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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 26143-1
VICE PRESIDENT WATSON
AM2010/16 AM2010/17
s.158 - Application to vary or revoke a modern award
Application by National Retail Association
(AM2010/16)
Application by Master Grocers Australia Limited
(AM2010/17)
Application by Australian Retailers Association
(AM2010/39)
Application by Jim Whittaker
(AM2010/44)
General Retail Industry Award 2010
(ODN AM2008/10)
[MA000004 Print PR985114]
Melbourne
9.35AM, FRIDAY, 7 MAY 2010
Continued from 06/05/2010
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE
PN1036
THE VICE PRESIDENT: Mr Tindley, you have your final witness to call.
PN1037
MR TINDLEY: Yes, your Honour.
PN1038
THE VICE PRESIDENT: Mr Wareham, I will get my associate to administer the oath or the affirmation.
PN1039
THE ASSOCIATE: Mr Wareham, can you please state your full name and address.
PN1040
MR WAREHAM: William Robert Wareham, (address supplied).
<WILLIAM ROBERT WAREHAM, AFFIRMED [9.37AM]
<EXAMINATION-IN-CHIEF BY MR TINDLEY [9.38AM]
MR TINDLEY: Mr Wareham, did you prepare a statement in this matter?---I did.
PN1042
Do you have a copy of that statement with you?---I do.
PN1043
Is that a document of two pages amounting to six numbered paragraphs?---It is.
PN1044
And signed by you on 24 March 2010?---Correct.
PN1045
I tender that statement, your Honour.
EXHIBIT #T4 Statement of William Robert Wareham dated 24/03/2010
MR TINDLEY: That's the evidence-in-chief of the witness, your Honour.
<CROSS-EXAMINATION BY MR FRIEND [9.38AM]
MR FRIEND: Mr Wareham, you are in Tea Tree Plaza, your business. Is that right?---That's correct.
PN1048
That's a very substantial shopping centre?---It is.
PN1049
At 95,000 square metres. It includes K Mart, Big W, Target, Woolworths, Coles. Correct?---That's correct.
PN1050
So there are a lot of opportunities for employment throughout the whole shopping centre?---That is correct.
PN1051
What are the trading hours of the shopping centre?---The shopping centre is open 9.00 to 5.30 Monday, Tuesday, Wednesday, Friday; 9 am till 9 pm on Thursday; 9 am till 5.00 on Saturday; and 11.00 till 5.00 on Sunday.
**** WILLIAM ROBERT WAREHAM XXN MR FRIEND
PN1052
In terms of the people you used to employ doing work after school from 4 o'clock to 5.45, what work were they doing?---Customer service work. So having a newsagency, they would be both looking after general merchandise and also my lottery sales.
PN1053
How many were you employing at any time - different employees on different days, was it?---Different employees on different days. Normally one or two between those times of 4.00 till 5.45.
PN1054
Did you need that work done? You employed them because you needed the work done?---That's correct.
PN1055
Who is doing the work now?---At the moment?
PN1056
Yes?---They're still employed in that capacity.
PN1057
How do you propose to handle the change to three-hour minimum shifts?---That change is going to have to be borne by other staff members and myself, my wife.
PN1058
Do you have any other part-time employees?---I do.
PN1059
Will some of them take up the work at that period?---They will have to, yes.
PN1060
So they will get additional work?---Possibly.
PN1061
Do some of them work at the weekends or Thursday evenings?---Which ones are you referring to?
PN1062
The part-time employees. The part-time employees?---Most of them now work Monday to Friday; occasionally they will work on a Saturday.
**** WILLIAM ROBERT WAREHAM XXN MR FRIEND
PN1063
There's an opportunity to swap Saturday work for week work with the part-timers and employ students at the weekend, is there?---Not really, no.
PN1064
Why not?---Well, I've found at this point in time - in addition to these students that we're talking about, I also have university students and they're the ones that mostly work on those weekends.
PN1065
University - - -?---So they - - -
PN1066
Sorry, go on?---The university students that I have that work on those weekends wouldn't be available Monday to Friday.
PN1067
University students tend to be more flexible than school students, don't they?
---The ones that I have are not; they are full-time university students.
PN1068
They don't necessarily have to attend university until 3.30 each day, do they?
---I'm not sure where you're coming with that.
PN1069
You know that university students don't attend in the same way the school students attend - fixed hours every day - don't you?---(indistinct)
PN1070
Yes?---I have my university student who is currently a full-time university student studying physiotherapy and also doing work placement, so she's unavailable Monday to Friday.
PN1071
I understand that. But that's not always the case with tertiary students, is it, that they're unavailable Monday to Friday?---I'll take your word on that; I'm not sure.
PN1072
You're not sure about that. That's okay. In paragraph 6, you say, "This change has directly resulted in the loss of employment for one of the employees." How has that happened if they're still working the 4.00 to 5.45 shift?---In fact I remember that - it should have said, "It will result".
**** WILLIAM ROBERT WAREHAM XXN MR FRIEND
PN1073
"It will result"?---Yes.
PN1074
Things might change and you might be able to find a way around that. Is that possible?---For those students?
PN1075
For the one employee who you thought was going to lose their job?---Well, it's the total number of hours that I need, like, over a Thursday, a Saturday or a Sunday. Based on the number of hours and these four employees, the most likely scenario is that one of them will lose their job.
PN1076
You say it's the most likely scenario, because it's a juggling exercise about availability and hours required, isn't it?---It certainly is.
PN1077
It's possible that that may not happen. Correct?---Possible.
PN1078
Nothing further, your Honour.
PN1079
THE VICE PRESIDENT: Mr Tindley.
PN1080
MR TINDLEY: Nothing on re-examination, your Honour.
PN1081
THE VICE PRESIDENT: Thank you very much for your evidence, Mr Wareham?---Thank you.
PN1082
You may step down now?---Thank you.
<THE WITNESS WITHDREW [9.44AM]
THE VICE PRESIDENT: Mr Tindley, that concludes your evidentiary case.
PN1084
**** WILLIAM ROBERT WAREHAM XXN MR FRIEND
MR TINDLEY: That concludes the evidence, yes, your Honour.
PN1085
THE VICE PRESIDENT: Mr Friend.
PN1086
MR FRIEND: Thank you. I call Dr Ian Campbell, your Honour, whose statement will be found at tab 7A of the folder.
PN1087
THE ASSOCIATE: Mr Campbell, can you please state your full name and address?
PN1088
MR CAMPBELL: Iain Graeme Campbell, (address supplied).
<IAIN GRAEME CAMPBELL, AFFIRMED [9.45AM]
<EXAMINATION-IN-CHIEF BY MR FRIEND [9.46AM]
MR FRIEND: Your full name is Iain Graeme Campbell?---Yes.
PN1090
Your address?---(address supplied).
PN1091
You're a senior research fellow at the Centre for Applied Social Research at RMIT University?---Yes.
PN1092
You prepared a statement in this matter at the request of the STA?---Yes.
PN1093
Are the contents of that statement true?---Yes.
PN1094
I tender that statement, please, your Honour.
EXHIBIT #F4 Statement of Dr Iain Graeme Campbell
MR FRIEND: Dr Campbell, were you provided with a document called Issues Paper, Youth Employment dated May 2010, published by ACCI yesterday?---Yes.
**** IAIN GRAEME CAMPBELL XN MR FRIEND
PN1096
Have you read that document?---Yes.
PN1097
Can I take you to page 2, where the document refers to some OECD material?
---Yes.
PN1098
Do you have any comment about that?---Yes, I think that's a little bit problematic in the sense that I'm fully in favour of international comparisons, and I think that's terrific and I applaud that in this statement, but it's a little bit dodgy - a little bit cheeky I think to present this working paper as if it was an official OECD document. It's a working paper done by a number of economists at the OECD, and if you look at the original document, the authors are clearly marked as particular economists and there's a note suggesting that, "This is not to be taken as the views of the OECD. This is the views of the authors themselves." So I think it's a little bit cheeky perhaps to present that as - for example, in clause 10 - as if it was the OECD's opinion. I think it's particularly cheeky because the OECD actually has put out an official report - - -
PN1099
The OECD has an official report?--- - - - on youth employment in Australia.
PN1100
In Australia?---From 2009.
PN1101
What's that called?---That's called Youth Employment in Peril - I've written it down somewhere. Actually, I have it here. Jobs for Youth, Australia.
PN1102
Is that a copy of the summary of the recommendations of the report?---Yes, that's just the summary.
PN1103
I've only got the one copy, your Honour, but it probably would be convenient to tender that, if I may?---Should I keep going or - - -
**** IAIN GRAEME CAMPBELL XN MR FRIEND
PN1104
THE VICE PRESIDENT: I will mark the document exhibit F5 and that can be copied and distributed to the other parties.
EXHIBIT #F5 Summary of recommendations of OECD report entitled Jobs for Youth, Australia
MR FRIEND: In terms of that summary, what does that say about youth unemployment in Australia?---It says that, like a lot of countries, unemployment has risen in Australia during the global economic downturn but there are signs of recovery. It's primarily interested in the policy implications. I guess what it's arguing in particular is whether or not there are demand side barriers to youth employment in Australia. I mean, for example, the ACCI report in clause 10 uses the working paper to suggest that there are demand side barriers such as high labour costs, unbalanced employment protection legislation, discrimination against youth and minorities. The official report from the OECD says quite clearly that in Australia they see few demand side barriers to youth employment; that we have, for example, relatively lax employment protection legislation. We have moderate to low entry wages for youth. We have an abundance of part-time and casual jobs. The do not see - and no evidence of discrimination against immigrant youth. So they see precisely on these issues that Australia does not have a kind of policy problem in this area.
PN1106
Are you familiar with material which would tell us what the position of Australia - we're dealing with international comparisons because it's been raised by ACCI - the position of the level of youth unemployment in Australia compared with other OECD countries?---I think it's even suggested perhaps in the ACCI report but we have very low levels of youth unemployment compared to other OECD countries. It's still not to say that it shouldn't be regarded as a problem but it's clearly a moderate problem compared to other countries.
PN1107
**** IAIN GRAEME CAMPBELL XN MR FRIEND
Is youth unemployment higher than general unemployment?---It is, yes.
PN1108
Are there any structural reasons for that?---I'm not sure - well, there is in the sense that even in a period of economic boom you're going to have youth unemployment higher than total unemployment because youth are characterised, by their very nature, as moving in and out of jobs, perhaps testing, experimenting different jobs; perhaps taking up a job and then ordered to go away and return to study or perhaps take a holiday. So there's always an element of frictional unemployment that's much stronger in the case of youth and in the case of most people. So you would always expect a higher level of youth unemployment because they're going to be caught at a period when perhaps they're between jobs more readily than other employees.
PN1109
Do you know what the OECD average for youth unemployment is?---I think it's around 20 per cent in all OECD.
PN1110
Do you know what it is in Australia?---Well, I could perhaps refer to the - I think it's around - well, if we look at the ACCI report, they're suggesting it's somewhat less than 12 per cent at the moment.
PN1111
If we turn from unemployment to underemployment, do you have - I think turning to page 9 of the report it starts to deal with underemployment. Do you have any comments to make on this part of the report?---I think that's to be welcomed, the fact that we're not just talking about unemployment but also about underemployment. I think that's terrific and it corresponds I guess with labour market research which is turning its attention more and more to underemployment. I have huge sort of questions about the data but just on I wasn't quite sure whether they were using original, seasonal or trend data, but going past that, let me say that it seems to me that we've - I've done a lot of research on underemployment and argued consistently that Australia, on international comparison, has got a much higher problem of underemployment that most other OECD countries. I think we can see some evidence here that that problem is not just confined to all workers but it also affects youth. So there's a problem of underemployment amongst youth that I would regard as more severe in international comparison than the problem of unemployment. Indeed, there's hints here - we've got many more people affected by underemployment in Australia than affected by unemployment, including amongst youth.
**** IAIN GRAEME CAMPBELL XN MR FRIEND
PN1112
In terms of employment protections such as minimum engagement periods, is there any relevance in terms of minimum engagement to the question of underemployment?---Yes, I try to address that in my statement. I suggest that underemployment is of course a problem of getting into a job and then finding that that job doesn't offer enough hours, and we could expect that it's a problem not just of enough weekly hours but also of not enough daily hours, given the nature of schedules for part-time schedules. So underemployment is a symptom of a problem of the quality of part-time jobs, that they don't offer enough hours. So you would want to preserve whatever regulations you've got that allow some kind of control over those number of hours and you wouldn't want to, I guess, step down the path of reducing the number of hours that are available to people on a daily basis; in other words, move from a three-hour minimum daily engagement to a two-hour minimum daily engagement.
PN1113
Thank you, Dr Campbell. If you could wait there, please.
<CROSS-EXAMINATION BY MR TINDLEY [9.55AM]
MR TINDLEY: Dr Campbell, you've made some comments about Australia having a comparatively low youth unemployment rate but you see it as having a comparable or high youth underemployment rate. Is it fair to suggest that there is only a certain amount of work available for young people to carry out?---No, I wouldn't agree. You could perhaps say that at any one point in time there's a number of hours in the economy which can be distributed amongst employees but I wouldn't say that's necessarily - there's a segmented group of youth hours that are available.
PN1115
But in general you would accept that there's a certain number of hours available within the economy per week?---In a cross-sectional time - I know this is probably tedious for everyone but this is the lump of labour fallacy that economists sometimes talk about that - and I want to say, yes, at any one point of time there's a certain number of hours available but of course that can be dynamically changed as a result over the short term or the long term.
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1116
Is it correct that you see underemployment as a more significant issue than unemployment?---I think we should be capable of operating on both fronts but I do think that underemployment is has been a neglected issue and it's got particular policy implications that haven't been adequately addressed.
PN1117
So is the solution that we bump unemployment up a little bit so that people who have got work can get some more hours?---No, on the contrary. No, no, no. I think that if we have a particular problem with underemployment, then we should be looking at the policy ways of dealing with that problem but I don't think that should be done at the expense of bumping up unemployment. Both cause a lot of misery for individuals so we have to be very careful about what policy developments we choose.
PN1118
You say in your statement that you've participated in four industrial cases in the last decade, and this would be the fifth?---Yes.
PN1119
Can you tell me how you came to give evidence in those other four matters?---As suggested in the statement, the four was a case in the South Australian Industrial Relations Commission, the Clerks case, and because I was regarded as an expert on casual employment, I was approached to give an expert witness statement on that.
PN1120
Approached by?---By the ASU in that case.
PN1121
In the Metals casual case, how did you become to be involved in that?---Again, it was a simple - in fact to some extent it was a follow-on from the Clerks case; partly because it dealt with similar matters. So in that case I was approached to give an expert witness statement.
PN1122
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
Approached by?---By the AMWU.
PN1123
In the other two: the working hours case and the (indistinct)?---The test cases, they were probably a little bit more indirect in the sense that they were commissioned research pieces. For example, in the reasonable hours case - or what's known as the reasonable hours case, John Buchanan from Workplace Research Centre in Sydney University was putting together a team of people who would do research around working hours and that eventually led to a report for John Buchanan and then for the ACTU, and then in the wake of that there was evidence given in the test case. But that was much more sort of straightforward, I guess, commissioned research.
PN1124
But it's fair to say that the cases you've been involved in have been - the evidence you've provided has been sought by the union movement?---Yes, directly or indirectly.
PN1125
At paragraph 4 you talk about a project funded by the Australian Research Council in relation to part-time wage work in Australia; you talk about a survey, a mailed out survey, in 2006 of retail workers in Victoria. You say that you received 493 responses; 177 full-time, 316 part-time, with two-thirds of the part-time being permanent part-time employees. With my limited understanding of mathematics, I would say there was about 105 casual employees who have responded?---Yes.
PN1126
You say that the survey provided you with "valuable insights into the behaviour and attitudes of a range of retail employees, mainly those employed as sales assistants in Victorian food retail". What's food retail?---Supermarkets - we had a bias towards supermarkets in the survey - and probably some specialty food retailing stores, maybe some fast food outlets as well. We did have some people from department stores. But what I'm trying to signal there - and I guess probably you're getting to as well - is that the survey is not representative; it incorporates a few biases. So although it it's valuable in sorting out issues within the sample, it's not necessarily to be taken as a representative sample of all Victorian retail employees.
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1127
Were you able to identify - or did you break down at all the numbers of workers working - were these casual workers working in particular businesses, types of retail business; ie, supermarket, food retail, and fast food retailing? Did you break those down?---We could. We could but we haven't, no.
PN1128
What was the content of the survey? What questions were asked?---It was primarily on working time schedules. It was on working time schedules to do with when people worked; how many hours they worked; what was their attitudes towards their work.
PN1129
Do you have a copy of the survey with you?---I don't, unfortunately, but I can easily supply it to you if you require it.
PN1130
How many questions were on it, for example?---It was a mail based survey so you can get away with more questions than in a telephone survey. I'm struggling to remember exactly. It's at least 50 or 60 questions.
PN1131
You say that there was a file with 20 indexed telephone interviews?---Yes.
PN1132
With the information you provided in your statement that refers back to that survey, are you relying on the written responses for the conclusions that you've drawn or the oral responses part of the interviews, or both, or is there particular weight given to one?---Can I quickly just jump ahead and have a look at the relevant paragraphs and the relevant tables. There's not all that much. I tried not to hammer that survey too much, but where I feel that the ABS data is lacking I've tried to draw a little bit and fairly carefully from that survey. I mean, certainly the tables are from the written questionnaire. I don't think we've used any material from the in-depth interviews. No, I don't think in the statement that I've used any - although of course in the published articles from - or the published article from this research, I've certainly used the in-depth interviews as well as the survey. But I think in the statement - unless you can correct me - I don't think we've used the in-depth interviews.
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1133
If I was to summarise an amount of your evidence, it is that there is a problem with the security of employment and the underemployment of casual employees in the retail industry. Would that be a fair comment as a summary of what your evidence suggests?---I don't think I've referred much to employment security. I've certainly referred to income and working time security. I don't think I've gone very much - - -
PN1134
I'm happy to leave to income security?---Okay.
PN1135
What is your understanding of the nature of casual employment?---In Australia or in the retail industry?
PN1136
In the retail industry?---Well, I've tried to signal at the start that of course once you start talking about casual employment, you're talking about different definitions, but roughly casual employment in Australia and in the retail industry is employment without most of the standard rights and benefits that have been built up for permanent employees. There's a right and entitlement to a wage with a casual loading; that's within the text of regulation and that's measured fairly well I think in the statistics, with a category of employees without paid leave entitlements, which the ABS has used more or less for 30 years as proxy for casual employment. Now, in practice of course you've got what we've got in the text or the regulation is - there's enormous diversity of casual employment in practice for things like whether it's full-time or part-time, whether it's on an irregular schedule or a regular schedule, whether it's long term or short term. Nevertheless, what they share is, in my opinion, a general lack of many of the rights and benefits that were built up for permanent employees, particularly around working times.
PN1137
But they are paid a loading to in part compensate for that?---Yes, in the text - yes, most regulatory instruments prescribe the loading but whether that's true in practice is of course a different kettle of fish.
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1138
Whether the paid loading in practice, is the question you say?---Yes.
PN1139
Is that based on your reliance on the ABS - if we look at paragraph 11 of your statement, where you say - are you at paragraph 11?---Yes.
PN1140
You say, fourth line down, "Indeed, in practice some casual employees have the rights and benefits that are prescribed in labour regulations; for example, most casuals are formally entitled to a casual loading but when asked if they received a casual loading as part of their pay, only 48.3 per cent said yes, 13.2 per cent said they did not know, and 38.5 per cent said no"?---Mm'hm.
PN1141
Did you go into the depth of that data, the ABS data?---No. But it's a common question. It's not the first time it's come up.
PN1142
Is it possible that a lot of casual employees aren't actually aware?---It's possible and that's why I - - -
PN1143
And would assume that they don't receive a loading?---It's possible that there's a degree of ignorance there; I think that's right, and that's why I said in the next sentence that part of the explanation is regulatory noncompliance but part of the explanation I think could be lack of information or lack of knowledge.
PN1144
You are suggesting that many casual employees want to work more hours. That's correct? Have you ever asked, as part of any of your surveys of casual employees if, in order to work those hours - and in particular if we're talking about Victoria - they would be prepared to take a 33 per cent pay-cut to do so?---No, I can't see why I'd ask them that. I can't see why I'd ask them that but tell me.
PN1145
The nature of casual employment is that it lacks a level of security and certainty. In order for employees to attain greater security and certainty as to rosters, guaranteed hours, et cetera, they would need to be part-time employees - or it would fit the definition of a part-time employee and, as a part-time employee, they would lose their casual loading. Is that not a relevant question to ask - - -?
---No.
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1146
- - - casual employees if, in order to gain this certainty in relation to their work, they would be prepared to lose the benefit that they get for not having that certainty?---I don't think the benefit is having short hours though. I think many casuals are on a regular roster. It might vary from week to week and they might see that they get, for example, 20 hours one week and 10 hours the next and they might sort of say, "Look, I'd like to get 20 hours every week," but they wouldn't see that necessarily as involving a conversion to part-time permanent status. They might look and see someone else who might have a regular roster of 20 hours and say, "Why can't I have 20 hours?"
PN1147
Would it surprise you to know that many union historically have run matters where a casual employee who's worked fairly consistent hours over a period of time has sought to be classified as a part-time employee and then therefore achieve the entitlement to things such as annual and sick leave?---No, there's been a long history. Indeed, this was one of the issues in the Clerks case in South Australia and in the Metals case in 2000. It was the idea of a conversion mechanism for casuals. So I'm sort of reasonably familiar with it but - so I'm not surprised.
PN1148
Would you accept there's a difficulty in employers offering regular set rosters to casual employees, in that it may not fit the true definition or the legal definition of a casual employee?---No, I think if you look round and you ask, you will find that a surprisingly large proportion of casual employees are on regular, predictable rosters and are treated - that's not all of them of course, and there are a large number that are on a short-term irregular rosters. But a surprisingly large number are on what are called the permanent casuals. So in that sense employers have historically, in many industries, been able to offer regular rosters and predictable rosters to at least a large proportion of casual employees and haven't found necessarily and difficulties there.
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1149
So you would agree that there is an ability to have some regularity about some casual employees. You also agree that there is a requirement to have flexibility around other casual employees?---That's pretty much the decision of the employer, really. That's how these things get determined and how rosters are set and what form of employment is chosen, especially in the case of casuals who sort of take what you offer really and then hope maybe to negotiate with a friendly employer better conditions maybe over the short term or the long term.
PN1150
Are you familiar with the circumstances that led to the making of this application, the situation of a hardware store at Terang?---I followed fairly closely the press reports and tried to work out from that what's going on.
PN1151
Are you aware that some secondary school students that worked at the Terang hardware store are no longer able to work there because of the minimum engagement under the award?---Well, I think that's totally wrong. I mean, if I read the press reports clearly, a number of school students lost after-hours shifts on the weekdays but they preserved weekend shifts. There were a number of reports which were clearly stating in the case of the two main school children who were quoted in the papers that they still had weekend shifts. So they certainly didn't lose their job with Terang and District Co-Op.
PN1152
Would it be fair to say they're now suffering from underemployment because they're not allowed to work after school?---Yes.
PN1153
You would see that as a problem?---I do, yes, and they should - yes.
PN1154
You think there should be consideration for their circumstance?---Yes, I think we should look at what are the barriers to them getting more hours. If we regard that as a major problem - the problem at the Terang and District Co-Op store - - -
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1155
But if the only barrier to them getting more hours is the new engagement in the award, would that be needed?---Well, that's clearly not the case. It's the case of the opening and closing hours of the Terang and District Co-op store that's, in the case of after school work, squeezed out - confined those particular employees to one and a half hour shifts.
PN1156
If it is unviable for that business to operate beyond its current hours because of the status of trade, would you suggest that they should be required to open longer to meet the needs of these young people? Is that your solution to it?---I'm suggesting that we look closely at whether it is true that they're unviable and whether that's a general problem in the retail industry, not being able to open past 5.30 in the afternoon.
PN1157
Assuming that's the case, is a reasonable solution to allow these people to work the number of hours that they would like to work?---No, because that would do a lot of damage to the vast majority of 370-something thousand casual part-time employees in the retail industry who suffer probably with underemployment, that are probably even more severe than in the case of these school people.
PN1158
So your issue is that if we allow for these people and allow it for everyone, that would be a problem because to satisfy the few, the many would suffer?---Yes. Can I just point out that I'm not quite sure what the Terang case - how that's relevant because these were kids who were on one and half hour shifts and apparently there's been no change at all in the constraints in terms of the closing hours of the store, the hardware component of the co-op. So any change or variation here would not affect their employment because it would be only to do with reducing the minimum engagement from three hours to two hours. They would still not be, as I understand it, capable of taking up an offer of one and a half hour shifts.
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1159
But if the application was for a secondary school student to be able to work an hour and a half after school, between certain hours, would that be a reasonable solution?---No.
PN1160
Why?---Well, because I think that sort of rule would do damage to the vast majority of - - -
PN1161
How?---Well, there would be a temptation for employers who tend to use part-time schedules to fill gaps, to employ people who do not want one and a half hour shifts. We've already I think in retail got a problem with people who feel that they're massively underemployed, who are discontented with three-hour minimums and who would like more hours and to allow employers to employ them on one and a half hour shifts I think would be an enormous disadvantage for those people.
PN1162
Are you aware there is not a single witness in this matter who is a casual employee, who is prepared to say that they are dissatisfied with a three-hour minimum or be dissatisfied with a two-hour minimum?---I'm surprised, yes.
PN1163
You say at paragraph 5 of your statement, "We stress the importance of working times (indistinct) because of the fact that many employees are working reduced hours in order to respond to rigidities in other aspects of their life. They are therefore particularly dependent on aspects such as regularity and predicability in the number and timing of their work schedules," yet you don't think that there should be some consideration given for people who have limited availability because of their schooling schedules?---No. I mean, when you're considering - as I'm sure you're all well aware - when you're considering regulations, you're trying to weigh up the costs and benefits and you certainly wouldn't want to have a regulatory solution which appeared to offer a benefit for a tiny proportion of employees at the expense of the vast majority of employees.
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1164
So who meets this vast majority that's going to be disadvantaged if secondary school students are able to work shorter shifts after school?---As I understand the application, it's to reduce the minimum daily engagement for all casual employees, not for school children. Is that right?
PN1165
Let's set that aside though because there is an application before the tribunal to vary the minimum shift for a secondary school statement?---Okay.
PN1166
So if we concentrate on that particular area. If we set aside the earlier application and concentrate on that particular area. Would you see that as an appropriate outcome?---Well, I haven't done the research on that but, no, I would still be a little bit suspicious of it. I would have to see what school children actually want and whether or not they would be satisfied. I mean, there are many school children who are doing after-hour school shifts of three hours and the thought that their three-hour after school shift might be reduced to one and half hours might cause them difficulties as well. I would want to look very closely at the situation of school children. Even within that category, that limited category of school children doing after hours shifts, I'm not convinced that there's a major problem of school children not being able to work one and a half hour shifts, that wouldn't be - - -
PN1167
Where is that based? How do you base that?---Well, you can count up the number of school children doing after-hours shifts or you can make a sort of calculation on the basis of how many school children we've got in the retail industry and then we could wonder what their shifts are, and the number of school children who would be working in stores which close at 5.30 must be, I would have thought, tiny. Even in Victoria, I would have thought it would tiny. I would have thought the vast majority of school children, even putting aside their weekend shifts - and we know that school kids tend to work weekends and after-hours - but even putting aside their weekend shifts, the number that are doing one and a half hour or two-hour after school shifts, I would really want to look at how many that was. I can't imagine it's a massive number at the moment, given what we know about store opening hours, where most school children are employed, et cetera, et cetera. I mean, I've tried to do a little bit of that kind of calculation later in my statement of course, but not so much to do with that pool of school children but to do with comparing the number of school children on two-hour shifts that can't be reorganised, compared to the 370-something thousand casuals throughout the land in retail.
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1168
You keep referring to this 370,000 casuals but I've been asking you specifically about secondary school students and you would accept that that is a significantly smaller number of secondary school students?---Amongst that - - -
PN1169
As their proportion of the overall 370,000 that you're talking about?---Well, we can make a quick estimate, even without referring to my - 372,000, the proportion of them that would be young workers and then we could try and do an estimate, the number of those young workers who would be school children. I don't know, just off the top of my head, it might still be 70, 80 thousand, would it, or perhaps even more.
PN1170
For secondary school students?---May I quickly read through this. I've got a feeling I've made this calculation before. Whether or not it made it into the statement, I don't know. We know that out of the 1.2 million retail workers, about 200,000 are 15 to 19-year-olds. So we just then have to make a calculation of how many of those 15 to 19-year-olds would be full-time school children. It's got to be at least half, surely, I would have thought - 100,000.
PN1171
We can't make that assumption, can we? You wouldn't - - -?---Well, we easily could. We could go to the data. I just haven't happened to do it in that, but it's got to be around 100,000, I would have thought. The number who are on two-hour shifts in regional Victoria compared to that - we would want to know what their needs and interests are, those 100,000 school children, even if we're talking just about school children, rather than about casuals in general.
PN1172
Are you aware of the evidence before this tribunal of both employers and employees who are having difficulties with the three-hour minimum shift, who would like to work short shifts - or who have employees who would like to work shorter shifts?---No, I'm not familiar with that. I've seen some of the statements but I didn't see much that seemed to me - - -
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1173
There is evidence before the tribunal - and I will ask you to assume this - that in the town of (indistinct) there's a retail business there who is no longer able to offer shifts to its young employees after school. There's a retailer in Lockington who is no longer able to offer shifts to its school students after school. That's a significant issue?---No, I don't think so. I thought - - -
PN1174
MR FRIEND: That's not quite what the evidence - just a moment, Dr Campbell. It's not quite what the evidence was, your Honour. I think my learned friend should put it fairly in cross-examination because both of those businesses were continuing to offer some shifts to students after school. In Lockington, it was a 15-minute difference.
PN1175
MR TINDLEY: My understanding of the evidence in Lockington, your Honour, is that there was only one night where there was an employee on extended hours and that Monday to Thursday there was no ability to offer those hours. If I'm wrong, I will withdraw the question.
PN1176
THE VICE PRESIDENT: Yes, if you could ask the question which perhaps safely reflects the generality of the evidence.
PN1177
MR TINDLEY: I will withdraw that.
PN1178
If I go back to paragraph 11 of your statement, you say that, "Again, indeed in practice some casual employees lacked the rights and benefits that are prescribed in labour regulations." You gave, for example, casual loadings?---Mm'hm.
PN1179
Is there anything else?---I imagine if we saw that as a symptom of regulatory noncompliance, then we would imagine there might be noncompliance as well in - - -
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1180
Are you speculating?---Yes. I'm just trying to think whether there's - I suppose we could ask the Fair Work Ombudsman, who suggested that there are a number of complaints in retail, what the nature of those complaints were. There's a general category of course of underpayments, which might include the underpayment of the casual loading but might include other elements as well.
PN1181
You've put in your statement that the impact to some casual employees who lacked the rights and benefits prescribed - give an example, and that is the only example that you are able to give?---Yes, I didn't think that it was a major point in my expert statement so I've just signalled that there's always a gap between the regulation and the practice, which is the point I wanted to make about casual employment in general, to show that I'm quite aware of the diversity of casual employment and practice and to give this as another aspect of that kind of gap between regulation and practice that I think everyone who does research in retail is well aware of.
PN1182
At paragraph 46 of your statement, you refer to the Fair Work Ombudsman, Nicholas Wilson, and that he has suggested that the retail sector has generated more complaints than any other industry?---Mm'hm.
PN1183
Why did you include that in your statement?---It's because I think that there's always a danger when you're doing a statement like this that you're at the level of the general statistics or at the level of the text of the regulation and it's important to be reminded in various ways how the practice might vary from either of those two other respects.
PN1184
Are you inserting it to suggest that there's high levels of noncompliance in the retail industry?---I don't think that would be a fair summary of what the Fair Work Ombudsman was suggesting, was he? He was suggesting that there's more complaints in that industry than any other industry, but whether or not that means there's a high level of noncompliance, I think we would have to do a bit more research.
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1185
Given that you would accept that there may be factors at play here that may lead to that high level of complaint, why haven't you referred to that in your statement?---Sorry?
PN1186
Why haven't you referred to that in your statement?---What's that?
PN1187
These other factors that might be at play. Why haven't you qualified your reliance on that?---What other factors might you suggest?
PN1188
With respect, you suggested that there might be other explanations for it. You didn't give any - - -?---No, I was only suggesting - wasn't that the point about the data on casual loadings, that when you - - -
PN1189
The employees are asked - - -?---This is a totally different type of data set. I don't know quite how we - - -
PN1190
I will go through this again for you. You've provided in your statement - you've referred to Nicholas Wilson suggesting that "this sector has generated more complaints than any other industry". My question was, why did you include that?---Because I think it's a good reminder and because it's also probably relevant to some of the examples, including that example of the Terang District and Co-Op hardware store. I mean, this is a newspaper report which is reporting on the Terang District and Co-Op hardware case. I mean, this - - -
PN1191
You haven't referred to any of these other newspaper reports, yet you've decided that - the reference you include in your statement is a statement from Nicholas Wilson, the Fair Work Ombudsman?---I think I have. I think I've referred to some of the other - yes, anyway.
PN1192
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
It's fair to suggest you're trying to cast aspersions about the retail industry and its level of compliance, isn't it?---Are you disagreeing with that statement? I'm certainly not trying to cast dispersions about it.
PN1193
Do you know what the largest employing industry in Australia is?---Well, according to the most recent data, I think it's Accommodation Retail and Hospitality, isn't it?
PN1194
Sorry?---I think it's accommodation and - I can't remember what it's proper title is in the new industry classification but - - -
PN1195
Do you know how many people are employed in the retail industry?---Yes, it's cited in my statement, as roughly 1.2 million people.
PN1196
It would be fair to suggest that an industry of that size would generate a significant number of complaints?---Yes. Whether it's the largest industry - it's comparable with a number of industries so you could compare it with other similar industry divisions.
PN1197
Well, how many people would you (indistinct)?---Sorry? I think that could - have I cited that in my that - accommodation. I mean, I haven't got this sort of data there, I'm sorry. Of course up until relatively recently, manufacturing employed more people than retail.
PN1198
But not now?---Not now, no.
PN1199
So you're not - - -?---Sorry, I'm not casting dispersions at all. All I'm doing is citing what the Fair Work Ombudsman said and it's relevant to this case because it's relevant to the question of minimum daily engagements.
PN1200
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
How is it relevant to the question of minimum daily - - -?---Because a lot of the heat in this case seemed to arise out of the small number of examples in country Victoria with school children and this apparently is a newspaper report that's relevant to the main example that was used in - and which, as I take it, has come into this case as well with a statement from one of the school children affected.
PN1201
Nicholas Wilson is not talking about minimum engagement, is he?---I don't know; you would have to ask him. I would have thought he is.
PN1202
You say at paragraph 57 of your statement - and this is where you're capturing the number of people affected or number of school students affected by this problem of reduced minimum engagement - you say - I will commence with this, "It is difficult to estimate how many school children will be employed as casuals on two-hour shifts in retail outlets in regional Victoria but it is unlikely to be many"?---Where are we in the paragraph?
PN1203
This is the one, two, three - fifth line down?---Mm'hm.
PN1204
You say that, "As (indistinct) recent figures suggest 73,000 employed persons in the retail trade division in non-metropolitan Victoria. Keep in mind that many will be in major regional centres where the pattern of shop buyers resembles metropolitan Melbourne"?---Mm'hm.
PN1205
What's the pattern of shop buyers in metropolitan Melbourne?---Well, it depends on the type or the branch of retail, but it's remarkably liberalised and has ample opportunities, particularly in certain branches of retailing, to work almost 24-hour operations, and certainly from early in the morning until late in the evening.
PN1206
You would have taken the opportunity to walk through High Point Shopping Centre, for example, at 5.45 pm on a Tuesday afternoon. How many shops do you think would be open?---I don't know.
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1207
You have never done that?---No, I've been there on the weekend but not on the - and it's pretty busy on the weekend.
PN1208
Would it surprise you to know that the majority of stores are closed at 5.30?
PN1209
MR FRIEND: There's no evidence of that, apart from anything else, your Honour. I'm not sure if it's true or not but there's no evidence; it's just being put from the bar table.
PN1210
MR TINDLEY: I think that's a fair question to ask, your Honour.
PN1211
THE VICE PRESIDENT: I will allow the question?---Would I be surprised if that was the case? It's all to do I guess with customer flows and weekends are probably the busy point at High Point. I suppose it depends a bit on the High Point rules about closing, and I know often the operators of major malls like to have the shops open so, yes, I think I might be surprised because I would have thought there would be rules in place to make them open, even if it wasn't economical because of the lack of customer flows. But I presume if they are closed, it's probably a symptom of the fact that there are not enough customers in those particular shops.
PN1212
MR TINDLEY: Where do you work from?---RMIT University, in the centre of the city.
PN1213
In the centre of the city?---Yes.
PN1214
Do you have cause to wander home from RMIT in the centre of the city, passing any shops at any time?---Yes, I do. It depends what I'm doing.
PN1215
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
Have you ever noticed if they were open or closed? I'm assuming you'd finish before 7 o'clock at night and - - -?---Yes, I try to. I try to, yes.
PN1216
Have you ever noticed whether the shops were open or closed?---I cycle, so I try and stay away from the streets and go through the parks, but yes, there's some shops open and some are closed.
PN1217
Which - - -?---If you look over the years, there seem to be more and more open. I mean, I've got a long history of going home after work. I'm getting towards the end of my research life but I've certainly noticed more and more shops open.
PN1218
How do you establish that the shopping centre hours in major regional areas resemble metropolitan Melbourne?---As part of this study that we're doing at the moment on work, life, balance in regional Victoria, we've done a number of visits. We've looked at the data on employment distribution and regional labour markets and we've done a number of kind of industry visits to parts of regional Victoria. Bendigo, for example, is one of our case study areas.
PN1219
What did you see in Bendigo?---To me, at least in the retail sector, and we were looking predominantly at banking, rather than retail, it looked to me pretty much like what you'd expect in a kind of major suburb of Melbourne.
PN1220
So you were - - -?---So supermarkets, for example, were open at very late hours.
PN1221
Set aside supermarkets?---Yes, there seemed to be late night shopping at some of the department stores. Some of the specialty shops, the sort of sports shops, seemed to have late night shopping on some of the days. I mean, it's probably a bit quieter but it didn't seem to me a major difference. The major difference that you notice is between the regional centres and the much smaller country towns, in my opinion. That's why I'm signalling here that I think if you're looking at non-metropolitan Victoria, you've got to make a distinction between the regional centres - Ballarat, Bendigo, Geelong - and smaller areas.
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1222
Really, you haven't studied this, have you? You've just said that was in relation to banks, your project in relation to regional areas?---Yes, I've been there, I've seen them, just as I cycle home - - -
PN1223
But there's no real basis for it?---No real basis for what?
PN1224
For your suggestion that major regional centres have the same trading hours as metropolitan Melbourne?---That would be my judgment, based on what I know about retail opening hours and what I've seen in the context of research visits to regional Victoria. So it's not necessarily backed up by ABS evidence and it's hard to know where you'd get the evidence but it's not a totally uninformed comment.
PN1225
At paragraph 60 of your statement you say, fourth line down, "There is powerful evidence that a large proportion of retail employees on part-time schedules, mainly casuals, want to work more hours per day." Where is this powerful evidence?---The powerful evidence is the very strong evidence that we've got on underemployment amongst part-time workers in retail.
PN1226
Where's that from?---From the ABS and confirmed - but it didn't need to be confirmed. There's ABS - it's very - as indeed I've got in table 6 for the - so that's the start of the powerful evidence. We know that we've got a problem with underemployment in Australia. We know that it's stronger in retail than in other branches. We know from ABS evidence that underemployment is concentrated amongst casual part-timers. We know it's amongst those with very few schedules. We know from the pattern of schedules and rosters in retail that having too few hours is a problem not just of weekly hours but daily hours as well. So it all adds up to, I would have thought, very strong evidence that a large proportion - and I think - unfortunately I didn't draw out the numbers but we're talking, for example, I think of somewhere around almost one in three retail employee on a part-time schedule would feel that they're underemployed; they want more hours. One in three, I think that is a significant number of employees when we're talking about 400,000 employees. So I think that's pretty powerful evidence.
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1227
At paragraph 57 of your statement, if we go to the very bottom of that paragraph. You say - and it's the fifth or sixth line from the bottom, depending if you include "See table 1" as an additional line. "Even if some are currently employed on two-hour shifts, it is likely that many of the shifts in question could be easily reorganised to comply with the minimum provision of three-hourly." That's not the case at Terang, is it?---They can't even reorganise their shifts apparently to comply with the old minimum of two hours.
PN1228
That wasn't the question. How would you suggest they would easily reassess or reorganise to comply with three-hourly?---They would probably fit, as I'm suggesting in that entire paragraph, to that very small minority of cases - when I say that, "it is likely that many of the shifts in question could be easily reorganised," it's possible that they fall in - and I'd want to look at it more closely - they fall into that small minority outside, where the shifts in question could not be easily reorganised.
PN1229
For an employer operating in Victoria who has always engaged a casual employee to work two hours in the middle of the day at peak trading time, how would that be easily reorganised?---Well, how many casuals are they employing at that period, if they are - if you - - -
PN1230
Does it matter? One, five, 10?---It depends how you reorganise it. If you've got three employees on two-hour shifts, you just simply reorganise it into two employees on three-hour shifts.
PN1231
And sack one?---No, you've got a week's roster to work with. You can employ people on three-hour shifts on different days of the week.
PN1232
Aren't they restricted by their availability because they've got other - - -?---I doubt it. I mean, who's only available for two-hour shifts at lunchtime. I find that extraordinary. There's a large proportion of women, including those that we interviewed for our study, who wanted school children hours - - -
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
PN1233
I'm sorry to interrupt. Can I get you to clarify the women that you interviewed for your study?---Sorry, in the Victorian retail study with the 500 or so responses, a proportion of those responses were from women with dependent children, including women with children of school age, and we - particularly because my colleague was particularly interested in it - analysed the result for that small group and found that they were particularly interested, as you can imagine, with school organised hours. They were interested in 10.00 to 3.00, was the hours that they were interested in, and they were in fact the group in retail that I think had the most problems because they were offered these short two-hour shifts. They wanted longer daily shifts. They wanted, if not 10.00 to 3.00, then certainly 11.00 to 2.00 rather than 12.00 to 2.00 or - - -
PN1234
So is it your position that this is all the responsibility of the employer, they've just got to find ways to meet the needs of employees and that mother's with care responsibilities should be employed for whatever hours they want and employers should just organise around it?---No.
PN1235
Is that the ideal outcome for you?---No, I'm saying that whole paragraph is saying that there is a very small problem that is at the base of, as I say, this case of school children in regional Victoria working two-hour shifts at the moment and subject now to a minimum daily engagement time of three hours. I'm saying that - and whose shifts can't be reorganised - I'm saying that is a very, very tiny, tiny problem compared to the damage of reducing the minimum daily engagement from three to two throughout the country.
PN1236
Your perception of that as a tiny problem is based on your assumptions about the way retailers trade?---It's based, as that paragraph suggests, on an estimate of the number of people affected by this.
PN1237
**** IAIN GRAEME CAMPBELL XXN MR TINDLEY
With respect, you base that number of people affected on non-metropolitan, non-major regional employees?---Yes, that's the start of the calculation and I go through the other parts of the calculation at another paragraph.
PN1238
But if in the event that that is incorrect and that the metropolitan Melbourne large number of retailers cease trading at 5.30, then your identification of that as a small problem may not be correct?---It would be a slightly larger problem but whether or not it's still a - - -
PN1239
Thank you. I have nothing further.
PN1240
THE VICE PRESIDENT: Dr Campbell, does any of your survey material reveal any responses in the newsagency sector, perhaps early morning deliveries by the school age children?---I'm sorry, no. In fact, I don't think we covered that sector at all as part of our survey.
<CROSS-EXAMINATION BY MR ISSA [10.48AM]
MR ISSA: Dr Campbell, under examination-in-chief from Mr Friend, you referred to the OECD report. What year was published?---The Jobs for Youth?
PN1242
Yes?---2009.
PN1243
Does that take into account the implementation of the Fair Work Act?---Yes.
PN1244
It does?---Well, not the implementation of course but the - - -
PN1245
Does it take into account the modern awards?---Yes.
PN1246
At paragraph 5 of your statement you stated that, "Many employees are working reduced hours in order to respond to rigidities and other aspects of their life"?
---Yes.
**** IAIN GRAEME CAMPBELL XXN MR ISSA
PN1247
What are those rigidities?---Well, in particular caring responsibilities. So caring for children; caring for elderly, sick or disabled relatives. That's a particular interest of ours. Other rigidities would be things like study schedules for students; perhaps may be a commitment to sport or - you know, we're getting off into the perhaps less socially - you know, sport or hobbies or might feel that there's a rigidity in that part of their lives.
PN1248
At paragraph 11 of your statement you rely on a UK report which defines a vulnerable employee as, "Some working in an environment where the risk of being denied employment rights is high and who does not have the capacity or means to protect themselves from that abuse." Are you saying that government bodies such as the Fair Work Ombudsman do not have the capacity to protect employees?---No, but I'd say that they have been set up because of that kind of sense that there are vulnerable employees there and - - -
PN1249
But then they have that protection available to them from, for example, the Fair Work Ombudsman. The Fair Work Ombudsman does have the capacity to - - -?
---If they're successful in their investigations, yes.
PN1250
At paragraph 13 of your statement you state that some casuals would be content with the small number of hours. Is that correct?---Yes.
PN1251
You then go on to say at paragraph 14 that, "Factors seem to lessen discontent and underpin feelings of relative satisfaction of employment include, among other things, when the employees felt that they had a say over their working time, with a reciprocal negotiating relationship with their employer"?---Yes, I'm summarising of course in that second paragraph someone else's research, but I've summarised it because it strikes me as being plausible and good.
PN1252
**** IAIN GRAEME CAMPBELL XXN MR ISSA
You have relied on that research?---Sorry?
PN1253
You have - - -?---Yes, it strikes me as a good point.
PN1254
So would it be safe to assume that if a mutually arranged time between an employee and an employer of a two-hour engagement was achieved, that it would in fact lessen discontent and underpin feelings of relative satisfaction for that particular situation?---Possibly, yes.
PN1255
At paragraph 19 of your statement you state that, "Casual employees are at heightened risk of being called in for six, seven or eight hours and then being sent home if circumstances change"?---Yes, perhaps that wasn't clear when I reread that yesterday. I mean that there's a heightened risk of being called in with a promise of six or seven or eight hours work and then being sent home. It's not so much that they were called in and then made to work six or seven, eight hours and being sent home but that they have been called in with the promise of, say, a full day's work or an extended shift and then sent home after the minimum period has elapsed.
PN1256
Are you aware of clause 27.14(AF) of the General Retail Award?---I no doubt have read it but, no, I'm not at the moment.
PN1257
I will just read you it out, if that's okay?---Yes. Should I take notes or - - -
PN1258
It's entirely up to you. "An employee's roster may not be changed with the intent of avoiding payment of penalties, loadings or other benefits applicable. Should such circumstances arise, the employee will be entitled to such a penalty of loading or benefit as if the roster had not been changed"?---And that applies to all employees, casual and permanent?
PN1259
**** IAIN GRAEME CAMPBELL XXN MR ISSA
Yes?---I think that's a good provision.
PN1260
At paragraph 25 of your statement you state, "Data on time and cost of travel for employees are scattered." That's your own Vic survey, found that, "For metropolitan employees in Melbourne, the median time for commuting to and from work was 50 minutes, while non-metropolitan employees in regional Victoria, the median time was 30 minutes"?---Yes.
PN1261
Of those employees that you questioned in this survey, how many of those are retail casual employees?---We've got 3000 altogether in the survey and I think I said in the statement that we've got 222 retail employees and I would imagine - - -
PN1262
Retail casual?---Sorry?
PN1263
Retail casual employees - - -?---I would imagine it would be - - -
PN1264
- - - or 222 retail?---No, 222 retail and if you apply the - you know, it would be very easy for me to go and check but let's just assume that it's on the basis of the share in retail in Victoria, then it's got to be something around 100 or - - -
PN1265
So 100 out of 3000?---Yes.
PN1266
Would be casual retail?---Yes.
PN1267
At paragraph 64 of your statement you state - - -?---Could I just ask, you're not assuming that the median time for commuting is just for retail casuals, are you? That was for all 3000 employees.
PN1268
Yes, I understand that. Thank you. You state at paragraph 64 that, "Employers must reorganise to comply with the three-hour minimum but this is likely to be only a slight reorganisation" - fourth sentence?---Yes.
**** IAIN GRAEME CAMPBELL XXN MR ISSA
PN1269
Have you ever owned a retail store?---No, although I've done - - -
PN1270
Have you ever employed people in a retail store?---No.
PN1271
So you have no practical, real world experience as to how a store is run and operated?---I've got a little bit of an insight in the sense that we did interviews with store managers as part of our retail survey and they were very explicit about how bloody hard it was to do rosters and that you've got your head office, you've got the workers, you've got all sorts of - - -
PN1272
But you yourself have no real world, practical experience as to how a store runs and the day-to-day balancing act that goes on?---No.
PN1273
Thank you very much. No further questions, your Honour.
<CROSS-EXAMINATION BY MR HALLS [10.56AM]
MR HALLS: Dr Campbell, if I could just refer you to paragraph 13 of your statement. About halfway through that paragraph you make a reference to a situation where, "Of course some casuals would be content with a small number of hours and some may be discontent." If that is the situation as you put it, why should there be any flexibility made available for those employees who are prepared to accept a lesser number of hours?---I'm sorry, could you repeat the question.
PN1275
If that is the case as you put it, in accordance with your statement, why shouldn't there be flexibility under modern award in terms to allow for those employees to work a lesser number of hours than a three-hour minimum engagement?
---Because of the damage it would do to the large number of employees who want more hours, more daily hours.
**** IAIN GRAEME CAMPBELL XXN MR HALLS
PN1276
So your position - - -?---Can I just point out that this - - -
PN1277
So your position is that there shouldn't be flexibility for employees to work a lesser number of hours. That is your position?---Than the minimum daily engagement?
PN1278
That's correct?---Yes.
PN1279
At paragraph 17 - or I should say section 3 in light of your statement. Yours would be the (indistinct) paragraphs through 17 through to 19 and beyond, you're referring to the lack of protections that are available for casual employees. What if I put to you that if we consider the Industrial Relations framework that exists in this country at present under the Fair Work Act, would you not agree that perhaps there are more protections available generally for casuals than there ever has been in the past?---That's kind of interesting.
PN1280
I mean, we have eligibility now for things like parental leave; we have eligibility for things like unfair dismissal protection?---Although the unpaid parental leave was probably always there.
PN1281
And casuals get paid penalty rates under awards as well?---Yes, but they were always there probably, weren't they?
PN1282
Not all of those protections have always existed. So my question is, would you agree that there are now more protections for casual employees at this time than perhaps there has ever been in the past?---I'm not sure. I'm not sure. I would have to look at it a bit carefully because of course I think - - -
PN1283
You're not sure?---No.
**** IAIN GRAEME CAMPBELL XXN MR HALLS
PN1284
If I could take you through to paragraph 26 of your statement and it's the very last sentence in that paragraph. The point that you're making seems to be a consistent point that's been made by mostly if not all witnesses that have been introduced by the applicant in relation to this matter. Now, whether it is particularly relevant, there seems to be no evidence at all in relation to that. It is purely speculation that we are going to have a situation where casual employees are going to have a direct impact on the engagement of part-time employees and that that in fact might affect the number of hours that are available to part-time employees. Would you agree with that?---Would I agree with - sorry?
PN1285
That it's speculation and that there is no evidence?---No, I think it's based on - - -
PN1286
Is there any evidence in relation to that?---I think, yes, I did look at - I haven't made it a strong point in my statement because I - - -
PN1287
But is there any evidence of that?
PN1288
MR FRIEND: The witness is trying to answer the questions, your Honour, and he gets cut off every time, a few words into the answer.
PN1289
MR HALLS: Your Honour, with respect, I believe that the witness is not actually answering the question that is being put?---No, I think there is evidence, yes, but whether it's the sort of robust evidence which would convince a commission, I'm not sure. You're basing your assumptions - and I'm presuming - this is without having heard the evidence beforehand - on the experience of the way in which store managers put together rosters and the way in which they choose particular types of employees. I think we've got a large amount of evidence about management practices in the retail industry and the way in which part-time schedules have been increasingly used, not just in Australia but elsewhere, as ways of filling gaps as opening hours have been extended and liberalised. There's always a problem of filling gaps in rosters and there's a long experience I think of knowledge of retail management practices. Of course we know, as you would probably agreement yourself, that there's enormous cost pressures in retail, and store managers - including those we spoke to - are always saying that, "We've got weigh up what's the most cost-effective roster we can put together? Who can we employ as a casual or is it a part-time, is it junior, is it an adult, when and for how long?"
**** IAIN GRAEME CAMPBELL XXN MR HALLS
PN1290
And that is an employer's right?---Well, in limits.
PN1291
In light of the bargaining award?---Within limits of course; as, for example, the limits of the minimum daily engagement.
PN1292
I will put this question to you: I also understand that you invoke lots of experience in researching some matters that may be relevant as regard this particular issue, do you have an understanding of some of the factors that surround the decline in union membership over the years?---Yes, I think I probably do. It's an area that I do a little bit of research in.
PN1293
Do you agree that casualisation is one of those factors?---No, not really. I think it's more complex than that. I think that's one background factor.
PN1294
It's not one of those factors, casualisation? Yes or No?---Yes, one background factor. I'm happy to agree with that, yes.
PN1295
MR FRIEND: Your Honour, the witness is answering the question, he gets interrupted. It's a nuanced answer of an expert witness. You can't say yes or no to an expert like that, your Honour.
PN1296
MR HALLS: Your Honour, I have asked the witness a question and he's indicated that he is aware of some of the factors that surround - - -
PN1297
THE VICE PRESIDENT: I think if you ask a clear question and wait for the answer. I think you're supplementing your questions on a regular basis which is difficult for the witness.
PN1298
MR HALLS: I will exercise restraint, your Honour (indistinct)?---Could you repeat it, please.
**** IAIN GRAEME CAMPBELL XXN MR HALLS
PN1299
Do you believe that casualisation is one of the factors that has contributed to the decline in union membership over the years?---Yes.
PN1300
In relation to the issue of union membership, do you have an opinion on whether unions have a preference towards particular types of employees; for example, full-time and part-time employees over casual employees?---Yes, I do have an opinion.
PN1301
What would that be?---I think unions have traditionally organised around a model of the full-time permanent worker and that's traditionally - you know, that's been part of their identity, part of their organising tactics, part of the way they mobilise, part of the way they see themselves, and it's been a long struggle I think to - with any unions, to try and incorporate a more enriched notion of what the unions represent.
PN1302
Would it be safe to say that full-time and part-time employees are a more attractive option to unions as far as membership dollars are concerned?---This is exactly - I've just published a - well, it's coming out as a chapter in a book on exactly this sort of question and it depends very much, in my research, on the union in particular; how they have responded to what I think is the general challenge of more and more part-time schedules either in the form of permanents or casual, and indeed self-employment contractors is - - -
PN1303
I suppose the point that I'm getting at here, Dr Campbell, is that I actually have a personal doubt that the concern of the unions in relation to matter is for the concern of the welfare of their employees; that it is more a concern in relation to membership that may be generated. As we see more prevalence of casual employees moving forward, that is going to have a negative impact on new membership. Would that be fair to say?---I've seen no evidence of that at all, including in my evidence in preparing witness statements and doing interviews with union officials as well.
**** IAIN GRAEME CAMPBELL XXN MR HALLS
PN1304
If I could take you to paragraph 57. I know that the items I want to go to have actually been settled so we'll just (indistinct) and again if I can just take you down to the bottom section where you're making reference to the (indistinct) of those who suffer the hypothetical negative impacts would be substantially less than (indistinct)?---Yes, I'm at that sentence.
PN1305
Once again I put the question: why should there be flexibility permitted in relation to those who might actually suffer a negative impact? I mean, why would there be, in opposition, perhaps to even having - let's assume that the three hours stays in the award, okay. Let's just assume that's the case. Why then shouldn't there be flexibility, in appropriate circumstances, to have a lesser minimum payment for employees perhaps in that situation that you're referring to there, and also those who want a lesser number of hours?---I'm not necessarily against flexibility.
PN1306
So you think there should be?---I just think it would have to be very, very carefully designed. The import point here is that you don't do damage to those - with trying to do benefit for a small number, you don't do damage to a much larger number. So I think - and you really, really need to be very, very careful I think, as indeed you have to be with all flexibility arrangements.
PN1307
Is there a law, to your knowledge, that requires there to be more part-time employees than casual employees engaged by an employer?---A law in legislation or - - -
PN1308
MR FRIEND: The witness can't answer that, your Honour?---In Australia?
PN1309
MR HALLS: I will rephrase the question, your Honour.
PN1310
**** IAIN GRAEME CAMPBELL XXN MR HALLS
To your knowledge, are there any restrictions placed on retailers in terms of the number of casuals that they can engage in proportion to full-time, part-time employees?---Nowadays - I'm sure there probably has been in the past.
PN1311
In the retail industry, I should say?---Yes, I'm not familiar with any.
PN1312
There isn't?---No.
PN1313
I will take you to paragraph 62 of your statement. I understand that Mr Tindley made that point with you. You talk about the precise impact in the practice of reduction in minimum daily engagement of casuals from three hours to two hours depends in main on the responsibility of employers. Are you familiar with the survey that's been conducted by the ARA in relation to this matter?---No.
PN1314
The ARA has put out a survey to its membership which asks various questions regarding the effects of the three-hour minimum payment or engagement in relation to the award and the survey was actually sent to approximately 3000 members and there was what we would consider a satisfactory response (indistinct) 10 per cent. Now, the response to question, "What does the three-hour shift minimum per casual worker mean to your business?" the overwhelming response has been, "I will stop employing students to work after school." We then actually had a second question as well, "Why don't you employ school students?" the overwhelming response, 61.7 per cent, "I can't give school students the minimum shifts required under the modern award." The previous question that I mentioned had 38.6 per cent, so nearly 40 per cent. They're fairly substantial figures, aren't they?---Yes, but I don't treat those sort of surveys very seriously.
PN1315
Why not?---Well, because they're surveys of employers in the context of a case. When was this survey conducted?
PN1316
**** IAIN GRAEME CAMPBELL XXN MR HALLS
It was conducted in April this year?---In the context of preparation for case before the commission - - -
PN1317
So you don't feel it's appropriate that organisations should ask - - -?---Often the questions are biased and then - - -
PN1318
Can I just ask you this question, if I may. You don't think it's appropriate that an organisation should survey its members regarding matters that could affect their interests moving forward, and that those responses should be taken seriously?---I think, yes, they should survey and we should look very carefully at the responses. I'm saying that without knowing the survey and looking - if I was looking - I would look very, very carefully at that survey because experience in the past suggests that - it's not just of course employers but if a union does a survey as well in the context of an industrial case, you would want to look very carefully at the questions and you would have to put a question mark over the responses of those who know there is a case coming up and who are doing their best to try and support their employer association or their union in the conduct of that case. I must admit, I'm surprised by your - I missed your first question but your second question, "Why don't you employ school children?" is that on the assumption that they don't employ school children?
PN1319
No, they're given the option if they want to specify that they do?---Okay. So you say, "No, I don't employ any school children," and then they're asked, "Why don't you?" is it?
PN1320
There's various questions as part of this survey. I'm just saying in relation to those two questions?---Yes.
PN1321
The overwhelming response of course - and if I can make that in reference to your statement at paragraph 62 is that our position is that jobs are going to be lost if there is any credibility to be given to those survey results. I just want to refer you now to the bottom part of that paragraph as well where you're stating that, "It's likely that some employers nationwide will welcome the opportunity to design short shifts based on two-hour blocks, where they feel that the market required this and where they feel there is a supply of labour prepared to tolerate the conditions." I mean, once again, in that situation, why shouldn't there be flexibility? Even if we have a three-hour minimum payment safety net, why should there not be flexibility to look at lesser periods in appropriate circumstances?---Because I think employers will impose a two-hour shift, even against the needs and wishes of employees, and we're talking about a vast body of employees who have already expressed in survey as well as in robust evidence that they want more hours to open up the possibility for employers in retail, where there's often an imbalance of power between the employer and rather vulnerable employees, to open up that possibility for employers to impose against the wishes of the employee a two-hour minimum is I think a very poor outcome.
**** IAIN GRAEME CAMPBELL XXN MR HALLS
PN1322
And you would agree that even if we were successful in achieving a two-hour minimum engagement provision for the award, that there would still be many employers who would still be engaging employees for below and in excess of - - -?---I think so, yes. This is precisely I guess why I try and stress all the time the diversity of what happens in practice. You know, there's - - -
PN1323
Yes, that's fine. I have no further questions.
PN1324
MR MAMMONE: Your Honour, if I may be permitted to cross-examine as an intervener, I would appreciate that. So if I may have permission to do that.
PN1325
THE VICE PRESIDENT: I'm sorry, you wish to cross-examine now?
PN1326
MR MAMMONE: Yes, your Honour.
PN1327
THE VICE PRESIDENT: Yes, indeed.
<CROSS-EXAMINATION BY MR MAMMONE [11.13AM]
MR MAMMONE: Doctor, you've been provided with a copy of an ACCI document entitled Issues Paper, Youth Employment which you referred to earlier?---Yes.
PN1329
Do you have that in front of you?---Yes.
PN1330
Have you read the entire document?---Yes. I only got it yesterday so I've only read it once and of course reading it for the main message, rather than for the detail.
PN1331
So you've read that document?---Yes.
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
PN1332
You took some exception to the use of a OECD working paper, saying that - and I hate to paraphrase - but "somewhat cheeky" was one of the expressions used. Apart from the apparent, what you would say is a misrepresentation of the use of that document in attributing that to the OECD, do you have any other concerns with the extracts in the document?---Yes, I suggested there were two reasons why I thought it was cheeky: attributing it to the OECD and then, secondly, drawing out that quote in clause 10 of the document which was the need for OECD countries - "In a number of countries" - sorry, to suggest that somehow or other the OECD is suggesting that we "need to be careful about demand side barriers such as high labour costs, unbalanced employment protection and discrimination against youth from ethnic minorities", and I'm suggesting that's a bit cheeky when we know that in the official report released only in 2009, the OECD clearly states that Australia has none of those problems. It's certainly not one of those countries that needs to look at any of those issues.
PN1333
So apart from those two concerns, you had no objection to the summary which is extracted, particularly the third paragraph of the summary which is on page 3, where the working paper states, "Coping with the job loss in a weak labour market when job offers are scarce and competition among job seekers is fierce is difficult for anyone but for disadvantaged youth lacking basic education, failure to find a first job or keep it for long can have negative long-term consequences on their career prospects that some experts refer to as scaring. Beyond the negative effects on future wages and employability, if one (indistinct) while young, often create permanent scars through the harmful effects on another outcomes, including happiness, job satisfaction and health many years later." Do you have anything to say on that?---No, I fully agree with that. I think that's - and that's part of the reason why I'm concerned about underemployment, is that I think that's a contributor to that sort of scaring effect.
PN1334
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
So the weight of a working paper document - do you say the tribunal should accord less weight to a working paper as opposed to an official OECD policy?
---Yes.
PN1335
If I can continue on this document. Starting at page 4, titled Youth Unemployment, there are a number of statements made. I won't take you to all of them but I will highlight a few and just ask for your response. Paragraph 11, where it state, "The increase in the youth unemployment rate has been more severe than the rise in unemployment across the broader labour market and the employment of young workers still remains considerably below pre-crisis levels in absolute terms." Would you agree with that?---Yes.
PN1336
You would agree with that?---Yes, I think that's right. That's what you'd expect in a downturn.
PN1337
At paragraph 13 - - -?---I'm not sure what's true at the moment - if I could interrupt. I mean, obviously there's an issue about the extent to which we're in a recovery phase or not. I think there's evidence of recovery, so whether or not that's still - I think a part of your question was - - -
PN1338
I just asked you to agree or disagree with that statement; that's all I - - -?---Okay.
PN1339
I think your answer was yes?---Sorry, I wasn't following the words in the text. I was - yes.
PN1340
At paragraph 13, where it's stated further down in the paragraph, "Young workers at all points in our recent history have suffered disproportionate rates of joblessness and underemployment and improving labour market conditions have done little to ameliorate the relative degree of disadvantage." Do you agree or disagree with that statement?---I think it's true that at all points of recent history there's been disproportionate rates of joblessness and underemployment and that's, as I suggested in my earlier testimony, partly what you'd expect. So you're looking at the level as well as the difference between the youth rate and the total rate. "Improving labour market conditions have done little to ameliorate the relative degree of disadvantage" - well, it's probably too early to say, given that I think that question of the extent to which we've got labour market conditions improving or not is still a little bit of an open question. I think the weight of opinion is that we have got a recovery, but it hasn't been very long-lived so the figures might not yet be available to judge the relative degree of disadvantage for youth.
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
PN1341
At paragraph 15 of the document it begins by saying, "The increase in the rate of youth unemployment has far exceeded the rise in the broader rate of unemployment in the labour market." Do you agree with that?---I would.
PN1342
At paragraph 19 of the document it states, "In contrast to the broader labour market, the key reason for the sharper increase in the rate of youth unemployment has been a net loss of employment amongst 15 to 24-year-olds." Would you agree with that?---I've got a little bit of a question mark noted on my copy and I would have to check employment rates, but it's certainly possible.
PN1343
It's possible?---Yes.
PN1344
At paragraph - - -?---Of course what you're doing there is - you're not referring - you haven't got the data about the - as I could see.
PN1345
Your answer was, "It's possible"?---Yes, it's possible.
PN1346
At paragraph 21, two paragraphs down, it starts by saying, "Had it not been for a sizeable decline in the youth participation rate, the increase in the rate of youth unemployment would have been far more considerable." Would you agree with that?---I think I would, yes.
PN1347
Dr Campbell, are you aware that the Australian government - you may or may not be aware that the Australian government has made a submission in the Inaugural Minimum Wage case by Fair Work Australia. You may or may not be aware of that. In the ACCI's issue paper there was a separate document - I'm not sure whether you have that or not. It's a table on a single A4 piece of paper, titled Selected Labour Market Indicators for 20 Priority Employment Areas, January 2010. Do you have that document?---Yes, I have that table.
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
PN1348
The context of that document is this: the Australian government in their submission to the tribunal on the first minimum wage determination have provided the tribunal with information on particular cohorts of the labour market. I will read one paragraph of their submission where they use this document. The chapter is titled Regional Disparity and Disadvantage and the particular paragraph is 3.57 of the submission and it is a document available on the tribunal's web site. "In recognition of this and of the fact that some regions are likely to experience ongoing disadvantage, the government established 20 priority employment areas (PEAs). See table 3.1 for further detail." That is the document that you have in front of you. It appears to draw upon existing data, published and unpublished. Have you seen this document at all prior to these proceedings?---I haven't, no.
PN1349
Are you familiar with the priority employment areas?---I'm not.
PN1350
If I can take you to the column that's headed Youth Unemployment Rate January 2010, the percentage - the source is quoted there, by reference to particular areas that have been selected for comparison. If I can then compare that with the other column which is titled Unemployment Rate January 2010 percentage, which clearly shows in terms of an aggregate a clear difference. Do you have anything to say about those figures?---I'm sorry, could you just - the first column was the youth unemployment rate, was it?
PN1351
Yes, that's right?---Further from the right.
PN1352
Yes?---Okay.
PN1353
And to compare that with the one preceding that title, Unemployment Rate January 2010?---Okay, yes.
PN1354
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
It clearly shows - - -?---Shows that in all those 20 priority employment areas that there is a higher unemployment rate for youth than for all age groups.
PN1355
Is it correct to say, at cursory glance, that in all of those areas that have been selected there is a higher level of youth unemployment, than unemployment generally?---A cursory glance would suggest that's right.
PN1356
In your statement you refer to underemployment. Have you extracted any part in the document on youth unemployment rates specifically?---Youth?
PN1357
Youth unemployment rates?---In my statement?
PN1358
Yes?---No.
PN1359
So have you considered, in putting together your report, youth unemployment?
---Yes, of course I think about that. I'm always conscious of - - -
PN1360
But you considered it wasn't cogent to these proceedings to include it in your report?---No.
PN1361
Any reason for not referring to youth unemployment?---Well, I referred to underemployment for a couple of reasons, because I was suggesting in my responses earlier that you would always expect youth unemployment to be higher than ordinary employment for all age groups. So the fact that we've got a higher youth unemployment rate is not as important as the fact that we've got a relatively low youth unemployment rate in international comparison.
PN1362
So underemployment - - -?---To me is the more kind of cogent problem because it (a) affects more people than unemployment; (b) it's more central the Australian labour market, which is a remarkably open and flexible labour market; and (c) it seems more pertinent to this case. But I always keep in mind unemployment. Although, I should say that like many labour market researchers, unemployment rates as regarded as pretty inadequate indicators of what's going on in a labour market. I tend to work more with employment rates, for example, and that's alluded to in the ACCI document which is good, but that tells you the proportion of the entire population that are employed at any one point in time; whether they are counted as unemployed or out of the labour force is irrelevant to that kind of comparison. The problem of course with unemployment rates, as I think you will - the ACCI suggests, is that what happens if, for example, for women who might have lost a job in some particular area, do they automatically get counted as unemployed. I mean, in downturn periods or in periods where labour market conditions are poor, they tend to retreat more into the household, define themselves as full-time homekeepers and they don't appear in the unemployment statistics. So you get a much better picture of what's going on by looking at the employment rates, rather than the unemployment rates, in my opinion.
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
PN1363
Dr Campbell, this may be more evidence of my ignorance than anything else but at paragraph 2 of your report you outline your credentials in this area. You say that you have a BA, Honours and an MA in sociology and a PhD in economic geography. What is economic geography?---Well, it's the study of spatial differences in economic activity. That's probably the best short, distinct definition. So labour markets as they might have spatial difference; that would include Australia in comparison with other countries but also, within Australia, how for example regional labour markets look compared to metropolitan labour markets.
PN1364
Do you have any formal qualifications in industrial relations or human resources management?---I'm very active in the Industrial Relations association.
PN1365
Do you have any formal qualifications in those areas?---Well, I reckon it's a multi-disciplinary field that people come into from all discipline backgrounds. I come to it from a sociology and economic geography background.
PN1366
So the answer is you don't have formal qualifications?---No. I've taught it though. I've taught industrial relations, so I'm regarded as qualified enough to teach it at post-graduate level.
PN1367
That's another area, so I will leave it at that. Do you have any formal qualifications in economics?---No.
PN1368
No?---Except for the economic geography.
PN1369
So you don't have any formal qualifications in economic modelling?---No, certainly not.
PN1370
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
You may or may not be aware, at paragraph 51 of the STA - you may not know this - at paragraph 51 of the STA submission, the STA say in paragraph 51 - I might as well read the whole thing out. "The purpose of the award (and clause 13.4) is to provide a fair and relevant minimum safety net alternative provisions. See section 134(1) of the Fair Work Act. For all employees covered by the award, the STA refers to and relies upon the expert report of Dr Iain Campbell in support of its submission as to the effect of clause 13.4 in providing for minimum safety net terms and conditions for casual employees." What exactly would you consider yourself as an expert in?---Expert in employment patterns; I am expert in working time patterns; an expert on unemployment and underemployment; an expert on cross-national comparisons and the area of work and employment; expert on work, life, balance; and I've got particular expertise in particular industries as a result of where I've done case study work. So that's partly why I felt reasonably confident talking a bit about retailers because we've done case study work in the retail industry and, as I've cited in the statement and the survey a few years ago.
PN1371
At paragraph 4 of your report, I just wanted to clarify something which I may have missed, the mail based survey of retail workers, that was just confined to food retailing in Victoria. Is that correct?---No, it wasn't confined to it but it was biased in its responses; that we got a lot of responses through that were disproportionate to retail as a whole.
PN1372
Were any results disaggregated on the base of age or household composition, sex, et cetera?---Yes. If you have a look at the article that we published that's cited in the reference list, there's a couple of disaggregations I think, according to - indeed, we've reproduced one of those tables in the statement which I think we've got as table 5, and you can see there there's a disaggregation on the basis of type of worker amongst the part-time workers. But, yes, there's a disaggregation but the problem of course is that the survey is not fully representative even of the retail workforce in Victoria.
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
PN1373
It's not fully representative?---No. So you don't want to use the results to - for example, we don't have enough older workers I think. So you wouldn't want to extract the small number of older workers and say, "Well, here's what's happening for older workers in the retail industry in Australia."
PN1374
And given the size of the sample, is it statistically reliable?---Yes, 500 is pretty good. But again, there's a problem if you disaggregate and go into smaller - so if you have male and female and then you had only workers who are 50 to 65 and only those employed in hardware stores, the cell sizes would just be impossible, so you can't do it. But usually if you've got cell sizes of 35 or so, you're not panicking as a researcher. You can usually do something with cells of that small.
PN1375
At paragraph 12 of your report you say, "Official ABS data suggests that many casual employees are subject to high levels of labour insecurity." I put it to you, isn't the nature of casual engagement a fair degree of labour insecurity, or are you referring to something else entirely?---Yes, I'm moving from that level of the text regulation to what happens in practice and asking, "What does ABS data tell us about the insecurity and practice?" and it might not be as much in some respects as you might expect from the regulation; that casuals don't have any rights, for example, or limited rights to employment protection. But that doesn't mean that they're always going to be in short-term intermittent employment; many aren't. So you've got to look - my question was, "Well, what does the ABS data tell us about labour insecurity? We know casuals in principle are associated with labour insecurity. What does that tell us about it in practice?"
PN1376
Are you aware of what we would say is the Industrial Relations' definition of a casual employee, perhaps as opposed to the vernacular of casual engagement?
---Well, certainly in the old days - it may have been tidied up - but it seemed to vary a lot from award to award.
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
PN1377
So if I can ask you a question: what do you consider as casual employee?---Well, as I suggested in the statement, I think there's different definitions. I work from what I think is a reasonably robust definition at the regulatory level and at the level of the statistics, which is employees without paid entitlements - in particular, paid leave entitlements.
PN1378
Thank you. At paragraph 14 of the report you start off by saying:
PN1379
I have conducted interviews in the course of my own case study research.
PN1380
But then don't go on any further with that and then refer to "a comprehensive and sensitive program of interviews", which I imagine is a piece of qualitative research. You say that the authors interviewed 55 employees who were recently or currently employed as casuals.
PN1381
They concluded that the experience of casual work was negative for most casual employees and that most would prefer to be permanent. They were called reluctant casuals.
PN1382
My first question would be in your view is a sample of 55 employees a robust sample?---I wouldn't call it a sample. It's a qualitative interview based study and you'd use it together with the data that you've got from the ABS. I'm just saying this is the biggest interview based qualitative program of interviews with casual employees. So maybe 100 might be better, but 55 is not too bad.
PN1383
And are you aware of the characteristics of these casuals, whether it was disaggregate in terms of - - -?---I don't think the authors would like to disaggregate in terms of male - I mean, as I understand it there was some kind of discipline when they were finding 55 casuals to try and ensure that they were not representative of the population of casuals. At least reasonably representative. But you wouldn't want to disaggregate within that group of 55 for the reasons I alluded to earlier, that cell sizes just get too small. But what you can do is if you've got an interview program of 40 minutes or an hour, you get some really, really rich information that can supplement what you know from the quantitative data.
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
PN1384
Is it correct to assume that you've put this in your report because it goes to an issue which seems to be a primary concern for you, and that's under employment?---I did look at it to see what they said about under employment and for the benefit of everyone I pulled out that statement in paragraph 15. But no, I just think that's the best kind of study of the experience of casual employment and I think it's good in nuance because it says well it's true that there are a proportion of casuals who actually survive all right and enjoy the experience and feel that they've got some sort of control. And there's been often a war going on where we as researchers will say look there might be, if you look at the aggregate data and there's problems of insecurity and people will say no on the ground you talk to people and they think casual work is not too bad. So this is a way of bridging a gap and I think quite successfully it shows why insecurity might be prevalent and why most people are reluctant casuals, but nevertheless why some people are reasonably contented with their conditions. And to me that just rings, on the basis of my experience, that absolutely rings true that if you've got another income and you're not reliance on income from variable earnings from casual work, and if you've got a good relationship over your working time with your employer, then it's likely that you would be more contented than if you lacked those two things.
PN1385
Would you say that following from that, that having employment is a positive aspect in and of itself?---Yes.
PN1386
Thank you. At paragraph 17 of your report you refer to a New South Wales Industrial Relations Commission case. What you've extracted is part of that decision and the bit that you've extracted is, and I'll quote from your report:
PN1387
There is a danger that for some employees the time and expense that's incurred for and travelling to and from work may in reality outweigh the remuneration and other benefits which such work provides.
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
PN1388
Then you say:
PN1389
The main rationale for minimum daily engagement provisions it to protect the income and time of the employee in this way.
PN1390
Given that you have made reference to a case, do you know what that case was about?---I think it was to do with the conditions of part-time employees.
PN1391
It wasn't to do with casual employees?---No, no. Purely regular part-time employees.
PN1392
And do you still believe that the main rationale for minimum daily engagement provisions is to protect the income and time of the employee in that way?---Yes.
PN1393
For both, I assume, for both casual and part-time workers?---Yes.
PN1394
Is it conceivable that there is another rationale for minimum engagement periods?---It's always possible. I tried to look around, but not being a lawyer I'm not sure of the results of my trawling. But to me that makes sense as the main rationale. I'm not sure - I'd be happy to be enlightened if there are other rationales.
PN1395
If I put it to you that one other rationale is that there may be a industrial relations policy position that seeks to create disincentives for work that is other than either part-time or full-time, would you agree or not agree with that statement?---I'm not sure I follow you. Could you perhaps clarify there?
PN1396
I'll put it this way. Some would say that a higher minimum engagement period acts as a disincentive to an employer to put a casual on at higher minimum. Would you agree or not agree?--- I think that's the point that I raise in paragraph 18? No sorry, it's when we get to the level. Yes, paragraph 23. A daily minimum engagement. If it's too high it acts as an indirect barrier to good quality part-time schedules. Is this your point as well?
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
PN1397
Well look - - -?---I certainly agree with that.
PN1398
That is another purpose, another rationale for the minimum engagement period?---Well, I think that's to do with the level, not to do with the principle. I tried to distinguish between the principle and the level of the minimum engagement and I've said the principle is basically to protect employees' time and income, but where you've got the level you might have these other considerations and you've got to make sure that it's not too high. A minimum daily engagement of eight hours would seem to me to impede good quality part-time schedules, or part-time schedules full stop. So you obviously don't want a minimum daily engagement of eight hours.
PN1399
So your evidence would be that depending on the level set it does act as a disincentive to employers because in one way the part-timers and full-timers that are currently working would be protected? Is that fair?---No. I just don't think I can follow the argument there.
PN1400
At paragraph 52 at the bottom of that paragraph you state that:
PN1401
Insofar as this affects the debate on minimum daily engagements, it would seem to imply a need for better protection for employees and a higher rather than a lower minimum daily engagement provision.
PN1402
Have you done any modelling on the employment impacts of a three hour minimum engagement period, in contrast to any other engagement period?---No.
PN1403
Why do you then say that a higher rather than a lower minimum daily engagement provision is better? What's that based on?---It's within that kind of parameters of not being too high, not being an eight hour which you'd keep that in mind. I'm not saying the higher the better.
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
PN1404
So would you say that three hours is correct in your view?---I'm reluctant to tread too far into what's obviously deliberations of the Commission.
PN1405
But you're here as an expert witness for the union as to this very issue, I presume?---Two hours to me seems too short I would have thought.
PN1406
But based on what?---Well, if you look into commuting time and the time that you've got to do to re-organise your life, particularly if you're a casual worker, time for preparing for work, all of that is just - two hours, it just to me looks a little short.
PN1407
So would one and a half hours be absolutely way too short?---I would have thought so, yes.
PN1408
Would it surprise you if I told you that there had been different minimum engagement periods under various industrial award instruments?---No. No, it wouldn't surprise me at all.
PN1409
It wouldn't surprise you? So one of those is, in our submission, is a provision of a South Australian retail industry award. It provides for a - and this has been subsumed under the new modern award - but it did provide for a casual employee to receive a minimum period of engagement of three hours for each engagement and for junior casual employees who work between 4 pm and 6 pm Monday to Friday to receive a minimum engagement of 1.5 hours within the period specified?---No, it wouldn't surprise me.
PN1410
So you would say that in your opinion that is far too low?---To me it's too low, yes.
PN1411
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
And it wouldn't surprise you that this was a reviewed by the then South Australian Industrial Relations Commission in 2006 with the SDA union supporting that award?---No, it wouldn't surprise me.
PN1412
Sorry, just one more question, Dr Campbell. At paragraph 65 of your report you say that:
PN1413
Availability searches suggest that the long term trend in retail employment both in Australia and in other industrialised society is towards more part-time schedules. Accompanying this process in Australia is an increase in casualisation.
PN1414
The statement the company in this process in Australia is an increase in casualisation, why is - is that a good thing or a bad thing in your view?---In general I think it's a bad thing.
PN1415
Why do you say that?---Well, because the choices between whether you have part-time schedules on a regular, secure basis or on a casual basis. And I think the conditions of casual workers are interfering in many ways with the conditions of permanent part-time employees.
PN1416
So in your ideal world, would we have casual employment?---Yes. Do you want me to explain?
PN1417
Sorry?---Do you want me to explain?
PN1418
If you'd like?---I think there's a need for an irregular and intermittent short term work. You know, you get a sudden truck load of goods there and you've got to hire someone quickly just for a day in order to unload the truck. The issue in Australia, because I've tried to tackle them in a lot of my research, is the level of casualisation. I just think we've got a larger number of people, too large a number of people. There is undoubtedly a need for a small proportion of casual work, as indeed we find in most OECD countries in one form or another. But in my judgment, and I realise it's not up to me to make this call, that we've got too higher proportion of casuals.
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
PN1419
And flowing from that you would then, I assume, accept that there should be some limits attached to the level of casualisation?---That's a different issue, I think. I mean a different matter, not the matter that we're considering here.
PN1420
Would you support measures, regulatory measures, that would limit?---Well, I have in the past. My testimony, which is quite easily available to the Metals casual case, argued for in support of a conversion mechanism for casual employees.
PN1421
So you support limitations on employers engaging casuals in that fashion?---I support regulatory measures. Well, I have in the past. Partly depending if we are haven't this discussion on what the regulatory measures were because I think the have to be very careful in design. But I had supported in the past measures to try and impede the consolidation of regular casual work, so called permanent casual work. People who are employed for year after year on regular rosters, but they're still called casual employees. And it's part of the public record in my case.
PN1422
Thank you for putting up with my questions, Dr Campbell.
PN1423
THE VICE PRESIDENT: Mr Friend.
PN1424
MR FRIEND: Thank you, your Honour. I have no re-examination so I'd ask that
Dr Campbell be excused. He still has the document which I tendered as exhibit F4, so if we could just make sure he doesn't take that from the witness box so that it can be copied.
**** IAIN GRAEME CAMPBELL XXN MR MAMMONE
PN1425
THE VICE PRESIDENT: Thank you for your evidence, Dr Campbell. You are excused from further attendance.
<THE WITNESS WITHDREW [11.53AM]
THE VICE PRESIDENT: Mr Dowling.
PN1427
MR DOWLING: Your Honour, I call Louise Buesnell. Her statement your Honour will find behind tab 7 of the folder we provided yesterday.
PN1428
THE VICE PRESIDENT: Yes.
<LOUISE MAY BUESNELL, SWORN [11.55AM]
<EXAMINATION-IN-CHIEF BY MR DOWLING [11.55AM]
MR DOWLING: Ms Buesnell, if you would please repeat your full name?---Louise May Buesnell.
PN1430
And your address?---(Address supplied).
PN1431
And you're an organiser employed by the Shop District Union and Allied Employees Association?---Yes I am.
PN1432
And have you prepared a statement for the purposes of these proceedings?---I have.
PN1433
Do you have that statement with you?---Yes I do.
PN1434
Is that a statement of 21 paragraphs?---Yes it is.
PN1435
And is that statement true and correct?---It is.
PN1436
I tender that, your Honour.
EXHIBIT #F6 WITNESS STATEMENT OF LOUISE BUESNELL
<CROSS-EXAMINATION BY MR TINDLEY [11.56AM]
MR TINDLEY: Ms Buesnell?---Yes.
PN1438
Thank you. I'm not going to use that. I've got it right once, that will do. Paragraph 6 of your statement you refer to retailers covering the 4 pm to close shift by employing mostly part-timers. However, there are currently some junior casuals with engagements. Is that from that 4 pm to close shift you're talking about?---Four pm up to 9 pm, mostly in retail.
**** LOUISE MAY BUESNELL XXN MR TINDLEY
PN1439
Sorry?---Four pm up to 9 pm is mostly when junior casuals are engaged.
PN1440
To 9 pm?---Yes.
PN1441
Are you talking about [indistinct] employers?---Supermarkets mainly.
PN1442
Your experience is predominantly with supermarkets?---Pardon?
PN1443
Your experience is predominantly with supermarkets?---Mostly, but all retail. But yes, predominantly supermarkets.
PN1444
Do you have any knowledge of junior casuals working in retail businesses that close during the week prior to 9 pm?---Yes. There are a few business, smaller retail shops, more private businesses.
PN1445
They're engaging junior casual employees to work 4 pm to 9?---Not to my knowledge, no.
PN1446
They're not? Do you think it's appropriate that they should be able to?---No.
PN1447
They shouldn't be able to engage junior employees to work 4 pm to close shift?---No.
PN1448
Why is that?---I believe those hours should be available to all employees regardless of whether they're casual, or junior, or senior employees.
PN1449
I think it may be that you've misunderstood the question. I took your answer as being that junior employees should be excluded from working those hours?---No.
PN1450
**** LOUISE MAY BUESNELL XXN MR TINDLEY
Are you saying that they should be allowed to work them, but so should everyone else?---Yes.
PN1451
They should have an equal opportunity to work those hours?---Yes.
PN1452
So in the event that a store closes at 5.30 or 6 pm and a junior employee is only available after school, a secondary school student for example, is it your position that they should not be offered a shift from 4 o'clock til 6 pm?---In my experience most casuals would prefer to have a longer shift engagement that 2 hours, preferably four.
PN1453
What if the casual wanted to work those shifts because they're available?---Well, in the event where casuals don't want to work two hours and want more, I think it sets a precedent.
PN1454
If we limited this, if the situation is limited to secondary school students working specifically after school, do you still think that they should be excluded from working those hours?---I believe the minimum shift should be at least four hours.
PN1455
Four hours?---Three to four hours, yes. In my experience most casuals prefer to get more hours than the minimum shift, which is currently three hours.
PN1456
But there would be casuals that want to work a shorter shift because it suits their circumstances?---I believe if that is the case then we set a precedence for those that don't want to work two hours and may be forced to work two hours because that is all that there is offered.
PN1457
And what do you base that on?---My experience in the industry.
PN1458
What experience do you have of casuals who are working of this precedent creating situation for casual employees?---In my previous role I worked in HR for Woolworths and I recruited and part of my job would be to follow up on their training and their future shifts and most people would say they wanted more hours.
**** LOUISE MAY BUESNELL XXN MR TINDLEY
PN1459
But what experience do you have of a shorter shift creating a precedent for other employees being required to work shorter shifts?---Well, at present a lot of casuals are called in at short notice. People that I speak to in the industry as an organiser would prefer to have a lengthy shift. To get ready and travel from remote distances out in the central west of New South Wales, employees would prefer to have a more worthwhile length of shift if they've got to spend some time travelling into town.
PN1460
I think I'm not sure that you understood the question. I'll try it again. You said that to allow a shorter shift for secondary school students who would only work that shift would create a precedent. What experience have you had of that precedent being established previously?
---Well, casuals are offered shorter shifts over permanent part-time staff that would like a longer shift. So if casual shifts became shorter than three hours, I think the security for employment for part-time and full-time employees would diminish.
PN1461
So that's a separate issue we're creating?---No. It's about a minimum shift.
PN1462
You say at paragraph 10 of your statement, last sentence:
PN1463
There are some employers who have said we put them on as casual then they are easier to get rid of. Certainly just don't roster them on and eventually they won't bring up the shifts.
PN1464
Are you aware of the unfair dismissal regime that exists under the Fair Work Act?---I am.
PN1465
Are you aware that there is no differentiation between, or predominantly no differentiation between casual part-time employees in terms of their access to unfair dismissal protection?---I believe there's certain restrictions to accessing unfair dismissal laws.
**** LOUISE MAY BUESNELL XXN MR TINDLEY
PN1466
What are they?---Under 100 employees, for example, you're not entitled to access unfair dismissal.
PN1467
So you're not aware that that's been removed by the Fair Work Act?---I'm sorry, no.
PN1468
Are you also aware that there is no difference in the minimum engagement period required between a casual and a part-time employee to be able to access unfair dismissal protection?
---Yes.
PN1469
You are aware of that? So on what basis do you say that casuals are easier to get rid of?
---The lack of security as a casual. There is no permanent commitment to regular hours on regular days.
PN1470
Which is the nature of casual employment, isn't it?---Yes it is.
PN1471
Because if they had regular commitment to regular days they would be a part-time employee?---They would, yes.
PN1472
And as a casual employee they receive a significantly higher rate of pay to compensate for that irregular hours?---I believe they do receive a loading, but most casuals are juniors and their rates of pay are significantly lower anyhow.
PN1473
But the rate of pay for a junior casual employee is substantially higher than the rate of pay for a junior part-time employee?---That varies with age.
PN1474
People of the same age, for example. A 16 year old junior employee, 16 years of age, a part timer, their rate of pay is significantly lower than a 16 year old casual employee?---It is lower.
**** LOUISE MAY BUESNELL XXN MR TINDLEY
PN1475
Because of the casual loading?---Yes.
PN1476
You say in paragraph 11 that the last sentence of that paragraph:
PN1477
If a longer shift was required then the casual would have less [indistinct] but still a reasonable quantum of hours which in term frees them up for other responsibilities in their life, like sports, studies and quality family time.
PN1478
Just concentrate on studies for a second. Is the reverse not true? If a casual employee's studies impinge on their ability to carry out hours of work, that there should be some ability for them to work shorter shifts to take into account those study commitments?---Well, as a busy life of a young casual I'm assuming that rather than just study their sporting commitments as well which impacts on probably their availability of how many days per week they are able to attend a shift. So a longer shift would be probably more viable.
PN1479
You say at paragraph 12, fifth line down, you say:
PN1480
Also there is an added inconvenience for parents that they may be required to drive their child to and from work for a short shift.
PN1481
How is it that the length of shift changes the parent's requirement to drive a child to and from work?---The longer the shift the more viable it is financially for both parties.
PN1482
You don't mention financial inconvenience?---In my view children I speak to in the retail industry find it difficult to get themselves ready and to and from work for a minimum shift of three hours. I feel anything less than that would be more inconvenient.
**** LOUISE MAY BUESNELL XXN MR TINDLEY
PN1483
At paragraph 13 of your statement you say, third line down - I'll start from the start of the paragraph:
PN1484
A lot of casuals working a one day [indistinct] part-time roster. In some areas of retail the only way to gain employment is to be first employed as a casual. This is particularly so whilst on your probationary period.
PN1485
What does that mean?---Most engagements for young casuals - sorry, pardon me. After the three month probationary period, or four months depending on what retail environment, most young casuals are employed on a casual basis as a probation to see if they work out. If they don't work out, well they don't get shifts.
PN1486
Do you think the employer would have difficulties finding employees who would work for a two hour minimum shift?---Yes I do.
PN1487
Would you then not find that the employees that would be prepared to work those shifts are those who want to work those shifts and whose circumstances it suits to work those shifts?
---Could you repeat that sorry?
PN1488
Would it not be that the only employees who would accept a shorter shift are those who wish to work that shift and whose circumstances suit them working those shifts?---No.
PN1489
So you're saying that if there were a two hour minimum shift no one would be able to do it, or not many employees would want to do it, but you're not prepared to say that there would be some who want to do it?---I would say that most people would not want to do it.
PN1490
**** LOUISE MAY BUESNELL XXN MR TINDLEY
There may be some who want to?---I don't believe so.
PN1491
You can't consider a situation where they might want to?---No. No, I can't.
PN1492
Are you aware of the circumstance of the Terang Hardware store which I guess provide the impetus to this issue to be brought before the Tribunal?---I have read part of the statements, yes.
PN1493
So you are aware that there were some secondary school students who wanted to work short shifts and weren't able to given the trading hours of that particular store. Do you think that's a reasonable situation?---No, I don't.
PN1494
You think those school students should be allowed to work those shorter shifts?---No, I don't.
PN1495
So the outcome for them in your opinion should be that they just don't work?---I believe we have to be fair to all status of employees and a minimum shift would jeopardise, in my view, security for other employees. That being part-timers and full-timers. And in my view I think a three hour minimum is, in some circumstances, is not enough.
PN1496
So in order to protect this position you have that there will be some undermining of other part-time and casual employees, you would be prepared for secondary school students to do without work?---No. I just think the minimum engagement should remain at three hours.
PN1497
And you can't think of a situation where there should be some flexibility around that?---No, I can not.
PN1498
Are you aware that historically that the employer has negotiated enterprise agreements that have provided for a lower engagement than three hours?---For the purposes of trading?
**** LOUISE MAY BUESNELL XXN MR TINDLEY
PN1499
In all circumstances in trading?---Such as?
PN1500
Trading hours, the ability to trade later hours for secondary school students?---To the best of my knowledge it's a three hour minimum, two hour for trading purposes.
PN1501
How many casual employees have you spoken to who don't work for Woolworths or Coles?
---I couldn't give you a number. I talk to people regularly. I've canvassed the streets as part of my position. So I talk to all sorts of people.
PN1502
Sorry?---I canvass the streets as part of my position so I talk to all sorts of people that work in industries varying from supermarkets to small retail stores.
PN1503
How many employees did you ask in the lead up to giving evidence here about their position on minimum shifts?---Employers?
PN1504
Employees?---I engaged my delegates who have a close relationship in-store with our members and the feedback that I got from them was pretty much that most casuals would prefer to have more than three hour shift.
PN1505
Do you know which employers these delegates engage with employees of?---Yes.
PN1506
Who were they?---They varied from supermarkets such as Woolworths, Big W, to LiquorLand, to some of our fast foods being McDonalds and KFC. We have a small IGA involved in that as well.
PN1507
Were any, to your knowledge, were any of these employers businesses who close their stores 5.30, 6 pm Monday to Friday?---Yes.
**** LOUISE MAY BUESNELL XXN MR TINDLEY
PN1508
Who?---IGA.
PN1509
IGA close at?---5.30.
PN1510
And where is that IGA located?---Blayney.
PN1511
And did you speak to any secondary school students employed at that IGA?---No, I spoke to my delegates though.
PN1512
Do you know if the delegates spoke to any secondary school - - -?---Yes, yes.
PN1513
You can say for certain that they spoke to secondary school students?---Yes. Yes they did, on my request.
PN1514
And who were they?---I didn't ask the names, I just left that with my delegates to give me some feedback.
PN1515
So your delegate told you they spoke with a secondary school student and you're prepared to tell us that that occurred?---Yes, absolutely.
PN1516
I have nothing further.
<CROSS-EXAMINATION BY MR ISSA [12.13PM]
MR ISSA: You state at paragraph 7 of your statement that:
PN1518
I believe that if casuals were allowed to work a short shift of one and a half or two hours, then these hours would be taken off the senior permanent employees.
PN1519
**** LOUISE MAY BUESNELL XXN MR ISSA
Is that correct?---Yes.
PN1520
Are you aware of the General Retail Award?---Pardon?
PN1521
Are you aware of the General Retail Award?---Could you clarify that please? The state award are we talking about?
PN1522
General Retail Industry Award that came into effect on 1 January of this year?---I'm not very familiar with that, no. We deal mostly in enterprise agreements.
PN1523
Under the General Retail Award full-time employees are engaged to work an average of 38 hours per week, part-time employees must have their agreement in writing which must have included in their agreement the hours worked each day, the days of the week which the employee will work, the actual start and finishing times of each day and that any variation will be in writing. It doesn't appear to take casual hours, it would replace casuals with senior permanent employees now, does it?---Could you repeat that sorry?
PN1524
It does not appear that you can replace the hours of senior permanent employees with casual employees under this General Retail Award, does it?---I can't answer that, sorry.
PN1525
So you don't know?---No.
PN1526
And to paragraph 15 of your statement you state that a minimum period of engagement is one of the few protections that casual employees have. Are you aware of the fact that none of the applicants here today are actually seeking a complete removal of the minimum engagement for casual employees?---No, I'm not aware of that.
PN1527
**** LOUISE MAY BUESNELL XXN MR ISSA
At paragraph 19 of your statement you state:
PN1528
Permanent employees often are pursuing extra hours and sometimes they feel casuals are hired when in fact they should have done more hours if they wanted to. Casual employees would often want to go to permanent if they had the opportunity.
PN1529
Please clarify this for me because it appears to me that what you're saying is that regardless of the employee classification, that retail employees are unhappy with their working conditions regardless of where they are. If they're casual, they want to be permanent. If they're permanent, then they want the casuals in.
PN1530
MR FRIEND: Your Honour, I couldn't understand that question.
PN1531
MR ISSA: Would you like me to restate it, your Honour?
PN1532
THE VICE PRESIDENT: I think if you rephrase the question.
PN1533
MR ISSA: You state under paragraph 19 that permanent employees are often pursuing extra hours and sometimes they feel casuals are hired when in fact they would have done more hours if they were offered to them and that casuals often would like to be permanent if they had the opportunity. It appears that casuals would like to become permanent employees, and that permanent employees do not want any casual employees. It appears to me that you're saying, and please clarify this for me, that regardless of the employee classification that retail workers are in fact unhappy with the other classifications within the retail environment. Permanent don't like the casuals there, casuals would like to become permanent and not remain casual. Is that correct?---What I was stating in that paragraph is people prefer - employees do prefer to have more permanent secure hours. Casuals are often put into hours where permanents said I would have done them had I known they were available. That was the first part of that paragraph. And the second part of the paragraph is casuals would prefer to go permanent because they have more consistent, regular shifts with greater lengths of time at work.
**** LOUISE MAY BUESNELL XXN MR ISSA
PN1534
So casual employees would like to become permanent even though, according to you, casual employees get offered permanent employee shifts?---But there's no security. It's not consistent and it's not regular. So casuals would like to go permanent so that they've got the security of regular, consistent hours.
PN1535
Again that is the nature of casual employment, is it not?---It is.
PN1536
Thank you very much, your Honour. No further questions.
<CROSS-EXAMINATION BY MR HALLS [12.18PM]
MR HALLS: I just want to make sure I pronounce your surname correctly. It's Buesnell, is that right?---Buesnell.
PN1538
Ms Buesnell, firstly I'll take you to paragraph 4 of your statement where you clarify the [indistinct] coverage. That's the only area that you [indistinct] operated in, is that correct?
---No. They're just some of the towns, the remote towns within the radius of my area.
PN1539
Perhaps I should clarify - New South Wales?---Central west New South Wales.
PN1540
But New South Wales is the only area?---Yes.
PN1541
You, like many of the other SDA witnesses who have been organisers, have made reference to this potential threat to part-time employment with the number of hours that would be worked by part-time employees if this application was successful, having a two hour minimum engagement. There doesn't appear to be evidence that has been put forward to support that, but I would put a question to you. Why is that the problem? Should an employer not be able to decide the type of engagement that it wishes to have employees on [indistinct] as long as they're complying with the rules and relevant industrial instruments of the Fair Work Act?---Part-time employees often express being overlooked for extra hours because casuals get those hours in preference.
**** LOUISE MAY BUESNELL XXN MR HALLS
PN1542
I don't think that was really answering the question, Ms Buesnell. The question is does an employer have the right to decide what types of employees it will engage, whether full-time, part-time or casual, as long as they are complying with the requirements of the binding awards and the Fair Work Act?---Yes they do.
PN1543
Yes, thank you. If I could take you to paragraph 9 of your statement. You have indicated that there is [indistinct] split your categories the juniors are mainly engaged in, there is preference of some employees who work part-time rosters, but then there are others that like [indistinct] because of the sometimes spontaneous nature. I think you've already indicated the nature of casual involvement does involve, I suppose, some spontaneity, if you like, and perhaps some issue as far as job security is concerned. Do you agree with that?---Yes.
PN1544
I just wanted to take you to paragraph 12 if you could of your statement, about half way through when you make reference to the added inconvenience that parents that may be required to drive their child to and from work for short periods of shift. In those situations do you have any idea as to what the break up is between those employees who are actually driven to work by their parents as opposed to those who actually have to get there on way to work? It would be secondary school students?---In remote areas, particularly out in central west of New South Wales, most public transport finishes soon after school. So most people, most young children do rely on their parents to get them to and from work.
PN1545
Okay. So that really then I suppose questions many of the other arguments that have been put forward perhaps about cost associated with employees getting the short shifts. I mean, the employers are not obviously out of pocket, are they necessarily, if their parents are driving them to work. I that a fair assumption?---No, they're not.
**** LOUISE MAY BUESNELL XXN MR HALLS
PN1546
In paragraph 15 of your statement you're making reference to casuals not having the same protections as full-time and part-time employees and I think to an extent everyone in this room would be familiar with that. But I would put to you that casuals now at this point in time are perhaps more protected in terms of award conditions and also legislative rights than have been in the past. Would that be a fair statement?---I still believe casuals don't have the security. They have no indication of when their next shift is going to come around.
PN1547
I don't disagree with you on that point. That would be the case, I'm sure, in some cases. But what about things like entitlements to parental leave? One of the other applicants has already mentioned unfair dismissal to you. Casuals also get penalty rates in certain circumstances as well. So we're not just talking about a situation where the only things casuals have an entitlement to is a base rate of pay, a casual loading and a payment provision, are we?---No.
PN1548
There are other benefits available to casuals?---Yes there are.
PN1549
If I could take you to paragraph 18 of your statement. In the second sentence of that paragraph you are stating that casuals too often now don't receive enough hours so a shorter shift would not be favourable. Is that a less favourable situation than not having a job at all? Not getting any hours? Would you rather see the casual employees being engaged on two hour shifts as opposed to not being offered any hours whatsoever?---I believe casuals should be engaged on a reasonable length shift and currently three hours is the minimum. And often people tell me that that's not quite enough.
PN1550
I understand your position on that, but it's not really answering the question. My question is do you believe, or rather would you see or prefer casual employees be able to work a two hour shift, so a minimum two hour engagement, than have no hours at all? Surely that's a better situation, isn't it? To at least be getting some work?---I don't believe so.
**** LOUISE MAY BUESNELL XXN MR HALLS
PN1551
Okay. Are you aware of what the SDA policy is regarding part-time and casual workers?
---Could you clarify that sorry?
PN1552
Well, the SDA actually has a policy in relation to part-time casual workers. I'm just wondering whether you're aware of it?---In relation to what?
PN1553
In terms of the preference for engagement?---Yes. Obviously we support part-time employees.
PN1554
And why is that?---For the security.
PN1555
Security? Could I put to you, or perhaps rather I should ask of you, whether you're aware of some of the key factors relating to client membership over the years, union membership? As to what's contributing to that?---I don't see how that's relevant.
PN1556
Would you agree that casualisation has played a part in the requirement of union membership over the years?---No I don't.
PN1557
You don't?---No.
PN1558
Would it be a fair statement that unions generally, perhaps I'll [indistinct] this question for the SDA if you like, there is a preference for part-time and full-time members because they generate more membership dollars?---No, that's incorrect.
PN1559
I just wanted to come back to a matter that Mr Tindley addressed with you. I believe you mentioned to Mr Tindley that you had discussions with school students at IGA, is that correct?---No, I didn't. My delegates did.
**** LOUISE MAY BUESNELL XXN MR HALLS
PN1560
And I just wanted to confirm whether you are aware as to what the actual engagements of those employees were in terms of the number of hours they were working?---They were casuals. They just filled in on various shifts.
PN1561
And in terms of times that they were actually working?---No I can't I'm sorry.
PN1562
I have no further questions, your Honour.
<RE-EXAMINATION BY MR DOWLING [12.26PM]
MR DOWLING: Ms Buesnell, you were asked some questions about union membership. All right you able to tell the Tribunal whether you have knowledge of whether the union membership figures have gone up or down in recent years?---Yes. As of last year, particularly in my area, my membership for the area was up 1.6 per cent.
PN1564
Nothing further, your Honour.
PN1565
THE VICE PRESIDENT: Thank you for your evidence, Ms Buesnell. You may step down.
<THE WITNESS WITHDREW [12.26PM]
PN1566
MR FRIEND: Your Honour, before I call the next witness that exchange of questions does create a difficulty. What Mr Halls seemed to be going to is some point about the union favouring part timers over casuals because of union membership. None of this was put to the state secretaries we had yesterday who we would of course ask [indistinct] information about the increasing union membership, which I am instructed is the case. So there's a real difficulty there in that line of questioning being pursued. We haven't taken objection at this stage, but it probably goes to weight, your Honour, and it would under Browne v Dunn anyway. But the two secretaries were here yesterday. They were the people that should have been asked about those things. Can I call Mr - - -
PN1567
MR HALLS: Your Honour, if I may just respond to that quickly before the next witness is called out. I would ask my friend to just provide me with any evidence we can as I'm not entitled to ask those questions of those witnesses [indistinct].
PN1568
MR FRIEND: I won't respond to that, your Honour. I call Paul Griffin.
<PAUL GRIFFIN, SWORN [12.28PM]
<EXAMINATION-IN-CHIEF BY MR FRIEND [12.28PM]
MR FRIEND: Just state your full name please?---Paul Orlando Griffin.
PN1570
And your address?---(Address supplied).
PN1571
You are the secretary of the Tasmanian branch of the SDA?---Yes. Have been since 1991, yes.
PN1572
You made a statement in this matter?---Yes I have.
PN1573
Which is about 13 paragraphs long?---I believe so, yes.
PN1574
And is that statement true and correct?---I believe it is true and correct.
PN1575
Thank you. I tender that if your Honour pleases.
EXHIBIT #F7 WITNESS STATEMENT OF PAUL GRIFFIN
<CROSS-EXAMINATION BY MR TINDLEY [12.30PM]
MR TINDLEY: Mr Griffin, how did you come to give evidence in these proceedings?
---Beginning your pardon, how come?
PN1577
How did you come to?---I was asked to make a statement by the SDA nationally and which I have done.
PN1578
Are you aware that other state secretaries have given statements?---Not fully. I believe so.
PN1579
Are you aware that some state secretaries haven't given statements?---Not really, no.
**** PAUL GRIFFIN XXN MR TINDLEY
PN1580
So you wouldn't be aware of the circumstances of that?---No, I wouldn't.
PN1581
You say at paragraph 9 of your statement, I'll take you to that:
PN1582
PN1583
Are you familiar with the terms of the Coles Supermarket agreement?---Reasonably, yes.
PN1584
Are you aware for Tasmania there's a minimum engagement, or there was a minimum engagement of two hours for secondary school students under that agreement?---That was brought in some time ago as I recall. But my understanding also is that when should trading hours were deregulated some years ago, the three hour minimum was retained. That's my understanding. This was negotiated, you know, some time back.
PN1585
I understand that. And your recollection of it may not be quite as fresh. But would it be fair to say that there was consideration given to the inability for secondary school students to work a full three hour shift because of the limited trading hours?---Yes. And the context of that though, that should be brought up because I remember at the time how that came about was because in South Australia, I believe was the state, had that particular provision of two hours. And all that was negotiated in a package in respect of whatever the prospective wage increase might be. It was put in place with the other provisions of that particular claim by the company in regard to actual shop trading hours. And that's when I hark back to that three hour minimum and I believe that in all that put in context the three hour minimum was the principle of that particular argument.
**** PAUL GRIFFIN XXN MR TINDLEY
PN1586
So was it your opinion at the time that that clause was inserted into the agreement, that that was a reasonable clause?---Only in the actual enterprise bargaining negotiations. It was looked upon in what else was gained and whatever the wage increases and that it could be accommodated with certain provisions to protect those particular school children on two hours, yes.
PN1587
What mechanisms were put in place to compensate those secondary school students for the shorter shift?---You're testing my memory now. Presumably there would have been as a casual component with loadings be retained, look you're really testing my memory I'm afraid.
PN1588
Would it have differed therefore that secondary school students in Tasmania working a two hour shift between the hours of four and 6.30 Monday to Friday that they would have got a higher rate of pay than other casual employees?---I can't recall. I don't believe so. I think they were the same as other casuals. I think. I'm not sure.
PN1589
So if we assume that they're the same, how are they being compensated?---As I mentioned previously, it was calculated into the whole of the package in respect of the particular annual wage increase for the year. But it was done as a package.
PN1590
So casual employees generally benefited from the fact that Tasmanian and other state secondary school students would work shorter shifts?---In respect of how they were able to accommodate those hours in their circumstances, yes.
PN1591
So you think that there are some circumstances where a shorter shift might be appropriate than three hours?---In Tasmania I don't believe that it is in the best interests of those employees. If you want to go further into this particular statement, and I think I cover off on that, in respect of how geographically Tasmanian employees are situated, as I say with a smaller state in the country obviously. However, geographically a lot of our employees do travel considerable distances to go to work.
**** PAUL GRIFFIN XXN MR TINDLEY
PN1592
Despite this you agree in a negotiation to a shorter shift for secondary school students with no direct compensation to those secondary school students?---Well, as I say, let's not take it out of context. The fact was it was put into an arrangement and just to isolate it and say that that is an agreed position is not necessarily the case. Other factors came into it why that was involved.
PN1593
Are you saying they didn't necessarily agree to that?---Only in those circumstances I'm saying that it's agreed to. At no stage in Tasmania has it ever been agreed to.
PN1594
Well, didn't we just accept that it was a Tasmanian - - -?---Under the federal agreement, a federal national agreement, it comes into play. But not in any Tasmanian arrangement, through the state before it ever became in as far as the national arrangements are concerned, the federal.
PN1595
Are you aware of the situation at the Terang Hardware Store that received a high level of media attention in relation to secondary school students working after school hours?---As I recall, that was the breach of the award situation. Am I correct?
PN1596
That there were breaches of the award involved?---Yes. And that's how that got the media attention my understanding is.
PN1597
You wouldn't be aware that it got media attention prior to there being any reference to a breach of an award?---The only way I read it in the media, as you say, and as soon as I saw it I said well there's the breach.
PN1598
Are you aware that there are employees of the Terang Co-Op, the Terang Hardware Store, who seemed to work shorter than a three hour shift?---I'm unaware of that.
**** PAUL GRIFFIN XXN MR TINDLEY
PN1599
Would you think it appropriate for there to be some consideration of the circumstances of those employees?---Not while there is a legal instrument of employment in place that says three hours, no I don't.
PN1600
Do you think it would be appropriate in some circumstances for that legal instrument to reflect the needs of some secondary school students?---I don't believe that, no.
PN1601
Even in the event that those secondary school students would be denied the opportunity to work?---There are ways that those people could be worked and still be entitled to what the award conditions or provisions provide.
PN1602
Well, give me one. Give me one way?---Well, the employer could employ them for two hours, but then pay them for three hours. I don't know. The fact is the award should be three hours and they should be employed for three hours.
PN1603
You think it's appropriate for an employer just to pay extra hours if it was - that gives the employer the opportunity a natural solution to what - - -?---No, it's not my solution at all. You asked me how it might be done, but it's not a solution. But the fact is you've got an award condition and provision and employers, that is how they should abide in employing their staff.
PN1604
Can you see any [indistinct] in a secondary school student being able to work less than three hours if the trading hours of its employer don't allow them to work more hours than that?
---Well, the only thing I see in that, that it sets a standard against any other or against the principle of why the three hour minimum is there to start with and that is to ensure that people, employees, get an appropriate minimum hire of work, that they get a reasonable amount of pay at the end of the day or the end of the weeks. And those are the things that are in jeopardy when you start reducing down.
**** PAUL GRIFFIN XXN MR TINDLEY
PN1605
Well, these circumstances where young people can't work the minimum required number of hours and are there for losing those hours, you see that as a acceptable outcome for the greater good? Is that your evidence?---For the greater good? I think you've put that, yes, fairly well.
PN1606
So it's okay for some secondary school students to be casualties of that?---No. You're making it very blasé. The fact is those minimums are put there for very good reasons and that's why they've always been there. To protect and ensure that people get a right amount of income for whatever the rate might be, to ensure that they actually work within the ministry and get a reasonable amount of pay.
PN1607
[indistinct] has gone from a four hour minimum to a three hour minimum, hasn't it?---No. Well, under the modernised award it has, yes.
PN1608
And do you have any - and when you came into these proceedings you turned your mind to all of the matters that might be relevant to your evidence?---I attempted to, yes.
PN1609
And your position is strongly that there should be nothing less than three hours?---Yes.
PN1610
And you would have provided any information that would support that position?---I believe so, yes.
PN1611
So why haven't you tried providing any information about the detriment to casual employees in Tasmania from the reduction from four hours to three hours?---Say that again please?
PN1612
There has been a reduction in the casual minimum engagement from four hours to three hours. Why have you not provided any evidence of the detriment to employees generally of that reduction?---In a lot of cases those people would be on a casual standard of employment. The casual rate has risen from the state from 20 per cent to 25 per cent.
**** PAUL GRIFFIN XXN MR TINDLEY
PN1613
That's not correct, is it?---Well, it's not correct. It staggered over four years. Initially it was 25 per cent and there's been a change in that to go from 21, 22 over a number of years. Yes you're right, I concede that.
PN1614
So there's been no impact of the move from four to three?---Well, there's no impact. It's come in from 1 January, so yes.
PN1615
So is your answer that there's been no impact?---There wouldn't be anything available to suggest that at this point in time.
PN1616
Did you ask anyone?---Organisers for the branch that are in the stores have not reported in their reports, their weekly and monthly reports, as to any particular changes to anyone's employment. Presumably they are still being employed for four hours.
PN1617
Presumably? How would you know that?---Well, I said presumably. I didn't say I did know.
PN1618
You're making that assumption?---Well, yes I say that, yes. Because there has been no complaint at this point in time of a reduction in anyone's hours.
PN1619
So could we also presume that if the minimum engagement went from three to two hours they'd still be engaged for four hours?---Could be presumed. It might happen. There's nothing to say that it wouldn't happen.
PN1620
Nothing further thanks, your Honour.
PN1621
THE VICE PRESIDENT: Mr Halls and Mr Issa, do you intend to cross-examine this witness? Yes, well we might adjourn now for lunch. We'll adjourn for one hour. We'll resume at 1.45. I can indicate we'd be adjourning no later than 3.45 this afternoon and we'll obviously need to address programming beyond today. We now adjourn.
**** PAUL GRIFFIN XXN MR TINDLEY
<LUNCHEON ADJOURNMENT [12.45PM]
<RESUMED [1.51PM]
PN1622
THE VICE PRESIDENT: You understand you're under your former oath, Mr Griffin?---Yes, your Honour.
PN1623
Please be seated. Mr Issa?
PN1624
MR ISSA: Thank you, your Honour. Mr Griffin, at paragraph 13 of your statement, you state - in relation to the work performed by disabled people, you state that, "To my knowledge, all of these have been governed by the NAPSA or agreement shift provisions. No-one has sought reduced daily hours below 3 hours." Correct?---Yes.
PN1625
Now, were these applications to have the assessments made - were they done under the Tasmanian retail trades order?---They - yes, they come through from Fair Work Australia, from - whichever the company is, and they outline the particular hours and the rates they're on under the disability clause of the award, and because from the state award is general listed as the retail trades award, yes.
PN1626
So there are employees who do, in fact, have some need to seek hours of engagement below the minimum engagement of the award, under the retail trades order which is four hours and you've stated there are employees who have sought engagements of three hours?---Those that have come through - generally it's the rate that they were on. I don't recall seeing where they have been employed - they have been employed on a specific number of days, but there's - in most cases, as I recall, they have been on about a four-hour minimum.
PN1627
But nobody has requested below three?---Not that I can recall, but there may well have been. Look I - yes, there may well have been. I don't want to say that there isn't.
**** PAUL GRIFFIN XXN MR TINDLEY
PN1628
So, there may well have been below three hours, and there may have been applications for three hour minimum engagements?---There may be, yes. There may well have been, but I would like to add that, because of the circumstances of these particular people, they are not scrutinized in any great length.
PN1629
Absolutely, thank you. Also, at paragraph 11 you stated that, "Granting reasonable minimum periods of employment is not a detriment." Is that correct?
---Yes.
PN1630
Thank you, your Honour. No further questions.
PN1631
THE VICE PRESIDENT: Mr Halls?
PN1632
MR HALLS: Thank you, your Honour.
<CROSS-EXAMINATION BY MR HALLS [1.54PM]
MR HALLS: Mr Griffin, can I take you to paragraph 12 of your statement, please?---Yes.
PN1634
I just want to put you to the second sentence in that statement, "A two-hour minimum would have an impact on casuals in respect of junior rates and travel costs to and from work." Would it be reasonable to assume that quite a number of casuals, including school students, would be driven to work by their parents or by someone else, not having to catch public transport at their own expense?---Look, no doubt, that would happen. Yes, so - - -
PN1635
Would you have an opinion as to whether it's most?---No, I wouldn't say that, because a lot of those particular students would make their own means of transport in getting to their particular employment because they would leave from after school, and I can - if it's of any value, I recall, some eighteen months ago, my son and daughter worked at Coles. They left school, they went to - I can't remember whether they worked from 5.00 until 9.00 or 6.00 until 10.00, but that was their arrangement with - that they worked after school, and they made their own way there, and because it wasn't that far they walked, so you know - but that's - - -
**** PAUL GRIFFIN XXN MR HALLS
PN1636
But, when we're looking at the masses, you're really not sure?---I'm not sure, but irrespective of that, the pertinent point I'm making there is the fact that as - and presumably in other states, particularly in Tasmania and along the north-west, those towns that I list, and I think it's in clause 10, they're coastal towns but a lot of families live inside, in-land from there. They would have the same travel, they're termed as "rural country", and it might well be a bus. They might go to work from school then catch a bus home and rightly, as you say, maybe their parents picked them up. I don't know.
PN1637
That's fine, thank you. I just wanted to put the question to you, do you see any difficulty with retaining - the possibility of retaining a three-hour minimum payment or minimum engagement provision for casuals but allowing exceptions in circumstances where it may be justified and, perhaps, even just by agreement between the parties? Do you see - - -?---Four less hours?
PN1638
That's right?---I don't see that that ought to be looked upon favourably. I think with - the state retail trades award was four hours, it's never been attacked in any way, in respect of reducing it - - -
PN1639
I understand you've stated that in your statement?---Exactly, and where we've come down to three hours, the proviso, further to what I was saying before lunch, is that they were in particular agreements that were made in a package. They were on a higher rate of pay than what the current award - or state award is, and now the modernised award for those reasons.
PN1640
That's fine. What about situations then, where an employee actually wants to work a lesser period of hours? So, if an employee is actually happy to settle for a lesser period of hours, so an employee is willing to work for less than the three hours, why shouldn't that be permitted?---In order to maintain the particular - the standard and the provision of why the actual rate is already there, a minimum of three hours for those arguments. Now, it might - any employee can come and ask for something and it might be, they think, in their best interest. But, overall, it would not necessarily be the case.
**** PAUL GRIFFIN XXN MR HALLS
PN1641
What if I put to you that the overwhelming response that the ARA has received from its membership in relation to this issue is that, we are stuck with a three-hour minimum payment provision that we're no longer going to employ school students?---For a number of reasons over many years, I've heard that put a lot of times, and I haven't seen any repercussions to those students.
Don't you - you can only really speak for the state of Tasmania, is that correct?
---Yes, that is correct.
PN1642
I don't have any further questions, your Honour.
PN1643
THE VICE PRESIDENT: Mr Friend?
PN1644
MR FRIEND: No re-examination, your Honour. May Mr Griffin be excused?
PN1645
THE VICE PRESIDENT: Indeed. Thank you for your evidence, Mr Griffin, you may step down and you're excused from further attendance?---Thank you, your Honour.
<THE WITNESS WITHDREW [1.59PM]
PN1646
MR DOWLING: I call Terrie Carrington, your Honour.
PN1647
THE ASSOCIATE: Could you please state your full name and address.
PN1648
MS CARRINGTON: Terrie Carrington, I work for the SDA at 146 Leichhardt Street, Queensland, Brisbane.
<TERRIE CARRINGTON, SWORN [2.00PM]
THE VICE PRESIDENT: Mr Dowling?
<EXAMINATION-IN-CHIEF BY MR DOWLING [2.01PM]
MR DOWLING: Thank you. Ms Carrington, could you please repeat your name and address?---Terrie Carrington, 146 Leichhardt Street, Spring Hill, Queensland, Brisbane.
PN1651
Thank you, and you are an organiser employed by the SDA?---Yes.
PN1652
You're employed in Queensland?---Yes.
PN1653
You have been employed as an organiser with the SDA since 30 June 1986?
---Yes.
PN1654
Have you prepared a statement for the purposes of this proceeding?---Yes.
PN1655
Do you have a copy of that with you?---Yes, I do.
PN1656
Is that a statement of eight paragraphs?---That is correct.
PN1657
Is that statement true and correct?---It is true and correct, yes.
PN1658
Thank you, I tender that, your Honour.
PN1659
THE VICE PRESIDENT: The statement of Terrie Carrington will be exhibit F8 in these proceedings.
EXHIBIT #F8 WITNESS STATEMENT OF MS TERRIE CARRINGTON
PN1660
**** PAUL GRIFFIN XN MR DOWLING
MR DOWLING: Thank you, your Honour.
<CROSS-EXAMINATION BY MR TINDLEY [2.02PM]
MR TINDLEY: Thank you, your Honour. Ms Carrington, your position is that there should be nothing less than a three-hour minimum shift?---That is correct.
PN1662
Can't conceive of any circumstances where a lesser shift would be appropriate?
---No, I can't.
PN1663
You're based on the Gold Coast?---Yes.
PN1664
Are there circumstances on the Gold Coast where the training hours of retail stores, Monday to Friday - excluding the night of late night trade - would preclude them from offering a full three-hour shift to a casual employee?---None that I know of.
PN1665
All the stores on the Gold Coast, to your knowledge, trade after 6.30 on a - Monday to Friday?---The small retail shops close at 5.30, but they roster their permanent staff in such a manner where they don't need anyone for less than three hours.
PN1666
In circumstances where a retail store wished to engage a casual employee, secondary student, after school between the hours of 3.30 and 5.30, do you think it's reasonable that they're prevented from doing so by a three-hour minimum shift?---No, I don't.
PN1667
I might rephrase that question, I'm not sure that you've understood. Do you think that a secondary school student should be allowed to work a two-hour shift between 3.30 and 5.30 - - -?---No.
PN1668
**** PAUL GRIFFIN XXN MR TINDLEY
- - - on a weeknight?---No, I don't.
PN1669
Even if the option - or the only other possibility is that they would receive no hours at all?---There's plenty of other times when they can get hours.
PN1670
What are those other times?---Saturdays and Sundays. All of our shops are open Saturdays and Sundays.
PN1671
Those are the plenty of other times you refer to?---Yes.
PN1672
So, in your position, those retailers should just use juniors on weekends?---No, they use their permanents and they slot their juniors in whenever they need them. That's what they currently do.
PN1673
You're aware of the situation that has been the impetus for these proceedings, the situation of the Terang hardware store, you've read about that?---I've read about it in the newspapers.
PN1674
You're aware that there are, at least, two secondary school students employed by that hardware store who would like to work shorter than a three-hour shift, Monday to Friday?---That's what I've read in the newspapers.
PN1675
Do you have any sympathy for their predicament?---My sympathy would be that, surely, the employer could have paid them the minimum of three hours in the first place.
PN1676
So, do one and a half hours' worth?---Well, I would image that they would have been worth it, because they have been there quite a while.
PN1677
With respect, that's a pretty unreasonable position to take for an employer, or approach for you to take towards the cost implications of employers, isn't it? You're saying that employers should pay double of what a person is worth?
**** PAUL GRIFFIN XXN MR TINDLEY
---Well, who is to say that they're not worth double?
PN1678
Let's imagine for a second that they're not worth double, that they're not performing particularly well. Should we still be charging - paying them double?
---I wouldn't have had them working for me if I had been the employee - employer.
PN1679
At paragraph 7 of your statement, you say that, "To ask a secondary school student to do a shift of less than three hours would also upset many parents, as many of the young people I talk to rely on parents to get them to work and home again." Why would that upset the parent?---The cost of petrol for the parents, because most parents these days are working as well, and the cost for the parents to get them to and from work. I'm talking to parents every day of the week, I'm talking to their children every day of the week. Public transport on the Gold Coast is pretty awful, and I did do some checking on the bus costs. A lot of people live in the Palm Beach, not a lot of people work in the Broad Beach area. A return bus fare is $10.60 for 15 kilometres. Now, if you've got - - -
PN1680
For - is that limited by age? Is that for an adult?---That's for a 16 under and 16 year olds. Return bus fare, $10.60.
PN1681
Do you have any evidence to support that?---I haven't brought any with me.
PN1682
Thank you. Setting that aside, you're not talking about bus fares, are you, here? You're talking about the parents' cost in getting them to and from work?---I'm talking about the parents' cost and the cost to the kids of getting them to and from work.
PN1683
If I can interrupt you, that's not what you're saying at paragraph 7, is it? Please read it for me - read it for yourself?---Okay, and public transport I mention in the bottom line there.
**** PAUL GRIFFIN XXN MR TINDLEY
PN1684
You don't talk about the parents' cost, it's not that the parents are jumping on a bus and picking up their child and coming back on the bus, are you?---No, the parents are driving them to and from.
PN1685
How does a parent cost driving them to and from work alter, depending on the length of their shift?---Because if they're working two hours, the parents are going to be driving them to and from work.
PN1686
Aren't they going to be driving them to and from work if they're working three hours?---Possibly - - -
PN1687
(indistinct)?---My argument is that I think that three hours is too small, it should be more.
PN1688
Aren't they driving them to and from work when they work four hours?---Well, possibly or - but public transport makes it cheaper then, because you've got more money coming in, you can pay your bus fare.
PN1689
Nothing further.
<CROSS-EXAMINATION BY MR ISSA [2.20PM]
MR ISSA: Thank you, your Honour. Ms Carrington, at paragraph 4 of your statement, you state that, "Some casuals are also rostered, but they are sometimes cancelled at short notice." That is before they arrive work on the day, or the day before?---Correct.
PN1691
Correct. Are you aware of paragraph 27.14(a)(f) of the general retail award?---I don't recall it at the moment, no.
PN1692
**** PAUL GRIFFIN XXN MR ISSA
Would you like me to read it to you?---Certainly.
PN1693
"An employee's roster may not be changed with the intent of avoiding payment of penalties, loading or other benefits applicable. Should such circumstances arise, the employee will be entitled to such penalty, loading or benefit as if the roster had not been changed."?---There would surely be a time limit on that, like - if people are rostered - casuals we're talking about, not permanents. Casuals are - - -
PN1694
Yes, casuals?---- - - on an hourly contract, as you know, and most of our agreements (indistinct) but casuals can be cancelled, as long as they are contacted before they arrive at work.
PN1695
So that's under your agreements, not under the award?---Most of our agreements and, frankly, not too many of the casuals I talk to work under anything else but enterprise agreements.
PN1696
You understand that today, we have applied to vary the general retail award, not to apply agreements, but - - -?---Yes, I realise that.
PN1697
You also state, at paragraph 4, that it is your experience that casuals are most often used when a permanent calls in sick or for other staff shortages?---Correct.
PN1698
I put it to you, that is the exact nature of casual employment?---I'm sorry.
PN1699
I put it to you that that is the exact nature of casual employment?---Yes.
PN1700
Thank you, your Honour. No further questions.
<CROSS-EXAMINATION BY MR HALLS [2.10PM]
MR HALLS: Thanks, your Honour. Ms Carrington, could I please direct you to paragraph 3 of your statement. Just the last sentence, you make a statement suggesting that, "In my experience, casuals work whenever the employer wants them to work." They wouldn't usually work when the employer doesn't want them to work, would they? I mean, the employer has to approve any - - -?---I don't understand - - -
**** PAUL GRIFFIN XXN MR HALLS
PN1702
- - - engagement of casuals, doesn't it?---I don't understand what you mean by that, I'm just saying a casual is worth whatever - - -
PN1703
The employer would approve whatever engagements casuals have. Would that be a fair statement?---The employer would ask them if they're prepared to work.
PN1704
Perhaps, in consideration, if you like, of their circumstances and try and roster them as best as they can to accommodate their own - - -?---No, they would roster them and make sure they're available to work, yes.
PN1705
Thank you. Just again, on paragraph 7 of your statement, if I may. You indicate, to ask a secondary school student to do a shift of less than three hours would also upset many parents, as well as many of the young people, I assume you mean. Would the parents be more upset if they didn't have any work at all? I mean, if the parents are actually in a situation where they can either have their children working - let's assume that they only work 1.5 or two hours - okay, we've got a three-hour minimum payment provision. Wouldn't the parents rather them get two hours' pay for a 1.5 or two-hour engagement, rather than having no work at all? Wouldn't that be a fair statement?---Well, I can't talk generally like that, but I can tell you what the parents say to me, and their children, that say to me, "It is not worth getting to work for an hour and a half or two hours.
PN1706
Do you - in relation to the Terang matter that's been brought up and, perhaps, largely what spurred these proceedings, I understand that there are numerous parents that form part of these fifteen-hundred signatures on the petition, that also support the ability for their children to work lesser hours. Do you understand that to be the case?---No, I hadn't heard about that at all.
PN1707
That's certainly my understanding. I don't have any further questions, your Honour.
**** PAUL GRIFFIN XXN MR HALLS
PN1708
THE VICE PRESIDENT: Mr Dowling?
PN1709
MR DOWLING: No re-examination, your Honour.
PN1710
THE VICE PRESIDENT: Thank you for your evidence, Ms Carrington?
---Thank you, your Honour.
PN1711
You may step down.
<THE WITNESS WITHDREW [2.13PM]
MR DOWLING: I call Ms Christine Fawcett, your Honour.
PN1713
THE VICE PRESIDENT: Ms Fawcett.
PN1714
MR DOWLING: Your Honour will find Ms Fawcett's statement behind tab 7E of the folder we provided.
PN1715
THE ASSOCIATE: Please state your full name and address.
PN1716
MS FAWCETT: Christine Fawcett, (address supplied).
<CHRISTINE FAWCETT, SWORN [2.14PM]
<EXAMINATION-IN-CHIEF BY MR DOWLING [2.14PM]
MR DOWLING: Thank you. Ms Fawcett, could you please repeat your name and address?---Christine Fawcett, (address supplied).
PN1718
You are employed on a full-time basis as a shop assistant at the Ritchies IGA supermarket in Kurri Kurri?---I am.
PN1719
You have prepared a statement for the purposes of this proceeding?---Yes, I have.
You have that with you?---Yes, I do.
PN1720
Is that a statement of 18 paragraphs?---Yes.
PN1721
That's signed and declared, by you, on 27 April 2010. Is that correct?---Yes, it is.
PN1722
Is that statement true and correct?---To the best of my ability, yes.
PN1723
Thank you. I tender that statement, your Honour.
PN1724
THE VICE PRESIDENT: The statement of Christine Fawcett dated 27 April 2010 will be exhibit F9.
EXHIBIT #F9 WITNESS STATEMENT OF MS CHRISTINE FAWCETT
MR DOWLING: Thank you, your Honour. Ms Fawcett, at paragraph 15 of your statement you set out some comments that have been made to you, in relation to the issue that's before the tribunal, the reduction of the minimum period for casuals from three hours to two hours. Do you see that paragraph?---Yes, I do.
PN1726
**** CHRISTINE FAWCETT XN MR DOWLING
Could you tell the tribunal, since the making of this statement, have you had any other discussions with casual employees or their parents in relation to this issue?
---I have. I've spoken to a lot of my friends and acquaintances, detailing the fact that I was coming here and everyone I have spoken to is of the same opinion that it's just ridiculous.
PN1727
When you say your "friends and acquaintances," could you tell the tribunal whether they are employees in the retail industry, or parents of those who are?
---Some are, some are parents and some are grandparents.
PN1728
Thank you. Nothing further, your Honour.
<CROSS-EXAMINATION BY MR TINDLEY [2.16PM]
MR TINDLEY: Ms Fawcett, am I right - from your statement, that predominantly you worked at the one site and then two and a half years ago you've moved to another site? Through those different employers, it was the same - - -?---Yes, I got transferred.
PN1730
What were the trading hours of those two stores that you've worked at and, in particular, the weeknight - weekday trading hours?---Well, at Cessnock, at the moment, it's the same as at Kurri, but when I originally started it was only 9 o'clock until 5.30. 9 o'clock Thursday night, 8.00 to 12.00 Saturday.
PN1731
And now?---Now it's the same as the hours at Kurri.
PN1732
Which are?---7.00 to 10.00 Monday to Friday - 7.00 to 9.00, I should say. 7.00 to - I don't work weekends - 7.00 to 7.00, 8.00 to 6.00 - - -
PN1733
Don't feel embarrassed, Ms Fawcett, I don't work weekends either if I can help it?---I'm lucky, I do Monday to Friday.
**** CHRISTINE FAWCETT XXN MR TINDLEY
PN1734
But I note here, you've got the store's trading hours so I apologise for asking you that again, that's at paragraph 6 of your statement. You say, at paragraph 14 of your statement, that your experience at the Kurri Kurri store, "Difficult enough to get casuals to attend four-hour shifts."?---Yes.
PN1735
They don't like working?---They don't, and they hate three hours.
PN1736
Is that also your experience at the Cessnock store?---Yes, at Cessnock I was the head cashier for eight years and it was my job, if someone called in sick, to try and find someone to cover them, and if it was only three hours they would "um" and "ah".
PN1737
So it would be fair to say that, the only people that work those shorter shifts are people who want to?---Yes, and I don't know any who would.
PN1738
How many employees are really - I'll take you to paragraph 15 of your statement. You said that, "I'm not aware of any casuals working in our store who prefer to work a two-hour shift instead of a three-hour shift. Based on my experience, I suggest most people would refuse the shift." Which would suggest that (indistinct) refuse shifts?---Yes.
PN1739
Can you think of a circumstance where it may be appropriate for casuals to work - or reasonable for casuals to work less than a three-hour shift?---To be honest, no, I can't.
PN1740
Secondary school students who have limited availability after school, and who work for employers whose trading hours don't extend. So if we talked about the old trading hours you referred to of 5.30 Monday to Friday, apart from the late night trade, if a secondary school student wanted to work after school until 5.30, 6 o'clock, do you think it's reasonable that they be prevented from doing that by a minimum shift provision of the award?---But that doesn't apply, these days.
**** CHRISTINE FAWCETT XXN MR TINDLEY
PN1741
If we talk about other retailers who only trade until 5.30, 6 o'clock?---I really can't answer that because I don't work there. I can only tell you what I've experienced.
PN1742
Well, to be fair, you're telling us what you say other people have experienced and other people are feeling as well, so what I'm asking you to consider is: In the circumstance where a secondary school student wishes to work after school, is only able to work until 5.30, is only able to start work at 3.30. Is it reasonable for them to be able to work that short a shift, if they wished to?---I guess so.
PN1743
I have nothing further.
<CROSS-EXAMINATION BY MR ISSA [2.20PM]
MR ISSA: Thank you, your Honour. Ms Fawcett, at paragraph 11 of your statement, you state that, "There is increasing competition in the supermarket retail industry in Kurri Kurri, with a Bi-Lo store in the process of renovating and converting to a Coles store, an Aldi store which has been granted development approval and the rudiment introduction of a Woolworths supermarket." Is that correct?---Yes.
PN1745
With the increasing competition of Kurri Kurri, would it not be better to have an award where the terms and conditions are flexible for both the employer and the employees?---I don't understand. Can you - - -
PN1746
The terms and conditions of the - with the increasing competition in your area, would it not be better for the terms and conditions of the award to be flexible for both employees and the employer?---I really don't know.
PN1747
Okay. At paragraph 13, you state that, "A three-hour shift is very important to casual employees, because it is a guarantee of minimum earnings every time you are called up for a shift." Correct?---Yes.
**** CHRISTINE FAWCETT XXN MR ISSA
PN1748
Would a variation of the minimum casual engagement to two hours - would that still not be a guaranteed minimum engagement as well?---Well, it would be a guaranteed engagement, yes.
PN1749
Thank you. At paragraph 14, you state that it is your experience at the Kurri Kurri store, that it is already difficult enough to get casuals to attend to four-hour shifts?---It is sometimes, yes.
PN1750
Are you a store manager at the Ritchies IGA Kurri Kurri store?---No.
PN1751
Have you ever been?---No.
PN1752
Thank you very much, your Honour. No further questions.
PN1753
THE VICE PRESIDENT: Mr Halls?
PN1754
MR HALLS: Your Honour, I have no questions for this witness.
PN1755
THE VICE PRESIDENT: Mr Dowling?
<RE-EXAMINATION BY MR DOWLING [2.22PM]
MR DOWLING: Just one question, your Honour. My learned friend, Mr Issa, took you to paragraph 14 where you say, "It is my experience at the Kurri Kurri store that it is highly" - sorry, "That it is already difficult enough to get casuals to attend four-hour shifts." Can you tell his Honour how you know that, or - what's the basis of that statement?---Because, at times, I have been nominated to ring to find a replacement for someone who has called in sick.
PN1757
Thank you. Nothing further, your Honour.
**** CHRISTINE FAWCETT RXN MR DOWLING
PN1758
THE VICE PRESIDENT: Thank you for your evidence, Ms Fawcett. You may step down.
<THE WITNESS WITHDREW [2.22PM]
MR FRIEND: Your Honour, can I call Robert James Singer.
PN1760
THE ASSOCIATE: Could you please state your full name and address.
PN1761
MR SINGER: Robert James Singer, our business address is 17 William Street, Hamilton, New South Wales.
<ROBERT JAMES SINGER, SWORN [2.23PM]
<EXAMINATION-IN-CHIEF BY MR FRIEND [2.23PM]
MR FRIEND: Is your full name Robert James Singer?---It is.
PN1763
Your address is 17 William Street, Hamilton in New South Wales?---Yes.
PN1764
Are you employed as a union organiser by the SDA?---Yes.
PN1765
You've prepared a statement in this matter with six pages and 36 - sorry, seven pages and 36 paragraphs?---I have.
PN1766
Yes?---Yes.
PN1767
You need to speak your answer. You have a copy of that with you, there?---I do.
PN1768
Thank you. Are the contents of that statement true and correct?---They are.
PN1769
I tender that, if your Honour pleases.
PN1770
THE VICE PRESIDENT: Statement of Robert Singer dated 27 April 2010 will be exhibit F10.
EXHIBIT #F10 WITNESS STATEMENT OF MR ROBERT SINGER
MR FRIEND: If you could wait there, please, Mr Singer.
<CROSS-EXAMINATION BY MR TINDLEY [2.24PM]
PN1772
MR TINDLEY: Thank you, your Honour. Mr Singer, you're opposed to the idea of a two-hour minimum shift in the retail award?---Yes.
PN1773
**** ROBERT JAMES SINGER XXN MR TINDLEY
You strongly oppose that, from the evidence you've given?---I do.
PN1774
You say, at paragraph 16 of your statement, you've worked as a casual in the retail industry?---I have.
PN1775
You've never worked a two-hour shift?---No.
PN1776
Have you ever worked in a retail business where the trading hours of that business were such that you wouldn't be able to work any more than two hours?---In what way do you mean?
PN1777
So, for example: If you're available to work from 3.30 in the afternoon and it only traded until 5.30? Has that ever been the experience that you've had?---No.
PN1778
I take it, from here, you've generally worked within the Coles Group businesses?
---Yes.
PN1779
Their trading hours are - at the times you worked for them?---Right, the extended trade.
PN1780
Can you conceive of a situation where it might be appropriate or helpful for an employee to be able to work less than a three-hour shift?---No.
PN1781
If I refer to the situation of secondary school students or working in businesses that don't have those extended trading hours. They're not available for work until 3.30, 4 o'clock, and who would be only able to work to between 5.30 and 6 o'clock. Do you think there should be some consideration given to those circumstances?---No, not really, because then it would fall back through the rest of the workforce in the retail industry. You know, if it was cut to a two-hour minimum for a casual then it could fall down the path of a full-time or a part-time person being the next on a two-hour minimum.
**** ROBERT JAMES SINGER XXN MR TINDLEY
PN1782
Well, how would that happen?---How would it happen? Well, if the casuals wouldn't do the two-hour minimum shifts, then it would fall back through and the part-timers, then, would be rostered on for a two-hour minimum to - - -
PN1783
Part-timers can't be rostered on for a two-hour minimum, can they?---That would be the next step. That's only my presumption.
PN1784
You say, at paragraph 11 - I'll take you to the last two sentences. You talking, I assume, about offering two-hours shifts to employees and your final sentence is, "In my experience, there would be a real risk that such shifts will be refused and/or no longer attend the shift."?---Mm'hm.
PN1785
So is it fair to say that the only people who would attend the shift would be people who wanted to work two-hour shifts?---Yes.
PN1786
But those employees would have the ability to refuse a shift?---Yes, if they were offered a two-hour shift, you know, they could refuse it. But then the employer would find someone, then, who would.
PN1787
Because they wanted to?---That's right.
PN1788
You say, at paragraph 24, that, "Underemployment is the most serious issue consistently raised by SDA members about casual employment. They wish to work more hours, not less. Two-hour shifts will do nothing to improve the position."?---That's right.
PN1789
It won't do anything to harm the position, though, will it?---To reduce it to two-hour minimum? Over my experience, over 23 years in the retail industry, I couldn't tell you anyone that would, you know, be interested in doing a two-hour shift and all the casuals I've spoken to wish it was more than three.
**** ROBERT JAMES SINGER XXN MR TINDLEY
PN1790
But, it is not going to extend the problem of underemployment, because you're saying people will refuse to work?---And then the employer will find someone that will work the two-hour shift.
PN1791
So, in the event - I understand that you're concerned about the flow-on effects of reduced minimum shifts but, in the event that the exception was limited to these circumstances of secondary school students, so it'd only apply to secondary school students between certain hours of work. Would that be a reasonable outcome?
---No.
PN1792
Would you prefer that these secondary school students not be able to work?---No, that's not the case. But if it's not a monetary thing, you know, if they want them to do a two-hour shift or if it's not a monetary problem, pay them for three hours.
PN1793
You would require a business that only needs an employee for two hours to pay them for free?---If that's not a monetary problem.
PN1794
What do you mean by, "If it's not a monetary problem"?---Well, if it doesn't come down to money or expenses. If it's - they're not trying to have a two-hour shift to save wages, okay? A two-hour shift, pay them for three.
PN1795
The decision may not be about spending additional wages, but - or about saving wages, but you're asking them to spend additional wages?---No more than they're spending now.
PN1796
Well, if we refer to circumstances in Victoria where they usually work a two-hour shift - or the two-hour shift has been available, that would be an additional impost, wouldn't it, to pay them for three hours?---If that's the case in Victoria, yes it would be.
**** ROBERT JAMES SINGER XXN MR TINDLEY
PN1797
Nothing further, thanks, your Honour.
<CROSS-EXAMINATION BY MR ISSA [2.30PM]
MR ISSA: Thank you, your Honour. Mr Singer, at paragraph 23 of your statement, you stated, "In my experience, retailers tend to use more casuals and casual hours than is typically needed to effectively start their store." Have you ever owned a retail store?---No, I haven't.
PN1799
You also state, at paragraph 23, that, "Employees sometimes want to be a casual, as the employee would prefer a higher rate of pay."?---Yes.
PN1800
Is that correct?---Yes.
PN1801
At paragraph 31(a) you state, in relation to employees who oppose two-hour shifts, that, "They believe that employers would be taking advantage of their relative weaker position, ie as a casual, if they do not accept the shorter two-hour shift, their hours of work will be offered to another casual who will agree."?
---That's right.
PN1802
So you're saying that there will still be another casual who will agree?---And that's what - like, the flow-on. They will keep - if they keep knocking them back, they will find someone that will do it and they'll keep doing it until they find that person.
PN1803
I refer you to paragraph 17 of your statement, Mr Singer, which, on the last line, says that, "You can say with certainty that none of these employees would have preferred to work two-hour shifts."?---That's right.
PN1804
So they wouldn't work them, but they will take them up if they're available?---I'm not saying that them people will, but they will find new employees that will do two-hour shifts.
**** ROBERT JAMES SINGER XXN MR ISSA
PN1805
So, employees will be willing to do that. At paragraph 21 of your statement, you've stated that, "As a union organiser, I've never received a complaint by a member, or non-member, about the inability to work a two-hour shift under their agreement or award." Correct?---That's correct.
PN1806
Thank you, your Honour. No further questions.
<CROSS-EXAMINATION BY MR HALLS [2.32PM]
MR HALLS: Thank you, your Honour. I only have a couple of brief questions for you, Mr Singer. Just if I could take you to paragraph 16 of your statement, "I've worked as a casual industry and never worked a two-hour shift." Wouldn't that, essentially, be noncompliance with the requirements of the award, in any case?---What's that?
PN1808
Working a two-hour shift - or rather, being paid for a two-hour shift in Queensland, prior to the introduction of modern awards?---I'm not aware of anything what - in Queensland.
PN1809
Sorry? Sorry, my apologies, New South Wales?---Yes.
PN1810
Would that be correct?---Can you repeat the question?
PN1811
What I'm suggesting is, because the New South Wales pre-modern instruments have provided for a three-hour minimum engagement - - -?---That's right.
PN1812
- - - that that would be an instance of noncompliance if you're only paid for two hours in any case?---That's right.
PN1813
Paragraph 23 of your statement, if I could direct you to that. You state that, "In my experience, retailers tend to use more casuals and casual hours than typically needed to effectively start the store." Seems to be a mixture of staff preference and also management preference. What's the problem with that - I mean, is there any issue?---No, there's not an issue. That's - - -
**** ROBERT JAMES SINGER XXN MR HALLS
PN1814
Prior engagement of casuals there?---No issues, that's just, you know, from my experience.
PN1815
What's your view on increased casualisation in the workforce?---I - - -
PN1816
Any positive things?---I haven't got a problem with casuals working in the workforce, as long as, you know, they're being given a fair go.
PN1817
Do you have a problem if they start to outnumber your part-timers and your full-timers?---As long as they're being given the opportunity, then, to become part-time or full-time in the future.
PN1818
So it's dependant on that - - -?---Yes.
PN1819
- - - in your view?---Yes.
PN1820
Paragraph 24, you refer to underemployment being the most serious issue consistently (indistinct) or raised, rather, by SDA members, in relation to casual employment. Do you consider that a more serious issue than no hours at all?
---What was that one, again?
PN1821
Do you consider that a more issue than having no hours at all made available to casual employees?---What do you mean?
PN1822
Well, what I'm suggesting is that, we could actually have a reduced minimum engagement, being a period of two hours, that you would actually see that as a worse situation than having no hours being offered at all to casual - - -?---It's not a worse situation but it's something that I'm opposed to.
PN1823
**** ROBERT JAMES SINGER XXN MR HALLS
Right, but it's not a worse situation?---You know, I'd rather see that minimum be three or four hours.
PN1824
But what I'm asking you is, would you rather see a two-hour minimum engagement provision rather than no hours at all?---I wouldn't like to see anyone have no hours at all, but - you know - - -
PN1825
Well, which would you rather?---I'd like to see them have hours, but like I said before, the employer will find someone, whether it be new staff, to do that two-hour shift.
PN1826
Okay, could I ask you just to answer the question that was put. Would you rather see a two-hour minimum engagement made available to casuals, or no hours at all?---Well, you're saying two hours, I'm saying three.
PN1827
I have no further questions, your Honour.
PN1828
THE VICE PRESIDENT: Mr Friend?
PN1829
MR FRIEND: Your Honour, I have no re-examination for this witness. May he be excused?
PN1830
THE VICE PRESIDENT: Indeed. Thank you for your evidence, Mr Singer?
---Thank you.
<THE WITNESS WITHDREW [2.35PM]
MR FRIEND: Your Honour, the only other statement to file is that of Mr Struan Timms who, due to personal circumstances, isn't available, so we won't be tendering that statement, we'll be seeking to call him as a witness. That being the case - that is the case for the (indistinct) in this matter.
PN1832
THE VICE PRESIDENT: Yes, thank you. Is it the preference of the parties that we have submissions on another day? Mr Tindley?
PN1833
MR TINDLEY: Your Honour, I think there may be some difficulty in that the problem may be that we may not get through all of it in - today, in one go, and that would, I think, cause some difficulties.
PN1834
THE VICE PRESIDENT: I think it's preferable that the parties have all the time that they wish to put their submissions and also to incorporate the evidence that's been led. In which case, it's a matter of fixing another day. Would one day be sufficient?
PN1835
MR TINDLEY: I would expect so.
PN1836
THE VICE PRESIDENT: Yes. What's your time estimate for submissions, Mr Friend?
PN1837
MR FRIEND: I think, your Honour, that I'll probably be about an hour.
PN1838
THE VICE PRESIDENT: Yes, it looks like we will finish within the day then. Might just go off the record while we look at possible dates.
<OFF THE RECORD [2.37PM]
<ON THE RECORD [2.38PM]
PN1839
THE VICE PRESIDENT: We'll adjourn this matter for final submissions of the parties to Thursday 3 June, commencing at 10 am. These proceedings are now adjourned.
<ADJOURNED UNTIL THURSDAY, 3 JUNE 2010 [2.38PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
WILLIAM ROBERT WAREHAM, AFFIRMED PN1041
EXAMINATION-IN-CHIEF BY MR TINDLEY PN1041
EXHIBIT #T4 STATEMENT OF WILLIAM ROBERT WAREHAM DATED 24/03/2010 PN1046
CROSS-EXAMINATION BY MR FRIEND PN1047
THE WITNESS WITHDREW PN1083
IAIN GRAEME CAMPBELL, AFFIRMED PN1089
EXAMINATION-IN-CHIEF BY MR FRIEND PN1089
EXHIBIT #F4 STATEMENT OF DR IAIN GRAEME CAMPBELL PN1095
EXHIBIT #F5 SUMMARY OF RECOMMENDATIONS OF OECD REPORT ENTITLED JOBS FOR YOUTH, AUSTRALIA PN1105
CROSS-EXAMINATION BY MR TINDLEY PN1114
CROSS-EXAMINATION BY MR ISSA PN1241
CROSS-EXAMINATION BY MR HALLS PN1274
CROSS-EXAMINATION BY MR MAMMONE PN1328
THE WITNESS WITHDREW PN1426
LOUISE MAY BUESNELL, SWORN PN1429
EXAMINATION-IN-CHIEF BY MR DOWLING PN1429
EXHIBIT #F6 WITNESS STATEMENT OF LOUISE BUESNELL PN1437
CROSS-EXAMINATION BY MR TINDLEY PN1437
CROSS-EXAMINATION BY MR ISSA PN1517
CROSS-EXAMINATION BY MR HALLS PN1537
RE-EXAMINATION BY MR DOWLING PN1563
THE WITNESS WITHDREW PN1563
PAUL GRIFFIN, SWORN PN1569
EXAMINATION-IN-CHIEF BY MR FRIEND PN1569
EXHIBIT #F7 WITNESS STATEMENT OF PAUL GRIFFIN PN1576
CROSS-EXAMINATION BY MR TINDLEY PN1576
CROSS-EXAMINATION BY MR HALLS PN1633
THE WITNESS WITHDREW PN1649
TERRIE CARRINGTON, SWORN PN1649
EXAMINATION-IN-CHIEF BY MR DOWLING PN1650
EXHIBIT #F8 WITNESS STATEMENT OF MS TERRIE CARRINGTON PN1660
CROSS-EXAMINATION BY MR TINDLEY PN1661
CROSS-EXAMINATION BY MR ISSA PN1690
CROSS-EXAMINATION BY MR HALLS PN1701
THE WITNESS WITHDREW PN1712
CHRISTINE FAWCETT, SWORN PN1717
EXAMINATION-IN-CHIEF BY MR DOWLING PN1717
EXHIBIT #F9 WITNESS STATEMENT OF MS CHRISTINE FAWCETT PN1725
CROSS-EXAMINATION BY MR TINDLEY PN1729
CROSS-EXAMINATION BY MR ISSA PN1744
RE-EXAMINATION BY MR DOWLING PN1756
THE WITNESS WITHDREW PN1759
ROBERT JAMES SINGER, SWORN PN1762
EXAMINATION-IN-CHIEF BY MR FRIEND PN1762
EXHIBIT #F10 WITNESS STATEMENT OF MR ROBERT SINGER PN1771
CROSS-EXAMINATION BY MR TINDLEY PN1771
CROSS-EXAMINATION BY MR ISSA PN1798
CROSS-EXAMINATION BY MR HALLS PN1807
THE WITNESS WITHDREW PN1831