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Fair Work Act 2009                                       1056194






s.156 - 4 yearly review of modern awards


Family Friendly Work Arrangements










2.03 PM, THURSDAY, 26 JULY 2018


JUSTICE ROSS:  Could I have the appearances please?  Firstly, in Melbourne.


MS S ISMAIL:  Good morning your Honour.  Ismail, initial S for the Australian Council of the Trade Unions.


JUSTICE ROSS:  Thank you Ms Ismail.


MR B FERGUSON:  If the Commission pleases, Ferguson initial B for the Australian Industry Group.


JUSTICE ROSS:  Thank you Mr Ferguson.  And in Sydney?


MR J ARMS:  Arms, initial J for the Australian Chamber of Commerce and Industry.


JUSTICE ROSS:  Mr Arms.  In Canberra?


MR B ROGERS:  Rogers, initial B for the National Farmers Federation.


JUSTICE ROSS:  Thank you Mr Rogers.


MR D JOHNS:  If it please the Commission, Johns, initial D for the National Road Transport Association.


JUSTICE ROSS:  Thanks Mr Johns.


MR S HARRIS:  If it please the Commission, Harris, initial S, Pharmacy Guild of Australia.


JUSTICE ROSS:  Thanks Mr Harris.


MS C DELBRIDGE:  Delbridge, initial C from the Department of Jobs and Small Business, just observing the proceedings, your Honour.


JUSTICE ROSS:  Thanks Ms Delbridge.


Do each of you have a copy of the background paper that the Commission released yesterday?  Also, there is, I think each of you have been provided with correspondence from Mr Ferguson attaching an amended proposed clause?  Does everybody have that?


MR HARRIS:  Yes, your Honour.


MR ROGERS:  Yes, your Honour.


JUSTICE ROSS:  All right, well Mr Ferguson, in the background paper, it indicated that at the commencement of the conference, I would invite you to identify any errors or omissions in the comparison.  Well, to some extent, that's been - I think insofar as it makes some observations, they might have been addressed by your amendments.


MR FERGUSON:  One minor issue.


JUSTICE ROSS:  Yes.  Secondly, to identify the particular ways in which it's said that the proposed clause supplements section 65.  So perhaps if we can start with that.


MR FERGUSON:  I will, I just wanted to firstly note on record that we do appreciate the detailed work that went into that paper.  It was helpful having someone examine it.


JUSTICE ROSS:  That's fine.


MR FERGUSON:  The only error, if you will, that we identified is in point eight, if you will, of the relevant summaries.




MR FERGUSON:  In the second sentence there it says, "In particular, it appears the clause X.4(a) requires the employer to give an employee a written response stating that the employer refuses the employee's written response" for a change.  Then it goes on.




MR FERGUSON:  The way we've actually constructed the clause, just to be clear, is the clause doesn't require the refusal to be issued.  It assumes that the Act does that work and the clause operates in the event that the refusal is given pursuant to section 65.


JUSTICE ROSS:  Just bear with me for a moment.  What is this, under the revised or amended term, which section are we dealing with?


MR FERGUSON:  X.4.  There's two issues really.  X.4 in our proposal does require that when the refusal - the written response indicating the refusal is given, that there is additional particulars about the grounds and so forth and an indication as to whether there are separate arrangements that could be accommodated and so forth.  We try to pick up the intent of the Commission's clause.  But the opening paragraph differs from the Commission's drafting in that we intend that these obligations that only arise where pursuant to the Act an employer issues the notice.


JUSTICE ROSS:  All right.


MR FERGUSON:  So, the award wouldn't create any substantive obligation.  So, it's just consistent with the general approach of trying to interact with the NES.


JUSTICE ROSS:  All right.


MR FERGUSON:  That is really the only error and it sort of becomes a bit irrelevant anyway with the amendments that we've made.


JUSTICE ROSS:  Well, that's my point, yes.  The amendment makes it clear, is that your proposition?


MR FERGUSON:  It is, it is.  I mean there is some complexity in the sense that I wasn't clear that we can ever circumvent the provisions of the Act that require the refusal to be given, no matter what else transpires in terms of an agreement.  Once the request is issued, it seems to be a complex point, but I'm concerned whether or not you could actually circumvent or exclude that provision.


JUSTICE ROSS:  All right.  The second question is in which particular ways is it said that the proposed clause supplements the NES?


MR FERGUSON:  On that point before I identify the ways in which we add to the NES, if you will, I suppose we hadn't reached a concluded view about the extent to which it supplements, in the sense contemplated by the Act, because to agree, supplementation of our proposals in a relevant consideration - because the way we've structured the - - -


JUSTICE ROSS:  I'm just not following.


MR FERGUSON:  Yes, so section 65 provides that you can't exclude the NES, but it provides - - -


JUSTICE ROSS:  55, yes.


MR FERGUSON:  Sorry, but then it provides within that if the term supplements the NES, then it doesn't offend if it does exclude.




MR FERGUSON:  Now, we say that under the Commission's proposal and I understand this is contested, that the Commission's clause excludes the NES and then there's an argument between the parties about whether it's a supplementary term in a relevant sense.  We say under our proposal, when you look at the way the clause has been structured, it can't be argued to exclude the NES in any respect, so it's just adding where there are gaps, if you will and when I say this, it's dealing with things that aren't dealt with under the NES.


But look, it's a bit of an irrelevancy and we'll come to it and I just haven't thought through all of that, if that makes sense, your Honour.


JUSTICE ROSS:  Well, how does it add to?


MR FERGUSON:  What it does, we've tried to do what we apprehend the Commission was trying to do.  What it does, is firstly provides various notes around the operation of section 65.  The intent there is to raise awareness, if you will, about the operation of section 65 which is again what we understand the Bench was trying to achieve through the introduction of an award clause.  It then imposes obligations on an employer to confer with an employee and seek to genuinely reach agreement on a change to work arrangement that suits the circumstances of the employee, the relevant circumstances.


Then, it also includes a requirement that the employer set out any agreement or change of working arrangements that is agreed upon in writing.  Then if it's refused - if the request is refused - sorry, that obligation, previous obligation only arises where the change is different to the initial request.  So, we've adopted the approach that if the change is - if you just agree to the initial request, then you don't need to set anything out in writing from the employee's perspective.


Then four requires that additional information be included in the response issued pursuant to section 65.  So, if there's a refusal, you have to set out the grounds, which is more specific than the requirements of the Act and that's what the Commission had intended.  But we'd tried to adopt a similar approach to what the Commission had.


There's some changes, which I'm happy to talk about, the reason we've adopted a slightly different approach, if that assists.  But - - -


JUSTICE ROSS:  No, that wasn't really what I was asking.


MR FERGUSON:  No, I know that's what I was - - -


JUSTICE ROSS:  You can put that in your submission, that's fine.


MR FERGUSON:  Then a disputes clause, look we were trying to adopt the same sort of approach as the Commission of identifying the limitations on the Commission.  I wasn't sure whether it really matters if the first point was a note or a substantive term, but to be fair, I think we intended it to be a note.  It was in italics which just said put the word note in the wrong provision.


It mirrors the approach of the Commission with one obvious major difference in that we haven't extended the categories of employees.  Now, the logic there is that obviously we've raised - well, I'll call it jurisdictional objection to that and I think ACCI has raised a merit-based argument, if I can just call it that in broad terms.  So, we obviously didn't do that.


Now, I think you could easily adopt the approach we have of interacting with the NES to extend it, but we haven't suggested in this proposal a form of words for that.  That could be rectified and I have something in mind, but we are not suggesting that.


JUSTICE ROSS:  Well, really the purposes of the conference was because the ACTU only received the proposal late. It was to provide them with an opportunity to consider their position in what they wanted to say.  So, unless - does anyone else have anything they wish to say at this stage?


No?  Ms Ismail?


MS ISMAIL:  Thanks, your Honour.  Yes, the timing of the provision of the original proposal meant that we didn't really have the opportunity to consider whether or not we were in a position to conference about it.  Clearly the most recent amendments we also haven't had a chance to consider in detail, but I have since receiving the initial proposal, received instructions from our affiliates that we don't wish to mess with the clause that the Commission has put forward.


We think that there's no reason at all that the Commission doesn't have the power to do what it proposes to do.  It may not meet the needs of all the parties or any of the parties, but there's absolutely no reason why the Commission isn't completely within its powers under the Fair Work Act to do what it intends to do.  I don't know whether you want me to go into any of the detail.


It may be worth - the central argument AiG is putting forward in the jurisdictional sense - we'll put aside the


JUSTICE ROSS:  operational concerns for now - centres on this claim that the proposed term somehow excludes the NES because it seeks to replace the scheme entirely.  Now, the Fair Work Act at section 55(6) clearly contemplates that you may have an award clause that provides the same entitlement as the NES clause, as a provision of the NES and it sets out what happens in those circumstances.  The terms operate in parallel, there's no double benefit to employees.


We think the situation is clear that the aspects of the proposed clause that provide the same entitlement are contemplated by section 55(6) and the aspects of the clause that supplement section 55 are clearly contemplated and allowed by section 55(4).  So, we can't see that there's any substance for any of the jurisdictional concerns that you're putting forward.


JUSTICE ROSS:  All right, but look I don't want to - - -


MR FERGUSON:  No, I wasn't going to - - -


JUSTICE ROSS:  No, no I don't want to get into a quasi-hearing. The short point is that if I can paraphrase it this way, that you're not really interested in AiGroup's proposal and that's fine.  The respective positions of the parties can be set out in the submissions and we'll hear the matter on the 27th.


MR FERGUSON:  I mean, the only thing I would raise without - I'm not going to engaged with the jurisdictional arguments.  The arguments - I raise this because we've not set anything out in justification for the proposal.


JUSTICE ROSS:  But you can do that in your submissions.


MR FERGUSON:  It was only if - and if your Honour is not minded to do it, I won't.  It's if there were any sort of provisional observations that your Honour has.


JUSTICE ROSS:  No, I'm not making any provisional observations about anything to do with the substantive merits - either the merit or the jurisdiction.


MR FERGUSON:  No, no.  It may be that the ACTU can't move today anyway, but there were basically five grounds for why we would suggest this approach, which I won't speak to in detail.


JUSTICE ROSS:  No, but you can have bilateral discussions and put that in your submission and that may persuade the ACTU and we can hear if there's a change in position, they can identify that at the hearing.


MR FERGUSON:  It's just seeking to optimistically circumvent a detailed hearing.


MS ISMAIL:  Look, we're always prepared to talk and we have given careful consideration to the concerns you've raised, but this was the subject of an extensive hearing.  We think there are no grounds to anything.


MR FERGUSON:  Look I get it - what I was going to put to you is that there are I think, four other grounds that we haven't advanced to you, given the way it's evolved.


MS ISMAIL:  Jurisdictional or operational?


MR FERGUSON:  No, merit based.


JUSTICE ROSS:  That's okay.


MR FERGUSON:  I can do that if your Honour doesn't want we - - -


JUSTICE ROSS:  No, look, I think we then get at risk of drifting into sort of submissions and I think there's a further opportunity to file submissions and they can be taken to advance whatever merit case you want to advance.  If you're able to persuade the ACTU, then well and good.


MR FERGUSON:  No, I appreciate that.


JUSTICE ROSS:  You still have to persuade us.


MR FERGUSON:  No, look and I suppose that given the dynamics are not what they were in times gone by, and we are dealing with what's in the decision in the way we've framed it.  There is, and I wouldn't be opposed to it being an off the record discussion, there is an element of the decision that isn't clear to us in terms of what the intention was of the Full Bench and there was an issue that perhaps even isn't attended to in a great deal in the decision which we've sought to deal with now.


JUSTICE ROSS:  Yes, I don't think I should be giving any - - -


MR FERGUSON:  I understand.


JUSTICE ROSS:  I think the easiest way is to identify the - I'm not suggesting that there isn't an element of the decision that may have a degree of ambiguity and I think what you should do is highlight that in the submissions and say we're not clear about what this means.  Does it mean this or that.  If it means that, then we have these concerns type of proposition.


MR FERGUSON:  I'm happy to be guided, your Honour, I just thought put it all out there at the earliest possible.


JUSTICE ROSS:  No, no, I understand, but it's not just my decision.


MR FERGUSON:  No, no, I - - -


JUSTICE ROSS:  So, I'm not sure that - and look, frankly, any sort of instinctive comment I make back to you would be without the benefit of hearing from the other parties as well.


MR FERGUSON:  And we would have understood that.  But I'm not pressing you, it's just - you know.  Sometimes there are unforeseen issues that we - - -


JUSTICE ROSS:  Sure, no, I understand that.  Is there anything else?


MS ISMAIL:  Just to say we do appreciate the effort that went into preparing the alternative proposals to attempt to address the jurisdictional problem.  We just don't agree there is a problem to fix.


MR FERGUSON:  No, no, yes, no.  Thank you, your Honour.


JUSTICE ROSS:  All right, anything further from anyone interstate?  No?


Thank you very much.  I look forward to your submissions and then seeing you on the 27th.

ADJOURNED TO A DATE TO BE FIXED                                        [2.19 PM]