TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 26437-1

VICE PRESIDENT WATSON

AM2010/16; AM2010/17; AM2010/39; AM2010/44

s.158 - Application to vary or revoke a modern award

Application by National Retail Association Ltd
(AM2010/16)

Master Grocers Australia Limited
(AM2010/17)

Australian Retailers Association, The
(AM2010/39)

Mr Jim Whittaker
(AM2010/44)

General Retail Industry Award 2010

(ODN AM2008/10)
[MA000004 Print PR985114]]



Melbourne

10.00AM, THURSDAY, 3 JUNE 2010

Continued from 7/5/10

Reserved for Decision

PN1840

THE VICE PRESIDENT: Any changes in appearances, and is there some agreement as to the order of submissions? Mr Tindley.

PN1841

MR TINDLEY: I have chosen to go first, your Honour, which means that I don't care about the rest of the order from there.

PN1842

THE VICE PRESIDENT: Okay. No-one is interrupting you.

PN1843

MR TINDLEY: In the hope that I'll be able to get through by the time they start giving the decision just down the hallway a little bit, and I may need to excuse myself for a very short period of time.

PN1844

Your Honour, the tribunal is presented with an application to vary the Retail Award in one particular area. It is an area that in my submission there was not significant consideration given to, in the development of the General Retail Industry Award. Certainly the NRA was not aware of the problems that this clause would cause. The requirement that we have is to show the tribunal that the variation sought is necessary to achieve the modern award's objective, and that is the development of a fair minimum safety net.

PN1845

In our submission, the three-hour minimum shift for casual employees has failed to achieve that objective because of one particular problem, and that is that it is excluding a number of young people from participation in the workforce. That has come through by the evidence presented by the employer parties in this matter. In my submission, if we look at the award with its current provision, we see what we would say is a large number of young people who are prevented from working hours, particularly after school on week nights. With the variation, those young people are able to participate in the workforce. Yes, those young people are able to participate in the workforce on weekends, but if we look at the situation with the Terang Co-op, for example, we are talking about the major employer in a very small country town, with a finite number of opportunities for young people. It has done what it can to provide employment opportunities for young people, to provide that vital step into the workforce that the retail industry provides, and it is now being prevented or restricted significantly in doing that.

PN1846

In my submission, the other thing that the tribunal should consider is whether the change from three hours to two hours would in any way undermine the safety net. Here the evidence of the SDA witnesses is important. We have at least two situations. We have a situation in Queensland where the minimum shift for casual employees went from four to three hours. The SDA witness, Mr Ketter, was pressed on any information he could provide about how that change had negatively impacted on the hours of work offered to casual employees. He was unable to provide any information about that.

PN1847

Paul Griffin was asked about the change that has occurred in Tasmania, as of 1 January this year, where the minimum shift for casuals went from four hours to three hours. Mr Griffin gave no evidence of any production disadvantage suffered by casual employees. He gave evidence that there had been nothing raised with him about such disadvantage, and he said it was reasonable to presume that there had been no disadvantage.

PN1848

So we have what, in our submission, is a necessary variation to allow a group of employees to participate in the workforce. Opposed to that we have a philosophical position that casual employment is bad. That comes through each of the witness statements provided by the SDA. It comes through in the evidence of Dr Campbell and, in my submission, the evidence of Dr Campbell is entirely unhelpful in this matter. Dr Campbell throughout his evidence has made assumptions with very little basis. He is clearly not an impartial witness. The only involvement he appears to have had in industrial matters is at the behest of the trade union movement.

PN1849

He relied on a survey of 105 casual employees in Victoria. Importantly, however, they are employees engaged in what he called the food retailing industry, which includes fast food. Actually, out of that 105 we can't gain from Dr Campbell any understanding of which types of employers they worked for, but it is reasonable to assume a number of them worked under a different award from the one that's before the tribunal today. Even if we were to give consideration to that survey, it is not directed to the issue that's before the tribunal. The issue before the tribunal is the minimum shift for casual employees.

PN1850

Dr Campbell, in what I would suggest is an extraordinary attempt to tie things together, put a comment or a reference to a statement from the Workplace Ombudsman into his witness statement because it was related to the minimum shift. It is inconceivable that Nicholson Wilson, making a comment about the number of complaints the ombudsman receives from the retail industry, had anything to do with minimum shifts, but Dr Campbell was prepared to draw that conclusion. Dr Campbell is prepared to draw the conclusion that this is not a major issue and that it only affects a small number of people, because he says that metropolitan Melbourne, the shops trade well after 5.30, and regional centres in Victoria, shops trade well after 5.30. What is his basis for that? He went to Bendigo and had a look at a few banks - entirely irrelevant to the issue before the tribunal; entirely unhelpful evidence for the tribunal. In our submission, Dr Campbell's evidence is of no use whatsoever.

PN1851

The remaining witnesses of the SDA were a mix of organisers, secretaries and delegates - not one casual employee. It is reasonable to assume that the SDA as a very, very large union in Australia, representing an industry with a very large casual base, would have access to a very large number of casual employees. They have not presented this tribunal with one witness who is a casual. They are prepared to rely on hearsay evidence from their organisers and state secretaries - interestingly, some hearsay on hearsay evidence where an organiser was prepared to say that, "I told the delegates to ask them and they asked them, and then they told them, and they told me back." We've got two degrees of hearsay. It's expected that the tribunal would rely on that as evidence of some level of resistance to the reduction in the minimum hours.

PN1852

Quite simply the SDA has not provided any evidence that would cause the tribunal not to make the variation sought, when the evidence of the employer party witnesses is considered. In my opinion, the most powerful evidence in this matter comes from Letitia Harrison and Matthew Spencer: two young people in a regional area in Victoria who want to work, who want to work the hours they're able to work, after school, and are being prevented from doing so.

PN1853

The attack on Letitia Harrison by the SDA was very, very poorly executed and a very disappointing effort from the union that would purport to represent the interests of young people in the workplace. To accuse a 16-year old female of being a political pawn and not acting on her own will is a disgraceful attempt to play the man, not the ball. It is consistent with the SDA's approach to all the employer party witnesses. The SDA knows that pre-modern award compliance is irrelevant to the variation that's sought by the employer parties in this matter.

PN1854

But the focus of the SDA's cross-examination of the employer witnesses is on compliance with the Victorian Shops Award, for example. It is, I would suggest, a cynical attempt to prevent employers from coming forward and giving evidence in these type of matters, and it does nothing - and they did nothing - to disturb the evidence of the employers that they are prevented from offering employment to young people, or they are going to be prevented from offering employment to young people.

PN1855

In our submission, it is a very clear decision for the tribunal. If this variation is not made, Letitia Harrison and Matthew Spencer will continue to be excluded from the workplace. The employer witnesses will continue to be prevented from offering employment opportunities to young people. This is not an insignificant issue. To characterise this as a small and isolated incident misunderstands the situation that we're dealt with. In my submission, the tribunal must make the variation sought, unless the tribunal has any questions further.

PN1856

THE VICE PRESIDENT: Thank you, Mr Tindley. Mr Mammone.

PN1857

MR MAMMONE: Yes, your Honour. I also must apologise in advance. I have to be at another place prior to 11 o'clock. Thank you, your Honour. ACCI reiterates that it relies upon our two written submissions, and I won't repeat them here in closing but I wish to highlight a number of main points in reference to the totality of evidence and submissions which are now before the tribunal. The evidence of the employer applicants is cogent. It goes directly to the heart of the modern award objectives for whom the applicants bear the onus in these applications.

PN1858

The tribunal has before it direct evidence from a number of employers and employees that illustrate, in their view, the minimum engagement period in the General Retail Award as having a negative and prejudicial impact in real time. This is not a case of a hypothetical impact sometime in the future. This is occurring in real time, and the evidence and submissions plainly show that the issue cannot be put off until either the two-year transitional provisions review or the general four-yearly review of modern awards.

PN1859

The urgency of the applications illustrates that the employer applicants have, on behalf of both employers and employees, attempted to constructively engage with the issue and provide proposed variations to modify the impact of the minimum engagement clause. Once again, the employers are not arguing for the existing three hours to be reduced to zero. They have sought to make the clause more flexible having regard to the statutory objectives which guide the tribunal. Unfortunately. this particular aspect of the modern award is negatively affecting businesses that play a vital part in offering employment opportunities, particularly in regional areas of Australia.

PN1860

Many of these are small to medium size businesses. As ACCI indicated in its opening oral submissions, parliament has consciously inserted a new objective in the Fair Work Act which requires Fair Work Australia to acknowledge the special circumstances of small and medium size businesses under section 3 subparagraph (g).

PN1861

To reiterate, in ACCI's submission, to not grant the applications in the manner sought would be to undermine a number of broad and specific objectives enunciated by parliament. Firstly, it would be contrary to section 3, which provides that the objective of the act is to inter alia promote social inclusion by providing laws that are fair to working Australians, are flexible for business, ensure for a safety net of fair, relevant and enforceable minimum terms and conditions and assist employees to balance their work and family responsibilities by providing for flexible working arrangements.

PN1862

Secondly, in ACCI's submission, it would be contrary under the specific objectives pursuant to section 134 of the act which require Fair Work Australia, as custodians of the modern awards, to ensure that modern awards once made (a) meet specific objectives and (b) are not contrary to those objectives following their commencement. Clearly, parliament has empowered the tribunal to vary modern awards in a number of circumstances. This is tacit recognition that, should certain circumstances arise, modern awards may be varied. ACCI believes that the evidence illustrates in a very real and practical manner that the operation of the minimum engagement clause in the modern award is not meeting those general and specific objectives under the act since it commenced.

PN1863

ACCI's submission is that a fair safety net is one that provides an appropriate level for employees but does not do so at the cost of other objectives such as employment. It should encourage job creation and the promotion of employment opportunities for both a particular community and for the nation as a whole. It should not threaten the capacity for junior employees, persons undergoing training and persons with a disability to obtain and remain in employment. It should encourage persons to gain a foothold in employment for the first time and it should not threaten skill formation by limiting employment opportunities, particularly for junior employees.

PN1864

In accordance with your Honour's decision - which concerned an application by Integrated Trolley Management Pty Ltd - to paraphrase the test which in your view must be met under section 157 outside of the four-yearly review, ACCI strongly submits that the applicants have established that the modern award's objective cannot be achieved unless the variations sought are made.

PN1865

Turning to the submissions in evidence provided on behalf of the SDA and the ACTU, ACCI submits that they have failed to provide any cogent evidence which would rebut the submissions and evidence of the applicants and which would indicate that the modern award's objective can be met without the variations. As to the weight that should be accorded to the expert witness report and evidence by Dr Ian Campbell, ACCI submits that little weight should be accorded to the totality of the evidence in relation to the merits or the variations sought.

PN1866

In any event, the evidence does not rebut the evidence and submissions of the applicants. Firstly, the evidence provides an opinion as to a whole range of subject matters, none of which are specifically directed to the particular clause under this modern award, nor did any of the viva voce evidence deal with the particular clause and effect or otherwise in relation to the statutory objectives. There was no survey or research work on the actual clause that is the subject of these applications, nor to the impact on casual employees in this sector in the event that the variations are granted.

PN1867

In ACCI's submission, the tribunal should consider the evidence as a broad narrative or commentary on a range of employment-related issues, particularly the merits or otherwise of particular types of working arrangements. Secondly, as to the expertise and independence of the witness, during cross-examination Dr Campbell admitted that he did not have any formal qualifications in industrial relations, human resources management or economics, nor economic modelling - paragraphs 1364 to 1369.

PN1868

The tribunal should not consider the witness as impartial or independent, as the only industrial matters that the witness has been called to provide evidence for is on behalf of the trade unions or the ACTU, which was acknowledged at PN11 of 224. When asked a question as to whether the existing three hours minima was set at the correct level, the witness responded by saying that, "Two hours to me seems too short, I would have thought," at PN1405. However, Dr Campbell admitted that he did not do any economic modelling on the current minimum engagement clause or any other clause at PN1402.

PN1869

The witness did not provide any qualitative or quantitative research on the impact of the three-hour minima, or any other minima in the retail industry, nor did any research cited in the report particularise the impact on working arrangements on particular cohorts of workers such as gender, age, type of employer or geographical area of employment. The witness provided an answer at PN1414 in response to a question on whether an increase in casualisation is a good thing or a bad thing by stating, "In general, I think it's a bad thing." At PN1418, the witness expanded on that response, stating:

PN1870

The issue in Australia, because I've tried to tackle them in a lot of my research, is the level of casualisation. I just think we've got a large number of people, too large a number of people. This is undoubtedly a need for a smaller proportion of casual work, as indeed we find in most OECD countries in one form or another. But in my judgment, I realise it's not up to me to make this call; that we've got too high a proportion of casuals.

PN1871

The witness also indicated that he supports regulatory measures to limit employers engaging casuals. At PN1420 to 1421, the witness states that it is a matter of record that he has supported conversion mechanisms for casuals and measures "to try and (indistinct) the consolidation of regular casual work".

PN1872

In our submission, the material presented by ACCI in terms of the extant problem of unemployment and underemployment of youth in Australia should be a relevant consideration in the context of these applications. It is clear that section 3, Objectives of the Act, and section 134, Modern Award Objectives, requires the tribunal to consider such factors and, in our submission, act in a manner which enhances and which is not contrary to those objectives.

PN1873

ACCI submits that the data and the issues paper, coupled with the Commonwealth data on selected labour market indicators for 20 priority employment areas, indicates that unemployment levels for young people are particularly high compared to adults, with a national average of 5.4 per cent compared to 11.7 per cent respectively. To not grant the variations sought would exacerbate the existing unemployment and underemployment problem in respect of junior casual employees in the general retail sector. Once again, this would be contrary to the expectations and objectives of parliament.

PN1874

The SDA case against the variations can be summarised very simply, in our submission. In essence, the SDA case is not framed in relation to the purpose of a safety net of minimum engagement clauses, nor was it framed as to how modifying the current minima will negatively impact employees or business. They have not provided any direct evidence as to the rationale for minimum engagement clauses for casuals under pre-reform instruments, nor provided any evidence as to why the current provision is set at an appropriate safety net level. The main argument advanced by the SDA is that anything less than three hours is detrimental. At paragraph 54 of the SDA written submissions, they state:

PN1875

The evidence and material relied upon by the SDA establishes the following.

PN1876

Paragraphs (a) to (l) then provide a summary of arguments that attempt to rebut the applicants' evidence. It was at all times open to the SDA to lead evidence from actual casual employees engaged under the modern Retail Award, but it chose not to do so. Instead, witnesses for the SDA provided in most cases what can only be described as hearsay evidence as to the views of casual employees in particular workplaces in particular states in Australia. When one considers the totality of evidence and submissions from the SDA, it appears that their real motivation for strongly opposing the variations is an ideological and coordinated industrial strategy for minimising the level of casuals in the retail industry.

PN1877

Most concerns and arguments put by the SDA and its witnesses were about the impact on existing workers, most particularly permanent part-time or full-time employees rather than existing or future casual workers. The ACCI submits that the SDA position is fundamentally fought on the basis that it will defend any effort that would increase the incidence of casual engagement in the retail sector.

PN1878

The SDA is an affiliate of the ACTU. It is relevant that the ACTU's 2009 congress policy document titled Future of Work, Security of Work Policy: A New Deal on Income Protection and Employment Security Policy states in equivocal terms a number of policy statements. I wish to hand a copy of that to your Honour and the other side. There are three separate documents that I'll go to, which I'll hand up altogether now, your Honour. In relation to the ACTU's - - -

PN1879

THE VICE PRESIDENT: What are these documents? They are all ACTU documents or SDA?

PN1880

MR MAMMONE: The three documents I've handed up - the first one is an ACTU document, which I'll refer to, and the second one is an SDA policy document titled Key Policy, Part-Time and Casual Workers. The third document is a speech by Mr Joe deBruyn.

PN1881

THE VICE PRESIDENT: Any objections to these documents?

PN1882

MR FRIEND: Your Honour, this is out of the blue in the final submissions. They may be what they seem to be. We've got no idea really. It's probably best if it's left to wait, but I can neither be expected to accept their identification nor, in fact, address you on them when they're given to me in this way.

PN1883

THE VICE PRESIDENT: I'll mark them for identification purposes, and you may address them in your submissions, Mr Mammone. I'll mark the first document headed Casuals in the Retail Industry exhibit MFI 1.

MFI #1 DOCUMENT HEADED CASUALS IN THE RETAIL INDUSTRY

PN1884

THE VICE PRESIDENT: The next document, Part-Time and Casual Workers will be MFI 2.

MFI #2 DOCUMENT HEADED PART-TIME AND CASUAL WORKERS

PN1885

THE VICE PRESIDENT: The third document will be MFI 3.

MFI #3 SPEECH BY JOE deBRUYN

PN1886

MR MAMMONE: Thank you, your Honour. The first document - which is, as I'll address in my submission, the ACTU policy document - at paragraph 1 states:

PN1887

This policy (a) confirms the ACTU's longstanding approach to reducing the incidence of casual and contract labour.

PN1888

Further, at paragraph 8 it goes on to describe the action that will be taken in support of that:

PN1889

In addition to this, congress expresses its determination to act decisively during this recession to improve the conditions of casual employees, home based workers, dependent contractors and employees of labour-hire companies. Such action will include (a) unions bargaining for measures to reduce the incidence of casual employment, extending employment entitlements to casual employees and ensuring awards and provide for the right of casuals to convert to permanent employment after a specific period of time.

PN1890

We say that this is also reflected in the SDA's policies, which are a public document, and a number of paragraphs are highlighted for your Honour. The first paragraph in that document states that:

PN1891

The SDA is committed to the protection and advancement of meaningful employment opportunities in the retail industry.

PN1892

Paragraph 5 of that document:

PN1893

The union believes that employment which is other than full-time should, where possible, be on the basis of permanent part-time work with full pro rata benefits. Award provision for such permanent part-time employees should specify a minimum and maximum number of daily and weekly hours and provide for a guaranteed quantum of hours for each employee. Casual employment should be limited to short-term or emergency employment.

PN1894

Paragraph 6 states:

PN1895

We believe that current part-time employees should have priority of access to full-time employment where such employment becomes available and that casual employees should have priority of access to permanent part-time employment.

PN1896

Paragraph 8 of the document goes on to state that:

PN1897

The union believes that the most effective means of managing the incidence of non-full-time employment is by way of award provisions such as ratios or ceilings or other appropriate means.

PN1898

At paragraph 9 the document states:

PN1899

The SDA will actively promote the recruitment and integration of part-time employees to the trade union movement by identifying the problems associated with the recruitment and participation of non-full-time employees and developing strategies specifically designed to overcome these difficulties.

PN1900

In ACCI's submission, we say that the SDA's own key policy - and in their own words, the union wants to limit the incidents of casualisation in the retail industry, even if this means that young people are denied working opportunities. In black and white, the SDA say that to reduce the number of casual workers by awards is by way of ratios and ceilings or other appropriate means. The third document which I've handed up is a speech by the national secretary of the SDA on August 2004. Indicated in that speech, Mr deBruyn states that:

PN1901

Ever since the influx of large numbers of casuals caused by the introduction of late-night shopping more than 30 years ago, the SDA has made serious efforts to try to reduce the level of casualisation.

PN1902

He concludes his speech by stating:

PN1903

However, the level of casualisation remains unacceptably high and needs to be reduced, particularly through provisions in awards which still cover much of the employment in the industry.

PN1904

We say that these documents are relevant, because clearly there appears to be a coordinated industrial strategy by the ACTU and SDA to limit the incidence of casuals in the retail industry.

PN1905

The ACCI submits that this colours the underlying motivations of the SDA and the ACTU in opposing these applications and in which, we say, the self-serving witness statements should be accorded according weight. The ACCI submits that the arguments and evidence of the SDA should be viewed with caution and it is not clear to distinguish between legitimate concerns for casual employees and their public policy position about casualisation in the retail industry.

PN1906

In any event, the ACCI's submission is that all of the SDA's main arguments only go to the issue of one statutory objective; that is, the safety net level. It fails to engage with the other criteria as the applicants have. Once again, there was not one employee subject to the three-hour minimum engagement period here opposing the applications; rather, and probably in a fairly unique case given the history of award-making, the reverse is the stark reality. The two witnesses from the Terang store clearly value the employment opportunities offered and are aggrieved by the impact and operation of the minimum engagement period.

PN1907

Finally, it is apparent that the research material that the AIRC modernisation full bench relied upon was incorrect in relation to one significant pre-reform federal award, as identified in the ACCI's second written submission; that is in relation to the minimum engagement clause in the Shop, Distributive and Allied Employees Association Victorian Shops Interim Award 2000. The material which was relied upon by the AIRC full bench stated three hours when clause 10.4 of the actual award stated two hours.

PN1908

It is our submission that, if the full bench relied upon the accuracy of that information and considered that particular pre-reform federal award before creating the modern Retail Award, then it would be open for this tribunal to conclude that a significant error occurred during award modernisation proceedings, which would be a relevant matter under section 157. Alternatively, it is open for the tribunal under section 160 to act on its own motion to inter alia correct an error.

PN1909

It is uncontroversial that the error was made in the research material. There is nothing in the explanatory memorandum or other extraneous material to indicate that the tribunal cannot treat this as an error, the type of which is amenable to section 160. They are the closing submissions of the ACCI, if it please the tribunal.

PN1910

THE VICE PRESIDENT: Thank you, Mr Mammone. Mr Issa?

PN1911

MR ISSA: Thank you, your Honour. Your Honour, we seek to rely on our submission, which was filed in accordance with your directions. We also state that the modernisation of awards under the Minister of Employment and Workplace Relations' request should reflect the current needs of both employers and employees. In essence, they should be modern. By providing employers with the flexibility to allow employees to work their minimum engagement of two hours, Fair Work Australia will be necessarily varying the award in order to meet the stated objectives of the minister's request.

PN1912

It will also provide an even playing field for employers to compete with larger retailers who currently have collective and pre-reform certified agreements in place. Many of these agreements which have the SDA listed as a party to the agreement have provisions for a minimum engagement of casual employees for two hours, such as those mentioned in exhibit I4. We therefore submit there is no reason for the SDA to argue that the change in minimum engagements will lead to an exploitation of workers. as they have repeatedly agreed to the very thing they are opposing here today, that being allowing employees and employers the flexibility to engage a casual employee in a minimum engagement of two hours.

PN1913

The argument that casual employees - and indeed other employees - may be adversely affected by the variation to the minimum engagement is an outdated argument. Most of the witnesses presented by the SDA were not aware of the protections in place under the General Retail Industry Award. The protections afforded to employees under the award have rendered the exploitation argument of the SDA to be without credence.

PN1914

The SDA has also intimated in their arguments that a two-hour engagement will become the standard engagement for casual employees. What we are in fact advocating here today is a variation to the minimum entitlement that will better reflect the needs of employers by providing for a modern and flexible working environment. We are not asking for a two-hour limit, we are asking for a two-hour minimum. The SDA has submitted no witnesses that are casual employees will be subject to the variation of the minimum engagement of casual employees.

PN1915

There was no reason submitted for this. Perhaps it is because no casual employees are actually opposed to the variation put forth by the applicants here today. The applicants, however, have provided evidence or witnesses that have a very real stake in the outcome of this matter; namely, employers and employees. Dr Campbell, a witness for the SDA, provided an affirmative answer when asked if it would be safe to assume that, if a two-hour shift was mutually agreed to by employees and employers, it would in fact lessen discontent and underpin feelings of relative satisfaction amongst casual employees.

PN1916

Under cross-examination Robert James Singer, an SDA organiser from New South Wales, when read a line from his witness statement saying that, "As a union organiser, I have never received a complaint by a member or non-member about their inability to work a two-hour shift under their agreement or award" - when asked if that was correct, he stated that it was. Now, if an SDA organiser has received no complaints about an employee's ability or inability to work a two-hour shift, then logically there should be no opposition to the variation from that organiser.

PN1917

Paul Griffin, a witness from the SDA, when asked whether paragraph 11 of his statement read that granting of reasonable minimum periods of employment is not a detriment, replied, "Yes." There has been nothing in any of the SDA's evidence to suggest that the variation of the minimum engagement of casual employees to two hours is either unreasonable or unnecessary. We ask Fair Work Australia to recognise the evidence of the SDA for what it is; the pushing of their agenda and philosophy onto the retail workforce, regardless of whether casual employees may actually want it, this agenda being the preference for retail employees to be either full-time or part-time employees.

PN1918

However, this application has not been made to consider whether employment should be full-time or part-time. It is not about whether casual employees want sick leave or annual leave. It is not about unions or employer associations. What it is about is what employers and employees say is necessary to maintain modern work practices. The evidence of Ms Leanne Penreeth demonstrated that the fact employers want to give employees opportunities to join the workforce to allow them to gain valuable experience and at the same time the ability to earn money that assists in alleviating the burden of family budgets.

PN1919

Employees enjoy working as casual employees owing to the higher rate of pay they receive, being 25 per cent under the General Retail Award. As Mr Frank Devries said in his evidence, children only want to work two hours; they want to get some money and at the same time they have the ability to get their homework completed and attend their sporting commitments, which is amongst the rigidities referred to by Dr Campbell of the SDA, the witness.

PN1920

The tenor of the Fair Work Act and the General Retail Award reflects an emphasis on flexibility and communication between employees and employers. The evidence given by both employers and employees at this hearing clearly demonstrates that they want to be able to, in the case of employers, provide hours and, in the case of employees, to work the hours provided. This will provide the best outcome to both parties and should be of paramount interest.

PN1921

It is not the philosophies of the SDA in respect of casualisation that are under consideration here; it is the needs of casual employees and their employers who want to help them and the community that ask Fair Work Australia to seriously consider this application. The variation sought by MGA and the other applicants is designed to ensure that the minimum standards for casual employee are relevant to both the needs of employees and employers in today's retailing environment, thereby ensuring fair working conditions.

PN1922

MGA submits that the current minimum engagement for a casual employee under the General Retail Award is neither fair nor relevant and it should therefore be varied to a two-hour engagement. Clause 54(c) of the SDA's submission claims that many secondary students are regularly working shifts in excess of three hours after school on weekdays and other periods. MGA submits that this may be the case. However, the minimum casual engagement of employees under the award as it currently stands denies employees and employers the flexibility of casual employees to be engaged to work a two-hour shift should the need arise.

PN1923

The SDA, in our submission, state at clause 54(d) that many employers have to offer shifts of at least four hours' duration to obtain casual employees. MGA acknowledges that employers do have casual employees for longer than the minimum engagement under the award; in fact there may be casual employees who want to work 30 hours per week. However, the variation sought today is not designed to provide a blanket engagement period whereby casual employees must only work two-hour shifts.

PN1924

The point made by the SDA is not the argument. Rather, what MGA is seeking is the flexibility that will enable employers the opportunity for casual employees to be engaged for a minimum period of two hours as the business needs require and as employees find it necessary to work around the rigidities in their lives.

PN1925

At clause 54(h) the SDA submitted to Fair Work Australia that a shorter period of minimum engagement will increase the risk that employers will replace part-time shifts with casual shifts. This does not take into account clause 12 of the Retail Award and in particular clause 12.2, which details the manner in which an employee may be hired as a part-time employee. Clause 12.2 of the General Retail Award includes the requirement, among other things, that the agreement between employer and employee contains the actual start and finishing times of each day, the hours worked each day and which days of the week the employee will work.

PN1926

At clause 54(i) the SDA submits that the variation of the minimum casual engagement of two hours will lead to a greater disruption to casual employees' lives and studies. However, the MGA submits that allowing casual employees to work for a minimum period of two hours allows students to better focus their attention on their lives and studies as the time devoted to work will not outstrip the time they can devote to other areas within their lives. Clause 54(j) of the SDA's submission states that the award requires rates for employees who work over four hours and that the variation of the minimum engagement for casual employees of two hours would mean that employers would circumvent this obligation.

PN1927

The MGA submits that the current provisions as they stand for casual employees under the General Retail Award are that casual employees are engaged for a minimum of three hours; therefore they would not fall under this provision and therefore the claim made by the SDA that employers would circumvent the obligation for a break if a minimum two-hour engagement for casuals was varied is a hollow argument, as the current engagement period does not provide a break for employees if they work the minimum engagement period.

PN1928

At clause 54(k) the SDA stated there never has been demand for casuals to work shorter shifts. However, the SDA, which purports to represent the interests of employers in the retail sector, has agreed on numerous occasions to a minimum engagement of casual employees for two hours in the collective agreements that they have been party to. This highlights the fact that all submissions and evidence presented to Fair Work Australia by the SDA are without credence and should not be relied upon.

PN1929

These agreements do not represent any significant increase to casual employees' entitlements. The SDA has made claim throughout its submission that the variation of the General Retail Award would, as they said at clause 52 of their submission, significantly undermine that minimum safety net for junior casuals but also for all casuals in Australia. By viewing the terms and conditions of these agreements with the other clauses in the General Retail Award, it is clear that the submission of the MGA is not seeking to do what the SDA hasn't already done repeatedly.

PN1930

In fact, the MGA is not asking for a reduction in annual leave loading, the casual hourly base rate or the casual Sunday rate. We are merely asking that the minimum engagement of a casual employee be varied to two hours so that employers and employees not on these agreements can enjoy the flexibility and operation of the modern awards.

PN1931

At clause 61 the SDA states that it is largely a retailer's decision to close at 5 pm, not one that is imposed on it. However, what the SDA has failed to take into account are the main things that make retailers viable; that is, customers. If there are no customers entering the store after 5 pm, then it would be financially irresponsible for an employer to remain open past 5 pm, so that a store owner who has made a decision to close the store at 5 pm is ignoring the realities of what trading in modern Australia is all about.

PN1932

Clause 54(l) of the SDA's submission says that shifts of at least three hours' duration have operated successfully Australia-wide. However, the SDA has ignored the range and variety of awards - pre-modern award, sorry - that do contain either minimum engagement of casual employees for two hours or contain exceptions to a three-hour minimum engagement. These awards are mainly in relation to the retail sector: the Victorian Shops Award, the Western Australian (Shop and Warehouse Wholesale and Retail Establishments) State Award, which is a NAPSA, the Retail Industry (South Australia) Award and the Retail Wholesale Industry Shop Employees (Australian Capital Territory) Award.

PN1933

The Victorian Shops Award provides a minimum engagement for two hours for all casuals at clause 10.4.2 sub (b), where it says that an employee shall be entitled to a minimum payment as for two hours' work on any day. The Western Australian award reads at clause 7.2 sub (a) that school students who are employed solely to collect trolleys in or about a shopping centre complex may be employed for a minimum of two consecutive hours between 4 pm and 6 pm Monday to Saturday inclusive. The ACT award reads at clause 13.4.3 sub (g):

PN1934

Casual employees must be paid for a minimum of three hours for each start, except in the case of a Friday night 6.30 pm to 9 pm and a Saturday morning, when they must be paid for a minimum of two and a half hours.

PN1935

The South Australian award reads at clause 4.4.3:

PN1936

Casual employees shall receive a minimum period of engagement of three hours for each engagement. Junior casual employees who work between 4 and 6 pm Monday to Friday shall be subject to a minimum engagement of 1.5 hours within the period specified in this paragraph. Should any such employee work between 6 pm and 6.30 pm, the employee shall be entitled to a minimum engagement of two hours for work performed between 4 pm and 6.30 pm.

PN1937

To summarise, your Honour, the MGA submits that the variation of the General Retail Award is necessary to achieve the objectives of award modernisation to allow casual employees to be able to obtain and retain work more readily. The variation is necessary to ensure the continued employment of many casual employees. The variation will be consistent with the flexibility provisions of the Fair Work Act, and that the variation will contribute to productivity of retail businesses across Australia. Those are the submissions of the MGA, thank you, your Honour.

PN1938

THE VICE PRESIDENT: Thank you, Mr Issa. Mr Halls?

PN1939

MR HALLS: Thank you, your Honour. Your Honour, the ARA relies on both its oral and written submissions that have already been put in relation to this matter. We would certainly submit that there is clearly a justification, in our view, for Fair Work Australia to make a variation to the casual minimum engagement provisions of the award; namely, to satisfy the modern award objectives, as previously submitted.

PN1940

Paragraphs 41 to 46 of our written submissions set out some commentary from ARA members regarding the survey that we included, as you would be aware, and quantify responses to the questions put. In our view, this, coupled with the evidence given by other employer groups, clearly illustrates a major problem with the existing award term and a clear need for flexibility.

PN1941

We note that Fair Work Australia has also received an additional statement from a Mr Carl Miller of Toy Kingdom, setting out his concerns regarding a three-hour minimum engagement. The ARA has also received countless emails and correspondence from members both before and during these proceedings about the problems associated with the current term. I wish to read out to Fair Work Australia some comments received in relation to - - -

PN1942

MR FRIEND: Your Honour, this is not - - -

PN1943

MR HALLS: I pre-empted that this was about to happen.

PN1944

MR FRIEND: Mr Halls knew that I was going to object to him reading out emails they have received. How can that assist the tribunal at all?

PN1945

THE VICE PRESIDENT: Is there any objection to them being treated as submissions rather than evidence?

PN1946

MR FRIEND: Your Honour, I'm not sure how they could be treated as submissions. Mr Halls can say what he wants to say, but if he wants to say someone said this to them - we don't know how many emails - it's a matter for your Honour. If your Honour wants to have it in as submissions - we just don't see how any weight can be put on it, on any view, but I don't want to hold things up unduly.

PN1947

MR HALLS: Your Honour, I am completely accepting of that situation; that it's a level of weight, if you like - or perhaps even no weight, as the case may be - that can be attached to these submissions, but if your Honour is willing to hear me out on these points - they are only fairly brief - I would like to go through them for you.

PN1948

THE VICE PRESIDENT: Yes, please proceed.

PN1949

MR HALLS: Thank you, your Honour. Just to provide some examples of some of the feedback we're receiving in relation to this, we get four to five resumes per day dropped in or emailed to us. Most of these resumes are from school kids looking to pick up a couple of hours' work in the afternoon after school, so they could start around 3.30 pm, and we close at 5.30 pm. In the past we have offered this, though with the three-hour minimum it is just not practical any more.

PN1950

We were explaining this to one of the girls we couldn't roster on any longer, and she offered to leave school early so she could actually work a three-hour shift. Another example being, we would like to employ school leavers from 3 to 5 pm on numerous occasions, but we cannot. We will not pay for the hours worked. I have four casual school employees who work two hours after school. If this law comes in, I will have to do the extra hours myself and sack an adult casual.

PN1951

For the school students, there is no way we are able to grant them three hours when we are not open long enough. Another example - we often have school staff work from 4 pm to 5.30 pm at busy times of the year. There is no way I will pay for three hours or 1.5 hours of work.

PN1952

Another example, "There are many times when they would have liked to come in after school during the week, and often we could have used them, but we were not prepared to pay a minimum shift of three hours for only two hours worked." The last statement I'll refer to there, your Honour, for this purpose is, "This part of the so-called modern award in our view," referring to the example, "is a retrograde step, and will deny many youngsters much needed training, work experience and ethics. This is not realistic. I would not mind employing them for three hours, but they are only available for two."

PN1953

Some of the comments raised are obviously quite direct, and point to concerns of both cost, flexibility and also the welfare of the employees concerned, and it's certainly our view that this is reflective of the situation currently, and a problem that will only be exacerbated if no changes are made to the existing award provision.

PN1954

Your Honour, I would just now like to make some comments on the evidence that's been introduced by the SDA in relation to this matter, and specifically focusing on the situation where circumstances may exist where casuals could work less than three hours. On that particular point, there appears to be much inconsistency in the evidence given by the SDA witnesses surrounding this. Some examples here appear at 483 of the transcript. Mr Williams states that, "It might be appropriate for him," referring to a casual, "to work less than three hours."

PN1955

We then at paragraph 527 have Mr Williams agreeing that not being employed at all was a worse situation than having a two-hour minimum engagement. We then have a look at what Mr Ketter has submitted on this particular point at paragraphs 551 to 552. Mr Ketter makes clear his complete opposition to a two-hour shift in all circumstances, no exceptions whatsoever. At paragraph 645, Mr Ketter agrees then that, "Some work is preferable to none at all." At paragraph 651, Mr Ketter then goes on to assert, "There should be no special treatment for young workers or school students."

PN1956

Having a look at paragraph 675, Mr Dwyer agrees that he is fundamentally opposed to two-hour shifts for casuals. Moving on to paragraph 773 to 774, he then asserts, "An employee is better off without work than having a two-hour minimum." If I move on to paragraph 1306, which involves Dr Campbell, he agrees that, "There could be flexibility to have less than three hours if perhaps such a term was carefully designed," so he's clearly indicating that there is a possibility for that to occur.

PN1957

At paragraph 1482, Ms Bunell feels anything less than three hours would be inconvenient. At paragraph 1550, she then goes on to say she would rather see casuals out of work than have a two-hour shift. At paragraph 1599 and 1600, Mr Griffin then suggests there should be no exceptions for school students or Terang employees regarding a three-hour minimum. Paragraph 1605 he also suggests it is okay for casuals to lose hours for what they refer to as the greater good.

PN1958

Paragraph 1667 and 1668 involve Ms Carrington indicating her complete opposition to a two-hour shift for students. At paragraph 1772 and then 1773, Mr Singer also indicated his clear opposition to a two-hour minimum. At paragraph 1780, Mr Singer make a statement to suggest he's unable to see any situation where less than three hours is justified. We then go on to 1791 and 1794, where he sees no exception for school students, but apparently does see justification where there is a monetary problem, ie an unmanageable cost to employers. At paragraph 1796, Mr Singer agrees that in the case of Victoria, a three-hour minimum is an additional cost burden for employers, and then goes on at 1822 to agree that a two-hour minimum is better than no job at all.

PN1959

Your Honour, we have significant difficulty in how there can be such a difference in views from the same union, as far as this particular issue is concerned. There appears to be such a level of inconsistency between the witness evidence provided on this particular point, especially given the general position advanced by the SDA in its submissions. Even more concerning, in our view, is the clear evidence that the SDA is happy to have its members put out of work, rather than entertain any flexibility whatsoever regarding casual minimum engagements, even if that is confined only to junior employees or school students as the case may be. In our view, if that doesn't reflect a disservice to their own membership, then we don't know what does.

PN1960

Moving on to the issue of employees who want to work less hours, at paragraph 533, Mr Williams acknowledged that there may be casual employees in Victoria who would be willing and happy to work two-hour shifts. At paragraph 697, Mr Dwyer also agrees that there may be casuals that want to work two-hour shifts. At paragraph 1250, Dr Campbell also agrees that some casuals would be content with less hours in accordance with paragraph 13 of his statement. At paragraph 1489, Ms Bunell then states that most people wouldn't want a 12-hour shift, clearly indicating in our view that some would.

PN1961

At paragraph 1454, she goes on to state her belief that school students should have at least four-hour shifts. Then at paragraph 1460, Mr Griffin suggests that employees who want less hours wouldn't necessarily be thinking in their best interests. At 1705 and 1706, Ms Carrington is unable to comment generally on whether parents prefer to have their kids to work less hours than having no work at all, and I think indicated that she was unaware that parents may have signed on to the Terang petition.

PN1962

At 1737 and 1739, Ms Fawcett agrees that the only people who work short shifts are those who want to, but can't think of any other reason why there should be a situation of less than three hours for a minimum engagement. At 1785, Mr Singer agrees that only people who would work less hours are those who would want to, and then indicates that he's never received a complaint about the inability to work two-hour shifts at paragraph 1805 which I believe is an issue my friend touched on earlier.

PN1963

The SDA in our view clearly acknowledges that there are casuals who want to work less hours. I don't think there can be any dispute about that. However, the main point raised by the SDA here is that there is a concern for erosion of permanent employment, which in our view has not been substantiated in any way. A situation that doesn't allow for lesser hours to be worked when employees want is a further indication of the award objectives on flexibility not being met, and in our view, this also negatively impacts on the issue of workforce participation.

PN1964

In terms of cost to employees of getting to work as opposed to perhaps being driven by their parents, we would just like to refer to some evidence that has been put by the SDA on that. At paragraph 1544 and 1545, Ms Bunell suggests that in central west New South Wales, most children have parents driving them to work, and agrees that this is not necessarily a cost to employees. At 1634, we have Mr Griffin that quite a number of students would be driven to work by parents, at no cost to employees, although he is unable to quantify how many. At paragraphs 1679 to 1688, Ms Carrington is unable to differentiate cost issues for parents based on number of hours in shift; for example, it's not going to cost a parent any more to drive someone to a two-hour shift, than it would, of course, to drive them for a three or a four-hour shift, as the case may be.

PN1965

It's our belief that these statements should be considered seriously by Fair Work Australia, as it appears clear that a large proportion of junior casuals are driven to work by their parents, and certainly at no cost to themselves directly. I don't believe anyone involved in this matter though has actually quantified how many there would be, but clearly there is a large proportion in our view.

PN1966

As far as the nature of casual employment is concerned, I think that there has been some general consistency on the SDA submissions, and evidence about recognition that casual employment does involve some insecurity, when compared to permanent employees. There has been some suggestion from some witnesses that casuals have little or no protections at all, but we have obviously made submissions to the contrary previously, and I'd be surprised if anyone would disagree that the Fair Work Act does certainly provide or afford more protections than what would have been available under the previous Work Choices regime.

PN1967

In relation to the issue of casualisation, your Honour, at paragraph 638 to 640, Mr Ketter raises concerns about casualisation and erosion of permanent employment, and this theme has popped up in relation to a few witnesses. At paragraph 1162, Dr Campbell states he's surprised that there are no casual employees giving evidence in relation to this case. At paragraph 1294 and 1299, Dr Campbell agrees that casualisation has been a contributing factor to union membership decline.

PN1968

At paragraph 1313 Dr Campbell acknowledges that there is no law limiting casual engagements in proportion to permanents, ie that an employer is free to engage employees in whatever status they see fit, as long as they are complying with the terms of any binding award and binding legislation.

PN1969

At paragraph 1495, Ms Bunell also raises concerns about casualisation in the context of erosion of part-time hours. She agrees later on, at 1542, that employers have the right to decide on the type of engagement of the staff. She also goes on, at 1553, to admit preference for part-time employees rather than casuals in accordance with the SDA policy. At paragraph 1557 Ms Bunell suggests casualisation has played no part in union membership decline. In paragraphs 1813 to 1816 Mr Singer agrees there's no issue with retailers using more casuals than typically needed to staff a store and has no issue with casualisation.

PN1970

Once again, there appears to be some clear inconsistency as to whether casualisation is an issue for the union and indeed whether it is a contributing factor for membership decline. There has been no evidence supporting views that a change in the minimum engagement will erode part-time hours. It's our submission that that is pure speculation on behalf of the SDA. At paragraph 1619 Mr Griffin is unable to provide evidence that employers wouldn't still provide long shifts where they can, even if a three-hour minimum was reduced. We would suggest this is relevant to many employers who engage employees, casual staff for longer shifts. If that situation works well for them, why would they seek to cut hours just because they can under a reduced modern award term?

PN1971

I suppose it would be a similar situation if we look back at the Work Choices regime which allowed perhaps a lot more flexibility for employers, if you like, as far as workplace agreement content was concerned. And just because that was available, we didn't see a situation where all employers in the country suddenly took advantage of that situation. We are seeking flexibility for those, your Honour, that can't work for longer shifts and have made it clear to Fair Work Australia and the SDA our willingness to consider alternative positions to that advanced in our original application.

PN1972

So we are being very forthcoming with looking at alternative ways of dealing with this issue; whether that could be a lesser period by agreement or even as determined by the employer in certain circumstances. There has been an outright objection to that by the SDA and we have not been able to move forward on that at all. We maintain the view that we previously submitted that the SDA's opposition to the proposed variation is based on a concern about what is best for the union itself and not what is best for its members or even those eligible to be its members.

PN1973

THE VICE PRESIDENT: How can a formulation that is based on agreements be assured that the agreement is genuine in all cases?

PN1974

MR HALLS: One example, your Honour - and again my friend at the other end of the bar table may have difficulty with this, but amongst these email examples that I've been referring to, one person actually suggested, "Well, why couldn't students actually be required to produce a student card, for example, in order to satisfy a situation where they could be engaged on a lesser period than three hours?" Now, we are certainly open to further discussion on that particular point to look at what sort of protections, if you like, would need to exist to ensure that those situations are genuine.

PN1975

As I have indicated previously in our submissions, your Honour, we would be quite happy for that to be only confined to certain circumstances and perhaps even made clear through a written agreement only as the case may be. So we are quite happy to look at alternatives rather than having just a blanket rule that says, "Three hours is dropped for two hours for all employees concerned." We've maintained that, of course, from the beginning of these proceedings, and we will be quite happy to look at further alternatives as far as that's concerned. But it appears clear to us that the SDA just isn't willing to discuss any options as far as that's concerned.

PN1976

THE VICE PRESIDENT: You are not putting any alternatives. What's the basis of your statement that you're prepared to look at alternatives?

PN1977

MR HALLS: Well, your Honour, I suppose as has previously been submitted also by the NRA, the NRA and the ARA have proposed a model clause which we believe would be sufficient for this purpose. Again, we understand that that has been rejected by the SDA, but in terms of what other protections would be available if your Honour is of a mind to consider a variation to the award to allow for a lesser period than three hours, and even if that is subject to some very specific requirements and protections, then we would obviously respect that and certainly that would be a more favourable situation, in our view, to both employers and employees than the current clause as it stands at the moment.

PN1978

Your Honour, there probably isn't really much else that I would like to say in closing. We believe that obviously this variation that has been proposed - to at least allow for some reduction in the minimum engagement, even if it is for particular employees such as school students, would satisfy the modern award objectives by promoting flexible work practices, of course, and would obviously promote workforce participation. Otherwise, your Honour, we would rely on the other submissions that we put in relation to this matter, unless you have any further questions.

PN1979

THE VICE PRESIDENT: No. Thank you, Mr Halls. Mr Friend or Mr Shipstone. Mr Shipstone?

PN1980

MR SHIPSTONE: Yes, thank you, your Honour. If it pleases, the ACTU submissions and our closing will be fairly brief. Our position as set out in our written submissions on 22 April and our opening submission in these proceedings on 6 May is that the applications currently before the tribunal should be dismissed. The primary reason for this, we say, is that the matters have already been heard and determined during award modernisation and should not be relitigated so soon afterwards in the absence of any demonstrable change in circumstances in the period since then.

PN1981

In our submission, section 587 of the act gives the tribunal the discretionary power to dismiss an application on this basis. It can do this before it gets to the point of considering whether the variations sought are necessary to give effect to the modern award's objective. At this stage the only point we'd make further to what we've already put in this regard is simply to note that our submissions in support of this position have not been seriously contested by any of the applicants in these matters and their submissions in reply.

PN1982

In the event the tribunal does not use its discretionary power available to it, our alternative position, as set out in our written submission, is that the application should be dismissed on the grounds that they're not necessary to achieve the modern award's objective. In our view, the full bench got it right the first time around with the three-hour minimum engagement provision, and there's no case for revisiting that. In our submission, the three-hour minimum engagement period is a fair safety net provision but, for reasons that have been outlined in the witness evidence for the SDA, provides an appropriate minimum level of protection for employees across the county covered by the general Retail Award.

PN1983

In particular, it recognises the costs and inconvenience involved in working short shifts and in noting that in the case of the most junior employees - we're talking about employees under the award earning about $9 an hour; and when you consider the evidence of Ms Carrington, for example, the return bus fair to work on the Gold Coast can be $10.60 - you can see for very practical reasons why a three-hour minimum engagement period is such an important protection.

PN1984

The three-hour stint also recognises the evidence from the SDA that casual employees do not choose or ask to work shorter shifts. Rather, they want to work more hours per day. It recognises also the evidence that the result or logical outcome - a reduction in the minimum engagement period is a reduction in the length of shifts that casual employees will be given. This has obvious effects on their income security.

PN1985

So, sir, our position clearly is that three hours is the appropriate minimum engagement. Of course, it's the applicants, though, in this matter who bear the onus of showing why the variation sought is necessary to achieve the modern award's objective and, in our submission, they've failed to do so.

PN1986

The evidence put forward by the applicant when tested under cross-examination has simply not demonstrated the cost and employment impacts of a three-hour minimum engagement period that were asserted in their submissions. My friends at the SDA will go into this evidence in more detail, but we'd just like to point out some of the following relevant considerations that emerge for us from the evidence.

PN1987

For example, we have the evidence that employers are continuing to take on young employees. In the case of Ms Penreeth and her business at Lockington, for example, they'd taken on seven new casual employees this year, notwithstanding their stated concerns about the impact of the new modern award provision. It's far from clear from the evidence that the job losses claimed will in fact occur. In the case of Mr Wareham, for example, we note that he clarified at paragraph 1072 that, when he said in his statement that, "The changes directly resulted in a loss of employment," it should have read "will result", and while he believed this was the most likely scenario, it was also possible that this would not happen. For example, it is possible to arrange and to juggle people and rosters and the hours available, as employers always do, in a way that avoids any problems.

PN1988

I mean, Dr Campbell discussed ways in which this could be done in his evidence and employers themselves, such as Mr Wareham, acknowledged that they could do this. We also heard from Ms Fitzpatrick, who employs junior casual employees at weekends or on nightfill during the week outside of store hours. I mean, alternatives are there for this small minority of employers under the Retail Award who feel they cannot offer after-school shifts to their school-aged employees.

PN1989

To the extent that there are any jobs at risk, the evidence from Ms Fitzpatrick also showed that there are broader factors at play, such as the availability of work, and the question of what the minimum engagement period is is simply not the key determinant in what shifts can be offered. In evidence we also heard that any requirement for shorter shifts is often a self-imposed decision and not related to any external trading hours restrictions. For example, in the case of Mr Devries, each of the four stores in question is open until 8 pm and Mr Devries confirmed that a three-hour shift could be accommodated within the opening hours, starting from 5 pm.

PN1990

From Mr Devries we also heard that the issue of three-hour minimum shifts was in fact not a concern about costs for him but it was more of a concern about how work fits in with school and other commitments and, in addressing that, some of his employees do work on weekends. In other cases it was perhaps unclear what the issue in fact was. The evidence of Ms Penreeth, for example, was that junior employees could work shifts from 4.45 until 7.30, just 15 minutes short of three hours, and if they started at 4.30 they would in fact get a full three-hour shift.

PN1991

If I could perhaps also just address the material which was raised by the ACCI in their submissions, we would share the concerns expressed by the SDA as a matter of process about matters such as this being introduced at this late stage in proceedings but, in any event, I don't think they take us anywhere. The ACTU clearly does have longstanding concerns about the extent and impact of casualisation and has put forward these concerns in a number of forums over the years, and will continue to do so, but to suggest our involvement in this case is part of some coordinated industrial strategy between ourselves and the SDA is just not the case.

PN1992

Our involvement in this particular matter is twofold. Our primary involvement has been as a matter of principle and done in the public interest to argue that matters that have been heard and determined should not be relitigated and, secondly, to advocate in support of the current minimum engagement period as a fair safety net provision for casual employees, and that is entirely consistent with our commitments and the congress documents which have been shown today to improve access to decent work for casual employees.

PN1993

Finally, in closing, we would also argue strongly against any notion that the tribunal is required to make some false choice in this matter between the two-hour minimum period that protects jobs and a three-hour minimum period that doesn't, which was a line of argument pursued by some of the applicants in these matters. As just indicated, the evidence provides no support for this contention and neither is it the way that the fair work legislative framework should be interpreted. Under the Fair Work Act the objective and intention should be to achieve both good employment conditions and protections and good employment outcomes and not to trade off one against the other. The current clause 13.4 of the modern Retail Award achieves this objective and there is no case for it to be varied and, on that basis, the application should be dismissed, and that's where I will leave the submissions of the ACTU, if it pleases.

PN1994

THE VICE PRESIDENT: Thank you, Mr Shipstone.

PN1995

MR SHIPSTONE: If I may be excused for a brief period?

PN1996

THE VICE PRESIDENT: Yes, indeed.

PN1997

MR SHIPSTONE: Thank you.

PN1998

THE VICE PRESIDENT: Mr Friend?

PN1999

MR FRIEND: Thank you, your Honour. Your Honour, I want to go to the written submissions that we filed at the beginning and, as it were, talk your Honour through those in a minute, but if I can commence with a preliminary observation: I think all parties are agreed that the exercise of any discretion that the FWA may have in this matter is conditional upon the requirement that the change be necessary.

PN2000

Given that, it would seem to be axiomatic that the change should be readily identified. If it's necessary, then everyone ought to be able to sit down and say, "Well, there it is." Instead what we have had through the course of this case is a somewhat extraordinary approach. Initially the NRA made its application on 16 February and asked that the three-hour minimum be reduced to two hours, and the reason given in the application for that was the necessity to accommodate young people after school.

PN2001

In their application the Master Grocers initially also asked for three to be reduced to two and gave the same reason in paragraph 3 of their application. Then the ARA, when they filed their application - again three to two - and accommodation of school children was the necessity; what gave rise to the requirement. Then it appears that - in the course of preparing the case in relation to the two casuals that have been identified in the whole case, who may have had their employment opportunities reduced, it became apparent that two hours wouldn't fix it for them, because Ms Harrison and Mr Spencer could only work for one and three-quarter hours. So what happened on the first morning was that we got a new application from two of the three parties, the NRA and the ARA, involving a reduction to two hours except for secondary students who, it was suggested, could be employed for one and a half hours between 3.30 and 6.00, Monday to Friday.

PN2002

Now, apart from Mr Halls, who has made the submission that anything is fine - it just needs something to be done about it, and we don't know what - no-one has addressed the amended application at all. No-one has said anything to your Honour about one and a half hours and school students; no-one has said anything about any basis for reducing the minimum engagement from three to two hours for people who are not school students. So the amended application introduces a whole new area of the case; reduction in casual employment minimum engagement for people who aren't school students. There has been no evidence about that. There has been no basis put forward for that.

PN2003

The whole case is focused on school students.  It was badly framed to start with because it didn't address the problem and yet, when it comes to making final submissions about the one and a half hours that goes with the school students, nothing is said, not a word. It may be that there is a good reason for that, your Honour, because, in our submission, the amended application creates more problems than it solves for the applicants.

PN2004

There is a concern for school students, so you give them an even shorter engagement. Well, if we're talking about the employment of young people, your Honour, one would have thought that the minimum engagement for unemployed persons of school age is a very significant factor. In other words, two applicants come for a job, a casual job, to the employer, both aged 17. One is at school and one is not. Under the proposed clause in the amended application, T1, the school student can be employed for one and a half hours and may be more attractive to the employer for that reason. The unemployed young person has to be employed for two hours and may be less attractive. That would seem, in our submission, your Honour, to go dead against the modern award objective.

PN2005

Additionally, your Honour - and I'll come back to this when I discuss some of the agreements that have been put up by the MGA - the proposed clause is not linked in any way to trading hours. So, again, the problem that's identified is country shops. One country shop - it could be one part of one country shop on the evidence, the hardware shop and not the supermarket at Terang - has to close early, or has to close at 5.30 and therefore no-one can get even two hours' employment in after school. But nothing in the clause is directed at hours being necessarily curtailed by closing times.

PN2006

So, your Honour, we will submit - and I'll come to the detail in a minute - that there's simply no justification for any change, but that in any event the proposals that are being put up are simply not thought through and can't address the situation. In a sense that's what Mr Halls was saying. Anything - give us something. Your Honour asked him, "Well, what happened to ensure it's a genuine agreement?" With respect to Mr Halls, he ducked the question. It is a good question with respect, your Honour, because that's why we have minima, and to allow a reduction by agreement in circumstances with what you're dealing with is an employer and a very young person looking for their first job, how are you going to ever ensure that it's a genuine agreement.

PN2007

MR HALLS: Your Honour, may I just raise an objection regarding the submissions that are being made by my friend? Would you like me to respond to that now or would you prefer after he's finished his closing?

PN2008

THE VICE PRESIDENT: I'll give you a final opportunity of reply after Mr Friend finishes.

PN2009

MR HALLS: Thank you, your Honour.

PN2010

MR FRIEND: Now, your Honour, could I ask you to turn to the written outline handed up at the commencement of proceedings, or in fact filed prior to the commencement? Does your Honour have that?

PN2011

THE VICE PRESIDENT: Yes, I do.

PN2012

MR FRIEND: We can also hand up to your Honour now - it might be useful - the folder of the authorities referred to in that document. I won't take your Honour to all of these but at least your Honour will have them.

PN2013

THE VICE PRESIDENT: Thank you.

PN2014

MR FRIEND: We gave my learned friends a list of these yesterday. We set out the background to the matter in paragraphs 1 to 3 and deal with the award and note the evidence that's to be called. Moving forward onto the third page we deal with the jurisdiction. Your Honour will be aware that ordinarily dealing with modern awards is a task to be undertaken by a full bench. However there are circumstances where a single member can make changes and that's the type of application that's being made here under section 157 where it is necessary to make the change to achieve the modern award objectives.

PN2015

We deal with onus in paragraph 14. The applicants I think accept that they carry the onus in this matter. Then we refer to some of the issues - some historical matters - in paragraph 15 and going on. Your Honour will be aware of the Pharmacy Guild case which dealt with the prospect of reducing the minimum engagement under the pharmacy modern award from three to two hours. The full bench said at paragraph 6:

PN2016

The three-hour minimum is reflected in a number of pre-existing awards and notional agreements preserving state awards. Although some pre-existing awards and NAPSAs have lesser minima in our view the terms in the modern award are not out of step with most of the instruments.

PN2017

Now, we then go in paragraph 16 to the instruments and NAPSAs - the awards and NAPSAs upon which the award we're dealing with is based. This material, your Honour, is found with our submissions in a folder that we handed up to your Honour on the last occasion. Does your Honour have that?

PN2018

THE VICE PRESIDENT: Yes, I do.

PN2019

MR FRIEND: I wish to take your Honour to that because there have been matters referred to during the course of the hearing and earlier today about the few awards with a lower minimum than the three hours. If your Honour turns to the tab marked 16(a) this deals with New South Wales, and your Honour will see in the second column a summary of the provisions in relation to minimum casual engagement. So in the Shop Employees (State) Award New South Wales there's a three-hour minimum shift exception for a new employee engaged to work within two hours for the first two engagements only. In the Retail Services Employees (State) Award three hours. Restaurant et cetera Employees' Retail Shops et cetera three hours with an exception about training.

PN2020

It then moves on to Queensland behind tab 16(b). Again, three hours except for training in the Retail Industry (State) Award. Baking and Pastry Cooking Retail Stores Award three hours except for training. Meat Industry four hours. Parents and Citizens and Other Associations Retail three hours. Milk and Cream Distributors four hours.

PN2021

Moving on to the next tab 16(c) and South Australia. Three hours except junior casuals who work between 4 to 6 pm Monday to Friday work one and a half hours within these hours, or two hours if they work between 4.00 and 6.30. Delicatessens three hours. Pharmaceutical chemists three hours. Broken Hill Commerce and Industry Consent Award two hours if engaged prior to 4 pm, and one and a half after 4 pm. Retail, Wholesale and Distributive Employees Award three hours.

PN2022

16(d) Tasmania. That's four hours. Western Australia in 16(e) three hours. Two hours for school students collecting trolleys and two hours in circumstances involving training.

PN2023

THE VICE PRESIDENT: It goes beyond collecting trolleys, doesn't it?

PN2024

MR FRIEND: I beg your pardon, your Honour?

PN2025

THE VICE PRESIDENT: It does beyond collecting trolleys?

PN2026

MR FRIEND: Yes.

PN2027

THE VICE PRESIDENT: "School students also in a shopping centre complex."

PN2028

MR FRIEND: Yes - "may be employed for a minimum of two consecutive hours between 4 and 6 pm Monday to Saturday inclusive." Well, no, your Honour. It is just trolleys. "Students who are employed solely" - solely - "to collect trolleys in or about a shopping centre".

PN2029

THE VICE PRESIDENT: Yes.

PN2030

MR FRIEND: It's just trolleys.

PN2031

THE VICE PRESIDENT: Yes. The "or".

PN2032

MR FRIEND: I read it too quickly the second time.

PN2033

THE VICE PRESIDENT: Yes, so did I.

PN2034

MR FRIEND: Licensed establishments is one day or three hours in other circumstances. Moving beyond that to the ACT, you've got a three-hour minimum except for Friday night, 6.30 to 9.00, and Saturday morning where it's two and half hours. Video shops three hours except for Saturday morning and Friday night.

PN2035

Chemists it's two hours; bootmakers three hours, new employees for training two hours, two engagements; commercial travellers it's three hours.

PN2036

16(g) is Victoria. We have a replacement for this, your Honour. There was, I think, one error. I'll hand that up to your Honour, and there are copies available to my learned friends. The amendment is in respect of the first row under the Shop, Distributive and Allied Employees Association Victorian Shops Interim Award, it should read two hours or four hours for night shift - nightfill really I think it is, but anyway, night shift. Then we've got two hours, three hours, two hours, two hours, three hours and no limit under some awards.

PN2037

I'll come back to that, your Honour, because of the point the ACCI made in relation to the material before the full bench when it made this award in respect of Victoria. 16(h) is clerical retail industry. It's a South Australian award, three hours; Western Australian award, four hours; four hours in New South Wales; ACT we've got three hours except Friday night and Saturday and the first two shifts; Queensland is three hours; Tasmania is four hours; clerical and administrative employees in Victoria no minimum engagement; in the Northern Territory, three hours.

PN2038

We've set out behind 16(i) history of casual employment clauses in states other than Victoria. I'm not going to take your Honour through those, but if your Honour wishes to understand how these clauses - it was said that there was nothing before the tribunal in relation to the history of these matters, but in fact there was all of this material. I'm not sure that it necessarily advances the issues a great deal, but at least it exposes the background to the clauses as they existed before the full bench made the award that it made. 16(j) is a separate - - -

PN2039

THE VICE PRESIDENT: Any recent arbitrations over this issue, in any of the pre-existing instruments?

PN2040

MR FRIEND: No, your Honour, I don't think there are. There was a reduction from four to three in New South Wales and Queensland in 1990. You can see, for instance, if you turn to page 7 we deal with Queensland, we deal with the structural efficiency at the bottom of the page - structural efficiency matters. A number of awards were combined. RAQ first put a proposal to decrease them, in engagement from four to two, rejected by the SDA, counter-proposal of three hours, with existing employees saved on the four-hour shift. So when there was a change from four to three, there was a preservation clause, a lot of discussions and then an agreement of three hours, but your Honour will recall how a number of things were done during the years when structural efficiency was the watch word of negotiation.

PN2041

Your Honour will turn then to South Australia and look at page 10, 1981 award variation. Amendment arose from an application by Mr Boag the secretary of the South Australian branch of the SDA. Relating to juvenile casual employees, SDA sought to have provision relating to juveniles deleted. At that point, there was no minimum period of engagement other than Saturdays and after 6 pm weekdays. It arose out of concern by the union regarding how some employers were using the current provision. There had been instances where employers were having juvenile staff work over the Christmas holiday period, realising it was not as busy as anticipated, and sending them home after 15 minutes. There was a compromise position accepted. That's starting from a base where there was no minimum, which is what we see in South Australia and the provision that I've taken your Honour to already.

PN2042

Victoria - we ought to deal with Victoria in a little more detail. The Shops Award was created in 1970 by amalgamating a large number - this is an old state award, of course, your Honour. I'm behind tab, I'm reminded, 16(j) now, your Honour.

PN2043

THE VICE PRESIDENT: Yes.

PN2044

MR FRIEND: The original provision was two hours and 55 minutes on Saturday, and four hours any other day. The earliest reference to casual minimums in the previous shops awards goes back to 1949, when it was four hours. By 1952 it was the type of provision which is in the 1970 award. In 1972 it became three hours on a Friday or a Saturday, and four hours any other day. 1972 - in fact it did coincide with the introduction of late night shopping on Fridays in Victoria. Then in 1984, when the 38-hour week was introduced, again, changes were introduced by agreement: three hours on Thursday, Friday and Saturday, and four hours every other day, plus two periods of training. Of course, in Victoria, the casual loading was 33 and a third per cent. That only ended in 1988.

PN2045

THE VICE PRESIDENT: You've provided the 1991 or the 1992 full bench decisions in your authorities?

PN2046

MR FRIEND: Yes. 91 the minimum was reduced to two hours. Are they in our authorities? I don't think they are, your Honour, no.

PN2047

THE VICE PRESIDENT: They may be significant.

PN2048

MR FRIEND: Yes. Well, we've extracted the reasoning to this extent, your Honour, in pages 18 - we'll get copies of those and have them sent to your Honour during the course of the day.

PN2049

THE VICE PRESIDENT: I'd appreciate that, yes, thank you.

PN2050

MR FRIEND: Yes. 18 to 22, the full bench explained why it was willing to reduce the daily minimum to two hours. The main argument was its desire to promote permanent employment, being convinced by employer witness evidence that greater award flexibility would help employers employ more permanents. It's a clear expectation that there would be a resultant improvement in numbers of part-time employees at the expense of casuals, and that there would be no significant change in the level of full-time employment in the industry. It was to be monitored by the commission.

PN2051

Then, of course, state awards were abolished in March 1993. There were three shops awards created federally in 1994, carrying over previous awards. You'll see that in 1994 also Foggo C reintroduced eight and a third percent for annual leave, because of the situation it had obtained in Victoria, but which changed when the awards were brought into the federal jurisdiction, and the two-hour minimum carried on there.

PN2052

You'll see that the modern award then changes the minimum engagement for casuals from two to three but also reduces the loading from 33 and a third to 35 over a transitional period. You'll see also reference to the fact that under the Federal Shops Award casuals were entitled to pro rata sick leave on top of their penalty rate. They now revert to the national employment standards. I should say, your Honour, that we are dealing of course with a national system. We don't have a state-by-state regime, and no argument has been put to your Honour at all by the applicants that all the other states should have the minimum engagement reduced simply to bring it in line with what was enforced in Victoria before the making of the modern award.

PN2053

As I'll take your Honour to in a minute, probably unnecessarily, the submission we make is that the full bench considered this matter and considered the range of conditions that applied across the country, and there were a number of submissions about this very point put to the full bench, and it determined that three hours was the appropriate minimum. Nothing about that has changed. We'd submit that there would need to be some change to enliven the commission's discretion in relation to a matter such as this, because otherwise what you have is a single member sitting in appeal over a full bench.

PN2054

THE VICE PRESIDENT: I think the commission's web site research tab might have changed.

PN2055

MR FRIEND: Well, there are other errors in that, your Honour, which go the other way. I'll take your Honour to those now. It's been altered on the commission's web site now, we're told, but some of the errors probably go back to the one that existed at the time the award was made. I'll hand this up to your Honour. If you look at the first page - this is also contained as attachment B to the April submissions of ACCI, but the little sticky notes here photocopied show what should be in and what wasn't. You'll see for Victoria in the first column it says "minimum three hours today" when it should be two hours or four hours.

PN2056

Then, in relation to the ACT, it says nothing when in fact it should be three hours or two and a half hours. Similarly, in the Northern Territory, it says nothing about minimum engagement of casuals when it should say three hours. Turning to the second page, the first column is really - because it's dealing with a repeat of the Victorian award, so it doesn't take things much further, but then the second-last column, Western Australia, it says a minimum of three hours a day, and there's no mention of the trolley collectors. But in particular, so far as the two territories are concerned, ACT and the Northern Territory, the material in the chart was inaccurate to the extent that it suggested there was no minimum engagement for casuals when there was a three-hour minimum or a two and a half hour minimum in some circumstances on Saturday mornings.

PN2057

Your Honour, I'll come back to this in a moment to just identify the material that was before the full bench in relation to this matter, and I'll make the submission that the full bench was well aware that there were many two-hour minima - not many, but a number of two-hour minima throughout the country but that it determined that three hours is the appropriate - - -

PN2058

THE VICE PRESIDENT: The Victorian award was a significant award in the scheme of things.

PN2059

MR FRIEND: Yes, your Honour, but so is the Northern Territory and the ACT. They're not small awards; they're whole states. They may not cover as many people, but - - -

PN2060

THE VICE PRESIDENT: The ACT was pretty well accurate, as it turns out, but not in saying it's the same as Victoria.

PN2061

MR FRIEND: I think Western Australia was pretty well accurate, but the ACT - yes, I see what your Honour says. Yes, I accept that. Your Honour has to also - - -

PN2062

THE VICE PRESIDENT: As I recall it, your client, in producing drafts of the awards, relied significantly on the Victorian Shops Award probably more than any other, and it's a significant award in terms of numbers of employees, I guess.

PN2063

MR FRIEND: Yes, your Honour, and that just highlights the point. The Shops Award was in everyone's mind, presumably before everyone as well, and you can't assume that the table was the basis of the decision at all. And bear in mind, your Honour, that the four-hour minimum in Tasmania goes down to three. If that goes down to two, that's an enormous change introduced by the modern award.

PN2064

I'll come back to this in the way that I mentioned, but can I go on with the attachments to paragraph 16. 16(l) - pardon me a moment. Yes, we have some reference to minimum casual engagements in Victoria in a historical sense at 16(k). 16(l) New South Wales, three hours; 16(n) in South Australia, predominantly three hours; in Queensland, three hours again, and we're dealing with agreements here, your Honour.

PN2065

THE VICE PRESIDENT: Yes.

PN2066

MR FRIEND: (o) is Western Australia, three hours in some individual agreements behind T.

PN2067

THE VICE PRESIDENT: Is there any material regarding enterprise awards in this material?

PN2068

MR FRIEND: I think that this - some national agreement provisions in T, but there are some agreements in exhibit I4, your Honour, which are based upon enterprise awards and they some of them have a two-hour minimum, but we don't have any material as such on enterprise awards and, as your Honour said, the focus in relation to the modern award in terms of conditions - - -

PN2069

THE VICE PRESIDENT: Which tab has the national agreement?

PN2070

MR FRIEND: The last one, your Honour, T. So Kmart is two hours for training, otherwise three hours; Coles and Bi-Lo three hours, exceptions for some secondary students and stocktake. If your Honour looks at that clause - it might be a convenient time to look at that - 3.3.2 is set out in the fourth column:

PN2071

Casual team members shall be engaged for a minimum period of three hours on each occasion except stocktake two hours.

PN2072

And then for secondary school students in West Australia - and you'll see that the next three references to geographical locations are struck out, because of the note "the trading hours have been extended", and there's a proviso in 3.3.2(i):

PN2073

Provided that when trading hours in the state are extended to 9 pm Monday to Friday the minimum engagement shall revert to three hours in that state.

PN2074

That was one of the agreements that was referred to during the course of the hearing. There was no reference to that proviso then. The Target Retail Agreement is in the same form. Target Country is three hours, except for two hours between 4.00 and 6.30 for training. Coles Liquor Group Retail is two hours. Big W is three hours, with an exception for Broken Hill. Your Honour will recall that we went through the Broken Hill award, which provided for two hours minimum.

PN2075

Sanity is three hours, with an exception for two hours to cover staff breaks. PGFG is three hours, two-hour minimum for training or to cover lunch breaks - there are some other exceptions. SFG is three hours, with an exception for lunch breaks and meal breaks. Priceline is three hours, with an exception in certain circumstances for Christmas. Barbecues Galore is three hours, two hours for training. Myer is three hours, two hours for training. David Jones is three hours, two hours for training. Best and Less, three hours, two hours for training and stocktake. Bunnings is three hours, with an exception for training. Betts Group, three hours, except for voluntary training, and a minimum of two hours for student employees Monday to Friday between 3.30 and 6.30, except where there is late night trading where it's three hours. Just Jeans is three hours, with an exception for training. Spotlight is three hours, with an exception for training. Supercheap Auto was three hours, but can be two by mutual agreement. Figgins is three hours. The Reject Shop is three hours. Suzanne Grae is three hours, with an exception for development meetings. Noni B is three hours, except for training. Dan Murphys is three hours, except for training.

PN2076

Your Honour will see that we have also given store numbers. In relation to those matters, your Honour will note that most of them are three hours, with the exception of training, but that in any event it's not really possible in an arena such as this, particularly the way this case has been conducted, to form an assessment of what trade-offs or what particular circumstances are relevant with those particular employers and, your Honour, this case was never about two hours being the correct figure.

PN2077

This case has always been conducted on the basis that it needs to be reduced to two hours to accommodate school students and, if it turns into an examination of the correctness of the full bench's decision on the whole of the evidence at this stage, we are taken by surprise because we didn't come to meet a case which was a general review of the three to two hours - of the three-hour minimum. There might be a review in due course and there are statutory provisions in relation to that, your Honour - and I make no comment about whether this is one of the matters that can or should be reviewed - I'm sure my client's position will be the same - but that is not what we are here for. What we are here for is to meet an argument based upon what is suggested as the difficulty of school students obtaining work because there is a three-hour minimum.

PN2078

Your Honour, my friend Mr Dowling reminds me that that's the way it was put not just in opening but also in closing. In paragraph 17 of our submission, your Honour, you will see that the vast bulk of the historical material and instruments show a three-hour minimum, and it is consistent with the Australian Federation of Employers and Industries submission recognising that a majority of pre-modernised awards provided a three-hour minimum engagement, and we have given a reference to that there.

PN2079

If I can take your Honour then to the question that your Honour was dealing with before concerning the error in the table, if one looks at - pardon me a moment, your Honour - 10.2 in your cases, the statement issued by the commission on 12 September 2008 - in dealing with the retail industry proposed modern award at paragraph 92 the full bench said:

PN2080

We have reflected existing award flexibilities and hours arrangements which exist in parts of the retail industry for operational reasons. In some cases they are a general application, in others there is a specific provision to give effect to a specific deed. Where it is suggested that existing award flexibilities have been lost, the party concerned may raise the matter in the forthcoming consultation process.

PN2081

Then we go to tab 3, the decision of December 2008, which is found at (2008) AIRCFB 1000. At paragraph 287:

PN2082

Many of the submissions made to us from employers expressed concern at additional costs arising from provisions of the retail industry exposure draft regarding hours of work, overtime, penalty rates annual leave and allowances. We have revised these provisions having regard to the terms, incidence and application of relevant instruments for each sector. The result is provisions which more closely approximate to existing instruments for the relevant parts of the industry but which adopt different standards from one part to another. We have addressed submissions concerning the application of allowances and hours provisions and made other changes consistent with the approach to such matters.

PN2083

If I can skip over our submission to deal with this and turn to page 8, you'll see some of the history there set out and some reference to some of these matters in 31 and 32. Then in 33 there's a reference to the ARA's submission. They note that in relation to casual employees the minimum engagement varies. New South Wales, Northern Territory, Queensland and Western Australia simply mirror the position of the part-time and full-time employees and set a three-hour minimum. South Australia and ACT start with a three-hour but allow this to be reduced in the case of casual employees working late by trade and/or junior casual employees working after school.

PN2084

Significantly, Tasmania and Victoria provide for a four-hour minimum, with two hours in certain circumstances. We propose that the minimum engagement for casual employees should be three hours consistently with both the majority approach and also the submission for a minimum period of work. The MGA submission in paragraph 34 was for two hours, Foodland supermarkets sought two hours, Chamber of Commerce and Industry of Western Australia sought two hours for junior casual employees, and Ms Burnley addressed the full bench on the two-hour minimum on 5 November 2008.

PN2085

The exposure draft was for a three-hour minimum. The parties had to comment in writing on any issue not covered and any condition they disagreed with. The third paragraph, 287 of the decision, I've taken your Honour to. The award was varied on 11 September. On 29 May of last year Foodland sought a temporary provision for the minimum period - a temporary preservation of the two-hour minimum for junior casuals, and then supplementary submissions in relation to junior and casuals made by IGA Distribution. They said in the current award it's a minimum of one and a half hours, not carried through. This will prohibit retailers from engaging multiple juniors as casuals, especially after school, which will in turn reduce employment opportunities for our youth, and they were supported and adopted by the Chapley Group, but after considering the submissions, the full bench retained the three-hour minimum.

PN2086

Whether it should be a two-hour or a three-hour minimum was fair and square before the full bench when it made this decision. Whether it should be reduced to two hours to allow for employment of junior casuals, assuming that that's a necessary effect, we don't accept that. It was well and truly before the full bench. Nothing has changed between that time and this, except perhaps the media coverage in Terang.

PN2087

If I can just go back to the question of the approach that the tribunal should take and the terms of paragraph 20 of the outline, we have submitted that you need changed circumstances of manifest error, and I've already made the submission that otherwise you've really got a single member sitting in appeal. This is supported by what was said by the full bench on 26 June 2009 in (2009) AIRCFB 645. The last sentence of the passage extracted there:

PN2088

Normally a significant change in circumstances would be required before the commission would embark upon a reconsideration.

PN2089

That's tab 5 of the cases, your Honour. I won't take your Honour to it. Then in paragraph 22, another full bench in the Pharmacy Guild case, which is tab 6:

PN2090

The PGA has not established any changed circumstances since this matter was considered during stage 1 of the award modernisation process.

PN2091

We take your Honour to the explanatory memorandum which notes that the power to vary outside the four-yearly review is limited and the award may be varied in exceptional circumstances. We set that passage out at the top of page 7. We've referred your Honour to some learning on the word "necessary". I'm not sure that it necessarily advances the matter very far, as these things often don't, but at least it's there, your Honour. It's something that is required. It has to be. It's the common English meaning of the word. It's not something that would be good or helpful or desirable.

PN2092

If we look then at the evidence, as I said to your Honour, the only thing that really appears to have changed is the two employees in Terang. Can I hand up to your Honour two documents. Mr Dowling reminds me of your Honour's own decision which I should have referred to - tab 7. It should have been the first one I referred to, I suppose.

PN2093

THE VICE PRESIDENT: It's the one you said didn't add much to it, didn't you?

PN2094

MR FRIEND: No, it wasn't that one. This is the Integrated Trolley Management case, your Honour, paragraph 23. Your Honour noted:

PN2095

The requirement that it be necessary to achieve the modern award objective is a significant hurdle that any applicant in the matter under section 158 is required to meet. Variations outside the four-yearly reviews will be the exception.

PN2096

I wanted to hand up some summaries - references to the representatives, your Honour. The first one I'll take your Honour to is the SDA witnesses. Your Honour, what we've tried to do here is really draw it all together in a convenient form, and the summary of our witnesses is perhaps not as - - -

PN2097

THE VICE PRESIDENT: I might mark these. The submissions filed earlier were on the web site, and they haven't marked them.

PN2098

MR FRIEND: Yes, your Honour.

PN2099

THE VICE PRESIDENT: But these, I might do so. They do more than simply amplify the submissions, I think.

PN2100

MR FRIEND: Yes.

PN2101

THE VICE PRESIDENT: I'll mark the summary of SDA witnesses exhibit F11.

EXHIBIT #F11 SUMMARY OF SDA WITNESSES

PN2102

THE VICE PRESIDENT: The summary of the applicants' witnesses, exhibit F12.

EXHIBIT #F12 SUMMARY OF THE APPLICANTS' WITNESSES

PN2103

THE VICE PRESIDENT: And because it is a little bit different with the pink colouring, I'll mark that two-page table you handed up. That will be exhibit F13.

EXHIBIT #F13 TWO-PAGE TABLE

PN2104

THE VICE PRESIDENT: Thank you, your Honour. Dealing firstly with the evidence of Dr Campbell, he was attacked somewhat vigorously in submissions, your Honour, although not so much personally when he was in the witness box. It was certainly never put to him that he was not being impartial. His evidence, your Honour, was based upon the research which he referred to, and we drew conclusions from that, and put it together in a way which we submit is relevant to the matter before the tribunal today.

PN2105

What he was criticised for, apart from having given evidence in union cases before, was not being something that he wasn't; not being a macro-economist or an industrial relations expert, not things that he was called to give evidence in respect to. He was certainly an expert in the field on which he gave evidence. He was also criticised for not being able to answer some of the questions that were put to him in cross-examination, which were really outside the sphere of the evidence that he'd been called to give. In our submission, his evidence is very germane and helpful to understanding what the real effect of any change from three hours to two hours would be.

PN2106

It was said that the union didn't call individual casual employees. An individual casual employee may have given the case colour and movement, your Honour, but it's not going to advance things very far. If you want to understand what's going to happen in a general sense, well, then empirical research is useful and people who have got experience in the industry are useful, because they can say how, in their view, such a change will affect matters. A casual employee who came along and said, "I like working three hours and I don't want it reduced to two," is not going to advance the matter either way, in our submission, your Honour.

PN2107

Dr Campbell talks about the increase in casual employment. There have been three-hour shifts successfully operated in Australia for many years, and that's one of the sleeping issues in this case, of course, your Honour. This enormous problem is apparently peculiar to Victoria, because New South Wales and Western Australia and everywhere else - except with limited exceptions, these had three-hour minimums.

PN2108

Dr Campbell says that casual employees are disadvantaged, and one can readily understand that from the nature of the employment relationship and the type of employment they had, which is from engagement to engagement. I'm not going to read this to your Honour. You make some comments about flexibility and perhaps at paragraph 12 there - that you risked, by introducing flexibility, benefiting a small number for a problem for a much larger number. This comes back to the problem with the framing of the clause, because they want to reduce it from three to two for everyone in order to meet a situation which is described and posited in relation to school students, which we will submit barely exists.

PN2109

Then again, paragraph 13 has a reference to some of the evidence that Dr Campbell gave in relation to the imbalance of power. Finally at 16, the secondary students, substantially less than 5000 on his reckoning of the 379,000 casuals - relevant casuals in Australia. Of course, they're the ones that are in work, in any event. Then drawing the other witnesses together, because many of them had things to say about the same points - paragraph 17:

PN2110

The closing times of retail outlets throughout Australia varies significantly and many have closing hours well beyond 5.30.

PN2111

They have made references to the relevant evidence and the relevant legislative provisions in different states. Many employers use permanent part-time staff to cover weeknight shifts and use casuals to cover late trading and weekend trading. There are experiences of secondary students regularly working shifts in excess of three hours.

PN2112

THE VICE PRESIDENT: That material might go to the incidence of a perceived problem but it doesn't necessarily address the precise circumstances of a school student being available from 4.00 and shop trading hours.

PN2113

MR FRIEND: I accept that, your Honour, but what we would have needed to see was a lot more evidence about school students being kept out of the workplace, because when I take you to the evidence that's put by the applicants, we've got really one, Ms Harrison, because Mr Spencer is not working because of his football commitments at the weekend, and one can't even be sure about Ms Harrison, because she also worked weekends and school holidays. So if there is an endemic problem of school students being prevented from working, where is the evidence? I'll take your Honour to it in a minute.

PN2114

We answer that in part - and I take your Honour's point by saying that a lot of school students do work even under the current regimes and have in Queensland and New South Wales and Tasmania, notwithstanding the longstanding three-hour minimum. In order for the commission to be persuaded that there is a real rather than a theoretical problem, there would need to be some evidence that there were a lot of school students who were not being employed because of the minimum; who were unable to find employment.

PN2115

Your Honour, it doesn't have to be employment after school. For instance, if you look at Mr Spencer, he doesn't work at the weekend because he's got a football commitment. That's his choice, but if he were a full-time casual employee under the award, he could be rostered on the weekend, because you can be rostered any day, and he wouldn't have any choices about playing football then. It's an area where you can conceive of the difficulty, but we haven't got any evidence of the difficulty.

PN2116

THE VICE PRESIDENT: Isn't there evidence that where shops' trading hours close at 5.30 or 6.00, it's not feasible for schoolchildren to be employed after school during the week?

PN2117

MR FRIEND: That's a theoretical construct, your Honour. Apart from Terang, there is no evidence that that has occurred or is occurring or would occur.

PN2118

THE VICE PRESIDENT: But there is the Terang evidence that amounts to that, doesn't it?

PN2119

MR FRIEND: But, your Honour, it's two students, and why focus on the two students and after-school work when there are other options? There's weekend work and there's holiday work. Why do you have to say that everything has to be changed to allow students to work after school? Everything has to be changed for everyone. The problem we get into if you say, "We'll only change it for school students," is that then you shut out the opportunity for work other young people who happen to be not students but are unemployed. If you say it's only juniors, well, then you're shutting out senior employees who are looking for work.

PN2120

THE VICE PRESIDENT: Why does it shut them out? They're available to work from an earlier time.

PN2121

MR FRIEND: Yes, but the employer may not want them. The employer may only want two hours, or they may chose a junior because it's more convenient to have someone for two hours or someone they can send home after two hours because it's quiet. The three-hour minimum is a protection and it's there because people have to cover the costs of getting to and from work. The investment in time in getting to and from work is something that has to be considered as well. So the real point that I'm trying to make is - and I'll do this more fully when I come to the evidence of the applicants - that they haven't been able to find any evidence. All they've got is a theoretical instruction and a position - when they came to start this case, they said two hours was what was appropriate. Once they looked at the only evidence they could get, two hours couldn't fix it, because Ms Harrison couldn't work more than one and three-quarter hours.

PN2122

So then they want a further exception. But apart from those two people, they've scoured the state and come up with nothing. If I can just return to this, your Honour, and I'll come back to that in more detail. There's evidence that most casuals want to work shifts in excess of three hours. There's evidence there about travel. We've got evidence about public transport costs, disincentives to attend short shifts, secondary students doing work after closing hours in positions such nightfill, evidence about training, a risk of replacing part-time shifts with casual shifts. Your Honour, I should say, the union doesn't oppose casual employment but it opposes casualisation. There's obviously a need in some circumstances for casual employment, but permanent employment, whether it's part-time or full-time, is to be preferred. There are readily understandable reasons for that.

PN2123

Evidence from those interstate suggested there's never been a demand for shorter shifts for casuals. Then F12 deals with the applicants' witnesses. Ms Penreeth was one of the important ones. She employs 29 casuals. 19 of them are secondary students, and of course, your Honour, this problem doesn't arise in respect to tertiary students because their hours are generally all over the place. 17 of the 19 work between 4.30 and 7.30, so there's no difficulty there. Two work between 4.45 and 7.30 - and pays them for three hours and says, "That's not a problem," at PN139. She's aware of this change and, notwithstanding that, she's taken on seven new casual employees. So there's not one there, your Honour.

PN2124

Mr Devries - the stores he's associated with are open till 8 pm in any event, and the casual secondary students can do the three hours. These are in the country, your Honour; small places. His main point was that three hours is too long for the students to allow for their other commitments and their homework, and one would suggest that's not really a factor that's going to have any weight in relation to this matter. He indeed accepted that it's an equally valid view that three hours was okay.

PN2125

Ms Fitzpatrick - she's got general casuals outside store hours, three to three and a half hour shifts on Saturday, employees attend before opening hours on Sunday. I think the effect of the evidence was that casuals have to be accommodated within certain shifts and that this had meant there was an increase in the hours for permanent part-timers. But there was no evidence that casuals weren't getting work, it was just a question of accommodating them. Ms Harrison I've already dealt with, your Honour. Similarly, I've dealt with Mr Spencer.

PN2126

THE VICE PRESIDENT: What's the name of - Mr Wareham.

PN2127

MR FRIEND: I think we've left off Mr Wareham, your Honour, and his evidence was to the effect that no-one had been laid off - he didn't anticipate it occurring -under cross-examination. So, your Honour, where is the need? There are no changed circumstances and there's no demonstrated need. They want to change it for everyone, on one view - well, no, on all views. They want to change it for everyone and they want to change it even further for secondary students, but they don't produce any evidence to the commission to show that it has an impact, apart from the two students in Terang, one of whom could work at another time, the other of whom doesn't.

PN2128

It is hard to see in those circumstances, your Honour, how it could be said that it is necessary to achieve the modern award objectives. Your Honour, we've been through submissions about the modern award objectives in our written outline, and I'm not going to read those to your Honour, but really they build upon the case that I've been putting.

PN2129

Can I deal with a few matters that have arisen this morning. The first is exhibit I4, which is the agreements. We say in relation to the first one, and I suppose more generally in relation to all of them, one has to - and I've said this before - one has to examine the specific circumstances in which the agreement was made and the (indistinct) in existence, and we're not doing that. It hasn't been part of the case that was put against us. Really, what is sought to be made is a forensic point, as I apprehend it, your Honour, that in some circumstances the union has agreed to lesser minima with particular employers. That may be so, your Honour, but it doesn't in our submission really advance the case or the applicant without an examination in each case of the circumstances of the agreement.

PN2130

There were some questions asked of some of the witnesses about these things and the answer was, "Well, it's the circumstances of the particular agreement" and I think on one sense Mr Ketter said, "Well, I'm not aware of what the position was in South Australia with the Coles agreement" - and we know that in the Coles agreement, if your Honour turns to tab 3, you've got 3.1.1(c)(ii) that it's related to trading hours and when they're increased then the minimum increases.

PN2131

Tab 4, the Harris Scarfe agreement, is based upon an enterprise award. We don't know the genesis of that. Tab 5 is the Ikea agreement - can I hand up to your Honour a full copy of that, because what is put is incorrect. Your Honour will see that what is extracted is 5.3.3, which would appear to suggest that there is no minimum. If your Honour turns to page 15 of the document we have handed up, a copy of the full agreement - we've just handed up the 2009 agreement, sorry, your Honour. Can I give you the 2006 agreement. I'll come to the 2009 agreement in one moment - Mr Dowling ensuring that I will refer to it. Your Honour will see that the extract in I4 starts at 5.3.1 and has 5.3.3 - if one turns to page 20 of the 2006 agreement, the beginning of clause 5.3, it deals with rostering principles and subparagraph (e) refers to co-workers - they're all co-workers at Ikea, your Honour:

PN2132

A co-worker may not be rostered to work less than three consecutive hours per shift, except for training.

PN2133

So it's a three-hour minimum at Ikea. If one goes to the equivalent provision in the 2009 agreement, it has actually moved up - it's the same numbering, 5.3(e), and it's a four-hour minimum shift. Does your Honour want to mark those?

PN2134

THE VICE PRESIDENT: Yes, I'll mark those. The 2006 Ikea agreement will be exhibit F14 and the 2009 agreement will be exhibit F15.

EXHIBIT #F14 2006 IKEA AGREEMENT
EXHIBIT #F15 2009 IKEA AGREEMENT

PN2135

MR FRIEND: Tab 6, your Honour, is the Master Grocers Enterprise Agreement 2005, which is a Victorian agreement and so based upon the Victorian minimum of a time of two hours. Tab 7 is the PGFG Stores Agreement; that's a three-hour engagement, 6.5.2. It hasn't been highlighted, but if your Honour reads the top of the paragraph it's three hours, except for lunchtime relief, which has been highlighted. Supercheap Auto - I've taken your Honour to the substance of these earlier - that's three hours, but two hours by agreement. Target Country is based upon the enterprise award, as is the Target Retail Agreement.

PN2136

Your Honour, something was made by the ARA in relation to the survey, and I would just point out to your Honour that the survey was sent to approximately 3000 people and got a return rate of something like 10 per cent. Your Honour will find that evidence at PN370. Dr Campbell made some comments about the utility of such surveys under cross-examination at PN1315 to 1318, and we simply direct your Honour's attention to those matters to suggest that the survey doesn't really take matters very far.

PN2137

Mr Tindley started off today saying, well, some of the SDA witnesses were asked whether there were any disadvantages when there was a reduction from four hours to three hours - these were the three state secretaries. Well, really, your Honour, as I pointed out to you, the reduction occurred 20 years ago - two of them, yes, New South Wales and Queensland - and there were grandfathering provisions, which I took your Honour to in the course of going through that material, so the people who were on four hours stayed on four hours. Of course, casual employment being casual employment, people move through the system fairly quickly.

PN2138

In relation to Tasmania, where there is a reduction from four hours to three hours that hasn't hit yet, it's unlikely that Mr Griffin would have seen any changes given that circumstance. Your Honour, the documents that were marked for identification - we haven't been able to get full instructions in relation to them. I have said what I have said about the union's position about casuals - and if I can just refer to MFI 1, and your Honour was taken to the last paragraph of Mr  Devries' speech - if you look at the second-last paragraph  he says:

PN2139

The union recognises that casual employment will always be part of the retail industry because it is unavoidable, given the retail industry's elite characteristics.

PN2140

Then he says he's determined to reduce the level of casualisation. Of course, the union doesn't support the conversion of permanent jobs to casual jobs, and it's a position that is being supported as a matter of industrial principle even through the commission in the conversion provisions that were introduced in the early 2000s. Mr Halls has suggested that all of this was about trying to arrest the decline in union membership. Well, it wasn't put to Mr Ketter or Mr Dwyer, nor was it put that there was a decline in union membership to Mr Ketter or Mr Dwyer, and there hasn't been a decline in union membership. The only witness we were able to ask about this was Mr Griffin from Tasmania, who indicated that there has been an increase in union membership and that is so across Australia. There is no substance, in my submission, for that suggestion.

PN2141

Your Honour asked a question of, I think, Dr Campbell about paper delivery - newsagents - and we note that there is a submission from the Australian Newsagents Federation, but it doesn't constitute evidence. I mean, it's an assumption that paper boys even deliver newspapers any more as opposed to people driving cars, and it's not a proper basis upon which the commission could make any change to the award, given that there is no evidence and there has been no ability to test any evidence - simply a letter written suggesting that certain circumstances might follow, which couldn't be tested.

PN2142

Unless there's anything further with which I can assist the tribunal, those are the submissions of the SDA.

PN2143

THE VICE PRESIDENT: No, thank you, Mr Friend. Do any of the applicants wish to reply?

PN2144

MR TINDLEY: Just briefly, if I could, your Honour. The SDA has referred to statements, decisions, comments in the 2008-2009 award modernisation process, and the very brief submission I would make is that the position of, as it was then, the Australian Industrial Relations Commission to award modernisation at that time is very different to the context within which we are operating now. My understanding and my submission is that those comments about significant change, et cetera, were directed towards changes prior to the commencement of awards and prior to the commencement of what I would call a different application process for varying modern awards.

PN2145

It has been submitted that there has been no change since 1 July or no intervening event that could cause there to be a need for the variation sought. Quite simply, your Honour, the change has been that the award has commenced and whenever awards commence - awards that haven't been in operation before - we see unintended consequences. We see unintended consequences in some of the drafting of the awards and we see the unintended consequences that have been the catalyst for the application that has been made by the employer parties.

PN2146

In our submission, that is a significant matter and the circumstances that have been presented to the tribunal represent exceptional circumstances. It is inconceivable that it was in the tribunal's mind that the implementation of the minimum engagement under the award could lead to the outcomes that have been seen. We accept that there is a hurdle and there should be a disposition against granting variations to modern awards for the simple reason - to put it colloquially - we'll never see the end of it. That is evidenced by an SDA application that was rejected in relation to the minimum rates of pay in modern awards.

PN2147

Simply, there needs to be some bar and that bar needs to be set fairly high, but where there are unintended consequences, as we have seen here, the tribunal should take a different approach. The SDA has set out the circumstances of the changes within the Victorian award system in relation to minimum engagement for casual employees. Again, as with Queensland, as with New South Wales, as with Tasmania, there has been nothing to indicate any negative impact in terms of a minimum safety net caused by those changes.

PN2148

It is suggested that the grandfathering provisions were the solution to that. That is not the argument proffered by the SDA witnesses. The SDA witnesses - are that reducing the casual minimum engagement will impact on the shifts offered to casual employees generally, so not specific casual employees; not those engaged at the time but casual employees generally and part-time employees generally and full-time employees generally. They have not provided any evidence of that and we submit that that is a most relevant consideration for the tribunal.

PN2149

Perhaps Mr Halls will deal with that - that it is interesting, to say the least, for the SDA to be relying on Dr Campbell's assessment of someone else's survey, but proffering Dr Campbell as an expert, with his evidence based on his survey of 105 people who might or might not work under the auspices of the Retail Industry Award, because a proportion of them are fast food employees - and it is important to note that Dr Campbell didn't provide information about what questions were asked in his survey. He was prepared to lead assumptions without providing the basis for those assumptions. Those are the submissions in reply, thank you, your Honour.

PN2150

THE VICE PRESIDENT: Mr Issa?

PN2151

MR ISSA: Thank you, your Honour. Just with regard to the reply submission by the ACTU and the SDA, they deal with the Pharmacy Guild case and other points of law, and I would just like to refer your Honour to the opening statement made by the MGA at PN84 to 86 dealing with those matters. Also the SDA stated that casual employees were not going to advance matters in appearing on their own behalf and that Dr Campbell was, in essence, there to represent the further interests of casual employees. However, Dr Campbell, upon cross-examination, states that he had no practical experience within the retail industry. All his experience comes from surveys and academics and, while that is commendable, there is a vast difference between actual experience within an industry and researching it.

PN2152

With regard to I4 that the SDA raised issues around, exhibit I4 goes towards flexibility and what has been provided by the SDA and the organisation - they have negotiated with the two-hour minimum or the exceptions to three hours that are provided for within the agreements - go towards providing the employer with increased flexibility. That is all in reply submission, thank you, your Honour.

PN2153

THE VICE PRESIDENT: Thank you, Mr Issa. Mr Halls?

PN2154

MR HALLS: I'll be very brief, thank you, your Honour. I only wish to make two additional points. I just wanted to revert back to something that was suggested by Mr Friend earlier in his closing, and that was along the lines of - that we're not basically not treating this application seriously enough or that the applications in relation to this matter have not been well thought through because we're suggesting that anything goes.

PN2155

I would just like to clarify, your Honour, that that certainly is not the case and what I believe he was responding to was in fact a question that you put to myself, which was how perhaps could there be appropriate safeguards, if you like, in place to ensure that this arrangement perhaps only applied to schoolchildren or that it wouldn't be abused. We certainly indicated that we would be happy to look at a provision which perhaps had a default minimum casual loading but allowed for - a casual minimum payment, I should say - a lesser period by agreement or as reasonably determined by an employer.

PN2156

As far as we're concerned, if Fair Work Australia is of a mind to include additional safeguards beyond that - and I mentioned an example that was put forward by one of the ARA members in an email, which was to produce a student card, for example, then all I'm indicating is that we would be happy to look at those additional requirements. I don't have anything further to say on that point, your Honour.

PN2157

The only other point I wish to raise in conclusion was mentioned by Mr Friend, I believe, when he was referring to the Tasmanian award and suggesting that the modern award minimum payment provisions hadn't actually commenced yet. I just believe that that is incorrect. I have nothing further, your Honour.

PN2158

THE VICE PRESIDENT: Thank you. I thank the parties for their submissions. I will reserve my decision in the matter. These proceedings are now adjourned.

<ADJOURNED INDEFINITELY [12.49PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #1 DOCUMENT HEADED CASUALS IN THE RETAIL INDUSTRY PN1884
MFI #2 DOCUMENT HEADED PART-TIME AND CASUAL WORKERS PN1885
MFI #3 SPEECH BY JOE DEBRUYN PN1886
EXHIBIT #F11 SUMMARY OF SDA WITNESSES PN2102
EXHIBIT #F12 SUMMARY OF THE APPLICANTS' WITNESSES PN2103
EXHIBIT #F13 TWO-PAGE TABLE PN2104
EXHIBIT #F14 2006 IKEA AGREEMENT PN2135
EXHIBIT #F15 2009 IKEA AGREEMENT PN2135