TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOOLEY
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
AM2015/1 - Family and domestic violence leave clause
2.03 PM, THURSDAY, 19 OCTOBER 2017
JUSTICE ROSS: Could I have the appearances please?
MS BURKE: Good afternoon, members of the Full Bench, Burke for the ACTU.
JUSTICE ROSS: Thanks, Ms Burke.
MR B FERGUSON: If the Commission pleases, my name is Ferguson, initial B, for the Australian Industry Group and with me at the Bar table is Ms Bhatt, initial R.
JUSTICE ROSS: Thank you.
MR N WARD: Your Honour, Ward, initial N, I appear for the Australian Chamber of Commerce & Industry, Australian Business Industrial of the New South Wales Business Chamber and I also appear today for the Pharmacy Guild of Australia.
JUSTICE ROSS: Thanks, Mr Ward.
MR G JOHNSTON: Commission please, Johnston is my name, initial G, for the Australian Meat Industry Council.
JUSTICE ROSS: Thanks, Mr Johnston. In Melbourne.
MS L McBRIDE: McBride, L, for the CPSU.
JUSTICE ROSS: Thank you, Ms McBride. We were asked to provide a link to Canberra but I don't think there's anybody there at the moment. I think there would have been for Nat Road. Does anyone know anything about - - -
MR FERGUSON: No, sorry.
JUSTICE ROSS: Right. I wanted to draw your attention to a couple of matters before calling on - I'm assuming we'll be calling on Ms Burke. Yes, right. The first is - well a short time ago we released a statement, the reference is 2017 FWCFB 5426. It begins by saying:
This statement seeks to put the current proceedings into context.
I think each of you have a copy of it as well. That's simply to set out the background in the event that there was somebody here who hadn't been involved previously. I wanted to draw your attention to paragraph 14 where we note that:
The unanimous position of the parties appears to be that the Commission does not have jurisdiction to vary modern awards to enable employees to access personal carers leave for the purpose of taking family and domestic violence leave.
Given the views of the parties, we wanted to let you know that if we were to form a contrary view to the view that's put, then we would provide you with an opportunity to say what you wish to say and what follows from that. That's a long way of saying you don't need to, in your oral submissions, take us to the question of extending the NES. In the event there is any change in that, we will let you know.
The second matter is a statement I issued earlier today which I think all of the parties here are well familiar with and that sets out the outcome of two conferences that have been held of all of the parties that are represented here today. Now, while of course it is a matter for each party as they make their submissions, you might take into account the fact that a number of matters no longer appear to be in contention and the issue of central contention, if you like, is the entitlement to unpaid leave, and that matter is dealt with at paragraph 2 to the attachment of the statement. The statement reference for the record is 2017 FWC 5417.
Just in relation to the statement, can I raise the question of confidentiality? That is, I don't mean that in a broad sense. I mean in relation to clause 5 of the model clause attached to the statement. Have the parties had an opportunity to consider how they want to proceed in relation to that? There are a couple of options. Following from the conference yesterday afternoon, what you see there broadly reflects what was discussed between the parties. We had also given consideration to a further conference in relation to that issue, confidentiality, at the close of the ACTU's submissions this afternoon. Is that still what is proposed?
MS BURKE: Yes, your honour, we've had brief discussions about that and what's proposed is that I'll address what I say are the relevant principles that should guide the content of any confidentiality clause. I won't address the jurisdictional question which I understand is still pressed by at least my learned friend, Mr Ward. I won't address that this afternoon, but should that matter be satisfactorily resolved at the conference, there will be no need to do so. If not, I can address that tomorrow morning.
JUSTICE ROSS: Okay.
MR FERGUSON: Yes, your Honour, we agree with that course of action in that we should proceed into a conference.
JUSTICE ROSS: Are you content with that, Mr Ward?
MR WARD: Yes, your Honour.
JUSTICE ROSS: We are also seeking to put together a document that might assist the discussion. I wouldn't get too existed. It's not proposing a solution. It's rather in table form dealing with how the issue is addressed in a range of other settings and that might provide us with some inspiration when we come to frame a clause. Ms Burke.
MS BURKE: Thank you. I would like to make some introductory comments concerning the need for unpaid leave and the guiding principles that, in my submission, should inform the content of any clause. Then I intend to address the four outstanding contested matters in terms of the content of the clause and they are the quantum of leave, who can access the entitlement, and that covers whether casual employees and part-time employees, the questions of accrual, qualification and accumulation. The third issue is the interaction with other forms of leave, and the fourth issue is confidentiality.
JUSTICE ROSS: Just before you go to those, I should have mentioned this earlier, but in reading the submissions there, it seems to be common ground that if contrary to your argument that it's per occasion, if one was to go to a quantum, then it seems to be the position from the submissions that if a quantum is determined then it ought not accrue is one issue that is not in contest. The second is that section 22 would govern the service issue.
MS BURKE: My understanding is that there is a unity position on continuity of service that section 22 applies in that way. So that's not in issue.
JUSTICE ROSS: Yes, so there's continuity. It doesn't break continuity, but it doesn't count as service for the purpose of leave.
MS BURKE: That's right.
JUSTICE ROSS: Thank you.
MS BURKE: I'm sorry, in regard to your other comment about accrual, yes, my understanding is also that accrual issues don't arise as long as the entitlement is available in full at the start of the year, if there is a quantum-based entitlement rather than a per occasion entitlement.
JUSTICE ROSS: Yes. No, I follow. Thanks, Ms Burke.
MS BURKE: The ACTU relies on its written submissions in respect of whether or not there should be an entitlement to unpaid leave at all in modern awards. But I would just like to outline in brief form what we say are the relevant matters, the matters relevant to that issue. The starting point is that the Full Bench has formed a preliminary view that it's necessary to make provision for unpaid family and domestic violence leave in modern awards and this followed, of course, the ACTU's application for paid family and domestic violence leave. While the ACTU maintains that paid leave is a necessary part of the safety net, we of course acknowledge the preliminary views of the Full Bench.
If the Fair Work Commission is not minded to provide for paid leave in modern awards, then there should be an entitlement to unpaid leave for employees affected by family and domestic violence. The ACTU relies on the key findings or what I say are the key findings of the majority Full Bench in support of an entitlement to unpaid leave. They are, first, that family and domestic violence is a significant problem in the community and for individuals which has a real and tangible impact on employees and employers in the workplace.
Two, that the circumstances faced by employees who experience family and domestic violence requires a special response. Three, that existing entitlements are insufficient to meet all of the circumstances faced by employees who are experiencing family and domestic violence. As a corollary of that, that existing remedies such as rights to sue for unfair dismissal and adverse action are insufficient to protect employees from adverse workplace outcomes as a result of their experience of family and domestic violence.
Finally, that for some employees affected by family and domestic violence, resignation is the only option and the provision of unpaid leave would mean employees would not have to make this choice. In my respectful submission, the findings of the Full Bench in the regard that I have just mentioned are a solid foundation on which to construct a workplace right to family and domestic violence leave.
The following are the guiding principles that, in my submission, should inform the content or the assessment of any proposed content of any clause. First, it's that family and domestic violence is not a reward for service. It's rather an authorised absence from work in specific and limited circumstances. The second is that the need for family and domestic violence leave doesn't arise from an employee experiencing family and domestic violence, but rather to enable affected employees to take necessary steps to ensure their safety and well-being without putting their employment at risk.
The third is that the current safety net does not adequately provide for affected employees. The fourth is that family and domestic violence overwhelmingly affects women and I'll just refer the Full Bench to the report of Professor Cox which in this regard at least was uncontested which is that one in four women in Australia compared to one in 12 men have experience violence by an intimate partner. That includes cohabitating and non-cohabitating partners - sorry, non-cohabitating interrelationships - since the age of 15.
JUSTICE ROSS: Do you have the reference for that?
MS BURKE: I do. It's at 7.2 of Professor Cox's report and 7.1 explains the definition of "intimate partner" which is an amalgam of ABS categories. The impact of family and domestic violence is more severe on women than on men with women more likely to sustain serious injury and to fear for their lives. In fact, intimate partner violence is the leading contributor to death, disability and ill-health in Australian women aged between 15 and 24, and I'll refer the Full Bench to the ACTU's final submissions dated 20 November at paragraphs 125 to 126.
JUSTICE ROSS: Paragraphs 1 - - -
MS BURKE: 125 to 126.
JUSTICE ROSS: Thank you.
MS BURKE: The final point is that the majority of award covered employees are women and the majority, 51 per cent, of award covered women are casual employees. In fact, only 25 per cent of award covered employees are employed on a permanent and full-time basis. The source for that is the ABS employee earnings and hours statistics there cited in the ACTU's submissions at 138 and 144. To clarify, those are the submissions dated 28 November. So in my submission, these principles along with the statutory framework of course are the benchmark against which the content of any clause should be measured.
Turning now to the question of quantum. The issues around quantum as I understand it are firstly, whether or not leave should be granted on a per occasion basis. Second, if not what quantum of leave per annum should be available and following on from that, accrual accumulation issues and the application of the entitlement to part-time and casual employees. The ACTU's primary submission or position on this is that leave should be available on a per occasion basis, and this is consistent with the ACTU's original application for 10 days paid leave and thereafter two days of unpaid leave per occasion.
This position is justified by reference to the following matters. Family and domestic violence leave should be available to enable affected employees to take necessary steps to ensure their safety and wellbeing without putting their employment at risk. A person's need for leave in these circumstances can be unpredictable and varied and it is important that there is sufficient flexibility to enable the employee to take time off as they need.
During the hearing last year, the Full Bench heard evidence from a number of witnesses concerning the logistical challenges quite separate from the obvious trauma of seeking support for family and domestic violence. Many support services, particularly courts but also counsellors, refuges and schools only operate during business hours. Taking legal proceedings as an example, it can be very difficult to predict and plan for the length of time needed for court hearings, and this issue was at the heart of the unfair dismissal proceeding that this Commission heard last year in King v Lee & Lyons  FWC 1664.
In that case, Ms King was required to attend hearings regarding criminal charges against her former partner arising out of domestic violence in April, in July and in September of 2015. The September hearing was listed for 9.30 in the morning but the night before Ms King was advised by her solicitor that the matter was unlikely to be heard before 12, but she'd only been granted permission by her employer to attend court until 11. That case is addressed further in the ACTU's final submissions at paragraph 108 and following, but for present purposes I think it provides a useful illustration of the real life planning challenges faced by participants in legal proceedings and I expect that's a matter that should come as no surprise to anyone in this room, or on the video link.
Finally, there are comparable provisions in the Fair Work Act that provide for unpaid leave on a per occasion basis, and of particular relevance, in my submission, is the entitlement to unpaid special maternity leave in section 80 of the Act. This applies where a pregnant employee has a pregnancy related illness or loses the baby within 28 days of the due date. There's nothing in section 80 which limits the period of special maternity leave required. In fact, section 80(3)(b) suggests that the period of leave is set by the employee.
Next, paid no safe job leave for pregnant employees in section 81A of the Act applies for the duration of the risk period as defined. That runs for the length of the pregnancy. It could start at any time during the pregnancy. Unpaid carers leave in section 102 of the Act is available for each permissible occasion. Compassionate leave, which is of course available to permanent and casual employees, casual employees on an unpaid basis, in section 104 is available again for each permissible occasion and community service - - -
JUSTICE ROSS: There's a natural limit.
MS BURKE: Of compassionate leave?
JUSTICE ROSS: Yes.
MS BURKE: Unless you're very unlucky, yes.
JUSTICE ROSS: Yes.
MS BURKE: Community service leave is available to both permanent and casual employees. Again, in section 108. What each of these provisions have in common is that they're responsive to unplanned circumstances, often but not always characterised by a sense of crisis, and they give rise to a need for time away from work. In light of those matters, it's the ACTU's submission that the appropriate expression of unpaid family and domestic violence leave is on a per occasion basis.
If the Full Bench is minded, contrary to these submissions, to provide for a quantum of leave per year the ACTU's position is that 20 days per annum is appropriate. In considering these it's important to bear in mind the following matters. Twenty days will meet the needs of those employees who experience particularly severe and life threatening family and domestic violence and require time away from work to make arrangements for their safety and the safety of their children. The majority of affected employees will not use 20 days per year but it should be available for those whom it is necessary.
The evidence before the Commission is that the uptake rates of family and domestic violence leave, where it's available, including time away from work because of family and domestic violence is low, and so the cost to employers, which is of course - which we of course acknowledge is likely nevertheless to be small. For this reason and taking into account the impact of family and domestic violence on employees, the benefit to employees of a 20 day quantum will outweigh the cost to employers.
The evidence in support of my statement earlier that uptake rates are low include the evidence of Dr Cox and what she said in her report to the Commission is that in the 12 months prior to the survey that she gave evidence about, the personal safety survey, just 2.3 per cent of all women employed in Australia experienced family and domestic violence, and 25 per cent of that in turn took time off work following their most recent physical assault by a cohabitating partner. I'll direct the Commission paragraphs 36 and 37 of the ACTU's submissions dated 28 November.
Also in those submissions at page 56, I won't read it all out but there is a table setting out the uptake rates or the take up rates, more accurately, of family and domestic violence leave provisions that were in evidence before the Commission. By way of example, the Telstra enterprise agreement provides for 10 days paid leave and the evidence was that 22 employees out of 32,000 had taken leave in six months. The average amount of leave taken was 2.3 days. That's more or less consistent with the evidence that is available on this point. We acknowledge there's nothing equivalent to, for example, ABS survey, there's nothing of that scope but what there is suggests the take up rates are not likely to break the bank.
Turning now to the questions of qualification, accumulation and accrual. Leave, whether it's on a per occasion basis of a quantum should be available in full at the start of the year, bearing in mind that the purpose of leave is not to reward employees for service but rather to authorise them to be absent in specific circumstances. For that reason accrual also is not necessary.
There is no justification for a qualification period in this case, and by qualification period I mean you need to be employed for a year before you can access any entitlement. Qualification periods for unpaid leave entitlements with the exception of 12 months paid - sorry, unpaid parental leave, are not an industrial norm found in the Act or otherwise and in my submission, unpaid parental leave is distinguishable in this case, being as it is for a period of 12 or up to 24 months. It's also reasonably predictable in terms of whether or not you'll need it.
For similar reasons, it's the ACTU's position that unpaid family and domestic violence leave should not be apportioned or prorated for part-time employees. There's an additional reason why part-time employees should be able to access family and domestic violence leave on the same basis as full-time employees, and that is the majority of part-time employees in Australia are women and the majority of women aged between 35 and 44 with dependent children in Australia work part-time.
Given the prevalence and the incidents of family and domestic violence women are more likely than men to need family and domestic violence leave and by reducing part-time employees leave allowance there's a risk that the intended benefit of the entitlement will be eroded.
Turning now to access for casual employees. Unpaid family and domestic violence leave should be available to casual employees regardless of whether they're long term casuals or otherwise, and again this is because this leave is a form of authorised absence from work. There is no reason why casual employees would be immune from this need, and in fact because of the nature of casual employment a casual employee who is not available to work is always at risk of not being rostered on for more shifts.
It is inconsistent, in my submission, with the concept of a safety net that casual employees should have to choose between ongoing employment and personal safety, and perhaps in acknowledgement of this many unpaid leave entitlements are available to casual employees under the Act, and they include unpaid no safe job leave at section 82A, unpaid carer's leave in section 102, compassionate leave in section 104, noting the comments of the president earlier, and community service leave in section 108.
The Australian Industry Group rely on the casual loading as justification for excluding casual employees from unpaid family and domestic violence leave, but the casual loading compensates casual employees for paid leave and other entitlements with a monetary value. There's a series of citations to that effect. Perhaps most usefully I will direct the Full Bench to the annual wage review 2010 FWAFB 4000 at 398, which adopts - - -
JUSTICE ROSS: But in any event it's difficult to see how on the face of it the casual loading encompasses a form of leave that wasn't in existence when the loading was set.
MS BURKE: Yes, that's right. In my submission it's not relevant to the question of unpaid leave or specifically this form of unpaid leave. Again it's relevant that 51 per cent of award covered women are employed on a casual basis.
Finally I note that the Victorian Royal Commission into domestic violence recommended that the Victorian Government through COAG encouraged the Commonwealth Government to provide relevantly for unpaid family and domestic violence leave for casual employees, and there was no restriction on the type of casual employee that was the subject of the Commission's recommendation whether long term or otherwise, and that recommendation is 191 of the Royal Commission's report.
My next topic is interaction with other forms of leave. It's the ACTU's position that there should be no requirement that employees use up their paid leave entitlements where they're available and applicable instead of unpaid family and domestic violence leave. The employer parties haven't offered any justification to the contrary, and it's difficult to see why that it is necessary for the following reasons.
JUSTICE ROSS: I thought that there was a reference to the fact that that's the way the unpaid carer's leave provision operates in the Act.
MS BURKE: I will address that.
JUSTICE ROSS: All right.
MS BURKE: But as a start I just want to note this isn't really an issue for about half of eligible employees if the entitlement extends to casual employees of course because 45 per cent of award covered employees are casuals, so they have no paid leave entitlements at all.
JUSTICE ROSS: So it would have a differential effect if the clause applied to casuals?
MS BURKE: Yes.
JUSTICE ROSS: Yes, all right.
MS BURKE: And second based on the evidence that was before the Full Bench during the hearing last year financial stability is crucial to recovery from a family and domestic violence. So employees with paid leave entitlements, particularly award covered employees who are among the lowest paid workers in Australia, are unlikely to take unpaid leave if paid leave is available. This all goes to the point that this is not, in my submission, really an issue that warrants resolution in the form of a clause. But should I not persuade the Full Bench about that in my submission requiring employees to use up their paid leave entitlements will of course go on to reduce their annual and personal leave, meaning that women in particular will have less access than their male counterparts to leave for illness and leisure.
As the Full Bench of the then AIRC noted in the 2005 parental leave test case women are overwhelmingly more likely than men to be the primary carers of children which has the effect of depleting their paid leave entitlements. I will refer the Commission there to the citation which is  143 IR 245 at paragraphs 62 to 65.
Requiring women to access their paid leave entitlements for the purposes of attending to matters relating to their experience of family domestic violence will further erode women's rights in this regard. Comparable unpaid leave provisions in the Act do not require employees to take paid leave even where it is available. Now I note section 103 requires an employee to take paid leave rather than unpaid carer's leave where it's available. I have expressed that in a very backwards Alice in Wonderland sort of way, but hopefully my point was understood.
In my submission the better comparator is section 80, unpaid special maternity leave, and that is because by contrast personal carer's leave and unpaid carer's leave are clearly and expressly linked in the Act, you have to use up your paid leave entitlements before you can access unpaid leave, but section 80 which provides for leave due to unexpected circumstances or illness relating to a pregnancy says at the note to section 80(1):
If a female employee has an entitlement to paid personal carer's leave she may take that leave instead of taking unpaid special maternity leave under this section.
In my submission section 80 is the closes parallel in the Act to unpaid family and domestic violence leave.
Finally requiring an employee to access paid leave entitlements is likely to cause confusion which of course tells against the need for a simple and easy to understand modern award system, and this is because the effect of family and domestic violence on an employee cannot easily be compartmentalised between personal injury or illness on one hand and non-personal injury matters on the other. For example a woman assaulted by her partner may seek access to a refuge and obtain medical attention while she's there. There would be some confusion there as to whether she is taking personal carer's leave and entitled to it or family and domestic violence leave.
It is more appropriate, in my respectful submission, that family and domestic violence leave be treated as a standalone entitlement. Where an employee is eligible for more than one type of leave she or he can choose the most appropriate leave for their personal circumstances. I am beating my own estimate which could be a lawyer's first.
JUSTICE ROSS: It certainly would be.
MS BURKE: I think I told my learned friends I would be an hour and all I have left to address is confidentiality and half of that would relate to the jurisdictional objection which has been parked.
The ACTU's position is that confidentiality is necessary for employees to use a family and domestic violence leave clause. Confidentiality doesn't mean don't tell anyone, it's about the controlled disclosure of sensitive information. In this context it has two limbs. First, employers should not disclose the fact of an employee's experience of family and domestic violence - sorry, to external parties without the consent of the employee, and that's addressed by proposed 5.1(i).
Second, employers should only disclose an employee's experience of family and domestic violence within the organisation on an operational need to know basis. The information which is subject to the confidentiality clause should not be limited to the evidence provided by an employee to her employer in support of taking leave, but it should extend to the fact of the taking of leave at all. This is important because not all employers would require evidence under the clause and the concerns around safety and privacy apply to employees experiencing family and domestic violence, not just the evidence provided in support of leave if required.
At the heart of the issue of confidentiality, is the need to protect employees' safety and this distinguishes family and domestic violence leave from the privacy concerns which may and often do arise with the disclosure of information about employees' health for the purposes of personal leave. The protections provided under the Privacy Act, the Commonwealth Privacy Act, are insufficient, in my submission, because they don't extend to employee records and because small businesses are exempt. While many employers handle confidential information with tact and sensitivity, not all do as evidenced by the report of the Office of the Privacy Commissioner cited in the ACTU submissions dated 2 October at paragraph 77.
There was considerable evidence led on necessity during the hearing and this is set out in detail in the ACTU submissions dated 28 November at paragraphs 191 and 192 and in the submissions dated 2 October this year at 84 to 86 and in the table at 88 and because it's extensive, I won't repeat that evidence, but I will add this. In its chapter on family and domestic violence and the workplace, the Victorian Royal Commission report said the following: "In implementing family and domestic violence leave, the Victorian Government should ensure that employees' confidentiality is maintained as far as possible." That's at chapter 37, page 90.
This recommendation was based on the extensive evidence that the Royal Commission received during the life of the Commission and these findings, in my submission, bolster the ACTU's evidence in this regard. The employer parties did not cross-examine any witness about their evidence as to the need for confidentiality during the hearing and was not able to produce a single employer from their ranks to support the assertion that confidentiality is not necessary to enable the clause to operate in a practical way. As a result, the state of the evidence is such that there is a wealth of material from which to conclude that confidentiality is necessary and there is no evidence at all to the contrary. On that basis, it would be unsafe, in my respectful submission, to conclude that confidentiality is unworkable, impractical, or unnecessary within the meaning of section 142 of the Act.
I am, of course, now straying into the jurisdictional objection, so I'll walk back from that. Unless there are any questions, those are my submissions.
JUSTICE ROSS: Can I take you to your submissions of 1 September 2017 and paragraph 29?
MS BURKE: Excuse me. There are so many. Yes.
JUSTICE ROSS: The proposition is there that the model term should include a provision to the effect that leave may be taken in consecutive or single days or as a portion of a day. If leave were granted on a per occasion basis, I am not sure why you would need that sort of specificity, and even if leave was granted contrary to your submission on a capped basis per annum of a certain number of days, why would you need to specify consecutive or single days or as a portion of a day? Because, I mean, when you look at the NES provisions that deal with entitlements to unpaid leave, they don't mention a portion of a day or whether it's consecutive or single days. Why would that be necessary?
MS BURKE: Excuse me, your Honour.
JUSTICE ROSS: That's all right.
MS BURKE: It was simply just for the avoidance of doubt and, of course, not everybody will need a whole day. They may only need a couple of hours and given that it's unpaid leave, we wanted to avoid a situation where somebody only needs a couple of hours off but is required to take the whole day and therefore loses a portion of pay that might otherwise get.
JUSTICE ROSS: The other proposition is at paragraph 31.
MS BURKE: Yes.
JUSTICE ROSS: This is the proposition that the leave should not be available to a perpetrator of family violence and domestic violence and that is the consistent position across all the parties. So I suppose it's a question to both you and for the other parties to consider and that is on the clause attached to the statement issued earlier this morning whether there needs to be a further note to clause 3 indicating that it is not intended that family and domestic leave be available to the perpetrator of the violence. The alternative is a more elaborate response which would be a separate clause saying that. Bearing in mind, it might be something that you might usefully discuss with the employer parties. It would be better if there was a common position because there is a common position on the issue of principle and that is that it shouldn't be available to the perpetrator and it's really how do we - I mean, assuming we get to the point in the decision process that it could be said in the decision, but that's not necessarily going to control the clause.
MS BURKE: No, I appreciate the point. I mean, in my submission, the definition of family and domestic violence sufficiently excludes perpetrators, but I can understand it being desirable to avoid having a debate in the future about the precise meaning of that term and perhaps we can take that on notice and discuss it during the conference and it may well be a way of removing this from doubt.
JUSTICE ROSS: I think this dealt with AI Group's written submissions and it's a proposition in three of an employee experiencing family and domestic violence and experiencing in that context, you know, it's not inconceivable that a perpetrator could seek leave, but that's plainly - - -
MS BURKE: It's a very post-modern interpretation of experiencing, your Honour.
JUSTICE ROSS: Yes, it's plainly not the desire of any of the parties or the Commission, so it's really a case of - I'm putting it back to you collectively as to how should we deal with that issue. So if you can give that some thought.
MS BURKE: Thank you, yes.
JUSTICE ROSS: Just on 47, I hesitate to raise this because continuity is not an issue of contest between the parties, but just more out of curiosity, I wouldn't put it any higher than that, is the second sentence. Why do you say that terms in modern awards relating to length of service are not permissible terms?
MS BURKE: I might need to take that on notice, your Honour.
JUSTICE ROSS: No, that's fine. It was really only to satisfy my curiosity.
MS BURKE: It might be as simple as it not being in section - - -
JUSTICE ROSS: It's not expressly mentioned in 139(1), that's true.
MS BURKE: I expect that that explains why it's not - why that second sentence is there because section 139(1)(h) refers to leave, leave loading and arrangements for taking leave. So it's not just leave at large, it's quite specific, and for that reason it would be unusual, in my submission, to read into that an ability to include a term that effectively overrode or affected section 22 of the Act.
JUSTICE ROSS: Thank you, Ms Burke.
MS BURKE: Thank you.
JUSTICE ROSS: What would you like to do now?
MR FERGUSON: Proceed into conference, your Honour.
JUSTICE ROSS: What's the - well does the CPSU have anything they wish to add to the ACTU's submissions?
MS McBRIDE: No, I'm fine, thank you.
JUSTICE ROSS: Right. Have you sorted out what the order is tomorrow?
MR FERGUSON: Not officially. We had intended to go first but we had a discussion about that.
JUSTICE ROSS: How do you feel about that, Mr Ward?
MR WARD: I understand my friend's had some issue with his KPIs internally, so I'm going to let him go first.
MR FERGUSON: Always appreciated.
JUSTICE ROSS: Right. So Ai Group, ACCI, AMIC, is that the - and I think the Master Electricians have been involved at least in the conferences, so have NatRoad but - well they're not here so we'll find out if they come tomorrow.
MS BALLARD: Sorry, NatRoad's here.
JUSTICE ROSS: Hello? Hello?
MS BALLARD: Hello, sorry, NatRoad is here in Canberra.
JUSTICE ROSS: Good, thank you. Well, are you content with that order?
MS BALLARD: Yes, your Honour.
JUSTICE ROSS: Right.
MS BURKE: I just wanted to reserve the right of reply if it's necessary tomorrow.
JUSTICE ROSS: Sure, yes. Do you have any idea about the time?
MR FERGUSON: No, I was thinking half an hour, it might be a little bit longer in light of what's been put but not lengthy.
MR WARD: Your Honour, I'll be a good hour.
JUSTICE ROSS: Yes. A good hour or - - -
MR WARD: Sorry, from your perspective - - -
JUSTICE ROSS: We'll be the judge of that.
MR WARD: From your perspective, your Honour, a bad hour, a bad hour.
JUSTICE ROSS: Right. What we might do is adjourn and resume in conference at three, that will enable me to find out where we've gotten to with the material we wanted to provide you, and it might give you an opportunity to have a discussion about the perpetrator question. Can I also raise one other issue for you to think about, Mr Ferguson, given that your submission spends the most time on it. It's this question of the pro rata for part-time, and that also - look, on the face of it doesn't - speaking for myself - make much sense to me because if you have consistent with your submission a number of days and whether it's two, three or some other number, then why is it part-time are getting pro rata of that exactly? It just doesn't - in other forms of leave it's just expressed as days and then sorted out on that basis.
If you can give some thought to that and we'll see - what I'm anxious to do, I suppose, is narrow the range of issues that arise for determination in this broad issue of the entitlement. At the moment it's per occasion or quantum, then if it's quantum, what's the quantum? There's no issue about continuity of service, there's no issue about it counting as service. There's no issue around accrual in the event that it's a cap and there's an issue around whether you have to exhaust other forms of leave first. I just want to see how far it's an issue that you're pressing around the part-timer issue. So if you - - -
MR FERGUSON: We'll consider that.
JUSTICE ROSS: I don't think it's an issue raised by any of the other employer representatives. I think it's with you. The same is true for casual question but I understand what you're - why you're putting what you're putting there but I couldn't follow the other one.
MR FERGUSON: Yes.
JUSTICE ROSS: Right. We will adjourn and I'll be back at 3 o'clock for a conference.
OFF THE RECORD [2.49 PM]