PN1

JUSTICE ROSS: Could I have the appearances please, firstly in Sydney?

PN2

MR N WARD: Your Honour, I continue my appearance for the Australian Chamber.

PN3

JUSTICE ROSS: Thanks Mr Ward.

PN4

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

PN5

JUSTICE ROSS: Thanks Mr Ferguson, and in Melbourne?

PN6

MS S ISMAIL: Ismail initial S, for the ACTU, your Honour.

PN7

JUSTICE ROSS: Thanks Ms Ismail, and in Canberra I think by phone?

PN8

MS DELBRIDGE: In Canberra we've got - - -

PN9

JUSTICE ROSS: Sorry?

PN10

MS DELBRIDGE: Sorry, we've got Delbridge C, Turnbull B and Williams J from the Department of Jobs and Small Business just observing on the phone.

PN11

JUSTICE ROSS: Thank you.

PN12

Anybody else? No, well just for the record let me put down - - -

PN13

MR JOHNS: Sorry, your Honour?

PN14

JUSTICE ROSS: Yes?

PN15

MR D JOHNS: Sorry, I had the microphone off. We requested - Johns, initial D, National Road Transport Association.

PN16

JUSTICE ROSS: Thank you, Mr Johns.

PN17

By way of background the Full Bench published a decision on 26 March this year dealing with unpaid family and domestic violence leave. In a subsequent statement published on 3 May this year the Full Bench attached a provisional model term and invited submissions on whether that draft model term accurately reflected the outcome of the March 2008(sic) decision. Submissions have been received from ACCI, Ai Group, NatRoad, the Pharmacy Guild and the ACTU.

PN18

As far as we can tell there have been no submissions in reply filed. If I can characterise the submissions this way. ACCI, Ai Group and NatRoad have made no comments on the draft model term on the basis that they consider it accurately reflects the Full Bench's decision of 26 March 2018. There are two sets of proposals to vary in various ways the model term. The ACTU proposes a variation to clause X.1 so rather than the clause saying:

PN19

This clause applies to all full‑time, part‑time and casual employees.

PN20

It would say:

PN21

This clause applies to all employees including casuals.

PN22

And their second proposed variation is the insertion of a new clause at clause X.3(b)(iii) to confirm that the leave is available in full and is not pro rata'd, there's no requirement to pro rata. I will turn to the Pharmacy Guild submissions in a moment and then have a discussion about - well, I was going to ask the Pharmacy Guild some questions but they're not here. Is anyone representing them?

PN23

MR FERGUSON: No.

PN24

JUSTICE ROSS: Okay. Can I go to the first of the ACTU's proposals; have the other parties had an opportunity to give any thought to that and whether they wish to say anything?

PN25

MR WARD: Your Honour, we've had a little bit of an interplay earlier this morning. I think there's probably some benefit if there's a conversation rather than a straight answer.

PN26

JUSTICE ROSS: No, sure.

PN27

MR WARD: Yes I - - -

PN28

JUSTICE ROSS: You can take it I - because it's listed for mention.

PN29

MR WARD: Yes.

PN30

JUSTICE ROSS: I'm just trying to get a sense of where are some of the issues and I might make some preliminary observations about at least one of the Pharmacy Guild's points.

PN31

MR WARD: So in relation to the ACTU's comments they appear relatively benign. They don't seem to be - they do raise for consideration though an issue which I've just put to Ms Ismail, which is once you start thinking about fixed term employees and you reflect on X.3 of the proposed clause, some people reading X.3 in the context of fixed term employees but employees at large might have some confusion between the phrase "each year" contemplating potentially a calendar year, and yet the benefit accrues at the start of each 12 month period of employment of the individual. So it has just provoked a few thoughts that might be better dealt with by way of a conversation.

PN32

JUSTICE ROSS: Yes.

PN33

MR WARD: Most likely chaired by yourself.

PN34

JUSTICE ROSS: Yes.

PN35

MR WARD: Or potentially had offline between the parties. But I don't think - I'm not seeking to re-ventilate this. I hadn't thought about fixed term people and it has just raised a few questions which we want to have satisfied in our minds, that's all.

PN36

JUSTICE ROSS: Yes. Yes, all right. Look, I think if you look at the Pharmacy Guild proposal for a moment before we talk about how we might deal with it, my provisional reaction was I'm not sure about the insertion of "is required to". But again reflecting on the model term and what was agreed, the reason why my provisional view is to that end - and you know, uninformed because there are really no submissions advanced in support of it and there has really been no engagement by anyone in response to it. But when you have - well, the issue arises this way. The agreed provisions between the parties said:

PN37

An employee experiencing family and domestic violence may access unpaid leave if it is necessary to deal with the impact of family and domestic violence and it is impracticable for the employee to do so outside their ordinary hours of work.

PN38

Now in framing the draft model term we restructured that to break up the - this is at X.4.

PN39

MR WARD: Yes.

PN40

JUSTICE ROSS: To break up the elements of it. So you set out the entitlement; you may take unpaid leave to deal with family and domestic violence if, and then you set out the two that you're experiencing family and domestic violence, and that you know, the employee needs to do something to deal with the impact. Now needs to do something is a sort of plain language version of it's necessary to do something.

PN41

SPEAKER: Yes.

PN42

JUSTICE ROSS: Whereas the expression the Pharmacy Guild has latched on to "is required to deal" rather suggests almost a legal - you know, is required to attend under summons or something of that nature and that was my initial thought about it. In terms of they also have the other proposal but they don't identify what variation they propose, they just say "Well, it should be clearer". But, you know, I get lots of submissions like that but unless - really you need a specific "Here's what we think it should read".

PN43

Well okay, look until you'd raised your point, Mr Ward, I had sort of contemplated saying the submissions are in, I'm assuming everyone's fairly exhausted but I'd give people a further opportunity to say something if they wanted to and we'd just deal with the lot on the papers. But look, there might be some utility in a conference. I'd just test that with everybody else. Mr Ferguson?

PN44

MR FERGUSON: Look, from our perspective we were satisfied that the clause operated appropriately and reflected - - -

PN45

JUSTICE ROSS: Yes.

PN46

MR FERGUSON: And we didn't seek any change. In relation to the ACTU's proposal, I mean the first proposal we're probably more (indistinct) somewhat ambivalent about it.

PN47

JUSTICE ROSS: Yes. I must admit I sort of took the same view as Mr Ward that it looked to me to be fairly benign, and it might avoid any issue around apprentices for example not thinking that they're full‑time or part‑time or trainees because they may have different sort of working arrangements. But yes.

PN48

MR FERGUSON: Yes, there's an issue raised by Mr Ward about "each year" and I think when you read the clause in totality it actually becomes clear what the intent is.

PN49

JUSTICE ROSS: Yes.

PN50

MR FERGUSON: So it's not necessary - but in saying that, I'm not opposed to the proposition that we could have a discussion about that in case something evolved. You know, I think the second element of the ACTU is we weren't convinced it was necessary but it still probably fell into that category where we weren't sure it justified us rising to it either.

PN51

JUSTICE ROSS: Yes.

PN52

MR FERGUSON: But as I said, in terms of the way forward we're not opposed to having a discussion about that but our approach has been very much that it reflects the agreement.

PN53

JUSTICE ROSS: Yes.

PN54

MR FERGUSON: That we shouldn't be tearing it up.

PN55

JUSTICE ROSS: Yes, look I'm not - I think absent good reason - - -

PN56

MR WARD: Your Honour, can I please - - -

PN57

JUSTICE ROSS: - - - or a revised consent position then there's some force in what you say.

PN58

MR WARD: Absolutely. I'm not - we agreed to various things in conference, we stand by those matters. I just simply raised a very modest point this morning, having reflected upon the ACTU's desire to include the words "fixed term". I'm happy to simply reduce those observations to writing and provide them to the Bench and the parties by way of reply. I'm not really advancing them as a sort of antagonist submission.

PN59

JUSTICE ROSS: No, no.

PN60

MR WARD: More just by way of an observation. If at the end of the day the clause is resolved the way it stands today with the ACTU amendments, it doesn't cause us any concern. But if I can at least perhaps articulate the observation in two or three paragraphs to you on the papers. I'm happy for it to be dealt with on the papers too. I'm very happy with that.

PN61

JUSTICE ROSS: Yes.

PN62

MR WARD: We're not resiling from where we've got to in any sense.

PN63

JUSTICE ROSS: Yes, yes. What we could do is I'll post - I'll come to you in a moment, Ms Ismail. I haven't forgotten you. I could get the transcript, post it on the website, indicate that ACCI wants a short opportunity to put some material in respect of the consequences of one aspect of the ACTU's proposals, that if any other party including - I won't probably name the Pharmacy Guild but if you can communicate to them and draw their attention to the transcript and just see what they want to do. If any other party wishes to say anything further in response to the matters raised during today's mention, or in response to anything ABI puts in then they can do that a few days after.

PN64

How long do you think you would need, Mr Ward?

PN65

MR WARD: Your Honour, I'll do it today.

PN66

JUSTICE ROSS: Okay, well I'll put a slightly longer timeframe than that. All right.

PN67

MR WARD: It would keep it brief, your Honour.

PN68

JUSTICE ROSS: And look, you might discuss it with Ms Ismail and Mr Ferguson so that - - -

PN69

MR WARD: I will, yes, yes.

PN70

JUSTICE ROSS: It may be that that might avoid the need for a sort of paper war.

PN71

MR WARD: That would be - - -

PN72

JUSTICE ROSS: What I guess I'm anxious to avoid is often when you end up with sort of subsequent submissions there may be something that isn't clear to the Bench about the exchanges.

PN73

MR WARD: Yes.

PN74

JUSTICE ROSS: And I'm trying to avoid bringing you back for an oral hearing to explore any degree of ambiguity, that's all.

PN75

MR WARD: Right.

PN76

JUSTICE ROSS: So any conversation between you would be good.

PN77

All right, Ms Ismail, so the process that has been proposed is Mr Ward will have a discussion with you and Mr Ferguson about the issue he has raised. He will then put in a short submission addressing that point and either Mr Ward or Mr Ferguson will contact the Pharmacy Guild, draw their attention to my at least first blush view of their proposition, and I've drawn attention to what's in the draft model term and what was in the agreement, and then you'd have an opportunity to respond to any of that. There would be liberty to apply in the event that someone filed a submission late or something, but I am anxious to try and finalise this matter as quickly as practicable without the need for an oral hearing unless any party particularly wants one. Are you content with that process or is there anything you wanted to add?

PN78

MS ISMAIL: Yes thanks, your Honour. Yes, look we are obviously keen to get this finalised as well without the need for an oral hearing and we're more than happy to sit down in a conciliation type situation with the employers if that's a quicker way to proceed. In relation to the Pharmacy Guild proposal we didn't put a submission in but I'll say now that we concur with your Honour's view that it changes the nature of the obligation.

PN79

JUSTICE ROSS: Provisional view.

PN80

MS ISMAIL: A provisional view that it certainly changes the nature of the obligation quite significantly. As you pointed out, necessity is a different concept to "is required to". Is required to by whom and when, and we would say in the circumstances where there's no support, you know, there's no justification put forward for that change, it should be rejected. We're happy to have a conversation about clarifying the nature of the yearly entitlement, and if I understand it correctly is that the issue that ACCI is going to make submissions on or is it the proposal that we have made in relation to X.1?

PN81

JUSTICE ROSS: Well, just - - -

PN82

MR WARD: No, no. No, no, Sophie, X.1 is fine. No, I don't cavil with that. Just a small matter arises in my mind particularly about fixed term employees in X.3.

PN83

MS ISMAIL: Yes.

PN84

MR WARD: We'll have a discussion about it - sorry, your Honour.

PN85

JUSTICE ROSS: No, no, not at all.

PN86

MR WARD: I apologise.

PN87

We'll have a discussion about it. Trust me, you'll probably talk me out of it.

PN88

JUSTICE ROSS: Yes.

PN89

MS ISMAIL: Sure and - - -

PN90

JUSTICE ROSS: Look, in the event - it may be useful that once you've had the discussion if there is a common position amongst the three organisations.

PN91

MR WARD: Yes.

PN92

JUSTICE ROSS: That would certainly be helpful if that's communicated and look, I'm not - so we proceed on that basis. I'm working on the assumption that at the moment once that process is finished the Full Bench will determine the matter on the papers. If arising out of your bilateral discussions you think there's some issue and you want to have a conference about it, I'm not ruling that out by any stretch but I don't want to program anything at this stage.

PN93

MR WARD: No.

PN94

JUSTICE ROSS: Let's see how you go in the direct conversations. Okay?

PN95

MS ISMAIL: Your Honour, can I throw a spanner in the works? It's not a big spanner, I promise.

PN96

SPEAKER: That's subjective.

PN97

MS ISMAIL: And look maybe - I just want to place it on the record. I note that there's going to be a review of this clause in three years and I have raised this issue with my friends before the conference and it was raised in our submissions, and it's about the phrasing of X.4 and the focus on the experience of family violence as opposed to the purpose of the leave. Now the way that X.4 and the two subclauses (a) and (b) will interact with X.6(c) we think will place an onus on practitioners to certify in writing that a person is in fact experiencing family and domestic violence; and we have some anecdotal evidence - and it's hard to sort of go into more detail given the confidentiality around it - that there may be some hesitancy, some resistance amongst practitioners to put that down in writing. We think a better phrasing of X.4 would be:

PN98

An employee experiencing family and domestic violence...

PN99

And then we go on to talk about the necessity. So the experience of family violence is sort of in the chapeau, if that's the right word for it, of X.4.

PN100

JUSTICE ROSS: Yes.

PN101

MS ISMAIL: Rather than in the dropdown. Because the way that it is phrased at the moment may require or arguably does require someone to give written evidence of the experience of family violence, and as our friends have pointed out that is a decision that would be made by a court of law, a criminal court of law. So we want the focus on the purpose and we think that in practice that will present some challenges for employees and for the people who are required to give the evidence. It's not to say that it is not a requirement of the clause that the person must be experiencing FDV. We absolutely accept that. It's about what needs to be put in writing.

PN102

JUSTICE ROSS: And that would only arise presumably if the employer requires the employee to give evidence that would satisfy a reasonable person. Is that the - - -

PN103

MS ISMAIL: That's correct, yes.

PN104

JUSTICE ROSS: Yes.

PN105

MS ISMAIL: As required.

PN106

JUSTICE ROSS: Yes.

PN107

MS ISMAIL: But we don't want doctors to feel that they've got to put down - sorry, your Honour, the lights have gone out here. I'm not sure what that's about, but I'm hoping you can still hear me.

PN108

JUSTICE ROSS: It's a cost saving, Ms Ismail.

PN109

MS ISMAIL: Yes, I can barely read my notes.

PN110

JUSTICE ROSS: No, if you don't - look, the way the light system works in Melbourne, a source of some irritation to me but nevertheless, is if you don't move around then they assume no one is in the room and they go off, which happens in my chambers quite a bit, and you have to throw your arms around. It's the only exercise I get during the day. Look, can I suggest that you might deal with it this way. By all means have that discussion when you were talking about the other issue, but as I've taken - as I understand what you're putting now it's you've drawn attention to it but you're not seeking a variation at this time. You're rather saying it's something you want to look at in the review, is that right?

PN111

MS ISMAIL: Look, I mean I would put it as high as to say we would put a variation on the table for the Commission to consider and for the employers to consider because - and I apologise for the lateness of it and the fact that we haven't raised it earlier. It is something that's sort of - and because these clauses are just coming into practice now and they're just being reviewed, these are things that are filtering through to us late in the piece. But we expect that there will be some difficulty with people certifying to the experience of FDV and the phrasing that I've suggested is phrasing that exists in enterprise agreements already. So we put it on the table for consideration. We recognise that it's late in the piece though.

PN112

JUSTICE ROSS: Yes.

PN113

MS ISMAIL: And if it needs to be dealt with in the review then so be it.

PN114

JUSTICE ROSS: Look, also there's nothing to stop you despite the fact we're going to review the broad issue, if in fact once they go into awards your concern materialises and you can bring forward evidence of that then that could be considered at that time.

PN115

MS ISMAIL: Yes.

PN116

JUSTICE ROSS: Look, I say that there's nothing to stop you for two reasons. One, either we'll be commencing the next four yearly review when this one finishes and you could raise it then, and that may not be in the too distant future. Or alternatively the Bill that was before Parliament to abolish the four yearly reviews would allow you to raise that issue as well. So look I think perhaps if you can reflect on this and then your discussions with ACCI and the Ai Group and just see what you want to do with it.

PN117

But I do think it is late in the process and I think the risk you run is that you're raising an apprehension without evidence, and if you wanted that change it would be a more powerful argument - I understand how what you say may arise but the variation you would propose would be more compelling if you had evidence of the actual experience, and I'm not suggesting you would need to wait until the contemplated review to bring that forward if it became a real practical problem. And look, I make the same observation to the employers, and that may be the issue, the way you deal with the fixed term issue.

PN118

All of these things are new and if they create an unintended consequence or something is not clear and is creating havoc then it's certainly not my view that you would need to wait till the review. We wanted to look at in the review particularly issues like the uptake of the leave, those sorts of questions, and certainly any practical matters that arose. But I don't want any party to think that if it's creating mayhem amongst your members, not just because they either don't like the provision generally or they want paid leave, leave aside the issue of principle, if the detail creates a practical problem we can hear about it and deal with it.

PN119

MR FERGUSON: I mean the only thing we would say is that this isn't necessarily just an issue of practical difficulty or detail and so forth.

PN120

JUSTICE ROSS: No.

PN121

MR FERGUSON: The issue around whether employees ought to be required to provide evidence that they were experiencing that goes to the heart of the matter of merit that was discussed, and in the agreement or the compromise that was reached all parties had to accept some elements that they didn't think would operate as desirous - or at least that they thought - for their respective memberships.

PN122

JUSTICE ROSS: Yes, yes.

PN123

MR FERGUSON: And this goes to the heart of unpicking that. But I can't stop an application at a late stage.

PN124

JUSTICE ROSS: Yes, yes, and also I'd be careful about - I agree that there has been an agreement that has led us to this point.

PN125

MR FERGUSON: Well, it's a - - -

PN126

JUSTICE ROSS: But there might be parts of the agreement that you want to have a look at in a review and look, the other point I'd make to Ms Ismail is it says "evidence". It may be a statutory declaration by the employee can address that question. So you may not require a medical practitioner to make such an assessment, if that's where it gets to. But let's see how the provision operates in practice and the attitude that employers take to it.

PN127

MR FERGUSON: If employers require that evidence.

PN128

MS ISMAIL: Yes, I appreciate that, your Honour.

PN129

JUSTICE ROSS: Yes.

PN130

MS ISMAIL: And we did look at trying to get some evidence but it's too early in the piece, and maybe it is the case that we need to let it play out.

PN131

JUSTICE ROSS: Yes, well look, also bearing in mind you could meet the evidence requirement by a statutory declaration. It is one of the methods identified in the note. So the reluctance by a medical practitioner to say that, or somebody else, may be overcome that way.

PN132

MS ISMAIL: Yes.

PN133

JUSTICE ROSS: So there may be different ways of dealing with it. Okay?

PN134

MS ISMAIL: Yes, happy with that.

PN135

JUSTICE ROSS: All right, we'll reflect on all that. I'll issue some short directions and publish the transcript or get the link attached to the directions we issue. Can I give you a sort of - well, the three of you will be involved in the next matter. Before I go can I just see whether Mr Johns had anything he wished to add.

PN136

Mr Johns, are you content with that process?

PN137

MR JOHNS: No, your Honour, in fact we're happy to rest on our submissions made in the matter and we'll leave it as you've outlined for the discussion today.

PN138

JUSTICE ROSS: All right, Mr Johns, if there's anything in what Mr Ward files that you want to on, you'll have an opportunity to do that as will any other party.

PN139

MR JOHNS: Thank you, your Honour.

PN140

JUSTICE ROSS: Was there anything that the Department wished to say or are you just content to observe?

PN141

MS DELBRIDGE: No, your Honour, we're just content to observe still at this stage.

PN142

JUSTICE ROSS: All right.

PN143

MS DELBRIDGE: Thank you.

PN144

JUSTICE ROSS: This might be the last stage. Look, as each of you are likely to be involved in the matter at 10 I was proposing to deal with it this way; to identify a short statement about this has been the process, received these submissions, does anyone want to, having considered the other submissions, say anything about any of them now. But given that the issues are broader in that matter perhaps I can at least get you to think about this before I come back. That my initial thought was that we should put out a document summarising our understanding of the submissions in relation to the various issues, give parties an opportunity to comment on that and see whether it's accurate and then an opportunity to say - well, do they want to say anything further about it.

PN145

But I'll test you about whether you're content with a written process or whether you would rather we publish a document like that. Because I'd prefer to do that anyway because it will test that I've understood correctly what you're saying and whether you'd prefer an oral hearing to deal with it. If you can perhaps have a discussion between yourselves about that before I come back at 10. All right, thank you very much. I will adjourn and resume at 10 o'clock. Thanks.

ADJOURNED INDEFINITELY [9.31 AM]