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Fair Work Act 2009                                                    





s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Common Issues – Transitional Provisions - District Allowances









9.15 AM, WEDNESDAY, 11 APRIL 2018


Continued from 10/04/2018





MS KNIGHT:  Thank you.


DEPUTY PRESIDENT KOVACIC:  Mission accomplished, I'm told.


MS KNIGHT:  The mission is accomplished.  Thank you.


(Telephone link established)


DEPUTY PRESIDENT KOVACIC:  Ms Rankin, it's Deputy President Kovacic here.  Can you hear me clearly?


MS RANKIN:  Yes.  I can hear you clearly.


DEPUTY PRESIDENT KOVACIC:  Thank you very much for making yourself available so early in the morning over in the west.  Thank you.


MS RANKIN:  That's okay.




MR IZZO:  Ms Rankin, I might just affirm you, first.




THE ASSOCIATE:  Could you please state your full name and address.


MS RANKIN:  Yes.  It's Jessica Rankin, (address supplied).

<JESSICA RANKIN, AFFIRMED                                                      [9.15 AM]

EXAMINATION-IN-CHIEF BY MS KNIGHT                                  [9.16 AM]

***        JESSICA RANKIN                                                                                                                         XN MS KNIGHT


MS KNIGHT:  Good morning, Ms Rankin.  It's Joanne Knight.  I'm appearing as national industrial officer for the ASU?‑‑‑Hi Joanne, how are you this morning?


I'm well.  Thank you very much.  Jessica, did you give a statement in support of the ASU application for district allowances?‑‑‑Yes, I did.


Thank you.  Do you have a copy of that statement to hand right now?‑‑‑Yes, I do.


Thank you.  Is that statement two pages long?‑‑‑Yes, it is.


And are the contents covered over 12 paragraphs?‑‑‑Yes, it is.


And is that statement signed and dated?‑‑‑Yes, it is.


And if I can take you to page 2 at the bottom of that page, is that your signature?‑‑‑Yes, it is.


Thank you, Jessica.


DEPUTY PRESIDENT KOVACIC:  Ms Rankin, it's Deputy President Kovacic here again.  Yesterday there were some objections raised in respect of two sentences in paragraph 11 of your witness statement.  So, for your benefit, I would mention that the second sentence, which is the sentence that reads:


At the moment there are only two day care places left in town for residents to enrol their children.


And the last sentence of that paragraph:


This limits primary care ‑ ‑ ‑


?‑‑‑Sorry, can you speak up?


Bear with us.  It was the second and the last sentences, wasn't it?


MR IZZO:  It's the second-last sentence.

***        JESSICA RANKIN                                                                                                                         XN MS KNIGHT




MR IZZO:  And the last sentence, so third and the fourth, sorry.


DEPUTY PRESIDENT KOVACIC:  Sorry, the last two sentences.  Sorry, the sentences:


Friends of mine pay $2000 per week for day care and there are no other options available to them.  This limits primary care givers of small children from being able to work.


It was agreed that those two sentences would be struck out.  So I mention that for your benefit?‑‑‑Okay.


Those two sentences are no longer taken to be part of your witness statement.  And your witness statement as amended is to be marked exhibit 8?‑‑‑Okay.



MS KNIGHT:  Thank you, Jessica.  It's Joanne Knight again.  Can you hear me?‑‑‑Yes, I can.


Jessica, I just wanted to also take you to paragraph 3 in your statement?‑‑‑Yes.


The second-last sentence in that statement says that:


Attached to this statement is a recent pay slip.  See attachments.




As you would be aware, the ability for us to obtain that pay slip wasn't achieved before I needed to make my submission.  If required, can you provide a copy of your recent pay slip if the Commission or our respondents to this matter request it?‑‑‑Yes, that's not a problem.


Thank you, Ms Rankin.

***        JESSICA RANKIN                                                                                                                         XN MS KNIGHT



CROSS-EXAMINATION BY MR IZZO                                             [9.19 AM]


MR IZZO:  Hi Ms Rankin, my name is Luis Izzo.  I'm just going to ask you just a few questions about your statement if that's okay?‑‑‑Yes, of course.


I just firstly wanted to understand, you're living in South Hedland and working in Port Hedland; is that correct?‑‑‑No, I live in Port Hedland and work in South Hedland.


Right, okay.  My apologies?‑‑‑That's okay.


What's the commute like?  How long does it take you to get to work?‑‑‑Probably 15 or 20 minutes.


Sure.  How is that?  Is that by driving or is that by ‑ ‑ ‑?‑‑‑Driving.


Driving.  Right, okay.  How long have you been living in the Port Hedland/South Hedland area?‑‑‑Three-and-a-half years now.


Was that three-and-a-half years?‑‑‑Yes.


Where were you before that?‑‑‑I was in Perth.


You were in Perth.  What were you doing in Perth?‑‑‑I was managing a business with my partner.


So you were both working in the business together?‑‑‑Yes.


How long were you doing that for?‑‑‑I feel compelled to say that it was actually a domestic violence relationship and I fled to Port Hedland to escape him.


I'm terribly sorry to hear about that?‑‑‑That's okay.


If I might ask you about something slightly different?‑‑‑Sure.

***        JESSICA RANKIN                                                                                                                           XXN MR IZZO


You talk about your living expenses and refer to your accommodation in Port Hedland you talk about a partner, and I take it that's a different partner you're referring to in your witness statement?‑‑‑Yes.  So the partner I lived with in Perth is a different partner.  Yes.


Yes.  So in terms of your living expenses do you own or rent the property that you're currently living in?‑‑‑Rent.


And what's your rental expenses like?‑‑‑It's $120 a week.  It's subsidised through my partner's work.


Right.  What's your partner do for work?‑‑‑He works as a manager of Environmental Health and Community Safety at the council.


Do you know how much your partner earns?‑‑‑I think he'd feel uncomfortable with me talking about his salary in the union matter.


If I could perhaps deal with it this way – actually if you just bear with me one moment, Ms Rankin?‑‑‑Sure.


Your Honours, in relation to asking about the partner's salary I think one of the difficulties we have is that the cost of living and living expenses is something that's been put squarely in issue by the unions in this matter?‑‑‑Yes.


Sorry, Ms Rankin, I'm just speaking to their Honours for a moment just to deal with this matter, if you don't mind?‑‑‑Sure.


One of the issues it relates to the cost of living and it relates to the experiences that these witnesses have in the relative area.  If it's not already apparent ultimately we're going to be leading to a submission that for whatever reason if you look at the circumstances of these individuals many of them are there for reasons that keep them there in the region at the moment because it works for them, one way or another.  Some of them it's because of their partners being there and that's helping to subsidise them.  Some of them it's because they love it because they love the heat.  But for whatever reason we're ultimately going to build to a submission that when you look at the individuals here living in Port Hedland works for them, or living in those regional areas.  A key element of that is to understand why they're there, what's keeping them there, and why they haven't moved on.  To that extent I think the partner's salary or remuneration is relevant, particularly when these witnesses are putting in issue the cost of living.

***        JESSICA RANKIN                                                                                                                           XXN MR IZZO


Perhaps one way of dealing with it is to see if we can have some confidentiality arrangement so that the salary disclosed is not put on the transcript if the parties agree to keep it confidential.  I'd be more than comfortable to do that, but I do think it's relevant information that the Commission should hear, given the nature of the matters that have been put in issue by the union parties.


DEPUTY PRESIDENT KOVACIC:  Ms Knight, is there anything you want to say, given it's your witness?


MS KNIGHT:  The respondent's case is the case that they have to make.  I could add, in this particular issue, Ms Rankin has already identified that her husband is a salaried worker in the Port Hedland Council, and, on that basis, due to an enterprise agreement, his accommodation is subsidised.  So in terms of that going to our arguments about cost of living we'd be noting that it's – the way the various industries deal with already compensating remote living depends on the circumstances of their work.  So there's no guarantee that they would be compensated.  It's not about a choice of being there.  It's about recognising whether or not there is remoteness involved in the work.


DEPUTY PRESIDENT KOVACIC:  Mr Izzo, I wonder whether something you said might be one way of addressing it in terms of whether the issue needs to be pressed, and that is asking questions as to what keeps Ms Rankin staying in Port Hedland.  Whether it's personal matters or alternatively the fact that her partner/husband, whatever the case might be, earns a significant income and they don't want to walk away from that might be a way of perhaps getting to the point that you want to without necessarily having to extract the income, given the sensitivity.


If, however, ultimately you want to press it, subject to the views of my colleagues, I'd be, speaking personally, comfortable with the amount not necessarily being reflected in transcript and I'd assume that people would feel comfortable in dealing with it confidentially if that needs to be the case.  But my preference would be if, given Ms Rankin's sensitivity about the issue, if perhaps you might explore the issues that you want to get to in a round-about way.


MR IZZO:  I will endeavour to do that, your Honour.


DEPUTY PRESIDENT KOVACIC:  All right.  If we can get Ms ‑ ‑ ‑

***        JESSICA RANKIN                                                                                                                           XXN MR IZZO


DEPUTY PRESIDENT BULL:  Ms Knight, did you say that your witness's partner was employed by the Port Hedland Shire covered by an enterprise agreement?


MS KNIGHT:  I didn't say that, no.  What I said is that Mr Izzo's question has revealed that he is a salaried employee of the council there.




MS KNIGHT:  So she has described his employment as working with the manager of the Environmental Health ‑ ‑ ‑


DEPUTY PRESIDENT KOVACIC:  I just wondered if it was covered by an enterprise agreement there's nothing confidential about the rate then.  But if he's not then ‑ ‑ ‑


MS KNIGHT:  That would be correct, but perhaps that would be the question to ask.


DEPUTY PRESIDENT BULL:  Yes, all right.  Thank you.


MR IZZO:  Thank you.  Ms Rankin, can you still hear me?


DEPUTY PRESIDENT KOVACIC:  It appears as though Ms Rankin has hung up.  So we'll have to dial her back in.  I was going to suggest we might do the paperwork in respect of Ms Hughes-Gage's witness statement, but I think it's probably appropriate that Mr Tindley be around for that. The IT people are on to it, so we'll get back at lunch time, I think.


MR IZZO:  Your Honour, given the break, just as a matter of scheduling are we able to inquire respectfully in relation to the Commission's availability this afternoon?  We'd understood that there may have been other matters that caused commitments between 2 and 4.  Is that still the case?


DEPUTY PRESIDENT KOVACIC:  We'll have to finish at 4 because Commissioner Bissett has a matter that's – we'll have to finish by 4.30 because I have a matter, that was originally listed for 4.30, is still on.  So I think that's probably as far as we could go today.

***        JESSICA RANKIN                                                                                                                           XXN MR IZZO


MR IZZO:  Yes.  And I was just inquiring because we had concerns that maybe the period between 2 and 4 was unavailable, but it sounds like that's not the case.


DEPUTY PRESIDENT KOVACIC:  No, no, no, no.  No, the intention is to, once we deal with Mr Parker's evidence, is to roll straight over into the unions' submissions and see how far we get this afternoon with that.  I think Mr Scaife was hopeful that he would conclude his submissions this afternoon.


MR SCAIFE:  Yes, Deputy President.  I should say we are still trying to see if we can get Ms Churchill to attend this morning.




MR SCAIFE:  I haven't had any success, however, since yesterday unfortunately.  But the proposal that I've discussed with the employer parties is, if the Full Bench is comfortable with this, that I'm prepared to start submissions - tender the remaining evidence and documents, start submissions, and then, if necessary, that may be interrupted by Ms Churchill either later today or tomorrow morning, and I will just simply deal with any issues that arise from Ms Churchill's evidence that the employer parties wish to raise in submissions.  I'll just deal with those issues in reply.  It's not ideal, but I think it's the most efficient way of using the Full Bench's time.


DEPUTY PRESIDENT KOVACIC:  We're comfortable with that.


MR SCAIFE:  Yes, your Honour.


DEPUTY PRESIDENT KOVACIC:  We might just deal with admitting Ms Hughes-Gage's witness statement whilst we're still waiting to get Ms Rankin back on the line.


MR SCAIFE:  Yes.  Thank you, Deputy President.  So the statutory declaration of Lee-Anne Hughes-Gage is at tab 13 of our court book.  It's not a signed or dated document, but we are able to get a copy of that.  Unfortunately I just don't have it today.



***        JESSICA RANKIN                                                                                                                           XXN MR IZZO


MR SCAIFE:  But I understand that there's no objection from the parties for it to be tendered in its present form.  And I will tender that witness statement and then tender separately some email correspondence with Mr Izzo from last night.  So if I could tender the statutory declaration first.


DEPUTY PRESIDENT KOVACIC:  I will mark the statutory declaration of Ms Lee-Anne Hughes-Gage, which comprises six pages and 31 paragraphs, as exhibit 9.



MR SCAIFE:  And If could hand up to the Full Bench – this is just a copy of email correspondence between myself and Mr Izzo last night, which addresses a question that Mr Izzo wished to be dealt with, and we're just seeking to tender that document in relation to Ms Hughes-Gage.  It was a clarification of Ms Hughes-Gage's evidence, and I understand there's no objection to that.


DEPUTY PRESIDENT KOVACIC:  I take it there's no objections.  I'll mark the email between Mr Scaife and Mr Izzo of 10 April 2018 exhibit 10.



MR SCAIFE:  Thank you, Deputy President.  It may be that this is also an opportune time for me to tender the witness statement of Mr O'Keefe, because I understand that he's not required for cross-examination by any of the employer parties either.  So this is at tab 14 of our court book, witness statement of Mr O'Keefe which is four pages, 27 paragraphs, and signed and dated 16 February 2018.


DEPUTY PRESIDENT KOVACIC:  I'll mark the witness statement of Mr Peter O'Keefe which comprises 27 paragraphs, four pages, and is dated 16 February 2018 exhibit 11.



MR SCAIFE:  And I might also tender the other documents if the ‑ ‑ ‑




MR SCAIFE:  ‑ ‑ ‑Full Bench would like any other documents in the court book that we'd like to go into evidence.

***        JESSICA RANKIN                                                                                                                           XXN MR IZZO


MS KNIGHT:  I am receiving some text messages that Lee-Anne is trying to find out if you're calling her.




MS KNIGHT:  Yes.  Sorry, Jessica, I apologise.  And she's just mentioned that she has – she's anxious about getting to work.


DEPUTY PRESIDENT KOVACIC:  All right.  We'll go straight to that.




MS KNIGHT:  If I can just note, I think there's obviously an issue with the reception with the mobile.  I'm definitely able to contact her here on my phone, but it seems that you're not making a connection with the phone.


DEPUTY PRESIDENT KOVACIC:  It must be with Telstra.


MS KNIGHT:  It must be with Telstra, yes.


DEPUTY PRESIDENT KOVACIC:  Mr Scaife, just in terms of the issue you mentioned a moment ago marking the court book.




DEPUTY PRESIDENT KOVACIC:  In circumstances where it's largely comprised of witness statements which are separately marked I'm not sure of the utility of marking it as a holus-bolus.  Yes.


MR SCAIFE:  Yes.  If the Full Bench is prepared to receive a separate document, say, perhaps 3, 4 and 5 as just being – I don't know if they need to be marked for identification, but if the Full Bench is prepared to just receive those as matters before it in the review.


DEPUTY PRESIDENT KOVACIC:  We might receive those individually.

***        JESSICA RANKIN                                                                                                                           XXN MR IZZO


MR SCAIFE:  Yes.  That's what I was suggesting, Deputy President.  Sorry.


DEPUTY PRESIDENT KOVACIC:  I'm sorry.  I misunderstood.


MR SCAIFE:  Yes, sorry.


DEPUTY PRESIDENT KOVACIC:  I thought you meant the court book in its entirety.




DEPUTY PRESIDENT KOVACIC:  Any objections to any of those documents being tendered?


MS KNIGHT:  No objection.


MR IZZO:  No objection.


DEPUTY PRESIDENT KOVACIC:  I'll mark – in terms of the document at tab 3 which is the regional price index 2017 produced by the Department of Primary Industries and Regional Development of Western Australia as exhibit 12.





(Telephone link re-established)




MS RANKIN:  Hello.  Yes, hi.


THE ASSOCIATE:  Hello.  Great, we've got you back on the line.

***        JESSICA RANKIN                                                                                                                           XXN MR IZZO


MR IZZO:  Ms Rankin, it's Mr Izzo here again.  Thank you for your patience?‑‑‑That's okay.


I might try and go about the question – I appreciate the sensitivity you have about disclosing your partner's actual income.  I  might initially just try and go about it a different way to see if we can address that sensitivity by asking you some more general questions that don't require you to give numbers so to speak.  Can you tell me whether he earns more than you?  Are you comfortable telling me that?‑‑‑He does earn more than me, yes.


He does earn more than you.  Okay.  Do you know whether he is subject to an enterprise agreement at all?  His employment?‑‑‑No.  No, I don't think he is.


Sure.  And can I just ask how long you've been with your current partner?‑‑‑Two years.


Can I ask did you meet your current partner in Port Hedland?‑‑‑Yes.


Do you know how long he's been in Port Hedland?‑‑‑Ten years.


Can I ask you, have you, in more recent years, so the last 12 months, 24 months, have you looked to move to places that aren't as remote, places like Bunbury or Geraldton or Mandurah?‑‑‑No.  No.


Yes?‑‑‑No, I love living in Port Hedland.  I mean, obviously the isolation is difficult, but also my partner has a contract, and all of our friends are here, and he's been here for 10 years, so ‑ ‑ ‑


Thank you.  I did just want to ask you a little bit about some recent developments that you may or may not be aware of in Port Hedland.  I appreciate you've only been there for a short period of time.  Are you aware of any upgrade to the hospital facilities in Port Hedland in about 2010?‑‑‑No.  I wasn't here then.


Sure?‑‑‑So – and if the hospital facilities have been upgraded that's news to me, because I've stayed at the hospital there and I wouldn't say that they're exactly first class facilities.


Sure.  Are you aware, and I'm not sure where this has gotten to, are you aware of a development at, what I understand to be, the Main Street Jetty where there's a project to develop?  I ‑ ‑ ‑?‑‑‑Are you talking about the marina?

***        JESSICA RANKIN                                                                                                                           XXN MR IZZO


I think that's right, yes?‑‑‑Yes, I am aware of that project.  It's been going on for – well, they've been talking about it for two years.  It's the subject of a lot of controversy in Port Hedland.  I'm not sure if it's ever going to get off the ground.  But even if it does it's probably going to be rife with financial issues, because the town can't afford to maintain the assets that it builds.


Sure.  So in terms of that project, so can I best summarise your evidence as there is a proposal to develop.  You're saying construction hasn't started and that there appears to be different views as to whether it should go ahead or not; is that right?‑‑‑No, construction hasn't started.


It hasn't?‑‑‑But there's definitely conflicting views about whether or not it should or will go ahead.


All right.  And are you aware of any other development in the last few years that you've been there?‑‑‑Beautification works to maybe fix up some of the landscaping along Forrest Circle, but that's about it.


Are you aware of any development of the local school?‑‑‑No.


I just want to confirm, you're employed under the Aboriginal Communities and Organisations Western Australian Interim Award.  So your employment ‑ ‑ ‑?‑‑‑Yes.


So that is a Western Australian industrial system award; that's correct?‑‑‑I believe so, but I could be wrong.  I haven't really looked into it.


Sure.  So you understand, do you not, that – sorry, I'll withdraw that.  I don't have any further questions for Ms Rankin.


DEPUTY PRESIDENT KOVACIC:  So any other employer representatives in Sydney have any questions?  Mr Tindley in Melbourne?


MR TINDLEY:  No, thank you.


DEPUTY PRESIDENT KOVACIC:  Ms Knight, do you have any re-examination?

***        JESSICA RANKIN                                                                                                                           XXN MR IZZO


MS KNIGHT:  No, thank you.


DEPUTY PRESIDENT KOVACIC:  Thank you very much, Ms Rankin.  You're now excused and free to go, so we'll just hang up the phone, and thank you again for making yourself available so early in the day, goodbye.

<THE WITNESS WITHDREW                                                            [9.44 AM]


DEPUTY PRESIDENT KOVACIC:  So no news on Ms Churchill?


MR SCAIFE:  I'd need to request another short adjournment to try another phone call, but I can't say I'm optimistic about my prospects.


DEPUTY PRESIDENT KOVACIC:  We can offer the services of the IT people perhaps.


MR SCAIFE:  By all means.


DEPUTY PRESIDENT KOVACIC:  All right.  We'll take an adjournment.  If you could just keep my associate informed, and then we'll see where we go to from there.


MR SCAIFE:  Thank you.



SHORT ADJOURNMENT                                                                    [9.45 AM]

RESUMED                                                                                               [9.57 AM]


DEPUTY PRESIDENT KOVACIC:  Thank you, Mr Scaife.  We might ‑ ‑ ‑


MR SCAIFE:  Thank you for that indulgence, Deputy President.  Unfortunately we haven't been able to establish contact with Ms Churchill.  Nonetheless I have just conferred with the employer parties, and if it's acceptable to the Commission I'm more than willing to essentially tender the remaining documents that can be tendered on our side, and then I understand that there may be some documents that the employer parties wish to tender.  And then I'm comfortable to go into closing submissions, and to deal with Ms Churchill's evidence should anything arise at a later stage tomorrow.


DEPUTY PRESIDENT KOVACIC:  I think our preference would be to at least hear from Mr Parker later today before we turn to submissions.




DEPUTY PRESIDENT KOVACIC:  In the interim if you could keep trying Ms Churchill and, if successful, the Bench will be able to reconvene, which would mean we would now adjourn notionally till 2 o'clock subject to Ms Churchill becoming available.  Because, given what Ms Bhatt said yesterday, in terms of submissions today, I think we would only entertain hearing from the unions which would give the employers the opportunity to reflect on union closing submissions overnight and accommodate that, and then in their submissions, so there's not a lot to be of an advantage from the Bench's perspective in terms of starting now and particularly with two witnesses still to go.  So that's our preference.


MR SCAIFE:  Certainly.


DEPUTY PRESIDENT KOVACIC:  But nonetheless we can nevertheless conclude dealing with marking the documents that we were dealing with.




DEPUTY PRESIDENT KOVACIC:  I was just about to turn to ‑ ‑ ‑


MR SCAIFE:  Tab 4.


DEPUTY PRESIDENT KOVACIC:  ‑ ‑ ‑tab 4, which is the Australian Bureau of Statistics Data Locality 2017 to Remoteness Area 2016.  I shall mark that as exhibit 13.



DEPUTY PRESIDENT KOVACIC:  In terms of tab 5 there is a report titled, The Role of Pecuniary and Non-Pecuniary Factors in Teacher Turnover and Mobility Decisions.  I shall mark that as exhibit 14.



MR SCAIFE:  Then I think it's perhaps appropriate that we tender the correspondence of the Fair Work Commission at tab 15.




MR SCAIFE:  This is the correspondence that I referred Deputy President Bull to yesterday.


DEPUTY PRESIDENT KOVACIC:  I'll mark the correspondence from Mr Scaife, which is dated 4 April 2018 to my associate, that comprises two paragraphs, as exhibit 15.



MR SCAIFE:  Thank you, Deputy President.  The only remaining issue is that I would like to take the Full Bench to extracts of the enterprise agreements that are referenced in that correspondence during submissions.  Because I don't have the printing facilities that I do in Perth, we've just printed out extracts of the relevant provisions.  Whether or not the Bench is comfortable with them being, say, marked for identification during submissions, or whether it would like to receive those extracts now?  I'm in your hands.


DEPUTY PRESIDENT KOVACIC:  I think it's probably better if they're dealt with in submissions.


MR SCAIFE:  Thank you, Deputy President.  That's otherwise all of the evidence for the SDA.


DEPUTY PRESIDENT KOVACIC:  Thank you, Mr Scaife.  Mr Izzo, Ms Bhatt or any of the other employer representatives, I got the impression from what Mr Scaife said that there may be some documents that you wish to tender?


MS BHATT:  There's nothing that we seek to tender.  Ms Izzo might.


MR IZZO:  We have two documents, your Honours.  They're actually – they were attached to our submissions, but we'd like them tendered as evidence.  They're both publicly available documents.  The first is annexure B to our submissions.  It's a series of ABS, Australian Bureau of Statistics census reports in relation to cost of living in each of the regions that is subject to the present district allowance claim.  So that's at annexure B of the submissions and it runs for some – it's paginated, but unfortunately every page is paginated 1 of 12.  It's about 15 or 20 pages and it's marked annexure B.




MR SCAIFE:  I apologise, Deputy President.  Sorry to just stick my nose in here.  There are annexures to the back of our submissions as well, and just in case we wanted to keep things in a particular order, whether or not I should have tendered those earlier.  Mr Izzo had just made me realise this referring to annexures to his submissions.


DEPUTY PRESIDENT KOVACIC:  Because I'm just following the sequential numbering I'm not sure that it's critical from ‑ ‑ ‑


MR SCAIFE:  No, that's fine, Deputy President.


DEPUTY PRESIDENT KOVACIC:  It's not as if – whatever, so I think that's fine.  So I'll mark annexure B to the submissions of ABI and the New South Wales Business Chamber, which is headed Australian Bureau of Statistics 2016 Census Quick Stats as exhibit 16.



MR IZZO:  Thank you, Deputy President.  The next document is a report prepared by CoreLogic on housing affordability.  It is at annexure C of the submissions, and if that could also be tendered.


DEPUTY PRESIDENT KOVACIC:  I'll mark the report titled Housing Affordability Report December 2016 produced by CoreLogic as exhibit 16.  Seventeen.


MR IZZO:  Seventeen, I believe.





MR IZZO:  They're all the documents that we wish to tender.


DEPUTY PRESIDENT KOVACIC:  Thank you.  Mr Scaife, did you want to deal with ‑ ‑ ‑


MR SCAIFE:  Sorry.




MR SCAIFE:  Sorry, Deputy President.  Yes, the annexures to – this is to tab 2 of the SDA's court book, at page 35 of the court book.  We'd seek to tender the map that's set out there because it describes the regions that the SDA's claim relates to.


DEPUTY PRESIDENT KOVACIC:  So it is annexure 1 or annexure 2?


MR SCAIFE:  Annexure SDA1.


DEPUTY PRESIDENT KOVACIC:  I'll mark annexure SDA1 to the SDA's submissions as exhibit 18.



MR SCAIFE:  Then annexure SDA2 on the next page.  I have to say the PDF version that's been supplied to the Commission is clearer than the printed version, but still not ideal.  But if that could be marked as well, Deputy President.


DEPUTY PRESIDENT KOVACIC:  I'll mark that annexure SDA2 to the SDA's submissions as exhibit 19.



MR SCAIFE:  Then on the next page is annexure SDA3, which is referred to in our submissions, and it's a table comparing the current state allowances against a percentage of the standard rate in the modern award.


DEPUTY PRESIDENT KOVACIC:  I'll mark annexure SDA3 to the SDA's submissions as exhibit 20.



MR SCAIFE:  Thank you, Deputy President.


DEPUTY PRESIDENT KOVACIC:  Thank you.  Is that all the procedural issues we need to deal with?


MS BHATT:  Would the Deputy President just give me one moment to confer with my friend?




MS BHATT:  Deputy President, if I might address the Full Bench on one procedural issue, and it's about the availability of Ms Churchill.  I take it from our very brief conversation with Mr Scaife that there is a real likelihood that we're not going to be able to get hold of Ms Churchill in the next four hours, and that she will therefore need to be called tomorrow morning presumably.


I wonder if it's convenient that we formally stand down until 2 pm and assume that she won't be called over the next four hours.  I think some of us were hoping to make use of the time to continue our preparations for tomorrow and given the period of time that's left we might return to the office potentially.  If it's convenient to the Full Bench, then perhaps we ought to stand down and proceed on the assumption that we will return at 2 pm to deal with Mr Parker if that's convenient.


DEPUTY PRESIDENT KOVACIC:  Does anyone else have any objections to that particular approach?


MR SCAIFE:  No, Deputy President.


DEPUTY PRESIDENT KOVACIC:  Mr Tindley in Melbourne, any objection to that approach?


MR TINDLEY:  No, Deputy President.


DEPUTY PRESIDENT KOVACIC:  All right.  I'm comfortable with that.  So we'll adjourn until 2 pm.  If we can get Ms Churchill this afternoon I think that'd be advantageous.


MR SCAIFE:  Yes.  I will see what we can do.


DEPUTY PRESIDENT KOVACIC:  Just before we break, can I just check with the parties in terms of their expectations as to when we might conclude, and I know that there's still a few loose ends.  But is the sense that we might finish up by close of business tomorrow?


MR SCAIFE:  Certainly that would be my expectation.  I don't expect our closing submissions to take longer than an hour, depending on questions from the Bench, and reply half an hour.  So I think that leaves sufficient time for the employer parties to make their submissions.




MS BHATT:  I suppose the major variable is how long the respondent praties take.  I've had a brief discussion with some of my friends in Sydney today, and I understand that some of the submissions will be quite brief.  As I said yesterday I expect mine will be about half an hour to 40 minutes.  I'm not sure on whether we'll be receiving one set of oral submissions or two from Melbourne.  I'm not sure if Mr Tindley continues his appearance for the Master Grocers, but it may be that there are about five or six respondent parties that will seek to be heard.


DEPUTY PRESIDENT KOVACIC:  Mr Tindley, do you have a view on whether we'd finish?  I should indicate that we'd be happy to start a little bit earlier tomorrow if that meant that we could finish up tomorrow.  If that was suitable to the parties.


MR SCAIFE:  It's certainly suitable to the SDA.


MR TINDLEY:  Deputy President, we don't envisage being any more than 20 minutes to half an hour for our closing submissions, depending on what other respondent parties have submitted at that point.


DEPUTY PRESIDENT KOVACIC:  Let's see where we get to at the end of the day, but I think we can probably operate on the basis that everyone is aiming to finish up tomorrow.  We're now adjourned until 2 pm.

LUNCHEON ADJOURNMENT                                                        [10.09 AM]

RESUMED                                                                                               [2.02 PM]


DEPUTY PRESIDENT KOVACIC:  Ms Knight, we have Mr Parker on the line I understand.


THE ASSOCIATE:  Could you please state your full name and address.


MR PARKER:  Malcolm Charles Parker, (address supplied).

<MALCOLM CHARLES PARKER, AFFIRMED                            [2.03 PM]

EXAMINATION-IN-CHIEF BY MS KNIGHT                                  [2.03 AM]


MS KNIGHT:  Good afternoon, Mr Parker.  It's Joanne Knight, appearing as national industrial officer for the ASU.  Can you hear me?‑‑‑Yes.  Can you just speak a little bit louder?  Thank you.


Certainly.  I'll bring the microphone closer as well.  Is that better?‑‑‑Yes, that is better, Joanne.


Thank you, Mr Parker.  Mr Parker, did you give a statement in support of the ASU application for district allowances?‑‑‑Yes.  That's correct, Joanne.


Mr Parker, do you have a copy of that statement to hand?‑‑‑Yes, I do, Joanne.


Mr Parker is that statement three pages long?‑‑‑That's correct, Joanne.


Is the content of that statement in 23 paragraphs?‑‑‑That's correct, Joanne.


Is there a two-page attachment to that statement?‑‑‑Yes, there should be.  I don't have the attached bit, but ‑ ‑ ‑


I'm sorry, Mr Parker, is that yes?‑‑‑Yes, I have the three pages, but the attachments I don't have, sorry.


Thank you.  Is that statement signed and dated?‑‑‑That is – just let me have a look at the last page, sorry?‑‑‑Yes, it is.


On page 3 is that your signature?‑‑‑That is correct.


Thank you, Mr Parker.  The ASU tenders the statement.


MS BHATT:  Before the statement is marked there is an objection.

***        MALCOLM CHARLES PARKER                                                                                                   XN MS KNIGHT




MS BHATT:  And I understand that ‑ ‑ ‑


MS KNIGHT:  That is my fault.  I'm sorry.  I jumped ahead too quickly.  I apologise.  I did actually want to take Malcolm to paragraph 5.




MS KNIGHT:  I apologise, Malcolm.  Malcolm, based on the attachments that we were just referring to, can I take you to paragraph 5 of your statement?‑‑‑Yes.


Malcolm, you might recall when I took this statement from you a couple of months ago we referred to the third sentence and the last sentence?‑‑‑Yes.


In those discussions I spoke with you about talking to your branch union in WA about that material that is referred to as attachment B?‑‑‑That's correct.


Unfortunately, Malcolm, that material wasn't provided.  So what I'm proposing is that we strike out the third and last sentence from paragraph 5?‑‑‑That is fine.  Yes, that's fine.


Thank you, Malcolm.  So my last question, is this to the best to your knowledge a true and correct statement?‑‑‑Yes, to the best of my knowledge it's true and correct.


Thank you, Malcolm.  The ASU tenders the statement of Malcolm Parker.


DEPUTY PRESIDENT KOVACIC:  Just so I'm clear, Ms Knight, so what you've suggested as a deletion is, is it just the last sentence or is it the last two sentences at paragraph 5?


MS KNIGHT:  The last two sentences.



***        MALCOLM CHARLES PARKER                                                                                                   XN MS KNIGHT


MS KNIGHT:  We did confer with the respondents to come to that solution.  Thank you.


DEPUTY PRESIDENT KOVACIC:  Thank you.  I'll mark the witness statement of Malcolm Charles Parker as amended, which comprises 23 paragraphs and one attachment and is dated 23 February 2018, exhibit 21.




CROSS-EXAMINATION BY MR IZZO                                              [2.07 PM]


MR IZZO:  Mr Parker, my name is Luis Izzo.  Can you hear me okay?‑‑‑Yes, I can, and good afternoon.


Good afternoon to you.  I'm just going to have a few questions for you.  The first one is you refer in your statement to a Port Hedland allowance that you get, which is $9.27 per hour?‑‑‑Yes.


That's at paragraph 4 of your statement.  Do you see that?‑‑‑Yes.  Yes, I do see that.


So that's for living in Port Hedland, is it?‑‑‑Yes.  So it's allowances – it's, like, $18,000 a year on top of our wages, so, yes, they give us – it works out to be $9.27 an hour on top of our normal hourly rate.


Great.  Thank you for clarifying that.  Your statement later on at paragraph 23 – so this is the very last paragraph of the statement?‑‑‑Yes.


It talks about being disadvantaged because Port Hedland is very remote and it says that if your employer had to pay you a district allowance you could plan and respond to the effects of living in remote Western Australia with less worry.  So I took it from that initially that you were saying if you were paid a district allowance you could live with a little less worry in terms of financial matters.  But I take it you're already in receipt of an allowance in relation to where you live.  That's right, isn't it?‑‑‑Yes, but the point that I'm making there is that the actual district allowance is only one component of our allowance.  It's made up of other things as well, so – yes, that's where I was – that's what I was trying to explain.

***        MALCOLM CHARLES PARKER                                                                                                     XXN MR IZZO


So are you aware that if the district allowance is granted in these proceedings that it might not actually flow on to you because you are receiving rates of pay pursuant to an enterprise agreement?‑‑‑Yes.  That's correct.  You're right what you're saying, yes.


So in terms of – I'm just a bit confused about you saying that if the district allowance is granted in these proceedings that you could plan and respond to the effects of living with less worry.  The reality is the outcome of these proceedings might not have any impact on you at all; is that right?‑‑‑Well, under our current agreement, yes, that would be correct.


Thank you.  Can I just ask, in terms of your living expenses, do you live in a property that you bought or that you are renting?‑‑‑I live in a property that I rent.


What's your weekly rent, if I can ask?‑‑‑It is $380 a week.


Thank you.  Can I ask what type of property is that?  How many bedrooms?‑‑‑I live in a standard fibro home.  It's a three bedroom house, bathroom, kitchen.


Thank you.  How far is that from your place of work?  What's the commute like?‑‑‑I am about no more than 10 minutes from work.


Do you drive to work?‑‑‑That's correct.


Is there parking there?‑‑‑There is.  Yes, that's correct.


I take it there's no toll roads or anything like that?‑‑‑No, there's no toll roads and there's no traffic lights either, no.


What about roundabouts?‑‑‑There's a couple of roundabouts.  Yes, that's correct.


One of the members of the Bench is from Canberra so they're all aware of roundabouts from what I understand.


DEPUTY PRESIDENT KOVACIC:  The disease is spreading, I'm told.

***        MALCOLM CHARLES PARKER                                                                                                     XXN MR IZZO


MR IZZO:  You talk about changes in costs of property.  I take it the essence of your statement is that because you've noticed a drop in the investment associated with mining and the construction associated with mines in the various regions that you've seen the cost of property reduce over the last few years; is that right?‑‑‑Yes.  So what has happened since the 2014 when the boom was still going, property prices were exceptionally high.  Now, they obviously – at the end of the mining boom they have come down.  But given the last 12 months of the pickup again in mining they're starting to rise again, so it's a fluctuating market.


Sure.  But I take it the boom isn't quite now what it was a few years ago?‑‑‑No.  No, correct.  The boom is not like it was between 2010 and 2014.  No, that's correct.


Sure.  How long have you been living in Port Hedland?‑‑‑I've lived in Port Hedland four years.


Where were you before that?‑‑‑I worked out at a place called Laverton, which is a very remote location out on the lands from Kalgoorlie, about 400 Ks inland from Kalgoorlie.


How long were you there?‑‑‑I was there for three years.


What were you doing in Laverton?‑‑‑I have a background in project coordination in parks and gardens.  It's one of the things I've done over the years.  That's what I was doing there.


In parks, did you say?  As in ‑ ‑ ‑?‑‑‑Parks and gardens.


Parks and Gardens?‑‑‑Infrastructure, yes.


Where were you before Kalgoorlie?‑‑‑I worked on a – for an international resort in the Whitsundays for two years.


How long was that, sorry?‑‑‑Two years.


So what caused you to move, I suppose, initially from the international resort into Kalgoorlie?  What was the motivation to move there?‑‑‑I started out – I probably should explain.  When I left the military I went into local government and then I had a career in local government so I moved to get the sort of training and the sort of development, you know, so I can teach one day.  You know, that's how I've done different things within the industry over about 25 years.

***        MALCOLM CHARLES PARKER                                                                                                     XXN MR IZZO


So some of these jobs have been focused on developing your career, have they?‑‑‑Yes, basically that's all I've really done.


So what about the move from Kalgoorlie to – sorry, so, if we go back to Whitsundays to Kalgoorlie?‑‑‑Yes.


So what was it about Kalgoorlie that attracted you to go there?‑‑‑Well, I moved from – when I studied at technical college I wanted to study tropical plants, so I obviously went to the Whitsundays and worked for an international company, and then I decided that I - I did a course on desert flora and fauna, so obviously the opportunity came to work in the desert so I went there to do that, and then I moved – then when the opportunity came to go and work in the Pilbara, I did the same thing.


So the move is still very much related to your passion for your particular work, is it?‑‑‑Exactly so.  I've done this for 25 years and I want to do it as long as possible because I had an injury when I was overseas on operational service and it was a nice quiet lifestyle for me, and – yes, that's what I did.


Sure.  So what about – I mean, you're currently in Port Hedland?‑‑‑Correct.


Have you been looking to leave to move somewhere else?‑‑‑No, not at the moment.  I do enjoy it here.  It's a challenging job and it's a challenging environment and, you know, I'm a long-term employer of the local government authority that I'm working at, so I've got no intentions of moving probably till I retire now.


So do I take it from that, that notwithstanding the additional costs that you've cited there's things that ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑have attracted you to stay there.  Do I take it you have a level of satisfaction with the lifestyle there?‑‑‑Yes.  I mean, I do enjoy working in remote locations.  Given the difficulties of the – obviously of, you know, obviously working and living in a remote location.

***        MALCOLM CHARLES PARKER                                                                                                     XXN MR IZZO


So I take it, I suppose, you  haven't looked for jobs elsewhere, whether it be Perth, Bunbury, Geraldton, any other places closer to the metropolitan centre?  You haven't kind of looked at that at this stage it sounds like?‑‑‑No, not really.  But I have had – obviously I've got – I know a lot of people in the industry and they do occasionally ring me about different things, but, no, I'm quite happy to stay here for a while.


Sure.  If you just bear with me a moment, Mr Parker.  I don't think I have too many more questions?‑‑‑All right.  No worries.


I have no further questions, your Honour.


DEPUTY PRESIDENT KOVACIC:  Do any other employer representatives have any questions?  Mr Tindley in Melbourne?


MR TINDLEY:  Yes, Deputy President.



CROSS-EXAMINATION BY MR TINDLEY                                  [12.18 PM]


MR TINDLEY:  I just would clarify with the witness a couple of points if I could.  Mr Parker, my name is Nick Tindley.  I'm appearing on behalf of the Australian Retailers Association and Master Grocers Australia.  I'm just trying to clarify some – and apologies if this has been dealt with, with some of your evidence in relation to the cost of flights to Perth.  I understand you travel to Perth once a year for the purpose of a hearing test; is that correct?‑‑‑That's correct.  Yes, I do.


In your statement you talk about the cost of flights to conduct those trips, and I'm just a bit confused between paragraph 12 and paragraph 13.  So if I can take you to paragraph 12 you say at the third-last sentence:


A one-way flight costs between seven and $800 return.




So that is a return price; is that correct?  Or a one-way price?‑‑‑Well, the last time I flew to Perth for this it was, like, $400 one way, which is – it cost – I think it was $820 return.


Okay?‑‑‑But they can – the actual flights can fluctuate here.  So sometimes they can be a little – you know, you might be lucky if you might – generally it's more expensive, but – yes, it's always around about that figure.

***        MALCOLM CHARLES PARKER                                                                                               XXN MR TINDLEY


So paragraph 13 of your statement, the second sentence would therefore then be incorrect, would it:


The cost of a flight is always at least $1000.


?‑‑‑Well, that – well, yes, what I meant by that is that if you fly somewhere else it probably wouldn't – there used to be direct flights to Melbourne and they were a lot more expensive.  That's what I meant by that.


Okay?‑‑‑But just directly to Perth when I've flown it is around that cost.  Yes, $800.


Thank you.  Mr Izzo asked you a question about your employment history, and it appears that you've worked in remote locations in Western Australia ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑across the course of your careers?‑‑‑Yes, I have.  Yes.


There was a place you referred to that was, I think you said, inland from Kalgoorlie?‑‑‑Yes.  That's correct.


What was the name of that place?‑‑‑It's called Laverton.  It's basically the last town before you go across the desert highway to Uluru.  Probably ‑ ‑ ‑


So that would be a very remote location?‑‑‑Yes, it is very remote.  Yes, that's correct.


Very different to Hedland?‑‑‑Very much so, yes.  That's correct.


In terms of isolation much more isolated than Hedland?‑‑‑Well, yes, exactly.  I mean, very, very limited services.  Yes.  But mainly an indigenous population.  Mainly the main things that would happen around there are all mining.  Obviously gold mining, northern goldfields, gold mining, nickel.  Those types of things.


Were you required to travel to Perth for these hearing tests at that point?‑‑‑Yes, I do.  I always have a hearing test done.  I do one every year because of my injuries when I got hurt when I was younger.

***        MALCOLM CHARLES PARKER                                                                                               XXN MR TINDLEY


So whilst you were living in that remote area you were undertaking that travel?‑‑‑Yes.  Yes, I've always done that.


How were you doing that?‑‑‑Beg your pardon?


How were you travelling?  Were you driving, flying?‑‑‑Yes.  No, there was an airport just outside the community and I used to help run that, so I used to fly out.


I have no more questions.  Thank you.


DEPUTY PRESIDENT KOVACIC:  Ms Knight, any questions in re-examination?

RE-EXAMINATION BY MS KNIGHT                                               [2.21 PM]


MS KNIGHT:  I think I just have one question if that's okay.


DEPUTY PRESIDENT KOVACIC:  Stay where you are.  Just remain seated if you like, Ms Knight.


MS KNIGHT:  Thank you.  Malcolm, it's Joanne Knight again from the ASU.  Can you hear me well?‑‑‑Yes, I can, Joanne.


Thank you, Malcolm.  If I can take you to paragraph 4 of your statement?‑‑‑Yes.


In paragraph 4 there's a sentence there:


The employer continues to try and reduce or remove the Port Hedland allowance when we seek to bargain for a new agreement.


?‑‑‑Yes, that's ‑ ‑ ‑


MR TINDLEY:  Deputy President, Mr Tindley in Melbourne, I'm unsure how this arises.


DEPUTY PRESIDENT KOVACIC:  Is it a question arising relating to paragraph 4.  There were some questions that Mr Izzo asked relating to paragraph 4.

***        MALCOLM CHARLES PARKER                                                                                                RXN MS KNIGHT


MR TINDLEY:  He didn't ask about the removal of the allowance, as I understand it.


DEPUTY PRESIDENT KOVACIC:  I think it's a general question in terms of paragraph 4.  So I take the point you raise, but I think the question is legitimate.


MS KNIGHT:  I understand.  I perhaps did not introduce this in order.  I did want to go back to the response given to Mr Izzo.  And in your response, Malcolm, that you gave to Mr Izzo you referred to the receipt of this particular allowance due to enterprise bargaining?‑‑‑Yes.  That's right.  It's part of our agreement, our allowances are.


You also mentioned that you're not covered by the award except that it underpins your agreement?‑‑‑Mm-hm.


So I just wondered if you wanted to address your concerns about the risk ‑ ‑ ‑?‑‑‑Sorry ‑ ‑ ‑


‑ ‑ ‑ to that allowance that arises due to enterprise bargaining?‑‑‑Well, the – going to your question in our last agreement the employers wanted to remove all our allowances.  Obviously my fear is that if we don't have anything in the Federal system to underpin, you know, the remote – sorry, this allowance, obviously, you know, it could go, so – yes, that's my fear, is that our allowances could be actually totally gone.


DEPUTY PRESIDENT KOVACIC:  Could I perhaps just ask a ‑ ‑ ‑


THE WITNESS:  This component of the allowance could be totally gone.


DEPUTY PRESIDENT KOVACIC:  Mr Parker, it's Deputy President Kovacic here.  As a result of the last round of enterprising bargaining, was the allowance – a level of the allowance reduced, did it remain unchanged, or did it increase?‑‑‑It was – correct, it was remained unchanged.


Was it adjusted in line with general increases in wages that are provided for in the agreement?  Do you know whether that's the case or not?‑‑‑No, it's not the case.  There was no CPI increases and there was no increases in it from 2014.


Thank you, Mr Parker.  Ms Knight?

***        MALCOLM CHARLES PARKER                                                                                                RXN MS KNIGHT


DEPUTY PRESIDENT BULL:  Mr Parker, Deputy President Bull speaking?‑‑‑Yes.


You've have had the privilege of living in Laverton and Port Hedland.  Do you have any comment on which of those locations is the more expensive to live in?‑‑‑That's a very interesting question.  To be honest I believe that they're – I was on much higher wages in Laverton than I was here.  I suspect that when I came here, or just recently, things have begun to pick up.  It's probably on par with each other.  That's – as a rational comment.  It is fairly – it was expensive there and it is expensive here.


Thank you.


MS KNIGHT:  Thank you, Mr Lenton (sic) and the Commission.


DEPUTY PRESIDENT KOVACIC:  Thank you, Mr Parker.  You're now excused and free to go, so we'll hang up the phone at this end, and thank you for your evidence this afternoon.

<THE WITNESS WITHDREW                                                            [2.26 PM]


DEPUTY PRESIDENT KOVACIC:  I understand that Ms Churchill is available at 3 pm?


MR SCAIFE:  That's right.  She has her lunch break at 1 pm WA time.  However, given the Bench's limited time, I am happy to go into submissions now.  It will be a bit stop/start, but I'm in the Bench's hands.


DEPUTY PRESIDENT KOVACIC:  I think if we did that that would be good.  Thank you, Mr Scaife.

***        MALCOLM CHARLES PARKER                                                                                                RXN MS KNIGHT


MR SCAIFE:  Rather than taking the Bench through the voluminous submissions that have been filed by all parties what I propose to do is deal with the SDA's claim and the criticisms that have been made of it in three broad themes where I think controversy arises.  We say the first of those areas is what can be made – what work can be done, if any, with the history of district allowances in Western Australia and in the award modernisation process; what do we make, if anything, of the evidence that's been filed by the SDA in this matter; and then, thirdly, I'd like to conclude by going through the various factors set out in the modern awards objective as a way of tying together those areas of controversy and the reasons why we say that the SDA's claim should succeed.


So turning to the first issue is what can be made of the history of district allowances, and the SDA's position is that there are two senses in which the history of district allowances have a bearing on the case that needs to be maintained before the Commission on the part of the SDA.  The first is that we say that the substantial history of district allowances in Western Australia and particularly in the regions to which the SDA's application relates has a bearing on the extent of the merits case that the SDA is required to mount before the Commission in this application.  And the second area is that we say that the history of the treatment of district allowance in the award modernisation process also has a bearing on the extent of the merits case that needs to be mounted.


In relation to the ‑ ‑ ‑


MR TINDLEY:  Deputy President, could I just intervene for one second to ask Mr Scaife to ensure speaking in the microphone.  It's just fading in and out a little bit.


MR SCAIFE:  I'm just re-arranging the furniture.  There you go.


MR TINDLEY:  That is much better.  Thank you.


MR SCAIFE:  So if I can just move to the first issue about the substantial history of consideration of district allowances in Western Australia.  It's well established in this modern award review that what's required is for a party to mount a merits case before the Commission.  But what the Full Bench has found in previous modernisation cases is that the extent of the merits case will depend on the type of claim being made and the history attached to that claim.


I don't propose to take the court through authorities but I will just, as we go along, highlight some paragraphs of decisions that are included in, I believe, AiG's folder of authorities and which are also relied on by the SDA.  For example, in the Broken Hill case before the Full Court of the Federal Court, at paragraph 21 of that decision the Full Court clearly articulates that the Fair Work Act expressly recognises the historical and practical significance of disabilities based on location, and that there can be corresponding allowances.


District allowances in Western Australia, as we've set out in our written submissions, have their advent in the early 1920's.  They are part of the furniture in Western Australia when it comes to industrial entitlements.  In today's terms the allowances that were paid at their advent in about 1923 in today's terms, are worth hundreds of dollars.  They were very significant allowances that were paid at the time.  Obviously, over the course of the last almost hundred years, the entitlement has diminished during reviews taken by the Court of Arbitration and the by WA Industrial Relations Commission, but the basic concept has never changed, that there are disabilities associated with these locations and that they are deserving of some type of quantitative easing in the form of the allowance.


There has never been an application, that we are aware of, to delete or completely remove district allowances in Western Australia.  Even while this application has been on foot, while this issue has been in controversy since the modernisation process 10 years ago, there has not been an application made by any party to remove the state system of district allowances.


We say that the task of the Full Bench is to assess the history of district allowances, then also in terms of the current modern awards that are under consideration in the SDA's application.  In that respect, we note and we've detailed it in our written submissions, that all of the modern awards under consideration in the SDA's claims, including the vehicle award, were that there were NAPSAs that were forerunners to those modern awards in Western Australia, all of which included district allowances.  They were a consistent feature.


There is a criticism made of our submissions by the Australian Industry Group that the Hairdresser's Award, the State NAPSA, doesn't apply to the beauty industry.  I just note now that we don't concede that. I suspect that AiG hasn't read the Hairdressing Award and have just gone off the title of it, but the scope clause of that award, is quite clear that it applies to employees who engage in other types of work such as manicuring, massages and the like.  It extends to hairdressing salons, but also to - and the language is a little archaic to working beauty parlours as well.  There is no doubt that all of these modern awards insofar as the entitlement to a district allowance is concerned, their forerunner NAPSAs in Western Australia consistently had vocation allowances.


There have been varying methods, and we concede that there have been varying methods over the years developed by the State Commission to measure and to adjust district allowances.  The formula has changed, it's been refined and we have set out in our written submissions the history of the different approaches that have been taken over the years.  But we reinforce that it's the same basic principles throughout that history.  Cost of living, climate, isolation - those factors have been consistent.


It's for that reason that we say that while the way that the SDA's claim is framed in this application, while the formulation is new, the concept of the claim is not new.  This is not a claim for something like family and domestic violence leave, where that is a new concept within an award system.  District allowances are not new concepts to the safety net.  They have not found their way, as sometimes in modern times, terms do into awards, such as through gradual acceptance in industry through enterprise bargaining.  They have their genesis in the safety net award system, at a state level.


We say that the new formulation of the SDA's claim, while we accept that that makes it a new claim, the reason that it's been reformulated is because the statutory framework requires it.  That was made clear during the modernisation process with the comments of the Full Bench where comments were made that the district allowances as they exist in Western Australia were too complex; they didn't satisfy that subparagraph of the modern award's objective.  So, we have reformulated the proposal to make it simpler, to make it more straightforward.  It is a different claim in that sense, but we have done our very best to hew towards a claim that basically reflects the system that existed in Western Australia prior to the modernisation process.


In those circumstances, given that history, it's the SDA's submission that what is required, that the hurdle that the SDA needs to jump over in this matter, is lower than it would be in another matter because it's not a new claim; it's a well-established claim.  If the SDA can demonstrate that the disabilities that have historically justified the inclusion of district allowances in the safety net, then the SDA's claim should succeed.


In terms of the decisions that have gone before this claim in dealing with district allowances in modern awards, I would like to address that issue briefly, because obviously there is a public policy interest that has been expressed in previous decisions of the Full Bench in adhering, insofar as possible to previous decisions of the Full Bench.  So, one of the issues of controversy that arises here is whether or not an earlier decision of the Full Bench, namely the decision to firstly make district allowances only transitional provisions in the award modernisation process and then secondly, the decision during the 2014 consideration of whether or not to make the transitional provisions permanent and the subsequent deletion of WA district allowances.  Whether or not those decisions in anyway bind the Full Bench such that it should reject the SDA's claim absent a higher or a more meritorious case being advanced by the SDA.


We say the SDA submits that those previous decisions could not be binding upon this Full Bench.  That requires a consideration of the reasoning in those decisions.  The decision to make district allowances transitional in the first place in the award modernisation process, was largely based on the concern that a nationally consistent framework was required because of what would become section 154 of the Fair Work Act.  Now, it wasn't obviously in existence at the time we were going through the transitional process, but the concern was that state-based terms required the Commission to - the Australian Industrial Relations Commission at the time to create a nationally consistent framework of district allowances.


That becomes quite clear when we go to the decision of the Full Bench to delete the transitional provisions and not to - because they had a sunset clause attached to them.  The Full Bench in that case outlines that it has three reasons for deleting the transitional provisions and rejecting the ACTU's claim in that matter.  They expressly say that their main reason for doing so is that section 154 of the Fair Work Act would render these terms unable to be included in modern awards because it prohibits state-based different terms.  That is the main reason and a considerable part of the decision is devoted to that factor.


The second reason that the Full Bench gives, is they say in their present form, the district allowance clauses are complex and difficult to understand, that's the secondary reason.  The third reason, covered very briefly in the decision is that the ACTU had not advanced a substantive case at the time for the retention of the district allowances.  Those are the three reasons and the only three reasons given by the Full Bench in that matter.  In relation to each of those three reasons we are now armed with the benefits of perhaps a little too much time in this matter, but I think that the decisions that have come since that decision assist the Full Bench in this matter.


In relation to its main reason about state-based difference terms the decision of the Full Court in the Broken Hill case definitively answers that question.  It answers that question by saying that district allowances, based on locations such as those in the WA general order, or the Broken Hill allowance, are not state-based difference terms.


There's a criticism put in AiG's submissions that says that well if that's the case, that should have been subjected to judicial review at the time.  We accept that that was the appropriate course to take at the time, but it can't possibly mean that in the face of a decision of the Full Court, dealing with the Broken Hill allowance, so directly on point, that the Full Bench, somehow its hands are tied forever more by the misapprehension of section 154 that affected its decision in relation to the WA district allowances.  That just simply cannot be the case.  There is a cogent reason to doubt the conclusions of the Full Bench in deleting the transitional provisions in the first place.


The second concern of the Full Bench in relation to complexity applies only to the transitional provisions as they appeared at that time.  There could have been some type of proposal or some time of rationalisation discussed between the parties that would have made the district allowances easier to understand.  That is what the Full Bench found in relation to the Broken Hill allowance.  While the Broken Hill allowance had previously been expressed as a, I think about a $14 weekly rate, so a dollar rate in the same way as the WA allowances.


It was also I think, in I believe, based on the ACTU's submission, the allowance was also expressed through an additional week of annual leave.  So, a $14 per week dollar payment and an extra week of annual leave.  The claim as presented then was 4.28 per cent of the standard rate to capture in a neater way that historic allowance.  If that issue had been dealt with at the time, which is how the SDA has chosen to frame its application in this matter, then also that secondary reason of the Full Bench falls away.


Then as to the third, the tertiary consideration, which as I say, was not central to the Full Bench's reasoning, the criticism of the lack of a substantive case, that's very distinct from the situation before the Full Bench in this matter.  The substantive case has been put.  Public material that provides an analysis of data that clearly supports the claims the SDA makes in relation to cost of living, climate, isolation, have all been put before the Full Bench in this matter.


So, we say, that in sense, the presumption that would ordinarily apply to say that the modern award currently achieves the modern award's objective should not apply in this case.  The presumption is ultimately a legal device that emanates from the requirement for the Commission to maintain a stable modern awards' system.  But it shouldn't be used as a reason to avoid remedying what was an inadvertent admission during the modernisation process and the transitional process of district allowances based substantially on the misapprehension of section 154.


I should be clear that the submission of the SDA is that the Full Bench was not armed at that time with the reasoning of the Full Court in that matter.  In that sense, was feeling around in the dark for what state-based difference terms means.  But we know now what state-based difference terms are and we know that that part of the reasoning which was the main reason was faulty.


That brings me to the conclusion of what to make of the history of district allowances. I'd like to deal now with what to make of the evidence that's been filed in this matter.  First the SDA would like to deal with the public materials that have been tendered and then I'll deal with the lay witness statements that have been tendered.


The repeated criticism made of the SDA's claim in the submissions of the employer parties, is that there's no probative evidence before the Commission.  It's said repeatedly, no probative evidence.  What is probative evidence in a matter, depends upon the nature of the claim being made.  It depends on the nature of the facts being proved; that is a well-established principle of evidence before courts and tribunals.


In this matter, all the SDA is seeking to prove is the consistent, continuous existence of what are qualitative disabilities.  Even the cost of living factor is not a purely a quantitative factor because it's also about getting like goods for like cost. So, it's about the quality of the goods and services that somebody receives in a particular location.  In support of its case, the SDA has put three public resources the Fair Work Commission that are plainly based on data and a comparative analysis.


The first of those documents if the regional price index and that index ably demonstrates that the cost of living in the regions is substantially and persistently higher than the Perth metropolitan area and even other regions of Western Australia.  If I can at this point pick up on an issue that arose in the evidence of Mr Parker.  Mr Parker was not called by the SDA, but he gave evidence about his experiences in Laverton as opposed to Port Hedland.  The SDA concedes that Laverton falls outside of the three regions that the SDA's application relates to. It falls within the Goldfields Esperance region of Western Australia.


There are some remote locations in other regions of Western Australia that are possibly deserving of district allowances and which do receive district allowances in the state system.  Towns like Mt Magnet, Meekatharra, Laverton, Leinster.  These are all towns that are possibly deserving of district allowances but are not included in our claim.  The reason for that is because the evidence was just simply not available to the SDA to be able to support the claims in that area.


The regional price index that the Western Australian government puts together, as we understand it, the Department of Primary Industries and Regional Development collects its own data to produce that index, because there is such a paucity of data out there on cost of living in regional Western Australia.  The department does not collect data in relation to the towns that I've just mentioned.  The index for the Goldfields Esperance region is collected in the towns of Kalgoorlie, Norseman and Esperance.


As I know that at least Bull DP would be familiar with, those are larger regional towns within that region and as a result, the regional price index reflects - I'll just draw your attention to the appropriate page.  It's page 47 of the SDA's court book and you'll see there that there's a table on the side which breaks down the regions by particular towns.


DEPUTY PRESIDENT KOVACIC:  Sorry, what was that Mr Scaife?


MR SCAIFE:  Page 47 of the court book, Deputy President.  There's a table down the side that lists the locations within each region that have been used to develop the index.  You'll see that while Norseman registers 9.2 per cent increased cost of living, Esperance and Kalgoorlie are much closer to the Perth metropolitan area.  That has the result that the Goldfields Esperance region has an increased cost of living averaged across the region of 1.3 per cent, because the major population centres are larger regional towns that don't experience the same disability in terms of cost of living.


DEPUTY PRESIDENT KOVACIC:  In respect to the Upper Gascoyne, if I had a look at your annexure SDA3, what towns are in the Upper Gascoyne?


MR SCAIFE:  There's only one significant locality with the Upper Gascoyne and that's Gascoyne Junction.


DEPUTY PRESIDENT KOVACIC:  Is that in SDA3, which is the attachment to your submissions?


MR SCAIFE:  No, Gascoyne Junction does not receive a location allowance under the state system, so no comparative exercise could be engaged in.  As I understand it, Gascoyne Junction is about 100 people.  I don't believe it has substantial industries.  The reason the shire of Upper Gascoyne has been included is because it's a constituent local government area of the Gascoyne region and our claim, while broken down by local government area in order to make it easily accessible for national system employers and employees who are more likely we say to be familiar with local government areas than regional development areas, it's been included for that reason because it forms part of the region, not because historically or there was any major industry within that region.


DEPUTY PRESIDENT KOVACIC:  What that means is that there is - well, I assume that the towns that are in the WA industrial relations location allowance had some evidence as to their cost of living at some stage.  You haven't called on any witnesses who come from Gascoyne Junction to tell us what the cost of living is there.


MR SCAIFE:  No, but there is evidence before the Commission - the best evidence that is available, objective data that is available of what the cost of living is in the Gascoyne region and it's - obviously we don't have the evidence before the Commission, but the towns that fall within the Gascoyne region, which are no doubt the service towns for a town like Gascoyne Junction, experience a higher cost of living.


DEPUTY PRESIDENT KOVACIC:  But that's just a submission you make.


MR SCAIFE:  That is.


DEPUTY PRESIDENT KOVACIC:  Which may be correct, I don't know.  But - - -


MR SCAIFE:  In relation to remoteness, we've relied upon the remoteness structure which is produced by the Australian Bureau of Statistics.  That is a comparative analysis across the whole of Australia of remoteness categories.  All of the localities within the regions identified by the SDA, are classified by the ABS as being either remote or very remote and that's the principal document that underpins our evidence in relation to isolation.  However, we say that isolation is a largely qualitative factor and so for that reason, that's an area where that evidence is substantially complemented by the lay witnesses.


DEPUTY PRESIDENT KOVACIC:  Just one point of clarification if you don't mind.  When you say you've excluded the Goldfields Esperance location, which is currently included in the WA general order, you say on the basis of lack of empirical evidence, is that what you said?




DEPUTY PRESIDENT KOVACIC:  If you were successful in this application, once you had that evidence, if it exists, would that open it up for you to make another for you to make another application to amend awards to include that area?


MR SCAIFE:  Our position is that a merits case can be mounted at any time where appropriate evidence exists for a region in Australia where a district allowance might be appropriate.


DEPUTY PRESIDENT KOVACIC:  But this may or may not be the end of an application in respect to district allowance, location allowance?


MR SCAIFE:  No, that's not the submission being put, Deputy President.  I accept that the next part of my answer is that one of the things that the Commission needs to protect is the sustainability and the stability of the modern awards system.  This has been a long running process.  Parties and interested parties have had adequate time to put evidence before the Commission and to gather that evidence, if it exists.  It would be reasonable for the Full Bench to take the view that district allowances have been dealt with fully, at least for the medium term on the basis of any decision it makes about this matter.  It's always open to a party to mount a merits case.  The Full Bench can't close that down on any matter by virtue of a decision, but certainly any future application there would need to be work done by an applicant in that case to show why that merits argument could not have been mounted at this time in this application.


DEPUTY PRESIDENT KOVACIC:  The witness you had this afternoon, Mr Parker, said the cost of living in Laverton was the same as Port Hedland, but you haven't got Laverton in your application.


MR SCAIFE:  No, because the difficulty becomes then, Deputy President, and this is an issue that I intend to address later, is the balance that's required in the Fair Work Act between simplicity, but also ensuring that we are doing only what's necessary to achieve the modern award's objective.  One of the principle criticisms that the Full Bench previously had of adopting the WA model, the exact WA model, broken down by not just local government area, but by towns, was that that was too complicated.  Allocating different rates for different towns in different parts of Western Australia, was too complicated.


So, we tried to capture by region and by local government area places that are undeniably deserving.


DEPUTY PRESIDENT KOVACIC:  You may be correct, but I thought the argument was mainly that naming the towns was more of a state boundary issue, as opposed to complex.


MR SCAIFE:  I certainly read the decision and it's our submission that the decision where it talks about complexity, is about if you have a large cumbersome list of locations, where the boundaries are not easily identifiable as well, bear in mind that the definition of Laverton, or the definition of Broome, it's not clear where that would start or finish.


DEPUTY PRESIDENT KOVACIC:  Well, it seems to work okay with the West Australian state awards.


MR SCAIFE:  Well, I don't know whether or not it would work so well now with the vast majority of employees now in the national system.  But there's clearly an ambiguity that could arise if there aren't defined boundaries as to where a region starts and finishes.  Identifying by township, doesn't allow the Commission to be able to identify where a region deserving of the district allowance starts and finishes.  If someone was to live say in between Port Hedland and Karratha, there would be a question about which allowance applies to them.  The Port Hedland allowance, or the Karratha allowance.  That's why we have sought to capture by defined local government area boundaries, rather than by localities.  We also put the submission that that's a simpler method.


DEPUTY PRESIDENT BULL:  On that basis then, your union at least won't be able to come back ever and ask for an allowance for Laverton, because it's a single town.


MR SCAIFE:  If there was a merits case that could be mounted for say, a definable region within which Laverton fell and a merits case could be mounted - - -


DEPUTY PRESIDENT BULL:  We know where Laverton falls.


MR SCAIFE:  But the evidence is not - there is no objective evidence, data that the SDA could rely upon to support the inclusion of Laverton.  It would be - if the SDA was here today making that submissions, we would be rightly criticised by the Commission for only putting subjective lay witness evidence before the Commission, rather than supplementing the objective evidence that we've provided with the evidence of lay witnesses.


DEPUTY PRESIDENT KOVACIC:  What about in respect of a town like Norseman where according to the regional price index, the level of disadvantage relative to Perth is roughly on par with places like Hedland and so on and so forth?


MR SCAIFE:  We accept that there is variation within regions and that is one of the difficulties of a system of district allowances, is that the Commission needs to be sensitive to the level of disability in a particular location in making its decision.  But that means it's a balancing act.  That needs to be balanced against the need for a simple easy to understand and sustainable modern award system.


In those circumstances, historically in the state system, towns like Norseman, Kalgoorlie, have received very low district allowances because they're seen as either being large regional centres like Kalgoorlie or being near to large to regional centres like Kalgoorlie or even Geraldton in the mid-west.  What we can say definitively about the Kimberly, Pilbara and Gascoyne regions, is that they do not have large regional centres.  The largest town is Karratha and Mr O'Keefe gives evidence and it's supported by the ABS data referred to in our submissions, that the town is about 15,000 people and that's the largest town across those three very large regions.


We are presenting what we say are the regions where the evidence that exists of the regions that are most deserving of district allowances, but for the disabilities experienced generally in those regions.  But we accept that there is a trade-off to be made between precision with the level of disability and the quantum of the allowance on the one hand, and the need to maintain a simple and sustainable modern award system.


I do note the time, Deputy President, and so it might be appropriate if I now just park those submissions and if the SDA could call Ms Sunserae Churchill to give evidence.


Perhaps if I continue submissions for say 10 minutes and we try.  I understand she had a 30-minute break, but given that she works in retail, her break may have been pushed back a little.


DEPUTY PRESIDENT KOVACIC:  We'll try again say at 10 past perhaps, if that's okay.


MR SCAIFE:  Thank you, Deputy President.


DEPUTY PRESIDENT BULL:  Mr Scaife, just I don't quite follow some of what you're saying.  What about the remote towns in the other states and territories other than WA, what do you say about them?


MR SCAIFE:  We couldn't - I think that's perhaps - I don't want to cut across Ms Knight's argument because the ASU has put before the Commission a proposal that deals with different locations in different states and territories.  But what the SDA can say is that we could not gather the evidence in relation to those locations to our satisfaction in relation to the industries that the SDA has an interest in that would support an application in relation to those areas.  That's certainly a matter that the SDA is willing to have on the public record in relation to any future application that might be made.


DEPUTY PRESIDENT BULL:  I see.  This is what I'm trying to work out.  This claim is based on the evidence that you have to date or have obtained, but it may well be that you come across evidence or obtain your own evidence that there are other towns in remote Queensland or New South Wales that also deserve a location allowance some time down the track.


MR SCAIFE:  It's possible, Deputy President.  There are towns that obviously that can be conceived of - towns such as Weipa in far north Queensland and locations in the Northern Territory like Tennant Creek.  I understand that some of those locations are included within the ASU's application.  But the SDA accepts that insofar as the application that it's making today that in view of the need to ensure the stability of the modern award's framework, there would need to be some significant work done by the SDA to explain why that application couldn't have been included in this application.  There would need to be a change of circumstances.


DEPUTY PRESIDENT BULL:  You've already told us you couldn't get the information to hand.


MR SCAIFE:  That's right.  But I don't see - the SDA's position is that it doesn't see why a town or a region should be disadvantaged in future from making an application for a district allowance merely because the evidence didn't exist at this time.


DEPUTY PRESIDENT KOVACIC:  Is the history that you've alluded to in respect of Western Australia, is there any similar history in respect of some of those other locations that you've referred to Mr Scaife?


MR SCAIFE:  As far as we can tell, the history is not as strong in relation to other jurisdictions.  The employer parties have averted to the decision of the Australian Industrial Relations Commission in relation to Northern Territory district allowances.  That's plainly a decision that's not relevant to the SDA's case, because it was entirely about the merits of district allowances in the Northern Territory, but there are no similar decisions or no similar history in relation to other regions that underpin the type of claim that there is in Western Australia.


COMMISSIONER BISSETT:  Mr Scaife just a couple of questions.  In terms of the table on page 47 of the court book, which is the indices, the region and town price indices, I notice that the indices are there for 2015 and for 2017.  I wonder if there are historical indices that go back say another 10 years.


MR SCAIFE:  I believe what we would need to do, is we could furnish the Commission with the regional price indices from previous years and each one - unfortunately, there's no consolidation that we could find; each one just records itself and the one immediately before it.


COMMISSIONER BISSETT:  I wonder if you could put together a table, and certainly share it with the respondents in the first instance.  A table that just tracks back a little bit further.  Perhaps back to about 2005 would be useful.


MR SCAIFE:  I have a feeling from reviewing the materials that I think the comparable data starts in about 2011.


COMMISSIONER BISSETT:  If that's as far back as it goes, that's fine.


MR SCAIFE:  But we'll see what we can do, Commissioner.


COMMISSIONER BISSETT:  Just so I understand, and this goes back to in part the issue of Laverton and why Laverton isn't a claim.  From what I understand you've said to me, the index for Goldfields Esperance is developed on the basis of the towns that are specified.  Because that index comes up at 101.3, there is not much of a claim to be made, so without actually coming along and making claims for specific towns, Laverton just disappears because it's not there.  But in any event, the data is not collected on this index by the WA government for a town, for Laverton.


MR SCAIFE:  That's right, and as I explained, Commissioner, it seems the WA government has to collect this data itself because there is just no publicly available data.  Nowhere else has it.


COMMISSIONER BISSETT:  No one else does it.


MR SCAIFE:  Nowhere else has it.  So, we have to work with what we have.


COMMISSIONER BISSETT:  The only data you would be able to bring with respect to a town like Laverton, would be someone who lives there and experiences - - -


MR SCAIFE:  It's possible - yes, we would bring that type of lay witness evidence and I will have more to say about what can be done with that type of evidence, but it's possible to envision that I guess a party could engage an expert to go out and collect data itself.  Certainly, if the Commission looks back on the decisions of the WA Commission where it put together its list, it engaged in a very extensive process involving inspections, collecting data, having the WA Government Statistician assist them.


The SDA would embrace the assistance of the Commonwealth Statistician in drawing up this type of data, but I think times have changed to when the state allowances were developed.  We don't see that realistically the resources are there to be able to pull together the evidence for these other areas. That's just unfortunately the situation we find ourselves in.




DEPUTY PRESIDENT KOVACIC:  Shall we try Ms Church.


MR SCAIFE:  Try Ms Church?  I might request for a very brief stand-down of the matter to enable - say five minutes to enable me to make enquiries with Ms Church.  I don't want to waste the Bench's time with any further attempts that are going to be fruitless.


DEPUTY PRESIDENT KOVACIC:  Sure.  We'll adjourn for five minutes.

SHORT ADJOURNMENT                                                                    [3.13 PM]

RESUMED                                                                                               [3.23 PM]


THE ASSOCIATE:  Please state your full name and address.


MS CHURCHILL:  Sunserae Elizabeth Churchill, (address supplied).


EXAMINATION-IN-CHIEF BY MR SCAIFE                                   [3.24 PM]


MR SCAIFE:  Thank you, Deputy President.  Ms Churchill, this is Mr Scaife the lawyer for the SDA. Can you hear me okay?‑‑‑Yes, barely.


If you can't hear, then just let us know, okay?‑‑‑Yes, I will.


Ms Churchill, did you give a statement in support of the SDA's claim for district allowances?‑‑‑I did yes.


Is that statement four pages long and 37 paragraphs?‑‑‑Yes.


Did you sign and date it 7 April 2018?‑‑‑I did.


Are the contents of that statement true and correct to the best of your knowledge?‑‑‑It is, yes.


I tender that statement, Deputy President.


DEPUTY PRESIDENT KOVACIC:  I'll mark the witness statement of Ms Sunserae Elizabeth Churchill which comprises four pages and 37 paragraphs and is dated 7 April 2018 as exhibit 22.



MR SCAIFE:  Ms Churchill, you're now just going to be asked some questions by some other parties?‑‑‑What was that, sorry?


You'll now just be asked some questions by some other parties Ms Churchill?‑‑‑Yes.


MR IZZO:  Hi Ms Churchill, my name is Louis Izzo.  Can you hear me okay?‑‑‑Okay yes.

***        SUNSERAE ELIZABETH CHURCHILL                                                                                         XN MR SCAIFE


Great.  I only have just a few questions for you.  I note that in your statement you talk about moving from Brisbane to Port Hedland two years ago.  Can I just ask, what was it that caused you to move to Port Hedland?‑‑‑My partners was offered a full time role with his job.  Previous to that we were doing FIFO where he was only a casual and he was flying home three to four months at a time.  With the new role he was offered two weeks on and five days off and it wasn't going to be worth it financially for us to be living in two separate states and we made the decision for us to move over here.


MR IZZO:  So, he was doing you said FIFO, so fly in/fly out of Brisbane before he moved to Port Hedland.  Where was he flying in and out of?‑‑‑Port Hedland to Brisbane.


He was there previously fly in/fly out?‑‑‑He'd also been working and living over here for three years prior to us moving over.


How long have you been with your current partner?‑‑‑15 years.


But the last three is where he was in Port Hedland?‑‑‑The three years before we moved over here, he was here.


Yes.  Can I ask how much your partner earns roughly?  Are you able to let me know?‑‑‑Approximately $180,000 a year.


I take it then that essentially the reason you're in Port Hedland is because you want to be with your partner and it's his job that's determining the fact that you're both in the same location?‑‑‑What was that one, sorry?


It's quite a long question, I apologise.  I take it that the reason you're in Port Hedland is because of your partner's job?‑‑‑That's correct yes, and it wasn't going to be worthwhile him to come home on those five days that were offered with his full time role, because two days of that would just be flying.


Can I ask you, what's your commute like to work?  How long does it take for you to get to work from where you live to?‑‑‑Not even five minutes.


Not even five minutes, is that right?‑‑‑No.

***        SUNSERAE ELIZABETH CHURCHILL                                                                                         XN MR SCAIFE


What was your commute like when you were living in Brisbane to work?‑‑‑What was the traffic like?


Well you can tell me what the traffic is like, but I was more interested in the time it took to get to work?‑‑‑The time it took for me roughly would be anywhere from half an hour to an hour depending on traffic.  I did live only a 10 minute drive from my work, but yes, because of the traffic on the side of Brisbane that we lived, it was quite horrendous.


I live in Sydney, so I think I'm able to sympathise?‑‑‑Yes.


I think that's all the questions I have.  Thank you, Ms Churchill?‑‑‑Thank, you.


DEPUTY PRESIDENT KOVACIC:  Anyone else have any questions of the employee representatives here in Sydney?  Mr Tindley in Melbourne, any questions?

CROSS-EXAMINATION BY MR TINDLEY                                    [3.29 PM]


MR TINDLEY:  Yes thank you, Deputy President.  Ms Churchill, my name is Nick Tindley, I just have a couple of very brief questions for you?‑‑‑Yes.


At paragraph 23 of your statement you say that there are a few nice parks in Port Hedland but the play equipment is tailored towards younger children.  I take it that you mean by that, that it's not really suitable for you and your 11 year old daughter?‑‑‑That's correct, yes.  It's more like your little swings and just the sides that are more catered for probably kids under five years old.


What you're saying I guess, is that there are nice parks for younger children?‑‑‑For younger, yes.


Just touching on your - when was it that you lived in Brisbane?‑‑‑It's called Kallangur, it was on the north side, probably about 40 minutes out.


You worked?‑‑‑I worked in a law firm.


In what suburb was that?‑‑‑It was Aspley.

***        SUNSERAE ELIZABETH CHURCHILL                                                                                    XXN MR TINDLEY


Did you always work at that law firm?‑‑‑No, I've worked in law firms since I was 17.


What was the previous one to the one you were in?‑‑‑Previous one before that was called Rostron Carlyle and they were in the CBD.


Were you living at Kallangur at that time?‑‑‑I was, yes.


How was your commute then?‑‑‑It wasn't too bad, because I just trained it into the city, so I didn't get stuck in traffic.


You caught public transport?‑‑‑It was only when there were delays with trains, yes.


You spent money on public transport to get to work?‑‑‑I did, yes.


Thank you.  Your statement's got a heading of isolation.  Did you live in Brisbane all of your life?‑‑‑I have, yes.


Have you travelled throughout Queensland?‑‑‑Not to live, just on holidays because my grandmother lived in Cairns and she was in a town called Gordonvale.  I've got a few friends who live in Gladstone and Hervey Bay, so yes, I've travelled.


Cairns would have similar weather conditions to Hedland, would that be a fair statement?‑‑‑No, Cairns doesn't get up to like 45 degrees.  Cairns is more of a muggy town where as Port Hedland is more of a dry heat.


Experiences some severe weather conditions like cyclones, Cairns?‑‑‑I haven't had the pleasure of a cyclone yet.


You say here that you utilise online shopping?‑‑‑Yes, not so much to my partner's delight though.


I can understand that; I'm on both ends of that scale.  Do you use international online shopping as well as Australian?‑‑‑No, because it generally costs probably double what your buying and the length of time is a lot more as well.

***        SUNSERAE ELIZABETH CHURCHILL                                                                                    XXN MR TINDLEY


Have you enquired about online international purchase in the past?‑‑‑I have.


Are you active in social media?‑‑‑Just on Facebook.


Does that allow you to connect with people in Brisbane that you spent time with previously?‑‑‑It does, yes.


Do you find that an effective way of communicating?‑‑‑It does, because we've also got family overseas, so it's good that they can still see our daughter growing and they can keep up to date with what's happening with us.  The time zones are completely different.


Your experience in Port Hedland is limited to the first - I think you've said you've been there about a year and a half, is that correct?‑‑‑I've been here two years now.


Two years, sorry.  You talk essentially that there's limited activities in Port Hedland.  Are you talking about Port Hedland and South Hedland, or do you not venture to South Hedland?‑‑‑Both Port and South Hedland - like there's only a 10 minute driving distance between the two.  I just take part in netball.


Sorry, you say you play netball there?‑‑‑I do, yes.


Is there a good netball facility there?‑‑‑There is, it's awesome.


Relatively new?‑‑‑The clubhouse is relative new, but the association itself has been around for quite some time.


One more questions, just in relation to paragraph 5 of your statement.  You're talking about your rental and you say the place you're renting is cheap for central Port Hedland?‑‑‑Yes.


By that you mean that central Port Hedland is more expensive than other parts?‑‑‑Port Hedland also has another suburb called Pretty Pool and Cook Point and they're more expensive.  That can be anywhere from $500 up to $1,500.


South Hedland, do you know - have you explored the possibility of other rentals?‑‑‑South Hedland is quite cheaper, but it's not as safe as Port Hedland.  There's quite a lot of assaults and break-ins on a daily basis.

***        SUNSERAE ELIZABETH CHURCHILL                                                                                    XXN MR TINDLEY


Thank you, Ms Churchill.


DEPUTY PRESIDENT BULL:  Ms Churchill, it's Deputy President Bull speaking.  What type of work do you do at Woolworths?‑‑‑I've now been promoted to supervisor on the front end.


You choose to work 15 hours a week for family reasons or some other reasons?‑‑‑What was that, sorry?


You only work 15 hours a week.  Is that right?‑‑‑It can be anywhere from 15 to 25 depending on the staff availability.


You would prefer to work more hours, or that's what suits you?‑‑‑I'd prefer to work more hours because I've always worked up to a 40 hour work week.


The additional hours are not available?‑‑‑No.


Thank you?‑‑‑No problem.


DEPUTY PRESIDENT KOVACIC:  Mr Scaife, any re-examination?


MR SCAIFE:  No, Deputy President.


DEPUTY PRESIDENT KOVACIC:  Ms Churchill, it's Deputy President Kovacic here.  That's the end of your evidence.  You're now excused and you're free to go.  Thank you for giving up your lunch break to give your evidence this afternoon.  Much appreciated.  We'll just now hang up, thank you.

<THE WITNESS WITHDREW                                                            [3.36 PM]




MR SCAIFE:  Thank you, Deputy President and thank you to the Full Bench for your patience and flexibility in having all the witnesses heard.  It's appreciate.

***        SUNSERAE ELIZABETH CHURCHILL                                                                                    XXN MR TINDLEY


I have finished explaining the remoteness structure of the ABS is the document that underpins our initial assessment of isolation which is then supplemented by the witness statements and we say that the disabilities associated with isolation are not easily captured in data because they are experiential of the disabilities in relation to isolation.


The third document that underpins the disability of isolation is the relative strain index, which is one the annexures to the submissions that we have provided.  It's an older document.  We couldn't find an updated version from the Bureau of Meteorology, but I think it's relatively safe to say that the weather in the regions that we've identified has not cooled in the past 20 or so years, since the relative strain index was developed.




MR SCAIFE:  Yes, let me just pull up the page.




MR SCAIFE:  That's SDA2, that's right.  It's a measure by the Bureau of Meteorology which is adopted by the WA government for the number of days per year when the index is over a specified level of heat discomfit and you'll see that all of the SDA regions are above what's called the 100 day line under the relative strain index.


There's some criticism put of the SDA's position in the employer submissions that the SDA hasn't engaged in some sort of calculations to arrive at a figure that properly compensates for the disabilities that have been experienced.  Our response to that is that it's both inappropriate and impossible to go through that type of calculation because disability allowances are by their very nature, qualitative.  They are about subjective experiences of workers and they are not easily translatable into a figure.  For that reason there's always going to be some level of arbitrariness to the figures.


That's why the task in these types of applications is for the Commission to make a value judgment about the claim about the evidence presented and about the appropriate response to the disability.  We take the example of say a height allowance in the Building and Construction and General On-Site Award.  It's not easy to see what the rationale is quantitatively for a particular percentage allowance for working above a particular height.  Clearly it's not translatable; there's no economic loss that's being experienced by a worker there.


But the Commission and different industrial tribunals over the years have engaged in the value judgments that are required in industrial law and have arrived at a figure. I will take the Commission at a later stage to why we say the figure of 4.28 per cent is a correct reflection of the value judgement that the Commission should make in this case.


DEPUTY PRESIDENT BULL:  Mr Scaife, just on that 4.28 per cent, if I look at your draft determinations, is that 4.28 per cent of the standard rate?




DEPUTY PRESIDENT BULL:  What does the standard rate mean?


MR SCAIFE:  There's a standard rate identified in each of the awards as a defined term.  In the definition terms it identifies which rate in the award is the standard rate.


COMMISSIONER BISSETT:  Mr Scaife the four yearly review in the award stage of that process, haven't there been decisions to remove the standard rate, to remove that definition?  I can't recall, it's been a while since I did the award stage.


MR SCAIFE:  Not that we're aware of in relation to these awards, but certainly - - -


COMMISSIONER BISSETT:  Ms Bhatt is shaking her head and she's been involved in quite a bit of it, so.


MR SCAIFE:  Certainly happy to take that notice.  Yes, not to Ms Bhatt's knowledge, but certainly happy to have a bit of a look into that for you, Commissioner.


COMMISSIONER BISSETT:  Sorry, I'm asking you to second-guess what the awards might end up looking like after the four yearly review is finished in terms of that award stage and I'm not sort of trying to put you in that position or second-guessing what the Full Bench might ultimately do.


MR SCAIFE:  It seems to me that the standard rate is currently a defined term in the awards, but it could easily be replaced if there was a process of rationalising the language in the modern awards, it could be replaced by referring to a particular classification that the parties could agree is appropriate.




DEPUTY PRESIDENT BULL:  I was just going to say Mr Scaife, the way the draft clause is worded, how would that be applied if an employer covered by the award paid two airfares, for example, which does happen to an employee to travel to Perth from Port Hedland, or paid their air conditioning costs.  How is that considered when the obligation to pay 4.28 per cent of the standard rate?


MR SCAIFE:  Sorry Deputy President, just to ensure I understand the question.  If an employer is paying a separate allowance or a separate entitlement for travel or something else.


DEPUTY PRESIDENT BULL:  Some employers would pay for an airfare to travel down to Perth and some would pay their air conditioning.  How does that - does that mean they've met the standard, that obligation under the proposed award variation or not?


MR SCAIFE:  There would have to be a judgement made about whether or not the entitlement can be set off to some extent against the district allowance.


DEPUTY PRESIDENT BULL:  The reason I ask is because you use the word exigencies, so we don't know what that means necessarily.


MR SCAIFE:  It hasn't presented a difficulty for the Broken Hill allowance.  It's the precise wording of the Broken Hill allowance since 2010, Deputy President.


DEPUTY PRESIDENT BULL:  I don't know whether they pay for air conditioning in Broken Hill or whether they pay your airfares in Broken Hill, but they certainly do in the north west of WA.


MR SCAIFE:  The Full Court was satisfied that the wording of exigencies of working in Broken Hill sufficiently captured a broad concept of disability and didn't present a difficulty to interpreting the clause, but I accept that it may mean that in individual cases, judgements might have to be made by say a compliance authority about what entitlements that have been granted or paid might be set off against the award for the purpose of - - -


DEPUTY PRESIDENT BULL:  What's the intention of the SDA?  That's what I wanted to know really.


MR SCAIFE:  It is an allowance for living and working in the region that is made up of climate isolation and cost of living, but there is no fixed formula that can be applied.


DEPUTY PRESIDENT BULL:  Sorry, I might ask the question properly.  What's the understanding of the SDA?  If some employer pays the airfares for the family to fly to Perth once a year, can that be set off against the 4.28 per cent?


MR SCAIFE:  With respect, Deputy President, I don't know if it's appropriate for the SDA to be commenting on what might hypothetically happen if a compliance authority was to - - -


DEPUTY PRESIDENT BULL:  I just need to know whether this 4.28 per cent is going to be in addition to what the employer might already be paying.


MR SCAIFE:  It may very well be, depending on the interpretation of the clause by a court called upon to do so.  I don't see that - - -


DEPUTY PRESIDENT BULL:  Isn't it best for the parties to understand what the interpretation is, as opposed to what the court might think?


MR SCAIFE:  I don't see that I can pre-judge how the clause will be interpreted.  The clause is plainly adjusted towards compensation for the disabilities associated with living in that particular location.  The Fair Work Act makes it clear that those types of allowances are permissible.  The Full Court was satisfied in the Broken Hill case that a clause in those terms was permissible and enforceable.  It hasn't caused any compliance problems that we're aware of since it was introduced in 2010 and made permanent in 2014.


COMMISSIONER BISSETT:  Mr Scaife is it that issues like these would be dealt with in bargaining?


MR SCAIFE:  That is another matter, Commissioner, that obviously when it comes to bargaining, when it comes to satisfying the BOOT obviously the award underpins the enterprise agreement and so the parties would have flexibility around making decisions of what could be traded off for an allowance such as this.  That would then be put before the Commission for registration of the agreement and the Commission would need to reach a state of satisfaction at that time that the BOOT had been passed by virtue of those trade-offs.


But I don't think I'm in a position to prejudge what types of trade-offs or set-offs might be found to be acceptable to the Commission.  But certainly factors such as those alluded to by Bull DP might be allowances that are able to be set off against the award.


COMMISSIONER BISSETT:  Things then become quite real questions for the Commission in terms of applying the BOOT if it was a bargaining matter.


MR SCAIFE:  That's right, yes.  We don't think that that's a failure of the SDA's proposal, we actually see it as a strength that while it - and this goes to the factor about encouraging collective bargaining.  We think that there's actually opportunities that can be presented to parties who are used to dealing with a system of allowances and an industrial safety net which includes district allowances.  But through the modern enterprise bargaining approach being able to flexibly adapt how say an allowance such as this is expressed in an enterprise agreement which might address - perhaps there are advantages to an employer, they have an easy way of accessing flights or discount flights or something like that and they can reach an agreement which is then assessed by the Commission in the registration process to be acceptable.


I accept that they are difficult questions but we would submit that they're not any more difficult than many of the questions that face the Commission in assessing whether or not the BOOT is satisfied when different terms are put before it in an enterprise agreement.  This is the nature of the rough and tumble of industrial relations, we would say Commissioner.


I'm conscious of time and I always appreciate questions from the Bench, but I will do my best to be more succinct.


DEPUTY PRESIDENT KOVACIC:  I just want to put you on notice about one question I have and whether you address it in the context of addressing the quantum of the allowance that's proposed by the SDA.  You mentioned on a couple of occasions the three components that sort of underpin the allowances proposed and I think they are cost of living, climate and also isolation.  I would be interested in what factors underpin each of those sort of three categories.




DEPUTY PRESIDENT KOVACIC:  And in respect of climate and isolation, I take the point that you've made again on a couple of occasions that there's arguably qualitative measures around those, but to the extent that there are perhaps quantitative factors or factors that are taken into account, what they might be.


MR SCAIFE:  Yes, one of the difficulties going back over previous decisions on district allowances, is that there's a diversity of views about what factors make up - what measurements can be made of those different factors.  I will just, for your note Deputy President, at paragraphs 41 and 42 of our written submissions, we do set out the comments of Neville J.  This is a 1958 decision bearing in mind, but this is the only judicial commentary that we could find that elaborated on what might be within each category.


But you will notice that for example, under paragraph 42, where Neville J talks about isolation, he includes the increased costs involved in the secondary education of children which is arguably a circular factor that goes to cost of living, not exclusively to isolation.  There is a degree of overlap between the different factors; they're not easily separated from one another. That is the task that different Commissions have wrestled with, the problem that different Commissions have wrestled with.  But ultimately it has never been - that the inability to come up with a definitive and precise model has never been seen as a reason to just do away with district allowances.


There's still been a recognition that the disabilities are real, even if they are difficult to measure and to weigh against one another.


DEPUTY PRESIDENT KOVACIC:  I suppose I was coming at it from the angle in one sense arguably climate - from the evidence that we've heard, manifests itself in the sense that a number of the witnesses that gave evidence is that they ran their air conditioning, if not 24/7, for long periods of time, particularly during the hot and humid period of the year.  That may also be then manifested in their electricity bills which presumably is a factor in the context of cost of living.  In terms of getting to a landing point of 4.28 per cent whether there is duplication and I think you've indicated that there is some degree of overlap.


MR SCAIFE:  I think that's right Deputy President, that is another example of where the factors seem to feed into one another. The Commissions over the years have come to the view that cost of living is the principle factor that's taken into account, but it's never discarded the disabilities that are associated with the other factors.  But they are much more - perhaps that may be because they're much more difficult to measure quantitatively and so there is a gravity towards cost of living, because it's easily quantified.


I think that's as far as I can perhaps take that issue, Deputy President.




MR SCAIFE:  One of the further reasons that we say that the criticism made of the SDA for not engaging in a sort of actuarial exercise to arrive at the 4.28 per cent figure is because the data is relatively sparse as we've explained to you earlier.  So, it's very difficult to undertake an exercise that comes up with a definitive figure.  Additionally, because there are these three factors that have been involved, the figure you come out with at the end, even if you went through a formula, the final figure would depend upon the assumptions that are made in that formula and therefore the value and the weight that is attached by an industrial tribunal to the particular factors.


So that's a value judgment at the end of the day, that we could bring an expert in here to explain how they calculate 4.28 per cent, but the assumptions and value judgments that they make may not be the assumptions and value judgments that the Commission is ultimately persuaded to make on the evidence.  So, we don't see that as being a useful exercise to put before the Commission.


If I could just move now to the use that can be made of the lay witnesses and the evidence that they give.  We accept that the lay witnesses put a human face on the data that we've presented to the Commission and that's a term of art that's been used by - - -


DEPUTY PRESIDENT BULL:  We can hear a human voice maybe, not a human face.


MR SCAIFE:  Yes, a human voice, quite right Deputy President.  There were unfortunately difficulties getting the witnesses from their locations to Sydney for the hearing and we appreciate the Full Bench's patience with the technical difficulties.


COMMISSIONER BISSETT:  I think some of them might have enjoyed the trip.


MR SCAIFE:  Yes, probably so.  We do say though that the comment has been made in other decisions such as the penalty rates case that that's sort of all the lay witness evidence does.  It just puts a human face on top of the data.  But we say that in a case such as this, when we're talking about subjective experiential disabilities that the lay witness evidence deserves to be granted more weight.


The employer parties sort of want to say that because it's subjective evidence that means that it shouldn't be accorded any weight.  There's even what I would unfortunately have to term an inappropriate and regrettable submission from the Australian Industry Group at paragraph 201 of their submissions where they refer to the evidence of our lay witnesses as inherently self-serving, which I would not think does justice to the efforts that these witnesses have gone to.  Notwithstanding the fact that throughout cross-examination over the last day and a half, the evidence of those witnesses is largely undisturbed. There have been no major revelations in that evidence that cut across their evidence in chief.


The lay witnesses, what we say about their evidence is that it corroborates the high cost of living which is demonstrably higher by virtue of the regional price index and they also explain and confirm the particular financial stress that is caused by living in the regions.  For example, Ms Brown talks about not being able to travel to funerals for friends.  Ms Hughes-Gage talks about having to live in a two bedroom donga and look for extra work when her husband passed away.  As with some of our other lay witnesses, the husband in this case worked in the heavy industries in the Pilbara region and was the principle income earner in the household.


In relation to climate and isolation, the lay witnesses are, we say their witness should be afforded even more weight.  These are very subjective factors.  They're factors like how does climate affect you at work.  Ms Giltrap gives evidence about the heat and how oppressive it is even working in the kitchen at McDonalds.  What is the quality of the amenities in the town, and in that respect we say that the lay witnesses given consistent evidence about the disabilities - different disabilities in different locations, different types of varying levels of amenities, varying levels of isolation.  We accept there is variation across the regions and I'll address that later.  But there is consistent evidence that there are disadvantages caused by living and working in these regions.


We can see that we haven't called witnesses from every local government area set out in the determinations as Bull DP alluded to earlier with the shire of Upper Gascoyne, but we have called witnesses from the three regions, the Kimberly, Pilbara and Gascoyne.  We accept that we haven't called witnesses from every industry that's covered by the five relevant awards, but we have called witnesses from the retail, fast food and the vehicle industry.


Importantly, what we say is that the public data that we've provided is applicable across industries and the regions generally.  The evidence of the qualitative disabilities by the lay witnesses is also generalizable across different industries.


Now I'd like to deal with what can be made of the employer parties failure to mount a substantial opposing case, or to lead substantial evidence in opposition to the case.  There are no onuses on parties in a matter such as this.  It is a review and not a usual inter partes matter.  We accept that there's an onus in the sense that a merits case needs to be advanced by the moving party, but there's no onuses in the traditional sense of a case.  For that reason we don't say that any adverse inference should be drawn against the employer parties, it would be absurd for us to submit so.  But what do - say it's the state of the evidence filed by the employer parties really is demonstrative of the fact that their opposition to district allowances is illusory rather than real.


The employer parties haven't led any evidence to displace the existence of the various disabilities that are traditionally compensated by district allowances.  There's an assertion put by Mr Tindley to Ms Nolan in cross-examination but no evidence tendered that there are now 15 per cent of pregnant women have to leave Karratha to give birth when it used to be 35 per cent.  I'm not sure if the submission is going to be advanced that 15 per cent is an acceptable level in the largest regional town in these three regions, but our view is that that type of cross-examination only highlights the disabilities in these regions.


There was an admission made by Ms Brown in cross-examination by Ms Bhatt that she hasn't engaged in a comparative analysis of every product between Hedland and Perth which is entirely unremarkable.  That was not the evidence that she was giving.  She was giving subjective evidence about her experience of living in the regions.


No evidence has been led of hardship to businesses.  There's a submission put by the Guild at paragraph 34 of its submissions to the effect that higher cost of living affects the employer parties as well.  We take issue with that.  We don't believe that the employer parties are buying a basket of domestic and personal goods as calculated by the WA Government in the regional price index and we think that that submission is improperly made.


What we would say is that in view of the substantial history of district allowances in Western Australia, the fact that the transitional period expired only a number of years ago, that we're talking about relatively small regions and that there's been no evidence led of disruption in Broken Hill, a region that has had this allowance in the modern awards for the last eight years, that the Commission can be comfortably satisfied that the impact of an allowance such as this on the regions is not deserving of actual complaint by the employer parties, because that's the state of the evidence that they've led.


The final area that I would to go through are the different factors of the modern award objective.


DEPUTY PRESIDENT KOVACIC:  Perhaps before we go there Mr Scaife, one of the things that struck me in respect of many of the lay witnesses as you describe them, is that many of them were covered by enterprise agreements which provided for payments of the nature that are sought in the SDA's application.  Do you have a sense of how many employees might be relied on for the awards in respect of which the unions made an application?


MR SCAIFE:  Unfortunately not.  We don't have an indication of that.  What we do have an indication of is that from the SDA's perspective, very few of its members in the region, I think as many as say half a dozen are award reliant, but otherwise are covered by these national enterprise agreements.  That's the evidence given by Mr O'Keefe about how national enterprise agreements are negotiated.


Perhaps I should hand up copies of the extracts that I alluded to earlier of the enterprise agreements at this point, Deputy President.  Sorry, they're not clipped together, but those are the - there are the four enterprise agreements that cover the witnesses that have been called by the SDA in this matter and what we've put there is the extract.  The cover page so that the agreement can be identified and then the extract setting out the provision.


Can I make two comments about what can be done with the evidence that the lay witnesses have given that their employment is covered by enterprise agreements.  The first point that we would make is that insofar as their evidence is evidence of the particular disabilities experienced, cost of living, climate isolation, that is not evidence that is affected at all by the fact that they are covered by enterprise agreements at the moment.  Similar observations to this affect were made by the Full Bench in the penalty rates case.  In that decision it's at - I'll just give you the paragraph reference, it's paragraph 1235 of the penalty rates case.


It's in a different context but the conclusions drawn by the Full Bench there are the same as the submissions we would make here.  They said that being subject to enterprise agreements didn't make the employees unrepresentative of employees covered by awards and we would say the same here in relation to disabilities.  It doesn't make Port Hedland any cooler or any less isolated to be covered by an enterprise agreement.


The Full Bench noted that it wasn't known whether or not the employees would be covered by enterprise agreements into the future and that the enterprise agreement framework is underpinned by the modern award framework.  The Full Bench also commented that the Fair Work Act doesn't exclude the Full Bench from taking into consideration the experiences of employees in industries, in particular industries or in this case regions, who are covered by enterprise agreements in carrying out its modern award functions.


DEPUTY PRESIDENT KOVACIC:  Can I just check that paragraph reference.  Was it 1235?


MR SCAIFE:  1235.


DEPUTY PRESIDENT KOVACIC:  Thank you.  Do you wish to have these marked at all?


MR SCAIFE:  Yes, I thought perhaps marked for identification.


DEPUTY PRESIDENT KOVACIC:  I'll mark them as a bundle rather than individually and I'll mark the bundle of extracts of agreements covering the lay witnesses led by the SDA as exhibit 23.



DEPUTY PRESIDENT BULL:  Mr Scaife, those agreements do they all have a location allowance paid?


MR SCAIFE:  Yes, so the extract there that we've provided is for location allowance.


DEPUTY PRESIDENT BULL:  Sorry, but that in one sense support your case that the employers have considered it necessary or desirable to put a location allowance in the agreement.


MR SCAIFE:  That's right, so this is we say, further evidence that these are - and as I said at the start, part of the furniture of the industrial relations system in Western Australia.  The point that we would also make about those clauses is that they are all underpinned by the WA system of allowances in some way.  Two of them just replicate the list of towns and two of them have express reference to the state system.


The critical issue, and this goes to Mr O'Keefe's evidence is that these agreements were negotiated during the transitional period, so during the period when district allowances were still in the modern awards underpinning these enterprise agreements on a transitional basis.  Mr O'Keefe gives evidence of, and it's unchallenged evidence of what's happening now in bargaining.  In the context of negotiating the Coles agreement Mr O'Keefe notes that the SDA has managed to reach a position where the district allowances have been grandfathered for existing employees, but they weren't able to bargain for them to be continued for new employees.


The effect, as the SDA would predict, is that as these have fallen out of the modern award, the SDA has been - because the modern award system underpins the enterprise agreement system, they've fallen out in bargaining.


DEPUTY PRESIDENT BULL:  Do you have an example of an agreement that says that?


MR SCAIFE:  Unfortunately, the Coles agreement has not yet been registered as I understand, has not yet been approved.  It's before the Commission the approval, so we would certainly be happy to draw the Commission's attention to that agreement if and when it's approved.


COMMISSIONER BISSETT:  There is that type of provision in the Coles agreement?


MR SCAIFE:  It is, yes.  That's essentially Mr O'Keefe's evidence.


DEPUTY PRESIDENT KOVACIC:  My recollection of seeing reports that Woolworths is in the process of bargaining for a new national agreement as well.  Is there any sense of what is occurring and what the situation is there in respect of district allowances for want of a better description?


MR SCAIFE:  I would need to defer to Mr O'Keefe on that.


DEPUTY PRESIDENT KOVACIC:  You might take it on notice and perhaps come back to it tomorrow morning if you need to.


MR SCAIFE:  Yes, I'm happy to come back to that tomorrow morning for you, Deputy President.


I'm mindful of the time and I know the Deputy President has a matter after this one.  Shall I just see what I can get through.


DEPUTY PRESIDENT BULL:  That would be very good, thank you.


DEPUTY PRESIDENT KOVACIC:  I'm sorry Ms Knight, but we're not going to get to you this evening, unfortunately.


MS KNIGHT:  Thank you.


MR SCAIFE:  I doubt Ms Knight's too disappointed by that.


In relation to achieving the actual test that the Commission need to be satisfied that the proposal is necessary to achieve the modern award's objective.  We would just - the SDA would start by noting that necessity is not some sort of mountain to climb; it's not an objective standard.  What is required - it's not actually necessity that's required under the Act, it's a state of satisfaction on the part of the Commission.  That change is necessary to achieve the modern award's objective.


Obviously, that assessment needs to be made within the framework of the various factors set out in section 134.  Because, as the Full Bench has noted many times previously, because those are broad policy considerations and I'm drawing on the judgment of Tracey J in National Retail Association here, it necessitates a value judgment because they are broad and competing policy concerns within section 134.


The first of the factors is the relative living standards and the needs of the low paid.  Plainly based on the findings made by the Full Bench in the penalty rates case, workers covered by the General Retail Award and the Fast Food Award are predominantly low paid and even a substantial portion of them are very low paid, according to that decision.


In relation to the other industries, we accept that we haven't furnished evidence before the Commission quantifying percentages of low paid workers within those industries, but we do press that these awards are not awards like the manufacturing award which have highly advanced classifications.  So, the vehicle manufacturing award is one of those awards, but the other four awards are not the types of awards where you have highly skilled classifications who are on large award rates.  So, we say that they are likely to cover low paid workers.


That's certainly consistent with the lay witness evidence.  The Commission can be comfortably satisfied that the relative living standards of workers covered by these awards who work in the regions are lower than the living standards of workers in regional centres or in capital cities.  That's made quite clear by the regional price index and by the subjective evidence that the witnesses have given.  I was at that stage going to take your Honours to page 47 of the court book, but we've already been there, which is the map setting out the relative disadvantage.


In relation to the second factor which is the encouragement of collective bargaining, I've largely dealt with this issue, I think, in answer to the question of Kovacic DP.  The evidence of Mr O'Keefe in this respect is essential; it's unchallenged evidence.  Bargaining for terms specific to regions like the Kimberly Pilbara and Gascoyne is extremely difficult.  Mr O'Keefe gives evidence that most of the agreements that the SDA at least deals with are large prominent trade union in these industries, are national agreements.


When you are bargaining for a hundred thousand employees covered by say the Woolworths National Supermarket Agreement, it's very difficult to pursue claims on behalf of less populated regions like the Kimberly, Pilbara and Gascoyne in those types of negotiations.  It almost becomes a scope issue in that sense, and that is a potential mechanism for dealing with it, but it's not a practical mechanism for dealing with it, we say.


I've taken your Honours to the various EBA clauses and we say that in combination with Mr O'Keefe's evidence, what those clauses show and we will endeavour to get some more detail to the Commission about the Coles agreement, shows that bargaining would be encouraged, or at the very least they're not terms that are easily bargained into agreements, without some sort of underpinning safety net to them.


I would also take the Bench back to Bull DP's comments about set off because I think that those, as I said, those comments actually can show a strength to this proposal, which is that it allows at an enterprise level some type of flexibility during an enterprise bargaining process.  It may allow for particular, say retail operators in those regions to adopt different ways of satisfying the allowance, subject to the satisfaction of the Commission during the registration process.


In relation to subparagraph (c), which is social inclusion, the need to promote social inclusion through workforce participation.  We say that - and it's in greater detail in our submissions that social inclusion is not just about promoting work of any kind.  There are many Full Bench decisions that say that social inclusion is also about the terms and conditions that are attached to the employment itself.  We say that district allowances are fundamentally about dealing with social inclusion.  The disadvantages caused by isolation, being able to see medical or educational services near your home, in your community.


COMMISSIONER BISSETT:  The provision of the allowance doesn't all of a sudden make educational facilities or a university pop up at Port Hedland or a hospital.


MR SCAIFE:  That's right, Commissioner and this goes to the issue that I raised earlier about a height allowance in the Building and Construction General Onsite Award, it doesn't make the height go away.  That is the nature of disability allowances.  It's a measure to compensation for those disabilities.  There are ways where you could see where an allowance could assist though.  Being able to afford to take time off work to accompany a partner to Perth say for medical appointments in the case of Ms Chen.


Being able to save more effectively in order to have emergency funds to attend funerals for friends or family or to, in the case of Ms Brown, fund relocation costs for her granddaughter who wishes to attend university.  We don't think that there's no conceivable connection between the allowance, but we accept that the allowance doesn't erase the disabilities.  It's about partially addressing them in the safety net.


DEPUTY PRESIDENT KOVACIC:  To what extent should the industrial relations system or the awards system address what might be brought are public policy issues?


MR SCAIFE:  Well, what we would say is two things on that. Firstly, the Fair Work Act expressly contemplates these types of allowances.  It's section 139 of the Fair Work Act and then it's subsection (1), subparagraph (g), sub-subparagraph (iii).


Modern awards may include allowances any of the following matters:  Disabilities associated with the performance of work in particular locations.


There may be because these are allowances that have their advent in an earlier era of industrial relations, we don't think should cause any kind of scepticism on the part of the Bench, particularly given that express guidance from the Act.  We would also say that the nature of decisions made by the Fair Work Commission is to wade into public policy matters.  Issues of a clause for domestic and family violence leave is necessarily about making some contribution on a whole of community basis to addressing public policy concerns.  So, that's not a reason we say for the Commission to say that this is only something that should be in the remit of say the executive branch of the government.


DEPUTY PRESIDENT KOVACIC:  Let's just pick up the theme that Commissioner Bissett has raised in terms of education.  The Federal government, a whole range of payments whether it's youth allowance or support for students who may be living away from home in terms of undertaking tertiary education.  In respect of health care, arguably Federal and State governments invest a huge amount of money and we've heard evidence that facilities in places like Karratha, Port Hedland have been improved over a period of time.


The question I have is, to what extent should those sorts of factors be factors which influence a payment under an award system?


MR SCAIFE:  To the extent that they impact upon say the merits case, if there has been measurable - and when I say measurable that in a qualitative sense, change to factors such as cost of living or isolation.  Over the years that has resulted in a reduction in the rate of the allowance, but it's relatively clear from the materials put before the Commission that those disabilities haven't just disappeared.  What we would say is that the fact that a government is taking action to address an issue has never traditionally been a reason for the Commission not to have some sort of industrial response.


State governments have traditionally regulated retail training hours.  That hasn't prevented the Commission from making decisions about penalty rates.  State and Federal governments have traditionally funded domestic violence services.  That's a factor to be taken into account, but it was not a factor that meant that the Commission decided in the family and domestic violence leave case, that it couldn't make any contribution to the area.


So, certainly a factor to be considered in terms of what is the whole of community response to an issue, but traditionally, industrial entitlements of this type have been considered a significant and valuable part of the response to the disabilities in these regions.




MR SCAIFE:  I will move through quite quickly.  We say that factors (d), (a) and (e) of the modern awards objective are not relevant. In relation to factor (f), this is the impact upon business, so the regulatory burden that would be placed upon businesses.  We say that the proposal is modest, we're not seeking to add allowances that are pegged to the entire cost of living difference in the various regions.  The fact that there is no evidence of disruption over a very considerable history of district allowances.  There's no evidence that they've cause disruption to business previously and that evidence ought to be readily available to both the SDA and the employer parties.


The fact that the Broken Hill allowance has been in place for a number of years now and no evidence has been led of disruption in Broken Hill.  These are all reasons to assume that the Full Bench can comfortably infer that wouldn't be a disruption caused by this proposal that is deserving of any actual complaint.


We'd also just note that we've included a report in relation to the retention of Queensland teachers at tab 5 of the court book and that's exhibit 14.  We accept that that is not a report about workers in the retail industry. We accept that it's not a report about Western Australia.  It was the best research that we could find on the topic of district allowances.  What it just demonstrates is the secondary consequence of district allowances which is that they're in there to compensate for disabilities, but they also have always been recognised as having the benefit of operating as compensating wage differentials.


They've always paid a role in retaining and attracting people to working in these areas.  We just merely make the point that is not the premise on which the SDA's application is made, but it's recognised as a benefit of district allowances and it's a benefit to business of being able to attract and retain employees.


I think it may be best if I conclude at that point, Deputy President, given your commitments.  I anticipate that I will be 15 minutes in the morning before I conclude.


DEPUTY PRESIDENT KOVACIC:  I appreciate you moving through those issues quickly.  One question I was going to ask - perhaps I'll just check with my colleagues first.  If we were to start at 9.30 tomorrow just to maximise and ensure that we did finish up tomorrow, would the parties be able to accommodate that?


MR SCAIFE:  Yes, the SDA would be.


MS BHATT:  Of course, Deputy President.


MR IZZO:  We support that.


MS KNIGHT:  That's right, yes.


DEPUTY PRESIDENT KOVACIC:  Is that okay for you Mr Tindley?


MR TINDLEY:  Yes, Deputy President.


DEPUTY PRESIDENT KOVACIC:  All right, we'll adjourn now until 9.30 tomorrow morning.  Thank you everyone.

ADJOURNED UNTIL THURSDAY, 12 APRIL 2018                       [4.24 PM]



JESSICA RANKIN, AFFIRMED....................................................................... PN804

EXAMINATION-IN-CHIEF BY MS KNIGHT................................................ PN804


CROSS-EXAMINATION BY MR IZZO........................................................... PN833


EXHIBIT #10 EMAIL CORRESPONDENCE BETWEEN MR SCAIFE AND MR IZZO DATED 10/04/2018................................................................................................ PN887


EXHIBIT #12 REGIONAL PRICE INDEX 2017 PRODUCED BY DEPARTMENT OF PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT OF WESTERN AUSTRALIA................................................................................................................................. PN914

THE WITNESS WITHDREW............................................................................ PN943

EXHIBIT #13 AUSTRALIAN BUREAU OF STATISTICS DATA LOCALITY 2017 TO REMOTENESS AREA 2016............................................................................... PN961


EXHIBIT #15 CORRESPONDENCE FROM MR SCAIFE TO FAIR WORK COMMISSION DATED 04/04/2018................................................................................................ PN966

EXHIBIT #16 AUSTRALIAN BUREAU OF STATISTICS 2016 CENSUS QUICK STATS................................................................................................................................. PN977

EXHIBIT #17 HOUSING AFFORDABILITY REPORT PRODUCED BY CORELOGIC DATED DECEMBER 2016................................................................................. PN981




MALCOLM CHARLES PARKER, AFFIRMED.......................................... PN1016

EXAMINATION-IN-CHIEF BY MS KNIGHT.............................................. PN1016

EXHIBIT #21 WITNESS STATEMENT OF MALCOLM CHARLES PARKER DATED 23/02/2018............................................................................................................. PN1043

CROSS-EXAMINATION BY MR IZZO......................................................... PN1044

CROSS-EXAMINATION BY MR TINDLEY................................................ PN1087

RE-EXAMINATION BY MS KNIGHT........................................................... PN1110

THE WITNESS WITHDREW.......................................................................... PN1135

SUNSERAE ELIZABETH CHURCHILL, AFFIRMED............................... PN1236

EXAMINATION-IN-CHIEF BY MR SCAIFE............................................... PN1236

EXHIBIT #22 WITNESS STATEMENT OF SUNSERAE ELIZABETH CHURCHILL DATED 7/04/2018............................................................................................................... PN1244

CROSS-EXAMINATION BY MR TINDLEY................................................ PN1262

THE WITNESS WITHDREW.......................................................................... PN1302

EXHIBIT #23 BUNDLE OF EXTRACTS OF AGREEMENTS COVERING THE LAY WITNESSES LED BY THE SDA..................................................................... PN1386