PN1652

JUSTICE ROSS: Can I raise some procedural issues at the outset before we deal with the first witness. Did you have something you wanted to raise?

PN1653

MS BURKE: I have some procedural issues as well. I'll wait for - - -

PN1654

JUSTICE ROSS: No, no, you go.

PN1655

MS BURKE: The first of those was the objections to Mr Norman and Mr Ross.

PN1656

MR WARD: Yes.

PN1657

MS BURKE: That's outstanding. I understand paragraph 84 of Mr Norman's statement will be withdrawn and the remaining objections are not pressed.

PN1658

JUSTICE ROSS: Thank you.

PN1659

MS BURKE: There was also the call I made yesterday for the letter of - or the note of instructions to Mr Lappin.

PN1660

JUSTICE ROSS: Yes.

PN1661

MS BURKE: I understand that Mr Ferguson is able to produce that document, so I call for that.

PN1662

JUSTICE ROSS: Well, normally he'd produce it to us, we'd release it to you so you can assume we've done that.

PN1663

MS BURKE: Right.

PN1664

JUSTICE ROSS: We don't need to mark it particularly do we? Unless you propose to tender it and you'll want to have a look at it first.

PN1665

MS BURKE: Yes, if I could just reserve my right to do that. I'll let the parties know as soon as possible if I need to tender it or if I need to recall any witness or call a witness to cross-examine about it.

PN1666

JUSTICE ROSS: Yes, no problem. We'll take a break between the first and the second witness and that might provide an opportunity for you to do that.

PN1667

MS BURKE: Certainly.

PN1668

JUSTICE ROSS: Well, it might. I mean let's see how we go. Look, I just wanted to check the witnesses that we've got outstanding in terms of statements that will be need to be tendered at some point. For Ai Group we've got I think Mr Norman and his supplementary statement, Mr Ross and his supplementary statement and of course Ms Toff but we'll get to her later. Perhaps once Ms Toff's evidence is completed you can attend to the balance of them.

PN1669

MR FERGUSON: Yes.

PN1670

JUSTICE ROSS: For ACCI there's Paula Bayliss' statement and supplementary statement. There's Lauran Cleaver and a supplementary statement of Ms Cleaver. There's a Jae Fraser and a Mark Rizzardo.

PN1671

MR WARD: That's right.

PN1672

JUSTICE ROSS: Similarly at a convenient time we might deal with those. I think for the Motor Trades Organisations there's Mr Hoang but we'll deal with him later. There are a number for the NFF and I think - I'm not sure if the - I don't think the NFF is represented today. We have the NRA in Queensland and the Department observing in Canberra. I think that's the case. Is that right? Yes.

PN1673

SPEAKER: That's correct.

PN1674

JUSTICE ROSS: Well, the NFF has Edwina Beveridge and a supplementary statement. Lucinda Corrigan and a supplementary statement. Chris Kemp and a supplementary statement. Deborah Platts and a supplementary statement.

PN1675

MR WARD: Your Honour, I'll undertake to contact the NFF this morning.

PN1676

JUSTICE ROSS: Right.

PN1677

MR WARD: If need be we'll deal with those on their behalf.

PN1678

JUSTICE ROSS: Thank you. There's also the transcript of the proceedings of 12 December, the ACTU's sent in a marked up version. If there are any - I think I had a quick look and it seemed relatively straight forward.

PN1679

MS BURKE: It's mostly names, your Honour, but I didn't want to be on transcript of accusing Mr Ward of being in an unpleasant relationship.

PN1680

JUSTICE ROSS: Right.

PN1681

MR WARD: Can I just say this, if there's amendments to names because they've been misspelt I think that's helpful.

PN1682

JUSTICE ROSS: Yes.

PN1683

MR WARD: As a matter of public policy our position is that the transcript should reflect that which is on the tape, whatever that is, be it good, bad or indifferent. We don't think it's appropriate as a matter of public policy for people to amend words that aren't actually on the tape.

PN1684

JUSTICE ROSS: Well, it depends on whether or not the transcribers misrecorded that track.

PN1685

MR WARD: And I agree with that so I - - -

PN1686

JUSTICE ROSS: So look, we'll provide the audio as well.

PN1687

MR WARD: Thank you.

PN1688

JUSTICE ROSS: And the parties can sort out what's said about that.

PN1689

MR WARD: If the Commission pleases.

PN1690

JUSTICE ROSS: All right, anything else?

PN1691

MS BURKE: No, that's it, your Honour.

PN1692

JUSTICE ROSS: All right, so we've got Ms Toth?

PN1693

MR WARD: I call Ms Toth.

PN1694

JUSTICE ROSS: Just before Ms Toth is sworn, just in relation to the last point about the transcript. We'll get the audio and provide the parties with the time to close - well, perhaps in the submissions they're going to be filing next week, anything they wish to say about that. Ultimately if there's an issue between you about it, we'll just make a decision listening for ourselves to the audio. These are likely to be subjective things anyway.

PN1695

MR WARD: Your Honour, I'm almost apologetic. I wasn't trying to cause trouble about this.

PN1696

JUSTICE ROSS: No, no, no, I think if it was said it was said.

PN1697

MR WARD: Yes.

PN1698

JUSTICE ROSS: It's - - -

PN1699

MR WARD: Nothing falls from it. I'm not offended, even if it was said, so.

PN1700

JUSTICE ROSS: Well, it depends who reads the transcript I suppose. So, bearing in mind it's going to be on the website. You might want to reflect on how it's put, yes. All right.

PN1701

THE ASSOCIATE: Please state your full name and address, and I'll get you to face the Full Bench.

PN1702

MS TOTH: Julie Christina Toth and I'm from (address supplied).

<JULIE CHRISTINA TOTH, AFFIRMED [10.15 AM]

EXAMINATION-IN-CHIEF BY MR WARD [10.15 AM]

PN1703

MR WARD: Good morning, Ms Toth. Could you please say your full name for the benefit of the transcript?‑‑‑Julie Christina Toth.

PN1704

And your address?‑‑‑(Address supplied)

*** JULIE CHRISTINA TOTH XN MR WARD

PN1705

And have you prepared a statement for the purposes of these proceedings?‑‑‑Yes I have.

PN1706

And do you have a copy of that with you?‑‑‑I do.

PN1707

And is that statement some 57 paragraphs in length plus two attachments?‑‑‑Yes.

PN1708

And it's dated 26 October 2017?‑‑‑Yes.

PN1709

It's true and correct to the best of your knowledge?‑‑‑Yes.

PN1710

I tender that.

PN1711

JUSTICE ROSS: I'll mark that exhibit AIGROUP4.

EXHIBIT #AIGROUP4 WITNESS STATEMENT OF JULIE TOTH DATED 26/10/2017 WITH TWO ATTACHMENTS

PN1712

MR WARD: The witness is available for cross‑examination.

PN1713

JUSTICE ROSS: Right, Ms Burke?

CROSS-EXAMINATION BY MS BURKE [10.16 AM]

PN1714

MS BURKE: Good morning, Ms Toth. My name is Kate Burke and I'm counsel for the ACTU. I'm going to ask you some questions about your report. You do have a copy of that in the witness box?‑‑‑I do, yes.

PN1715

Now at paragraph 2 of your report one of the things - one of your jobs is to produce the Ai Group's highly regarded industry surveys. Are the industry surveys the same thing as a member survey?‑‑‑No, these surveys are broader than members. We include businesses from right across the economy, including a large number of non-members.

PN1716

So you didn't produce the joint employer survey that's relied on by the Ai Group in this proceeding?‑‑‑No I didn't.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1717

And when you say they're highly regarded, what are you referring to there? Is that your view of them?‑‑‑The places that they are published and cited and the ways that they're used across the broader economy, including by the RBA, Treasury, the banks, the financial markets.

PN1718

You get good feedback from them?‑‑‑Well, they're quoted and cited in fairly relevant places.

PN1719

All right, and you also say you appear regularly in annual wage review proceedings before this Commission, and can I just clarify do you appear as an advocate for the Australian Industry Group or as an expert witness?‑‑‑I - I'm not actually clear on that - - -

PN1720

JUSTICE ROSS: That's an advocate - - -

PN1721

THE WITNESS: - - - legal difference, I'm sorry. But I do appear with our - with the Ai Group legal team although I'm not a lawyer.

PN1722

MS BURKE: Okay and - - -

PN1723

JUSTICE ROSS: If I can just clarify that.

PN1724

MS BURKE: Yes.

PN1725

JUSTICE ROSS: In the same way Ms Toth appears with the Ai Group advocate and advances submissions directed to the economic aspects of Ai Group's submissions, in the same way as for the Commonwealth there's usually someone from Treasury who - well, more or less answers questions put about the economic parts of the Commonwealth's submission. So it's the same sort of - but there are no - - -

PN1726

MS BURKE: I understand it's not a strictly legal proceeding or really a legal proceeding at all. I'm just - - -

PN1727

JUSTICE ROSS: In the sense that there's not witness evidence that's right.

PN1728

MS BURKE: Yes, that's fine.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1729

And you're an employee of the Ai Group?‑‑‑Yes.

PN1730

So you're here today representing their interests?‑‑‑No, I was asked to present a statement based on my own views.

PN1731

Of?‑‑‑My own views.

PN1732

Yes, sorry, of what?‑‑‑Of the questions that were put to me about participation and productivity et cetera.

PN1733

And what were those questions?‑‑‑I was asked to look at the productivity rates for Australia, which I've presented, and a little bit on definitions of productivity and what would affect productivity.

PN1734

And then specifically in relation to how the ACTU's clause might impact those things?‑‑‑To - as well as I can, yes.

PN1735

Right, and were you given written instructions about what your report, what your statement should address?‑‑‑Yes, there was a letter. Yes.

PN1736

And you haven't attached that letter to your statement?‑‑‑No, I guess not.

PN1737

Are you able to make that letter available?‑‑‑Yes, we've got that. There was a - I - yes.

PN1738

I call for the letter.

PN1739

JUSTICE ROSS: Mr Ferguson, can you attend to that?

PN1740

MR FERGUSON: Yes, we'll have a look at that. I'm not sure what it is, but.

PN1741

THE WITNESS: Yes, there was a written request.

PN1742

JUSTICE ROSS: Like everything else, I'm sure there will be an electronic copy available somewhere.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1743

MS BURKE: All right, now can you please turn to page 3 of your report and I'm looking here at chart 1. You did this chart?‑‑‑Yes.

PN1744

And this is the labour force participation rates by sex, aged 15 to 64 years to August 2017?‑‑‑Yes.

PN1745

And you've used the ABS August 2017 labour force detailed quarterly data set to produce this chart?‑‑‑Yes.

PN1746

And at the time you prepared your statement this was the most up‑to‑date data source on labour force participation?‑‑‑That's correct.

PN1747

It probably still is the most updated unless the September one is out?‑‑‑Well, there's updates every month.

PN1748

Have you read the report by Dr Ian Watson who addresses this chart?‑‑‑I read the reply, yes.

PN1749

Yes, and he has described this chart as visually misleading. Do you agree with that?‑‑‑No.

PN1750

Do you agree that the data on this report could have been presented using a single wire axis?‑‑‑Yes I do agree with that. There's many ways to present data.

PN1751

Yes, and have you seen how Dr Watson has done this?‑‑‑Yes I have.

PN1752

Could I ask if Mr Ferguson perhaps has a copy of Dr Watson's reply report to show the witness.

PN1753

And if you turn to page 4 you can see there there's your chart and there's Dr Watson's version of the same data?‑‑‑Yes. Yes. Is it the same data because his is labelled "Participation rate"? Is it for all ages or only for 15 to 64 years?

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1754

My understanding is that he has used the same data. So, looking at the data and it doesn't really matter which one you look at. I find it easier to look at Dr Watson's but as I said, it doesn't matter. What you can see is that the female rate of labour force participation has been climbing steadily. Not necessarily at a consistent rate but it's going up, and the male rate is a little bit bumpier. It's not quite a sort of upward trajectory. But nevertheless the male labour force participation rates are always higher than the female labour force participation rates. That's right, isn't it?‑‑‑Yes.

PN1755

And the current percentage point gap is over 10 per cent? I'm sorry, you need to answer for the transcript.

PN1756

JUSTICE ROSS: Well, as at August 2017.

PN1757

MS BURKE: As at August, yes?‑‑‑Yes it is and both graphs show that actually.

PN1758

Yes they do, but do you agree that somebody looking at this without appreciating that it's using a secondary Y axis might assume this one's the higher one until they - - -?‑‑‑No, I don't agree with that. I'd suggest that that means they're not looking at the graph very carefully.

PN1759

They're not reading the numbers?‑‑‑No.

PN1760

Isn't the point of the graph to avoid needing to read the numbers, to get a visual impression very quickly of the data?‑‑‑No, that's not the purpose of a graph.

PN1761

All right. Now the data in chart 1, whichever version is used, and in the table under paragraph 10 of your statement, it's not intended to, and so it doesn't, tell us anything about the type of participation by which I mean whether it's casual or part‑time or full‑time?‑‑‑No, this is just participation in the labour force and, in fact, that includes unemployed people as well.

PN1762

Yes, but you've said based on this data that the increase in labour force participation for women over 25 reflects a range of socioeconomic factors and indicates that barriers to entry for women have reduced over the period?‑‑‑Mm hmm.

PN1763

But you haven't cited anything in support of your conclusion of how this data shows that barriers for entry have reduced?‑‑‑The simple fact that a higher proportion of the female population is participating in the workforce, indicates that more women are finding it easier to work or to enter the labour force, whether that's unemployment or work, than in previous periods.

PN1764

Certainly, but that might be because barriers are removed or it might be for other reasons?‑‑‑Yes, as I said, there's a range of reasons for why this has happened.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1765

This is the socioeconomic factors that you're referring to?‑‑‑Yes, social and economic and demographic factors, yes.

PN1766

Would they include the increase in educational qualifications among women?‑‑‑That's part of it, yes.

PN1767

And potentially the decline in fertility for women under 30?‑‑‑Yes, that's part of it too.

PN1768

Neither of those two factors imply that barriers to entry have reduced, do they?‑‑‑Of course not. There are other factors that are part of, as I said, a broad range of factors that are relevant.

PN1769

Do you consider that access to childcare is a relevant socioeconomic factor when you're considering women's labour force participation?‑‑‑Yes, I do.

PN1770

Access to childcare can be a barrier to entry to the workforce for women who are mothers and employees?‑‑‑Yes.

PN1771

Childcare places can be difficult to get and once they've been allocated they can be difficult to change?‑‑‑Yes, that's a problem for mothers and for fathers.

PN1772

Yes. In those circumstances, whether it's a mother or a father, access to flexible work is essential if the parent is to re‑enter the workforce, isn't it?‑‑‑There's a range of flexibilities that can assist parents to accommodate the lack of childcare that they might face.

PN1773

Access to flexible work is one of those?‑‑‑In what sense, flexible work?

PN1774

Non‑full‑time?‑‑‑Right, well, there's many other forms of flexible work other than just non‑full‑time.

PN1775

I appreciate that. I'm asking specifically about full‑time hours and working less than full‑time hours?‑‑‑Yes, that is one way to accommodate the lack of childcare that parents, men and women, need to accommodate.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1776

Turn now to paragraph 12, please, of your statement and here you've relied on the Australian Bureau of Statistics Characteristics of Employment Survey to produce some information about part‑time workers in Australia. I just want to understand, this dataset includes self‑employed people?‑‑‑Yes, it's all employees ‑ sorry, no, this one is employees.

PN1777

Yes, and employers, you've said in your paragraph 12?‑‑‑Yes, that's correct.

PN1778

So, I'm sorry, I just don't understand this. How could someone be an employee and an employer for the purposes of this data?‑‑‑They're not. So I don't think I've included self‑employed in the disaggregation.

PN1779

So when you're referring to employers here are you referring to self‑employed people?‑‑‑Yes, well, in the data self‑employed can be ‑ is someone who works on their own. They may or they may not employ other people. If they employ other people they are an employer as well as being self‑employed.

PN1780

Yes, I see, okay. But the reference to employers is self‑employed people, regardless of whether they are employing someone else or not?‑‑‑Yes, it's just the total dataset of employed persons.

PN1781

Yes, okay. And you've identified that as at August 2016 there's 3.9 million part‑time workers in Australia, and part‑time meaning less than 35 hours a week?‑‑‑Yes.

PN1782

About 1.5 of those workers have paid leave entitlements?‑‑‑Yes, well, they were the ‑ I tried to pick out just the employees group. So that's employees with paid leave, employees without paid leave, and they are the categories that the ABS publishes.

PN1783

So if you add up the 1.5 approximately and the 1.724 approximately that doesn't equal 3,897,800. You're left with about 675,000 people who are unaccounted for in your first two dot points?‑‑‑Yes.

PN1784

That's because they are self‑employed people?‑‑‑Yes.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1785

That's about 17 or so percent of the total 3.9 million. You've done some further calculations with the number of employees with and without paid leave entitlements. That's in the fourth and fifth dot points there. And which numbers are these percentages based on? are they based on the 3.897 million or are they based on the 1.5 and the 1.7?‑‑‑Yes, so these are employees. In the ABS data there's not as much detail available for the self‑employed group. So there is more detail and more disaggregation possible for the employee group.

PN1786

So the percentages that you've calculated are not based on that 675,000 cohort of self‑employed people?‑‑‑I'd need to double‑check that but I'd thought I calculated it just on employees but I can check for you.

PN1787

What you say is that part‑time women are more likely to have paid leave entitlements than part-time men, so this is looking at the fourth dot point there. But overall far fewer women in the labour force have leave entitlements than men do, that's right, isn't it?‑‑‑I think the casual ‑ that's about the proportion who are casual or not casual. Yes, so that's a different question to part‑time.

PN1788

Well, I'm just trying to understand. Here you've said:

PN1789

Female part‑time workers are more likely than male part‑time workers to have paid leave entitlements.

PN1790

?‑‑‑The data shows that, yes.

PN1791

Yes, but if you look at the proportion of women and men who have paid leave entitlements in the workforce overall, men are far more likely to have paid leave entitlements than women?‑‑‑That's when you include the full‑time cohort.

PN1792

But even in the part‑time cohort 68.1 per cent of part‑time workers are women. So does that mean that my proposition to you is correct, that more men than women working part‑time have paid leave entitlements?‑‑‑Numerically, yes, but as a proportion, no.

PN1793

Now, from about paragraph 15 ‑ ‑ ‑

PN1794

JUSTICE ROSS: I'm sorry, I'm just not quite following the thread of the last proposition. Why would it be numerically right if there are 1.2 million men ‑ well, how many ‑ 1.25 million men working part‑time, is that how you read this?‑‑‑Yes, that's correct.

PN1795

And 2.6 women who work part‑time, 2.6 million women?‑‑‑Yes, of the employees, so that's not including the self‑employed.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1796

No, that's fine, but if those numbers are right then 24 per cent of 1.2 million is not numerically greater than 45.1 per cent of 2.6?‑‑‑Yes, I think I'd need to show you the raw data which is easily obtainable. If you want to see the numbers, the levels rather than the percentages, I'd need to present that again for you.

PN1797

We can look at the ABS report ourselves but I just didn't see how it followed that there would be numerically more of them when it's a smaller percentage of a smaller amount. I might be ‑ ‑ ‑

PN1798

MS BURKE: Your Honour, I'm content to leave it in a state of confusion so ‑ ‑ ‑?‑‑‑Well, it's easily solved.

PN1799

It might be something to be dealt with in submissions perhaps?‑‑‑Well, it's easily solved by just looking at the data.

PN1800

JUSTICE ROSS: No, look, I don't think you need to devote any more time to it. We can read the ABS Characteristics Of Employment Data and come to our own view. I don't think it's ‑ it will speak for itself really.

PN1801

DEPUTY PRESIDENT GOOLEY: Can I just ask one question though? Because you seem to interchange the use of the term "workers" which are including all employees plus self-employed person, plus employers as you've described and "employees". So can I assume that when you use the word "workers" you're referring to the definition that's up the top which is part-time employees plus self-employed plus employer, or are there times when I should assume that the word "workers" actually only means employees and at other times it means part-time employees plus self-employed persons?‑‑‑I should clarify that for you and perhaps correct this using the exact terminology that the ABS uses so that it's clear.

PN1802

Thank you.

PN1803

MS BURKE: I had asked you to look now at paragraph 15 and in this section, this goes from about paragraphs 15 to 25, you're relying on an article in the Reserve Bank's quarterly bulletin?‑‑‑Correct.

PN1804

The bulletin is something that the Reserve Bank produces internally?‑‑‑No, it's published.

PN1805

Sorry, but I mean it's not something they submit to a journal and is published externally. It's published internally?‑‑‑Well, it's their own journal that they publish.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1806

It's not a peer review journal?‑‑‑It's not an academic journal, no. Only RBA authors ever appear in it.

PN1807

At paragraph 17 you've cited here the Reserve Bank bulletin in support of the OECD research, showing that Australia has the third highest rate of part-time work in the world?‑‑‑Mm-hm.

PN1808

Did you produce this graph too?‑‑‑No, I didn't produce any of the graphs here. Those are all taken directly from the RBA piece.

PN1809

So in terms of what you produced in your report and its charts 1 to 3?‑‑‑Yes, the ones labelled graph 1 to 5 I have reproduced the RBA graphs in full.

PN1810

On page 11 there's a figure 2 and I think you expressly say that that's reproduced from the Productivity Commission paper?‑‑‑Yes, correct.

PN1811

So does that mean you're not sure which OECD data underlies this graph?‑‑‑Not at all, they're for different time periods.

PN1812

No, I'm sorry, I mean which data set did the OECD use to produce this?‑‑‑The OECD labour force statistics which were available online.

PN1813

At paragraph 18, you've quoted the Reserve Bank's bulletin which has said that the most common reasons for Australians working part-time in order of magnitude are to accommodate study preference and child care?‑‑‑Yes.

PN1814

I'm paraphrasing but - what data did the RBS - sorry, the - not the Royal Bank of Scotland, the Reserve Bank of Australia use in support of its statement there. Do you know?‑‑‑That was based on an analysis of Hilda data, which is shown on graph 3.

PN1815

So that included men and women?‑‑‑Yes, it's reasons for all people who are working part-time.

PN1816

Can you tell me what the difference is between having a preference for part-time hours and caring for children?‑‑‑So the preference option was people expressing a preference for part-time work without giving any further information on why they had that preference.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1817

It's possible isn't it there that there's an overlap between preference and caring for children?‑‑‑Preference could conceivably overlap all of the other categories.

PN1818

Including study?‑‑‑Yes. It's preference for personal reasons but we don't know from the data what those reasons are.

PN1819

Is that because in HILDA, and if you don't know just tell me, you can tick a range of options and then other preference or something like that?‑‑‑It wasn't the other box. It was a stated separate category preference. Personal reasons preference.

PN1820

Do you know if respondents could answer more than one category?‑‑‑No, I don't know the structure of that question.

PN1821

Over the page now please to paragraph 19?‑‑‑Yes.

PN1822

You said here that the reasons for people working part-time are demonstrated here in graph 4 as consistent with the Reserve Bank data that I've just or Reserve Bank statement that I've just looked at. So what you say that graph 4 shows is that the share of part-time employment was highest for those aged under 25 years and you can see that in the second column there, and for those who are women and you can see that in the end kind of box. There's three boxes in that graph. And then you say:

PN1823

With close to half of employed females in this age group working part-time.

PN1824

I can't see where in that graph I can get that information. Can you help me with that?‑‑‑So on the axis it's in 20 per cent point ranges. So the top of the graph is 60 percentage points, so that blue bar for female - sorry, beg your pardon, for 2016 people aged 15 to 24 years is I think just above the midpoint of that range 40 to 60. Which would imply that it's somewhere around 50.

PN1825

But that's for both genders?‑‑‑That's correct.

PN1826

So where you say close to half of employed females in this age group were working part-time, that's a sort of deduction you've drawn?‑‑‑No, that was in the text but it didn't have an exact number.

PN1827

In what text, I'm sorry?‑‑‑In the text of that article but it wasn't an exact number.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1828

You didn't provide a reference to that?‑‑‑Well, yes, I have. It's footnoted here.

PN1829

No, no, that's - I'm not at that sentence yet. I'm looking at the sentence prior to that?‑‑‑Well, the footnote refers - - -

PN1830

Just with close to half - - -?‑‑‑The footnote refers to the source for all of that information.

PN1831

Do you have a copy of that with you?‑‑‑No, I don't.

PN1832

Then the second sentence there in paragraph 19:

PN1833

Among younger workers aged 15 to 24 this study was cited as their main reasons for working part-time.

PN1834

Now that is meant to be referring to graph 5 isn't it?‑‑‑Yes. Well, it could be, yes. Again, all of this was taken from the same report.

PN1835

So in order to understand it, it's probably useful to go and look at the report?‑‑‑That's right.

PN1836

JUSTICE ROSS: It's on the reference list as well.

PN1837

MS BURKE: At paragraph 22, what you've done here is quote the Reserve Bank's findings that:

PN1838

The rise in part-time employment has brought significant benefits to individuals in the aggregate economy.

PN1839

?‑‑‑Yes.

PN1840

Over the page at paragraph 23 you've quoted the bank on the costs of employing part-time workers and specifically productivity outputs that may differ between full-time and part-time workers?‑‑‑Yes, I've quoted them.

PN1841

In support of that proposition the Reserve Bank has referenced 2008 Productivity Commission Staff Working Paper?‑‑‑Yes.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1842

Were you involved in the authorship of that paper or was that passed after your time?‑‑‑No, I wasn't. I'd already left the Commission at that stage.

PN1843

You consider that this paper, this 2008 paper remains relevant to questions about part-time work and the cost benefit assessment of that work?‑‑‑Yes, I do.

PN1844

In part you consider it remains relevant because the RBA has relied on it?‑‑‑That's correct.

PN1845

So the RBA's quarterly bulletin states that there might be differences in the relative productivity of full-time and part-time workers based on the Productivity Commission report, which you consider is still relevant at least in part because the bank relies on it?‑‑‑Yes.

PN1846

Isn't that a bit circular?‑‑‑No.

PN1847

I want to look exactly at what that Productivity Commission working paper said about the productivity and part-time workers and you've quoted that at paragraph 29 of your statement?‑‑‑Mm-hm.

PN1848

What you say at 29, this is before the quote, is:

PN1849

The paper said regarding productivity losses that result from the engagement of part-time employees -

PN1850

And then you extract the quote. Now you have seriously overstated what the Productivity Commission working paper actually says, haven't you?‑‑‑No, not at all.

PN1851

Well, the paper says, and if you look to the second block quote there:

PN1852

There may also be productivity differences.

PN1853

But you have said:

PN1854

Productivity losses that result.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1855

Do you accept that there's a difference between "productivity differences that may result" and "productivity losses that result"?‑‑‑Only one word is different.

PN1856

No, there's a couple of words that are different. "Differences" and "losses" are different and "may result" and "that result" are different?‑‑‑Okay. I said "productivity losses that result", yes, and further down it talks about a reduction in hours that may lower productivity.

PN1857

Yes, but before that it talks about reduction may increase productivity, and then if you go back to the first sentence it's "may be productivity differences"?‑‑‑Yes.

PN1858

So it's contingent?‑‑‑Yes it is and - - -

PN1859

JUSTICE ROSS: Can I just ask you - - -

PN1860

THE WITNESS: - - - that's exactly the point, that in some cases productivity might be enhanced and in other cases there will be a cost and productivity will decline. That's the point.

PN1861

MS BURKE: May decline?‑‑‑That's right and it may increase.

PN1862

JUSTICE ROSS: Just a moment. Just a moment.

PN1863

THE WITNESS: Both of them are "may".

PN1864

JUSTICE ROSS: Just a moment.

PN1865

Can you take me to the part of the witness statement you've been referring to?

PN1866

MS BURKE: Yes, paragraph 29.

PN1867

THE WITNESS: I thought that was the whole point, that it can go up or down.

PN1868

JUSTICE ROSS: Just a moment, Ms Toth. You just answer questions?‑‑‑Okay.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1869

And don't make statements, all right?

PN1870

Okay, thanks Ms Burke.

PN1871

MS BURKE: All right, let's look at the actual quote. What it says is, from the second sentence:

PN1872

A reduction in working hours may increase productivity due to a reduction in fatigue and boredom and alternatively -

PN1873

And this is now where you've underlined:

PN1874

- a reduction in hours may lower productivity as unproductive activities such as meal breaks and setting up and shutting down times will represent a larger proportion of the overall working day.

PN1875

Now if a person is working three days a week full‑time hours, the amount of time allocated to meal breaks and setting up and setting - packing down will represent the same proportion of the overall working day as a full‑timer, won't it?‑‑‑Sorry, three days a week isn't full‑time.

PN1876

No, but what I mean is they're working full‑time hours on that day. So if ordinary hours are nine to five and someone works Monday to Wednesday, and someone else works Monday to Friday, from Monday to Wednesday both employees are going to use the same proportion of time for their lunch break and their setup and so on?‑‑‑So for some - in some cases it will be a pro rata reduction. In other cases it will be, you know, a decrease in hours but there will still be other add-ons there.

PN1877

No, well I was asking - - -?‑‑‑So in some cases, yes, that will be true.

PN1878

All right, so about the scenario that I just put to you, that would be true?‑‑‑Depending on the work situation of that person.

PN1879

Of course. It's always different depending on the individual?‑‑‑That's right. So we're assuming that there's no handover required to somebody else, for example, or that there is no additional administrative duties that that three day a week person needs to undertake in order to perhaps hand over to the next person.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1880

That's right, but limiting again just to the question I asked you, that was about meal breaks and setting up and shutting down times. They will be the same?‑‑‑In some circumstances, yes. I don't think I'd agree that it would be the same in every single case.

PN1881

And if a person's working a five hour shift in any sort of job, would you agree they may or may not take a meal break?‑‑‑I don't know enough about the circumstances of when they're working.

PN1882

I'm sorry, I'm not asking you like legally if they're entitled to a meal break or anything like that. It's just ordinary experience as a worker. You might work five hours without taking a meal break?‑‑‑It would depend on - - -

PN1883

MR FERGUSON: (Indistinct).

PN1884

THE WITNESS: - - - what time of day that person is working surely? You know, if you're working - - -

PN1885

JUSTICE ROSS: It's a bit late, Mr Ferguson.

PN1886

MR FERGUSON: Yes, I am.

PN1887

THE WITNESS: If you're working nine till one then conceivably you'd only have a tea break. If your five hours includes - - -

PN1888

JUSTICE ROSS: Yes. Look, I think we can - - -?‑‑‑- - - lunch time.

PN1889

We can take - - -?‑‑‑I really don't know - - -

PN1890

No, just a minute, Ms Toth. If I'm talking, you stop talking, okay?‑‑‑Okay.

PN1891

I think we can take notice of the fact under some awards a meal break is - the entitlement to a meal break arises after five hours' work. I don't think we need a lengthy analysis of the break periods under all awards and if we - - -

PN1892

MS BURKE: I genuinely was not asking about legal entitlements.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1893

JUSTICE ROSS: No, no, I know. But the proposition really is that the meal break comment made by the Productivity Commission will depend on the pattern of hours worked by the part‑time employee and the entitlements under the relevant industrial instrument.

PN1894

MS BURKE: Yes.

PN1895

JUSTICE ROSS: Yes.

PN1896

MS BURKE: All right.

PN1897

And the sentence above your underlining there identifies productivity gains from part‑time work, gains that may result and they include reduction in fatigue, reduction in boredom. This paper or at least this extract doesn't suggest that the potential increases could offset the potential decreases, does it?‑‑‑It's suggesting that in some cases the costs will be greater and in other cases the benefits will be greater, and that's why firms decide in some cases to employ part‑time workers and in other cases they don't.

PN1898

But do you consider that the increased productivity and the potential reduction in productivity could offset - and I'm here just thinking about an individual worker, less bored, less fatigued, maybe they take a meal break. Do you think that they might balance each other out?‑‑‑For the individual worker their productivity per hour worked is a different question to productivity for the whole workplace and the costs for the whole workplace. So we need to be a little bit careful about not mushing them up too much. So the individual worker could well be more productive for the hours that they are there, for the reasons given here as an example. But the point the Productivity Commission was making and which I agree with is that they need to be offset against costs that might accrue to the firm for doing that, and as set out here they can include costs for the workers' own time and also costs - on costs and costs to other employees.

PN1899

Do you accept that in any working day there will be periods of unproductive activity?‑‑‑Yes.

PN1900

So really I'm just talking here about wasted time. Somebody might spend 10 per cent of their day on the internet, staring out the window?‑‑‑All things are possible.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1901

Yes, but that's probable isn't it?‑‑‑I couldn't comment on how often people waste their time at work. We'd like to think it's zero but I suspect not. But I certainly couldn't put a number or a probability on how much time people muck about.

PN1902

No, no, I certainly wasn't asking you to do that. It's possible, isn't it, that someone who works for less than full‑time hours might reduce their wasted time rather than their productive time?‑‑‑Yes, or they might just waste less of it on a pro rata basis.

PN1903

That's right. Can I show you a report please by Ernst & Young?‑‑‑Thank you.

PN1904

And just excuse me using my laptop. There were limited hard copies. Now this, for the benefit of the transcript, is a report by Ernst & Young dated July 2013 and it's titled "Untapped opportunity. The role of women in unlocking Australia's productivity potential". And what it is reporting is findings from an Ernst & Young survey that they do every six months. If you turn to look at footnote 3, that tells you a little bit about it and that's on page 2. Have you seen this report before, Ms Toth?‑‑‑I have, but I haven't read this issue.

PN1905

Can I ask you to turn to page 3 please?‑‑‑Mm‑hm.

PN1906

And this is summarising the results from the survey and in the second paragraph in the first column what this survey found was essentially that women in flexible roles appear to be the most productive members of the workforce. Do you see that there?‑‑‑Yes I can see page 3.

PN1907

And in part that's because they waste far less time. Sorry, the report has suggested in part because that's because they waste less time than any other type of worker. You can see that there?‑‑‑Yes I can see the page 3.

PN1908

Thank you. All right, so now in fairness I have to just note that the productivity saving doesn't appear to attach to flexible work per se. It's specifically to women undertaking flexible work. Men waste almost identical time whether working part‑time or full‑time?‑‑‑Do we know - no, I'm not allowed to ask questions, are we? I beg your pardon, I'm not allowed to ask questions.

PN1909

No, you're not. And if you look at the bottom of that page what it says there is that:

PN1910

In an average year these women effectively deliver an extra week and a half productive work. In other words for every 71 women employed in flexible roles, an organisation gains a productivity bonus of one additional full‑time employee.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1911

And so given this research, was this something that you thought - did you look for any other research about the productivity of part‑time employees when you were preparing your statement?‑‑‑I didn't look at this one in particular, no.

PN1912

Did you look at anything else other than the 2008 Productivity Commission report?‑‑‑I was looking for Australian research and much of what I know if is international rather than Australia only.

PN1913

But my question was whether you actually looked for anything else?‑‑‑Yes, I did look at a range of other things. I thought this was the most relevant and the most current.

PN1914

The 2008 report?‑‑‑No, well, no, the RBA one and then I included the other one because the RBA has relied so heavily on it.

PN1915

The RBA report, to the extent it discusses the productivity of part‑time employees, it's relying only on that 2008 Productivity Commission report, isn't it?‑‑‑That's why I included both of them so that you could see where the data has come from.

PN1916

I tender the Ernst & Young report, please.

PN1917

JUSTICE ROSS: Exhibit ACTU18.

EXHIBIT #ACTU18 ERNST & YOUNG REPORT

PN1918

MS BURKE: Thank you. Ms Toth, you can just put that to one side?‑‑‑So many ‑ ‑ ‑

PN1919

JUSTICE ROSS: Are you leaving the RBA report now?

PN1920

MS BURKE: I'm sorry?

PN1921

JUSTICE ROSS: Are you leaving the RBA report ‑ I'm sorry, the Productivity Commission report aspect of your cross‑examination now? It's just I've got a question about it and I want to wait until you've finished that part, that's all.

PN1922

MS BURKE: No, I've got a few more questions about it, I'm afraid.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1923

JUSTICE ROSS: That's all right. That's fine. Let me know when you get to the end.

PN1924

MS BURKE: Do you accept, Ms Toth, that there's been an increase in women's levels of education or qualifications over the past few decades?‑‑‑Yes. That's true for the whole population.

PN1925

But do you accept that more women ‑ a larger proportion of women than men have a bachelor's qualification or more at the moment?‑‑‑I don't have the data in front of me to confirm that.

PN1926

Can I show you, please, a report by Professor Austen who was an expert witness for the ACTU in this case? And if I could ask members of the Bench please to turn to page 9 of that report? I'll give you mine. No, I'm sorry, I can't. I've written on it. Sorry about that. Now, you read Professor Austen's report, didn't you, Ms Toth?‑‑‑Yes.

PN1927

Can I ask you to accept ‑ and tell me if you can't, but can I ask you to accept that figure 6 in her report on the page that you've been given shows that a larger proportion of women than men now have a bachelor level qualification or above and that there is a gender gap between men and women with respect to that qualification?‑‑‑Yes, her data shows that to be the case for the whole period of 2005 to 2015.

PN1928

It does, thank you. Can I ask you also if you agree that for women aged 25 to 44 large numbers of them work part‑time?‑‑‑Yes, that's correct.

PN1929

So if women hold higher levels of qualification than men, and there are large numbers of women aged between 25 and 44 working part‑time, it's arguable, isn't it, that the part‑time workforce is characterised by highly qualified and skilled women?‑‑‑In those age groups, yes. For the younger age groups they're mostly still getting their qualifications so it's a different cohort.

PN1930

No, I understand. That's why I limited my age range from 25 to 44. And do you accept that this might suggest that there's an increased ‑ that part‑time workers are likely to be more productive because more of them are better qualified?‑‑‑It depends on the skills match, of course ‑ ‑ ‑

PN1931

Certainly?‑‑‑ ‑ ‑ ‑ if they're working in their profession that they're qualified for, but that's true of the whole population.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1932

Equally if they're working in a profession for which they are overqualified or a job for which they're overqualified they're likely to be more productive because ‑ ‑ ‑?‑‑‑No.

PN1933

‑ ‑ ‑ they're overqualified for a job that is easy to do?‑‑‑No, that's not necessarily the case. If there's a skills mismatch, up or down, that can affect the productivity of the way that that work is done. So someone who is overqualified is not necessarily going to do the job better or be more productive than someone who has a good match for that job.

PN1934

Sorry, perhaps I wasn't clear. I wasn't really talking about skills mismatch. I'm talking about qualifications. Say you ‑ ‑ ‑?‑‑‑That is part of skills mismatch.

PN1935

But, and I'll just finish, say you're in the same profession and you have a managerial role and you need to move to a part‑time role. You can't get a managerial role on a part‑time basis. So you're in the same profession, maybe even in the same company, but you've moved down the ladder. You're likely to be more productive because you're overqualified?‑‑‑No, I would not agree with that. I think it would mean that unfortunately you're not utilising your own managerial skills but it doesn't follow from that that you will do that lower job in a more productive way.

PN1936

Are you familiar with the structural efficiency principle ‑ ‑ ‑?‑‑‑Yes.

PN1937

‑ ‑ ‑ that the predecessor to this Commission introduced in the National Wage Case in 1998?‑‑‑I've heard of it but I don't know the detail of it in the context of these hearings.

PN1938

This is the first time it's popped up in these hearings, at least in submissions, so everyone is in a state of newness perhaps. Can I hand ‑ ‑ ‑

PN1939

JUSTICE ROSS: Well, except me.

PN1940

MS BURKE: Except, of course, for his Honour and the members of the Full Bench. Can I hand up a copy of the 1991 National Wage Case to you, please? And for the transcript that's Print J7400?‑‑‑Gosh, no, I haven't seen this one before.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1941

Don't be alarmed because I'm not going to ask you to read the whole thing. I hope there are page numbers at the bottom.

PN1942

JUSTICE ROSS: Yes.

PN1943

MS BURKE: Can you go to page 40, please? Bear with me. Sorry, this is the difficulty with not having a hardcopy myself.

PN1944

MR WARD: Here's a hardcopy.

PN1945

MS BURKE: Sorry. Thank you. Well, actually the difficulty is that I got the page number wrong so there's an admission against interest. Page 42. Thank you. All right. Third paragraph down, I'll just read that. What it says is:

PN1946

Implementation of the structural efficiency principle will involve what might be perceived as both losses and gains for employers and employees. The end, however, is that all will gain through the increased viability and efficiency of Australian industry.

PN1947

Then if you turn to page 44, under the heading 48, "National Wage Case 1991", and you can just read that, I don't need to read it aloud. But to summarise, what the predecessor to this Commission determined was that:

PN1948

Any party seeking minimum wage increases needed to satisfy the Commission that they had considered and included where appropriate ‑

PN1949

‑ flexible work arrangements. Flexible work arrangements are my words, but what I'm referring to there are the (i), (ii), (iii). Ms Toth, do you agree with me that the structural efficiency principle appears to be based on the premise that flexible work arrangements can positively impact productivity?‑‑‑I don't know enough about it, I'm sorry, just from reading this.

PN1950

What about just the ‑ just from the words of the text, what the Commission is saying is that ‑ ‑ ‑

PN1951

JUSTICE ROSS: Well, you can make a submission about what the Commission is saying in the ‑ that's all right.

PN1952

MS BURKE: All right, I withdraw. All right, you can put that to one side. Now you agree that there's been significant growth in part-time work in this country over the last 30 years?‑‑‑Yes, there has.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1953

That's in graph 1 in your report?‑‑‑Yes.

PN1954

Sorry, I shouldn't have made you - - -?‑‑‑Yes, it's in - I think it's in pretty much everyone's submissions.

PN1955

Yes, we're all agreeing on that but the reason I apologise is because I'm now going to take you back to paragraph 29?‑‑‑Mm-hm.

PN1956

In the quote actually above 29 is the underlined text:

PN1957

The Productivity Commission has suggested that part-time workers can have the same fixed costs for full-time workers.

PN1958

?‑‑‑They did say that, yes.

PN1959

And accepting momentarily that that's the case and bearing in mind the increase in part-time work, isn't the only rational reason for the growth in part-time work, that the productivity of part-time employees has increased relative to full-time employees?‑‑‑No, what the Productivity Commission is saying there is that because there are these costs involved, the benefits of part-time work are about the allocative flexibility of workers and about changes in the structure of the economy which has meant that more people are needing to work across a different range of hours. So it's not about productivity per worker per hour for the individual. It's about the allocative efficiency of being able to use labour in a more flexible manner.

PN1960

I'll ask you about allocative efficiency in a moment but perhaps I'll just step through the proposition one by one. If you accept that the fixed costs of employing a full-time and a part-time worker are the same?‑‑‑They are in many cases, yes. Probably not every case.

PN1961

No, but as a general proposition. And wages of course will be different?‑‑‑Well, in Australia the data suggests that part-time workers generally earn a pro rata of the full-time rate.

PN1962

Yes?‑‑‑So on an hourly basis their pay is the same.

PN1963

You assume that employers act rationally?‑‑‑We do. Big assumption.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1964

What I mean or what perhaps we all means by acting rationally is that they seek to achieve maximum productivity?‑‑‑Productivity is one thing that they maximum. What they're actually seeking to do is maximise their profits and returns. Like employees they're seeking to maximise their income. So achieving - - -

PN1965

Productivity?‑‑‑Productivity is one way of doing that but of course if your productivity is good but you're still not selling your output, it comes to naught. So it's a little bit more detailed than just achieving good productivity.

PN1966

But productivity is really all I'm interested in for the purposes of this question and of course your statement is largely concerned with productivity?‑‑‑Yes.

PN1967

So where the fixed costs are the same, wages - if it's cheaper to hire a part-time employee on a wage cost, employers are acting rationally - - -

PN1968

MR FERGUSON: I am not sure what the basis of that position is.

PN1969

THE WITNESS: No, that's not right.

PN1970

JUSTICE ROSS: You're not talking about an hourly basis are you, you're saying that - are you putting that it's cheaper to employ them because you might only be employing them for two days a week.

PN1971

MS BURKE: That's right.

PN1972

JUSTICE ROSS: So on an hourly basis they're the same.

PN1973

MS BURKE: Certainly, yes. I'm sorry for the confusion. It will be what the President has expressed. Employers are seeking to achieve maximum productivity accepting that as an element of many of the things they need to think about when they're looking at profits. So the increase in part-time work is arguably because they are more productive or they - - -?‑‑‑No, not - the individual worker per hour - - -

PN1974

No, I'm looking at the economy level?‑‑‑Yes, I'm trying to explain it. So the individual worker is not necessarily more productive per hour worked. What's happening is the distribution of hours is more efficient, so the individuals may not necessarily be more efficient but the spread of hours in that firm or across the economy is more efficient. That's where the productivity gain comes from.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1975

But doesn't that mean though that it is beneficial and the part-time work is more productive for the economy? It adds to the productivity of the economy?‑‑‑Not in itself. It's more productive as a method of distributing labour across the economy because it is more flexible. But it's about improving flexibility so that the spread of hours is more productive.

PN1976

Your Honour, those are my questions on the Productivity Commission report if - - -

PN1977

JUSTICE ROSS: I think I'll wait till the end.

PN1978

MS BURKE: Right. I want to turn now to paragraph 39 and this is where you discuss allocative efficiency. I'll just read how you've described that.

PN1979

Allocative efficiency is the optimal allocation of all resources for a given set of community preferences.

PN1980

What does that mean, "a given set of community preferences"?‑‑‑It's a very broad concept. So it's about achieving the - yes, as I said, the optimal allocation of resources for the outcomes that the entire economy wishes to achieve. So deciding how the whole economy wishes to achieve these things is the dynamic bit and a little bit up in the air, which is why it's probably worded a little bit - what would you call it, a little bit fuzzy.

PN1981

So community preferences, you're talking about the economic community?‑‑‑It's actually a little bit broader than that and this is where economics does sort of morph into some of the other social sciences. It's about achieving, you know, broad community goals with regard to lifestyle wellbeing et cetera, as well as just GDP output, which is why I worded it as, you know, community preferences rather than simply maximising GDP. Because there are other objectives that collectively we wish to achieve.

PN1982

Those collective objectives will include those of employers and employees?‑‑‑That's correct. So, you know, it's - and I guess it's an attempt in very crude economic speak and economics is quite blunt fairly frequently of, you know, trying to include the - you know, maximising the wellbeing of the entire community rather than just a subset of it.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1983

Who sets these preferences?‑‑‑Well, this is the fuzzy bit. It's parliament, it's bodies like the Fair Work Commission. It's the rules and regulations that we live and work by.

PN1984

So it's very broad and - - -?‑‑‑It is.

PN1985

- - - at large really?‑‑‑It is and it's very dynamic too, and that's the point I think I made further on that it's not something that's easy to pin down.

PN1986

Have you determined any particular preferences for the purposes of your discussion of allocative efficiency in this statement?‑‑‑No, I left it deliberately open because it is a dynamic concept, and one of the reasons why economists do recommend flexible arrangements is precisely for that reason. Because community expectations about work, about GDP, about output, even about the types of goods and services that we want to produce are constantly changing.

PN1987

Is allocative efficiency a criteria for measuring the allocation of resources or is it an outcome?‑‑‑I'd say it's an outcome. It's an objective. It's really the ideal, you know, our ideal is to achieve all of the outcomes that the whole community wants in the most efficient way.

PN1988

So where you've used this concept in your report you're really using it an outcome sense, not as a criteria or a measure?‑‑‑That's right.

PN1989

Now what you say about the ACTU's claim, and I'm looking here at paragraph 41, is that it will impede the efficient allocation of labour hours. I appreciate that you've made this statement based on labour hours rather than labour per se, so the comparator you have used - tell me if I have this right is looking at the employee working full-time, she can stay working full-time or she could elect to work part-time?‑‑‑That wasn't really the scenario I had in mind but yes, that could be one of them.

PN1990

Another counter factual might be that an employee working full-time who is unable to work part-time leaves the workforce?‑‑‑That's also a scenario but again I didn't spell out exact scenarios here. It was more about the concept of allocation and the fact that flexibility is in economics very generally considered to be an aid to improving allocative efficiency.

PN1991

All right. If the employee leaves the workforce - she might leave the workforce or she might leave the firm, so either way, you wouldn't describe either of those as an optimal allocation of labour, would you?‑‑‑In some cases, yes.

PN1992

Wouldn't that – I mean, in those scenarios there would be a transaction cost?‑‑‑Sorry, I'm not following you.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN1993

Sorry. No, I'll ‑ ‑ ‑?‑‑‑So you're assuming that someone leaves the firm or leaves the workforce completely.

PN1994

Yes. Yes?‑‑‑And they're not replaced, or ‑ ‑ ‑

PN1995

They may be replaced or they may not, but there will be a transaction cost?‑‑‑Any time there's staff turnover there is a transaction cost, that's right.

PN1996

You agree that transaction costs affect the decisions made about the allocation of resources?‑‑‑That's one of many factors that come into play for both the employee and the employer when they're making those decisions.

PN1997

You haven't really discussed transaction costs in your discussion of allocative efficiency?‑‑‑No, I haven't.

PN1998

Your thesis is that the ACTU's claim will restrict the allocation of labour hours, but of course what you mean really is the employer's ability to dictate the allocation of hours, don't you?‑‑‑Not dictate; the employer's ability to negotiate work hours.

PN1999

I've used that word because it's used in your report at 41(i) ‑ ‑ ‑?‑‑‑Mm-hm.

PN2000

‑ ‑ ‑ "allocation of labour as dictated by the employee". Does that word only apply when the employee is making the choice?‑‑‑Well, that was my understanding of what was being proposed but possibly that's not correct.

PN2001

You consider that this would have a negative impact, the ACTU's claim, because, and I'm looking here at paragraph 43:

PN2002

It would restrict the allocation of labour hours and any measure that restricts flexibility in the allocation of resources including labour restricts the ability to achieve maximum efficiency and production across the economy.

PN2003

Do you agree that in some circumstances this might actually be desirable?‑‑‑Yes.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN2004

So, by this, I mean restricting the allocation of resources?‑‑‑That's a really interesting question because actually the whole history of industrial relations is about the negotiation over, you know, what sort of work hours and what sort of flexibilities we, as a society want, and that's why we, you know, we have moved for example from very long work hours many decades ago and generations ago to the shorter ones. So it's part of this dynamic process of achieving, what did I call it, community preferences.

PN2005

Right?‑‑‑So it's actually part of that processes, but often over a very long period of time.

PN2006

So there might be a restriction on the ability to achieve maximum efficiency and productivity across the economy but that's reflected in the community preferences?‑‑‑Well, yes, that's a trade-off that the community as a whole has decided to make, so, for example, we don't have child labour any more.

PN2007

No?‑‑‑You know, there's lots of examples in labour law, but also in other areas of the economy where we have, as a community, brought in restrictions on, you know, what you can and can't do for broad social and economic and other reasons.

PN2008

In any ‑ ‑ ‑?‑‑‑But that doesn't detract from the fact that they are reducing flexibility so ‑ ‑ ‑

PN2009

If they are?‑‑‑If – yes, that's right. So measures that ‑ ‑ ‑

PN2010

No, I understand?‑‑‑Let me start the sentence again. Measures that restrict flexibility can be adopted anyway if we, as a society, decide that that trade-off is what we want to do.

PN2011

Of course by flexibility there you're referring to the employer's flexibility? I mean ‑ ‑ ‑?‑‑‑Well, it's about the negotiation. You know the problem I guess is where it is dictated by one side or the other. So the flexibility is really important.

PN2012

The movement of the flexibility, whether it's coming from the employer or the employee?‑‑‑Well, ideally it should include both.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN2013

You then go on to talk about the impact that the proposed clause may have on firms, and am I right in that your discussion here in paragraph 44 is predicated on the idea that an employee and an employer won't agree on what's the most efficient allocation of labour?‑‑‑Well, this relates to – you picked up that word "dictate" up the top of the page there, and that relates to my understanding or my reading of the clause, which I'm now concerned might not be correct. I've read the clause to read – to mean that the employee would be able to dictate their hours with no recourse and no negotiation going on with the employer.

PN2014

But my question ‑ ‑ ‑?‑‑‑Mm-hm.

PN2015

‑ ‑ ‑was whether your assessment about the impact on firms is based on the idea that an employee and an employer will not agree on an efficient allocation of labour?‑‑‑Yes. So cases where they don't agree would probably be the worst outcome.

PN2016

Where there's a difference of opinion is it your view that the employer's would be the more rational in an economic sense?‑‑‑No, but the employer has a broader view of what's going to impact their firm's ability to undertake their business.

PN2017

You think they always get that right, do you?‑‑‑I don't know.

PN2018

You focused in particular on the idea that labour isn't perfectly substitutable, but of course firms deal with substitution of labour all the time, don't they?‑‑‑Yes, they do.

PN2019

So in a temporary way they deal with sick leave and annual leave. In a quasi-temporary way they might deal with long service leave or parental leave; that's right, isn't it?‑‑‑Mm-hm.

PN2020

Of course there are permanent substitution of labour issues that arise when someone leaves their job? Sorry, you do need to say yes for the transcript?‑‑‑Yes.

PN2021

So substitution of labour happens already and it happens pretty often?‑‑‑Yes. That's correct. And all of these factors that I've outlined here would apply in all of those cases also.

PN2022

Sure. But you haven't cited any evidence about the impact of poor substitution on allocative efficiency that arises out of any of those circumstance, have you?‑‑‑No.

PN2023

You then go on to speculate at paragraph 49 about the impact of this proposed clause on the national economy using productivity as a measure, and at paragraph 51 you acknowledge the difficulty in measuring and quantifying the impact from a productivity point of view, but then you go on to say that you nonetheless:

PN2024

consider the impact to be negative because it will impede our collective ability to allocate labour to their most productive and efficient use within or between firms.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN2025

Who is "our"?‑‑‑Let's see. I think I meant national economy.

PN2026

So "our collective ability" you're speaking ‑ ‑ ‑?‑‑‑Aggregate national.

PN2027

‑ ‑ ‑on behalf of the Australian national economy there?‑‑‑Yes. A big call. Apologies.

PN2028

Looking at this whole section, 41 to 51, paragraphs 41 to 51, where you're assessing the potential impact of the claim you haven't cited any evidence in support of your assertions about the impact of the claim, have you?‑‑‑No, all of this is what might happen in some scenarios.

PN2029

What you think might happen in some scenarios?‑‑‑That's right.

PN2030

You didn't conduct any modelling or anything like that?‑‑‑No.

PN2031

So it's really just speculation?‑‑‑It's speculation based on my experience and observations in the labour force and industrial relations over a very long period.

PN2032

You haven't actually cited any of those observations?‑‑‑No.

PN2033

Thank you. I don't have any other questions.

PN2034

JUSTICE ROSS: Can I just touch on a couple of things? If we look at this notion of flexibility and your proposition about community preferences, I just want to make sure I understand this, so you could look at flexibility from an employer perspective on a continuum really?‑‑‑Mm.

PN2035

At one end would be the absolute right to employ labour when and where you need it. So that may mean you can employ labour for half an hour if you wish, or for 60 hours if you wish. Then community preferences have shaped that and confined that absolute discretion as it were. And you've given the example that over time hours of work have been more regulated and have been shorter. Is that how – or one dimension of community preferences would be the legal framework in which – and that could be – or both in the current context the NES and decisions of the Commission in the context of modern awards; is that ‑ ‑ ‑?‑‑‑That's most definitely what I had in mind. It's all about those trade-offs so ‑ ‑ ‑

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN2036

Yes?‑‑‑You know, nobody is arguing that allocative efficiency requires flexibility to the point of, as you say, working any hours possible.

PN2037

No. But, I mean ‑ ‑ ‑?‑‑‑It's about community standards and trade-offs.

PN2038

So community preferences is, we're not talking here about what an opinion poll might say about a particular issue; it's how those preferences are given life and reflected in the regulatory framework and the context in which businesses are operating?‑‑‑That's correct.

PN2039

So it could be health and safety law could have something to do with that as well?‑‑‑Yes.

PN2040

And constraint ‑ ‑ ‑?‑‑‑Environmental laws. There's lots of examples.

PN2041

Yes. Yes. I think I understand that. In relation to – my recollection was you were asked about how this might play out in practice the question of flexible hours ‑ ‑ ‑?‑‑‑Mm.

PN2042

‑ ‑ ‑and I understood your evidence to be that the most desirable framework was one that properly balanced and took account of the interests of employers and employees rather than having an outcome dictated by one or the other; is that a fair summation?‑‑‑I think that is definitely. I think the ideal for all workplaces would be a negotiated outcome and with a range of flexibilities available rather than, you know, reduced hours or nothing else.

PN2043

So it's a framework that provides, if you like, the boundaries of the negotiation but within that the employer and the employer should be able to sort it out themselves. That's the most desirable outcome from your perspective?‑‑‑That would be the ideal, yes.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN2044

Can I just go to – we've spent quite a bit of time on the Productivity Commission's 2008 report which is set out particularly at paragraph 29 of your statement, but, look speaking for myself I'm not sure that what the Productivity Commission is saying there is of much assistance to me, because it's really saying that, well, there may be differences between full-time and part-time workers on productivity, and they say that may be the case for a range of reasons. But it's not referencing that, "Look, we've looked at it in a quantitative way and there are observed differences", or "We've done this qualitative research". It's more pointing to the fact that there may be difference, but how I read it is, well, there may be for these reasons, but it's not suggesting as a fact that there are differences?‑‑‑Yes. That's correct. And, you know, there's research from the OECD and elsewhere, but it's quite difficult to find ‑ ‑ ‑

PN2045

It would be, yes?‑‑‑ ‑ ‑ ‑productivity differences on a per person/hours worked basis, and I think that's ‑ ‑ ‑

PN2046

It may depend on the context in which they're working and the rest of it?‑‑‑That's right. That's why, you know, that Productivity Commission study and others have pointed to the allocative efficiency effects as being more important than concentrating on whether the individual worker is more productive or not, because the benefit comes from having someone who can work, you know, a different set of hours or a different spread of hours.

PN2047

Can I take you back to paragraph 19, and you recall then there was some questions about the source for the proposition that close to half of employed females in this age group work part time, and your reference to the footnote. Rather than leave us in a position where we will read the report later and try and find the source can I show you a copy of the report that's referred to, the RBA report, and I've got copies for those at the Bar table, and I've opened at page 20, and perhaps if you can take us to the bits that you say support the propositions you've set out at paragraph 19? Otherwise I can see quite a bit of ink spilt on this issue in submissions and I'd rather ‑ ‑ ‑?‑‑‑Okay.

PN2048

‑ ‑ ‑clear it up while you're here and give you the opportunity to comment on it?‑‑‑All right. Well, the RBA appears to have used ABS data for this, so it would be possible to reproduce ‑ ‑ ‑

PN2049

No, no, all I want you to do at the moment is you put a footnote 7 at the end of paragraph 19. You reference 20 of the RBA report?‑‑‑Mm-hm.

PN2050

As I understood your evidence you've said that the propositions set out at paragraph 19 are to be found at page 20 of the RBA report, and I'm just giving you the opportunity to identify where the RBA makes those observations on page 20, that's all?‑‑‑Yes. I'm just looking for it.

PN2051

No, that's fine. Take your time?‑‑‑The numbers cited in the text I don't think are exact. It just says over 50 per cent and from 15.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN2052

Yes?‑‑‑Maybe it's on the next page. Okay, I can't find a sentence that says half of females aged under 25 are part time. I think it just says that all those – "those aged under 25 years and female" – yes, okay, and females. Right. So I think the 50 per cent is actually for all people aged 15 to 25, but I'm not all that clear on that.

PN2053

So I think the sentence you're referring to is in the right-hand column about half-way down ‑ ‑ ‑?‑‑‑Yes. Yes.

PN2054

‑ ‑ ‑just after the reference to graph 4, and it says:

PN2055

For younger workers the part time share has increased from 15 per cent of employment in 1980 to over 50 per cent with these workers tending to cite study as their main reason for working part time.

PN2056

Then it goes on to say:

PN2057

Just over half of 15 to 24 year olds are now enrolled in full-time education -

PN2058

Et cetera?‑‑‑Yes. I think the 50 per cent reference I've included is possibly incorrect. It looks like it refers to the whole age group rather than females only.

PN2059

Yes?‑‑‑My apologies for that confusion.

PN2060

No. That's all right. Thank you. Is there anything arising from any of those questions?

PN2061

MS BURKE: Not from me, your Honour.

PN2062

JUSTICE ROSS: No? All right. Mr Ferguson, do you have any re-examination?

PN2063

MR FERGUSON: No. No re-examination.

PN2064

JUSTICE ROSS: I'm sorry, I should have asked – although the scope of any cross-examination you might have, Mr Ward, is going to be very limited, but was there anything you wanted to ask the witness?

PN2065

MR WARD: No.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN2066

JUSTICE ROSS: No. Yes, all right. Nothing further for Ms Toth? No? Thank you for your evidence, Ms Toth. You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.31 AM]

PN2067

MR WARD: Your Honour, I've taken some instructions from the National Farmers' Federation.

PN2068

JUSTICE ROSS: Yes.

PN2069

MR WARD: Might we deal with that now, or is now a bad time?

PN2070

JUSTICE ROSS: No, no, no, not at all. We can deal with that bit now. Did you want to tender those various statements?

PN2071

MR WARD: Your Honour, I might, for the purposes of doing this simply announce an appearance for the National Farmers' Federation.

PN2072

JUSTICE ROSS: It might shortcut the exercise, do I take it the NFF wishes to tender the statements and supplementary statements of Ms Beveridge, Ms Corrigan, Mr Kemp, and Ms Platts?

PN2073

MR WARD: That is correct, your Honour.

PN2074

JUSTICE ROSS: All right.

PN2075

MR WARD: I had a list to go through but I'm happy not to go through it if you just wanted to mark them all.

PN2076

JUSTICE ROSS: No. Yes, is that the list though? That's the ‑ ‑ ‑

PN2077

MR WARD: It's Kemp, Platts, Beveridge and Corrigan, yes.

PN2078

JUSTICE ROSS: Yes. I'll mark the statement of Ms Beverage – I'm assuming there's no objection to any of these because they've been dealt with?

PN2079

MS BURKE: No, there's none, your Honour.

*** JULIE CHRISTINA TOTH XXN MS BURKE

PN2080

JUSTICE ROSS: No. I'll mark the statement of Ms Beveridge of 29 September as exhibit NFF1.

EXHIBIT #NFF1 WITNESS STTAEMENT OF EDWINA BEVERIDGE DATED 29/09/2017

PN2081

JUSTICE ROSS: The supplementary statement of Ms Beveridge of 8 December as NFF2.

EXHIBIT #NFF2 SUPPLEMENTARY WITNESS STATEMENT OF EDWINA BEVERIDGE DATED 08/12/2017

PN2082

JUSTICE ROSS: The statement of Ms Corrigan of 1 November as NFF3.

EXHIBIT #NFF3 WITNESS STATEMENT OF LUCINDA CORRIGAN DATED 01/11/2017

PN2083

JUSTICE ROSS: The supplementary statement of Ms Corrigan of 7 December NFF4.

EXHIBIT #NFF4 SUPPLEMENTARY WITNESS STATEMENT OF LUCINDA CORRIGAN DATED 07/12/2017

PN2084

JUSTICE ROSS: The statement of Mr Kemp – I'm assuming it's Mr Kemp, but Chris Kemp ‑ ‑ ‑

PN2085

MR WARD: It's Chris, yes.

PN2086

JUSTICE ROSS: ‑ ‑ ‑of 30 October as NFF5.

EXHIBIT #NFF5 WITNESS STATEMENT OF CHRIS KEMP DATED 30/10/2017

PN2087

JUSTICE ROSS: The supplementary statement of Mr Kemp which I note is not signed or dated but there's no objection taken to it, mark that as exhibit NFF6.

EXHIBIT #NFF6 SUPPLEMENTARY WITNESS STATEMENT OF CHRIS KEMP UNDATED

PN2088

JUSTICE ROSS: The statement of Deborah Platts of 27 October, NFF7. The supplementary of Ms Platts of 11 December, NFF8.

PN2089

MR WARD: Commission please.

EXHIBIT #NFF7 WITNESS STATEMENT OF DEBORAH PLATTS DATED 27/10/2017

EXHIBIT #NFF8 SUPPLEMENTARY WITNESS STATEMENT OF DEBORAH PLATTS DATED 11/12/2017

PN2090

JUSTICE ROSS: Right.

PN2091

MR FERGUSON: Do you want to mark the statements that we tender.

PN2092

JUSTICE ROSS: Sure, may as well deal with that too, yes. You've withdrawn the statement I think of Benjamin Norman. Is that right?

PN2093

MR FERGUSON: No we'd seek to - we've withdrawn paragraph - - -

PN2094

JUSTICE ROSS: Paragraph 84, I'm sorry, yes, that's right.

PN2095

MR FERGUSON: There's a statement, a supplementary statement, we seek to tender both.

PN2096

JUSTICE ROSS: That's right, there are. Just bear with me for a moment. Mr Norman will be AiGroup5 and his supplementary statement AiGroup6. You have the statements of - - -

PN2097

MR FERGUSON: Peter Ross.

PN2098

JUSTICE ROSS: Which will - be 24 October will be AiGroup7, the supplementary statement - - -

PN2099

MR FERGUSON: It's not signed.

PN2100

JUSTICE ROSS: - - - which is not signed or dated but there's no objection taken to it will be exhibit AiGroup8.

PN2101

DEPUTY PRESIDENT GOOLEY: Nine.

PN2102

JUSTICE ROSS: Nine?

PN2103

DEPUTY PRESIDENT GOOLEY: No, sorry.

PN2104

JUSTICE ROSS: Yes.

PN2105

MR FERGUSON: Nine. That's it, thank you, your Honour.

PN2106

JUSTICE ROSS: It's 8 I think. Yes. We've got the two statements. We had Ms Toff who was AiGroup4. We've had Mr Norman's two statements, 5 and 6, Mr Ross' statements 7 and 8.

PN2107

MR FERGUSON: Yes.

PN2108

JUSTICE ROSS: Right.

EXHIBIT #AIGROUP5 WITNESS STATEMENT OF BENJAMIN NORMAN

EXHIBIT #AIGROUP6 SUPPLEMENTARY WITNESS STATEMENT OF BENJAMIN NORMAN

EXHIBIT #AIGROUP7 WITNESS STATEMENT OF PETER ROSS

EXHIBIT #AIGROUP8 SUPPLEMENTARY WITNESS STATEMENT OF PETER ROSS

PN2109

There are some statements of AIMPE, do you want to deal with those?

PN2110

MR ARNDT: Yes, it has, your Honour.

PN2111

JUSTICE ROSS: So I've got Paula Bayliss, two statements, 31 October and 11 December. Lauren Cleaver, 31 October, 12 December. Jae Fraser, 31 October. Mark Rizzardo, 31 October. Is that right?

PN2112

MR ARNDT: That is right. Just for the benefit of the decision, it's Mr Jae Fraser, that's the only tricky one.

PN2113

JUSTICE ROSS: Mr Jae Fraser.

PN2114

MR ARNDT: Mr Jae Fraser.

PN2115

JUSTICE ROSS: No, that's fine. I'll mark them in the order I've referred to them. The first statement of Paula Bayliss, exhibit ACCI1. The supplementary statement ACCI2. Lauren Cleaver's statement ACCI3. Supplementary statement of Lauren Cleaver 4. Mr Jae Fraser ACCI5. Mark Rizzardo ACCI6.

EXHIBIT #ACCI1 WITNESS STATEMENT OF PAULA BAYLISS DATED 31/10/2017

EXHIBIT #ACCI2 SUPPLEMENTARY WITNESS STATEMENT OF PAULA BAYLISS DATED 11/12/2017

EXHIBIT #ACCI3 WITNESS STATEMENT OF LAUREN CLEAVER DATED 31/10/2017

EXHIBIT #ACCI4 SUPPLEMENTARY WITNESS STATEMENT OF LAUREN CLEAVER DATED 12/12/2017

EXHIBIT #ACCI5 WITNESS STATEMENT OF MR JAE FRASER DATED 31/10/2017

EXHIBIT #ACCI6 WITNESS STATEMENT OF MARK RIZZARDO DATED 31/10/2017

PN2116

So I think that only leaves Mr Hoang who we'll hear from shortly. I think we're just going to stand down for five minutes to allow for the matter to be set up. Thanks, we'll stand down.

SHORT ADJOURNMENT [11.35 AM]

RESUMED [11.56 AM]

PN2117

JUSTICE ROSS: Mr Arndt?

PN2118

MR ARNDT: I call Kevin Hoang.

<KEVIN HOANG, AFFIRMED [11.57 AM]

EXAMINATION-IN-CHIEF BY MR ARNDT [11.57 AM]

PN2119

MR ARNDT: Mr Hoang, can you just repeat your name and address for the benefit of the transcript?‑‑‑Mr Kevin Hoang.

PN2120

Address?‑‑‑(Address supplied)

*** KEVIN HOANG XN MR ARNDT

PN2121

JUSTICE ROSS: Not quite as close to the microphone, if you will?‑‑‑Too close.

PN2122

No, that's all right.

PN2123

MR ARNDT: You had made a statement in these proceedings of nine paragraphs dated 3 November 2017?‑‑‑Yes.

PN2124

Is that statement true and correct to the best of your knowledge and belief?‑‑‑Yes.

PN2125

I seek to tender that statement.

PN2126

JUSTICE ROSS: Is it the Motor Traders Organisations? Is that the best descriptor? So exhibit MTO1 or do you ‑ I don't want to stumble into the politics of the ‑ ‑ ‑

PN2127

MR ARNDT: Best not.

PN2128

JUSTICE ROSS: No.

PN2129

MR ARNDT: I think that's a safe course to take.

PN2130

JUSTICE ROSS: Well, we'll find out. Exhibit MTO1, thank you.

EXHIBIT #MTO1 WITNESS STATEMENT OF KEVIN HOANG DATED 03/11/2017

PN2131

JUSTICE ROSS: Yes, Ms Burke?

CROSS-EXAMINATION BY MS BURKE [11.58 AM]

PN2132

MS BURKE: Thank you, Mr Hoang. My name is Kate Burke. I'm counsel for the ACTU. I've got some questions for you about your statement?‑‑‑Sure.

PN2133

But first I just want to ask you about the survey more generally. Now, the survey isn't intended to be representative of employers generally, is it?‑‑‑That's correct.

*** KEVIN HOANG XXN MS BURKE

PN2134

It's not intended to be representative of members of your organisation?‑‑‑It depends on the population that you're planning to use. So it's representative of the automotive industry nationally.

PN2135

That's what you are contending, that ‑ ‑ ‑

PN2136

MR ARNDT: Sorry. Your Honour, I think Mr Hoang can definitely answer within his capability as to what is intended to be taken as ‑ ‑ ‑

PN2137

JUSTICE ROSS: Yes, there are two issues. There's both how he might answer it, but how is it going to be used by the organisation in these proceedings. And my understanding is the concession has been made that it won't be used to assert that it's representative of any particular group. That was my ‑ ‑ ‑

PN2138

MR ARNDT: That's right, your Honour. Also I think that, to the extent that it is relied on, it will be a matter for submissions and not for the witness to give that evidence.

PN2139

JUSTICE ROSS: Well, when you say, "To the extent that it is relied on", I think you need to be clear about that now and it will save Ms Burke some time in asking questions of the witness. But I had understood that you were not putting that it was representative of any particular group of employers or an industry sector. Rather, you were saying that it was anecdotal and descriptive. And no doubt in submissions you say, "Well, it's a significant number and therefore it reflects the views of a significant number of employees who responded to this survey." But that was the ‑ ‑ ‑

PN2140

MR ARNDT: That's correct, your Honour. I don't think ‑ and it's a matter for Ms Burke obviously, but I don't think Mr Hoang needs to be asked those questions if they relate to getting to the point that your Honour has just made.

PN2141

MS BURKE: Well, I just wanted to ensure that there was a unity of understanding between the VACC and the Australian Chamber, given that there was issues with the video‑link so ‑ ‑ ‑

PN2142

JUSTICE ROSS: Well, Mr Arndt is representing the VACC and the Motor Traders Organisations.

*** KEVIN HOANG XXN MS BURKE

PN2143

MR ARNDT: That's right, and perhaps to clarify, the only reason why I'm on my feet now is to the extent to clarify the extent that the VAC uses this material, just suggesting that those matters best be asked of myself and the VACC rather than the witness.

PN2144

JUSTICE ROSS: And you've indicated your agreement with the proposition I put?

PN2145

MR ARNDT: Yes, that's right, that's right.

PN2146

JUSTICE ROSS: Yes, okay.

PN2147

MS BURKE: All right, thank you.

PN2148

JUSTICE ROSS: Is that sufficiently confusing now, Ms Burke?

PN2149

MS BURKE: I'm happy that it's clear as mud, thank you, your Honour. Mr Hoang, you haven't conducted any analysis of the survey results?‑‑‑In terms of any written analysis, no.

PN2150

All right. I'll leave that. Now, how was this survey conducted?‑‑‑So the survey was based on the Joint Employer Survey, however we did it separately.

PN2151

Maybe that was a bit of a broad question. Why don't I ask you a specific question?‑‑‑Yes.

PN2152

Was it an online survey?‑‑‑That's correct. It was an electronic survey distributed amongst members via email or through the bulletin.

PN2153

And what did you use, a website, to create the survey?‑‑‑Yes, so it was an electronic survey. It was developed using SurveyMonkey.

PN2154

SurveyMonkey, yes?‑‑‑Yes.

PN2155

Where was the data stored for the survey? Was it on your server?‑‑‑That's correct.

PN2156

Did you do any testing of the survey instrument before it was sent out to members?‑‑‑What do you mean by testing of instruments?

*** KEVIN HOANG XXN MS BURKE

PN2157

Well, did you make sure that you could answer all the questions, for example?‑‑‑That's correct.

PN2158

Did you do any quality control?‑‑‑Yes, we did.

PN2159

What quality control measures did you take?‑‑‑So we make sure that the survey was distributed amongst all divisions of the Automotive Trades Associates so to cover a broad range of the automotive industry sectors. We made sure that there was a sufficient sample size to develop a sufficient margin of error at the 95 per cent confidence interval. So we were able to get a little bit over 1,000 respondents to the survey which we filtered out for only completed responses and then we further filtered out the respondents that were not applied ‑ Were not covered under the modern award. It provided a 3.5 or 3.6 per cent margin of error and I think that's more than enough to determine the results is based ‑ it's more than enough to show that the results are accurate.

PN2160

None of that evidence that you've just given is in your statement, is it?‑‑‑We did list the completed responses as well ‑ ‑ ‑

PN2161

Nothing about 95 per cent confidence interval, nothing about sample size?‑‑‑No, that's correct.

PN2162

Did you not think that that was relevant information for the Commission?‑‑‑At the time we didn't include it because I - we've included the sample size itself which I thought was sufficient at the time.

PN2163

But now you think differently?‑‑‑I can't comment any further than that but, yes.

PN2164

So yes, you do think differently now?‑‑‑It's supplementary material in my opinion.

PN2165

Who designed this survey?‑‑‑So the survey was mainly based on the ACCI AiG survey, save for the first five questions which we based that on the part-time/casual survey that we did a few years ago.

PN2166

So was it you though who sat down and decided which questions would be asked?‑‑‑No.

*** KEVIN HOANG XXN MS BURKE

PN2167

Who was it?‑‑‑We based predominantly - we based the survey predominantly based on the ACCI AiG survey. Then me in collaboration with Bill Chesterman we decided that it's due to the unique nature of the automotive industry it was important that we added - we made a few changes to the first five questions.

PN2168

So it was you and Bill Chesterman mostly who made the decisions about how the survey would look?‑‑‑That's correct.

PN2169

Now your evidence is that the survey was sent to all members of five organisations and they are listed in paragraph 5 of your statement. So they are the motor trades organisations that cover Victoria and New South Wales, Queensland, Western Australia and South Australia?‑‑‑That's correct.

PN2170

How many members does each of those organisations have?‑‑‑So the members - so we sent the survey across to all members.

PN2171

To all members?‑‑‑To all members. So as per the statement we were sent to - within our membership, the ACC, it was sent to 5229 members.

PN2172

Hang on, and you're reading here from paragraph 6?‑‑‑Paragraph 6, that's correct, yes.

PN2173

So can I understand then that in paragraph 7 that's where you refer to the total?‑‑‑That's correct.

PN2174

And you've said:

PN2175

The total number of members of the motor trades organisations that were sent the survey is 13,398. What I'm just trying to understand is, is that actually also that figure the total number of members?‑‑‑That's correct.

PN2176

Do you have to be an employer to be a member of any of these organisations?‑‑‑That's correct. You had to be an automotive business.

PN2177

So could you be self-employed?‑‑‑That's correct.

PN2178

Can you be an individual member?‑‑‑You can be a sole proprietor or a small business.

*** KEVIN HOANG XXN MS BURKE

PN2179

The businesses and the employers who belong to these organisations, they cover a range of industries don't they?‑‑‑That's correct.

PN2180

That includes retail and not just - it's not just about cars, it's about bikes and boats et cetera?‑‑‑That's correct.

PN2181

So there's a number of different awards that might cover those industries?‑‑‑That's correct.

PN2182

Your - sorry, it's not evidenced but in the letter that Mr Chesterman sent to the Commission dated 24 November, do you have a copy of that with you?‑‑‑Not with me, sorry.

PN2183

I'm happy to hand you mine if it helps. It's just got some highlighting on it but I don't think there's any issue with that. What that letter says is that the industry comprises 70,000 businesses employing 380,000 employees?‑‑‑That's correct.

PN2184

So your membership of about 14,000, that's about roughly 20 per cent?‑‑‑That's correct.

PN2185

You can put that letter to one side. You didn't send this survey out yourself, did you?‑‑‑No, it was distributed amongst other MTA members as well, which they distributed among their own membership.

PN2186

Does every member of all these organisations have an email address?‑‑‑Most do, some don't.

PN2187

So what did you do - so when earlier you said the survey went to every member, how did it go to those who don't have email addresses?‑‑‑I can't answer that question as I do not know any further details of that.

PN2188

So it's possible that it didn't go to every member of the motor trades organisations?‑‑‑I don't know.

PN2189

Did you get many bounce backs from the emails?‑‑‑There were some bounce backs. I think that's inevitable in all email distributions but for the most part it was sent out to all members.

PN2190

How many?‑‑‑How can I give an - - -

*** KEVIN HOANG XXN MS BURKE

PN2191

I'm sorry, how many bounce backs?‑‑‑I cannot give you an exact figure to that but from memory I think it was only a small amount.

PN2192

What's a small amount, 100, 1000?‑‑‑Definitely less than 100.

PN2193

Now if you look at tab 1 of your statement, sorry the exhibit to your statement. That's the text of the email that went out to the respondents. You've got that there?‑‑‑Not with me, sorry.

PN2194

Perhaps Mr Hoang could be provided with a copy of his statement.

PN2195

MR WARD: The exhibit?

PN2196

MS BURKE: The exhibit, yes. So you can see the text of the email there. That's at tab - after the page described as tab 1?‑‑‑Yes.

PN2197

If you look at the bottom it states that the email - if anyone needed any assistance they could contact you?‑‑‑That's correct.

PN2198

Did anyone call you?‑‑‑From memory maybe one or two members.

PN2199

What did they say?‑‑‑What they said was I don't really understand this question.

PN2200

Which question?‑‑‑Actually sorry, from memory, it wasn't from the member, it was from the actual industrial relations advisor.

PN2201

Of what organisation?‑‑‑I cannot remember.

PN2202

From one of the five?‑‑‑That's correct, but it was an administrative issue. That was it.

PN2203

So it wasn't that the industrial relations organiser was answering the survey, was it?‑‑‑No, no, he wasn't, no.

PN2204

Other than that you got no phone calls out of the 13,398 people who called you?‑‑‑No.

*** KEVIN HOANG XXN MS BURKE

PN2205

I want to ask you a bit about the relationship between the joint employer survey and your survey. Why did you do your own survey?‑‑‑I'll just preface first by saying that I wasn't part of the decision in terms of why we did the separate survey.

PN2206

Well in that case I don't want you to give evidence if you're not - if you don't know it's fine to say you don't know?‑‑‑Yes. Yes, it is worth saying that we did the survey because we deemed the automotive industry is a unique industry in its own right, it comprises of many sectors that goes across retail, wholesale, repair maintenance. Further to that point the ANZSIC codes at the top divisional level is not sufficient in being able to characterise the automotive sectors and some of the sectors, namely some of the smaller sectors like bicycles, marine et cetera, the ANZSIC codes do not properly enumerate those sectors. So we decide that it is more - it is prudent that we did our own survey.

PN2207

So you're concern about the ANZSIC codes properly representing your members?‑‑‑That's correct.

PN2208

You haven't actually - and is that why you asked Question 1 of the survey?‑‑‑That's correct, yes.

PN2209

I'll take you to the questions shortly but Question 1 says:

PN2210

The Australian Bureau of Statistics uses its own industry classification system.

PN2211

?‑‑‑Yes.

PN2212

Now you were talking about the ANZSIC codes?‑‑‑The top divisional level.

PN2213

But in the question where you're referring to ABS statistics, you were referring there to the ANZSIC top level codes?‑‑‑That's correct.

PN2214

What's your understanding about the relationship between the joint employer survey and your survey?‑‑‑I don't know. I can't comment any further.

PN2215

The five members of the motor trades organisations in your survey are also members of the Australian Chamber of Commerce and Industry?‑‑‑I think so.

*** KEVIN HOANG XXN MS BURKE

PN2216

Is it possible that members of your organisations receive both your email and the joint employer survey email?‑‑‑I can't comment on that because I don't know.

PN2217

If they did that - sorry, what steps did you take to ensure that that didn't happen?‑‑‑I can't comment on that because I'm not sure about that.

PN2218

Does that mean you took no steps, you personally?‑‑‑Yes.

PN2219

Do you know if anyone in your organisation did?‑‑‑Not that I'm aware of.

PN2220

Looking just at your own survey, what steps did you take to ensure that members didn't answer the survey more than once?‑‑‑There's an option within SurveyMonkey that allows for only ‑ that allows for the respondent to only conduct the survey once.

PN2221

How does it do that?‑‑‑So basically if you were to have ‑ it's basically one survey for one device. So most likely if the member has their own computer, once they've conducted that survey one time on that computer they're not allowed to do that again.

PN2222

And is that because SurveyMonkey records the IP address of the respondent?‑‑‑I believe so.

PN2223

Or does it use cookies?‑‑‑That I'm not entirely sure.

PN2224

It might use cookies?‑‑‑It might use cookies or it might use IP addresses. I'm not sure.

PN2225

You didn't ask it specifically to use cookies?‑‑‑I don't know, but there's an option in SurveyMonkey which allows for multiple responses to be turned off. So most likely if the member would have done the survey once on that computer he won't be able to do it again.

PN2226

On that computer or using that browser?‑‑‑Computer, device.

PN2227

Because that would imply, wouldn't it, that SurveyMonkey is recording the IP address?‑‑‑If that's the case then that's the case, I think.

*** KEVIN HOANG XXN MS BURKE

PN2228

Do you understand that the joint employer survey used cookies to prevent users from answering more than once?‑‑‑That I don't know.

PN2229

JUSTICE ROSS: Can I just ask some clarification? When you say they couldn't use that device to complete the survey twice, does that imply they could have used another device? So they could have used their smartphone versus a tablet or ‑ ‑ ‑?‑‑‑Possibly, however that's very unlikely given that many members, once they've done the survey, will not want to do the survey again.

PN2230

Might say something about your surveys, but yes.

PN2231

MS BURKE: You don't know that, do you, Mr Hoang? You're guessing?‑‑‑It's an educated guess because many members do get frustrated when they get more than one survey.

PN2232

And they told you that?‑‑‑Yes.

PN2233

That was a "yes" with real feeling, for the transcript?‑‑‑Yes.

PN2234

So to the best of your knowledge, let me make sure I've got this right, SurveyMonkey did use some mechanism to prevent users from answering more than once on the same device?‑‑‑That's correct.

PN2235

They may have used cookies as well for that purposes?‑‑‑I cannot give a definitive answer to that so ‑ ‑ ‑

PN2236

So you don't know?‑‑‑I don't know.

PN2237

The joint employer survey was open between 3 August 2017 and 8 September 2017. Are you happy to accept that? I can show you the submissions where that's expressed if you prefer?‑‑‑Yes, I agree with that, yes.

PN2238

But your survey was open between 15 August 2017 and 11 September 2017, so obviously those date periods are different, aren't they?‑‑‑That's correct.

PN2239

Yours was open for a bit less than four weeks, whereas the joint employer survey was open for five weeks?‑‑‑I believe so.

*** KEVIN HOANG XXN MS BURKE

PN2240

Why is there a difference between the two, do you know?‑‑‑I don't know, I'm sorry.

PN2241

Now I want to take you to the questions and I think what you'll need in front of you are your questions, which are behind tab 2, and it will be helpful to have attachment A to the statement of Jeremy Lappin which are the joint employer survey questions. So just turning first to your question 1, you've got that there?‑‑‑Yes.

PN2242

This question asks you about the ABS classification system and we've already really discussed that. And you've explained that you thought this information was relevant but there aren't any submissions about this survey. So can you tell me what you're asking the Commission to do with this information?

PN2243

Your Honour, I don't think this is for the witness to answer.

PN2244

JUSTICE ROSS: Well, can you tell us?

PN2245

MR ARNDT: I can direct the Commission to the ‑ well, for clarity, the VACC adopts the submissions of the Australian Chamber, as a member of the Australian Chamber. The Australian Chamber's submissions do mention the submission ‑ the joint ‑ sorry, to be clear, do mention the vehicle survey at 9.63 of their primary submissions.

PN2246

And the submission is put that the results of the vehicle survey ‑ the findings of the joint employer survey are broadly consistent with a similar survey undertaken by the Victorian Automobile Chamber of Commerce and Motor Traders Association of New South Wales.

PN2247

It goes, at 9.64, to identify material statistical differences in relation to the numbers that have given rise to the survey ‑ in the survey, rather. And then it concludes at 9.65:

PN2248

As such, our submissions above can also be taken in a general sense to apply to the Vehicle survey and the Vehicle report.

PN2249

JUSTICE ROSS: So it's the short point that you don't make anything in your submission of the answers to question 1?

PN2250

MR ARNDT: That's correct.

*** KEVIN HOANG XXN MS BURKE

PN2251

JUSTICE ROSS: Yes. I don't know whether that helps or not, Ms Burke, but ‑ ‑ ‑

PN2252

MS BURKE: Well, perhaps I'll go back a step. Your organisation decided that it was important to ask this question of respondents?‑‑‑Yes.

PN2253

Having made that decision, and received the responses, what is it that your organisation wants the Commission to do with that information?

PN2254

MR ARNDT: Your Honour?

PN2255

JUSTICE ROSS: Yes?

PN2256

MR ARNDT: I'm not sure Mr Hoang is ‑ in fact, I am sure Mr Hoang is not the advocate for the VACC.

PN2257

JUSTICE ROSS: Has he had anything to do with the submissions or ‑ I'm not sure. Where will it leave us if Mr Hoang answers what he thinks? That's not the position of his organisation. His organisation is represented by Mr Arndt and he's made it clear what the use of it is. They may have a range of internal uses they want to put the answers to question 1 to, but how is it going to help us if Mr Arndt has already said they're not saying anything about their responses to question 1?

PN2258

MS BURKE: I'll leave it. All right. We'll turn now to your question 2 and can you have a look at the joint employer survey questions? Have a look at the joint employer question 1. So these questions, your number 2, joint employer 1, they're very similar. There's no gender breakdown but they're otherwise very similar?‑‑‑That's correct.

PN2259

Then turning over the page, your question 3 is the same as the joint employer survey question 2?‑‑‑Yes.

PN2260

Your question 4 is the same as the joint employer survey question 3?‑‑‑That's correct.

PN2261

Your question 5 is the same question as the joint employer survey question 4 but there are different options for respondents. Can you see that there?‑‑‑Yes, I can see that.

*** KEVIN HOANG XXN MS BURKE

PN2262

Your survey gives respondents the option to tick one of six awards. The joint employer survey respondents are able to tick all 122 modern awards?‑‑‑That's correct.

PN2263

That includes your six awards?‑‑‑That's correct.

PN2264

Have you looked at the answers between the joint employer survey and your survey to identify if there's any overlap?‑‑‑No.

PN2265

I'll just move on then to your question 6 is the same as the joint employer survey question 5?‑‑‑That's correct.

PN2266

Your question 7 is the same as joint employer survey 6?‑‑‑That's correct.

PN2267

Your question 8 is the same as joint employer survey question 7?‑‑‑Yes.

PN2268

Your question 9, however, is the same as your question 8?‑‑‑Yes. There is a reason behind that.

PN2269

I'm sorry?‑‑‑There is a reason behind why it's the same.

PN2270

All right. Well, that was my next question?‑‑‑Sorry about that.

PN2271

What is it?‑‑‑How SurveyMonkey conducts its skip logic ‑ so depending on how you answer one question you might take you to another question ‑ is different to how the joint employer survey conducts its survey. And that's due to SurveyMonkey has a different operating system. So in order to emulate as much as I can I had to sort of make a few accommodations so ‑ to satisfy the skip logic. So I had to do another question, a duplicate of question 8. But depending on how you answered the previous questions, it will take you to either question 8 or question 9. When we get the results we'll amalgamate the results together.

PN2272

Take me through that then. So question 8, this is your question 8?‑‑‑Yes.

PN2273

In what circumstances ‑ what answer would I give to take me to the same question again over question 9?‑‑‑No, no, it's the previous question.

*** KEVIN HOANG XXN MS BURKE

PN2274

Okay?‑‑‑So I can't really remember from memory, because there was a lot of things going on, but depending on how you answer, I think, question 7 or question 6, it will take you to either question 8 or question 9 because that's how it works. Whereas in the joint survey – employer survey it wasn't required since they have a system in place where, depending on how you answer the previous questions, it would take you to the appropriate questions.

PN2275

So there was different survey logic in the platforms?‑‑‑That's correct. Yes.

PN2276

You didn't think that it was relevant to use the same platform that the joint employer survey was using?‑‑‑I can't comment on that further. We've all used SurveyMonkey. We use SurveyMonkey.

PN2277

That was just your preference?‑‑‑That's our preference, yes.

PN2278

So, look, I'm sorry, I'm still – I'm going to need to take you through this in a little bit more detail?‑‑‑Yes.

PN2279

Let's look at question 7:

PN2280

Did the business agree to change the employee's hours of work including days and starting and finishing time?

PN2281

You've got four options: yes, no, sometimes, unsure?‑‑‑That's correct.

PN2282

If you say no, you wouldn't then go to question 8, would you?‑‑‑Yes. I can't remember from memory the exact logic, but, for example, either you said yes or no it would either take you to either question 8 or question 9.

PN2283

Why would it take you – why would there be a difference when the questions are the same? Question 8 and question 9 are the same?‑‑‑Yes.

PN2284

So why would giving a different answer take you to the same question?‑‑‑Because the preceding answers, depending on how you answered the preceding answers will determine whether you should be going to question 8 or question 9, because afterwards other questions after question 8 or question 9 would be different depending on how you answered the preceding questions.

PN2285

I'll go through that by looking at the result a bit later on?‑‑‑Yes.

*** KEVIN HOANG XXN MS BURKE

PN2286

Your question 10 is the same as the joint employer survey at question 8?‑‑‑That's correct.

PN2287

This is a free text question?‑‑‑That's correct.

PN2288

Sorry, it provides free text response. And anyone who answered yes to question 7 would they be then directed to question 10 after they've answered 8 or 9?‑‑‑Let me have a look. I believe so. I'm not entirely sure. I can't remember.

PN2289

Your question 11 over the page is the same as question 10?‑‑‑That's correct.

PN2290

Do you agree that reading this without understanding the survey logic makes it very difficult to understand the survey overall?‑‑‑Possibly.

PN2291

Do you think it would've been useful to include some information about the survey logic in your statement to explain this?‑‑‑I can't comment further on that.

PN2292

You prepared your statement, didn't you?‑‑‑I prepared it in collaboration with Bill Chesterman.

PN2293

So which part – you made decisions about what to go in to your statement?‑‑‑I don't know. I don't think so.

PN2294

You didn't make the decision about what's in your statement?‑‑‑No.

PN2295

Is it really your statement, Mr Hoang, or is it someone else's?‑‑‑No, it is my statement. So I composed it, then there were changes and then we've agreed consensually.

PN2296

What sort of changes?‑‑‑In terms of whether there should be added skip logic or whether there was too much information, so – yes.

PN2297

So at some point was it contemplated that you would include that information in your statement?‑‑‑Yes.

PN2298

It was decided not to. Who decided not to include that information?‑‑‑I can't comment further on that as ‑ ‑ ‑

*** KEVIN HOANG XXN MS BURKE

PN2299

Why can't you comment further on that?‑‑‑I wasn't part of the decision on whether it should be removed or not removed.

PN2300

You were just told what would go in to your statement?‑‑‑That's correct.

PN2301

You didn't form your own view about it?‑‑‑I might have formed a view, I'm might have not formed – actually I would've formed a view, but at the end of the day, yes, I was told.

PN2302

Your name is on that statement, Mr Hoang?‑‑‑That's correct.

PN2303

But you're not responsible for the contents of it?‑‑‑I was as I was the one that wrote the first draft.

PN2304

Did the first draft have all the survey logic in it?‑‑‑It did, but it proved to be quite confusing as well, the explanation of it.

PN2305

More confusing than we all are here now?‑‑‑That's why I'm here as well.

PN2306

I see. Looking at your question 12 this question is the same as the joint employer survey question 9?‑‑‑That's correct.

PN2307

Then looking at question 13 it's the same as the joint employer survey question 10?‑‑‑That's correct.

PN2308

Let's turn to the results now. You've presented the results of this survey in two parts. At tab 3 of your statement is the answers to the multiple choice questions?‑‑‑That's correct.

PN2309

Just tell me if I'm describing this accurately. That's questions 1, 3, 4, 5, 6, 7 and 8?‑‑‑That's correct.

PN2310

They're representative visually using the chart?‑‑‑Yes.

PN2311

The answers to the free text question, so that's 2, 10, 11, 12 and 13, are reported in an Excel spreadsheet?‑‑‑That's correct.

*** KEVIN HOANG XXN MS BURKE

PN2312

I'll take you to that shortly, but you included them printed out at tab 4 of your statement?‑‑‑Yes.

PN2313

Was it you who decided to present these results in two different ways in ‑ ‑ ‑?‑‑‑I based that on previous statements, how we did it as well.

PN2314

What previous statements?‑‑‑I cannot remember from memory.

PN2315

Your statements?‑‑‑Not my statement.

PN2316

Statements that the VACC had given to the Commission in the past?‑‑‑That's correct.

PN2317

It was their preference to present the data spread out in this way?‑‑‑I believe so.

PN2318

Is that your preference?‑‑‑It can be my preference. I'm very adaptable.

PN2319

Do you agree that seeing the results broken up like this makes it difficult to understand the whole picture?‑‑‑I disagree with that.

PN2320

If you have a look behind tab 3, on page 2, just take a really simple example. We can see here – sorry, you've got that there?‑‑‑Question 4?

PN2321

Question 3:

PN2322

Which State or Territories do your employees work?

PN2323

You can see here that about 25 per cent of respondents are in Victoria?‑‑‑That's correct.

PN2324

But what you can't then see is which of those 25 per cent of respondents, what they had to say in a free text comment about any flexible work arrangements that they might have agreed to?‑‑‑That's correct.

PN2325

So in that regard you can't actually see the whole picture, can you?‑‑‑You mean that you want to see the Victorian picture or the New South Wales picture?

*** KEVIN HOANG XXN MS BURKE

PN2326

MR ARNDT: Your Honour, it's very clear that the Motor Traders did not put this survey as representative or determinative. To the extent that Ms Burke's questions go to whether these statistics, these results can be consistent for Victoria or New South Wales, I mean, I don't think we need to cross that territory because it's acknowledged that it's not a representative survey.

PN2327

MS BURKE: I was simply asking the question, not to illustrate points about representativeness but to make the point about how easy it is to use and understand the results.

PN2328

JUSTICE ROSS: Okay.

PN2329

MS BURKE: Can I go now to the spreadsheet, and I'll ask the associate to bring that up on the screen. If it's too small just say so and she can enlarge it.

PN2330

JUSTICE ROSS: Just for the benefit of the transcript if you could identify where this is coming from?

PN2331

MS BURKE: Certainly. This is tab 4 to exhibit KH1 and an electronic copy of it was provided to the ACTU on our request. Mr Hoang, did you create this spreadsheet?‑‑‑SurveyMonkey produces its own Excel spreadsheets.

PN2332

Right?‑‑‑There's an option for that.

PN2333

So it was you who asked SurveyMonkey to extract the data and put it into Excel?‑‑‑That's correct.

PN2334

Is what you got from SurveyMonkey exactly what we're looking at now, or did you modify this spreadsheet at all?‑‑‑It's exactly the same save for question, I think it was, 8 or 9 where I had to amalgamate the data.

PN2335

All right. I'll ask you that ‑ ‑ ‑?‑‑‑Due to the skip logic.

PN2336

I'll ask you about that in a minute. Can you have open in front of you your survey questions at tab 2? And just as an example if you go to question 8, which is the ‑ ‑ ‑?‑‑‑Sorry, tab 2?

PN2337

Tab 2 of your exhibit contains your survey questions?‑‑‑Yes.

*** KEVIN HOANG XXN MS BURKE

PN2338

Question 8. So there's the question:

PN2339

Thinking about instances in which businesses agreed to change the employees' hours of work, please choose the most relevant response.

PN2340

We can see the question there, and here are the results presented in a chart form on the spreadsheet. You can see there that there's - this is what that looks like, there's - and sorry if you scroll back up to the top it's small but there are 43.4 per cent, some made modifications sometimes and other times didn't?‑‑‑That's correct.

PN2341

Now the next question in your paper bundle of questions, Question 9, is the same as Question 8. We've already established that?‑‑‑Yes.

PN2342

Look at Question 9 on the spreadsheet. This contains free text responses. So Question 9 on the spreadsheet doesn't match what's Question 9 on the paper does it?‑‑‑That's correct.

PN2343

So why is there this mismatch?‑‑‑The mismatch is due to the duplicate - they're one of the questions acting as a duplicate. So Question 9 is a duplicate of Question 8. So that should be treated as one question but for the dysfunctionality of the survey to meet the logical requirements I had to do the duplicate of Question 8. But when you get the final results it makes sense to amalgamate it and therefore that's the reason why Question 9 is how it is on the spreadsheet.

PN2344

So am I to understand that everything in Question 9 on the spreadsheet represents the answers on paper to 8 and 9?‑‑‑That particular question or the one preceding that?

PN2345

No, no, this one?‑‑‑That's correct.

PN2346

Does that mean - did you - how did you do those modifications, how did you amalgamate that data?‑‑‑Sorry, is that - - -

PN2347

Do you want to make that a bit bigger, would that help?‑‑‑Yes, please. I think that's Question 10 though. Wait - - -

PN2348

I see?‑‑‑Because that's the - is that the comment - - -

*** KEVIN HOANG XXN MS BURKE

PN2349

So Question 9 in the paper and Question 8 in the paper are both the same as Question 8 on the screen?‑‑‑Question 8 and Question 9 is the one before that on the questions.

PN2350

Paper 8 and 9 - - ?‑‑‑That's correct.

PN2351

- - - is electronic 8?‑‑‑Yes, that's correct.

PN2352

Paper 10, that's the free text?‑‑‑That's correct.

PN2353

Is in electronic 9?‑‑‑That's correct.

PN2354

Are you saying that what we can see there in tab 9 are the answers to paper 10 and paper 11, bearing in mind that they are the same?‑‑‑Not for that one. I didn't amalgamate those - that question purely because I forgot, so that was my mistake. But if you look at Question 9 there and then Question 10, that's basically Question 10, Question 11 in the survey example.

PN2355

Well I'm not sure about that actually. Look at Question 9 on the tab:

PN2356

Thinking about instances in which the business agreed to change the employees' hours of work including days of work -

PN2357

et cetera. You've got 701 respondents skipped it and 47 answered it. Now look at Question 10 on the tab. Is that the same question as tab question 9?‑‑‑That's correct.

PN2358

You've got - sorry, if I can just ask you to move back. 120 people answered that. 628 skipped it. Which of these tabs contains the answers that people gave to that question? They both do?‑‑‑They both do, yes, but depending on how you answer previous questions it would take you to a different duplicate.

PN2359

The previous questions are the same. The previous questions are the same?‑‑‑The same but depending on whether you say or no, it will take you to different questions. So you should be - once you get the final results you should amalgamate those results together. I've amalgamated Questions 7 and 8 as you can see I think Question 8, I can't see, but for those two tabs I just forgot to do that. But if you look at the comments it should make sense.

*** KEVIN HOANG XXN MS BURKE

PN2360

Sorry, you said you amalgamated Questions 7 and 8?‑‑‑That's the spreadsheet - that's the table.

PN2361

Have a look at Question 7 please?‑‑‑Or it was the other - or Question 8.

PN2362

Question 8?‑‑‑It should be Question 7, there we go.

PN2363

But you forgot to amalgamate 9 and 10?‑‑‑Yes.

PN2364

Which explains why they're there twice?‑‑‑Yes, that was my mistake.

PN2365

But given you had 749 respondents, and have a look at Question 9, 47 people answered. Have a look at Question 10, 120 people answered. How do you actually amalgamate those two?‑‑‑You can.

PN2366

Yes, I'm asking you to explain?‑‑‑Okay, so basically you add up the sum of those who responded and then you've got to be aware that the sample size is 748, so you have to somehow minus it. There's a process behind it, then you have to minus it to get the proportions correct.

PN2367

That process that you applied is what you applied to the amalgamation of Question 8?‑‑‑That's correct.

PN2368

But again you - this is the first we're all hearing about this. It's not in your statement?‑‑‑Yes.

PN2369

Mr Hoang, do you agree that this survey is a bit of a mess?‑‑‑It can be a little confusing the results is indicative of the automotive industry's thoughts on this issue.

PN2370

Your evidence is that this is sound evidence of the thoughts of the automotive industry on this issue?‑‑‑That's correct, due to the sample size.

PN2371

And it's reliable?‑‑‑It's reliable based on the fact we have a 3.6 per cent margin of error, a 95 per cent confidence interval, that's based on the sample size.

PN2372

The sample size is 748?‑‑‑Yes, once we've applied quality measures to it.

*** KEVIN HOANG XXN MS BURKE

PN2373

Those quality measures again are?‑‑‑So we've had a little over 1000 respondents do the survey. If we were to only take completed responses you will end up having 955. For the purpose of this survey we had to filter out those who said don't know, or no, in regards to whether they were covered by the modern award. So that leaves us to a sample size of 748. Based on the population of automotive industry, that's approximately 69,365. You end up having a margin of error of 3.6 of the 95 per cent competence interval. So if you were to repeat the survey 20 times, 19 times you would get the same results within the margin of error.

PN2374

Wouldn't you only get the same results if those who responded are represented in any way?‑‑‑Represented in terms of what?

PN2375

In terms of the respondents more broadly?‑‑‑Why wouldn't they be representative?

PN2376

Well because they might be 748 people all from Darwin who employ no one. That wouldn't represent the entire population would it?‑‑‑It's representative because it was sent - sent the survey across all different divisions of motor trades associations. Each division represents a different sector of the automotive industry and across the motor trades association nationally, therefore you end up getting - if you look at it as an aggregate figure, a true depiction of the automotive industry.

PN2377

Your evidence is that that 748 acts a representative of the automotive industry more generally?‑‑‑Generally speaking, yes.

PN2378

There's absolutely no evidence of that is there, in your statement or in any of this material?‑‑‑Not in the statement, I agree to that.

PN2379

I don't have any further questions, thank you.

PN2380

JUSTICE ROSS: Any re-examination?

RE-EXAMINATION BY MR ARNDT [12.41 PM]

PN2381

MR ARNDT: I just have two very, very simple questions. I'm not going to go into the level of detail. We talked about - Ms Burke took you to the duplicate questions. Just for my clarity, no one answered the same question twice if they're doing the survey?‑‑‑No.

*** KEVIN HOANG RXN MR ARNDT

PN2382

The second question is, you were asked about the steps that you took to ensure that the members of your organisation - - -?‑‑‑Sorry, I might have to for the previous question, yes, no one answered the question twice. I think I said no but it might have sounded like I said yes.

PN2383

Very good for the transcript, excellent?‑‑‑Yes.

PN2384

The second question is you were asked about the steps that you took or didn't take to ensure that your members, and let's keep it just to the Victorian motor traders, didn't answer both the joint employer survey and the vehicle survey. Just for the benefit of the Commission, are you - is it your responsibility to deal with an issue surveys on behalf of the Victorian motor traders, the VACC?‑‑‑With regards to that particular issue?

PN2385

I mean if you were going to issue - if the VACC was going to issue the joint employer survey, would you issue it, you individually, you personally?‑‑‑No.

PN2386

You wouldn't?‑‑‑The joint employer survey?

PN2387

I'm going to take you through step by step. You were in charge of issuing surveys for - - -?‑‑‑That's correct.

PN2388

For the VACC?‑‑‑That's correct.

PN2389

Did you issue the joint employer survey?‑‑‑No, I didn't.

PN2390

No further questions.

PN2391

JUSTICE ROSS: Anything arising?

PN2392

MS BURKE: No.

PN2393

JUSTICE ROSS: Thank you for your evidence, you're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [12.43 PM]

PN2394

Is there anything else? No.

*** KEVIN HOANG RXN MR ARNDT

PN2395

MS BURKE: Sorry, your Honour, there is something else. Not for this witness.

PN2396

JUSTICE ROSS: No, no, you're excused. You can - - -

PN2397

MS BURKE: Just to confirm that I called for the instructions given to Ms Toff for the purposes of preparing her statement.

PN2398

JUSTICE ROSS: Yes.

PN2399

MS BURKE: I don't think we will be before the Full Bench again until Thursday next week.

PN2400

JUSTICE ROSS: That's right.

PN2401

MS BURKE: Ordinarily of course the material would be produced to the Full Bench or to the Commission and the provided - - -

PN2402

JUSTICE ROSS: I'm content if Mr Ferguson's content to just provide it directly to Ms Burke or to her instructor.

PN2403

MR FERGUSON: Yes.

PN2404

MS BURKE: Thank you, your Honour.

PN2405

JUSTICE ROSS: If anything - look, I think it's unlikely but if anything arises in relation to the material that's been produced to you, such that you want to put further questions to the relevant witnesses, how would we deal with that do you propose?

PN2406

MS BURKE: I can notify or my instructor can notify the Commission and the parties of that by tomorrow - within 24 hours of receiving the documents.

PN2407

JUSTICE ROSS: Right.

PN2408

MS BURKE: We'll have some discussions if that's necessary about the timing of that.

PN2409

JUSTICE ROSS: Just in relation to the structure of next Thursday, I suppose now you've had the benefit of the evidence, often you'll make an assessment about how long you might be and it's always an over-estimate because you're trying to deal with uncertainty.

PN2410

MS BURKE: As this week proved.

PN2411

JUSTICE ROSS: Because you're trying to deal with uncertainty. You don't know. Now you do know the evidence is in, what I'd ask is for you to, rather than deal with it now, to discuss amongst yourselves how long you're likely to be. I note we've got this - and this position we would start at nine and then the ACTU will be doing it's reply at four. That's predicated on the NRA starting at two for some reason. I'm not sure - - -

PN2412

MS BURKE: I think, your Honour, there were no estimates with that part of the timetable. It was really just putting them in.

PN2413

JUSTICE ROSS: Yes, that's fine. Well, it may be given how different parties are represented et cetera, that there can be greater clarity around that, and bearing in mind also that you will have put in your further submissions I think on the Tuesday. As I indicated, I particular ask that that identify which parts of your previous submissions you're relying on, and also really the benefit is to identify the findings you want us to make based on the evidence that's been put, by reference to the particular parts of that evidence. I'm content to leave it in the hands of the parties.

PN2414

If you can - as usually happens with long cases like this, you've started talking to one another so I don't think there will be any difficulty with one of you sending in a proposed framework and how the day might go. So I'll leave that with you and if you can do that, you know, prior to the hearing but, you know, from our perspective it doesn't really matter, so long as it's by close of business probably on the Wednesday before, so everyone's got a clear idea of where it's up to.

PN2415

MS BURKE: Yes.

PN2416

JUSTICE ROSS: I'm assuming, Mr Ward, that you're in communication with the parties who - because of the technical difficulties initially and then they're not here today that they're kept abreast of where this matter's up to.

PN2417

MR WARD: Yes, your Honour, that includes the NRA, the Pharmacy Guild and the National Farmers. We'll be talking to those.

PN2418

JUSTICE ROSS: Yes. So nothing further? We will adjourn, thanks.

ADJOURNED UNTIL THURSDAY, 21 DECEMBER 2017 [12.47 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JULIE CHRISTINA TOTH, AFFIRMED....................................................... PN1702

EXAMINATION-IN-CHIEF BY MR WARD................................................. PN1702

EXHIBIT #AIGROUP4 WITNESS STATEMENT OF JULIE TOTH DATED 26/10/2017 WITH TWO ATTACHMENTS..................................................................................... PN1711

CROSS-EXAMINATION BY MS BURKE..................................................... PN1713

EXHIBIT #ACTU18 ERNST & YOUNG REPORT...................................... PN1917

THE WITNESS WITHDREW.......................................................................... PN2066

EXHIBIT #NFF1 WITNESS STTAEMENT OF EDWINA BEVERIDGE DATED 29/09/2017............................................................................................................................... PN2080

EXHIBIT #NFF2 SUPPLEMENTARY WITNESS STATEMENT OF EDWINA BEVERIDGE DATED 08/12/2017.............................................................................................. PN2081

EXHIBIT #NFF3 WITNESS STATEMENT OF LUCINDA CORRIGAN DATED 01/11/2017............................................................................................................................... PN2082

EXHIBIT #NFF4 SUPPLEMENTARY WITNESS STATEMENT OF LUCINDA CORRIGAN DATED 07/12/2017.............................................................................................. PN2083

EXHIBIT #NFF5 WITNESS STATEMENT OF CHRIS KEMP DATED 30/10/2017............................................................................................................................... PN2086

EXHIBIT #NFF6 SUPPLEMENTARY WITNESS STATEMENT OF CHRIS KEMP UNDATED........................................................................................................... PN2087

EXHIBIT #NFF7 WITNESS STATEMENT OF DEBORAH PLATTS DATED 27/10/2017............................................................................................................................... PN2089

EXHIBIT #NFF8 SUPPLEMENTARY WITNESS STATEMENT OF DEBORAH PLATTS DATED 11/12/2017.............................................................................................. PN2089

EXHIBIT #AIGROUP5 WITNESS STATEMENT OF BENJAMIN NORMAN PN2108

EXHIBIT #AIGROUP6 SUPPLEMENTARY WITNESS STATEMENT OF BENJAMIN NORMAN............................................................................................................. PN2108

EXHIBIT #AIGROUP7 WITNESS STATEMENT OF PETER ROSS....... PN2108

EXHIBIT #AIGROUP8 SUPPLEMENTARY WITNESS STATEMENT OF PETER ROSS............................................................................................................................... PN2108

EXHIBIT #ACCI1 WITNESS STATEMENT OF PAULA BAYLISS DATED 31/10/2017............................................................................................................................... PN2115

EXHIBIT #ACCI2 SUPPLEMENTARY WITNESS STATEMENT OF PAULA BAYLISS DATED 11/12/2017.............................................................................................. PN2115

EXHIBIT #ACCI3 WITNESS STATEMENT OF LAUREN CLEAVER DATED 31/10/2017............................................................................................................................... PN2115

EXHIBIT #ACCI4 SUPPLEMENTARY WITNESS STATEMENT OF LAUREN CLEAVER DATED 12/12/2017.............................................................................................. PN2115

EXHIBIT #ACCI5 WITNESS STATEMENT OF MR JAE FRASER DATED 31/10/2017............................................................................................................................... PN2115

EXHIBIT #ACCI6 WITNESS STATEMENT OF MARK RIZZARDO DATED 31/10/2017............................................................................................................................... PN2115

KEVIN HOANG, AFFIRMED.......................................................................... PN2118

EXAMINATION-IN-CHIEF BY MR ARNDT............................................... PN2118

EXHIBIT #MTO1 WITNESS STATEMENT OF KEVIN HOANG DATED 03/11/2017............................................................................................................................... PN2130

CROSS-EXAMINATION BY MS BURKE..................................................... PN2131

RE-EXAMINATION BY MR ARNDT............................................................ PN2380

THE WITNESS WITHDREW.......................................................................... PN2393