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Fair Work Act 2009                                                    




s.156 - 4 yearly review of modern awards


AM2015/1 – Family & domestic violence clause

AM2015/2 – Family friendly work arrangements


Four yearly review of modern awards




11.01 AM, FRIDAY, 21 JULY 2017


JUSTICE ROSS:  Can I have the appearances please, in Sydney first?  If you just keep your seat so the video doesn't have a problem tracking you.


MR L BENFELL:  If it please the Commission, Benfell, initial L for the CPSU.


MR B FERGUSON:  If it please the Commission, my name is Ferguson, initial B for the Australian Industry Group, and with me at the Bar table is Ms Bhatt, initial R.


MR J ARNDT:  If it please the Commission, Arndt, initial J, for the Australian Chamber as well as New South Wales Business Chamber and ABI.


MR G JOHNSON:  If the Commission pleases, Johnson is my name, initial G.  I appear with Mr McKell, initial K, for the Australian Meat Industry Council.


JUSTICE ROSS:  Thank you.  In Melbourne?


MR K BURKE:  Good morning, it's Ms Burke appearing on behalf of the Australian Council of Trade Unions.


JUSTICE ROSS:  Thanks, Ms Burke.  Can you just keep your seat and just make sure you're talking into the microphone, because I'm just having a little trouble picking you up?  Anyone else in Melbourne?


MR D GUNSBERG:  Yes.  May it please the Commission, Gunsberg, initial D, for the Coal Mining Industry Employer Group.


JUSTICE ROSS:  Thanks, Mr Gunsberg.  In Sydney?


MR ROGERS:  Sorry, your Honour, Canberra or Sydney?


JUSTICE ROSS:  I'm sorry.  Canberra.


MR B ROGERS:  My name is Rogers, your Honour.  I'm appearing for the National Farmers' Federation.  My initial is B, and with me is Ms Pearsall, initial K.


JUSTICE ROSS:  Thank you.


MR S HARRIS:  Your Honour, Harris, S for the Pharmacy Guild of Australia.


JUSTICE ROSS:  Thank you.


MS A BALLARD:  Your Honour, Ballard, A for the National Road Transport Association.


JUSTICE ROSS:  Thank you.  Anyone else?  No?  All right.  On 14 July I issued a statement indicating the purpose of the mention is to give further consideration to the programming of the matter.  By that I mean both the completion of the domestic violence leave case and the hearing of the family friendly work arrangements case.  Who would like to be heard first?


MR FERGUSON:  I intend to go first.


JUSTICE ROSS:  All right.


MR FERGUSON:  If I can deal firstly with the domestic violence leave proceedings, and the issues raised in the statement.  In terms of the future programming, one of the uncertainties that we face is that in the decision the Full Bench indicated an intention to release a proposed clause in relation to the matter.  It strikes us that the nature of this matter is such that there may be some merit in discussions between the parties, perhaps even discussions facilitated by the Commission before we move too far down the path.  But really to enable that to occur we think there's utility in a proposed clause actually being ‑ ‑ ‑


JUSTICE ROSS:  Discussions about what?  What proposed clause are you talking about?


MR FERGUSON:  At paragraph 115.


JUSTICE ROSS:  Yes.  Are you talking about the unpaid leave aspect?


MR FERGUSON:  Yes.  I wasn't certain whether the proposed clause was only going to deal with unpaid leave or whether it was going to seek to address some of the other issues such as the narrowing of the scope or any access to personal carer's leave.  It wasn't apparent to us that the proposed clause would be limited to just unpaid leave.


If that's the case we had rather thought that the most productive way might be for the Full Bench to release the proposed clause if it was still minded to and that to be ‑ ‑ ‑


JUSTICE ROSS:  I'll talk to the other Members, but for myself I wouldn't be.  I think there are some issues that have to be addressed and the parties can make submissions about it.  We might then form a view and release a draft clause, but why would we do it necessarily in advance?  I think the issues that need to be addressed by the parties in relation to unpaid leave for example are firstly the views of the parties as to whether or not there should be an entitlement to unpaid leave; secondly, the extent of the unpaid leave; thirdly, the basis on which an employee would access an entitlement, so how does it arise; fourthly, any substantiation provisions, et cetera.  I think there are some issues of principle that need to be determined before we get to that.  If it's going to delay it I certainly wouldn't be supporting doing it.




JUSTICE ROSS:  If that's where you're going with it because ‑ ‑ ‑


MR FERGUSON:  It's certainly not, to be honest.  Part of ‑ ‑ ‑


JUSTICE ROSS:  If we keep delaying each of these cases we won't be finished this review until the end of next year, and I have no intention of allowing that to happen.


MR FERGUSON:  This wasn't – this was actually to give it a way to resolve it more quickly in the sense that ‑ ‑ ‑


JUSTICE ROSS:  There's nothing to stop you, and there's been nothing to stop you since this decision was handed down, having discussions with the ACTU about any of these issues, and you can continue to do that.  But I don't see why we should delay the hearing of the matter to allow you further time when you've already had a number of months to do that.


MR FERGUSON:  There wasn't with, and I put this generally, with a view to delaying it.  It seemed that the decision had contemplated a proposed clause being ‑ ‑ ‑


JUSTICE ROSS:  Sure.  But it would have the effect of delaying it.


MR FERGUSON:  I appreciate that.  I think our view had been that this particular matter might be something that the parties could narrow their differences on and particularly when it comes to drafting these sorts of issues given the way the case unfolded.  We were quite clear about some of the problems that we saw in the clause that was put forward.


JUSTICE ROSS:  I think until you get submissions addressing the range of issues that I've identified, what would you be having a discussion about?  Have you got a position about the duration of unpaid leave?


MR FERGUSON:  I don't have a position to put today, your Honour, but we have of course thought about these sorts of issues, and we had anticipated that there be some – obviously a decision has been made that something should be done in relation to these issues.


JUSTICE ROSS:  There's a provisional view expressed.  Yes.


MR FERGUSON:  A provisional view, yes.  Without taking our position or putting our position too far today our view had been that there would be a capacity to be productive in the course of those discussions; that it wouldn't just be a case of having that and then putting a view that, well, we're just going to reiterate our original position.


JUSTICE ROSS:  I mean, I'm conscious that there are a range of employer interests involved in this; not just Ai Group.


MR FERGUSON:  There were.


JUSTICE ROSS:  Are you speaking on behalf of all of them?


MR FERGUSON:  No, I'm speaking on behalf of Ai Group.




MR FERGUSON:  I'm just advancing this given the nature of the proceedings and, yes, there were many parties had some involvement, but a very narrow group were actually participating.


JUSTICE ROSS:  I'll confer with the others but I'll let you know, for what it's worth, what I think.




JUSTICE ROSS:  It's not that I am adverse to, at some point, the Commission producing a draft model term, but it would seem to me that that would probably, and in the usual course, has been done after decisions in principle have been made about the content of it, and I'm just not sure how you would, having not heard the parties about the duration of the unpaid leave, for example, leave aside the threshold question of whether or not unpaid leave is to be provided, but then for the Commission to publish a model term that includes a particular duration, look, speaking for myself, I think that would be just a course better adopted after we have had the opportunity to see all the submissions from all the parties.  I'd certainly encourage the parties to give consideration to the issues; to have discussions.  If they're advancing a submission to do that with perhaps their primary view, and then an alternate view if the Commission was minded - for example, in your case, if Ai Group's position was to oppose, in principle, the provision of unpaid leave, but in the alternative if such leave was to be provided then you would say what you want to say about it.  I think each party should approach it in that way.


But, no, I think we're in a position where you're going to be putting submissions on both of the issues; the unpaid leave and the extension by an award term to have access to the personal carer's leave provided in the NES, so the two issues that the majority identified.


MR FERGUSON:  Yes.  No, look, I understand.  To be frank, we put this as one way forward, and partly our thinking was that, well, some of these issues were actually canvassed and subject of submissions at least from the Ai Group that went to – sorry, the operation of the clause itself was the subject of significant submissions.


JUSTICE ROSS:  The operation of a paid leave clause?


MR FERGUSON:  Yes, that was proposed.




MR FERGUSON:  We went through and what I ‑ ‑ ‑


JUSTICE ROSS:  Because I thought the position put was that the ACTU's claim should be dealt with in its terms and no alternatives.


MR FERGUSON:  Yes.  So our position was that the case had been run, and we raised the various issues that we raised going through things such as ‑ ‑ ‑


JUSTICE ROSS:  So your point is that the issues you'd raised with respect to the paid leave claim, many of them would apply with equal force to an unpaid leave claim?


MR FERGUSON:  Yes.  So, for example, the definition issue in terms of when ‑ ‑ ‑


JUSTICE ROSS:  No.  No, I understand that.  Yes.


MR FERGUSON:  What I'm saying is they were ventilated and they were the subject of ‑ ‑ ‑


JUSTICE ROSS:  No, no, I don't disagree with any of that.  It's just I don't think we can operate on the assumption that every party is going to adhere to those aspects of their submissions in the earlier proceedings, that's all.


MR FERGUSON:  No, no, and I take your point.  The only reason I think I'd raised this is I thought about it, and some of these issues really only came to our attention as you looked at a clause if you will.




MR FERGUSON:  I won't take it further.  That's why we thought there was some utility in that.




MR FERGUSON:  It may be that an alternative course is that the proponents of a claim you say that something should be done, could first advance some submissions in relation to the kinds of issues.


JUSTICE ROSS:  The Commission has expressed a provisional view, and it's inviting submissions on that provisional view.  It's not an adversarial process in the normal course.  On the face of it I don't see why we simply shouldn't issue directions that, within a period of time, and I'll hear the parties about the period of time, all parties are to make submissions on the unpaid leave and the extension of the NES point, and then submissions in reply by all parties at a further point in time, and then a hearing in respect of the matter.  On the face of it everyone's interests then are protected.  The problem that arises with the other process, ACTU first and then you second, what, then the ACTU in reply, and then you'll want a reply to their reply type of – this way, at least everyone can say what they wish to say about the two propositions; can say what they wish to say in reply, and then the oral hearing really everyone can deal with what everyone else has said.  At the end of it I just want to make sure that each interested party has had an opportunity to say whatever they want to say about these two issues.


MR FERGUSON:  Yes.  As long as there is a reply we're not overly concerned.


JUSTICE ROSS:  Of course.  Yes, yes, of course.


MR FERGUSON:  The only question is whether there needs to be some direction as to the matters that those submissions should be directed to; the kinds of issues and ‑ ‑ ‑


JUSTICE ROSS:  No, I agree with that entirely, and I'll come back to that.


MR FERGUSON:  That's what I rather gathered.


JUSTICE ROSS:  Yes, yes.  So let's deal with domestic violence leave first.  The proposition is this; that there be directions whereby within a certain period of time, I'll come to the period of time in a moment, any interested party is to file submissions in respect of the unpaid leave provisional view and the access to the NES provisional view.  Then within a further period of time – look, for the sake of argument, and that's all I'm raising it for, so, please don't take this as indicative in any way, so it might read, four weeks from today, parties are to put in written submissions directed at those two issues, and then a further four weeks after that they're to reply, and then there will be a hearing in relation to that issue.  Okay.


The qualification about that that I would make is this; that I think it is important that there be some guidance about what sort of issues should those submissions address, and I want to give each of you an opportunity to put in a short submission, for want of a better description, about what you think the issues are, and there's no reason why that can't be done by 4 pm next Friday.


Let me give you an example.  In respect of unpaid leave, look, it appears to me, and I'm only saying this on the face of it, that the following issues arise from the majority's provisional view.  The first question is should there be an entitlement to access unpaid leave for - unpaid  domestic violence leave?  So the first purposes that were articulated in relation to the paid leave claim.  The second issue is, if there is to be an entitlement to unpaid leave then, and you have a series of questions I think, what is the extent of the entitlement?  That is, how many days is it intended to - should it cover.  The second is the definition around how do you access that leave and that's the issue that you've been referring and I readily understand it's an issue that was in the substantive or earlier proceedings.


You may also have a provision about or a question about continuity of service while on unpaid leave.  You may also have a further issue around the question of substantiation.  That is, to use a sick leave example, where a statutory declaration or a medical certificate or some other form, however one frames that.  Now I don't know the extent to which that issue was canvassed in the earlier proceedings - - -




JUSTICE ROSS:  - - - but there was some debate about it at least.  I don't want to close off the sort of issues you need to address.  I want to give you an opportunity to think about that, come back by 4 pm next Friday and then we'll produce a draft list of issues for brief comment and then we'd finalise it.


Similarly, with respect to the provisionally expressed view that employees should have access to the NES entitlement to personal carer's leave for the purpose of domestic violence leave.  It seems to me a similar set of issues, not the same but similar arise.  The first proposition is may go to jurisdiction, what do the parties say about the Commission's jurisdiction to create such an award term.  The second issue well what do they say about the merits of creating such an award term, assuming there's power to do so, and the third is what do such - what are the features of such an award term?  It seems to me similar issues arise.  There's an overlap between the two around the definitional questions mainly.  The other issues would probably be dealt with because


they're already reflected in the existing entitlement to personal carer's leave, but there might be some additional questions.  I think it's useful to articulate what it is we want you to address and I do want to have that as an iterative process where you've got an opportunity to say what you think should be addressed.  That's the broad proposition.  Does anyone have any questions about it before I ask what your views might be about that, and secondly what you say about the period of time?  Obviously the period of time would run from when we finalise the list of issues.  Anyone have any questions or any burning issue they want to raise before I go to you for your views about it?  Did everyone understand what I'm putting?  Let's just go around the table then to see what your broad position is on that proposal.


MR FERGUSON:  We're broadly comfortable with that proposal and there's a lot of sense to it.  It's a different course than what we'd anticipated but I see the merit in it.  In terms of time do you want me to touch upon that issue?  If it's only submissions and bear in mind there are other things at play then I think the four week time period you've talked about is potentially workable.


JUSTICE ROSS:  Bearing in mind the four weeks probably wouldn't run for at least another two weeks, so in effect you'd have six because we'd have to finalise the issues.


MR FERGUSON:  I think that's right.  I haven't turned my  mind to what evidence we might seek, or if we would.


JUSTICE ROSS:  Yes.  I do want to come - well let me deal with the evidence point now.  I will put out following these proceedings a document with links, which has all of the material - references to all of the material that's currently before us.  My reason for that is that consistent with the obligations under the Act, I'm to have regard to all of that material.  I want to make sure that I haven't missed anything in what I've been reading.  It's really for you to point out is there anything on that list that I've missed.  I'll publish that shortly.


I had thought, bearing in mind the character of most of the evidence, that parties wouldn't seek to put further evidence in, in respect of it.  Unless something's occurred, and I'm not raising this to confine it, but something may have happened since the decision was handed down or there might be some piece of evidence or research that parties want to go to but absent that, I had been working on the assumption that you wouldn't be seeking to but that would be a matter for the parties really.


MR FERGUSON:  From our perspective we wouldn't view it as an opportunity to amend or re-run the first case by putting more evidence that wasn't put, but as we get to the implementation of some of the types of proposals that are being advanced my thinking was that there might be practical issues that we might want to demonstrate through evidence.  I say that hesitantly because how much of that will eventuate I'm not sure and I don't want that to be a break on the progress of the matter.  When I said that four weeks should be sufficient, I was thinking in terms of turning our mind from a submission perspective.  If it turns out that we think we'll need to advance evidence then it might colour things, but I just don't want to delay things unnecessarily today.


JUSTICE ROSS:  In any event, as with all directions there would be liberty to apply if something occurs to a party after it's been dealt with and we can deal with it then.


MR FERGUSON:  But I wouldn't want to press for an extended timetable unnecessarily.


JUSTICE ROSS:  No.  I had thought the character of the evidence that's already been led was really about - directed at broad issues of principle.  The extent of the domestic violence problem and those sorts of issues, some issues around implications of a grant of leave in those terms, but I'm not seeking to constrain a party if they wish to advance an evidentiary case, because neither of the two issues that have now been considered were directly the subject of the earlier proceedings.


MR FERGUSON:  No, and if the evidence was directed to the issues that are now arising we wouldn't wish to raise any issue.  It's if a party was - - -


JUSTICE ROSS:  Logically I think they'd probably have to be confined to that because that's what's before us.




JUSTICE ROSS:  As a matter of relevance really.


MR FERGUSON:  Look, and then being candidly it's just if it was - a party to the claim seeking to fill a gap in their case run at first instance, I think we'd have some concern about that but that probably won't arise.


JUSTICE ROSS:  Well, I suppose it depends on how all of you behave about it.




JUSTICE ROSS:  I don't have doubt if one of you does it there will be a bit of tit for tat so I think everyone can take that into account and hopefully we'll proceed on a sensible basis.


MR FERGUSON:  We're keen to move it forward.


JUSTICE ROSS:  I understand your position.  Mr Arndt?


MR ARNDT:  Your Honour, hearing what you've said this morning, I think much of the Australian Chambers position or proposal may have fallen away.  I should just note - I mean the Australian Chambers position is informed by the extent of progress in this matter.  In its view really we are tasked now - and I use the word "are" collectively to give effect to the reasons and to deal with the reasons of the case already run.


JUSTICE ROSS:  To finalise the - well to address the question of the provisional views expressed?


MR ARNDT:  That's right.


JUSTICE ROSS:  For the Commission then to finalise its position in respect of this issue, yes.


MR ARNDT:  That's right.  So I think we're consistent on that front.  I should just note in respect of the prospect of discussions between the parties, I think there may have been a misapprehension on behalf of - on reading the reasons of the reasons just delivered that a clause may have been forthcoming from the Commission.  In any case, given the progress of the matter, given everyone's been here for the evidence, heard the evidence, I think this is a case where the parties may be in a particularly good position potentially to get down to the nub of the some of the remaining issues.




MR ARNDT:  I hear your Honour on that.


JUSTICE ROSS:  My only point really, Mr Arndt, is that it's difficult to make that assessment across the board until we've seen the submissions and it may - you may well be right, that - and it may be that after the submissions are in that the Commission does put out something.  Because it might reflect the extent where there's - albeit there might be opposition to the proposition in principle, that is of unpaid leave for example.  There might be agreement that if unpaid leave is to be granted then the following things apply.  It is likely that we would at least put something out which might show the areas of agreement and the areas of dispute, because that then provides a focal point for any subsequent hearing.


It's not that I'm seeking to rule anything out, it's just that at this particular point in time it at least appears to me that it would be premature to do that, and it may give rise to the appearance of pre-judgment, that's all.


MR ARNDT:  To be clear, your Honour.  I think the submission of the Chamber would actually be that the parties may be in a good position to progress - - -


JUSTICE ROSS:  Absolutely, of course you can.


MR ARNDT:  Yes.  So that would actually be the preference of the Chamber to hopefully make progress amongst the parties to produce a clause, at least to identify the differences between the parties.


JUSTICE ROSS:  Yes.  Nothing in that endeavour is inconsistent with the issuing of directions for the filing of material.


MR ARNDT:  Absolutely not.  Beyond that, your Honour, the timetable and the directions are understood and all the appropriate - - -


JUSTICE ROSS:  All right.  Mr Johnson.


MR JOHNSON:  Your Honour, in this unusual case it appears we're not at the situation at paragraph 115 of the majority decision for any proposed clause, because - - -


JUSTICE ROSS:  Not at this point in time, no.


MR JOHNSON:  No, we're well and truly still in the common issue stage of - - -


JUSTICE ROSS:  That's true.


MR JOHNSON:  Well and truly in that stage.  Now we don't disagree with what's fallen from your Honour in relation to the next stages, so I can't add anything that Mr Arndt or Mr Ferguson have stated, but I will say this about the evidence.  We're one of the few industry bodies that appear directly - - -


MS BURKE:  I'm sorry to interrupt, Mr Johnson.  We're having trouble hearing you in Melbourne.


MR JOHNSON:  We're one of the few - we're one of the few industry bodies that appear from the start and I just want your Honour to note that in relation to domestic violence statutes, they're mainly state legislation and we address that substantially in our submissions but it didn't appear to - it didn't appear to be dealt with as detailed as we did in the other submissions before the Full Bench.  Perhaps your Honour might be cognisant of that because the provisions of those statutes are directly relevant to the issues that - - -


JUSTICE ROSS:  The definitional questions and the like, yes.


MR JOHNSON:  Yes.  So you might keep that in mind, if I can say that with respect, your Honour.


JUSTICE ROSS:  Yes.  No, I've certainly looked at some of those, in particular I suppose the Queensland statute but - and I'm certainly aware that the definitional issues are a live issue of contest between the parties and soaked up quite a bit of time already before the Bench.  To that extent when you come to the submission point, you should all proceed on the basis as the Act provides that all of that material that you've already put in remains relevant and will be taken into account in the determination of the unpaid leave question, and the access to the NES entitlement question.  It may be that rather than repeat it, it's an option for you simply to refer to particular paragraphs of your earlier submissions and the earlier evidence, rather than putting you to the trouble of repeating what you've already put.  I'm conscious that you did make submissions around that issue.


MR JOHNSON:  We can't add anything further, your Honour.


JUSTICE ROSS:  Right.  Can I go to Canberra.


MR ROGERS:  Yes, your Honour.  It's Rogers speaking from the NFF.


JUSTICE ROSS:  Yes, Mr Rogers.


MR ROGERS:  I don't think we have anything to add.  We see sense in the way your Honour's proposed to approach the issue.  We'll leave it at that, I think.




MR HARRIS:  Your Honour, Harris from the Pharmacy Guild, we're going to follow your approach, has to address those questions first before we move on.


JUSTICE ROSS:  Right.  Ms Ballard?


MS BALLARD:  your Honour, we agree with the approach that you have put forward.


JUSTICE ROSS:  Thank you.  Can I go to Melbourne.  Mr Gunsberg firstly.


MR GUNSBERG:  We've got no objection to the proposal that you've put forward, your Honour.


JUSTICE ROSS:  Right.  Ms Burke.


MS BURKE:  Thank you, your Honour.  The ACTU agrees that we need a starting point from which to commence this debate.  We were labouring under the same perhaps misapprehension as AIG and the Australian Chamber that a draft clause would be forthcoming from the Full Bench.  I understand that we were all labouring under a misapprehension, so on that basis I think a list of issues is an appropriate way to proceed and we don't have any objection to the proposed timetable of submissions and then a hearing.  Save that for my part I think it would be useful, if possible, to have a conference that's managed by the Commission in-between submissions and a hearing.




MS BURKE:  I hear what you have to say, your Honour, about the parties can do that at any time without direction or guidance from the Commission.  That is true but it is extremely helpful to have a timetabled and mandated process in place.


JUSTICE ROSS:  No, no, I think - - -


MS BURKE:  I think that would assist to narrow the issues in dispute.


JUSTICE ROSS:  - - - I think that makes sense, Ms Burke.  Look, just to be clear I'm not suggesting that the Bench will not provide a draft term for the consideration of the parties at some point in time.  It's just at the moment we've not heard from you about the threshold question, questions in each in case, and nor have we heard from you about some key elements to such a provision.  Until we get something from you in that point I just think it would be a bit premature, that's all.  I hear what you say, Ms Burke, and I doubt if anyone would take issue with the proposition, I'll hear them in a moment, but as I understand it it's after the submissions are in, before the hearing the Commission convene a conference to explore the extent of agreement and the extent to which issues are in dispute between the parties.  Is that the idea?


MS BURKE:  Yes, and hopefully would narrow the issues in dispute, if not resolve some of them.  I understand your point about the proposed clause.  It really is a question of timing and - - -


JUSTICE ROSS:  Yes, exactly.  Thank you, Ms Burke.  Can I just ask does anyone object to the proposition that we'll schedule in a conference - of course, you know, you're free to participate or not as you see fit and to take whatever position you wish to take in relation to all these issues.  Does anyone object to the scheduling of it as part of the directions?  No.  All right.


Is there anything further - just to be clear on the domestic violence leave proposition then, you've heard what I've said in nothing more than an indicative way about what it seems to me are the issues that arise, in respect of the two questions or provisionally expressed views, and what I'm seeking from each of you is by 4 pm next Friday, for you to send in what you see as being the issues that should be addressed.  That would then frame the submissions made - I'm not suggesting it would - the submissions should be limited to those matters, I make that clear, but those are the matters that the Bench would be looking for each party to at least address.  Anything further on domestic violence leave before I go to the family friendly?


MR FERGUSON:  There was only one other issue raised in the statement which was the prospect of the matters being dealt with concurrently and I don't know if you're still minded to do that.


JUSTICE ROSS:  Look, it depends a bit on what happens with the family friendly and the timing really.  It may be that the dates already scheduled for the hearing of the family friendly can be utilised for the domestic violence hearing.


MR FERGUSON:  I note that point and the only other observation I'd make is we don't necessarily see utility in that, given that there's different subject matter.




MR FERGUSON:  We didn't want them to be tied and dragged out if one could be advanced quickly.


JUSTICE ROSS:  No, no, it was really just to bring it to your attention, whether you thought there would be utility or not.  Look, frankly because although - and I don't know what the original estimate was in this case - although I think two weeks was scheduled for the evidence in respect of the family friendly claim, if it's anything like almost every other matter that I've been associated with in this review, you wouldn't need two weeks to deal with the evidence.  It was really going to be a question of convenience then of the parties, given they'd already allocated that time off for this purpose, we might deal with both.  I accept there are different issues now arising from the extension you seek on the family friendly matter.


Anything else on domestic violence?  No.  Right.


Let's go to the family friendly work arrangements claim and as I understand it directions were issued, I think I've dealt with this in the statement.


MR FERGUSON:  22 December.


JUSTICE ROSS:  Yes, yes, and that that reserved the weeks of 10 and 17 October for evidence, et cetera.  Let's deal with I think the - well let me just come back to you in a moment, Mr Ferguson.  Ms Burke, my recollection was that the ACTU had some issues they wanted to raise about the hearing and determination of this matter.  Is that right or - I think an ACTU representative mentioned it in another matter that was before me that escapes me for the moment.


MS BURKE:  Yes, at one of the hearings about the reconstitution of the Domestic Violence Full Bench.


JUSTICE ROSS:  Yes, that's right.


MS BURKE:  I mentioned that there were some additional timetabling orders that the ACTU would seek before the newly constituted Full Bench in this matter, and they really relate to matters such as parties to notify each other of the witnesses required for cross-examination, the length of cross-examination, timetable for hearing, timing for objections to evidence and all of those sort of standard - if I can use that term - - -




MS BURKE:  - - - pre-hearing orders.  We were seeking, or I was seeking, to have those timetabled as soon as possible because I think it will, in my experience anyway, does drive considerable efficiency in terms of preparing for the hearing.  But also as your Honour's noted these matters do tend to contract, in terms of the hearing time, and certainly in the domestic violence matter we originally  had it set down for two weeks but as it turned out we only needed a week.  In that week we probably could have done it in three days, and that was - - -




MS BURKE:  Because almost every day ended up adjourning early because cross-examination was not as extensive as perhaps was contemplated or witnesses weren't required.  If possible, because it's just more efficient and therefore less expensive for everyone - - -




MS BURKE:  - - - we'd like to avoid all of those issues.


JUSTICE ROSS:  Yes, well look - no, I understand the desire and I suppose the intent.  It really may come down to whether they're all best dealt with at a mention rather than specific directions, because then it can be sorted out who would be heard on which day, rather than sort of an endless exchange.  But you can certainly take it that I'm all for the idea of not having any wasted time during the hearing process, and that would mean there would need to be a mention or a conference around the scheduling of witnesses that would include how long they'd be required for cross-examination and I usually reduce that estimate anyway because in my experience it's never as long as everybody thinks, particularly the lay witnesses.  Having regard to the lay witness evidence which I think there are, what, three - am I right that there are three experts and the rest are lay witnesses?


MS BURKE:  Yes, that's right.


JUSTICE ROSS:  Well, the lay witnesses would not take more than a day to a day and a half probably in totality.  It's just, you know, on the face of it not - look, the principal proposition that there should be some discussion and resolution about which witnesses are required for cross-examination and how long it's likely to take and then some scheduling, I think all of that could be met by a mention once the material's in, and then we could deal with all of it at that stage.


MS BURKE:  Yes, I don't have any - - -


JUSTICE ROSS:  Because at this stage we don't know what the evidence is in reply and I think we'd probably at least need to wait until that stage, and there could then be an indication from you as to whether you intend to call any rebuttal evidence to the reply evidence and how that's to be dealt with.  So probably I'd suggest a mention perhaps a week or so after the filing of material in reply to the material the ACTU's filed, and we can address the issues you've raised then, Ms Burke.  Are you content with that or - - -


MS BURKE:  Yes, that's fine and of course all of this needs to start with an estimate of the length of the hearing.  I think two weeks - to be honest, I think that two week estimate was put in place long before I was involved and long before my instructor was involved, so I don't have any particular insight to offer to that.  It may be that the employer parties are in a position now to at least indicate whether they think two weeks - given the number of witnesses that they plan to call, I'm certainly not asking them to identify those witnesses now but it may be that there are in a position to suggest whether one week or two weeks or even less than that is appropriate, and then perhaps once the actual hearing date has been reallocated, if that's necessary, the rest of the questions for determination will just follow from that.


JUSTICE ROSS:  Yes.  Just bear with me for a moment, Ms Burke.  Thanks Ms Burke.


MR FERGUSON:  Firstly, in terms of the mention, we think that's a sensible course of action.  Where that approach has been taken in other matters in the course of this review and certainly the last review, it's been more productive.  Part of the benefit is that you get all the parties in one room and that enables some rationalisation of how long people are going to cross and those sorts of things.  When it's all done remotely with unknown numbers of participants it's all a bit of a guess anyway.  So we'd certainly support that course of action.


JUSTICE ROSS:  Before we had such a mention I'd be expecting the employer interest to have had a discussion amongst themselves, because it's unlikely there's going to be much tolerance for repetitive cross-examination and you may reach an agreement about which matters witnesses are to be questioned about and who's going to be doing the questioning.  Rather than each of you operating in isolation and then coming up with your own estimates, but then it turns out that those questions have already been asked.


MR FERGUSON:  Normally there is some attempt, at least, between some of the major parties to do that.




MR FERGUSON:  It's just the mention itself often is the first time we know who else is going to be actively involved in the proceedings.


JUSTICE ROSS:  No, no, that's fine.  Yes.


MR FERGUSON:  So we'd support that sort of proposition.  In terms of timetabling look, I'm not sure, we're not in a position to give a clear indication as to how long.  I would say this, I thought two weeks was probably going to be a bit excessive but I'd say factoring in less than a week would be risky just because, apart from anything else, if there's a lot of parties in these proceedings it tends to drag matters out.




MR FERGUSON:  But we thought two weeks is probably not likely but we haven't got a firm view about how many witnesses.


JUSTICE ROSS:  Right.  Well, can I go to - am I right in this, in that the extension you seek, the original directions of the 22nd provided that any party opposing the ACTU's claim is to file their material, both written submissions and witness statements et cetera, by 4 pm on 25 August.




JUSTICE ROSS:  The ACTU was to file its material by 24 April.  It was granted an extension of two weeks to 5 May.  Witness statements were filed on 10 May.  The effective - it was effectively given an extra three weeks and you're seeking an extra six weeks.




JUSTICE ROSS:  My starting point is well, I can understand why you should or those opposing should get the same degree of latitude that's been given to the applicants.  I don't really see why on the face of it you should be given any more.


MR FERGUSON:  Let me address that, and obviously we have set out in some detail the basis - on the letter of 12 July but look, obviously part of our difficulty is a product at the ATCU's request to suit their needs and we understand that and we didn't quibble with that.


JUSTICE ROSS:  No, no, I think it's reasonable to expect that you should get an extension of the same duration.  I just want you to focus on why you should get an extra - or you should get double that?


MR FERGUSON:  I understand but what - no, no, and instead what has arisen since then, and this is no criticism of the Commission, it's the nature of the review, is that a number of other matters that were unforeseen in many respects have arisen - - -




MR FERGUSON:  We provided a detailed list in our correspondence - - -


JUSTICE ROSS:  But if you - the casual part-time, well your submissions are due on the 2nd, aren't they, of August?




JUSTICE ROSS:  Well - - -


MR FERGUSON:  Which we're endeavouring to deal with that in the interim, rather than - well we're trying to deal with both but that's a whole new demand.  I mean just yesterday we've had a statement in relation to - and again, this isn't a criticism because we understand what the Bench is doing - - -


JUSTICE ROSS:  I regret, you're just going to have to cope with the fact that there are other review proceedings going on.


MR FERGUSON:  We understand that entirely but of course it's the nature of this review that we may have had a perception of how many matters or common issues even there would be.  They have grown and then the nature of - and this again it's not in any way a criticism - the nature of what's required as a part of those has grown beyond what we anticipated as mattes have become unearthed, if you will, in relation to each of those proceedings.  And in each - or in many of the contexts, directions have been set for those proceedings without us having any say as to the workability of those directions.


Now we don't want to delay those matters and you'd be aware throughout this we've got to incredible efforts to try and make sure we're moving things forward.  We've not certainly sought an extension of this sort of magnitude ever in the context of those proceedings.  Where we've needed one to deal with something properly we've sought it but it's always as far as possible been modest, because to be frank our organisation are very keen to get these things wrapped up as quickly as possible as well.


In the context of this case, because there's been so many developments that have been occurring and they're all important and we haven't wanted to delay all of those, it really has prejudiced our ability to properly deal with this very significant case as well.  Now it's in that context that we've sought this larger extension.  Can I say this, we really looked at how we could try and deal with it without vacating those dates and whether we could just seek a slightly more modest request in order to preserve those dates, thinking that that might be a pressure that the Full Bench had to deal with.  But, you know, we ultimately came to the conclusion that we were going to have to bite the bullet and ask for longer because it's really what was required.


Now in this circumstance, as I understand it, the union is supportive of or does not oppose this, so there's no real difficulty or prejudice that they're pointing to.  It is just a case that it will slightly delay - - -


JUSTICE ROSS:  No, it's a problem for us to not - - -


MR FERGUSON:  Yes, and I understand that and - - -


JUSTICE ROSS:  Because so you know, what it means in practice is that if we abandoned those weeks then it will be mid-December before the matter will be heard.  Just because of availability issues.


MR FERGUSON:  I understand that.


JUSTICE ROSS:  Look, I wanted to avoid one day here, one day there, because I readily appreciate the expense and usually the longer time period involved in fragmenting a hearing.  So I'm assuming it's in everyone's interest that we deal with all of the evidence in one go.


MR FERGUSON:  We would prefer that but not at the expense of us not having the time that we do generally believe that we need.  As I said, putting the appeal in the strongest terms, we don't normally ask for this sort of magnitude of extension and I appreciate that it's longer than the ACTU had and of course it knew it was mounting this case for a very long period of time and has had a much longer period to prepare and support it.  We've only had a window since we've seen their material and precisely what they're seeking, and of course what they're seeking has changed over time.


It's not the case that we've been on notice at all points of the claim it's ultimately advanced.  So we couldn't have been sort of preparing in anticipation of it.  I don't say that to criticise them, it's just that it's not true that we've had the same period of time that they've had since they first, at the start of these proceedings, indicated an intention to advance the claim.  In that context, we don't see this as unreasonable.  But I understand - - -


JUSTICE ROSS:  That goes to their - - -


MR FERGUSON:  Carers responsibilities.


JUSTICE ROSS:  - - - revised draft determination of 18 May.  They note that that was served on the employers parties on 22 March.


MR FERGUSON:  My recollection is not as strong.  That may well be right but it's certainly different from what was first contemplated.


JUSTICE ROSS:  But their real point is that well the draft determination was filed on 18 May but you've been on notice since 22 March this year.


MR FERGUSON:  Yes, certainly since this year and I'm not making more of that and I'm not trying to protest to any great extent, it's just that it's not true that we've had the entire duration of the review when the common issues were first ventilated.  Of course, I understand this and I understand there's constraints.  Of course there isn't - while we're keen, everyone's keen to see this review concluded and I am personally very keen, but the reality is there isn't a set timeframe under which this review needs to be concluded and if it's to visit some unfairness on us then we would say, and we say this is the way this review has unfolded, to make us meet the existing deadlines would be an unfairness because of the nature of the way other proceedings have developed.  We say the better approach is to remedy that unfairness by granting us the request proposed, which is supported by the - at least ACCI and I understand the union.


JUSTICE ROSS:  Look, I'll proceed on the basis, unless any of the employer interests represented today want to say something orally that's different but all of the employer interests support the extension.


MR FERGUSON:  Thank you.  I mean ultimately, what we are trying to do is put, you know, a proper position on behalf of the interests of employers before the Commission so it can have all the relevant material before it.


JUSTICE ROSS:  All right.  Ms Burke, can I go to you in respect of two issues.  One is - well I think you've indicated that the extension of six weeks was not opposed.  What do you say about that and more particularly what do you say about the rescheduling of the date for you to file material in reply?  That is it was 15 September and it's proposed that it would now be 22 October.


MS BURKE:  Yes, and there was a matter I should have raised when I was speaking earlier, your Honour, I'm sorry, that may be relevant to this contemplated adjournment.  That is that in the judicial review of the penalty rates matter, that matter has not been set down yet but I understand will be heard by the Full Court at some point in the last two weeks of September or the first two weeks of October, and the outcome of that decision, which one of the grounds of review is whether or not a moving party needs to show a material change in circumstances.




MS BURKE:  The outcome of that decision may be relevant to how this case is conducted, or at the very least may direct cross-examination and will of course be relevant to final submissions.  I just wanted to raise that.  Of course, I don't have and no one has a crystal ball in terms of when that decision will be published.


JUSTICE ROSS:  Well, it's unlikely to be down this year you would think.


MS BURKE:  Well, perhaps I'm more optimistic, your Honour, but it's possible.  But I just wanted to flag that.  I'm certainly not proposing and it's not the ACTU's decision that this matter should be stayed until the judicial review's heard and we absolutely do - - -


JUSTICE ROSS:  No.  Look, the same point could be made about every other award review proceedings.  If the point succeeds in penalty rates then we would have to set aside, it would seem to be, every other decision that has been made.  We'd need to revisit annual leave, we'd need to revisit all of them.  So I'm not sure that it's a reason for any sort of delay in these proceedings but I take it you're not advocating that in any event.


MS BURKE:  Well, only - no.


JUSTICE ROSS:  Are you raising it because of the likely - that the first two weeks in October, that might conflict with when the matter's currently listed.  Is that the - - -


MS BURKE:  No, no, I was just raising it in case, as you say your Honour, if the unions are successful on that ground, it will have a significant impact on the decisions handed down to date.  It would simply be that it may be possible to avoid that consequence in this matter if it was heard after the Full Court hands its decision down. So I was just raising it for that reason alone.


In terms of the actual timing of an adjourned hearing, we would like to do as little violence to the timetable as possible.  If there is any way - and of course the employer parties should be given a concurrent three week extension that the ACTU enjoyed, but if there's any way to keep at least the week of 17 October we would support that, and I think that would mean however that a three week extension rather than a six week extension would need to be done to the timetable as it currently stands.


JUSTICE ROSS:  Would that then provide for a - well, let's just - but I take it that what you're seeking is whatever extension is granted to the employer interest then that period of time would also be applied to the filing of your reply material.  So in other words, if three weeks was granted then your reply material would be required - bear with me for a moment.


MS BURKE:  I think it would be 6 October, your Honour.




MR FERGUSON:  The obvious difficulty might there be that I think we only have a week before we receive their material and the actual hearing, which I haven't seen their material, haven't seen the magnitude of the employer case either but - - -


JUSTICE ROSS:  No, I appreciate the problem.


MR FERGUSON:  - - - in these cases that - - -


JUSTICE ROSS:  I understand.


MR FERGUSON:  - - - it's proven to be a problem.


MS BURKE:  No, I appreciate it's cutting it a bit fine but if it can be done that would be our first choice.


JUSTICE ROSS:  All right.


MS BURKE:  Other than that we have made inquiries with witnesses about their availability or more relatively their unavailability in November and December, but perhaps the November availability is irrelevant based on what your Honour's just said about the capacity of the Full Bench to hear the matter.




MS BURKE:  In that case the first two weeks of December are suitable.


JUSTICE ROSS:  Yes, it's more likely to be mid-December.  It's more likely to be the last two weeks.


MS BURKE:  Well, sorry, by first two weeks, that would include actually really all of December from the 4th to the 22nd.




MS BURKE:  We could work within those dates.




MS BURKE:  But as I say, our primary position is if it's possible to hear the matter in October we would seek that.


JUSTICE ROSS:  Yes.  Anyone else wish to be heard on this?  Look, to some extent it might depend on where we land with  domestic violence leave directions as well.  We want to look at both of those.  When would a hearing take place consequent on, for example, if by the time we resolve the issues and we issue the directions it's likely to be around that first week in August.  That would mean the first lot of submissions would be in by 1 September and the second in reply by 29 September, and a conference then the following week and then we could utilise that second week in October that's presently listed for this matter to resolve the domestic violence leave matter.  I think that's something that we just need to have a think about.  So to that extent, Ms Burke, the dates would be utilised.


I think there is some substance in the proposition that - and I readily understand that whatever period of extension is granted to the employer interests then you should have a similar period applied to your current filing dates.  It's just at a minimum that's looking at three weeks and that doesn't give a lot of time for either a discussion around scheduling issues or a - or to give the employer interests an opportunity to consider what they do in relation to the further material.  Bearing in mind that I think that those two weeks that are provisionally set down can now be utilised for both conferencing of the parties to try and resolve any issues that are outstanding, and then a subsequent hearing as well.


MS BURKE:  Yes, I understand.  We would file our reply material - - -


JUSTICE ROSS:  It's just - sorry, Ms Burke.


MS BURKE:  - - - by the 6th.  We would be asking everybody to work very quickly.  Whether or not that's possible, it's certainly desirable but it may not be possible.




MS BURKE:  Having said that if I can just bet against myself and say that if your Honour's minded to grant an extension and an adjournment to December, we would be grateful for an extra week to file our reply submissions so that it was four weeks rather than three, and our evidence, because if we need to - of course we need to write submissions about the evidence.  It can be done in three weeks, four weeks would be better.


JUSTICE ROSS:  Look, if having a look at the totality of the two matters we think that the hearing of the family friendly arrangements matter is likely - well is probably going to take place in that mid-December block, then we'd be inclined to a more lenient view in respect of Ai Group's request, which would give you a consequent additional amount of time.  I don't think - frankly, there wouldn't be much point in me being bloody minded about the three versus six weeks in circumstances where the hearing's not going to take place until December, so I wouldn't be doing that.


If it is in fact a mid-December hearing then we would be more looking at the six weeks sought, the six weeks additional time, for the ACTU to reply, then with some conference or mention to deal with the witness material and the like and the scheduling of it and then a mid-December hearing.  I just need to discuss with my colleagues and reflect on the interaction between the domestic violence leave matter and this matter and on the face of it, it may be that we're able to utilise one of those weeks that's already or two of those - the two weeks that has already been allocated won't be for nought.  We'd be able to finalise the domestic violence leave.


I understand, and it is a balancing exercise, Ms Burke, and I appreciate what you're putting in relation to it and we'll give it some thought and we'll come back to you in the next week or so.  We'll probably deal with it at the same time as we finalise the domestic violence leave matter, so in that first week of August you'll have an answer in respect of both these issues.  All right?  Anything further from any party?


MR BENFELL:  Er - - -


JUSTICE ROSS:  I'll come back to you, Mr Benfell.  Just on the general questions of domestic violence leave and family friendly?  No.  Mr Benfell, I've got your letter in which - look, the essence of it as I understand it is you're seeking, how do we intend to deal with modern enterprise awards in the review process?  Well, that's a good question.


On the face of it, and you know I'm doing no more than expressing my own provisional view if you like, in the first instance, and this is consistent with the approach we've taken in other matters.  In the first instance we would resolve the model term issue, if there is to be one, arising from the proceedings.  To give you an example, again illustrative only, in relation to the provisional view about unpaid leave, after hearing the parties the if Bench was minded to grant unpaid leave it would then deal with what does a model term look like and then it would begin the process of applying that to modern awards.


It depends a little bit on how the claim was originally framed and all the rest, about whether or not it sort of applies if you like with some automaticity.  If you take the annual leave case, there were some issues that were the subject of claims in respect of a range of nominated awards.  At least in respect of those nominated awards, once we'd resolved the claim and the model term, it went into those awards and then there was a debate as to whether or not it should go into other awards, and parties were heard about that.  In some instances it's been modified, in some it's not been inserted for reasons that are specified to a particular award.


I would expect that in relation to the enterprise awards the same process would operate, that once the Commission's determined the issues or principle and what a model term might look like, then you would make application to have the model term inserted into the range of awards that you've identified an interest it.  It really then comes back to you about how far you want to press the inclusion or having them joined at this stage.  My hesitancy about that is that it may well lead to some significant delays while we hear about the particular circumstances applying in the public sector, and we would hear about them when you made an application to vary anyway.  As fascinating as public sector employment is to all of us, I'm not sure that those whose interests are confined to the private sector are going to be as enamoured as I am about hearing about those issues, Mr Benfell.  That's really - that was my initial reaction to the correspondence.


MR BENFELL:  Your Honour, that doesn't surprise in relation to the modern enterprise awards because there's also the modern enterprise objective that has to be addressed.




MR BENFELL:  So it would unduly complicate life for everyone and we don't intend for that.




MR BENFELL:  The second question we raised was in relation to the modern industry award that was created by the Commission last year - - -


JUSTICE ROSS:  Yes, I think that's in a different - - -


MR BENFELL:  - - - after the process started and we thought that might be a different question.


JUSTICE ROSS:  I think that might be a different question.


MR BENFELL:  We advised the Australian Public Service Commission that we would be raising these issues today, they haven't appeared, so we just want to know either way so that they know and we either get involved now or not.


JUSTICE ROSS:  Well, I'll post the transcript of this morning's proceedings on the website.  I'd ask you to draw the attention of the Public Service Commission to the transcript, and I seek their views in relation to the proposition that the modern award be the subject of these proceedings, given that all other modern awards are the subject of these proceedings.  Is that the short point?


MR BENFELL:  Yes, your Honour.  Then I - - -


JUSTICE ROSS:  They were the subject of the initial claim.




JUSTICE ROSS:  I think that's right.  I didn't count them but is that - Ms Burke, are you able to assist there whether - was it all modern awards in existence at the time a claim was made?


MS BURKE:  It was but of course the claim was made over a period of several years, so - - -


JUSTICE ROSS:  I think this is - I don't think there have been too many other modern awards created.


MS BURKE:  As in it was initially file in 2015.


MR BENFELL:  No, it's the only one I know of.


JUSTICE ROSS:  Yes, I think - well the proposition then is that your claim was intended to apply to all modern awards and you identified what they were they are that time.  There's a new modern award.  It may be that the CPSU should perhaps have a discussion with the ACTU.  The ACTU can indicate whether it's their intention that any position they put now in respect of unpaid leave and the extension of the NES requirement would apply to all modern awards including the Australian Government Industry Award.  If you draw that to the attention of the Commission and they can say what they wish to say about that by 4 pm next Friday.


MR BENFELL:  Thank you, your Honour.  That gives rise to the wider question of all the other tests, all the other standards arising from the other reviews, common issues et cetera, whether or not this award is going to be - - -


JUSTICE ROSS:  Well, I think the simplest course might be for both yourself and the Commission, the Public Service Commission, to give consideration to which of those would apply to this award and simply make an application to vary in the context of the review.  Because I don't think that award's been reviewed yet.




JUSTICE ROSS:  So it will have to be reviewed and you might give some thought to having a discussion with them about that review process and that's when issues such as - well, on the face of it, annual leave, part-time, casual, public holidays, when that matter's determined and it will turn on the circumstances in that award and the existing clauses.  I don't have an answer beyond that, Mr Benfell.  I think the award will have to be reviewed, point 1, I think.  Point 2, in the context of that review there would have to be consideration given to the application of the decisions that have been to date and in the future.  It's of course open to either party to simply apply to vary.  All right?


MR BENFELL:  Thank you.


JUSTICE ROSS:  Does anyone want to be heard about or does anyone here have an interest in that Australian Government Industry Award and they want to be heard about it, or about anything that I've just said about that process?  No.  All right.  Anything further?




JUSTICE ROSS:  I'm conscious that I haven't heard directly from the other employer interests in relation to the family friendly proposition, because I've taken it that you're all broadly supportive of Ai Group's application for an extension and what flows from that.  Is there anything anyone wishes to say about that or about anything that I've said in relation to it?  Anyone in Canberra?  No.  Melbourne?  No.  Sydney?  No.  All right.  I'll leave you to advise about what are the issues you think should be addressed in respect of the two domestic violence leave questions by 4 pm next Friday, and as I've indicated we'll get something to you in the week - the first week of August.  Thanks very much, I'll adjourn.

ADJOURNED INDEFINITELY                                                         [12.09 PM]