to why this flexibility which already exists in our view as a matter of construction all of a sudden requires additional safeguards that have not previously existed.  We say that acts in distinction to what we're doing.  We are proposing safeguards; that's because we say we're seeking a new flexibility.  They are the threshold points.


In relation to our position, obviously we support the ABI's proposal.  That's an easy one to make.  In relation to the union application, we are firmly opposed to the application being granted.  We say two things about that.  One, I need to make it very clear that in our view it's better for neither of the applications before you to succeed than for the union application to succeed.  In our view it's a bad deal for employers and the reason for that is because of all the new obligations it imposes for it is an elusory or insignificant at best incremental benefit.  That's our position in relation to the union application.


We also say that the Commission should have concern that an application that is purportedly in the interests of employers - that is the union application - and purportedly in the interests of flexibly offering more work, is opposed by ABI and NSWBC, ARA, NRA and Ai Group.  That demonstrates the extent of employer concerns and that is a matter that should be of concern to the Commission.


A lot of noise has been made about the fact that this works for small business and that's why MGA and COSBOA subscribed to the proposal.  Well, I don't think we want to get into a show of strength about our various membership constituents in this, but ABI and NSWBC has a large number of small and medium enterprises as its member and we still remain opposed.  As I say, that's a matter of relevance to the Bench.


If I could now come to two matters in support of our determination.  We have obviously put forward a number of matters in our written submissions, but there are two that I particularly wish to draw upon.  The first is that the flexibility we are seeking has already been commonly sought by employers in this industry.  With a very preliminary review, we already identified nine enterprise agreements covering a large number of employees in this industry which have a standing consent mechanism like our own.


It should be unsurprising that the businesses that have secured these benefits are mainly larger retailers.  That's because they are the ones that have the capacity to bargain.  It should be self‑evident - and I think the Commission has accepted this before - that smaller businesses have less of a capacity to bargain and that then brings me to one of the objects of the Act which is section 3(g), which talks about the need to consider "the special circumstances of small and medium‑sized businesses."


This variation will allow those businesses to benefit from a standing consent proposal that is already widespread for the bigger end of town, so it would put them on an equal footing with bigger retailers and that is a matter that commends our standing consent proposal to this Bench.


JUSTICE ROSS:  Well, Mr Izzo, how does that sit with the need to encourage collective bargaining if we simply flow - I mean, on your argument, well, there are other provisions in those agreements, as well.  Should we just flow those into the award to benefit the employees employed by small business?


MR IZZO:  Your Honour, as everyone is aware, the application of the modern awards objective is an evaluative exercise which involves sometimes competing consideration.  I accept that there is a need to encourage collective bargaining as one of the factors and that is relevant, but that does not mean if there is a flexibility for employers or, on the other hand, an entitlement for employees that broadly has merit, that aligns with the other modern awards objectives - that does not mean the Commission should not be putting those provisions into a modern award.  If there is broad industrial merit and it aligns with the balance of the modern awards objectives then it will meet the modern awards objective.


There may be provisions which are desirable but not necessary.  Those provisions are the very kind that can be bargained at an enterprise level.  What we say is this is a necessary flexibility.  The reason it's necessary is partly supported by the research report we have filed which demonstrates a level of disinclination to employ part‑time employees because of difficulties with increasing their hours.  Now, that has a number of adverse consequences when one looks at the modern awards objective to do with the needs of the low paid, increasing social inclusion through workforce participation.


When you conduct that exercise - that evaluative exercise - and you identify there is broad industrial merit for this in terms of the other objectives and then you identify that smaller businesses simply can't access this as easily, I say that commends the variation, too, notwithstanding that, yes, it could be bargained.  I suppose that submission, your Honour - it could be that we never include anything new in an award ever again if it can be bargained.


Clearly there reaches a point where the Commission is satisfied of the necessity of the change because it broadly aligns with all the objectives as a whole and we say that's where we land.  I think that is as best an answer I can give you to quite a challenging question, your Honour.


JUSTICE ROSS:  Thank you, Mr Izzo.


MR IZZO:  The next - and I'm not deliberately trying to be provocative today, but to turn to the second point of my support for our position I do think the SDA again needs to better explain its opposition to standing consent.  Mr Friend has identified that the submissions the SDA has made about standing consent and its support was in the context of enterprise bargaining and I understand that.  I understand that it's part of a package deal and maybe that's why they supported it.  I don't know all the bits and pieces of the package deal.


That's not the position the SDA has publicly taken.  The SDA - and we quote this in our submissions - has gone far further than supporting these agreements as a package deal.  That's the gloss that has been put on it today by Mr Friend.  That's not what they've said on the record in Commission proceedings.  The key case of the Coles EA case - we quote it at paragraph 123 of our submissions and in that Gostencnik DP notes:


The SDA contend that the standing consent provisions ... are a benefit to employees and provide a clear protection -


in terms of recording their wish to work additional hours.  They submit that it doesn't -


circumvent the payment of overtime ... but affords a part‑time employee the opportunity to agree to working additional hours in advance and to verbally withdraw such an agreement at any point in time.


All these submissions are made at a generic level about the merits of standing consent.  The point that is further made by the SDA is that they contend the only difference between the operation of the Coles agreement clause and the award clause is administrative and allows Coles to implement a practical and logistically sound method of allowing part‑time employees to work additional hours.


All those submissions aren't about a package deal.  They are about the actual substantive merit of what is being sought.  It's not available to them to just depart from that unless they have sound reasoning to explain to us why all of a sudden the clause is objectionable.  We do think the SDA have not dealt with that matter satisfactorily.  They stand before the Commission today proclaiming that these types of standing consent provisions are akin to creating zero hours' contracts and we're told they take the retail industry back to the 19th and 20th centuries.


I mean, I struggle with that submission having regard to what the SDA has said on the record about the merit of standing consent and the fact that it is all too prepared to have it to large, large numbers of retail employers; Coles, Woolies, Kmart and so on.  We do think there remains across the aisle broad support for the notion of a standing consent arrangement, so that's the other matter that I would raise in support of our proposal.


The final thing just on the Coles agreement that's worth noting is that Gostencnik DP ultimately had to decide whether there was any BOOT issue in relation to this particular standing consent arrangement.  And at paragraph 20 on page 6 of that decision he ultimately concludes that the standing consent arrangement is effectively neutral when assessed against the BOOT because it does not leave employees worse off, and because it achieves a flexibility which is already made for in the award and that's a point I have already identified.


But certainly this is being looked at, at the Commission from a BOOT perspective and I know that Mr Friend made some comments earlier about this being important from a BOOT perspective.  Well, the answer is, at least from the perspective of one Deputy President of the Commission, standing consent effectively lands employees in the same place.  And that's obviously because of their right to refuse.


The final thing I would say in support of our determination is that we've addressed why our determination is superior at page 20 of our submissions and following, and I can commend the Bench to those particular elements of our written submissions.  And that is under, what we describe as contention 8 of our case.


The final thing that I wanted to do, your Honours, is to reply to the union's submissions.  There's some varies ones so I'll just deal with them each in turn.  The first - - -




MR IZZO:  Yes?


DEPUTY PRESIDENT ASBURY:  Sorry to interrupt you.  It's Deputy President Asbury.  Before you do that I just had a question about the proposed - the draft determination.


MR IZZO:  Yes.


DEPUTY PRESIDENT ASBURY:  With respect to 10.11 the draft determination proposes, as I understand it, that the employee can agree to work additional ordinary hours.  And it seems that 10.11 is framed a bit differently to 10.12 and it's also framed differently to 10.5 in the award.  Although AiG raises the point about, if this proposal is to operate in a way that's clearly understood, that any agreement needs to be consistent with 10.5 in the award.


MR IZZO:  So, Deputy President, our position is that in relation to - so your question is about the standing written agreement, isn't it?


DEPUTY PRESIDENT ASBURY:  Yes, my question is about the standing written agreement.  And really, is what you're proposing is that the standing written agreement can alter what's previously been agreed under 10.5?  And that's not only about additional hours, it might be about the days of the week on which they're worked or the start or finish time.


MR IZZO:  But - - -


DEPUTY PRESIDENT ASBURY:  And would it - - -


MR IZZO:  Yes, understood.  Sorry for cutting you off, Deputy President.




MR IZZO:  But I do understand your question.  So the starting point is, we certainly do not envisage that our mechanism would enable the standing written agreement to vary the ordinary hours that are agreed under 10.5.  So if an employee has agreed to work five hours on a Monday and five hours on a Tuesday, between midday and 5 p.m., the standing written agreement could not vary 10.5, at all.  You would need to rely on 10.6 to do that.




MR IZZO:  But what the standing written agreement can do is, and we've left again a level a flexibility for the parties to choose what suits them, but the employee and employer could agree, for instance, to say, yes, I'll work additional hours on a Friday, and they might specify the times on a Friday, it might be a Friday or it might be Thursday and Friday.  Now that is only about the additional hours.  So it doesn't vary the hours agreed in 10.5.  On one view, yes, they are now open to working other days, as well.  But that's only for the additional hours, not for the secure hours, if I could call them that, that were pre-agreed at 10.5.  Does that answer your question, Deputy President about the first element of it?




MR IZZO:  In terms of the level of detail you put in the standing written agreement there could be different approaches you take.  We filed an earlier determination which talked about that an employee can work additional hours and it needs to specify the number and when they might be working.  We steered clear of trying to be too prescriptive because we're just talking about additional hours that can be terminated at any time so we wanted to leave it to the parties.


I'm not sure there's significant merit in being more prescriptive about what should be in there.  We thought if we're going to be prescriptive it's better to be prescriptive about the right to refuse, it's better to be prescriptive about the right to terminate because that's what tries to ensure that they are not taken advantage of and ensure the genuine agreement.  And once you are comfortable there is going to be a genuine agreement, well then you can leave it to the parties to actually work out what it is the additional hours are about, whether it's about Fridays or nights, or whatever it might be.  And probably, it's not going to be nights because that'd be outside the spread of ordinary hours.


The other thing I would say, Deputy President, about what's in the standing written agreement is you do have the benefit of arbitration, as well.  So if we ignore the protestations of my friend, Mr Ferguson somewhere on the Zoom, the proposal we put forward would allow arbitration of anything about what the standing written agreement says, didn't say, how it was agreed, whether it was agreed.  So you have all of these mechanisms built in to ensure that the agreement is genuine.  And once we are comfortable that we've done the best we can to ensure it's genuine then we should just allow the parties to work out what the additional hours are going to be, and when and so we didn't get more prescriptive having regard to the considerable safeguards we included.


DEPUTY PRESIDENT ASBURY:  But the additional hours could be in respect of the number to be worked each day, the days on which they're worked, or the times that the employee will start and finish.


MR IZZO:  They could.  The additional hours might be on different days or different times, and certainly more hours, yes.




MR IZZO:  Just while we're on the determination and before I move to submissions in reply, I might deal with the questions about AiG and their concerns.  I think Mr Ferguson has already indicated that AiG does not press its concerns, at paragraph 50, 51 and 52.  And he can elaborate on that in due course, but just bear with me, I'm just pulling up the submissions.  There's really two matters, as I understood it, that AiG is concerned about.  I can't find his submissions, I must have thrown them out.  Bear with me.  He we go, I've got them.  So 50, 51 and 52 talk about whether these hours are additional hours or not.  So Mr Ferguson has got some concern about whether it's clear the hours are ordinary hours or not.


I think our determination adequately deals with this, certainly its intent, and I think Mr Ferguson is now comfortable with that.  And the way he deals with that is that he makes it clear in the written agreement that the hours that are being agreed, the additional hours, are to be ordinary hours.  And that is made clear at 10.11(b)(ii).  It is also addressed to some extent in 10.11(a) where it says you can make a standing written agreement to work additional ordinary hours.  So we say it should be quite clear that once the employee enters into a standing agreement if there's a subsequent agreement to work the hours that they would be ordinary hours.  So we don't think that amendment is necessary.  Indeed there is actually no provision in the award at the moment that tells you that the hours under 10.5 are ordinary hours.  So I think our level of approach is consistent with the high level approach taken in the award.


The other matter raised by Mr Ferguson is at paragraph 39 of his submissions.  He has effectively redrafted the conversion clause, if I can call it that, about employees being able to convert over to their regular pattern, to just draw out that the pattern needs to be consistent and predictable.  As far as we're concerned we have no issue with Mr Ferguson's redraft and so if that's pressed as an alternative to our determination then we would not oppose the determination being granted in the form Mr Ferguson has sought.  Having said that, we're comfortable with what we've put forward, so we'd be happy for the Commission to adopt his revised drafting though should it be inclined to do so.  So that deals with the matters raised by AiG at a drafting level.


If I can now come to the union's submissions.  The first argument is that our proposal casualises part-time work.  It converts part-time work into insecure work, on demand work.  So the first thing about this is that it needs to be borne in mind we are not changing the initial mechanism for setting of part-timers' work, at all.  An employee needs to set the hours in accordance with 10.5.  They can only be changed in accordance with 10.6.  It appears the union parties assume that employers will seek to extract every possible advantage out of the award provisions, even if such advantage does not suit the logical, rational drivers behind running a business.  And what I mean by that is, because it's theoretically possible for an employer to now hire someone on a three hours a week under 10.5 and then flex up their additional hours pursuant to this standing consent arrangement, it's assumed that vast numbers, or numbers of employers are going to go and do that.


We just say, as a matter of practical reality that does not make sense.  Security of employment cuts both ways.  Employers want to know that they can rely on their employees to attend as much as employees want security of hours.  So this notion that everyone is going to be put on a three hour contract, we say is fanciful.  What we say the research report that we filed indicates, is that what's more likely to happen is that additional part-time hours will be offered at the expense of casual employment.  And that's a matter we know the union movement is quite passionate about.  And it does provide extra work to part-time employees.


The elements of the research report that particularly demonstrate this are the findings that casuals are primarily engaged to deal with fluctuations in hours, and I'll just get you a page reference but that is identified at page 11 in table 3 of the report.  The report also identifies that the fourth highest factor in engaging casuals is also because it's easier than people on part-time or full-time status.  And we say that probably again goes to this inflexibility of adding hours.  And then we also have page 12 of the research report which identifies that employers would be incentivised to engage more part-timers, and that's identified under question 6, if certain restrictions in the award were changed.


And then when asked what those restrictions are, immediately the stand out response is for both the cost of overtime for part-time employees when they exceed their hours, and complexity in changing fixed rosters of days and hours.  And so we say, when we're talking about what's going to be the consequence of this, it's not about increased casualisation, it's about actually part-timers being more attractive to pick up additional hours.  And we just urge the Commission, and we've made this submission in previous award proceedings, the Commission cannot regulate based on extreme hypothetical examples that whilst possible are improbable.  It sets a safety net on an aggregate basis.  And yes, it needs to ensure appropriate safeguards are in place but just because of one theoretical possible outcome, it shouldn't necessarily regulate solely to that particular outcome.  And indeed, we don't think that's the probable outcome, at all.


The next contention that's put against us is that we are fulfilling an industrial agenda which existed pre-pandemic and that essentially this is some disingenuous approach to piggyback off the union application.  We do not shy away from the fact that these concerns existed before the pandemic.  On this, I'm happy to agree.  It's been a problem for a little while.  But what we've said continuously throughout these proceedings is these amendments have two benefits.  One, they have enduring merit which is why we're proposing the variations and why we started the research with Professor Gollan some time ago.  But two, they will also help recovery from the pandemic.  And that's because they achieve a common ground that we share with the unions which is everyone wants to facilitate offering of additional part-time hours.  We're agreed that that is in the interests of the economy.  We're agreed that that's something that's worthy of being pursued as a response to the pandemic.  So our variation achieves that.  Just because we were thinking about it before doesn't matter.  It doesn't mean it doesn't have relevance in a pandemic recovery world.


The other reason that we're pursuing this now is, and I feel that we're travelling over old ground here but the point seems to be raised by the SDA, in particular, about concerns about our proposal being considered.  It's very clear to us that if the union application succeeds it would prejudice our own claim.  I don't want to go through all the history but we've made it clear in our previous submissions filed in these proceedings that our claim was advanced a month before the union one.  And given that the two claims affect the very same employment provisions the need for a stable modern award system would warrant dealing with both applications together.  And so this isn't some disingenuous attempt to deal with a premeditated agenda and we've explained why.


The ACTU has raised a concern that our mechanism allows an employer to offer work, the employee to accept that work, and then the employer to cancel.  It appears to me from that submission that the ACTU is of the view that employers can pull out of additional hours once they've already been offered and accepted.  We do not agree with that.  Our response to that is to point to clause 10.11(b)(ii) of our determination which talks about, once they're offered and accepted, the hours constitute ordinary hours.


If this is really a material concern for the unions and the Bench shares it then I would not be opposed to an additional clause being inserted that makes it clear that once an employer offers and an employee accepts a shift, that neither party can rescind and they're ordinary hours and to be dealt with as ordinary hours under the Act.  We didn't think that was necessary but certainly at the conceptual level we're not opposed to that being clarified if the union opposition remains and the Commission thinks it necessary.


Very briefly, the unions have required a provision in their determination about coercion or duress, and criticised that there is no express protection in our determination protecting employees from being placed under coercion or duress.  There is this predilection on the part of some unions for repeating statutory provisions in awards.  For our part we think it just adds complexity without any accompanying substantive improvement or benefit.  If employees are already protected from coercion or duress by the Act, it is not clear to us why that needs to be repeated.  Having said that, does it affect our proposal, the concepts, the mechanism?  No, it doesn't.  So it's not fatal to our claim but we just think it adds to complexity unnecessarily.


The next point that's been raised by the ACTU is that, and I think the SDA raises this, as well, is that the union proposal is simpler because it requires only one step, not two.  And I think what the unions are talking about there are ad hoc variations.  So that is, if you want to change particular shifts next week, under the employer proposal you need a standing agreement and then you need to, later on, see if the employee is willing to work the extra shift. Under the union's proposal you only need to do this one variation.


Our response to that primarily is that's not correct.  Under our proposal 10.6 still has work to do.  In fact, we've clarified its operation.  If you were only ever going to vary one shift, or the odd shift on an ad hoc basis you can do that now under 10.6.  You do that in writing by varying the pattern of work as the SDA so eloquently pointed out in many proceedings before this, and as mentioned in our submission.  So we don't accept that our determination requires a two step process.  It doesn't.  You don't need the standing agreement for the one-off, ad hoc variation.  You can still use 10.6, as you always could.


Again in relation to how our determination works, I don't know if there's a misunderstanding about how it works but there are some submissions at paragraph - the SDA starts at paragraphs 54 to 58.  There's a whole suite of submissions about the fact that, and it really starts at 55, that employees can't refuse hours once rostered.  They may have other commitments, whether family responsibilities, study commitments or even in relation to other part-time jobs.  It is anticipated the under-employed part-time worker would try to be available for as many hours as possible to increase their income.  But then commitments might arise which were unknown at the time.  The employer might signify availability in the hope of maximising their employment.  What happens when they have another employer rostered at the same time?


All of these submissions appear to assume that once an employee agrees to a standing agreement they are bound to work those hours.  That is not the intent and I've made that very clear, up front.  And I think paragraphs 55, 56, 57 and 58, in particular, 58 - 58 says, "The proposal just goes too far one way by giving employers a free hand to roster without any consultation."  It just assumes that we have power to mandate the working of the hours and that's not how this mechanism works.  And so I wonder whether those submissions are actually based on a misconception.  It appears they are, in which case paragraphs 55 to 58 aren't really relevant to these proceedings.


My next point was going to be that the SDA regularly supports the very arrangement that is being proposed, but I think I've made that point several times.  The same does apply to some of the MGA's members.  We filed in the proceedings today, supermarket agreements for Drakes, Champions IGA - I believe Drakes, in particular, is a member of the MGA.  They appear to be big fans of the standing consent arrangement.  They use it in the enterprise agreements and so it certainly appears that some of the MGA's membership are quite supportive of the approach that we are taking.


So just one other point before I get to the two final matters.  A point was made by Mr Borenstein that in the current economic climate with the withdrawal of JobKeeper and the recovery from the pandemic, it's a particularly bad time, effectively.  I'm probably poorly articulating what he said but the essence of his submissions was that now of all times was a particularly poor time to implement the ABI proposal.  In response, we say that's part of the very point of this proposal, is that employees are facing substantial pressure financially with respect to the withdrawal of JobKeeper.  This is going to enable them to keep employees on the books to roster additional hours to part-timers, with confidence.  It's going to give them some confidence to err away from perhaps redundancies or a reduction of workforce head count, and instead look to utilise part-time engagements.  And so we think the withdrawal of JobKeeper is a matter that supports the ABI proposal being implemented.


The two final matters I want to deal with are again matters of process.  The SDA has quite stridently made the point today that they want to have a further opportunity to address our proposal, to potentially file expert material in reply, and again I feel like we're treading back over old ground.  It was our understanding the two proposals were to be dealt with together, that that was the outcome of the previous hearing in this matter on 5 March.  We have already identified why there'd be significant prejudice that would be caused by the SDA application being heard and ours not being determined.  But in any event I think I can address all of this.  We think our determination should be made a drafted.  But if the Commission was in any way minded to be concerned about the SDA's submission, their whole submission is predicated on the notion that because this is a permanent variation it requires some greater level of scrutiny or some additional procedural step that that SDA is entitled to.


I say two things in response to that.  One, we have already inserted a right of review.  And two, even though I do not agree with this course of action the Commission could make our variation operate for 18 months only, in which case that dispenses with the SDA concern, in any event.  Now I don't urge that course of action but that is a means of dealing with the SDA's protestations because it appears that they're all based on the fact that this is a permanent variation and not a temporary one.


Then the final matter in terms of the process point, and I think this is raised by RAFFWU, is that we had an opportunity to pursue this previously through the award review and chose not to.  That actually is based on a misunderstanding of the genesis of this claim.  At least from our perspective the genesis of this claim arose from concerns that started to become very prevalent and loud after two specific regulatory developments.  They were firstly the introduction of casual conversion clauses to this award in late 2017 when a number of members approached us, saying how can I convert my casuals, they're regular and systematic but if I make them part-time, what if I need them to work extra hours?  And that question was consistently asked.  And so that was the first development that arose well after the (indistinct) started.


But the second development, without doubt, was the delivery of the judgments in WorkPac v Skene, and WorkPac v Rossato which had the effect of limiting the availability of casual employment in the industry.  The parties may have different views on the import or the actual effect of those decisions but I think there is broad consensus that the ability to engage causals regularly without being exposed to liability, is far less now than it was before those decisions were handed down.  And it's those developments in 2018, was the WorkPac decision, that changed the landscape sufficiently for us to start talking about this.  That's why we commissioned the research as far back as 2019.


And so this isn't something that was as loudly problematic in 2014.  The concern has been emphasised and magnified only over the last couple of years.  I think they were all the matters that I wished to raise unless there's any further questions from the Bench.


JUSTICE ROSS:  Thank you, Mr Rizzo, none from me.  Any questions from Deputy President Asbury or from Commissioner Hampton?


DEPUTY PRESIDENT ASBURY:  No.  No questions from me.


COMMISSIONER HAMPTON:  No, thank you, President.


DEPUTY PRESIDENT ASBURY:  All right.  We might go to the NRA, and then ARA and then Mr Ferguson.  So, Mr Millman, was there anything you were wanting to add to your written submissions?


MR MILLMAN:  No, your Honour, we would indeed rely on our written submissions and otherwise agree with the points that Mr Izzo has raised at length today.


JUSTICE ROSS:  All right.  I'm sure that's not intended as a criticism, Mr Millman.  Mr Tindley, anything you wish to add to your written submissions?


MR TINDLEY:  Thank you, your Honour.  We would likewise adopt the submissions that have been given by Mr Rizzo today, save for the fact that we don't agree that Mr Ferguson's submissions should have been binned, as I think Mr Rizzo put it.


However, the only aspects that I'd like to raise in response to what's been put, particularly by Mr Friend on behalf of the SDA, it's not a correct characterisation to say that the ARA is uncertain about the operation of clause 10.6 of the award.  The ARA has advised its members and I take the comments that your Honour has made about perhaps a misunderstanding of the entitlements or the existing utility of 10.6 but the ARA consistently advises members in a manner that is consistent with the submission that we made on that point.


And I don't wish to continually go over the ground that Mr Izzo did in relation to the position that the SDA has adopted in the past and the decision of Deputy President Gostencnik in the Coles agreement.  But it is not apparent to us what differences exist between the standing consent arrangement in the Coles agreement and the standing consent arrangement that is being proposed in the ABI, New South Wales business chamber, NRA and ARA draft determination, save that I think the only thing that Mr Friend identified was that they know the employer, and they think - I am not sure where that takes us, but it may be that they believe that they've got a greater ability to influence the conduct of that employer.  That, in our submission, is a fairly weak basis to oppose a standing consent arrangement that the SDA has agreed to in the past.  Thanks.


JUSTICE ROSS:  Thank you, Mr Tindley.  Mr Ferguson.


MR FERGUSON:  Yes, Your Honour.  Look, I primarily propose to sort of elaborate on and hopefully clarify these concerns we have articulated under the heading of misalignment between the catalyst of the right to request a clause 10.5.  I think in essence there's really two issues or problems that we are trying to deal with or grapple with in that section, and the first is a concern around the way the new flexibility has been framed by the SDA and associated applicants under clause I.2.  And the second is a concern about the workability and clarity, if you will, of the trigger point for the new right to request additional hours and the associated obligation to grant them.


I think before I get into the two issues, it's useful to just take the bench very briefly to the wording of clause 10, which we've all talked about.  But the first point I want to make, without taking the bench through it word for word, is that clause 10.1 defines part-time employment, and it defines a part-time employee as one who is "engaged to work for fewer then 38 ordinary hours per week, and whose hours of work are reasonably predictable."  Clause 10.5 then goes on to set out certain things that must be agreed at the time of engagement.  And it's quite prescriptive.  It requires agreement on the number of hours to be worked each day, and the days of the week with the employable work, the times they will start and finish, and then it even gets into when meal breaks will be taken.


I think against that backdrop, we looked at clause I.2, and it seems to us, and I think it is the effect of the wording, and this may be a drafting deficiency rather than a problem with the intent of the applicants, but it appears that the wording of I.2 really enables an agreement to be reached so that the employee may work more ordinary hours than the number of hours agreed under clause 10.5, up to a certain maximum.  Now, we hadn't read that as requiring that you then have to go and reach agreement in accordance with clause 10.5 or the points there set out.  And as I said, 10.5 by its own force only applies at the time of engagement.


I think, with the benefit of some discussions as encouraged through the background document, it might be the applicant's intent really that all of the agreements under I.5 require that you reach agreement, and you set out agreement in relation to all the matters under clause 10.5 of the award.  And that might warrant some rectification in the wording if, you know, against our submissions, their claim was granted.  And I think that sort of colours the second and probably bigger point that we were raising, and that's about the misalignment between 10.5 requirements - - -


JUSTICE ROSS:  Sorry, Mr Ferguson, just on that point.




JUSTICE ROSS:  I had understood that I.2 is that parties  can reach agreement to work additional ordinary hours.  That is, in addition to those agreed under 10.5.  And that agreement would have to be not only what are the additional hours, how many, but when they're worked.


MR FERGUSON:  And I think that's the intent of the unions.


JUSTICE ROSS:  Yes.  But your point is it's - the intent isn't clear or properly reflected in I.2?




JUSTICE ROSS:  I follow.  Okay.


MR FERGUSON:  There's some confusion, because I think the intent is perhaps alluded to in the note.  But we weren't certain whether the note was intended to be an operative term, or what particular it had.




MR FERGUSON:  And then there's an inconsistency with the note, and that point I made about 10.5 actually just applying at engagement.




MR FERGUSON:  I think it coloured the way we then approached the operation, the trigger point for the request additional hours, in that it seemed to us you could just reach agreement that you will work an extra five hours a week, but the times at which you may work those hours could fluctuate from week to week.  And then it struck us somewhat unworkable to how you would assess when someone - in what circumstances someone should be able to request the hours be made permanent.  But I don't need to follow that too much further, because I think the reality is that under both the proposals, you could have additional hours worked in a very systematic way, if I can say that, or over a long period of time, and there could be a degree of regularity.  Or it could be that they are just additional hours that are worked for short periods of time.


JUSTICE ROSS:  Yes.  So you could have your pattern of additional hours is four hours on each Friday as opposed to it might be an additional four hours, but it might be at any point during the week.


MR FERGUSON:  That's right.  Or the regularity could be differently framed than it's contemplated on the award.  It could be that on the last Friday of every month that you (indistinct) hours.


JUSTICE ROSS:  Yes.  Yes, indeed.


MR FERGUSON:  But it seems to me that that would be regular working hours, and under any arrangement, you might be regularly working additional ordinary hours as contemplated under those trigger points.  But that doesn't follow that there is necessarily any clear or identifiable pattern of hours that's capable of being reflected in a permanent agreement under 10.5.  Even if you are routinely very commonly working extra hours beyond what you would normally agree.


So the question then is what hours should be the - when should the obligation, or the right to request, be triggered?  And we think that - what we've proposed, and you know, at paragraph 39 we've tried to articulate a specific fix using the notion of predictability that was contemplated in clause 10.1.  But really, what you should be talking about, if you're going to go down this path, is a situation where the employee has worked, you know, the same pattern of hours consistently and in a predictable manner, as can be agreed under 10.5.  So if you have four, six months, or 12 months, and we say 12 months is to be preferred, (indistinct) worked, you know, particular days, the same number of extra hours, then there would be more force to that being the catalyst for the right to request.  It would be compatible with the current framework of the award, and it would overcome the inherent ambiguity around just relying on a reference to hours being regularly worked.  I mean, I think reasonable minds can generally reasonably differ on what are regular hours worked.  And secondly, there's that pattern problem that I talked about, where you might regularly work just once a month.


JUSTICE ROSS:  Yes.  No, I follow the - - -




JUSTICE ROSS:  I follow the issue.  Look, just going through these interaction issues, and this isn't really a question for you, Mr Ferguson.  It's more for Mr Izzo and the proponents of the joint proposal.  How do the - any agreement for additional hours, however one derives it, either through the ABI proposal or through the joint applicants' proposal, how does it interact with the minimum daily engagement of three hours?  Does that mean that, well, if you haven't worked any hours on a particular day, you have to be engaged for a minimum of three?  If you have already, as part of your agreed hours, worked thee hours, then you can work an additional one hour?  Or do the additional hours have to be in a block of three?  They can cogitate on that, Mr Ferguson, while you go through the balance of your submission.


MR FERGUSON:  Yes.  No, I'll let them deal with that.  I suppose I think really the only point I would try to make, or elaborate on a little further in relation to this point, is if you don't adopt some sort of approach akin to what we have advanced, it makes the selection of the six months or 12 months point somewhat pointless.  Because it may be that you've, you know, regularly worked extra hours than what was usually agreed under 10.5.  But you know, you might have only worked a particular scheme of hours that you've landed on at the six month mark or 12 months for three months, and it's really difficult to see, you know, what the logic behind putting a six or 12 month proposition would be.


But look, the only other point I'd really want to make on this is we, in that section of our submissions, suggest that in the absence of any real evidence around trading patterns and so forth in the retail industry, it would be appropriate for the commission to adopt a caution approach if it was going to insert one of these mechanisms of requiring that the pattern would have to be worked for 12 months.  And obviously that's in line with where the Full Bench landed in the casual conversion provisions, although dealing with a different issue there.


Look, I didn't really want to deal with any other matters in any particular details, other than to refer the bench to the fact that we've advanced fairly detailed submissions around our strong opposition to the adoption of arbitration.


JUSTICE ROSS:  You have.


MR FERGUSON:  And we particularly expressed strong concern about the inclusion of it in relation to a permanent element of the award, noting that no other - I would note that no other permanent element of the award gives rise to that course of action.  I don't think I need to elaborate on that, other than to make one point, which is that there is of course no evidence before the commission that the current approach to dispute resolution, or to enforcement of award provisions more broadly, is operating in a deficient manner.  Those were the submissions, unless the Full Bench have any questions.


JUSTICE ROSS:  Not from me.  Thank you, Mr Ferguson.  Asbury DP or Hampton C?




COMMISSIONER HAMPTON:  Thank you, Mr Ferguson.


MR FERGUSON:  Thank you.  Appreciate that.


JUSTICE ROSS:  Can I go, then, to Mr Booth for the Newsagents Association to see if you have anything you wish to add to your written submission?  And then to Mr Cullinan from RAFFWU, please.  Mr Booth?


MR BOOTH:  Thank you, Your Honour.  Thank you to the Bench.  As a further complicating factor, I draw the commission's and the parties' attention to clause 15.9D, D for dog, which states that, "Due to unexpected operational requirements, the roster of an employee may be changed by mutual agreement by the employer and employee at any time before the employee arrives for work."  Elsewhere in clause 15, and clause 15 is an issue which is important in terms of the joint SDA application in that there is specific reference to additional hours, agreements being subject to the provisions of clause 15.  So again, the provision that we've now mentioned, 15.9D, may indicate that there is a degree of flexibility already existing in the award which has not been taken into account by either of its proponents in terms of the matters before the commission.


I can confirm for the benefit of the commission that the suggestions in relation to further discussions or consultations between ourselves and other parties did in fact take place, and that as a result of those, there has been some modification or standardisation in terms of the wording, specific wording in relation to additional hours agreements.  The avoidance of capitalisation and the standardisation throughout schedule I of non-capitalised words.  We stand not convinced that the proposed Schedule I does anything other than change the roster, and that specific wording contained in the note at I(2).  The references 'additional hours' to being included in a roster institutionalises those hours.  And then, in our view, institutionalises those hours and they tend � they were to be considered in the same light as the agreement which is achieved at 'engagement' because they are now rostered hours as opposed to agreed additional hours.


In the discussions which followed on between ourselves and the SDA following on the recommendation from or contained in the background document we were advised that Schedule I does not create standing agreements as it were, yet the response given by Mr Friend, and I apologise if I am incorrectly paraphrasing him to a question from your Honour, I think it was, and this was in relation to question three which appears at paragraph 36 of the background document.  Mr Friend was, I think, suggesting that there are, in fact, that there are two types of agreements.  That there is an agreement which is reached between the employer and the employee which goes to the availability and the willingness of the employee to accept additional hours, and then there is a specific agreement which deals with the days and times and other arrangements which may, in fact, then be worked to overcome a short-term need.


We reinforce our position that there is sufficient confusion arising from the different provisions already contained in clause 10.  We say that that confusion is now extended by the consideration of 15(9)(d), and there appears to be some confusion and, again, I apologise if I am incorrectly paraphrasing Mr Friend but there appears to be two different positions put forward to us, at least, by the SDA in relation to how many agreements are actually contained within or are provided for, or are necessary in order to achieve what Schedule 1 seeks to achieve.


The organisations I represent we represent, in essence, have no in-principle objection to either the draft determination which has been put forward by the joint applicants, nor do we object to the proposal which has been put forward by the joint employers.  However, our overall concerns regarding complexity would need to be satisfied and we do not believe that necessarily either proposal is devoid of complexity which can lead to confusion.


We also wish to reinforce our position that the nine-hour threshold is an arbitrary line in the sand which has been drawn by someone.  Yes, we understand that it may have been something which has arisen out of negotiations, however, in terms of small businesses we cannot see why that hurdle should exist and we have seen nothing in either submissions which lend any credibility to that nine-hour minimum being maintained.


Unless you have further questions of me, your Honour, or if the other members of the Bench have questions that is the substance of our additional comments.


JUSTICE ROSS:  No, thank you, Mr Booth.  Nothing from me.  Deputy President Asbury, and Commissioner Hampton?


DEPUTY PRESIDENT ASBURY:  No, nothing from me.


COMMISSIONER HAMPTON:  No, nothing.  Thank you, Mr Booth.


MR BOOTH:  Well, I think the Full Bench for their consideration.


JUSTICE ROSS:  Thank you.  Mr Cullinan?


MR CULLINAN:  Thank you, your Honour and the Full Bench.  If perhaps if I just commence with the questions that were posed for each of the parties to consider.  In relation to the first question it's a question about the initial part of the joint statement.  We note that paragraph 10 doesn't include in the relevant interests RAFFWU.  We do make the point, though, that there's nothing that we have seen through the entire process so far that would indicate a need.


There is certainly an expressed desire from various interests but there's no other evidence or other material that will express a need and in relation to paragraph 13 we note the use of the word 'part-time employees' here and the use of part-time employees at paragraph 10.  But we turn to question two, there's also references to part-time employees at paragraph 19, and we raised concern that the ABI application, at its core, doesn't deal with part-time employees at law.


What it deals with is someone who may simply have a single three-hour shift, once every four-week cycle, and in those circumstances what that worker is, in fact, is a casual employee albeit without any casual loading.  So we just want to make those points, rather than agreeing that they are summaries.  We are concerned that the genuine underpinning nature of the ABI proposal is not to deal with what we would consider part-time employees.


If I might just deal with some of the matters?  I wanted to deal with question nine.  It's not posed for RAFFWU but obviously RAFFWU has been involved in a range of negotiations and there has been some time taken, particularly, by Mr Izzo referring to the SDA's participation in those negotiations.


We should make the point that in relation to Coles, the submissions of RAFFWU and they're not referred to because they don't � we didn't raise the concern that in relation to Coles it was dealing with the scenario of standing agreement which had expressed arbitration on all matters.  It had a minimum hours arrangement of nine hours.  It had clause four express preference for part-time workers over casual employees for all the working of additional hours.  It had an express obligation within the clause, and in two places, to not avoid entitlements and we know that that employer has systems to hold account of the hours that are actually worked.  There are additional clock recordings and other systems that are known that are in place.


So there are a range of � I know that some of the other parties aren't prepared to talk about systems that protect � but in terms of the differences they are just some of the differences that are in place at the employer at Coles.  I will come back to the conversion arrangements for additional hours as well.


I wanted to make the point that the ABI proposal around 10.6 and the variation in 10.6 is disingenuous.  That change is an attack on the scheduling of breaks.  At the moment the 10.6 variation needs to deal with breaks and the change that's proposed by ABI would not deal with breaks.  And in terms of the question of Commissioner Hampton about 10.10, and there was some discussion about unilateral changes by giving notice we note the requirements of clause 35 in the award which deal with the consultation obligations on the employer in relation to any change to regular rosters.


In relation to the 10.5 protections that Deputy President Asbury had raised there was a reference made to arbitration being genuine on genuine issues.  We note that the ABI application does not use the word 'genuine' at any point in its proposed amendment.


In terms of the ABI submissions there was an exchange between your Honour and ABI about availability and Mr Izzo made numerous references to availability.  Availability doesn't appear anywhere in the proposed ABI changes.  It's not dealing with availability and there was a reference made as well about indicating an offer.


The structure needs to be the offer of additional hours and the acceptance of those additional hours.  The current structure in the award deals with that.  Indications are a concern for RAFFWU, as is any structure which deals with a proposal which does not, at its core, make clear that the arrangements out of 10.5 apply to the hours that are worked and the current proposal of ABI does not make clear that the 10.5 arrangements have to be put in place for any additional hours that are worked.


The ABI proposal makes reference up to 38 � do not exceed 38 hours, I think is the reference to the words � as distinction the award which provides that a part-time worker must work fewer than 38 hours.


At its core and I mean Mr Izzo was kind enough to clarify this, the purpose of their provision is to avoid overtime rates, and of course there is a circumstance where a worker may very well be offered an additional hours arrangement, having already done the standing consent and refuse those additional hours that the employer insist.  And there's obvious examples where there is an understaffing requirement that needs to be met where there is a stocktake on.


There's all sorts of arrangements which could fall within an availability even if that was a feature which it's not of this proposal, but there are very many examples where an employee could be requested to work additional hours, having refused.  There is nothing in the proposal which deals with that and at its core, and I think, as explained the purpose of the provision would be to avoid the obligation to pay any overtime rates.


In terms of the conversion arrangement we just make the point that exploring whether an employer can reach agreement is a distinctly different idea from exploration of the agreement.  And the language, as its framed at the moment, leave an employer to ponder whether it can agree, rather than what the substance of the agreement might be.


There was some references made by Mr Izzard about some kind of fanciful nature of three-hour contracts that are employers right now, that use three-hour contracts, and I think the point here is, is that the submission is not � well, the submission is directed at the avoidance of casual loadings that this would allow for someone to work a three-hour shift once every four weeks, and every additional shift that they work on top of that would have to be agreed, just as the casual worker's hours have to be agreed, but there would be no casual loading.


We had no evidence put on by any party of any issues relating to the recovery from COVID.  We have had no evidence of a single employer, of any need.  We have had references, submissions, musings about redundancies and head counts, but none of it is founded on any evidence.


The reference to WorkPac is misguided.  There is nothing new.  Williams v McMahon dealt with this in 2010.  For 11 years employers have not been paying the annual leave, sick leave and redundancy payments they ought to have been paying, and the desire of employees to avoid the casual loading or casualising part-time work is nothing new.


In relation to the AiG submissions, some point was made about the circumstances for conversion.  We do, somewhat begrudgingly, acknowledge that the AiG has come to the point that RAFFWU raised a week and a half ago that the joint applicant's application didn't deal with 10.5 as part of it's 0.2(?).  But in relation to those elements dealing with the conversion arrangements, again if we look to those agreements that have been struck they have very different language from that proposed by ABI.  Coles' language does not link the conversion to the hours that have been worked, specifically.  And Woolworths, if the Full Bench was minded to implement any kind of structure like these, well the Woolworths clause is worth looking at because it provides for an election to increase the four hours, and with very limited circumstances where that can be rejected.


I think the last point that we wish to make is in reference to the dispute resolution processes under the award.  They are moot, they are ineffective, they are simply not used.  And the use of arbitration for a structure where a worker and an employer agree on something outside of a system which is not broken, which currently works in very many workplaces, at 10.5 and 10.6, is simply a worthwhile process to implement an arbitration process if this was to be minded.  We remain concerned about the joint applicant's application and we put that in our submissions.  We remain firmly opposed to the ABI process, and I guess reading the Coles decision, that will not be of surprise.  They are the submissions of RAFFWU and we're happy to answer any questions.


JUSTICE ROSS:  Mr Cullinan, can I just raise a couple of issues with you.  In paragraph 3 of your submission, it's this interception with 10.5 and I'm just having difficulty reconciling the second sentence where you say you no longer oppose the core basis of the application.  But then you go on to say that the proposed variation is deficient because it doesn't clearly identify the link with clause 10.5, and until that clarity is provided we ought not proceed to vary it in the terms sought by the joint applicants.  They've inserted that note, or they've got "subject to clause 15" in i.2, and they've got the note about 10.5.  Are you suggesting something else needs to be done or?


MR CULLINAN:  Yes, your Honour.  So we don't think the reference to clause 15 deals with this particular issue.  The notes reference to 10.5 appears to try an deal with this issue.  The (indistinct) nature of our earlier submissions and what we explained last week would be the subject of many witnesses for RAFFWU, was waylaid by the commitment that were expressed in the report of Commissioner Hampton and the note.  We just don't think it does the work it needs to do.  It needs to explicitly, at i.2, say that the agreed new hours, or additional hours are subject to the arrangements in 10.5.


We understand, and we've said this before, that that raises the issues that Mr Izzo's raised about, how is that different from 10.5 and 10.6, but that's our concern at (3), is that until that is expressly made clear - - -


JUSTICE ROSS:  Yes.  And you've gone to the issue about, as you put it, the absence of evidence in support of a need to make the variations and you have just mentioned Mr Izzo's submission about 10.5 and 10.6.  Do you agree with what he says about 10.5 and 10.6?  That is, that as he puts it in substance, that those provisions already do the work that is proposed in the schedule advanced by the joint applicants?


MR CULLINAN:  They don't do all of the work that's proposed in the schedule which is, I think, part of the employer's concerns.  But in terms of providing a structure for a worker to agree to an arrangement for, say, six months to work additional hours, or three months, or two months or one day, 10.5 and 10.6 already do that work and the SDA application, that part of their application, would in some ways repeat it.  We are concerned by that element which would allow an employer to withdraw from a committed structure of hours where an employee cannot unreasonably withhold agreement.  We think that that is a retrograde change made following the consultations which didn't include RAFFWU.  So that would be a diminishment from 10.5 and 10.6 where once an agreement I made under 10.6, those hours are guaranteed.


JUSTICE ROSS:  And, look, much like as Mr Izzo puts it in respect of ABI's proposal, once you've got an agreement, and I appreciate you don't agree with the pathway in the ABI proposal but it's put that once you reach an agreement in that proposal, those hours that you've agreed upon become your ordinary hours for that particular week or day, and there's not the option, subject to you being unwell or taking any other form of leave that's available to you, you have to turn up and if you turn up, the employer then has to pay you.  And you say that's how 10.5 and 10.6 work but you're expressing a concern that the provision for mutual agreement not being unreasonably withheld undermines that proposition?


MR CULLINAN:  There's two elements.  Yes, it does undermine it because once that arrangement is agreed under the joint applicant's proposal then there is a manifest pressure that can be brought by an employer to demand why an employee is not agreeing to alter that arrangement.  It would be rare and we're not suggesting that this is some kind regular occurrence.  This is a new feature and we are concerned that that would be brought to bear in some circumstances.


In terms of the ABI proposal there is a fundamental change in the nature of the relationship so that an employer, at the moment, can reach a standing agreement with its employees that they will work additional hours, and lots of employers do it right now, and we've discussed some of that with the other parties during the conferences.  But the distinction and difference that it would make to the current arrangements is that once you agree to work additional hours, you can no longer access overtime.  And that is a fundamental change to the current arrangements.  And by overtime, I mean up to the 38 hour limit.


And so we are very concerned that that structure is very different to what the joint applicants have proposed, and it's very different to the ordinary working arrangements right now where an employee can refuse.  And a good example would be an employer that later argues there was some kind of agreed arrangement.  There is just no documentary base to it.  At Coles and at many of these other large employers there is a documentary base.  There are SMS's, there are Facebook messages, there are WhatsApp messages.  There are internal structures which allow for these communications to have been made.  Now we were not particularly pleased with the Coles structure back then.  That's recorded in the decision.  But the change that the ABI is pressing is different again to that.


JUSTICE ROSS:  Thank you, Mr Cullinan.  Any questions from Deputy President Asbury or Commissioner Hampton?




COMMISSIONER HAMPTON:  No.  Thank you, Mr Cullinan, no thank you.


JUSTICE ROSS:  Before I go to the proponents of the joint application to say anything they wish to say in reply, is there anyone else that wishes to say anything, at this stage?


MR IZZO:  Your Honour, Mr Izzo here.  There's just a couple of technical points about minimum engagements - - -




MR IZZO:  (Indistinct) 15.9.  I'm in your hands whether you wanted the joint applicants to respond - - -


JUSTICE ROSS:  No, no.  You go and then they can do a final reply.


MR IZZO:  All right.  So, your Honour, you asked a question about whether the minimum engagement would apply to the additional hours, the minimum engagement being three hour duration, and whether it would be a separate three hour engagement or whether it's added on.  I think that question is entirely answered by clause 15.3 of the award.  Clause 15.3 says that ordinary hours of work on any day are continuous, except for rest breaks and meal breaks.  So if an employer is to roster additional ordinary hours they would need to be immediately adjacent to the existing ordinary hours.  And once that is taken into account we would say, well, the minimum engagement of three hours would apply to the continuous span of work such that, no, it's not too many engagements, you just need to ensure that they've been there for a minimum of three hours on that day.


JUSTICE ROSS:  And if the additional hours are in respect of a day on which they don't normally work, there's no agreement to work - they're not normally rostered on a Friday but they're offered additional hours on a Friday and they're not working any other hours on the Friday, then I take it the additional hours would have to meet the three hour minimum?


MR IZZO:  That's right.  Because clause 10.9 is still live and has effect.  And that says that the minimum daily engagement is three consecutive hours.


JUSTICE ROSS:  Yes, all right.  Thank you, Mr Izzo.


MR IZZO:  So that's that point.  There was a point raised by Mr Booth about clause 15.9(d) - sorry - - -


JUSTICE ROSS:  (e), I think.  Was it (d) or (e)?


MR IZZO:  (d).  No, sorry, it is (d).  He refers to, due to unexpected operational requirements the roster of an employee may be changed by mutual agreement, by and for an employee.  We don't see any difficulty with that clause interacting with our proposal.  That's talking about rostered hours, and rostered hours effectively is where an employer mandates certain hours, there's noted provisions, and that provides for an mutual agreement to vary.


In this case we're not varying the roster, in our view.  If an employee is approached to work additional hours they are hours that aren't rostered.  Unless, sorry, I'll come back to that - unless they have been rostered in advance if we're talking about an ad hoc arrangement then what will happen is the employer offers the work, the employee agrees, there's mutual consent and it doesn't really interfere with the rostering provisions in 15.9.


On the other hand, if an employer seeks to roster these hours, well then yes, the rostering provisions would apply and they'd be using the rostering mechanism but they'd need the employee's consent to roster them because they are additional hours.  So whilst I acknowledge the existence of 15.9(d), I don't think it operates to bar or impede the operation of our proposed clause or that of the union application, for that matter.  I think both are in the same boat on this point.


The only other technical matter that I wanted to address was the submission by Mr Cullinan on clause 10.6.  So we have proposed some amendments to clause 10.6 so that its operation can be better understood, and he labelled that as an attack on meal breaks if I got him correctly.  It certainly wasn't intended to be an attack on meal breaks, your Honour.  We were trying to make it clear that you can vary times, days, hours of work.  If the protestation is that there's no mechanism to vary meal breaks by consent, well then we can certainly put that into clause 10.6, as well.  It is possible it's an oversight but there's certainly no nefarious intent here to attack meal breaks.  It's just not something that's on our radar, to be honest.


So to the extent that there is a genuine grievance there I think it's easily resolvable.  There's no matter of substance there from our perspective in terms of what we are trying to achieve.  They are the technical matters I wanted to address, your Honour.


JUSTICE ROSS:  Thanks, Mr Izzo.  We'll go to Mr Friend.


MR FRIEND:  Thank you, your Honour.  Just a few points if might, by way of reply.  In answer to one of your questions about what would be appropriate if the Commission did decide to implement standard consent, of course I want to reiterate our complete opposition to any sort of standard consent in the award.  And it's put into sharp(?) relief by what Mr Izzo said about how it's all going to work.  An employee, shortly after they're employed, or at some stage after they're employed, signs a document that says they'll be available to certain hours.  Then they can be called upon to work those hours.  There is no further record of any consent to work those hours at ordinary time.  These employees are expected, in these circumstances, if they don't want to work them in ordinary time, to put their hand up and say, "This time I don't want to."  It's really not an appropriate way to approach something - a change as big as this in relation to the rights of employees.  They're put in a position where they give the consent and they've got to stand up to the boss and say, "I don't want to do it this time", because they've been given a paper months ago that told them they're allowed to do that.


They need to have consent every time and that's what our proposal requires.  It might be a consent for working particular days for a long period of time.  That is consent nonetheless and the work will be provided.  The second point I wish to make is to reiterate that in the enterprise agreements which the SDA has supported, where there is consent, there are all sorts of other protections.  There are additional matters like minimum hours.  In the Coles EA it's 36 hours every four weeks.  One of the others is 40 hours every four weeks.  There is nothing like that in the ABI proposal.  Mr Izzo says, "Well, don't worry about the idea that someone might just be put on for three hours because that is unlikely to happen in the real world.  That's not really the test that one should be applying to a matter such as this.


This is the Commission setting the minimum rates.  It's the minimum below which no one can go.  But up to that minimum, it's perfectly lawful and legitimate to do so and it's inappropriate, in our submission, to say that you should put someone on for three hours a week and engage their availability for the other 35 if you want.  Fourthly, on the minimum daily engagement, I think we're ad idiom on this.  The position under the joint proposal is that you can add on to the minimum engagement of three hours by additional hours on any day.  Of course you can't have a split shift and if there is another shift on a different day it has to be three hours but the additional existing day can be as little as an hour.  It doesn't have to be an additional three hours.  Finally, I just wanted to comment on something Mr Booth said.  I obviously didn't express myself as clearly as I should have in relation to the types of agreements.


The way we say matters working is that you can make an agreement ad hoc for one, two or perhaps three weeks or whatever, or you can make a longer-standing agreement.  In each case it's got to be recorded.  But there are not two agreements in relation to each type of work so if you've decided to work for - if you're asked to work next Friday as additional hours you can make an agreement to do that.  It's recorded in writing and that's the way it works.  If the employer says, "I want you to work every Friday for the next six months", then you can do that and make an agreement about that and that's recorded in that way.  So I hope that clarifies the intent of the joint application in that regard.  Those are the only points I needed to raise in - no, there was one other matter, I'm sorry:  Mr Izzo said that the AVI had an application on well before the joint application.  It's true, there was an application arising out of the 157 but it was nothing like the application we're dealing with now.


The application we're dealing with now was only raised within the last couple of weeks.  I think Mr Borenstein is moving up to take my seat.  Unless there is anything else I can - sorry - unless there is anything else I can assist the Commission with, that's the reply submissions.


JUSTICE ROSS:  Thank you, Mr Friend.


MR BORENSTEIN:  More additional hours, your Honour - I only want to mention two things, very, very briefly.  Firstly - and they arise out of what Mr Friend has already raised - firstly, my answer to question number 10:  of course the Commission will understand that I was answering it in terms the Commission had posed it, as a contingency about the Commission possibly adopting a proposal for availability, standing availability.  I wanted to make clear that the ACTU certainly doesn't support the concept of creating a standing availability in the way which AVI has suggested it should be done.  My comments should not be taken as supporting that.  The only other thing I wanted to mention again is the discussion that took place when Mr Izzo was giving his submissions about employers having - being unlikely to employ people for only three hours, the minimum hours.


The answer that he gave is really very unconvincing and really, this is one of the things that underscores the concern which the ACTU has about the effect, which I mentioned earlier, of this change, which is that if an employer can engage an employee for standard hours of three, with the balance of hours during the week being optional for the employer, under a standing availability agreement, then that is the essence of casual employment and that is what the ACTU is concerned about when it was making the submission that the acceptance of this proposal opens up the door to casualising part-time employment.  It may be that this hasn't been done up until now.  Maybe there is no evidence of it.  But by the same token, there has not been this regime in the award before.  It has not been this regime, which facilitates this happening.


That is - we just wanted to make clear - what underscores the concern which I expressed earlier on behalf of the ACTU about this casualisation of the part-time workforce.  They're the only matters that I wanted to add by way of reply, your Honour.


JUSTICE ROSS:  Thank you, Mr Borenstein.  Before we adjourn, can I first check - is there anything any other party wishes to say?


MR STRONG:  Mr President, it's Peter Strong here from the Council of Small Business.




MR STRONG:  I'm caught up in Parliament House.  Can I pass to my chairman, Mr McKenzie to make some comments, please?


JUSTICE ROSS:  Certainly - Mr McKenzie.


MR MCKENZIE:  Thank you, Mr President.  I suppose really just a case of summarising:  for us largely it's been a case of standing behind the MGA in relation to this application.  But I am inclined to comment, given a couple of the comments that Mr Izzo had made.  First there was a question there about I suppose the optics of this application, with Mr Izzo suggesting there was a block of employer groups sitting behind here.  I suppose just for the benefit of - without wanting to get in a situation whose representation is bigger, COSBOA has 40 industry association members that represent 1.3 million to 2 million businesses operating in the country.  We're certainly happy to stand behind the bona fides of our (indistinct) representatives in this space.


The nine-hour minimum raised by Mr Booth - I suppose the challenge there for us clearly with the work that had been done through the working groups with the attorney-general - there was a conversation about where that minimum should be set.  For the reasons quite rightly raised by the ACTU, if they were to set it at zero minimum you run a risk of completing casualising the current part-time workforce.  So there is a need to put a benchmark in at this point and it is actually interesting and certainly from our perspective something that is meritorious of this application, in that the benchmark that has been set of nine hours is actually less than the 16 hours contained in the bill.  So there is greater flexibility provided than currently exists in schedule two of the draft Ai omnibus bill.


I think the other aspect - and it really comes to the statement that has been made by the Fair Work Commission in terms of the whole purpose of this.  We have here, I suppose, a case where you largely have an application being imposed by an employer blocked, and whether it's an employer blocked or a union blocked, typically in these sorts of arenas you actually get opposition that's actually being debated in the group and people run very eloquently about detailed elements of legal argument.  I think in this particular case what I would comment do you is that this is a consensus application.  It has been developed by a peak body that represents - as I said - over 1 million small businesses, that has worked in behind the two key proponents in this space, in the MGA and the SDA, not to minimise the other players in this space, with a view to getting to a point where we feel we have brought an agreement that is actually supported by a significant proportion of employers and a significant proportion of employee representatives.


I'm not really swayed by the argument that has come from Mr Izzo that this is already permitted in the process.  I know a number of applicants have actually made submissions to the extent that the sort of behaviour that we're actually talking about here, which is extending part-time hours on an ad hoc or on a programmed basis, as has been outlined by the ACTU.  I think there are various interpretations of whether that is or is not possible.  I think the challenge for small business that is seeking simplicity in this area and the benefit of this application is effectively codifies a practice and actually removes any uncertainty that effectively can give ground to mistakes being made so from that perspective and as a peak advocate for small business we would actually commend this application to you because it codifies a practice that simplifies an area where even listening to the conversation we've had today there remains some debate both within employer groups and union groups about the degree to which these practices are actually permitted.


I think finally I really just want to get to a point that COSBOA has looked at this extensively.  We don't normally get involved in these sorts of things but from our perspective we believe this is a very practical resolution of an issue that has been at debate on and off for the better part of 18 months.  I note that a number of the applications - particularly people comprising the applicant's block - have actually put and withdrawn applications so to my mind it indicates that this is an issue that requires resolution and I would suggest to you that on the basis of what we put forward I would commend it to the Bench for consideration.  That's all I'd like to say, thank you, President.


JUSTICE ROSS:  Thank you, Mr McKenzie.  Ms Lawrence.


MS LAWRENCE:  Yes, thank you, your Honour.  On behalf of ACCI, we don't wish to add any additional materials but we do, your Honour, wish to fully and whole-heartedly support submissions both oral and written of ABI, ARA and NRA.  Just for the record, your Honour - I'm sure I'm not informing the Bench of anything they don't know - but ACCI is the largest peak employer body in the country as recognised by the ILO and so on that behalf we do speak on behalf of the most employers in the country and we could not be more supportive of this proposal.  We are, however, deeply concerned that the applicant's proposal only reiterates what is in existence already but also adds additional burdens to employers which as Mr Izzo has so eloquently put today is potentially not in line with the objectives of the Act.


So we would just reiterate our whole-hearted support for what has been put forward by ABI, ARA and the NRA today.  Thank you, your Honour.


JUSTICE ROSS:  Thank you, Ms Lawrence.  I should make it clear that we won't be entering the space of which employer organisation represents more small businesses.  I think we'll leave that space to you engaging in the public debate.  Mr De Bruin, I see you have - what to raise an issue.


MR DE BRUIN:  I'd like to support Mark McKenzie but also support the ACTU, SDA and the unions' side of things.  We deliberately engaged in this conversation around part-time flexibility.  Throughout all the working groups with the attorney-general there was no secret that small business, the number-one priority was part-time flexibility.  Number one.  We didn't think that we would have heard in the manner that we would have liked to have been heard and when we had the opportunity to sit down and address the clear and present need, which is what our members need, which is part-time flexibility - and we were able to sit down with the ACTU and the SDA and the AWU, we sat down in good faith and had a very good conversation around how we could make part-time flexibility work, how we could stop our owners from working enormous hours that they do because they didn't want to be paying part-timers overtime, they didn't want to be employing more casuals.


They wanted to increase their permanent workforce.  They wanted to offer more hours to their employees.  Right now, none of that is going on.  We don't have the HR departments.  You've just heard around the 10.5, 10.6 and the interpretation and the debate that goes on.  We entered this in a consensual arrangement in that we knew that this would be for 18 months.  We did not intend to change the award.  We intended to engage in a schedule that would assist us over the next 18 months which would then be reviewed, which at that point the award could be again reviewed in the manner that it has been today.  But right now we need something that will provide us with part-time flexibility at a very, very difficult economic time.  And I don't think I need to say too much about how COVID has affected retail.


So I really would like to advocate support for the joint application.  We need it.  And we need it very, very quickly.  Thank you, your Honour.


JUSTICE ROSS:  Thank you, Mr de Bruin.  Is there final calls?  Anyone else wish to say anything?  No?  I will just check with my colleagues to say if they have any questions before we adjourn and reserve.  Deputy President Asbury?


DEPUTY PRESIDENT ASBURY:  No.  I have no questions.  Thank you to the parties for your submissions.


JUSTICE ROSS:  And Commissioner Hampton?


COMMISSIONER HAMPTON:  No, I don't.  I join in thanking the parties for their constructive and sometimes humorous submissions.  Thank you all.


JUSTICE ROSS:  I'd add my thanks to that.  I know it's difficult with Zoom and in these circumstances but I welcome your engagement in the issues and the way you have approached it, particularly through the conciliation process and during the course of the hearing.  There being nothing further I will adjourn and we'll reserve our decision.


MR DE BRUIN:  Thank you, your Honour.

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