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Fair Work Act 2009                                       1054938





s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Blood and Bone Marrow Donor Leave


(ODN AM2008/10)

[MA000004 Print PR985114]]




10.03 AM, TUESDAY, 18 JULY 2017


Continued from 17/07/2017



VICE PRESIDENT HATCHER:  Again, as is apparent, Deputy President Clancy isn't able to join the Bench because of illness, and again, he will read the transcript.  Mr Moretta.


MR MORETTA:  Thank you, your Honour.  Your Honour, before I start, could I just indulge the Commission.  If I can hand a document that I prepared, simply where some – I wanted to make some corrections to the submissions that we filed.  I actually presented this yesterday to the opposing parties to see if they had any objections and it didn't seem like they had any objections.  They're not many, just a few, so you can have them with you.  If I can hand that up.




MR MORETTA:  We don't necessarily have to go through them, it's pretty straightforward.  What I did add, actually, overnight, which the other party didn't have, there was an incorrect citation at paragraph 58 of our submission and it was noted in the AiG submission, in their reply submission.  It was an incorrect reference to the annual wage review of 2010 in 2011.  It should actually be the annual wage review of 2009 in 2010.  And the citation has been cited there for you on the end of the document.


VICE PRESIDENT HATCHER:  All right, we'll just take those corrections as read, Mr Moretta.




VICE PRESIDENT HATCHER:  You don't have to go through those.


MR MORETTA:  Thank you.  Your Honour, can I just say it's been easier to draw blood out a stone than trying to get the parties opposing this application to withdraw their rejection to the SDA's application.  The resources required in obtaining cogent evidence in support of this application are required to show that paid blood donor leave proposed by the SDA meets the objectives of the Fair Work Act and the modern awards objective, a benefit that encourages the donation of blood where one donation can save three lives.  The SDA relies on the SDA's submissions filed on 2 May 2017, and the SDA reply submission filed on 10 June 2017, and so much of it need not be repeated.  The proposed clause has been provided in draft determinations that were filed.


Your Honour, we can't ignore the statutory framework and the historical context of blood donor leave that's proposed by the SDA.  As you see in our outline the current statutory framework permits paid blood donor leave and the historical context of paid blood donor leave have been exhaustively covered by the SDA during the submissions.  The SDA has provided evidence of the existence of paid blood donor leave for decades across more than one jurisdiction, they are Victoria, South Australia, New South Wales, and to a limited extent, the Enterprise Award in Queensland, in most of the industries at least covered by the modern awards in the SDA's application.  At one time or another in more than one jurisdiction blood donor leave was a minimum safety net for retail safety workers in general retail stores since 1976 in Victoria, chemist shops and pharmacies since 1981 in Victoria, and the (indistinct) fast food outlets.  BDL, blood donor leave, also existing in predecessor awards in other industries not included in the SDA's application and these are outlined in our submission.


Blood donor leave also exists in numerous enterprise agreements, past and present, covering a multitude of employees, even when awards in a number of those jurisdictions continue to have blood donor leave as a minimum entitlement, and the lists themselves were provided in our submission and may not necessarily be exhaustive.  Blood donor leave has withstood the test of time, only removed as a consequence of changes to federal industrial relations legislation.  The removal of blood donor leave from all the awards was not uniform either and blood donor leave has existed, even as recent as the early 2000's in various jurisdictions.


In the employer associations objections the employer associations make refer to the section 3 object of the Fair Work Act and in particular, 3G, sub-section (g), to acknowledge the special circumstances of small and medium sized business that blood donor leave proposed fails to do this.  The blood donor leave clause proposed does acknowledge the special circumstance of a small business and medium sized business.  You just need to look at the operation of (x)(3), and that is (x)(3), the draft clause that the SDA proposes.  "The employee shall arrange his or her absence on a day suitable to the employer".  However, we almost should look at also that the object of the Fair Work Act also includes (3)(b) and that is to ensure a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the NES, the modern awards and the national wage minimum wage orders.  And the SDA submits that the proposed clause meets the objectives in section and the modern award's objective in section 134, sub-section (1).


I would also like to draw the Full Bench's attention to the principle object of the previous legislation, the Workplace Relations Act 1996 where blood donor leave existed in its predecessor Federal Awards which existed under this legislative regime, and the principle object, section 3 of that Act, in many respects, mirror the objects in section 3 and the modern award's objective of the Fair Work Act in existence today.  For example, section (3)(g), (3)(g) of the Workplace Relations Act ensures that awards provide minimum safety net entitlements for award reliant employees which avoid creating disincentives to bargain at the workplace.  So without going through all of those sections the SDA submits that the blood donor leave existed within the context of the same objectives outlined in previous legislation and can continue to do so under the current statutory framework of the Fair Work Act, providing a fair and relative minimum safety net.  So therefore - - -


VICE PRESIDENT HATCHER:  So Mr Moretta, so what is it about blood donor leave that, as it were, protects the interests of employees?  I mean, one can really see the social benefits but why is it necessary to protect the employment interests of employees?


MR MORETTA:  It's those employees who choose to donate blood that for whatever reason, in their personal circumstances can't donate blood, that the minimum safety net entitlement in their workplace actually provides them with that entitlement.  And we saw that with one of our witnesses, Deborah Allen, in terms of her condition and how she donates blood and how that's important to her in relation to her minimum safety net condition in that case.


VICE PRESIDENT HATCHER:  She's different in the sense that if you were donating blood for the purpose of treatment of a medical condition, which is one way of describing her position, then she can presumably access personal carer's leave to do that.


MR MORETTA:  But it might be that, your Honour, that the personal leave might not be appropriate because she's not unfit to work.  She may be able to work.  She just needs to go through this process of actually drawing blood.




MR MORETTA:  That's her.


VICE PRESIDENT HATCHER:  But let's be frank about it.  This case is not really about her.  This case is simply about people who want to do something for the social good.


MR MORETTA:  That's true, your Honour, but the fact that we have found someone that actually, where the benefit – where we have a witness where that the minimum entitlement is important to her, or is somehow, because of her personal circumstances, affects her.  I think that would be at least one example, and probably many out there that we weren't able to find.


VICE PRESIDENT HATCHER:  Yes but this is not a claim for therapeutic blood donors, this is a claim for - - -




VICE PRESIDENT HATCHER:  For blood donors generally.


MR MORETTA:  No.  That's correct.  That's correct, your Honour.




MR MORETTA:  But - - -


VICE PRESIDENT HATCHER:  What's the distinction between giving someone leave to give blood, as distinct from giving them leave to do something else that's socially worthwhile?  For example, help the homeless or work in a soup kitchen or - - -


MR MORETTA:  Well, your Honour, it might be with respect to an employee, there are different – they prioritise in terms of what they feel is important to them to participate in an activity which they feel is necessary to the community.  But I say to your Honour, with respect, that this claim is simply to do with one particular benefit and that is, getting paid blood donor leave to donate blood.  At the end of the day we could go through lists of other social activities but your Honour, this case and in the evidence that we've provided with this case, it's to do with the blood donor leave, paid blood donor leave, to encourage blood donation.




MR MORETTA:  It's not new, your Honour, and it's not complex.  There's been proven to be a fair and relevant safety net entitlement in the past and today.  And the blood donor leave that we propose can continue to exist in a productive workplace operating under a modern awards system.  In a way, this application is essentially reinventing the wheel and the Employer Associates prefer to ignore decades of safety net entitlements including paid blood donor leave as proposed by us.  When we look to the operation of the clause and relating it to the witness evidence, again we rely on the written submissions, how the proposed clause operates and according to how it meets the modern awards objective.  The existence of the provision in enterprise agreements is important to demonstrate how the proposed clause operates in workplaces where there is paid blood donor leave and yes, our witnesses – most of them were covered by these collective agreements and are crucial in this regard.  Well, yes, our witnesses provide their own unique stories and circumstances why to them blood donor leave should be part of relevant safety net in modern awards and these are people of good character.  Their personal stories are genuine, credible and compelling and demonstrate how the provision is not exploited as a number of the employee associations have asserted in their submissions.


So let's consider the SDA witnesses briefly in some form who were called to give.  Amelia Marie Caruso has had paid blood donor leave as a condition of employment, her entire professional working life.  When she uses it as an entitlement she makes sure that she minimises her absence from work.  The appointments are made in advance, therefore leave is always planned.  Sufficient notice is given.  She is always conscious of the needs of her own team and employer.  She donates when it's a quiet period.  She attends a clinic that is walking distance from her place of work.  She minimises the absence from work and doesn't require additional staff to replace her.  Therefore her workplace is not disrupted by her absence.  She does find it extremely difficult to donate blood at a clinic, even though there is a clinic, it was suggested, 8 kilometres away from her residence, but she needs someone to take her there.  On her days off she is the primary carer of her 83 year old mother which takes up her time outside work in organising appointments which at times can be unpredictable.  She also states at certain times she may be low in iron and she cannot donate when she may be contacted by the Red Cross asking her to make an appointment to donate blood.  Working in the CBD allows her to donate at a clinic walking distance from her work.  She's obviously paid an entitlement to donate blood very highly and uses it.


Stacey Hunter is another witness, the second witness.  All clinics nearby Stacey Hunter's residence are mobile clinics.  The window of opportunity to visit a donation clinic after work is virtually impossible.  As she stated she finishes work at 2.30 pm but that's to collect her children from school, around 3.00.  She runs a café, early start at 5.45 am, and finishes at 2.30 pm, Monday to Thursday.  Stacey leaves work a short time before the end of her shift to donate blood, which gives her enough time to collect her children from school, and clearly she needs to take leave to donate blood.  She does so at a time when her area is adequately staffed.  No additional staff is needed to replace her and she makes sure she's on top of things before she leaves so she doesn't put pressure on her team in her absence before the end of her shift.  And Stacey doesn't exploit the time and she goes to donate before the end of the shift because of this quiet period, therefore gives consideration to her fellow team members and business needs so as to service customers.  And of course, Stacy is grateful and makes use of the entitlement.


Then you have Dale Allen, sole carer of her children, 13 and 15 years old.  Dale will arrange to donate blood at a time when it suits her employer.  She considers her employee's needs by communicating with her manager.  Dale communicates with her boss when she arranges to donate blood to make sure it suits her manager.  There are five people who can do her work.  Her access to blood donor leave is not a problem at her work.  There is a give and take approach, your Honour, and with the other witness evidence, the same can be seen with those that have paid blood donor leave.  And outside of work hours Dale also volunteers with the SES and the local basketball club where her son is a member.  The fact she can access blood donor leave at work, we say at no additional cost to her employer, she can also participate in more than one social and community activity.


The next witness, we have Deborah Allen.  She has a condition called haemochromatosis.  Every Monday and Tuesday when she's not at work she also looks after her grandchildren on behalf of her children, as a secondary carer.  Deborah donates blood to her condition which requires her to draw blood on a regular basis and therefore uses her entitlement to paid blood donor leave under a collective agreement at work so she can donate blood, and Deborah explains she donates on her way to work and so there's only a 30 to 60 minute crossover where she is absent from work.  Her attendance at a blood donation clinic is more efficient due to extended waiting times that might occur if she went to a hospital and therefore is not required to stay away from work for longer periods of time as she may be required it she went to a hospital.  Whereas the donation clinic is more efficient she has blood donor leave which is more beneficial and less impact on the employer.  She need not use personal leave.  She doesn't have to stay away from work for longer periods of time and so in that regard blood donor leave is less costly for the employer which she uses.  And so as I've explained about the personal need, you know, there might be even provisions like the flexible working arrangements under the NES but even those have stringent former requirements, whereas BDL is not as stringent, flexible, it is that give and take both to the employer and the employee.  And her workplace, there's eleven people in the team who can do the job for that short absence, which when she returns to work, Deborah still manages to complete all her tasks for the shift.  And this question was asked of all of the witnesses, or most of the witnesses and they answered the same way, that regardless of the absence from work, that particular shift, in terms of productivity, in terms of the amount of work tasks that they're required to do, it gets done.


Then you have the last two who are actually covered by the General Retail Industry Award.  You have Trevor Zylstra who works in Melbourne CBD. I believe the closest clinic to his residence was in Sunbury, he lives in Gisborne.  There were twelve people working in his part of the store and he has health issues that has prevented him from donating blood, he says.  Trevor says that he will utilise the entitlement to blood donor leave sought by the SDA if it becomes a condition of employment under the GRIA and he can donate at a clinic walking distance from work.  He finds it difficult to donate blood before work or on his days off due to his son's sporting activities, and then taking them to school. Detailed information was provided on his responsibilities at home on a big property outside his hours of work which he was questioned on yesterday and he recognises the quiet periods at work where he can arrange to be absent from work and not be a burden to the operation of his workplace, and Trevor will make this point and obviously at a clinic, walking distance from his work.  And so Trevor is able to articulate this effectively, we believe.  And then - - -


VICE PRESIDENT HATCHER:  Did any of these employees ever indicate that they'd requested of their employer that they be allowed to absent themselves to give blood and have been refused?


MR MORETTA:  No, your Honour.  I haven't asked that question of them and maybe it should have been asked yesterday, but no.


VICE PRESIDENT HATCHER:  I mean, in the absence of evidence that employers are not prepared to deal with this on a consensual, co-operative basis why do we need to create a whole new right to leave and - - -


MR MORETTA:  I think you'll find, your Honour, that employers, when they see entitlement as a working condition on paper, they probably accept it more and it gives them – and there is the basis where to go to when that consultation process can begin.  Because both the employee knows exactly what the entitlement is, the employer knows how it can apply, and it's not onerous.  It simply provides a facilitative approach to those discussions and I think you'll find at times, your Honour, that is the best way in order to – it creates certainty of when an employee and employer want to discuss this issue.


And if we can move on to Glenn Smith, finally, he works at the back of store and undertake deliveries.  He works Monday to Friday, nine to five, and sometimes even overtime on a Saturday, he says in his statement.  He finds it difficult to donate blood after work even if the clinic closes at 7.30 because he has to look after his two year old son while his wife, who is a nurse, works nightshift during the week and quite a lot of nights, he says.  And he also has childcare issues that he needs to address after work.  Then he says there were six employees at his workplace, six – three casuals, three permanents.  If he's absent from work his manager can do his work for that short absence, no need to engage additional staff to cover the shift.  The clinic is walking distance from work, therefore easier to donate blood without worrying about having to look after his two year old son or find someone to look after his two year old son.  With proper consultation and making an appointment at an appropriate time his work can easily cope with his absence and we believe Glenn was able to articulate this effectively.  And what we say is that enough staff can cover his absence while he donates, with no disruption to the business, no need to roster extra staff.  His manager could take over at a time he could donate.  And if I may dare to extend that to other businesses like pharmacists, like chemist shops, they would probably have the same number of composition of staff, and other businesses like hairdressers and we believe that – and fast food outlets, and we believe that with the way the clause is drafted and operates it can accommodate the employee and the needs of the business.


So the main points out of the SDA witness evidence that we would like to just reiterate is that the evidence demonstrates that the clause that we propose can work as a one size fits all.  This is evidenced by the witness evidence.  It provides certainty for a business and meets the needs of the low paid and has done so for decades anyway.  And the provision is simply an easy to understand, easy to apply, and most importantly, non-disruptive to the workplace, no room for abuse and no room for exploitation of the entitlement.  We rely on the evidence from the witnesses, especially those that were cross-examined yesterday, and their affidavits and the rest of the witnesses provided to the Commission in this application.  I'll just move now briefly or - - -


COMMISSIONER SPENCER:  Can I just clarify, that evidence that you said was similar to pharmacists and small business, was that of Mr Zylstra from the Camera Shop?


MR MORETTA:  Mr Glenn Smith.




MR MORETTA:  Radio Rentals.






COMMISSIONER SPENCER:  He was with JB Hi-Fi and then Radio Rentals?


MR MORETTA:  Yes, just recently, your Honour.


COMMISSIONER SPENCER:  So they're a larger organisation though, aren't they?




COMMISSIONER SPENCER:  Both of those, your non exemptions?


MR MORETTA:  Well, in terms of their operations, Commissioner, they would be roughly the same size.  In terms of the stores, the establishments that they operate - - -


COMMISSIONER SPENCER:  Would JB Hi-Fi and Radial Rentals be similar?  Are they similar – I would have thought that - - -


MR MORETTA:  I would have though Radio Rentals would probably be more similar.  JB would probably be - - -


COMMISSIONER SPENCER:  Your clarification was that those organisations, they're a similar number of employees, organisation in terms of shop front to a pharmacy or a hair salon.  I was thinking that the Marcos Cameron(?) video would be – I'm just wanting to clarify what – because the JB Hi-Fi, they might be thinking of a different - - -


MR MORETTA:  Sure.  Just to clarify, I was referring to the Radio Rentals shopfront.


COMMISSIONER SPENCER:  All right, thank you.




COMMISSIONER SPENCER:  All right, because he was originally employed by JB Hi-Fi.


MR MORETTA:  That's correct.




MR MORETTA:  That's correct, until a few weeks ago and the dates - - -


COMMISSIONER SPENCER:  Right, so the Radio Rentals, so - - -


MR MORETTA:  That's all right.


COMMISSIONER SPENCER:  Do we have any evidence as to how many employees there would be?


MR MORETTA:  He said there was only about six in his workplace.




MR MORETTA:  There were three casuals and three permanents.






COMMISSIONER SPENCER:  But they're a similar organisation to JB Hi-Fi, aren't they, in terms of - - -




COMMISSIONER SPENCER:  The overall corporate structure?


MR MORETTA:  Yes.  Yes but - - -




VICE PRESIDENT HATCHER:  Mr Moretta, the written submission which you filed has a useful summary of the witnesses but the names are all redacted.  Can you supply us with an unredacted copy?


MR MORETTA:  I thought they were provided to you.


VICE PRESIDENT HATCHER:  At least, the version I have in my folder - - -






VICE PRESIDENT HATCHER:  Has all the names redacted on it.


MR MORETTA:  Sorry.  They were provided to - - -


VICE PRESIDENT HATCHER:  This is the submission I'm talking about, not the statements.


MR MORETTA:  Yes, we have got copies, your Honour.


VICE PRESIDENT HATCHER:  We don't need to hand it up but perhaps you could send it to us electronically - - -




VICE PRESIDENT HATCHER:  In case we wish to use it for decision writing.


MR MORETTA:  Sure.  In fact, we can hand it over to the members in the proceedings today.  And so I'll just move onto the modern - - -


COMMISSIONER SPENCER:  But there is no issue with Ms Allen and mentioning her?






MR MORETTA:  No.  In fact, in fact, can I clarify that?  There is no issue now with respect to mentioning any names of the decisions.




MR MORETTA:  Thank you.  But regardless of whether they were called up or if witnesses weren't called up, that's all clear.


COMMISSIONER SPENCER:  All right, thank you very much for that, yes.


MR MORETTA:  Yes.  If I can move to the modern awards objective, section 134(1), and of course, we rely again on our written submissions filed on 2 May and 10 July.  The SDA submits that the modern awards in this application is as varied, that is, with the inclusion of paid blood donor leave proposed is necessary to ensure the awards are achieving the modern awards' objective by providing a fair and relevant minimum safety net of terms and conditions.  And what is necessary in a particular case is a value judgment based on an assessment of the considerations in those sections.  And if we just move to the various element objectives, section 134 sub-section (1), sub-section (a), meeting the needs of the low paid, the award relies on employees covered by the awards listed in the SDA's application and the SDA evidence shows that a blood donor leave benefit proposed would be considered considerable benefit on the low paid for award reliant employees who choose to donate blood.  The financial resources of the low paid are far less than those that are not and the benefit of blood donor leave proposed is more significant on them.  And this was reflected in the SDA written submissions in the witness evidence.  For example, Mr Glenn Smith, having to care for his two year old son; Nicole Joy Elmer also has a three year old daughter; Emanuela Marie Caruso is a primary carer for her 83 year old mother; and Julie Kay Dingeldei, having to care for her husband who has been diagnosed with dementia; then you have Trevor Zylstra and his situation, personal circumstance, and the list goes on. And they attend clinics as close to work as possible, at relatively no cost to them and no burden to their employer.


VICE PRESIDENT HATCHER:  How does any of that connect to their level of pay?


MR MORETTA:  Well, your Honour, they don't have to take unpaid leave and at the end of the day, too, your Honour, they simply have the same amount of pay at the end of the week, and not having to adjust the cost - - -


VICE PRESIDENT HATCHER:  There's no evidence that anybody took unpaid time off work to give blood, was there?




VICE PRESIDENT HATCHER:  They either did it in working time under an EBA - - -


MR MORETTA:  That's correct.


VICE PRESIDENT HATCHER:  Or they did it outside of work.


MR MORETTA:  That's correct, your Honour.




MR MORETTA:  But it does flow that with that entitlement it does make it easier to donate blood for someone like Glenn Smith and Trevor Zylstra.  That's what we allude to.  And I suppose, just in the summation of that particular area, I mean, the annual wage review and I'll – in the 2009/2010 annual wage review where the Commission referred to the ACTU's definition of the needs of the low paid and hence the citation which is correctly noted now, the Commission referred to the ACTU's definition of the needs of the low paid which encapsulates the essence of this objective, I believe, the SDA believes, and that is, employees' needs are met when they have income sufficient to participate in and to belong to Australian contemporary society at a standard that facilitates social inclusion for minimum wage workers.


Then I move on to section 134, sub-section (1)(b).  The SDA relies on the written submissions in relation to this objective.  Blood donor leave has been in awards in more than one jurisdiction while the blood donor leave has been negotiated in collective agreements in those same industries and we had those state awards in the South Australia and New South Wales, even up to as recent as over ten years ago.  So we don't believe it's a disincentive to the proposition, your Honour, just - I just want to make sure I'm making the correct reference – that's right, to encourage collective bargaining.  So I'll move on.


There were some substantial submissions made in relation to section 134, sub-section (1), sub-section (c) and I suppose this objective relates to the availability or otherwise of blood donor leave either encouraging or discouraging blood donors from participating in the workforce.  We believe, your Honour, we submit in the witness evidence of Joanne Nowland where she has two jobs and she takes the benefit of blood donor leave provided for her on one job.  Woolworths Supermarkets, that allows her to maintain her second job and is enabled to donate blood without affecting her work commitments in the second job and therefore engaging in the community activity which she says is a necessity, and that's at paragraph 12 of our affidavit and I've provided that in our submissions.


Can I now move to sections 134(1)(d) and sections 134, sub-section (1)(f), that's sub-section (1)(d) and sub-section (1)(f).  I suppose they overlap to some degree.  You can sort of put them – you can have the same discussion together.  Look, the SDA witness evidence demonstrates there's no discernible detrimental impact on productive performance of the work.  Instead, the opposite, in particular, reading the witness evidence of Drew Gilson which has not been challenged by the employers' associations in the proceedings in terms of the workplace group donor drive.


The SDA relies on its written submissions in evidence that there is no detrimental effect on productivity and impose no extra costs.  In fact it does provide certainty for business, we believe, included in the modern awards.  The witness evidence demonstrates that short absence from blood donor leave doesn't require extra employees to replace the donor, and most importantly, productivity is not affected.  The clause requires that blood donor leave is taken on a day suitable to the employer and we believe that's crucial for this example.


When we look at the Pharmacy Guild Association submission of their Schedule B, those costs are based on the assertion that every time an employee is away from donating blood, additional staff is required and a minimum engagement is required while the other is donating blood.  The SDA witness evidence shows there's no such requirement.  It's not necessarily true.  Whether it be a big business with a large floor plan, where there's more traffic, or whether it be a small business with a smaller composition of staff, it can be worked through.  That's right, even where a company has the resources and capacity to put on extra staff, they don't do it.  They don't need to.  It's not necessary because the nature of the range in appointments to donate blood at a clinic like Trevor Zylstra alluded to is his evidence on oath, sufficient notice, the consultative aspect between the employer and the employee, as such, which is facilitated by the proposed clause, it avoids this.


We then have examples of other witness evidence from Dale Allen, Stacey Hunter, Emanuela Marie Caruso.  There is no impact on payroll or rostering in that regard and this was all, we believe, shown across.  So from the witness evidence it simply is, we'll arrange the appointments to donate blood, they generally consider – they do generally consider the operation needs of the business and the same work still gets done, at the end of the day and the evidence demonstrates that.


Also, I would like to just make note of the employer associations assert that employees can use annual leave to donate blood.  Well, annual leave does not necessarily coincide with the opening of donation clinics, especially in remote areas, especially where there's the use of mobile clinics where they change, and change frequently.  I noticed when we were researching availability of donation clinics for Dale Allen the mobile clinic had moved from Leongatha to Wonthaggi which is 35 kilometres from Dale's residence and another 35 kilometres in Warragul.  So locations change in different months of the year, proving the changing availability of mobile donation clinics in regional areas, and also, you know, a donor might not be able to donate during annual leave if – considering if they might not be able to because they're not fit, such as low or high levels in the blood.


I'd also like to point out to the Commission that associated with annual leave is the payment of annual leave loading of 17 and a half per cent, if say, an employee is compelled to take annual leave in order to go and donate blood.  There's no such annual leave loading in the payment of the blood donor leave.  So that annual leave loading is a common feature in all of the modern awards which apply to this application by the SDA.   So the SDA rejects the assertions made by the Pharmacy Guild and other employee associations on the additional regulatory burden on the provision or caused by the provision, that we believe is unfounded.  Blood donor leave does not accrue.  It is capped at four times per year.  It's for a specific purpose, providing certainty for the employer.  The employee needs to provide proof of attendance and there's no regulatory burden contrary to the modern award's objectives, we believe.


If we can move to the next element and that is section 134(1), sub-section (g), the need to ensure a simple – the need to understand a stable, sustainable modern award.  The SDA has addressed this objective extensively.  The clause is not new and I repeat, it's not complex.  It's easy to understand, it's easy to apply, it's sustainable within a stable modern award system and as said earlier, the existence of the provision proposed has been proven to provide a fair and relevant minimum safety net, a fair and relevant minimum safety net for both the employee and the employer.  In terms of the next section 134, sub-section (1), sub-section (h), there will be no adverse effects on employment, growth, inflation, performance and competitiveness of the national (indistinct) and your Honour, with respect, to suggest that is ludicrous.


Just if I can make a final point in my submissions with respect to the community necessity, the SDA has made submissions regarding the necessity of blood donation to the community.  There is no need to repeat what has already been submitted in this regard.  We do refer to the letters though of support of the SDA's application from the Australian Red Cross, the Victorian government and most recently, the South Australian government in relation to our submission which was filed with the Commission on how blood donor leave in the workplace facilitates the donation of blood without the impact on business as asserted, as asserted by the employer associations.  I mean, both federal and state government invest significant amounts of resources to ensure the safe supply of blood products to meet the community demand and even the AiG's submission refers to this, citing the Australian Red Cross annual report 2015 and 20156.  But again, the donation of blood relies on those people who donate blood, regardless of the infrastructure that you have and blood donor leave to that extent, encourages that.


The employee associations refer to blood donor leave as just one of many social causes in a long union wish list, as I'm quoting one of them.  But this completely ignores the origin of this claim.  That is, the history of the existence of blood donor leave and the encouragement of blood donation in workplace cultures today, both in the public and private sectors.  This is demonstrated by the employees and industries covered by the awards in this application, registering with the Australian Red Cross Red 25 program encouraging group donations which drives within their workplace.  The Australian Red Cross annual report highlights this at page 57 and referring to its reliance on  blood donors and community programs involving local community and workplaces, again, summarised in our submission filed on 2 May 2017.


The SDA witness evidence also demonstrates this by highlighting the encouragement from their employers to donate blood in their own workplace.  And so your Honour, Commissioner, with respect, the blood donor leave provision proposed by the SDA is a fair and relevant minimum safety net ensuring the awards are suited to the contemporary circumstances of Australian society with no obstacle to a productive workplace under the modern award system.  Varying the awards with the inclusion of blood donor leave brings the award in line with what is happening in many workplaces that are covered by the modern awards in this application.  So the SDA has provided sufficient probative evidence to satisfy the Commission that blood donor leave proposed by the SDA ensures a stable, modern awards system with the NES, with the national employment standards, provide a fair and relevant safety net.


VICE PRESIDENT HATCHER:  Thank you, Mr Moretta. Ms Bhatt?


MS BHATT:  Thank you, Vice President.  The Australian Industry Group has filed comprehensive submissions on 30 June 2017 in opposition to the SDA's claim in relation to Hair and Beauty Industry Award, the Fast Food Industry Award and the General Retail Industry Award.  Can I start by making just a few corrections to those submissions.  If the Commission has a copy of our submission - - -


VICE PRESIDENT HATCHER:  If they're only typographical corrections, I wouldn't bother.  If they're substantive I - - -


MS BHATT:  They're substantive, Vice President.


VICE PRESIDENT HATCHER:  Just hold on a second.


MS BHATT:  Page 20 of our submissions - - -


VICE PRESIDENT HATCHER:  Sorry, just slow down, Ms Bhatt.  Yes.


MS BHATT:  Page 20, paragraph 61, in brackets towards the end of the paragraph, the words, "casual loading and", should be deleted, and then at page 69 of our submissions.  These corrections are made in light of the witness statement that was withdrawn yesterday by the SDA.


COMMISSIONER SPENCER:  What was the name of that one again?


MS BHATT:  Ewins, Ms Ewins.


VICE PRESIDENT HATCHER:  This affects the numbers, doesn't it?


MS BHATT:  Yes, it does.


MR MORETTA:  Your Honour, with respect to – in the sheet that I gave before, I actually noted we had – we had originally put 13 witnesses on our submission.  We miscalculated and it was 14, and now we can say it is back to 13, so I thought - - -


COMMISSIONER SPENCER:  With the removal of - - -


MR MORETTA:  With the removal of Ms Jodie Ewins, so just to avoid any confusion and not - - -




MR MORETTA:  Thank you.




VICE PRESIDENT HATCHER:  So, Ms Bhatt, the 14's become 13's.


MS BHATT:  That's correct.  In the fifth bullet point, the "10" should be a "9".


COMMISSIONER SPENCER:  Sorry, where are we now?  We're in - - -




MS BHATT:  Page 69.




MS BHATT:  In the sixth bullet point, the "10" should also become a "9" and in that same bullet point, the second sentence which commences with, "only one of the 14 employees", that entire sentence should be deleted.  That was a reference to the statement that has now been withdrawn.




MS BHATT:  AiGroup continues to rely on those written submissions as amended which carefully consider the SDA's claim in some detail and I, of course, don't intend to take the Commission through those, chapter and verse.  Instead I propose to summarise the eight primary propositions that we put against the SDA's case.  But of course, the submissions that I make today shouldn't be taken to limit the scope of the case that we've put in writing or to demur from any of the detail which we've there set out.  I also intend to deal with the evidence that we've heard and the reply submissions that the SDA filed on 10 July but I note at the outset that those submissions do not in any serious way overcome many of the arguments that we've put, nor do they remedy the deficiencies that we've pointed to.  I also note for the record before I proceed, that in these proceedings we also appear for the Hair and Beauty Australia Industry Association which supports and adopts our submissions in relation to the Hair and Beauty Industry Award.


Turning then to the first proposition which is that the entitlements sought by the SDA is for a purpose that is not necessary in the true sense of the word.  And we deal with this at paragraphs 80 to 107 of our written submissions.  Our argument in relation to this proposition is twofold.  The first limb is that the SDA is seeking the introduction of a paid leave entitlement in the minimum safety net which is for the purposes of enabling an employee to elect to participate in a purely voluntary activity that is not mandated or required.  So in other words, it's an entitlement that would allow an employee to partake in an activity during work hours that is not essential or necessitated by virtue of their personal circumstances or otherwise.  Now of course, the SDA has, I think, presented one narrow exception to that and that is the evidence of Ms Deborah Allen yesterday who spoke of therapeutic donations which, Vice President, you've referred to.  But of course, the Commission will recall that her evidence was that regardless of whether or not she has an entitlement to paid blood donor leave, she has to donate blood for the purposes of managing her medical condition.  The second limb to this - - -


VICE PRESIDENT HATCHER:  Is she able to access personal carer's leave to do that?


MS BHATT:  Based on her evidence, I'm not sure that we know enough to be able to make that assessment.  My recollection is that in her statement she says that if she did not donate blood she might suffer from certain physical pain.  At that point she may be unfit for work but I don't know if she would be entitled to use personal carer's leave for the purposes of donating blood.


VICE PRESIDENT HATCHER:  And it's preventative of unfitness, it's not a result of unfitness.


MS BHATT:  Precisely.




MS BHATT:  The second limb to this first proposition is that where an employee elects to donate blood this doesn't necessitate or require absence from work because it is a purpose that can be fulfilled outside an employee's working hours, and we say this for two reasons.  Firstly, these blood donor centres which are operated by the Red Cross have opening hours that include what I'll call, ordinary working hours, and they extend beyond ordinary working hours, including on the weekends.  Now we say that one of the difficulties with the case that's been mounted by the SDA is that there's been no proper analysis of this.  We don't know precisely the locations of these donor centres of what their opening hours are but there's certainly no evidence to suggest that their opening hours are so limited that they prohibit persons who are employed from attending them for the purposes of donating blood.  If I can just very briefly take the Commission to page 28 of our written submission, which from there onwards until page 39, we've set out an analysis of the opening hours of 65 of the 97 permanent and mobile blood donor units operated by the Red Cross across Australia and that analysis, we say, is illustrative of the point that many of these centres can be accessed outside of the hours of, say, 8.30 am and 5.30 pm during the week, and also on the weekends.


VICE PRESIDENT HATCHER:  Yes, go on, Ms Bhatt.


MS BHATT:  The second reason we say that blood donation doesn't necessitate an absence from work is because the evidence at its very highest suggests that some employees covered by the Retail Award find it difficult to donate blood outside working hours because they have various personal commitments which they prioritise or attend to in a certain way, and a key example of this is the evidence of Ms Dale Allen who says that it would be significantly harder for her to donate blood if she didn't have a paid entitlement in her enterprise agreement.  I'm quoting from her statement here that her family and household commitments often make it harder for extra community activities such as blood donation.  But under cross-examination yesterday it was revealed that she is able to find time to be a part of the committee of her son's basketball team and she helps out at school, as she put it.  Not one of the 13 witnesses that have been called say that is impossible for them to donate blood without a paid leave entitlement, and of the four witnesses that don't have an entitlement to paid blood donor leave, three donate blood anyway.


For example, yesterday we heard from Mr Smith who used to be employed by JB Hi-Fi, didn't have a leave entitlement but says he has donated blood.  Only one of those four witnesses does not donate blood and that's Mr Trevor Zylstra, but he conceded yesterday that neither his working hours nor his parenting responsibilities prevent him from donating blood in his own time.  Rather, it's the particularly diligent approach he takes to his household chores and his decision to accompany his sons to certain sporting events that apparently preclude him from donating blood in his own time at a blood donor centre that is just 15 minutes away.  And as it established by the document attached to his statement that donor centre was open, at least at times, on a day that he is not rostered to work.


COMMISSIONER SPENCER:  Which one is that again?


MS BHATT:  Mr Zylstra.


COMMISSIONER SPENCER:  Yes but which clinic do you - - -


MS BHATT:  I'm sorry, Sunbury.


COMMISSIONER SPENCER:  Sunbury.  Is that in your analysis?  That's in his witness statement, anyway, attached to it. The SDA put that - - -


MS BHATT:  It was attached to his witness statement.




MS BHATT:  Yes, Commissioner.  So the witnesses generally say that it's difficult for them to find time to donate blood and this is because of their care and responsibility, of their desire to spend more time with their families, their cricket training, their son's basketball games, and because they enjoy attending fitness classes for their health.  The Commission will recall the evidence of Ms Hunter.  She has a day off on Friday and while the children are at school she attends a fitness class.  The cross-examination of some of these witnesses demonstrated that the alleged difficulties that they faced were overstated or that they were not insurmountable.  In some cases it was conceded that the witnesses would try to donate blood even if they didn't have a paid leave entitlement and I refer, for instance, to Ms Dale Allen, and some went further, saying that they simply had a preference for doing it during working hours.  That became apparent when Ms Hunter and Mr Smith were under cross-examination, and this is relevant because this clause would apply to all full time and part time employees regardless of whether or not they've even made an attempt to donate blood, or regardless of whether or not they are able to do so in their own time.


I want to refer also to the evidence of Ms Hunter which we heard yesterday.  Now we submit that there are multiple mobile donor centres around Ms Hunter's home in Alexandra and if I could just hand up a document to the Full Bench.




MS BHATT:  The document sets out information that has been obtained from the Australian Red Cross blood service website on 16 July of this year.


VICE PRESIDENT HATCHER:  Mr Moretta, is there any objection to us receiving this document?


MR MORETTA:  No.  No objections, your Honour.


VICE PRESIDENT HATCHER:  All right.  I might mark it as an exhibit, so the document headed, "Australian Red Cross blood service, donate blood today", will be marked exhibit 8.



MS BHATT:  Thank you, Vice President.  The first page of that document sets out blood donor centres identified by the website that are near Alexandra Hills where Ms Hunter lives and in the pages that follow, the opening hours of those various blood donor centres are set out.  They're, of course, mobile donor units so they identify the relevant dates too.  I won't take you through all of them but I note that each of them are open on at least a Friday and/or Saturday and Ms Hunter was not rostered to work on either of those days.  I understand, of course, that Ms Hunter couldn't testify to the existence - - -


VICE PRESIDENT HATCHER:  No, I wrongly marked that document.  It should be exhibit 15.


MS BHATT:  Thank you.  Whilst Ms Hunter couldn't testify to the existence of these various donor centres she confirmed that the five locations that I identified for her were 20 minutes or less away from her home by car, indeed I think one of them was less than 10 minutes away.  And we say the fact that she didn't know of the existence of these donor centres is of itself also relevant.  It seems that she hadn't taken steps to inform herself as to the location of any of these nearby donor centres, although she very readily accepted under cross-examination that that information would be available to her had she undertaken a simple online search.


VICE PRESIDENT HATCHER:  Just remind me, did she have a workplace entitlement?


MS BHATT:  Yes, she did.


VICE PRESIDENT HATCHER:  So that probably explains why she didn't need to search, because she could access the - - -


MS BHATT:  Because she could do it during work time, and I think that was her evidence, that she had a preference for doing it because there was a van that was available near her workplace.  Ultimately we say that it is not necessary that the minimum safety net facilitate an employee's ability to engage in a voluntary social activity that they don't otherwise engage in because of the manner in which they choose to prioritise their personal commitments.  And put simply, there must be some limit on what can reasonably be imposed upon an employer by the minimum safety net, because in essence the SDA is seeking to relieve employees of any of the inconveniences that might arise should they decide to donate blood, and instead require an employer to bear the cost and the disruption clause and I'll come to this in a moment but in essence, we say that that cannot be a fair element of a minimum safety net.


Can I make one final observation about the SDA's witnesses before I move on from this.  They, of course, reflect a very small group of employees covered by the Retail Award.  They are by no means representative of the workforce engaged in the retail industry generally and they certainly are not representative of employees working in the hair and beauty industry or the fast food industry.  And as a result, no inferences can reasonably be drawn from that evidence regarding the ability of employees generally in those industries to donate blood.


VICE PRESIDENT HATCHER:  Why would they be any different?  I mean, there might be circumstances between the awards which affect the employer's capacity to deal with an entitlement of this nature but in terms of employees' capacity to give blood inside and outside of work, I can't imagine that what award you're under makes a whole lot of difference, does it?  Unless it was the Pastoral Award or something.


MS BHATT:  Much of the evidence given by the SDA's witnesses relates to their personal commitments.  For example, their care and responsibilities for their children.  Presumably the demographic profile of employees covered by a certain award may have some bearing on the extent to which those employees are impacted by such caring responsibilities.  And I was just about to come to this because eleven of the 13 witnesses that have been called by the SDA give evidence about exactly that, their caring responsibilities.  But it can't be assumed that that's necessarily representative of, for instance, young, part time university students working in the fast food industry, or an 18 year old apprentice that works in the hair and beauty industry, we just don't know.


If I can turn then to the second proposition and that is that the modern award's objective is not concerned with advancing social causes or enhancing the entitlements of employees engaged in such social causes.  The Commission is, of course, well aware that not one of the factors set out at section 134(1) of the Act expressly require the Full Bench to have regard to the need to facilitate the participation of employees in social causes or to increase the entitlements of those that do.  And further, we say that in the exercise of your broader discretion the Commission should not proceed to effectively identify and prioritise certain social causes over others, and we set out our reasons for that at paragraphs 102 to 107 of our submission and Vice President, you've alluded to this very issue earlier today.


I'll deal then with the third proposition which is that the grant of the claim would result in increased costs and operational difficulties for employers.  We say it's self evidence that the introduction of any paid leave entitlement to the minimum safety net will bring with it some increased employment costs and operational consequences for an employer, and we refer in particular to paragraphs 296 to 311, and 314 to 322 of our submissions when we deal with the relevant elements of section 134(1) of the Act.  But in addition there are various aspects of the provision that's been proposed by the SDA that we say would serve to exacerbate the potential cost and operational consequences and many of these matters go to the very heart of the SDA's claim.  There are not matters that pertain to the mere drafting of the provision.  And one example of that is the absence of any employer discretion where an employee seeks to take leave.  The provision appears to give an employee an absolute right.  We have dealt with these issues in painful detail at chapter 6 and I won't go through all of that detail now but I do want to address the two ways in which the SDA has sought to counter those arguments in reply.


Firstly, some of its witnesses who have access to such leave under their enterprise agreements have given evidence that they consider that their leave is easily accommodated by their employers, and we heard much of that yesterday.  But of course it's trite to observe that any such evidence goes only to the employee's perception.  It can't be put any higher than that and it's certainly not evidence that employers generally can in fact easily accommodate leave that is taken pursuant to the provision that has been proposed by the SDA.  And secondly, the SDA also relies on its witness evidence to refute our arguments regarding various elements of the clause that we say will be particularly problematic.  So if I can give the Commission an example, the SDA's proposed provision requires an employee to provide notice as soon as possible of their intention to take the leave, and we set out our concerns with that approach at paragraph 108 to 111.  In its reply submissions the SDA argues that the absence of any minimum notice period will not be problematic because its evidence establishes that when employees take blood donor leave they will provide sufficient notice.


But of course, the evidence of a handful of witnesses about the manner in which they have accessed a blood donor leave entitlement under their enterprise agreement cannot be relied upon to demonstrate that the proposed clause won't be interpreted or applied in a way that is quite clearly available on a plain reading of the words of the provision that's been put forward.  I note also that the specific terms of the provisions in the enterprise agreement pursuant to which these employees have taken leave are not before the Commission.  So we don't in fact know if the provisions that they have accessed to take the leave are drafted in a manner that is similar to what has been proposed by the SDA, or in fact they differ markedly.  In any event, the evidence doesn't establish that the proposed clauses will not be applied in the manner that we've suggested because the provision that has been proposed is quite clearly open to be interpreted to in the way that we've submitted.


Before I move on from this issue, I wanted to raise two other matters.  The first is the possible impact of the claim on individual businesses at the micro-economic level, and in particular, small businesses must be considered and the Commission is, of course, mindful of section 3(g) of the Act and notwithstanding what Mr Moretta has put to you this morning regarding the proposed clause, it remains our view that the provision does not acknowledge those particular needs.


Secondly, it has become apparent from the evidence that the duties undertaken by employees in the retail industry can involve standing for extended periods of time and I think some of the evidence was that those duties might also be strenuous.  And we say that the Commission can take it on notice that the work of employees in the fast food industry and the hair and beauty industry will also, in many circumstances, involve standing for long periods of time and the reason this is relevant is because of certain advice that is provided by the Red Cross on its website, and if I can hand this up to - - -


VICE PRESIDENT HATCHER:  This is evidence, isn't it?  Just hold on.  This is just a late attempt to adduce evidence, isn't it?


MR MORETTA:  Your Honour, we haven't – if I can object.  We haven't had time to – by looking at this evidence, I mean, to analyse it, to refer to it and then be able to have the opportunity to question our witnesses in relation to that, or at least provide an effective response, I think, at this later stage, your Honour.  I think it's inappropriate and unfair to us or to the SDA and I would ask that – I object and have asked that if Ms Bhatt could move on to her next point rather than providing this particular evidence which we just don't have any information at this stage to – well, at any stage, to be honest, of the proceedings - - -


VICE PRESIDENT HATCHER:  Ms Bhatt, it seems to me that by taking this approach you have denied the SDA the opportunity to reply to it.


MS BHATT:  Well, firstly, the SDA – can I say a few things?  Firstly, we're content for this document to be received as though it were part of our submissions.  The document is what it is and unless there's some disagreement about it not being what it purports to be then I see no difficulty with it being received the way many documents that were filed by the SDA have also been received.  Now Mr Moretta has raised an issue about whether or not has an opportunity to respond.  Firstly, he'll have an opportunity to respond to any submissions that I make in relation to this document later today and should he consider that inadequate it would be open to him to make an application seeking a further opportunity to do so.  And so long as his response was confined to the document that I've just handed up we would not oppose that course of action.


VICE PRESIDENT HATCHER:  No, we won't admit it, Ms Bhatt.


MS BHATT:  If it pleases.  Can I turn then to the fourth proposition and that is that the SDA has not identified any cogent reason for departing from the approach generally taken by the Commission which is to refrain from supplementing the NES by including new forms of leave in modern awards, and we deal with this at chapter 8 of our submissions which we continue to rely on.


COMMISSIONER SPENCER:  What's the page of that, Ms Bhatt?


MS BHATT:  The page in our submissions?




MS BHATT:  Page 59.


COMMISSIONER SPENCER:  Thank you, very much.


MS BHATT:  Now since we filed our written submissions, as this Full Bench is, of course, aware, the majority decision in relation to the ACTU's Family & Domestic Violence Leave case was handed down.  It's a decision of Gooley DP and Spencer C and the citation is 2017 FWCFB 3494.  Now the SDA has relied on that decision in its reply submissions of 10 July to contradict the proposition that we've just put and so I want to say a few things in reply.


Firstly, in our submission it remains the case that the Commission's general approach has been as we've stated and the proposed insertion of leave for those experiencing family and domestic violence would be one of very few exceptions.  Secondly, the decision of Gooley DP and Spencer C expresses a preliminary view that an unpaid leave entitlement should be introduced for those experiencing family and domestic violence leave and to provide access to paid personal carers leave under the NES.  The Commission has indicated that interested parties will have an opportunity to be heard in relation to that preliminary view and so to that extent the matter has not yet been determined.  Finally, and I anticipate that this will be uncontroversial, that the circumstances of those suffering from family and domestic violence who, as a consequence seek to take leave, are so very different to the circumstances associated with an employee who, put simply, consider that they're too busy to donate blood during their own time.  I anticipate I don't need to say anything more about that.


The fifth proposition, the SDA's claim is not supported by any relevant historical considerations.  Now this includes any arbitral history of decisions from this Commission or its predecessors that are found that blood donor leave is a necessary part of a fair and relevant minimum safety net and it also includes a consideration of the relevant pre modern awards which we deal with at chapter 7 and I won't repeat those submissions except to highlight that not one of the pre modern awards underpinning the Hair & Beauty Industry Award contained an entitlement to blood donor leave and only one pre modern award which was a Queensland NAPSA(?) underpinning the Fast Food Award contained a blood donor leave provision but it applied only after an employee attempted to donate blood outside working time but this was not possible.


COMMISSIONER SPENCER:  Where do you track through that, Ms Bhatt, in your - - - ?


MS BHATT:  In our submissions, it's at chapter 7 which commences at page 56.  I turn then to the sixth proposition we advance which is that it is appropriate that matters such as blood donor leave be left to enterprise bargaining.  My submissions can be found at chapter 9 of our submissions which commence at page 65.  In essence we consider that awards provide a minimum set of terms and conditions which by their very nature cover all employers, big and small, and where an additional entitlement can be accommodated by an employer, this can be included in an enterprise agreement.  The material before the Commission in these proceedings demonstrates that the SDA has pursued this matter at the bargaining table with numerous employers, particularly in the retail sector, and has had some success in securing its inclusion.  And of course, as the Commission is aware, the issue of enterprise bargaining is also relevant to section 134(1)(b) of the Fair Work Act which requires that the Commission take into account the need to encourage collective bargaining and we deal with that at paragraphs 272 to 281 of our written submissions.


The seventh proposition is that the SDA has not called probative evidence in support of the factual propositions upon which it seeks to rely and as I've said earlier, this includes its arguments regarding the alleged difficulties faced by employees in donating blood outside of working hours, and in addition we've carefully analysed the evidence at chapter 10 of our submissions which I took the Bench to when I first started.


And the final proposition is at that the proposed clause is not necessary in order to ensure that the relevant awards achieve the modern award's objective.  And we deal with this at chapter 11, page 74 but I need not go through that, suffice to say that the SDA's case does not overcome the most obvious criticism that we've made and that is that the union has failed to establish that the provision that is proposed is necessary in the sense contemplated by section 138.  Unless there are any questions, those are our submissions.


VICE PRESIDENT HATCHER:  Thank you, Ms Bhatt.  Mr Roucek?  I should add that it obviously won't be necessary for any employer advocate to repeat propositions that have been made earlier.






MR ROUCEK:  With that in mind, we filed exhaustive written submissions and rely on those submissions.  In these submissions I'll deal with key areas of concern insofar as the SDA's application is deficient and does not demonstrate any of the substantive statutory or evidentiary requirements for amendment to the awards.  It would be useful from the outset to perhaps make a few general and conceptual comments about the notion of blood donation leave as a safety net obligation on employers to pay employees.  As a matter of logic and a general proposition there is no available objective basis to argue that an employer should be required to remunerate an employee who seeks to donate blood and to undertake a personal or private charitable activity which is entirely a matter for the individual.  The decision to do so is an intensely personal one.


Much less is there a statutory or evidentiary argument available to the SDA in this matter.  The application before us is speculative in nature.  It seeks to insert what has historically been a matter for industrial agreement between industrial parties either in pre modern awards or for enterprise agreements into five quite key modern awards.  It can certainly be understood from the material before the Full Bench that there is no industrial agreement between the parties who have an interest in the five awards who come before you in this matter.  The suggestion that employers should be put to the expense of providing payment to employees who wish to donate blood is mildly provocative as a safety net entitlement.  This is especially so when one puts the proposal advanced by the SDA against the statutory framework for the four yearly review and the modern award's objective.  As an industrial mechanism for the proper and thorough evaluation of matters that should form part of a relevant safety net of terms and conditions for employees the considerations under section 134 of the Fair Work Act have very little in common with the charitable act of blood donation.


I will make a brief comment on the statutory framework before turning to the approach of the Fair Work Commission in dealing with the four yearly review.  I'll make some submissions about the modern award's objective in the light of some of the submissions that have been made today and in reply submissions filed by the SDA and in doing so attempt to clarify what is intended by the legislation in respect of each limb of section 134, sub-section (1) of the Fair Work Act.  There is some measure of confusion and disagreement between the parties, I think, as to the essential requirement that is necessary to be demonstrated under each limb and in order to be successful pursuant to an application such as this one.  I will also make brief submissions on the manifestly deficient blood donation leave clause proposed by the SDA and make submissions about the nature of the evidence deposed by the SDA's witnesses and the matters elucidated from cross-examination.


Very briefly, the modern award's objective is set out at section 134 of the Fair Work Act and obliges the Commission to ensure that modern awards, together with the national employment standards provide a fair and relevant safety net of terms and conditions and that in doing so the Full Bench is required to take into account the matters set out at section 134, sub-section (1)(a) to (h).  The penalty rates decision 2017 of the Fair Work Commission Full Bench 1001, at paragraphs 115 and 116, stated that:


The modern awards objective is very broadly expressed.  The obligation to take into account the section 134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process. No particular primacy is attached to any of the section 134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.


What is relevant according to the Full Bench of that matter is whether the modern award, together with the national employment standards provides a fair and relevant minimum safety net of terms and conditions.  I will refer briefly to section 156, sub-section (5) that:


A four yearly review of modern awards must be such that each modern award is reviewed in its own right.  However this does not prevent the Fair Work Commission from reviewing two or more modern awards at the same time.


I will say briefly that there's not enough material before the Full Bench to enable a proper consideration of each award in its own right.  The Commission has a discretionary power to vary the modern award.   The parties have all referred to the SDA and National Retail Association No. 2 [2012] 205 Federal Court report 227, per Justice Tracey.  The relevant effect of this decision for present purposes is that the Commission must, according to the legislation, be satisfied that the variation is necessary to meet the modern award's objective and that there is a distinction between what is necessary and what is desirable, and I think that's pretty well demonstrated by this application.  This distinction is also cited by the Full Bench of the penalty rates decision.


In the preliminary issues decision [2014] the Fair Work Commission Full Bench 1788, the Full Bench set out the requirements in respect to the necessary evidentiary standard on the moving party in the four yearly review.  We submit that the SDA's application has not satisfied the requirements of the Full Bench enunciated in that decision.  There is very little in the way of probative evidence and very little of that properly directed at the requirements of section 134.


I will deal quickly with this application as a new form of leave.  The SDA's application, if granted, provides for an entirely new form of leave.  The form of leave is not present in any modern award and does not form part of the international employment standards which has been properly demonstrated by the SDA's evidence, the subject of bargained outcomes or industrial agreements.  The table at paragraph 2.6 of our written submissions filed on behalf of ABI and the New South Wales Business Chamber on 30 June of this year sets out the comprehensive scheme of leave benefits provided by the Fair Work Act and relevant state based legislation.  This, we say, demonstrates that the creation of an entirely new form of leave is unnecessary and is wholly undesirable in the context of 122 modern awards.


Certainly the evidence of Ms Allen as a therapeutic donor who suffers some medical symptoms if she fails to donate blood on a regular basis.  Her absences may be covered by other forms of leave, as has been ventilated.  We simply don't know enough, I think, at this point in regard to medical evidence to know that that's necessarily the case.  However if she cannot perform her duties due to a form of illness that's related to not having donated blood it would appear to me, at least on a preliminary view, that other forms of leave are available to those persons.


At paragraph 2.8 of our written submissions we set out that there are a great number of other charitable causes which could be the subject of new forms of leave.  At paragraph 2.9 of our written submissions we say that there is no discernible basis to elevate blood donation to a status of one form over another.  It is evidenced from a number of witnesses including Mr Smith and Mr Zylstra, and Ms Deborah Allen that if there is paid leave available for any particular charitable end, those employees would seek to take it.  We have identified the obvious floodgates argument with the insertion of a particular form of leave for any charitable act.


We submit that the evidence provided by the SDA in regard to the distinction between what is necessary and what is desirable, which we make reference to at 2.4, the SDA's evidence at its highest in this matter is that it is good for the proposition that it would be better if more people donated blood or thought about donating blood, and prioritised donating blood.  We submit that there is a clearly and readily apparent distinction between what is necessary for employees and employers, in the sense that is contemplated by section 134 and the benevolent actions of individuals.  It's not tried to say that a new form of leave would be considered a significant change as contemplated by the Full Bench preliminary issues decision, and as I've said, it must be accompanied by probative evidence properly directed at demonstrating these facts, and I'll say a little bit more about the evidence in this matter and the matters elucidated from witnesses in cross, a little bit later on.


The SDA's submissions contend that the Commission should be satisfied that a limited number of state and federal instruments which contain paid donation leave should provide a legitimate basis for the Commission to conclude that blood donation leave should not be included in modern awards as a minimum safety net obligation on employers.  It was during award modernisation that the SDA and any industrial party had ample opportunity to argue for the inclusion of blood donation leave.  A number of paid blood donation leave provisions have historically found their way into industrial instruments by agreement.  Those have been described to some degree by the SDA in their primary submissions at paragraphs 25 to 36.  The employer parties in these proceedings are entitled to rely upon the preliminary issues decision of this Tribunal which stated that the modern awards are taken to have met the modern award's objective at the time of making.


I turn now to the modern award's objective.  At paragraph 6.2 of our written submissions we reiterate that the awards which form part of this claim, as did all awards, all modern awards at the time of their making, prima face, met the modern award's objective.  At paragraph 6.5 we submit that what is fair and relevant is contextual and various from industry to industry and award to award, and is conditioned by the requirement to take into account section 134, sub-section (1)(a) to (h).  Also, as others have referred to, the objects of the Act in particular when we look at a consideration of industry to industry and award to award, it would be remiss not to look at the requirement of section 3(g) of the Act and consider the particular circumstances of small and medium sized businesses which I don't think has been undertaken in any particular unsatisfactory manner in this process.  Section 134, sub-section (1)(a) requires the Fair Work Commission to take into account the relative living standards and needs of the low paid.  We say that they're related but not identical considerations at paragraph 6.27 to 6.29 and they're affected by certain thing such as the level of wages an employee earns, hours that they work and their household circumstances but we confirm that it is not enough for a moving party to demonstrate that the employees subject to the claim are simply low paid.


The SDA in this matter attempts to show that employees employed under the Fast Food & Retail Awards are low paid but no attention has been given to the proper characterisation of this limb and that is whether blood donation leave is a need of those particular employees or is a relevant consideration in respect to their living standards.  We note that at paragraph 9.23 of the SDA's reply submissions that the union cites paragraph 352 of the annual wage review 2015/2016, that is, 2016 FWCFB 3500, that the needs of the low paid are connected to the ability of those persons to purchase the essentials for a decent standard of living and to engage in community life.  And the FDA argues that this results in the conclusion that, at paragraph 9.23, that blood donation leave assists with blood donation which is an activity of high social utility and benefit to the community in saving lives.  This submission really, we say, misses the essential point made by the Full Bench in the annual wage review 2015/16 which was to say two things about the assessment of the needs of the low paid in the context of the minimum wages objective rather than the modern award's objective.  That is that the remuneration the low paid should receive should enable the low paid workers to buy the essentials and to take part in activities outside of work by engaging in community life.


Can I just say this.  Community life is not the same as saving lives in the community, as pressed by the SDA and engaging in community life is not donating blood during a working day.  It cannot be said to be a need of the low paid.  The essential point of inquiry was to evaluate how much money is necessary to purchase the essentials and how much is necessary to take part in other pursuits, which costs money, and as I've said, to conflate this with the provision of blood donation leave is to confuse the fundamental point of inquiry in an annual wage review which considers section 284 of the Fair Work Act, that is the minimum wages objective, and section 134 of the Fair Work Act, which is what we're here today to consider.  This fundamental conception is underlined by the dot points at paragraph 9.2.3 of the reply submissions of the SDA which refer to affidavit evidence of blood donor deponents in this matter, which goes to the motivations of their charitable actions.  These range from donating blood at certain times of the year, such as Easter, donating blood as the donor deponent has a blood type which can be transfused with almost any patient, to donating blood because it makes a difference.


VICE PRESIDENT HATCHER:  Just excuse me, Mr Roucek.  We might take a short morning tea adjournment of about ten minutes.


MR ROUCEK:  Sure.  Thank you.


VICE PRESIDENT HATCHER:  So we'll now adjourn.

SHORT ADJOURNMENT                                                                  [11.28 AM]

RESUMED                                                                                             [11.42 AM]




MR ROUCEK:  Thank you.  Prior to the short break I was making a particular point that there seems to be a confusion between the objectives, on the one hand, the minimum wages objective, and on the other hand, the modern award's objective and describing the fundamental misconception which is at the dot points at paragraph 9.2.3 of the reply submissions filed by the SDA which really goes to the motivations of blood donor deponents in this matter for donating blood, and I think the point that this makes and that really demonstrates it at its very highest is that all of this is very noble and all of it is surely appreciated by blood donor recipients but none of it is relevant to the consideration of the relative living standards and the needs of the low paid.  At paragraph 6.3.5 of our submissions we say that on the basis of the SDA's ABS data it would appear that in the majority of cases the employees whose work is covered by this award, the employees are likely to work fewer than full time hours and significantly so, which provides ample opportunity for employees to donate blood in their spare time.


Section 134, sub-section (1)(b) and the need to encourage collective bargaining requires the Fair Work Commission to consider the word, "encourage", in the context of collective bargaining.  The limb is there to do more than simply be applied in the negative as is proffered by the SDA, that blood donation leave will not discourage enterprise bargaining.  It is actually directed at the need to do something positive about collective bargaining and the ends described in the object of the Act to that extent.  We submit that when properly considered within the scheme of the Act, modern awards and enterprise bargaining, if one were to include blood donation leave it would remove an outcome which has historically been achieved as a result of bargaining efforts of unions and employer parties and industrial agreements.


There is very little before the Commission which enables it to properly inform itself in respect of this limb of the section 134 considerations.  Section 134, sub-section (1)(c), "and the need to promote social inclusion through increased workforce participation", and we submit that this limb requires the Fair Work Commission to consider the needs to promote social inclusion which looks at ways in which we can encourage the optimum level of workforce participation irrespective of employees' circumstances.  At paragraph 6.4.6 of our submission we reject the characterisation proffered by the SDA at paragraph 60 of their primary submissions that, "the absence of blood donation leave can be a detriment to the living standards in a broad sense for the regular blood donor who cannot participate in a social activity".  Although the SDA apparently concedes that blood donation might be considered a social activity rather than an employment consideration this characterisation manifestly misunderstands this nature of the section 134 considerations in that it considers social inclusion and social activities as being one and the same.  It does not follow that donating blood does not promote social inclusion through workforce participation."


Again, the reference by the SDA to the annual wages decision of, I understand it to be, 2009/2010 and 2016, referred to by the SDA at paragraph 58 and 59 of its primary submission demonstrates that it is apparent that the union has again confused the operation of section 134 of the Fair Work Act with section 284(1)(b) of the Fair Work Act a and the minimum wages objective.  Of course, the sending of minimum wages is a matter which is separate from the modern awards objective and a conflation of the two produces somewhat absurd results.  Put in simple terms with reference to this limb there is no suggestion available that blood donors are not employed because their wish to donate blood outweighs their wish to be employed and that the inclusion of blood donor leave would enable them to be employed and donate blood.


Turning to section 134, sub-section (1)(d) and the need to promote modern, flexible work practices and the efficient and productive performance of work, and can I say at this point, I won't combine the effect of 134, sub-section (1)(d) and section 134, sub-section (1)(f) in the way that the SDA has today in a somewhat rosy picture of the effect of blood donation leave, real or otherwise, on business.  But this limb, (1)(d), is directed at the need but is qualified by the word, "promote", and results in the limb being directed squarely at enabling and fostering flexible modern work practices and the efficient, productive performance of work.  That is to say that there are no artificial barriers to the performance of work and ensuring appropriate fluidity in the deploying of labour without unnecessary or arbitrary restrictions.  And the provision of blood donation leave does not promote flexible modern working practices or enable work to be performed in different, more flexible ways.  In the present context we can say that without qualification that blood donation leave will significantly impact the productive and efficient performance of work and it cannot be said to promote flexible work.


At paragraph 9.5.5 of the SDA's reply submissions it says that "the proposed blood donation leave clause will negate any effect on business whatsoever because it is said that business can refuse a request for blood donation leave".  I'm not sure that that appears in the words of the proposed clause and we'll get into that in a moment but there is ample material before the Commission which serves to demonstrate that the effect on business is not limited to a question of the direction at the discretion to grant or not grant leave pursuant to the proposed clause.  There are other issues that have been raised by all of the employer parties and this characterisation is overly simplistic.


Section 134, sub-section (1)(f) and the likely impact of any exercise of modern award powers on business including productivity, employment costs and the regulatory burden, and this clause requires the Commission to consider the likely impact of its powers on business.  And we note that at paragraph 9.8.4 of the SDA's reply submissions the union concedes that the effect of blood donation leave on small business would be greater than other types of businesses.  The SDA place a large degree of reliance on the idea that the fact that an employer apparently maintains discretion over the taking of blood donation leave if it's proposed clause is inserted and will remedy all issues associated with the impact of business on the taking of leave, and as I've said there's ample material before the Commission demonstrating that this is not the case, and perhaps most concerningly the SDA advances the evidence of three witnesses employed in the retail industry in their reply submissions to demonstrate that the impact upon business would be negligible.  The evidence provided by Nichole Joy Elmer that in her opinion there would be enough people to cover her absence is pure speculation and without foundation.  The evidence in this matter falls some way short of the threshold evidentiary standard that is necessary for a substantive change to be incorporated into a modern award such as this, and the SDA additionally, makes no submissions in respect of the regulatory burden or productivity impact on business.  Section 1 - - -


VICE PRESIDENT HATCHER:  It's pretty difficult to assess that without knowing what proportion of persons the workplaces who currently have an entitlement actually use it, whether it's all of them or one per cent of them.  I mean, it may be that even if you're granted this entitlement there would be whole swags of employment where nobody seeks access to it.


MR ROUCEK:  In terms of the potential take up rate I know that the SDA's primary submissions talk about a number of 3.9 per cent which is – I don't have the particular pinpoint citation for that in the submissions but I think that's the only material we have on before us and it involves a calculation of the number of people said to be in employment, to the number of people who donate blood on a regular basis.  And I thin as we've said in our primary submission that that characterisation involves a leap of faith.  It's accrued division operation and obviously in circumstances where a small business has five employees, if one is out that's 25 per cent of the total workforce.  So it's not as simple as that and I don't think there's enough material before us to demonstrate that the substantive change is necessary in the sense contemplated by the Act.


Section 134, sub-section (1)(g) is, "the need to ensure a simple and easy to understand, stable and sustainable modern awards system for Australia that avoids unnecessary overlap of modern awards".  We say that introducing a new and complex form of paid leave has a detrimental effect on the simplicity of modern awards and increases the likelihood of instability and complexity.  The SDA does not provide any evidence and does not address this limb of the modern award's objective in any meaningful way.  The blood donation leave proposal, if inserted, would result in an unnecessary overlap of conditions in five modern awards out of a large number more which would change the way a small number of employees in one industry, or in five industries operates in relation to every other industry and occupation in the country which are covered by awards.


Turning to section 134, sub-section (1)(h) and the likely impact of any exercise of modern award powers on employment growth, inflation and sustainable performance and competitiveness of the national economy, we say that this limb requires the Commission to consider the impact of the exercise of modern award powers on the broader macro-economic conditions in the Australian economy.  We say that paragraph 6.8.4 of our written submissions of a cumulative effect of proposed blood donor leave if granted, would great at its highest, one day of extra leave per year on top of an already wide ranging system of leave types operating for the benefit of Australian employees.  The SDA do not in our submission meaningfully deal with this limb of the section 134 considerations either.  Finally, can I also make a comment about the SDA's submissions about what is described as the community necessity of donating blood, which appears at paragraphs 80 to 82 of its primary written submissions.  Of course, there is no corresponding legislative requirement for this submission and it does not assist the Full Bench in its task to exercise its modern award powers.


The evidence filed by the SDA in this matter is of extremely limited and narrow probative value in the face of what is an extremely wide ranging application.  It does not provide evidence of all the industries, the subject of the application and it does not provide quantitative or qualitative evidence of the experience of employees in these industries.  It does not allow the Full Bench to determine on an award by award basis that there is a necessity to include blood donor leave as a term which forms part of a fair and relevant minimum safety net of terms and conditions as is required by section 156(6) of the Act.  We submit that the evidence filed by the SDA advances a limited number of propositions.  That is, the self-evidence nature that blood donation is a community benefit, the number of pre modern awards provided for blood donation leave historically where there had been industrial agreement between parties but that's no basis to include that the blood donation leave is necessary to meet the modern award's objective.  A small number of enterprise agreements concerning the operation of large, well known and generally nationwide Australian or multinational businesses, many of which are publically listed or owned by a parent company contain a blood donation leave provision of one form or another.


We also say that it's evidence of a statistically inconclusive number of employees employed pursuant to these large companies' enterprise agreements to say that they are pleased that they are able to donate blood.  Also, statistically - - -


VICE PRESIDENT HATCHER:  Say that again, statistically what?


MR ROUCEK:  Inconclusive number of employees, so it's a small number of employees pursuant to its - - -


VICE PRESIDENT HATCHER:  So how many were necessary?


MR ROUCEK:  How many were necessary to demonstrate this?


VICE PRESIDENT HATCHER:  To be statistically conclusive?  I mean, there's a limit to these things.  I mean, as you say, there was a few common sense propositions about giving blood but I don't know they would have been enhanced by having 100, 200 or 1000 employees.  I think that 13 was quite enough to get the gist of it, wasn't it?


MR ROUCEK:  I think what we say is that there are such few number of affidavits put on that it doesn't properly inform the Commission of the demographical spread of the employees employed under these awards.




MR ROUCEK:  A small number of employees who are employed in workplaces covered by the awards may be able to donate blood because of particular circumstances including the perceived unavailability of donation in some areas outside metropolitan areas, particular caring responsibilities for members of the family or household illnesses, caring responsibilities for children, the need to donate blood on limited medical grounds which are not widespread in general society, and as an employee who seemingly prioritises playing amateur cricket with his local team over donating blood in circumstances where under cross he admitted that he'd donated blood twice outside of working time, once, when driving past and dropped in, and another when he went after work, as well.  That was Mr Smith.


The evidence is not sufficient to demonstrate the need for significant change in the sense contemplated by the Full Bench in the preliminary issues decision.  And we have learned from witnesses who submitted for cross-examination a similarly limited number of propositions.  A small number of employees who work in those large Australian companies who have blood donation leave entitlements in their enterprise agreement believe that their employer has no operational concern in dealing with their absences whilst they donate blood.


Ms Hunter would take any other form of leave for different charitable acts if they were paid, in addition to two other witnesses who I've identified earlier.  Mr Zylstra agreed that it would not be impossible to donate blood on the weekend during school holidays, which occurs four times per year.  Mr Zylstra confirmed his employer previously allowed time off to donate blood but his employer discontinued this practice because it was too difficult to manage for operational reasons.  Mr Zylstra had not fought to donate blood but for the fact that the SDA contacted him about it and it reminded him to donate blood.  I think this goes to the point that if people prioritised it and gave it proper consideration they could probably do it.


Mr Smith stated that blood donation leave would make blood donation more convenient but that he'd previously donated twice outside of work, as I've already mentioned.  And Ms Dale Allen admitted that she has two children who could look after themselves, which would enable her to donate blood at other times.  We do not have affidavit evidence of any employees employed in the Fast Food, Pharmacies, Hair & Beauty, or Models & Mannequins Award.  On any objective measure the SDA has not provided sufficient evidence to demonstrate the need for the substantive change.


I will quickly make some brief submissions about the proposed clause before inviting any question from the Full Bench.  The proposed clause, of course, we rely on our submissions in respect of this but we say that the extension of the clause to part time employees does not make sense in the circumstances those employees are likely to work hours that would enable those persons to properly avail themselves of opportunities to donate blood in the ordinary manner in their spare time.  On the evidence filed in this matter by the SDA, some of which has been provided by the Red Cross, it is clear that the permitted time of the a maximum of two hours may not be enough time to complete travel, registration, collection and recovery scenarios facing employee donors.


The Red Cross provides average donation timings, exclusive of travel, on the following terms.  Whole blood donation average timing is 60 minutes, plasma donation average timing is one and a half hours, platelet donation average timing is two hours.  There is no requirement to visit the closest available location to donate though apparently a number of deponents say that they would do that, or do do that but we can't rely on the fact that all employees will do so.  The SDA state that at paragraph 5.4.1 of their supplementary submissions that the limited number of statements filed in this matter apparently demonstrate that employees will try to find the closest donation but such evidence, as I've said, is of extremely limited probative value.


There is no consideration in this matter directed at whether the leave will accrue although we say it doesn't.  We say that it doesn't but it's not shown in the clause and it's not evident on the ordinary meaning of the words that appear in the clause.  We do not support the concept of blood donation leave or the proposed clause but the provision in its current form does not contain any express ability for an employer to refuse an request and as such it's manifestly unreasonable.  The Commission, in our respectful submission, should not accept the SDA's argument at paragraph 5.4.4 of the reply submissions that the absence of any employer discretion to refuse a request for blood donation leave is resolved by a reading of the proposed provision which relies upon an employee to comply with the provision and to organise the blood donation leave appointment on a day suitable to the employer.  Far too much discretion is vested in the employee to do the right thing.


The submission at the fourth dot point at paragraph 5.4.4 of the SDA's outline of reply submissions that any reading of the word, "shall", in the proposed blood donor leave provisions should be read as, "must", cannot be accepted either.  Such a reading causes doubt and uncertainty in relation to the operation of the proposed provision.  In legislative industrial agreement construction, "shall", is often more properly described as, "will", but neither word has the same effect as, "must", which leave no doubt at all that something has to happen without qualification.  At the fourth dot point at paragraph 5.4.7 of the SDA's reply submissions the SDA concedes that the effect of short absences can be onerous for business.


However the submission that short absences from work due to blood donation leave as shown by the evidence will not necessarily require the hiring of extra staff or would not add an extra burden, which may not be necessary for other leave which requires extended absences from work, cannot be accepted.  And at the fifth point under 5.4.7, the SDA states without qualification that its proposed blood donor leave applies in the same way as compassionate leave and does not accrue from year to year if untaken.  Such a relationship position is not available from the text of the proposed clause.  And for all of those reasons we say that the proposed clause is not sufficient to demonstrate that it meets the modern award's objective and it's quite uncertain in the manner that it operates.  If it pleases the Commission, those are my submissions.


VICE PRESIDENT HATCHER:  Thank you.  Ms Wellard?


MS WELLARD:  I will do my best not to traverse ground that has already been covered.  I rely on the submissions that we filed on 30 June and support the submissions of the other employer parties in relation to the statutory considerations and the deficiencies in the clause.  There are two things that I do want to deal with.  One is in relation to an argument that the SDA puts in other award review proceedings in relation to a material change test, and the second is in relation to the evidence.


With respect to the material change test the SDA advanced that proposition in the penalty rates case.  The SDA advanced a case that there had to be a material change in circumstances pertaining to the operation or effect of the relevant modern award such that it is no longer meeting the modern award's objective.  The Commission rejected that argument on the basis that those words were not in the Act and the importation of such material change in the circumstances test would be reading into the Act or requirement that just simply isn't there.  The SDA take issue with that and have sought a judicial review of the penalty rates decision on that basis.  I don't know what happens to these proceedings if the SDA proceeds in that claim before the Federal Court.  It is one thing for the SDA to advance a test with which they say the employers should meet when they are seeking a variation to an award but not make any submission or lead any evidence or anything in relation to a material change in circumstances when they bring a claim before this Commission.


VICE PRESIDENT HATCHER:  The SDA is entitled to, unless the Federal Court rules otherwise, to advance this claim on the basis of the previous authority of this Commission.


MS WELLARD:  Yes, it is, your Honour, and I make the submission to draw it to this Commission's attention and also to the attention of the SDA.  We, for our part, obviously considered that the Commission got it right in the penalty rates decision and that there is no such material change test, and am hopeful that the Federal Court will see it the same way and that we won't need to come back here with respect to the penalty rates decision or any other decision of this Commission in relation to that issue.


VICE PRESIDENT HATCHER:  There's no disagreement between the parties that we should not follow the penalty rates case decision on the restaurants decision about the material change issue, is there?


MS WELLARD:  It's my submission that it should be followed, your Honour.




MS WELLARD:  And as I understand, the SDA has made no submission on that point, at all.




MS WELLARD:  The next point that I'd like to make is in relation to the evidence.  As has already been noted by my friends there is no evidence in relation to any other industry other than retail before this Commission with respect to the blood donor leave claim.  Not a single employee works in pharmacy.  Of those witnesses who were cross-examined, none of them had ever worked in pharmacy.  There is only evidence from 13 employees, the majority of whom work for very large retailers, and the majority of whom have enterprise agreements in place.


VICE PRESIDENT HATCHER:  What's going to be the relevant difference between a small store and a pharmacy?


MS WELLARD:  A pharmacy may well have one pharmacist behind the counter, dispensing the drugs.  There is often one, perhaps two, pharmacy assistants at the counter.  One has responsibility for checking dosages and the like, working side by side with the pharmacist, and there is one who works the register and is on the floor.  So I think the evidence of Mr Smith, who has just started working at Radio Rentals, was that he works in an environment where there are six employees.  I think that is the closest but still not the same evidence that we have with respect to pharmacy.  The proposition that no additional staff would need to be called to cover the leave is just not made out with respect to pharmacy.


The majority of the witnesses, and this point has already been raised by my friends, are able to give blood outside work hours.  It is more convenient for them to so during work hours.  There is a letter from the Red Cross that has been produced, I think, as part of the submissions or is to be taken as a submission, that suggests that there are a number of pharmacies who have subscribed or participated in a program with the Red Cross where employees do give blood.  We say that is an indication that is not necessary to put a clause in the award in order to facilitate the donation of blood by employees in pharmacy.  There's no evidence before this to the contrary.  The witnesses who have given evidence in this Commission, with no disrespect to them, have not, on the whole, taken steps to see if they could donate blood outside their work time and that may be primarily because they are covered by enterprise agreements by large employees where it is really not an issue.  They have the entitlement, they access the entitlement, and that entitlement was a feature of the bargaining process where the employer had the benefit, presumably, of other productivity gains or as a consequence of being able to provide those sort of entitlements, or perhaps it is just that they are large enough and out of social conscience that that employer is able to do those things.


It is very noble and great that so many of those employees consider donating blood to be a worthwhile community activity.  Again, this has already been pointed out and a number of those employees already participate in other worthwhile community activities and a number of them said that they were unpaid outside work hours.  A number of them also said that if their employer paid for it they would participate in more.  We say that that means that shows that terms like "blood donor leave", "paid blood donor leave", are appropriately negotiated by employees with their employer either through collective bargaining or in consultation with their employer in small businesses where those sorts of things may be accommodated without the need for an enterprise agreement.  On the whole we say that the claim for blood donor leave is not necessary.  It's not fair and it's not relevant.  There is no probative evidence in respect to pharmacy and the claim should be rejected.  Those are our submissions.


VICE PRESIDENT HATCHER:  Thank you.  Ms Imbriano?


MS IMBRIANO:  Thank you, your Honour.  MGA maintains its position as set out in our submission that blood donor leave is not a fair entitlement that ensures a minimum safety net of terms and conditions contained within awards.  However I would just like to make a few key points for my oral submissions and I will keep them brief.  Your Honour, my first point is, yesterday the witnesses that were called, all for two, which were Mr Smith and Mr Zylstra, the others are actually employed by large enterprises.  The witnesses stated that no additional employee is required to cover them for the time it takes them to donate the blood.  For example, Ms Caruso stated she works within a team of eleven.  Your Honour, this is in contrast to the majority of MGA members who only engage sometimes five to ten employees within their enterprise.  We submit that these small businesses in particular would experience extreme difficulty in absorbing these additional costs that would result if the leave was approved.  This has been addressed in paragraphs 21 to 31 of our submission.  In particular, I'd like to say the notion of fairness as contained in section 134, sub-section (1) of the Fair Work Act, suggests the need to finely balance the competing interests and considerations in order to establish a safety net that is reasonable, just and equitable.


Therefore, your Honour, the SDA has stated that the proposed blood donor leave clause is mindful of small businesses however MGA rejects this notion.  Your Honour, unlike large enterprises who appear to not require an additional employee to cover the absent employee, this would not be the case for a small business who do not have a large pool of employees to call on.  To cover the absent employee who's off donating blood an employer for the general retail industry, just to be specific, an employer must engage an employee for a minimum of three hours.  So the employee can't just replace the employer for the two hours it's taking them to donate blood.  The replacement employee must actually work an additional hour to meet the minimum engagement requirement under the general retail industry award.  Your Honour, this has been explained in more detail at paragraph 17 of our submission.  Therefore we say the SDA's material presented does not enable the Commission to properly assess the potential impact of the claim.


I will move onto my second point.  That is in regards to section 134(1)(b) of the Fair Work Act, the need to encourage collective bargaining.  Your Honour, at paragraphs 55 and 56 of the SDA's submission dated 2 May 2017, they say the inclusion of blood donor leave in an award will not be a disincentive to collective bargaining.  Your Honour, currently blood donor leave is actually contained within the Master Grocers Australia and SDA Enterprise Agreement 2014.  Therefore we submit blood donor leave appears to represent an opportunity for the SDA and MGA members to agree on a common and relevant position in the context of an individual workplace.  We submit that to introduce blood donor leave as a uniform entitlement would be to remove the motivation of employees to bargain for the entitlement.  Accordingly - - -


VICE PRESIDENT HATCHER:  I must say, I find it very difficult to believe that the issue of blood donor leave will have any effect, one way or the other, upon motivations to engage in collective bargaining.


MS IMBRIANO:  Your Honour, our members are of the view that blood donor leave has been something that we can actually bargain for and because it's not contained in the general Retail Industry Award it appears to be an incentive for the employees to agree on the issue.  I respect what you have stated.  I can only put forward the opinions of the members of Master Grocers Australia.




MS IMBRIANO:  I will summarise.  Essentially we encourage the Commission to make a finding to dismiss the SDA's claim and I will leave it there.   Thank you, your Honour, that is all.




MR MILLMAN:  Thank you, your Honour.  Please let me know if you can't hear me.  I'm not familiar with this system as of yet.  With my colleagues I don't intend to repeat anything that's been covered so if I do, I apologise.  I'll try to come down to my submissions as much as possible.  With respect to closing submissions I intend to touch briefly on the historical context, some concerns that the National Retail Association has with the operation of the proposed clause and key elements of the modern awards objective and some comments on the witness evidence.


I will start with the comments on the witness evidence and echo the remarks made by my colleagues with respect to the limited scope of the witness evidence that has been provided.  I will also re-emphasise a lot of my colleagues that of those witnesses who have an entitlement to blood donor leave, they all had that entitlement under an enterprise agreement.  But that being said, the employers in those agreements or who were parties to those agreements, presumably at some part in the bargaining process, weighed up the pros and cons, conducted their own cost benefit analysis and came to the decision of their own accord that they were able to absorb the operational costs of having that kind of leave or that entitlement and therefore voluntarily acceded to the entitlements.  To say that this will be the case when the entitlement is imposed involuntarily upon all employers across the nation is to compare apples with oranges, rather than apples with apples.


With regard to the pre modern incidence of blood donor leave we re-emphasise the point made in our submissions as filed on 30 June that the material provided by the SGA


demonstrates that blood donor leave did not, in the pre modern system, apply uniformly across the industries to which the proposed determinations would extend to the entitlement.


Physically, the SDA provided submissions with respect to the jurisdictions of New South Wales, Queensland, Victoria and South Australia.  And so tellingly, Tasmania, Western Australia and the territories were absent from that.  And in those jurisdictions that were examined the entitlement appear sporadically in the retail, fast food and pharmacy sectors, and so far as I can tell although I stand to be corrected, not at all in the modelling and mannequins or hair and beauty sectors.  So to that extent we say that where the SDA says it was a minimum entitlement in the past, we say it may have been in some jurisdictions in some industries but certainly not all jurisdictions and not all industries that are proposed to be covered and therefore it introduces an unknown element into those industries.


With respect to the operation of the blood donor provision itself our primary concern is that as stated by my colleagues there appears to be an absolute right by the employee to exercise the right to the leave.  Now we notice that the SDA has submitted that the employer has discretion as to when the leave may be taken and they refused to pay for the absence if evidence of attendance at the blood collection centre is not provided.  All well and good, we say, but at the end of the day the employer has no entitlement or no right to refuse the absence in and of itself.  And we say that when the leave is to be taken for a particular purpose we say that this should be a key element of any such entitlement.  If the leave is to be for a particular purpose, if the employer reasonably believes that the leave will not be taken for that purpose or the purpose will not be discharged, as it were, there ought to be that right for refusal.


The notion of a particular purpose then ties into the discriminatory elements or protected attribute elements that we commenced referring to at paragraph 198 of our written submissions, that being that the particular purpose cannot be discharged by particular individuals who possess particular protected attributes.  Those attributes are protected under both the Fair Work Act and other anti-discrimination legislation.  To that extent we say that there is an element of uncertainty insofar as whether the employer can refuse the leave if they believe that the purpose cannot be discharged, and where the belief that the purpose cannot be discharged arises out of one of the employee's possession or one of those attributes, would the employer be protected, and we suggest it would not be the case even if they had that entitlement.


We then say that this goes to the notion of what is fair and relevant in the broader context of the modern awards objective.  Is it fair as between the employer and the employee, for the employee to have an absolute right to be absent from work for what is ostensibly a particular purpose, even when that particular purpose cannot be discharged and is it fair as between the employee and other employees for that employee to be able to be absent from work even when they cannot discharge the purpose of the leave?  Or to clarify that there will be a number of employees who cannot discharge the purpose of the leave and a number of employees who can, and in the general sense of fairness is it fair as between those classes of employees.


My colleagues have dealt with the notion of, or whether or not annual leave will be suitable alternatives to blood donor leave so I don't propose to harp on about that much further.  But I will suggest that with respect to paragraph 6.2 of the SDA's submissions in reply that the NRA sees no distinction between the issues raised by SDA as being barriers to the use of annual leave for the donation of blood and the use of blood donor leave, namely the matter of timing which in both circumstances is by consent, the matter of refusal, annual leave cannot be unreasonably refused - as we say, blood donor leave does not appear to be able to be refused at all.  Disputes may arise where the employer may refuse to grant annual leave due to operational requirements, again, blood donor leave or the timing of the taking of the blood donor leave may be varied according to operational requirements, and the timing for the donating(sic) of blood donor leave may depend on personal circumstances – again, the need to engage in consultation with the employer around this point would mitigate that.


The SDA also made a submission as to the consultative process as between the employer and the employee.  We submit that's certainly with respect to retail there are sufficient flexibility arrangements that if consultation were to be engaged in between the employer and the employee the employee may well be able to donate blood without having to have a completely separate entitlement to blood donor leave, for example, such as time off in lieu or just negotiating flexible start and ending periods for four times a year.  The need to engage in a dialogue is common in all aspects of the blood donor leave claim and to that extent there can be some kind of mutual agreement reached by mutual consultation then the need to vary the award for an entitlement seems to be superfluous.


I'd like to touch on the notion of the relevance as advanced by the SDA, who in their submission at paragraph 8.1 – sorry, that's their submission in rely, they refer to the Full Bench and the Four Yearly Review of Modern Awards, the Fire Fighting Industry Award 2010, and that's 2016 FWCFB 8025.  And therein the cite the statements that the word, "relevant", is intended to convey that a modern award should be suited to contemporary circumstances.  We respectfully submit that comparing the blood donor leave application and the application in the Fire Fighting Industry Award case is again like comparing apples and oranges.  The Firefighting Award case considered whether provision should be made in the award to allow for part time employment of firefighters in public employment.  Part time employment is provided for in almost every modern award.  The decision in that case had regard to such matters as the upwards trend in part time employments, for example the paragraphs in 42 to 50 of the decision.  The decision also noted that only six modern awards did not include or provide for part time employment as they related to industries where extended periods of time away from home or the nature of work, such as working at sea, make part time working conditions impractical – see that decision at paragraphs 63 to 64.


In that case the contemporary circumstance was the increasing trend in part time work and the societal expectation of the availability of part time work as prompted by the general availability of such work, other industries under the modern awards, and see that decision at paragraph 206.  This application however is based on more or less the polar opposites.  It is not based on any general societal increase in blood donation or societal expectation that blood donor leave should be generally available.  If the variation as proposed is granted these five awards will be the only modern awards to contain such provision.  And in direct contrast to the Fire Fighter Award case this application is not brought about by an upwards trend in blood donations.  And further, the contemporary circumstance considered in the Firefighters Award included a substantially constant factor, the inclusion of part time provisions almost like all other modern awards.


The contemporary circumstance that the SDA asks the Commission to consider in this application is by its nature unstable and fluctuating.  If we were to take the proposition that the contemporary circumstance by reference to which modern awards should be varied and may wax and wane to its logical conclusion, the modern awards could theoretically be liable to variation on every change in circumstance, every natural distaste, every charity drive, every charitable shortfall.  This would introduce instability and render the award system so dynamic as to be valueless.  We therefore submit that there is no contemporary circumstances contemplated in the Firefighters Award case which exists to give relevance to the entitlement that is sought by the SDA.  We submit that the small number of individuals who it has been submitted will genuinely available themselves of blood donor leave is so small that it does not meet the requirement of relevance.


The SDA has submitted at paragraph 75 of their submissions filed on 2 May, that the take up rate of blood donor leave would be much less than 3.9 per cent.  The interpretation that we submit ought to be taken from this information is that the entitlement as proposed is relevant to less than 3.9 per cent of workers.  The corollary of that is that for the remaining 96.1 per cent or more, the entitlement thus proposed is irrelevant.  We submit that in order for a minimum safety net entitlement to be relevant there must be some kind of critical mass of workers affected in the industries who will be able to benefit from it.  We therefore submit that as the entitlement as proposed would be relevant to so few workers it cannot be irrelevant to minimum safety net entitlements.


As to the concept of the safety net we not that the proposed entitlement – or one of our issues with the entitlement is that the award system is intended to be a minimum safety net.  There's an emphasis to be placed on minimum.  Elements of this concept are quite clear in terms of matters such as sick leave, carer's leave, compassionate leave, bereavement leave, and jury service leave.  These are all forms of leave which are designed to catch those more or less unexpected contingencies in a worker's life which, without protection, could play havoc with their employment.  Blood donor leave, on the other hand, does not catch any unexpected contingency.  It accommodates a voluntary discretionary pre-planned action by the employee which may not necessarily need to impede upon their employment, and indeed it was the evidence of numerous witnesses that it was possible that they need not exercise an entitlement to blood donor leave.  It does not protect the employee from repercussions due to circumstances beyond their control.  To that extent we aver that the entitlement as proposed does not form part of any safety net but instead takes the award system out of the realm of providing a minimum safety net and instead bestowing discretionary benefits.  Consequently we consider that the proposed variation goes beyond what is contemplated by the modern award objective.


The notion of what may constitute abuse of the clause has in the SDA's submission been dealt with by the requirement to provide evidence on attendance at a blood collection centre.  And that's all very well and good, the only abuse is the abuse of the right to be paid.  Our primary concern as previously stated was abuse of the right to be absent.  If there is no discretion on the employer to regulate whether or not the absence may be taken then the matte may well be subject to abuse insofar as an employer would be entitled to take a no questions asked, two hour leave of absence from work which in the terms of the clause would basically be an early knock off, four times a year.  Now given that there is no requirement in the terms of the proposed variation to say that there is to be a specific gap or interval between the taking of blood donor leave it is not beyond the realm of possibility that, for example in recent weeks, we may have seen a spate of blood donor leave taken on the evening of an Origin game, for those of you who follow it.  Now there's, I grant, a hypothetical situation but given that we are dealing with an entitlement that has not been included in awards for at least seven years, if not 18 in some circumstances, hypotheticals are something that we do have to consider.


Finally, I want to turn to the notion of the efficient and productive performance of work as contemplated by the modern award's objective.  Several of the witnesses for the SDA conceded that it was possible, albeit difficult, for them to donate blood outside of work.  The corollary of that is that if they were to donate blood within work time it would be unnecessary.  They could donate blood outside of work time.  But we suggest to the Commission that taking unnecessary action is inefficiency in a nutshell and to that end we submit that the witness evidence indicates that an entitlement to blood donor leave will reduce the efficient performance at work as it will result in unnecessary use of the entitlement when alternatives are available.


And finally we turn to the final note on the witness evidence as a whole and we echo the concerns of our colleagues in that the SDA submits the proposed variation would operate on the basis of the evidence provided.  The SDA has tendered evidence of 13 individuals operating in the relevant sectors in industries covered by either enterprise agreement where they have the entitlement to blood donor leave, or covered by awards where they do not.  Where they have the blood donor leave entitlement as said before, their employer has already acceded to the operational detriments that may arise from that.  The SDA has tendered this evidence purporting it to be indicative of the sector as a whole.  We note that the Commission has made comment of this with respect to my colleague's submission previously, however we do raise issue with the notion that 14 individuals or 13 individual and saying that these individuals are representative of all 1.2 million, approximately, workers in the retail sector, to say nothing of the other sectors affected by the proposed variation is unsustainable, although we note that this is a matter for the Commission's discretion in that regard.  And if the Commission has questions, those are our submissions.


VICE PRESIDENT HATCHER:  Thank you, Mr Millman.  Mr Moretta, briefly reply?


MR MORETTA:  Your Honour, I think a lot of the responses really come to a drafting exercise than actually fully responding to the substantive issues that we've raised, if I might say that at the outset.  We rest on our submissions.


COMMISSIONER SPENCER:  You put reply submissions in?


MR MORETTA:  We did.  We put reply submissions into many of the matters that were discussed today and I think we've provided that to the Commission and there's nothing more to add.




VICE PRESIDENT HATCHER:  All right, thank you.  I thank the parties for their submissions and the Full Bench will reserve its decision.

ADJOURNED INDEFINITELY                                                         [12.35 PM]



EXHIBIT #15 DOCUMENT HEADED, "AUSTRALIAN RED CROSS BLOOD SERVICE, DONATE BLOOD TODAY."............................................................................. PN909