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Fair Work Act 2009                                       1057047






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Social, Community, Home Care and Disability Services Industry Award 2010




10.08 AM, TUESDAY, 16 JULY 2019


DEPUTY PRESIDENT CLANCY:  Thank you.  We'll take appearances.  Firstly, here in Sydney.


MR BULL:  If the Commission pleases my name's Bull.  I appear with my colleague, Natalie Dabarera.


DEPUTY PRESIDENT CLANCY:  Thank you, Mr Bull.  Yes?


MR ROBSON:  If the Commission pleases, Robson, for the Australian Services Union.  I'm also appearing for the Health Services Union this morning.


DEPUTY PRESIDENT CLANCY:  Thank you, Mr Robson.  Yes?


MS SHAW:  If the Commission pleases, Shaw, initial N, for AFEI.


DEPUTY PRESIDENT CLANCY:  Thank you, Ms Shaw.  Yes?


MR FERGUSON:  If the Commission, pleases, Ferguson initial B, for the Australian Industry Group.


DEPUTY PRESIDENT CLANCY:  Thank you.  And in Newcastle please?


MS TIEDEMAN:  If the Commission pleases, Tiedeman, initial M, on behalf of the ABI the New South Wales Business Chamber, Aged and Community Services Australia and Leading Aged Services Australia.


DEPUTY PRESIDENT CLANCY:  Thank you, Ms Tiedeman.  And in Melbourne, please?


MR PEGG:  If the Commission pleases, Pegg, initial M, appearing for National Disability Services.


DEPUTY PRESIDENT CLANCY:  Thank you.  All right.  Have the parties had any discussion about how they want to proceed this morning in terms of the order of submissions?


MR BULL:  I think the answer is 'no'.  We have made a written submission and this is in relation to the survey.




MR BULL:  So we can expand a little bit upon that but we weren't intending to say anything additional in that.


DEPUTY PRESIDENT CLANCY:  All right.  Well, we note the material that has been filed by the respective parties in relation to the survey and I'll give the parties an opportunity now to expand on anything they want to or wanted to emphasise in their written submissions and of course also address the submissions that other parties have made.


MR BULL:  Well, I can go first if that assists.  Our submission speaks for itself.  Our concern is that the survey is methodologically flawed principally because of the manner in which the sample was constructed.  It says something but it's uncertain as to whether it says anything which can be safely relied upon.


COMMISSIONER LEE:  Can I just explore that with you a bit?


MR BULL:  Yes.


COMMISSIONER LEE:  So looking at your submission, paragraph three, so we've got 854 responses that are returned which is a fairly significant number.  As you point out that's 30 per cent of those that were surveyed.  I'm having - I just need to understand why you say it is methodologically flawed.  Is this because the group that were surveyed are members of employer associations.  Is that the point?


MR BULL:  Well, that appears to be a way to describe them.  Look it's as you would - as the philosopher's would say it's an epistemological issue.  It could be a truthful representative sample of the entire cohort and by that that would mean all employers in this sector and the results could be.  You could draw valid inferences from the 840-odd who made replies.  The problem is we can't say that for certain.




MR BULL:  So it's a snapshot.


COMMISSIONER LEE:  But to understand where you're coming from on this isn't - aren't we looking for some explanation as to why those organisations in this sector who are members of an employer association are somehow different from those who are not members of employer associations.  Is that the suggestion?  That because they are members of employer associations that they will be not representative of the industry?


MR BULL:  Once again I don't know whether I can say that.  All I can say is that they're members or employers who are, in some way in contact with members of employer associations.  I'm not suggesting that by joining an employer association that you have - are profoundly different from an employer who doesn't.  But the point is we don't know and it's a problematic way to construct a sample for what purports to be empirical research which gives you some sort of independent picture of a particular sector.  Look, we're not saying that it's something which is not of some utility but excessive emphasis shouldn't be placed on it because it has that fundamental methodological flaw and it's a fair - - -


COMMISSIONER LEE:  But you keep saying it's a fundamental methodological flaw and what I wanted to understand is what the basis for that statement is.


MR BULL:  Okay.  Well, fairly well-known and established social science research techniques.  I've mentioned the term census.  The census is you can't - you get information from everyone.


COMMISSIONER LEE:  And we all know it's not the census.


MR BULL:  It's not a census.


COMMISSIONER LEE:  Sampling is a well-known statistical technique.


MR BULL:  Well, then if you can sample it's all about how you construct your sample.




MR BULL:  And the best way to construct a sample is to have census material and then you randomly select your sample or select it through the criteria of the census.




MR BULL:  So, you know, if it's 30 per cent of the population has got brown hair you'd try and get similar percentages within your sample.


COMMISSIONER LEE:  Yes.  I understand how it works.


MR BULL:  And it's randomly done and you can then extrapolate potentially the results because the sample is entirely representative of the entire population.


COMMISSIONER LEE:  I'll just perhaps if I put it to you this way.  Prima facie there's no reason for us to conclude that or to think that employers who are members of employer associations are in some way not representative of employers in the industry, generally, and if you say that we should find that they're not, on what basis would we make that finding?


MR BULL:  I don't want to get into the realm of supposition.




MR BULL:  And I could theorise that they might be.  They may be more motivated by industrial concerns.  They have greater pressures on them.  Who knows?  It could be the converse and that's the problem.  You don't want to start making sort of suppositions about - - -


DEPUTY PRESIDENT CLANCY:  Well then you can't make suppositions either way then.


MR BULL:  Well, you can.  You can say that a valid inference is more difficult to be drawn from the material because there's sampling bias.  And I'm not saying that it's completely unhelpful.


DEPUTY PRESIDENT CLANCY:  Well, again, what's the basis for the bias?


MR BULL:  The way the sample was constructed.  There's inherent sampling.


DEPUTY PRESIDENT CLANCY:  Right.  But follow that through and it's the question that the Commission has just asked.  Why would there be bias in this sample?


MR BULL:  Well, the correct answer is I don't know one way or another whether it's biased or unbiased.  I can get into a game of supposition where I can think of plausible reasons one way or another.


COMMISSIONER LEE:  Can I just take it on that point?  Because at paragraph 10 of your submission you do so that it is biased.  You say if this is evident - well, I'll withdraw that - you say if this evident - no, I don't withdraw it.  If this evidence sampling bias is explicit it provides a context of the contents of the report.


MR BULL:  Yes.  It's a survey of, I suppose, employers participating through employer organisations or their acquaintances.


DEPUTY PRESIDENT CLANCY:  Okay.  So what's the inherent bias in that?


MR BULL:  Well, it's biased in the sense that if we look at it simply as a piece of empirical research or material from that group that's the context of it.


DEPUTY PRESIDENT CLANCY:  All right.  So make your submission then as to why we should view that group in a particular way?


MR BULL:  Well, you shouldn't.  You should view it as - - -


DEPUTY PRESIDENT CLANCY:  Well, that's what you say.  That's what you're leading us towards.


MR BULL:  No, I'm not leading you.  All I'm saying is that if you're going to say that the survey allows you to draw valid inferences in terms of the entire cohort there's problems with that.  Now it could be - - -


DEPUTY PRESIDENT CLANCY:  Right.  Well, let's just focus on the cohort.


MR BULL:  Beg your pardon?


DEPUTY PRESIDENT CLANCY:  Focus on the cohort.


MR BULL:  Well, the cohort is the - I would have thought the cohort of interest to the Commission are the employers covered by the award.




MR BULL:  And this not co-extensive with employers who participate at some level with an employer organisation participating in this review.  Now, this maybe the sort of slightly acute point but I don't know whether - you can't extrapolate it - and the tendency would always to be to do it so as that there's somehow a valid inference in relation to the entire cohort.  It's a more limited cohort.  I'm not suggesting that that cohort is inherently biased but there's certainly some reason to suspect that they may not be entirely representative.


DEPUTY PRESIDENT CLANCY:  All right.  So what troubles you about the questions that were in the survey?


MR BULL:  I don't - some of it - I'm not troubled about the questions and I haven't addressed the questions in great length.  And I've addressed in the submission that there's some data you can extract.  And once again I don't know how much we can then say it's representative of the entire cohort.  I'm not suggesting that it's completely unuseful but there is just problems with it and there's things that on some levels cut both ways.


DEPUTY PRESIDENT CLANCY:  Yes.  You keep saying there's problems and you're talking about a methodology of sampling but you're not identifying at the moment what's problematic in the responses that have been derived.


MR BULL:  Well, the responses - other responses that I've said there's a methodological problem which is something that proceeds them dealing with the responses you get.


DEPUTY PRESIDENT CLANCY:  But you draw no - and nobody does this to be fair.  No one says, "Oh, well when you compare this to better data or more reliable data or there's other data that could be drawn by the Commission.  No one's taken us to that.


MR BULL:  Well, there is data.  The ABS data.


DEPUTY PRESIDENT CLANCY:  All right.  Well, you haven't come to us in your submissions and said, "Rather than use this data you should be using ABS data."  If you'd like to do that we'd take that on notice.


MR BULL:  Well, I have suggested the ABS data.




MR BULL:  Well, the ABS data - - -


DEPUTY PRESIDENT CLANCY:  On matters that are dealt with in this proceeding which ABS data?


MR BULL:  There's ABS data from the census.  They regularly do profile - labour force profiles.


DEPUTY PRESIDENT CLANCY:  Right.  But just don't make a broad submission.  Why don't you spend the time if you're going to rely on that broad proposition that this is unreliable?  This survey is unreliable and should be treated with caution.  Rather than just saying 'ABS data', why don't you take us to ABS data?


MR BULL:  Well, if you look - - -


DEPUTY PRESIDENT CLANCY:  That you say is particularly relevant to the questions that were asked in this survey?


MR BULL:  If you look at my submission, paragraphs 11, 12, 13, I address some of the issues with the ABS data.  One of the issues with the ABS data is that it doesn't strictly follow the industrial coverage of the award.


The Commission has made some significant effort to try and match up the available ABS data to Modern Awards and it's been a valiant effort and it does work.  We have some experience in relation to the penalty rates review where the ABS data set is accommodation and food services.  That broadly matches the three hospitality awards.  But it also generally includes fast food.  So it's not strictly empirically - it doesn't match, for example, in relation to those three awards but it's of some relevance.


The issue with the ABS data is that it is inherently people focused because it surveys individuals.  So it can tell you things principally about people and you could then make some inferences about employers because obviously when the data says that - you know - so many individuals are employed in excess of 38 hours or don't have leave entitlements that obviously tells you something about employers in the sector.


There are inherent problems with treating employers in the same manner as treating individuals.  Individuals are an easy focus of empirical research, because broadly speaking all individuals are the same.  There are problems with employers because they vary in six.  You're not comparing apples with apples.  You'll have larger employers, the small employers, and notionally if you're doing a survey, an employer employing three people will have not dissimilar responses to one employing a hundred in relation to some questions.


I'm not saying that the survey is worthless.  I'm saying that there's a context to it which makes it more problematic.


DEPUTY PRESIDENT CLANCY:  Well, even on that point wouldn't it depend on who the employee is employed by?


MR BULL:  It becomes - - -


DEPUTY PRESIDENT CLANCY:  And whether it's - wouldn't - an employee responding to census data would not that their response differ according to whether they're employed an award or an enterprise agreement, whether they were employed in by a small business employer or a larger corporation?


MR BULL:  That's one of the problems of the ABS data.




MR BULL:  In that it doesn't - you know - it's difficult to match it up with the industrial coverage for the Modern Award.


DEPUTY PRESIDENT CLANCY:  But what I'm saying is that there can also be the differences amongst the responses you're likely to elicit from employers.  You're going to have that same sort of difference according to the profile of the employee responding to the survey data - the survey questions.  Whether it's in census or in survey.


MR BULL:  Well, not in the same sense because census data is it's people focused and - - -


DEPUTY PRESIDENT CLANCY:  But those people are going to answer in accordance with their particular circumstances.


MR BULL:  Correct.


DEPUTY PRESIDENT CLANCY:  So why is that different?  Why does that make it employers who might respond to census, the question is different to employees responding to census?


MR BULL:  Because there's not strict comparability.  There is reasonable comparability between individuals.  There's not strict comparability between employers because frankly there's a much wider variation.  You know employers are - they're not natural persons in the sense.  They're a social construct in that - you know - they're corporations, they're partnerships.  There's a diversity which makes empirical research more difficult.  I would say that - - -


DEPUTY PRESIDENT CLANCY:  So when you make the proposition or seem to make the proposition that what should be relied on here is census data.  You're saying that there's no way from census data that we can extrapolate what employers are doing in this sector in terms of their employment arrangements.


MR BULL:  No, I don't say that.  I say that if you look at paragraph 13 of my submission the ABS material is not limited to being useful in relation to the employees.


DEPUTY PRESIDENT CLANCY:  But that's just a general statement.  I've asked you before - all right - where there is better ABS data that can go to some of the issues that have tried to be explored through this survey.  Here's your invitation to draw our attention to it.


MR BULL:  All right.  Well, there's - - -


DEPUTY PRESIDENT CLANCY:  But you've just made general submissions.  Now that might be as far as you can take it.


MR BULL:  Well, to - look - to a certain extent and these - the submissions we made is limited by restraints.  I actually did contemplate doing a broader analysis where I tried to match up the ABS material with possible lead inferences you can draw about employers.  It actually gets very difficult and I deliberately didn't do it for a number of reasons.  The first was resource constraints in the sense that it would have taken some time.  And also when I started doing it and I realised that frankly your - it's beyond my capacity in the sense that I'm not a social scientist.  I've got some understanding of these concepts but I am cautious about attempting to extract inferences from complex data when it may not be correct.


And there is an element where the data is indistinct.  It literally can become a sort of Rorschach diagram where people read into it what they want and that is a real problem.  I'm not saying that it's not unuseful but it needs to be - it's use needs to be viewed in the context that the knowledge, if you like, that can be extracted from the material is not as secure as it might seem.


Now the survey does tell us some interesting things.  It tell us that most of the employers seem to be engaged in providing disability support services.  It tells us some things, for example, about the 24-hour shift.  These are not particularly common but beyond that it becomes rather difficult.


There is also, I understand, information from the government about funding arrangements.  That's probably more secure.  Look, you know, I don't - it was not our intention to belittle this attempt by the Commission to inform itself.  It's useful that there's simply limitations with the data.  And there is, I think, this risk of - if you like - it becoming the Rorschach diagram where people just read into it what they want and that's not always helpful.


If people want to make arguments about what it should be, they should make the argument about what should be rather than via this sort of medium of what is empirical research which has some flaws.


COMMISSIONER LEE:  And were quite happy for any party to - - -


MR BULL:  I beg your pardon?


COMMISSIONER LEE:  We're quite happy for any party to criticise the survey but just understand - we're just wanting to understand the basis for - the basis for that.


MR BULL:  Yes.  And look - and this is a really difficult task.  You know?  We went down this road with the penalty rates review where it's extraordinarily difficult to match up the ABS data with award coverages because it's people focused.  The best data probably is from the HILDA survey which you'd be aware of where it's a proper longitudinal methodologically vigorous survey which is done where they interview households and so forth and the level of data is far more secure.


COMMISSIONER LEE:  Can I just ask you about paragraph 19?  I just didn't quite understand the - I'm not saying it's wrong but I just wanted to understand why you say that.  Because what we've got in chart seven which you referred to is 24.6 of - - -


MR BULL:  I suppose what I was trying to say is it looks like some don't employ casuals and therefore the percentage  - it should be - and those who do it will be higher than - and once again, you know, I apologise.  I was trying not to get into too much analysis because it's easy to draw inferences which are now the eye of the beholder so to speak.  But there is fairly good data from the ABS about the level of casual utilisation in terms of that data about the individual too.


COMMISSIONER LEE:  Yes.  I'm just trying to understand.  If they didn't - if the survey showed that 24.6 per cent of respondents did not employ any casuals between 4th and 31 March why does that suggest the second point?


MR BULL:  I think what I meant to say is that if there's roughly a quarter that didn't employ casuals.




MR BULL:  Those who did - the number who - the casualisation - the utilisation and rate of casuals in those who did it's going to be higher than what it appears to be indicated elsewhere.  Does that make sense?




MR BULL:  That was what I was attempting to say I think.


COMMISSIONER LEE:  And why do you say that?


MR BULL:  Well, because obviously if - there's some that just aren't using casuals then the rest that are they must be using more.


COMMISSIONER LEE:  I see.  All right.


MR BULL:  Because if it's a hundred per cent that's how you then - - -




MR BULL:  - - -divide the numbers.  And look I did make some comments because I assumed you wanted some comments.  I tried to make them as frankly bland and a restatement of the survey because I think to do otherwise you start going into this sort of - you know - seeing what you want to see which I don't know whether is helpful.  And there are aspects of the survey which I thought were quite interesting.  But I don't know whether they're interesting because that's the survey or they're interesting because they're speaking of the broader cover of employers within the sector.


COMMISSIONER LEE:  And charts - paragraph 13 and 14 - you referred to in paragraph 22 and note that enterprise agreement covered respondents have a higher utilisation rate than casuals.


MR BULL:  I thought that was an interesting finding.




MR BULL:  Because you'd assume that - you know - the logic is that the employers that have enterprise agreements are generally larger and more sophisticated and you'd perhaps assume that - - -


COMMISSIONER LEE:  Well, we don't know that, do we?


MR BULL:  Well, once again this is supposition that it's a supposition from reasonable known things in that it's more difficult for an employer.  You know if an employer has an enterprise agreement they're usually more sophisticated.  They have a larger workforce.  If you're a very small business, it's generally not worth your while to have an enterprise agreement in place.  And that to me is interesting that there seems to be a higher rate of utilisation of casual labour which is related to use of enterprise agreements.


COMMISSIONER LEE:  Or correlates with.  It's - yes - it's not a big difference, eight per cent.


MR BULL:  No.  It's not a big difference.




MR BULL:  But, you know, if you were once again reading into it what you'd like to see I would have thought that probably casual utilisation would go down with size and enterprise agreements.  And that doesn't appear to be the case.




MR BULL:  But one of the broad issues we have is that there seems to be a desire in this review to - the funding arrangements shouldn't be given excess attention in the sense that fundamentally the task of this Commission in reviewing this award, as in other awards, is to apply the statutory imperative of the Modern Awards' objective which is to ascertain what is the fair and relevant safety net.


Funding arrangements, quite frankly, change.  This is an area where there are complex funding arrangements, where there seems broad consensus that there are difficulties with the funding arrangement.  You can't, we say, or should not slavishly respond to perceive difficulties in the funding arrangement in setting the terms and conditions of the employees covered by the award.  I'm not saying that's an argument against the survey.  It's useful and legitimate to get information about employers in a review such as this.


All we have said is that I think there is some difficulty in extracting from the survey inferences, if you like that have broad applicability.  That's all I wish to say unless - I can further assist.






MR ROBSON:  Yes.  Look, I just want to briefly expand on some of the comments made by Mr Bull about the methodology of the survey.  And, again, like Mr Bull I don't want to - impugn the efforts of the Commission with this.  But there are some things that if we, as I - if any of the parties put a survey to the Commission would be expected to come with it.  We would have some evidence about how the responses were collected.  This would usually be in the form of a witness statement by the person who conducted it so we would understand what the communications were between the members, what efforts were done to encourage people to fill out the survey or not.  That's not available to us.


We would expect to see how the sample was constructed.  In this case a sample wasn't used.  The survey was a membership lists of organisations.  We don't know if there were efforts made to encourage people to respond or not so we couldn't make the submission either way on that point and that is relevant.  That is a bias.  If it's simply people responding to an email.  It's also different if it's someone to be actively sought out.  There are different ways of surveying people and we would need to know how that was done.  And I think these things are important because it affects how we say we should treat the submission - sorry, the survey.


If we don't have this available to us, do we say that this should be treated anecdotally?  This is in the nature of a case study.  Or is this genuinely representative?  And I think these submissions are broadly in line with comments made by the Commission about the value of survey evidence in the past.


We don't know if the membership list that we used as the basis of the survey are representative of the industry and there's no way for any of the unions or any of the parties to test that because that information isn't available to us.  We don't know who's on those lists.  We have no way of finding out who's on those lists.  We can't say one way or the other if it isn't and that's a problem.


DEPUTY PRESIDENT CLANCY:  What flows from that, though?


MR ROBSON:  Well, I suppose it's - really this goes to the issue of the weight that we put on the survey.


DEPUTY PRESIDENT CLANCY:  No.  But what goes to not knowing?  Are you saying that only certain members will be given access to the opportunity to participate in the survey?  Is that your submission?


MR ROBSON:  Well, I don't know who's a member of the organisation so I don't know that - - -


DEPUTY PRESIDENT CLANCY:  But how is that relevant?


MR ROBSON:  Well, it's relevant because it affects whether the membership is reflective of the industry or not.  We have - we don't have the information that allows us - - -


DEPUTY PRESIDENT CLANCY:  Well, what does that even mean?  Reflective of the industry?


MR ROBSON:  Well, is it representative?  Do the - - -




COMMISSIONER LEE:  Well, let's just get the - perhaps in terms of the point that you're making if representation has a statistical meaning.




COMMISSIONER LEE:  The bit is this - well, let's just say you've got the list of all the employers.


MR ROBSON:  Mm-hm.


COMMISSIONER LEE:  Well, then what next?  On what basis would there be some - would you be making an assessment about their representative in this so otherwise?


MR ROBSON:  Well, we could then compare that to other information about the nature of the industry?


COMMISSIONER LEE:  What other - - -


MR ROBSON:  Well, there's - - -


COMMISSIONER LEE:  What other information?


MR ROBSON:  Well, information from the census.  Information from other ABS surveys.


DEPUTY PRESIDENT CLANCY:  Okay.  So we're getting back into the same.


MR ROBSON:  Yes, but I think this is an important point and, really, at this point all we're asking is for the Commission to treat its own survey consistently with how it's treated employer surveys and I apologist I haven't provided this to you before.  This was - like Googling - as Mr Bull was speaking, but in the 2013 - 2012-2013 Annual Wage Review - so that's 2013 FWCFB 4000 and I'll provide this to you after today.  The Commission made this comment on surveys of this nature.  If a membership list is used as the basis for a survey then it is essential that those who respond are properly representative of the entire membership base, e.g. by firm size, form of ownership, industry sector and geographic location.


Now we've got an award that covers a very broad range of types of employers.  Where this is not the case then the responses become more look case studies or anecdotes, accounts for the situation of those who did respond but not to be taken as representative of the surveyed population, e.g. the membership as a whole.


Even where the survey is representative of the membership, which may be different from the industry, it needs additional evidence to show that it is representative of, for example, employers more broadly.  A valuable step in assessing the representativeness of the respondents is to check the answers against other data that is known to be reliable, such as those from the ABS where possible.  It is good practise to include in such surveys one or more questions that match those in a relevant ABS or other reliable surveys that this test may be applied.


As an example the collection of information about the industry of the employer and the numbers of persons employed will provide information allowing the comparison of ABS data for employment by the industry.


Now we don't have access to the raw data and I understand there's reasons you don't intend to give it to us but if we can't test this data and you've asked us what we think about it we can't really say one way or the other, because this may be anecdotal and it may be a case study.  Or it may, in fact, be representative but I can't say one way or the other.  And it actually is significant whether it's anecdotal which is possibly useful and it's in the nature of much of the lay evidence that's filed in these reviews.


DEPUTY PRESIDENT CLANCY:  What do you mean by anecdotal?


MR ROBSON:  Well, a story of an individual employer or a group of employers saying what they think.  Or what they know - - -




MR ROBSON:  Well, what they believe or what they know.


DEPUTY PRESIDENT CLANCY:  I mean these were questions on asking what they think.


MR ROBSON:  Well, I apologise.  I was imprecise.  What they know about their particular organisation.


DEPUTY PRESIDENT CLANCY:  Well, they know when they employ people.


MR ROBSON:  Yes.  But we don't know if that's representative.


DEPUTY PRESIDENT CLANCY:  But how do you say that's anecdotal?  In their case it's factual.  More broadly you might say it's anecdotal but how do you say that the data or the questions that are answered here are anecdotal?


MR ROBSON:  Well, I'm saying I don't know and I think that is really the crux of this submission is that there is a significant amount of information about this survey that we don't know and we're not able to test.  We're unable to do the data matching exercise because we don't have the raw data.


DEPUTY PRESIDENT CLANCY:  But you can't even identify which data in the ABS census you'd be comparing it to.


MR ROBSON:  Well, we haven't done - we haven't tried because we don't have the information to match it to.  If we had - - -


DEPUTY PRESIDENT CLANCY:  Sorry.  You've had a survey of results.  You see the survey questions.  You've had directions from the Commission since the 11 June and you stand here this morning and say, "But we can't match it to the - we don't know - so we can't match it to the ABS data and the ABS questions."  No, I accept if you say, "Well, there's nothing on all fours."  Then say it.  But if there is - if you want to make that criticism it would come with a bit more weight if you said, "Well, this is what we say it relates to and it's different."  You can't draw the conclusion from this survey data because what the ABS says on these particular points is this.  But you haven't done that.  And nobody's done that.


MR ROBSON:  And I think I've indicated the difficulty of doing it.


DEPUTY PRESIDENT CLANCY:  I beg your pardon?


MR ROBSON:  I think that indicates the difficulty of making that analysis.


PRESIDENT JUSTICE ROSS:  I don't know that it indicates the difficulty in doing it.  I think it indicates the approach to the case.  I mean we sat here earlier this year and it was said, "Oh, well the 24-hour shift isn't used."  And the employers said, "Well, we don't know whether it's used." and we've now got survey data to say, "Well, it is being used."  Now you can both say what you want about it in terms of the frequency of use but the questions simply weren't asked and the investigations simply weren't made.


MR ROBSON:  I suppose the issue that we have here and this is I think we acknowledged that it could be a finding statistical evidence about this sector.  The award has very broad coverage, a very diverse coverage.  It's very difficult to disaggregate the - well, it's very difficult to identify people covered this award.  Actually Mr Bull referred to the hospitality awards, Restaurants, Clubs and Hospitality Industry General Award.  There aren't discrete ANZSIC categories that refer specifically to coverage of this Award.  You can go down into it by industry but it may not get sufficiently deep.  You could go into it by occupation but that doesn't necessarily mean that a person of a particular occupation will be covered by this award because they could be operating under State system employer or under an enterprise agreement or in local government which would be covered by a different award if they are in the Federal system.


I suppose the issue we have got here and I think I have already made the point is that it's difficult for us to say anything about it, about where this is reflective of the membership of the employers, or if it's reflective of the industry in general.  I think all we want, all we're suggesting is that this needs to be acknowledged when it's being considered.


COMMISSIONER LEE:  Sure for myself I agree representative - whether a survey is representative or not is obviously crucial.  But we do have and you have by virtue of what's been published information about the proportion of income that the organisations are receiving, about the - and where it's coming from - there's information about their utilisation of particular types of worker.  There's information about the size of the organisations and at least measured by the number of employees they have.  So there's a number of variables that are included in what's been surveyed, such that one would be in a position to say - and some have made comment about it, for example, for the fact that around 60 percent in a disability sector because they may be in other sectors as well but certainly in the disability sector some have made submissions about how we should treat that.  But there's on a representative issue are they over-represented and that type of thing?


But it seems to me that there is a basis to make a submission one way or the other but just tell me if you disagree with this, as to whether or not it's representative of the sector or not at least with some degree of precision.  Just take an example the disability sector one could make a submission to say, "Well, that's - you know distorted it one way or the other - or whatever the case may be."  Or to say it looks like all the large businesses have filled these in, not the smaller ones, and therefore you should be conscious of the fact that that will be distorting the results in terms of the number of casuals employed or whatever the case may be but I'm struggling with the notion that the information isn't there upon which you could make those submissions but tell me what I'm missing Mr Robson.


MR ROBSON:  Look, I suppose the issue is and we could take the example of the composition of the industry as an example.


COMMISSIONER LEE:  What chart are you on?


MR ROBSON:  This would be 2.1.  Chart one.




MR ROBSON:  What we don't have available to us, because we don't have the responses, is that we don't know if - what we don't have information about there is we can't see if these people are operating in more than one sector.  It might be that 63 per cent of the industry are in disability services but they might not describe - they might be operating in aged care services.  They might be operating in home care.  They might also be operating in disability services.  We don't have the raw data available to analyse that.  If this was a survey lodged by an employer association we could, and that wasn't lodged with their witness statement, tendering this, or wasn't filed, we'd be able to request it with a notice to produce.


But I suppose the issue is, is that we've got the survey.  We don't know how it was collected in a way that we can interrogate.  We don't know - we don't have the results of the survey that we could do our own analysis.  We have the Commission's analysis and we've got no reason to say that this is wrong but we have no opportunity to look into it, consider it for ourselves.


It's the Commission's own survey and I think that creates some difficulty for us because we're not sure what you intend to do with it.  At least if we were dealing with an employer association who'd filed this evidence they would have had - filed submissions - and this would be supporting those submissions and we'd have an understanding of it, what it's relevant to.  We understand that you're seeking to inform yourself and I suppose, really, the only point at this level is we need to know more if we want to say more.


COMMISSIONER LEE:  Okay.  Anything else?




COMMISSIONER LEE:  Right.  Thanks Mr Robson.




MR FERGUSON:  Our group has filed written submission and we rely on that detail and just respond to a few of the issues that have come up today and emphasise a couple of points.  I suppose, in our submissions, we make the point that we acknowledge that the survey wasn't designed to be representative necessarily of all employers covered by the Award.


In saying that we take the point that it's not clear why or what reason there would be to advance a submission to say it doesn't necessarily provide some insights into the circumstances of employers more generally, beyond those that were surveyed.  I think the point I make is that when you're assessing the weight of the survey it's not a binary task of assessing whether or not it's representative or not representative and therefore giving it weight or giving it no weight.  It clearly does provide - - -


COMMISSIONER LEE:  But we have to form a view about whether it's representative or not though.


MR FERGUSON:  Yes, but that doesn't involve - - -


COMMISSIONER LEE:  It's not going to be perfectly representative perhaps but - - -


MR FERGUSON:  And it won't be perfectly representative.  We can't as I said to you - no party, I think, is advancing it - the strong submission to say there are these obvious reasons why it wouldn't provide some insights into the circumstances of employers more broadly - if we can give you reason to pause - for example if you were looking at a claim based on the responses that have been advanced.  But it's not a task of saying, "Well, it's representative or not representative and therefore it's a value or not a value."


The reality is this.  It is a survey of a large number of organisations who are covered by the award.  It does give you a view about the impact that these claims might have in the context of a significant proportion of the industry.  And that in and of itself it is of value.


And, you know, I think within that context we have advanced some submissions around the issue of casual employment in particular.  And to the extent to which it provides some evidentiary support for the concerns we have been advancing, around the impact of the HSU and the United Voice claims, in relation to the rate to be paid to casual employees for working in excess of 38 hours, and 76 hours per fortnight or working on weekends.


It reinforces the propositions we have been advancing that, look there are employees in this sector that rely on casuals.  A significant proportion of this sector is reliant on funding and in particular on Commonwealth Government funding and we have made a lot of comments about the relevance of NDIS funding arrangements.  And it shows that in a practical sense we're not just sort of screaming about these things aren't more electively.  There are casuals working in excess of 38 hours.  There are casuals working on weekends, both Saturdays and Sundays, the claim will have an impact on employers on this evidence.  Now we don't know the precise impact in the entire industry but certainly not a significant number of employers.  And the submissions we have been advancing is that the funding arrangements won't necessarily cover those additional costs imposts now.


We know now that they exist and that means the Commission should grapple very carefully with the impact of those changes in the context of funding.  Now I think my friend has said that the Commission can't, in effect, can't be moved by the funding arrangements.  Now we don't see any reason why they're not a relevant consideration to this Commission.


Now they do change.  They might change.  We're all speculating about that.  In the ordinary course of events we'd submit to the Commission ought take the funding arrangements as they are currently.  Parties might lobby for them to be changed over time but who knows what will become of that?  The Commission needs to balance the interests of both employers and employees in this review and those constraints are a very significant issue to be thought through from the interests of both parties.  Because if we think about this in terms of NDIS we've got a situation where employers have actually kept restricted in their ability to charge more.  If you were to suddenly start imposing additional costs on employers that we know will have an impact on them, that we know they'll feel, and if you look at that in the context of a regime where they're prohibited from recovering those costs anywhere you'd expect that that would have an adverse impact - potentially adversely on the organisations - and thereby ability either in totality or at least to provide particular services.  They may suddenly not be able to provide certain services that happened today.


COMMISSIONER LEE:  Yes, but it can't be the position that the fact of the NDIS leads to a situation where the Commission can't grant any claim that will have an additional cost impact.


MR FERGUSON:  Not grant it any claim necessarily.  You've got to balance it, of course, with all of the factors there.




MR FERGUSON:  But it is a powerful factor because responsibly it's a matter that needs to be grappled with in the interests of both parties.


DEPUTY PRESIDENT CLANCY:  Well, we don't have any evidence of what these NDIS funding arrangements are.


MR FERGUSON:  Well, the unions have relied on a raft of material - documentary material which they rely on and we'd so rely on it as well - that gives you insights into the way these funding arrangements work.  We have gone in quite detail, in our submissions and there'll be further submissions where we find to analyse recent changes about the funding arrangements in the next tranche of proceedings.  And they do give you insights into what costs are factored in to the assumptions underpinning NDIS and what are not.


The material also which is relied upon the unions - I won't take you through the detail now - and it shows a very significant level of concern that the funding arrangements as they are don't enable organisations to meet in various respects the existing arrangements and be viable under the award.  Let alone meet the raft of new claims that have been proposed.  You're actually drowning in that sort of material.  There are some gaps because it's difficult to establish some of the assumptions but it's clear that this is a notorious issue.  And you can rely on that material because it is relied on by the unions.


So we say that is then, of course, you're not restricted to granting claims only if they are funded but it's a serious issue.  And if suddenly casuals cost 25 per cent more in a sector where you just can't recover that sort of money and where, I think all parties accept that - you know - it's a notoriously difficult sector from the profitability perspective.  You can't assume that people are just going to meet that cost and keep operating the way they do.


And we do say and we say it unreservedly that it is a reason for rejecting claims that are entirely out of step with funding arrangements.  And that's been a catalyst for our involvement in this because some organisations obviously have faced - they've expressed significant concern about the claims because they are so out of step with funding arrangements and that this Commission in this sector has looked at the funding arrangements consistently over time as a factor that they weigh - not to grant the claim.


But all we say in relation to the survey is that this now provides some evidentiary basis for some of the concerns that we have been expressing and it is as put a survey of a large number of employers and it is of some use to the Commission from that perspective.  It's not out of step with what's been in numerous award review proceedings where employers or unions have relied upon surveys of their respective memberships to provide some insight into what is occurring in the sector without necessarily establishing that it's statistical representative.  And the Commissions consistently utilise that material.  Those are my submissions unless there are questions.


DEPUTY PRESIDENT CLANCY:  It has been put this morning that there's a level of unreliability about how representative this sample is, and the particular submissions being made is, well we don't know how the employer organisations distributed this survey and what sort of communications accompanied it.  What do you say to that, what's the experience of Ai Group?


MR FERGUSON:  Ai Group, we readily concede that we have got the narrowest interest in this, in that we have distributed to the number of organisations that we are engaging with as part of this process.  It's small by comparison.  I think it's something in the order of 15.  Those organisations have advised the Commission who they are.  The Commission is able to ensure that they haven't been double counted if you will, because the way the questions have been constructed it's minimised some of these issues.


The reality is you have got industrial associations that have put it out to their members and their members have then come back themselves and there is some rigour to the Commission's administration of this and I don't think anyone is questioning that side of the equation, but of course we can't all test each other's memberships or the Commission's processes.


DEPUTY PRESIDENT CLANCY:  So you went to your 15 organisations, is that what you're saying?


MR FERGUSON:  Yes, we went to them and we made efforts to make sure they all participated.  They may not all be apparent because we (indistinct) and various stages of joining or not joining Ai Group, we just simply provided them to the members, and the Commission will know who they are because they have said their name.  So they won't be double counted even if they were a member of somebody else previously.  I don't see that that's a reason to throw stones at the survey to the extent that it's of no weight.  It is, when all is said and done, a survey of a very large number of employers and the sorts of questions that are being asked are not ones that necessarily lend themselves to sort of manipulation, "Do you employ casuals or not?  Where did you get your funding from?"


DEPUTY PRESIDENT CLANCY:  How many have you got?


MR FERGUSON:  How many have you got?  It's not the same as say a survey that we relied on in other cases where we asked for their qualitative assessment of a claim, you know, "What would you do if this happened?"  These are just factual answers.  Even if they came through an employer association the employer association isn't going to be able to guide those answers through material they might have put out, it's just about their circumstances, and it's the best picture you have to a degree.  Until then you have got respective organisations all across the Bar table expressing their concerns, undoubtedly genuinely in light of their memberships stated concerns, and now you have got some answers about the factual circumstances of these people to weigh those submissions against.


COMMISSIONER LEE:  You would accept that around paragraphs 8, 9 and 10 you talk about potential impact based on the findings about the extent of use of casuals.  You would accept that they're not - that's not a static proposition inasmuch as there could well be were we to grant that claim substitution for example between casuals and part-timers.


MR FERGUSON:  I think it's feasible that that's - - -


COMMISSIONER LEE:  Driven by the pricing.


MR FERGUSON:  I think it's feasible that that's an option, but I don't think you can draw conclusions that that's readily going to occur.  I think to put it in a practical perspective, and my friends at the Bar table can stop me if they disagree with this factual proposition, you have got a person providing disability support services, perhaps intimate care to an individual that enables them to fulfil their daily functions in life, get up, get dressed and so forth.  In a lot of context there's an inherent desirability in the sector to have the same employee performing the services for the same client.  The client might however want to vary the times at which they perform their daily life activities, get dressed, go shopping, whatever it might be, and there are organisations as a result that use models that are entirely casual-based, because the nature of the work is the driving force behind the employment type they select.  I think it's a bold assumption to assume that they can readily just transfer to part-time employment.


COMMISSIONER LEE:  Yes, I am not making that assumption to be clear.


MR FERGUSON:  No, but I accept that one option might be that they do that.


COMMISSIONER LEE:  It could happen.


MR FERGUSON:  It could happen in some context, but there are already of course catalysts in the award that they may transfer employment if they want to.  I think it's just a point that for some organisations that won't be an answer.  What might happen is that the organisation just declines to take on the service of a particular client, and so as a consequence of this decision you have people not receiving services under the NDS arrangements, because they want the services at a time where the model just doesn't let any organisation (indistinct) perform that service, and that is a real risk, and that's not in the interests of the casual who doesn't get the work either.  Now, presumably they want to do work and the evidence is that people in the sector often want more work, but this claim is going to work against their interest potentially if it results in them being priced out, but I can't take that further than the general observation.


DEPUTY PRESIDENT CLANCY:  The same goes for weekend work though.




DEPUTY PRESIDENT CLANCY:  If someone's working casual as a weekend worker and that's their preference for when they work what's going to be the difference in those circumstances with those people working as a part-time employer that has a roster that covers weekend hours?


MR FERGUSON:  The casual, the cost of the casual is going to go up 25 per cent.  It's the same scenario in the sense that - - -


DEPUTY PRESIDENT CLANCY:  But is your proposition that people are going to resist, the casual employees are going to resist working as part-time employees on those hours?


MR FERGUSON:  We don't know whether or not the employees will resist working on a part-time basis.  We know - I say this without evidence from these proceedings, but you think about the casual cuts.  The experience has been that notwithstanding availability of casual conversion (indistinct) his experience is often that people don't want to covert.


DEPUTY PRESIDENT CLANCY:  I am talking about the circumstances though where employers can - you have spoken to the hypothetical situation where the fixing of working hours is client driven, but there is nothing to preclude employers from offering the sort of shifts that are currently offered on a casual basis on a part-time basis.


MR FERGUSON:  There might not be in some instances, but the reality is that under the NDIS it's a much more client driven arrangement.  You can't assume that the employer will necessarily be able to meet all the strictures that are associated with part-time employment and offer those shifts.  Under this award part-timers have regular (indistinct) hours of work as opposed to casual employees.  The fact that in the survey period there might have been shifts worked by casuals caught by the survey doesn't mean that those shifts necessarily are available on a permanent basis throughout the year on set hours of work and so forth, the way that the award might contemplate.  You just can't make that assumption.


DEPUTY PRESIDENT CLANCY:  It could be on set days of work though.


MR FERGUSON:  Yes.  I can't recall now whether this award requires set hours in the ordinary sort of test case standard or set days or (indistinct), but it might be - all I am saying is that it can't be readily assumed that employees can just switch to part-time employment operationally, and this concerns - it's anecdotal in the sense that I am talking about the concerns that have been raised with us rather than hypothetical, but you can see conceptually what the problem is.


Under NDIS, and there's lots of material about this, it is client driven to a greater degree.  It's not like when we're operating under block funding where an organisation might be given a bunch of clients and a bunch of funding and allowed to structure it in the most effective way.  To an extent they have to operate within the context of what clients want in a market environment, but importantly an environment where at the moment prices are capped.  It's a system in transition and it might be that over time some of these claims can be readily dealt with, but at the moment there are reasons to believe that employers simply cannot be able to recover this funding, and that's why we're urging caution in response to these claims, and certainly no one has advanced any evidence to substantiate the proposition that, well if you vary the award then the funding will all just be changed to follow.  It's boldly put by the unions, but no one has made good that proposition.


DEPUTY PRESIDENT CLANCY:  Thank you.  Yes, Ms Shaw?


MS SHAW:  We just rely on our submissions and again state that there is some use in the data provided in the survey, particularly around the prevalent use of 24 hour shifts.  As we said in our submissions given that there was only 30 per cent of respondents that are in the home care sector and from the 11 per cent from the metropolitan area using that 24 hour case you have got about 30 per cent of your home care employees actually using 24 hour care shift, which is quite a high number, and I think that kind of data is useful because it wasn't provided during the case.


We also identify that there is useful data in the number of casuals being employed, the amount of overtime those casuals are working and that casuals are regularly working Saturday and Sunday.  We just would exercise some caution in drawing inferences between sets of data such as the use of enterprise agreements and employing casuals and what can actually be drawn from that.


COMMISSIONER LEE:  Yes.  You say drawing inferences of a causative relationship.  I don't think that's what the report is doing, with respect.  What it's doing is noting that there's an association between the variables.


MS SHAW:  Yes.  Sure.


COMMISSIONER LEE:  So in a statistical sense they're dependent variables, that doesn't fall short of one finding that one's causing the other.  You understand that?


MS SHAW:  Yes, of course.  Yes.


DEPUTY PRESIDENT CLANCY:  Thank you.  Ms Tiedeman?


MS TIEDEMAN:  Thank you, your Honour.  We rely on our submissions of 10 July, but I will just make a few brief comments in addition to that.  As the Commission has actually acknowledged in the survey analysis document the survey wasn't designed to be representative of all enterprises.  The purpose was to assist the Bench in informing itself about information relating to the matter.  So we say that the results are capable of doing that.  Eight hundred and fifty four enterprises is a considerable sample size and that 30 per cent response rate is a good response rate for an external survey.


In general terms a response rate for an internal survey that goes to employees of an organisation for example an average response rate is between 30 to 40 per cent.  In terms of an external survey that's sent to people outside an organisation like this survey an average response rate is between 10 and 15 per cent.  So the response rate of around 30 per cent is actually quite a high response rate.


We say that the survey assists in providing that relevant information to the Commission that isn't available elsewhere, for example in relation to the use of the 24 hour care clause and in relation to the engagement of casuals.


In relation to the two specific areas that we commented on in our submission the use of the 24 hour care was that HSU proposed that the clause be deleted on the basis that the clause is rarely used.  We say the findings of the survey that 10 per cent of enterprises are using the clause on average of 304 times per year is not rarely used, and in relation to casuals support the submission that Mr Ferguson has just put forward and say that the findings of the survey show that any changes made in accordance with those claims of the HSU and United Voice in respect of payments to casuals would impose a considerable cost on employers and should be taken into account particularly because of those funding issues.


In relation to the question that the Commission has just posed to other parties about circulating the survey we represent four employer groups, each group circulated the survey to all of their members that are covered by the SCHADS award.  We were asked by the Commission on I think two separate occasions following the initial circulation to remind the enterprises that they needed to respond by the closing date, and we did that and we ensured that all four of our members did that.  Unless there's any questions they're my submissions.


DEPUTY PRESIDENT CLANCY:  It may be elsewhere in your material, but for ease of reference are you able to advise how many members each of these four employer groups had?


MS TIEDEMAN:  I can advise - it's not right in my material at the moment - I did advise the Commission in response to the survey though I know that Aged and Community Services Australia has 600 members.  I can't give exact numbers in relation to the others off the top of my head.  I can send that through though if you would like.


DEPUTY PRESIDENT CLANCY:  Yes, thank you.  Thank you, Ms Tiedeman.  Just before I go to you, Mr Pegg, Ms Shaw, I declined to ask you that question, I forgot to ask you that question about your distribution.  What was the distribution undertaken by your organisation?


MS TIEDEMAN:  In line with instructions that we were provided we sent out the survey in an email.  We then were given a list of who had responded and asked to send it out to our other members who hadn't responded I think on two other occasions, so we sent three reminder emails to our members.  We did try and follow up with phone calls to encourage everyone to fill it out as well, just given the response rates we have had in the past of giving surveys to members.


DEPUTY PRESIDENT CLANCY:  Are you able to indicate the extent of your membership for the numbers?


MS TIEDEMAN:  We have got 200 members.


DEPUTY PRESIDENT CLANCY:  Thank you.  Thank you, yes, Mr Pegg?


MR PEGG:  NDS is broadly supportive of the submissions already made this morning by the other employer groups.  I just make a few quick comments in response to things that have arisen this morning.  I think it was clear to all of the parties from the outset that conducting a survey through membership of employer organisations can't be seen to be scientifically or statistically representative of the entire industry, but the fact is the survey went to close to 3,000 employers.


I note the reference in the AFEI submission to the productivity commission which estimates around 5,000 government funded organisations in industry.  The information on the Australian charities on not for profit commission website suggests to us a similar order of magnitude of employers in the industry generally.  So I think while there is no doubt in a formal sense the survey is representative of members of employer organisations in industry it does constitute a sizeable proportion of the overall industry.


I think we also need to bear in mind that the objectives of this survey were relatively modest.  We are not seeking to obtain scientifically rigorous statistically significant data around a few percentage points here and there.  We were looking for more qualitative information along the lines of if the 24 hour care provision for home care workers utilised, and I think the data shows that given that home care employees are a minority in this survey, nevertheless it's a fairly significant level of usage, and is casual employment utilised and if so is it used on weekends, and again whether you want to quibble about whether the exact percentage points would match what we would find in a census the fact of the matter is the survey provides useful evidence that these are arrangements that are used in reality.


I think we can also look to some of the demographic characteristics.  The parties in these proceedings would all accept through their knowledge of the industry that the workforce comprises a high proportion of part-time and casual employees and the survey data matches that.  The survey data on the demographics are pretty much exactly in line with what we would have expected to see.  Given that 60 per cent of the respondents in this particular survey are involved in disability services NDS can align that demographic data with information that we have for our membership, and again it pretty much lines up exactly in terms of part-time and casual employment.


So there are reasons to have a reasonable degree of confidence that while it's not a census and while there may be some skewing in terms of the representation of disability versus social welfare broadly the results are plausible.  In the areas where we do know something about the data they line up with other sources of information and for those reasons we think that in relation to the 24 hour care question and the casual employment question we can have a level of confidence about the data.


Finally, just in relation to the way in which the survey was distributed NDS distributed this to all of its members, approximately a thousand employers, and we responded when on the two occasions requested by the Commission to send reminders my understanding is that those reminders did go out just via email circulars.


DEPUTY PRESIDENT CLANCY:  Thank you, Mr Pegg.  Given the submissions that are made this morning does any party want to respond to anything at this point?


MR BULL:  I might just make one or two comments quickly.  I think there is some consensus that the material that the survey has provided in relation to the 24 hour clause is of some utility, and attempting to be helpful I think where the survey is useful it's fairly at a distance in that it provides information about broad propositions.  So we now cannot say that the 24 hour clause isn't used.  It's clearly used and the level of usage is we say not significant, but it's not insignificant.  So that's useful.


There are some data sets or information which is of some use.  I am just finding - there's a report which is - hang on, sorry - we actually reference it in a submission that we made on 17 May and it's the National Disability Service does something called the NDS Workforce Report, and that probably inevitably is also focused more on the employee than employers, but that did appear to give us information.  Interestingly that report apparently indicates the trend towards casualization.  Casualization was not universal across the sector.  It was more prevalent in small or medium organisations and was absent in large organisations.  The survey does seem to conflict with that.


One of the issues about this sector, and this returns to the point I made about with employers they're different, they're not like individuals.  There's a number of very large employers in this sector.  If you eliminate or if they did not participate that will inevitable skew the results, and once again I am not saying they did or they didn't, but for example if the top five or three of the top five didn't participate that will skew the results, because they're very large, they have economies of scale, they probably have ways of managing their industrial relations.  Because of their size and so forth they may be quite different to the smaller ones.


Just a few - and I think Commissioner Lee raised the issue of substitution and that in a sense hits a nail on the head.  The point about this review is that it's a dynamic process, it's not static, and this is an area which is an evolving area of social policy.  The characterisation of some of our claims as an increase in labour costs is not completely correct.  We're unions, we represent employees, yes, we want people to have better terms and conditions, but that's not the complete picture.  We quite unashamedly believe that a permanent job is better than a casual job, and that the industrial relations of sectors should be engineered to facilitate permanent work.  That should be the object and that should be an explicit design criteria.


So, yes, if you make casual labour more expensive that doesn't necessarily mean that in the long run there's this global increase in labour costs.  We quite explicitly say it's more expensive it will therefore cause substitution of employ, it will drive employer decision-making and lead to more persons in permanent work, and that actually from an economist perspective should lead to a more efficient and useful allocation of resources within the sector.  So it will not necessarily increase labour costs.  It could have quite the converse in that it means that the existing labour or the (indistinct) of labour is utilised if a more efficient manner, namely there is frankly something wrong with the casual work of 40 hours a week, but that's happening consistently.


There is something we say aberrant in the way that the funding in the industrial relations are working in that sector.  That person, all things being equal, should really have a permanent job, and that frankly works for the individual.  I would have thought it also works for the employer, and the Commission should be attempting to engineer an outcome where a casual working 40 hours consistently a week is not a casual, the cost pressures drive the employer to give that person a permanent job.


Just in relation to the 24 hour clause it's an example of where the data is useful at a distance, so it exists.  The problem with the data is it doesn't actually tell you is it being used because it's the only facility under the award that can deal with the scenario.  Other there other alternatives that would get the job done in a different manner which wasn't so onerous on the particular employee.  The data is useful but we say a broad focus and there needs to be some caution in using it.  We don't want to interrogate the list, but if a few of the very large employers are absent from this dataset it does potentially significantly skew the results we have got.  That's all I wanted to say in reply.


DEPUTY PRESIDENT CLANCY:  Thank you.  We will now adjourn.  The parties are aware of the directions more broadly for the future conduct.  Yes?


MR BULL:  This is a different matter.  I was speaking to Mr Ferguson, he raised an issue about the directions.


MR FERGUSON:  This is a small issue that was raised with me.  I haven't actually seen the directions.  There was extensions sought in relation to responding to the travel time.  I think the way the directions have been framed purports to give everyone an extension on everything until 3 September, not just the travel claim, which I think was unintended.


DEPUTY PRESIDENT CLANCY:  Yes, it is unintended.


MR FERGUSON:  I don't know that any organisation at the Bar table is intending to take that view, but it might be a matter that can be addressed.


DEPUTY PRESIDENT CLANCY:  I will follow that up.


MR FERGUSON:  As I said everything related to travel can be filed later, but everything else should be filed now.


MR BULL:  We don't disagree with that.


COMMISSIONER LEE:  You don't disagree with that.  I don't disagree with it either.  It was what it was meant to reflect.


MR BULL:  This may be - - -


COMMISSIONER LEE:  So the extension was granted in respect to evidence and materials related to travel time only.


MR FERGUSON:  Yes, that does capture an element of a broken shift variation sought by one union that overlaps with travel time, which I can't - I think it's HSU Family Service.  So that was intended to be called as well.


COMMISSIONER LEE:  Other material still will be filed in accordance with the existing timeframe.




MR BULL:  This may be an expression of hope over experience, but this is a complex - the hearing is in October and it can deal with a lot of material.  We are in an iterative process where we potentially may be able to agree on some things, and this is a discussion I had with Mr Ferguson before 10 o'clock.  It may be useful to have a conciliation for one day perhaps two weeks before the hearing, or some period before the hearing, preferably after most of the evidence has been filed.  Frankly if we can - this is becoming no criticism of anyone, it's a review by attrition - if we can - there's an incentive for everyone to try and eliminate dispute.  If we can agree on some things or even bits of things I think there is goodwill in that sense.


COMMISSIONER LEE:  My conciliations have got so well so far.


MR BULL:  Well, as I said it's hope over experience, but we're all getting tired and I don't know whether we want to continue screaming at each other.  There's mutual self-interest in trying to actually come to some agreement about some things.


COMMISSIONER LEE:  All right.  So you're putting that out there.


MR FERGUSON:  From our perspective we're happy to participate.  Another day of conciliation I think there might be scope to deal with some things productively.  I think sooner rather than later.  If we leave it until the last two weeks the material will be in and we will all be in our trenches and from our perspective we will be responding to the material that we will get.  So I think if - - -


COMMISSIONER LEE:  What would the timing be from your point of view?


MR FERGUSON:  I will just have to check the diary for availability for all the other award review cases, but as long as it - we're ready to conciliate - - -


COMMISSIONER LEE:  Between here and October.


MR FERGUSON:  As soon as possible.


COMMISSIONER LEE:  Next week, next month.


MR FERGUSON:  I think August is a problem.


COMMISSIONER LEE:  So probably September.


MR FERGUSON:  Yes, probably September, early September.  Our concerns will be mainly focused around award review commitments.


MR BULL:  I think September will be a good idea because there's a bit of time then for the hearing, but it's close enough to give us some incentive to agree to things.  Brett's right, if it's too close to the hearing we're in our trenches with the gas masks on.


MR FERGUSON:  Once we have got the material we will focus on that, and that's the truth of it.


COMMISSIONER LEE:  Any other views on that?


MS SHAW:  No.  We agree with (indistinct) trying to limit some of those issues.


MR ROBSON:  I agree, and I think it might not have worked out at the start of the year, but I think now that we have got the expectation of a pre-existing deal out of the way we might be talking in a different manner.




MR PEGG:  Yes, we would certainly be supportive of another opportunity to see if we can narrow the matters down.


DEPUTY PRESIDENT CLANCY:  Not once bitten twice shy?


MR PEGG:  We live in hope, your Honour.




MS TIEDEMAN:  We don't have any issue with it, a conciliation being arranged.


DEPUTY PRESIDENT CLANCY:  We will be in communication with the parties about some possible dates.  Preferred location, Melbourne or Sydney?


MR ROBSON:  Sydney.


DEPUTY PRESIDENT CLANCY:  Sydney is preferred.  We will adjourn.  Thank you.

ADJOURNED TO A DATE TO BE FIXED                                     [11.32 AM]