PN1

JUSTICE ROSS: Good morning, can I just go through the appearances? I have for the applicants Mr Ferguson for Ai Group, for ACCI Mr Izzo and Ms Lawrence, for the ASU Mr Rizzo and for the ACTU Ms Ismail. Have I missed anyone?

PN2

Can everybody hear me?

PN3

MR FERGUSON: Yes, your Honour.

PN4

MR IZZO: Yes, your Honour.

PN5

JUSTICE ROSS: Did you hear me going through the appearances?

PN6

MR IZZO: Yes.

PN7

JUSTICE ROSS: Yes, all right. I'm not sure where it went back to mute but I was indicating that we had contacted or my chambers had contacted Ms Thackeray of Flight Training Adelaide and we had communicated Mr Rizzo's request to her but we've not received any reply to the email. We've tried to contact her by telephone this morning but there was no reply, so I'm just proposing to proceed on the basis that they've not requested an opportunity for anything to be heard. We received correspondence from Mr Ferguson yesterday afternoon indicating that there had been discussions between the applicants, the ASU and ACTU and that those parties have agreed that the schedule should be extended to 30 November this year, and the applicants have filed an amended draft determination to reflect that egregious issue. That was filed about 6 o'clock last night. The letter was filed a little earlier.

PN8

We are also told that there is a single point of contention between the parties and that is (indistinct) schedule clause I.2.1, that deals with the spread of ordinary hours for those employees working from home by agreement with their employer. The current schedule provides that the spread Monday to Friday shall be between 6 am and 6 pm and as I understand it the ACTU and ASU contend that that be amended so that the spread is from 6 am to 9 pm.

PN9

Can I just get everyone to confirm that's the current position. If I can hear from the applicants first then from the ACTU and ASU and then we'll go to the issue in contest. So for the applicants either Ai Group or ACCI?

PN10

MR FERGUSON: Yes, your Honour, it's Mr Ferguson. That reflects our understanding of the position.

PN11

JUSTICE ROSS: All right. Mr Izzo or Ms Ismail?

PN12

MR IZZO: Your Honour, Mr Izzo here, yes, that also reflects our understanding.

PN13

JUSTICE ROSS: Well then how do you want to proceed? Do the parties wish to say anything other than the material that's already been filed in attachment B to the original application in support of the extension. We could simply take that as a submission in support of the extension to 30 November rather than 29 March this year. So at least from - speaking for myself, I don't think I need to hear anything further about the extension to 30 November unless you wish to say something about that. What I do want to hear about though is the issue in contest and the arguments for the retention of the spread to 10 pm and the arguments for the change in the spread to 9 pm. The parties might recall that the spread was originally to 11 pm, that was altered in the first extension application and at that point it was brought back to 10 pm. How do you want to proceed, Mr Ferguson, perhaps if you could indicate and then I'll see whether anyone has a contrary view.

PN14

MR FERGUSON: We're largely content to rely on the material that we've advanced but I think Mr Rizzo might have wanted to put some brief comments on. It might be prudent just to check with him.

PN15

MR IZZO: Your Honour, Mr Izzo here. We had intended to address the Commission in relation to the basis for retaining the extension to a span of hours (indistinct) 10 pm. So we'd be content to advance reasons as to why it should be extended to 10 pm and to have the union address that matter as well. Given that we are the applicants in a sense for the extension of the schedule I have no difficulty with us outlining the basis as to why we say the span of hours clause should retain the reference to 10 pm and advancing the grounds for that, and if the ASU wish to respond to that they can. Then if there's anything in reply we may seek an opportunity but we'd be happy to proceed on that basis.

PN16

JUSTICE ROSS: All right. Does anyone oppose that suggestion, Mr Rizzo or Ms Ismail?

PN17

MR RIZZO: No from Mr Rizzo, your Honour.

PN18

MS ISMAIL: No, that sounds like a sensible way forward, thank you, your Honour.

PN19

JUSTICE ROSS: Thanks, Ms Ismail. Mr Izzo, over to you.

PN20

MR IZZO: Just before I do, your Honour. I just noted, I think I saw Clancy DP was listed on here - - -

PN21

JUSTICE ROSS: He is, he's sitting in Sydney.

PN22

MR IZZO: Okay, I apologise because I saw a reference to his name and I thought he may have fallen off the Teams, but obviously that's not the case so - - -

PN23

JUSTICE ROSS: No, we're just having trouble with some feedback between our two laptops but he can hear everything that everyone's saying from my speakers.

PN24

MR IZZO: Okay, thank you, your Honour. Your Honour, the dispute that is currently before the Commission is really that one matter as you've identified and that is that if the extension to the schedule is granted as the parties have consented to today, in relation to clause I.2.1, should the span of hours for employees who request to work from home and request to have a different span retain an ability to have that span extended to 10 pm or should it as the ASU contend be limited to a span to 9 pm?

PN25

On first glance I thought that the Commission might be intrigued as to why the parties can't reach an agreement when the difference between us appears to be a mere single hour and one might view, initially one might think that the difference or the nature of the dispute is trivial in nature. For our part it's certainly not a trivial matter. We see this as a critical issue that goes to the very purpose and effectiveness of clause I.2.1 and we believe the utility and value of clause I.2.1 will be substantially negated if the ASU's proposed amendment to the clause is made by the Commission.

PN26

To explain the employer position I'd like to address four matters. The first is the purpose of clause I.2.1 and why the extended span of hours was sought and introduced in the first place. I'd then like to point out that that purpose remains extremely relevant today, it is not dissipated. I'd then like to identify how the purpose of the clause is compromised substantially if the ASU amendment were to be accepted, and then I'd finally like to make some very brief comments about the regulatory framework and how the proposed clause aligns with the regulatory framework that the Commission needs to follow in relation to variations to modern awards.

PN27

So if I could start with the first matter and that is the purpose of clause I.2.1. Self-evidently it is to facilitate employee requests and preferences pertaining to working from home. The Bench may recall at the outset of the pandemic there was what one might determine an exodus of employees from offices as large number of office based workers moved home. At the same time, workers found themselves with increased personal commitments. They were particularly derived from home schooling. We had a number of states where universally for a period of time there was an experience that school children had to move to remote learning. That was certainly the case in New South Wales, Queensland and Victoria and likely was also the case in some other states.

PN28

In April when the clause was first negotiated and inserted it became apparent that many employees effectively required a period of time off during what would otherwise be their normal working hours to attend to new personal commitments that just had not arisen before and clause I.2.1 enabled these employees to shift their patterns of work during the day to meet these new commitments but still enabled them to complete the work that they would usually have to do by starting earlier or working later. What the clause did was it provided a very quick and smooth mechanism for employers to help facilitate and accommodate this employee preference for changed hours of work.

PN29

Without clause I.2.1, many employers could have quite legitimately and understandably refused the request to shift one's working arrangements because any makeup time, if I can call it that, might have had to have been performed at times that would have encountered additional penalties, and it may have been quite unattractive for employers to accommodate these new requests that were coming up due to very new personal circumstances that did not exist before. So the way we view clause I.2.1 was it prevented the award as it is currently drafted from becoming a bar to sensible, flexible agreements in response to the unfolding crisis. That was the purpose of the clause.

PN30

That purpose is still relevant today and I think there may be some conjecture as to how much it may be needed but it's still relevant for two reasons. Firstly, employees are still working from home in numbers previously not seen and secondly, there is still an increased need for flexibilities arising from personal commitments that have not been experienced before COVID-19.

PN31

If I could start with the prevalence of working from home, we filed on Friday, your Honours, 12 exhibits and we actually filed with those exhibits an outline that set out the various sections of the exhibits that we relied upon and why we relied upon them, and I don't propose to repeat that but I do draw your attention to the fact that the outline calls out that many of the exhibits identify the prevalence of working from home.

PN32

If I can highlight a couple of key evidentiary items. Exhibit 1 is the household impacts of COVID-19 survey that was conducted by the ABS in August 2020, so it is quite recent and in that survey on page 7 some pretty startling statistics are identified. In particular, 55 per cent of Australians with jobs attended their workplaces in the week that was surveyed from 7 August, so that means 45 per cent of Australians did not go into the workplace in the relevant week. The number drops substantially for Victorians, only 29 per cent of Victorians attended the workplace in that relevant week and 33 per cent of the country indicated that they are now attending the workplace less often. They are some key matters from exhibit 1 which point towards a large shift in working from home.

PN33

Exhibit 9 is a Roy Morgan survey that was conducted on 30 June. Again, relatively recent and more recent than some earlier Roy Morgan evidence that was relied upon in a previous proceedings relating to this COVID schedule. This survey identifies by reference to the industry the prevalence of working from home and there's some interesting numbers. For instance, if you look at the finance and insurance industries and the public administration industry you've got numbers like 58 per cent of employees working from home or 51 per cent in public administration.

PN34

These are industries where there are many clerical workers and it shows an extraordinary number compared to what might have previously been experienced.

PN35

JUSTICE ROSS: I might just go to that for a moment, Mr Izzo. Of course the Private Sector Clerical Award doesn't apply to those in public administration. Does it apply to those in finance and insurance?

PN36

MR IZZO: So the Banking Finance and Insurance Award will apply to a large number of finance and insurance companies potentially, according to its coverage terms. I think in terms of the loose terminology that's been used, I don't think this is necessarily linked to ABS statistics, I think it's - I suspect people were just asked to self-nominate their industry. There could well be finance and insurance type companies that would still employ clerical workers. I'll give you an example. You might have an accounting firm not covered by the BFI Award that would still employ clerical workers. You might have - in public administration in the public sector most of those employees would be covered by a public sector award. I'm not sure, I would have thought it's possible if there is any entity that is performing quasi public work that doesn't necessarily fall specifically in the modern award that covers that work, you might still have occupational coverage. As you know, your Honour, even if businesses are award‑free due to the nature of the work they conduct, any clerical workers will be caught by occupational coverage. I suspect it's still possible that we will have clerical workers in those industries.

PN37

The next industry that is mentioned is communication broadly. Again, there will be some employees in that industry that are covered by a specific telecommunications award, but that award is very specific in terms of licensed telecommunication providers and there are still going to be people who consider themselves in that industry who won't be caught by that modern award. Again you'll get the occupational coverage of the Clerks Award stepping in. I don't think that in the industries as named - I don't think it's the case that the Clerks Award would not apply at all.

PN38

The contrast - and I'm going to come back to this - you will see there are certain industries with very low numbers of working from home; retail, agriculture. That's to be expected and I'll come back to that later, because I think it helps to understand the national statistics and what the spread is. At least if you take office based working environments - which the finance industry and the public administration industry are symptomatic of or representative of - it's there you would have very large numbers in those office space working environments.

PN39

That has been reinforced, your Honour, on a more global scale, I believe, when Morgan research talks about metropolitan areas. Unsurprisingly, you are going to have a level of greater office based working in Sydney, Melbourne, Brisbane. The number of people working from home in Sydney they had 40 per cent; Melbourne was effectively the same number, 39 per cent. In the ACT was a much higher number, it was closer to 50 per cent. I think it was 48 per cent. What we're seeing is in the white collar or the office based environment‑type segment it's a very large number, so we see that as a good demonstration of the fact that working from home remains prevalent.

PN40

The third exhibit I would like to refer to in particular, and which has also received focus from the ASU, is exhibit 11. That is the business impacts of COVID‑19 survey. It's also referred to in the Fair Work Commission's information note that was published in advance of today's hearing. On page 3 of that exhibit there is a reference to tele‑working and how many people are now tele‑working. I apologise in that - obviously the hearing has been called on relatively urgently - I struggle to exactly understand specifically what the recipients understood was meant by tele‑working from the survey, but I have assumed, and I think it is reasonable to assume, that it incorporates, broadly speaking, people working from home remotely.

PN41

In the survey it demonstrated that the number of people who said they are now tele‑working is 43 per cent. The ASU has said, well, that's not necessarily a significant number because it's only a 15 per cent increase on the pre‑COVID statistic. Well, there are probably two things I would say in response to that. Firstly, we think 43 per cent is still a very large percentage across all industries and that's something that the Commission should take note of.

PN42

What we need to remember, as I just pointed out earlier, is that in some industries work from home is not possible; retail, agriculture, manufacturing, as well. To have a global statistic of 43 per cent clearly indicates that some industries have a much higher number than that to offset those industries where it would naturally be low. Retail is a good example. It's a very large employer and one where work can't be done from home, so we think 43 is a very large number when it's across all industries and reinforces a large prevalence of working from home. As I said, your Honours, there are other statistics that we have referred to in our outline and we refer to them, but they are some of the key ones.

PN43

The other thing to bear in mind is that there are still public health orders in place in Victoria and New South Wales that mandate a level of working from home. In Victoria I understand there are still difficulties in working in a workplace without permits or without a level of authorisation for very specific industries. In New South Wales all employers are required to allow employees to work from home unless it is not practical to do so. That public health order, the most recent one, was updated on 25 September of this year, so it is very recent and still clearly from the public health order perspective there remains a strong influence or trigger to prompt working from home.

PN44

All these matters, in short, demonstrate that working from home is taking place very substantially, particularly for office based workers which are of course the workers that would be the kind subject to the Clerks Award. That's the first point that we would like to make about the purpose still being relevant. The next point is it's not just the people are working from home, there is still a new level of need for personal flexibility that did not exist before COVID‑19. The first example relates to school closures.

PN45

In Victoria the ability to learn on site is still restricted. Now, this is demonstrated by the materials filed by the ASU. Both attachment 1 and attachment 2 of the materials filed by the ASU go to this point and identify the limits in place, particularly in Victoria. Just for your reference, Victoria is dealt with in attachment 2 at page 8 through to page 12. It talks about the fact that there is a staged road map - I believe is the common term used now for this. There is a staged road map for exit and currently there are large groups not working from home.

PN46

This is also evident in attachment 1 and page 4 of attachment 1 sets out a first step and a second step out of close‑down. What is really demonstrates is that there will be a shift to start to bring year 12 schoolchildren, there is a shift to start to bring primary schoolchildren back to school and that will hopefully start to commence from 5 and 12 October; but there is still no specific date for schoolchildren from years 7 to 10.

PN47

Years 7 to 10 are yet to return and whilst there is a hope to do so, there is no specific planned date for that to happen on at least a currently known date. What that demonstrates is that we're still going to have employees grappling with the fact that they are to assist and to help children learn in a way that has never happened before, in the home.

PN48

In the other states I accept that schools have generally returned to the school premises, but it's still the case that we will have regular, sporadic closures in various sites when hotspots or clusters emerge. That has been the experience in New South Wales over the past two or three months in particular. You will get a cluster that comes up at a particular site, the school closes for a few days, is deep cleaned and children end up back at home. It's not that these other states outside of Victoria do not have children at home. They do, just on a more sporadic basis. That is the first element where personal commitments of employees has changed markedly.

PN49

There is another element though that is consistent across the country and that relates to students using public transport. Now, we were unable to identify statistics particularly pertaining to students, but we filed on Friday exhibit 12 which talks about public transport usage more generally. What exhibit 12 identifies is that for the population as a whole there has been a substantial drop in public transport utilisation.

PN50

Page 12 of exhibit 12 identifies a 37 per cent drop in public transport patronage in Brisbane, a 38 per cent drop in Sydney and an 81 per cent drop in Melbourne. That is from the period from the beginning of the year to 17 July. There are, however, in this survey additional statistics pertaining to drops in public transport usage for April - no, that's April, too, that's a bit earlier. Just April, but on page 2 it has the whole period identified.

PN51

It's quite self‑evident, we think, what the reasons for this is; persons feel less comfortable travelling on public transport due to concerns about catching COVID‑19. They are also trying to comply with social distancing requirements which means less people can be on public transport, which makes it a less attractive form of transport. Those two factors are driving a significant drop in patronage which we say would naturally involve schoolchildren, as well.

PN52

What that means is - and we say the Commission should accept this as being uncontroversial - there has been an increased utilisation of driving and employees in many cases may well have additional obligations during the working day in terms of getting their children from the home to the school and back home again. That is going to be happening in a much larger way that was not happening before. Again, that means there are new commitments on their time that didn't exist previously.

PN53

There is a final feature of personal commitment that arises. We say that is self‑evident and may not have arisen when people were not working at home as extensively. That just relates to the personal activities that can be performed at home that could not be performed in the workplace. Activities like shopping, laundry, administrative errands that one can't do at work, they now become available to be done in the home at times that people were previously detached from the locations where those activities were performed. Employees have the ability and in some case the desire to perform these tasks at times when they might traditionally have worked.

PN54

I think that's also something that the Commission can have regard to even if it may not be as pressing as the first two issues, which is the fact that some school students are learning at home, the fact that some parents are needing to transport children to and from school. All three of these features, we say, demonstrates there is still a high level of personal demand on employees' time whilst working from home and demonstrates that the original purpose of the clause - which is to ensure that the award does not act as a bar to an employer accommodating personal flexibilities - that original purpose remains necessary and relevant today. That was the second point we wished to really demonstrate to the Commission.

PN55

The third matter I wish to address is that this purpose is compromised by the ASU amendment, if I can call it that. That is the amendment of the span of hours in clause I.2.1 to move it down to 9 pm instead of 10 pm. The reason that the purpose is substantially comprised is that it takes a large chunk out of one of the key periods of what I might describe as make‑up time for an employee who has decided to miss part of the working day earlier. That is, namely, night‑time working. This is particularly problematic for parents of young children. As a parent of a young child myself, I can confirm that the hours of 5.30 pm to 7.30 pm are entirely unconducive to work. These hours are consumed with feeding children, bathing children, bedtime, and they are all demanding activities that require significant attention.

PN56

For those employees that have young children, the notion that they are going to be productive between 5.30 and 7.30 is a pipedream at best for many of them. And so what it means is that those times just – they're not going to be any break they've taken during the day. It's difficult to make it up during that twilight period. Once a parent has actually fed themselves as well, it's quite – we say the Commission should accept it as a given, that's quite possible or probable that the parent might not be in a position to recommence working until about 8 pm at night.

PN57

Under the ASU proposal, this gives them one solitary hour before penalties apply. And what we say is, that's just far too rigid and inflexible. And if a parent has missed part of their day, because they're assisting with learning, because they're travelling and transporting children to and from school, whatever it might be, the limitation to one key night-time working hour in addition might not allow relevant tasks to be completed.

PN58

It might just mean that there's just not enough time to do anything meaningful, and so the benefit associated with seeking flexibility is lost. By extending the spread to 10 pm would ensure that employees at least get a substantive period of make-up work, make-up time, or night-time working, to catch up on work that they have decided to miss earlier in the day, post their evening meal or whatever it is they do to feed themselves, what 99 per cent of the population do, which is have dinner at some point.

PN59

So if we are to genuinely allow employees to accommodate personal commitments during the day, we need to give them a fair window to actually make up the time later. And particularly for young parents, we say the ASU proposal is not going to provide a meaningful opportunity to do that, because the time frame is too narrow post the evening meal, so that it loses its point. And if it loses its point, then we say, what are we actually doing here? Does this clause of the schedule have relevance, if it's not going to have a level of utility? And so that's why we urge the Commission to maintain the 10 pm extended span.

PN60

And the final point that I wish to address is the regulatory framework. It's uncontroversial; you will have heard this – I was going to say a million times before – probably not, you Honour; maybe a thousand times before. The Commission is governed by section 134, 138, in exercising its functions under this part of the Fair Work Act. I was initially going to deal with the consent position.

PN61

I think I can broadly take it as a given that we've had two previous decisions on the matters that are by consent. Evidence has been filed in support. These are temporary changes in response to extraordinary circumstances, and, given the consent, we assume that the passage of the matters that are not disputed should be approved without any level of concern or hesitancy by the Commission.

PN62

In relation to the span of hours, and how the regulatory framework fits in, I note there is also consent to extend this part of the schedule. The dispute is just on the precise hour to be adopted. We accept that an evidentiary case should be put forward when shifting the safety net, the underlying safety net being that there is a span from 7 until 7. But we contend that we have filed materials directly in support of the factual assertions that have been made today.

PN63

Furthermore, the Full Bench has previously accepted in a previous hearing in relation to this schedule that where variations sought are temporary, and in response to extraordinary circumstances, the nature of the evidentiary burden will be very different to that where a substantive ongoing variation is sought to a modern award. And the reference for that principle is [2020] FWCFB 3443, at 58. So we say that the Commission should bear in mind that the burden that we need to meet does need to be a qualified by the fact that we are only talking about a two-month extension, in extraordinary times.

PN64

Finally, I will very briefly turn to the modern award's objective. We maintain that the maintenance of a 10 pm span furthers the fair and relevant safety net, for the reasons that I've already advanced, and in particular, it serves multiple limbs of section 134. It serves, particularly, 134(1)(d), which talks about the need to promote flexible modern work practices. It furthers the interests of 134(1)(f), which talks about the Commission considering the impact of modern award powers on employment costs and the regulatory burden.

PN65

And the safeguards that are in place are significant, and they further 134(1)(a), which talks to the needs and the living standards of the low paid. The safeguards include a conferral on the Commission of the power to arbitrate any dispute about this clause. The safeguards include the fact that this whole clause is predicated on an employee requesting a change to the span – so it is something that has actually arisen from the employee themselves – and that it operates for a limited duration. For all of those reasons, your Honours, unless there are any questions, that is why we commend the Commission the maintenance of the 10 pm extended span.

PN66

JUSTICE ROSS: All right, thank you, Mr Izzo. Mr Ferguson, did you want to add anything, or is it really a joint submission that's been advanced?

PN67

MR FERGUSON: Yes, your Honour, it is, in essence. We support and endorse the submissions of Mr Izzo, rather than repeating them, other to emphasise, in coming to the heart of the controversy, the Commission should give significant consideration to the safeguards that Mr Izzo has referred to. In our view, they really negate any need to curtail the kind of flexibilities that are available under the clause, and which enable employees to address the kinds of challenges that they are facing in these extraordinary times. But beyond that, we are content to (indistinct) what Mr Izzo - - -

PN68

JUSTICE ROSS: All right, thank you. Mr Rizzo or Ms Ismail?

PN69

MR RIZZO: Yes, your Honour. Mr Michael Rizzo here. Thank you, your Honour, and the Full Bench. Your Honour, there's one thing I definitely agree with Mr Izzo with, and that is that this is not a trivial matter. It's not a trivial matter to the ASU as well, your Honour, this matter of an hour. As the Commission knows, the current award, minus the schedule, the span of hours is between 7 am and 7 pm, which is fairly typical, and you've got a 12-hour span.

PN70

In the first iteration of the schedule, your Honour, in March, the span of hours was expanded between 6 am and 11 pm; in other words, five hours beyond the standard award. Now, I've got to say, your Honour, that at the time, the ASU was very concerned about this. It was probably the issue that was going to lead us not to consent to the application. But given the circumstances at the time, and in the national interest and so forth, we swallowed hard and we accepted it.

PN71

When the subsequent application from the employers came in June, to extend this schedule again, we argued that that span of hours should be reduced, and I think we argued for 9 o'clock at the time. And I think we came to some view that it would be 10 o'clock, and the Commission arbitrated to that effect. On this occasion, we say that - - -

PN72

JUSTICE ROSS: Mr Rizzo, I'm not sure that you argued for 9 o'clock. Are you sure about that?

PN73

MR RIZZO: Yes, I believe so, your Honour. I certainly believe that we wanted to reduce the span, and I think - - -

PN74

JUSTICE ROSS: I'm not disputing that you wanted to reduce the span. I just don't recall you arguing it should be 9 o'clock.

PN75

MR RIZZO: All right, I'm not going to swear to that, your Honour. I honestly can't remember. But we certainly argued to reduce the span, that's for sure, because we were concerned about that span, and I'll go to the concern in a moment. Even with that span, your Honour, between 6 am and 10 pm, it still meant that there was four hours over the standard award that employees could be flexible in. Now, we argue that the span of hours should be reduced to 9 pm; in other words, 6 am to 9 pm.

PN76

This still means three hours above the standard award, and not forgetting that there's also hours encompassed in the schedule between 7 am and 12.30 pm on Saturday. So, our view has been that there's plenty of scope within the current clause, the 7 am to 7 pm, clause 13.3. Twelve hours is a fair amount of time. And at clause 13.4 of the award, there's even a provision, as the Bench would know, that you can work one hour on either side of those hours.

PN77

So, we have said that there's plenty of scope within those 12 or 13 hours, and we're arguing that – for reasons which I'll go into in a second – that we should limit – now, why we want this scope limited – we all know that with this extended span of hours, there obviously are no penalty rates paid for this period of time. Now, the penalty rates, as the Bench knows, are very dear to the heart of the trade union movement, and it's not something that we would give up lightly, despite some setbacks we've had in recent years with penalty rates in other industries.

PN78

Nevertheless, we are very wedded to them, and we're just very conscious that these largely low-paid workers, who are mostly women, would not access penalty rates under this broad span of hours. And we think that simply reducing it from 10 pm to 9 pm, which is only an hour, and still leaving a span of 6 am to 9 pm, is still a very long period of time where flexibility arrangements can be accommodated and arranged between the employee and the employer.

PN79

In the more medium to longer term, your Honour, we are concerned, as we've said in our submissions last time, and again this time, is that this working from home now has been quite entrenched. It has been characterised as the new normal. And we're just concerned that the longer this working from home and this type of span of hours is to proceed, the more custom and practice is built over this period of time, and there may be some difficulty in the future for our members to claim that they want to work a more restricted span of hours, when the employer can say to them, 'Well, two months ago, three months ago, you were working under a greater span of hours, and that's what suits us.'

PN80

Now, I know there's supposed to be no precedent about this business, but we're all realists here. We all know that what happens over a period of time, whether it's facto or de facto, can become custom and practice if it goes long enough. And even with this extension, albeit a shorter extension (indistinct) now move into a position where it's something like about eight months that this regime would be in place.

PN81

So that's our concern, your Honour, that this – we say that the current award is sufficient. We say that the expanded schedule, between 6 and 9, as we propose, is more than sufficient. And we say that women, who are the major people covered by this award, are the ones that may be at a disadvantage if this regime is to last for a longer period of time, and if it is to become the more normal way of doing business.

PN82

Now, the second part, your Honour, I would just like to address some of the points that Mr Izzo made, briefly. As for the relevancy and the purpose of the clause, and people still working from home, your Honour, as we've said in our submission, the ASU of course is not denying that there are more people working from home. That's just a fact. But what we do say in our submissions – and we make this very clear – is that in the last three months, since the last extension of this schedule, that things have moved incredibly quickly in Australia, and I'll come to Victoria in a minute.

PN83

Talking about the rest of Australia where parts of the economy have opened up and people have gone back to work in great numbers, and the ASU has explained this in some detail, relying somewhat on the information known from the Commission itself, but also from the general knowledge about the easing of restrictions that have occurred in the last three months across states where, for example, states like Western Australia, South Australia, territories like the Northern Territory are almost operating at a normal type level with lots of people having gone back to work.

PN84

Now I appreciate that Victoria is still different but nevertheless as we've seen in recent days the infection rates have been plummeting and the Premier as recently as a couple of days ago announced all sorts of easing of restrictions and in fact has flagged on 19 October, which is only a couple of weeks away, that these restrictions will be further loosened. So we say that yes, there are people working from home but this situation is changing quickly and the need for people working from home is diminishing and therefore the need to have these hours expanded at this point is also diminishing.

PN85

As for the issue of school closures which Mr Izzo referred to, well he does concede that in the rest of the country schools are pretty much back to normal and even in Victoria from about 12 October the schools will essentially - most of the schools will essentially return to normal as well. So you know the school situation has transformed markedly since we were last together on June 30 of this year.

PN86

JUSTICE ROSS: Mr Rizzo, doesn't the return, the resumption of schooling, it was announced for I think primary school that they'll recommence after the break but doesn't the return to at school schooling for other parts of the education system depend on how the numbers evolve in Victoria?

PN87

MR RIZZO: No, my understanding, your Honour, is that VCE, VCAL and specialist schools will return from 12 October but Mr Izzo is right that there's been no determination on Years 7 to 10, and that primary schools will also return during that time. But I do concede that Years 7 to 10 is silent, which is correct, but I do note and I think Mr Izzo does not deny that schooling pretty much in the rest of the country is almost normal and in Victoria, certainly compared to even two or three weeks ago it is being normalised at a very fast rate. So, you know, I think the schooling matter is certainly one that's been moving along quite quickly.

PN88

Then Mr Izzo makes another point, your Honour, about that we have to work till 10 o'clock because people won't have the opportunity to work unless we have this span of hours to 10 o'clock. Now I really dispute that. I think a span of hours between 6 am and 9 pm is a very long period of time and I challenge anyone to say that they can work after 9 pm and if they do work after 9 pm that they can work efficiently or effectively after 9 pm. I think most us, your Honour, start our day at about 6 am and we all know that by about 8 or 9 pm really our brains have turned to mash and it's very difficult to effectively work after about 8 or 9 pm of an evening.

PN89

JUSTICE ROSS: Well Mr Rizzo, I might just make this observation. I'm not sure how much we're going to be assisted by your personal reflections on when your brain turns to mash or Mr Izzo's reflections on how occupied he is between 5.30 and 7.30 pm. Look, I think the difficulty in this space is that because of the particular circumstances we're in now and the need for every party to try and respond quickly as the situation evolves, and the sort of limited dataset that we're working off, none of us know how many people are working from home who are covered by the Clerks Award. We can make inferences that there would be a significant number that, would seem to be a fair inference given the nature of the work and the ABS data but we don't know how many of those who are working from home and who are covered by the Clerks Award work to 8 pm, 9 pm or 10 pm. I think we just have to accept that we've got that gap.

PN90

I want to touch on a point that Mr Ferguson raised with you, Mr Rizzo, and that is that the safeguards that are in the schedule are particularly important. One of those is the access to arbitration. Are you able to - I don't know the answer to the question and I'm asking you whether you're aware of any disputes that have been notified either by the ASU or any individual under the dispute resolution procedure in this award, which is sought to activate the access to arbitration in relation to working from home arrangements.

PN91

MR RIZZO: Well let me address your first point, your Honour, and then I'll come to your second point.

PN92

JUSTICE ROSS: Yes.

PN93

MR RIZZO: It's absolutely right that we don't know how many people are working from home are covered by this award and we make that very clear in our submission and that does not help the employers' case. We say quite clearly in our submission, your Honour, that while they put forward 12 exhibits which seem impressive, there was nothing really to tell us regarding clerical and the admin industry, this award, how many people are working from home, what sort of hours are they working from home, who's working from home et cetera, et cetera. I think that's fatal to the case of the employers in trying to convince (indistinct) - - -

PN94

JUSTICE ROSS: Well except, Mr Rizzo, that there is no data. There is no completely available data. We've tried to look for it as well that answers the questions you've put. I accept that what you say is right, there's no material going to that specific cohort, employees covered by the Clerical Award who are working from home but the problem is there's no publicly available data source that will tell you that.

PN95

MR RIZZO: Okay, so it's all by inference then, your Honour, I appreciate that.

PN96

JUSTICE ROSS: Well it may not - look, I think what it does do at least in my mind is highlight that - and you phrased the question about the potential implications for future award changes and the like. What it does highlight is there is a need to try and obtain some data about the employees covered by this award and their working from home arrangements. There are other ways of doing that, it's just that in the timeframe we've got it hasn't been feasible on this occasion. But we could adopt the process that we adopted in the review of the SCHADS Award and that was for a survey drafted in essence in consultation with all of the parties, then largely administered by the Commission but distributed by the employer organisations to their members and then a report was prepared by Commission staff summarising the outcome of the survey and then parties proceeded on that basis.

PN97

Now it doesn't give you a precise answer to the question. It's not a weighted sample survey of all employers covered by the Clerks Award but we're not the Bureau of Statistics either, so we can't conduct such a survey. But what it would do is give you at least some insight into this issue, and I think we'd all be better informed if we had to - if we come to deal with these matters again. So whilst I take your point, Mr Rizzo, that yes there's no data but I think the challenge is that there simply isn't any publicly available data that answers the question, so you're stuck with an inference that there are a significant number of people employed under this award who are working from home. I don't take it that that proposition's disputed. What's disputed really is the necessity to have a spread to 10 pm as opposed to 9 pm.

PN98

MR RIZZO: Yes, your Honour, that's correct. No one disputes there are people working from home and no doubt there's people working from home who are covered by this award, but we don't know the extent of it but the most - but moreover we say that to accommodate working from home, which is being needed on a decreasing basis. I think we can all agree on that. While we don't have figure on how many people are working from home et cetera, I think we can all agree that the need to work from home is decreasing rapidly. That is a fact and that's been happening now for two or three months across the country but are there people working from home? Yes. Do we know how many people work from home? No. Would a survey assist us in - assist all the parties including the Commission? Yes. Personally I'm hoping that in two months' time things will have moved on so speedily and so properly that we won't have to entertain any other extension of this schedule, your Honour. That's my personal hope. But yes, certainly some insight into the use of this provision would be useful.

PN99

Your Honour, don't forget - I won't forget your other point about arbitration matters in the Commission relating to this point. My honest answer is I don't know. I am not aware of any arbitration matters before the Commission on this issue.

PN100

JUSTICE ROSS: All right.

PN101

MR RIZZO: Your Honour, I'd like to deal with the third point and I'd like to address the very brief submission by Flight Training Adelaide by Ms Thackeray. I appreciate the Commission's efforts to contact Ms Thackeray in order to appear today and I understand that those attempts - a number of attempts were unsuccessful. Given that Flight Training Adelaide has supported the application and given that they are also talking about company flexibility in their very short submission, I think it's important to address this short submission by this company.

PN102

They say that a failure to extend the schedule would be detrimental on the company and that they need company flexibility which I assume includes things like the span of hours and working from home, and they need this in order to survive. In the very short period, your Honour, that we've had an opportunity to research this company on the website and you'll appreciate we've had very little time to do that, but four or five things have occurred to us. One, their opening hours according to their website says they close at 5 pm, so their working hours seem fairly conventional. How many people then work from home? I can't tell you, but I can tell you that they do have 17 staff and six of them seem to be technical manager types and 11 it seems to me are in that clerical admin area. So there could be about 11 people that may be impacted by the schedule.

PN103

I note the following and the Commission should be aware of this, that the website and the internet inform us, you know, that for example just now last month in August they advertised for a licensed aircraft engineer in relation to helicopters, and those applications closed on 17 August. So they are hiring people which is good. Also the internet and their website tells us that in the Queensland branch of this company they've advertised for seven jobs in that part of the company, as well. Some of them are technical jobs, but a couple of them are also clerical jobs, as well; the clerical jobs being a business development officer and a quality and compliance officer. They have been advertising for staff, which suggests to me that the company is not doing too badly.

PN104

Then we are also informed that on 1 May 2020, which is only four or five months ago, your Honour, that this company bought 24 new planes; 20 Diamond DA‑40 singles and four DA‑42 twin aircraft. Now, again if you're buying 24 planes and you're hiring eight people, I would have thought that you're not doing too badly and this schedule - whether it existed or not - would not have much impact on you, let alone whether people can work an hour more or an hour less from home given the span of hours.

PN105

The final thing the web site tells me - and admittedly this happened on 31 May 2019 - Flight Training Adelaide also signed the contract with Qantas to base its pilot academy at Wellcamp Airport in Toowoomba, west of Brisbane. When Ms Thackeray says that they are desperate for the schedule to continue, that they need company flexibility, that the survival of the company is dependent on this type of schedule, the evidence that we can adduce - admittedly at short notice - suggests that the company is actually doing quite well and that whether there is an hour or more in the span of hours and so forth isn't going to make much difference to this particular business.

PN106

Your Honour, in conclusion we say this: we agreed to the 6 to 11 am (sic) spread with some hesitation. We argued then in June that that should be reduced and it was, to 10 pm. We argue now that it should be reduced to 9 pm. You might say, well, what does an hour matter? As Mr Izzo says, an hour does matter to him, and it matters to me. The point is that we say that 6 am to 9 pm is a very long spread of hours and we say that to perpetuate a situation where people are missing out on penalty rates and/or cementing a work pattern which we may not be comfortable with, is something that the Commission should take into consideration.

PN107

We would urge the Commission to opt for the 9 pm as opposed to 10 pm and this would still give a lot of flexibility to the employers and employees who wanted to agree to work from home. It still gives the employees and employers some three hours longer than the current standard award, if the Commission pleases.

PN108

JUSTICE ROSS: Thank you, Mr Rizzo. Ms Ismail, did you have anything you wished to say?

PN109

MS ISMAIL: Thank you, your Honour, and good morning to the other members of the Full Bench. Just some very brief comments. In the (audio malfunction) that the ACTU has had a survey out in relation to working from home (audio malfunction) but we expect that it will cover some people covered by the award. Unfortunately it's not ready for this process, but it may be of assistance down the track. Certainly some of the preliminary results from that are revealing that, you know, of course there are benefits to working from home for both parties, but there are also a number of risks; financial and in relation to mental health.

PN110

The union movement has been prepared to engage in these discussions in good faith. The Full Bench is aware. What we are concerned about now is that there are perhaps new norms developing in workplaces, norms in this case that relate to people working very late at night or very early in the morning without any financial compensation, that are developing without due consideration of the evidence. It has been pointed out that the evidence before the Bench is generic in nature and not specific. We say in the absence of specific evidence, the Full Bench should err on the side of caution and opt for a short span of hours in this instance.

PN111

We started these discussions back in March. We're now six months down the track in September. We are concerned that the temporary nature of the variations is now looking a lot more substantive and ongoing than it originally did. You know, these decision are being handed down, as the Commission has noted, following a truncated (audio malfunction) that was much shorter than usual.

PN112

The second point I wanted to make is we have a genuine and serious concern about discriminatory impacts and the impact on women in particular in relation to late work and early work without penalty rates. The Commission of course is bound to consider the need to eliminate discrimination in accordance with section 578 of the Fair Work Act and will be aware of the gendered impacts that COVID‑19 has put in relation to job losses and (audio malfunction) on women, an increased caring burden that has been discussed already.

PN113

I take issue with Mr Izzo's characterisation of these arrangements as personal flexibilities or personal commitments as if they're not communitywide, nationwide or economy-wide issues that require a structural solution in our industrial laws, not simply the burden falling wholly and solely on the individual worker, which is what we're worried about occurring now. You know, Australians already were struggling with life balance prior to this (audio malfunction) and they're struggling even more now.

PN114

We're concerned that some of these new norms are going to exacerbate gender discrimination, exacerbate the gender pay gap and we're struggling to see, frankly, how the needs of the low paid or the promotion of flexible modern work practises are furthered by allowing people to work very late at night and very early in the morning without access to financial compensation. Finally, we endorse the submissions of the ASU.

PN115

JUSTICE ROSS: Thank you, Ms Ismail. Anything in reply, Mr Izzo or Mr Ferguson?

PN116

MR IZZO: Your Honour, just two brief matters. The first is just in relation to what has been argued previously. I'm not entirely certain of the relevance, but certainly our understanding is that when this matter was before the Bench previously - that is on 30 June - the employers had proposed that the extended span be changed from 11 pm to 10 pm. Our understanding is that was opposed by the ASU at a holistic level on the basis that effectively 7 am to 7 pm was sufficient and that we had not demonstrated that the need for this extended span continued, there had been a change in circumstances, et cetera.

PN117

The submissions of Mr Rizzo in the transcript appear at PN40 to PN45. My understanding is that there was no proposal made by the ASU to say that 9 pm is a preferable or better time to adopt than 10 pm. It was simply a holistic objection to the schedule extending for the types of reasons that Mr Izzo has again outlined today. I just wanted to, at least from our perspective, correct the record on that matter.

PN118

The second matter that I wanted to address very briefly is just the final point that has been made by Ms Ismail in relation to discriminatory impacts. We do not accept that this has any direct or indirect discriminatory impact for two reasons. Firstly, this is about employees requesting a particular flexibility and an employer agreeing to that.
Any movement in the time of work is something that is being preferred or sought out by the employee.

PN119

Secondly, to the extent that personal commitments are deriving from changes (audio malfunction) society more broadly because of the pandemic, well, those changes aren't being caused by the award and they're not being caused by the Commission, so the notion that the Commission's award or industrial instrument is having any discriminatory impact - whether direct or indirect - we do not accept that assertion.

PN120

Furthermore, this is again, as we've pointed out, a temporary matter. If there are structural issues that are arising, obviously our big debate arises as to whether those structural community issues should be dealt by the legislature, by the social security framework or by the industrial framework. That is something that obviously requires a much more substantive debate and is not really able to be resolved in a temporary‑type hearing such as the one that we're having today.

PN121

We don't think that there is a factor or a consideration about discriminatory impacts that arises presently with respect to the extension in the schedule. They are the only submissions I wanted to make in reply.

PN122

JUSTICE ROSS: Thank you. Is there anything else from any party?

PN123

MR FERGUSON: Your Honour, just briefly.

PN124

JUSTICE ROSS: Yes.

PN125

MR FERGUSON: I think two of the core arguments that Mr Rizzo put in relation to the key issue between the parties - and that is whether it should be a 9 o'clock or a 10 o'clock limit on the spread - two of the arguments that he advanced was that, well, the 10 o'clock spread is some sort of disadvantage on employees and, in essence, it's not necessary that 9 o'clock is sufficient. I think really it misses the point of the variation that we're trying to see continue.

PN126

It is, as Mr Izzo put, a flexibility that is available at the request of an employee. It's about allowing them a greater capacity to work ordinary hours at different times. It's not something that has been visited upon employees under this arrangement. The safeguards are very significant and on that basis there really is no merit to the concerns that Mr Rizzo is advancing.

PN127

I think the other point that was repeatedly put was that the need for working from home arrangements is diminishing. I think it is a bit beside the point in terms of the controversy between us, which is really what times people should be able to work. I think the Commission can clearly accept that we're still struggling with the risks associated with a deadly pandemic and obviously that does throw up - and I don't think anyone could contest this - all sorts of challenges to people in terms of how they deal with those risks. As a result, working from home is a reality and this measure that we're proposing is just a mechanism that enables people who have the flexibility as to how they deal with those challenges and do work from home.

PN128

Finally, just in relation to Ms Ismail's submissions, there was some concern expressed about the impacts of these sorts of variations on work‑life balances, as I understood it. I think the point we would make here is that this is intended to assist people to balance their work and life commitments. It is about a flexibility that can be utilised by an employee at their election, with the employer's agreement, to better balance the two types of commitments we have. We don't accept that it in any way runs contrary to that consideration, but beyond that I would also endorse the final submissions put by Mr Izzo. Nothing further.

PN129

JUSTICE ROSS: All right. Can I put something to both Mr Izzo and Mr Ferguson. You heard Mr Rizzo and we were having an exchange about the absence of specific data dealing with the Clerical Award, and the extent to which the provision was utilised and Mr Rizzo seeing merit in a survey of the type that I foreshadowed with him. Subject to there being - and I'm not advancing this proposition by way of saying it needs to be done before we deal with the application. We will deal with the application expeditiously, but in terms of the future and the extent to which either this schedule is sought to be extended or an alternative arrangement put in place, there seemed to be utility in getting whatever information we can from the parties about the extent to which working from home arrangements are being utilised.

PN130

Ms Ismail has indicated the ACTU has done a survey and that when the results of that become available that may be of assistance in this process, as well, but I wanted to get an initial reaction from Mr Izzo and Mr Ferguson about the adoption of a similar process to that which we understood in the SCHADS Award. That was, broadly, there is consultation with the parties about the form of the survey questions, then the Commission in effect provides a link to the employer organisations and they then serve their members and then the Commission prepares a report based on the responses. Don't all rush at once.

PN131

MR FERGUSON: Your Honour, I think we would accept that there's a clearly a need or there'd be utility in having greater information around what is actually happening. I mean I think various employer associations are probably already engaged to some degree with their membership trying to ascertain what is happening. But as you put it to me to day I concede the merit perhaps in some coordinated attempts perhaps through the Commission to try, you know, get data that would be of assistance potentially in the context of any future proceedings or that may arise in any way before the Commission. We probably just need to give some thought to logistics and so forth but - - -

PN132

JUSTICE ROSS: No, no, certainly I think the detail requires your engagement but it's really the concept that I'm wanting to raise with you at this stage.

PN133

MR FERGUSON: I think we'd like to give further thought to that concept, your Honour. I think we see the need for greater information in this space. We've seriously grappled with further or more permanent changes. We'd like to give it further thought, your Honour.

PN134

JUSTICE ROSS: Yes. Mr Izzo.

PN135

MR IZZO: Your Honour, yes, I think we'd certainly be open to that kind of process. Our firm, I think on behalf of ABI, was involved in the SCHADS Award and it clearly had some assistance in those proceedings. I think the issue that ACCI is going to have to grapple with is it was already I suppose looking at gathering some data in this space and I suppose the question is we've heard from Ms Ismail that the ACTU has conducted a survey and I suppose the question will be whether the employer parties are seeking to already gather information of this nature, and should it be put forward to the Commission in such a way that the Commission gets I suppose the different organisations' various surveys, the counterbalancing - - -

PN136

JUSTICE ROSS: Yes.

PN137

MR IZZO: - - - (indistinct) benefit in a more unified approach. It could be that you end up with all three (indistinct) - - -

PN138

JUSTICE ROSS: Yes.

PN139

MR IZZO: - - - do a survey, the employers do a survey and the Commission does a survey. Now that might be the preference of the Bench. The only thing then is timing because organisations aren't worried about survey fatigue and so you couldn't have employers go out and survey one week and then survey - the Commission survey the next, there'd need to be some temporal detachment.

PN140

JUSTICE ROSS: Yes. Well speaking for myself I'm not attracted to a battle of the surveys and I doubt if the surveys that each of you might be undertaking at the moment are going to provide specific data about the Private Sector Clerical Award, and that's really the - it's the operation of these flexibilities that I'm particularly interested in but I certainly take the point about the logistics and the need for further discussion about how we might undertake the task. All right, well if there's nothing further I'll just confer with my colleagues and see if there are any questions they may have. Deputy President Clancy? No. Commissioner Bissett, did you have any questions for any of the parties?

PN141

COMMISSIONER BISSETT: No, thank you, your Honour.

PN142

JUSTICE ROSS: All right, well thank you all for your attendance and your submissions. We'll adjourn and reserve. We'll endeavour to get - we're aware of the expiry of the schedule and we'll endeavour to get the matter determined as quickly as possible. Thank you, we'll adjourn.

PN143

MR FERGUSON: Thank you.

PN144

MR RIZZO: Thank you.

ADJOURNED INDEFINITELY [11.22 AM]