PN1

JUSTICE ROSS: All right, if I can just go through the appearances. I've got Mr Izzo with Ms Lawrence for ACCI?

PN2

MR L IZZO: Yes, your Honour.

PN3

JUSTICE ROSS: Mr Ferguson for Ai Group?

PN4

MR B FERGUSON: Yes, your Honour.

PN5

JUSTICE ROSS: Ms Ismail for the ACTU?

PN6

MS S ISMAIL: Good morning, your Honour.

PN7

JUSTICE ROSS: And Mr Rizzo for ASU? Mr Rizzo?

PN8

MR M RIZZO: Yes, your Honour, I'm here.

PN9

JUSTICE ROSS: We circulated a copy of the proposed draft survey. We have received submissions from ACCI, Ai Group and the ASU. Let me deal with some general issues first and then we'll go to the document that has been circulated to each of you, which just puts in some comments identifying the particular observations made by each party. The ASU has made some general comments about the administering of the survey. Our intention is to do it in the same way as we've done previous surveys of this type, that is, we provide a link to the survey to the participating employer organisations. We will also draft a covering email that will go with the link from the employer organisation. The employer organisation will then forward the link to its members and they will complete the survey online, usually over a period of about three weeks. At the end of the three‑week period we will assess how many we've got back and whether we need to do a further survey or further mail‑out and reminder. The results are sent directly to the Commission, not to the employer organisation. We prepare a report collating all of the results and we publish that for the parties' information.

PN10

It would seem a sensible course, I think suggested by the ASU, that the employer organisations simply put in a short statement indicating what they did with the survey. Of particular interest to everyone will be how many members did they send it to, so what action did they take, in other words that on X day we sent the email and the link to X number of members, and if there was any further follow‑up then to indicate what that was. So that seems to deal I think with the general questions. Did you have anything further on that that you wanted to say, Mr Rizzo?

PN11

MR RIZZO: Yes, your Honour. Thank you. Just before I address that, your Honour, just about going to the document today, I appreciate the Commission has provided a document, which is useful, but personally I have only read the employer's submissions this morning, because they weren't sent to me and I just discovered it though on the website this morning, and as your Honour knows, we've only had the document from the Commission, which is very useful, but we've only had it for about 20 minutes before this conference started.

PN12

JUSTICE ROSS: Well, you've had our survey instrument since it was published in the statement.

PN13

MR RIZZO: Yes, I know that. That is true, just that there are proposals put forward by the parties that I haven't had a proper look at. Is it the Commission's intention today to actually go through and finalise this survey, because I feel that I'm a bit under‑prepared for that? I was more wanting - I thought today was about discussing general principles and where the parties were at and what we needed to do, et cetera.

PN14

JUSTICE ROSS: No, we are going to finalise the survey today. I'll go through the comments. If you've got anything further to add, I'll provide you with a short opportunity to do that in writing. The statement made it clear we weren't(?) going to be discussing general principles today. The whole purpose was to seek feedback on the survey. That's why we circulated it.

PN15

MR RIZZO: Yes, I appreciate it, your Honour - except, as I say, I've only looked at the employer's submissions this morning and the amendment to the survey this morning as well. I do have some concerns about what the employers have put and I do have some support with what some of them have put as well.

PN16

JUSTICE ROSS: We'll go through the various comments and you can say what you wish to say. If you need more time, you've provided with it - you'll be provided with a short opportunity to do that and then we'll finalise the survey instrument as events. Ultimately, we don't require everyone's consent to every aspect of the survey. You can say what you wish to say about the survey and the results when they come in.

PN17

MR RIZZO: Yes.

PN18

JUSTICE ROSS: You also indicate in your submission that you say there is a case to have a parallel survey of employees. How would you propose that be conducted?

PN19

MR RIZZO: I haven't addressed that with specific thought, your Honour, but I just thought that this survey is limited in the sense that it only does register the employers' perspective and for example, the ACTU has gone to its survey about what - more so about what the employees think. I'm just thinking that it would be valuable to the Commission to get some information what the employees think as opposed to just what the employers think.

PN20

JUSTICE ROSS: I don't disagree with that. The ACTU can provide its survey results during the proceedings. There is no difficulty with that. My question to you isn't whether it would be useful, it's how would you do it?

PN21

MR RIZZO: Yes, again, I haven't turned my attention to that.

PN22

JUSTICE ROSS: The problem is there is no database that tells us - identifies the employees in a group that are covered by the clerical award.

PN23

MR RIZZO: Yes, I appreciate that, and they also are a very large group. But that is what our submission was talking about also in relation to any survey by the employers. There are tens of thousands of employers in this award. How would they go about sampling those employers?

PN24

JUSTICE ROSS: They will simply send it to - this is a perennial problem. I might say you're in exactly the same position with many of the surveys that you have produced during the review; that is unions generally, either of their own members or of a select group. It is not a representative sample. It is just not possible to do a representative sample, unless the ABS did it of employers who are covered by this award. What we're doing is gathering information through a ready mechanism but everyone accepts that it's not a representative sample, just as a survey of your members will not be a representative sample of all employees covered by the award.

PN25

MR RIZZO: Yes, I understand that, your Honour; you're absolutely right. It's just that this survey, as we've noted in our submission, is entirely employer focused and I thought that the idea from the (indistinct) and the 14 October statement was to get a sense of what the employees were actually doing and how they were working from home and how they were treading with working at home, et cetera.

PN26

JUSTICE ROSS: Mr Rizzo, what I've heard so far is the criticism of what is proposed but no alternative being advanced. Is that where we're up to?

PN27

MS ISMAIL: Your Honour, it's Sophie from the ACTU. I mean, it would be easy enough for the ASU to identify members that are covered by the clerks' award and for a similar kind of process to be taken if the Commission were minded to do that. I think the point is that it's a discussion about the limitations and methodology, which I think is worth ventilating at this point in time.

PN28

JUSTICE ROSS: Well, where does it take us, though? We had this in the aged care award as well. Everyone accepts the limitations in the survey the ACTU has conducted.

PN29

MS ISMAIL: Well, that's right.

PN30

JUSTICE ROSS: Where does this take us, though? Are you submitting that there is no value in doing it?

PN31

MS ISMAIL: No, not at all, and yes, the submissions make that clear and the ACTU is of the same view, that gathering data on this issue is important. But I suppose if there were to be a process where the ASU could distribute a survey to its members covered by the clerks' award though a similar process, that is something we would be open to consider.

PN32

JUSTICE ROSS: I'm perfectly content for exactly the same process; for there to be a survey be administered. It would be forwarded by the ASU with a covering email that we would draft with a link that we would provide and the results would come to us. I'm more than happy for that process.

PN33

MS ISMAIL: The ASU and the ACTU would need to discuss that but yes, we weren't aware that was on the table.

PN34

MR RIZZO: Yes, I wasn't aware.

PN35

JUSTICE ROSS: Well, I mean, I'm not quite sure what - we didn't rule anything in or out so I'm not quite sure where you got the view that it might not be on the table. How do you want to proceed, then?

PN36

MS ISMAIL: It's just not the proposal that's in front of us, your Honour. The proposal in front of us is a survey that is distributed by the employers.

PN37

JUSTICE ROSS: I appreciate that and that was what was discussed during the hearing. That's what we've done in the past. But the ASU didn't volunteer to have a survey distributed to its members, otherwise we could have helped and drafted something along those lines.

PN38

MR RIZZO: I hear that, your Honour. I hear that's an option, is that correct; that we would have the same process through the Commission?

PN39

JUSTICE ROSS: Yes, you can - yes, absolutely.

PN40

MR RIZZO: Okay, I will need to take that back to my superior. But I appreciate your Honour's openness to that idea.

PN41

JUSTICE ROSS: Look, what I would suggest is we'll go through the document that has been circulated and then we'll come back to what the next steps might be. If we go to question one, and ACCI has suggested removing the note as it may cause some confusion. My initial reaction was yes, it may well cause some confusion. It's covered to some extent by the later questions. Whether or not the clerks' award sets your pay and conditions is open to interpretation and there is no particular - given we've already explained earlier, how do I know if the clerks' award covers my employees? Anyone else want to comment on that deletion of the note? No? In question three, ACCI is proposing rather than saying, "How many employees does your business currently employ", it asks the question: "Approximately how many employees does your business currently employ?" Bearing in mind that you may have a counterpart employee survey, it's unlikely the employees are going to know the precise number and I think the point here is that the person, the employer filling in this form, may not know with precision how many employees are currently employed either. Are there any observations on that?

PN42

MS ISMAIL: I think the preference from certainly the ACTU's point of view would be that the question is how many employees do you employ? If the employer is only able to provide a number then so be it. But I think what does, "Approximately how many people do you employ", is a bit of a meaningless question, I think.

PN43

MR FERGUSON: If I might respond to that, your Honour: I think there might be a way forward. If I can explain the concern in this way: I think the person who actually completes the survey - there is a myriad of different types of personalities that will complete it. You'll have someone who is not too fussed about if they're one or two out. They'll keep moving through the survey promptly. You'll have different personality types where they actually get quite vexed about, "Is it misleading if I get it wrong by one or two employees", and will start to become anxious about being correct or not and they might exit the survey process.

PN44

They might delay them considerably and our concern is primarily around response rate. I take on board Ms Ismail's' comment. We're just trying to give the participant some comfort that if they get it a little bit wrong, not materially incorrect but if it's out by one or two employees it's not the end of the world. They haven't done anything wrong, necessarily. We try and give them comfort to move through the survey as promptly as they can. I mean, one way of dealing with Ms Ismail's comment will be to say, "How many employees does your business currently employ?" You could put in brackets, "If you do not have an exact number provide an estimate", or something like that.

PN45

I would be happy with modifying the way that the question is worded to address Ms Ismail's comment. But I just want - our intention was to give the survey participants some comfort that they don't have to spend inordinate amounts of time getting exact number or that they're not doing something wrong if they're out by an employee or two.

PN46

From my perspective I suspect the people receiving this survey often won't know with absolute precision the number without having to go and check and so forth so I think to Mr Izzo's point, having some capacity to approximate will just help with the response rate.

PN47

JUSTICE ROSS: Ms Ismail, I think there are two ways of dealing with it: one would be rather than add the word, "approximately", you could say, "To the best of your knowledge how many are employed?" Or you could take Mr Izzo's suggestion that if you don't know precisely, provide an estimate.

PN48

MS ISMAIL: Yes, your Honour, and I was thinking you could do that through a note, not as an explanation next to the question that - - -

PN49

JUSTICE ROSS: We could provide that in the covering email.

PN50

MS ISMAIL: Yes, we're not particularly worried. I think as long as the actual question is, "How many employees do you employ", and then an explanation that is to the best of your knowledge.

PN51

JUSTICE ROSS: All right. anything else you want to say, Mr Rizzo?

PN52

MR RIZZO: No, your Honour, other than I think our preference would be that if there is to be some explanatory note, that it's next to the question as opposed to a covering email because I don't know - I just think if we're trying to give the participants some comfort, that they can provide an approximation if they don't know the exact number I think will be helpful for it to be adjacent to the question.

PN53

JUSTICE ROSS: Yes, we could put it as a note to questions three through to six. They're all asking numbers. All right, Mr Rizzo, you're suggesting the deletion of question six?

PN54

MR RIZZO: Yes, your Honour - it's simply - there is no philosophical opposition to question six. The more data you get always the better. It's simply a question about the number of questions we have and whether we are gong to start to burden the survey recipients down and affect response rates. We've added some extra questions ourselves, which has contributed to the length and so it's just about a prioritisation process. I think the suggestion from us is, is it absolutely necessary to have that statistical breakdown? If it's not do we consider removing it in the interests of moving through the survey more promptly? That's the basis for the concern.

PN55

JUSTICE ROSS: I guess the reluctance that I would have to deleting the question is the union has already foreshadowed an argument based on the gendered impact of working from home arrangements and this would provide data about the gender breakdown.

PN56

MR RIZZO: It may have some relevance to that point, yes, your Honour. I can't exclude that. As I said, we can't cavil with the fact that the more data you get the better. It's a question about efficiency. So I think it's - I suppose at the end of the day I think the question is going to come up. There is another question later on that will come to - that the unions have proposed about work health safety and the question ultimately becomes more about work health and safety. I think the question ultimately becomes well do we just accept everyone's additions, in terms of questions, and the survey gets longer and longer, or do we put a prioritisation approach. I suppose just for our part, if we were to look at the total number of questions at the end of all of this and say, if we were going to get rid of some what would go, this would be higher up on our list. I'm not saying it doesn't have any relevance, but when we're talking about which are more necessary than others, that's how we view them from a priority perspective.

PN57

MR RIZZO: Your Honour, it's Michael Rizzo here. Look, your Honour, this question to us has extreme relevance, as already foreshadowed in your Honour's statement. We know - everyone knows this is a very feminised award. Most employees are women under this award, and a lot of women obviously are also in the work from home category, probably more so than men. So this is critical for us, your Honour, (indistinct). And just while I've got the floor, your Honour, there was a little question we also suggested which was not captured in the FWC document, and also question 6, we just wanted to add whether the person was full‑time, part‑time or casual. Again, this is important to get a sense of whether these people are full‑time or part‑time, and as you know a lot of them are female workers who are part‑time. So we just wanted to get a sense of that profile, your Honour.

PN58

JUSTICE ROSS: And how does that help us?

PN59

MR RIZZO: Well, it helps us - well the gender one that I was - - -

PN60

JUSTICE ROSS: No, leave aside the gender one. Full‑time, part‑time and casual?

PN61

MR RIZZO: For full‑time and part‑time - we can forget casual - the full-time and part‑time gives a sense of what type of worker is working from home.

PN62

MS ISMAIL: It gives a sense, your Honour, of the impact on different categories of employees that this variation may be having, a different impact on casual employees as it is on full‑time employees, and that's information that we think is relevant for the Commission to know before making a decision about a permanent change here.

PN63

JUSTICE ROSS: Mr Rizzo just said it doesn't matter with casual employees; it's full‑time or part‑time.

PN64

MS ISMAIL: Yes. I'm not sure - - -

PN65

MR RIZZO: I'll withdraw that, your Honour. I think I'm wrong on that. I'll withdraw that. Yes, it's full‑time, part‑time and casual (indistinct) submission, yes.

PN66

MR IZZO: Your Honour, if I could make a contribution at this point?

PN67

JUSTICE ROSS: Yes.

PN68

MR IZZO: I think - I suppose - well this is going to come up when we get to the safety question, so we may as well grapple with the issue now, and I suppose the question is what's the point of the survey, and I think - my understanding - and look, the different parties might have different views, but my understanding was we're trying to get a sense of how many employees are working from home and whether it's proportion or sheer numbers, are there differences in their working arrangements, and that was one of the core things is: are they working at different times; are they working in patterns that they didn't work previously, and to look at whether the award safety net is appropriate for any changes that have happened in relation to the way work's performed at home, and I think that should be the core focus of the survey. We then start to get ancillary questions that are necessary, but each time we add more and more questions, we compromise response rate at the expense of dealing with issues that aren't necessarily at the core of the focus of the survey. And so again, when it comes to prioritising questions, I mean I think I would put the gendered question higher than the part‑time, casual or full‑time question, because the inferences that can be drawn are going to be limited when you get this information about how many people might be part‑time or full‑time. I mean the real core focus is: are people's working arrangements changed somehow, and if they have changed, why have they changed and at whose initiative. That's the real focus that we thought would generate a significant benefit from the survey. So I think from our perspective that's why we do need to exercise caution about how many questions we add and what they're about to ensure that the core purpose doesn't get diluted. That would be our submission on some of these extra questions.

PN69

JUSTICE ROSS: All right. Well, let me just take one of the points you've raised, and that is, how working arrangements have changed and at whose initiative. That's a question the ASU is suggesting.

PN70

MR IZZO: Yes. I think that's a very important question. I think it has actually been addressed as well by ACCI in the additional question that we have added at point 8. So your Honour, if you look at the mark‑up in the definition - - -

PN71

JUSTICE ROSS: Yes.

PN72

MR IZZO: - - - (indistinct), that's what we exactly tried to grapple with, which is - and we tried to make it as balanced as possible. So we tried to identify issues at the employee's initiative, but additionally issues at the employer's initiative. So I agree with the ASU comment. All I would say is I think we've encapsulated that in point 8. If people think we haven't, then we should talk about modifying point 8, but I don't think we need that question again, because that's exactly what we're trying to grapple with at point 8.

PN73

JUSTICE ROSS: Yes, I think point 8 talks about why they're in place. It doesn't really talk about who initiated the change. I think they're sort of two separate but nevertheless important points, and it can be dealt with by a short additional question in the lead‑up to number 8. But, all right, I hear what everyone says about - - -

PN74

MS ISMAIL: Your Honour, can I make just a short comment on what Mr Izzo said about the purpose of the survey? I mean, we are talking about the modern award objective as well, and the people employed by the Clerks Award that will be affected by this variation are not a homogenous group. The impact will be varied, depending on certain factors, and we just want to capture some core information so that the assessment can be made about social inclusion; it can be made about the other factors that the Commission needs to weigh up.

PN75

JUSTICE ROSS: Social inclusion is about promoting employment in the modern award objective. But look, my starting position is we should get as much information as possible, but I'm also concerned that the more questions you ask, the fewer people are going to respond to the survey.

PN76

MS ISMAIL: I'm not sure that asking a question about gender and the nature of the employment goes too far.

PN77

JUSTICE ROSS: No, I'm not suggesting it does go too far. I'm just suggesting that's the exercise we're in. The longer it is, the less likely you are to have a higher response rate. I think that's just the practical reality, and I think that's the point Mr Izzo is pointing to. But this isn't an exercise about frankly trying to reach agreement between all of you about what should be in. I've given that idea away some time ago. It's about giving you an opportunity to say what you want to say about it, and then we'll make a decision about what goes in the survey. And then, you know, it will be - if employers then decide looking at it they don't want to distribute it, well that's their decision too.

PN78

MR RIZZO: Your Honour, it's Mr Rizzo here. Look, I suppose that we keep gender in for obvious reasons, and I support the comment you made a moment ago about having a lead‑in to question 8 about who initiated the working from home.

PN79

MR FERGUSON: Just on the initiative, just for what it's worth in your deliberations, your Honour, we have thought about it and our view probably was that wasn't really a priority, partly because I'm not sure that in practice it's clearly at one party's initiative or the other; I suspect especially in the circumstances of the pandemic, these things have sort of evolved somewhat, and it might be difficult to tackle that. To us it just didn't seem to be the driving consideration given that the arrangements had to be by agreement ultimately anyway, but you know, that just is what it is and we're looking at the totality of questions.

PN80

JUSTICE ROSS: In any event, I have also taken account of Mr Izzo's observation that it's an important question that should go in. Yes, all right. Look, Mr Izzo, you then frame questions 8 and 9, which, look, from my perspective at least do provide some context for the decision and do provide some valuable information. What are the views of the other parties about those questions, either the way they're framed or whether you have them at all?

PN81

MR IZZO: Silence is generally support, isn't it?

PN82

MR FERGUSON: Yes, I think, your Honour, to provide some guidance, I'm just not sure whether employees can always answer those questions, but it might be the best information we have.

PN83

JUSTICE ROSS: Well, if they can't they will tick "not sure", won't they.

PN84

MR FERGUSON: Yes, but look, the employee survey might provide the other side of the coin.

PN85

JUSTICE ROSS: Yes, absolutely.

PN86

MR RIZZO: I think I would generally support those two questions, your Honour.

PN87

JUSTICE ROSS: Okay. We have got - then we go to question 9. I'll deal with the ASU's risk assessment proposition in a minute. I think the other suggestions by ACCI and Ai Group on the face of it seem sensible. It's either talking about an allowance or reimbursement of costs, or an existing laptop or computer being transferred - well I suppose that should be "from work" - "from their usual place of work to the home." Just dealing with that for the moment before we come to the risk assessment proposition, is there any particular opposition to any of those suggested changes? No? Can I go to the risk assessment? Mr Rizzo, can I give you my frank assessment of the problem, and then you can give some consideration to whether this might be better included in an employee's survey, though there would be limitations about that as well. It could ask, you know, to the best of the employee's knowledge, was any risk assessment survey conducted or were they aware of it. But let's assume for a moment we ask the question: was a risk assessment undertaken. I think I can almost predict that almost 100 per cent of employer respondents would tick yes to that, and it doesn't really tell us anything about what sort of assessment, by whom, and in order to get any meaningful assessment of that I think you would have to ask - you would have to almost devote half the survey to asking that question, and at the end of the day, let's assume the answer comes back no, they didn't, well what does that mean? That you can't have any working from home? People can work from home now without any award change within the span of hours. I'm just not sure, you know, and I'm just not sure what we could do; you know, you should be at liberty to put it as a question in an employee's survey certainly. You can ask whatever you wish to ask about the health and safety of their working arrangements.

PN88

MS ISMAIL: Well, it's an employer responsibility I suppose was the thinking there, and in trying - - -

PN89

JUSTICE ROSS: No, but Sophie, that's exactly why I think they will tick yes, we have.

PN90

MS ISMAIL: Yes.

PN91

JUSTICE ROSS: They're not going to tick no, are they?

PN92

MS ISMAIL: Look, you could be right. Your Honour, I suppose what we're trying to get at is the extent to which some of these costs and risks are sitting on employers or employees, to the extent to which the sort of - the costs and risks versus the productivity benefits are shared evenly, because that's the reasoning behind the inclusion of the question.

PN93

JUSTICE ROSS: I mean, I'm not suggesting that the health and safety issues and workers compensation‑type issues are not important. I'm more wondering about to what extent - well, one, to what extent can they be captured in a minimum award obligation is point one, but the other is I truly just think asking that question - well we'll get the answer and then - well let me go down the track a little bit. Let's assume I'm right - if we ask the question did you undertake any risk assessment before employees worked at home, let's say the answer to that is 100 per cent, and then no doubt the employers will say in the case, well there are no health and safety issues because they've all conducted risk assessments, and then you will say well we don't know anything about the type of risk assessment or the nature of it, and I'm just not sure where it's going to - - -

PN94

MS ISMAIL: The employee survey would give us then the other side of the story, and there might be a point in the middle, your Honour, where the facts lie. I suppose, you know, in terms of the span of hours, the feedback that we have got through the survey and otherwise is that the OH&S consequences of working long hours and changing hours and - we're trying to make sure that that safety angle is in some way - there is some information on which the Commission can make a decision about the impacts of a change that would impact on health and safety of workers.

PN95

JUSTICE ROSS: Sure. Well, I'm not sure I'd be satisfied - speaking for myself - either way based on a tick in a yes or no box to a survey about health and safety considerations.

PN96

MS ISMAIL: We can put in more detail for your Honour.

PN97

JUSTICE ROSS: Ultimately it's also an issue for the employers. I think you had been put on notice of one of the - if you like - lines of opposition will be on a health and safety basis and there is insufficient attention paid to this issue by employers. So you need to think about whether putting a question in may be in your interests as well.

PN98

MR IZZO: Your Honour, if I could respond to that - our position would be somewhat aligned to some of your earlier comments, which is this: I think from the employer perspective, if we're going to get a meaningful understanding of the arrangements in place their level of satisfaction about safety matters, it is entirely its own subject matter which would require quite a significant number of questions and it's a very different focus. It goes back to what we saw as the core purpose point that I raised earlier, which is have working patterns changed, if so how and at whose initiative?

PN99

That's what we saw as the core benefit of surveying employers. I think, Ms Ismail, if there are safety concerns she certainly - it's a matter the unions will likely want to raise. But equally, when we're talking about whether the span should change, I mean, I don't think we're debating whether working from home should occur at all or not at all. The question of risk assessments is relevant to all working from home. So I just think we're now opening an entirely different category of issues for consideration, which is going to make the survey unworkable if we're to explore it properly.

PN100

That's our reason for being quite reluctant to start opening up this topic as well.

PN101

JUSTICE ROSS: Yes.

PN102

MR IZZO: Sorry, one additional comment is unlike the questions about gender and part-time casual, which I already had some concerns about extending the length, they were just qualifying questions, if you like, to try and paint a picture of who is participating in the survey. This is actually a topic of itself so the questions need to be properly formulated, they need to be sufficiently detailed. That just takes a lot more than one question and that is our view.

PN103

MR RIZZO: Your Honour, it's Mr Rizzo here. I appreciate your point that most employers, whether they're complied with OHS requirements or not would probably tick, "Yes", in the box. I suppose again we're looking - it's the theme that we're trying to get a sense of what is happening for the employee on the ground. As Ms Ismail says, this is obviously an obligation of the employer and we're wanting to get a sense over to the employers that this is important and this is something they need to be aware of and comply with.

PN104

MR FERGUSON: Your Honour, from our perspective we would oppose the question. I just don't see the relevance to consideration of working from home hours arrangements. But you contemplated a possibility of short written submissions. If we take a different view on reflection and want a question we would advise in the next day or 24 hours or whatever you had in mind, your Honour. I don't anticipate we will want a question but - - -

PN105

JUSTICE ROSS: Okay.

PN106

MR FERGUSON: - - - (indistinct).

PN107

JUSTICE ROSS: If we go to the next point in dispute, it's about the question regarding a policy about working from home. Ai Group has opposed this on the basis it might identify the employer. Well, no, it wouldn't, because the surveys are anonymous.

PN108

MR FERGUSON: I think our concern there - - -

PN109

JUSTICE ROSS: You won't see the policy.

PN110

MR FERGUSON: Right.

PN111

JUSTICE ROSS: Only we will. We will redact from the policy anything that identifies the name of the employer.

PN112

MR FERGUSON: Yes, and on that point the only thing we would raise for consideration is the practical issue that from our experience, often the name is littered throughout the policy.

PN113

JUSTICE ROSS: That's fine, we can take care of that.

PN114

MR FERGUSON: Yes, yes.

PN115

JUSTICE ROSS: We don't' want to identify any employer individually. That is the overriding - if we find that we can't make sense of a policy, without identifying the employer, then we will simply let you know that one was put in, it was in this category and we're not having regard to it and that would be the end of it.

PN116

MR FERGUSON: You would understand our concern - - -

PN117

JUSTICE ROSS: No, no, absolutely, yes.

PN118

MR FERGUSON: The only other issue, which I think was actually answered by the question, is we anticipated that in some context, being able to forward it might be difficult. As long as the survey is constructed so that this is just a request to do it if possible, rather than a barrier to moving to the next question, which I think is what the comments says - - -

PN119

JUSTICE ROSS: No, it won't be a barrier. It's not (indistinct) in that sense.

PN120

MR FERGUSON: I just know that some have it in a form that's hard.

PN121

JUSTICE ROSS: Yes, that's fine. We don't want to create any impediment to them filling it.

PN122

MR IZZO: Your Honour, if I could just contribute at this point - - -

PN123

JUSTICE ROSS: Sure.

PN124

MR IZZO: - - - we had also identified in our submissions a level of concern about this question, specifically about uploading the policy. The first issue was about confidentiality and whether the entity's identity would become known or be revealed and I think your exchange with Mr Ferguson has addressed that in some way. I think there are two other concerns that we have. The first is that the working from home policies - many of them either will have been done before COVID or maybe will have been done after COVID took place. I think there is going to be an issue of - there is going to be a question around their value and their relevance if (a) they were done in an era pre-COVID, then they might not actually be relevant to what's going on right now so they won't necessarily reveal what is actually happening or if they have been done during COVID, these policies, then they might demonstrate what employers are willing to do now or are doing now but not necessarily on a permanent basis. So we did have a concern that trying to ascertain what employers are doing in terms of working from home arrangements from a policy document - whilst that is usually a pretty good guide, we're not sure about the value it would provide given the significant shift that happened in the last six months and the question will be, what period is the policy reflecting?

PN125

So we had that level of concern as well. We had a level of concern it would affect response rates and certainly we wouldn't want progressing through the survey to be conditional on uploading it. I think that's been addressed by your exchange with Mr Ferguson. But we really do have some concern about what inferences are going to be able to be drawn, depending on when the policy was made.

PN126

JUSTICE ROSS: It won't stop them completing the rest. We can frame it as a - "It would be appreciate if you could provide a copy of the policy; if you are prepared to do so please send it to this email." If any of the issues that - we'll wait and see what we get. I think you're anticipating - without seeing them you're a bit anxious about some of them might want to go further than you might want to go and some of them might be unhelpful for a particular - well, that's a risk with anything. It's really to see - speaking for myself I'm more interested in the subject matter they cover rather than the content, if I can put it that way, you know?

PN127

MR FERGUSON: I think, your Honour - we are comforted by the fact the Commission is going to do some of the analysis perhaps. But we anticipate along the lines of Mr Izzo that they might have been framed at a different time and do not reflect what people do now, given (indistinct) working from home. But we just see what we get, I suppose.

PN128

JUSTICE ROSS: Ultimately it would also be open to us to send them a question asking them just that.

PN129

MR FERGUSON: Yes.

PN130

JUSTICE ROSS: So we can seek to clarify because we'll actually have the matched email and policy. You won't.

PN131

MR FERGUSON: Yes.

PN132

JUSTICE ROSS: I think we need to see what we get before we sort of leap to looking at some of the complexities. I accept that there may be the complexities that you've raised. But I think there is a way of addressing them and for the moment, let's just see where we land before we leap to what we might do next.

PN133

MR FERGUSON: I might say, we're very comforted if it's put in that sort of genuine request-type language that you used. I think also if there is an assurance given that it will be used for the Commission's purposes only and not distributed to third parties, you will get more.

PN134

JUSTICE ROSS: Yes. I agree with that. I think the next (indistinct) was - this is also a proposition that we had given some consideration to, Mr Ferguson, and that is around paragraph 13, that it's asking the question of how many employees are regularly working and it's seeking to band them by descriptors: all of them, most of them, some, none or don't know.

PN135

MR FERGUSON: We grappled with it because obviously there is more utility in getting the more precise numbers but put against that, we see the high likelihood that the survey participant just won't know precisely - without going on some significant task - that information. I thought one way was first to ask a question about how many have got people working outside or within the expanded hours, just in a general sense; so you at least picked up who was using that flexibility. Then you either go (indistinct) or you ask for the precise numbers. In the end we landed on the proposition that it is going to be very difficult for people to give the exact numbers.

PN136

There was a risk that - if it was struck as an impediment to getting to the next question, that you get a high drop-out rate.

PN137

JUSTICE ROSS: Yes.

PN138

MR FERGUSON: Maybe if you put it at the end, that you just don't get that answer and then so be it. If you picked up the more general answer - but we landed on the more general response but it does undermine the utility.

PN139

JUSTICE ROSS: Yes. Mr Izzo, is there anything you want to say about this?

PN140

MR IZZO: There is one thing that I actually have only noticed now that I don't think we identified in our submissions, and I'm just wondering whether the word might skew the responses. The questions - and it's in both Mr Ferguson's drafting as well as the Commission's original drafting - it talks about how many are regularly starting before 7 am and how many are regularly finishing after 10, 11, et cetera. I just wonder, particularly if we're talking about the prevalence of people working after particular hours and if we're going to move to some, none, many, most, et cetera, I wonder whether the word, "regularly", should really be there, because I think from our perspective, what we're trying to identify is do we have a prevalence of people working for their own reasons or at the employer's initiative or for whatever reason outside the usual span, and particularly if we're going to move to some, none, many, something like that.

PN141

I think putting, "regularly", in there might set too high a bar to try and find out when this type of pattern of work is occurring. I think I would actually advocate for, "regularly", being removed but you would probably get a sense of how many are doing it if you have those more general descriptors, as Mr Ferguson had suggested.

PN142

MR FERGUSON: I took, "regularly", out of the preceding question so you catch the more ad hoc arrangements. I mean, I agree with you, Mr Izzo. We thought there was value in capturing just how many people have used it, regardless of how frequently they're using it. But the way I thought about doing it is asking that more general question first and then drilling down for the, "regularly", point. Both have value.

PN143

MR RIZZO: Your Honour, it's Mr Rizzo here from the ASU. We support questions 12 and 13 as originally planned by the Commission. I'm not sure that we're helped by the suggestions by the employer associations.

PN144

JUSTICE ROSS: Okay. Well, it is a balance, as Mr Ferguson said. As presently framed they provide more detail. But you run a risk of the person not knowing with precision what the numbers are.

PN145

MR FERGUSON: I don't know whether it could be framed this way but what our intention had been was to ask a more general question first and then move into the more specific in the hope that if the person didn't know the answer they could move on.

PN146

JUSTICE ROSS: Yes, but asking the question, "Have any worked before 7", doesn't really tell us anything because it could be one person on one occasion, couldn't it?

PN147

MR FERGUSON: I get that. Of course if there are many thousands of employers that have let a person on - I understand what you're saying, your Honour. It's that balancing act. But we didn't want to preclude people using it from time to time being caught by this because it's not being used every week. I mean, even if it's only being used from time to time that's quite important flexibility in the context of the pandemic.

PN148

MR IZZO: That's the issue I'm trying to grapple with, your Honour, is let's say you've got an organisation with 200 employees. If only one person has used it once, then it's not of significant interest to the Commission. There are things that happen on the fringes all the time. If lots of people have used it occasionally, that is still something of relevance to both the unions and the employer parties. They don't need to be the same people using it regularly for it to be a matter that's relevant to the award safety net. So maybe, "regularly", is the wrong word. There's other words we can look at - "commonly" - and perhaps this is something we may need 24 hours to come back to you on.

PN149

JUSTICE ROSS: Yes.

PN150

MR RIZZO: But I'm just trying to get a sense that - - -

PN151

JUSTICE ROSS: All right. No, I think that is something to come back on. I must submit I'm more attracted to "commonly" rather than just deleting "regularly." I think you need something that shows a sense of consistency rather than a once in six month type of proposition, and I'm not on the face of it attracted to the lead‑in words which ask, "Have any of your employees worked before 7", because I just don't think - as Mr Izzo says, if you've got 200 employees and during this period of five or six months we've had one work before 7, it just tells you that yes, we have had some work and it has been one, and I don't know what it adds - - -

PN152

MR RIZZO: No.

PN153

JUSTICE ROSS: - - - to later questions, that's all. I think the two are related. And as for the "almost none" versus the more prescriptive - it gets a bit more complicated when you're looking at the 10 pm, 9 pm and 8 pm questions to put that - I understand what you're seeking to do. It may be here that there is that further note going in, you know, to estimate and do the best you can on the basis of what you know, and we just have to accept that that's the case. But have a think about both of those, everybody, and there will be an opportunity to come back both on the language of "regularly" and sort of the architecture. I appreciate what you have sought to do in relation to question 13 about the working before 7 am, Mr Ferguson. It's just it becomes quite complicated when you try and do it with the other question about the evening hours.

PN154

MR FERGUSON: I get it. I grappled with the fact that you might end up with people just putting "some" for everything.

PN155

JUSTICE ROSS: Yes.

PN156

MR FERGUSON: You may well think about it, but I didn't want such an extreme position where you only - you know, you only capture the "regularly."

PN157

JUSTICE ROSS: No, I think that's how we can - we can think about the word, "regularly." And then as for the future working from home arrangements, this is ACCI's suggestion - did you want to say anything about that, Mr Izzo?

PN158

MR IZZO: I did, your Honour. These matters are matters that are important to ACCI, because we envisage, just on some of the discussions we've had with the union parties in the past, that there might be some push at some point to look at requests for working from home and things like that, and it's very important to ACCI that it surveys its membership about these matters. Because we are undertaking this survey in cooperation with the Commission, it really defeats the opportunity to go out to the membership again in this similar timeframe. So for us, we want these matters appended to this, because it's something we were always going to do, and we're kind of losing the opportunity to survey our membership about these types of things because we're participating in the Commission's process.

PN159

JUSTICE ROSS: Yes.

PN160

MR IZZO: That's why we want to add these things.

PN161

JUSTICE ROSS: Yes, I follow, and there may be issues that if the employee survey - the ASU wants to add, to get a feel from its members about particular issues as well, and given - if that's the price of cooperation, Mr Izzo, so be it. I understand that you - - -

PN162

MR IZZO: It wasn't put as a threat, your Honour, but - - -

PN163

JUSTICE ROSS: No. But I understand you wouldn't want to be putting out two surveys on the same subject area at the same time.

PN164

MR RIZZO: Your Honour, Mr Rizzo here. The ASU actually supports questions 14 to 16. It actually goes to what our submission said about having a look at working from home post‑COVID, and having a look at it in a more longitudinal sense. So we think they're good questions.

PN165

JUSTICE ROSS: Okay. Do you want to dare to disagree, Mr Ferguson, or are you content to go with Mr Rizzo?

PN166

MR FERGUSON: I'm content to go with Mr Rizzo. I just note that we would welcome the opportunity to frame up any survey of employees and be involved in that process if we can.

PN167

MR RIZZO: No, mate, sure.

PN168

JUSTICE ROSS: Well, look, so I think there should be an opportunity for the parties to reflect on the discussion and to make whatever additional comments that they wish to make about this survey. I think we can, Mr Izzo, provide - I say "we;" it will be one of the other Commission members - staff members that are on the line - can have a go at providing you with some similar questions that provide the context and lead‑in questions, if you like, to employees, and then you would need to add whatever else you wish to ask of them, or you can try and get back to you. In terms of this survey, can I suggest if you - well does this work, that you provide any comments, any further comments you wish to make, by 12 noon this Thursday. We will then send around a composite document with the idea of having a conference at 12 noon on Friday. Now, that employer survey, as I said, Mr Izzo, we'll provide you with the sort of template, similar sort of look document, et cetera.

PN169

MR IZZO: Yes.

PN170

JUSTICE ROSS: And we would offer the same thing, that we can provide the covering note that would go with them; you would then administer the survey; the results would come to us, and we would provide a report. In saying that, let me make it very clear that you don't need to do it through us, and you can provide - each party can do whatever it wants about getting whatever evidence it wants to inform the proceedings, and that's really to you, Ms Ismail. If the ACTU has done a survey and elicited some material, you should of course feel free to advance that in the proceedings. I think, Mr Izzo, the benefit of this process is, whilst it may not result in agreement from the employers about each and every question that you're asking or you would propose to ask in a survey, at least you would have the benefit of their input into that process.

PN171

MR IZZO: Yes.

PN172

JUSTICE ROSS: In any event, the circulation of either the survey that's in front of us today or a similar employee survey is without prejudice to any party's capacity to say what they wish to say about the survey and the results when they're available.

PN173

MR RIZZO: Your Honour, could I make two comments about that?

PN174

JUSTICE ROSS: Sure.

PN175

MR RIZZO: One about the employee survey. Can I take that on notice?

PN176

JUSTICE ROSS: Sure.

PN177

MR RIZZO: Because I need to discuss that with Sophie and the ASU people as well and come back to you by 12 o'clock on Thursday on that question.

PN178

JUSTICE ROSS: Yes.

PN179

MR RIZZO: And secondly, before I forget, your Honour, and before we terminate the conference, I just want to take you back to the comment you made in the introduction about the employers providing a short summary of how they will conduct the survey.

PN180

JUSTICE ROSS: Yes.

PN181

MR RIZZO: That is very useful to us and it goes to the heart of our submission, and I was just reminding your Honour about that so we don't forget that point.

PN182

JUSTICE ROSS: Yes. No, no problem. And look, Mr Ferguson and Mr Izzo can give some thought to that. It has been done in other proceedings. It's simply a short statement by whoever administered it indicating this is what they did: they sent it out; they didn't attach, you know, some suggestive materials about what the answers might be or anything of that nature. It's just a sent out on this day, we sent the link, here was the email, it was sent to X number of employers, and that's pretty much the end of it, because the results automatically come to the tribunal, not to the employer organisation.

PN183

MR FERGUSON: Yes, your Honour. Ultimately we've done similar things like that and we'll give thought to it. I mean, I say this generally; we don't want unnecessarily to put employees in the box and cause too much stress to people in relation to something that shouldn't bear contentious issues. We would hope that we could work with the unions to work through our processes to make sure that they're not going to take issue with them unnecessarily.

PN184

JUSTICE ROSS: Yes. In the event that the - in the normal course, if the short statement doesn't answer all the questions, the unions can put the questions and the employee can provide the answer and we can sort it out that way.

PN185

MR FERGUSON: Yes. You would understand, putting employees - - -

PN186

JUSTICE ROSS: No. No, look, most of these things have been resolved in the past by clarifications being sought, and then it has been given and that's the end of it. I don't have any desire to have, you know - well, in ACCI's case each state chamber representative. So I don't really want 10 witnesses being cross‑examined about when they sent it out. I'm sure it can be worked out between the parties.

PN187

MR FERGUSON: Yes, that's all I was trying to say. If there's any (indistinct) - - -

PN188

JUSTICE ROSS: I think - yes. But I think Mr Izzo raises a valuable point. I mean we're all going to want to know how many people was it sent to; we're going to want to know that the attached email and the link was sent and that was the only communication about the survey.

PN189

MR FERGUSON: Yes.

PN190

JUSTICE ROSS: All right. Is everyone clear about the timeline? You will provide further comment in relation to the document and reflections on what we've discussed by 12 noon this Thursday, and then we'll have a further conference at 12 noon this Friday, and then I'll discuss with my colleagues where we're up to and we'll finalise a survey form and email and send that - or let the parties know what that is on Monday or Tuesday of next week.

PN191

MR RIZZO: Your Honour, I have a request if possible. That midday conference on Friday, is it possible to have it at 1 o'clock instead of midday?

PN192

JUSTICE ROSS: It's fine with me. Is everyone else okay with that?

PN193

MR FERGUSON: That's fine.

PN194

JUSTICE ROSS: All right. So we'll do 1 pm on Friday. Anything else? No?

PN195

MR FERGUSON: No.

PN196

JUSTICE ROSS: Thanks very much for your attendance.

ADJOURNED UNTIL FRIDAY, 30 OCTOBER 2020 [1.03 PM]