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Fair Work Act 2009                                                    





s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Family Friendly Work Arrangements




10.01 AM, MONDAY, 27 AUGUST 2018


Continued from 21/12/2017



JUSTICE ROSS:  Can I have the appearances please?  Firstly, in Sydney.


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


MR N WARD:  Nigel Ward for the Australian Chamber of Commerce and Industry.


JUSTICE ROSS:  In Melbourne.


MS S ISMAIL:  Good morning, your Honour.  I'm having trouble hearing you.


JUSTICE ROSS:  I'm sorry, I wasn't talking into the microphone.  Can you hear me now?


MS ISMAIL:  That's much better, thank you.  Ismail, initial S for the Australian Council of Trade Unions.


JUSTICE ROSS:  Thanks Ms Ismail.  In Canberra?


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


JUSTICE ROSS:  Thanks Mr Harris.


MR D JOHNS:  If it please the Commission, Johns initial D.  I appear on behalf of the National Road Transport Association or abbreviated NAT Road.


JUSTICE ROSS:  Thanks Mr Johns.  Is that everybody?  All right, who'd like to go first?


MR FERGUSON:  I think we discussed I would be going first.


JUSTICE ROSS:  All right.


MR FERGUSON:  What I want to do today is just simply four things.  Firstly, just explain in short form what we've done in our written submissions, given that we filed three sets.  I just want to make some sense of that for the Bench.


MS ISMAIL:  Sorry, your Honour.  I can't hear Brent.


MR FERGUSON:  Sorry Sophie, I'll move the microphone.  Let me know if that's not better.


JUSTICE ROSS:  If it's easier, keep your seat and move the microphone towards you.


MR FERGUSON:  Thanks, your Honour.  Look, as I was saying I just want to firstly explain what we've done in our three sets of submissions.  I want to identify and then explain in short terms what we've done with our four proposals that we've advanced, because we have advanced four separate full term proposals.


JUSTICE ROSS:  As I understand it though, just to cut through the four proposals thing, what you're advocating is the amended joint employer proposal filed on 26 July.  That's your position, if you like.  You have as a - for want of a better description a fall back position in the event that we don't agree with you about the eligibility, then you've got an alternate proposal which is really the joint employer - - -


MS ISMAIL:  Sorry your Honour, there's someone rustling papers into the microphone.  I'm really struggling to hear what's going on.


JUSTICE ROSS:  It's probably Mr Hunt, yes.  It might be someone in Canberra.  Just be careful.  Move the microphone away from your papers if you wouldn't mind.


This is as I understood it.  It might be a quicker way through.


MR FERGUSON:  No, no I believe that's right.


JUSTICE ROSS:  That annexure C is the amended joint employer proposal filed on 26 July with the eligibility difference, that is with the amended eligibility criteria.  Is that correct?


MR FERGUSON:  Yes, that's essentially right and the one difference to that is so - I'll just explain very quickly.  We reached that joint employer position which moderates - is our primary position is you will.


JUSTICE ROSS:  Now, when you say your primary, that's the amended joint employer position filed on 26 July.


MR FERGUSON:  And on that point, I should make the point that we filed that submission without necessarily comprehensive consultation with the others.


JUSTICE ROSS:  No, I want to come to in a moment, who the joint employers are, but let's leave that aside for the moment.




JUSTICE ROSS:  Let's assume that's the Ai Group position is the amended joint employer proposal of 26 July.


MR FERGUSON:  With the alternate position, for want of a better term in the event that without being defeatist, we don't get up on our high estimates in relation to the expanded cohort of employees.


JUSTICE ROSS:  Yes, yes.


MR FERGUSON:  We're not resiling entirely from the points we've raised in our initial proposal.


JUSTICE ROSS:  Yes, that's the bit that I have trouble with because you also don't resile entirely from the jurisdictional objection.  You make the observation in your submission that your initial proposal didn't actually overcome your jurisdictional objections.  Are you saying that we have jurisdiction to, if we're minded to, to vary awards in the terms sought in the amended joint employer proposal?


MR FERGUSON:  In the amended joint employer proposal, yes.  Look, I'm alive to the fact that on the logic of our jurisdictional arguments, problems would arise in relation to our initial proposal and not have those broader merit-based argument.




MR FERGUSON:  If you adopt the ACTU logic though, in a sense, perhaps those same issues don't arise because it's just a separate scheme but it leaves theoretically in operation section 65 of the Act.  But the reason I suppose I say we're not entirely resiling from this and I'll cut to the chase and I'm probably shortening my submission somewhat.  What we did in that initial submission and to be fair, I think our thinking involved from the time we first developed that, was we looked at what the Commission had done and we thought that in all candour, it probably doesn't strike an entirely balanced approach.


JUSTICE ROSS:  From your perspective.


MR FERGUSON:  Yes, from our perspective, that's what I was coming to.  It doesn't reflect an employer's perspective and we say, unsurprisingly, because without criticism, what the Bench has done is reflect the terms of the NES.


Now, when you move to an award context, you can potentially do things differently and we would say you should do things differently if you're going to set out a comprehensive regime for dealing with flexible requests.  That's because firstly, the NES has that limitation in it that you can't, in simple terms, create enforceable obligations on employees.  The NES is essentially enforceable as obligations on employers.


But once you move into the award phase, or the award sphere, you could balance that by including reciprocal obligations on employees.  Also, when you're dealing with things in the award sphere, we think that the modern awards objective imposes on the Full Bench an obligation to consider what's a fair and relevant safety net in terms of the award drive safety net from the perspective of both.  So, we've sought to introduce some sort of balance.


But also, and I'll come just in very short terms to the elements of it, what we're saying is look, under the NES you've got what you've got because the legislature has dictated it, but it operates within a specific enforcement regime.  Which is, that while allowance 65 is enforceable, the ultimate issue around whether an employer's decision about whether there are reasonable grounds for refusing it, isn't subject to review and it's not subject to any sort of penalty.


JUSTICE ROSS:  Yes.  That's ACCI's point as well.  It's enforceable in terms of procedural requirements, but not in terms of the refusal by the employer on reasonable business grounds.




JUSTICE ROSS:  That concept isn't challengeable.


MR FERGUSON:  We hadn't picked up on that to a significant degree until our 20 June submissions.  So, in our first set of submissions, we said well how do you make this more balanced and we thought that the best way to do it is to - and I'll go through it quickly and make some additional changes.  I think by the time we got to the 20 June submissions, late in those submissions, we put the point that well, perhaps an alternate approach might be to draft a clause that interacts with section 65, rather than wholly replaces it.


We there set out the fact that we accept that that sort of lighter touch approach might be a reasonable compromise.  Because if you do that, I think there's less force to the argument that you need to go and start building reciprocal obligations and so forth, into the actual award term itself.  Because you're just leaving 65 to do the work.  65 is the provision that gives rise to the right to request.  65 is the provision that effectively tempers an employer's ability to refuse and you're not changing that, you're just bolting on additional requirements.


Now, as I said, I'm loathe to spend too long on this, and I'm sort of shortening my submissions to some extent, but what we say is that that initial proposal does - - -


JUSTICE ROSS:  If it makes it any easier for you, Mr Ferguson, we're not going to start criticising you because you're changed your position.  That's part of the - it's an iterative process and it's intended to draw our issues.  That's why we express provisional views.  Otherwise, we are dealing with it in a vacuum.  So, I understand how you've come to this point.


MR WARD:  But without getting into it, I suppose one of the arguments we see in favour of adopting this approach of interacting with the NES is actually that it avoids some of the need to our grapple with our merit-based argument.


JUSTICE ROSS:  No, no, I follow.  I follow that.


MR WARD:  So, does that make sense?


JUSTICE ROSS:  Yes, I do.  I want to take you - well, I'll wait until you finish, but I want to take you to some aspects of your clause and to tease out this issue of interaction.


MR WARD:  Yes, okay.  I think then just in terms of - and I don't want to dwell too long on that initial proposal but we do raise and we have, sort of, summarised them in our 10 June submissions, various issues of detail which, you know, I think raise some important obligations.




MR WARD:  For example, if you're going to have an enforceable obligation - and I use that term for simplicity - you probably should in fairness have evidentiary requirements on the employee.  You should potentially - you know, if you're going to have an obligation that subject to penalties of the Federal Court, an employer has to accommodate the request.  It's not unreasonable to say the employee should substantiate that they're actually faced with the circumstances.  So, we set that out in clause 8 of our initial proposal.  We also say, well, if you're going to have a comprehensive scheme, why not impose an obligation on the employee as well to try and reach agreement if you're going to have that process of consultation agreement.


Also, realistically, you should, we say, confine it to requests for specific arrangements that are necessary in order to accommodate the person's parental or caring responsibilities.  We don't think the current clause goes far enough to the extent that it just basically requires that they face the circumstances of being the carer and because of that they'd like a change.  I think we would point there to some of the evidence that was advanced in the proceedings around the fact that, well, people would like, for example, the alternate arrangements because they want more time to do housework or to spend quality time with their parents and so forth.  And I'm not criticising the legitimacy of those desires.  It's just when you're dealing with a safety net, if you're going to move beyond what the legislation dictates, you really only should do what is necessary rather than just delivering all of those sorts of desires.


Beyond that, we raise some minor issues around - well, some serious issues but issues of detail around the fact that we're concerned that the comprehensive clause might operate as a sort of casual conversion type provision in that it's put in terms that enables an employee to convert to part-time work.  There might be some arguments which we think through about whether part-time work, that phrase when used in the award context, means the same thing as it means in the Act and that's perhaps a complex issue, but we raise that as a concern and specifically advance a proposal that makes it clear that the clause doesn't entitled someone to conversion.  It doesn't operate as a quasi-casual conversion provision.  We also oppose - - -


SPEAKER:  Casuals don't exist anymore.


MR WARD:  Well, that's what I was going to say.  It raises some bigger issues obviously in the light of what scheme, but it's another reason why perhaps the Bench should be cautious about delving into that situation - to that sphere.  But, in any event, we propose specific amendments which are attached to our first submissions which deal with all of those issues.  And we also propose amendments that enable or deal with what happens in the event that an employee ceases to face the parental caring responsibilities and gives an employer a right to, if you will, reinstate the previous arrangement.  But then - - -


JUSTICE ROSS:  But all of those matters relate to the provisional model term and, in a way, your initial proposal.  Where you have landed, if I can put it that way, is that it shouldn't be a standalone provision.  It should supplement section 65 and it should supplement it fundamentally in two ways, the obligation to reach agreement and the obligation to provide details if the employer refuses a request.


MR WARD:  Yes, so, that's right.  So, we have said, well, that's the lighter approach.


JUSTICE ROSS:  Yes, yes.  No, I follow.


MR WARD:  And if you work within the framework of the Act and you just bolt on the supplementary terms that the Full Bench directed its decision to, then that's an easier way home.


JUSTICE ROSS:  Yes.  No, I follow.


MR WARD:  The issue that we haven't joined the Full Bench is about the expansion of the cohort of employees.


JUSTICE ROSS:  No, no, I understand that, yes.


MR WARD:  Yes.


JUSTICE ROSS:  But it's clear what you say about that and what ACCI says about that.


MR WARD:  Yes.  We say there's nothing novel with that alternate approach.  It's obviously akin to the approach that's taken within the award system to other elements of the NES.  So, for example, annual leave where the award provides for some additional entitlements or beneficial arrangements to apply in the context of, you know, when leave is taken or what it's paid at and so forth.  But it leaves it to the NES to actually deal with the substantive right and we don't see that there's any particular complexity around that sort of approach.  In fact, we think that the brevity of the clause that we have advanced actually aids in making it simpler and easier to understand.


It probably also assists in advancing what we understood to be the Full Bench's objective of raising the profile if you will of section 65 and for that reason we have put, you know, quite detailed notes about elements of section 65 and the way it works in the clause we put forward to try and make it very clear to employees, you know, what the entitlement under this Act it is under the both the award and the NES taken together.


So, I mean, in terms of that proposal, the key benefits are, as we see it, it delivers what the Full Bench has said should be delivered through a provision and here we refer, in particular, to paragraph 424 of the Full Bench decision.  I won't take the Bench to it.  It reflects that general approach of not replicating the NES entitlements and that in sense it also overcomes any argument that it's not necessary to include all of the terms which do no more than replicate provisions of the NES.  It completely avoids our jurisdictional argument as well, which we say is a beneficial argument for it as well.


Finally, and perhaps most importantly, it avoids disturbing the approach under the legislation of leaving decisions about whether a reasonable ground to refuse to a request is best dealt with at the workplace rather than making it subject to review as I have already talked about.


The reason for that is we say it's quite inappropriate for an award clause dealing with this subject matter should circumvent the situation that the legislature is clearly intended through the establishment of section 44(2) and I take it the Full Bench is familiar with those provisions and I won't read them.  But the effect is, of course, that employer's decisions in relation to those provisions are not subject to civil remedies.  So, an employer is not subject to various orders under the Act.


In support of that position, we also point to the discussion paper that accompanied an exposure draft of the NES originally which talked about the then Labor Government's view that it was appropriate that these sorts of decisions are dealt with at the workplace and made the point that it was fully intended that there not be third-party intervention in relation to this element of the NES, and we agreed with those views.  I think it's difficult to list comprehensive examples of why circumstances would vary at the workplace level because that's not the thrust of this case that we were answering in terms of the evidentiary case.


But we think, you know, there are self-evident reasons why you could say that, you know, there would be different circumstances faced by different employers and we're not convinced that a court would necessarily be well placed to make that assessment about what reasonable business grounds are.  I think it's quite anomalous to potentially have a provisional term that opens the door to courts reassessing that in circumstances where, you know, the model term isn't opening the door to this Commission, a specialist tribunal arbitrating these sorts of disputes.  And, so, it would seem odd that the Full Bench would nonetheless open the door to a court sort of second-guessing an employer's decision in relation to those sorts of issues.


We raise that simply because of the point that we think it makes it clear that that wasn't what was intended by the Full Bench.  But, as I said, we don't have anything in the decision that says, you know, why the Full Bench might have been minded to alter the enforcement regime as it applies in the context.  That then sort of raises another issue about, I suppose, the scope of the case that was first mounted.  Now, as we know, these proceedings focussed on a claim by the ACTU which was very different from what's now being put forward and I don't say that with any criticisms of the Full Bench.  It was focussed on a claim that there was no right for an employer to refuse a request.


So as such, there was no - it wasn't a case about whether the existing enforcement regime was operating effectively, we weren't looking at whether in practice employers are not complying with the requirements of section 65.  That issue didn't really squarely arise for a careful examination in these proceedings.


Now, we accept the Full Bench isn't bound by the terms claimed, but it really raises the issue of whether it's appropriate to exercise that discretion in this context when there's been no ventilation of these sorts of issues.


JUSTICE ROSS:  Well, we're ventilating it now.


MR WARD:  I understand that and what I'm putting is that this is a very serious issue.  It's a fundamental departure from the way section 65 in the Act works.  We haven't had sort of a major evidentiary case advanced by the parties generally in relation to this point.  So, the Full Bench would probably be cautious about taking such a significant step when the only thing it's got before it is evidence of material that was advanced in the prism of a very different claim.


As I said, we're not saying that the Full Bench can't do something different, but we think that there isn't material before it that would justify it exercising that discretion.  That hasn't been a contested issue as such not less than in an evidentiary sense.  But in any event, putting those sorts of issues aside, and I'm not raising it to sort of gain a procedural advantage, I think it just raises the point that this probably isn't the forum for such a significant step.


But putting those issues aside for one moment, I think the point is the evidentiary case, such as it is, doesn't establish the point that there is non-compliance with section 65.  There isn't any sort of evidence for a wide-spread problem of that nature, that would we say be necessary in order for the Full Bench to form a view that some alteration from the status quo is actually required.


What might be put against that proposition is well, the evidence does show that the Act is only being utilised relatively rarely.  It might show that to some extent workplace cultural issues or managerial attitude may have an impact on employer's ability to access flexible arrangements, but it doesn't go so far as to say where the Act is sought to be utilised, it's failing to deliver an appropriate outcome.  When I say appropriate outcome, it doesn't suggest that the employers are actually not complying with section 65(5).


Now, the other points that I just raise, they really just go to the issue to the need to promote, if you will, the availability of the mechanism under section 65 and we're not cavilling with that element in the Full Bench's decision.  What we're saying is that there isn't properly an evidentiary basis for making the significant change to the system, for whatever reason that situation has evolved.


The other point I'd make in support of resisting this move to this more heavy handed approach where employers are opposed to penalties is that it has the ability or is likely to give rise to a change in the dynamics between which discussions are actually happening at the moment.  We say that in practice, employers and employees are having discussions around these sorts of needs for requests for flexible work arrangements and that on the whole, it's operating effectively.


I think once you threaten an employer with the prospect of having any decision they make around them, not to refuse it, subject to court proceedings and potentially penalties, you run the risk that an employer will sort of capitulate to an employee request even though they might quite genuinely have the view that the request is unreasonable or that there are reasonable business grounds for refusing it.  They just don't want to have the fight, especially if the employee is supported by a union and so forth.


We think that that could lead to quite unjustifiable or quite negative consequences for employers.  It could obviously lead to situations where employers - where operations are unduly disrupted and it could, within the context of the modern awards objective, have a negative impact on business, as contemplated under section 145(1).  It could also undermine the effective productive performance of work as also contemplated in that section of the Act if employers are forced into a situation of agreeing to changes just to avoid the prospect of being subject to court proceedings.


Before I move on to the jurisdiction, did your Honour have any questions about the interaction?


JUSTICE ROSS:  No, I'll wait until the end.


MR WARD:  Just in relation to the jurisdictional objections we've raised, we've ventilated those in some detail in both our 13 June submissions and our 20 June submissions and I won't take the Bench through all of those arguments.  I think in broad terms, we say that the proposal would exclude the NES in two respects.


Firstly, we say that section 65 establishes, if you will, a scheme for regulating employee requests for flexible work arrangements and for providing a mechanism for delivering flexible work arrangements.  We say that what particular approach the drafting taken in the provisional term does, is it creates an alternate scheme, or a substitute scheme if you will.  So, what it actually does is mean that in practice, the effect of the award clause would be to negate the operation of section 65 of the Act, because rather than people utilising that provision, which is subject to a specific and discrete enforcement regime, it would utilise the very different provisions of the award and the entitlement established under that as a scheme.


We say that is sufficient to exclude an element of the NES and then the question arises, well does the term nonetheless supplement it, as contemplated by section 55(4) so as to save the provision?  I think, without demurring from the detail of what we put, our simply view is that in its nature it's not supplementary - it's not a supplementary term.  It actually just substitutes the provision.  It doesn't build upon an NES entitlement or add to the NES entitlement; it just creates something different from it.  In that sense, it's not saved by section 55(4).


JUSTICE ROSS:  Does that submission embrace the expanded eligibility?


MR WARD:  No, I'll come to that separately.  That was the first line of argument that we've put.  The second one is in relation to section 65(2) and I'll take the Bench to that briefly.  Section 65(2) is interesting in the sense that what it does, it doesn't remove or exclude employees that don't meet the requirements of 65(2)(a) or (b) from the application of section 65 as a whole.  It actually just expressly puts that they're not entitled to make the request.


Now, we say that clearly reflects and intent or reflects an outcome where by those employees aren't able to make those requests as a direct requirement of the provision of the Act.  Now we think that setting up a separate scheme that effectively, nonetheless, lets people who are expressly excluded by 65(2), access or make a request and have it subject to some right to have it adopted, effectively negates the effect of this exclusion in 65(2), when the legislature is clearly intended that these people wouldn't have such an entitlement, seems to create a scheme whereby those employees would nonetheless have an entitlement under the awards.  In practical effects, section 65(2) is not going to operate in any meaningful way.


Again, we don't say - - -


JUSTICE ROSS:  It's not a prohibition; it's just simply a statement of the entitlement.  That is, if it's said those persons were prohibited from applying, you might have some force, but where it simply says they're not entitled, that's no more than to say somebody's not entitled to six weeks' annual leave, isn't it?


MR WARD:  But it is, in effect - I take your point, but I think the way I read it, it is in effect a prohibition on an employee making a request under the Act, at least.  At the very least, it limits the entitlement, so that the entitlement doesn't apply to those employees, but it does so expressly and it reflects what we see is a clear intent from the legislature to these employees not be able to make this sort of request that enlivens the application of section 65.


It just seems odd that a scheme could be established that nonetheless replicates section 65 and in various ways, but gives the entitlement to people that are expressly excluded from having the entitlement by section 65(2).  It doesn't seem to leave very much for section 65(2) to do at all and that's our concern at least that we have about the operation of this provision and I don't think it could be regarded as a supplementary term for an award clause to effectively deliver an outcome which is contrary to an express outcome contemplated and delivered by section 65(2).  But, I mean, in any event, we don't rest just on those jurisdictional arguments.  That's why we have also advanced our merit-based arguments.  But I think the point we are making is that you don't even need to determine these jurisdictional points comprehensively if we succeed on our merit-based arguments.


On that point, I think, I'll just respond briefly to something that is put by the ACTU on this.  They seem to say, well, it can't be right on that point because the EM contemplates section 119 or awards being able to supplement section 119 which deals with redundancy pay by extending the entitlement to employees of small businesses.  I think the only sort of response to that that we can advance is the approach in section 119 and section 121, which is the exclusion, is a little bit different in the sense that section 121 simply provides that section 19 does not apply to those particular circumstances.


So, it deals with the application of the section, so it's slightly different to section 65(2) in the sense that section 65(2) contemplates section 65 having application to these employees and these employees specifically not having an entitlement.  But perhaps I won't take that submission any further.  I think the point we are making is that, in any event, we say there are strong merit-based grounds for not adopting the Commission's original proposal.  Sorry, your Honour, if there are questions.


JUSTICE ROSS:  It's really trying to ascertain who signed up to the amended joint employer proposal, not to put too fine a point on it.  But perhaps I can ask Mr Harris and Mr Johns what their position is.  We might go to them now and then that might clarify that issue.


MR WARD:  Yes.  I think I can say just that one other party involved in discussions to a degree was NAT Road.


JUSTICE ROSS:  Yes, Mr Johns is in Canberra.


MR WARD:  I'm sorry.


JUSTICE ROSS:  No, that's all right.  Let's go to Canberra.  Have you finished, Mr Ferguson?


MR WARD:  Yes.


JUSTICE ROSS:  Let's go to Canberra then.  Well, can I put the question to the Pharmacy Guild and NAT Road representatives.  What is your position in relation to the amended joint employer proposal of 26 July and the submissions that have been advanced by Mr Ferguson this morning?


MR JOHNS:  Your Honour, it's Mr Johns here on behalf of NAT Road.  We have actually supported AiG in their submissions in relation to the employer's proposal and we support AiG in their submissions today.


JUSTICE ROSS:  All right, thank you.  Was there anything further you wanted to add or - - -


MR JOHNS:  We stand by our filed submissions as well, your Honour.


JUSTICE ROSS:  All right, thank you.  And the Pharmacy Guild.


MR HARRIS:  Your Honour, Harris, we've following Mr Ferguson and Mr Ward's approach on this matter.


JUSTICE ROSS:  Yes, their approach differs, though.  So, what I'm trying to ascertain is whether you support the amendment joint employer proposal of 26 July and the submissions advanced by Mr Ferguson this morning.


MR HARRIS:  We are following AiG's submission on this point, your Honour.


JUSTICE ROSS:  Okay, thank you.  Was there anything you wanted to add?


MR HARRIS:  No, your Honour.


JUSTICE ROSS:  All right, thanks, Mr Harris.  Mr Ward.


MR WARD:  Thank you, your Honour.


JUSTICE ROSS:  Again, and I'm not sure how long you're going to be alive the way we're going.


MR WARD:  It's a conspiracy.


JUSTICE ROSS:  Your submission is clear about the issue that arises from clause X7 in the provision model term and its interaction with section 45 and 545.


MR WARD:  Yes.


JUSTICE ROSS:  And as I understand, the short point is, well, whether intentional or not, the provisional model term would give rise to a capacity for an employee to seek an order challenging an employer's decision to refuse a request where they had reasonable business grounds for doing so.  And you say that is an anathema to the legislative scheme and ought not be done.  And on that basis you don't support the provisional model term as a matter of merit.


MR WARD:  Yes, your Honour, we can't raise it any further than that.  You've said it well, with respect.  We don't hold the view that that was intended from the decision itself on our reading of it.  And if I could just make some brief submissions on that if I'm allowed.


JUSTICE ROSS:  Sure, sure.


MR WARD:  When we look at the March 2018 decision, and in particular page 47 of 71, the Commission declined to accept the ACTU's claims, but then effectively go on and explain their provisional view in paragraphs 417 to 424.  And it would appear to us that the provisional view has certain elements.  One, the Commission forms a view it's beneficial to increase the awareness of the right to request.  They form the view that it's beneficial for employers and employees to have more meaningful discussions about making the request itself and whether or not the employer can accommodate it.  And that's paragraph 418 and 419 respectively.


The Commission go on to make a finding that there is a significant unmet need for flexible work arrangements, paragraph 420, and then formed the view that individual supervisor attitudes have a fair degree of impact on the right to request themselves at 421.  The Bench then effectively summarise that from a process perspective and then at 424 form their preliminary views in substance and those are, one, that they intend to extend to a new class of persons the right to request and that class is expressed in the decision as ongoing and casual employees with at least six months but less than 12 months service.  I'll come back to that class in a minute.


They talk about the variation to genuinely try to reach agreement and then they talk about the need for a more comprehensive explanation for the reasons for the refusal.  And when we read all of that, we are struggling with the inadvertent consequences of X7 and we see them as inadvertent.  I think your Honour has articulated our position.  In simple terms it's this.  It would appear that through drafting of X7, the Commission have opened up a backdoor to contest the employer's position that is clearly locked at the front door by the statute and we think that that is inadvertent.  If it wasn't inadvertent, with respect, we believe in the final formulation it should be remedied.


The issue of creating a right to contest was the subject of substantial debate in the primary case and does not appear to have found any favour in the decision in March.  So, we form the conclusion that it must have been an inadvertent outcome.  Section 65 is very clear in its terms.  Various other sections of the statute are very clear that employers' right to refuse are not subject to contest and, in particular, section 44(2) with the express carve out of the compliance with the National Employment Standards and the carve out for section 65(5) itself.


So, yes, your Honour, our objection is to the drafting.  It's an objection based on our belief that it was unintended.  If it wasn't unintended, in our view, it shouldn't occur.  There was no finding in the original case that it should occur and there shouldn't be some finding now as there was no effective evidentiary case advanced to base that finding upon.  So, that's our concern about the drafting.  We were comfortable that the employer proposal didn't have that defect.  If the Bench formed the view that some alternative drafting than the employer proposal was desirable, we wouldn't quibble with that as long as that defect doesn't reappear in that drafting.


JUSTICE ROSS:  The two issues really for you in the provisional model term are the extension in scope, the minimum employment period definition in X3 and X7, and 8, for that matter, I suppose, and the unintended, as you have put it, consequence that flows from that.


MR WARD:  Yes, your Honour.  We have articulated in our written submissions some small concerns about the extent to which arguments might arise concerning the adequacy of the employer's explanation of the reasons for refusal.


JUSTICE ROSS:  This is the technical breach point.


MR WARD:  Yes.




MR WARD:  I think that's well made out in the written submissions.  I don't need to go to it, but that's a real anxiety in that we might find ourselves in many cases involving that debate which might be a kind of alternative debate to actually attacking the rejection itself of the request.  So, we have some anxieties about that, but our primary concerns are the ones you have articulated.


JUSTICE ROSS:  At 5.27 you say that, "ACCI is not antagonistic to the notion of meaningful discussion."  You then go on to say, "But rather the administrative execution of this as proposed."  I found that a little difficult to follow.  I had understood your concern about the administrative execution wasn't so much about the meaningful discussion.  It was about the provision of written reasons in the event that the request was refused.


MR WARD:  Yes, your Honour, that's correct.


JUSTICE ROSS:  So, it was second part of it.


MR WARD:  No, that's correct, your Honour.  That's correct, your Honour.


JUSTICE ROSS:  Okay, all right.


MR WARD:  Yes.  Can I deal briefly with the question of the additional class?  We have dealt with this in our written submissions.




MR WARD:  But I want to make a couple of additional observations while I'm on my feet if I can.  I think one of the things that's caused us some concern, I understand I am being blamed for this given my observations during the proceedings.


JUSTICE ROSS:  Certainly, by us, Mr Ward.  I don't know about the others.


MR WARD:  As I am told sometimes I can be wrong, so I might have been wrong then, but we'll see.  One of the concerns we have as it presently stands is the actual formulation of the class in the decision and the formulation of the class in the model term and I'll come back to that.  I just want to talk about whether or not, with respect, there was any evidentiary basis for finding in favour of this class and I'll deal with that in short order.  I want to talk briefly then about the amendments to section 65 in 2012/2013.  Then I want to talk a little bit about what I call statutory alignment between section 65 and 67 and those are the oral submissions I wish to put in addition to our written submissions.


The first issue is a curious one in that in its March decision at paragraph 424, the first dot point, the Commission say this in their preliminary views:


The group of employees eligible to request a change in working arrangements relating to parental or caring responsibilities will be expanded to include ongoing and casual employees with at least six months service but less than 12 months service.


I don't put this too cutely, but that class doesn't then actually get identified in those terms in the model term.  In the model term what we end up with is a class of persons who are ongoing and casual employees with at least six months service.  One of the anxieties we hold is that in creating that class in that fashion it's not so much that you have created a new class separate to section 65, it's that you potentially subsumed one of the classes in section 65 and we think that's highly undesirable.


If your class had simply said more than six months but less than 12, it's clear, it's unambiguous.  We're comfortable with that.  Therefore, if you have more than 12 months service, your request is a section 65 request.  So, our anxiety is the fact that although you've articulated, with respect, in the model clause, it subsumes a class in the section 65 provision rather than actually creates an additional class supplementing.  So, you seem to make a decision about a class, with respect, but that class doesn't necessarily get articulated in the terms you have decided it in the model clause.  So, that's an anxiety we have and we think that that's undesirable.


The next question then is whether or not there was any evidence in the proceedings for that class at all and I am very anxious to advance this submission given the preliminary view.  But for our part, with respect, we're struggling to see where the evidence was.  The ACTU in its written submissions say that there was ample evidence and then, effectively, seem to only reference one academic and a couple of reports of the Australian Human Rights Commission.


If one goes to the 2014 Australian Human Rights Commission report and I apologise I don't have the exhibit number from the proceedings.  Mr Arndt might hurriedly try and find it for me.  It was on the research reference list.  It wasn't an exhibit in the proceedings proper, number 124.  It was referred to, I'm told, by Dr Murray.  If I can just very quickly go to it, though.  The references we find in that report to this issue are contained on pages 121 to 122.  It's important to note that the 2014 report of the Australian Human Rights Commission was not necessarily dealing with the issues before this Full Bench, it was addressing workplace discrimination related to pregnancy, parental leave and returning to work after parental leave, that is after somebody had exercised the section 67 right.  I'll come back to the relevance of that later.


In that report, there's a two-line paragraph that articulates the employer position on the right to request flexible work arrangements.  It's in these terms at the bottom of page 121:


Despite some challenges faced by business in accommodating flexibility in workplace, see chapter 4, business and industry groups generally support the right to request the provision in their current form but did not support amendments to include provisions for enforcement.


Then on page 122, it reads on:


On the other hand, the national review received many submissions from individuals who had experienced discrimination.


I pause there.  There was no evidence about that in the case proper.  I read on.


As well as submissions from unions and community organisations, that the right to request provisions lack teeth and that employers were using the reasonable business grounds provision as a basis for refusing requests without a genuine attempt to accommodate employees' requests.


MR WARD:  It then goes on a few lines later, so based on that, they suggest that we should remove the qualification requirements relating to length of employment.  At best, that is a submission of the Australian Human Rights Commission based on submissions from unions and community groups.  With respect, its probative value seems to be relatively slim.  They do however seem to suggest that they think it's a good idea to embrace the notion of attempting to genuinely attempt to accommodate employee requests.  This Commission has made a decision about that and found the way to try and achieve that through the added obligations to genuinely try and reach agreement.  Also, the added obligation of actually setting out in writing the reasons if there is a refusal.  It seems to have been accommodated in a different way.


That's the principle piece of evidence that the ACTU referred to in their submissions for supporting the extension of the class, and with respect, that is not enough even with the added observations of a similar 2013 Australian Human Rights Commission report which is in very similar terms and the observation of one academic, with respect, gets you over the line.


If that is all the evidence that there was in the case, and it appears the majority of that evidence comes from the additional reading list, rather than any of the witnesses, it really just doesn't make the hurdle necessary to convince this Commission that a change is rather than desirable, is actually necessary as required by sections 134, 137 and 138.


It's also important to note that this is not a dark medieval provision that's never been dusted off and seen the light of day.  Section 65 was the subject of extensive parliamentary reconsideration in 2012/2013 and the parliament turned its mind to the very issue of should more classes of persons receive the benefit.  They turned their mind to that, only a few years ago.  They extended the classes of persons who should receive the benefit.  One obvious extension was to persons 55 years or older.


So, there is a contemporaneous parliamentary reconsideration not only of section 65, but of the very issue of which classes of person should receive the benefit.  With respect to the Commission, and I appreciate the Commission has already formed a provisional view, we say that we ask the Commission to reconsider its provisional view in light of that very persuasive proposition.


That is one, there appears to be very little evidentiary foundation in the case, and two, the parliament itself reconsidered this matter very recently, not only reconsidered the section, but the very issue of which classes of persons should have the benefit.  The final reason we ask the Commission to reconsider its provisional view, is the strange irony that's no emerged if the provisional view actually comes into being.  The irony is this.


The Act, as currently drafted, has a very particular logic to it.  That logic is found by considering the alignment of entitlement between section 65 and section 67.  Section 67 deals with those persons who are eligible for taking parental leave.  Section 67 adopts the same formulation for casual employees that section 65 in its terms adopts.  If one extends to a new class, that is persons with more than six months but less than 12 in section 65, the irony is, and I don't say that with a sense of humour, but the true irony is this.  The leave that they're meant to be coming back from for most people, not all, but for most people to make the request, isn't available to them under the statute.  Because the statute only provides that leave itself to the long term casual, 12 months, ongoing expectation of employment that section 65 currently does.


If we create this new class, we create a material misalignment.  That seems to be a persuasive reason why the Commission might reconsider its provisional view.  You could actually have a person who in theory is looking to return to work after having taken parental leave, but ironically, they're not entitled to the parental leave in the first place.  We think that's a persuasive reason to reconsider the provisional review that was not available at the time - sorry, I'll withdraw that.  That was not put to the Commission at the time, not being aware of the provisional view.


But with respect, those are the arguments we advance in addition to our written submissions, encouraging with respect, the Commission to reconsider its provisional view on the creation of a new class.  It would also appear, and this is my final point, in also appears that there is a very real complexity as to how you would create this class having an award entitlement without falling foul of the civil remedy concern we had that we put originally at large, about X7.


If one thinks for a moment about the joint employer proposition, it included, although it was underlined on the basis I think it wasn't agreed, it included a formulation for the less - I'll withdraw that - for the at least six months casual.  Now, that formulation doesn't give rise to the problem of creating inadvertently the civil remedy issue, but it raises the question and I'm saddened to say we don't have a great answer for you, and that this.  It seems to raise a question which is, can the award create a right for a new class of persons to make a request under section 65 where section 65 doesn't give that right to that person in the first place.


JUSTICE ROSS:  So, what's the point?  If we expand the class, we have to reproduce the whole of section 65 to give the entitlement to the class and if we do that, we create an enforceable entitlement inconsistent with the Act?


MR WARD:  Yes, your Honour, and I don't - I'm not putting that mischievously, but it does strike us as a real problem and a real complexity.  It might well be this, that might demonstrate why my somewhat offhand oral submission in the proceedings about this might be wrong.  It might be that the way you test substitution in its true sense is you say well, when you're making the request under section 65 in addition, you must do the following things.  I don't, with respect, have an answer for this as an issue, but it seems to be a very real issue in the proceedings that in the formulation of any additional benefit and the formulation of any draft clause, needs to be considered.


That complexity again, in our respectful submission, seems to lead to support the proposition that the Bench respectfully reconsider its preliminary view on this, provisional review on this and don't proceed to create the additional class, articulated in the decision as at least six months, but less than 12 months' service.  If the Commission pleases, subject to any questions, those are the submissions we have to put.


JUSTICE ROSS:  Mr Ward, in relation to trying to distil what you object to and what you don't object to.  My understanding is you object to the extension of the class and X7 and X8 of the provisional term, extension of the class for the reasons you've just articulated, X7 and X8 because it will give rise to an unintended consequence on the enforcement front.


You raise the possibility of some technical breaches in relation to the additional written obligations.  You don't cavil with the obligation to confer.


MR WARD:  No, no.


JUSTICE ROSS:  You put the proposition that having regard to the complexity, that the provisional model term might give rise to, it almost seems like you end up in the same place, albeit Ai Group's amended joint employer proposal varies slightly some of the language of the obligation to confer in the additional written obligation, but you end up in the same space.  That is, that for the reasons you've articulated, including simplicity, why not just supplement section 65 by the obligation to confer in the additional written obligation.  That seems to be where you've landed.


MR WARD:  I have to say, your Honour, that's a reasonable summation.  The anxiety about the additional technical elements about the explanation of why you would refuse a request, you could overcome those very quickly by making sure that the obligation on the employee is just a reasonable one.


JUSTICE ROSS:  If you get to that point though, one reason - well, the scope of the provisional model term, and I mean scope here in relation to employees with parental responsibilities or responsible for the care of a child, or a carer, so it's a subclass of section 65.  The reason why the subclass is chosen is because of the extension on eligibility, so to avoid the extension of eligibility to the whole class.


If you remove the extension of eligibility why would you limit the clause to parents and carers if it's to be simple and supplementing 65, why wouldn't it operate to all the employee circumstances?


MR WARD:  Well, your Honour, if that had been the nature of the evidentiary case that was put forward - - -


JUSTICE ROSS:  Well, sure, but we are where we are, but if your submission accepts that people should confer, it's best practice to confer, both you Ai Group accept that you don't cavil with the need to promote section 65.  I understand what you say about the written - they have to provide written reasons in any event, but it's the extension of that might give rise to a collateral - I understand what you say about that.  Why would it be confined?


MR WARD:  Can I just say this, I think the view that my client took during the proceedings and really hasn't resiled from, is that everything is actually working quite well at the moment and employers are doing their part.  We don't resile from that proposition, but we have said that it appears difficult to argue against the propositions of meaningful consultation, so we don't virulently argue against them.  If the question is why wouldn't that apply at large, well your Honour, I don't know the answer to that, other than to perhaps with some feebleness on my part, rearticulate what I said, which is that wasn't the subject of the case.  I'm sorry, it just wasn't.  It wasn't the focus of the case.


If this had been a case about simply creating additional consultation obligations at large for section 65, with respect your Honour, it might have been settled very early on in the peace.  That wasn't what the case was about.


JUSTICE ROSS:  It's not infrequent that we get the same submission put either by employers or by unions that it's not the nature of the case put.  But, subject to providing parties with procedural fairness, it matters not what the claim was.


MR WARD:  Your Honour, I' m very mindful that the Commission in its March decision has set out all the jurisdictional issues associated with the modern award review.  I can't cavil with that.  Your Honour is right.


JUSTICE ROSS:  And look, we've rejected the claim, but that's not say that it doesn't give rise to some other issues that may need to be addressed.


MR WARD:  Your Honour, can I say this?  It would be improper for me to answer that on my feet today.  I would need to take instructions which I seek to do, but I understand the question and I understand the rationale behind the question as well.


JUSTICE ROSS:  All right.


MR WARD:  I apologise if that is not a satisfactory answer today.


JUSTICE ROSS:  No, no.  All right, thank you.  Ms Ismail?


MS ISMAIL:  Thank you, your Honour.  I'm wondering if the Bench would mind me remaining seated, I don't have a lectern.


JUSTICE ROSS:  No not at all, that's fine.


MS ISMAIL:  Good morning.  There was no process for reply submissions, so there are some issues that have been raised today that we haven't had much notice of, but I think the question distils down to this.  With respect, there's not much question that the Commission has the power to do what it seeks to do in the form of the provisional model term.  The real question is whether it should.


The employer parties have raised a number of merit concerns.  Chief among them really, is related to the enforcement power.  Now, terms and conditions of employment are not the same as the enforcement regime and it's not usual for the discussion in terms of variations to awards to involve a discussion about the enforcement regime.  The enforcement regime is the enforcement regime, and the suggestion from the employer parties that somehow this is a new idea that's never been discussed, is very difficult to understand given that this case has now been running for 13 years in effect.


We've been having this discussion about flexible working arrangements for over a decade and the issue of enforcement has been central to those discussions throughout that time.  The ACTU from the beginning of these current proceedings has put on the table the fact that the lack of the enforcement regime in section 65 means that it's not properly enforceable, it's not guaranteed and it's not enforceable and that was one of the key reasons for bringing our claim.


There's been a lot of discussion about legislative intention.  Well, it's actually very difficult to discern why the parliament decided to carve out section 65 and the other right I think it's in section 75 to request an extension of paid parental leave.  There's nothing in the explanatory memorandum that explains why the parliament decided to carve those two particular rights out.


AiG has mentioned the discussion paper, but there's no explicit mention in the explanatory memorandum and we all know how these things can unfold in the cut and thrust of political negotiations.  But the ACTU's strong position is that there is no justification.  There's no valid policy justification for carving out section 65 from the usual enforcement regime that applies to every other entitlement in the NES.  There's certainly no justification for the Commission amending the clause to exclude a new provision on family friendly work arrangements from the normal enforcement regime that applies to every other award based entitlement.  There's simply no justification for that position.


In terms of - I'm not sure whether to go into the jurisdictional arguments at this point.  I'll stick with merits.  We've made written submissions on this and I don't want to repeat them, but I think it's important to make the point that the Commission is obliged to take positive steps.  The obligation is to promote, not just simply facilitate to allow for, but to promote.  Let's take a positive step to further progress of family friendly working arrangements, flexible modern working practices.


That obligation arises through the obligation to meet the objects of the Fair Work Act itself through section 578.  And of course, to meet the modern award objectives, one of which is to promote flexible modern working practices.  Leaving the award system without any mechanism to promote flexible working arrangements means that the Commission is not meeting that objective.  NAT Road made the point in their submissions at paragraph 23 that currently employers have an unconstrained power.  That is right, there's been a lot of discussion about balance from the employer side.


We are operating in a statutory regime at the moment where employers have essentially an unfettered power to say no.  All - I mean, the ACTU claim went a lot further than what the Commission is proposing, but it is long past time to move the balance a little bit more in favour of employees who are seeking access to this right.  As the Commission noted back in 2005, we accept the evidence that a large majority of employers engage with their employees.  They seek to confer and they genuinely try to reach agreement and they often do manage to reach agreement.


This award clause is not directed to those employers.  It's directed to the employers - and there was evidence in the case, Katie Routley springs to mind, where blanket no's are issued and employers are not doing the right thing.  That they're simply refusing to discuss, to entertain the idea of flexible working arrangements and employees have no recourse whatsoever.  All we're seeking to do is move - is to come to some kind of balance.  At the moment there is no balance at all and no one disputes that really, employers have an unfettered power to refuse requests for flexible working arrangements.


It's the ACTU's strong submission, that's completely unacceptable in 2018 and completely inconsistent with the objects of the Fair Work Act and with the modern award objective.  It's out submission that the proposal that the Commission has put forward, does constitute a positive step forward and is entirely consistent with the modern award objective.


Just give me a minute to - there were a number of points put forward by AiG in relation to operational matters in relation to the provisional model term.  The first was notice in evidentiary requirements.  Well, the ACTU has no objection to that.  Our claim included requirements for notice and evidence to be provided.  I mean, if the Commission was minded to include notice and evidence requirements, we would have no objection to that.


In relation to the argument that it's somehow maybe unclear what a parenting or a caring responsibility is, and that it might be appropriate for the Commission or the legislature to tell a parent or a carer what is a legitimate parenting activity and what isn't, is frankly an absurd proposition that I'm not sure we need to go into in great detail.  Section 65 doesn't require a carer or parent to articulate the validity of the type of parenting or caring responsibility that they seek the flexibility to do, or for them to articulate exactly why that's justified.  I'm not sure I need to go into that much further.


The question of whether or not it would operate as a casual conversion by proxy, well we'd be happy for any clause to include clarity that that shouldn't be the case, that that's not the intention of the clause as well.  In relation to what happens when a parent or a carer ceases their arrangements, well our original clause dealt with the situation and provided a right for an employee to revert to their former arrangement.  We would have no objection to some kind of clarity that the entitlement relates to the period of time while you have parenting and caring responsibilities and once those cease, you are entitled to revert to your former arrangements.


We think the bolt-on solution proposed by the employers is not simple or easy to understand.  We think that the Fair Work Act clearly contemplates a situation like the Commission has put forward in the provisional model term where an NES entitlement or a safety net entitlement may be drawn from both the award and the National Employment Standards.  We think for both employers and employees picking up the award, there should be a comprehensive scheme contained in that one document.  We don't want a situation where employees and employers are having to flick back and forth between two documents.


VICE PRESIDENT HATCHER:  Ms Ismail, sorry I understand the logic of that last proposition, but if we incorporate the repeat provisions from section 65 in the award, for the purpose of section 55(5), do they have the same or substantially the same effect when they become enforceable by putting them in the award?




VICE PRESIDENT HATCHER:  They have a different legal effect, don't they?


MS ISMAIL:  Section 55(5) - I mean, division 3 deals with the National Employment Standards which are terms and conditions of employment.  The enforcement regime that applies to those terms and conditions is a separate matter.




MS ISMAIL:  The term has substantially the same effect.


VICE PRESIDENT HATCHER:  Sorry Ms Ismail, I correct myself.  I meant 55(6), not (5), but I think the point is the same.


MS ISMAIL:  Yes, my point is the same, that they give the employee the same entitlement and the question of how that is enforced, is a separate question.  It's clear from the effect of those provisions that the terms operate in parallel, so the intention of the legislature is that an employee doesn't get to double dip, that they only get the minimum standard once and the provisions of the NES apply to that minimum.


We also note as a matter of evidence, that most employers are doing the right thing and so the employer groups' anxiety about this is very difficult to understand, both in terms of technical breaches and substantive breaches.  If the evidence is, and it seems to be that most employers are doing the right thing, we can't understand the employer anxiety about this question.  If it is limited to those employers who are not doing the right thing, how in any way is that an unintended or inappropriate consequence?


Are there any other questions about the merit aspects of the arguments that have been raised, the enforcement question?  I might deal with section 65(2) which is the extension.  The ACTU would be very happy if the employers are asking for it, to bring further evidence to the Commission abut the prevalence of women with family responsibilities amongst the group of casuals with less than 12 months' service.  I don't think there's much doubt that the evidentiary case for that can be made out.


Mr Ward talked about one academic; it's two academics.  But the evidence is clear, women are over-represented amongst the casual workforce.  They predominantly bear most of the caring responsibilities and many women with caring responsibilities don't reach 12 months' service.  If procedural fairness is a problem, we would be very happy to have that evidentiary hearing if the employers wish to have it.  We think that it's clear that the legislature intended that a supplement to a condition includes the extension of new entitlements to new employees or existing entitlements to new employees.


If the extension of redundancy entitlements to employees of small business employers, which is one of the examples contemplated in the explanatory memorandum, constitutes a supplement within the meaning of section 55(4), then how can it be the case that the extension of a right to request flexible working arrangements to casual employees with less than 12 months service is also not a supplement within the meaning of section 55(4).  We think it's clear that the legislature has contemplated the extension of rights to different or new classes of employees to be a supplement.  So, we think jurisdictionally it's permitted and the merit case is there.


In terms of AiG's and other employer parties' suggestions that this would somehow be an alternate scheme, as we pointed out, in no way would this meet the definition of exclude and if you will bear with me I will refer to the definition in Canavan.  The employer parties have completely failed to demonstrate that the provisional model term would in its operation result in an outcome where employees do not receive in full or at all a benefit provided for by the NES and it will simply not be the outcome of the implementation of the provision on model term.  In that sense, it doesn't negate the effect of the NES and it doesn't fall foul of section 55.


It is clearly a term that's permitted and it's a term whose time is overdue.  We have been having this discussion for many, many years and the merit case for the introduction of a new award entitlement, you know, and this is not - the ACTU's claim was rejected.  The ACTU pushed for an absolute right for reduced hours.  We think that the evidence case and the merit case was there for that kind of entitlement.  What the Commission is proposing to do is well short of that and simply, as ACCI points out, attempts to codify what is existing best practice - good practice - with the usual enforcement regime applying.  Although, it's not the usual enforcement regime because the Commission is still prevented from hearing an argument about whether or not reasonable business grounds exist.  But if an employee was aggrieved enough to take a matter to the Federal Court, then they would be entitled to do that and we can't see any reason why the shouldn't be.


We have dealt with ACCI's concerns about an increase in technical breaches in our written submissions.  But, again, we see this as an anxiety that is not founded in fact.  As we pointed out in our written submissions, the only provisions of section 65 that are currently enforceable are the technical provisions and yet there certainly hasn't been a flood of litigation claiming technical breaches and where on the few occasions that they - I think two occasions that they have proceeded to the Federal Court, the penalties imposed on employers for breaching the written response requirements have been very minor.


It seems to us that there is a theme here that there's a lot of anxiety being thrown forward about this clause that's not founded in fact, it's not supported by the evidence, in fact, contradicted by the evidence.  That is that this simply codifies what most employers are doing already and in circumstances we say where employers are not doing the right thing and under the terms of the Commission's proposed clause, not seeking to confer and not genuinely trying to reach agreement, that an employee should have the right to challenge that.


We think the jurisdictional arguments are weak and without merit.  The real question is whether or not the Commission should do this and we submit that the Commission absolutely should do it.  We say if it was necessary in 2005, in 2018, it's not only necessary but urgent now.  Unless there are any questions, that concludes the ACTU's submissions.


JUSTICE ROSS:  Thank you, Ms Ismail.  Any reply?


MR FERGUSON:  Your Honour, if I can just reply to an issue that you raised with Mr Ward and it was about why the Full Bench shouldn't potentially contemplate expanding these sorts of limited entitlements to the other cohorts.  Now, we would want to give consideration to that before responding fully.  But the point I would make originally is that there is a bit of a danger in terms of the Commission acting of its own motion to suggest that sort of change.  We don't say it's not open to it to follow that course of action.  But this sort of proposal, obviously, the merits of it are reasonably contestable and without giving a great deal of thought about it, consideration would go to what the impact - the cumulative impact of that sort of change might on employers.


I think the difficulty of the Commission raising that of its own motion and seeking that course of action is that there might be some practical impediments to how it would be able to obtain a proper evidentiary basis to assess all of the relevant considerations under section 134.  Now, I don't say that it's not able to do this, but there is real merit in using the vehicle of proponents of claims, if you will, for changes where parties see that there is an issue in the system because they will then, you know, I don't want to be overly technical here but - - -


JUSTICE ROSS:  But, ultimately, we can't be the captive of the parties.  Employer organisations don't represent all employers or even perhaps a majority of employers.  Unions don't represent the majority of employees.  So, on what basis in a national system are we supposed to be dependent on what claims you advance?


MR FERGUSON:  I'm not saying it would be dependent on us.  It is obviously open to all parties to advance claims, employers generally, and so forth.  I'm not suggesting you are captive to it.  I think the difficulty is when you're looking at a policy debate about what the best approach might be, the risk would be acting on that sort of approach and just floating or, you know, raising properly a variation and leaving it to parties to file material about it.  The risk is that people don't file much material about it and our procedural fairness obligations are (indistinct) discharged, but I am just raising the concern that that might not result in, you know, all of the relevant considerations being raised for the Full Bench.  And then if that doesn't occur, simply making those changes runs the risk of undermining the stability of the system if you make the change and then wait to see if it's causing a problem.  As I said to you, I don't say you can't do that, your Honour, although there might be some circumstances where that's justified.  But in some instances like this, where there would obviously be, you know, a cumulative impact.


JUSTICE ROSS:  Why, for example, wouldn't we put in an obligation to confer and genuinely try to reach an agreement where the employee is experiencing violence from a member of their family?


MR FERGUSON:  I'd need to give consideration.


JUSTICE ROSS:  But what's the difference between that and an employee who has parenting responsibilities for the care of a child?


MR FERGUSON:  I'm not in a position to come up with all of the - I don't know all of the potential considerations that would flow on the spot.  I mean, the obvious issues might be - - -


JUSTICE ROSS:  I haven't invited you to make a submission on the spot.


MR FERGUSON:  No, no, no.


JUSTICE ROSS:  You're the one that's doing it.  So, you know, since you've raised it, I'm putting the question back to you, that's all.


MR FERGUSON:  Yes.  No, no.  And like I said, I'm just saying that on the face of it there might be issues that would arise.


JUSTICE ROSS:  Sure.  Well, we'll find out.  We will provide an opportunity for submissions.  I think that's the fairest way to deal with it.


VICE PRESIDENT HATCHER:  It would also raise the question about whether it's something that would need to be the subject of evidence when the categories arguably on their face it's self-evident that they involve people with family responsibilities.  I mean, you'd have to say (f) is self-evidently concerned with the position of somebody who is caring for another member of their family.


MR FERGUSON:  That's right, obviously, in the context of this case.  As I said to you, I wasn't trying to say that you - - -


JUSTICE ROSS:  You see, it also goes to simplicity, doesn't it?  If you're talking about supplementing and then you're weaving out certain categories, that was the point that I was raising with Mr Ward.  If you're looking at simplicity, which is an argument that you both advance in favour of the pure supplementation, if I could put it that way, well, it adds to a degree of complexity if you start disaggregating from within the class that you're supplementing.  And what would be the good reason for doing that is really the question.  But I think the safest course for you is not to engage with me now, but to give some thought to it and we'll provide an opportunity for submissions.


MR FERGUSON:  I am sure that's right.  I think I just wanted to raise some initial, on the face of it, concerns, in the event to circumvent.


JUSTICE ROSS:  Well, yes, I think you need to think through the ramifications of it before responding on your feet or in your chair, as it turns out.  Was there anything you wanted to say in response to Ms Ismail?


MR FERGUSON:  No.  We seek to rely on our previous submissions.


JUSTICE ROSS:  Sure.  So, in relation to the matter that's been raised around which further submissions would be invited and the short proposition is this, that if the model term were limited in the manner contended by ACCI and Ai Group, that is that it not extend to the broader class and that it not contain a provision in the form of X7 and X8 in the provisional model term, what ought the scope be?  Why wouldn't it be a purely supplemental provision to section 65, rather than being one which is confined to parents and carers as the current model term?


We will provide an opportunity.  Written submissions on that issue can be filed by 4 pm on Friday, 7 September.  So, that's Friday of next week.  Any submissions in reply by 4 pm, Friday, 14 September.  Okay, is there anything further?  No?  In Canberra?  No?  All right, thank you, we'll adjourn.

ADJOURNED INDEFINITELY                                                        [11.34 AM]