PN1640

VICE PRESIDENT HATCHER: Mr Moore.

PN1641

MR MOORE: Good morning, your Honour. If I might have an opportunity to raise a matter with the Bench which I consider is appropriate for me to deal with at this juncture, rather than when it comes to replies. The advocate for the Ai Group yesterday, the Bench will recall, identified what he referred to as fundamental deficiencies in the variation proposed by the SDA, such as to render the proposed variation unworkable, and five points were made.

PN1642

We've considered those points overnight and we have sought to address them by preparing some - the terms of amended proposed variations, which have been circulated to those in the Commission today just before the Bench commenced this morning. I take it that members of the Bench also have a copy of the document.

PN1643

VICE PRESIDENT HATCHER: Yes, we do. Do all the parties have a copy now?

PN1644

MR MOORE: We've provided to everyone in the Commission room here and we've - - -

PN1645

COUNSEL: Those that have an interest in this matter.

PN1646

MR MOORE: Yes. All the parties who have an interest in these matters. The answer is yes. We've tried to email the document in the last 10 minutes to Mr Tindley.

PN1647

VICE PRESIDENT HATCHER: Mr Tindley, do you have the document?

PN1648

MR TINDLEY: I've just been handed a copy.

PN1649

VICE PRESIDENT HATCHER: All right. Thank you.

PN1650

MR MOORE: Is it appropriate that I briefly address the points?

PN1651

VICE PRESIDENT HATCHER: Yes.

PN1652

MR FERGUSON: If I may, we do intend to oppose an application by the ‑ ‑ ‑

PN1653

VICE PRESIDENT HATCHER: I fully anticipated that, Mr Ferguson, but let's just hear what's in the document first.

PN1654

MR MOORE: The amendments are in double underline. The first amendment - I'm looking at paragraph 1, this is obviously taken from the - looking at paragraph 1, which deals with the five awards there identified, in the first paragraph we have inserted the words, "Part-time employees who 'having regard to their regular pattern of work'," and the words, "Continue in the proposed variation, work an average of five days per week," and then we've inserted the words, "Over a four-week roster cycle."

PN1655

Those amendments or that amendment - those two amendments are intended to address two of the complaints made: one being how is the calculation of an average of five days per week determined in relation to part-timers; and secondly the complaint about whether overtime hours are incorporated - ought to be counted, as it were - and that is addressed by the words "regular pattern of work".

PN1656

That phraseology is used in the case of the general retail industry award in clause 12.2 dealing with part-time workers, and the clause goes on to make clear that overtime isn't payable for those hours. So that's the work achieved by the amendments in the first paragraph.

PN1657

The next amendments appear in paragraph (a) with the insertion of the words, "Of an equivalent day or part-day's pay at the employee's base rate of pay." The key words are "base rate of pay", and that's intended to address another of the complaints raised by the Ai Group as to what rate of pay is to be applied in calculating payment amounts.

PN1658

And the last amendments, which appear in the final paragraph, which is wholly new, are to insert the following:

PN1659

In this clause in respect of full-time employees, "day" means 7.6 hours. In respect of part-time employees "day" means the average number of the employee's hours roster per day prior to the public holiday in the four-week cycle.

PN1660

That insertion is intended to address the complaints raised by the Ai Group about the meaning of "day" and how many hours are encompassed by that word, and that paragraph is intended to address that. So that is the - and the amendment in paragraph - for the other two awards replicates the change relevantly made in relation to the first five awards, which I won't repeat. It's the same explanation.

PN1661

By way of explanation, the wording of the variation as originally proposed by the SDA reflected, as I generally understand it, the predecessor provision which existed in the Victorian shops interim award, and it did not contain these further elaborations and explanations. We've considered what the Ai Group has said and we've done our best, and we think we've done what's required to address the concerns raised by the Ai Group to ensure the workability of the provisions, if made.

PN1662

The language we have inserted by way of further explanation is in part drawn from one of the pre-modern awards, namely the national fast food retail award, which included some of the words that we've here picked up. We wanted to raise that now, obviously, before the employers continue to make their submissions, rather than raising it by way of my reply at the end.

PN1663

There was - to complete this, there was a fifth point raised by the Ai Group in this part of its submissions under the heading of "Points that Rendered" - it was said - "The Clause to be Unworkable", and this was the proposition that it provided an unjustifiable windfall gain because full‑timers would get the benefit even if they work less than five days.

PN1664

Without going to reply, we haven't addressed that because that is not a question which goes, we consider, to the drafting or workability of that provision, that's a merit argument. But we've otherwise sought to address workability complaints raised by the Ai Group.

PN1665

VICE PRESIDENT HATCHER: The other two documents you've sent us, you will refer to those in your reply submissions, will you?

PN1666

MR MOORE: That's so, your Honour.

PN1667

VICE PRESIDENT HATCHER: Now, Mr Ferguson.

PN1668

MR TINDLEY: Your Honour, Commissioners, it's Tindley in Melbourne. Can I just interject with a couple of technological issues. The first being that the only screens that I see are myself and the bar table in Sydney. I don't have - thank you. And consistent with yesterday, but perhaps worse, the volume in Melbourne is quite low; so if we could raise that or ask that the advocates speak closer to the microphone.

PN1669

VICE PRESIDENT HATCHER: I will set the example by staying close to the microphone, but I think we've done all we can to the volume, so all I can do is ask the advocates to keep their voices up and speak into the microphone.

PN1670

MR TINDLEY: Thank you, your Honour.

PN1671

VICE PRESIDENT HATCHER: Mr Ferguson.

PN1672

MR FERGUSON: Yes, your Honour. We do oppose the SDA's attempt to now amend fundamental elements of the claim that they've advanced in the course of this case. We did set out the objection that I spoke to yesterday in our written material. None of it should have been a surprise to the union. It was there set out; we ask these questions; and I merely amplified them (indistinct) demonstrating the difficulties that an employer would face or that the Commission would face in granting the claim during the proceedings yesterday. None of it - - -

PN1673

VICE PRESIDENT HATCHER: Mr Ferguson, your volume is going down.

PN1674

MR FERGUSON: I apologise. None of this should have been a surprise. The SDA has had our material and they've already mounted an amended claim in reply. Sure, they didn't take the opportunity to try and address the issues were raised in our submissions; instead what they've elected to do is now wait until they're making their final submissions to advance - well, apologies, at least this morning - they've waited until after we've made our reply submissions to now mount a different case, and it is fundamentally different.

PN1675

We've mounted our entire opposition to this case based on the claim that was presented to us. We've made decisions about what evidence we will advance, we have engaged with members about the effect of the claim based on what was before us. They now raise issues that go to the heart of it, which is around the rate of pay; issues about how many hours should be calculated in a day, how that should be averaged. We have no ability to grapple with these sorts of issues on our feet.

PN1676

I don't raise that to suggest that this could be cured. The problem is we would have run a potentially very different case if this was the claim that was advanced. They could have sought to do this at an earlier stage. We say that it is completely unfair for them to now take the opportunity to try and fix what our fundamental deficiencies at this last moment.

PN1677

And in any event, we say we can't deal with it today, but we can't deal with it potentially without going back to members and revisiting the entirety of our case. I can't make a decision about what that would entail on my feet, but we say the proper course of action in this instance is do not allow them to amend the claim, but to determine the matter based on the original claim that was run and all parties have responded to.

PN1678

VICE PRESIDENT HATCHER: Talking about amending claims is getting fairly technical. If the Full Bench, as a hypothetical, was attracted to the concept of a claim, it could open for us to redraft it in any event or invite parties to redraft it. So subject to affording you full procedural fairness, I'm not sure whether we should be going down the road of having technical objections to amendments of claims.

PN1679

MR FERGUSON: I appreciate that, but it goes to the submissions that we put in our written material and that I made yesterday, that this case wasn't conducted as a general inquiry into public holiday arrangements. We haven't let material on the basis that it is being conducted in that way. It was run through the prism of a specific claim being proposed and parties advancing material in light of that; decisions were made about what cross-examination would be undertaken and so forth based on the case that we were responding to.

PN1680

I appreciate that this Commission has the capacity to grant a remedy in different terms, but we're not dealing with here drafting nicety, if you will, we're going to fundamental issues, like the rate of pay. That goes to the impact of the claim and so forth. We haven't been able to put any material forward in relation to that.

PN1681

I appreciate that prejudice could be in some way modified, but the reality is in the context of this review parties such as Ai Group have had to make decisions about what resources will be allocated to matters based on the claims that are advanced, and in toto with this case, and all of the review. And it's not something that can just be cured by now giving us a short window in order to put further material on to revisit our whole case.

PN1682

We will need to seek potential extensions to a whole raft of award review matters in order to enable us to do that. We just can't do it. What that would effectively mean is that we're prevented from running as strong a case as possible on behalf of our members by the tactic that they've elected to take, which is amending the claim after we've advanced a final submissions.

PN1683

As I said, this wasn't a surprise, it was in our material. They could have done this at a much earlier stage before we went to all the trouble of finalising our case. They've elected not to, and they shouldn't be afforded the benefit of doing that now at this late stage.

PN1684

VICE PRESIDENT HATCHER: I understand that, but I'm not sure that we can now un-see what we've seen.

PN1685

MR FERGUSON: That's why I tried to rise to my objection.

PN1686

VICE PRESIDENT HATCHER: Mr Moore could have just got up in reply and said, "Look, you can deal with these problems by the Full Bench, of its own initiative, changing the drafting, in which case it would just be a reply submission. Anyway, does any other party wish to advance an objection along the lines of Mr Ferguson's submission?

PN1687

I think we will deal with this situation this way, Mr Ferguson, we will make a prima facie direction that you have a further 14 days - you and any other party who wishes to respond to it has a further 14 days to file further submissions in dealing with the issues raised by the further amended proposed variations, but if an assessment is made that either that's not enough time or that the amendment could give rise to the need to call evidence, then we will grant liberty to apply and AiG and any other party can make application for further time and a further hearing if necessary.

PN1688

All right, so that's that matter. Now, Mr Arndt, are you next?

PN1689

MR ARNDT: Vice President, Commissioners, I seek to make submissions on behalf of the New South Wales Business Chamber, ABI, and the aged care employers.

PN1690

VICE PRESIDENT HATCHER: Mr Arndt, can you just move that microphone closer.

PN1691

MR ARNDT: Yes, sorry. Not following your example. For completeness, the aged care employees being Aged and Community Services Australia and Leading Aged Services Australia. Our organisation filed submissions on 30 March 2017 and the aged care employers filed separate submissions on 29 March. I don't wish to go to them, I seek to rely on them.

PN1692

The break overnight has given me the opportunity to distil what I propose to put this morning. I don't propose to go to the workability matters, as the SDA has put it, this morning. Our organisations will consider, in the 14 days indicated, what will flow from the proposed variation to the claim.

PN1693

In my oral submissions I just want to do three things: firstly address matters raised in the SDA's reply submissions - written submissions - noting that the HSU didn't file reply submissions and the AMWU didn't, in a sense, reply to our written submissions; I want to address matters brought orally yesterday, and I'm going to try and avoid repetition of my friend Mr Ferguson, but also try and unnecessarily canvass things that actually came from the Bench yesterday in questions and comments throughout the day.

PN1694

But first I want to outline the context in which this claim is made, and also try to get at the real nub of the issues between the two sides of the Bar table in dealing with the entitlement to public holidays under the Fair Work system. In doing so I really want to try and get at the real difficulty that this side of the bar table has with the claims as put.

PN1695

These proceedings are described as a public holidays common issue, and that's, as we know from other common issues, an administrative designation. It makes a lot of sense. These are, in a layman's sense, about public holidays - these proceedings and these claims. One of the conceptual difficulties between both sides of the Bar table is that the claims, as made, in a technical sense aren't about public holidays.

PN1696

The SDA's claim is available to those employees who aren't entitled to a particular public holiday because they're not rostered to work on that day. In a similar sense the HSU's and the AMWU's claim is about days which aren't public holidays, having been substituted. It's this tension that really gives rise to a number of issues between the parties, and that's the reason why the scope of public holidays under the NES and under the Fair Work Act has been laboriously gone through again and again in the employer submissions.

PN1697

I don't want to do that again today. Obviously sections 114, 115 and 116 are relevant to the Bench's assessment of this claim, but I only want to make the following comments about those provisions: very simply, they allow an employee to be absent on a number of specific days of the year without loss of pay; the second proposition which falls is that the identity of public holidays is determined by state governments; and thirdly, and it's unrelated to this case, if you have to work on a public holiday, you get a penalty rate.

PN1698

The evidence in this case bears this out. There has been very little cross-examination of anyone in this case for the reason that the evidence put self-evidently describes the operation of those provisions. I think, Vice President, your Honour put it yesterday that it's also a given that if you're not rostered on to work on these particular days, you don't have to work. You're free to go to a show day or free to go to an Anzac Day ceremony, or whatever it is you want to do. So there's no contest about what these provisions actually mean.

PN1699

Taking these provisions, the position of those I represent is that the character of entitlements arising from public holidays means that the entitlements crystallise on certain specific days. They're not entitlements which are contingent on, for example, and employee's hours of work in the way that maybe overtime would be; they are contingent on being rostered on to work a particular day. This character and this difference in the character of public holidays is really where it starts to sit uncomfortably in the position put by the SDA, and that's what I want to come to now in addressing the SDA's claim.

PN1700

Broadly the SDA seeks to assert that the public holidays test case determined that as a matter of fairness five-day workers should be entitled to the same entitlement whether they worked Monday to Friday or otherwise; following on from that, the SDA would say that without cogent reasons for departing from that fairness finding, this Full Bench should reflect that in these current claims; and lastly, in a merit sense - and this is what the evidence goes to - that it would be appropriate as a matter of fairness to grant the claim as made, and now as amended.

PN1701

I just want to take the Bench to three issues in response to this very broad brush outline of the claim: firstly the public holidays test case; secondly what is the scope of fairness in terms of public holidays and what does missing out actually mean in 2017; and finally would any so-called unfairness actually be cured by the SDA's claim?

PN1702

I can deal with a test case very quickly because it has been very comprehensively detailed in not only our submissions, but others in this matter. Obviously it's a very different legislative regime, and I don't propose to re-canvass the reasons why we say that it is of limited relevance - not no relevance, but of limited relevance.

PN1703

I would say this: firstly the test case obviously hasn't been incorporated into the awards under review, either at modernisation or in 2012; and secondly if the claim is to succeed it really must stand on its own two feet now.

PN1704

I say that for two reasons: (1) the SDA have appealed to the test case as establishing this standard of fairness. Certainly fairness is a relevant consideration, it's probably the operative consideration in terms of the Fair Work Act; however, the situation in 2017 and the situation faced by the members of this Full Bench is very different from that faced by the Bench which decided the test case in the mid-1990s.

PN1705

Fairness is obviously not the sole criteria. Relevantly, matters in the Fair Work Act, including section 134 and 138 - which no doubt are conditioned by an aspect of fairness or fairness itself - need to be applied. The evidentiary requirements for the Fair Work review also need to be applied, and those are laid out in the preliminary issues decisions.

PN1706

Beyond just an argument that this is a different legislative regime, there is really a second and perhaps conceptual reason that the SDA needs to establish their case right now. It's my understanding, and the way I would read this case that an appeal to fairness would have to have a general and an independent application. It would not be enough merely to say, "In 1995 a body found a proposition to be fair, and therefore this body should take that view here," purely as a matter of authority.

PN1707

I guess more simply put, if a proposal is said to be fair it needs to make sense now as being fair and needs to have some equity between the parties. I'm going to return to this point very shortly. But in our view no rationale has been provided as to why fairness would require a variation in the terms as proposed under the Fair Work Act.

PN1708

Your Honour Vice President, you asked yesterday whether the concept of fairness identified in the public holidays test case, which essentially compared standard and non-standard workers, whether that concept would still be relevant to this review and to your determination. I think it would be, but the question would be: what does fairness actually require under the Fair Work system? I think to determine that question you need to look to the Act and you need to look at the way that public holidays are regulated under the Act, and this is where we find a really difficulty in the SDA's case.

PN1709

Our organisation would characterise an entitlement to public holidays under the Fair Work system as an entitlement relating to a number of specific days in a year. The SDA appear to be putting a proposition that the entitlement to public holidays is an entitlement to a specific number of days; or more correctly, payment for a specific number of days.

PN1710

We got some great clarity on this point yesterday when counsel for the SDA identified that fairness requires - I think what was put as - a universal entitlement for a certain class of employees to a particular number of days, whether it be 12 or 13 or 14. I had, perhaps incorrectly, thought that our submission on this point in our written materials had been met with a strawman argument, saying that we were constructing some kind of strawman and that that's not what the SDA were actually putting.

PN1711

I think I was under a misapprehension because it seems clear that that is what they're putting: there would and should be a particular type of employee, a full timer or a five-day employee if they're a part-timer, who is entitled to benefits arising from a threshold number of public holidays - the number, I'm not sure - but at least all of those enjoyed by what has been called the standard - let's call him or her the standard worker, Monday to Friday.

PN1712

Why this is the relevant threshold, why that's the relevant class of worker is unclear, beyond an appeal to the public holidays test case decided in the mid-90s. We say that this would re-cast an entitlement public holidays in a way that is inappropriate under the Fair Work Act, at least on the terms of the Fair Work Act itself, and that there's no basis to characterise it in this way.

PN1713

Certainly the amendments to the SDA's - not the 9.58 am amendments today, but the amendments which came in their reply submissions - make it a less flexible form of leave or a less flexible entitlement, but when it boils down to it, it's still a bank of additional leave or a bank of additional pay, being a particular number that people are entitled to, and we say that that's not what public holidays are, looking at terms of the Fair Work Act.

PN1714

It can't be ignored in the evidence which is - the evidence which wasn't contested - it can't be ignored that employees who don't ordinarily work Mondays may miss out on some public holidays; it can't be ignored that some employees who work different rosters may get different public holidays to other employees; and the same employee might work the same roster one year to the next and end up with different amounts of public holidays.

PN1715

Say if a standard employee worked, he might have an Anzac Day on a Saturday one year in New South Wales and have a day off on the Tuesday the next year. It's no argument that this is variable, but we would say it's the natural and ordinary operation of the Act that this entitlement works in this way.

PN1716

Lastly, just on a substantive level, the SDA's actual appeal to fairness, I think as was demonstrated yesterday by Mr Ferguson in taking the Bench to the particular provisions of 2017 public holidays, it really will depend on what roster you work as to whether this will be fair for any employee.

PN1717

Secondly, as your Honour put yesterday, if the claim is granted, we will have a situation where so-called non-standard workers will actually get more public holidays than your standard worker. If all this is an appeal to fairness, I would say it's deficient, even on its own terms, which we wouldn't accept.

PN1718

Lastly on the SDA's case, I will just address the modern awards objective very briefly, and I would say I'm not alone in addressing the modern awards objective very briefly in this case. It's just a matter of clarification, and I just want to correct the record. The SDA notes in its reply submissions and its oral submissions yesterday that ABI considers the second limb of the modern awards objective encouraging collective bargaining to be neutral. That's not the case.

PN1719

We considered this claim wouldn't encourage - it's not neutral. In fact, it would discourage collective bargaining. This is a type of claim which would be bargained for, and I'm sure is. That's to correct the record. That's all I wish to say on the SDA's case, and I will be mercifully short on the AMWU's and HSU's claim.

PN1720

There are a number of propositions which we would say would be very uncontroversial: (1) it's not the role of the Fair Work Commission to define, increase, decrease public holidays, it's the role of state parliaments, that's a finding that has recently been made in the penalty rates case; and secondly, fundamentally, the operation of the Fair Work Act makes clear that if a day is substituted as a public holiday, it no longer is a public holiday.

PN1721

Those two propositions mean that the state government is subject to the constraints of the NES, have essentially been granted the prerogative to decide what public holiday is and what a public holiday isn't. There is no anomaly in this, there's no trick, there's no ambiguity, it's just the way the Act works. I would say that similar provisions have been argued at modernisation, and also at the two-yearly review, and we would commend the Full Bench of the Fair Work Commission in this case to come to the same finding as those Benches in rejecting the claim. Unless there are any questions, they are my submissions.

PN1722

VICE PRESIDENT HATCHER: Thank you. Ms Wellard.

PN1723

MS WELLARD: Hopefully Nick can hear me, Mr Tindley in Melbourne.

PN1724

MR TINDLEY: Yes, thanks.

PN1725

MS WELLARD: We rely on the submissions filed, and I will make some brief submissions this morning. In relation to the decision of the early 90s where Mr Moore says that that concept of fairness should be adopted today in these proceedings to support the claim the SDA makes, I just wish to say a couple of things. That concept of fairness was, as has already been put by my friends at the Bar table, to extend the number of public holidays, or the public holidays available to what are described as standard working hours, Monday to Friday employees, which is those that are described in the early 90s as non-standard working hours.

PN1726

As I understand Mr Moore's submissions, it's the intention that this claim be extended to part-time workers who work five days, on the basis that there is a significant number of part-time employment in the industries that are the subject of these claims. That is certainly the case, we would say, for pharmacy, and I think the data in the penalty rates case shows that it's about 57 per cent, so there are a significant number of part-time workers. What we don't know is whether they work over five days or not, and I will come to that in a second.

PN1727

There are a number of problems with simply adopting the concept of fairness from a decision in the mid-90s to today. Firstly is in relation to what is standard and what is non-standard work. It is my submission that in the early 90s pharmacies wouldn't be open as frequently on a Saturday and a Sunday as they are now. It is just different.

PN1728

The times have changed, and pharmacies in particular - and I would guess a number of industries that are the subject of claims here before the Commission - it just wasn't standard then and it is standard working hours now.

PN1729

With respect to the actual issue of fairness itself, another problem is that the concept of fairness from that case is not the same as the concept of fairness that the Act requires the Commission to consider now, and the Commission itself has determined - and my friends have been to this before - that "fair and relevant", fairness, in the context, is to be assessed from the perspective of the employees and the employers covered by the modern award in question, and "relevant" is intended to convey what a modern award should be suited to contemporary circumstances.

PN1730

In this case Mr Moore has accepted that the clause sought by the SDA would have unfair outcomes as between groups of employees. It would not provide fairness across the groups. It has been pointed out that employees who are employed on a full‑time but less than five day a week basis would get a greater benefit; part-time employees who work - and this was a question from your Honour the Vice President - who work, for example, 20 hours across five days, would get the additional benefit; but a part-time employee who works 20 hours across fewer days would not get the benefit.

PN1731

Having regard to fairness for employers, which this Commission is required to consider, and has determined itself that it is relevant, it would have an unfair outcome on employers. Currently there is no statutory obligation for the employer to provide this additional benefit.

PN1732

If the employer was required to provide a benefit, they are getting no additional labour for the - no additional productivity, no benefit for providing the day. It is completely an additional entitlement for which there is not benefit to the employer at all, and we say has an unfair outcome on employers.

PN1733

The employer would, in all likelihood, have to roster somebody to fill in for the day for the time off that this employee who, if they were to receive this additional benefit for their time off as an additional day, or when it's added to their leave. If I understand Mr Moore's submission correctly, he said that a commercially prudent employer - or words to that effect - would permit that day off at a quiet time when there was no need for replacement staff.

PN1734

Our submission on that point is that a commercially prudent employer simply just doesn't roster excess staff, and certainly not for whole days, or whatever the new averaging arrangement is in the clause proposed today, that a day would be. And it's certainly not - a small enterprise just does not have that excess staff in order to be able to do that, and most pharmacies are small enterprises.

PN1735

I just take a moment to focus on the evidence of Ms Clarke. Ms Clarke, and indeed most of the SDA witnesses, seem to come from the perspective that they are missing out on something. Ms Clarke has worked the same roster for 17 years. Ms Clarke works Monday to Friday on week and Tuesday to Saturday the next. Whichever week she works, whether a public holiday falls or not, her rate of pay is set and does not change on that basis. I didn't ask her any questions about whether or not she works overtime, but that is a separate issue.

PN1736

She gets the day off if she would have been rostered to work on a public holiday, and she gets to do - on that day, to participate in activities that are community activities or family and friends activities that would have occurred on that public holiday. If she isn't rostered on, she gets the day off, and again can spend time with family or friends on that day or participate in the activities that are associated with that particular day.

PN1737

She accepted in cross-examination that she does not miss out in participating in those things. This concept that they are missing out and therefore that is somehow unfair, is just not founded.

PN1738

VICE PRESIDENT HATCHER: They miss out on a day off work with pay.

PN1739

MS WELLARD: But there is no entitlement to that currently, your Honour. There is nothing that they are currently - that she is currently missing out on. She is seeking an additional benefit, sure, but she's not missing out on anything. We say that the SDA claim is not necessary. It is certainly not fair for either certain groups of employees or employers. It is not relevant to contemporary circumstances and should be rejected. Those are my submissions.

PN1740

VICE PRESIDENT HATCHER: I think that's all the submissions for the time being in Sydney. Mr Tindley, do you want to make your submission now?

PN1741

MR TINDLEY: Yes, thank you, your Honour. One matter that I would like to address initially is the document that was handed to the Commission yesterday as the statement of agreed facts between the ARA and the SDA.

PN1742

VICE PRESIDENT HATCHER: Just hold on a sec while I get that out. Yes, thank you. We have that.

PN1743

MR TINDLEY: While the content of that document is in some respects agreed, there appears, between the ARA and the SDA, to be some level of misunderstanding about the purpose for that document or what it was there to serve. The view of the ARA is that that document is a summary of the witnesses who have been called to give evidence in this matter and who are employed under the general retail industry award. It was not intended to be generalised to the retail population.

PN1744

And we think that's an important matter for us to raise because from discussions we've had with the SDA, it appears that we are at cross-purposes on that.

PN1745

VICE PRESIDENT HATCHER: Mr Tindley, reading it, it seems to me to be a series of self-evident propositions. Is there any proposition that you wouldn't regard as obviously correct on its face?

PN1746

MR TINDLEY: Your Honour, we accept that they are relatively uncontentious propositions, but it is about - one of the things that we say the SDA has failed to do is identify the scope of what this is addressing: the number of employees that it's addressing; the number of employers that will be affected. We say that that document says that of the eight retail employees who have given evidence, this is a summary of their evidence.

PN1747

The SDA is entitled to make submissions about whether there are other retail employees affected in a similar way; the Commission is entitled to make findings about that or accept that as generally likely; but we're just commenting about the purpose for which that document should be used.

PN1748

VICE PRESIDENT HATCHER: All right.

PN1749

MR TINDLEY: Thank you, your Honour. We've filed submissions, and I've been preceded by able advocates who have summarised some important aspects of the claim, so the intention of these oral submissions is to provide something of an overview of what we see the task of the Commission and the challenge for the SDA in having this variation application accepted, and then touching on some specific matters that we think require to be addressed in addition to what has been said thus far.

PN1750

We say in order for the Commission to grant the SDA's application it first needs to be satisfied that it has jurisdiction to do so, and in that sense we're talking not necessarily about the general legal view of jurisdiction, but jurisdiction in the context of the preliminary jurisdiction decision.

PN1751

Then, assuming the SDA makes its way across that bridge, it has to satisfy the Commission that the award is not meeting the modern awards objective, taking into account the matters set out in 134; and that with the variation of the award, would meet the modern awards objective; and further, that the variation is necessary.

PN1752

If we get past that hurdle - and we will set out shortly why we think that is not the case - the task of the Commission then is essentially a balancing exercise. It's not an easy exercise, and it's balancing what we say at two general - and in most cases two generally competing propositions, and they are the benefits or detriments to employees and the benefits or detriments to employers. And in this case the question is: does the benefit to employees outweigh any negative impact on employers?

PN1753

It seems to the ARA that the SDA bases its claim on two what we will say are interconnected propositions: one is that the public holidays test case is a previous decision that should be followed; and the other is that fairness between employees covered by the awards in question requires that those working what the SDA describes as non-standard hours are not disadvantaged.

PN1754

We will deal first with the preliminary jurisdiction decision and whether we believe the SDA gets across that hurdle. The preliminary jurisdictional decision recognised that:

PN1755

Significant changes must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.

PN1756

That's set out at paragraph 66 of the preliminary jurisdiction decision. There can be no doubt that this is a significant change. A Full Bench of this Commission has already recognised that this is a significant change. The Full Bench recognised this in rejecting the ACTU's claim in the 2012 transitional review, and you can see that extracted at paragraph 25(a) of the SDA's reply submissions.

PN1757

They refer to the aspect of the transitional review decision where the Full Bench identified this as a substantial and significant change. The third point on preliminary jurisdiction is the previous Full Bench decision should be followed unless there are cogent reasons for doing so.

PN1758

If we start with the issue of probative evidence, and particularly that probative evidence properly directed to demonstrating the facts supporting the proposed variation. It can be presumed that the SDA's witness evidence is directed to showing that retail - I will deal specifically with retail - retail employees who are, the SDA says, low-paid, that their needs will be served by this variation.

PN1759

The difficulty with that proposition is that the SDA - I withdraw that - none of the witnesses identify what their needs are; none of the witnesses identify how those needs will be served by the variation. We say there's no probative evidence directed towards demonstrating the facts supporting the proposed variation.

PN1760

Even if there was, we are dealing with eight individual employee witnesses with individual circumstances, those circumstances very different to each other. There are some who have received benefits that would equal those of Monday to Friday employees; there are some who have received benefits that would be lower than Monday to Friday employees. We say the SDA fails, and fails significantly on that basis.

PN1761

They also fail, in our submission, in relation to supporting their application with a submission which addresses the relevant legislative provisions. We accept the SDA has identified the relevant legislative provisions, but we say they haven't appropriately addressed them. The SDA's submission goes to the matters of fairness and purported non-standard worker disadvantage.

PN1762

We start with the issue of fairness. It's our submissions that the context in which the SDA relies on the use of the term "unfairness" is not that that's contemplated in the legislation. Section 134 requires the Commission consider whether the modern awards, in conjunction with the NES, represent a fair and relevant minimum safety net, having regard to a number of factors.

PN1763

Fairness, as Ms Wellard highlighted, is to be considered from the perspective of employers and employees, and this was confirmed in the penalty rates case. But we say fairness is about the overall fairness of the conditions of an award and not about fairness between individuals covered by that award. The legislation requires the Commission to determine fairness having regard to those relevant subsections of 134(1), and none of these require the Commission to conduct a comparison between the benefits of different employees covered by that award.

PN1764

The second matter anchors itself in the needs of the low paid. As we've said, the evidence doesn't identify what those needs are or how they will be served, neither does the SDA's submission. It is open to the Commission to conclude that the needs of the low paid are in some way advanced by the provision of additional income, but the problem with that in terms of, first, the evidence, is that no witnesses identified how additional income would meet their needs or what those needs are.

PN1765

The problem becomes more difficult. The SDA, in our submission, starts tying itself in knots when it changes the nature of the benefit. What the SDA is saying in its submission - and this is clearly in response to submissions about the additional cost of this application to employers - is that, "No, there won't be any additional costs. Employers will just roster people other days or give the additional rostered day off with no additional cost and they won't replace the employee."

PN1766

Let's assume that some academic level that that's correct. We now have no connection between the variation and the needs of the low-paid. There's no witness who said that their needs would be served by having an additional day off; there is no research that identifies additional days off assist the low-paid; indeed, the penalty rates case identifies that the predominant way of meeting the needs of the low-paid, and that's through minimum wage increases.

PN1767

So there's a significant disconnect between the SDA's argument and the legislative provisions. We understand, and we to some extent appreciate the difficulty that they face. If we run with a position that employers will pay an additional day, we have a significant additional cost. We stand by the calculations were provided in our submissions.

PN1768

It appears from the submissions of the SDA the only challenge to it is in terms of the treatment of a day's pay and the hours of part-time employees, but we say that doesn't substantially alter the calculation, and that the calculation is still a significant number. So if we run with an additional day, we might - we're not certain, but we might be meeting the needs of the low-paid in some way; but we're also substantially increasing employment costs and having an impact on productivity because there is no productivity gain to be had from this additional cost.

PN1769

So to try to address that we say, "Well no, there's not going to be an additional cost because employers won't incur that cost, they will just roster the person off on another day when it's quiet." That is, we say, an unsustainable proposition; but even if it was, you may to some extent have dealt with some of the issues with the employment costs and productivity, but you certainly haven't met the needs of the low-paid, because you don't know what those are.

PN1770

If I can touch briefly on the public holidays test case. There have been numerous submissions made on it, and we support, in general, those submissions. We make one additional observation that we don't believe has been raised, and that is the reliance of the SDA on a decision in the award flexibility common issue, and that decision accepting, in the SDA's submission, the relevance of the family leave test case, and that that supports a proposition that equally the public holidays test case should maintain its relevance.

PN1771

We say that there are two points to be made on that: one is that in the award flexibility common issue and considering the family leave test case, the Commission limited the relevance to some aspects; and the second is that the aspects that we say the Commission inferred were no longer relevant, in recognising a different statutory context, were from the NES entitlements.

PN1772

We say that this is the same circumstance as the public holidays test case. NES entitlements have been implemented which deal with public holiday entitlements as a safety net, and the public holiday test case has no relevance. What we would also say is that interposed between then and now is a conscious decision by the Australian Industrial Relations Commission and then Fair Work Australia to exclude the provisions sought by the SDA from the general retail industry award in particular.

PN1773

This requires an analysis of the award modernisation process, and I believe - and I don't wish to put words in his mouth, but I believe senior counsel for the SDA described this issue as having been dealt with peripherally in the award modernisation process.

PN1774

If I can take the Bench through that process - and I don't believe that this is controversial - in terms of this specific provision, in July 2008 the SDA filed submissions and a parties' draft award in the award modernisation process. The draft award contained provisions substantially the same as the current application. In their submissions the SDA and alerted the Commission to the consistency between their proposed provisions and the public holiday test case, and I believe that the comment that they made in those submissions was that those provisions had been thoroughly arbitrated by the AIRC.

PN1775

12 September 2008, having heard submissions from various parties, the AIRC released an exposure draft omitting the SDA provisions. The SDA filed submissions in response to the exposure draft, those were dated 10 October 2008. In those submissions at paragraphs 147 to 154 the SDA raised the omission and again, we would say, shone a light on the public holiday test case. A decision was issued on 19 December 2008, which was effectively the making of the general retail industry award, and the Commission elected not to include the SDA's provisions.

PN1776

That wasn't the end of it. Towards the end of 2009 the SDA made application to vary the general retail industry award to insert a provision, again substantially similar to the proposed variation in this matter. The Full Bench of Fair Work Australia, 29 January 2010 - and that is a citation [2010] FWAFB 305 - rejected the SDA's application, saying the following:

PN1777

In the context of opposition by employers, the NES and limited award supplementation, we do not believe that a case for these variations has been made out.

PN1778

We say that is something substantially beyond peripheral consideration. We accept that no evidence was called; however, when we consider the level of evidence called in this matter, it is not unreasonable to conclude that had that evidence being presented to Fair Work Australia in 2009-2010, the result would not have been different. This is very limited evidence. This can be contrasted to matters where there have been contested proceedings through the award modernisation process, and I talk specifically about penalty rates.

PN1779

The retail industry sought - through the award modernisation process, in a similar way to which the SDA sought the insertion of these provisions, the retail employers sought penalty rate reductions in line with what was proposed and awarded in the penalty rates common issue in this review, but the difference between the two cases could not be more stark: eight individual witnesses talking about their personal circumstances against a mountain of expert and lay-witness evidence, substantial submissions, and research.

PN1780

We say that the public holiday test case was rejected in 2008, 2009 and 2010. We say that it has therefore lost its relevance and cannot be said to be relevant to the SDA's application. Given that, the SDA's application must fail.

PN1781

A couple of other issues that I would like to raise. In terms of the concept, and what appears to have been accepted by senior counsel for the SDA yesterday, that the unfairness - the purported unfairness that is sought to be addressed by this application will be replaced by another unfairness in that other employees - so what the SDA calls non-standard employees - will receive entitlements that are greater than those of Monday to Friday workers.

PN1782

It cannot be necessary to include a provision which replaces one purported unfairness with another purported unfairness. We say further about that issue that the idea that non-standard workers need to have an entitlement that equals or is greater than what the SDA would call standard workers is, in our view, an absurdity. Non-standard work is compensated in the award. It is compensated through penalty rates. The dis-utility with working particular hours is addressed through penalty rates, and that was recognised by the Full Bench. We don't see how public holiday entitlements are relevant in that context.

PN1783

One other matter that I would like to raise, that this goes to, in our submission, the heart of this issue of employment costs and needs of the low-paid. It was accepted - and it's in our submissions within - it was accepted in the penalty rates case that retail employers fix their labour allocations against budgets, and those budgets are based on sales targets. It follows from that, and was accepted, that increases in labour costs are likely to impact on employment.

PN1784

It is reasonable to assume or reasonable to conclude that this variation will impact on labour costs, even given the SDA's assertion that retailers will just roster additional days off. Critically, though, the increase in labour costs impacting on labour hours offered impacts on employment security.

PN1785

I would like to read to the Commission a quote from a submission made by the SDA to the Senate Inquiry into corporate avoidance of the Fair Work Act. I don't have a copy to provide. I haven't provided copies, but it is a brief comment. I will ignore the elements that deal with a battle between the SDA and another body, and say:

PN1786

He apparently espouses a Leninist Trotskyite philosophy of militant unionism without any appreciation of the consequences and the harm which such a program might cause for the vast majority of the SDA's membership who consistently report to the SDA that they value job security above many other considerations.

PN1787

One of the needs of the low-paid, according to the SDA, is job security, and job security is not advanced by variations to awards which increase labour costs and impact on labour allocations. Those are the ARA's submissions, unless there are any questions.

PN1788

VICE PRESIDENT HATCHER: Thank you. Mr Moore, I think it's better for you to go next to reply to - to deal with the club's award, and then to deliver your reply submissions.

PN1789

MR MOORE: Yes, your Honour. Can I just have a moment, your Honour, just read something. Thank you, your Honour. Dealing with the clubs, Clubs Australia made some submissions about the meaning and the operation of the Act which are relevant to the SDA's application, and that's the focus of my submissions in relation to the clubs submissions, so we don't wish to be heard on the merits of the clubs application to have the relevant clause of the award removed, but their submissions concerning the Act have an obvious relevance to the SDA's application or the SDA's - the variations it seeks.

PN1790

The proposition that was advanced was that the relevant clause of the clubs award which is sought to be removed excludes the NES and/or is inconsistent with it. I think that matter was ventilated to some considerable detail yesterday, but to be crystal clear about it, we make five or six points about that.

PN1791

First, the same or similar argument was put in the public holidays transitional review, as I think Hampton C noted in referring to - I think it's paragraph 60 of that decision; secondly, that argument was rejected by the Full Bench in that case; third, the Full Bench, in any event in that matter, clearly found that there was no impediment as a matter of law to including a clause which relevantly for present purposes was of the same type as now sought by the SDA and which clubs seek to withdraw from the clubs award because it supplemented the NES.

PN1792

The fourth proposition is that Clubs Australia have not demonstrated that that decision of the Full Bench in the transitional review was wrong, and therefore should be followed. The fifth proposition is that to further clarify, and to assist the Commission as to what is meant by a provision of an award which excludes the NES, I can draw the Bench's attention to the four-yearly review decision re alleged NES inconsistencies, which is, without asking the Bench to open the decision, but it can be noted it is at tab 5 of the Clubs Australian folder, it's [2015] FWCFB 3023, and at paragraph 37 the Full Bench there referred to an award provision which excludes a provision of NES, "In the sense that in their operation they negate the effect" - so negate the effect of the subsection.

PN1793

So that's what I take from that decision the Full Bench understood to be the meaning of the word "excludes". The sixth point is that here the provision proposed by the SDA, and the provision which is currently in the clubs award, cannot arguably be said to negate section 116 because the section does not - looking at its text and the context of it - prohibit payment in respect of public holidays that are not worked. Nothing in the text or the context supports such a construction.

PN1794

They're the point we make in relation to the submissions by Clubs Australia on the Act. The only other point I note briefly is that Clubs Australia relied on a decision in tab 6 of their folder for a broad proposition as to why the NES isn't to be supplemented. That proposition is wrong, and we note that the authority that was relied upon by Clubs Australia is a dissenting decision in the family and domestic violence leave case.

PN1795

Instead it comes back to - the question of supplementing the NES comes back to the Commission directing itself to the question of whether the inclusion of a term is necessary to achieve the modern awards objective. That's the task. We've addressed you on that in terms of questions of fairness, and relevance, and having regard to the continuing relevance of the public holiday test case, which I will come to some more in a moment, and in particular the prevalence of non-standard working conditions.

PN1796

I don't mean to overlook the need to - in considering fairness and relevance - to direct the Commission to correct itself to the mandated matters in section 134. That's all I wanted to say in response to Clubs Australia's submissions. Shall I proceed to ‑ ‑ ‑

PN1797

VICE PRESIDENT HATCHER: Yes.

PN1798

MR MOORE: The first point, there's a debate between Ai Group - I will deal with the Ai Group first, if I may - about between attachment A to their submissions and schedule 1 to the SDA's submissions, and they're the respective tables which, if I can say in general terms, are an attempt to list the awards which contain a provision like that currently sought by the SDA.

PN1799

We've identified some 47 awards in our table and Ai Group says there are six, so that's not of great assistance to the Commission, to be left with that situation. I think the answer, though, in the difference of position lies in the level of precision and specificity that both tables are directed at. We've made quite plain in our submissions that our table is broadly directed - that is, we've sought to identify all of those awards which contain a provision of the type here sought to be inserted into the awards by the SDA.

PN1800

And as we've noted in our submissions, some of the provisions in those 47 awards are different materially in a number of respects and some of them are closer. I think ‑ ‑ ‑

PN1801

VICE PRESIDENT HATCHER: I think once we take into account the footnotes in the AiG table, they broadly line up.

PN1802

MR MOORE: Yes. The Ai Group accepts - if I can move on to the next topic, the Ai Group accepts that the public holiday test case is not irrelevant, but there are, they say, cogent reasons for this Full Bench to consider departing from it, and those reasons are said to relate to the statutory framework. We make a few points about that.

PN1803

First the Ai Group does not engage with the SDA's reliance on the award flexibility four-yearly review decision which we address at paragraph 39 to 40 of our reply submissions where the Full Bench accepted that there were significant differences in the statutory framework between the family leave test case provision and at the time in which the Full Bench was then considering the matter, but there was no reason to depart from the test case standard re the calculation of TOIL.

PN1804

It's important here to keep squarely in mind the focus of the particular reliance the SDA places on the public holiday test case. Of course it's a different statutory framework. What is central and of great significance, we say, is the Full Bench's recognition that as a matter of fairness and as a safety net standard, full-time employees, being the class addressed by the Full Bench then:

PN1805

Should be assured the benefit of prescribed holidays and not be disadvantaged by the fact that a prescribed holiday falls on a day when they would not be working.

PN1806

That is the specific reliance was placed upon it as to that very clear statement of principle as to fairness.

PN1807

VICE PRESIDENT HATCHER: In that context the Retailers Association referred to that specific decision in the award modernisation process where the SDA tried to have a provision of this nature inserted, and that was rejected by the Full Bench.

PN1808

MR MOORE: Yes.

PN1809

VICE PRESIDENT HATCHER: That implicitly, I assume, involves a rejection of the notion that the public holidays test case should be applied.

PN1810

MR MOORE: We wouldn't accept that, your Honour, with respect. I don't have at hand the history of the process leading to the making of the modern award - and we're here dealing with the general retail industry award in particular, as I understand from Mr Tindley's submissions - but for the sake of the submission I'm happy to accept Mr Tindley's narration of those - excuse me, your Honour. Yes.

PN1811

The broad arc of the narrative that Mr Tindley advanced in terms of the publication of a draft award and the filing of submissions and the issuing of decisions by the Commission leading to the making of the modern awards, I will accept for present purposes. What needs to be accepted - understood, though, is that there were no arguments or detailed oral submissions by any party on the question of public holidays; in contrast, for example, to the question of the debates and the oral submissions which were made on the question of penalty rates.

PN1812

I think at best it might have been almost the subject, I'm instructed, of one line made by the ARA, as I'm instructed, in the process leading to the making of the awards in which the ARA adverted to this particular element of the award proposed by the SDA in which the ARA rejected that claim, and that is in the context of what I'm instructed to be that there were some four days of oral submissions on the making of the general retail industry award.

PN1813

We have four days of argument and the matter is, at best, adverted to in a line or two by the ARA in noting its rejection of that particular element, the inclusion of a clause to that effect. The written submissions filed on the question of public holidays were very limited. Most of those submissions, I'm instructed, went to the question of the public holiday rate, not at all this matter.

PN1814

And the Full Bench's dismissal, so to speak, in the 2008 decision went not just to this matter, but went to a whole lot of other claims that the SDA wanted to have included in the award; leave entitlements, such as provisions dealing with annual leave, sick leave, carers leave, parental leave.

PN1815

VICE PRESIDENT HATCHER: I take it that you don't submit that there's a requirement for material change in circumstances since that decision was assumed.

PN1816

MR MOORE: The SDA has the view in proceedings elsewhere that that is a requirement of the Act. However, we are here today in this case in circumstances in which those other judicial review proceedings have not yet been determined, and as a consequence the decision of the Full Bench in penalty rates rejecting the need to show material change in circumstances is the - - -

PN1817

VICE PRESIDENT HATCHER: The current authority.

PN1818

MR MOORE: It is the current authority. And so we work within the current authority and the law as it stands until otherwise determined by the Federal Court. And we've made plain in our submission is that in adopting that position, we do so without prejudice to the submissions that the SDA makes in the Federal Court and judicial review proceedings.

PN1819

So to conclude the matter of what happened in the award modernisation in a summary way, we here had - as members of the Bench will be familiar, and to varying extents - we here have a massive process of the condensation of numerous pre-modern award instruments being compressed into the making of 122 modern awards in a great rush, with a whole of claims in made by unions and employer organisations.

PN1820

It is so that one of those claims concern a claim of the type here being made, that the Full Bench in its wisdom, decided not to include in the award. It does not follow from that that the Full Bench can be taken, as Mr Tindley has submitted, to have rejected the binding force of the public holidays test case. As I'm instructed there were no submissions in any way about that. It was a claim made, and it was a claim rejected in the context of the very compressed proceedings that I've just outlined.

PN1821

Coming back to the Ai Group's submissions and proposition that there are cogent reasons for departing from the public holidays case. I've made the point that they - - -

PN1822

VICE PRESIDENT HATCHER: Sorry, just to complete that point. So in effect you say the Full Bench in 2010, their attention was not drawn to the public holidays test case at all?

PN1823

MR MOORE: If I might just take instructions on that, your Honour.

PN1824

VICE PRESIDENT HATCHER: We can check record if we need to, but.

PN1825

MR MOORE: I can't confirm that, but if I might take that on notice so that I don't leave the matter up in the air. I don't want to mislead the Commission or give an inaccurate impression. So if we may take that on notice and undertake to provide a communication to the Bench from the parties in answering that question.

PN1826

VICE PRESIDENT HATCHER: Right.

PN1827

MR MOORE: In terms of the Ai Group's submission around why there are cogent reasons to depart, (1) we say they don't engage with the approach of the award flexibility Full Bench where the older family test case was considered to have continuing relevance, notwithstanding the changed statutory framework. I've made plain also, I think, the particular reliance upon which we place on the public holidays test case around the statement of authority and principle about fairness, and I won't repeat that.

PN1828

In terms of the other points the Ai Group make, they say, "Well, the NES lays down a 'comprehensive entitlement to public holidays'." That, with respect, can only be regarded as an inaccurate description of the NES. All the NES does is prescribe public holidays and provide a right to be paid in respect of them; otherwise the NES is wholly silent about public holiday entitlements.

PN1829

To suggest it's a comprehensive code about the various sorts of employment arrangements that might be struck in relation to public holidays can't be accepted, in my respectful view. It is plainly, and in line with the statutory context, a minimum rather than competency set of provisions.

PN1830

Then it's said, "Well, the other difference in statutory framework is the existence of section 134 and the need - the modern awards objective, as there set out, and the need for necessity" - if I can paraphrase - as set out in section 138. Of course those provisions form fundamental parts of the statutory framework, but their existence provides no mandate for erasing and just disregarding an established notion of fairness.

PN1831

I mean, many of the employers' submissions proceed from the premise that, "We're just starting again here, we will just ignore what the Full Bench decided as to fairness 22 years ago." Such an approach completely overlooks the established practice in this place, which is that previous decisions of Full Benches are binding and should be followed unless there are cogent reasons for doing so. So that's what we say about the Ai Group's submissions on that point.

PN1832

I think the next topic was what was described as being the fundamental deficiencies in the proposed clause. We've sought to address those in the amendments. As I think I mentioned earlier this morning, the proposed amendments to the clause which I've provided address, we say, all of the claimed deficiencies in wording. It leaves the question of what was said to be unjustifiable windfall gain to full‑timers who will get the benefit even if they work less than five days.

PN1833

We say that that goes - that's obviously not a drafting issue, it goes to the test case standard, and the premise from the test case standard is that all full-timers had an entitlement to have the benefit and to be paid in respect of all public holidays.

PN1834

The next point concerned the Ai Group's - the Ai Group drew attention to a table at paragraph 622 of its submissions. I think in the materials that were helpfully copied by the Commission's staff there's a document in colour which has at the top "AM2014/301 Public Holidays Common Issue", which has two tables. Do the members of the Bench have that?

PN1835

VICE PRESIDENT HATCHER: Yes.

PN1836

MR MOORE: Let me explain this table. Before doing so, the Members of the Bench will remember that the table in 622 of the Ai Group's submission combines together and highlights in red all of those circumstances where Monday to Friday workers get less public holidays than non-Monday to Friday workers, together with the circumstance where those two groups get the same number of public holidays, and for the year 27 (sic).

PN1837

The first table in the document I've handed up replicates the paragraph for the table in 622 of the Ai Group's submissions, so that we have separated out those two groups rather than combining them together. So one will see there, across the top, the first column, that's the benchmark, as it were, of the number of public holidays for Monday to Friday workers; and in orange highlights, those circumstances where a non-standard worker - that is one working other than Monday to Friday - receives more public holiday benefits than a Monday to Friday worker.

PN1838

VICE PRESIDENT HATCHER: Your numbers seem to be different in some cases.

PN1839

MR MOORE: Are they?

PN1840

VICE PRESIDENT HATCHER: For example, I'm looking at Northern Territory and New South Wales.

PN1841

MR MOORE: I'm just checking that, your Honour. They are different.

PN1842

VICE PRESIDENT HATCHER: Tasmania, Victoria and Western Australia look to be the same, the others seem to have differences.

PN1843

MR MOORE: We're just clarifying that now, your Honour. I will come back to that, if I may. What we've then done, just putting that issue to one side, is project forward to 2018, which is the second table. We've looked at when the public holidays fall in 2018. In relation to 2018 the number of public holidays for a Monday to Friday worker in each of the states and territories is in the top row.

PN1844

Those ones in blue marked thereunder are those working day arrangements in which the there identified non-standard worker gets the same number of public holidays as a Monday to Friday worker; white is less than non-standard worker; and orange is where they get more. One can see a very different situation presents itself in 2018 because, of course, of the days upon which public holidays fall varying from year to year. We thought it important to present that evidence so that the Commission doesn't unduly fixate, as it were, upon the picture which emerges in 2017.

PN1845

I understand, going back to the first table, that I - I had proceeded on the misapprehension that we would simply use the number of days in the table in paragraph 622 of the Ai Group's submissions.

PN1846

Apparently I'm told that the people who did the work on this overnight actually looked back to examine whether or not those number of days were in fact accurate, and came to a different view as to the actual number of public holidays in 2017, and thus the different number of days recorded in the first table on the piece of paper for 2017; which is a long-winded way of saying we've - yes, so there are quite a few differences in the data which is in the first table, compared to the data in paragraph 622 of the Ai Group's submissions, and that reflects the fact that we don't accept the accuracy of the data in the Ai Group's submissions and the accurate number of the public holidays, we say are as set out in the document that I've handed the Bench. I take it there's no need to tender that document, your Honour.

PN1847

VICE PRESIDENT HATCHER: No. I can indicate it would be desirable if perhaps the parties can have some discussions and identify what the right numbers are.

PN1848

MR MOORE: Yes, your Honour.

PN1849

VICE PRESIDENT HATCHER: There can only be one answer.

PN1850

MR MOORE: Yes, your Honour. I'm sorry, I have not appreciated that we had gone behind the numbers in paragraphs 622. We will engage with the Ai Group about that.

PN1851

VICE PRESIDENT HATCHER: For example, it doesn't seem right to me that New South Wales only had nine.

PN1852

MR MOORE: We will engage with the Ai Group about that and inform the Commission accordingly. I can next turn to the submissions delivered by the advocate for the New South Wales Chamber and ABI. With respect, the submissions demonstrated a profound misunderstanding of the statutory scheme, in particular the submission that in relation to section 134:

PN1853

Fairness is a relevant consideration, probably an operative consideration.

PN1854

Again it is absolutely essential that the Commission not overlook that task which it's charged to undertake, which is, I think, lost in many of the employers' submissions, which is direct itself to the question of ensuring that awards provide a fair and relevant minimum safety net of terms and conditions having regard to the mandated matters set out. It's a vast and misleading statement to say it's a relevant consideration - that is, the question of fairness - it is the task to find and to ensure that awards are fair and relevant in their minimum provision.

PN1855

The point is made, "Well, award provisions need to make sense now to be fair. They have to be fair today." That's a point that I acknowledge as being well made, that the task of the Commission is to consider the question of fairness today or at the current time. What we say, though, is that as with tribunals and courts, one does not reinvent the wheel and start from a blank sheet on each occasion.

PN1856

Without repeating my submissions unduly, we say there is a decision of the Full Bench of the predecessor of this tribunal which should be followed, absent cogent reasons. I think that's all I wanted to say about the ABI's submissions.

PN1857

The members of the Bench should have another document there which is headed Variable Public Holidays, a one-page document. Before explaining what this is, this work was undertaken overnight in light of, I think, and exchange I had with the Bench yesterday around how often public holidays fall on a weekend.

PN1858

What we've sought to do here is to direct ourselves to what we've turned variable public holidays; that is, public holidays that don't fall on a designated day of the week, and apply - so there are five of those, being New Year's Day, Australia Day, Anzac Day, Christmas Day and Boxing Day - and then apply those holidays to the calendar going out to 2029. The results are as set out in the table.

PN1859

What one sees, in broad compass, is that there are no more than three of those variable public holidays that will fall on a Saturday or Sunday over that period of time. I think there was an exchange with your Honour the Vice President yesterday, and your Honour may have adverted to it being up to six public holidays that fall on a weekend. That could, we say, only be the case, once one has regard to this analysis if, in relation to those years where there are three variable public holidays that fall on a weekend, if one adds to that the designated Saturday or Sunday public holidays.

PN1860

But in other years one will see that in relation to the variable public holidays, there's only one; and I think on one year, none - or two years - that fall on a Saturday or a Sunday. In any event, that's provided to assist the Commission in relation to those matters.

PN1861

Can I now turn to the submissions advanced by the Pharmacy Guild and just make a few points. One of the problems it's asserted arises from adopting the notion of fairness fixed upon by the Full Bench back in the public holidays case, it's said pharmacies weren't open on weekends back then. We say that doesn't assist the Guild in its argument. In fact, it helps our case. As we've sought to make clear, it's the increasing prevalence of non-standard working conditions which is one of the critical factors which makes the inclusion of the provision we seek necessary to ensure that the award is a fair and relevant minimum instrument.

PN1862

I think Ms Wellard, and I think another employer advocate, referred to the acknowledgement I made yesterday as to there being - that if the claim is granted, that non-standard workers, as we describe them, would have a marginally greater entitlement to public holidays than Monday to Friday workers. Without repeating what I said on that yesterday, I don't recall conceding that that outcome was unfair, as has been attributed to me today - I'm sure the transcript can be checked.

PN1863

But in any event, we accept that there is a difference, that a difference will occur, but that that difference is marginal and much less than the difference that currently exists between the public holiday entitlements of standard workers and non-standard workers.

PN1864

VICE PRESIDENT HATCHER: It may demonstrate that it's very difficult, if not impossible, to come up with an arrangement which would actually give everybody an equalised number of public holidays.

PN1865

MR MOORE: This was a point which your Honour has, with respect, better articulated than I attempted to yesterday. The point I attempted to make yesterday, however poorly, was in essence to say that the pursuit of perfection here is going to be elusive. Trying to line everyone up is perhaps an illusion unless one says that Monday to Friday workers - that one says that they have an entitlement to public holidays which fall on a weekend as well.

PN1866

I think everyone could be lined up and treated the same if, in relation to all workers, there was a generalised entitlement to public holidays on days on which they don't work. Save for that scenario - and we haven't made the application - one is inevitably left in a state of imperfection and some difference between categories of workers, but that's not a reason for not doing it.

PN1867

Ms Wellard made a point that in terms of fairness she says, "No additional labour is provided for the employer if this variation was made." That inserts into the notion of fairness some requirement for a quid pro quo between employee and employer in some sort of direct way. If that was an essential element of fairness, there would be numerous and many employment entitlements which employees would have no proper entitlement to because, for example, they get days leave of other types and they're not providing their labour, so we say that introduces an unnecessary and inapplicable notion of fairness.

PN1868

VICE PRESIDENT HATCHER: In so far as your clause gives the option of providing a day's pay, that would result, would it not, that non-standard workers would end up with a greater annual income than workers with standard hours, leaving aside issues of penalty rates and the like.

PN1869

MR MOORE: Holding all else the same, and if that was the election adopted by the employer, if that's what the employer determined was the most appropriate way to deal with the entitlement, I think that would follow, your Honour. Lastly Ms Wellard referred to the evidence given by Ms Clarke and said that evidence sprung from - my words - a misconception that she was missing out on something, and it was said she gets the public holidays, she has these public holidays, say, on a Monday when she's not working on a Monday and she can go and enjoy public commemorations and activities on those days so she's not missing out on anything.

PN1870

We say that that overlooks the essential element of fairness which comes from the public holidays test case, which I adverted to yesterday, which is the proposition that it is essential that those who don't work Monday to Friday should receive an additional day off on pay. And so in the case of the witness that was called who works in the pharmacy, Ms Clarke, she didn't get a benefit on the Monday she didn't work, she wasn't rostered to work that day.

PN1871

So it's no answer for the Guild to say, "Well, she was able to go to Australia Day activities or to the local show activities or whatever and participate in the way in which one might on a public holiday event." She wasn't rostered work that day so she has not received the additional benefit, that additional day off that the public holidays test case mandates should be afforded to employees in her circumstance.

PN1872

Can I turn now to the ARA. Firstly in relation to the statement of agreed facts, we were very surprised and disappointed about the position that has been reached, as I understand it, from previous directions hearings in this matter. The parties were urged to do what they can do agree on matters to render the proceeding more efficient. That process was undertaken with the ARA and an agreement was reached. The ARA has now resiled from that agreement. That is the reality.

PN1873

VICE PRESIDENT HATCHER: As I indicated, Mr Moore, it seems to me - and no one has persuaded me otherwise - the document consists of propositions which I am speaking for myself, regard as self-evident.

PN1874

MR MOORE: Indeed, your Honour.

PN1875

VICE PRESIDENT HATCHER: I'm not sure they need to be agreed by anybody.

PN1876

MR MOORE: Your Honour, I think we have the same view. I don't want to say anything further about the change in the ARA's position. We have to deal with the realities as it stands. Where we are left saying is that the Commission should accept the proposition set out in that document. They are either uncontroversial and self-evident; or if not, supported by the evidence, and the Commission is well entitled to proceed on that basis.

PN1877

And we, for the same reason - different reason, in fact, in relation to the - there is a table attached to the statement of agreed facts, schedule A, which simply lists out the number of public holidays on a Monday in 2015, 2016, 2017; likewise, that's an uncontroversial document and should also be accepted to assist the Commission.

PN1878

The ARA advanced what we considered to be a rather Delphic submission around jurisdiction. They contended that the Commission must be satisfied that jurisdiction exists. Well, the ARA needs to nail its colours to the mast, and they haven't. They have not identified any actual absence of jurisdiction and say unless it's being said - unless it's being said, well, the SDA - which I know it is being said.

PN1879

If it's being said, "Well, there is no jurisdiction because the SDA hasn't advanced a cogent merit submission supported by cogent evidence," if that's the extent of the so-called jurisdictional complaint, we can deal with it, but it's unclear to me if the ARA is referring to any other broader issue of complaint around jurisdiction. Our view of that is that there is no question that the - - -

PN1880

VICE PRESIDENT HATCHER: I think I understood it to mean that you hadn't demonstrated that the claim was necessary to meet the modern awards objective, about which you've made extensive submissions.

PN1881

MR MOORE: That's right. We stand behind our case and say we have done that. One of the specific points that the ARA makes is in relation to the element, section 134(1)(a), the needs of the low-paid and relative living standards, it said, "Well, the witnesses don't identify what their needs are." Well, that's introducing a gloss on to the provision. Is it seriously being said that witnesses need to come along and attest to the fact that they need housing, to be fed, warmth? Is that - it seems to be the tenor of the ARA's submissions.

PN1882

VICE PRESIDENT HATCHER: I thought they were saying it hadn't been demonstrated why there would be a need, associated with being low-paid, to have, in effect, a substitute day off where you don't get the benefit of the public holiday; expressed as a need, as distinct from a preference or a desire or something like that.

PN1883

MR MOORE: That wasn't how I understood it, but if that is how it's being put, your Honour, we would take issue with that because that proceeds from false premise that a particular award provision must, in some direct way with a - let me start again. We say that the needs of the low-paid are clearly a mandated consideration. The question for the Commission in any particular case is whether or not the needs of the low-paid will be affected by how they will be affected by any particular provision.

PN1884

One does not introduce a further element of saying, "Well, this particular award provision is not directed at advancing the needs of the low-paid." One does not look of the purpose of the award provision to ascertain the question of how of section 134(1)(a) is being advanced.

PN1885

VICE PRESIDENT HATCHER: If a claim results in more money going to an employee, one can readily understand how it might meet the needs of the low-paid.

PN1886

MR MOORE: That's right.

PN1887

VICE PRESIDENT HATCHER: If, for example, it gives them more time off as distinct from more money, then perhaps the link becomes more obscure.

PN1888

MR MOORE: That's a slightly different point, your Honour. But to go back to the first example; if, for example, a claim involves the provision of a uniform allowance or the provision of a uniform, we say that although the purpose of that provision is to ensure that employees wear correct attire and don't have to pay for it or it's provided, that that is a provision which serves the needs of the low-paid, if they be low-paid, because it reduces the burden of having to purchase the inform itself.

PN1889

To come to your Honour's question about public holidays, the needs of the low-paid, we don't accept are confined to the purely pecuniary needs of the low-paid. Plainly it embraces those needs, the financial circumstances of such person and what resources they might have to meet the various exigencies of life; that would be embraced within the needs of the low-paid. But the needs of the low-paid can also extend, and do properly extend to non-financial benefits, such as the provision of days off work and having permission to not attend for work.

PN1890

But here in this case the benefits that are sought to be provided by the variations would be, being those at the election of the employer, would extend to include the provision of a financial benefit, which plainly it would assist the needs of the low-paid; or alternatively a day off. We say that in that scenario even the provision of a day off, having permission not to attend for work, is the provision of a benefit which relieves them of the obligation to provide their labour for their remuneration, and is therefore the provision of a benefit which advances and supports their needs.

PN1891

I think the ARA, and I think other employer groups made a submission to the effect that the statutory requirements and the modern awards objective is not about fairness between employees. It is correct to say that in the penalty rates decision the Full Bench did state - and to paraphrase, as I recollect it, that fairness connotes fairness between employee and employer, and it needs to be looked at from the perspective of both the employee and employer.

PN1892

That is so, but that does not preclude, and thereby hive off, as it were, questions of the relative treatment by the employer of different classes of employees. At the end of the day, of course, this provision self-evidently would impose an obligation on the employer for the benefit of a particular class of employee.

PN1893

So we say that that question doesn't really alter anything, and that ultimately it is about looking at the question of fairness from the perspective of an employee and employer. We've put the case many times in the last day as to how we say fairness is advantaged and served, and I won't repeat that.

PN1894

We will - I think I indicated before - yes, we will come back to the Commission and inform the Bench clearly about whether the public holidays test case was addressed by the Full Bench in award modernisation. Yes. Excuse me, your Honour. Just to clarify, your Honour, we will address ourselves to the question of whether or not the Full Bench dealt with public holidays test case in the award modernisation decision proper and in the proceedings thereto, but also the proceedings that sat around that, one of which was referred to Mr Tindley, being an application made by the SDA to vary the award.

PN1895

Two other points, I think. I think the ARA submitted that the situation of non-standard workers is addressed through penalty rates. We've said - and we've said in our submission, and we repeat it now - the fact that a person receives a penalty rate for working, let us say, on a Sunday, that penalty rate is provided to compensate the employee for the disutility associated with working on that day. It is not relevant and does not bear upon the question of fairness as here raised in this application as to public holidays.

PN1896

VICE PRESIDENT HATCHER: It doesn't take into account the disutility of not working on Mondays.

PN1897

MR MOORE: It's a nice way to put it. Yes, your Honour. I think the last matter I want to raise is in - an issue was raised a couple of times yesterday by your Honour the Vice President with me, and I think with counsel for one of the employer - with the AiG, I think - about the question of data around the numbers of part-time employees.

PN1898

I think I said we went back and looked at the penalty rates decision and took from it what we could in terms of findings of fact around the proportion of part-time employees there described. It's plain that that decision, on its face, doesn't provide any disaggregation between, let's say, casuals and permanent part-time employees.

PN1899

It's said by the Ai Group and others, "Well, there's insufficient material" - I paraphrase here, hopefully fairly - "there's insufficient material for the Commission to understand the practical application of this clause if it was introduced because we don't know the number of five day a week part-time employees."

PN1900

So far as the SDA is aware there is no readily available data accessible off the shelf, so to speak, which provides data as to the number of permanent part-time employees who work a certain number of days per week, or five or more days per week. However, we want to assist the Commission to better examine that issue because we accept that it is an important issue and we think that there are other inquiries that can properly be undertaken, although I have sought to acknowledge at the outset that so far as we understand, there's no off the shelf data that can be readily grabbed.

PN1901

It may be, though, that there is other data which might permit something in the nature of an informed estimate of the number of employees in that class to be gained. We would like the opportunity to obtain such data. There are a number of avenues we have in mind to look at.

PN1902

One is the volume of evidence that was adduced in the penalty rates case, not all of which - in fact, a good amount of which is not referred to in full detail in the decision, and it may be - but I'm uncertain - it may be that there is data that was tendered in evidence in that proceeding which would allow the Bench here to make some sort of estimate or make some sort of judgement about the number of employees that might be affected in the event that this variation was granted.

PN1903

VICE PRESIDENT HATCHER: I must say, having sat through the part-time casual case, I distinctly take the view that there are not many of them, that it's a fairly unusual pattern for a part-time worker.

PN1904

MR MOORE: I initially considered instinctively that that might be so, but my client has reminded me that in the retail industry, at least in times past, there have been a good number of employees - for example, a profile of an employee who - typically a woman - who has child-rearing responsibilities principally, who gets the kids off to school and then works a shift from 9.30 till 3 o'clock in the day over weekdays. Now, that is, I'm told, a profile of a retail worker which certainly has existed in the past.

PN1905

VICE PRESIDENT HATCHER: But that's not the person covered by your claim.

PN1906

MR MOORE: That's a five-day - - -

PN1907

VICE PRESIDENT HATCHER: That's Monday to Friday.

PN1908

MR MOORE: Yes, that's so, but with the greater extent of non-typical working hours, by which I mean weekend work, sometimes, as I understand it, that profile of that worker has moved to a Tuesday to Saturday and the like.

PN1909

VICE PRESIDENT HATCHER: Anyway, cut this short. How long do you need to make those inquiries?

PN1910

MR MOORE: I think we have in mind a period of two and a half weeks or so, your Honour.

PN1911

VICE PRESIDENT HATCHER: All right. Rather than just sending in the - if you find material, can you just simply inform the Commission and parties if there's something you've found which is of relevance, and then if somebody wants to object, we can have the debate as to whether it should be admitted.

PN1912

MR MOORE: So your Honour is suggesting that we inform the Commission and the parties if we found any information and what that information is before - - -

PN1913

VICE PRESIDENT HATCHER: Outline its nature without actually sending the material straight to the Commission.

PN1914

MR MOORE: I understand, your Honour.

PN1915

VICE PRESIDENT HATCHER: To allow a party proper opportunity to object to it, hopefully forestall Mr Ferguson's objection.

PN1916

MR MOORE: We understand that, your Honour. Certainly, your Honour. Thank you, your Honour.

PN1917

VICE PRESIDENT HATCHER: Thank you, Mr Moore. Mr Nguyen and Ms Svendsen, do you have any submissions in reply?

PN1918

MR FERGUSON: Just very briefly, your Honour two issues ‑ ‑ ‑

PN1919

VICE PRESIDENT HATCHER: Mr Ferguson, we didn't - - -

PN1920

MR FERGUSON: ‑ ‑ ‑ the SDA's submissions. Firstly there was a question that fell, I think, from your Honour ‑ ‑ ‑

PN1921

VICE PRESIDENT HATCHER: Sorry, can you say that into the microphone.

PN1922

MR FERGUSON: Sorry. There was a question that fell from your Honour in relation to the consideration of the public holidays test case and the award modernisation case - or proceedings.

PN1923

At paragraphs 144 to 147 of our written submissions we deal with where this issue did arise, not in the context of the award modernisation proceedings proper, but in the context of an SDA application that was made very shortly thereafter, in 2010, which sought, in effect, a similar claim to what is now being advanced, and we there extract the SDA's own submissions which - and I take it the Bench has it, but paragraph 145, we set out.

PN1924

In the second paragraph of those submissions it makes express reference to the provision they're seeking, being - to the existence of the public holidays test case and it being alive ‑ ‑ ‑

PN1925

VICE PRESIDENT HATCHER: Yes, all right.

PN1926

MR FERGUSON: So that provides some answer to that question. We there, in those submissions, set out the ultimate conclusion that the Bench nonetheless reached, even with the benefit of those submissions.

PN1927

The other issue is there are two documents that were handed up today. We would seek an opportunity in the 14 days we've already been afforded, to raise any issues that arise from those documents, given we were only ‑ ‑ ‑

PN1928

VICE PRESIDENT HATCHER: With respect to the colour document, I've said that the preferable course, rather than just receive further competing submissions, is if the parties make all available endeavours to reach an agreed document.

PN1929

MR FERGUSON: And we would seek to do that as well. We apprehend what might be the cause of some of the discrepancies, but we will have discussions and deal with that as efficiently as possible. But certainly in relation to the other document, we haven't analysed the analysis that has been undertaken; we just seek the opportunity to do so in relation to the 14-days timeframe will be sufficient.

PN1930

VICE PRESIDENT HATCHER: Yes, all right. Mr Nguyen.

PN1931

MR NGUYEN: Thank you, your Honour. I will be very brief. The Ai Group said that there's no need for the AMWU's proposed clause because in any effect in 2016 the days were gazetted. We just note that their analysis is incorrect in relation to the Northern Territory. The day was actually gazetted in the Northern Territory on 29 July 2016 specifically for 25 December 2016. No future dates were gazetted by the Minister. The Ai Group's analysis excludes the Northern Territory's gazetting.

PN1932

In Victoria we just note that the Minister changed his mind at the last minute on 24 November - the gazette is dated 24 November 2016 - where he also, in Victoria, gazetted specifically the day 25 December 2016 and no future days. The decision was announced on 25 November that it was gazetted on the 24th.

PN1933

In South Australia the legislation also leaves open Christmas falling on a Saturday as being substituted, whereas when it falls on a Sunday the additional day is declared a public holiday. We outlined our analysis of the circumstances of the legislation at appendix 4 of our original submissions on 20 October 2016. In that table there are links to the relevant legislation which applies in each of the states.

PN1934

While the Ai Group seemed to contest the cultural significance of Christmas Day, I note that the ABI New South Wales submission at paragraph 14.2 acknowledges the self-evident fact that Christmas Day retains a special significance, regardless of whether it is a public holiday or not.

PN1935

I just address quickly in relation to the ABI's submission that there is no power for the Fair Work Commission to grant the AMWU's and the HSU's claim because the Commission has decided previously not to interfere with leave as set by the NES and state governments. We don't agree with that submission, and we support the SDA's submissions on this point. In any event - - -

PN1936

COMMISSIONER HAMPTON: Just speaking for myself, I don't think the issue was power, its discretion.

PN1937

MR NGUYEN: I take the point, Commissioner. In any event, the AMWU's claim doesn't address what is or is not public holiday. Our proposed variations go to providing appropriate compensation for the widely recognised unsocial hours of working on a Christmas Day.

PN1938

We draw the Commission's attention particularly to paragraph 107 of our 10 July submission from this year where we extract a paragraph from the explanatory memorandum, paragraph 518 of the explanatory memorandum, which goes to the particular point of what "relevant" means in a fair and relevant safety net. In that paragraph the EM makes it very clear that community mores are expressed through the word relevant in the modern awards objective. That concludes my reply submissions, your Honour.

PN1939

VICE PRESIDENT HATCHER: Ms Svendsen, do you have any reply submissions?

PN1940

MS SVENDSEN: Very briefly, your Honour. I just wanted to point to a couple of things, some of which I might try and modify these where it has been covered before. Employer parties, in opposing the application, point to the fact that we've not lead evidence of the prevalence or impact of the claim.

PN1941

We submit it's not about, for us, whether this happens 10 times or thousands of times, and we didn't see any facility in parading numbers of members before the Bench to state they had worked on the day of a public holiday, not the substitute day, and not gained, therefore, a benefit of the public holidays entitlement under the award. In fact, given the response to the SDA evidence, I would suggest we would be accused of providing too little evidence; or if we had provided everybody we could find, then too much, and wasting the Commission's time.

PN1942

The NES, as has been pointed out, section 115 provides for eight named public holiday. They're a minimum entitlement under the Act. In our submission these are, at least now, reflect the test case concept of a minimum standard which should be available to all employees, which as a matter of fairness should be available to employees whether they work a standard or non-standard roster of working days.

PN1943

Of the eight days in the NES, only five, as has been pointed out, fall on weekends. In the table at the appendix 2 of the HSU's submissions dated January this year details the current position in relation to those relevant public holidays. I'm not going to go through those. These are the days on which an employee is entitled to be absent from work without loss of pay, or in the alternative they are entitled to payment at the public holiday penalty rates.

PN1944

At a minimum these entitlements are triggered for an employee when a public holiday falls on the normal day on which an employee works, but for an employee who works on the actual day where a substitute day is gazetted and who does not work on that substitute day, they are denied access to that minimum entitlement of either being absent on the day or being paid, in the alternative, the public holiday penalty rate.

PN1945

The nature of the industry of health and community services sectors is such that employees work all days of the year, and it's entirely possible, and it happens, where employees only work weekends. We seek a change that ensures those employees who work non-standard days and hours are able to access the minimum public holidays falling on days they normally work. To that end the clause has no work to do except for an employee who works the day on which the actual public holiday falls. Where an employee works either on the substitute day or both days, the clause has no effect.

PN1946

Just finally, we note the employer parties' contentions that the decision in the family and domestic violence case supports their position that new forms of leave are not the purview of the Commission. This was only accepted in the minority decision. We point to the majority decision deals with propositions at PN21 and 22, and states at 22 that they do not accept this submission, that:

PN1947

Had parliament intended that all leave was to be dealt with by the NES, it could have made this clear in the legislation, but it did not. Section 139(1)(h) expressly provides that modern awards may include terms about leave. Additionally, section 55(4)(b) permits modern awards to include terms that supplement the NES.

PN1948

It goes on further to talk about the explanatory memorandum, and I just refer to that for the Full Bench's benefit. Thank you.

PN1949

VICE PRESIDENT HATCHER: Thank you. And finally, Mr McDonald.

PN1950

MR McDONALD: If it please the Commission. Could I firstly just say something about Clubs Australia Industrial's preference in relation to the disposition of the proceedings. Insofar as it's concerned, it's obviously in the hands of the Commission as to how ‑ ‑ ‑

PN1951

VICE PRESIDENT HATCHER: We've had a ruling about that.

PN1952

MR McDONALD: Yes.

PN1953

VICE PRESIDENT HATCHER: And it's made in the assumption - you can confirm it - that if you haven't already, by Friday you will be making an application to fold the clubs award into the hospitality award. Is that correct?

PN1954

MR McDONALD: It is, your Honour. But in terms of that application, perhaps if I could maybe make some further comment in relation to that. As we saw what was being suggested in the penalty rates decision in relation to how that option might be pursued, it was really a case of trying to fit the awards together, as it were, in relation to making specific provision, if need be, to take account of any differences for clubs in relation to the hospitality award.

PN1955

Certainly it wasn't the type of case which we envisaged would lend itself to this type of argument being run and this type of evidence. That will obviously be a matter as to how the Commission wishes to proceed with that case, but it's certainly a different type of case to what perhaps we had in mind in terms of arguing these types of matters.

PN1956

VICE PRESIDENT HATCHER: We don't know yet because you have filed the application.

PN1957

MR McDONALD: Yes, your Honour.

PN1958

VICE PRESIDENT HATCHER: And then the Full Bench which hears that matter won't know until it sees your application and hears what the unions' responses are, so I think it's not particularly useful to speculate upon what the issues in that case might be.

PN1959

MR McDONALD: Yes, your Honour. There is obviously a lot of water to go under the bridge there. Our preference would be for the Commission to deal with the application before it. If it turns out that - - -

PN1960

VICE PRESIDENT HATCHER: Mr McDonald, we've ruled on this, so can you move on.

PN1961

MR McDONALD: If it please. If I could make some brief response to what has been put by my learned friend in relation to the 2012 review. First off we say that an important point of distinction is that there is an existing provision in our award that - and we are seeking to move in relation to the provision, as drafted.

PN1962

In relation to clause 34.1, the provision as drafted in this award is that public holidays are determined by the NES. And what, in our submission, is that if the award is determined on the basis that public holidays will be regulated by the NES, then those public holidays should be on the days that are specified in section 115, and the provisions of action 116 should apply.

PN1963

There may be other circumstances, and I'm sure it would commonly arise in the context of enterprise agreements, where there are quite different provisions that prevail, and the Commission has powers in respect of leave and so forth in terms of what it might determine particular awards.

PN1964

However, if an award provision is to be based on the NES and the NES is to regulate the public holidays, then we do not see that there's any ability to move those public holidays to other days or have a provision which would otherwise be inconsistent with section 116 in relation to those public holidays, as determined by the NES, as incorporated into the award.

PN1965

In relation to the 2012 review, we certainly are not so brave as to say that the Full Bench was wrong or anything of that order. Obviously there are members of the Bench who are on this Bench, and then also in the NES consistencies members of this Bench that were on that Bench. What we say, though, is that the two decisions can be reconciled. It's not a case of one being wrong one being right.

PN1966

VICE PRESIDENT HATCHER: Who suggested otherwise?

PN1967

MR McDONALD: I took that that was the suggestion, that there was some point they were making that somehow the 2012 review was wrong. We certainly don't make that point, but what we do say is that the Commission wasn't asked to squarely considered the point about the exclusion, whether the exclusion of the NES could render a supplementary provision, not one that would fall within section 55.

PN1968

We say that in the 2015 NES inconsistencies case, that was something that the Commission squarely dealt with, and we say that had that position been put in those terms about the exclusion, that it would be likely that the 2012 Full Bench would have decided that matter in the same way.

PN1969

VICE PRESIDENT HATCHER: That's another way of saying the 2012 decision was wrong. I mean, if you're going to put the submission, put the submission. No one is going to be offended, but you can't have it both ways. Either you accept what it says, in which case you can't advance the submission you're making; or you submit that it's wrong, and you should say so.

PN1970

MR McDONALD: Your Honour, we don't go that far. We certainly say that the 2015 decision is correct, that even if a provision is supplementary, it can't exclude the NES; and we say that that specific point wasn't the subject of the Commission's express ruling in the 2012 case. I can put it no higher than that, and obviously - member of the Bench from that case would have a more intimate understanding of how that case went and what was on the Commission's mind.

PN1971

There was a reference made to our reliance on the family and domestic violence case. In the way that it was put, I wasn't putting any submission about the correctness or otherwise of any of the decisions in that case, I said that there was a convenient summary of the approach that the Commission has taken in relation to award modernisation in relation to supplementing the NES. Without going to all those decisions, there are quotes from each of those Full Bench decisions at paragraph 105 to 114 of that case, and we say it's a convenient reference point. We put it no higher than that.

PN1972

In relation to - there was a question in relation to reliance on a KPMG report, and a question was asked as to whether there had been express approval from KPMG. I can indicate that there has been such express approval and can tender documentation in relation to that approval.

PN1973

VICE PRESIDENT HATCHER: We admitted the document, so I wouldn't worry about that.

PN1974

MR McDONALD: If it please. If I could turn briefly first off to the Managers Association submission. As I understand the concern that was raised in their submission was in relation to duty managers who work rotating rosters which might have them working, rotating through weekends and public holidays. Our response to that is that we say that there's no inequality of treatment in those circumstances. If someone is working on a rotating roster, then generally speaking there should be some equality of treatment in relation to the number of public holidays that they might receive.

PN1975

In relation to United Voice's submission, there's one particular point that we would seek to respond to, which is set out at paragraph 45 of its submission, and that is as to what the rationale they say is for clause 34.3. At paragraph 45 of their submission they state that:

PN1976

The primary purpose of clause 34.3 is to protect the employees' entitlements to rostered days off. This clause ensures that employers do not have an incentive to roster their employees' days off so that they fall on public holidays.

PN1977

et cetera. In relation to that submission, we say it's not clear that that is actually the rationale. There's nothing that has been relied upon as to why that might be the rationale. But even if one accepted that that was the rationale - and we say it's not a sound rationale in this day and age - in effect it's put that it has a deterrent value in preventing employers from changing rosters in relation to public holidays, and that if they do, they will still have to pay them the extra day off.

PN1978

We say that type of deterrent is not a sound rationale. We say that that has been commented on by Full Benches in various cases, including the penalty rates case at paragraph 1949. If I could also just refer to a couple of provisions in the award, if I might. I just hand up a copy of the award.

PN1979

VICE PRESIDENT HATCHER: Before I forget, Mr McDonald. The Christmas Day aspect of your application, how does that line up with the hospitality award?

PN1980

MR McDONALD: That would make this award the same as the hospitality award and the restaurant industry award.

PN1981

VICE PRESIDENT HATCHER: It would make it the same as the hospitality award. Right.

PN1982

MR McDONALD: In relation to the rostering and how that might impact public holidays, I just take the Commission to clause 8.2 of the award, which is the standard provisions in relation to consultation about changes to rosters or hours of work. What we seek to draw from that is that it's not a case where an employer can willy-nilly just change rosters at the drop of a hat; that the process of changing rosters involves a consultation process. Obviously rosters need to be posted in advance, and the like.

PN1983

So in terms of the concern that they raise, we say that that concern is an illusory one. There's certainly no evidence of employers behaving in a way that they're trying to change rosters to avoid entitlements or anything like that. I don't think any of that has been raised; but nor does the award really permit that to occur in any event.

PN1984

We note that this concern has been addressed in some other awards where, for example, in the old state restaurant award there was some provision in that award that an employer couldn't change an employee's normal roster to avoid paying the employee for a public holiday. We don't necessarily commend that to the Commission, but we say that there are other ways that this matter can be dealt with, and it's not necessary to have some sort of payment in terms of this additional day off provision, or leave to otherwise deter that type of roster change.

PN1985

We were asked in relation to whether we would be open to a transitional provision if the Commission was minded to grant the application. If I can tender a proposed transitional provision if the Commission was so minded.

PN1986

VICE PRESIDENT HATCHER: Has Mr Bull seen this?

PN1987

MR McDONALD: He has, your Honour. We say first off it's not necessarily straightforward in terms of how a transitional provision might work in this scenario, because it's not as though there's a particular amount which has been changed and can be done on a progressive basis, but we sought to adopt a similar approach in terms of a staggered reduction of entitlements, as has happened in other award modernisation proceedings.

PN1988

So that in relation to employees who would be employed as at the date of the decision who would have the entitlement in clause 34.3, there will be a provision in the transitional provisions which would retain that entitlement, but then that would be staggered - there would be a staggered withdrawal of that entitlement going through to 30 June 2021.

PN1989

There's some notice built in as to that starting, so that reduction wouldn't occur until 1 July 2018, where it would be 75 per cent of the entitlement, so if it was an extra day's pay that was ordinarily given, it would be 75 per cent of the extra day's pay that would be given, and then from 1 July 2019, half a day's pay; and then once the provision had been phased in that clause would cease to operate. Unless there are any questions from the Bench, that would be our submissions.

PN1990

VICE PRESIDENT HATCHER: Thank you. Mr Bull, do you want to, either now or by way of provision of a note, reply to that proposed transitional provision document?

PN1991

MR BULL: I'd beg the Full Bench not to set a timetable for replies and any response to the transitional arrangement which was lately served on me this morning. I'm more than capable to briefly make some observations about it now. I received a - it was apparently emailed to me by an email ‑ ‑ ‑

PN1992

VICE PRESIDENT HATCHER: Mr Bull, I don't want to hear about when it was emailed to you. If you're not ready to respond, you can put in a note.

PN1993

MR BULL: I'm ready to respond now and I will respond now. Can I be heard?

PN1994

VICE PRESIDENT HATCHER: Yes. Come to the - - -

PN1995

MR BULL: I'm talking about the speaker.

PN1996

VICE PRESIDENT HATCHER: I can hear you, anyway.

PN1997

MR BULL: There is a clear capacity for Full Benches to make transitional arrangements as an incidence of its power under the four-yearly review. In the penalty rates case that Full Bench didn't consider a transitional arrangement appropriate for its reductions in the public holiday rate. I would simply make the observation that to use perhaps the kindest metaphor, it's an attempt to accessorise an outfit that isn't a great fit to start with.

PN1998

I don't want any further opportunity to say anything more about this. This last-minute surprise hasn't placed our case theory in tatters, and I think I can make my observations now and that's it. I'm not going to make any resort to confect notions of fairness, and I note the employers in these proceedings have an evolved concept of procedural fairness in relation to their rights, but limited empathy for a low-paid worker on $40,000 a year to maybe getting an additional small piece of remuneration in relation to established public holidays. That's all I wish to say.

PN1999

VICE PRESIDENT HATCHER: Thank you. I think we've heard everyone to death. Subject to the receipt of the further documents and submissions which have earlier been indicated, we will reserve our decision. We now adjourn.

ADJOURNED INDEFINITELY [12.35 PM]