PN1

JUSTICE ROSS: Good afternoon. Do I have Mr Ferguson (indistinct). Hello? Mr Ferguson?

PN2

MR B FERGUSON: Yes, your Honour. Apologies, I'm here.

PN3

JUSTICE ROSS: Mr Izzo?

PN4

Mr IZZO: Yes, your Honour.

PN5

JUSTICE ROSS: For ACCI. Mr Rizzo from the ASU?

PN6

MR RIZZO: Yes, your Honour.

PN7

JUSTICE ROSS: And Ms Ismail from the ACTU?

PN8

MS S. ISMAIL: Yes, your Honour.

PN9

JUSTICE ROSS: And I've also got Ms Lawrence from ACCI, as well, is that right?

PN10

MS LAWRENCE: Yes, your Honour.

PN11

JUSTICE ROSS: All right, thank you. Have I missed anybody? No? All right. Can I indicate that the material we have before us and have had an opportunity to consider, we have for ACCI and Ai Group, their written submissions in support of the variation as originally proposed; two documents filed by Mr Rizzo earlier today, one a newspaper article concerning the number of new Covid-19 cases in Victoria, and the second and extract from the 2016(?) census. We also have the revised draft determination that was filed this morning by the employers arising out of the conferences convened to seek a resolution in respect of the matter. Regrettably no resolution was reached and I understand the application is still opposed. And I have a submission from the ASU dated 29 June that sets out its reasons for (indistinct) the application.

PN12

Can I go firstly to ACCI and Ai Group and if they can indicate what they wish to say orally in support of the revised variation determination.

PN13

MR IZZO: Thank you, your Honour, it's Mr Izzo on behalf of ACCI. I very briefly wanted to make some remark about the sections of the schedule and how they differ to the previous schedule that's been included in the class award before identifying five keys areas of argument that support the variation being made. If I can deal firstly with the sections of the schedule, there are actually four key categories of difference between the schedule that is being sought now in the class award compared to what actually presently exists.

PN14

The first key difference is that there is a significant new form of universal protections that has been introduced into the schedule. The first of those is that any direction to reduce hours or any request for employees to take leave cannot be made unless it is reasonable in the circumstances. And so that applies and ensures, I suppose, a reasonableness threshold with respect to any request or direction and any action that is taken to allow a flexible response to the Covid-19 pandemic.

PN15

The second form of universal protection is that in respect of any direction, any request or even any agreement that's made under the schedule, for them to be valid from 1 July onwards the employer must consent in advance to the Commission arbitrating any dispute arising from the schedule's use. This doesn't necessarily mean that all disputes would proceed immediately to arbitration. Obviously the Commission has a long history of seeking to conciliate disputes first and we would envisage that this would be the course of action adopted. However if the dispute is unable to be resolved the employees would have arbitration as a final recourse. And they are two significant protections that we're seeking to include in the schedule that should provide some comfort that there will not be employees that are in any way adversely affected or significantly prejudiced by the continued operation of the schedules.

PN16

The other thing we have done is remove a number of clauses from the schedule. We've removed the operation of flexibility clause; we have removed the part-time minimum engagement clause; we've removed the casual minimum engagement clause. The third area of contention is that the ability to direct the taking of annual leave has been removed, as has the annual leave close-down clause. And they have been replaced by a different regime whereby employers can request and employees cannot unreasonably refuse to take leave. As part of that regime there is also a minimum floor(?) of leave beyond which this regime cannot apply, and that is that employees must retain a balance of two weeks of annual leave.

PN17

Finally, the reduction of our clause has been limited to only those employers who have utilised the clause to date. This amendment has been made to ensure that there is a focus on those workplaces where the clause has been needed to date and where employers and employees have changed their arrangements because of Covid-19 and there's been a direct need there in those workplaces. The other thing with respect to the reduction of hours clause is that we have introduced a trigger whereby an employee whose hours have been reduced can seek to have that reviewed by way of a further vote in the workplace. That vote must be conducted and must approve the reduction within seven days, or else the reduction in hours must cease. And what we say having regard to these four categories of changes is that what we have is a substantially more targeted schedule. It's a schedule that now includes significantly greater safeguards but it also limits the types of flexibility measures that we are seeking only to those which we say are materially important and relevant to employers engaging clerical and administrative employees.

PN18

So that's the first point we wish to raise, is that what we are seeking to extend is not the same schedule. It's one that has been significant narrowed in its operation. And that should provide a level of comfort to the Commission that we are only seeking what we say is absolutely necessary. The five key issues I wanted to identify in support of the schedule, some of which are derived from the joint Commission, other perhaps have developed more recently. What I'd say initially is we certainly rely on the submission that's been filed and we won't be repeating anything in it. But these are particularly important matters that we say commend the Commission to make a variation.

PN19

The first is that the health crisis has sadly returned in a way that probably wasn't envisioned even a week or so ago. And that's the reason that we filed these articles in the age yesterday. The use of this newspaper article is because if effectively identifies a variety of concerns about increases in cases. It's apparent that as of yesterday there were 75 new cases recorded in Victoria. That new record of cases of 75 is only the fourth highest that has been recorded in Victoria since the start of the pandemic. And what is has unfortunately demonstrated is that Victoria is currently now facing a second wave of cases that its chief medical officer has identified is, "as big as the first one", to borrow the chief medical officer's phrase.

PN20

And the chief medical officer is quoted in this newspaper article of saying things like, "I think it will get worse before it gets better"; and to say that in effect there is - when you call it a second peak, a second wave, there's a number of challenges that arise. And a particularly important concern is that this time around, unlike the first level of cases that arose, there is a significant level of community transmission. That was not the case early on in March. Most of the cases in Victoria and across Australia were arising from overseas visitors returning. This is the highest level of community transmission Victoria has seen and it is particularly worrying because it means there is scope for things to worsen quite rapidly and we sincerely hope that doesn't happen.

PN21

What all that means is that there is sadly an ongoing health crisis. It's one that had subsided and has re-emerged. And with it that brings an ongoing economic threat to businesses and a renewed focus on working from home, yet again, which is what we've seen in late March 2020. Now the ASU has said that Victoria's situation shouldn't be relied upon because this is a national award. Well, or response to that is somewhat linked to the filing of the census material. What we wanted to say is a relatively simple proposition. Victoria is Australia's second most populous state. And the Commission simply cannot ignore what is going on in a state with more than 2.7 million employees, 360,000 of which the census tended to indicate are clerical employees. It's a massive employing state and the impact on employment for such a large number of employees should weigh on the Commission's mind in dealing with this application. And so that's essentially the first key issue we wish to raise, is that sadly there is a health crisis that has returned and that needs responding to.

PN22

The second issue we wanted to point out is that working from home, which is matter that's stressed by the schedule, remains at substantially increased levels and is a key area of focus for employees and employers. Now in the joint submission at paragraph 54 we identify that there are in fact public health orders that substantially guide parties towards an outcome of working from home. The most prescriptive of these is in Victoria where the order is that employees must work from home where it is possible to do so. In New South Wales there is a public health order which says that employers must allow employees to work from home where it's reasonably practicable to do so. And so in both states one could imagine that there is significantly greater work occurring at home because of the relevant public health orders in place.

PN23

That is then reinforced by the statistics which tell a compelling story and we've identified them from about paragraph 58 of the joint submission, moving onwards. Two that I particularly would like to call out, the ABS statistics are set out in our joint submission and they're also identified in the submissions background notes that are provided and that are uploaded onto its website with respect to these proceedings. The ABS statistics that are referred to at paragraph 60 of ours submissions show that approximately 46 per cent of all businesses are operating with other workplace changes which the ABS identified included staff working from home or operating with a reduced workforce. The ABS also noted that approximately 57 per cent of businesses had implemented limitations for the number of people on site. And again one would imagine that as part of that there would be limitations on people being able to present for work. And so as a result of both of those statistics you get a very real (indistinct) that work is happening at home at a never before seen level.

PN24

But the Roy Morgan survey that we quote in the submissions is also particularly telling. Roy Morgan released interviews, or the results of interviews with 1444 Australians and those Australians interviewed were asked about changes to their working experience and they were prompted to give particular answers, none of which included working from home. So that wasn't caught up in the survey. Notwithstanding this, ten per cent, or approximately ten per cent of respondents indicated that working from home was a changed circumstance that had arisen as a result of Covid-19 even though that wasn't one of the prompted answers. They filled out a box that indicated, "other", in terms of some other change to employment and expressly stipulated that working from home is what had changed. Now if that's an unprompted response to a set of prompted answers one could imagine that had working from home been included in the prompted responses the response rate would have been much, much higher and it really does demonstrate that this is a key area of change that's been influenced by the Covid-19 pandemic.

PN25

Much has been made about the fact that in March 2020 there was a real prospect of school children not being at school and the ASU makes the point that those school closures aren't persisting and that most kids are back at school. I acknowledge that point but in doing so there are a few additional things to say, and that is firstly, school closures remain a weekly event. Because of the increasing levels of community transmission we are seeing on isolated basis a number of schools closing down and then reopening. Additionally, transportation has changed. The people accessing public transport has changed significantly and employees are more likely to be picking up children from school, potentially having children tested, and look, essentially they were required to do things during their working hours that they would not previously have done. And that's what really gives rise to this need for additional flexibility with respect to working from home arrangements and allowing a level of possibility as to when employees might be able to perform their ordinary hours of work.

PN26

The third thing that we'd like to say that's broadly been the key matter in support of the variation is that with respect to the reduction in hours clause this has proven relevant for some workplaces. We know that 325 employees are working under varied conditions because they the statistics that the Commission has compiled of the number of requests made under the Schedule I provision. And these measures clearly then have been relevant for those workplaces and its employers are implementing such measures. It is quite apparent there there's obviously a need to do so in order to avoid more drastic consequences. And that's the very point of that provision is to enable reduction in hours in order to ensure that work consequences don't arise, such as with redundancies. And so we think that it is proving to be relevant and an important measure, and the limited nature of the extension that we are seeking is to just ensure that that reduction can continue for those workplaces where it's apparent that such a reduction was necessary. And we need to bear in mind that the reduction was always implemented with a 75 per cent majority vote of employees in question, which means that they must have seen that it was important for that reduction to occur lest there be more undesirable consequences. And that as the very point of the clause.

PN27

The fourth matter that we wish to generally raise in support of the variation is that the ASU has made considerable noise about the fact that the introduction in the JobKeeper legislation means that these types of changes are no longer required. I don't propose to address you in much detail because we deal with this in our submission but it's very important to point out that in our submissions we identify a large group of the people that are not caught by JobKeeper and that may still be under economic distress, and whether that is employees that don't meet the relevant threshold requirements of 30 per cent to 50 per cent turnover reduction, or whether it is indeed employees that qualify for JobKeeper but are unable to utilise those amendments that were made to the part 6(4)(c) of the Fair Work Act because some of the employees, whether they be temporary residents or casual, are not caught by the JobKeeper provision. So we make the point that this schedule remains relevant and important to employers notwithstanding the introduction of the JobKeeper legislation.

PN28

The final thing that is important today is that it's a general comment about the Modern Award's objection. We dealt with each of the limbs of the Modern Award's objective that we say are engaged by the schedule in our written submissions and I don't repeat to (indistinct) now. But on 28 March 2020 when the schedule was first introduced as a class B award the ASU agreed that the initial schedule met the Modern Awards objective. And a Full Bench of the Commission made that same finding. And in summing up the ASU's position Mr Rizzo said as follows. He said, "We're responding an extraordinary time and the other reason, of course, why we support it is an important point, is while it is for a short term it does expire on 30 June 2020." The two critical factors that were regularly reinforced by Mr Rizzo were the extraordinary nature of the circumstances the community were facing, and the short duration of the schedule's operation. We say both those matters remain relevant today. We're still in a health crisis, we are still facing extraordinary circumstances, and the variation that's proposed does have a temporary operation.

PN29

And so these factors, whilst of critical importance to the ASU on 28 March, we say have not dissipated. And for that reason that the finding that the Commission made that the Modern Awards objective is satisfied by the introduction of the schedule in March, we say that given that circumstances had not materially changed that finding would remain relevant today. And so on that basis and on the basis of the submissions that we filed, we urge the Commission to make the variation proposed as presented in its final form just shortly before the hearing of this proceeding.

PN30

JUSTICE ROSS: Thank you, Mr Izzo. Mr Ferguson, did you want to add anything?

PN31

MR FERGUSON: Not in any great detail, other than to amplify our point that we say these variations are necessary to meet the Modern Awards objective and we do say they're necessary to enable employers and for that matter, employees, deal with the challenges flowing from the health risks associated with the pandemic but also the government initiated restrictions that businesses and employees are dealing with in order to limit the spread of the virus, but also, very importantly, the current economic circumstances. And in that context we want to make the point that these provisions are directed as assisting employers to maintain as much employment as possible. Beyond that I think the only point I really want to amplify in response to the ASU's submission, we have been at pains through the final version of the determination or draft determinations put forward to try and address some of the concerns that the unions have raised and in that regard I'd make the point that the enhanced dispute resolution provisions, though in some ways were addressing their concerns, as does that mechanism that it would include in relation to the reduction of hours enable another vote to be taken if any issue was taken with that.

PN32

And when you look at those changes, as well as the very nature of the provisions we think it makes it clear that there isn't much force to much of the complaints that were advanced by the ASU. For example we would make the point that the working from home arrangements are only at the election of employees. It is not a vehicle that can be, in our view, misused. And in that sense there shouldn't be any reason to not proceed with making the variation. But beyond that we don't wish to add anything else unless there are questions, your Honour.

PN33

JUSTICE ROSS: All right, thank you, Mr Ferguson. Mr Rizzo, we've had the opportunity to read your submission. As I understand it you oppose the application and submit in essence that the present circumstances are significantly different to those which confronted the parties in late March this year when the ASU supported the variation of the award to include Schedule I with an expiry date of 30 June. And you say that the change in the circumstances including the JobKeeper arrangement, reopening the schools, et cetera, are such that an extension to the operation of the schedule is not warranted. Was there anything you wanted to add to your written submission, Mr Rizzo?

PN34

MR RIZZO: Well, yes, your Honour, if I could, your Honour and the Full Bench. Yes, your characterisation of our overall position is correct, your Honour. I just wanted to make a few specific points.

PN35

JUSTICE ROSS: Certainly.

PN36

MR RIZZO: Firstly, Mr Izzo's point about quoting myself on 28 March, I mean, let's be clear. This is an important quote. I repeat the transcript at paragraph 3 of our submissions where I say, "We are responding to extraordinary times and the other reason of course why we support it, the important point, is that it is for a short term. This does expire on 30 June 2020, and so that is a comfort to us." And then I say, "And we'll see what happens on that particular date that the ASU commences before the Full Bench." So, I mean, I assume that the employers have played with this quite a bit but the salient point is that one of the main reasons why we supported it was the short-term nature of it, Your Honour, and that is beyond dispute. We do say that the circumstances have changed since March 28. If I can take the Bench's mind back to that time because I think it's the same Full Bench, in late March 2020 there was a lot of fear, concern, even panic happening at that time because no-one really was on top of what was happening at the time, nor governments, nor unions nor employers. The economy was shutting down and so forth. There were newspaper headlines showing that there was modelling shown between something like 50 to 150,000 Australians might die. I mean, this is the sort of scenario that we were dealing with at the time. None of us were wise at the time.

PN37

We say since that time since have changed significantly. I appreciate that point about Victoria, that we've had a recent spike in the last couple of weeks, although before that Victoria was of the forefront of being in a good position. Nevertheless, I don't deny what's happened in Victoria in the last fortnight. But despite that we need to have a look at what's happening around the country and I point to the Bench that in fact as recently as Friday, last Friday, 26 June, the National Cabinet made a statement released by the Prime Minister saying that they would affirm the three step framework to a Covid safe Australia. In other words, they were continuing along the path of easing restrictions and the like which have essentially occurred in the other states except for Victoria. I understand that.

PN38

Apart from the material circumstances changing, your Honour, we all know that JobKeeper was introduced. I won't harp on about this but certainly we had no idea at March 28 that JobKeeper was coming, and that has changed the game considerably in this country and I think if we had known about JobKeeper at the time we probably would have been less inclined to consent to this application but we were completely ignorant of JobKeeper at the time and therefore we thought this was a good thing to try and save jobs, and maximise hours, to try and do as much as we could to help. But your Honour, let's turn to the use of the particular section of the Schedule I. There's a section, as you know which talks about that you can reduce your hours by 25 per cent, to a minimum of 75 per cent and there is an attachment to our submission to this effect.

PN39

JUSTICE ROSS: Yes.

PN40

MR RIZZO: But only 24 employers in all this time, your Honour, which covered just 352 employees, have taken advantage of this section. Now on 28 March we sincerely believed that there were hundreds of employers covering thousands of employees that would access this. And this is not the case and we've had no fresh applications for the last six weeks. So when we say it's unwarranted, at least for this section at the very least, which is a key submission, mind you, (indistinct) that persists in the employers' revised draft determination. We don't see the demand for it. And therefore it's another reason why we think that the extension should not proceed.

PN41

There are disadvantages in the current schedule, your Honour, disadvantages, for example, in the span of hours. I appreciate that the employers have now amended an 11 pm to 10 pm, nevertheless it's still a span of hours of 6 am to 10 pm. And that can lead to employees missing out on penalties and overtime and the like. Now we were eyes wide open at the time, with the (indistinct) of employees but in the wider good we thought that we could live with that, but that we could live with it for three months, and that was the point, that three months would be (indistinct) we thought that we and members and/or employees because they're not all members, would have to deal with that limitation.

PN42

Similarly we think it's a breach of trust that this thing is expanded, your Honour, for those 352 employees who have voted to reduce their hours, that this would continue for another three months according to the applicant's draft determination. And we think that these people in good faith voted for a three month process until 30 June and did not vote beyond 30 June. Now I appreciate that it's been in the new application - that is now sealed off and so that new people can't join, but to the existing people as they're the only ones that we can talk about, they will be extended despite the fact that they voted on a clear understanding that this would be for a three month period till 30 June.

PN43

We say that there are alternatives to Schedule I, your Honour. For example, the existing award when it comes to the span of hours and working from home, the existing award talks about 7 am to 7 pm, which is twelve hours. And then clause 13.4 also says that you can change the ordinary hours at either end of that span, one hour at either end of that span. So we have got a lot of hours that employers and employees can come to a mutual agreement, re flexibility, without adding even more hours where people, as I say, are subject to not getting penalties and overtime and the like. And that situation would be extended and that disadvantage would be perpetuated if the application was to proceed. And we think it's unfair because we think that the union thought, and I'm sure the employees thought, that this would be for a period of time.

PN44

Now the legal environment, your Honour, has also changed since the decisions on 24 March which was the Hospitality decision and the Clerks decision on 28 March. And the Full Bench has made a couple of key decisions since that point, again on this issue of award variation, and they're the Fast Food decision and the Vehicle decision. And what the Full Bench determined in both of those matters was that unlike the Hospitality and Clerks Award which I will characterise as being fast tracked because the parties agreed to it and because there was a lot of uncertainty at the time, since that time, in a more sober environment the Full Bench has made it quite clear to all applicants who want to vary awards that they have to present a fair bit of evidence, they have to establish the need for necessity for the application to be extended, and that evidence has to be presented to convince the Bench to that effect and it hasn't.

PN45

JUSTICE ROSS: Yes. So, Mr Rizzo, can I just get to the - you quote the Fast Food decision in your submission as if that's a general proposition. Where do you get that from?

PN46

MR RIZZO: I get this, your Honour, in paragraph 24 of the submissions - - -

PN47

JUSTICE ROSS: Yes. No, I'm asking where you get it from the Fast Food Award.

PN48

MR RIZZO: Where do I get it from the Fast Food Award?

PN49

JUSTICE ROSS: You talk about - yes, you refer to paragraph 112, right?

PN50

MR RIZZO: Yes. Yes.

PN51

JUSTICE ROSS: Well, that's not making a general statement. It's saying, "Any party seeking to extend the operation of the schedule, or a similar Covid related variation", but it's of that award. And the reason for that is that when you look at paragraph 110. The Full Bench is making the observation that the only evidence was about McDonalds, and noting that McDonalds seek an enterprise agreement.

PN52

MR RIZZO: Yes. Yes, I - - -

PN53

JUSTICE ROSS: So the observation is not intended to make any sort of general pronouncement. It's simply saying in the circumstance of that matter, that was the process that would have to be followed.

PN54

MR RIZZO: Yes. I understand that, your Honour, except that the - again in the Fast Food and the Vehicle's decision there are statements made by the Full Bench about, for example, making sure that JobKeeper type protections are also included in these variations, so - - -

PN55

JUSTICE ROSS: I agree with that. But where are the JobKeeper protections included in the proposal that's currently before us? Where is it deficient in that regard?

PN56

MR RIZZO: Well, that's not my point, I think, your Honour. My point is that there was a shift from the Full Bench of demanding more from parties if they were going to succeed in an application and I think that's the general gist of those decisions.

PN57

JUSTICE ROSS: Well, no, I don't agree with you and I was on both of them. I'm making the point to you that I accept the proposition that you make about the JobKeeper protections but I don't see where the Full Bench goes beyond that, either decision.

PN58

MR RIZZO: Okay. Your Honour, unfortunately I don't have all of that material in front of me at the moment, but yes, I understand your point. I was just making - I suppose I' making the general point that when the Hospitality and the Clerks Award were considered at the end of March, with the consent of the parties and I'm not allaying any fault of the Commission, with the consent of the parties, they were "fast-tracked" in inverted commas, and the Commission said so in that decision in the Clerks, that it wasn't standard practice and that things were moving a bit more quickly. And then my understanding is that later on when things were more settled that the Commission had a view that the evidence had there was a higher bar for necessity to be proven. That was my understanding.

PN59

JUSTICE ROSS: Well, the test of the variation being necessary for the award to achieve the Modern Award objective is a statutory test and it's been unchanged. I accept that the change has been the interaction with JobKeeper and there have been general pronouncements to the effect that if you're looking to introduce flexibilities which are similar to those in the JobKeeper provisions then it would be important to include the relevant safeguards, as well. But on the face of it I don't see how the revised determination is deficient in that regard, at least. I understand what you say about the change in circumstances but that's a different point.

PN60

MR RIZZO: Okay. I might conclude at this time by making this statement, your Honour, that I suppose what the ASU is looking at is since 28 March there's been material economic and legal changes since that time, material as in the rest of the country apart from Victoria, and I'll come back to Victoria to finalise, is easing restrictions as we speak. Some of these states have not had any cases for days and weeks in some circumstances. And in fact they're contemplating opening borders in Tasmania, South Australia and Queensland, I think have all got dates for border openings in about mid July. And then we say that the JobKeeper has come along and changed the game there. And I accept obviously that, your Honour, you're on the Bench and you're making decisions but there was some shift there, as well.

PN61

So I'll stop on that point and I'll address this point about Victoria because I notice that the employer submissions make a lot of noise about this. Look, I think we all understand that in the last fortnight things in Victoria have not gone well in terms of infection so that we can't deny that. But it is also true that literally in the rest of the country there has been an easing of restrictions. Border openings are being contemplated. People are shifting back to work and they've gone back to school a long time ago. And even if I look at the employer submissions at paragraphs 54 and 55 and 56, your Honour, and the Full Bench, it says regarding the Victorian State Government, Victorian restriction levels are due to arise - "Some of the easing of restrictions planned for 21 June have been changed and have been deferred until 13 July." So 13 July is a new date for Victoria despite the increases. With New South Wales, and I'm quoting here paragraph 55 of the employer submissions, "Employers must allow employees to work from home when it is reasonably practical to do so." And in Queensland it says, "Employees have been working from home (indistinct) the workplace if it suits both you and them", as in both you, the employer, and the employee.

PN62

So there are dates contemplated for reopening borders. There are dates for people to return back to work, albeit I understand with the exception of Victoria. But as we make our submission this is not a Victorian award, this is a national award and so I reckon we need to have a national view when we come to looking at the restrictions and easing of the restrictions and the like.

PN63

Your Honour and the Full Bench, I conclude by saying that we say that circumstances have changed since March 28. We say that to extend this would perpetuate some of the disadvantages that are impaled(?) and inherent in Schedule I and I think that it's unfair on employees. And we say that there really hasn't been enough evidence presented by the employers. For example, there's no witness evidence that has been produced by the employer despite there being thousands of employers and - 1.6 million employees in this industry. So we say with the easing of restrictions, the introduction of JobKeeper and the other changes that have occurred, and the disadvantages that would perpetuate, we say the extension is not needed, it's unwarranted and we would ask that the Commission reject the Employers Association application.

PN64

JUSTICE ROSS: Thank you, Mr Rizzo. Ms Ismail, was there anything you wanted to add?

PN65

MS ISMAIL: No, your Honour, nothing to add to the ASU submissions.

PN66

JUSTICE ROSS: All right, thank you. Mr Izzo and Mr Ferguson, was there anything you wished to say briefly in reply?

PN67

MR IZZO: Just one key matter from our end, your Honour, and that is, Mr Rizzo has made some comments about the nature of the evidence filed and that the employer parties have not necessarily discharged the evidentiary threshold required. Now I don't propose to go over the cases he referred to because I think your Honour's exchange with him resolved that matter. But what I'd like to say about the evidentiary threshold is this, and that is that we are seeking, temporarily, changes to the award safety net on what is still an urgent basis. And both of those factors should have some bearing on what may be necessary from an evidentiary perspective. But the fact that they're only going to operate for a very discrete period in response to extraordinary circumstances should mean that what the condition requires is different to a substantive ongoing terms of award change.

PN68

This is the very same issue that we're going to likely face when we - for instance, the Schedule X Award, and that is that the parties are seeking variations that on one respect we say are self evident because of the nature of the crisis and the nature of the safeguards that have been imposed. But two, we do have limited availability to access materials when we're having to move so rapidly and in response to circumstances that are changing on a daily and weekly basis. So I don't think that it's correct to say that some extraordinary witness statement or survey basis should be presented, particularly given the amount of information in the public domain, in the ABS and other publicly available statistics, about the prevalence of things like working from home, without the obvious fact that economic activity is right now in an extraordinarily fragile state. These matters should be self evident based on the data referred to in our submissions. So that's the primary thing I wanted to refer to.

PN69

And it applies to other award variations that are in response to Covid-19, provided they are temporarily in nature. Just like in an interlocutory matter before a court, what may be necessary to establish certain things on a prima face basis would be different to something that's going to stand permanently. So that's the only thing that we wish to raise in response. Other than that we rely on our written submissions.

PN70

JUSTICE ROSS: So what do you say, Mr Ferguson?

PN71

MR FERGUSON: Look, I don't intend to say anything further. The reason is, your Honour, that the written material is quite comprehensive in our view and really speaks to most of the issues raised by Mr Izzo and it sets out our position in relation to them satisfactorily.

PN72

JUSTICE ROSS: Well, thank you. If each of you wouldn't mind just remaining on the line for five minutes or so, I'll just confer with the other Members of the Full Bench and give you an indication as to what we propose to do in respect of this matter. So if you could just, if you wouldn't mind waiting for a short time, thank you. We'll be back in a minute.

SHORT ADJOURNMENT [1.07 PM]

RESUMED [1.11 PM]

PN73

JUSTICE ROSS: Are the parties still on the line?

PN74

MR FERGUSON: Yes, your Honour.

PN75

MS ISMAIL: Yes, your Honour.

PN76

JUSTICE ROSS: All right. I can indicate that we have reached a conclusion in respect of the application. We are satisfied that the variation of the award in accordance with the revised draft determination is necessary to ensure that the award will achieve the Modern Award's objective. We will issue a variation determination in the terms sought later this afternoon and we will publish our reasons in due course. That concludes the Private Sector Clerical matter. One of my Associates will now bring in the parties, the Full Bench will now hang up and we'll get all the parties on line for the first tranche of the Schedule X matters, and they are the matters which were mentioned in my statement of 28 June and the statement of the Full Bench on Friday, 26 June. We'll deal with those matters and then we will deal with the final group of Schedule X matters that were filed yesterday. Thank you, I'll now adjourn the Private Sector Clerical matter.

PN77

MR FERGUSON: Thank you.

ADJOURNED INDEFINITELY [1.12 PM]