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Fair Work Act 2009                                                    





s.156 - 4 yearly review of modern awards


Four yearly review of modern awards

AM2015/1 - Family and domestic leave clause




11.27 AM, FRIDAY, 20 OCTOBER 2017


Continued from 19/10/17



JUSTICE ROSS:  Just before you get underway, Mr Ferguson, I might just mention a statement.  Just bear with me for a moment. Further to conferences held between the parties that have been party to the previous conferences, yesterday and this morning, we will shortly publish a further statement in relation to this matter which deals with a measure of - a further measure of agreement between the parties in respect of the circumstances in which a period of leave may be less than a day, a note to clause 3 and clause 5 dealing with confidentiality.  The parties have each been provided with a copy of that and we'll shortly publish it on the website.  Mr Ferguson.


MR FERGUSON:  Thank you, your Honour.  Now as the Bench will appreciate the Ai Group has filed a series of written submissions in the course of these proceedings and I of course rely on all of that material, and I don't wish to traverse the detail of that now.  Instead what I intend to do today, besides - well apart from answering any questions from the Bench is just deal or touch upon our overarching and strongly held view that an entitlement to family and domestic violence leave should not be introduced into the award system.  Then to address the contentious matters that are related to the clause that has arisen if you will out of the conferencing process.


In that context I'll note that firstly includes the issue of quantum of leave and that includes if there was to be a cap how much that should be, but it also includes related issues such as well should there be an annual cap or should it be a per occasion entitlement, whether the entitlement should accrue or just be available at the start of each year, and whether the entitlement should be calculated on a pro rata basis for casual and part-time employees.


Secondly, I intend to deal with our contention that casuals should be exempt from the proposed clause and then with the issue around the interaction of the proposed entitlement and paid personal carers leave.  Then finally I just want to touch upon some issues that have arisen out of the statement that has just been issued, your Honour.


So dealing firstly with the issue of whether there should be an entitlement to unpaid leave in the award system, at the relevant sense.  Ai Group maintains our strong opposition to the development of any award derived entitlement to family and domestic violence leave.  Our contentions in this regard have been addressed in detail in our written and oral submissions advanced in the context of the hearing conducted last year, and our submissions that we have advanced following the majority handing down their decision.


Without revisiting all of that I want to refer the Bench to paragraphs 29-54 of our written submission dated 1 October.  I don't intend to take you through all of that information in any detailed way now.  I just - the point I want to make is we there have succinctly set out the basis for our opposition - - -


DEPUTY PRESIDENT GOOLEY:  Sorry, what paragraph was that?


MR FERGUSON:  Sorry, it was 29-54.  As I was going to say, I don't think it necessary to take you through the detail of all of that but I want to make the point that we there quite succinctly set out the basis of our opposition to the proposed entitlement to unpaid leave.


JUSTICE ROSS:  Is it convenient now to ask you some questions about what you set out there?




JUSTICE ROSS:  Can I take you to paragraph 45.  There you say that:


The implementation of an unpaid leave entitlement may have the effect of deterring employers from developing or offering firm specific measures.


Was there evidence about that in the proceeding?


MR FERGUSON:  I must admit I can't recall any evidence about that that I could refer you to, your Honour.  It is advanced - - -


JUSTICE ROSS:  It's advanced as a submission.


MR FERGUSON:  As a submission as to its own logical merit, in the sense that where there is a prescriptive entitlement of some nature, such as unpaid leave, that a party may look at as the regulatory response to that, in our experience and mine obviously with our engagement with members we think there is a very real proposition that employers will look at that and think that is extended and that is what ought to be done, and that is all that ought to be done.  In the context of an environment where we say that employers are otherwise reasonable and compassionate in relation to their treatment of this matter, and there is certainly evidence about that and there is evidence about the fact that people do take diverging approaches to these sorts of issues through policies or through agreements.


We say that - and, you know, we're dealing with something that is yet to happen.  We can only hypothesise, I can't produce evidence of what will happen but when you look at this backdrop of evidence that people are reasonable, it might be concluded that if you seek to regulate this in a prescriptive one size fits all approach, people will do that and that is all they will do. They will think they are doing what is appropriate because it reflects the safety net.




DEPUTY PRESIDENT GOOLEY:  That doesn't reflect our experience of course with unpaid parental leave, because what we've seen over time is people develop policies around parental leave and provide paid parental leave, on top of what was then an existing unpaid entitlement.


MR FERGUSON:  Look, there are some employers that adopt that approach.  I simply make the point here that it's not the case that people are not doing anything at the moment.  They are responding to this, and it is a subject matter that is to some degree different in nature and we would say solicits a compassionate and reasonable response.  But the reality is that we do think that employers will have differing capacities to respond. That's why we say the preferred approach is, and I'll come to this very lightly, is that it be left to the enterprise level.  Yes, your Honour, were there other - - -


JUSTICE ROSS:  Can I take you to paragraph 51.  This is a proposition that the creation of an additional separate form of leave is a matter for the NES not the award system.  Look, speaking for myself the difficulty I have with that proposition is that section 139(1)(h) plainly talks about leave.  If the legislature intended that leave would solely be regulated by the NES, why would they have provided that provision?


MR FERGUSON:  Well, firstly, I think that section enables award provisions about leave and certainly there are award provisions that partially regulate categories of leave that are dealt with in the NES, they provide higher rates of pay and so forth that supplement the NES.  But our view is that awards, what is fair and relevant in the safety net and included in an award, should be considered in light of the statutory safety net and the leave there provided.


Now we don't say that the awards can't enable you to but we say you need to think about the combined effect of the two elements of the safety net, and that you should decline from doing this.  We set out in our previous submissions the extent to which that has been broadly, not completely but broadly consistent with the approach of the Commission to date, certainly in light of the award modernisation process where a number of categories of leave didn't make their way into the award system.


JUSTICE ROSS:  Well - - -


MR FERGUSON:  We set that out and canvassed it and I understand that that was - - -


DEPUTY PRESIDENT GOOLEY:  And was dealt with in the decision.


MR FERGUSON:  We understand that.  We maintain our views and I understand the point but it is a view that this should not be broadly expanded to start introducing new categories of leave, but we don't disagree with the proposition that it could be.


JUSTICE ROSS:  I think, look, certainly any new category of leave has to be justified on its merits having regard to the modern award objective, and be necessary to achieve that objective. I follow that but for myself I can't see why a restrictive meaning should be applied to leave in 139(1)(h), because if it was read to be somehow supplementary or ancillary or related to leave that is provided for in the NES, well of course all of that's dealt with in 55(4).


MR FERGUSON:  I don't read that to say that you can't do this, to be clear.  We say that as a matter of merit in this particular - well, that shouldn't do it.




MR FERGUSON:  Certainly in this context we say that on the material before you, you shouldn't do it.


JUSTICE ROSS:  So it's not a merit - it's not a jurisdiction point, it's a merit point.


MR FERGUSON:  It's not a jurisdiction point.  It is to an extent a rearticulation of the previous point and I appreciate where that lands but it is a view held strongly by the organisation.


JUSTICE ROSS:  Right.  Yes.  Thank you.


MR FERGUSON:  I was going to emphasise without demurring from the breadth of what was put there some of the key propositions; one obviously is the point I've articulated, that we say this is better dealt with at the enterprise level and I won't elaborate further.  We've dealt with that in detail in proceedings and you've heard that before.


I think the one point that I do want to make and raise is that we say that on the material before you and I mean the evidentiary material before you, we say there is an insufficient evidentiary basis for the Full Bench to make a robust assessment of the impact of any new entitlement to domestic violence leave, and that includes any assessment of entitlement to unpaid domestic violence leave.  On the basis of that deficiency in the evidentiary case, we say that the Full Bench should decline to grant any new entitlement, and we note that no new evidence has been advanced that assists in this since the conduct of the proceedings in the previous instance.


That then takes me to the issue of quantum, unless there are any further questions about the overarching position.  In terms of quantum I think probably conveniently the first point is the issue of per occasion versus an annual cap and again we've canvassed these issues in our submissions, in the context of the previous model clauses.  I think a lot of what we say there is still relevant to the clause that has arisen from the conferencing process.  In essence, our concern with quantum, with a per occasion type approach is firstly it raises a problem about what is the occasion.  Is it the incidence of domestic violent that the person's experienced or is it the need of the person that as it arises it gives rise to the entitlement to leave.


I think that's not clear but in either instance, and even if you accept that it's need for example, the risk is that that could amount to an in fact unlimited entitlement.  Because whenever a need arises an entitlement to leave arises.  Now the problem with that of course is in the context of domestic violence it may be ongoing in nature, the need, if you adopt that approach maybe ongoing and as such it's not the same as, for example, other categories of unpaid leave such as compassionate leave where there is to a greater extent a naturally limiting circumstance, which prevents it being unlimited in nature.  So for those sorts of reasons we strongly view that the better approach is to set an annual cap on the amount of leave that can be taken.


That then brings me to questions around what is or should be the quantum of an annual cap.  We've addressed that issue in our submissions of 30 August 2017 at paragraphs 10-16 and more recently and in greater detail in our reply submissions, dated 1 October 2017 at paragraphs 57-75.  In short, we've proposed a cap of two days per year.  I think ACCI's been slightly higher or braver in suggesting two to three days, and in support of the two day cap we've pointed to the provisions of the Fair Work Act dealing with unpaid carers leave and compassionate leave, and noting the two days figure there.


Now I must concede that's obviously per occasion so it's a subtle - well it is a different proposition but we've obviously pushed our point to two and the logic there.  Even more importantly at paragraphs 12-15 we've pointed to, I think, a partially ACTU funded study conducted by the University of New South Wales, which dealt with a survey of employers in the industries of public administration and safety and being local state government, and the health and social assistance industry.  Which we say suggests that the average amount of unpaid leave, domestic violence leave, is just 19 hours per year.


Now I must say that we don't point to that evidence as saying - or to that material suggesting that that is necessarily a robust piece of material that enables you or justifies you granting the entitlement.  It's just it seems to us that that's the best that you have, insufficient as it is, and that suggests that well, if you do need - if people do need to take unpaid leave it's two to three days in nature, it's certainly not any quantum higher than that or not 20 days as proposed by the union.


JUSTICE ROSS:  It's an average though, isn't it?


MR FERGUSON:  I think it talks about - it is, so - - -


JUSTICE ROSS:  Do they provide information about the median or the range?


MR FERGUSON:  Yes.  Page 7 of that document contains - - -


JUSTICE ROSS:  What's the exhibit number?


MR FERGUSON:  The document is titled "Implementation of domestic violence clauses and employer perspective".


JUSTICE ROSS:  Yes, thank you.


MR FERGUSON:  Page 7 and over the page, page 8, deals with these sorts of issues.




MR FERGUSON:  Deals with paid and unpaid.  In relation to unpaid leave it provides that the average amount of unpaid leave reported in the past 12 months was 198 hours and ranged from one to 912 hours.




MR FERGUSON:  That can't be right, your Honour, sorry I withdraw that.


JUSTICE ROSS:  No, no, that's fine.  Is that over the year or what?


MR FERGUSON:  Yes.  That document provides in relation to unpaid leave.  It was in relation to a survey of certain employees where the average amount of unpaid leave reported in the past 12 months was 198 hours and ranged from one to 912 hours.  However, his large number was influence by one extreme outlier where a respondent reported 912 hours.




MR FERGUSON:  Of unpaid leave.  The removal of this extreme case lowered the average time of unpaid leave to 19 hours, ranging from one to 65 hours.  So it does provide some guide, so clearly there are a range of experience.


JUSTICE ROSS:  Ranging from what?


MR FERGUSON:  One to 65 hours.


JUSTICE ROSS:  So if you exclude the outlier the range is one to 65?




JUSTICE ROSS:  That's unpaid leave.


MR FERGUSON:  Unpaid leave.


JUSTICE ROSS:  They've done something for paid leave as well.


MR FERGUSON:  They have done something for paid leave as well.




MR FERGUSON:  But as I said we don't rely on this and say this is necessarily an appropriate piece of evidence to grant a new entitlement, but it provides some benefit of sense (indistinct) you have.


JUSTICE ROSS:  Was it - just refresh my memory.  Was it put in through a witness?


MR FERGUSON:  No, I don't think it was, your Honour.


JUSTICE ROSS:  Was it just - it was tendered?


MR FERGUSON:  There was a tendered bundle of documents but it was filed.  I can't recall the exact stage that it was filed but - - -




MR FERGUSON:  It wasn't tested in that sense.  I suppose it then takes us to what we see are some of the principles which will guide the Bench in terms of setting a quantum.  We say certainly that the cap shouldn't be set at a level that's greater than is necessary to meet the needs of employees at the outer that.  Obviously that couldn't be justified as being necessary for the purpose of section 118.  But unlike the ACTU we don't contend that the quantum of any cap can be based purely on what an employee may need.  We think what needs to guide this consideration is primarily or importantly the considerations that arise under section 134(1) of the modern award's objective, and included within that of course is the need to strike a balance between the interests of employers and employees.  Obviously there are numerous Full Bench authorities going to the proposition now that fairness in this perspective needs to be considered from both points of view if you will, and I won't take you through any of that.


In support of that proposition, we say that the majority's decision does at least implicitly include a recognition that there should be some limits on the role that employers should be required to play in granting family and domestic violence leave.  I don't want to take you through all the paragraphs of this decision obviously, everyone's familiar with it, but in particular I'd point to paragraphs 111, 112 and 114 which there deal with the scope of a proposed clause and they accept that there should be some limitations around the scope and that the ACTU's claim as advanced was too broad. There are limitations, for example, talked about in terms of employees residing with the perpetrator and limitations on the need to only address immediate impacts if you will on domestic violence.


Now we simply say that that demonstrates that there is some recognition that is not purely based on what employees might need (indistinct) identified.


JUSTICE ROSS:  I just need to adjourn for a moment.



SHORT ADJOURNMENT                                                                  [11.47 AM]

RESUMED                                                                                             [11.51 AM]


JUSTICE ROSS:  Sorry, Mr Ferguson, it wasn't anything that you said.


MR FERGUSON:  No.  I think before the break I was making submissions about what we say is the implicit acceptance by the majority at least that there was some need to restrict employers' obligations in relation to the granting of leave beyond what is necessary for the employee, and obviously there may be circumstances where employees need long periods of leave.  I think, on one view, the scope of the clause that arose out of the conferencing process is somewhat broader than what may have been envisaged on the majority.  We don't seek to argue against the form of the clause that has developed in any sense.  Instead what we say is that those elements of the decision really speak to the need to ensure that there's a limit on the quantum, or you know, a reasonable limit on the quantum, that may be accessed under the proposed clause.  I think, you know, make it very clear, the acceptance, hard though that might be, of some of those elements of the clause is advanced in the context of our proposition that there should be a very limited quantum of leave, and that that limits in various respects the impact that the clause, as drafted, might have on employers, and that's to say that the breadth of the clause reinforces our proposition or our view that there should be a clear and modest limitation on the quantum of leave.


JUSTICE ROSS:  Is that another way of putting that we should have regard to the extent of the agreement between the parties about elements of the clause when coming to consider the question of quantum?


MR FERGUSON:  Yes, that's right.  It has a bearing upon quantum in our view.  The two are interconnected.  We're in a difficult situation in the sense that, you know, obviously quantum is a matter that's not determined, and we sought to work through that.  It's just that we don't think it could be boiled down to, for example, an assessment of what might be necessary to deal with all the types of matters that fall within the ambit of that clause in all instances.


That then takes me to matters related to the impact of the well I say claim, but the proposal, if you will, to develop a new entitlement.  We say that a consideration of section 134(1)(f), the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden, weighs in favour of the setting of a low cap, if you will, on the entitlement.  Undoubtedly, we say, that the granting of unpaid leave can have adverse impacts on employer costs and on productivity.  Those difficulties aren't overcome simply by the fact that it is unpaid leave in nature, and our submissions deal with this in greater detail, but obviously absences from staff can be highly disruptive and can result in a range of related costs for those businesses.


The other point we make is that the state of evidence is such that really the Full Bench can't make a proper assessment of what the impact of a claim by significant proposal for unpaid leave would have on employers, and we point in this regard to elements of the majority's decision that canvassed its consideration of the ACTU's proposed claim for 10 days' paid leave.  Without taking you through all of that, I think there was clear acknowledgement in that decision that the costs of that claim couldn't be assessed accurately, and there was also an acknowledgement that some of the potential alleged benefits of their claim couldn't be properly assessed either because of the nature or the absence of relevant data to allow that sort of process.  We say that that led in the decision to a conclusion that the claim for 10 days' paid leave hadn't been made out, and we similarly say that the Full Bench should reach a view that a justification for a significant quantum of unpaid leave could not be validated.  We say it's a factor weighing - if you don't accept our initial proposition, which is that no entitlement should be granted, it's a factor weighing in favour of a cautious approach being adopted, to take the words of the Full Bench in the context of its consideration of the ACTU's original claim, and that caution should be exercised equally in relation to unpaid leave as it was proposed to be exercised in relation to paid leave.


That then takes us to the ACTU's specific proposal in the alternative, if you will, for a 20‑day cap, as I understood the proposal to be.  We say that well the ACTU - or the Full Bench or the majority found that the ACTU hadn't made out a case for 10 days' paid leave.  It hadn't set out a satisfactory explanation for that figure, and we say the same sorts of criticism could be equally levelled against the proposition that 20 days' unpaid leave should be selected.  It seems to be that it's just picked because, well, there's a range of quantums of leave paid or otherwise that are reflected in agreements and policies and so forth, and that's at the higher end, so we may as well pick that.  Really, we say, there's been no satisfactory explanation for why that is necessary in the context of the modern awards objective as required by section 118.


The other point we make is that the Full Bench in considering a quantum shouldn't be overly moved by what has been done in enterprise agreements.  Of course that's inevitably a product of the bargaining strengths of the relevant parties, potentially a compromise in relation to other terms and conditions that may have been made in bargaining.  It's not an appropriate or sound basis for determining what is a fair and relative minimum safety net.  It shouldn't be that you'd look simply to what occurs in bargaining and flow that into a minimum safety net.  Again, nor should it be that the Full Bench be overly moved by what some employers may be willing to do through policies on a discretionary basis.  Undoubtedly as we've said all along, some employers are reasonably compassionate in relation to these things, but employers will have different capacities to address employee needs in this regard, and you can't be overly moved by the willingness of some to take a particularly generous approach in relation to this issue, given you're setting a minimum safety net.


The other point we think the Full Bench should be particularly mindful of is that the cumulative impact of the various types of leave that are available to employees under the safety net needs to be borne in mind.  It is not just the impact of this form of unpaid leave that needs to be considered.  It's the impact of that in the context of all the various other types of leave that are available and which add to this, because taken as a whole, a large quantum could result in employees accessing a very significant period of leave when you factor in, for example, personal carers leave, accruals and so forth.


The final point we make on quantum is in relation to the submissions that were advanced in relation to the experience of Telstra, and I simply want to make the point that obviously this is the experiences at best of one employer, a very large employer.  It was put that obviously a small proportion of their overall workforce accessed the leave that they afforded.  I don't think that could necessarily be said to establish that that is necessarily reflective of what would happen elsewhere throughout the economy.  We don't of course have any evidence from Telstra around their experiences in relation to these matters, they didn't as I understand it advance any statements in these proceedings.  So we couldn't test how their experiences applied actually in practice.  It may well be that for a range of reasons their employees access other forms of leave, for example.  We don't know.  We couldn't test any of this.  So we say that limited weight can be afforded to that one experience that they hold up, the union holds up.


That's all I was going to say in relation to the level of the cap if you will.  I was just going to move on then to issue around accrual and the question that your Honour raised about the application potentially on a pro rata basis of any entitlement to casual and part-time employees.  I think - I'll say at the outset it is a little difficult to deal with these issues comprehensively when we don't know what the proposed quantum might look like.


JUSTICE ROSS:  So is it the position that the proposition of pro rata accrual - sorry, pro rata application to part-timers is more an issue for your organisation if we were to be minded to grant a claim closer to the ACTU's than yours.




JUSTICE ROSS:  So the higher the - if a fixed quantum was applied the higher that fixed quantum, the more the pro rata comes into play.


MR FERGUSON:  That is the point simply made, and you can make the obvious observation that if you have a - for example, a large quantum in relation to 10 days, which we would regard as a large quantum.




MR FERGUSON:  For an employee that works part-time one day a week.




MR FERGUSON:  They're going to be absent for business for a very long period of time.


JUSTICE ROSS:  No, no, I follow the argument and whereas if you look at it from if we were to adopt one of the employer claims, then the issues of - - -


MR FERGUSON:  Well, the issue of relevance in fairness and some sort of - and there'd be operational problems and so forth that might flow.  They don't arise to anywhere near the same degree.


JUSTICE ROSS:  No, no, I follow, yes.


MR FERGUSON:  It's a balancing act of course.  The observations apply in relation to part-time employment but they also apply in relation to casual employment.


JUSTICE ROSS:  If we're against you on that point, yes.


MR FERGUSON:  If you're against us on that point.  We say well they weigh heavily in relation to the granting of a limited and modest entitlement, but absent that they speak to the need for some sort of mechanism for prorata-ing and  so forth, and of course no one has advanced any sort of sensible mechanism explaining how that would work.  So we say a modest quantum should be granted, if not well there isn't a workable claim before you.


It then takes me to the accrual point which is a similar issue in a sense, your Honour.  We recognise that if we're dealing with a situation where it's only one or two days, the justification for having an accrual mechanism - I'll talk about the mechanisms - is far less than if we're dealing with something very large like 10 days of leave.


JUSTICE ROSS:  Yes, I take it if it was a - to use your example, if it was a 10 day proposition then you would say that while we need to - well I'd forgotten what it is now but - or what it was but as under what the metal award provision used to be, that in the first three months it's X days and then it accumulates through the year - accrues during the year, something like that.  Is that the - - -


MR FERGUSON:  That's right.  So depending on the quantum, various different approaches could be adopted.


JUSTICE ROSS:  Sure, yes.


MR FERGUSON:  So if it was a, you know, slightly more than  what we opposed, it may be that well you get a larger amount in the second and subsequent years and that in your first year you just get a more modest amount.  Or if it was a very large quantum there may be some that need to consider how that accrues progressively and so forth.  But I think the first year to second year point is a particularly salient one because we would have some concerns about any large entitlement arising in relation to an employee who's just been employed, or for example might only intend to be employed for a relatively short period of time for some particular purpose.


If there was a very large quantum granted at the start, that they may well be absent for a large portion of that.  So we say those sorts of issues are not model in the system, obviously various entitlements accrue progressively.  You know, personal carers leave and so forth, but historically these sorts of different approaches aren't model.  Awards have taken the approach of like what you said the metals award or other approaches where there's a certain amount one year and a second amount the second year.


JUSTICE ROSS:  I suppose it's a balance that the need for it increases as the quantum increases on your submission, and the other factor we'd need to take into account would be the desirability to have a simple clause operate.  So the more elaborate an accrual, you could see why that might lead you to not favour an accrual but it works on for each week you get some small proportion of a day of unpaid leave.  But it's trying to balance all those factors.


MR FERGUSON:  I think that's right and that's why I'm saying that that is one approach but there are others and, you know, the other obvious example is, you know, some limited amount in relation to the first year but obviously there are varying approaches to this.




MR FERGUSON:  Look, of course the other point I make is that there are entitlements of course that, you know, to leave that just don't apply to some people and they have less than 12 months leave, unpaid parental leave, subject to exemptions and so forth and more complicated restrictions that overlay that in relation to that casual employees.  This is not novel, it's not unusual, it's not out of steps with the safety net in any sense.


That then takes me to the issue of casual employment unless there are any other accrual related questions.  We've obviously argued that casual employees should be exempt and we've set out reasons for that, but I think the heart of our proposition is also this, or the position I want to advance is that casual employment is, as contemplated under the award system, fundamentally different from other types of employment such as permanent employment in the context of permanent part-time or permanent full-time employment.  It's different in the sense that the safety net or the award system in particular doesn't seek to require if you will employees to work a certain number of hours or hours at certain points in time the way it does or recognises in the context of part-time or full-time employment.


Now what flows from that is that in the context of the award system there is no need for an employee to access leave if you will in order to be absent from their employment, as recognised by the award.  It is the award we're thinking about here.  An employee is free to decline work under the safety net and there is no compulsion or assumption under the award that they will work those hours.


JUSTICE ROSS:  But doesn't regulating it to a degree where they have to notify the employer that they're not going to be available et cetera, doesn't that - well isn't that preferable to sure they don't have a legal obligation to attend so they just don't rock up.


MR FERGUSON:  But that's the reality of casual - - -


JUSTICE ROSS:  That leaves the employer with having to respond to the absence at no notice whereas under a provision such as this they'd be required to give notice and give an indication of how long.


MR FERGUSON:  Well, one obvious proposition is that only holds true in the event that they're seeking to access leave.  The casual employee could not comply with that and just not turn up.


JUSTICE ROSS:  No, no, but that's my point.


MR FERGUSON:  No, I understand but even if they wanted - - -


JUSTICE ROSS:  But if you provided an entitlement to unpaid leave with notice provisions then they could utilise that provision which would provide the employer with a degree of notice. Without that, presumably they can just not rock up.


MR FERGUSON:  They could, they could but I don't know that the proposal that's been advanced is such that whenever an employee seeks to be absent necessarily, and in circumstances where they would qualify for this, they would provide such notice.  I take your point, if they - - -


DEPUTY PRESIDENT GOOLEY:  But wouldn't they'd boost the protection then because then, for example, if they simple didn't turn up but they weren't taking leave to deal with domestic violence, they'd lose the protection that would prevent them being treated adversely because they had taken domestic violence leave.


MR FERGUSON:  Well, they wouldn't have a workplace right necessarily to be absent, which is right.  That's true and I'll come back to that but that is correct.


DEPUTY PRESIDENT GOOLEY:  But isn't the reality and I mean we've seen that with the number of decisions, we had the fly-in/fly-out worker who was deemed by the Federal Court not to be a causal employee but for the purposes of the award, because there was engagement paid as such as was.  Casual employment, the notion that in reality casual employment for many employees involves a decision on the day whether they are or are not going to go to work doesn't reflect the reality of what casual employment is.  For many employees they're rostered to attend work - - -


MR FERGUSON:  Well, I think that's right and, you know, without reliving all the joys of the casuals case there are definitions of casual employment and there are undoubtedly casual employees who work on a regular and systematic basis if you will, who have an ongoing expectation of work.  There are also casual employees who do not.  There are casual employees who are simply called on a whim and said do you want to work and they say yes or not, and the notion of leave in that context frankly makes no sense at all.  They may not have certain hours - sorry.


JUSTICE ROSS:  But as I understood your submission, you're not proposing that the clause extend to casuals who are regularly and systematically engaged et cetera.


MR FERGUSON:  We had initially proposed that but I suppose the primary reason, because we think that it's not warranted, it is a radical step to start granting leave to casuals.


DEPUTY PRESIDENT GOOLEY:  Except that the NES gives leave to casuals.


MR FERGUSON:  Well, the NES gives some leave to casuals and in other cases the NES develops additional parameters that precludes them from getting certain leave.  I mean the obvious one I'll take you to and I intended to get to this because I think it is an option, you're not bound in terms of any claim here that it's available to the Full Bench to fall back.  In relation to unpaid parental leave subject to certain exceptions, section 67 sets out the criteria which the person has to be a long term casual, as defined.


JUSTICE ROSS:  When you say it's an option, I suppose anything's an option but is it an option you're putting forward?


MR FERGUSON:  It is and I've got a form of words which addresses this issue.




MR FERGUSON:  Which I'll hand up.  I'll provide three copies for the Bench and my friends won't be taken by surprise.  What I've done - - -


JUSTICE ROSS:  Should we mark it?


MR FERGUSON:  It may be appropriate, your Honour.


JUSTICE ROSS:  I've no idea what we're up to.


MR FERGUSON:  No, I have no idea either.


JUSTICE ROSS:  What about exhibit MFI1, is that safe?





So what we've produced here is a form of words which seeks in effect to reflect the construction of section 67 if you will, so that in essence a casual employee would only be entitled to leave under the proposed clause if they met the definition of a long term casual, which is set out in the dictionary, and in effect means:


An employee who at a particular time is a long term casual if the employee is a casual employee and the employee has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during the period of at least 12 months.


Then meets the second requirements set out in 67(2)(iii):


That the employee could have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.


Now the force of that, at least in the context of leave, it somewhat makes sense that somebody might make an application for leave, they might think they should, where they've got this ongoing expectation and firstly, there is some predictability to the work.  That also enables that element of the clause that talks about the leave only arising where it can't be dealt with - that the issue can't be dealt with outside of their ordinary hours, to make some sense.  Absent this, it really does seem to ask that - it's a bit of a nonsense as how it would actually apply to a genuinely ad hoc casual if you take that phrase.


Of course the only other point I'd make is that the need to protect casuals, that casuals case has resulted in a very significant new protections being introduced. So the gap that might have been perceived at the time the first decision was handed down is of course less on one view than it is now.  That proposal in one sense strikes a middle ground that we say is much more workable.  Our primary position is that casuals all should be exempt, as I said it's a radical step to start introducing leave for casuals into the award but - and we say unwarranted but this would be a more modest compromised position.


The other point, just coming to the issue that your Honour raised in relation to the proposition that the introduction of this right would give rise to an adverse action situation of general protections claim.  I think the first point we'd make is that we don't say that that's necessarily a desirable outcome, particularly in the context of what I might say is very short time irregular casuals where they may not be rostered simply because they're not required.


They may coincidentally have informed their employer that they are now experiencing this issue and that they can't work, but the difficulty is that employee may well perceive that there's been some adverse action and giving rise to that sort of situation would mean that the employer then ends up being put to the cost of rebutting that proposition, and potentially very costly legal proceedings.


We just don't think that's a situation the Full Bench ought lightly entertain, and we're not sure that that necessarily is a relevant consideration.  Trying to facilitate that is a relevant consideration for the purpose of determining what's necessary in the context of setting a fair and relevant minimum safety net of terms and conditions.


The point we make also of course is that there are other very good reasons why a casual might not be able to work; illness, injury so forth, not necessarily any less pressing in our respectful submission than the circumstances of someone experiencing domestic violence, and other situations of course, the birth of a child and so forth.  Their need to be absent is just as real and seems somewhat anomalous that it could be justified in this context, given that it's not by any means as well established.  There's not a standard of the safety net otherwise and a quantum of leave - of loading isn't paid in lieu of such forms of leave.  A quantum of loading if you will.  That then takes me to the end of my submissions in relation to casual employment, unless there's any questions arising from what's been put.


The next point I wanted to address is the manner in which say any proposed new entitlement should interact with paid personal carers leave, and undoubtedly there is a possibility of overlap if you will with situations that could be addressed by this proposed new award entitlement, and the statutory entitlement to paid personal leave.  A person could be sick because of a reason, or injured because of domestic violence and eligible for both forms of leave.


Now we've referred to section 103 of the Act in suggesting a way forward in relation to this.  Section 103(3), and that provides that:


An employee cannot take unpaid carers leave during a particular period if the employee could instead take paid personal/carers leave.


We say that by analogy there's obviously similarities to the situation we face here and we say that would provide an easy to understand way forward of dealing with these two scenarios.  We can't see what's put by the union that this should give rise to any particular confusion and it doesn't appear to be or no one's advanced that this section of the Act is causing difficulty.  In fact, it would assist in making the system simple and easy to understand but beyond that, obviously in part our intention is to ensure that the total period of absence is not extended unreasonably.


In the sense that we say where people have this accrued entitlement they should access it first and not to pick and choose which they want.  The desire being to extend the period as far as possible.  We could easily understand the situation where someone might have, on the ACTU's proposal, 20 days or unlimited entitlement to domestic violence leave.  They sit on that when they could be accessing their paid personal carers leave entitlement for months and then when that's all exhausted they then start accessing their paid leave on top of that, and then of course there's a period beyond that where their termination is prohibited as well.  So obviously we do see this as some way of moderating that potentially very difficult outcome but obviously this matters more if you've got a greater quantum of leave.  If we're talking about one or two days as has been proposed then this issue doesn't take on anywhere near a significance.


I suppose the only options to moderate what we've put could be, and we recognise that there might be situations where an employer and employee - it suits both of them for the individual to take unpaid leave in preference to the unpaid - in preference to the paid personal carers leave.  You can simply provide that and there be some flexibility afforded where both parties agree in relation to any clause.  But we do say a clause should be inserted into the proposed award entitlement, if one exists, that deals with this issue.  And I wasn't going to suggest a form of words.  I think if the Bench was interested in that, it could be easily dealt with.  I wasn't going to deal further with that issue, unless there were any questions.


That then takes me to an issue arising from the statement today, and the Bench has to hand specifically point 2 which deals with the entitlement to unpaid and domestic violence leave.  We don't have a clause drafted as such in relation to this, but it has been proposed in the statement that if there was to be an annual limit adopted, that approach that was limited to a number of days, that a period of family and domestic violence leave may be less than a day by agreement between an employee and employer.  This is how we think the proposed clause that adopts an annual limit could or should work.  It would provide, say, a limitation on the number of days that an employee could take.  The notion of what constitutes a day would simply be a calendar day, and in effect what would happen is that the employee would be entitled to be absent from work on that particular calendar day.  That would be the entitlement.  You wouldn't break it down into what the individual's entitlement was in hours or anything like that.  It would just be an entitlement to be absent for the entire day.


We say that there would be some merit to a situation where if an employer and employee agree that they only really need half a day or part of the day, well people shouldn't be precluded from reaching such agreement and only being absent from part of the day.  For some employers, the absence of an employee for part of the day will be much less problematic than the absence from a whole day.  For other employers, take for example, and I don't think will be contentious, someone operating a production line, an absence from a part of a day is a big issue, because it would affect the productivity of that line and you'd have to bring someone else in or try to or make other arrangements.  So we say there is some merit in having flexibility that operates both ways.  But we think adopting this notion of a day as we put it, but it's just an entitlement to be absent for an entire day unless there's agreement, makes sense because you don't need to get into any assessment of what precisely is a day.  You don't need to deal with how it accrues - is it eight hours or 12 hours; what happens if they have different lengths of days in the course of their ordinary employment; what happens for a part‑timer that might have differing hours, or a casual that might have no set hours.  We don't think anything that gets down to that level of detail is warranted, and it would be very difficult to understand.  No one has proposed anything to the Bench that deals with those sorts of accrual and that sort of detail.  There's nothing like there is in the Act necessary that makes things accrue and accredited by the ordinary hours of work.  We support that form of words, but we understand that it operates in that sort of basis.


Those are the submissions, unless there are any further questions from the Full Bench.


JUSTICE ROSS:  I had one that I wanted to raise about the submission you advance in paragraph 5 of your 1 October submission.  Can I take you to that?




JUSTICE ROSS:  The proposition here is that it states:


In the time available to you and you have not had the opportunity to review any of the publications identified in the research references or to comment on them.


You then say:


Should the Commission or any interested parties seek to rely on any of these publications or part thereof, you may seek an opportunity to respond.


I'm sort of working on the basis that as at 1 October you didn't have an opportunity to do that, because it would plainly be unworkable for us to provide a party with an opportunity to respond if having reserved the matter we then go and consider the submissions in the material, and if one of these publications finds its way into a draft decision we'd have to contact you.  That seems an unlikely proposition when what we had intended was, and when we published the research references on 15 September, that a large part of it of course is material that parties would be familiar with, because it was material referred to in the evidence and what have you that has already been put in the earlier proceedings.  It was really to let you know that this material is material that we may take into account and refer to in the context of our determination of the matter. So that's a long way of saying that if you have any comment on anything in that research list, now would be the time to make it or seek leave for a further period to do so.


MR FERGUSON:  Yes, and your Honour was absolutely right in the sense that the comment was made in the context of at that stage, not having had an opportunity - we don't at this stage seek to make any other comment in relation to that material and understand that that would be a - - -


JUSTICE ROSS:  It's the words "at this stage" that always trouble me a bit, because - - -


MR FERGUSON:  No, the only reason - - -


JUSTICE ROSS:  - - - this is the stage.


MR FERGUSON:  No, I understand.  That's exactly right.  We're not saying that because of that point we raised there you couldn't.  Obviously if something was raised by my friend completely new, we might make an application when they do, but hopefully that won't arise.




MR FERGUSON:  But we don't see that you need to be troubled by that.  It was a point in time issue.


JUSTICE ROSS:  Thank you.  Thanks, Mr Ferguson.  Mr Ward?


MR WARD:  Thank you, your Honour.  I'll try and be as quick as I can.  The Australian Chamber of Commerce and Industry filed written submissions on 1 and 29 September.  We rely on those, and to the extent - I should deal with the housekeeping - Australian Business Industrial and the NSW Business Chamber and the Pharmacy Guild of Australia adopt and support those submissions.  Can I deal firstly with a question that arose from the statement of the Full Bench on 3 August 2017, which will shape the context of the submissions I make today?  On 3 August in its statement, the Full Bench posed a series of questions for the parties to answer, and the first question was in these terms:  Should there be an entitlement to access unpaid domestic violence leave in modern awards.  It might be said that that's a slightly unusual question to pose to industrial parties, but my clients dealt with that in paragraphs 6 to 11 and attempted to deal with it in as respectful a way as possible, that is, having considered the views of the majority decision, it respectfully indicated that it hadn't changed its mind in relation to that question and therefore still answered in the negative, but constructively then proceeded to deal with the question of if the preliminary views of the majority are ultimately confirmed, and with respect we expect they will be, how does one best address an ultimate determination made by what is now this reconstituted Full Bench.  I simply need to say that we don't demur from the submissions made at paragraphs 6 to 11 of our 1 September submission.  I now deal from now on with everything in the context of that alternative proposition.


There are a limited but still important number of matters that require determination, and I have to start by consideration the matter Ms Burke made yesterday in her opening, and I'll deal with this as carefully as I can.  My learned friend said that she asked the Commission yesterday to frame its further consideration on the basis of certain key findings.  We don't support that proposition, but rather ask the reconstituted Full Bench to focus on section 134 and the relevant associated sections of the Act, and respectfully note that a separate obligation falls on the Presiding Member arising from section 623 to have regard to all that essentially has passed in the proceedings to date.


There was one particular point that my learned friend included in her framework, which we take special issue with, and I'll try and put this as respectfully as I can.  My learned friend said one of those key elements of the framework should be the need to establish a workplace right.  I make absolutely no comment on the majority decision in making submissions on this point.  I make these submissions in the context of the decision that this reconstituted Full Bench will make.  If the motivation of including a term in a modern award is to establish a workplace right to make it easier to run an unfair dismissal case or to enliven a general protections claim, we say respectfully that that's an entirely inappropriate consideration in the context of the four‑yearly review, section 134 and section 139 in particular.


Section 134 is focussed on the setting of minimum safety net terms and conditions.  When one reflects on section 139, those terms and conditions squarely relate to the content of the award itself and the setting of terms of employment.  It is difficult to see how creating a right per se, that is, you're motivated simply to create a right to give an employee a course of action against an employer, could be a proper consideration for including an employment term or condition in an award.  It might be a consequence of creating a term or condition - we have no issue with that at all - but respectfully we say it would be improper if that was the moving reason.


DEPUTY PRESIDENT GOOLEY:  But that came up surely in the context of submissions that were put to the previous Full Bench by the employer participants that we should have regard to the existing protections that were in the Act for people, including unfair dismissal, et cetera - the right of flexibility, those matters - and that discussion and decision came in the context of that.


MR WARD:  Yes.  I don't recall my clients advancing those submissions, but others might have.  I'm particularly seeking on this occasion to assist the reconstituted Full Bench in its further deliberations.  Can I turn now then to what's really in issue?  I want to deal with the occasion question, the quantum question, accumulation, and then I'll come back to the statement issued this morning.  We're on a reasonable footing with Mr Ferguson in that we have a very material, practical problem with the notion of occasion.  If one considers the statement issued this morning and agreed definition of "family and domestic violence", which I'll come to later on in terms of our agreement, it would appear in relation to that definition that the occasion is not limited to the issue of frequency, a time period, a particular perpetrator, or a particular form of abuse or character of abuse, and if one adopts the notion of an occasion as giving rise to the grant of leave, we are concerned that that creates a very unacceptable level of imprecision, of complexity, and potentially some, with respect, absurd outcomes.


From a practical perspective, if one for instance was to consider one of the witnesses in these proceedings, and I'll do this with care, a confidential witness - I think exhibit 24 - their experience was appalling; I say that straight away.  They experienced a period of three‑and‑a‑half years of abuse, and their evidence is that that abuse took very many forms - physical, sexual, economic.  Their evidence is that in particular the husband, who was the person perpetrating the abuse, frequently got drunk on a Sunday and assaulted the person.  When you think about that from a practical proposition, if you have a grant per occasion, is the three‑and‑a‑half years the occasion?  Is each individual act of abuse and assault an occasion in its own right?  It raises all sorts of complexities which we have grave concern about in the context of creating a new award benefit - the majority has already said one needs to approach that with some caution - and it clearly gives rise to the possibility of extraordinarily unlimited grants of leave.


From our perspective, the notion of an occasion really flies against 134.  It's difficult to see how that could constitute something that is simple and easy to understand for most employers.  The unlimited nature of the quantum flies against the notion of a minimum safety net, and for those reasons we really struggle with that notion.  We said in our written submissions that we really tried to come to terms whether or not that was the right way to proceed in the context of reviewing the NES, and we ultimately came to the conclusion, for all the reasons we've just advanced, that it really isn't the right way to proceed.  The better way to proceed is a per annum grant of leave.


Can I just respond to one issue that my learned friend raised yesterday?  My learned friend has been very keen for you to have a look at section 80, and in her words, she said section 80 gives you the correct parallel for what you need to consider.  I did notice that yesterday that she could have sort of approbated and reprobated very quickly for some things - parental leave is a great idea to look at; for others it's not - but put that aside, our concern is that that submission can't stand.  There's nothing open‑ended about leave arising from a pregnancy, and without attempting to be cute in any way, you've got to be pregnant - it's fairly finite how that happens; the gestation period for the most part is a reasonably standard period, and rights arising from pregnancy for the taking of leave by their nature are quite different materially to a right of leave arising from the statement that we've issued this morning with the definitions.  So that really shouldn't be seen as something that swayed you to the occasion concept; quite the contrary.


That deals with my submissions on the question of occasion.  Can I deal with the question then of if there is to be an annual amount, how do you arrive at that amount?  Mr Ferguson generously described us as brave, because we've articulated the grant of three days.  I think what we should do, which others don't seem to be prepared to do, is we're going to explain to you how we arrived at that.  Can I firstly though make one observation generally and then an observation about yesterday's submissions from the ACTU?  I asked the Commission to be minded that the fair and relevant safety net, its settings, is a minimum one.  It's not a desirable one, it's not a maximum one; it is a minimum one, and in a context of a new benefit, caution should be exercised in establishing that minimum, and it's in that context that we have reviewed the evidence in the case.


I don't know where the ACTU got 20 days from.  They haven't in any direct sense told us.  I suspect inferentially it has come from enterprise agreements.  It certainly hasn't come from the evidence in the case proper, that is, the witnesses, and we have similar anxieties to those Mr Ferguson has articulated.  In our view, enterprise agreements are an entirely dubious source of comparison for contemplating the safety net, and we say that for these reasons.  The scheme of the Act contemplates two extraordinarily distinct streams of regulation.  There's the modern awards with the NES setting the minima, and enterprise agreements setting something else.


Section 134(1)(b) reinforces that proposition in that in setting the safety net you actually have to make a finding that - I withdraw that - you have to turn your mind to the "need to encourage bargaining".  As has already been said, but we reiterate, enterprise agreements are deals negotiated and voted on in a specific context, using an individual company or in many cases a particular part or site of that company.


They are, to use language I would have used when I was younger, paid rates instruments; that is that is the amount we have agreed to actually pay, and those agreements really need to be understood as a whole and in context.  We don't know the history of the company, its profitability, demographics of its workforce.  We don't know what its attraction and retention strategies are.  We don't know whether or not it has agreed to these things willingly or if not it has been coerced through protected industrial action.  So we would issue a word of caution to the Bench that in setting a safety net as we said enterprise agreements are a very dubious source.


Now, yes, we have been brave and we have articulated three days.  We didn't think of it as being brave when we did it, but I am happy if Mr Ferguson says we have been brave then we have been brave.


Can I take the Commission to the evidence we looked at to form that view and I will try and do this as succinctly as I can.  Firstly we considered the evidence from PricewaterhouseCoopers.  PricewaterhouseCoopers I think have an arrangement which provides for ten days, and I accept at this stage that this arrangement is paid leave.  The reason why we looked at it however is it shows you the question of the need for leave and the need for the quantum.


The witness from PricewaterhouseCoopers was cross-examined by my colleague Mr Arndt at PN1886 to PN1888 in the proceedings, and I will just quote that.  This is Mr Arndt:


And the PWC policy also provides ten days of paid leave to full-timers?  Answer: For up to ten days, yes.  Question:  Up to ten days, and that's the guaranteed leave amount.  There's some discretion in the PWC policy to go further, but it's a ten day entitlement?  Answer:  Yes.  We don't use language like guaranteed, but it is up to ten days if people - if we believe - - - Yes?  When someone discloses to us then it's up to ten days.  Yes?  I'm drawing that distinction because I said in our current case is if you like there has been some leave but it hasn't been a full - it's not necessarily the full ten days, so there has been people - there have been people take two days.


That's not grammatically great, but I think the gist of that is, what's being said is that their actual experience of leave taking at PWC was two days.  That's informative, but not determinative to help the Bench; it's informative.  It's informative because that's a practical experience of an employer who came here, who's strongly publicised their policy internally in the organisation, they're very proud of it.  So the employees are very aware of it.  It's a company that based on the evidence said it's got a reasonable proportion of female workers.  The one thing we don't know from that is whether or not any of those two days could otherwise have been taken as personal leave.  If one thinks of the majority decision focusing very much on those urgent matters such as court and the like it's possible that those two days were taken for those matters or they might not have been, they could have taken somewhere else, but it's useful, it's informative.


We then turn to Dr Cox in exhibit 1, and Dr Cox was helpful, at least some way.  At paragraph 6.16 through to 6.26 Dr Cox identifies for us the time is taken off work.  I think the difficulty with Dr Cox is that Dr Cox didn't tell us either how much time, when they took it or what type of time they took off work unpaid or whatever, and I won't labour that point, but when we cross-examined Dr Cox - I will give a reference for that if I can - at PN342 through to PN346 - when we cross-examined Dr Cox, I won't read it out, but in that section, it's very clear that Dr Cox acknowledges that the survey doesn't capture that information.  So it's a little helpful in the sense that time has been taken off work, but it doesn't help us with the actual quantum.  I also just note Dr O'Brien who based most of his evidence on Dr Cox confirmed that that was the case.


We then came to Sandra Dann.  I am not sure what exhibit number - Mr Arndt has written B1 at the top of mine, I am not sure if that's correct.  Ms Dann was a director of Working Women Centre South Australia Incorporated.  There was some conjecture about the admissibility of her evidence because it's heavily based on case studies.  The question of its admissibility was dealt with by the then presiding member in the transcript at PN1636 to PN1647, and the evidence was admitted on a limited basis, and the case studies were not accepted as evidence of fact, they were simply accepted of evidence that some conversations occurred.  At paragraph 41 Ms Dann says this, and I quote:


Women who have been managing DD and abuse for long periods of time often have very little or no leave left that they can access.


The only practical material that seems to be in her statement that goes to that is a case study set out in paragraph 42 where somebody's friend rang their centre and said that their friend had run out of personal leave.  That's not hugely helpful, but it does go to the question, because we are not really sure what long periods are, not really sure what the circumstances of these people are, but that is evidence that goes to that proposition.


Confidential witness number 3, exhibit 24 in the proceedings - as I said before they had an appalling experience.  Their abusive relationship spans some three and a half years.  During those three and a half years they were hurt physically, verbally, emotionally, financially and sexually, and ultimately this culminated in the person's life being threatened with a gun and the antagonist being arrested for aggravated assault with a threat to kill.


Over that period this witness informed us that they used all of their sick leave each year.  In paragraph 20 of their statement they say this:


I was provided with 12 days paid sick leave per annum and I used all my sick leave each year.  We were together and sometimes took the occasional leave day when I ran out of sick leave.  Mondays were the main day I took sick leave because on many occasions on a Sunday night he would get drunk and pick a fight, the result in a threat to kill me, and so I would sleep with one eye open and be exhausted the next day.


All I say about that is, obviously it's appalling, but the one thing I do say about that is that just seems to be a legitimate reason to take sick leave.  It's terrible circumstances, but it's a legitimate reason to take sick leave, and I will come back to the question of sick leave a little later, but it's an acceptable reason to take sick leave.  She later goes on, she ultimately confides in her employer what's going on and they're very supportive, and she ultimately informs us that she takes an additional two weeks off to relocate, by which time she had very little annual leave left.


It would be entirely inappropriate for me to say that's an extreme case because I don't know the answer to that, but it's certainly a very serious case.  I am not sure it's a case that section 134 and the minimum safety net is going to resolve, but that is the only witness in the case who attested to, (1) running out of sick leave, and (2) running out of other forms of leave.  If I am wrong on that I will be proved wrong, but from our consideration of the evidence there is only one witness in the case who said they ran out of sick leave and ran out of other forms of leave.


It would appear that confidential witness 3 ultimately moved on in their life.  They took a voluntary redundancy and they really do appear to have found a much better place.  We viewed that because obviously that goes to the question of the need for leave.


We then get to the Royal Commission report, which I think is exhibit 29.  This is the summary and recommendations of the Royal Commission into Family Violence (indistinct) proceedings, and at page 81 of that report the Commission makes this observation, and I quote.  It's about three-quarters of the way down:


The Commission heard that victims often exhaust their leave entitlements when they must attend medical appointments and court appearances, organise accommodation and care for their family.


I leave the quote there.  Again it's informative, but it's not hugely helpful in the sense that we really don't know who they spoke to, what was submitted to them, the extent of the tests in relation to what was put to them, and it's not really quantified or explained in any helpful way, but the Bench have that to look at in the case.


The Law Reform Committee, exhibit 28, this is the family violence and Commonwealth laws improving legal frameworks final report, they make a number of observations which are at best inferential about the need for quantity of leave.  At paragraph 16.63 for instance they say this:


A number of stakeholders argued that at the Commonwealth level existing terms in modern awards are insufficient to respond to the needs of employees experiencing family violence.


They don't go on to say very much more than that, and without being mischievous the irony being of course that people who were making those submissions to them included the ICTU.  I am not shocked that the ACTU made those submissions to them.  So that's not particularly helpful either, but those observations are made there.


We then come to Ludo McFerran, which is referenced by the majority in the decision, and Ludo at paragraph 6.2 says this, about one sentence in:


A survey conducted by the general violence research network in 2015 of 102 employers who had a domestic violence clause in their enterprise agreement found that the average paid domestic violence leave taken in the past 12 months was 43 hours with a range between eight and 202 per incident where time off was requested.  Most employees took two to three days or less off work.  According to Telstra the inclusion of ten days paid domestic violence leave in their enterprise agreement has not opened the floodgates as 22 out of a workforce of 32,000 have accessed the leave in six months taking an average leave of 2.3 days.


Which we respectfully assume was 2.3 days per annum given the way their policy was worded.  Again we have got the same problems in that some of that leave may very well have possibly been leave that could have been personal leave.  So we have got that challenge.  We don't again know really the circumstances of the taking of the leave.  That is the evidence we considered in the case, and considering the PWC observations, which were very particular about their experience, Ms McFerran's observations about the survey, about Telstra, in the knowledge that was said in the new standard and a minimum we came to the view that on balance a grant of three days seemed to be appropriate.  It would be entirely wrong to suggest to you that there was deductive science in that or some deductive reasoning, and clearly it's going to be an exercise of discretion to arrive at this number, but that is how we arrived at that number.


Can I turn then to the question of accumulation.  We took a great deal of guidance in our submissions from the National Employment Standards and we asked the Commission to take a great deal of guidance from those.  Our issue on accumulation was very simple; we were unable to contemplate any precedent in the National Employment Standards where unpaid leave accumulated.  If we have misread the NES we will be told, but it seems to be a general proposition that unpaid leave is not accumulated leave.  In our submission in the context of setting a minimum safety net both fair and relevant for employees and employers it seems to us that the leave, if it is per annum, shouldn't be accumulated.


DEPUTY PRESIDENT GOOLEY:  Is that because the unpaid leave provided for in the NES is per occasion?


MR WARD:  I don't know if that is why it is, but it's very clearly not accumulated.  It's not accumulated, but that might be the motivation for it, your Honour.  As to the accumulation process we had already moved to where your Honour and Mr Ferguson's conversation had gone, which was on a reasonable rational basis thinking that the leave should be around about three days.  My clients didn't get particularly hot under the collar about the process of accumulation.  It seemed to follow that if it is something in the order of three days the grant being available upon the commencement of employment really doesn't cause a lot of problems.


It is also the case that some of the other grants of unpaid leave appear to be available at the commencement of employment, and again relying heavily on some of the NES propositions in our submissions we really didn't think that an elaborate accumulation process was necessary in the context of the three days we advanced.


As to the question of should you be allowed to pick and choose which leave you take we are antagonistic against the notion of picking and choosing, and antagonistic for a particular reason, or set of reasons.  I have to say, and I say this with great care, we got the impression that the majority were a little antagonistic as well and I say it for this reason.  The focus of unpaid leave as expressed by the majority seem to be on matters not contemplated by personal leave and carer's leave.  That is the focus in paras 44.1.14 in their decision seem to very much be on those matters of attending court, emergency accommodation and the like.  So it seemed to us that the majority had already leant towards the unpaid leave being available for different circumstances to those contemplated to personal leave and carer's leave.


Our real problem though is this; if you're going to say that you can now take these, in our case three unpaid days, as what is in effect personal leave or carer's leave this case becomes a very different case.  This all of a sudden is a case which says an employee should have more personal leave and carer's leave rather than the case about domestic violence per se.  Domestic violence or an occasion of domestic violence obviously is the motivating factor, but you would actually be saying we have made a positive decision to supplement the National Employment Standard for personal carer's leave and allow people additional unpaid personal carers leave, but for a particular reason.


Now in our respectful submission with the absence of confidential witness number 3 who said quite candidly that she had used up all her sick leave, there is absolutely no evidence of any probative value before you to form that conclusion.  None at all.  We don't say you jurisdictionally can't supplement the NES by providing additional leave, but we say in the context of this case the bar set by the preliminary issues decision for the need for probative evidence for such changes, a proper examination of the evidence in this case, the only witness who said with any probative value I've used all my sick leave up was confidential witness number 3.  With respect, you cannot vary 122 awards on the basis of one witness.  You can't do that.  That would be an inappropriate exercise of the discretion.


Personal leave in our view is available for a specific purpose, that's because the person's injured or ill.  Carers responsibility arises in the way the statute sets it out to be, and as framed in the NES the use of that leave arises because of the illness or injury, it doesn't draw a distinction as to how you got ill or injured.  We think for those good reasons that the taking of the unpaid leave should not be available if you are able in the circumstances to take personal leave or carers leave.  The evidence just does not support that and it shouldn't just be sort of slipped under the hood now as a little bit a windfall for the ACTU.  There's no probative evidence to support the supplementary of the national employment standards in that way, arising from domestic violence leave or otherwise.


Now I just want to - I've thought about whether or not I go to this or not but I think I should just go it as a point of clarification.  My clients have not taken issue with the question of casuals.  We didn't take issue for reasons which now evade me.


DEPUTY PRESIDENT GOOLEY:  I think it was because we said it should apply to all employees.


MR WARD:  Thank you, your Honour.


DEPUTY PRESIDENT GOOLEY:  That might have been the reason.


MR WARD:  No, no, that - no, here it is, here it is.  Your Honour's obviously read what I wrote.  The first reason was my understanding - my client's understanding was that the majority had effectively formed that view already so we didn't think there was much point in - - -


COMMISSIONER SPENCER:  You immediately folded.


MR WARD:  Sorry?


COMMISSIONER SPENCER:  You immediately folded on that basis.


MR WARD:  Well, I'll argue what I can, Commissioner, but you seem pretty clear on that.  But for two other reasons as well which I think are important.  My client as a matter of good conduct asked you to reflect at some length on seeking guidance from the national employment standards, and it's very clear that elements of the national employment standards includes casuals without any fetter and my client thought it was inappropriate in those circumstances to try and approbate and reprobate on that issue.  You're either going to ask the Commission to look the NES or you're not and we thought in the end it was better to ask you to look at the NES to argue a case for our constituency than to have a separate argument about casual employees.


The other one is this; to the extent that there was any argument about casual loading I couldn't as a matter of good conscience and good conduct try and suggest to this Bench that the current casual loading includes an amount of money in lieu of domestic violence leave, whatever the form is.  It just doesn't - I just don't think anybody could sustain that argument, be it from previous casual test cases or - I'll probably get this wrong, I think it was the award modernisation decision in 2008, the really big one that President Giudice presided over and that reconsidered the question of casual loading.  There was no mention in that case there.


I don't want to say that we abandoned Mr Ferguson in this matter, we didn't abandon him.


JUSTICE ROSS:  It's a bit late to put that submission.


DEPUTY PRESIDENT GOOLEY:  You've done a fair good job of that.


MR WARD:  We didn't abandon him but perhaps we were more moved by the views of the majority than Mr Ferguson was, and we simply say that.  Can I then come, hopefully with some efficiency to the statement - what I like is he doesn't get a right of reply to me, so.


MR FERGUSON:  (Indistinct).


MR WARD:  Not after your conduct this morning, mate.  Can I come then to the actual statement that was issued by the Full Bench this morning and make some very brief submissions.  Items 1 - sorry, I withdraw that.  Clause 1, 3, 4, 5 and 6 are marked as agreed.  That is the case, I am careful not to use the phrase consent given our primary position but in the context of giving effect to what we saw as the majority decision.  We've worked constructively to try and reach agreement with the parties.  That agreement in our view which we've worked for over the last few days of conferences, we've attempted to ensure that the clause operates in a way that is balanced and effective for employers of all sizes and we've had in the back of our mind, particularly those small employers and the inclusion of some of the notations for guidance we think will assist those small employers.


We've also attempted throughout the process of reaching those agreed positions to focus clearly on the question of the grant of leave being available for those matters the Bench identified in the majority decision.  That is the attendance at court, the emergency accommodation and the like.  Those urgent matters.  And we think that in the context of the majority decision that was a proper thing for us to do.


I say in closing that it probably is appropriate for me to make an observation about the confidentiality clause.  My clients raised originally a jurisdictional objection against the inclusion of the proposed ACTU clause.  The fact that this clause now stated is agreed, it's going without saying that that objection is withdrawn but I feel it's appropriate in the circumstances of having made the objection to explain why we now commend the clause to the Commission.


Our view is that this clause does not arise from a consideration of section 139(1)(h), which says that a modern award can include terms - and I'll paraphrase - concerning leave, leave loadings and arrangements for taking leave.  We don't believe that this clause, the gravamen of this clause is leave and we don't believe the gravamen of this clause is about the arrangements for the taking.  We believe that the power to include this clause arises from section 142 of the Act, in the sense that this clause is properly construed to be incidental and without wishing to get into a lengthy debate, we say it is essential for the purpose of making the term operate in a practical way.


Now I'm going to avoid hopefully getting into a debate with his Honour about whether or not the word necessary which Ms Burke used yesterday and the word essential is the same word.  One might say that essential is a more emphatic announcement of necessary but the gap between them is very small.  I often use the comparison in the difference between the word must and shall.


JUSTICE ROSS:  If it's any consolation the issue was determined by a Full Bench that handed down its decision yesterday in relation to the standard clauses.


MR WARD:  Your Honour, I read that with interest last night.  Our point though is this, there is a variety of evidence available in these proceedings including confidential witness number 3, which supports the view that the tests in 142 are met.  By way of example, confidential witness number 3 explained in very stark terms how - and I quote:


I was terrified that my ex would come to work to be waiting for me outside, or follow me throughout the city streets on my way to work and from work.  I thought he'd kill me in the street.


It goes on to explain the deep sense of anxiety they felt around their circumstance having told their employer about their circumstance, and there's no doubt that that evidence suggests that a circumstance can arise where a person is the subject of domestic violence where, having disclosed information to their employer, their anxiety, their fear actually escalates, and there is other evidence in the proceedings from the expert witnesses that talk about that proposition.  In our view, it is really important that the employee is comfortable to actually make the claim for the leave in circumstances where it's legitimately available, and if they were so anxious because of what they've confronted, they were so concerned about telling anybody that they didn't actually make the claim for the leave, that would seem to be self‑defeating.


The clause on confidentiality, which is, with respect, modest from an employer perspective, is designed to overcome that problem in the evidence and to ensure that the clause can operate in a practical way, and irrespective of what one calls the definition of the word, "essential", we submit to the Commission that on a proper reading of section 142, however you want to read it, based on the evidence in this case and the uniqueness of that evidence, the test is met.  And my clients on that basis are not only comfortable to withdraw the original objection, they now advance to this Commission why this clause is permitted and should be included by agreement of the parties.  Unless there are any other matters, those are our submissions.


JUSTICE ROSS:  Thank you, Mr Ward.  Mr Johnston, AMIC has filed two submissions, one dated 1 September and one dated 29 September.  Did you wish to say anything orally in addition?


MR JOHNSTON:  Very briefly.


JUSTICE ROSS:  Certainly.


MR JOHNSTON:  We've participated in the hearing; we oppose the ACTU application; we filed submissions, as your Honour points out, on 1 September and the 29th, and they speak for themselves.  We just wish to make these points.  We still oppose the matter, but having regard to participating in the conferences in the last week, we go on to the second matter, which is what fell from the majority decision.  Concerning the statement that was put out by your Honour this morning, which will find its way onto the website, we are content to put our name to clauses 1, 3, 5 and 6, and the last comment - - -




MR JOHNSTON:  And 4 and the last comment in paragraph 2, which is the "less than a day" proposition, because we do think that's necessary if the Full Bench decide to implement a clause.  A number of propositions, if the Commission please:  one, that the issue of quantum is dependent on the circumstances - the narrower the circumstances, the less the quantum.  That's the first proposition, and other parties - the AIG has made that point.  The second proposition which has also been made, and we made in our submissions, is this is a new form of leave, never ever before contemplated in the federal jurisdiction or anything like it in federal instruments, and one should, as the majority has stated, proceed with caution.  We agree with the third proposition we put, that ABL has put, concerning the interrelationship between this clause and personal leave; and the fourth proposition is we are still at the stage where the Commission has to rely on probative evidence in any clause that's decided.


So that leaves the matters that are referred to in clause 2 of the statement.  We sympathise and philosophically agree with AIG in relation to the casuals, but our submission is that we were guided by the Act, and in section 102 and section 104 there doesn't appear to be any limitation for casuals receiving the unpaid leave, and as far as we could during the submissions we made, we concentrated on the Act.  That leads us to the capping of the leave.  Realistically, we submit a maximum of two days, and we're guided by the Act in relation to that matter.  We heard what the ACTU said yesterday concerning 20 days and there were some throw‑away lines, one of which was well employees may not need the whole of the 20 days.  With respect, that's not the function of a modern award, nor the function of the NES is to provide the minimum, and if we're talking about 20, there has just been no submission or evidence put up that warrants 20 days whatsoever.  Concerning the part‑time matter that has been raised, we put submissions in relation to that when it was asked in the submissions.  We hear what AIG say.  Philosophically we're not opposing that, but the same as the casual situation, we think one should be guided by the Act.


That leads to the "on any occasion" matter, and we just find difficulty with that, which is what has been put my learned friend, Mr Ward.  If clause 3 of the statement which has been issued is agreed to by the Commission when it finally, if it does, reaches a conclusion in relation to the model award, we just don't think that the word "on occasion" leads clarity to that particular clause.  As an example, there may be an incident, there may be interlocutory court action the next day or the day after, there may be a directions hearing, there may be continuation of those interim orders, there may be a final hearing down the track, there may be relocation matters, there may be medical and follow‑up, there may be counselling and follow‑up, et cetera.  There's every one of those particular matters come within clause 3.  Well "on each occasion" just does not, with respect, add clarity and we do not understand for the purpose of clause 3 what an occasion means.  We just think it's not necessary and it adds ambiguity if it ever found its way into a proposed clause that the Commission may consider.  They're our submissions, if the Commission please.


JUSTICE ROSS:  Thank you, Mr Johnston.  Can I go to NatRoad, and NatRoad has filed a submission in the proceedings of 1 September.  You needn't take us to the particular reasons why you say any model term should not apply to the awards that you have an interest in, because as we have indicated in the statements we've made, the question of the application of any model term that arises from these proceedings at an award level will be dealt with later and you'll be given an opportunity to say what you wish to say about that.  But was there anything you wish to say orally to add to your submissions?


MS BURKE:  Your Honour, no, we just essentially rely on our earlier submissions and maintain our opposition to including domestic and family violence leave in the awards.  That said, if the Commission is minded to include unpaid domestic and family violence leave in the awards, we are basically supportive of the draft model clause that has been arrived at over the last week or so, with the exception of clause 2.  In our view, if the Commission is minded to include unpaid family and domestic violence leave within the awards, we oppose any accrual or accumulation from year to year, and on the question of question of quantum, any leave that the Commission is minded to include should be at the lower end of the spectrum and not on a per occasion basis, and that's it, your Honour.


JUSTICE ROSS:  Thank you.  I'd note that we also received a submission from the Transport Workers Union and we've also received a submission from the Master Electricians but I don't think there are representatives of either of those organisations here today.  Just before we adjourn for a break, I just wanted to confirm, I think I dealt with this yesterday but it's becoming a little bit of a blur, in relation to clause 2 on the entitlement question, for myself I was proceeding on the basis that there's really no issue around continuity of service.  It's generally agreed that section 22 of the Act would apply.  In other words, a period of unpaid leave pursuant to a clause such as this would not break continuity of service and nor would it count as service for the purpose of accruing other forms of leave.  So I thought that issue had been agreed.


The second issue was I had taken from the various submissions that it was agreed that however one frames the entitlement if, for example, the entitlement was a specified quantum per annum, then there was no opposition to the inclusion of a provision that a further period of unpaid leave may be provided by agreement between the employer and the employee.


MR WARD:  Your Honour, can I just say that that was advanced in our submissions on 1 September.




MR WARD:  We don't stand back from that.  We still support that proposition.  If an employer and employee wish to provide by agreement for additional leave in those circumstances, it seems an entirely practical thing to do in the context of a modern award.


JUSTICE ROSS:  Yes.  I just wasn't - there wasn't an engagement directly with that point by all of you but can I just ask you to consider that.  You can advise me when we come back.  How long are you likely to be.


MS BURKE:  I'll be less than 10 minutes, your Honour, so - - -




MS BURKE:  I'll be less than 10 minutes in reply so I'm happy to go now if it's convenient but if not.


JUSTICE ROSS:  Everyone else happy?  Well we'll - well happy might be overstating it.  Yes, Ms Burke.


MS BURKE:  Thank you.  There's just four matters I need to address in reply.  The first is in response to something that my friend Mr Ward said at the outset, and that's in relation to my submissions yesterday.  I reject the characterisation of my submissions that I advised this Full Bench or made a submission to this Full Bench that you should determine whether or not to introduce an unpaid leave entitlement in order to create a workplace right.  I was alarmed when I heard those submissions from my friend. I checked the transcript while he was speaking and it will bear out that I did not encourage the Full Bench to create this right for the purpose of creating a workplace right that we could later on use in litigation.


Turning to the question of quantum and the per occasion versus cap issue, the concern was expressed by both the Australian Industry Group and the Australian Chamber that the definition of occasion is unclear and will create uncertainty, and they gave various examples.  As I said yesterday and throughout the hearing in November, and I apparently need to say again, family and domestic violence leave is not something that an employee is entitled to because they experience family and domestic violence.  You need more than that.  You need to - it needs to be necessary to attend to matters arising out of that experience.  So it's not the case that there's some uncertainty about what per occasion means.  Per occasion means what it says in proposed clause 3 of the model term.


The concerns about this being unlimited or leading to an unlimited amount of leave are misplaced because in my submission employers deal with this already in section 102 of the Act.  In extreme cases, for example, a parent might have a very unwell child and certainly in that case the scope for a much greater length of leave may arise.  This is nothing new.  Employers have to deal with this and it's really intended to protect the employment of those people who are in some of the worst situations of their lives.


I just want to reiterate, the ACTU didn't just make up per occasion leave as a good idea.  It wasn't just a thought bubble.  It was based on multiple examples in the Act in the national employment standards that provide for event based per occasion leave.  In my submission, it's consistent with those provisions which we've already been through multiple times, that this entitlement be expressed in that way.


In relation to the cap the submissions of my friends of between two and three days, it's the ACTU's position that that is far too low.  AIG conceded appropriately that although they base their two days on section 102 of the Act, that is a per occasion entitlement.  There was reference to the Breckenridge Paper that my friend Mr Ferguson took you to.  Can I just clarify for the record that that paper is key document 6 to exhibit B28, which was the ACTU's key documents list.  A summary of the evidence in that paper and of all of the other evidence before the Commission about the use - about taking time off, whether paid or unpaid or whether we don't know if it's paid or unpaid is at paragraph 219 of the ACTU's November 2016 submissions.


The AIG also submitted that the cost to employers of employees taking time off should weigh in favour of a smaller grant of leave if the Commission's minded to set a number of days.  I just want to reiterate what was made in our November submissions last year, that the cost of family and domestic violence leave is already $21 billion a year in Australia, and I'll direct the Full Bench to paragraphs 60-71 of those 28 November submissions, which sets out in detail how that cost was calculated by PWC and KPMG, including breaking it right down into lost productivity and so on.  Not just from of course being absent from work but replacement costs when employees resign from work or leave their jobs because they don't feel that they've got any other choice, and lost productivity while at work because they're not able to concentrate, because they're affected by these matters.


The second point is the interaction between paid leave entitlements and unpaid leave.  Reliance has been placed on section 102 of the Act. As I said yesterday, in my submission that's not the proper comparator, if a comparator is necessary at all.  I didn't perhaps express myself very clearly yesterday, so I just want to emphasise this point.  Section 102 of the Act is the second part of a two part entitlement to personal and carers leave. The first part is a paid entitlement and that must be exhausted first, and that paid entitlement is to personal and/or carers leave.  The second part, section 102, is a subset of the paid entitlement.  It's only an unpaid entitlement to carers leave.


Now that's nothing like unpaid family and domestic violence leave, because that's a standalone entitlement.  There's n paid entitlement to exhaust first, and for that reason to the extent a comparator is necessary at all, the appropriate comparator is section 80, unpaid special maternity leave.  In my submission, the note in that section deals with the interaction between paid and unpaid leave in a sensible way.  If it's necessary to make provision for this at all, bearing in mind the submissions I made yesterday on that point, then that's a sensible way to do it.


Finally, just in relation to casuals and part-timers, I don't propose to say anything about casuals given the terrific job done by my friend Mr Ward on that topic.  In relation to - and I thank him.


MR WARD:  I recover.


MS BURKE:  In relation to the question of part-timers and the pro rata of any entitlement to part-timers, consistent with the NES unpaid leave is not prorated among part-time - for part-time employees and that should be the primary response to this question.  But there's another response.  My friend gave an example of an employee working one day a week and then in effect getting a windfall of leave.  But of course the clause, the proposed term must be read as a whole and clause 3 provides that you can only take  family and domestic violence leave if it's impractical to deal with outside ordinary hours of work.


In my submission, an employee who works one day a week is going to struggle, unless of course she's dealing with the listing of a court date and it's fixed on a particular date, but that person for anything else that she has any control over, scheduling‑wise, has four days where she's not at work and can deal with those matters, so it's not the case that granting part‑timers the same quantum of leave as full‑timers means that the part‑timer - and the same applies for casuals - gets a windfall.  The operation of proposed clause 3 acts as a natural limit on how a part‑timer can use an unpaid leave entitlement, and with respect to pro rata‑ing an entitlement for casual employees, in my respectful submission that will create a level of complexity that is inconsistent with the need to maintain or to create and maintain an easy to understand modern award system.  Unless there are any questions, those are my reply submissions.


JUSTICE ROSS:  Do you wish to say anything about the proposition of further unpaid leave by agreement?


MS BURKE:  Yes.  That's a useful clarification, your Honour, and the ACTU would like that included.


JUSTICE ROSS:  Thank you.  Thanks, Ms Burke.  Yes, Mr Ferguson?


MR FERGUSON:  (Indistinct) that point now?


JUSTICE ROSS:  Yes, certainly.


MR FERGUSON:  We oppose that extension of the entitlement.  We don't see how it is in any way necessary in the relevant sense, as guided by section 138, for that to be dealt with through the award system.  Of course, employers and employees can agree on additional unpaid leave.  It doesn't have to be thought of as an extension of the workplace right that has been established, or the entitlement, if you will.


JUSTICE ROSS:  Let's, without creating World War II over what's a - is there any objection to a note that simply observes it, that an employer and employee can agree to additional unpaid leave?


MR FERGUSON:  It doesn't - no, it doesn't, and it wouldn't create a substantive right in that sense, so no.


DEPUTY PRESIDENT GOOLEY:  But it is for example what the Act allows for, taking of unpaid carer's leave where there's an express provision in 103 to be in a separate period to which the employer and the employees agree.  It's not unheard of to include such a provision in the minimum safety net.


JUSTICE ROSS:  Your proposition is it's not necessary to give it to achieve the modern award objective?


MR FERGUSON:  That's right, and that's the position.


JUSTICE ROSS:  I think this came from you, Mr Ward.  You're the one that's caused the trouble.  Can it be dealt with in a note?  From your perspective, does it make any difference?


MR WARD:  Your Honour, all the trouble I've caused in my career, I thought this would be a fairly benign proposition.


JUSTICE ROSS:  Yes, no, sure.


MR WARD:  Your Honour, no, it's fine.  I just think in the context of a new clause, and in the context of 134, it's useful for people to have an understanding of what can occur for leave is expired, particularly given the way we proposed it.  So we just saw it as an entirely useful and proper piece - but if a note's there a note's there, that's fine.


JUSTICE ROSS:  It's really consistent with the point that Ms Burke made that it would be useful to provide some guidance.


MR WARD:  Yes.


JUSTICE ROSS:  Because I think, absent that, if you take your submission, Mr Ferguson, that this might have a chilling effect on agreements that might be reached at the workplace level, I don't think any of us would want the fact that there's some entitlement, if an employee exhausted it, that an employer felt they couldn't do anything else.


MR WARD:  No, and my clients obviously have a philosophical preference for employers and employees reaching agreements on matters, and it's in that sense that we advanced it and we saw it as a relatively benign proposition.  But if a note is to be included, we're comfortable with that.


MR FERGUSON:  You've probably advanced what my concern is that if it's a note just relating to the capacity of employers/employees to reach agreement about unpaid leave, I have no difficulty; I just don't see that it needs in any way to expand the nature of the entitlement, as such, if that makes sense.




MR FERGUSON:  Even by agreement.


JUSTICE ROSS:  Does anyone else wish to say anything about this?  Is it safe for us to proceed on the basis that there was a degree of support and no opposition for the proposition that a note be included indicating that in the event that the entitlement was exhausted that an employer and employee may agree to a further period of unpaid leave?


MR WARD:  No objection, your Honour.


JUSTICE ROSS:  Anything else anyone wishes to say?  Can I just conclude then before we adjourn by thanking all of the parties, not just for your submissions, but more particularly for your constructive engagement over the course of the last week, which has made our task considerably easier, particularly around the definitional issues and clause 3.  They were quite complex matters and they're also matters around which there are a broad range of options, and I appreciate that arriving at those positions has meant that each of you has engaged in a significant degree of compromise in arriving at those agreed positions, but I think it's much better that there's a common understanding and support for them.  With that, thank you.  We will adjourn and reserve our decision.

ADJOURNED INDEFINITELY                                                           [1.35 PM]



EXHIBIT #MFI1 DOCUMENT RE SECTION 67........................................... PN441