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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
VICE PRESIDENT HATCHER
COMMISSIONER HAMPTON
COMMISSIONER JOHNS
AM2014/301
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2014/301)
Public Holidays Common Issue
Sydney
10.08 AM, TUESDAY, 25 JULY 2017
Continued from 24/07/2017
PN661
VICE PRESIDENT HATCHER: Yes, can I take the appearances of the people who didn't appear yesterday? So Mr Moore, you appear with Mr Bakri for the SDA?
PN662
MR MOORE: Yes. Good morning, your Honour. If the Commission pleases, I seek permission to appear for the SDA with my learned friend Mr Bakri.
PN663
VICE PRESIDENT HATCHER: All right. Thank you.
PN664
Mr Ferguson, you appear with Ms Bhatt for the Ai Group and the Hair and Beauty Association.
PN665
Yes, thank you, Ms Wellard, you appear for the Pharmacy Guild?
PN666
MS WELLARD: If it pleases your Honour, I seek permission to appear for the Pharmacy Guild.
PN667
VICE PRESIDENT HATCHER: Yes, all right. Ms Svendsen, you appear for the HSU?
PN668
MS SVENDSEN: I do. Thank you, your Honour.
PN669
VICE PRESIDENT HATCHER: Yes. So is that all the appearances in Sydney? And then in Melbourne, Mr Tindley, you appear for the Australian Retailers Association?
PN670
MR TINDLEY: Yes, your Honour.
PN671
VICE PRESIDENT HATCHER: Yes, all right. Are they all the appearances in Melbourne?
PN672
MR TINDLEY: No, your Honour. Your Honour, I'd also state that (indistinct) - - -
PN673
VICE PRESIDENT HATCHER: Sorry, there was a cough. I didn't - - -
PN674
MR TINDLEY: - - - in Melbourne.
PN675
VICE PRESIDENT HATCHER: Sorry, Mr Tindley, can you say that again?
PN676
What's happened? It has frozen, Helen. Yes, sorry, Melbourne cut out. Mr Tindley, you were saying something?
PN677
MR TINDLEY: Yes, your Honour. It's just that the sound is quite faint in Melbourne. I can hear myself very loudly but no one else. Everyone else is coming through quite faintly.
PN678
VICE PRESIDENT HATCHER: All right. We'll speak loudly and Mr McDonald will try and refrain from coughing, which makes it worse.
PN679
Mr Moore and others, I'm not sure that you need permission under section 596(3).
PN680
MR MOORE: Thank you, your Honour.
PN681
VICE PRESIDENT HATCHER: All right, are we ready to take the first witness Mr Moore?
PN682
MR McDONALD: Yes, your Honour. Your Honour, could I just clarify one matter? It was raised about the blacking out of the address of witnesses. That's actually something done at the Commission's end as we understand it before the statements are published on the website.
PN683
VICE PRESIDENT HATCHER: Yes. Thank you.
PN684
MR McDONALD: Your Honour, if I could call Mr Moore who is in Newcastle. Present with him is my colleague, Ms Radley.
PN685
VICE PRESIDENT HATCHER: All right, Mr Moore, can you just stand and we'll administer the affirmation?
PN686
MR A MOORE: Yes.
PN687
THE ASSOCIATE: Mr Moore, could you just walk over to where the microphones are at the Bar, just next to you? Thank you, and could you please state your full name and address?
MR MOORE: Alex Ernest Moore (address supplied).
<ALEX ERNEST MOORE, AFFIRMED [10.12 AM]
EXAMINATION-IN-CHIEF BY MR MCDONALD [10.12 AM]
PN689
MR McDONALD: Mr Moore, have you made a statement for these proceedings dated 18 April 2017?‑‑‑Yes, I have.
PN690
If I could - and is that statement true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.
PN691
If I could tender that statement. We however do not wish to tender the first sentence of paragraph 16.
PN692
VICE PRESIDENT HATCHER: Are there any objections apart from that, Mr Bull?
PN693
MR BULL: No objection. I'm just seeing what has been deleted.
PN694
VICE PRESIDENT HATCHER: Why is that being deleted, Mr McDonald?
PN695
MR McDONALD: It seem to add a certain charming vernacular to the proceedings so, you know, I'm totally open minded about it, your Honour.
PN696
VICE PRESIDENT HATCHER: I think we'll leave it in.
PN697
MR McDONALD: So Mr Moore - - -
PN698
VICE PRESIDENT HATCHER: Sorry, I'll just mark the exhibit, Mr McDonald.
PN699
MR McDONALD: Thank you.
VICE PRESIDENT HATCHER: So the witness statement of Alex Moore dated 18 April 2017 will be exhibit 8.
EXHIBIT #8 WITNESS STATEMENT OF ALEX MOORE DATED 18/04/2017
*** ALEX ERNEST MOORE XN MR MCDONALD
PN701
MR McDONALD: Thank you, your Honour.
PN702
Mr Moore, you also received an order for production of documents from the Fair Work Commission?‑‑‑Yes I did.
PN703
Did you receive an order for production of documents and supply a number of documents in accordance with that order?‑‑‑Yes I did.
PN704
Yes. Thank you Mr Moore. I have no further questions.
VICE PRESIDENT HATCHER: All right, Mr Bull.
CROSS-EXAMINATION BY MR BULL [10.14 AM]
PN706
MR BULL: Just a few questions. Mr Moore, can you hear me?‑‑‑Yes I can.
PN707
I'm the industrial officer for United Voice, the union, and I'm going to ask you a few questions. With the documents that you produced you should have basically the financial reports for the club going back to the year ending 30 June 2013. Do you have those?‑‑‑Sorry, yes.
PN708
So you've got the four? You've got those reports in front of you?‑‑‑Yes I do.
PN709
Now just briefly, the bowling club, it has got a bowling green?‑‑‑It has two bowling greens.
PN710
All right. It has got a club house?‑‑‑Yes.
PN711
And there's a bar in the club house?‑‑‑Yes.
PN712
There was a bistro but that has been contracted out?‑‑‑Correct.
PN713
And you've also got a number of poker machines, is that correct? I can't hear you, Mr Moore. Can you hear me, Mr Moore?‑‑‑Yes I can.
PN714
All right, you've got a number of poker machines in the club?‑‑‑Yes I do.
*** ALEX ERNEST MOORE XXN MR BULL
PN715
How many poker machines does the club currently have?‑‑‑The club has 65 poker machines.
PN716
So it has got a substantial number of poker machines?‑‑‑It has 65 poker machines, yes.
PN717
Do you think that's a substantial number of poker machines?‑‑‑No, because my competitors close by have a lot more.
PN718
Are they registered and licensed clubs?‑‑‑Yes they are.
PN719
All right, now you've contracted out the bistro because the bistro made a loss last financial year of $180,000?‑‑‑Yes.
PN720
That's principally why you contracted out the work of the bistro, is that correct?‑‑‑Yes, it is.
PN721
Now, you're aware that the clubs award has coverage provision to the effect that the contractors are basically covered by the award if they conduct - if they do work within the premises of a licensed club. Are you aware of that provision of the award?
PN722
MR McDONALD: Objection. I don't think that's the award provision. That was the pre modern award position as I understand it.
PN723
MR BULL: Well, unless there has been a change.
PN724
VICE PRESIDENT HATCHER: What award provision are you referring to, Mr Bull?
PN725
MR BULL: The coverage clause. Basically 4.7:
PN726
The award covers any employer which supplies labour on an on hire basis in industries set out in 4.1 in respect of on hire employees in classifications covered by this award and those on hire employees while engaged in the performance of work for a business. This clause operates subject to the exclusions from coverage of the award.
*** ALEX ERNEST MOORE XXN MR BULL
PN727
I take that bit of the coverage clause and the other bits when read together to mean that - and there's no exclusion in relation to the restaurant award. So a contractor as described in the statement would have prima facie the same safety net industrial conditions as the club.
PN728
VICE PRESIDENT HATCHER: Mr McDonald, what's the objection?
PN729
MR McDONALD: Your Honour, we say that the basis of the question is predicated on something that's incorrect in relation to caterers' coverage under the award. As I understand the - - -
PN730
VICE PRESIDENT HATCHER: I think we had a cross‑examination to this effect with a witness yesterday and there was no such objection so I assumed it was agreed. But it's not agreed?
PN731
MR McDONALD: No. We say that was incorrect. I can make some submission about how we see it operating but in terms of what's being put we think that it could lead the witness into error.
PN732
VICE PRESIDENT HATCHER: All right, Mr Bull, the issue is in dispute so I don't think you can take it as a premise for the question.
PN733
MR BULL: All right.
PN734
Mr Moore, you're obviously aware that when you contracted out the bistro to this third party that they would have to manage the labour and employee people, and that they'd have to pay at least award conditions; do you understand that?‑‑‑Yes I do.
PN735
And there was no particular advantage to them in the sense that they wouldn't have to pay more or less - I withdraw that. They wouldn't be in a situation to pay lower wages than the club. You understand that?‑‑‑Yes I do.
PN736
So the issue is really a matter of management, isn't it? It was convenient for the club to contract out the bistro because it then absolved itself of the responsibility to manage the bistro. Is that a reasonable characterisation of the decision?‑‑‑No.
*** ALEX ERNEST MOORE XXN MR BULL
PN737
Right. Well, why was the decision made to contract out the bistro last year?‑‑‑Total bistro sales last year were 900,000. Total wages for the bistro were 465,000. That's greater than 50 per cent. The contract caterers are a couple therefore on the public holidays they were the main ones that worked. So therefore the only people they would have had to have paid would have been themselves.
PN738
So you don't think the club's poor management of the bistro had anything to do with the loss that was made?‑‑‑Definitely not.
PN739
Now could I take you to paragraph 15 of your statement - just in relation to your statement, Mr Moore, did you draft it yourself or did you get some help drafting the statement?‑‑‑Mainly myself.
PN740
All right. Who helped you draft the statement?‑‑‑Well, with Lee Pike from Clubs New South Wales.
PN741
So did Lee do the first draft?‑‑‑No, it was my words that were given to her that are in this statement.
PN742
So did you show drafts to Lee Pike or any lawyer associated with Clubs?
PN743
MR McDONALD: Objection as to relevance.
PN744
THE WITNESS: I did show it to Lee Pike once it was drafted.
PN745
MR McDONALD: So paragraph 15, that's your sentiment and your words. Is that correct?‑‑‑Yes, that's correct.
PN746
And you have a particular dislike of section 34.3 of the award and you think it's sort of redundant is the word you've described. Is that an accurate characterisation of your view?‑‑‑Yes.
PN747
And you also think in some sense it's unfair because the employee is getting an extra day's wages when they're not even at work. That's a reasonable characterisation of your view?‑‑‑Yes, it's unfair to the business.
*** ALEX ERNEST MOORE XXN MR BULL
PN748
And you've expressed the view in your statement that you would rather give the money to charity than give the money to your employees. That's also a reasonable characterisation of your view?‑‑‑Yes, there's a lot of people that are needy of funds in our demographic in Lake Munmorah and I feel that they could benefit from it.
PN749
But you pay the award, don't you? You pay the minimum to most of your staff?‑‑‑Most, yes.
PN750
And this is an award entitlement but you think it's too generous. That's basically your position?‑‑‑I can't see why someone has 52 Mondays off a year and when that day off falls on a public holiday they should be rewarded.
PN751
Now you had five full‑time employees?‑‑‑At the moment I've only got four now.
PN752
Okay, and only one employee is actually affected by this clause. Is that correct?‑‑‑No, I have no employees at the moment that are affected.
PN753
All right, so you've still got five full‑time employees?‑‑‑I have four full‑time employees.
PN754
All right, sorry, four full‑time employees, and they're not covered by this clause because they're all - is it correct to say they're all on exempt arrangements?‑‑‑Correct.
PN755
So they're all paid 50 per cent more than the award rate?‑‑‑Correct.
PN756
So you begrudge an employee on the award getting paid the base rate, but you pay four of your employees 50 per cent more than the award rate. That's correct?‑‑‑Correct.
PN757
The club has substantial gaming revenue, is that correct?‑‑‑It does have gaming revenue, yes.
PN758
All right. Well, just to go through, starting in - do you have the financial report for the year ending 30 June 2014 - sorry, I left my notes in the office when I was coming down. The club made a profit that year, didn't it, Mr Moore?‑‑‑$10,000, yes.
PN759
Right?‑‑‑Sorry, $8,000.
*** ALEX ERNEST MOORE XXN MR BULL
PN760
$8,000. That was a bad year wasn't it?‑‑‑I did - I commenced with the club in August 2014.
PN761
But the club paid tax also on some of the revenue didn't it?‑‑‑Yes.
PN762
So in terms of the principle of mutuality in that there was quite significant revenue derived from non-members. Is that correct?‑‑‑Are you talking about 2014?
PN763
Yes, you've paid quite a bit of tax?‑‑‑You do have to pay tax by law on gaming revenue.
PN764
Right, so can you tell us what the gaming revenue for the end of that year period was?‑‑‑1.2 million.
PN765
What page is that on, Mr Moore?‑‑‑Page 28.
PN766
All right, so how many poker machines did the club have when you started being manager?‑‑‑It had 65.
PN767
So you've maintained the number. So in the year ending 2015, that was a better year for the club wasn't it?‑‑‑It was.
PN768
And there was a net profit of $386,811 which was an increase from the previous year?‑‑‑Correct.
PN769
I beg your pardon?‑‑‑Correct.
PN770
And the gaming revenue was also up. The gaming revenue for 2015 was 2,296,953. Could you look at the report for 2016. Now in the 2016 report that reports on revenue from 2016 and 2015. In the 2015 report the poker machine net revenue is $2,296,953. You agree with that?‑‑‑Yes.
PN771
And then in the report in the next year it uses a different term called "gaming net revenue" but it reports a different figure for the same period. It's $2,196,270. Can you explain the difference?‑‑‑Are you comparing the 2015 against the 2016?
*** ALEX ERNEST MOORE XXN MR BULL
PN772
No, I'm comparing the report of the 2015 in the 2016 report against the report of the 2015 year in the 2015 report. So if you open the 2016 report at page 14 and then you open the 2015 one at 14 you'll see what I'm doing?‑‑‑I can't answer that variance.
PN773
So you'd agree it's a variance, all right?‑‑‑One of - - -
PN774
Look, your club - - -?‑‑‑(Indistinct reply)
PN775
VICE PRESIDENT HATCHER: Sorry, I don't think he answered that question.
PN776
MR BULL: I beg your pardon?
PN777
VICE PRESIDENT HATCHER: I don't think Mr Moore had answered that question.
PN778
MR BULL: He can't answer that question.
PN779
VICE PRESIDENT HATCHER: No, I don't think - he did answer it.
PN780
MR BULL: He said he can't answer that variance.
PN781
VICE PRESIDENT HATCHER: Did you answer the last question, Mr Moore?‑‑‑No, I didn't.
PN782
So what is your answer to the last question?‑‑‑In relation to the variance between 2015 to 2016, now in the 2015 report the poker machine net revenue of 2.296 compared to what's stated in the revenue in "Other income" on page 14 of the 2016 report, there is a variance of nearly a hundred thousand. For that I will obviously need to speak to my auditors as these are the audited reports.
PN783
MR BULL: Yes, so you didn't pick up or notice that in a twelve month period a hundred thousand dollars went missing from the revenue of the club?
PN784
MR McDONALD: Objection as to relevance.
PN785
VICE PRESIDENT HATCHER: So what is the relevance of this, Mr Bull?
*** ALEX ERNEST MOORE XXN MR BULL
PN786
MR BULL: I'll withdraw the question.
PN787
Mr Moore, your club currently doesn't have a single employee who is affected by section 34.3 of the clubs award. Is that correct?‑‑‑That's correct at the moment.
PN788
I put it to you that in terms of - how long have you been the manager of the club?‑‑‑Three years.
PN789
This is a fairly inconsequential entitlement in terms of the things you have to deal with in managing employees. I put that to you?‑‑‑It's still one of the day to day things that I need to operate - I need to manage in my duty as the CEO of a club.
PN790
You haven't really - - -?‑‑‑It's HR - - -
PN791
- - - answered my questions. I put it to you that it's not a particularly important consideration in terms of managing the staff of your club. Do you agree with that?‑‑‑No.
PN792
All right, well you don't have a single employee who is able to access the entitlement. How can it be anything but inconsequential?‑‑‑We are looking to build a new club because our current building is falling apart, and when we build the new club I will be employing full‑time staff.
PN793
Right, and substitute public holidays and days in lieu will be a serious impediment to that redevelopment?‑‑‑I think it does impact, yes.
PN794
But just to reinforce, the full‑time staff you do have, they're all paid on exempt rates?‑‑‑The four current ones, yes.
PN795
All right. Nothing further.
PN796
VICE PRESIDENT HATCHER: So Mr Moore, when you build the new club why will that lead to a greater number of full‑time employees?‑‑‑It will be a bigger club and it just - our current club is too small. Besides, the integrity of the actual structure of the building, it is failing. By building a newer club, making it a busier or increasing the visitation by members, because it is the meeting place for a lot of the Lake Munmorah residents, they see it as their community hall. To be able to cater for more of them and be able to put on the shows that - put on the free shows that they're after, I do need a bigger facility.
*** ALEX ERNEST MOORE XXN MR BULL
PN797
And in what areas do you anticipate that you will be employing additional full‑time staff?‑‑‑To cater for the demand of the increase in numbers coming through the door.
PN798
Yes, but what areas of the operation; in terms of what, bar staff, gaming staff, administration?‑‑‑Sorry, yes, the - on my side of it, it would be mainly gaming and bar customer service attendants, including reception staff and bus drivers.
PN799
All right. Thank you.
PN800
MR BULL: Just perhaps one further matter.
PN801
In your statement, Mr Moore, you've made a quite bit of the fact that the club is located in an area of what you call low socioeconomic status and that many of the patrons are of retirement age and don't have significant disposable incomes. You agree that's what you've put in your statement?‑‑‑Yes, that's what I put in my statement.
PN802
All right, how does a significant and, what you've now just said, increased presence of poker machines and gaming sit with that?‑‑‑Can you ask that question again?
PN803
VICE PRESIDENT HATCHER: What is the relevance? Just what is the relevance of that, Mr Bull?
PN804
MR BULL: I withdraw the question. It's rhetorical perhaps, but he has suggested in his statement that he can't pay this entitlement because they're working off a low base - - -
PN805
VICE PRESIDENT HATCHER: Well, Mr Bull - - -
PN806
MR McDONALD: Objection.
PN807
VICE PRESIDENT HATCHER: Just hold on.
PN808
Mr Bull, you've withdrawn the question. Do you have any further questions?
*** ALEX ERNEST MOORE XXN MR BULL
PN809
MR BULL: I withdraw the question. No further questions for this witness.
VICE PRESIDENT HATCHER: Any re‑examination, Mr McDonald?
RE-EXAMINATION BY MR MCDONALD [10.35 AM]
PN811
MR McDONALD: Mr Moore, you had indicated with the moneys that would be payable from clause 34.3 that you'd rather give the money to charity. Does the club support any charitable or community causes?‑‑‑Yes, we support up to 20 community causes with suicide, right to aged care, the children's' hospitals.
PN812
Could you give some examples of that?‑‑‑With regard to the children's hospital at Wyong, to save the parents needing to travel to Sydney to Westmead we often support the Wyong Hospital so they can get more paediatric equipment so that the children of the central coast or the northern end of the central coast can get better health care locally than having to go to Sydney. We support the cancer groups in a big way due to the fact that we have had a lot of previous board members who've passed from cancer. We also support the Save our Kids Foundation which is youth suicide prevention on the central coast. It is a growing issue and we need to work to be enabled to prevent it where we can with regard to getting into the schools. So, support for that I think is very important. I support Rotary, all the Probus clubs. I allow a lot of charitable organisations free use of our property to be able to conduct their meetings and their fundraising as well.
PN813
And in relation to bearing extra costs associated with clause 34.3 couldn't you just jack up the prices of - - -
PN814
VICE PRESIDENT HATCHER: Mr McDonald, I thought the witness said he doesn't have any employees covered by the clause? How could there be an additional cost?
PN815
MR McDONALD: Yes, I don't press the question. I have nothing further, your Honour.
VICE PRESIDENT HATCHER: All right, thank you for your evidence, Mr Moore. You're excused. You're now free to leave?‑‑‑Thank you.
<THE WITNESS WITHDREW [10.37 AM]
PN817
VICE PRESIDENT HATCHER: All right, Mr Moore of counsel.
*** ALEX ERNEST MOORE RXN MR MCDONALD
PN818
MR MOORE: Thank you, your Honour. I think the schedule has us leading the next witness.
PN819
VICE PRESIDENT HATCHER: Yes.
PN820
MR MOORE: Calling the next witness who is Dorothy Clarke who is by video link to South Australia.
PN821
VICE PRESIDENT HATCHER: All right.
PN822
MR MOORE: I'm not sure if the video hookup is operating.
PN823
VICE PRESIDENT HATCHER: We're just trying to arrange that now, Mr Moore.
PN824
MR BULL: I might just formally tender the financial reports.
PN825
VICE PRESIDENT HATCHER: Just hold on, Mr Bull.
PN826
MR BULL: Sorry, Sir. While Mr McDonald is still here, Sir.
PN827
VICE PRESIDENT HATCHER: All right, so just before we come to the witness. So, Mr Bull, you wanted to tender what?
PN828
MR BULL: Just the three financial reports that I led the witness through.
PN829
VICE PRESIDENT HATCHER: All right. Have you shown those to Mr McDonald?
PN830
MR McDONALD: Yes.
PN831
VICE PRESIDENT HATCHER: All right, just hand those up. Can we mark those as a bundle?
PN832
MR BULL: Mark them as a bundle. Sorry for that.
VICE PRESIDENT HATCHER: So bundle of Munmorah United Bowling Club Limited financial reports will be marked exhibit 9.
EXHIBIT #9 BUNDLE OF MUNMORAH UNITED BOWLING CLUB LIMITED FINANCIAL REPORTS
PN834
VICE PRESIDENT HATCHER: So Ms Clarke, we'll just administer the affirmation to you now and then we'll take your evidence.
PN835
THE ASSOCIATE: Ms Clarke, could you please state your full name and address?
PN836
VICE PRESIDENT HATCHER: I'm sorry, Ms Clarke, we've got a sound problem so just hold on.
PN837
All right, start again.
PN838
THE ASSOCIATE: Sorry, Ms Clarke, could you please state your full name and address again?
MS D CLARKE: Dorothy Ann Clarke (address supplied).
<DOROTHY ANN CLARKE, AFFIRMED [10.39 AM]
EXAMINATION-IN-CHIEF BY MR MOORE [10.39 AM]
PN840
MR MOORE: Good morning, Mrs Clarke. My name is Stephen Moore. I'm a barrister for the SDA. Can you hear me?‑‑‑Yes I can.
PN841
Ms Clarke, I want to ask you some questions. First of all could you please restate for the transcript your full name and address?‑‑‑Dorothy Ann Clarke (address supplied).
PN842
Thank you, and your occupation, Ms Clarke - is it Miss Clarke or Mrs Clarke, I'm sorry?‑‑‑Ms.
PN843
Ms, sorry?‑‑‑M-s.
PN844
Yes. Ms Clarke, your occupation?‑‑‑I'm a pharmacy assistant.
*** DOROTHY ANN CLARKE XN MR MOORE
PN845
Thank you, and Ms Clarke it's correct, is it, that you've affirmed an affidavit dated 8 October 2016 for use in this proceeding?‑‑‑That's correct.
PN846
And that affidavit, do you have it with you?‑‑‑Yes I do.
PN847
And that affidavit is comprised of 14 paragraphs?‑‑‑Yes it is.
PN848
Have you read that recently?‑‑‑Yes I have.
PN849
All right. Thank you, and I understand that there's a correction you wish to make to paragraph 12. Is that right?‑‑‑That is correct.
PN850
All right, can you tell the Commission what that correction is?‑‑‑That the 25th of April, Anzac Day in 2016, was omitted from the dates.
PN851
All right. Thank you. So am I right in understanding then that you want to add to the list of dates set out in paragraph 12 the date 25 April 2016. Is that correct?‑‑‑That's correct, because that fell on a Monday which was my Monday that I was rostered to work.
PN852
Thank you very much, Ms Clarke. Now with that correction is the contents of your affidavit true and correct?‑‑‑Yes.
PN853
Thank you. I tender that, if the Commission pleases.
VICE PRESIDENT HATCHER: Yes, the affidavit of Dorothy Ann Clarke affirmed on 8 October 2016 will be marked exhibit 10.
EXHIBIT #10 AFFIDAVIT OF DOROTHY ANN CLARKE AFFIRMED ON 08/10/2016
PN855
MR MOORE: Thank you, your Honour.
PN856
Ms Clarke, if you wait there, I understand there might be some questions for you of your affidavit?‑‑‑Certainly.
VICE PRESIDENT HATCHER: Yes Ms Wellard?
*** DOROTHY ANN CLARKE XN MR MOORE
CROSS-EXAMINATION BY MS WELLARD [10.42 AM]
PN858
MS WELLARD: Ms Clarke, my name is Charlene Wellard and I represent the Pharmacy Guild. I've just got a few questions for you about your affidavit. First of all at paragraph 6 of your affidavit you say that you work an alternating roster Monday to Friday one week and then Tuesday to Saturday the second week. Is that still correct?‑‑‑Yes it is.
PN859
And you've worked that roster since September 2000, is that still correct?‑‑‑That's correct. That is correct.
PN860
So they are your standard working arrangements. Is that right?‑‑‑Yes it is.
PN861
And if you could have a look at paragraph 12 of your affidavit?‑‑‑Yes.
PN862
You just added Monday 25 April 2016 which was Anzac Day to that list?‑‑‑That's correct.
PN863
So that was a day where you were rostered to work. Is that correct?‑‑‑Yes it was.
PN864
And you worked and were paid a penalty rate for working that day. Is that correct?‑‑‑No. No, I didn't work that day. We don't trade on public holidays so that was my rostered day to work but because we weren't open I had the day off and I was paid for it.
PN865
Are there any other days in that list where you were rostered to work but you didn't actually work because the pharmacy wasn't open?‑‑‑In section 12?
PN866
Yes?‑‑‑All the dates that are on there were days that were public holidays that I received the day off with pay because we don't trade on a public holiday.
PN867
So on those days, if we take for example 25 April 2016 which was Anzac Day, did you have friends or family who were also not rostered to work on that day?‑‑‑As it was a public holiday? Yes I would say I did.
PN868
And so by not being rostered to work that day - by not actually working that day yourself, by having the entitlement to a day off, and by those friends and family having the day off, you were able to spend the day with friends and family. Is that correct?‑‑‑Yes I was because that was a day that I was scheduled to work.
*** DOROTHY ANN CLARKE XXN MS WELLARD
PN869
And so you didn't miss out on spending time with friends and family?‑‑‑Not on that day, no.
PN870
And were there Anzac Day commemorations in your area on that day?‑‑‑Yes there were.
PN871
And were you able to attend those?‑‑‑Yes.
PN872
So you didn't miss out on attending those commemorations on that day?‑‑‑No.
PN873
In paragraph 14 of your affidavit you say you missed out on eight public holidays listed in paragraph 8 of your statement?‑‑‑That's correct.
PN874
If we have a look at paragraph 8, these are days, as I understand it, where you weren't rostered to work, so they weren't ‑ ‑ ‑?‑‑‑That's correct.
PN875
‑ ‑ ‑ part of your standard working arrangements. Is that correct?‑‑‑With my roster, yes, that's correct.
PN876
Which has been your roster for 17 years. Is that correct?‑‑‑That's correct.
PN877
So you weren't rostered to work on - take, for example, Adelaide Cup day, which was Monday, 9 March 2015?‑‑‑No, that is correct.
PN878
And on that day did you have friends and family who were also not rostered to work or had an entitlement to the day off and didn't work?‑‑‑Probably, yes.
PN879
And were you able to spend time with friends and family on that day?‑‑‑No.
PN880
No? Why is that?‑‑‑No, because I didn't have anything planned for that day, because on the days when I come back to a five‑day week I just usually stay home because I know I have a full week ahead of me.
PN881
Is there a - forgive me, I enjoy visiting South Australia but I don't know all of the regions of South Australia that well. There is a racing event on Adelaide Cup day. Is that right?‑‑‑I believe so.
*** DOROTHY ANN CLARKE XXN MS WELLARD
PN882
And if you'd wanted to attend that race day you could have attended that day. Is that right?‑‑‑Yes, I could have, but I wouldn't have.
PN883
If we take, for example, as another example, Monday, 13 June, which is the Queen's birthday, are there events on in Adelaide on that day?‑‑‑I have absolutely no idea. I've not attended anything or been invited to anything for the Queen's birthday.
PN884
Okay, and what about Australia Day, which is 26 January 2015, which was a day where you weren't rostered to work?‑‑‑That's correct.
PN885
Are there any events on on that day?‑‑‑Yes, of course there are.
PN886
You would have been able to participate in those events on that day, wouldn't you, if you'd wanted to?‑‑‑If I wanted to, I suppose, yes.
PN887
So you didn't miss out on participating in any of the events that were held on those special public days, those holidays that are listed in paragraph 8?‑‑‑No. If I'd wanted to go I certainly could have.
PN888
I have no further questions.
PN889
VICE PRESIDENT HATCHER: Any re-examination, Mr Moore?
PN890
MR MOORE: Nothing arising, your Honour.
VICE PRESIDENT HATCHER: Thank you for your evidence, Ms Clarke. You're now excused and you're free to leave?‑‑‑Thank you.
<THE WITNESS WITHDREW [10.47 AM]
PN892
VICE PRESIDENT HATCHER: Mr Moore, do you want to tender the rest of your affidavits?
*** DOROTHY ANN CLARKE XXN MS WELLARD
PN893
MR MOORE: Yes, if that's convenient, and I'll do that now, your Honour. Your Honour, there are a number of other witness affidavits that were filed and the deponents have not been required for cross‑examination. The SDA doesn't seek to tender all of them, but those that it does wish to tender are those that are numbered, and I trust this accords with how they're labelled in the Commission's system, SDA witness 2 through to SDA witness 5. Does that accord with the ‑ ‑ ‑
PN894
VICE PRESIDENT HATCHER: So is number 2 Brooke Baker?
PN895
MR MOORE: Just bear with me a moment, please. Yes, that's right, your Honour.
PN896
VICE PRESIDENT HATCHER: So that's Brooke Baker through to Robert Crisp.
PN897
MR MOORE: We're just checking that, your Honour. Actually, I'm sorry, my mistake, your Honour, it's SDA witness 2, who is Brooke Baker, through to SDA witness 4, who is Jillian Carroll.
PN898
VICE PRESIDENT HATCHER: Yes, all right.
PN899
MR MOORE: Sorry for that confusion.
PN900
VICE PRESIDENT HATCHER: So that's the first batch.
PN901
MR MOORE: Then the next batch is SDA witness 8, who is Karen Greaves ‑ ‑ ‑
PN902
VICE PRESIDENT HATCHER: That's 7 on our list?
PN903
MR MOORE: I'm sorry, your Honour?
PN904
VICE PRESIDENT HATCHER: Karen Greaves is 7 on my list.
PN905
MR MOORE: 7 on your list.
PN906
VICE PRESIDENT HATCHER: Yes. Why don't you just read out the names and I'll ‑ ‑ ‑
PN907
MR MOORE: Certainly, your Honour.
PN908
VICE PRESIDENT HATCHER: Perhaps I'll go through the order in which they appear in my file and then you tell me whether you want them tendered or not. So the first one is Ian John Bongailas. That's number 1. So I don't think you want ‑ ‑ ‑
PN909
MR MOORE: We don't want that in.
PN910
VICE PRESIDENT HATCHER: All right. So the second one is Brooke Shannon Baker. So that's ‑ ‑ ‑
PN911
MR MOORE: That one's in, yes.
PN912
VICE PRESIDENT HATCHER: Affidavit affirmed on 5 October 2016. So that will be marked ‑ ‑ ‑
PN913
MR MOORE: I should, while we're on that one, your Honour - we don't read paragraph 9.
VICE PRESIDENT HATCHER: All right. So with the exclusion paragraph 9, that will be marked exhibit 11.
EXHIBIT #11 EXCLUDING PARAGRAPH 9, AFFIDAVIT OF BROOKE SHANNON BAKER AFFIRMED ON 15/10/2016
PN915
VICE PRESIDENT HATCHER: Then there's Lauren Elizabeth Benallack.
PN916
MR MOORE: That's correct, your Honour.
VICE PRESIDENT HATCHER: Affirmed on 5 October 2016. So that will be marked exhibit 12.
EXHIBIT #12 AFFIDAVIT OF LAUREN ELIZABETH BENALLACK AFFIRMED ON 05/10/2016
VICE PRESIDENT HATCHER: Then the affidavit of Jillian Ruth Carroll affirmed on 6 October 2016. That will be marked exhibit 13.
EXHIBIT #13 AFFIDAVIT OF JILLIAN RUTH CARROLL AFFIRMED ON 06/10/2016
PN919
VICE PRESIDENT HATCHER: So you don't want to tender Robert Crisp?
PN920
MR MOORE: No.
PN921
VICE PRESIDENT HATCHER: You don't want to tender Peter Ericson?
PN922
MR MOORE: No.
PN923
VICE PRESIDENT HATCHER: You do want to tender Karen Joy Greaves.
PN924
MR MOORE: Yes, thank you, your Honour.
VICE PRESIDENT HATCHER: The affidavit of Karen Joy Greaves affirmed on 1 October 2016 will be marked exhibit 14.
EXHIBIT #14 AFFIDAVIT OF KAREN JOY GREAVES AFFIRMED ON 01/10/2016
PN926
VICE PRESIDENT HATCHER: The next one I have is Ibrahim Hassan.
PN927
MR MOORE: Yes, your Honour.
VICE PRESIDENT HATCHER: The affidavit of Ibrahim Hassan affirmed 3 October 2016 will be marked exhibit 1.
EXHIBIT #15 AFFIDAVIT OF IBRAHIM HASSAN AFFIRMED ON 03/10/2016
PN929
VICE PRESIDENT HATCHER: Thomas Mark Pender?
PN930
MR MOORE: Yes, your Honour.
VICE PRESIDENT HATCHER: So the affidavit of Thomas Mark Pender affirmed on 5 October 2016 will be marked exhibit 16.
EXHIBIT #16 AFFIDAVIT OF THOMAS MARK PENDER AFFIRMED ON 05/10/2016
PN932
VICE PRESIDENT HATCHER: Elise Jane Pollard?
PN933
MR MOORE: Yes, your Honour.
VICE PRESIDENT HATCHER: So the affidavit of Elise Jane Pollard affirmed on 6 October 2016 will be marked exhibit 17.
EXHIBIT #17 AFFIDAVIT OF ELISE JANE POLLARD AFFIRMED ON 06/10/2016
PN935
VICE PRESIDENT HATCHER: Natalie Proctor?
PN936
MR MOORE: Yes, she's in, your Honour.
VICE PRESIDENT HATCHER: So the affidavit of Natalie Ann Proctor affirmed on 28 September 2016 will be marked exhibit 18.
EXHIBIT #18 AFFIDAVIT OF NATALIE ANN PROCTOR AFFIRMED ON 28/09/2016
PN938
MR MOORE: Yes.
PN939
VICE PRESIDENT HATCHER: Simon Scott Redden?
PN940
MR MOORE: Yes, thank you, your Honour.
VICE PRESIDENT HATCHER: So the affidavit of Simon Scott Redden affirmed on 8 October 2016 will be marked exhibit 19.
EXHIBIT #19 AFFIDAVIT OF SIMON SCOTT REDDEN AFFIRMED ON 08/10/2016
PN942
VICE PRESIDENT HATCHER: Ashlea Marie Roberts?
PN943
MR MOORE: Yes, thank you, your Honour.
VICE PRESIDENT HATCHER: So the affidavit of Ashlea Marie Roberts affirmed on 1 October 2016 will be marked exhibit 20.
EXHIBIT #20 AFFIDAVIT OF ASHLEA MARIE ROBERTS AFFIRMED ON 01/10/2016
PN945
VICE PRESIDENT HATCHER: David Whittaker?
PN946
MR MOORE: No, your Honour.
PN947
VICE PRESIDENT HATCHER: Is that all of them?
PN948
MR MOORE: That's all of the individual witnesses, your Honour.
PN949
VICE PRESIDENT HATCHER: Yes, and are there any other documents?
PN950
MR MOORE: Yes, a couple of other things to tender, your Honour. Can I hand up to the Bench a statement of agreed facts? I'll make available some copies. If the Commission pleases, this is a statement of agreed facts agreed between the SDA and the Australian Retailers Association. Its terms were only agreed yesterday, thus the provision just now. I note, Mr Tindley, as I understand it, is appearing from Melbourne. It's not signed because it was only completed yesterday, but after I deal with one clarification in it I anticipate Mr Tindley will be able to indicate his agreement with its contents from the Bar table, your Honour.
PN951
VICE PRESIDENT HATCHER: All right. Mr Tindley, do you have a copy of that document?
PN952
MR MOORE: I don't think he heard the question.
PN953
VICE PRESIDENT HATCHER: Mr Tindley, can you hear me?
PN954
MR TINDLEY: Yes, your Honour.
PN955
VICE PRESIDENT HATCHER: Do you have a copy of this ‑ ‑ ‑
PN956
MR TINDLEY: Can you hear me?
PN957
VICE PRESIDENT HATCHER: Yes, we can now. Do you have a copy of the statement of agreed facts between the SDA and the Australian Retailers Association?
PN958
MR TINDLEY: I don't have a copy of a finalised version of it. I've had copies of marked versions, but I don't believe we've had a final copy sent through.
PN959
MR MOORE: I see.
PN960
VICE PRESIDENT HATCHER: All right. Just hold on a second. Have you got another copy of it, Mr Moore?
PN961
MR MOORE: Yes, your Honour.
PN962
VICE PRESIDENT HATCHER: I'll just arrange to have a copy sent to the courtroom in Melbourne.
PN963
MR MOORE: Thank you, your Honour. I appreciate that.
PN964
VICE PRESIDENT HATCHER: Mr Tindley, we're going to have a copy sent to you, so someone will hand it to you in a short while, I hope. Go ahead, Mr Moore. You were going to explain something.
PN965
MR TINDLEY: We don't expect it to be controversial.
PN966
VICE PRESIDENT HATCHER: All right.
PN967
MR MOORE: Your Honour, and perhaps for Mr Tindley's benefit as well, of course, the document that I've just handed up and which is making its way to Mr Tindley, in paragraph 4 on the last line it has the digit zero with the references to paragraph zero. That should be a reference to paragraph 2. That was just an error as a result of track change issues, but with that change, and subject to Mr Tindley, of course, looking at the document, we propose that that is a statement of facts which are agreed between my client and the ARA.
PN968
Perhaps while I have it in front of members of the Bench, I should note that the statement of agreed facts includes a schedule, schedule A, and this is referred to in paragraph 5, which records that a number of public holidays fall each year on a Monday. This is a variable number each year.
PN969
The number of public holidays that fell on a Monday and which did not fall on a Monday during 2015, 2016 and 2017, are set out in schedule A, and schedule A, the Commission will see, records that information in respect of each state. One can see, if I can make this general comment, that the number of public holidays that fell on a Monday between 2015 through to 2017 was in the range of five to seven. Perhaps I'll come back to that once Mr Tindley - in terms of the formal ‑ ‑ ‑
VICE PRESIDENT HATCHER: What I'll do is I'll mark the statement of agreed facts between the SDA and the Australian Retailers Association exhibit 21, but I'll give you leave, Mr Tindley, to raise any issue about it once you've had a chance to peruse the document.
EXHIBIT #21 STATEMENT OF AGREED FACTS BETWEEN SDA AND AUSTRALIAN RETAILERS ASSOCIATION
PN971
MR TINDLEY: Thank you, your Honour.
PN972
MR MOORE: I think the next thing to tender are some extracts from six pre-modern awards which were made by the Australian Industrial Relations Commission. Those extracts were attachments to the submissions of the SDA dated 10 October 2016. The members of the Bench have those submissions at hand. They appear from attachment 20, and attachment ‑ ‑ ‑
PN973
VICE PRESIDENT HATCHER: It was 10 October 2016, was it?
PN974
MR MOORE: Yes, your Honour.
PN975
VICE PRESIDENT HATCHER: Yes. I think we'll just treat those as part of the of the submission, Mr Moore. I don't think we need to mark those.
PN976
MR MOORE: Certainly, your Honour. That is the evidence that the SDA wishes to rely on in the proceedings. That leaves really just the submissions and whether or not your Honour wishes to mark them.
PN977
VICE PRESIDENT HATCHER: No.
PN978
MR MOORE: All right. Thank you, your Honour. That is the evidence. Am I right in understanding that the expectation is that I'll move into submissions at this point?
PN979
VICE PRESIDENT HATCHER: I just want to confirm that there is no other evidence that we need to tender.
PN980
MR MOORE: Yes, your Honour.
PN981
VICE PRESIDENT HATCHER: So can any other party advise me if there's any other evidence they wish to adduce in the proceedings? No? All right. That's all the evidence, so I think the order is, Mr Moore, that you will go first and we'll hear from the other proponents of claims and then we'll hear from opponents to those claims.
PN982
MR MOORE: Yes, thank you, your Honour. The submissions that the SDA relies on are those that are dated 10 October 2016. I should clarify that that those submissions to which I refer are the body of the submissions up to paragraph 56. There then follow the various attachments, some of which were witness statements which have been tendered a few moments ago, but given the approach your Honour wishes to adopt with the extracts from the old awards, that is, attachments 20 through to 25 of those submissions should also be received by the Commission as part of those submissions ‑ ‑ ‑
PN983
VICE PRESIDENT HATCHER: Yes.
PN984
MR MOORE: We rely on those submissions and we rely also on our submissions in reply dated 30 June 2017 comprised of 150 paragraphs and schedules 1 and 2. The approach I propose to adopt, if it's convenient to the Bench, is to seek to emphasise parts of our submissions. I don't propose to take members of the Bench through the submissions paragraph by paragraph. We rely upon all of the paragraphs. There are four topics that we say bear emphasis and which we want to draw to the Bench's attention so I'll address those matters and of course any other questions that the Bench might have.
PN985
The first topic concerns the amendment to the variations proposed by the SDA, being obviously an important matter. The SDA amended the variations to the various awards that it seek in terms which are set out in paragraphs 4 and 5 of our reply submissions of 30 June this year and at paragraph 6 of the submissions we provide some explanation for those amendments.
PN986
In short terms can I just make the following points. Members of the Bench will see that there's two groups of variations we propose. The first group, which is paragraph 4, the terms of the variations sought to the general retail industry award, the fast food industry award, the pharmacy award, the mannequins and models award and the hair and beauty industry award - and the terms are set out there which I'll come back to in a moment - and the variations to the storage service and wholesale award and the vehicle manufacture and repair services and retail award, are in slightly different terms, as set out in paragraph 5.
PN987
The difference in approach is about maintaining internal consistency between those two groups of awards and also because in relation to the two awards referred to in paragraph 5 those awards, as I'm instructed, already contain a similar provision to what is proposed, limited though to compensation for a public holiday falling on an RDO arising from the 38‑hour week. Those awards already contain such a provision, and in the interests of maintaining some comity, as it were, between the provisions, the terms of the variations we seek to those awards are different from what are sought in relation to the first group of awards in paragraph 4.
PN988
Lastly, I just make the point that the existing provision contained in the two awards referred to in paragraph 5, the storage service and the vehicle manufacturing, repair services and retail award, the benefit that is provided in relation to those provisions dealing with compensation for a public holiday falling on an RDO arising from a 38‑hour week is limited to an alternative day off, and that is why in the interests of maintaining internal consistency the benefit provided for in the amendment proposed in paragraph 5 to those two awards is likewise limited to the granting of an alternative day or part day off.
PN989
In contrast, the benefits referred to in the proposed variation to the other awards dealt with in paragraph 4 are cast in alternatives, with another day or part day off in lieu, an equivalent day or part day's pay or one extra day or part day added to his or her annual leave. I interpolate there, jumping ahead somewhat, that those alternative benefits are benefits of the same type that the Full Bench of the Australian Industrial Relations Commission identified as being appropriate minimum standards in the public holidays test case.
PN990
VICE PRESIDENT HATCHER: So I presume that the proposed subclause would go, what, at the end of the public holidays clause in each award. Is that right?
PN991
MR MOORE: That's my understanding, your Honour. I'm sure I'll be poked on the shoulder if my client has a different view, but that's my understanding, your Honour.
PN992
In terms of the amendments which are the strike‑throughs and the underlining, those amendments were made for a couple of reasons: (1) to clarify the intention of the provision as applying to all fulltime employees and to part‑time employees who work an average of five days per week. That was the original intention, but it was recognised that that intention might be better realised with the amendments proposed.
PN993
The second important change, and this relates to both the awards dealt with in paragraph 4 and paragraph 5, so all of the awards, is that the alternative benefits - I withdraw that. This relates principally to paragraph 4 and the five awards there set out.
PN994
The alternative benefits to be provided are, as is dealt with in the underlining in the second‑last paragraph in the last sentence of that paragraph, to be determined by the employer, subject to an obligation to consult. So the original draft had it that the selection of the alternative benefit to be provided would be by mutual agreement. The view has been taken that it is preferable in all of the circumstances to impose an obligation on the employer to consult but ultimately to make provision that if agreement is not achieved through consultation it's at the employer's election.
PN995
This is significant. It does two things: (1) it ensures that the operation of the proposed variation is certain, so we don't have a provision which talks about and ends at mutual agreement and doesn't deal with what happens if matters can't be agreed, but secondly, and perhaps most importantly, the change we have proposed ameliorates, we would say, to a considerable extent, the burden which employers claim they will be subject to if the variation is made, because they, the employers, will have the election to work out how to best fashion to their own circumstances the alternative benefit which should be provided, and I'll say something more about that in due course.
PN996
So unless the members of the Bench have any questions, that is the nature of the amended proposed variations that the SDA seeks.
PN997
VICE PRESIDENT HATCHER: So just to clarify, when you say a day that the employee is not rostered to work, is that any day in the week, including Saturday and Sunday?
PN998
MR MOORE: No, your Honour.
PN999
VICE PRESIDENT HATCHER: I see. It says an exception at the end.
PN1000
MR MOORE: Yes.
PN1001
VICE PRESIDENT HATCHER: Yes, all right.
PN1002
MR MOORE: Yes, in the last paragraph of both of the proposed sets of variations. So this doesn't apply to public holidays falling on a Saturday or a Sunday, and the reason for that is that Monday to Friday workers, and we say this in the 10 October submissions, already substantially obtain the benefit of public holidays that are granted.
PN1003
So we want to ensure that there is some coherency in the provisions and that these variations don't do anything more than the provision already made by the award just by ensuring though that those working non‑standard hours obtain the further benefits of an alternative day off or other benefit as determined by the employer.
PN1004
VICE PRESIDENT HATCHER: Right. When it says another day or part day off in lieu, in lieu of what?
PN1005
MR MOORE: In lieu of the public holiday benefit.
PN1006
VICE PRESIDENT HATCHER: They get the day off on the public holiday anyway, so what's it actually in lieu of?
PN1007
MR MOORE: I suppose the words "in lieu" are referring to the principle, the rationale, which underpins the benefit.
PN1008
VICE PRESIDENT HATCHER: So it's really in lieu of a day's pay for a holiday, is it?
PN1009
MR MOORE: It's in lieu of being able to enjoy the benefit of that public holiday, the benefit that they would otherwise have obtained if they were rostered to work.
PN1010
VICE PRESIDENT HATCHER: Which is the day's pay.
PN1011
MR MOORE: Yes, that's right.
PN1012
VICE PRESIDENT HATCHER: Because they're getting the day off.
PN1013
MR MOORE: That's right, your Honour.
PN1014
VICE PRESIDENT HATCHER: So it's in lieu of a day's pay which they would get for taking the day off if they were rostered to work on that day.
PN1015
MR MOORE: That's so, your Honour.
PN1016
COMMISSIONER JOHNS: Sorry, Mr Moore, just speaking for myself then, I'm still not entirely clear as to then how that's necessary to meet the modern award's objective. I mean, these are people who are not rostered to work on that day anyway and they're getting an extra day's pay for a day that they wouldn't otherwise have been required to work. How is that necessary for the modern award's objective to provide a fair and relevant safety net?
PN1017
MR MOORE: Your Honour, that's the ultimate question, and ‑ ‑ ‑
PN1018
VICE PRESIDENT HATCHER: That's what you're about to tell us, I gather.
PN1019
MR MOORE: If I might build up to answer that question, your Honour ‑ ‑ ‑
PN1020
COMMISSIONER JOHNS: Commissioner.
PN1021
MR MOORE: ‑ ‑ ‑ I promise to come back to you and address myself squarely to that question. That is ultimately the question that the Bench has to direct itself to and I will come to that in due course, if I may, Commissioner.
PN1022
In building up to answer that question can I come to the second topic of emphasis that we wish to address the members of the Bench on, which is the topic of previous decisions and why they should be followed and applied now, and we deal with this in some length in paragraphs 10 to 46 of our reply submissions.
PN1023
We place particular emphasis on the public holidays test case decision, which as we've explained, is actually comprised of four decisions, but one of which has particular pertinence to the issues the subject of this controversy, and if I can ask members of the Bench to look at page 5 of our submissions.
PN1024
The purpose of the public holidays test case was recognised by a later Full Bench as being "to declare a safety net standard of public holidays as an across the board point of reference for all federal awards". That was a statement by the Full Bench in the decision which appears in the heading in paragraph 6, Re SDA Food and Liquor Stores Interim Award 1994, and the quotation is set out in paragraph 18.
PN1025
Going back to the actual fourth public holidays decision, print L9178, the Full Bench there stated that, "The task that it had undertaken was to consider various types of non‑standard arrangements and to articulate principles which we see as being generally appropriate." We emphasise the words "generally appropriate". The Bench went on to identify that it expected that the principles enunciated will be expected to apply these principles wherever possible, that is, members of the Commission, but they may need to be adapted to specific circumstances.
PN1026
The class of workers that the Full Bench was concerned with, referred to as those working non‑standard arrangements, were described as fulltime workers who do not regularly work a five‑day, Monday to Friday week, and that included those who work regularly on Saturday and Sunday, workers with variable rosters, continuous shift workers and employees who work for nine days per fortnight or 19 days in each four weeks. That was the class of workers that the Full Bench in the public holidays case was considering, and the critical conclusion the Full Bench reached in relation to that class is set out in paragraph 13, where the Full Bench stated:
PN1027
It may happen that a prescribed holiday falls upon a day when the employee would not be working in any event. Fairness requires that the worker be not disadvantaged by that fact. The appropriate compensation, we think, is" -
PN1028
- and they then set out the three alternatives, which are reflected, although in a different order, in the terms of the proposed variations we've advanced.
PN1029
Over the page we note that the principle identified by members of the Commission in the public holidays case was as follows - so this is the actual expression of principle, that:
PN1030
Full-time workers who do not work on Monday to Friday of each week should be assured of the benefit of prescribed holidays. They should not forfeit that benefit because a prescribed holiday falls on a non‑working day.
PN1031
The Commission stated that it expected that this and the other principles identified will generally be implemented in the application of safety net standards but acknowledged that the diversity of circumstances and practices meant that those principles needed to be applied sensitively and flexibly, with due regard to special circumstances.
PN1032
So if I can just pause in the outline of the decisions and come back to Commissioner Johns' question of me, this is the touchstone from which this debate springs, and the touchstone is recognition by a Full Bench predecessor of this Commission in a test case that fairness requires that those who work non‑standard work arrangements be assured of the benefit of prescribed holidays and that they should not be disadvantaged by the fact that the public holiday falls on a day when they would not be working. So it is a recognition of principle and a recognition of fairness, which obviously lies at the heart of the modern awards objective.
PN1033
VICE PRESIDENT HATCHER: But if we break that principle down, the benefit of a public holiday is twofold, I think. (1) is that you don't have to work on the public holiday and (2) is that you don't lose pay in the week in which the public holiday falls. Is that the benefit?
PN1034
MR MOORE: The benefit would include those elements, your Honour, and I suppose I would add to that that it would embrace the capacity of employees to be able to enjoy the non‑work activities associated with public holidays.
PN1035
VICE PRESIDENT HATCHER: But that's just a given if you're not working on the public holiday, isn't it? I mean, if the holiday is Australia Day and it's on a Monday it's a given that you'll be able to, if you want to, attend whatever Australia Day festivities that you want to.
PN1036
MR MOORE: Yes.
PN1037
VICE PRESIDENT HATCHER: And if your days are, say, Tuesday to Saturday you'll receive your normal week's pay for that week. So what's the benefit that's being lost?
PN1038
MR MOORE: The benefit - to complete the analysis, your Honour, I think what underpins the Full Bench's analysis here must be an acceptance that there is an entitlement for all employees, the permanent type, to all of the proclaimed public holidays. So that if there are, just to pick a number, 12 public holidays when a person is entitled not to work and to be paid, all workers should, as a matter of fairness, have that benefit.
PN1039
VICE PRESIDENT HATCHER: A benefit of 12 days - say it's 12 days a year.
PN1040
MR MOORE: Just to pick a number, yes.
PN1041
VICE PRESIDENT HATCHER: That's Victoria, isn't it, I think? No, Victoria's 14, but anyway, 12 days a year off work, paid.
PN1042
MR MOORE: Yes.
PN1043
VICE PRESIDENT HATCHER: Is that what you're describing as the benefit?
PN1044
MR MOORE: Yes.
PN1045
VICE PRESIDENT HATCHER: Even if the 12 days off work aren't on the actual public holidays.
PN1046
MR MOORE: That's right, your Honour. That would appear to underpin the analysis that flows from the public holidays test case, that there is a universal entitlement to workers to have the minimum number of 12 or 14 or whatever days, number of days it is, off work, on pay, and fairness requires that everyone had that benefit. That would appear to underpin the analysis.
PN1047
COMMISSIONER JOHNS: But we're not bound by that previous view of what fairness might mean. I mean, that's some time ago and employees who are working Monday to Friday might have a very different view. If a public holiday were to fall on a Saturday they don't get a day in lieu of that. They don't get paid for that. Aren't they then disadvantaged compared to employees who work full-time but don't work Monday to Friday?
PN1048
MR MOORE: Your Honour, I think the correct statement of principle is that his Bench is not formally bound by previous Full Bench decisions of this Commission or its predecessors, but as a matter of - the principle of stare decisis doesn't apply strictly in this place, but there are
PN1049
various decisions of the Full Bench of this Commission in which it's recognise that subsequent Full Benches will follow previous decisions unless there are cogent reasons for departing from previous decisions.
PN1050
That's part of an answer to your question, Commissioner. The rest of the answer, and this is a convenient segue to perhaps the - well, the other part of the answer lies in the recognition of the relevance of the public holidays test case in the award review context by a Full Bench of the Commission in the modern awards review dealing with public holidays, which I'm about to deal with, your Honour.
PN1051
So it's not as if this is an artefact from another time, it's a decision of some 20 years ago. It is a decision which goes to an underlying principle of fairness and it's a decision which the Full Bench in the transitional review identified as being relevant to its consideration. That doesn't perhaps take me the full distance, of course, but it does identify that the relevance of the decision has been acknowledged by the Commission sitting in this four‑yearly review in a contemporary setting - I should say, the transitional review.
PN1052
VICE PRESIDENT HATCHER: IN relation to pre‑reform awards, was that ‑ ‑ ‑
PN1053
MR MOORE: I'm sorry, your Honour, I missed that.
PN1054
VICE PRESIDENT HATCHER: In relation to pre‑reform awards, was that test case principle actually one we applied?
PN1055
MR MOORE: I can't say definitively, but I infer that it was, your Honour, because there are some 40-odd modern awards that contain provisions of the type affording the alternative benefits of the type we've just described, and we deal with that in our submissions and I'll come to that, your Honour, and I infer that that test case was applied, your Honour, because that's how those provisions ended up in the modern awards. The award modernisation process of swings and roundabouts and finding the preponderance of provisions from pre‑existing awards, one assumes that it's from those awards that those provisions in modern awards were drawn.
PN1056
VICE PRESIDENT HATCHER: Could you excuse me, Mr Moore? Yes, go on, Mr Moore.
PN1057
MR MOORE: The six awards that are attached to our submissions are awards of the Australian Industrial Relations Commission made at different dates in the early 2000s which applied to the retail industry. They are each different parts of the retail or fast food industry or the pharmacy industry and they each contain a provision analogous to - they're not all the same, but they contain similar provisions to what is currently proposed. So in short terms, we say the test case clearly was applied to pre‑modern awards. One can see that in the six pre‑modern retail awards.
PN1058
VICE PRESIDENT HATCHER: So is that the totality of the pre‑modern retail awards in which the SDA had an interest?
PN1059
MR MOORE: In which the SDA has an interest?
PN1060
VICE PRESIDENT HATCHER: Yes.
PN1061
MR MOORE: The SDA had an interest in many other pre‑modern awards, or a number of other pre‑modern awards, I believe, but they are all of the pre‑modern awards in which the SDA had an interest which contained a provision of the type that's here proposed, your Honour.
PN1062
VICE PRESIDENT HATCHER: Yes. I'm trying to understand whether there are other retail awards which did not contain that provision.
PN1063
MR MOORE: I see. Thank you, your Honour. I'll take some instructions on that, your Honour.
PN1064
VICE PRESIDENT HATCHER: Yes, your Honour.
PN1065
MR MOORE: Excuse me, your Honour. Your Honour, I'm instructed that those awards were all of the federal awards in which the SDA had an interest, but your Honour will appreciate that retail, before the making of the modern awards, was dealt with by state awards in states other than Victoria.
PN1066
Before coming to the transitional decision dealing with public holidays I just want to refer members of the Bench to page 7 of our submissions and a decision by a single member of the Commission in Re Airline Operations Salaried Staff Qantas Information Technology Ltd Award 2003. Perhaps before I go on I can burden members of the Bench with some folders of all of these authorities which members of the Bench can consider at their leisure. Unfortunately I've included the penalty rates decision in that, so thus the weight of it. All of these decisions are in the folder that's just been provided.
PN1067
The Airline Operations decision concerned a different issue to do with Christmas Day concerning airline officers, but the relevance for present purposes concerns the question of part‑time work, because in this proceeding I think some employers have submitted the variation the SDA propose differs from the public holidays test case in any event because it extends to apply to part‑time employees and the test case just dealt with full-time employees, and that is factually so. In this decision a member of the Commission; I think it's Commissioner Whelan, addressed herself to why part‑time and full‑time work were dealt with differently in the public holidays test case, and she stated, as set out in paragraph 22, that she was unable to ascertain the reasoning behind the decision of the Full Bench in making a distinction between full‑time and part‑time employees in relation to these entitlements:
PN1068
I can only assume that 10 years ago the assumption was that a part‑time employee, by virtue of their hours of work, was able to access additional leisure time not available to full‑time employees and therefore did not suffer in the same way from the loss of a public holiday. Since that time we've seen an increase in the use of part‑time employment and a greater flexibility in the hours worked by such employees.
PN1069
We concur with respect to the Commissioner's observations there. We can't see any other explanation for why the entitlement that the Full Bench found in the public holidays test case did not extend to include part‑time workers. It seems apparent that that reflects the status of the nature and characteristics of the labour market back in 1994, 1995.
PN1070
VICE PRESIDENT HATCHER: What's the significance of a part‑time employee who works five days a week - that is, your application applies to them. What distinguishes them? So if you're a part‑time employee and you're rostered to work 20 hours, if this is possible, Tuesday to Saturday, under your proposal they'll pick up all the Monday holidays.
PN1071
MR MOORE: Yes.
PN1072
VICE PRESIDENT HATCHER: But if you're rostered to work 20 hours, Tuesday to Friday, you're not covered. What's the working distinction there?
PN1073
MR MOORE: Your Honour, as I understand, the view's been taken that that's - well, I'll come back to your Honour's question in due course, if I may.
PN1074
VICE PRESIDENT HATCHER: All right.
PN1075
MR MOORE: Excuse me a moment. The next decision is the transitional review decision dealing with public holidays, which is (2013) FWCFB 2168 referred to at the bottom of page 7 of the submissions. In that case the Commission considered a claim put by the ACTU which was similar to the current claim but different materially. It was different in the two respects identified at the top of page 8.
PN1076
(1) it was a claim of general application for the insertion of a claim of a model clause, and initially I think the ACTU sought for it to be inserted into more than 100 modern awards, and that was the basis upon which the Commission considered the claim. Secondly, the provision gave an entitlement to employees to elect the form of compensation they would receive for a public holiday falling on a non‑working day, which as I've noted, it is the opposite in the variation proposed by the SDA.
PN1077
The Full Bench rejected the claim on two bases: (1) it was said that it constituted a substantial variation of the award safety net and was better dealt with in the four‑yearly review, and secondly, there was insufficient information to adequately assess the impact of the proposed change and that the practical operation of the proposed model provision to different patterns of employment as provided in some of the modern awards is uncertain and may well create unintended consequences.
PN1078
So we're in a materially different situation in this proceeding. We're in the four‑yearly review. We're not dealing with a model clause with generic application across all modern awards, we're dealing with specific awards. The Commission has evidence and is able to consider the circumstances and needs of employers and employees in the industries to which those awards apply.
PN1079
VICE PRESIDENT HATCHER: But there's no essentially retail characteristics of your case, is there? That is, to the extent that it's founded upon a general principle, going back to the test case, if we approve the claim there's no reason why as a matter of principle the claim should not be approved for every modern award.
PN1080
MR MOORE: I wouldn't want to stand in the way of approving of the claim for others. What we would say is that the granting of this claim is particularly well suited to the awards the subject of the claim because of the prevalence of what are referred to, what the Full Bench back in 1994‑5 referred to, as non‑standard working arrangements. So the claim is very pointed and very relevant to the retail industry, the fast food industry, the pharmacy industry, because of the extensive nature of non‑standard working arrangements recognised by the Full Bench in the penalty rates decision, and we come to that in a moment, your Honour.
PN1081
There is one part of the decision in the transitional review dealing with public holidays that I do want to ask members of the Bench to open the folder of cases, and hopefully it's behind tab 8 of the folder that was handed up. Thank you, your Honour. If the folder is numbered - is it paginated?
PN1082
VICE PRESIDENT HATCHER: Yes.
PN1083
MR MOORE: If you go to page 141, please. So in this part of the decision, as members of the Bench will see, from page 139, there's the heading Public Holidays Falling on Non‑Working Day. So this is part of the decision where the Full Bench dealt with this particular claim, and at paragraph 62 I propose to read this part:
PN1084
The public holiday test case remains a relevant consideration for present purposes.
PN1085
Pausing there, mid-sentence, we place particular emphasis upon that. Continuing the sentence:
PN1086
But there is considerable force in Ai Group's submission that it was determined in a different statutory context. In particular, the scheme of the present Act places reliance upon a relatively comprehensive set of minimum standards provided by the NES and the role of the modern awards is intended to operate in that context.
PN1087
We'll come back to that question of the different statutory contexts in due course. The next paragraph is important:
PN1088
Whether or not this particular element of the ACTU model provision is ancillary or incidental to the public holidays entitlement in the NES. In our view, it could be considered to supplement the NES within the meaning of section 55(4)(b) of the FW Act. We also note that section 139(1)(c) of the FW Act contemplates modern awards having provisions concerning arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours. Provided that the provision is not detrimental to an employee in any respect of any NES entitlement, the adoption of the model provision is a matter of discretion having regard to the nature of this transitional review and the merit of the proposal.
PN1089
Just pausing there, members of the Bench may wish to highlight that passage, as it's a complete answer to submissions made by clubs that the provision in the clubs award that they seek to remove offends against the statutory scheme because it's inconsistent with section 116 and doesn't supplement the NES. On a fair reading of paragraph 63 it's quite clear that the Full Bench there considered that a provision of the type - the same type of provision of that now proposed, and which has its analogies in the clubs awards, was considered to be a provision which supplements the NES.
PN1090
Going back to the extract at paragraph 64:
PN1091
The AIRC and FWA Full Benches did not apply all elements of the public holiday test case decisions to many of the modern awards during the award modernisation process, however certain elements were included having regard to the former awards and NAPSAs applying in each industry and to the legislative framework at the time of the award modernisation process.
PN1092
I don't need to read the next paragraph. Then the Full Bench comes to its conclusion in 66:
PN1093
While this aspect of the ACTU's claim is not without merit, it does constitute a substantial variation of the award safety net and in our view is more appropriately dealt with in the four‑yearly review of modern awards provided for in section 156 of the FW Act.
PN1094
I don't read the rest of the paragraph. We say this is an important consideration for a range of reasons: (1) the Full Bench of this Commission has acknowledged the continuing relevance of the public holidays test case, and that brings with it the underlying principle of fairness which I've addressed the Commission on earlier, a few moments ago. Secondly, the Full Bench did not consider that variations of the type now proposed by the SDA in any way were impermissible within the statutory regime, and in fact considered them to be provisions which supplemented the NES. (3) the Full Bench identified the existence of merit in very general, non‑determinative terms.
PN1095
So we say that that's an important step in the reasoning, and in particular, we say, goes a long way to addressing the point that you raised, Commissioner Johns, which is in a sense about building the bridge, as it were, between the findings of the Full Bench back in 1994 and 95 to contemporary circumstances today.
PN1096
There's more to be said about that bridge, but the Full Bench in the transitional review has accepted the continuing relevance of the public holidays test case, which we readily concede a substantial, large part of our case is constructed around.
PN1097
VICE PRESIDENT HATCHER: Can you just pause there? Is that a convenient time to take a short adjournment of about 10 minutes?
PN1098
MR MOORE: Yes, your Honour. Thank you, your Honour.
SHORT ADJOURNMENT [11.40 AM]
RESUMED [11.57 AM]
PN1099
VICE PRESIDENT HATCHER: Mr Moore?
PN1100
MR MOORE: Thank you, your Honour. Before going on can I come back to the query your Honour asked me about, why the variations we proposed are limited to part-time workers working five days a week, and the reasoning for that is based on a couple of propositions; first, the test case standard, as I've explained, was referable and only expressed to be in relation to full-time workers; secondly, we take the view that a part-time worker who works five days a week, whatever those hours per day might be, they have a broadly equivalent working pattern to a full-time worker. So it's the equivalency in their working pattern, and having regard of course to the pro rata nature of the entitlements which would go to part-timers in any event, but it's because of the broadly equivalent nature of a part-time worker who works five days a week to a full-time employee that we see that's why that limitation has been inserted.
PN1101
One can look at it the other way and consider if that limitation wasn't there it would catch, for example, a part-time worker who works one day a week. That part-time worker who works one day a week would then, if this variation was granted, have an entitlement to public holidays that fell on the other four days or the other four days of the week when they're not rostered to work. I think that ‑ ‑ ‑
PN1102
VICE PRESIDENT HATCHER: But your variation might catch a full-time worker who works four days a week.
PN1103
MR MOORE: It does catch all full-time workers. That's so, your Honour. So it's do with that equivalency to answer your Honour's question. That's the rationale for it. The only point that I just draw to the Members of the Bench's attention on this, and this was addressed in the SDA's original submissions at paragraph 49, there's a reference in paragraph 49 of the SDA's original submissions in paragraph 48 to a decision of O'Shea C, who I note was a Member of the Bench in the public holidays test case. This is a decision which was a recommendation made in the course of bargaining between the SDA and Woolworths towards the making of an enterprise agreement, and it needs to be seen in that context. But the reason I'm referring this is it casts light on the rationale of equivalence to which I've referred, and so in that situation in this case the parties had reached agreement about the terms of the enterprise agreement save in relation to this very issue that we're here considering, and the Commissioner said, and this is set out in paragraph 49.
PN1104
VICE PRESIDENT HATCHER: What did that decision relate to? Is that a ‑ ‑ ‑
PN1105
MR MOORE: It's a recommendation made by O'Shea C in the context of bargaining between the SDA and Woolworths.
PN1106
VICE PRESIDENT HATCHER: Right.
PN1107
MR MOORE: The Commissioner stated that:
PN1108
The emphases in the Commission's test case decision concerning non-standard working arrangements were to remark on the wide diversity of working arrangements in place to set out a series of broad principles and to indicate that the principles pertaining to non-standard working arrangements will be applied sensitively and flexibly with due regard to special circumstances. Given these considerations I am persuaded by the SDA that there is no valid reason why a five day part-time worker should be treated any less favourably than his or her full-time counterpart. The form of the provisions sought by the SDA is, in my view, consistent with the intent and direction of the Commission's public holiday test case decision, and in addition has strong equity advantages.
PN1109
I don't want to place undue weight on this decision. It's a decision of a single Member of the Commission in the nature of a recommendation made in the course of bargaining, but it is a Member of the Commission who is a Member of the public holidays test case Bench and it casts light on the equivalence sought to be drawn between full-time workers and five day part-time workers. That's the extent of the reliance.
PN1110
If I might return to the body of the SDA's submissions, and from page 9 onwards we set out the six principle reasons why the public holidays test case should be followed, and without reading these submissions unduly they are: (1) in that case a Full Bench of the predecessor of this Commission declared the safety net standard for public holidays for all Federal Awards; (2) putting aside the question of part-time employment the terms of the proposed variation are entirely consistent with that public test case standard. Paragraph 31, without reading it, we simply refer to the decision in the four yearly review dealing with the word "flexibility" where in relation to reliance sought to be placed by the Ai Group on the family leave test case, the reason why the Full Bench didn't uphold that was because the approach being proposed was inconsistent with the principles enunciated in the family leave test case.
PN1111
In terms of the question of part-time employment that being a difference between the public test case decision and what's now proposed, it's important to draw Members of the Bench's attention to what we say in paragraph 33 and 34. There has been a very significant increase in the use of part-time employment and a greater flexibility in the hours worked by such employees in the 22 years since the public holidays test case and the basis of that submission, support for that submission, can be found in the findings by the Full Bench in the penalty rates case which, as Members of the Bench will well appreciate, involves an extensive examination of evidence concerning various matters including the composition of the labour force generally and also of the workforces in these industries, and the Full Bench noted the significant changes in the composition of the labour market generally in the past 25 years including in particular a rise in part-time employment, and we provide further details of that in paragraph 34(a). In (b) we note that the Full Bench identified that much of the demand for part-time and casual employment has come from the services sector which comprises wholesale trade, retail trade and other services including the industries the subject of the awards in this proceeding. In paragraph (c) of paragraph 34 we note that the Full Bench found in penalty rates that in relation to the Fast Food Industry Award almost 80 per cent of fast food employees work part time, which is defined to mean less than 35 hours a week being vastly greater than the all employees' average. Likewise in relation to the ‑ ‑ ‑
PN1112
VICE PRESIDENT HATCHER: But most of that would be casuals mightn't it?
PN1113
MR MOORE: I expect that is so, your Honour, yes. I should point out we have not been selective here. I've tried to get actually from the decision a finding about the number of the proportion of part-time as distinct from casual employees, and I don't believe there is such a finding in the decision. This is the closest we can get to the point around the extent of part-time employment in those industries.
PN1114
Likewise in relation to the retail industry 56 per cent are employed on a part-time or casual basis, and 57 per cent in the pharmacy industry.
PN1115
Jumping ahead somewhat, or reverting to what is to come, when one is considering the modern awards objective and the task to ensure that the awards are a fair and relevant safety net of terms and conditions the provision proposed to be made as extending to part-time employment is particularly apposite and suitable to the circumstances and needs of the industries to which these awards relate given the extent and nature of part-time employment.
PN1116
The other point we draw from penalty rates, which we deal with in paragraphs 35 and 36, is that beyond the extensive use of non-fulltime employment in the industries we're here concerned with, in the penalty rates decision the Full Bench referred to a number of other work arrangements which can aptly be described in the language of the public holidays test case as non-standard working arrangements, and the Full Bench stated at paragraph 504 that:
PN1117
Employees in the industries that align most with the hospitality and retail awards are more likely to work on weekends than employees in other industries. More than half of the employees in accommodation and food services usually work on weekends, the highest of all the industries, and almost half of retail trade employees usually work on weekends, the second highest proportion of all the industries in recent time. Further weekend work appears to have increased in these industries more than many other industries.
PN1118
Then the Full Bench set out a profile of a typical fast food employee said to be a student aged between 14 and 24 who is employed on either a casual or part-time basis and working between one and 24 hours a week. In relation to the retail industry the Full Bench identified the proportion of the total retail workforce that usually worked on weekends was between 60 and 62 per cent.
PN1119
So we say that these findings recently made in a very large and significant decision of this Commission established the applicability and relevance of the safety net provision proposed by the SDA for non-standard permanent workers covered by the awards, the subject of this proceeding, and we say that the extensive engagement of workers on non-fulltime basis including on a part-time basis and in particular on weekends renders the provision a necessary element of a fair and relevant safety net of terms and conditions.
PN1120
The next point we make as to why the Full Bench should here apply the public holidays test case we deal with on page 12, and this concerns the issue around the different statutory context between then and now as it were, and this issue arose in the award flexibility four yearly review in which the Full Bench compared the current statutory framework with that which applied at the time of the family leave test case. Conveniently as it were for me that test case is in footnote 39, the public holidays test case was determined on 20 March 1995 and the family leave test case was determined in two stages in November 1994 and November '95. So this compare and contrast between the statutory framework which the Full Bench undertook in the award flexibility review is apt to the current circumstances.
PN1121
The Full Bench, and this is set out paragraph 39, accepted that there are some similarities and some significant differences in the statutory contest presently existing and that when the test case was decided and they set out some of those differences, and we've extracted that. However, and the critical conclusion is set out at paragraph 40 notwithstanding the differences in the comparative statutory context that were identified the Full Bench in the award flexibility review stated, despite the differences in the statutory framework we have concluded that some aspects of the family leave test case TOIL provision retain their cogency in the current statutory context. In particular we see no reason to depart from the test case standard regarding the calculation of time for the purpose of TOIL, that is, at the ordinary rate, i.e., time for time rather than the overtime rate, time for penalty.
PN1122
We urge upon this Full Bench a similar approach where we fix upon the public holidays test case is on the finding of fairness and the view then adopted that fairness requires that a worker working non-standard working arrangements not be disadvantaged by that fact, and we see nothing in the statutory context which would provide any proper basis for the Commission to depart from that notion of fairness when considering the current matters.
PN1123
VICE PRESIDENT HATCHER: How does this work with part-day public holidays? I'm just looking at the South Australian situation. So if I am rostered to work on 24 December but I finish at 5 pm I don't get the part day public holiday, but under your claim if I'm not rostered to work I do get it; is that right?
PN1124
MR MOORE: So your Honour is asking me the question that if a person works on 24 December ‑ ‑ ‑
PN1125
VICE PRESIDENT HATCHER: Yes. Say I work 9 to 5.
PN1126
MR MOORE: Yes.
PN1127
VICE PRESIDENT HATCHER: I don't get the part day public holiday because it starts at 7 pm.
PN1128
MR MOORE: I see.
PN1129
VICE PRESIDENT HATCHER: But if I'm not rostered to work on 24 December at all I do get it.
PN1130
MR MOORE: I will consider that on notice if I may, your Honour?
PN1131
VICE PRESIDENT HATCHER: All right.
PN1132
MR MOORE: Thank you. The next point we make as to why the public test case decision should be applied and followed by this Full Bench is in page 14 of our submissions. We make the point that the continuing contemporary relevance of that decision is reflected in the inclusion in many modern awards of provisions of the type here proposed by the SDA.
PN1133
We've gone away and done a fair – well, my junior has done a lot of work at the – looked at these provisions and schedule 1 is the fruits of that labour, and it updates an attachment 19 which was appended to the October submissions of the SDA. Before I take you to it, what in summary the analysis in schedule 1 shows is that there are various existing provisions in 47 awards, modern awards, that are similar to the SDA's proposed provisions. Some of those provisions are more closely aligned to the SDA as proposed and others are less.
PN1134
If I can ask the Bench to look at schedule 1 there are 47 awards there identified? The relevant clause in each is identified and some short summary or explanation description is set out in the third column. I need to explain one element of that. So if I just take, by way of example, the first award, the airline operations award, clause 37.5, the features of that clause are that it contains in that clause a provision of the type here proposed by the SDA but it is limited to full-time employees and provides for options (a) to (c). That's a reference to the options, the alternatives I'm sorry, set out in our proposed variation in paragraph 4 of our reply submissions, so, that is, (a) is another day or part day off in lieu, (b) is an equivalent day or part-time day's pay or (c) is one extra day or part day added to annual leave. So ‑ ‑ ‑
PN1135
VICE PRESIDENT HATCHER: So just glancing at this, it seems that most of these provisions, unlike yours, do not exclude Saturday/Sunday?
PN1136
MR MOORE: There seems to be a number in that category. We haven't sought to further dig down in this analysis, your Honour. We endeavoured to assist the Commission by saying well, here there are 47 clauses. The big point here is the employers basically say the sky will fall in if this provision is made. It's in 47 awards, something like this, and there is a range of provisions. Some are more closely aligned to the SDA's proposal than others. The point we make is that that demonstrates the continuing contemporary relevance of these provisions. The ‑ ‑ ‑
PN1137
COMMISSIONER HAMPTON: Mr Moore, is that about the part day public holiday provision?
PN1138
MR MOORE: Yes.
PN1139
COMMISSIONER HAMPTON: Yes. I think the answer is that whilst there are three different models of schedule they all have one thing in common and that is that they purport to exclude the part day public holiday from an employee who was not rostered to work.
PN1140
MR MOORE: They do. Thank you, Commissioner, and it should have been at the forefront of my mind, but, your Honour, it appears in the proposal on paragraph 4 ‑ ‑ ‑
PN1141
VICE PRESIDENT HATCHER: Sorry, where are we now?
PN1142
MR MOORE: In our reply submissions, paragraph 4.
PN1143
This subclause shall not apply to public holidays falling on a Saturday or a Sunday except where they are substituted to another day nor to part day public holidays of less than 11 hours.
PN1144
VICE PRESIDENT HATCHER: I see.
PN1145
COMMISSIONER HAMPTON: So that part at least is consistent with the current schedules.
PN1146
MR MOORE: Yes.
PN1147
COMMISSIONER HAMPTON: Which is another matter we'll be taking up at some stage in the future.
PN1148
MR MOORE: Thank you.
PN1149
VICE PRESIDENT HATCHER: So what part day public holidays are more than 11 hours? They're the regional shows and things like that?
PN1150
MR MOORE: Yes, regional show days I understand is one of those.
PN1151
COMMISSIONER HAMPTON: Because they're covering Tasmania as well.
PN1152
MR MOORE: So that's ‑ ‑ ‑
PN1153
COMMISSIONER HAMPTON: And in the Northern Territory.
PN1154
MR MOORE: In the Northern Territory. Good to see the regional show continues to live on. So that's schedule 1 of our submissions. The last reason we point to is, and this is at the bottom of page 14 of our reply submissions, the reason as to why the Full Bench should here follow and apply the public holidays test case is because the provisions to the same effect were a feature of Federal award regulation in the retail industry and in the fast food industry and in the pharmacy industry prior to January 2010. That demonstrates that the provision is not alien to the retail industry and is able to be viewed as being suitable and adapted to the needs of those industries.
PN1155
VICE PRESIDENT HATCHER: So this issue didn't arise during the award modernisation process?
PN1156
MR MOORE: I just need to check one thing, your Honour, if I might do that? Your Honour, I think the position is this; a claim was made by the SDA for the inclusion in the modern awards of a provision to this effect. It wasn't obviously acceded to. I think it was a matter of limited discussion, peripheral discussion or debate in a context of the making of the modern awards. I think that's an accurate general summary.
PN1157
So I said at the outset that there were four topics that I wanted to address the Bench on orally; the second I've now completed, that is, the previous decisions and why the public holiday test case should be followed and applied. The third topic I'll be briefer I think, which is replying to some of the employer submissions. We've replied to the employer submissions in paragraphs 47 to 106 of our reply submissions. I don't want to go through each of those paragraphs, but there's a couple of points that I do need to clarify or emphasise for the Bench.
PN1158
First of all I want to draw attention to the SDA's evidence, and the analysis the SDA has undertaken of that evidence, and that's in schedule 2 of the reply submissions. If I can explain schedule 2 before we jump into the detail of it as it were. This is an analysis of all of the witness evidence relied upon by the SDA save in relation to SDA witnesses 8 and 4. Those witnesses, whose names I'll have at hand in a moment, were an employer and an employee in the hair and beauty industry and the tenor of their evidence is about the fact that a benefit of the type here sought has been provided or received by them in the hair and beauty industry. So we point to that evidence to say well, here's a couple of instances in the hair and beauty industry as it happens where the provision of the benefits of the type here sought have been afforded.
PN1159
We put that evidence to one side for the purposes of schedule 2, and the exclusion that I've just noted is referred to in the notes to schedule 2. If I could ask the Bench to look at the notes, which are on page 15, this is the last page of the schedule. So note 3 deals with what I've just said about the two witnesses from the hair and beauty industry. Notes 1 and 2 we make clear that evidence of the witnesses there identified are not relied upon and their evidence hasn't been tendered. So we don't need to deal with that. So what we've done for the remainder, so all of the SDA's witness evidence, other than the two witnesses who work in the hair and beauty industry, and in relation to whom are benefits of the type sought have been provided, what we've done is to look at the period of time referred to in their affidavits and identify whether they received a benefit from the public holidays in that period and compare it to a hypothetical Monday to Friday employee. Best if I explain it in a concrete way. Looking at the first table in schedule 2, it's dealing with evidence of SDA witness 2. Column 1 – before I go on I should say that the hair and beauty witnesses to which I referred are Roberts and Greaves. So in this table, and the first table being for SDA witness 2, there is set out in the first column all of the public holidays that there were in the period to which that witness refers to in their affidavit.
PN1160
Column 2 is drawn from the content of their affidavit, it sets out whether or not they got a benefit in relation to each of those public holidays, and column 3 is what is to compare to the hypothetical Monday to Friday employee, and whether or not they would have got a benefit. So what it shows, going to the second-last column, the second-last row on the first page of this schedule is that there were 24 public holidays in the period, and then in the bottom row this employee got a benefit for 15 of those days, including two part days, whereas the hypothetical Monday to Friday employee would've got 17 benefits in relation to 17 days.
PN1161
VICE PRESIDENT HATCHER: So Monday, 25 April 2016, why is that no benefit in the third column?
PN1162
MR MOORE: That's a good question, your Honour. I'll consider that. We'll check that. That doesn't seem to be accurate on its face.
PN1163
VICE PRESIDENT HATCHER: No. If your claim gets up the witness would receive all the benefits of the Monday to Friday employee but would also keep the benefits they've got that the Monday to Friday employee doesn't have, for example, Saturday, 26 December, for example?
PN1164
MR MOORE: I think if our claim got up, as I understand it, they would then be equated to the full-time Monday to Friday employee.
PN1165
VICE PRESIDENT HATCHER: They get all the Monday to Friday holidays?
PN1166
MR MOORE: Yes.
PN1167
VICE PRESIDENT HATCHER: But they'd also keep their weekend holidays, so they'd end up with more, wouldn't they?
PN1168
MR MOORE: I don't think that's correct, but I will check that, your Honour.
PN1169
VICE PRESIDENT HATCHER: All right.
PN1170
COMMISSIONER JOHNS: But they would get the Saturday, the public holiday that falls on a Saturday but the Monday to Friday person wouldn't?
PN1171
MR MOORE: That's so, Commissioner. That is right.
PN1172
COMMISSIONER JOHNS: So they get a greater benefit?
PN1173
MR MOORE: They would get the benefit of any public holidays that fell on a weekend.
PN1174
COMMISSIONER JOHNS: They would get more than people who are Monday to Friday.
PN1175
MR MOORE: It depends on their working pattern, Commissioner.
PN1176
COMMISSIONER JOHNS: How is that fair?
PN1177
MR MOORE: I think the answer ‑ ‑ ‑
PN1178
COMMISSIONER JOHNS: Comparing them to the Monday to Friday person, how is that fair?
PN1179
MR MOORE: I think the answer is, your Honour, is that there are some public holidays that fall on a weekend, but there are less of those and many of them are substituted in any event.
PN1180
COMMISSIONER JOHNS: The Easter ones aren't, so ‑ ‑ ‑
PN1181
MR MOORE: No, I said many, your Honour. I accept that they're not all substituted. So I think there might be some ‑ ‑ ‑
PN1182
VICE PRESIDENT HATCHER: If you're a Wednesday to Sunday worker, for example, in all likelihood if your claim got up you'd end up better off than the Monday to Friday worker, wouldn't you? You'd have to.
PN1183
MR MOORE: If there are public holidays on the weekend that are not substituted they would be. I'd have to accept that's so, your Honour. It is all about the work pattern, your Honour, and the example your Honour just asked me about I'd have to accept that they would be better off, but that's if they worked both the Saturday and the Sunday.
PN1184
The only other specific thing that, as I said, I'd direct the Members of the Bench to our submissions in paragraph 47 to 106 where we reply to the employers' submissions. I don't propose to go through all of those points but there is one point of potential significance that I should address and just draw the Bench's attention to. The Australian Retailers Association has submitted that if the claim was granted, and bear in mind this submission was advanced before the SDA amended the proposed variation, their submission at paragraphs 52 to 54 they provide a cost estimate of the granting of the additional cost of business, as I understand it, in the event that the SDA application in its original terms was granted, and they estimate the cost of business to be $267,000,000. They then say that even if it was assumed that all of the employees afforded the additional benefit were paid at the minimum rate that could apply to their employment then the cost would be in excess of $177,000,000. We say that that estimate is meaningless and should be given no weight, and we say that for the reasons set out at paragraphs 62 to 67 of our submissions.
PN1185
First, it's important to note, and the ARA identified this in their submissions, that they've assumed – well, there's no information because presumably no data is available as to the number of permanent part-time workers who work five days per week. So, in other words, they've, as part of their equation in calculating the claimed cost, they've used the amount of $222.98 per day. That is, they've assumed full-time working hours on the day and obviously that necessarily inflates the calculation of the claim, and we would say that is a very significant limitation on the value of the analysis.
PN1186
Secondly, the ARA has assumed that employers would agree to an additional day's wages in every instance as the form of benefit that would be provided. Of course, in its amended form the SDA's variation lets the employer choose, after consulting with the employee, as to which benefit should be provided. So the employers would be entitled to decide whether to provide time off or to pay wages. It would therefore be an option for employers to refuse to pay a day's wages if this was viewed as unduly burdensome to their business. So there's no need, we say, if an employer has a view that, "We can't bear the cost of it", well, they don't have to pay the cost of it. They don't have to accede to that claim.
PN1187
COMMISSIONER JOHNS: But even still if they then say it has to be a substitute day then they'll have to have a replacement employee, and that's going to be a cost. I mean, even if you cavil with the figures, do you concede it's going to be an additional cost burden on employers?
PN1188
MR MOORE: I don't concede that, your Honour, because, okay, to take your example, Commissioner, of the possibility of a replacement employee being needed, well, that is theoretically possible but presumably employers acting in their commercial self-interest would determine upon a substitute day off as it were at a time where they could avoid the need to replace the employee. There may not be a need for employees to be replaced because it might be a particularly quiet time or quiet hours where employees are not fully occupied and there's no need, no occasion, for a replacement employee. But theoretically the cost of a replacement employee could arise if an employer has no choice in the matter and that is operationally there is a need for a replacement employee, and I'd have to accept that in that circumstance that would occasion a cost to the employer. I'd accept that, your Honour.
PN1189
VICE PRESIDENT HATCHER: Does the SDA's agreements with major retailers contain a provision of this nature?
PN1190
MR MOORE: Yes, they do, your Honour, I'm instructed.
PN1191
VICE PRESIDENT HATCHER: Right. So why do they do the safety net?
PN1192
MR MOORE: I'm sorry, your Honour?
PN1193
VICE PRESIDENT HATCHER: So why are they needed in the safety net?
PN1194
MR MOORE: Just because a provision is in an agreement doesn't mean that it's incompatible with being in a safety net provision. I mean, the fact that it is in an agreement doesn't make it fundamentally incompatible with being a minimum provision. I don't propose to say anything further in reply to the employers' submissions. The other matters, submissions that we want to address, have been addressed in our written submissions.
PN1195
The last topic I will address is the modern awards objective which Johns C asked me about earlier this morning and we deal with this from page 28 of our reply submissions onwards. We make the point in paragraph 107 that, to para-phrase, the considerations in section 134(1) are not a check list, not to be treated of course as a check list. They are the mandated considerations which are directed at the questions set out in the preamble to the paragraphs, that is, whether the modern award together with the NES provides a fair and relevant minimum safety net of terms and conditions. That is plainly the question to which the Bench needs to direct itself.
PN1196
We have made two essential points and I won't rehash them unduly now; that in terms of fairness we fix upon the public holidays test case decision and the statements of principle there made and say that that principle has continuing relevance and applicability today as manifest by the inclusion in 40-odd modern awards of provisions to that effect and as recognised by the Full Bench in the transitional review to do with public holidays amongst other matters. We say that the provisions of the type we propose are relevant because of the prevalence of non-standard working arrangements to which I've already outlined in my submissions to date. But they are front and centre, we say, in the matters which the Bench should bear in mind, or not just bear in mind, but direct itself to; questions of fairness. What is the measure of fairness? We say that the test case has determined that this is an essential concept of fairness that should find voice in minimum standards and there's no reason, we say, to depart from that finding made in 1995.
PN1197
In terms of the enumerated considerations we address these, and I don't want to go through them – repeat what is in our submissions, but I will emphasise some of them. Subparagraph (a) is the relative living standards and the needs of the low paid. As the Bench will see, we rely upon the findings of fact made by the Full Bench in penalty rates, which we set out in paragraphs 110 to 112 and without reading those quotations in that decision the Full Bench found that a substantial proportion of award reliant employees in relation to fast food, pharmacy and retail awards were low paid. We say the variation we propose would ensure then that a group of low paid employees who are receiving no benefit from some public holidays will receive a benefit from all public holidays. So it is a consideration which we say should weigh significantly in the balance in considering whether or not the award provision meets the modern awards objective, because of the large number of low paid workers employed under these awards.
PN1198
In terms of collective bargaining, subparagraph (b), we agree with the ARA and the ABI New South Wales Chamber that this is the neutral consideration. In terms of (c), social inclusion through increased workplace participation, the Ai Group submits that there would be an adverse effect on the need to promote social inclusion which the Full Bench has found that obtaining employment is the primary focus of subparagraph (c). We make the point there's no evidence before the Commission that the variation being granted would have a negative impact on employees obtaining employment, and we also submit that the Bench shouldn't accept the ARA's submission that retail employers would be likely to reduce the labour hours offered as a result of increases in labour costs said to flow from the proposed variation. If anything we make the point that the proposed variation is going to aid employment because of the replacement employee scenario that Johns C drew to my attention, and we take issue with the fanciful estimate of the cost burden said to flow as advanced by the ARA.
PN1199
VICE PRESIDENT HATCHER: Might it become a disincentive to full-time employment?
PN1200
MR MOORE: I'm sorry, your Honour?
PN1201
VICE PRESIDENT HATCHER: Might it become a disincentive to full-time employment as compared to casual employment?
PN1202
MR MOORE: I suppose it – I don't think so, your Honour, because the provision applies to both full-time and permanent employment.
PN1203
VICE PRESIDENT HATCHER: A disincentive to employed persons who are not casuals.
PN1204
MR MOORE: I'm sorry. In the broader sense it would have to be acknowledged that if this variation of the type proposed does alter the obligations which fall on an employer in relation to full-time and those part-time employees who work five days a week, so that would then alter the calculation or the equation, as it were, presumably that employers apply in determining choices around employment, and numbers of employees and classes of employees whether or not that becomes a disincentive would depend upon the circumstances of particular employers.
PN1205
VICE PRESIDENT HATCHER: Thank you.
PN1206
MR MOORE: (d) concerns the need to promote flexible, modern work practices and efficient and productive performance of work. We've explained in paragraph 125 through to 131 why we say that's a neutral consideration. I don't propose to go through that. (da) it is a common ground that that is a neutral consideration, and paragraph (e) equal remuneration is not relevant. In terms of (f) impact on business including on employment costs and the regulatory burden, we say that the employers' claims in this regard are overstated for the reasons that we explain through paragraphs 134 to 141. Lastly, in terms of the simple and easy to understand modern award system addressed in (g) there's no substance to the Ai Group's claim that the variations are not simple or easy to understand. Lastly, in relation to (h) we share the view of the ARA that it can't be concluded that the proposed variation will have economy wide impacts. I deal with the question of necessity in section 138 of our submissions. As I said I don't want to read everything that's here written. We rely upon everything that's written down. Unless there are any questions, they are the submissions of the SDA.
PN1207
VICE PRESIDENT HATCHER: Thank you, Mr Moore. Mr Nguyen, are you next?
PN1208
MR NGUYEN: Yes, your Honour.
PN1209
VICE PRESIDENT HATCHER: How long do you think you'll be?
PN1210
MR NGUYEN: Not more than five minutes.
PN1211
VICE PRESIDENT HATCHER: All right. Go ahead.
PN1212
MR NGUYEN: Your Honours and Commissioners, I'd just like to also indicate that AMWU supports the SDA's proposed variations particularly in relation to the Vehicle Manufacturing and Repair Service and Retail Award in which we have an interest, and we do support the principle that workers who weekly take a day other than Saturday and Sunday off should not be deprived of public holidays to which their Monday to Friday counterparts are entitled to on an annual basis.
PN1213
In relation to the AMWU's claims everything that we wish to say is in our submissions. I note that your Honour is not going to mark the submissions, so just for the record the submissions we rely upon are the 20 October 2016 submissions which includes nine appendices and which includes the AMWU survey of its members which I understand there's some contention about from the employers' part, but we've included in our submissions about the weight that should be given to the survey in our submission on 10 July of this year which is the reply submission. We also note that on 14 December of last year we did provide revised draft determinations to the Commission.
PN1214
VICE PRESIDENT HATCHER: So they are for what awards?
PN1215
MR NGUYEN: They are for the Manufacturing and Associated Industries and Occupations Award 2010, the Food Beverage and Tobacco Manufacturing ‑ ‑ ‑
PN1216
VICE PRESIDENT HATCHER: I see, yes, Graphic Arts and the Vehicles. Yes, all right.
PN1217
MR NGUYEN: Graphic Arts and the Vehicle Award, yes.
PN1218
VICE PRESIDENT HATCHER: So do all those awards have provision of the type – I should look at Mr Moore's schedule - of the type proposed by the SDA?
PN1219
MR NGUYEN: I'll have to take it on notice for all of the awards, your Honour, but for the Manufacturing Award, yes, there is a clause in the Manufacturing Award of the type which the SDA is seeking. In the Vehicle Industry Award there is a type of clause which I understand the SDA is amending but the intent of which is to apply the idea that they should have ‑ ‑ ‑
PN1220
VICE PRESIDENT HATCHER: Yes, they all seem to have it. Thanks.
PN1221
MR NGUYEN: They should have the public holiday. But I'll need to check in relation to the Food and the Graphic Arts and get back to you, your Honour.
PN1222
VICE PRESIDENT HATCHER: So, under your proposal, if you're a Monday to Friday worker under the Manufacturing Award and Christmas Day falls on a Saturday and there's a substitute holiday you get, what, an additional day's pay for the Saturday even though you're not working it, and you get the substitute date?
PN1223
MR NGUYEN: Under our proposal we don't seek to change the public holidays. If Christmas Day falls on the weekend then it's not a public holiday; it's substituted under the legislation, which is for Victoria, South Australia and Northern Territory. So 25 December on a weekend will continue to not be a public holiday but if you're required to work on that day under our proposed clause you will be paid 250 per cent.
PN1224
VICE PRESIDENT HATCHER: I see. So it's only about penalty rates.
PN1225
MR NGUYEN: That's correct, your Honour.
PN1226
VICE PRESIDENT HATCHER: Yes, all right. Thank you.
PN1227
MR NGUYEN: If there's no further questions, that concludes ‑ ‑ ‑
PN1228
VICE PRESIDENT HATCHER: No. Thank you, Mr Nguyen.
PN1229
MR NGUYEN: Thank you, your Honour.
PN1230
VICE PRESIDENT HATCHER: Ms Svendsen, how long do you think you'll be?
PN1231
MS SVENDSEN: Your Honour, I wouldn't expect to take much longer than Mr Nguyen unless you're going to ask me questions.
PN1232
VICE PRESIDENT HATCHER: That gives you five minutes plus five minutes for questions, so let's ‑ ‑ ‑
PN1233
MS SVENDSEN: Yes. Your Honour, generally the HSU relies on its submissions dated 19 January this year. I don't intend to reiterate those in detail but I'd like to highlight a couple of points concerning the claim, and to note this morning's document sent to the Commission and the parties that are most concerned with the health awards.
PN1234
The claim is intended to equalise the NES entitlements to public holidays to ensure that health workers and emergency services workers will receive the benefit of the NES public holidays regardless of whether the employee worked non-standard hours including weekends or whether they worked standard working hours between Monday to Friday.
PN1235
Our claim differs from the SDA and AMWU applications and applies to the awards nominated, so Aboriginal Community Controlled Health Services Award, Aged Care, Ambulance and Patient Transport, Health Professionals and Support Services, the Nurses Award and the Social Community Home Care and Disability Services Award.
PN1236
The effect of the draft determinations that were submitted earlier this year provide that the actual day worked falling on a weekend would be paid effectively as an additional public holiday. That actually wasn't the intent that we had initially set out to apply. We have reviewed those drafts and acknowledge that this would be a greater or an expanded entitlement for those who worked the actual day. We therefore provided a modified clause this morning that attempts to ensure that where a public holidays falls on a weekend or a Saturday or Sunday and the public holiday is substituted for another day and an employee who is required to work on the actual public holiday and who does not also work on the substitute day shall receive payment for the work on the actual day as if it were a public holiday. An employee who works on the substitute day or both the substitute day and the actual day will only receive the relevant public holiday penalty rate on the substituted day.
PN1237
The HSU believes that ensuring workers who are employed non-standard working hours or days should receive the benefit of public holidays and whether or not they work across a standard set of hours Monday to Friday or whether they're working across weekends. Currently there is a difference in the benefit that some employees receive because they work non-standard hours and because of the provisions of health services which work across seven days a week, 24 hours a day, and 365 days a year and don't primarily close so continue to trade, an employee in those circumstances continues to work a full roster where a public holiday applies in the week or not, so unlike you and me who work four days and are paid five they continue to work five days and if they work the day of the public holiday on a weekend where the day is substituted as a public holiday then they don't receive any benefit for that day that they work on that weekend. It's also common in health for nightshift workers to work 10 hour shifts which means they work four days in a working week and are even more likely to miss working on the substituted day and therefore gain the benefit of either additional pay or of an additional day's leave on full pay.
PN1238
Principally in relation to the submissions that Mr Moore has made this morning we don't intend going to any of those issues in relation to previous cases because we think he's covered them exceptionally well, and note only that this for us is about equity and fairness in ensuring that people who are working the actual public holiday still gain some benefit for working that public holiday.
PN1239
VICE PRESIDENT HATCHER: So in practical terms this is really about Christmas and Boxing Day, is it?
PN1240
MS SVENDSEN: The submissions we provided in January provide a table of the differences. Christmas Day is one that in a couple of States is substituted rather than an additional day. Boxing Day in the majority of States is actually an additional day and so it doesn't affect those States, but principally about those days. It also would affect Anzac Day if it fell on a weekend and New Year's Day if it fell on a weekend.
PN1241
VICE PRESIDENT HATCHER: In paragraph (b) of your claim, so I understand this, does that apply if say Christmas Day is on a Saturday, it's still declared a public holiday but then there's a substitute, that is, an additional holiday declared, is the effect of (b) is that you only get penalty rates for one of the two days even though you'd worked both?
PN1242
MS SVENDSEN: No. If it was declared an additional day then it wouldn't be caught by the wording of this clause.
PN1243
VICE PRESIDENT HATCHER: Because it's not a substituted day?
PN1244
MS SVENDSEN: It's only where it's declared a substitute day and where Christmas Day was a Saturday or a Sunday and the substitute day would therefore be, in fact in all cases, the Monday, 27 or 28. I'm losing it now.
PN1245
VICE PRESIDENT HATCHER: Yes, all right.
PN1246
MS SVENDSEN: But that would be the first day after Boxing Day, either the Monday or Tuesday. It would catch the substituted day only; not those that are declared an additional day, and it's not intended to interfere with that process.
PN1247
VICE PRESIDENT HATCHER: Thank you, Ms Svendsen.
PN1248
MS SVENDSEN: Thank you.
PN1249
VICE PRESIDENT HATCHER: We will now adjourn for lunch and we'll resume at 2 o'clock with Mr McDonald.
LUNCHEON ADJOURNMENT [12.58 PM]
RESUMED [2.02 PM]
PN1250
VICE PRESIDENT HATCHER: Mr Moore.
PN1251
MR MOORE: With the indulgence of the Commission, I just wanted to address one question your Honour raised with me before lunch, that I've just had a bit more thought about over lunch. It must just take me a few minutes. Could I do that?
PN1252
VICE PRESIDENT HATCHER: Yes.
PN1253
MR MOORE: Your Honour said to me or asked me whether it was the case that a worker otherwise to whom the proposed variation would apply if he worked Wednesday to Sunday would be better off in terms of public holidays than a Monday to Friday worker. I conceded that they would be. That remains the case but I think on reflection there are a number of matters which, I think, the bench should bear in mind which contextualise that outcome, if I might just put these matters before the bench.
PN1254
The first point is that insofar as a non-standard - that is a non-Monday to Friday - worker may be better off than a Monday to Friday worker in the manner that I've just summarised, the difference - they would only be better off by a small amount and I think that flows from the fact that there are only - there are few public holidays on weekends in relation to which substituted days or additional days are not declared. That is a general proposition which I think is sound. Easter Saturday is clearly one of those days and - - -
PN1255
VICE PRESIDENT HATCHER: Sorry, which day is that?
PN1256
MR MOORE: Easter Saturday.
PN1257
COMMISSIONER JOHNS: The Saturday following Easter?
PN1258
MR MOORE: In the middle of Easter.
PN1259
COMMISSIONER HAMPTON: The day after good Friday.
PN1260
MR MOORE: Sorry - yes, all right: the Saturday between Good Friday and Easter Sunday.
PN1261
VICE PRESIDENT HATCHER: Thank you.
PN1262
MR MOORE: That day is not a day in relation to which additional days are declared or days are substituted and I'm instructed that Easter Sunday is likewise, at least in two states - Victoria and New South Wales, I believe, and the ACT - falls into that category. The other holidays are largely - not 100 per cent - but largely substituted - have substituted days or additional days. But the point I'm making is that the differential in favour of the weekend worker is pretty limited because the advantage would be - over a Monday to Friday worker - confined to the public holidays that I've just sketched.
PN1263
That was the first point we wished to make.
PN1264
VICE PRESIDENT HATCHER: So the trend is with Christmas to have an additional day, not a substitute day, isn't it?
PN1265
MR MOORE: I think that is so, your Honour; I think that's right.
PN1266
VICE PRESIDENT HATCHER: So figuratively you could get the Easter holiday, which falls on the Saturday, Easter Sunday - that's two. If Christmas day fell on the Saturday you'd get that. That's three. Boxing Day - - -
PN1267
MR MOORE: That's an additional day.
PN1268
VICE PRESIDENT HATCHER: If it was an additional day but you'd get the additional day in a week as well. Boxing Day would be four and you'd get New Year's Day too, which would be five.
PN1269
MR MOORE: Just bear with me. That is possible in the event that those days fell on the weekend. That's so. The second point we make is that differential to the advantage of the weekend worker, if I can describe them in that way, is we would submit much smaller than the current inequity, which attaches to which the weekend worker is subject. We point just to two things: (1) in the statement of agreed facts as between the SDA and the ARA, the bench will recall that it sets out that in the last three years, the number of public holidays across the states that fell on Monday were in the range of between five and seven.
PN1270
So there are five to seven days that are Monday public holidays, typically, which are days which the non-Monday to Friday worker may not enjoy, in the event that they don't work Mondays as a public holiday. Of course again this depends upon the precise hour days that they work and to illustrate that we refer you to schedule 2 to our submissions, where having regard to the SDA witness evidence we've done a comparison, the bench will recall, between the number of days - public holidays that the witnesses had received a benefit - as against the hypothetical Monday to Friday worker. The differential, save for one instance where the outcome was the same, was between two and six in favour of the Monday to Friday worker against the weekend worker. So although here is a differential in the event that the variation was granted and in favour of the weekend worker we've just described, we say that that differential is of a degree substantially less than the disadvantage to which the weekend worker is subject at the moment.
PN1271
The next point we make - we looked at the list of awards. There is a list of awards attached to our submissions - schedule 1. But there is 47 awards that we've there set out which contain a clause of a similar class to the type we here propose. Looking at that table over luncheon, 18 of those awards have a clause that does not exclude public holidays falling on weekends. So in other words, that means that in relation to those awards, Monday to Friday employees would receive the benefit of the public holiday which was on the weekend.
PN1272
So that is perhaps - well, that would be the ideal that one would strive towards, where you have equal treatment between all employees and the first point we make in this regard is to identify that in fact 18 of these 47 awards or 18 of all - - -
PN1273
VICE PRESIDENT HATCHER: Sorry - it's 18 that do exclude or don't exclude?
PN1274
MR MOORE: If your Honour - that do not exclude.
PN1275
VICE PRESIDENT HATCHER: I think it's more than that.
PN1276
MR MOORE: I'm sorry, there's a further qualification: there's 18 that do not exclude and also apply to part-time and full-time employees - - -
PN1277
VICE PRESIDENT HATCHER: Okay.
PN1278
MR MOORE: - - - and are not limited to RDOs.
PN1279
VICE PRESIDENT HATCHER: Right.
PN1280
MR MOORE: Sorry, this has been a quick bit of calculation or impression over the luncheon break. So there are 18 of the awards listed in schedule one, which apply to part-time and full-time, do not exclude public holidays which fall on the weekend and where the entitlement is not just limited to RDOs. So that would be - from my client's perspective - the ideal outcome that one would strive for but the Commission will be aware that in the application or in terms of the variation sought it excludes - it is proposed to exclude the operation of a variation in relation to Saturdays and Sundays. Now, the other clauses in schedule 1 are of different provision and that takes us into the territory of some differential treatment between Monday to Friday workers and those who might work over the weekend.
PN1281
The simple point that we make is that while one quite understandably would strive for consistency in treatment between employees, the modern award system as it currently stands in relation to these awards does not achieve that. There are some awards where there is a difference and as I've sought to explain a few moments ago, the effect of the SDA's proposed change would be to result in there being a difference. There currently is a difference in the treatment of the two groups. Certainly it would be to the advantage of weekend workers but only to a marginal extent.
PN1282
VICE PRESIDENT HATCHER: The problem is so far as your case is built on equality of treatment, isn't it?
PN1283
MR MOORE: Well, it's built on the concept of fairness. The implementation and realisation of fairness is of course a work in progress. The SDA has not brought an application in terms which would not exclude the operation of a provision to Saturdays and Sundays. The view was formed that that might be a bridge too far. But in any event, that ought not be a basis for denying the relief sought in circumstances where it is justified - where there is a substantial inequity to the disadvantage of the non-standard worker.
PN1284
Can I make - I'm conscious that I've intruded further in others' time - the time of others. There are two other contextual points just to bear if the Commission might bear these matters in mind: there are two other disadvantages for weekend workers who - when public holidays fall on the weekend that should be borne in mind in the bench's assessment. Firstly, the compensation for the weekend worker for working on a public holiday is less than the compensation that a Monday to Friday worker would receive in relation to Monday to Friday public holidays because they - of course the public holiday on a weekend is at a time when they would otherwise be entitled to penalty rates; whatever the applicable penalty rates are at the weekend.
PN1285
Their benefit in working a public holiday on the weekend is relatively less than the benefit for a Monday to Friday worker who works on a public holiday on a Monday to Friday because the employee receives only the difference between the public holiday penalty rate and whatever they would have otherwise been earning by way of weekend penalty rates. Your Honour does not appear convinced by that submission.
PN1286
VICE PRESIDENT HATCHER: It's an issue about the quantum of the penalty rate. I don't understand how it relates to your application.
PN1287
MR MOORE: Well, it's a broader aspect of disadvantage. We're talking about fairness here, your Honour, and it's relevant, in our submission, for the Commission to take into account broader aspects of disadvantage which might be relevant and one aspect of disadvantage we say is relevant is that the weekend worker who works on a public holiday on the weekend receives the public holiday penalty rate but they would have been receiving a higher than ordinary rate in any event. So their compensation for working on that day is less than the Monday to Friday public holiday. Lastly and in the same vein, it is also, we say, relevant in the overall assessment of fairness for the Commission to note that if the weekend worker takes the weekend public holiday off, they only get paid ordinary time in taking that day off, pursuant to section 116 of the Act.
PN1288
So that - taking that public holiday off on a Sunday, they therefore suffer a reduction in their take-home pay than what they would have received if they had worked that Sunday and got Sunday penalty rates. If the Commission pleases, they were the additional submissions.
PN1289
VICE PRESIDENT HATCHER: Thank you.
PN1290
MR MOORE: Thank you.
PN1291
VICE PRESIDENT HATCHER: Mr McDonald.
PN1292
MR McDONALD: Your Honour, it's Mr Nguyen. If I could just answer a question which you asked me before, which is whether the AMWU's awards had the clause of the type sought by the SDA: the answer is yes, there are similar clauses in our - not only manufacturing but also food and graphic arts awards.
PN1293
VICE PRESIDENT HATCHER: Thank you. Mr McDonald.
PN1294
MR McDONALD: If it pleases - your Honour, Commissioners: in our opening we set out two changes that we seek to the registered and licensed clubs award. The first of those is in relation to clarifying the operation of the Christmas Day loading provisions. The second one deals with the entitlements in relation to employees rostered off and to change the clause so we say that it would conform with the requirements of the NES. Could I say in relation to the first issue, that appears to be non-contentious and Mr Bull, when there was the initial discussion about how things might be dealt with, didn't seem to have any objection - - -
PN1295
VICE PRESIDENT HATCHER: I don't know what it seems to be: does he agree with it or not?
PN1296
MR BULL: You want me to say something?
PN1297
VICE PRESIDENT HATCHER: Well, the answer is yes or no. Is it consented to by United Voice or not? That's all I want to know.
PN1298
MR BULL: No - I described it in my document as mean-spirited.
PN1299
VICE PRESIDENT HATCHER: Right, thank you.
PN1300
MR McDONALD: In which event I'll seek to deal with that, albeit briefly. There's a folder of authorities to which I'll make reference: the three grey folders, one for each of the members of the bench. This clarification in relation to the Christmas Day loading arises because it had been the case that when Christmas Day fell on a weekend there would be a substitute day that would fall on a week day and because Christmas Day would then be paid as a normal day there was an extra loading that had been agreed to of 50 per cent on that day.
PN1301
What has changed, though, since that provision - - -
PN1302
VICE PRESIDENT HATCHER: Agreed to by who?
PN1303
MR McDONALD: Well, it was something that had been agreed to be inserted into the registered and licensed clubs award when it was made.
PN1304
VICE PRESIDENT HATCHER: Well, it was something the Commission determined.
PN1305
MR McDONALD: Yes, without objection - but something that has changed since that time, as I referred to in the opening submission, was that in respect of Christmas Day in New South Wales and in other places where it falls on a weekend it's now been made an additional day. So the problem that would arise under the award would be there would be an additional loading on top of the public holiday loading and that was something that was never intended when the clause was inserted into the award. A similar provision has been dealt with in various other awards by the Commission and at the second-last tab there is a decision [2013] FWC 7840 in relation to Baking Industry Association Restaurant and Catering and OR's in relation to Restaurant Industry Award.
PN1306
If I could take the Commission to paragraph 296 and following: at 296 the same proposal that we make was also proposed by VECI and is there set out. Then at 297 it's said that VECI submitted that the current award provision was ambiguous, referred to the public holidays Full Bench, consideration in the context of the hospitality award and that that provision was changed. Then at 298 it was said that there was no opposition to the proposed variation, noting that there are various parties, including United Voice, in that matter and her Honour says:
PN1307
I note in the variation proposed by the ACTU public holidays case the ACTU accepted that clauses of this nature were intended to require that the penalty be paid when Christmas Day is not a prescribed public holiday and this was accepted by the Full Bench of Fair Work Australia in 2010.
PN1308
MR McDONALD: Her Honour was prepared to make the change that was sought. In effect we say it's a more generous provision than the usual in that in circumstances where there are two Christmas Days, in effect, they would both be recognised as public holidays but there wouldn't be additional loadings paid. We say that's consistent with what the intent of the provision was and consistent with the way that the Commission has treated it in similar circumstances.
PN1309
The second variation that we seek in relation to the situation where someone - - -
PN1310
VICE PRESIDENT HATCHER: Sorry - is that advanced as correctly an ambiguity or is it a substantive change? Here it was treated as correction of an ambiguity, I just noticed.
PN1311
MR McDONALD: Yes, we say it does correct an ambiguity.
PN1312
VICE PRESIDENT HATCHER: Right.
PN1313
MR McDONALD: The additional days of Christmas were not something that was in the mind of people when the award was originally made. In the opening I referred to a document which summarised some of the - which had extracts from various second readings speeches, where state legislatures had moved to try and deal with the situation of weekend workers and entitlements to public holidays. On the first page of that in the extract, the second reading speech in relation to New South Wales, it's said that the last paragraph of that extract:
PN1314
In practice that will mean that from 2012 when Christmas Day falls on a Saturday or Sunday that day will be a holiday as well as the following Monday or Tuesday respectively. Similarly when Boxing Day falls on a Saturday or Sunday that day will be a holiday, as will the following Monday or Tuesday respectively.
PN1315
MR McDONALD: We don't say that's necessarily uniform but we say that a similar situation prevails in a number of states and territories. But that came in when the public holidays act came in in 2010. It took effect on 2012 but of course related to - when the modern award was put in place in 2010. In relation to the second provision which perhaps is more contentious, is that the provision in the award where a full-time employee whose rostered day off falls on a public holiday, that they would receive an additional day's pay for another day off. We seek the removal of those provisions.
PN1316
We filed a submission in support of the changes. We continue to rely on that, although could I just make two very - two changes to that: the first is at paragraph 30, where Rangiah J is not correctly named in the opening sentence of paragraph 30. Also in relation to paragraph 33, where you refer to a provision maybe perhaps could be supplemental to the NES. As I foreshadowed yesterday, the position that we take is that if the effect of the provision is to exclude the NES, then it is to no effect, whether or not it's supplementary. I'll expand on that during the course of the submissions.
PN1317
Now, if I could perhaps start by going to some brief submissions about the operation of the public holiday provisions of the Act which are found at Division 10, public Holidays, sections 114 to 116. I think it serves well to reflect first on the nature of the public holiday entitlement under the Act. It's not like, for example, annual leave where you get four or five weeks. It's not a case of you get your 13 or 16 public holidays whatever state you're in and you're entitled to them all. It's very - it's a different type of entitlement, an entitlement to be absent on a public holiday or receive pay in respect of that absence where it was part of your ordinary working hours.
PN1318
We say the entitlement isn't one to give you every public holiday. In relation to section 114(1), it sets out that the employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday and it sets out what might be considered reasonable in relation to those - how those requests might be dealt with. In section 115 it sets out what the particular public holidays are. It sets out when those days will be commemorated. Then in (b) it sets out that there can be any other day prescribed under a law of a state or territory and we've gone to that, how there has been this move to prescribe other days, other than those set out, in particular to take account of the circumstances of weekend workers. Many of those moves were made following the introduction of that provision in the NES in 2010 by state governments.
PN1319
There is an ability in section 115 for there to be substitute days under state or territory laws and substituted public holidays under modern awards and enterprise agreements. But there is no particular provision which says you can add additional days and the Commission has generally rejected any applications that do so. In relation to section 116, that provides that there is an entitlement to be absent on a day that's a public holiday, that being a day that's set out in section 115. If that is part of the employee's ordinary hours then they receive an ordinary day's pay.
PN1320
It's reinforced - it's clear, we say, in the terms of section 116 but reinforced in any event by the note that the idea of the clause is to provide that people are paid for an absence on a public holiday that is part of their ordinary working hours but not otherwise. That position I don't think is particularly controversial. It was a position that seems to have been accepted by the Full Bench in the penalty rates case, if I can just go briefly to that, which is the last tab of the grey folder. At paragraph 1,895 on page 423 of the Full Bench decision [2017] FWCFB 1001, the Full Bench states at section 116:
PN1321
Entitles an employee to payment when absent from work on a day or part-day that is a public holiday. An employee is not entitled to any payment for absence on a public holiday if they would not ordinarily have worked on that day.
PN1322
MR McDONALD: Now, what is also of significance is that if we talk about public holidays, we're talking about public holidays as set out in section 115, which are presumably the public holidays which are set out in 116 and in relation to the award, the award defers to the Act in the way - expressly so - in relation to public holidays. So it doesn't have a separate prescription. It relies completely on the public holidays that are in the Act. In relation to the position set out by the Full Bench in that case, there have been other decisions to similar effect.
PN1323
I refer in particular to Rangiah J's decision in Queensland Nurses' Union of Employees v Ramsay Health [2016] FCA 1486, which is the fourth tab in that grey folder. If I could just take the Commission briefly to paragraph 24 to 26 of that; his Honour indicates at paragraph 24 that section 114 confers an entitlement qualified by 114(2) on an employee to be absent from his or her employment on a public holiday and that operates on the tacit assumption that the employee would otherwise be required to work under the terms of his or her employment on that day otherwise there would be no point in conferring a statutory entitlement to be absent:
PN1324
Further, when section 116 applies the employer is required to pay the employees the employee's base rate of pay.
PN1325
MR McDONALD: It also - his Honour goes on at paragraph 25 to refer to the words, "in accordance with", and say that at paragraph 26 that:
PN1326
For the purposes of section 116 of the Act an employee will be absent from his or her employment on a public holiday in accordance with provision 10 if the employee is entitled to be absent under the entitlement created by section 114.
PN1327
What we say is that position is really uncontroversial and it's consistent with what was intended by the legislature in putting that provision that's set out in the second reading speech - sorry, in the explanatory memorandum, which is found at the first tab of the grey folder and if I can refer the Commission to clause 461 on page 76 of the explanatory memorandum, where in relation to clause 116 it says that an employee is not entitled to any payment for absence on a public holiday if they would not have ordinarily worked on that day.
PN1328
We say that the effect of those provisions is to identify particular days that are public holidays - to identify the actual dates of those public holidays will fall. It's not really envisaged that there would be any supplementation or changes in relation to that.
PN1329
VICE PRESIDENT HATCHER: Why not?
PN1330
MR McDONALD: Because we say it's prescribed in the - because in terms of how the legislation reads, there's - to put a public holiday on a day other than the days that are listed would be to exclude the operation. So, for example, the Commission decided that Christmas Day should instead be in July that would be inconsistent with the Act; it would negate the effect of the Act, which says that Christmas Day should be on 25 December.
PN1331
VICE PRESIDENT HATCHER: Yes, but that's not what we're talking about.
PN1332
MR McDONALD: Well, it is to this extent, your Honour - that if one says, well, the employee was rostered off on Christmas Day, it wouldn't have been a day that they ordinarily worked, it be that they take that day off in July, let's say, when they have their holidays, maybe tack an extra day on. So in that circumstance the benefit of the public holiday is being shifted to another day and in effect, the date of the public holiday has been changed from - - -
PN1333
VICE PRESIDENT HATCHER: But on this scenario there is no benefit for the public holiday under the Act.
PN1334
MR McDONALD: I'm sorry, your Honour?
PN1335
VICE PRESIDENT HATCHER: Well, under this - where 116 operates and you don't work on the day, there is no benefit conferred by the Act.
PN1336
MR McDONALD: Yes.
PN1337
VICE PRESIDENT HATCHER: There is no benefit.
PN1338
MR McDONALD: But what we say is the award seeks to give a benefit contrary to the Act.
PN1339
VICE PRESIDENT HATCHER: How is it contrary to the Act?
PN1340
MR McDONALD: Because while the Act says that you don't get a public holiday unless you work on that day, the award then says you do a get the benefit of the day, even if you wouldn't ordinarily be rostered to work.
PN1341
VICE PRESIDENT HATCHER: That's an additional benefit.
PN1342
MR McDONALD: Well, with respect, we would say it goes further than that. In effect, it excludes the operation of the NES in two ways: first off, it shifts the public holiday from the day that it set out in section 115 but then it says that even though section 116 says that you don't get the benefit of the public holiday if you wouldn't ordinarily work, the award has the effect of doing the opposite.
PN1343
VICE PRESIDENT HATCHER: Section 116 creates an entitlement and the award creates an entitlement in addition to that entitlement. Let me put it this way: Mr Moore has taken us to a Full Bench transition review decision which says your proposition is incorrect.
PN1344
MR McDONALD: Your Honour, with - reference has been made to that but I'm not sure whether that, in terms of talking about supplementation that may very much depend on the type of provision that's being talked about. In relation to - there seems to be - - -
PN1345
VICE PRESIDENT HATCHER: How come there is a provision there relevantly different?
PN1346
MR McDONALD: Well, we say there are a number - when these additional days off provisions have been referred to, there's provisions, for example, in awards where someone has accrued their rostered day off under the 19-day month-type approach. SO they've accrued that time and it falls on a public holiday it's said that shouldn't happen. There are arrangements in relation to rostering about that. That's the most common type of provision. I think what's been put by Mr Moore in terms of these great range of awards that have these provisions about rostered days off are very different provisions to the ones that are here under consideration.
PN1347
VICE PRESIDENT HATCHER: But - - -
PN1348
MR McDONALD: If I could take the Commission perhaps to - - -
PN1349
VICE PRESIDENT HATCHER: - - I think we're getting off the subject. How was the claim considered in the transitional review decision relevantly different from the clause which currently exists in the common law? Does it make a difference to the proposition that the NES is not excluded?
PN1350
MR McDONALD: Yes, I don't think it's - I don't think we could identify a marked distinction but I don't think - the argument wasn't considered in that case as it has been in others in relation to the effect of excluding the operation of the NES and whether the effect of excluding the operation of the NES can still mean that a provision can be supplementary. If I can perhaps take the Commission to an example of a Full Bench decision which was directed at that particular issue: it's a decision of 8 May 2015 in relation to the alleged NES inconsistencies. That's at the fifth tab of the grey folder.
PN1351
VICE PRESIDENT HATCHER: What's the decision?
PN1352
MR McDONALD: The decision is the Four-Yearly Review of Modern Awards Alleged NES Inconsistencies [2015] FWC FB 3023. The relevant parts are at paragraph 35 and 37. The Commission will recall this was a case about whether there were inconsistencies with the NES and terms of awards and one that was identified and which this discussion arises in the context of was a clause that provided that if there was a transfer of the business then the new employer would take on the liabilities of the old employer which was inconsistent with the provisions of the Act which enabled the new employer to not necessarily accept those entitlements.
PN1353
Then at paragraph 37 of the decision the Full Bench says that:
PN1354
We consider that the modern award provisions in question generally are clearly inconsistent with section 91(1). Section 55(1) requires relevantly that a modern award not exclude the national employment standards or any provision of the national employment standards.
PN1355
MR McDONALD: They then refer to section 91(1) being a provision of the NES and the modern award provision excludes section 91(1) in the sense that in their operation they negate the effect of the subsection so this is what happens in relation to the public holiday provisions.
PN1356
VICE PRESIDENT HATCHER: Well, it's not because paragraph 63 of the transition review decision is directly on point for this.
PN1357
MR McDONALD: Your Honour, we do see that - we don't understand that this argument in relation to the exclusion of the NES had been put or was put up for consideration in that case.
PN1358
VICE PRESIDENT HATCHER: Whether it was put up, it was - the full obviously thought about it and they said this was a provision which was supplementary.
PN1359
MR McDONALD: Yes.
PN1360
VICE PRESIDENT HATCHER: So that's - why shouldn't we follow that decision? You say that's wrong?
PN1361
MR McDONALD: Yes, we say - well, we say that it was simply the case that the argument wasn't put in relation to the exclusion of the NES.
PN1362
VICE PRESIDENT HATCHER: So what does paragraph 63 mean, then?
PN1363
MR McDONALD: Sorry, paragraph - - -
PN1364
VICE PRESIDENT HATCHER: - - of the transitional review decision, it's in your folder - - -
PN1365
MR McDONALD: Yes, yes.
PN1366
VICE PRESIDENT HATCHER: - - - at the previous tab. It seems to me to be directly on point and we would have to follow it, unless you persuaded us it was actually wrong.
PN1367
MR McDONALD: Well, your Honour, we say it's - we do say that the matter wasn't one that fell for consideration in that case. The issue about whether it excluded the NES is not something that the Commission was asked to rule upon. We obviously recognise that that decision is there but we say that the Commission was not invited to consider this point.
PN1368
VICE PRESIDENT HATCHER: But whether it was invited or not, it did, in paragraph 63, did it not?
PN1369
MR McDONALD: It did, your Honour. Just going back to this provision that - in paragraph 37 where the Full Bench says:
PN1370
A provision which operates to exclude the NES will not be an incidental, ancillary or supplementary provision authorised by section 55(4).
PN1371
MR McDONALD: We say in the circumstances of the club employees' award, the effect of that provision would be to negate the effect of the NES in two ways: one is that it seeks to simply move the public holidays that are set out in section 115 and the other is that it does the opposite of what section 116 says.
PN1372
VICE PRESIDENT HATCHER: But it doesn't negate section 116. It acts in the sense that if someone has an entitlement under section 116, nothing in the clubs award derogates or negates that entitlement, does it? It only deals with persons who don't have that entitlement.
PN1373
MR McDONALD: Perhaps, your Honour, that may go to the reading of section 116. We say that the authorities and the notation, the explanatory memorandum, all point to an interpretation of section 116 that was directed at employees being entitled to be absent on the day that they would ordinarily work and to receive payment for the day.
PN1374
VICE PRESIDENT HATCHER: Yes.
PN1375
MR McDONALD: What's happening here is that the opposite is being said, is that if you don't ordinarily have hours on that day, contrary to section 116 you should receive the benefit of the public holiday in terms of the extra pay.
PN1376
VICE PRESIDENT HATCHER: How is it contrary to section 116?
PN1377
MR McDONALD: Because section 116 has, if you like, two aspects to it. One is that it sets out the entitlement but the entitlement as set out also excludes an entitlement for the opposite to occur. So it gives the entitlement if you would have ordinary hours and it means - it says to the effect that you wouldn't have the entitlement if you wouldn't have those ordinary hours.
PN1378
VICE PRESIDENT HATCHER: Yes.
PN1379
MR McDONALD: So following that - - -
PN1380
VICE PRESIDENT HATCHER: That doesn't prohibit it. It doesn't say, "You must not be paid a public holiday if you don't' work on the public holiday." If it said that you'd be excluding it.
PN1381
MR McDONALD: Yes.
PN1382
VICE PRESIDENT HATCHER: This is nothing of the sort.
PN1383
MR McDONALD: With respect, your Honour, we would say otherwise. We would say that there may be - certainly the note makes that very clear and I accept that there's a question about whether you would have regard to the note interpreting the legislation but for the ordinary person reading it they would sort of think that the note might have some import and that is the effect of the note. We say that in terms of providing what the entitlement is the converse is true as well, that if you don't meet that criteria then the effect of the provision is not to give you the benefit of the public holiday.
PN1384
This goes back to the character of the public holiday provisions, which we say are very much directed at not necessarily giving a block of 13 to 16 days off a year like annual leave. It's to give a public holiday, to give the right to be absent on a public holiday if you would otherwise be working on that day and you might otherwise miss out on the celebrations that go with that day.
PN1385
COMMISSIONER HAMPTON: Mr McDonald, just in relation to transitional decision, whilst I would accept that the observations which you and the Vice President have concentrated on are reasonably cautionary and they don't - ultimately the Full Bench wasn't required to determine the issue. The point that was actually being considered was actually in the paragraph above. The proposition that you advance was expressly advanced by Ports Australia and that is why the Full Bench actually turned its mind to the issue.
PN1386
MR McDONALD: Yes, Commissioner, but I don't understand the - I'll go back to it - but I didn't understand Ports Australia's submission to go so far as to excluding the NES. So I think their submission was that it was inconsistent with - - -
PN1387
COMMISSIONER HAMPTON: Well, contrary to section 116 is the way the bench has understood their submission to be.
PN1388
MR McDONALD: Yes, we say it could be - something might be - it might exclude the NES to the effect that it negates it. Something might be inconsistent with the NES. It may not negate it but it might be different or then something might then be supplementary. We say it falls into the earlier category.
PN1389
COMMISSIONER HAMPTON: Isn't it more about the scheme of the Act, rather than whether or not it prevents the NES operating?
PN1390
MR McDONALD: Well, I think that it - I suppose there are two things that flow from it: one is that if - in terms of the scheme of the Act, we say that it seeks to comprehensively deal with public holidays. When public holiday falls, what happens if you're absent on a public holiday? It doesn't really - the way that it's worded doesn't really give any room for other provisions to be inserted in relation to absences on public holidays. For example, there may be some minor supplementary things but it purports to be comprehensively dealing with that.
PN1391
It's of course different in relation to payment on particular public holidays. But then there is also the issue of discretion. Even if the Commission is against me in relation to it being - a lot of it is supplementary, that is obviously not an end to the matter when there would be a question as to whether the provisions should be supplemented. But even if one accepted that it wasn't exclusionary, we do say it wouldn't be - it's certainly inconsistent with the NES and one would - in our submission it's appropriate that the award provisions be consistent with the NES.
PN1392
VICE PRESIDENT HATCHER: Inconsistent - how is it inconsistent if it's not exclusionary?
PN1393
MR McDONALD: Well, I think that goes to your Honour's point that maybe it may have the effect of limiting the circumstances to people who work on the day. Your Honour raises the point, well, what happens - it doesn't necessarily say that if someone doesn't have ordinary hours that we can't give them a public holiday on that day as a supplementary provision. As to - we would respectfully submit that section 116 is wider in its import. It doesn't only give that benefit but it seeks to exclude the operation - - -
PN1394
VICE PRESIDENT HATCHER: I understand the exclusion argument.
PN1395
MR McDONALD: Yes.
PN1396
VICE PRESIDENT HATCHER: You put the exclusion argument. I thought you were putting some different argument now that it was inconsistent even if not exclusionary.
PN1397
MR McDONALD: That's right. We would submit that if it's not exclusionary it's still inconsistent with the provision because if ones goes to section 116 and perhaps for convenience purposes just looks at the note that says if the employee does not have ordinary hours of work on the public holiday the employee is not entitled to payment under this section. What the award provision does is do the exact opposite so to that extent it would be inconsistent and in the part-day public holidays case this issue arose and the Commission's approach was to try and make that part-day holiday provisions consistent by conforming with section 116 that you would only get the benefit of that if you were actually rostered to work at that time or would ordinarily have hours on that day.
PN1398
Just in relation to that approach on the part-day public holidays, I don't take the Commission to it, but the decision of the Full Bench's [2013] FWC FB 8938 and at paragraph 33 it deals with this issue of consistency with section 116 in relation to employees only having the benefit of the part-day public holiday if they would have ordinarily had hours of work on that day.
PN1399
COMMISSIONER HAMPTON: Mr McDonald, that decision doesn't say - it doesn't actually go to the point that you were raising though, does it? All it's saying is that that provision would be consistent with the NES. It doesn't say that the Commission couldn't have gone further if it wanted to because it wasn't a live issue.
PN1400
MR McDONALD: I accept that, Commissioner. If the Commission finds that it would be not an exclusionary provision and only supplementary, we would still say that it would be inappropriate to retain this provision in the award. We referred in the opening submission to the position taken in relation to the Airport Employees' Award [2010] FWA FB 286 where it was said at paragraph 11 that:
PN1401
The NES deals with public holidays on a comprehensive basis and prescribes uniform minimum conditions. It would not be appropriate to supplement these provisions simply to maintain more generous arrangements.
PN1402
We say that should be the approach here.
PN1403
VICE PRESIDENT HATCHER: What do you say about the public holidays test case?
PN1404
MR McDONALD: Well, we say that events have - there has been a number of events since. First off, the introduction of the NES, which sought to deal comprehensively with the situation of what the public holidays would be and what should happen in relation to absences on public holidays. Had the legislature wished to simply carry over the test case or otherwise leave it to that case to operate if it be a test case, then they could have done so but they did set out a regime. Because of that regime state governments have then sought to pick up on the legislative regime in the NES for public holidays and set about dealing with the situation of weekend workers.
PN1405
So you get this difficult situation where because those provisions have been in, the state governments have acted perhaps to give effect to similar considerations that may have been in the minds of members of the Commission in relation to the public holiday case back in 1995. We say that it's not - there is a real danger with this that you've got state governments doing something to deal with public holidays in relation to weekends. It's very clear that they've turned their minds to it in putting in these further provisions. Then if the awards system then adds on to that and says, "Well, if you're rostered off on one of those days, whether they be the NES days or the extra days that state governments have got, then you also get the provision."
PN1406
You get this multiplication effect, where not only are the public holidays increasing by some 30 to 60 per cent, depending on what state you're in since 2010, you've also got this effect of then being more public holidays and then more chance of getting extra days because you're not going to be working them. So if you're a Monday to Friday worker and there are these extra public holidays on weekends you're going to get the benefit of each of those. So we say that there is this - it's not just a neutral effect, there is almost this multiplication effect which arises from the award system tacking on things to the NES.
PN1407
In relation to the supplementation of the NES, the Commission has been particularly careful in circumstances where there has been a question about whether it's enhancing something on a general basis or looking at a specific issue in a specific industry. The second tab is the Award Modernisation Decision [2009] AIRC at 345. At paragraph 48 of that decision, I refer to the last half where it talks about issues in relation to public holidays. The Commission says:
PN1408
We adhere to these views. We think that - - -
PN1409
VICE PRESIDENT HATCHER: Sorry, what paragraph?
PN1410
MR McDONALD: Paragraph 48.
PN1411
VICE PRESIDENT HATCHER: Yes.
PN1412
MR McDONALD: Halfway down, referring to public holidays and other leave, the Full Bench says:
PN1413
We think that we should give proper weight to parliament's decision to regulate minimum standards in relation to the matters covered by the NES. It cannot have been parliament's intention that the Commission could make general provision for higher standards.
PN1414
MR McDONALD: Now, we say in relation to weekend work - - -
PN1415
VICE PRESIDENT HATCHER: The same bench put these provisions in 47 modern awards so now does that align itself?
PN1416
MR McDONALD: Well, your Honour, we say that it did not put these provisions in 47 modern awards. What we say is that in relation to those awards that are highlighted - and this is borne out in AiG's analysis - that very few of those awards are of the type that the provision that was considered here. In relation to the club award, this provision has not been one that has been the subject of consideration by the Commission in any extensive way. It was put in without objection at the time that the award was made so the Commission has never had to rule on the question.
PN1417
That is - the problems with the clause have been or the effect of the clause has been exacerbated by this issue with state governments and so forth, which has meant that the circumstances in 2010 have changed very significantly to what they are now.
PN1418
VICE PRESIDENT HATCHER: Yes, but you're not trying to address that discrete problem. You want to abolish the whole thing.
PN1419
MR McDONALD: Yes. In relation to the approach of the Commission in actually supplementing the NES - there was a convenient summary in the family and domestic pilots leave clause decision of the Commission at [2017] FWC FB 1133. I don't go to that but I - those cases are summarised in relation to supplementation of the NES at 105.
PN1420
VICE PRESIDENT HATCHER: Which page - sorry.
PN1421
MR McDONALD: That's at the sixth tab, your Honour.
PN1422
VICE PRESIDENT HATCHER: Which paragraph?
PN1423
MR McDONALD: From paragraphs 105 to 114. It's actually just a summary of decisions where the Commission has been reluctant as part of the award modernisation process to supplement the NES. We say that what we're asking for is quite conventional, has been the usual approach in relation to the NES, not to supplement it, particularly when there is no particular reason why it should be supplemented in the case of the club industry as compared to other industries. Other industries also have weekend work if that be the reason for such a provision.
PN1424
We submit that the change that we seek to the award is consistent with the award modernisation objective in section 134 and that it's also consistent with section 138 in that such a provision is not necessary in the award. In relation to section 134, for a provision to meet the modern awards' objective, it must be fair, relevant and a minimum safety net. We say that it meets neither of those categories. If I could take the Commission briefly to the penalty rates case where there was a brief discussion about what the meanings of the terms, "fair and relevant", are. That was at paragraph 1,948 at the last tab of those documents.
PN1425
In the second sentence of paragraph 1948 it says:
PN1426
As mentioned earlier, fairness in this context is to be assessed from the perspective of the employees, employers covered by the modern award in question. The word, "relevant", in the context of section 134(1) is intended to convey that a modern award should be suited to contemporary circumstances.
PN1427
MR McDONALD: We say in relation to fairness that - we say that it's not a fair provision to have a situation where if someone wouldn't ordinarily work a public holiday that they should receive more pay as a result of that. So it's not a - as we've discussed a normal employee who works five days a week, a public holiday falls on one of those days, gets five days' pay. But if they're not rostered on a public - if they're not rostered on a day which is a public holiday in that week they get six days' pay. We say it's hard to see where the fairness of that is.
PN1428
There is no particular disutility for the employees and in those circumstances we would submit that it's just an unnecessary cost to have such a provision. I think the union puts it in their submissions that the purpose of the provision is something of a deterrent so that it would stop people re-rostering employees to miss out on a public holiday. But we say that the Commission on many occasions has rejected the idea that there should be some sort of deterrent provision or that deterrents should be a basis upon which to fix compensation.
PN1429
VICE PRESIDENT HATCHER: Well, particularly for workers who are, say, Tuesday to Saturday workers - that is don't work on Mondays - the effect of the grant of your claim, just doing some rough maths, could be that someone on $40,000 a year loses $1,000 a year, which is by any measure a significant pay reduction.
PN1430
MR McDONALD: There may be a reduction but then there would be the question - - -
PN1431
VICE PRESIDENT HATCHER: It's not may be - there will be, won't there? That is people who have had this benefit since the award was created will have a significant reduction in pay.
PN1432
MR McDONALD: Yes, but what we would - well, it depends on whether the clause is effective. If it would exclude the NES then it would be of no effect. But assuming that the award is effective then it's fair to say that the employees have had the benefit of something very significant in relation to these rostered provisions which no one ever intended. I don't think anyone could have foreseen what the state governments were going to do in relation to the exercise of their powers to proclaim extra public holidays and so forth.
PN1433
So those employees have - - -
PN1434
VICE PRESIDENT HATCHER: How is it not intended? That is, it was fully intended they get paid for holidays they didn't work.
PN1435
MR McDONALD: But what did change, your Honour, was that the number of public holidays changed. So what we say is this type of provision goes back to the days of the bank and bank holidays act, where there was a concentration on what happened Monday to Friday. That condition - that continued to regulate awards, at least in the state system, with some addition from the Industrial Relations Commission until after the award came in when in New South Wales at least there was a public holidays act that was introduced. But the circumstances at the time of the bank and bank holidays act, when there weren't any public holidays on weekends, has now changed where that has been directly considered. What we say is this is completely an unintended consequence on any view of the provision in that employees would get all these extra days.
PN1436
VICE PRESIDENT HATCHER: I understand that is directed at public holidays on weekends, but your application goes much further than that. I can understand the point if it was directed to that particular problem, but it's not.
PN1437
MR McDONALD: Yes, it is two-fold. It is directed at that, but I think that provision has highlighted the problems that the type of pre-modern award type situation doesn't work in the context of there being the NES. So it's two-fold, but we say they are intertwined provisions and that it highlights the problem and it has exacerbated the issue.
PN1438
VICE PRESIDENT HATCHER: How does the significant reduction in pay that would follow, how is that to be taken into account when one applies the modern awards objective?
PN1439
MR McDONALD: In terms of the payment, it doesn't seem to be a payment in the normal sense of some reward for services or anything like that, it's just an amount that's paid.
PN1440
VICE PRESIDENT HATCHER: It doesn't matter what you call it, the money still is the same colour and has the same value.
PN1441
MR McDONALD: Yes.
PN1442
VICE PRESIDENT HATCHER: And the proposal would take it away.
PN1443
MR McDONALD: Yes.
PN1444
VICE PRESIDENT HATCHER: The question is how would that reduction in pay be brought to bear in applying the modern awards objective having regards to the needs of the low paid and those sort of matters?
PN1445
MR McDONALD: I think it may affect low paid employees, that they would miss out on that. Whether it should be regarded as pay in the ordinary sense is something that I will address shortly, but, in terms of that, that has got to be balanced against whether the provision meets the modern awards objective in other circumstances.
PN1446
What we say is that it's in addition to the NES - we have made those various arguments - we say it is an unnecessary cost on employers and shouldn't be retained simply because it may mean that some employees would lose a payment that we say they probably shouldn't be entitled to had this provision been given consideration in light of the NES and in light of the actions of state governments and which we are doing now. That, of course, is a consideration for the Commission, but it would certainly not be an overwhelming consideration, in our submission.
PN1447
VICE PRESIDENT HATCHER: It might mean, for example, if your claim was otherwise perceived to have merit, it may require transition or grandfathering or red-circling of all existing employees or anything like that.
PN1448
MR McDONALD: Yes.
PN1449
VICE PRESIDENT HATCHER: Do you have any ideas along those lines?
PN1450
MR McDONALD: Not at the moment, your Honour, but if I may take that on notice and take some instructions in relation to that?
PN1451
VICE PRESIDENT HATCHER: All right.
PN1452
MR McDONALD: As we have submitted, we say it is not a relevant provision consistent with modern awards objectives in that it doesn't take into account the operation of the NES and it's not a minimum safety net provision because it provides a significant benefit over and above the minimum safety net of awards.
PN1453
In addressing the other considerations in section 134(1), we say that in relation to (a) - we have just addressed that with the Commission - that would be a relevant consideration, but we would say that other factors become more important, such as the cost to employers and the fairness of the provision.
PN1454
In relation to (b), the need to encourage collective bargaining, we say the type of provision is more something suitable to a paid rates award type concept, it's not a minimum safety net, and to that extent would not encourage collective bargaining. (c) would be neutral. In relation to (d) about promoting flexible modern work practices and the efficient and productive performance of work, we would say it would be contrary to that because it has work practices which haven't caught up with the National Employment Standards or the various other changes that have happened to public holidays.
PN1455
In relation to the effective and productive performance of work, we've brought evidence about the impact of these provisions on clubs, that in the club industry, the public holiday periods are very significant periods in terms of the services that they offer to members and they need to be available and there are a number of things that add to the costs in relation to public holidays at that time.
PN1456
If I can go briefly to the evidence of Mr Trimarchi on that point. In the statement of Anthony Trimarchi, he talks, at paragraph 2, about the numbers of clubs, most of which are to be regarded as sporting/recreation type clubs and they are there for the community that they serve and they need to be available to the community in public holiday periods. He gave evidence about the more liberal trading in relation to public holidays, which has been historically forged from a recognition that clubs need to be available to their members at all times.
PN1457
He also indicates, at paragraph 10, that clubs tend to be a focal point for community or sporting events, which are often held on or around public holidays, and gives the example of Anzac Day for RSL clubs and says that because clubs can offer a safe, affordable atmosphere, they tend to attract members for celebrating days like Christmas Day and Easter Sunday and are often important in catering for older Australians on such days.
PN1458
At paragraph 11, he goes through the various facilities that are offered by clubs. In relation to bowling greens, for example, there's over 3000 bowling greens that provide accommodation, over 2000 tennis courts, some 2000 sporting fields, 1400 golf courses, and it goes on. What we say is that in relation to all those facilities that they offer for the community, they need to be able to offer those recreation/leisure type facilities at the time when the community has recreation/leisure, which is particularly around public holiday periods.
PN1459
In relation to the costs, we say that there are a number of things - and also efficiency of work, and I address at this time also paragraph (f) - so there are a number of factors that come together at the one time. First off, you have got the public holiday itself, so some employees will be absent and will get paid for the day. Other employees, they work on the day, in which case they get paid two and a-half times. If it's the case that employees are absent but they still need to service their members, then they would have to employ replacement staff and pay two and a-half times for that.
PN1460
Much was said about the exemption in relation to club managers, if they get paid 50 per cent above the award, then they don't get this other entitlement. We don't quibble with that, but we say that that's a fairly significant cost to bear to avoid this entitlement and perhaps others.
PN1461
We also note that employees who are regularly working on weekends under the award receive an extra week's leave because of the fact that they regularly work weekends and holidays, so as well as getting these extra holidays, they are going to get an extra week off, so it could be, in terms of the amount of time off and the benefit of working on weekends and not being around on public holidays can be quite significant and it could amount to in the order of an extra two to three weeks' pay.
PN1462
VICE PRESIDENT HATCHER: What clause is that?
PN1463
MR McDONALD: That is clause 39. It's a reasonably standard provision except it's a fairly broad definition of regularly working Sundays and holidays. It doesn't have to be a 24-hour business, unlike for continuous operation, unlike some awards.
PN1464
In terms of trying to put a cost on it, it is very difficult because the impact upon employees will very much depend upon the state they are in, the working patterns that they have and the number of holidays in a particular year.
PN1465
In exhibit 21 - that was the agreed statement of facts that the SDA and the retail employers, at schedule A to that, give some account of the situation of people who work on Monday and the number of public holidays on that day as compared to other days, but let's say someone working Monday to Friday in Victoria, looking at that schedule A, in 2016, let's say there were 14 public holidays, five of those fell on a Monday and nine of those fell on other days, so if someone works, say, Tuesday to Sunday, or Monday to Friday even, they are going to get a significant number of holidays. If they work, let's say, Monday to Friday, it may well be that they get as many as another five additional days. If they work Tuesday to Sunday - sorry, it's the other way around.
PN1466
Just looking at that schedule A, in 2016 there were 14 public holidays in Victoria, five in 2016 were not on a Monday and nine were. So, if someone was working Monday to Friday, they get five public holidays, potentially, then they could receive another nine for days that they are rostered off, and if someone worked Tuesday to Sunday, they may potentially get another five public holidays. Of course, that will vary year to year and state to state and depend on the working pattern of employees.
PN1467
We note that the retailers did put some costings on it, as did our witnesses, and effectively Mr Cassano's approach was one that seemed to be fairly conventional in that he looked at the cost of an extra day, 7.6 hours, at the rate the employee was paid. That was a grade 3 employee and that would be $156.56 for each day. Translated across the industry, if you are talking about maybe five or more days that people might need to be paid for when they are rostered off, we are talking about a significant figure.
PN1468
In the club industry, the number of full-time employees is estimated to be around 27,000. That was the figure that was used in the penalty rates case and that figure is found at paragraph 938 of the penalty rates decision.
PN1469
In relation to section 134(1)(g), we say that the provision of the award isn't simple or easy to understand because, on its face at least, it would contradict the provision, as we have said, in relation to the NES, particularly section 116.
PN1470
Lastly, we say that the provision is not necessary for the purposes of section 138. We say that section 116 of the award and the public holiday division overall deals comprehensively with absences on holidays and it's not necessary to supplement that.
PN1471
In terms of what the Act does deem to be necessary is compensation in relation to working on public holidays. We say that's implicit in section 134(1)(da) and section 139(1)(e)(ii). What we do say is that in terms of identifying that working on public holidays is something that should be considered for additional remuneration. There is no similar provision about people not working on public holidays other than those prescribed in section 116. So, there is nothing in the Act that would suggest that there's any sort of particular imprimatur to include such a provision dealing with absences on public holidays in circumstances where people are not ordinarily rostered.
PN1472
Lastly, we say that given the nature of the provision, it doesn't seem to be compensatory in any way, it is not compensation for some disutility. If anything, it may be a payment by way of a deterrence to employers for changing the roster, as the union have put it in their submissions, but we say there is nothing that dictates that. It's very difficult to find what the origins of these provisions are or to try and give it any particular rationale, but if the rationale be deterrence, we say it's an inappropriate rationale and refer the Commission to the Full Bench's decision in the penalty rates case at paragraph 1949 on that point.
PN1473
VICE PRESIDENT HATCHER: There was such a provision in the New South Wales Clubs Award pre 2006?
PN1474
MR McDONALD: There was, your Honour.
PN1475
VICE PRESIDENT HATCHER: When did it come in?
PN1476
MR McDONALD: That seems to have come in in the days of the Banks and Bank Holidays Act. It was a different provision to the one that found its way in relation to the modern award. I think, from memory, it excluded the public holidays that fall on weekends, for example, but we do say it's been a provision that's been around for some time, not that there's any particular rationale that's been given for it. It didn't arise from some arbitrated decision so far as we're aware.
PN1477
If it pleases, those are our submissions.
PN1478
VICE PRESIDENT HATCHER: Thank you. Mr Ferguson, are you next?
PN1479
MR FERGUSON: Mr Bull is.
PN1480
MR BULL: I am apparently the next.
PN1481
VICE PRESIDENT HATCHER: All right.
PN1482
MR BULL: I will try and be brief. This submission is made subject to the ruling that this place may not be the appropriate place to deal with this application, so whatever necessary forms of words are used to say what I am about to say may not prejudice what I might say elsewhere.
PN1483
This notion, it's completely wrong headed. If you read section 55, it's very clear that you can have ancillary and supplementary terms that are in excess of the NES. The scheme of the Act makes absolutely no differentiation between modern awards and agreements and I just put that.
PN1484
I make a point - this is a general point made for the assistance of this Full Bench - we are dealing with a type of entitlement which is a creature or something which is created by the parliament. That was one of the fundamental points of the 1995 case; that was also confirmed in the recent penalty rates decision. We are dealing with a type of entitlement which has, if you like, democratic consensus and legitimacy which is superior in some respects to other entitlements that this Commission might make. I would describe - - -
PN1485
VICE PRESIDENT HATCHER: I have missed something in there. Where does this democratic legitimacy come from?
PN1486
MR BULL: Because parliament makes public holidays, basically, or gazettes them and my reading of the public holidays case is that that's a significant consideration in dealing with public holidays. They are things that are made by the parliament, the parliament determines whether or not Christmas Day is a public holiday or Anzac Day and so forth. The point I'm trying to make, it had some rhetorical value but it was also a point that you're dealing with an entitlement which is derived from the parliament. It's like annual leave. Annual leave is generally considered something which the parliament legislates about. It is in a different category. I characterise therefore - - -
PN1487
VICE PRESIDENT HATCHER: There is nothing in any legislation which gives legitimacy to the proposition that you get paid for a day you didn't work or weren't going to work.
PN1488
MR BULL: Well, I am getting to that point.
PN1489
VICE PRESIDENT HATCHER: You are on the point of democratic legitimacy. I just don't quite get the connection.
PN1490
MR BULL: I was making a rhetorical point about public holidays. They are generally considered the creature of the parliament. The parliament makes public holidays. I characterise what we are dealing with in this particular award as a supplementary or ancillary provision to that entitlement because this provision wouldn't have any purpose were it not for the fact that some parliament somewhere created a public holiday. As I said, there was some rhetorical value in the submission, but I am making that point that it's connected with something that perhaps has gone through a higher law-making process. I have described it as having a certain level of democratic legitimacy because it comes from the parliament, that's all. That's the only point I wanted to make.
PN1491
In relation to the claims in relation to this particular award, you're actually dealing with quite a narrow entitlement. This is an area which has got a high level of casualisation, there's not a huge number of - full-time work is not the norm. There are significant exemptions. Essentially, we're dealing with full-time, non-managerial employees and, in relation to managerial employees, they've got to earn less than this 50 per cent premium, which will then exempt them. So, it's a narrow entitlement and it's also focused on the lower paid end of the full-time workforce covered by this particular award.
PN1492
My friend Mr McDonald looks at the clerks award and the airports award. The appropriate comparator are the other two hospitality awards, which, in relation to 34.3, have identical provisions. The hospitality award has an identical provision at clause 37.1(b) and the restaurants award has an identical provision at clause 38.2. There is some variance in relation to the Christmas Day provision. The hospitality award has what my friend would urge you to place in this award.
PN1493
I will just deal with the 29(c) issue. I basically rely on our submission. I have done a lengthy submission and there is nothing in that document which I wish to withdraw at this stage. We have stated that we didn't voice opposition to the variation in relation to 29.3(c), but we leave this as a matter to the discretion of the Commission and we characterise the proposal as "mean spirited". Once again, it's a narrow entitlement.
PN1494
This particular award provides essentially an additional increment of remuneration at Christmas for relatively low paid employees and I would say there is simply no particular reason to vary it. None of the evidence was directed to the crushing burden that this provision imposes upon clubs' employees, and I would urge this Commission not to adopt a mechanistic sort of approach to tidying up awards. There's a provision in this award which is slightly more generous and no compelling case has been presented to vary that provision. Unfortunately, tidying up in this four yearly review sometimes appears to work - it's a one-way street, it seems to be a ratcheting down of entitlements and I would urge you not to do it in relation to this entitlement. It's a small thing and there has been no evidence or any merit case presented in any sort of cogent manner to alter the entitlement.
PN1495
I will briefly address the evidence and I would indicate that the evidence was unremarkable and of limited utility in advancing any case for change in relation to what is being sought to be changed. The evidence of Mr Trimarchi - he was the policy and government manager of the applicant - he appeared to have no understanding or knowledge of the claim. The evidence that he sought to give about rigidity in opening, I suggest is really a furphy. That didn't seem to be particularly relevant. Small clubs may have problems with lower revenues, but they also appear to have more volunteers and so forth.
PN1496
We then come to the evidence which was essentially from club managers. None of these clubs are struggling, they are all making surpluses, many of them were getting substantial revenues from gambling and there was, I think, this sort of attempt to somehow concentrate on the café, which was making a 29 per cent loss and so forth. Mr Casino was from a larger club which had very significant revenues from gambling.
PN1497
VICE PRESIDENT HATCHER: I think it was Cassano, not Casino.
PN1498
MR BULL: Cassano, sorry.
PN1499
VICE PRESIDENT HATCHER: A Freudian slip.
PN1500
MR BULL: It was a Freudian slip. The point about Mr Cassano and the other club managers is that this issue seemed quite confected, I'd say, in their evidence. The issue of substitute days for public holidays was not sort of recking their consciousness as managers of these organisations. It was a very minor issue and it was not something that affected their profitability or was a significant consideration in the management of these establishments.
PN1501
I asked a number of them whether it was a consideration that they applied to rostering and they all said "No". Where they could actually put a figure on it, the money value of it - this is the 34.3 entitlement - was quite low, it was $3000 or $4000 and some of these clubs were turning over, you know, over $2 million a year. The proper characterisation from the evidence is that it was an inconsequential matter.
PN1502
James Bale was interesting. It was a country golf club. All his competitors were either clubs or restaurants which were dealing with the same conditions.
PN1503
Alex Moore, I think, was unusual in that he showed a level of antipathy towards the entitlement which perhaps indicates the motivation behind the claim. This comes to the issue of the modern award objective hasn't been amended as yet to include cost reduction in labour for employers as a principal reason to vary a modern award. When you boil it down, that is the basis of the applicant's case, that this is a cost which they don't see as relevant to their business, they believe that they are having to pay people for not working and it should be eliminated for that reason. That's not a proper consideration in the absence of other considerations to vary an award to delete something like this.
PN1504
I would urge the Commission to not accept the claim to vary this particular award. The claim should be rejected. There is not a proper merit case to vary the award. When properly analysed, the case that's been presented is misconceived, in some respects it's venial and it should be rejected. That's all I wish to say.
PN1505
VICE PRESIDENT HATCHER: Are we going to hear from you now, Mr Cooper, while we have got Clubs fresh in our mind?
PN1506
MR COOPER: I won't be very long at all.
PN1507
VICE PRESIDENT HATCHER: Yes, all right.
PN1508
MR COOPER: The association submitted a very short submission on 15 June and we focused on the club managers aspect of the application to do away with 34.3. We restate the position that that provision has been long-standing in the New South Wales NAPSA and also a pre-reformed federal award which applied to club managers in the states of the ACT, Queensland and Victoria. It has greatest impact on those operational floor managers, and there was some discussion with the evidence that those managers, some of which were members of our organisation, we're talking about the impact and they were all above the 50 per cent exemption rate.
PN1509
It is a 50 per cent that applies - you must pay in excess of 50 per cent of the classification rate pertaining to that management position. The greatest impact of this, or the disadvantage I should say, is to those operational managers who are duty managers and floor managers who work on a seven-day week rotating roster basis, and I think, as my friend Mr Bull submitted, they are the lower paid end of the spectrum in regards to the management classification structures and we believe they would be disadvantaged by missing out on the opportunity of not having additional consideration on their rostered days off, which could be any day of the week, and this application is broader, as pointed out, than simply public holidays falling on Saturdays and Sundays. There are other public holidays that can fall during the mid week.
PN1510
Essentially, we rely on our submission made and also we support the application in detail, the submission made by United Voice in the two aspects, the 29.3(c) and the 34.3.
PN1511
I thank you for the opportunity.
PN1512
VICE PRESIDENT HATCHER: Thank you. Mr Ferguson?
PN1513
MR McDONALD: Your Honour, if I may, just one matter just briefly in relation to - - -
PN1514
VICE PRESIDENT HATCHER: Actually, we might hear your reply submission now. Do you have any submissions in reply?
PN1515
MR MOORE: Your Honour, we want to be briefly heard on the Clubs' submission as well.
PN1516
VICE PRESIDENT HATCHER: All right. We will go to Mr Ferguson, I think. Mr Ferguson?
PN1517
MR FERGUSON: I may not finish in time.
PN1518
VICE PRESIDENT HATCHER: Time for what?
PN1519
MR FERGUSON: I was thinking you may want to finish at four.
PN1520
VICE PRESIDENT HATCHER: We will see how we go.
PN1521
MR FERGUSON: I may, though - I'm hopeful. If the Commission please, the Ai Group has filed comprehensive written submissions dated 29 March. Those submissions set out our opposition to all three union claims and, of course, I rely on that material now. Those submissions have been carefully prepared and they are very detailed and I wouldn't hope to do them justice on my feet in terms of providing a summary for the Bench, so what I propose to do today really is just provide a very brief overview for the benefit of the Bench of what we've done in those submissions, but then to amplify some key points that we make in response to each of the claims and to deal with some issues that have arisen during the course of the hearing.
PN1522
If I just take you to those submissions by way of overview, what you will see there is that we have set out in discrete chapters various issues. We have firstly dealt with the statutory framework. In that context, we've dealt with the framework governing the conduct of the review, but we have also dealt with the provisions of the Fair Work Act that deal with or regulate public holidays in various respects.
PN1523
We have also - and this commences at page 10 - dealt with the legislative provisions of the state and territory laws relevant to public holidays. Without taking you through all of that, I just note for the benefit of the Bench, within that we have a number of tables that might assist in providing an indication of the scope of the matter we're talking about.
PN1524
Firstly, at paragraph 24, if I take the Bench to that, we there set out where the legislation in each state and territory provides for a substitute day where the actual day falls on a weekend. I will come back to the AMWU's claim, but to give you an idea, it shows you which state and territories declare a substitute day where Christmas Day falls on a weekend and, as you can see there, for example, it's only in Victoria and South Australia and, in South Australia's situation, only if they fall on a Saturday.
PN1525
Then, at paragraph 27, we have a table that sets out all of the public holidays that are the subject of substitution pursuant to any state or territory legislation where they will fall on a weekend during the period 2016 to 2026. Again that shows you the magnitude of what we're actually talking about.
PN1526
If we move on to paragraph 29 and over the page specifically, there's a table which provides an indication of each of the additional public holidays provided by state and territory laws, and that is additional as opposed to supplementary.
PN1527
As we move through the submissions, and I won't take you to every chapter, what we also do is provide, at chapter 4, detailed treatment of all of the previous decisions that we see of relevance that relate to this Commission's consideration of the issues in contest here and, by that, I mean the issues relating to public holiday regulation in the award system. We have set that out carefully and that will circumvent me dealing with all of that today, other than to respond to some of what has been put by the SDA.
PN1528
We then also, in chapter 5, set out an analysis of modern awards and pre-modern awards that contain comparable provisions and in particular we go through, and I think there's a point of difference between us and the SDA, and we identify where comparable provisions to what the SDA are seeking are found within the modern award system. On that point, I simply identify that we say there are only six modern awards out of 122 that contain comparable provisions. All the others deviate in some material way.
PN1529
VICE PRESIDENT HATCHER: But some deviate in the sense they go further by not excluding Saturdays and Sundays.
PN1530
MR FERGUSON: Yes, some deviate and I think, if we go to table 1 of attachment A, there's a bit of an indication - - -
PN1531
VICE PRESIDENT HATCHER: What page is that on?
PN1532
MR FERGUSON: Attachment A at the back of the submissions. We there, by way of a tick, indicate where a comparable provision is contained in the award, but, by way of a footnote next to the "X" - I'm looking at the third column in that table - by way of a footnote, we identified where a different provision is dealt with or a provision of a similar nature but deviates in some material ways. For example, some of them might only deal with situations where the public holiday falls on an RDO, some might only apply to certain categories with employees. There are a raft of different approaches, if I recall correctly, so it's not the case that it's a uniform approach by any means.
PN1533
In the following chapters, we then deal with the respective claims separately. Before I move into the body of the submissions, I should also note just for the record that we appear today on behalf of (Indistinct), the Australian Industry Association and that they support and endorse the submissions that we advance in the context of these proceedings.
PN1534
Before I move into the three discrete claims, I want to, I suppose, deal firstly with the significance that should be attached to the public holidays test case, given that it's quite clear that the unions are placing significant weight on that and particularly the SDA. In what I say here, I don't intend to demur from what we have put in our written submissions, but the point here is we would say - we accept it's not an irrelevant consideration but there are cogent reasons for potentially departing from what has been adopted in those decisions when contemplating whether or not these particular claims should be adopted.
PN1535
Secondly, we say that it's not enough for the unions to simply point to the fact that there is this historical test case standard as a merit-based justification for now amending the awards to include a provision which is in some ways, or to some extent, consistent with what that test case provided for.
PN1536
The reasoning for that is, in part, firstly, that the Commission, under the current legislative framework, is operating in a different environment than the Commission did at the time. The Commission is now more tightly constrained as to the types of matters or the types of clauses or provisions it can include in awards and, in that sense, what I'm pointing to is the operation of section 138 of the Act, of course, and that now the Commission can only include terms in awards that are necessary to achieve a modern awards objective.
PN1537
We say that that modern awards objective, indeed the objectives of the Fair Work Act generally, do differ from the objectives of the Act or previous regulatory regimes that were in place, particularly those in place at the time of the test case decisions.
PN1538
VICE PRESIDENT HATCHER: The public holidays test case, the principle from it seems to have been based on the proposition that it's necessary to establish fairness as between employees working standard hours and those working non-standard hours.
PN1539
MR FERGUSON: Yes.
PN1540
VICE PRESIDENT HATCHER: Why is that principle not adaptable under the framework of the Fair Work Act?
PN1541
MR FERGUSON: I will come back to that issue, partly because we think in part the answer there is the framework of the Act now, rather than the objects, but the framework of how it affects the regulation of public holidays is relevantly different and, in that sense, it provides a comprehensive entitlement, if you will, in relation to public holidays in a manner that was not the case in that previous regime. It now regulates what the entitlement should be and the awards should operate within that context, and we say that it is not an answer to now go and supplement that by including an entirely different type of provision or a different type of safety net than the one contemplated by parliament. That is the first answer why the issue of fairness between employees no longer has the same force that it did.
PN1542
Beyond that, there are other elements of the modern awards objective in particular that we say need to be given specific consideration that were not, at the very least, expressly arising under the previous legislative regime. Our chapter sets this out in more detail than I intend to, but we talk, of course, about the provisions of section 134 that go to expressly the need to take into account the cost impact on employers and so forth that are cast in different terms to the previous legislation. All we say there is that alone is a potential source of justification for there being cogent reasons for departing from that previous approach.
PN1543
I think more than that, the task the Commission faces, or this Full Bench faces, is different and that needs to be borne in mind. In the context of this review, the Commission is charged with taking into account all of the specific factors in section 134. To do that, the Commission will have to have an idea of the impact of the proposed claim on those various factors and on employers generally in its consideration of whether it's fair from the perspective of employers as well, and we say it's not going to be enough for the unions to just point to the fact that there is this test case standard and, absent some sort of persuasive argument against it, that should justify its inclusion.
PN1544
We say the union is going to have to establish, and relevantly in an evidentiary sense, that the various factors in the modern awards objective would weigh in favour of granting the claim. In that context, I will take you to the two yearly review proceedings in relation to the common issues proceedings in relation to public holidays just briefly. For convenience, the relevant provisions I was going to go to are set out at paragraph 170 of our written submissions. The authority itself is set out at tab 24 of our folder of authorities, but I don't intend to take you to it.
PN1545
In that case, as my learned friend put on behalf of the SDA, the Full Bench was grappling with an application of a similar nature to be included in modern awards and counsel for the SDA took the Full Bench to paragraphs 62 to 66, if memory serves. What they didn't do and what he didn't do is read paragraph 67, if memory serves, and that provides:
PN1546
On the material before us there is insufficient information to adequately assess the impact of the proposed change. The same may be said of the ACTU's proposed model clause as a concept. Further, we consider that the practical operation of the proposed model provision to different patterns of employment as provided in some of the modern awards is uncertain and may well create unintended consequences.
PN1547
In the reasoning for their decision, they pointed to deficiencies in the case being advanced in part as a justification for why they couldn't grant the claim.
PN1548
With respect, we say the same problems arise here, and I will come back to the SDA's evidence, but, on the material before you, we say this Full Bench clearly could not assess the impact of the proposed changes. We say there is no meaningful evidence that establishes for you the various patterns in play - and I talk now in relation to the SDA claim in particular - the various work patterns in play that would be impacted by the claim. We don't know how many employees are going to be entitled to these new entitlements or how many extra public holidays they are going to get. We don't know what occurs in industry. We will come back to the evidence, but we have a handful of employees in this very small number of businesses that just talk about what their particular patterns are, and they have been cherry-picked and we will come back to that.
PN1549
For the same sorts of deficiencies pointed to here, we say that this Commission, in considering this claim, can't be satisfied on the material before it that it would constitute a fair and relevant part of the safety net. A proper case hasn't been made out to establish that it's necessary or that it wouldn't give rise to unforeseen problems.
PN1550
VICE PRESIDENT HATCHER: I haven't read this decision. Was there evidence adduced in the transitional decision?
PN1551
MR FERGUSON: Apologies?
PN1552
VICE PRESIDENT HATCHER: Was there evidence of that nature or any evidence adduced in the transitional decision?
PN1553
MR FERGUSON: I apologise, I am not sure. I endeavoured to research, but I am not sure there was evidence.
PN1554
MR MOORE: Very little.
PN1555
MR FERGUSON: I think, if memory serves, very, very little, but again we would say in this case there is equally very little, there's a paucity of material, there's a handful of individual witnesses, but not many, and the list got shorter from what was originally filed.
PN1556
MR MOORE: You might want to correct your submission that I didn't take them to that. It's in our submissions and I took them to it.
PN1557
MR FERGUSON: Counsel for the SDA just wanted to point out that in the written submissions he did point out paragraph 67.
PN1558
MR MOORE: And quoted from it.
PN1559
MR FERGUSON: And quoted from it.
PN1560
MR MOORE: Thank you.
PN1561
MR FERGUSON: There is no intention to impugn him in that regard, I was merely trying to point out a pertinent paragraph.
PN1562
MR MOORE: Just proceed carefully.
PN1563
MR FERGUSON: As I understood the oral submissions that were put on behalf of the SDA, there is a view that the public holidays test case is particularly relevant to the subject of these claims because of the prevalence of non-standard work arrangements in the relevant sectors and, as I understand it, what the union is relying on is findings in the penalty rates test case.
PN1564
As far as we can decipher, there is nothing in the penalty rates decision that clearly identifies the number of part-time employees or the proportion of part-time employees in each of those relevant industries and by that I mean part-time employees within the meaning of the Act as opposed to a definition of part-time employees say for ABS purposes that might include casuals or employees simply working less than 35 hours a week. So we don't know that from that decision. That doesn't overcome the absence of an evidentiary case being mounted in relation to this. What we certainly don't know is the proportion of part-time employees in the award sense that are working an average of five days a week and not simply Monday to Friday.
PN1565
VICE PRESIDENT HATCHER: There is ABS data available, isn't there, which shows people who do have leave entitlements but don't work full-time hours?
PN1566
MR FERGUSON: There may be. I'd have to check, your Honour.
PN1567
VICE PRESIDENT HATCHER: I thought there was something about it in the part-time/casual case.
PN1568
MR FERGUSON: I think there is, it's ringing a bell, I don't know that it gets to the level of part-time.
PN1569
VICE PRESIDENT HATCHER: It's people who do have leave entitlements but aren't working full-time hours, which seems to be the same thing.
PN1570
MR FERGUSON: I don't know. Bear with me. As I understand it, that's not what is referred to in the penalty rates decision, even if that data is available, so it's not before this Bench.
PN1571
VICE PRESIDENT HATCHER: No.
PN1572
MR FERGUSON: So it's not evidence in these proceedings. As I said, this is a major gap. We can't overcome this issue by simply pointing to the fact that there's some non-standard working arrangements occurring in these industries. There is, but we don't know if it's of such a nature to be relevant to this claim. We don't know the magnitude of it in any event.
PN1573
That is all I was going to put in relation to the relevance of the test cases. We have dealt with it more carefully in our submissions.
PN1574
I want to address, firstly, the AMWU's claim. We have dealt with that in detail in chapter 6 of our submissions. That is at paragraphs 236 to 412. The essence of the claim, as I understand it, is that they seek certain penalties to apply in circumstances where Christmas Day, 25 December, falls on a weekend and is consequently substituted for another day. If you look at the drafting of the clause, it's not clear if that's just where it's substituted by force of state or territory legislation or whether it's substituted by force of the operation of the facilitative provision in the relevant awards, but, in any event, it appears the focus of their case has been to say it's justified where it's substituted by way of legislation.
PN1575
We say that, given that context, one of the key arguments against the claim is the very rare occasions on which this will ever actually arise. As we say, or as those tables demonstrate, I think, that I took you to, it won't arise again until 2021. That's when Christmas Day will fall on a Saturday and, even in that context, it's only going to be substituted, potentially, in Victoria and South Australia, but that is again subject to any more generous declarations being made by the relevant ministers in those states. Then it will fall again on the Sunday in 2022 but will only be substituted in Victoria, best case scenario, and then it won't arise again as an issue until 2027.
PN1576
If history is any guide, the actual clause that they are proposing might not have any work to do because in 2016, Christmas Day fell on a Sunday, so under Victorian legislation it would have been substituted, but even there, a public holiday was declared. It was a public holiday in every state and territory, so the clause would have had no operation and no effect, no work to do, so to speak.
PN1577
Given this context, we say it's very difficult to understand how this Full Bench could be satisfied that the proposed provision is necessary to meet the modern awards objective as contemplated in section 138 where it hasn't got any work to do for years and it may never have any work to do. On that basis alone, we say the claim should be rejected.
PN1578
If circumstances change and it becomes apparent that there is no intention to follow the course of action that was adopted last year, then, of course, the union might, at that point, make an appropriate application to say that there is a justification, but there is no need at the moment for the award to provide for this entitlement. The award clause will do nothing for years.
PN1579
VICE PRESIDENT HATCHER: So we leave it to the 2022 four year review?
PN1580
MR FERGUSON: I hesitated to make that point. A four yearly review is scheduled and I don't want to make a lot of it. We all know there's a bill before parliament and it's quite close. So, it's almost a repeat of the situation that arose previously in the sense that, on one view, the appropriate course of action is to wait until the next review, but there is a bill, and I thought it somewhat disingenuous to make that, but we don't know.
PN1581
COMMISSIONER HAMPTON: I hope you are not suggesting that this review will take that long.
PN1582
MR FERGUSON: I hope not, and we are all wishing that bill every success.
PN1583
Our submissions do set out broader reasons for rejecting the claim. As I said, I won't take this further, I won't do it justice. I will let the Bench go to those submissions rather than sort of summarise them in brief terms.
PN1584
That then takes us to the HSU claims. Again, we have dealt with that in detail. There are no written reply submissions put and so, on that basis, I am content to rely on the material that we have advanced in opposition to the claim, other than to say today the advocate for the HSU made a number of submissions in relation to factual assertions regarding work patterns and practices and so forth in that industry. We don't accept that any of those assertions are right and there's certainly no evidence of work patterns and so forth and we simply say that all of those submissions should be given no weight.
PN1585
VICE PRESIDENT HATCHER: I think we can accept that hospitals are open 27/7, can't we?
PN1586
MR FERGUSON: We can accept hospitals are open 24/7, but there is the reality that not everyone covered by that award is necessarily operating with non-standard work arrangements, not necessarily. We can accept that hospitals are open 24/7, but we certainly don't have any evidence about the particular arrangements and so forth. In any event, there's nothing that's tangible enough to allow you to make a proper assessment as to what the impact of this claim would be.
PN1587
That then takes us to the SDA's claim and I will be a little longer with that. Our submissions in relation to that claim are set out at paragraph 557 to paragraph 747. What I intend to do, rather than delve through that, is deal with three issues.
PN1588
Firstly, I want to work through the clause that has been proposed and identify what we see to be fundamental deficiencies in its operation that we say the union have failed to address in their material. These are deficiencies that go to a consideration of whether the proposed clause is even workable.
PN1589
Secondly, I want to deal with what we say is, or appears to be, the central rationale for the claim, that is that there is some kind of unfair disadvantage suffered by employees who work non-standard work arrangements and therefore a necessity to address that through the claim. I think that has come up indirectly in these proceedings where it's been questioned, or the extent to which this is really about delivering equality as opposed to just delivering improved conditions for a certain class.
PN1590
Thirdly, I want to comment briefly on the evidence that has been called.
PN1591
Dealing firstly with the operation of the clause, the new proposals are set out at paragraph 4 of their submissions and it might be convenient for the Bench to go to that, if they have it to hand. I note that we set out observations, or broad observations, about the proposed clause at paragraphs 564 to 597 of our submissions. I am not here intending to identify every issue or take you to every issue that we there raise, but we do say that the SDA have already acknowledged that they have attempted to grapple with some of the matters that we there raise, and that is in paragraphs 84 to 90 of their reply submissions, but we say that their efforts in that regard fall well short of providing any sort of satisfactory response and, as a result, there's a range of questions about the manner in which the clause operates that just haven't been answered in their reply.
PN1592
We say that these deficiencies will give rise to various uncertainties in relation to how the clause operates and there is a potential for it to give rise to anomalous or even unfair outcomes. We say, in general terms, that these deficiencies, the deficiencies in the nature of the clause's operation, are so significant that they alone would warrant the rejection of the claim. They are not the sorts of things that - they go to the fundamental nature of the clause, they are not the sorts of things that can just be amended in some sort of settlement of orders process. I will talk to some of these deficiencies now.
PN1593
Firstly, dealing with the application of the clause, so who receives a benefit under the proposal. What is clear is the proposed clause applies to two cohorts: certain part-time employees and the full-time employees. In relation to full-timers, it applies to all full-time employees. They don't need to work an average of five days to receive the benefits of the proposed clause, and what that means is that people in arrangements such as people working a nine-day fortnight will get a benefit where the public holiday falls on a day they are not working, even if that's not because of their RDO but because it's just structured such that it's a day off and they will get that benefit as well and, in both cases, they'll get the additional entitlement. What that means is that all full-time employees will receive the benefit of all public holidays that fall Monday to Friday regardless of the days they actually worked or
PN1594
even how many hours they actually worked on particular days.
PN1595
The impact of that is that employees who receive the benefit under this clause will get a payment, typically for a full-timer, that relates to or equates to 38 ordinary hours of work and then they'll get an additional payment or benefit under this clause for a further day's pay or an additional day of leave or a further day in lieu, I think it's cast. We say that's actually an unjustifiable benefit because it provides them with, in effect, a windfall gain over Monday to Friday workers and it's at odds, as I said, with the approach the scheme now takes of simply providing a benefit for employees which is really in the nature of an ability to be absent on a day that is actually a public holiday without a loss of your base rate of pay for the ordinary hours that you would otherwise have worked on that day. It is completely different to the nature of the entitlement now reflected under the legislation and it just effectively gives them something further on top of payment for the ordinary hours that they would work.
PN1596
Secondly, the clause is described as applying to the cohort of part-time employees, that is, part-time employees that work an average of five days per week. The difficulty here is that there's no indication as to how that average is to actually be calculated. They don't say whether that's to be calculated over a fortnight, a month, a year, there's nothing.
PN1597
In response, as I understand, they have questioned why there needs to be reference to such a period, but I think the point is obvious: without that, we have no idea what employees are actually caught by this claim. It is clearly intended to be calculated by some sort of average, but there's no guide provided as to what that might be and, of course, there's no evidence to suggest that part-time employees just work the same number of hours each week. There's always going to be the capacity acknowledged in some of these instruments for part-time employees to vary the days of work that they undertake.
PN1598
Moreover, there's nothing in the clause that indicates that it's limited to a consideration of what the employees' ordinary hours of work are. We don't know if it's about ordinary hours or overtime hours. For example, there's no indication at the moment to the parties as to whether you include in the calculation of the number of days a shift or a day that is entirely an overtime day or an overtime shift. That, again, will have a bearing on who is caught by this clause and it's obviously going to complicate matters greatly. It is somewhat of a difficulty for us because there's no real ability to cost this claim. We really can't capture who is caught even by the proposal.
PN1599
Then there are, we say, significant difficulties that arise from the nature of the benefit that's been described. We say that the benefit can't actually be quantified or understood in all circumstances. In essence, the clause provides for three alternate benefits. It's described as another day or part day off in lieu, or an equivalent day or part day's pay, or one extra day or part day added to an employee's annual leave.
PN1600
One of the problems is there's no reason to assume that the employees that would be covered by these awards are all working the same number of hours on each day. The relevant awards afford, invariably, a level of flexibility in relation to those sorts of issues. Part-time or full-time employees' hours of work, you're looking at ordinary hours of work can be arranged in various ways, potentially averaged over a period of time under some of those instruments, or they can simply be arranged in a very typical manner such as, you know, eight hours four days and then six hours one day of the week. Similarly, there's no reason to assume that part-time employees - there's nothing in the evidence to assume that part-time employees working an average of five days will undertake the same number of hours on each week.
PN1601
What that means is we are not able to identify what a day is that they are referring to because we are talking about a day here that the employee doesn't work. So, quite simply, there's no way to identify what a day's pay is or how much leave should be accrued to those employees because a day could mean different things depending on the pattern of work that's performed. The key issue here is this isn't a day that they're even working, there's nothing to go by. Again, that's compounded by the fact that we don't know whether the day includes overtime hours or ordinary hours, there's just no indication to any of that, we're just left questioning these. We have raised these issues and no answers have been forthcoming in the material that we can now respond to.
PN1602
The final problem is the rate of pay. There's no indication what the rate of pay is. We don't know whether that's intended to be the minimum award rate, the ordinary hourly rate or if it's intended to be the base rate and so capture over award payments. These are all questions that are simply unanswerable at this point in time.
PN1603
We would obviously have serious concerns if the intention was to capture over award payments, but even if you put that aside, and I'm not sure they are intending to, there's scope to argue over whether certain award payments, like shift allowances and so forth, are intended to be included. We just don't know what even is intended.
PN1604
What we say is that all of these problems and the various other issues that we've identified in detail in our submissions mean that this provision, as has been proposed, can't be viewed as appropriate for inclusion in award safety net and we say that it's incumbent on the union, as the proponent of the claim, to establish that all of the terms of the proposal are necessary to meet the modern awards objective.
PN1605
This case isn't being conducted as some sort of general inquiry into public holiday entitlements, it's run through the prism of a particular claim being advanced, the parties putting submissions in support of it, and that's what we've run a case in opposition to. We say that if the Full Bench forms the view that it's unworkable or that proper material supporting their case hasn't been advanced, the proper course of action is simply to reject the claim and that's what we say should happen.
PN1606
The next thing I want to deal with is some of the key arguments that they have advanced in support of the claim.
PN1607
VICE PRESIDENT HATCHER: We will have to finish by shortly before 4.15, Mr Ferguson, because another member of the Bench has a matter starting at 4.15. Will you finish by that time or should we simply adjourn and come back tomorrow?
PN1608
MR FERGUSON: I think I can finish before that time, or at least this section.
PN1609
VICE PRESIDENT HATCHER: All right.
PN1610
MR FERGUSON: As I said, one of the key arguments has been that it is necessary in order to provide fairness to employees or to the various groups of employees. What we say is it can't simply be assumed that all employees who do not work Monday to Friday suffer a disadvantage relative to those that do. We deal with that at paragraphs 618 to 627 of our submissions. I might take the Bench to that. Page 179.
PN1611
Tellingly, it goes over the next few pages and what we do there is seek to work through various different working patterns for an employee working five consecutive days per week during 2017 and identify the potential public holiday entitlements for the respective groups. I acknowledge that this is not in the context of evidence, but I think it provides a useful depiction of the sorts of prospective benefits the person might get because you have no clear picture of what is happening in the industry and the table at paragraph 622 is probably the most useful indicator.
PN1612
What you can see there is that for people working the work patterns Thursday to Monday, Friday to Tuesday, Saturday to Wednesday or Sunday to Thursday, they would, working these non-standard arrangements, already receive more or the same entitlement as employees working Monday to Friday. They are not disadvantaged, quite clearly, if they are working these patterns and this is before they get the benefit of the proposed clause.
PN1613
I think the tenor of the submission from my learned friend was that if there is some extra advantage that flows to them, it's not significant. Well, you have to bear in mind that these groups already get more and then they could get significantly more if they are not working Mondays, and there are a lot of public holidays in any given year that happen to fall on a Monday by virtue of certain public holidays always being on a Monday and supplementary or additional public holidays commonly move to the Monday. It means that there's a very clear risk that they will be given significant windfall gain.
PN1614
As I said, I don't have evidence of that. In our submission, we had proposed to deal with the example of Mr Bongailas, but the evidence was ultimately not tendered. It is disappointing because, in a way, he provides a useful prism for identifying in concrete terms how a different work pattern might deliver an employee a more beneficial arrangement than a Monday to Friday worker.
PN1615
VICE PRESIDENT HATCHER: In the table at 622 for New South Wales, what is the Friday to Tuesday worker picking up that the Thursday to Monday worker doesn't?
PN1616
MR FERGUSON: Pardon, your Honour?
PN1617
VICE PRESIDENT HATCHER: In New South Wales, Thursday to Monday has 11 and Friday to Tuesday has 12.
PN1618
MR FERGUSON: Yes.
PN1619
VICE PRESIDENT HATCHER: What is the extra holiday being picked up there?
PN1620
MR FERGUSON: If we can just take that on notice and come back to you in the morning in relation to it?
PN1621
VICE PRESIDENT HATCHER: Because there's no Tuesday holidays.
PN1622
MR FERGUSON: It's just whether there's an additional day. My mind is assuming that there might be an additional day.
PN1623
VICE PRESIDENT HATCHER: Because of Christmas day or something?
PN1624
MR FERGUSON: Yes, that's what I'm thinking, but I just haven't verified that.
PN1625
VICE PRESIDENT HATCHER: Is this based on a particular year? 2017?
PN1626
MR FERGUSON: Yes. Of course, there are variables to all of this. It does depend on the work patterns of the individuals, it depends on the year as well, but the point is on the material before the Commission, there's no way to make a thorough assessment of these sorts of issues and, in that context, we say that this alone is a reason why this claim just shouldn't be entertained.
PN1627
What it is doing, it's put as though it's a claim for equity, but really it is just tipping the scales in favour of one group over another and, notwithstanding what's put, the obvious risk associated with that is it's going to result in increased costs for employers, to some extent, if you're giving additional entitlement to days of pay or to days of paid leave.
PN1628
I will just comment briefly on the evidence. I have dealt with it indirectly and we set it out or address it in detail at paragraphs 651 to 660. In frank terms, they have led evidence from a very small number of employees. I don't criticise them for that. The point is that doesn't provide you with an indication as to how this clause will operate in practice.
PN1629
If we look to particular industries, like the hair and beauty industry award, we have evidence of two employees that work at the same place. One is a manager and I'm not certain that that particular employee is even covered by the award. This doesn't give you an idea of what happens across the whole industry, it's just one scenario. I haven't been able, in the luncheon break, to cross-reference our submissions with the evidence that was ultimately not led, but there was none in the fast food industry, if memory serves.
PN1630
The case boils down to just a plea on the basis that, "Well, that was the test case standard, kind of, let's put it in, even though we concede that there's a potential for this to have unjustifiable and potentially anomalous outcomes."
PN1631
The other point I make is that overwhelmingly where there has been evidence, it's from employees who don't work Mondays or don't work every Monday, and given the Full Bench would accept that there's a disproportionate number of public holidays that might fall on a Monday, that creates the risk that it distorts the picture, so it potentially paints a picture of disadvantage which, as our analysis shows, isn't necessarily fair.
PN1632
Two final points. I have already taken the Bench to Attachment A, the submissions which sets out our analysis of the treatment public holidays or comparable provisions of the two claims in the modern awards and we rely on that. We haven't had an ability to or we haven't been able to verify the accuracy of the table in the SDA's material, but we rely on this analysis that we've undertaken here.
PN1633
That then takes me to the agreed statement of facts, this table tendered today. From our perspective, it may be agreed between the ARA and the SDA, but we are not in a position to agree to these facts in relation to this industry or any other industry today and, as such, we say it can't be accepted that this is necessarily true or accurate, it's just a matter that has been agreed between two parties in proceedings involving far more parties than that and it should be given no more weight than that.
PN1634
VICE PRESIDENT HATCHER: But they are all fairly self-evident propositions, aren't they?
PN1635
MR FERGUSON: We haven't thought through all of them. It may be the case, but I'm not sure they are all completely accurate when we get to it. I'm looking particularly at the paragraph that deals with NES entitlements, and maybe I'm dealing with niceties and I'm being a bit pedantic but we can't accept that it's right in all the other industries, but it is what it is and if they are self-evident then the Commission will afford whatever weight it deems appropriate to those submissions, but we can't verify it.
PN1636
Those are the submissions. In response to the question about public holidays in New South Wales, I think it's a product of Anzac Day having fallen on a Tuesday. Those are the submissions, unless there are any questions at all from the Bench?
PN1637
VICE PRESIDENT HATCHER: No. All right, if we resume at 10 am tomorrow, should we finish by, say, 12?
PN1638
MR MOORE: I think it will depend upon how long the other employer parties will be. For my part, not having heard the rest of them at the moment, I am thinking perhaps 20 minutes, half an hour perhaps.
PN1639
VICE PRESIDENT HATCHER: Yes, all right. We will now adjourn and resume at 10 am tomorrow.
ADJOURNED UNTIL WEDNESDAY, 26 JULY 2017 [4.14 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
ALEX ERNEST MOORE, AFFIRMED............................................................ PN688
EXAMINATION-IN-CHIEF BY MR MCDONALD....................................... PN688
EXHIBIT #8 WITNESS STATEMENT OF ALEX MOORE DATED 18/04/2017 PN700
CROSS-EXAMINATION BY MR BULL.......................................................... PN705
RE-EXAMINATION BY MR MCDONALD.................................................... PN810
THE WITNESS WITHDREW............................................................................ PN816
EXHIBIT #9 BUNDLE OF MUNMORAH UNITED BOWLING CLUB LIMITED FINANCIAL REPORTS.............................................................................................................. PN833
DOROTHY ANN CLARKE, AFFIRMED........................................................ PN839
EXAMINATION-IN-CHIEF BY MR MOORE................................................ PN839
EXHIBIT #10 AFFIDAVIT OF DOROTHY ANN CLARKE AFFIRMED ON 08/10/2016 PN854
CROSS-EXAMINATION BY MS WELLARD................................................ PN857
THE WITNESS WITHDREW............................................................................ PN891
EXHIBIT #11 EXCLUDING PARAGRAPH 9, AFFIDAVIT OF BROOKE SHANNON BAKER AFFIRMED ON 15/10/2016.................................................................. PN914
EXHIBIT #12 AFFIDAVIT OF LAUREN ELIZABETH BENALLACK AFFIRMED ON 05/10/2016............................................................................................................... PN917
EXHIBIT #13 AFFIDAVIT OF JILLIAN RUTH CARROLL AFFIRMED ON 06/10/2016 PN918
EXHIBIT #14 AFFIDAVIT OF KAREN JOY GREAVES AFFIRMED ON 01/10/2016 PN925
EXHIBIT #15 AFFIDAVIT OF IBRAHIM HASSAN AFFIRMED ON 03/10/2016 PN928
EXHIBIT #16 AFFIDAVIT OF THOMAS MARK PENDER AFFIRMED ON 05/10/2016 PN931
EXHIBIT #17 AFFIDAVIT OF ELISE JANE POLLARD AFFIRMED ON 06/10/2016 PN934
EXHIBIT #18 AFFIDAVIT OF NATALIE ANN PROCTOR AFFIRMED ON 28/09/2016 PN937
EXHIBIT #19 AFFIDAVIT OF SIMON SCOTT REDDEN AFFIRMED ON 08/10/2016 PN941
EXHIBIT #20 AFFIDAVIT OF ASHLEA MARIE ROBERTS AFFIRMED ON 01/10/2016................................................................................................................................. PN944
EXHIBIT #21 STATEMENT OF AGREED FACTS BETWEEN SDA AND AUSTRALIAN RETAILERS ASSOCIATION............................................................................ PN970