PN1

JUSTICE ROSS: Good morning, could I have the appearances, please.

PN2

MS BURKE: Good morning, members of the Full Bench. Ms Burke for the Australian Council of Trade Unions.

PN3

JUSTICE ROSS: Thanks, Ms Burke.

PN4

MR WARD: If the Commission pleases, I appear with Mr Arndt for the Australian Chamber of Commerce and Industry, Australian Business Industrial and the New South Wales Business Chamber. I understand in relation to some objections that will be dealt with this morning concern a survey put on by the Victorian Automobile Chamber of Commerce. Mr Arndt will appear on behalf of the VACC this morning in relation to those objections.

PN5

JUSTICE ROSS: All right, thank you.

PN6

MR B FERGUSON: If the Commission pleases, my name is Ferguson, initial B. I appear on behalf of the Australian Industry Group. With me at the Bar table is Ms Bhatt, initial R.

PN7

JUSTICE ROSS: Thanks, Mr Ferguson. No one else in Sydney. In Canberra.

PN8

MR B ROGERS: My name is Rogers, initial B, and I appear for the National Farmers Federation.

PN9

JUSTICE ROSS: Thank you, Mr Rogers.

PN10

MR S HARRIS: Harris S for the Pharmacy Guild of Australia.

PN11

JUSTICE ROSS: Thanks, Mr Harris. There is no need to stand, it's probably easier if you keep your seat so that we don't have to adjust the microphone. And in Brisbane?

PN12

MR A MILLMAN: May it please the Bench my name is Millman, initial A, appearing for the National Retail Association. Members of the Bench, the microphones here are on the ceiling, so please let me know if you can't hear me.

PN13

JUSTICE ROSS: I can hear you fine. Thank you, Mr Millman. Anybody else? No. All right. I should explain that I am labouring under a bit of a cold and a sore throat, so if I need to adjourn quickly you will understand it's not in response to something you have said. I understand that the first matter we are dealing with, just if we can deal with the course of the next few days is the objection to the joint employer survey. This deals with – there's an outline of submissions from the ACTU regarding that. Can I just ask firstly, the two documents that at least I have about this are the ACTU's submission and there's an Ai Group submission in reply. Is that right, that's it?

PN14

MR WARD: Yes.

PN15

JUSTICE ROSS: I wasn't able to find anything from the VACC. That was the first thing. Those submissions address in particular the joint employer survey and the VACC survey. There are three witnesses, Janet O'Brien, Peter Ross and Benjamin Norman, three Ai Group witnesses that the ACTU takes exception to.

PN16

MS BURKE: Yes.

PN17

JUSTICE ROSS: Are you dealing with that this morning or is that going to be dealt with when those witnesses up, or have you resolved those.

PN18

MS BURKE: Only Ms O'Brien is required for cross-examination, so Mr Ross and Mr Norman are not required for cross-examination, but at the time these submissions were written they were. So the time that those objections are dealt with is at the convenience of the Bench. They can all be dealt with now. It's a very short submission to make about those, or I am happy to deal with them when the Australian Industry Group tenders their evidence.

PN19

JUSTICE ROSS: When they're tendered, yes. And I would encourage you to have some discussion about those, because it may be that they can be resolved by the concession or removal of certain statements.

PN20

MS BURKE: Certainly.

PN21

JUSTICE ROSS: Then we have got the ACTU expert witnesses on the course of today, and then there are some stand-by lay witnesses on the Tuesday. I think it's the NFF have filed amended witness statements, and my understanding is that that then resolves the need to cross-examine them from your purpose. Is that - - -

PN22

MS BURKE: That's right, your Honour.

PN23

JUSTICE ROSS: Where were those witnesses appearing in the - - -

PN24

MS BURKE: They were to appear on Thursday afternoon, they were tentatively in the Thursday afternoon slot.

PN25

JUSTICE ROSS: I see. All right.

PN26

MS BURKE: They filed supplementary witness statements going to their award coverage, and for that reason there's no need for me to cross-examine.

PN27

JUSTICE ROSS: And I notice on my sheet – I should probably ask my associate this – on the Thursday Peter Ross and Lauren Cleaver, they have an asterisk next to them, is that because it wasn't clear at the time whether they would be required or not?

PN28

MS BURKE: Further information has been sought in respect of both of those witnesses and the receipt of that would determine whether or not they're cross-examined. Mr Ross is no longer required for cross-examination. I understand he has or will file a supplementary statement, and I have received some information about Ms Cleaver last night and I have advised my friends I will inform them about whether I require her over the lunchtime break. So it may be that she's also not required.

PN29

JUSTICE ROSS: So that may mean that Mr Hoang is on earlier?

PN30

MS BURKE: It may, your Honour, yes.

PN31

JUSTICE ROSS: Mr Arndt, you're representing VACC. I might get you to talk to Ms Burke over the lunch break. On any view of it there are fewer witnesses in the morning, so we may as well move Mr Hoang to 11 at least.

PN32

MR ARNDT: I think that's right, your Honour.

PN33

JUSTICE ROSS: But I will leave that. The parties can have a discussion about that over the luncheon adjournment, and I just don't think there's much point having you all hang around for an hour and a half while we wait for Mr Hoang to come - - -

PN34

MS BURKE: I might be pushing against a locked closed bolted door, your Honour, but we could always start slightly later than 9 o'clock. I will not - - -

PN35

JUSTICE ROSS: Yes, that's the other way we could deal with it. I am having a bit of trouble adjusting to the 9 am start, Ms Burke, if it's any consolation.

PN36

MS BURKE: That will be the best news I will hear during this hearing.

PN37

JUSTICE ROSS: I am not sure how long Mr Hoang was going to be cross-examined, but it looks from the timetable that it was expected that the witnesses would be dealt with in the morning on the Thursday.

PN38

MS BURKE: Yes.

PN39

JUSTICE ROSS: As long as that's still the case we were fairly relaxed about when that occurs, but we would encourage you to try and do it so it's done efficiently and it's one witness after another rather than a gap between witnesses.

PN40

MS BURKE: The only factor that will I think increase the time is whether or not Mr Hoang gives evidence by video link. Initially it was proposed that would be acceptable. He prepared or was involved in the conduct of a survey for the VCA, but now that the spreadsheets underlying that survey, which are exhibited to his statement, have been provided I can confirm that I will be taking him to those spreadsheets during the course of his cross-examination. For that reason I have indicated to my friends that it may be more fair to him for him to be present in the courtroom rather than conducting that by video link.

PN41

JUSTICE ROSS: Yes, that might be easier but you can take that on board, Mr Arndt.

PN42

MR ARNDT: I will, your Honour. I will speak to Mr Hoang later today. I can indicate that the timing shouldn't be an issue so I think he will be available as early as he's needed but I'll pass on the message regarding his whereabouts.

PN43

JUSTICE ROSS: Look, the only other thing before I forget is, as is usually the case with matters like this, each of the parties have filed, you know, a number of submissions over a period of time and the challenge when you come then to write and make your decision about it is trying to work out which submission you should be looking at.

PN44

And I say this not in a critical way, because I probably did the same thing as an advocate, but whenever I've asked, "Well, I want you to let me know which one you should rely on", usually the answer is, "Well, all of them." But really, given often the nature of the claim is clarified during the course of the proceedings, positions shift.

PN45

And when you come to put in your - I think there's written material next week - it really would be of assistance to focus on which particular submissions and, if it's not all of a submission, then which parts should we look at.

PN46

The second thing is really, it is canvassed a bit in the written submissions, that is, what findings - not expressly in these terms, but it's set out what the purpose is of the witness evidence and what you say it will show. When we come to deal with the matter next week we'd be looking for, well, more explicitly what particular findings are you seeking on that witness evidence?

PN47

We'll make sure the transcript is expedited, available on a daily basis, so you'll be able to check that. And I'd encourage you - and I know it can be difficult, given the timeframes, but nevertheless to focus on which particular paragraphs of the evidence or transcript that you say supports your particular points, okay? So if you can each think of that?

PN48

I know it's a bit of a counsel of perfection and some witness evidence doesn't lend itself to that. It's more of, especially with lay witnesses, a general impression one would gain from the witness evidence. It's clearer with respect to the experts though so - - -

PN49

MS BURKE: Yes, and I'll take that on board and we're happy to aim high. Can I just inform you also that the ACTU has been advised that Ms Fowler is not required for cross‑examination? She was our Wednesday evening witness.

PN50

JUSTICE ROSS: Maybe we should have listed them all at 5.45 and ‑ ‑ ‑

PN51

MS BURKE: Yes, I'll think about that in future, your Honour.

PN52

DEPUTY PRESIDENT GOOLEY: It's a tactic we've used before.

PN53

JUSTICE ROSS: I take it the idea of the break between 2.30 and 4.15 is that Mr Lapin(?) and Ms O'Brien are not available earlier, is that the - - -

PN54

MS BURKE: No, your Honour, it was entirely for my benefit.

PN55

JUSTICE ROSS: Okay. All right, that's fine.

PN56

MS BURKE: It was to allow - firstly there needed to be a gap somewhere to address the fact that Ms Fowler was giving evidence late. And second, I had scheduled the gap there to benefit my preparation of cross-examination of Mr Lapin and Ms O'Brien, given that that represents the end of the ACTU evidence and then the commencement of the employer evidence. So I'm very conscious that I was seeking an indulgence in that regard but given the (indistinct).

PN57

JUSTICE ROSS: No, no, yes, that's fine. I just wasn't clear of why it was when I was looking at the program, that's all. Look, if we go to the survey evidence, we've got your submission and Ai Group's reply. We've had an opportunity to read those.

PN58

MS BURKE: Yes.

PN59

JUSTICE ROSS: For myself I think I want to hear from Mr Arndt first to see whether the ACC's position is any different and then we'll hear what you wish to say about the employer responses to your objection and deal with it then.

PN60

MS BURKE: Thank you, your Honour.

PN61

JUSTICE ROSS: Mr Arndt, what's the - - -

PN62

MR ARNDT: Your Honour, I should just say for clarity, obviously the Australian Chamber adopts and relies on the joint employer survey as well. The ground has been quite typically rather well comprehensively covered by my friend Mr Ferguson and Ms Bhatt in their written submissions.

PN63

Speaking specifically to your Honour's question, I think this is a relatively simple matter that's been overcomplicated. The VACC is a member of ACCI. It has a preference to conduct its own surveys. The reasons for this are addressed in its letter of 24 November which was filed and I believe all the parties have a copy of.

PN64

The VAC adopts the submissions of the Australian Chamber in respect of - in the general sense but also provides the VAC survey as specific evidence for its award in relation to the common issue.

PN65

JUSTICE ROSS: I suppose the main thing for me is, does it follow from that that as Ai Group puts, and as ACCI has adopted, the surveys are not tendered on the basis that they represent a representative sample of a particular part of business? They're rather advanced by way of descriptive or anecdotal evidence, is that the VACC position as well?

PN66

MR ARNDT: That is, both in respect of the VACC position and the joint employer survey. We don't wish to overstate or oversell the surveys.

PN67

JUSTICE ROSS: No.

PN68

MR ARNDT: The ACTU has brought to the attention of the Bench a number of practice notes and authorities. We would submit that the relevant authority would be either penalty rates decision, and in the parlance of that decision we would submit that the VACC survey would be indicative rather than determinative, so as your Honour has put it.

PN69

JUSTICE ROSS: Yes, I think the challenge with survey evidence is more acute where it's advanced as it was, for example, in retail. My recollection was in the penalty rate case where it's said to be representative of a particular group of employers. But as I understand it, in this instance that's not the basis on which the survey evidence is advanced. All right.

PN70

MR ARNDT: To use another distinction, your Honour, the Australian Chamber certainly advances the survey in a qualitative sense, not in a quantitative sense. There's no hard percentage or hard number that it needs to rely on to advance its case. It's illustrative and it's useful and the Bench should admit it.

PN71

JUSTICE ROSS: Ms Burke, anything you wish to say about any of that?

PN72

MS BURKE: Yes, your Honour, thank you. There are five matters that arise from the Australian Industry Group's response to the ACTU's submission. I don't propose to go through the submissions in detail, just to address these issues.

PN73

The first of those is what is the purpose of the joint employer survey? I've heard what my friend has just said but I think it's useful to actually look at what the submissions say of all the parties that rely on the joint employer survey because they indicate that the purpose of this survey, and more particularly what the Commission is supposed to do with it, isn't as clear as it might seem from Mr Arndt's submission just now.

PN74

The second matter I'm going to want to address are the applicable principles. The third is the material we still don't know about. The fourth is a response to this idea that the ACTU's objection will have a chilling effect on the receipt or the consideration of any survey evidence in this Commission. And finally, addressing the unfairness that the ACTU contends arises should the survey be tendered.

PN75

In their submissions dated 11 December the Australian Industry Group described this survey at paragraph 26. They say that:

PN76

Neither Ai Group nor ACCI have sought to rely on the quantitative results of this survey as being representative of employers generally or of employers in any particular industry.

PN77

Then at paragraph 60 they repeat that but say nonetheless that:

PN78

The results represent the circumstances and views of a significant number of award covered employees.

PN79

And at 66 that the joint employer survey is demonstrative of the propositions listed in their submissions. It's not put any higher than that. But if you have a look at the Australian Industry Group's submissions at paragraph 511 what is said there is that:

PN80

The sample size is a substantial one and by virtue of that result alone the survey results carry significant probative value.

PN81

At paragraph 515 the Commission is told that:

PN82

The survey provides an important and valuable insight into the considerations and issues that are pertinent to specific industries and occupations.

PN83

That's a very clear indication that it is intended to be representative more generally.

PN84

JUSTICE ROSS: Well, to the extent to which that's what that means, they've abandoned that point.

PN85

MS BURKE: Well, if that - - -

PN86

JUSTICE ROSS: To be clear, that's as I understand it. You are not contending that it's representative?

PN87

MR FERGUSON: We're not contending it's representative.

PN88

JUSTICE ROSS: No.

PN89

MS BURKE: I thank my friend for the clarification.

PN90

MR FERGUSON: To be clear, we still say that there may be some probative value from - - -

PN91

JUSTICE ROSS: No I appreciate that, but it's really the probative value is on the basis that a number of employers have responded to the survey, this is what they have said, and just as we have regard to lay witness evidence in relation to the matter we should have regard to this.

PN92

MR FERGUSON: Yes.

PN93

JUSTICE ROSS: But it's not said to be definitive of the views of all employers so it's not representative in that sense. That's as I've understood what they have put.

PN94

MS BURKE: That's as I understood it this morning as well, your Honour.

PN95

JUSTICE ROSS: Yes, I appreciate that it's not - I agree that it's not perhaps that clearly expressed in the earlier submissions but now it seems to have been clarified, and I'm taking it that that's the view that is consistent amongst the employer parties, that it's not just Ai Group saying it, it's all employer parties have adopted that view. But there's a different - - -

PN96

MS BURKE: Well - - -

PN97

JUSTICE ROSS: Sorry, if an employer party has a different view now would be the time to tell me.

PN98

MS BURKE: And just before the employer party does or does not, it might be relevant to note that the Australian Chamber of Commerce and Industry submissions refer to this survey in terms of statistical data.

PN99

JUSTICE ROSS: Yes.

PN100

MS BURKE: And that's at paragraph 9.55. So in terms of statistical data, the Chamber identifies its numbers of results. Over the page at 9.56:

PN101

These statistical results correspond with other evidence in these proceedings...

PN102

which suggests a certain outcome, and at paragraph 9.62:

PN103

The joint employer survey should be accepted as evidence of the experience of businesses in accommodating requests, and provide some insight into the issues dealt by employers in operating under the current legislative regime.

PN104

And finally the National Farmers Federation, while of course dealing specifically with matters relevant to that industry, at paragraph 24 rely on the joint employer survey to say that:

PN105

Many farmers will consider whether they have capacity to employ someone with parenting or caring responsibilities.

PN106

And again at paragraph 43 rely on that survey to say that:

PN107

It demonstrates that if the application is granted, employers are less likely to take on employees given that it would effectively deprive them of the right to decide when and how they use them.

PN108

So those are the paragraphs in the submissions that I'm relying on to base my concern that this survey is said to be representative of employers and industries.

PN109

JUSTICE ROSS: Yes.

PN110

MS BURKE: I those are now redacted then this is the opportunity I think to clarify that.

PN111

JUSTICE ROSS: I don't think it's put on the basis that they're redacted. It's put - because if you take one of the sentences you referred to in relation to the Chamber's submission it's still put that it provides some insight into the circumstances. My understanding is that it is not being advanced by any employer organisation that these surveys provide evidence which is representative of the position of employers in any particular set-down.

PN112

MS BURKE: Or of the members of these organisations.

PN113

JUSTICE ROSS: Indeed. It's not put that it's representative in a quantitative sample size and response rate sense. It's put on the basis that it provides some insight into the circumstances and the challenges et cetera faced by some employers who responded to the survey, and to that extent it is said to be of assistance in giving consideration to the issues that are before us. In much the same way as it couldn't be said that the evidence of the ACTU lay witnesses is somehow representative in any statistical sense of the circumstances of all employees. But it does illustrate that for those employees they have encountered particular practical problems and it gives life, if you like, to the argument that you're advancing.

PN114

MS BURKE: Certainly.

PN115

JUSTICE ROSS: So it sort of - lay evidence is always of assistance because it does provide some insight into the human dimension of a particular claim and the survey evidence, as I understand how it's being relied on, is intended to provide evidence of much the same flavour, and it's saying "Well, we've asked employers about this. Here's what some of them have said who have responded to the survey" and the employers rely on that as being material that's said to support their position.

PN116

MS BURKE: I think there are a couple of differences, important differences, between how this survey evidence is sought to be used and the evidence of lay witnesses. I agree the comparison is apt but it only takes you so far.

PN117

JUSTICE ROSS: Sure.

PN118

MS BURKE: Because of course the employers can and will cross‑examine the evidence of lay witnesses.

PN119

JUSTICE ROSS: Sure.

PN120

MS BURKE: To test the veracity, the reliability and frankly the rational aspects of it. I have no way of testing many of the - any of the responses in joint employer survey. Some of the answers may be completely irrational - - -

PN121

JUSTICE ROSS: But that's true of any survey.

PN122

MS BURKE: Yes. But ordinarily that hurdle is overcome by having somebody attest to the methodology of it, the representativeness of it, the size of the sample and so on, and so the unreliability of that is balanced somewhat by methodological evidence.

PN123

JUSTICE ROSS: Sure. But the reliability issue, there's no evidence advanced on that and you can make submissions about that.

PN124

MS BURKE: Well, it is put that it is highly probative.

PN125

JUSTICE ROSS: Sure, but every party says that. Frankly, I mean you know - - -

PN126

MS BURKE: I'm taking them at their word, your Honour.

PN127

JUSTICE ROSS: Well, no doubt they will rely on it and you'll advance the argument you're advancing as to why we ought not place any significant weight on it.

PN128

MS BURKE: The other significant factor is of course that one lay witness is not put as being representative of anything at all, but rather illustrative of their own experience. In this circumstance we still don't know - and I don't know why we don't know this - how many people this survey was sent to, who it was sent to, are there members of the various employer associations that aren't identified, are they employers, might they be individuals, might they be lobby groups?

PN129

JUSTICE ROSS: Sure.

PN130

MS BURKE: If they're lobby groups, are they responding on their own behalf or on behalf of their members?

PN131

JUSTICE ROSS: You're suggesting that you can't ask the witnesses those questions? Why can't you?

PN132

MS BURKE: There is no witness I can ask those questions of.

PN133

JUSTICE ROSS: Yes.

PN134

MS BURKE: And what is significant is if the Australian Industry Group in particular rely on the fact that there are over 2,000 responses to say that that number alone is a big number ergo it's representative - of course that's not the case and I can and will make submissions about that - but I don't know for example if the survey was sent to 10,000 people or 20,000 people.

PN135

JUSTICE ROSS: Yes.

PN136

MS BURKE: And I mean the percentage of 2,000 is significantly different. If those 2,000 responses represent only one or two or 5 per cent of the employer members, then the value of it is reduced, in my submission.

PN137

JUSTICE ROSS: Sure. No, no, I follow the argument and for myself if there's no material about that that's a factor that goes to the weight that you attribute to the results. But that's how the employers have chosen to present the material and that's a risk they'll have to bear.

PN138

MS BURKE: I suppose my submission is that that is such a significant gap that it ought not be accepted into evidence. It can't possibly be of any probative value, certainly not as a survey or not even really as a collection of thoughts for an unknown group of people. The value of that is obscure, your Honour.

PN139

JUSTICE ROSS: All right.

PN140

MS BURKE: I won't address the principles because I think they've been canvassed, and in particular the concessions that have been about this as a survey as opposed to a collection of comments negates the need for that. There is this concept or this argument made in the employer submissions that there will be a chilling effect if this survey isn't permitted to be tendered, and that's at paragraph 72 to 80. In my submission this argument really misses the point. The Australian Council of Trade Unions doesn't seek to tender literature and so forth. Rather, that's relied on by our expert witnesses who will give their opinion about what findings can be drawn from that evidence. And so the Australian Industry Group can cross‑examine the experts about whether their opinions about that evidence and the findings is reliable or not.

PN141

JUSTICE ROSS: Except that we're relying on that evidence. It's in the research references.

PN142

MS BURKE: That's not a point that I necessarily can make, your Honour, but I agree.

PN143

JUSTICE ROSS: Yes, and that's why we published the list. Because we do want to look at the original sources and parties are on notice about that, so.

PN144

MS BURKE: Certainly, but I'm not or the point is that I'm not seeking to tender the AWALI survey through for example Professor Charlesworth but what I am seeking to do is have Dr Murray and other witnesses who rely on that material to put their name to their findings and to be cross‑examined about it if appropriate. So the comparison isn't apt because the opportunity to test that evidence is there.

PN145

JUSTICE ROSS: No, I follow.

PN146

MS BURKE: And finally the notion that there's no prejudice to the ACTU that can't be remedied through making submissions, well the suggestion that this objection is premature because I can make submissions about it really reverses the appropriate sequence of how these things should go. It would be, in my respectful submission, unusual if I was to make submissions about it, cross-examine someone about it, and then on Thursday next week say, well, actually now I object. I have tested it and now I object.

PN147

JUSTICE ROSS: No, the time to object is prior to the admission of the material, or at the point where it's sought to be admitted.

PN148

MS BURKE: And second, the suggestion that I can cross-examine Mr Lapin about many of these matters, including the particular survey logic, the instrument and cookies and so on, in my submission there is no utility to that because Mr Lapin expressly says he had nothing to do with the design and conduct of the survey. Unless I understand my friends to be saying that they will not object to any cross-examination I attempt of Mr Lapin, but again I am really struggling to see the utility, and the points that I might make about those matters, the cookies point for example is put that perhaps with some serious angst we trust that the ACTU is not questioning the truthfulness of Ai Group's submission. No, I am not questioning the truthfulness of it, I am questioning whether cookies is a sufficient method of quality control, and I don't really have anyone I can put that to. I can make a submission about it, but, your Honour, that's not evidence.

PN149

JUSTICE ROSS: I suppose we are left with, the employers have chosen to advance the material on the basis in which they have put it. They have done that – they have made the decision not to put forward a witness who was associated with the design and to provide detailed material around the design, presumably because the evidence is not advanced as a quantitatively reliable survey instrument from which you can draw conclusions about the general population.

PN150

MS BURKE: It is not now, your Honour, but it was until very recently.

PN151

JUSTICE ROSS: No, I am merely putting to you that they have taken that course and that risk if you like, and you have clearly put them on notice as to the objections you will be making and your final submissions about the weight that should be attributed to the survey instruments, or the results rather.

PN152

MS BURKE: The final point is that articulated by Justice Perram in his decision in Air New Zealand, which is under this umbrella that the prejudice can't be cured by - being unable to cross-examine a witness about it can't be cured by submissions, and that's not an appropriate course. I understand and appreciate that the rules of evidence do not apply to the Commission, and I understand the rationale for that as well, but in my respectful submission this survey would probably not be admissible in any court in Australia and that should be a red flag to the Commission about the reliability of it, and if it is so low, if there is so little probative value to be gained from it then it's not relevant and therefore not admissible, and that's the basis for relying on those principles. Unless there are any other questions.

PN153

JUSTICE ROSS: No. Thank you, Ms Burke. We don't need to trouble the employer advocates in relation to the matter. Having regard to what has been put about the limited purpose for which this material is advanced, that is that it is not advanced as being representative of a broader population group, but rather as descriptive or anecdotal material, we propose to admit it on that basis. The weight to be attributed to it and whether it is, as has been asserted of substantial probative value or not, is a matter that can be addressed in submissions having regard to the matters that Ms Burke has raised. We will now move to our first witness. Is Ms Austen here?

PN154

MS BURKE: She is, your Honour, thank you.

<SIOBHAN EILEEN AUSTEN, AFFIRMED [9.44 AM]

EXAMINATION-IN-CHIEF BY MS BURKE [9.44 AM]

PN155

JUSTICE ROSS: Yes, Ms Burke.

PN156

MS BURKE: Professor, can you please state your full name for the transcript?‑‑‑My full name is Siobhan Eileen Austen.

PN157

And your occupation?‑‑‑I'm a professor of economics at Curtin University, Western Australia.

PN158

And your address?‑‑‑(Address supplied)

PN159

Have you prepared a report for the purposes of these proceedings?‑‑‑I have.

*** SIOBHAN EILEEN AUSTEN XN MS BURKE

PN160

Can I ask that the witness be handed a folder. Just so Professor Austen understands this folder contains all of the expert reports that the ACTU will be relying on. If you open that folder there should be a tab with your name on it?‑‑‑Yes.

PN161

If you turn to that. Have you got there a statement by you dated 5 May 2017?‑‑‑Yes.

PN162

That's nine paragraphs and with three attachments. The first attachment is your CV?‑‑‑Yes.

PN163

The second attachment is the letter of instruction from the ACTU?‑‑‑Yes.

PN164

And the third attachment is your report entitled "The effect of parenthood and other care roles on men's and women's labour force participation and experiences of paid work"?‑‑‑Yes.

PN165

Does that report accurately set out the opinions formed by you based on your expertise?‑‑‑It does.

PN166

I tender the statement and the annexures.

PN167

JUSTICE ROSS: Have we marked any exhibits today, or is this the first?

PN168

MS BURKE: No, this is the first.

EXHIBIT #ACTU1 STATEMENT OF SIOBHAN AUSTEN DATED 05/05/2017 WITH ANNEXURES

PN169

MS BURKE: Professor Austen, have you also prepared a second report in reply to a report by Ms Tock?‑‑‑I have.

PN170

That should be at the back of that section of the folder, your section of the folder?‑‑‑I can see it.

PN171

You have got that there?‑‑‑Yes.

PN172

Is that a statement dated 27 November 2017?‑‑‑It is.

*** SIOBHAN EILEEN AUSTEN XN MS BURKE

PN173

It's three pages?‑‑‑Yes.

PN174

And attached to it is a letter from the ACTU dated 20 November?‑‑‑Yes.

PN175

Does this statement accurately set out the opinions formed by you based on your expertise?‑‑‑It does.

PN176

Thank you. I tender that statement.

EXHIBIT #ACTU2 STATEMENT OF SIOBHAN AUSTEN DATED 27/11/2017

PN177

MS BURKE: Thank you, Professor Austen. Just wait there and there will be some questions.

PN178

JUSTICE ROSS: I take it the various employer organisations have discussed how they are – because I don't want the witnesses faced with a litany of repetitive questions from different advocates, but you have sorted all that out as best you can.

PN179

MS BURKE: Rest assured there will be strenuous objection if that occurs.

PN180

JUSTICE ROSS: No. Not only from you, Ms Burke.

PN181

MR WARD: There might be a litany of repetitive questions from me personally.

PN182

JUSTICE ROSS: No, certainly not.

PN183

MR WARD: Your Honour, can I just say Mr Ferguson and I have discussed how we proceed. We are going to do our very best in that regard to stick with the timetable and everything else, but there might be the moment where there's the odd stray and we will deal with it.

CROSS-EXAMINATION BY MR WARD [9.48 AM]

PN184

MR WARD: Professor, good morning?‑‑‑Good morning.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN185

My name is Nigel Ward. I appear in these proceedings for the Australian Chamber of Commerce and Industry. Are you aware of who they are?‑‑‑I am.

PN186

Good. Can I address you as Professor, is that - - -?‑‑‑That's fine, thank you.

PN187

Can I start by asking some very specific questions about deciding to have a family. I don't mean you personally but in terms of your area of expertise. Can we take an example of a husband and wife and then they're deciding to start a family. Would you agree with me - I want to put a number of propositions to you about their decision making process and I want to see whether or not you agree with me that that might be part of their decision making process. I suppose the first thing is that that husband and wife would probably have a conversation about when might be the best time in their lives to start a family.

PN188

MS BURKE: Your Honour, I object to the question. Professor Austen is a labour economist. She's not a demographer, she's not a social scientist in a broader sense. It's hard to see how this question goes to a matter that is the subject of her expertise.

PN189

MR WARD: I'm just kind of wondering whether or not the witness should be here when I reply, that's all. Your Honour, this witness makes a series of observations about the shift from various forms of full‑time employment to part‑time employment, the shift from part‑time employment to full‑time, part‑time to casual, the (indistinct) sets of people moving out of the labour force when they have children, and I just want to explore the extent to which this witness understands issues which might go to the motivation of people who make those decisions.

PN190

JUSTICE ROSS: You can put the question to the witness more directly then and rather than in a general sense go to those parts of the report that show that shift and ask the more direct question.

PN191

MR WARD: Well, I was leading to that. I wanted to find out first of all whether or not the witness had any knowledge about how people might make those decisions before they made the shift.

PN192

JUSTICE ROSS: Then perhaps ask the witness whether she has any knowledge of that and the witness can certainly answer that question.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN193

MR WARD: Do you agree with me this, that for many women who have children, shifting from full‑time employment to part‑time employment is desirable?‑‑‑What I can comment there is that many women express a preference for part‑time work and we know that many women act on that preference. Yes.

PN194

And that motivation for taking up part‑time work, do you understand, would be part of a very complex set of decisions that that individual is coming to deal with?‑‑‑Yes, there's a complex set of decisions.

PN195

And those decisions might involve availability or affordability of child care?‑‑‑Yes.

PN196

They might involve their career aspirations?‑‑‑Yes.

PN197

They could involve cultural issues about cultural expectations?‑‑‑Yes.

PN198

Could involve the individual's personal childhood experience and whether or not they want to personally look after a child?‑‑‑Yes.

PN199

Yes. They could involve questions of the level of expense or debt the family as a whole has to carry?‑‑‑Yes.

PN200

And they could involve questions of which of the partners earns more money and which one earns less?‑‑‑Yes.

PN201

Yes, and you'd agree with me that those are very complex decision making matters, most of those are private to that couple, they don't involve the employer?‑‑‑I'm sorry, I'm not quite sure what you're suggesting.

PN202

Well, if you think about things like "We're starting a family. Who's going to look after the child? Can we find child care? Is child care affordable? What are my career aspirations?" those are personal and private decisions. The employer is not involved in those decisions?‑‑‑The employer potentially is involved if the decision making is taking account of the existing employment relationship and the opportunities that that affords.

PN203

The employer has nothing to do with when they start the family, does it?‑‑‑No.

PN204

No, and they have nothing to do with the availability of child care?‑‑‑Not always. In some cases employers provide child care.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN205

How often?‑‑‑I really - I'm not sure what the proportions are but - - -

PN206

Very small?‑‑‑I really can't answer that with confidence, I'm sorry. Yes.

PN207

Okay, I won't press you on it, that's fine?‑‑‑Yes.

PN208

And the time the employer really gets involved in all of that is when the employee comes to the employer and says "To accommodate my child, to accommodate these decisions my partner and I have made, child care, the like, this is the set of arrangements I need in the workplace to accommodate that". That's when the employer really gets involved isn't it?‑‑‑As I said before, I think a lot of these decisions are made in the context of an existing employment relationship. So, you know, the assessment of earnings capacities, career opportunities, the availability and likely cost of child care is likely to encompass factors that are specific to the employment relationship and therefore have some - are influenced in some way by the employer. So I suppose that what you're suggesting, that the employer doesn't come into the picture at all until, say, a decision has been made to have a child or the woman is pregnant and then she approaches the employer, I don't think that fully captures the role of the employer. Yes.

PN209

So in an indirect sense the employment relationship and status is important?‑‑‑Yes.

PN210

Yes. But in terms of the employer being involved as a moving mind, as a decision maker, their first involvement as a decision maker is normally when there's a request for flexible work?‑‑‑Potentially. I'm really not sure that that's always going to be the first time they're involved because employers are increasingly - are interested in retaining women in their organisations. Often the issues of possible periods of absence for parental leave are on the table even at the time of recruitment and so, you know, I think it's - it doesn't fully capture everybody's experience that somehow nothing's talked about in relation to these matters until the moment that for example the woman falls pregnant.

PN211

So I think what you're trying to say that in some workplaces there's a relatively early conversation about what's going on?‑‑‑Yes. Thank you.

PN212

It could be quite collaborative in terms of trying to work out what's best for everybody?‑‑‑Mm‑hm.

PN213

In some of the workplaces it might be a later conversation?‑‑‑Yes.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN214

Yes. Now you talked a lot in your statement about - I think the phrase you used is "Many women having children causes many women to leave the workforce". Can I just explore a little bit about that just to make sure I understand what you're saying. Have you got your statement in front of you?‑‑‑In front of me, I do, yes.

PN215

Can I ask you to go page 18? Now at the bottom of page 18 is figure 10?‑‑‑Yes.

PN216

I'm right in saying, am I, that this presents a data set over a 14 year period?‑‑‑That's correct.

PN217

Right, and I think you say also that it's a data set for women between 24 and 60 years of age?‑‑‑Yes.

PN218

So this dataset is not targeting women with dependent children but it would capture women with dependent children?‑‑‑Yes.

PN219

Can I just understand this, make sure I understand what it's saying? If you take the first column on the left‑hand side it's got:

PN220

Stayed full‑time employed.

PN221

Do I read that to mean that over that 14‑year period 33.4 per cent of the women were full‑time employed at the beginning of the 14-year period and stayed full-time employed throughout the whole period?‑‑‑No, that's not correct.

PN222

Help me out, professor?‑‑‑And to help you out, yes, so what's measured here are what we call employment transitions as opposed to individuals. And so we measure a success in paragraph 43, year on year employment transitions. We've got people in the survey, some for the total of the 14‑year period, some for part of the 14‑year period. And of all of the people involved, say for someone who's been in the survey for the 14 years, we can measure the year on year employment transitions. So say in 2001 we measured that they were full‑time employed, in 2002 we measure that they were full‑time employed again, that counts as one employment transition that we measure. And then if we measure them again 2002 and 2003 and they've stayed in full‑time employment across those two subsequent years, we'd measure that as a separate employment transition. So over all of the people in the survey, as I said, for '15‑15 years, some for less than that period, we measure in the case of women 60,114 employment transitions, of which 33.4 per cent were what we call a transition where they stayed in full‑time employment.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN223

So year to year constitutes a transition period?‑‑‑Yes.

PN224

If in that transition period I stayed in my job then I'm in the stayed in category. If in that transition I moved, I'm in the moved category and off I go?‑‑‑Yes, yes.

PN225

Very good, helpful. So I take it then that when you say 21.8 per cent stayed out of paid work - - -?‑‑‑Yes.

PN226

So that's 21.8 per cent transitions, not that 21.8 per cent of the women in the survey stayed out of work?‑‑‑Yes, yes.

PN227

There's nothing in that dataset that tells us anything about the motivation of why those transitions were made?‑‑‑Nothing in the data that I've analysed.

PN228

Yes, and particularly in relation to this case we can't draw anything from that data about whether or not those transitions related to a request for flexible work from an employer and whether that request was agreed or declined?‑‑‑That's right.

PN229

Can you turn the page to figure 11? Now, this seems to be similar to the last one but it says it relates to new mothers?‑‑‑Yes.

PN230

So I struggled to find a definition for new mother. I'm sure it was in there, but what constituted a new mother?‑‑‑Where the - you know, go back to that idea that we can measure people - or identify is probably a better word - people, say, in 2001 and then in 2002, yes? And then what we can observe is whether or not a child was born. So Hilda collects information, for example, on the number of children you had in 2001 and the number of children you had in 2002. So if a child was born the number goes up, yes.

PN231

So if in that year on year transition period - - -?‑‑‑Yes.

PN232

- - - a child was born, if I ticked yes - - -?‑‑‑Yes.

PN233

- - - then these are the transitions for people who are in that category of, "I ticked yes"?‑‑‑Exactly.

PN234

Okay, got it. That's helpful. So this tells us about, "I've had a child." I'm presuming the child is no more than 1 year of age?‑‑‑Yes.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN235

Therefore some transitions occurred in that year?‑‑‑Yes.

PN236

So this is likely - and just help me; no trick question here?‑‑‑Yes, yes.

PN237

This is likely to be in the first year of the child's birth, so a period of that time might have involved me taking parental leave if I was the mother?‑‑‑Yes.

PN238

So if there is a transition it would be post‑parental leave?‑‑‑I'm not quite sure. So, you know, just to answer you frankly, I'm not quite sure how parental leave would be affecting these numbers. I think it's important to keep in mind that the analysis spans the period 2001 to 2014 so it predates the paid parental leave period for a large part so - - -

PN239

But not unpaid parental leave?‑‑‑No, no, and I do know that there's some discussion about how people report their employment status when they're on parental leave. So that would be creating some sort of uncertainty about some of the transitions that are being measured, yes.

PN240

So the only clear motivation for these changes though that we can draw form this dataset is that somebody's had a child?‑‑‑Somebody's had a child and then we're observing how they're reporting their employment status.

PN241

Put aside for a minute the question of where parental leave fits in?‑‑‑Yes.

PN242

They're reporting their status in employment?‑‑‑Yes.

PN243

Doesn't tell us anything about whether or not they made a request for flexible work and how that was dealt with?‑‑‑That's right.

PN244

No, no, okay. If I could ask you to go to figure 12?‑‑‑Sure.

PN245

And if I could ask the ACT next time to do this in colour? Sorry, I found this hard to follow but can I - - -?‑‑‑Yes.

PN246

MS BURKE: There's a key at the bottom.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN247

MR WARD: Even with the key. Now, there's a phrase that's used here, and help me out, it says "kids"?‑‑‑Sorry, children.

PN248

No, no, no, I'm happy with "kids". It's all right, I've got kids, it's okay. No, I'm actually asking a different question which is, is a kid 0 to 4, 0 to 14? What is a kid?‑‑‑Would you mind if I just check back through the preceding paragraphs?

PN249

No, I don't mind, Professor, it's fine.

PN250

JUSTICE ROSS: Para 47.

PN251

MR WARD: Your Honour does read everything?‑‑‑Yes, so ‑ thank you.

PN252

That didn't quite get me there because I didn't understand what was meant by "young children are not present". You see paragraph 47(a)? Is "young children" an academic phrase for people under 4 or ‑ ‑ ‑?‑‑‑It's a phrase that I've used to refer to children under the age of 5.

PN253

Under the age of 5. So the dataset in 12 doesn't concern women with children under 5? Or it only concerns women with children under 5?‑‑‑It includes both because the group of women with children over the age of 5 would be represented ‑ the group of women with children over the age of 5 would be included in that "still no kids", and part of the very casual language in figure 12 that they would be included in that category, and likewise the change to no kids, which sounds appalling, means that you've got – included that group are women who have children, but those children are now over the age of 5.

PN254

Over the age of 5. So this isn't showing me any trends for women with children aged from birth to 4 years of age?‑‑‑The figure 12 is providing information on the employment transitions of women with children under the age of 5.

PN255

Under the age of 5?‑‑‑Yes, as well as – and comparing them, in comparing those employment transitions with those recorded by women with children over the age of 5 women who don't have children full stop.

PN256

I won't press this too much longer. You say in paragraph 47(a) "Young children are not present". If this data set included birth to 18 what does young children are not present means, can you just help me with that?‑‑‑It means you've got a woman who does not have a child under the age of 5.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN257

Can I just put a number of propositions which I hope are uncontroversial from reading this table - - -?‑‑‑Sure.

PN258

- - - and I am hoping I have read the squiggly lines properly. The first one is this; it appears that some women move out of the workforce when they have children?‑‑‑Yes.

PN259

Am I right in saying that as the children get older will more women go back into the workforce?‑‑‑As children grow older some women move into the workforce, yes.

PN260

Would I be right in saying this, that the reason why women move out of the workforce could be a variety of reasons; one is some choose to do it?‑‑‑Yes.

PN261

Some might have some cultural pressure put on them not to be in the workforce when they have a child?‑‑‑Yes.

PN262

And some could simply not be able to find child care and not be able to afford child care?‑‑‑Yes.

PN263

I think the second proposition I took from this was that when women have children a reasonable proportion of women move into part-time work?‑‑‑So the – so that's the full-time to part-time. No, sorry – yes, full-time to part-time, yes. And, yes, the figures show that the percentage of women who fit into that employment transition category increases from around 5 per cent to – it's around 14 per cent.

PN264

So there's a high demand after having a child for part-time work?‑‑‑Yes. Well, the numbers definitely are higher.

PN265

Show that?‑‑‑Yes.

PN266

Am I right in saying, also the other thing I take out of this is that as children get older some women move back from part-time work back into full-time work?‑‑‑So that's the part-time to full-time and we're looking at one of the lowest lines on figure 12, and that does show that the proportion of women who move from part-time to full-time work increases as the children become older.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN267

I assume that is if I'm the primary carer I have got to a point where the child is less dependent, I either need to or I want to go back to full-time work and I go back?‑‑‑I would – I would attach the same interpretation, yes.

PN268

Again without labouring the point that tells us a little bit about movement. It tells us that that movement is about having children. Do you agree with that?‑‑‑Yes. When I look at figure 12 I think it tells a very strong story about how parenthood, having children, affects these employment transitions, yes.

PN269

Does figure 12 also tell us a little bit of the story about a person caring for another person as opposed to having a child?‑‑‑No, the only – the whole focus of the figures representative in figure 12 are around child care.

PN270

I am conscious of the time, can I just move on. You then on pages 22 and 23 and following start talking about occupational downgrading, and you use, is it Connolly and Gregory's framework for that, and I think that's found on the bottom of page 16. Can I just ask you to go to that?‑‑‑To page 16?

PN271

Yes, please, if you could. Is Connolly Dr Bob Connolly?‑‑‑I don't believe so, no.

PN272

I am just trying to understand this. It says here that this is a ranking. So for instance teachers are ranked over corporate managers. Her Honour is saying what do you expect. It actually is ranked that way so a teacher is seen as a higher profession than a corporate manager?‑‑‑Yes. The ranking takes account of the – the educational qualifications that are required for entry into the occupation and the proportion of people within an occupational group requiring those qualifications, or, sorry, that possess those qualifications.

PN273

It's a particular construct that Connolly and Gregory adopted?‑‑‑That's right.

PN274

I think you say in your statement that the highest category of occupational downgrading (indistinct) 29 per cent of corporate managers move to clerical work. Was that the highest downgrading?‑‑‑Could you point me to that.

PN275

I am just trying to find it now. Paragraph 34?‑‑‑So paragraph 34 is reporting Connolly and Gregory's results, and the main theme of paragraph 34 is when – if we focus just on these employment transitions from full-time to part-time work and then ask the question of was there any what we call occupational downgrading, when we look at teachers – when they looked at teachers and nurses they found that that typically didn't happen.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN276

So you stayed in the job?‑‑‑You tended – that's the way I would read it, you tended to stay, yes, stay in the current occupation and skill group. In that group of corporate managers who shifted from full‑time to part‑time work there were - there was a relatively high rate. So they nominate 29 per cent who shifted to a lower - what they call a lower occupational skill group.

PN277

You just commented on that because you thought that stood out?‑‑‑It was just a feature of their summary of the data.

PN278

Their summary. Okay, could I take you to page 23? As I read figure 13 this is reflecting on women generally, not women with children?‑‑‑That's right.

PN279

Right?‑‑‑So the women with children is figure 14. Yes.

PN280

Can I just understand figure 13 first. This data set doesn't tell us whether or not the employee asked for the change, does it?‑‑‑Asked for which change, sorry?

PN281

To be downgraded or upgraded?‑‑‑No.

PN282

No, and it doesn't tell us for instance that the employee consented and chose to do this change?‑‑‑I don't think people can be forced to shift.

PN283

No I don't either, Professor?‑‑‑No.

PN284

So we'll agree on that?‑‑‑Yes.

PN285

Okay, that's fine. We'll move on. We'll move on. Now if you go to figure 14 this is the one about mothers of newborns?‑‑‑That's right.

PN286

And is that the same as new mothers in figure 11? That is, you explain that the new mother had a baby in the last 12 months?‑‑‑Yes.

PN287

So it's the same thing, okay. Now you say that this has to be treated with some care because it's a very small sample group. I think you say there's only 1,008 respondents in 14 years?‑‑‑It's 1,008 transitions. Yes.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN288

So it's perhaps even more statistically fragile because of that?‑‑‑It - well, just to clarify that there's - what we observe is a thousand and eight cases where we're - I'm sorry, we're observing in total a thousand and eight instances where we've got a new child, so say 2001 to 2002 a child is born and we're observing that the woman is moving from full‑time to part‑time and - sorry, and the - and we've got the woman moving from one form of employment to another. So the reason - - -

PN289

And with that there's an upgrade or a downgrade?‑‑‑Yes, and then within that there's an upgrade or a downgrade. So the point that I - sorry, can I just clarify?

PN290

No, go on, please?‑‑‑The reason why that number drops is because so many women move out of paid work. Yes? So the only things that are counted here are instances where the woman is remaining within, you know, if you like, the paid workforce. Yes.

PN291

So the table that's figure 13?‑‑‑Yes.

PN292

The earlier one, is that the 60,000 transitions that we talked about earlier?‑‑‑No, you can see the total number is 39.

PN293

So where do I get the - - -?‑‑‑At the bottom, sorry, so we have 33 people - 33,000 instances, not people, of people making an - a transition from one form of paid work to another. Yes?

PN294

Okay so - - -?‑‑‑And remaining with their current employer. They're what we call or I call the stayers, and we've got 6,778 instances where we're observing a woman who remains within paid work but makes, you know, one of four different types of employment transitions and has changed employer.

PN295

Okay, so can I just understand this. The tables in figure 10 and figure 11 are about 60,000 transitions?‑‑‑That's right.

PN296

The table in figure 13 is about - just roughly speaking it seems to be about 40,000 transitions, and then the table in figure 14 is about a thousand?‑‑‑Yes. Yes.

PN297

Let me move on, with the time, sorry. Can I ask you to turn to page 27?

PN298

JUSTICE ROSS: Just before you do, can I just ask a question about figure 14?‑‑‑Sure.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN299

So to test my understanding of it. So if you look at the left‑hand columns, "Stayed full‑time employed", this is recording the experience of mothers of newborn children in this cohort and it's pointing to the fact that within that group - and you note earlier that it's a relatively small number of transitions - of those who stayed full‑time employed, 12.2 per cent were upgraded in their position and 10 per cent downgraded. Is that how you read the chart?‑‑‑Yes. I'd be careful about using - myself I'd be careful about using the word "in their position". So all we know is that we've - well, for example we've got a woman who we observed was full‑time employed in 2001, she's still full‑time employed in 2002.

PN300

Yes?‑‑‑And for some reason or another we're observing in 12.2 per cent of the cases her - on the Connolly and Gregory ranking - - -

PN301

Yes, has been upgraded?‑‑‑Has moved to a higher - - -

PN302

So it need not be with the same employer?‑‑‑No. No.

PN303

They could have moved jobs to a different position?‑‑‑Yes.

PN304

That's upgraded on the criteria?‑‑‑Exactly.

PN305

I follow?‑‑‑Exactly.

PN306

Yes, sorry, Mr Ward.

PN307

MR WARD: No, no, that's fine.

PN308

Professor, the only other condition in figure 14 is that in that last year they've had a child?‑‑‑Yes.

PN309

Right, okay. Can I take you to page 27? Am I right in saying that this data set is about 125 people?‑‑‑That's right.

PN310

So that's - - -?‑‑‑825 transitions.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN311

Right, so it's a different data set to the ones we've already talked about?‑‑‑It's the same data set so all of the data comes from HILDA for the years that I referenced in the title. The number falls because HILDA in - doesn't - with HILDA we can - not we but the administrators, the interviewers ask the question but the question isn't always answered.

PN312

So can I - - -?‑‑‑So what we're seeing with the drop in the numbers measured here compared to the previous figure that we were discussing is the effect of that incomplete answering of the question relating to casual - - -

PN313

Let me see if I understand what you said. So if I look at figure 14 compared to figure 16 both of them have this category which has moved from full‑time to part‑time work?‑‑‑Yes.

PN314

In figure 14, a thousand and eight transitions, in figure 16, 825?‑‑‑Yes.

PN315

I take it that about 170 people didn't answer the questions relevant to figure 16?‑‑‑That's right.

PN316

Okay, right. No, that's been very, very helpful. Look, would you agree with me - and if you don't know the answer please just say so - an employer can't compel a full‑time employee to become a part‑time employee; do you understand that?‑‑‑I - that would be my understanding.

PN317

Thank you, yes?‑‑‑Yes.

PN318

So if an employee is moving from full‑time to part‑time it's either at their request or with their agreement?‑‑‑If the employee's moving from full‑time to part‑time?

PN319

Yes?‑‑‑That would be my understanding.

PN320

Do you understand the same would apply from moving from a permanent position to a casual position, the employer cannot force that?‑‑‑That would be my understanding.

PN321

So again, if an employee moved from a permanent position to a casual, it's either at their request or with their agreement?‑‑‑Yes. Can I just elaborate - add one thing there - that these movements, for example, figure 15 shows these movements sometimes take place with a change of employer. So it's not - I think the inference of your question was that the change happens within the context of an existing employment relationship?

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN322

That's how I was asking it, yes?‑‑‑But what's measured in these figures is sometimes a change in employer.

PN323

I would assume that if I'd had a child and I'm changing my employer, I would assume that it's for one of two reasons: either what the new employer is offering me is more suitable to me, is better for me; or it might well be that the existing employer can't give me what and I want, and I'm just getting the best I can somewhere else?‑‑‑I think that's reasonable.

PN324

Can I, with some trepidation, just talk a little bit about economic independence and the pay gap?‑‑‑Sure.

PN325

DEPUTY PRESIDENT GOOLEY: You brave man.

PN326

MR WARD: We've been in the case for a long time this year, Professor, so bear with us. I've lost my train of thought now.

PN327

JUSTICE ROSS: You were about to launch into the unknown.

PN328

MR WARD: I am, your Honour. My wife has already cautioned me last night about this. Can I just explore the economic independence issue, and I'll try and do it with some care? One of your very strong themes, as I understand your material, is that because women disproportionately care for children and disproportionately care for I think the aged and people with disabilities, compared to men, that over their life cycle they are less economically independent than men?‑‑‑That's right.

PN329

I'm not going to argue with you over that, Professor. I take it that if I'm in a healthy and enduring partnership with my partner, that's less of a consideration?

PN330

MS BURKE: Your Honour, I object to the question. The question is obscure, both as to relevance and meaning. Mr Ward's concept of a healthy and enduring relationship may be quite different to that of anyone else in the room, and I don't mean that in a pleasant way, simply that - - -

PN331

MR WARD: I'll withdraw the question. I'm not sure what the relevance of it is to the evidence of the case. I'll deal with that later. Can I just deal with the pay gap issue? You understand that these proceedings are concerned with modern awards that set minimum rates of pay?‑‑‑Yes, I am.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN332

You're not suggesting, are you, that a man and a woman working in the same classification and paid the minimum rate that there's any difference in their pay under a modern award?‑‑‑My submission doesn't go to that.

PN333

You do also understand that in this tribunal if a person is agreed with how their work is valued, they can run a work value case and have that reviewed?‑‑‑My submission doesn't go to that. That would be my understanding, but I don't perceive that that's what I've prepared for today.

PN334

If I can just say, your submission on the gender pay gap isn't about modern awards and people paid on modern awards?‑‑‑My submission is on the effects of parenthood on women's labour force participation.

PN335

You make a simple statement in your evidence that there's a pay gap - I think it's about 18 per cent between men and women?‑‑‑Eighteen per cent, that's the difference in the average rate of pay between men and women who are employed full‑time.

PN336

And as I've said, that's not about people paid on minimum award rates?‑‑‑That's across all Australian workers, including those who are on minimum award rates.

PN337

So if I'm award‑dependant, I'm simply paid the award rate?‑‑‑Yes.

PN338

And a man simply paid the award rate, there's no difference in rates of pay either?‑‑‑That would be my understanding.

PN339

Right?‑‑‑Within occupations.

PN340

Yes?‑‑‑But then we've got this very gendered occupational segregation, gender‑based occupational segregation, that significantly contributes to an observed difference in average rates of pay between men and women.

PN341

I take it that that thesis says women do work that's lower paid?‑‑‑That's right.

PN342

Because I've already put to you if somebody wants to have their award rates reviewed for the value of work, you know that they can come to this Commission and have that reviewed?‑‑‑That's my understanding.

PN343

No further questions.

*** SIOBHAN EILEEN AUSTEN XXN MR WARD

PN344

JUSTICE ROSS: Mr Ferguson?

CROSS-EXAMINATION BY MR FERGUSON [10.34 AM]

PN345

MR FERGUSON: Good morning, Professor. My name is Brent Ferguson and I represent the Australian Industry Group, and I have a relatively small number of questions for you this morning?‑‑‑Thank you.

PN346

Can I firstly take you to paragraph 24 of your report very briefly? At paragraph 24 you identify a study by Brunick and Gedale(?) which point to the impact that child care costs and child care quality would have on a woman's work or participation, don't you?‑‑‑Sorry, page - - -?

PN347

Paragraph 24?‑‑‑I was on page 24. Yes.

PN348

That article suggests that parents view child care as an important input to child development, and that parents who might want to work will be unwilling to leave their child in a poor child care environment, doesn't it?‑‑‑Sorry, could you just repeat that?

PN349

Yes.

PN350

JUSTICE ROSS: Are you talking here about the Ulker and Guven report? Is that what - - -?

PN351

MR FERGUSON: No, I'm talking about paragraph 24 firstly.

PN352

JUSTICE ROSS: Oh, 24, I'm sorry.

PN353

MR FERGUSON: Yes, and it's the article by Brunick and Gedale.

PN354

JUSTICE ROSS: Yes. Thank you.

PN355

MR FERGUSON: That article suggests that parents view child care as an important input to child development, and that parents who might want to work will be unwilling to leave their child in a poor child care environment, doesn't it?‑‑‑My recollection of that piece of research, supported by other research, is that low quality child care is sort of an important barrier to the use of child care.

*** SIOBHAN EILEEN AUSTEN XXN MR FERGUSON

PN356

So you'd agree with the proposition that, at least in some cases, a parent's objective assessment of the standard of quality of child care available to them impacts upon their willingness to utilise such child care?‑‑‑That's correct.

PN357

And that their willingness to utilise child care then has an impact on their preparedness to participate in the labour force?‑‑‑I'd agree with that.

PN358

I understand that you have jointly authored a number of articles looking at the employment experiences of mid‑life women, haven't you?‑‑‑That's correct.

PN359

You use that term, "mid‑life women", in your statement. Just for clarity, what are the ages of the women who fall into that category?‑‑‑Women who are aged over 45 and through to 65.

PN360

One of the factors that can have an adverse impact on a mid‑life woman's participation in the labour force is her own ill health, isn't it?‑‑‑That's correct.

PN361

I just want to ask you about an article that you jointly authored with a Rachel Ong, which was published in 2009 and was titled, "The employment transitions of mid‑life women: health and care effects." You're familiar with that article, of course?‑‑‑Yes.

PN362

And that article was partly based on analysis that you undertook of HILDA data, wasn't it?‑‑‑That's correct.

PN363

One of the findings of your analysis of that data was that flexible working hours, that being the ability to vary start times and finish times, did not have a statistically significant influence on the probability that a mid‑life woman would remain in employment, wasn't it?

PN364

JUSTICE ROSS: Just a moment.

PN365

MS BURKE: I object to the question. If Mr Ferguson is going to take the witness to an article in fairness he should provide her with a copy, particularly if she's being asked to comment on what she's reading.

PN366

JUSTICE ROSS: Sure. I mean, bearing in mind that the witness was the co‑author of the article ‑ ‑ ‑

*** SIOBHAN EILEEN AUSTEN XXN MR FERGUSON

PN367

MR FERGUSON: That's ‑ ‑ ‑

PN368

MS BURKE: In 2009, your Honour.

PN369

JUSTICE ROSS: Sure. Do you have a copy of the article? Yes, okay?‑‑‑Thank you.

PN370

Do you want a chance to have a look at it?‑‑‑If I could.

PN371

Sure.

PN372

MR FERGUSON: So you're familiar with that article, are you?‑‑‑Yes. As was noted, it was published in 2009 so we did the research most likely around 2017, about a decade ago.

PN373

Well, let's see if you can assist?‑‑‑Yes.

PN374

Would you agree that one of the findings of your analysis of that data was that flexible working hours, that is, the ability to vary start times and finish times, did not have a statistically significant influence on the probability that a midlife woman would remain in employment?‑‑‑

PN375

JUSTICE ROSS: Do you have a part of the article you want to take the witness to? That might be the quicker way home.

PN376

MR FERGUSON: I'll take her to ‑ I was just seeing if she was aware. Page 220.

PN377

JUSTICE ROSS: Whereabouts on that page?

PN378

MR FERGUSON: Yes, I'm just taking her to it, your Honour. And third paragraph, the opening sentence.

PN379

JUSTICE ROSS: Starting?

PN380

MR FERGUSON: Starting with, "Flexible working hours" and that's words I used or thereabouts?‑‑‑Yes, no, so I'm good now, thank you.

*** SIOBHAN EILEEN AUSTEN XXN MR FERGUSON

PN381

Do you agree that that was one of the findings?‑‑‑It was one of the findings.

PN382

Thank you?‑‑‑Can I just explain the finding to you? Yes, so it's saying that there wasn't a statistic - we didn't identify a statistically significant effect which means that we can't attribute the observation that women who were ‑ these midlife women who were working in an environment where they had flexible start or finish times, and we observed that they had a higher probability of remaining in paid work. But because of the sample size, which is quite small, we couldn't be confident that that observation was not due to chance factors. So it's the notion of statistical significance that needs to be drawn out. So if we look at table 3, and down to the - it's about 80 per cent down the list of items which are factors that we measure in the analysis.

PN383

Sorry, which page are you on?‑‑‑This is page 214. And one of the factors that we measure was flexible start or finish time. And then go across to the number there. It's 0.005. That's telling us that it's a positive number and so very broadly it's suggesting that we're identifying that the women who had access to flexible start or finish times had a higher measured probability of remaining in paid work over the two years, each of the two‑year periods that we measured. But there's no stars attached to that number which is just saying that we can't be sure that that higher incidence of remaining in paid work is statistically significant, meaning we can't be sure that it's not due to chance factors, variations.

PN384

Yes, I'm just struggling to reconcile that. I mean, in that article you also found that finding, but it's not statistically significant, was consistent with certain academic findings that the personal circumstances of caregivers are more important determinants of continuing employment and their work arrangements. Would you agree with ‑ ‑ ‑?‑‑‑Factors such as health are a very large determinant, yes.

PN385

Yes, and they're more important determinants than, say, flexible hours?‑‑‑Becoming ill is a very large determinant, yes.

PN386

JUSTICE ROSS: Can I just ask, flexible hours, when you refer to it in this article, are you limiting that to it's the ability to vary start and finish times? Is that what the article is talking about?‑‑‑Yes, to the best of my recollection that's ‑ ‑ ‑

PN387

All right.

PN388

MR FERGUSON: I'll just ask you about a more recent article that I assume you're familiar with?‑‑‑Thank you.

*** SIOBHAN EILEEN AUSTEN XXN MR FERGUSON

PN389

That's another article that you've published jointly with Rachel Ong that was published in the Journal of Industrial Relations in 2013. I think that was titled, "The effects of ill health and informal care roles in the employment retention of midlife women: Does the workplace matter?" And I'll just see if you're familiar with that. Would you agree ‑ well, that article again was based on a study using HILDA data, wasn't it?‑‑‑That's right.

PN390

Would you agree that one of the conclusions you reached in that study is that there is little evidence of a general link between employment retention and both day work or flexible start and finish times?‑‑‑Sorry, it would help if I had access to the article.

PN391

You don't recall that that was one of the findings?‑‑‑Broadly I do, yes ‑ ‑ ‑

PN392

You do, okay?‑‑‑ ‑ ‑ ‑ but I've published somewhere in the order of 100 articles over the last couple of decades so ‑ we'd like to live with this research but we also have to move on.

PN393

That's okay. Yes, page 676 and the second paragraph, the complexity of the relationships, and your finding is the second sentence. The ‑ ‑ ‑?‑‑‑So is this the one?

PN394

We find strong evidence of differences in employment retention between midlife women employed ‑ ‑ ‑

PN395

No, 676, page 676?‑‑‑Yes, I'm on ‑ ‑ ‑

PN396

And, sorry, the fourth paragraph, last paragraph, starting with the sentence, "The complexity of the relationships". In the second sentence there?‑‑‑Yes, yes.

PN397

We find there is little evidence of a general link between employment retention and both day work and flexible start and finish times?‑‑‑Yes, and can I just go ‑ ‑ ‑

PN398

Well, is that right?‑‑‑That's a correct statement.

*** SIOBHAN EILEEN AUSTEN XXN MR FERGUSON

PN399

And what do you mean by "flexible start and finish times"?‑‑‑It's measured in HILDA and so the measure is derived from a question put to the respondent, the survey respondent, along the lines of, you know, "Do you have a capacity to alter your start and finish times?" Yes, and so I just would ‑ if you wouldn't mind, can I go back to the table of results?

PN400

The question is ‑ ‑ ‑?‑‑‑And that's on - do you mind?

PN401

Well, the question is, was that a finding? Do you agree with that finding?‑‑‑Yes, and if you'd like I can elaborate on the result by looking at the table.

PN402

JUSTICE ROSS: That's all right. Mr Ferguson will ask you questions about it.

PN403

MR FERGUSON: Yes, I think that's - - -

PN404

JUSTICE ROSS: And Ms Burke, in re‑examining you if she wishes she can take you to further points?‑‑‑Okay, thank you.

PN405

MR FERGUSON: Thank you, your Honour. So would you agree with the proposition that there are in reality a complex range of considerations or factors that impact on the extent to which a woman participates in the workforce?‑‑‑Yes, I would agree.

PN406

I'll take you to paragraph 68 of your report?‑‑‑Of my report?

PN407

Your report, your first report?‑‑‑Okay.

PN408

You there refer to a 2015 study by yourself and others concerning a survey of aged care workers. That study looked at the effect of informal care roles on women in high and low income households, didn't it?‑‑‑That's right.

PN409

The results showed that women from higher income households were more likely to leave their jobs when their informal care roles increased while the opposite relationship existed for women in lower income households?‑‑‑That's correct.

PN410

This suggests, doesn't it, that there's a connection between the financial resources of some women and they're willing to undertake paid work if they also want take a care role. It doesn't it?‑‑‑That's correct.

*** SIOBHAN EILEEN AUSTEN XXN MR FERGUSON

PN411

Yes. And as a result it might imply that if the financial necessity for women to be in paid employment reduces, there's a large proportion of women who will choose to prioritise their performance in formal caring roles over working in paid employment?‑‑‑Sorry, it might be my hearing but - - -

PN412

No, no, no?‑‑‑Maybe just say that - - -

PN413

I'll go slowly?‑‑‑ - - - a bit more slowly, yes.

PN414

Yes. These results imply that as the financial necessity for a women to be in paid employment reduces, there's a large proportion of women who will choose to prioritise their performance in informal care roles over working in paid employment?‑‑‑That is not the inference that I draw from the results.

PN415

No. I understand that is not the inference - - -?‑‑‑Yes.

PN416

- - - you draw, but that inference can be drawn from those results, can't it? You draw another one about the cost of care roles?‑‑‑I'm not quite sure how to answer that question, sorry, I mean - - -

PN417

Well, would you agree that that inference could be drawn from that data? You draw other inferences?‑‑‑Well, my difficulty in answering that question is that my sense is that lots of different inferences can be drawn from any data, whether or not they're correct or not is - - -

PN418

Well, do you think that inference could reasonably be drawn from the data?‑‑‑No.

PN419

Do you agree with the proposition that some women may after the birth of their child voluntarily elect to take on a less demanding and less stressful role than that which they held prior to such an event?‑‑‑Yes.

PN420

And then that may mean that some women willingly elect to take on a role in a lower skill group or occupation without seeking to obtain work in their current role or occupation on a part-time basis?‑‑‑Yes.

PN421

Thank you. No further questions.

*** SIOBHAN EILEEN AUSTEN XXN MR FERGUSON

PN422

JUSTICE ROSS: Is there any further cross examination for the witness from anyone interstate? No? Can I just check with those parties in Canberra, and firstly I'm advised that there was no indication from either the Pharmacy Guild or the NFF that they wish to cross examine this witness. Is that correct? Yes, all right. We'll just stand down for five minutes. There is also an issue with the IT link in the hearing room, and I'm just wondering if we've lost the video connection. What about Brisbane, can we hear – okay, well, I can see them but – anyway. All right, we'll stand down for five minutes and try and sort it out.

<THE WITNESS WITHDREW [10.51 AM]

SHORT ADJOURNMENT [10.51 AM]

RESUMED [11.41 AM]

<SIOBHAN EILEEN AUSTEN, RECALLED ON FORMER AFFIRMATION [11.41 AM]

RE-EXAMINATION BY MS BURKE [11.41 AM]

PN423

JUSTICE ROSS: Let's deal with the re-examination, but as I understand it the employer organisations who are connected by the video link the power has collapsed, they're content for us to proceed on the basis that they'll get access to the transcript; is that right?

PN424

MR WARD: Yes, your Honour. Apparently they can see each other but they can't see us.

PN425

JUSTICE ROSS: I'm not sure whether that's a – well, anyway. Yes, Ms Burke?

PN426

MS BURKE: Thank you. Professor Austen, do you still have in the witness box with you a copy of this article, The Journey of Industrial Relations article?‑‑‑Yes, I do.

PN427

Yes. Can you turn to page 767, please? 676, thank you. Sorry?‑‑‑Thank you.

PN428

You were asked some questions by Mr Ferguson about the evidence looking here at the fourth paragraph and you started to explain your answer but didn't continue. Was there anything that you would like to add to your answer to complete it?‑‑‑My intention was to go back to the relevant tables that the comments related to, and just to highlight the meaning of the findings. So we have table 3 on page 672 and I think table 4 on 674 is particularly important. So table 4 is looking – reports the results of the statistical analysis of the effects of ill health and increased care responsibility measured by an increase in care hours on the probability that a mid-life woman will remain in paid work over subsequent years. The issue of flexibility is covered in the last two rows of data.

*** SIOBHAN EILEEN AUSTEN RXN MS BURKE

PN429

That's ‑ ‑ ‑?‑‑‑So we measure flexibility by the responses to question in the HILDA survey on whether or not the woman is able to alter her start and finish times, if she perceives that ability. And when we look at – there's two numbers on the, sort of, right at the bottom and to the right-hand side of that table, we've got negative .048 and negative .071.

PN430

Yes?‑‑‑And those results tell us that if a woman increased her care hours by more than five hours across subsequent waves she would be – and if she was able to access flexible start and finish times the probability that she would remain in paid work would be almost five per cent lower than would be the case if she didn't have those increases in care hours. If she was however unable to alter her start and finish times her probability of remaining in paid work would be 7.1 per cent lower.

PN431

I see?‑‑‑So that actually is some evidence suggesting that the availability of flexible start and finish times reduces the impact of higher care responsibilities of women's chances of remaining in paid work.

PN432

Thank you. I don't have any other questions for this witness. If the professor could be excused unless ‑ ‑ ‑

PN433

JUSTICE ROSS: Can I just a question and if something arises from it then any party can – just going to the same issue, and this is on page 676?‑‑‑Yes.

PN434

It's the sentence where you say:

PN435

We also find little evidence of a general link between employment retention in both day work and flexible start and finish times.

PN436

This idea of flexible start and finish times, is that simply for example if you might normally work from 9 to 5, but you've got a capacity to start earlier at 8 and finish at 4. Is that what you're referring to there as opposed to are you talking about a reduction in the hours you actually work, or are you talking about some adjustment within the start and finish?‑‑‑My understanding is that it's more the former.

PN437

All right?‑‑‑So within your current work arrangement are you able to, if needs be, come in early or come in late.

PN438

Yes?‑‑‑So access to something like flexi-time.

*** SIOBHAN EILEEN AUSTEN RXN MS BURKE

PN439

Yes?‑‑‑In a public sector context I think would be covered by that.

PN440

Anything arising? No? Thank you very much for your evidence, Professor. You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.47 AM]

PN441

JUSTICE ROSS: Your next witness?

PN442

MS BURKE: The next witness is Dr Ian Watson and I call Dr Watson. With leave there are a small number of typographical corrections to make to Dr Watson's report and I'll lead those from him.

PN443

JUSTICE ROSS: Sure.

PN444

THE ASSOCIATE: Please state your name and address.

PN445

DR WATSON: Ian Jeffrey Watson (address supplied).

<IAN GEOFFREY WATSON, AFFIRMED [11.47 AM]

EXAMINATION-IN-CHIEF BY MS BURKE [11.47 AM]

PN446

MS BURKE: Dr Watson, could you please repeat your full name for the transcript?‑‑‑Ian Geoffrey Watson.

PN447

And your occupation?‑‑‑I'm a freelance researcher.

PN448

And your address?‑‑‑(Address supplied)

PN449

Have you prepared a report for the purposes of this proceeding?‑‑‑I have.

PN450

Could the witness please be shown the folder? In that folder there should be a tab with your name on it. Can I ask you to turn to that, please?‑‑‑Yes.

PN451

Do you have there your statement that is eight paragraphs and dated 4 May 2017?‑‑‑Correct.

*** IAN GEOFFREY WATSON XN MS BURKE

PN452

Do you have behind that statement three annexures? The first of those is your CV?‑‑‑Yes.

PN453

The second is a letter from the ACTU, and I should say, they should be divided by pink paper, those documents?‑‑‑Yes, yes.

PN454

The third document is a report prepared by you titled, "Family friendly working arrangements ‑ labour market and workplace trends"?‑‑‑Yes.

PN455

I understand there are some corrections that you wish to make to this report?‑‑‑Yes, there are three typos.

PN456

On the first page is it the case that where your name is written, "Freelance researcher and visiting scholar at Macquarie University", is it the case that that visiting scholar position has now ended?‑‑‑That's correct.

PN457

Can I ask you please to turn to paragraph 3 under the preface?‑‑‑Yes.

PN458

In the footnote, the last sentence, "acronym" is misspelt?‑--Correct.

PN459

If that could be corrected? Can I ask you please to turn to paragraph 101?‑‑‑Yes?

PN460

A reference there to "sole athers". It should be "fathers"?‑‑‑Fathers, correct.

PN461

Finally to paragraph 111?‑‑‑Yes.

PN462

In the first sentence that should read:

PN463

The ABS has regularly conducted a national child care survey which contains questions about working arrangements.

PN464

?‑‑‑Correct.

PN465

With those corrections does that report accurately set out the opinions formed by you based on your expertise?‑‑‑It does.

*** IAN GEOFFREY WATSON XN MS BURKE

PN466

Thank you. I tender the statement of the annexures.

PN467

JUSTICE ROSS: I'll mark that exhibit ACTU3.

EXHIBIT #ACTU3 STATEMENT OF ANNEXURES TO STATEMENT OF DR IAN WATSON

PN468

MS BURKE: Dr Watson, have you also prepared a supplementary report?‑‑‑Could I perhaps have some ‑ ‑ ‑

PN469

Yes, certainly. If the witness could please be given a glass for some water? I'm sorry, under a green divider in the folder there should be your supplementary statement?‑‑‑Yes, I have that now.

PN470

Thank you. Is that a statement of 18 paragraphs prepared by you and dated 27 November 2017?‑‑‑That's correct.

PN471

It attaches a letter from the ACTU dated 20 November 2017?‑‑‑Yes.

PN472

Does this statement accurately represent the opinions formed by you on the basis of your expertise?‑‑‑It does.

PN473

Thank you. I tender the supplementary statement.

PN474

JUSTICE ROSS: I'll mark that exhibit ACTU4.

EXHIBIT #ACTU4 STATEMENT OF DR IAN WATSON DATED 27/11/2017 AND ATTACHED LETTER FROM ACTU DATED 20/11/2017

PN475

MS BURKE: Thank you, Dr Watson. Please just wait there and there will be some questions.

CROSS-EXAMINATION BY MR WARD [11.52 AM]

PN476

MR WARD: And Dr Watson, my name is Nigel Ward. I appear in these proceedings for the Australian Chamber of Commerce and Industry and I think you know who they are?‑‑‑I do.

*** IAN GEOFFREY WATSON XXN MR WARD

PN477

You do. I think you were in penalty rates, weren't you?‑‑‑Yes.

PN478

Yes, yes, I remember the face. I don't have a lot for you but do you have a copy of your first statement in front of you?‑‑‑I do, the report?

PN479

Yes?‑‑‑Yes.

PN480

Can I ask you to start on page 4?‑‑‑Yes.

PN481

I just want to understand that I've got this right. This is a table that explains by age category the proportion of women who are having children?‑‑‑No, not the proportion. It's a rate per thousand.

PN482

Rate per thousand, so let me see if I'm right then. Per thousand, more women are having babies between the age of 30 and 34 than is the case 25 to 29?‑‑‑Yes, that would be the case across all years.

PN483

I'm just looking at 2015 for the moment?‑‑‑Yes.

PN484

So I'll try and say this properly?‑‑‑Okay.

PN485

The years where babies are most had in your life cycle ‑ ‑ ‑?‑‑‑Yes, yes.

PN486

‑ ‑ ‑ are firstly 30 to 34?‑‑‑Correct.

PN487

Followed by 25 to 29?‑‑‑Yes.

PN488

Then we jump to an older category which is 35 to 39?‑‑‑Yes.

PN489

They're what I might call the prime ages?‑‑‑That's correct.

PN490

I'm trying to avoid getting into a debate about demand and supply, but I think later on in your report you talk about the increase in non‑full‑time work when people are having children?‑‑‑Could you direct me to the particular part you're ‑ ‑ ‑

*** IAN GEOFFREY WATSON XXN MR WARD

PN491

I just want to go to something else, if I can?‑‑‑Okay.

PN492

I'm going to go to it in a minute but as a general proposition you accept that when people have children there's an increase in part‑time work?‑‑‑I think you'd need to be more specific.

PN493

No, well, let me be ‑ ‑ ‑?‑‑‑As a rule for some groups of women that would be correct.

PN494

Well, let me be specific. Can I ask you to go to page 24?‑‑‑Page, sorry?

PN495

Twenty‑four?‑‑‑Twenty‑four, yes.

PN496

As I read this, and you say in your narrative that the scales are different so you have to be careful comparing categories?‑‑‑Correct.

PN497

But as I read this, this is women in employment categories, permanent or casual. They are differentiated in the age groups that were in that previous table?‑‑‑Yes.

PN498

It's a timeline series which seems to go from somewhere in 1993 to 2010. Or does it go through to today, 2013?‑‑‑I'll just see if that is - - -

PN499

It says in the title "1992 to 2013"?‑‑‑2013, yes, correct. It's the latest data available from the ABS at the time I wrote the report.

PN500

So one of those unfortunate datasets that doesn't get much airtime?‑‑‑Yes.

PN501

Can I just do this? Can I take you first of all to the third table along? That's the 25 to 29 category?‑‑‑Yes.

PN502

As I read that, that tells me that there's been a reasonably static demand for women for part‑time casual and part‑time permanent jobs, with a little bit of an increase in recent times for that age category?‑‑‑Can you repeat your question?

PN503

No, that's fine. If you have a look at ‑ well, let me do it slowly. First of all, this is the 25 to 29 year group?‑‑‑Yes, yes.

*** IAN GEOFFREY WATSON XXN MR WARD

PN504

I think when you compare that to table 1.2 on page 4 this is the second most fertile age period?‑‑‑Yes.

PN505

Yes, okay?‑‑‑Okay.

PN506

As I see this, the red line tells us the changes in trend for full‑time permanent employment over that time period?‑‑‑Yes.

PN507

For those women, and that tells us that the trend has gone up for full-time employment?‑‑‑Yes.

PN508

The very bottom line is full-time casual. Having spent a year in the casual and part-time case I understand what that means?‑‑‑Yes.

PN509

That's fairly static over that time scale, it hasn't gone up and down very much. Is that right?‑‑‑Yes, these are levels rather than change. It's very hard to discern relative change within each group without an indexed table. I use a lot of index tables. These are more relativities between the groups that tells us which groups have most employment. The changes from year to year can be difficult to discern for some of those lower groups in that graph. I think your general point about the growth in full-time employment amongst permanents is correct for that particular panel.

PN510

So I think what you're telling me is that the yellow line at the bottom you would agree with me that there has not been any dramatic upswing in that line over that time period compared to the red line?‑‑‑I think that's a reasonable conclusion.

PN511

It's not a trick question, Dr Watson, I am just - - -?‑‑‑No, it's just that levels and rates of change often look quite differently when you index them.

*** IAN GEOFFREY WATSON XXN MR WARD

PN512

But isn't what's in the box that we are talking about based on the same index?‑‑‑No, these are – these are thousands, these are absolute numbers. If you look at that tiny blip in the yellow line above the letter "s" in the word "years: you will see a steep increase, but it's very hard to discern what that really means and whether it's comparable to perhaps the green line above. So one needs to be careful talking about change when one is looking at a graph of levels. It's for that reason that quite often in the report I'll give two panels side by side. One will have levels which is really about the relative importance for a group in numbers, in absolute terms, and beside it I will have an indexed panel which bases them both at 100 in a certain starting year and shows rates of growth afterwards. The (indistinct) needs to have that to see if rates of growth are similar. So while I think your general point is reasonable I wouldn't be – I would like to see it indexed. I don't know that this table has been indexed.

PN513

I don't think it is, that's why I have used it. Yes?‑‑‑So it's not really the table which allows you to mount a case strongly about rates of change, it's rather about the overall relativities between the groups.

PN514

Can we go to the next one which is 30 to 34 years, which is the prime fertility page?‑‑‑Yes.

PN515

Can I ask if I can take this from the table; it would appear when I read this that over the time period comparing part-time permanent to part-time casual I can draw the conclusion that there is an increase in part-time permanent and a decrease in part-time casual employment for that age group?‑‑‑Yes.

PN516

I can draw that conclusion?‑‑‑Yes, I think you can.

PN517

If I take you to the next panel which is 35 to 39, which I think is the third fertility group. Can I put to you again that that same conclusion can be drawn that there is over that time scale very substantial increase in permanent part-time versus casual part-time?‑‑‑Yes.

PN518

Yes, thank you. Can I ask you to go to page 42. Can I start by just trying to understand what's in front of me?‑‑‑Yes.

PN519

As I have read the key down below "Couple/families", these are man and wife, two partners, it could be a heterosexual couple, it could be a homosexual relationship, but who are in a couple relationship?‑‑‑Yes.

PN520

And the phrase "dependent children" is there a particular age scope for dependent children?‑‑‑I don't see it noted here, but as a general rule dependent children is nought to 14.

PN521

Yes?‑‑‑So I would assume that that is the case here.

PN522

Now, on the left-hand side is the husband partner category, and then over the top if the wife partner category; that's right?‑‑‑Yes.

*** IAN GEOFFREY WATSON XXN MR WARD

PN523

Bear with me, I am not a statistician, so just bear with me. The top bits were in it were a couple that don't have children, dependent children; that is the first category, "Week, age, couple, fam with no dependent children"?‑‑‑Yes, that's correct.

PN524

Then the same data but with dependent children?‑‑‑Yes.

PN525

I take it that this report doesn't tell me whether or not it's one, two or three children, it's just we have at least one dependent child?‑‑‑I would say so. I'm just checking to see dependent children. Yes, it means one or more dependent children.

PN526

Am I right in saying that I can use this table to draw some conclusions about the distinction in that working category between couples with dependent children and couples without dependent children?‑‑‑Yes.

PN527

Good. I am going to try a non-controversial one to begin with to make sure I have got it right. The way I read this, tell me if I am wrong, if I go to the very first figure on the top left-hand side, 36.6?‑‑‑Yes.

PN528

So I read that to say that 36.6 per cent of women who work full-time their husbands work full-time in couples without dependent children?‑‑‑No, that's not correct.

PN529

Help me out?‑‑‑Okay. What you've just given me is what we call a column percentage. These are actually cell percentages. You will see that the 100 aligns with the intersection between total and total. To take the meaning you just had you would have to have the total in the first column to say 100. That would be a distribution within one group. The way to make sense of this is to say that the combination of an employed full-time wife and an employed full-time husband is 36.6 per cent of that population. So one reads down the diagonal to see what the combinations are of the groups who share the same characteristic, and one reads off the diagonal to see what the mixtures are, how much they constitute different groups.

PN530

Luckily the presiding members were economists in a previous, but I am not. You have completely lost me, but I need to get to the bottom of this, so just bear with me. Let me start a different way. You have got categories there which are obviously employed full-time, employed part-time?‑‑‑Yes.

*** IAN GEOFFREY WATSON XXN MR WARD

PN531

You have used the ABS definition for full-time 35 hours or more?‑‑‑I would assume so. I'm just seeing if my notes make a comment on it, but as a general rule I make HILDA and the ABS line up.

PN532

You do, yes, and therefore part-time is less than 35 hours a week?‑‑‑Yes.

PN533

You could be permanent part-time or part-time casual?‑‑‑Yes, but in this particular table I don't think we're dealing with employment status.

PN534

No, we are not, it's just grouping together?‑‑‑Yes.

PN535

Okay, that's fine. If I understand it in the ABS if I am unemployed that means, (1) I don't have a job, I'm looking for a job and I'm ready to start?‑‑‑Correct.

PN536

Let me get to these two categories called "Nilth", which I didn't know about until I read your statement. Can I go to the second one, it's just nilth rather than nilth marginal. As I understand nilth it means effectively that I am currently not looking for a job and I'm not ready to start. I'm out of the workforce?‑‑‑Correct.

PN537

And if I'm nilth marginal I'm out of the workforce, I'm not actively looking for a job at the moment, but I would prefer to be, but something is stopping me?‑‑‑Yes. It's a little bit more than that, it can mean that you would be ready to start within a certain time period. The activity definition depends on being able to start within a very short period. You might be able to start, but would need a little bit longer to prepare yourself to start.

PN538

Can I just use an example to make sure I understand that. If I was a woman and I'd just had a child and I have got every expectation and desire to get back to work but I haven't fixed my child care (indistinct) I would be a nilth marginal, not a nilth?‑‑‑Probably. If you had a strong desire to find work, yes.

PN539

I think we settled on that, that's fine. Can I ask this then of you; if you look at the category at the top in the top group, that's the no dependent children, under nilth the column, if I then go all the way down to the bottom it says total on the left-hand side 14.2?‑‑‑Yes.

PN540

Is that telling me that of the sample group 14.2 per cent of the women in couple relationships without children are nilths?‑‑‑Let me just see. It's the marginal distribution along the total line. So it's telling you that – yes, it would tell you that 14 per cent, 14.2 per cent of women are in that category.

*** IAN GEOFFREY WATSON XXN MR WARD

PN541

And therefore if I wanted to draw a distinction between that category and those with dependent children I go all the way to the bottom and I see that 21 per cent of women in coupled families with dependent children are nilths?‑‑‑Yes, that's correct.

PN542

So it would appear that, and I am not suggesting anything about causation here, but what it tells me is that there is a change in the number of nilths because dependent children all of a sudden have come onto the scene of about 6.8 per cent. I take 14.2 per cent away from 21 per cent. So the introduction of dependent children has made that category go up by 6.8 per cent?‑‑‑You're a little loose with your language I'm afraid. We're not talking numbers, we're talking proportions, so we wouldn't know what it means for numbers, and your change is a change in percentage points rather than percentages. I'm sorry to be pedantic, but your general overall direction is correct, what you're trying to say.

PN543

Doctor, I am going to take that my overall direction is correct. I think I should just retreat immediately having heard that. Can I just understand this then, and we will stick with the overall general direction is correct; I take it that if I am comparing couples with no dependent children who are nilth marginal to couples with dependent children nilth marginal, I compare the five in the top group to the nine in the bottom - - -?‑‑‑Yes.

PN544

- - - and it appears that the number of nilth marginal has gone up?‑‑‑Well, it's not so much gone up. Gone up means overtime. We're comparing two sub-groups, so the comparison is one has a higher proportion in that category than the other.

PN545

Sorry, I apologise - - -?‑‑‑I'm sorry to be - - -

PN546

No, you're not, and I apologise. It's because I am not in your trade, I apologise. So when we look at the top sub-group to the bottom sub-group - - -?‑‑‑Yes.

PN547

- - - we find in the top sub-group population 5 per cent marginal nilths?‑‑‑Yes.

PN548

And in the bottom sub-group population 9 per cent marginal nilths?‑‑‑Yes.

PN549

That's excellent, that's what I wanted to understand. I can draw similar conclusions from the proportionate populations in the two groups again by looking along that bottom total and comparing the totals in one population group to the totals in the other?‑‑‑You can do that.

*** IAN GEOFFREY WATSON XXN MR WARD

PN550

Thank you very much. Can I ask you to turn to page 47. This seems to be sort of a different perspective on what we have just been talking about in part. It's talking about – it's now broken down the age of children into sub-categories and the status group here is employed female partners?‑‑‑That's correct. We were looking before at combinations within households.

PN551

Yes?‑‑‑We're ignoring the household now and we're looking at an employed female parent.

PN552

So this female parent could be in a couple relationship we previously talked about, or it could be a single parent?‑‑‑Yes, that's broken down in fact in the table.

PN553

If you can trust my maths for a moment - - -?‑‑‑Yes.

PN554

If my friend jumps up and screams you can't trust his maths we will deal with it. If you go down to the category that talks percentages - - -?‑‑‑Yes.

PN555

- - - it's got wives partners. Where does the wives partners concept come in given that we were talking about female parents who may or may not be in a relationship?‑‑‑Well, that's the category who are in a couple relationship.

PN556

The other ones to single mothers below?‑‑‑Yes, as distinct to the single parents below.

PN557

I am with you. Yes?‑‑‑It's awkward terminology because one does need to take account of de factos, hence the use of wives partners, it simply means - - -

PN558

I understand. That's fine?‑‑‑A kind of neutral, attempt to be neutral with terminology.

PN559

When you have prepared this table, and I am just going to look at the first one which is employed full-time, when you prepared this table you looked at the percentages for three categories but not the 15 to 24?‑‑‑Correct.

*** IAN GEOFFREY WATSON XXN MR WARD

PN560

Is there any reason why you did that?‑‑‑Yes. The ABS provides the 15 to 24s and I mean for the sake of completeness I included them at the top, but for the purposes of women's labour force participation after 14 it's far less an important issue. The most important issues, and that would have been the case with the earlier HILDA stuff, is this critical zero to 14, and the breakdown within that is an important one because you will see the figures change as you move across that, and so I wanted to be able to show percentages for that, what are called dependent children. Once they become 15 to 24, despite perhaps the observation earlier, they really aren't dependent as we generally understand it, and so I've taken the total which is the zero to 14 above, so that becomes the denominator, those hundreds line up with that, and so you can read that table by just ignoring the last two columns at the top, and it's a complete self-contained table. Those extra two columns were just put there for the sake of completeness if there was any interest in them.

PN561

I have actually worked out the percentages with the fourth column as well, because I was actually interested in the trend?‑‑‑Yes, well they should line up.

PN562

They did line up. Percentages change of course, but they did line up. So if I actually work out the percentages of the four groups, that is I work out for instance what 227.9 as a percentage of 788.9 if I work that out, so instead of 38.5 I get 28.9 per cent?‑‑‑Yes, but why would you do that?

PN563

I will explain why I was doing it because I actually want to ask a question?‑‑‑Okay, sorry.

PN564

I was doing it because I actually wanted to understand the trend across all four groups?‑‑‑Sorry, you wanted to?

PN565

Understand the trend across all four groups. Was the percentage going up or going down across the four groups, not just the three, and I was very comforted to see that what I expected to see actually happened. Can I put that to you now?‑‑‑Yes.

PN566

As I understand it what this tells us is that, and I am just going to stick with wives partners for the minute, but I think it parallels with some of the other data. Employment part-time is highest when the child is zero to 4?‑‑‑Correct.

PN567

And then as the child gets older there's a trend down in the amount of part-time employment?‑‑‑Correct.

PN568

Conversely with one thing, which I want to come to, to understand, there's a sharp drop off it appears when you move from zero to 4 for full-time to 5 to 9 – I am going to come back, because that's the bit I don't get - - -?‑‑‑We're talking wives and partners at this point, aren't we?

*** IAN GEOFFREY WATSON XXN MR WARD

PN569

Yes, we are?‑‑‑Correct.

PN570

It's different the other way around, but - - -?‑‑‑Well, it's different for single parents, so I'm - - -

PN571

No, actually I just want to stick to wives partners. So putting that drop aside, which I need to understand, what then happens is that there's a progressive increase in full-time work as the child gets older?‑‑‑Yes, it's U-shaped.

PN572

Yes, exactly. Can you help me out with the first proposition though which is the zero to 4 38.5 per cent, does that tell me that a large number of women are staying in full-time work when the child is zero to 4, and they're dropping out of full-time work when the child turns 5. I found that counterintuitive?‑‑‑Sorry, I'm just looking at the counts as well, because one needs to keep both in mind.

PN573

No, that's all right?‑‑‑So you're concerned about why the numbers fall in the 5 to 9 age group?

PN574

I am trying to understand, Doctor, this as proposition, because in my head I am comparing it to other evidence that the ACTU has put on. Your evidence here in table 3.7 says 38.5 per cent of people are in full-time work when their child is zero to 4, and it appears then that when the child moves to being 5 to 9 years of age a reasonable proportion of those people at that stage drop out of full-time employment, and I'm trying to understand why it is they drop out when the child turns 5, 6 or 7?‑‑‑I'm not sure you can draw those conclusions. We're not looking at transitions of the same individuals, we're essentially looking at a category of persons, women in couple relationships employed full-time, and what their distribution across their different ages of dependent children are for different categories of dependent children. There will be a number of things going on in that data.

PN575

The way to answer the question you're interested in would be to look at women who have a child zero to 4. When that child becomes 5 does that make a difference to the labour force status and then one can multiply that. You are also having to take account of multiple children. So there's a possibility that the nought to 4 is the first born; the 5 to 9 includes one who is still nought to 4 and a new one who is 5 to 9. The breakdown that would be necessary for you to draw the kind of conclusions about transitions would have to take account of a number of other factors. I think the most you would want to draw from this table is where amongst certain age groups for children most of the part-time work is happening, where most of the full-time work is happening. That's the extent to which those figures might be useful as concentrations of categories rather than as what's happening as people, the same individuals move.

*** IAN GEOFFREY WATSON XXN MR WARD

PN576

MR WARD: I will treat the data with the care you have suggested. Can I then just conclude with this. I take it if we take your approach you have just put to me about how I use this data that the highest proportion of full-time employment for women it says is when the child is zero to 4, and the highest part-time employment is also when the child is zero to 4?‑‑‑Can you just repeat that again, I'm not sure if your category matches the one here.

PN577

I am looking at percentages wives partners employed full-time?‑‑‑Yes.

PN578

I move over and it says 38.5 per cent, zero/4. That 38.5 per cent is a higher percentage as I read it to all the other categories. So I assume that in percentage terms there are more full-time employed women with children zero to 4 than there are the other categories?‑‑‑Yes.

PN579

And I do the same for part-time because the part-time figure zero to 4 is 46.8?‑‑‑Yes.

PN580

And that's a higher figure than the other categories?‑‑‑Yes.

PN581

After that I should be sensitive about what I draw from it?‑‑‑No, no, I think you could probably draw other conclusions, but the one which – any that rely on transitions of individuals you'd need to be cautious.

PN582

Careful about. All right?‑‑‑Because it's concentrations in categories and their relative sizes to each other, and it's a snapshot. It's not over time, it's a single snapshot in one year.

PN583

At one point in time?‑‑‑Yes.

PN584

Can I ask you to go to page 52, and just bear with me, on page 52 you start a discussion which is driven I think off to table 3.8 about different forms of flexibility in employment?‑‑‑Yes.

PN585

You then go and make some conclusions I think starting at the bottom of page 52 about how the trend has gone with the take up of those flexibilities in 1996 to 2014?‑‑‑Yes, I discuss that trend.

*** IAN GEOFFREY WATSON XXN MR WARD

PN586

Then if you turn the page we then have some nice sort of coloured pictures, and as I read these in figure 3.5 you have concentrated there - for male and female you've concentrated there in percentage terms looking at flexible working hours which are described from the previous page, working at home and part-time work?‑‑‑Yes.

PN587

You then go on and say, below this table you say this:

PN588

The type of arrangements in place have also changed over time and these reflect a pattern of stalled progress.

PN589

?‑‑‑Yes.

PN590

Can you tell me what you mean by stalled progress?‑‑‑Yes. I'm assuming that progress means a positive outcome for managing work arrangements for parents, managing parenting arrangements for workers, however you like to phrase it, and that one would hope over time that these arrangements continue to become more available, and in that sense the work life balance is improving. So that's the sense of progress. Now, if we go back to the 1996 starting point we see quite low levels of these arrangements, and we see solid growth during the 90s and it continues into the early 2000s, but for some reason around about 2008 it no longer increases and in some cases it either flat lines after that period or it even dips a little bit and then rises back to a similar level, but it seemed to be a pattern in much of the data in the report, and I elucidate it later as well, and it was just something that I thought the Commission might find interesting, the idea that there was a time series pattern here whereby something that seemed to be an improvement, and I would assume we all agree it's an improvement, has no longer continued and has stalled.

PN591

Can I ask you this, I assume that at some point the demand for flexibility will naturally reach a level that it was satisfied, at some point?‑‑‑Well, it depends where you want to place that level. We're talking here about the availability to parents, so we're not talking about some kind of spread across the general population, like, you know, enrolment in voting or something where it hits a certain level; we're talking about within a sub‑group access to something they might need. So at what point that becomes a ceiling one might not expect it to go higher than, I'm not sure, but I would assume it is considerably higher than the figures shown here.

*** IAN GEOFFREY WATSON XXN MR WARD

PN592

The number of people in this country having babies - tell me if I'm wrong - hasn't dramatically changed over the last 20 years? It's a finite number of people?‑‑‑I'm just trying to think if the population is consistent with your argument, because the unit of analysis is families, and so it's whether they - but they have - yes, we're looking at parents within families, so we're not talking about the general population as you're implying. You're implying, I think, that there's a finite number of babies to be born to the population, therefore we're going to hit the ceiling for the general population. But my reading of these figures, just looking at the title and the population, is that we're talking about parents.

PN593

Let me put it to you a different way?‑‑‑Yes.

PN594

Would you at least agree with these propositions, that if the majority of people in this category - parents - if the primary carer of the parents makes a request to their employer for flexible work and the employer agrees to it, then that has satisfied their needs?‑‑‑Yes.

PN595

And just hypothetically, see if we can at least agree on this, if everybody who made a request the employer said yes, I'll give you what you want, we would see a stalling effect in these charts?‑‑‑Sorry, when you see "everybody", you mean every parent with a child?

PN596

That's correct - yes, that's correct?‑‑‑And if all of them - well, wouldn't that imply 100 per cent would be the ceiling?

PN597

I'm just asking you whether or not - well, it could do; I don't know how this data set is - but if we just accept for a minute that the people who make a request get a yes?‑‑‑Yes.

PN598

Then we won't be seeing demand spike up because demand has been met?‑‑‑Yes.

PN599

Are you aware of how many employers say yes to a request? If you don't know, you can say no?‑‑‑I think there's a discussion later in the report from an employer survey, a workplace survey, that has something about requests being made. I could direct you to that table.

PN600

Please do?‑‑‑I think it does touch on what you're asking. It's towards the end of the report - no, it might actually be in front of that. I'll just find where it is. I'm used to looking at this electronically where I can jump to it straight away. I think it's not in a table but it's in the discussion on page 56.

PN601

So you've been referencing the Australian Workplace Relations study?‑‑‑Yes, that's correct.

*** IAN GEOFFREY WATSON XXN MR WARD

PN602

That's fine. So your knowledge of what requests have said yes or no to comes from that study?‑‑‑For what employers said, yes. The HILDA data asks employees whether they have access to various entitlements, which is a different question to what an employer might say, which is really what the Australian Workplace Relations study questions.

PN603

So the HILDA data is dealing with the employee's perception of possible access. The Australian Workplace Relations study is: I've been asked as an employer and this is what I said?‑‑‑Yes.

PN604

Thank you very much?‑‑‑Sorry, let me just check that - it's a while since I've seen this - because we do get responses from employees in that survey as well.

PN605

You do, that's correct?‑‑‑So you'd have to see which one we're talking about here. There's an italicised word, the "requests" made by employees in paragraph 126, which is done to draw the distinction between when an employee was the party I was talking about as opposed to the employer.

PN606

That's fine. I'm not going to labour it with you, Doctor?‑‑‑Okay.

PN607

All I want to understand is, your understanding of requests for flexible work being made and whether or not an employer agrees to those requests, be it the employer's view of that or the employee's view of it, that comes from the Australian Workplace Relations study?‑‑‑That last part does. The earlier discussion we had was from HILDA and the availability of arrangements.

PN608

And that's, as you've just said, that's a different concept. You said you used the word "access?"---It's about whether you have those entitlements at work, and it's asked in a survey where we don't know on what basis that's made - does the person request it, is it an entitlement - it's simply: do you have access. So it's equivalent probably to part of what the Australian Workplace Relations study is.

PN609

But not all of it?‑‑‑It's a bit more precise, because it's saying you made a request.

PN610

I see?‑‑‑The HILDA data may not involve a request. It may just involve a statutory entitlement or an arrangement in the workplace that's well understood.

PN611

So it could be as low level as you just described: I've got an understanding of an arrangement - it might be a policy, it might be an enterprise agreement?‑‑‑Exactly.

PN612

That's access versus request/decision?‑‑‑Correct.

*** IAN GEOFFREY WATSON XXN MR WARD

PN613

Okay, I'm comfortable. I won't take much longer. Can I just take you to page 54? I'm just trying to grapple with this. You introduce in page 54 the question of child care?‑‑‑Yes.

PN614

You say at the beginning of the page, "It contains" -

PN615

The HILDA survey is valuable in supplementing ABS child care data. It contains a range of questions about difficulties parents face in obtaining affordable child care.

PN616

How do I read the table below? Just help me out. Do I read that to tell me that if I'm unemployed child care is a bigger issue for me than if I've got a full‑time job? That was a bad question. Let me ask - - -?‑‑‑No, I'm just studying the figures you're saying should you read that to indicate that people evaluate their costs of child care as being more problematic when they're unemployed.

PN617

Yes?‑‑‑I would say yes, because they have less money.

PN618

So as I read this table, I think what it's trying to tell us is that people were less troubled by the cost of child care in 2002 than they are in 2014 as a general proposition?‑‑‑Across the board? Yes.

PN619

Yes, okay. And the nilths?‑‑‑Yes.

PN620

Is that nilth nilth, or is that nilth marginal, or is that - - -?‑‑‑It's combined.

PN621

It's combined?‑‑‑Which is the usual.

PN622

So even the people who are included in that group who aren't in the workforce and not looking to be in the workforce, they've had issues with the cost of child care over that time period as well?‑‑‑Yes.

PN623

And it goes for each category. The exception seems to be there's been a big dip for the unemployed. I take it the government is handing more money out or something?‑‑‑Well, unemployment benefits have stalled for a very long time at a low level.

*** IAN GEOFFREY WATSON XXN MR WARD

PN624

Yes?‑‑‑And child care presumably has increased, so I think their difficulties would have shown an increase at some point. It may be the case that, to explain the dip, I mean, we're only speculating here, but at some point it may well be that they're not regarding child care as feasible any more. I mean, there could be any number of reasons. I don't know that without further analysis you could explain the changes of that nature.

PN625

Let me ask this, if you can't answer it ‑ ‑ ‑?‑‑‑Yes.

PN626

‑ ‑ ‑please feel free to – when I read what you say about child care, I get the impression that it's a very big influencer in the extent to which people do and don't participate in the workforce, part-time work and the like. The availability and affordability of child care seems to be a very big issue?‑‑‑I think that's a reasonable conclusion, yes.

PN627

Can I lastly take you to page 65 and I just want to try and understand this: you've got table 3.11, but as I understand the data in 3.11 this is a response to questions on a seven point scale?‑‑‑Yes.

PN628

One is strongly disagree with the proposition; 7 is strongly agree; and I'm assuming that 4 is neutral?‑‑‑Yes.

PN629

Yes, okay. Right. So if I'm over 4 I'm moving more towards the agree than the disagree, and if I'm below 4 I'm moving more to the disagree than agree?‑‑‑Yes. That's for individuals. We're talking here about averages though.

PN630

That's fine?‑‑‑Yes.

PN631

So let me just see if I've got this right. Let me just try one. The proposition turns down work opportunities, male full time, this is the category we're looking at. That group when surveyed on average gave that at 3.2 on the seven point scale?‑‑‑Yes.

PN632

So more disagree with that proposition than agree with it?‑‑‑No, I don't know that you could conclude that.

PN633

If 1 is strongly disagree and 7 is strongly agree, and the group on average end up at 3.2, isn't it closer to the disagree than the agree?‑‑‑The average is.

*** IAN GEOFFREY WATSON XXN MR WARD

PN634

Yes?‑‑‑But that wasn't your conclusion. You were saying more. It could well be that we have a small group who strongly disagree and a very large spread of those from 4, 5, 6 and 7. It will depend on what the distribution within the scale is what the final average is, so ‑ ‑ ‑

PN635

Poorly worded question. As I see this chart here it's dealing with averages?‑‑‑Yes.

PN636

There might be some very happy and very unhappy people in this group. We don't know?‑‑‑Yes. Yes.

PN637

But to the extent that you've presented it, you've presented averages?‑‑‑I have presented averages, but you need to be careful with these for a couple of reasons; nearly all averages will gravitate towards middle, so you don't conclude that if this is an arbitrary middle point ‑ ‑ ‑

PN638

Yes?‑‑‑ ‑ ‑ ‑to the left is more likely to disagree or to the right is more likely to agree, because individuals of course will gravitate differently on that scale. The point to deriving an average like this is to compare sub-groups, and it's the relativities between the sub-groups on the averages that smooths out that kind of idiosyncrasy of how different people evaluate it and so if there are two averages which are close together you'd be cautious about it. Where an average is a reasonable way apart and I would say a figure of 4.3 compared to a figure of, you know, 3.2.6 clearly that group as a whole their tendency is more towards one direction than the other.

PN639

So ‑ ‑ ‑?‑‑‑That's the correct way to interpret these figures, I think.

PN640

So I take your counsel on caution ‑ ‑ ‑?‑‑‑Yes.

PN641

‑ ‑ ‑and can I see if I understood what you've now tried to tell me, and I'll pick two examples: let's take full-time male/part time. Let's go to the middle question. Misses out on home activities?‑‑‑Yes.

PN642

Male full time say 4.38?‑‑‑Mm-hm.

PN643

So that's their average?‑‑‑Yes.

PN644

Male part time say 3.71. That's their average?‑‑‑Yes.

PN645

Comparing those two groups the male full time seems to be missing out more on home activities than the part-time male?‑‑‑Yes.

*** IAN GEOFFREY WATSON XXN MR WARD

PN646

Right, okay. That's how I use this table?‑‑‑Yes. That's correct.

PN647

Thank you. No further questions.

PN648

JUSTICE ROSS: No further questions from any of the employer organisation?

PN649

MR FERGUSON: No, your Honour.

PN650

JUSTICE ROSS: Re-examination?

PN651

MS BURKE: No, no re-examination, your Honour.

PN652

JUSTICE ROSS: All right. You're excused. Thank you very much, Dr Watson?‑‑‑Thank you.

<THE WITNESS WITHDREW [12.43 PM]

PN653

JUSTICE ROSS: Ms Burke?

PN654

MS BURKE: The next witness is Dr Jill Murray. I just noticed the time. I'm happy to deal with it.

PN655

JUSTICE ROSS: Yes. One of us has a commitment at 1 o'clock so it might make more sense to not start the witness.

PN656

MR WARD: Yes.

PN657

MS BURKE: All right.

PN658

JUSTICE ROSS: How long do you think you'll be with the witness in cross-examination?

PN659

MR WARD: About an hour or so.

PN660

JUSTICE ROSS: Okay. Two o'clock.

*** IAN GEOFFREY WATSON XXN MR WARD

LUNCHEON ADJOURNMENT [12.44 PM]

RESUMED [2.01 PM]

PN661

MS BURKE: I call Dr Jill Murray. As previously, with leave, I'll just lead a few corrections. They're more substantive than typographical (indistinct).

PN662

JUSTICE ROSS: Sure.

<JILL MURRAY, AFFIRMED [2.01 PM]

EXAMINATION-IN-CHIEF BY MS BURKE [2.01 PM]

PN663

MS BURKE: Dr Murray, could you please state your name again, for the transcript?‑‑‑My name is Jill Murray.

PN664

And your occupation?‑‑‑I'm an academic in the law school at the La Trobe University.

PN665

And your address?‑‑‑My address is C/O The Law School, La Trobe University, Bundoora, Victoria.

PN666

Have you prepared a report for this proceeding?‑‑‑Yes, I have.

PN667

There should be a folder in the witness box there. If you can just turn to the tab with your name on it. Have you got that tab?‑‑‑Yes, I have.

PN668

In the front of it there, is there a statement, your statement, of Dr Jill Murray, signed and dated 6 May

PN669

2017?‑‑‑Yes, that's correct.

PN670

And there are three annexures to the statement. The first of those is your CV?‑‑‑Yes.

PN671

Second is the letter of request for this report, from the ACTU?‑‑‑Yes.

PN672

And the third is your report, dated 4 May 2017?‑‑‑Yes.

*** JILL MURRAY XN MS BURKE

PN673

I understand there are a couple of corrections you wish to make to that report?‑‑‑Yes, there are.

PN674

At paragraph 29?‑‑‑Yes, at paragraph - sorry.

PN675

Sorry. Should the last words, after the comma there, so in - months, comma, read, "25 per cent of women surveyed had made a request, compared to 15 per cent of men"?‑‑‑Yes, that's correct.

PN676

Can I ask you to turn to paragraph 59, please?‑‑‑Yes.

PN677

That is a quote from the Australian Human Rights Commission report. At about the third line from the bottom, there's a reference there to rostering being hard enough to do - should that read "shift work", not "shit work"?‑‑‑I should.

PN678

Thank you. If those corrections could be made. Does that report, then, with those corrections, accurately set out the opinions formed by you on the basis of your expertise?‑‑‑Yes, it does.

PN679

Thank you. I tender the statement and the annexures.

EXHIBIT #ACTU5 STATEMENT OF DR JILL MURRAY, DATED 04/05/17

PN680

MS BURKE: Thank you, Dr Murray. Please just wait there.

PN681

JUSTICE ROSS: Mr Ward.

PN682

MR WARD: Thank you, Your Honour.

CROSS-EXAMINATION BY MR WARD [2.05 PM]

PN683

MR WARD: Dr Murray, my name is Nigel Ward. I appear in these proceedings for the Australian Chamber of Commerce and Industry. Are you familiar with who they are?‑‑‑Yes.

PN684

All right. As I understand it, when you prepared your report, did you do a literature search in preparation for preparing your report?‑‑‑Yes, I did.

*** JILL MURRAY XXN MR WARD

PN685

Can you just explain for me how you did this search?‑‑‑How I did the search? Through normal academic processes of - I suppose the first thing I did was go to my current knowledge of the matters. So I was aware of the AWALI report, and I started with that, and then my research spread from there. I followed through the articles that have been written about that in the previous instances. I was aware of the general managers' reports, and so I read them. Then, I did a general search on Google Scholar, looking for family-friendly articles about those matters.

PN686

So if I can just summarise that. You started with some materials you were quite familiar with: the AWALI report, the general managers' report. You looked at what they had referenced, and you went backwards on the trail, and then you did a Google Scholar search for some keywords?‑‑‑Yes.

PN687

And that produced how much material?‑‑‑It produced a lot of material, but not all of it was Australian, so I limited myself to Australian material, and mostly recent material.

PN688

By "recent", what period?‑‑‑I don't think I set a strict deadline in my mind, but I was certainly looking over the last, say, six or so years.

PN689

Is there any reason why you chose that?‑‑‑Well, no. I suppose the provision I've been asked to investigate is a creature of 2010, and so I was looking at that period onwards. So I should say, yes, that is the reason.

PN690

This not a facetious question, but I take it you didn't read everything you found; you just read the ones that seemed to the most important?‑‑‑Absolutely. It's a selection.

PN691

All right. I take it that you didn't undertake any qualitative research yourself to answer the questions?‑‑‑Not at all, no.

PN692

Nor quantitative research?‑‑‑Not at all.

PN693

All right. Now, as I read your report, am I right in saying that it relies on, obviously, a lot of sources, but it relies very heavily on the AWALI report?‑‑‑No.

PN694

Is the AWALI report - is it a minor reference in your material?‑‑‑No, it's an important reference, but I wouldn't say it relies only, or solely -

*** JILL MURRAY XXN MR WARD

PN695

I didn't say only or solely, but let's just accept the way you described it: it's an important reference in your material. Am I right in saying that you're quite familiar with that report?‑‑‑Yes.

PN696

Are you familiar with the methodology used to actually do the research that goes into that report?‑‑‑I've read the statement of the methodology.

PN697

I'm going to take you in a moment to that report and ask you some questions on it. Can I be honest and say, if you simply don't know the answer, just tell me?‑‑‑Yes.

PN698

Do you have a copy of it?‑‑‑No, I don't.

PN699

I've got three copies for the Bench. I have thought that the ACTU was tendering all of the documents referenced by the experts. I apologise.

PN700

JUSTICE ROSS: I think they're listed in the reference list.

PN701

MR WARD: In the reference - then I do apologise. Can I give three copies for the Bench. Can I give this copy -

PN702

JUSTICE ROSS: So I take it you're not tendering it; it's so that we can follow the cross-examination?

PN703

MR WARD: It is, your Honour. I'm going to spend some time on it. If the Bench believe it should be tendered, then I will, but it's in the reference list anyway.

PN704

JUSTICE ROSS: Yes, that is right. It's before us in any event.

PN705

MR WARD: Yes. Can I ask you to go page 8. I'm really trying, doctor, to make sure I understand what this survey is all about. Am I right in saying that the survey is mostly looking at how work interferes with non-work life?‑‑‑I think that's fair, yes.

*** JILL MURRAY XXN MR WARD

PN706

Can I take you to the grey box in the middle of the page? As I understand it those five statements, the general interference, time strain, work to community interference, satisfaction, frequency of feeling rushed or pressed, those are the five indices that this study uses. They're the things that people are scoring against; is that correct?‑‑‑When you say they're the things people are scoring against ‑ ‑ ‑

PN707

My apologies?‑‑‑Yes.

PN708

Let me read, under the heading, The Work life Index it says:

PN709

To arrive at the AWALI composite work life index we average and standardise the five measures of work life interference described above.

PN710

So those are the things they're averaging and standardising?‑‑‑In the AWALI composite work life index, yes.

PN711

Just for my benefit do you know what average and standardised means?‑‑‑No.

PN712

Okay?‑‑‑I know what average means.

PN713

No, that's fine. Sorry, that's fine. I just wanted to understand that I've worked out what these in the grey box mean. General Interference, and it says here:

PN714

The frequency that work interferes with responsibilities or activities outside work.

PN715

The reference to frequency what would have constituted an event for the purpose of saying, well, that's one event. That's two events. That's three events?‑‑‑I'm sorry, I don't know.

PN716

No, that's fine. That's okay?‑‑‑I'm not familiar with this methodology that you're taking me to.

PN717

No, that's all right?‑‑‑And the reason for that is that the section of the report I rely on is the statistical analysis of the right to request provision.

PN718

So I don't mean this rudely but I'm asking the wrong person in terms of methodology of this part?‑‑‑Yes, you are.

*** JILL MURRAY XXN MR WARD

PN719

No. Thank you, Doctor. Can I ask you to go to page 11? As I understand it, this is a broad description of the sample of the 2690 people who did the survey based on various demographics; is that correct?‑‑‑That's my understanding, yes.

PN720

Good. Good. Can I ask you to go down the page to the heading that says, "Highest Level of Education"?‑‑‑Yes.

PN721

Just help me out if I'm reading this right. It's got three headings, University Degree, TAFE College, Secondary School, and then it's got a column for men, a column for women, a column for all, and then it's got ABS Survey. Am I right in saying that the ABS survey is the Australian average for those things?‑‑‑I don't know.

PN722

You don't know. So you don't know, for instance, whether or not when I compare the secondary school all at 22.6 per cent for the ABS survey at 38.9 you don't know what that's telling us?‑‑‑I presume it's telling us that the ABS survey has reached that view of the spread of those qualifications, but I'm not sure.

PN723

I won't carry on. Might prove quicker than I thought. Could I ask you to go to page 15? You talk about these charts in your paper. I just want to – on the right-hand side of figure 1 ‑ ‑ ‑?‑‑‑I'm sorry, I didn't refer to this chart in my report.

PN724

Not at all?‑‑‑No.

PN725

Let me ask you a different question, then?‑‑‑Yes.

PN726

In this chart is the first time we see this categorisation of never, rarely, sometimes, often, almost always, and that's phraseology that is consistent throughout the AWALI report. Do you know whether or not the people filling out the questionnaire were told what those categories meant?‑‑‑I don't know.

PN727

Can I take you to page 24? I am right, aren't I, that your report talks about the hours people prefer to work?‑‑‑Yes.

PN728

Yes, okay. There's a table, table 4 on page 24, Actual and Preferred Work Hours by Part-time, Full-time Work Status and Gender. Can I just ask these questions of you just to see if I understand this: As I read that if you take the very first row it's men, part time, actual hours worked 19.6, preferred 28.1, hours miss-match 8.2. Is that telling me that there's a high miss-match between what is worked and what is preferred?‑‑‑Men who work part time want more hours.

*** JILL MURRAY XXN MR WARD

PN729

Yes. Yes. Is that because those men might be, to use the phrase I think you use in your report, the bread winner?‑‑‑No.

PN730

It just might be a personal preference?‑‑‑My use of the word "bread winner" I don't think I did use it in my report, but I know what you mean. I make no comment about the specifics of this table, and I have no knowledge as to why men want more hours, apart from what I've read here.

PN731

All right. Later on with part-time work in this table it says, actual hours worked by women 20.8, preferred hours 23.4, and then it says hours miss-matched 2.7. It's then got this Work Life Index next to it. Do you have any familiarity and knowledge about the Work Life Index?‑‑‑No, it's not referred to in my report.

PN732

So you're not able to talk about that?‑‑‑No.

PN733

Can I ask you to go to page 32? I'll withdraw that. I don't think you'll be able to answer that. Can I ask you to go to page 41? There's a heading there that says, Mechanisms under which Employees Requested Flexibility?‑‑‑Yes.

PN734

It says:

PN735

The 2014 survey included the question about mechanisms under which employees made their request for flexible work arrangements, and the majority of employees 57.3 per cent said that they just ask their supervisor or manager or applied under their organisation's policy –

PN736

Sorry, just asked their manager. So am I right in saying that when you use the phrase "informal request" that's what's being referred to? That's an informal request?‑‑‑When I use the phrase "informal request" I mean a request made outside the statutory system of the right to request, so outside section 65.

PN737

So anything that's not specifically a section 65 request is an informal request?‑‑‑Mm-hm.

PN738

Sorry, is that a yes?‑‑‑Yes.

PN739

Yes. It goes on to say that only 2.8 per cent utilise the right to request. So that's the section 65 proposition. That's the 2.8 per cent?‑‑‑Yes.

*** JILL MURRAY XXN MR WARD

PN740

Okay. So in that sense all others would be considered by you to be informal?‑‑‑Yes.

PN741

Can I ask you to turn the page?

PN742

JUSTICE ROSS: Sorry, just before you do, can I just clarify, in relation to this issue about what is an informal request and that first paragraph that Mr Ward has taken you to, so a request under the organisation's policy or under an enterprise or collective agreement, that is the 39.9 per cent there, you classify that as an informal request as well, and that's the distinction you're drawing?‑‑‑Well, I'm being asked about my report where I use the phrase "informal". It is usually used to distinguish between a request made under section 65 and one not, but requests made under a workplace policy or an enterprise agreement may have a degree of formality to them, so I should clarify my answer in that way. But generally in my report I'm trying to identify what is the effect. That's what I was asked to do, the effect of the right to request provision, and so I tend to say things made outside that have been made informally, because the research shows that even requests made in an organisation with a formal policy are usually made informally, not in writing for example.

PN743

MR WARD: Thank you. So if I can take you to page 42?‑‑‑Sorry, which page?

PN744

Page42. There's a heading there which says "Outcome of request granted or declined"?‑‑‑Sorry, I don't see that on page 42.

PN745

Peter Wylie report. It's not there?‑‑‑I've got "Request to change work arrangements." Did you say 42?

PN746

Yes?‑‑‑"Request to change work arrangements"?

PN747

No, there's a heading – no, sorry, Doctor, my apologies, there's a heading about halfway down, it says "Outcome of request granted" - - -?‑‑‑Yes, I've got that.

PN748

Thank you. The report says this:

PN749

The majority of requests for flexibility were fully granted with a further 16.9 per cent of requests partly granted. Only a small proportion of requests, 10.8 per cent, were declined.

*** JILL MURRAY XXN MR WARD

PN750

I will just pause there. Is the reference there to requests a reference to all the requests that were talked about on the last page or just the section 65 request?‑‑‑I believe it's in relation to all the requests.

PN751

Again if you can't answer this I respect that, but the reference to partly granted do I take that to mean that anything, no matter how moderate the modification from the request is, if the request isn't granted in full, but it is granted in some other fashion, it's partly granted?‑‑‑I don't have that information.

PN752

You don't have that. I take it you also wouldn't know whether or not the ones that were partly granted involved discussion, any particular process?‑‑‑No.

PN753

You have also referred to the general manager's reporting to the operation of the provisions of the national employment standards. You are familiar with that?‑‑‑Yes.

PN754

Can I give you a copy of that. Can I ask you, Doctor, if you could go to, I think it's page vii. At the top of the page it says "Key findings on request for flexible working arrangements"?‑‑‑Yes, I have that.

PN755

I will just do this, I am trying to clarify in my own mind a bit about this report that you have used. It says in the third paragraph:

PN756

According to the AWIRS - - -

PN757

And as I understand it that's the Australian Workplace Relations Survey, which the Fair Work Commission commissioned.

PN758

- - - a little more than 40 per cent of all employers received a request for flexible working arrangements.

PN759

It then goes on to say:

PN760

A little more than 1 per cent of employers in the national system received formal requests for flexibility work arrangements made in accordance with section 65.

*** JILL MURRAY XXN MR WARD

PN761

So it draws a distinction, which I think is your distinction, between what we might describe as informal and section 65 requests?‑‑‑Well, I've explained that I accept that my informal category may include some degree of formality.

PN762

No, I am not being critical?‑‑‑But apart from that it's distinguishing between section 65 requests and all the rest.

PN763

Yes, and others?‑‑‑Correct.

PN764

I wasn't being critical. It then goes on in the fourth paragraph to say:

PN765

Employers indicated that 90 per cent in all cases of requests for flexible working arrangements were approved without change, 9 per cent occasioned some elements of requests granted.

PN766

Then it talks about those that were refused. Am I right in reading this report this way; do I read the 90 per cent reference as a reference to the 40 per cent of requests or the 1 per cent of section 65s?‑‑‑This is a reference I believe to the whole category.

PN767

So it's 40 per cent?‑‑‑Yes.

PN768

Then it goes on later on to talk about the employees sort of version of events, and it says:

PN769

Eighty-five per cent were approved, 12 per cent with modifications and 2 per cent rejected.

PN770

Again that's just the employee reflection of the employer side, is it?‑‑‑Can I just check, can you tell me what paragraph in my report you're referring to there?

PN771

I can't, Doctor. I can dig it up, it might take me some time?‑‑‑I think it's my paragraph 32.

PN772

Thank you for that?‑‑‑Can I answer the question?

*** JILL MURRAY XXN MR WARD

PN773

Please do?‑‑‑Yes, as I make clear at paragraph 32 those figures – no, these are the characteristics of the requesters. So my paragraph 45 has the data relating only to the section 65 requests, and that data relates to only 84 employers.

PN774

So let me just go back to the answer you gave me a minute ago. If you go back to page vii where it says:

PN775

The employers indicated 90 per cent in all cases of requests for flexible working arrangements were approved without change.

PN776

Earlier you said that was the 40 per cent group, now you're saying it's the 1 per cent group, the section 65?‑‑‑I'm not sure now, I'm sorry.

PN777

No, that's all right?‑‑‑Later on the report limits its analysis as explicitly to the section 65, and I'm not sure at this point if they're talking about the whole group or - - -

PN778

I will be candid, Doctor, I kind of struggled with this as well, that's why I am asking the questions. It's not a trick question, they seem to jump in and out of the groups all the time?‑‑‑And the figures are rather similar anyway.

PN779

They are, yes?‑‑‑So the vast majority were approved, but my paragraph 45 has the section 65 requests only.

PN780

So it is possible that what's on vii could be applying to the 40 per cent, all the requests?‑‑‑Yes.

PN781

No further questions.

PN782

MS BURKE: No re-examination, your Honour.

PN783

JUSTICE ROSS: Thank you, Doctor, you're excused.

<THE WITNESS WITHDREW [2.30 PM]

PN784

MS BURKE: Your Honour, Dr Stanford is walking as we speak to the Commission. He will be here shortly. So if I can just ask that we stand down shortly.

*** JILL MURRAY XXN MR WARD

PN785

JUSTICE ROSS: No, that's fine. Ten minutes?

PN786

MS BURKE: Yes, thank you.

SHORT ADJOURNMENT [2.30 PM]

RESUMED [2.41 PM]

PN787

MS BURKE: Your Honour, I seem to have lost my instructor and my witness.

PN788

JUSTICE ROSS: He was here a minute ago.

PN789

MS BURKE: I believe - if I can just be excused from the Bar table - - -

PN790

JUSTICE ROSS: No, that's fine, no problem.

PN791

MS BURKE: I'll stick out my head the door to see if - there aren't any corrections to Dr Stanford's (indistinct).

PN792

JUSTICE ROSS: All right. Yes, thanks, Ms Burke.

PN793

MS BURKE: Thank you. I call Dr James Stanford.

<JAMES STANFORD, AFFIRMED [2.43 PM]

EXAMINATION-IN-CHIEF BY MS BURKE [2.43 PM]

PN794

MS BURKE: Dr Stanford, can you please repeat your full name?‑‑‑James Stanford.

PN795

And your occupation?‑‑‑I'm the economist and director for the Centre for Future Work, based in Sydney.

PN796

And your address?‑‑‑4 Goulburn Street in Sydney.

PN797

Have you prepared a report for this proceeding?‑‑‑I have, yes.

*** JAMES STANFORD XN MS BURKE

PN798

If you could have a look, please, at the folder in the witness box there. There should be a tab with your name on it?‑‑‑Yes.

PN799

And turn to the documents behind that tab. Is the first document there your statement?‑‑‑Yes.

PN800

That's signed and dated 4 September 2017?‑‑‑Yes.

PN801

And there are three annexures to that statement. The first of those is a copy of your CV?‑‑‑Yes.

PN802

The second is a letter from the ACTU?‑‑‑Yes.

PN803

And the third is your report, titled "Expert report of Dr James Stanford"?‑‑‑Yes.

PN804

Does that report accurately set out the opinions formed by you on the basis of your expertise?‑‑‑Yes, it does.

PN805

Thank you. I tender that statement and the annexures.

EXHIBIT #ACTU6 STATEMENT OF DR JAMES STANFORD, WITH ANNEXURES, DATED 04/09/17

PN806

MS BURKE: Thank you. Dr Stanford, please wait there. There will be some questions?‑‑‑Thank you.

PN807

JUSTICE ROSS: Mr Ferguson.

PN808

MR FERGUSON: Thank you, your Honour.

CROSS-EXAMINATION BY MR FERGUSON [2.45 PM]

PN809

MR FERGUSON: Good afternoon, Dr Stanford. My name is Brent Ferguson. I appear for the Australian Industry Group in these proceedings. I have a number of questions for you. To start with, are you familiar with the clause that the ACTU is seeking to have in awards as an outcome of these proceedings?‑‑‑Yes.

PN810

And you've read the proposed provision?‑‑‑Yes.

*** JAMES STANFORD XXN MR FERGUSON

PN811

I just want to take you briefly to paragraph 40 of your first report. If you could please turn to that. Have you found that?‑‑‑Yes.

PN812

At paragraph 40 of your report, you point to the prevalence of non-standard, insecure and flexible employment, and you contemplate this as including the use of employers of labour hire or externally sourced workers, and of independent contractors, among other categories of workers, don't you?‑‑‑Yes.

PN813

It is your evidence, isn't it, that, in fact, if employers are utilising such types of workers, or non-standard employment forms, maybe in order to avoid the costs and risks associated with permanent employment, and because they want to be able to, using your words, "More fluidly adjust to employment, to fluctuations in business activities or sales", isn't it?‑‑‑Yes.

PN814

Can I take it that you contend that employers, or at least some employers, use such forms of non-standard employment working arrangements so that they can exert control over the particular hours that are worked by the labour that they engage?‑‑‑Yes.

PN815

So I take it, based on your logic, that you would expect that if awards were amended to further restrict an employer's ability to influence or control the working hours of their award-covered employees, some employers might make greater use of labour hire or other non-standard forms of employment, in order to avoid those new restrictions?‑‑‑I think that would depend on the nature of any restrictions or regulations that govern those alternative forms of employment as well.

PN816

I see. Are you familiar with the forms of regulation that cover those forms of employment at the moment in Australia?‑‑‑I have a broad familiarity with it, but I'm not an expert on it.

PN817

Well, you accept that awards do not place any restriction on employer's ability to utilise labour hire for a particular number of hours per day; an individual labour hire employee, if you will?‑‑‑That is beyond my area of expertise.

*** JAMES STANFORD XXN MR FERGUSON

PN818

Would you accept that if awards were amended to enable employees to choose their working hours, in order to accommodate their parenting or carer responsibilities, that some employers may make greater use of, say, labour hire arrangements, in order to overcome those restrictions, so that they could adjust the employment in accordance with fluctuations in business activities or sales, as you put it?‑‑‑Again, I'm not an expert, but I understand that labour hire employees have certain protections under the awards as well, depending on the nature of the industry where they've been employed. So I think the question would depend on the nature of the restrictions that also faced a labour hire situation. But, again, I'm not an expert.

PN819

Do you accept that such changes to awards would undermine an employer's ability to fluidly employment to fluctuations in business activities or sales?‑‑‑No, I don't accept that.

PN820

I just want to ask you about your evidence in relation to trends in women's labour force participation. At paragraph 43, you'll observe that the rates of female labour force participation has stagnated in the period since the global financial crisis. Is it correct that the current labour participation rate for men is lower than it was in 2007?‑‑‑Yes.

PN821

If I could take you to paragraph 44 in your statement. You there speculate, based on certain assumptions, what the additional contribution to GDP and government revenues would be as a product of additional women entering the labour force had female participation continued to grow at the same as it did between 1997 and 2007?‑‑‑Yes.

PN822

Now, as I understand your evidence here, when the ABS refers to labour force participation, that term includes both persons who are employed and those who are willing to work, doesn't it?‑‑‑Willing to work and actively seeking work, as I understand it.

PN823

However, where you refer to an increment in the female labour force of some 285,000 people, in paragraph 44, you are actually indicating that all of those people would be employed, aren't you, in that paragraph?‑‑‑The sentence is not clear, whether I assume that all 285,000 are employed, or whether the same employment rate as a proportion of (indistinct) labour force was still employed.

PN824

You don't know what that figure represents, whether it's employed women, or people just participating in labour force (indistinct) common place?‑‑‑I would have to review the calculation that I used. The difference between the two in terms of the GDP added would not be great since most people who are in the labour force including most women are employed.

*** JAMES STANFORD XXN MR FERGUSON

PN825

Yes?‑‑‑So there might be, if the 285,000 was all applied at bench mark GDP for employee as indicated in the text there could be a difference of five per cent between that and assuming that the proportion of those 285,000 employed was equivalent to the proportion of current labour force participants of women who are employed. I would have to double-check the calculation.

PN826

But regardless that figure would be based on an assumption that there are suitable employment opportunities for all?‑‑‑Yes.

PN827

Yes. For this many additional women to be employed wouldn't there need to either be a corresponding number of additional jobs created or vacant jobs currently?‑‑‑Yes.

PN828

We can't be certain, can we, that if the female labour force participation rate had grown at a higher rate than it did that there would've have been appropriate jobs for additional women seeking employment to occupy, can we?‑‑‑We can't be certain but there are mechanisms in the macroeconomy including the active use of monetary policy and other policy tools so that in general over time the growth of employment does tend to track the growth of labour supply.

PN829

So there might be tools that would stimulate the employment so that it's possible, but we just can't be certain that would be the case?‑‑‑That's true.

PN830

Yes. There could be a range of variables that could undermine that assumption if you will?‑‑‑Certainly.

PN831

Yes. So for example it might be the case that there wouldn't jobs created that would necessarily align with the particular skill? The requirements of those jobs would align with particular skills of those employees?‑‑‑No, the presentation that I made does not contemplate changes in labour demand which is obviously part of the solution, and those changes in labour demand could occur independently of any change in labour supply, so even the existing labour supply there is no guarantee that they'll all be employed, depending on macroeconomic developments.

PN832

Yes. And it's possible, isn't it, that if there was highly a female labour force participation that that could actually put upward pressure on unemployment rates?‑‑‑If there was no change at all in labour demand then the increase in labour supply, other things being equal, would lead to an increase in unemployment.

PN833

Yes?‑‑‑That's true by definition.

*** JAMES STANFORD XXN MR FERGUSON

PN834

Yes. To the extent that a higher labour force participation rate of women didn't result in a further 285,000 women being employed, there wouldn't be the same increase in GDP or government revenue that you've identified in your statement, would there?‑‑‑If there was no work for these additional labour force entrants to perform then the GDP would not grow.

PN835

I'll just take you to paragraphs 47 to 50 of your statement, Doctor. This section of your report deals with small or medium enterprises, doesn't it?‑‑‑Yes.

PN836

In that section you refer to the prevalence of part-time work and part-time employment. Are you referring to part-time employment as defined or contemplated within the award system?‑‑‑The data which is reported here comes from the ABS definition of part-time employment which is people who work under 35 hours per week.

PN837

So when you're in that section you could be referring to people employed as casual employees under modern awards?‑‑‑Yes. The ABS - the broad definition of part time employment in the ABS would be a paid employee who works less than 35 hours, whether they had the normal entitlements or whether they did not, that distinction is usually taken as a proxy for whether you're casual or permanent.

PN838

Are you aware that the majority of modern awards contain a requirement than an employer and employee must agree upon an employee's ordinary hours of work upon engagement? Sorry, must agree upon a part-time employee's ordinary hours of upon engagement, and that the majority of those awards only – and a variation of those hours by agreement through an employer and employee?‑‑‑I'm not an expert on that feature of the modern awards.

PN839

So you're not familiar with that element of modern awards?‑‑‑With that element of the modern awards, no.

PN840

So within paragraphs 48 to 50 in particular of your report you observed the part-time worker, as you contemplated, is very prevalent in sectors in which there is a prevalence of smaller firms?‑‑‑Yes.

PN841

You point particularly to the retail and hospitality sectors, don't you? You accept though that there could, of course, be industry specific considerations that might make the use of part-time work more feasible in some sectors than in others?‑‑‑Certainly.

*** JAMES STANFORD XXN MR FERGUSON

PN842

So of course you'd accept that just because part-time work is prevalent in some industries that happen to be comprised of a large proportion of small to medium employers, that that doesn't mean that it can necessarily be accommodated by small employers in all industries?‑‑‑Certainly.

PN843

If I can just take you to the last sentence in paragraph 49. It states:

PN844

If part-time employment work and other non-standard job structures were already common (and presumably advantageous) for small employers in the current economy it is unlikely that providing some reciprocity in decision making power over flexible work practices could somehow impose a major economic or administrative burden. To a large extent they are already utilising these practices.

PN845

When you refer to "these practices" what are you referring to?‑‑‑The use of part time and other non-standard employment.

PN846

Yes?‑‑‑Which by my – the indirect correlation which I describe here is more common in small businesses than in large businesses.

PN847

I take it you haven't for the purposes of your report undertake any analysis of the extent to which arrangements that mirror that which the ACTU is seeking are actually already being implemented by small to medium enterprises in Australia across all industries, have you?‑‑‑No, that wasn't the question I was given with my report.

PN848

Yes. I'll take you to paragraph 51(a) and (b). In those paragraphs you appear to indicate that part of the benefits to an employer of family friendly working hours is increased retention of existing workers, and the corresponding saving in recruitment, training and replacement costs?‑‑‑Yes.

PN849

But I take it you'd accept that where an existing employee cuts their hours of work; they choose to work less and employer might, in some circumstances, need to hire an additional staff member to fill that vacancy?‑‑‑Yes.

PN850

In such circumstance the benefits or savings that you've identified regarding recruitment related savings wouldn't be realised, would they?‑‑‑They could be offset in whole or in part, and I do list the potential cost of hiring replacement workers in the next section of the report.

PN851

Yes?‑‑‑So I don't know if the magnitude is necessarily identical. It depends on how the employer chooses to fill the hours of work that are opened up as a result of the family flexible choice of the existing employee.

*** JAMES STANFORD XXN MR FERGUSON

PN852

Yes. So there may be certain costs, would you accept ‑ ‑ ‑?‑‑‑Yes.

PN853

‑ ‑ ‑ that would be incurred if you had to recruit an external employee?‑‑‑Yes. Yes.

PN854

I take it you accept that they may vary between employers?‑‑‑Yes. Yes.

PN855

But in some instances where an employee reduces their hours, the employer will need to recruit externally?‑‑‑Yes.

PN856

Where that occurs they will potentially incur recruitment costs?‑‑‑Yes. In my identification of the benefits I had two separate categories in terms of the benefits of retention. One of them is saving recruiting, training and replacement cost as you mentioned.

PN857

Yes?‑‑‑Then the second is the benefit that the worker produces.

PN858

I understand that?‑‑‑Yes. Yes.

PN859

But I'm just going to make the point that you ‑ ‑ ‑?‑‑‑Yes.

PN860

‑ ‑ ‑ wouldn't realise the benefit of the savings if you've got to go and recruit. Even if you don't have to recruit to fill the whole number of hours you've still got to go out and recruit?‑‑‑If you had to recruit as many people as you would have had to recruit in the counterfactual situation that the person left, the person who (indistinct) flexible hours severed because they couldn't have it, then that would seem to be awash, yes.

PN861

That would mean an issue?‑‑‑Yes, yes.

PN862

(Indistinct) particular situation where they stay but reduce their hours just to incur the costs (indistinct)?‑‑‑If they have to hire outside to backfill the hours, yes.

PN863

Now, again, I think in para 52A you suggest that in fact it is possible that in some circumstances vacancies left by care employees could be offset by increased working hours on the part of other existing employees. But notwithstanding that, I take it that you truly accept that the labour of one employee of a business cannot always be substituted for the labour of another existing employee?‑‑‑I accept that.

*** JAMES STANFORD XXN MR FERGUSON

PN864

And I take it you accept that there could be a whole range of reasons why the labour of different employees can't readily be substituted?‑‑‑Yes.

PN865

Take you through all of those reasons, but I take it you accept one of those might be skills matches, skills mix matches between the respective employees?‑‑‑Certainly.

PN866

And another might be that the potential substitute employee is simply unwilling to perform work at the particular hours that the care employees vacant (indistinct)?‑‑‑Yes.

PN867

It might be that substitute employees in a different geographical location to the vacant employee and as such can't perform the vacant employee's role?‑‑‑Yes.

PN868

It might be that substitute employees is in a different geographical location to the vacant employee and as such can't perform the vacant employee's role?‑‑‑Yes.

PN869

And you accept that in some very small firms there may be particularly limited opportunities to substitute other employees for vacant individuals?‑‑‑Potentially, although some of the evidence that we reviewed indicated that smaller firms, because of their less bureaucratic and flatter organisational structure are actually better able to reallocate (indistinct).

PN870

But it depends on the circumstances?‑‑‑Certainly.

PN871

And if you, for example, just don't have sufficient employees to enable someone to step into that extra role then it would be the case that they couldn't?‑‑‑It's certainly possible.

PN872

And that situation could potentially happen more often by the simple virtue of the fact that there is a smaller pool of potential substitute employees?‑‑‑The problem could arise in a small firm, but I wouldn't accept that it necessarily arises more often than in a large firm.

PN873

You just can't be certain of that?‑‑‑Yes.

*** JAMES STANFORD XXN MR FERGUSON

PN874

But in short, it can't be assumed that even if there is a high level on underemployment within the economy, that within the context of a particular firm there will necessarily be an underemployed employee who is willing and able to fill in for a particular vacant employee?‑‑‑In the context of a particular firm and a particular opening, it cannot be assumed, you're right.

PN875

Thank you. No further questions, doctor.

CROSS-EXAMINATION BY MR WARD [3.04 PM]

PN876

MR WARD: Doctor Stanford, welcome for picking the second best country in the world to live in?‑‑‑Thank you.

PN877

(Indistinct) family comes from Canada so – my name is Nigel Ward. I appear for the Australian Chamber of Commerce and Industry which I suspect you know is the employer version of the ACTU?‑‑‑Yes.

PN878

You're going to let me have that? Come on, come on, it is late in the day. You're going to let me have - - -

PN879

JUSTICE ROSS: Whether your colleagues at the Bar table are going to let you have it.

PN880

DEPUTY PRESIDENT GOOLEY: We don't want to have a demarcation dispute here.

PN881

MR WARD: We'll talk later. It has been a long year, doctor, I apologise. Can I just sort of get to the nub of what I think you're trying to say, and I just want to see where we go: you say at p.4 in your statement – and you might just want to turn to it. You say at paragraph 6, "The conclusion of my investigation can be summarised as follows: while it's not possible to formally quantify the costs and benefits of family friendly working schedules for employers in the form of precise quantitative modelling exercise, as a result of inadequate data regarding the likely instance and utilisation of such measures, a large and growing body of published international literature from a range of specific disciplines concerns that the benefits of these measures for firm performance are positive and significant. These benefits arise from a number of specific channels of causation including" – and then you list a variety of measures A to H, many of those relate to costs, some relate to productivity, some relate to sort of retention, engagement and the like, and then you go on and add some more afterwards. And as I understand it, the nub of your thesis is that if the employer understands what is on that list, they understand the benefits of that list, they would be persuaded to grant request for family friendly arrangements?‑‑‑I don't assume that employers themselves will necessarily do what potentially is in their best interests.

*** JAMES STANFORD XXN MR WARD

PN882

So you don't accept that most employers act rationally?‑‑‑No, I don't.

PN883

You think they act irrationally?‑‑‑I think that employer decision making is constrained in many cases by issues of information of management capacity, of time (indistinct), which can lead them to behave in ways which are not optimal either for their private firm or for the overall cost benefit analysis of their operations, and in fact that failure is one of the reasons why we have active policy in the economy.

PN884

So you think that many employers in this country are ill-informed and poor at managing?‑‑‑I think that is a fair statement, yes.

PN885

Okay. That is not what I'm going to agree with - - -?‑‑‑No.

PN886

- - - but you can make it. Can I put to this to you to the contrary, do you think that employers try and source labour efficiently?‑‑‑Well, the choice of criteria efficiency?‑‑‑Well, the choice of criteria efficiency depends on efficient from what perspective?

PN887

Quality and cost?‑‑‑I think that employers generally will try to source labour in a way that minimises their unit labour costs of production.

PN888

So you don't think employers - - -?‑‑‑Now, whether you define that - - -

PN889

You don't think employers think about the quality of the labour?‑‑‑Well, quality is one ingredient in minimising unit labour cost because that depends on both the compensation that is paid to workers but also the productivity and quality of their output, and employers always have to trade off those factors, they cannot just hope to pay the absolute minimum that they're legally required to if they have a concern about the impact of that compensation, issues of quality, productivity retention et cetera. So it is a complex, multidimensional exercise that employers engage in, but in general they'll be doing it with an eye to minimising their unit labour cost of production which is equivalent to maximising the profits on that aspect of their operation.

*** JAMES STANFORD XXN MR WARD

PN890

And do you think that is a bad thing for business to do?‑‑‑I think if all employment relationships are governed by the private profit maximising or cost minimising criteria of business, there can be negative consequences experienced by other stakeholders in the economy. And I also think that they potential of the economy to attain maximum growth and welfare benefits is limited because of the narrow lens that an unconstrained employer will adopt in choosing their profit maximising strategy.

PN891

So you think in this country if an employer is confronted with building a good workplace culture (indistinct) engage people providing discretionary effort or simply buying cheap labour, they'll choose cheap labour?‑‑‑Not all will, but some will.

PN892

And you think the majority will in this country?‑‑‑I wouldn't ascribe a majority share to it. I would say that there is a significant number of employers who whether it is rational or not from their individual profit maximising perspective have clearly adopted employment strategies premised on reducing the immediate costs of compensation to the detriment of long-run investments in the quality, skills and stability of the workforce, and I think that is - - -

PN893

And as an expert, what studies have you done on that issue in Australia?‑‑‑I have written or co-authored about 20 reports in the time - - -

PN894

You done any qualitative studies yourself?‑‑‑Yes, qualitative and quantitative studies through our centre that I've written or co-authored which are exploring different dimensions of the inadequate quality and in some cases deterioration of employment relations and the quality of the employment experience in Australia.

PN895

So they're not necessarily studying the behaviour of business and management, making rational decisions, choosing culture over cost?‑‑‑We haven't done a study that addressed that particular question.

PN896

No, okay. Thank you. Thank you. Do you think most employees in Australia will work to keep good employees?‑‑‑I wouldn't say that most do. I would say some do. Whether it's more than half or not, I couldn't comment.

PN897

So you think the majority don't care?‑‑‑I couldn't say whether it's more or less than half. There are many employers who work to retain high quality staff and there are many employers who quite deliberately accept rapid and ongoing turnover of staff as one dimension of an employment strategy which they have chosen, namely low wages, low investment in skills, and high turnover. In the brief we refer to that as external flexibility where some firms are maximising their operations through very rapid turnover in staff.

PN898

Can you give me an example of a company you studied in Australia who fits that bill?‑‑‑We have not done studies of particular individual companies.

*** JAMES STANFORD XXN MR WARD

PN899

So I take it that you believe that any employer who's behaving rationally is good and is informed will say yes to every request for flexibility?‑‑‑No, I wouldn't assume that.

PN900

Can you assist me in letting me know when you might reasonably expect an employer to say no?‑‑‑I think there's many criteria on which ‑ or many motivations through which an employer would say no. It could stem from their own incomplete assessment of the potential benefits that they would incur eventually from accepting flexibility. It could incur from their judgement that the trouble or cost of accepting that demand is not worth it from their perspective in terms of the individual employer. In some cases it could stem from kind of simple‑minded or old‑school management techniques which individual managers would simply not recognise that these things are important. You know, kind of an old‑fashioned idea that if you have a job you just have to do it and you have to put everything else aside. There's clearly managers in Australia who ascribe to that sort of philosophy rather than judging each case through a more complete cost benefit decision.

PN901

Let me ask the question again because you didn't answer it?‑‑‑Sure, okay.

PN902

We had a conversation earlier about quality of management. You said that you thought that people would be far more accepting of family friendly arrangements if they were informed. You said a lot of managers in Australia aren't informed. You said the quality of managers in Australia isn't good. So I put to you this: let's assume that the person making the decision is rational. They're a very good manager. They're highly informed. They understand the value of culture. You can't conceive of a circumstance where they would refuse a request for family friendly arrangements?‑‑‑No, I can certainly conceive of a situation where they would refuse the request. If they decided that it was more trouble to them as a business or more cost to them as a business than the benefit that they could obtain.

PN903

So if the cost outweighed the positives you would accept they'd say no?‑‑‑That is certainly one reason, among others, why an employer might reject a request for family flexible hours.

PN904

You then went and said, "If it was too much trouble for them." What do you mean by that?‑‑‑That the task of responding positively to a request for flexible working hours involves thinking through how the work will be met, having communications with the person about what the new working hours arrangement will be, and thinking through how long they'll be gone.

*** JAMES STANFORD XXN MR WARD

PN905

Now, in your report you use a phrase. It appears first of all paragraph 32. You talk about, "Reciprocity of decision making". Paragraph 32 is being used in the context of small business but I think it's used two or three times through your report. I had understood reciprocity of decision making involved the employee and the employer understanding each other's situation and trying to reach some accommodation around a family‑friendly request. Is that how you saw it? It's the coming together of two people to try and understand their situation and see if some accommodation can be reached?‑‑‑First of all, sir, what paragraph are you referring to?

PN906

That's fine, just bear with me. So if you go to page ‑ my apologies. Sorry, it's late in the day. Page 22, not 32. I can't read my own handwriting. At the bottom of page 22, paragraph 49, you say:

PN907

If part‑time work and other non‑standard job structures are already common and presumably advantageous for small employers in the current economy, (indistinct) providing some reciprocity in decision making power over flexible work arrangements could somehow impose a major economic or administrative burden. To a large extent they're already utilising this practice.

PN908

So I'm trying to understand what you mean by reciprocity in decision making?‑‑‑By reciprocity. Reciprocity in decision making power would be the full phrase. And I'm not referring simply to the fact that the two parties come together and discuss and exchange views. I'm referring to which party among them has the actual power to impose their preferences on it. And right now there is tremendous flexibility in Australia's employment patterns. Australia's labour market is one of the most flexible in the world, judged by the preponderance of these non‑standard forms of work as well as by the general minimalism of regulations regarding employment protection and other matters. But within that context of flexibility it's presently a very one‑sided vision of how flexibility should occur and who gets to choose the flexibility. So the flexibility is largely reflecting the employer's choice that, "I want workers at a certain time but not at other times." It generally does not reflect the employee's choice that, "I would like to work these particular hours and not these particular hours."

PN909

Yes, so are you aware that the evidence in this case says that the overwhelming majority of requests by employees are agreed to by employers?‑‑‑I am aware of the evidence that has been presented by your organisation and the others about the data gathered by the Fair Work Commission's manager or ‑ ‑ ‑

PN910

Well, I haven't put any evidence on about that?‑‑‑No, I'm sorry, I've forgotten which group it was. At any rate, the data that's collected by the Fair Work Commission manager on the applications that have been made under the section 65, I gather, so I'm familiar with that.

*** JAMES STANFORD XXN MR WARD

PN911

So you understand that the overwhelming majority of requests are granted in this country?‑‑‑The majority of the formal requests submitted through that process, if I interpreted the data in the submission correctly, have been.

PN912

You don't believe that's the case for informal requests? You don't know the answer to that?‑‑‑I don't ‑ I'm outside of my expertise on that one.

PN913

Okay. Well, I won't press you, that's fine. That's fine. So if you believe in reciprocity of decision making power I take it that you wouldn't want to see a world where the employer dictates, and you wouldn't want to see a world where the employee dictates. You'd want something in the middle?‑‑‑Reciprocity, in my judgement, would be one where employees have some meaningful power to ensure that their work arrangements are a good fit with their other responsibilities in life.

PN914

Thank you. Let me ask the question again. Given your concept of reciprocity of decision making power, you wouldn't agree to a system where the employer dictates? That's true, isn't it? If you want to say you would agree to that please tell me?‑‑‑I'm not suggesting an arrangement where either side dictates.

PN915

Thank you. You understand that's what the ACTU are claiming, don't you?‑‑‑I don't know if I would interpret the claim in that particular terminology.

PN916

It's probably outside your area of expertise I imagine. You seem to have a fair amount of knowledge of the international experience?‑‑‑Yes.

PN917

Perhaps you could help me. Is there any country that you have studied where the employee gets to dictate the days they work and the hours they work and the nature of their contract irrespective of the views of the employer?

PN918

MS BURKE: I object to the question. There's about three questions in one there. It is important to distinguish between the two, or the three.

PN919

JUSTICE ROSS: Take them one at a time.

PN920

MR WARD: I will, your Honour. So can I ask you to reflect on your international experience. Is there any country where you're aware where the employee can dictate to the employer which days of the week they work irrespective of the views of the employer?‑‑‑I haven't studied that question in international regulatory practice, so I can't answer.

*** JAMES STANFORD XXN MR WARD

PN921

Well, you might say the same answer to the rest, but we will do them anyway. Based on your knowledge of other countries is there any country where the employee can dictate to the employer which hours of the day they work irrespective of the employer's views?‑‑‑I haven't studied that question internationally so I can't answer that question.

PN922

I am really struggling with your idea about when it might be reasonable for a business to refuse a request. So can I deal with this by way of an example, because I would really like to see if we can find some common ground. Can I give you a very specific example, and I will take you through it, and tell me whether or not you think the employer refusing is reasonable or not. You have a very strong knowledge of small business in this country, you say so in your report?‑‑‑I don't think I said I have a strong knowledge of small business. We reviewed several studies related to small business and presented data regarding the use by small businesses of part-time and non-standard forms of employment.

PN923

But you have some reasonable knowledge of small business?‑‑‑I studied those aspects of small businesses.

PN924

So you don't have very much knowledge at all?‑‑‑I'm a labour economist so I've studied employment patterns and employment data including the data that is provided regarding small businesses. I'm not an expert in small business management.

PN925

Can you just assume for a minute that I run a shop. It's a retail shop, I have got four employees. Let's say you're one of them, and you conditionally have been rostered – I will withdraw that immediately, it can't be you, can it. This employee is a female. They're rostered to work Monday to Thursday between 9 am and 1 o'clock. That's how their normal roster works.

PN926

I've got a long term employee who does the 1 o'clock to 5 o'clock roster, part-time employee. The female employee comes to me and says, "Look, after I have my baby I want to come back to work. Firstly I don't want to work Monday, I want to have it off because I can't get child care for that day. And I want to come back and work Tuesday to Thursday and change my hours from 9 until 1 to 10 to 2." That's the request. I'm a good employer, I'm a rational employer, I'm well informed, I go and talk to my other employees. Luckily one of them says, "I'll work the Monday, I'll cover the Monday." My employee who always works 1 o'clock until 5 in the afternoon says, "I don't want to change my roster. I'm looking after my grandmother in the morning, I don't want to change."

*** JAMES STANFORD XXN MR WARD

PN927

The employer is confronted by this situation; (1) it has to find somebody to work the hour between 9 and 10 in the morning three days a week. It can either, (a) the owner can do that, but the owner is probably already working 70 hours a week; (b) it could try and find a casual employee to come in for one hour, but of course under the shops award in this country, the retail award is a three hour minimum engagement, so I'd have to pay that person three hours for the one hour even if I can find them. That's difficulty number 1 for me as the shopkeeper.

PN928

Difficulty number 2 is that because your hours are now pushed back from 1 o'clock finish to a 2 o'clock finish I'm going to have a period of time on three days a week where I've got more staff than I actually need. I only need one in the afternoon and that person's there. So I have got these problems to deal with. I've got to find an employee for one hour a day for three days a week, but pay them for three hours, and I'm going to be overstaffed between 1 and 2 in the afternoon. I only need one there but I will end up having two there. Do you think it would be reasonable for me as the shop owner to decline that request?‑‑‑I hate to say this given the detail you put into the question, but I don't feel competent to answer this question. I was assigned a very specific topic to investigate with my expert report and that does not cover this scenario.

PN929

MR WARD: I am very comfortable that you said you don't feel competent to answer that question?‑‑‑Thank you.

PN930

No further questions.

PN931

JUSTICE ROSS: Any re-examination?

PN932

MS BURKE: No re-examination. Thank you.

PN933

JUSTICE ROSS: Thank you very much for your testimony, Dr Stanford, you're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [3.28 PM]

PN934

MS BURKE: Your Honour, that's the evidence of the witnesses scheduled for today. I do have some updates for tomorrow's timetable.

PN935

JUSTICE ROSS: Yes. I should say there's not much – I think it was we had standby lay witnesses, but to the extent they have to be contacted by telephone that's not going to work.

*** JAMES STANFORD XXN MR WARD

PN936

MS BURKE: No. The two witnesses we had on standby were Monica Balla who I informed the Bench this morning isn't required for cross-examination, and Michelle Oberon who is also now not required for cross-examination.

PN937

JUSTICE ROSS: I see. So 9 o'clock is out?

PN938

MS BURKE: Nine o'clock is out.

PN939

JUSTICE ROSS: So we are starting at 9.30.

PN940

MS BURKE: At 9.

PN941

JUSTICE ROSS: Ms Burke, we will take a vote after.

PN942

MS BURKE: The current timetable then without any adjustments has a witness at 9.30, at 10 o'clock. Katie Routley now is unable to give evidence by video link, she will have to give evidence by phone. She has a child with a twisted ankle, so she can't go to the Commission unfortunately. I suggested that she bring the child, I was shouted down universally about that.

PN943

JUSTICE ROSS: Yes.

PN944

MS BURKE: We have got Sasha Hammersley at 11 o'clock and she is driving to Launceston which is a three hour drive, so there's not a lot of room to move her any earlier.

PN945

JUSTICE ROSS: No.

PN946

MS BURKE: Jessica Van der Hill is at 12 o'clock. We can make enquiries about moving her to a more convenient time. Ashley Sercso by video link in Darwin at 2 o'clock. She can't be moved again, she's got an obstetrician appointment in the morning. The time difference with Darwin is challenging, et cetera. We can make - - -

PN947

JUSTICE ROSS: What about the other two at 4.15 and 5.15, whether Ms O'Brien – I might be wrong about this, but the 11 o'clock – has the timing been set having regard to the witness availability or the duration of cross-examination?

PN948

MS BURKE: It was a bit of both, your Honour. What I was going to propose was that we could – and again I am conscious that I'm seeking an indulgence and this will go to a vote – we were going to enquire as to whether Ms Joan Bodalla could come in at 10.30 or 11.30 or 12.30 or 2.30, any of those times, start at 10 and then move Mr Lapin and Ms O'Brien to go after the last witness, whether she's at half past 2 or 3 o'clock.

PN949

JUSTICE ROSS: Yes.

PN950

MS BURKE: If the members of the Full Bench are content with that we can make those phone calls and make those further arrangements and send through an email about what the revised order of witnesses is. There is also the issue with Mr Lapin - I will need to take him to some spreadsheets in cross-examination. I have spoken to your Honour's associate about that, and I may just need ten or so minutes to set up, before that witness gets into the witness box. So I'm familiar with the setup in Melbourne, but not in this courtroom, for those sorts of mechanics.

PN951

JUSTICE ROSS: All right.

PN952

MS BURKE: Then, as for Thursday, the ACTU has confirmed it no longer requires Ms Clever for cross-examination. So what I understand my friends and I will do, will be to seek - again, subject to the vote - to have Ms Tock give evidence at 10 o'clock and Mr Hoang shortly - at the end of her evidence, bearing in mind, of course, what I said at the start of the day, about the preference being for him to give evidence from Sydney, because again, he is a survey witness. I do want to take him to spreadsheets, and I just think, on the video link, and particularly given the events of today, it's a pretty stark illustration of the challenges that can be faced in that regard.

PN953

JUSTICE ROSS: Yes, all right. Does anyone else want to say anything about that?

PN954

MR WARD: We've all voted in favour of that adjustment, your Honour, if it's of any value.

PN955

JUSTICE ROSS: If only your vote carried (indistinct).

PN956

MR WARD: I realise that.

PN957

JUSTICE ROSS: So the proposition, broadly, is, 9.30 tomorrow, and you'll advise us how you go with the juggling of the witnesses that are available. Then, on Thursday, we start at 10, with Julie Tock, and then go to Mr Hoang at 12, or shortly after.

PN958

MS BURKE: The proposition for tomorrow is, if we can arrange it, it would be about ten to four, moving Ms Vidala into one of the many slots, so that we have less gaps in between the other lay witnesses. Otherwise, there will be a period of the rolling adjournments.

PN959

JUSTICE ROSS: All right.

PN960

MS BURKE: And then, on Thursday, Ms Tock at 10, and Mr Hoang at 11. I won't be more than an hour, and probably less an hour with Ms Tock.

PN961

JUSTICE ROSS: All right. Just give us a minute.

PN962

MS BURKE: Certainly.

PN963

JUSTICE ROSS: That's fine.

PN964

MS BURKE: Thank you.

PN965

JUSTICE ROSS: So we will see you tomorrow at 10, and you'll advise us of where you get to with the order (indistinct).

PN966

MS BURKE: Certainly. Thank you very much, your Honour.

PN967

JUSTICE ROSS: All right. Nothing further? Good.

ADJOURNED UNTIL WEDNESDAY, 13 DECEMBER 2017 [3.33 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

SIOBHAN EILEEN AUSTEN, AFFIRMED..................................................... PN154

EXAMINATION-IN-CHIEF BY MS BURKE.................................................. PN154

EXHIBIT #ACTU1 STATEMENT OF SIOBHAN AUSTEN DATED 05/05/2017 WITH ANNEXURES........................................................................................................ PN168

EXHIBIT #ACTU2 STATEMENT OF SIOBHAN AUSTEN DATED 27/11/2017 PN176

CROSS-EXAMINATION BY MR WARD........................................................ PN183

CROSS-EXAMINATION BY MR FERGUSON.............................................. PN344

THE WITNESS WITHDREW............................................................................ PN422

SIOBHAN EILEEN AUSTEN, RECALLED ON FORMER AFFIRMATION PN422

RE-EXAMINATION BY MS BURKE............................................................... PN422

THE WITNESS WITHDREW............................................................................ PN440

IAN GEOFFREY WATSON, AFFIRMED....................................................... PN445

EXAMINATION-IN-CHIEF BY MS BURKE.................................................. PN445

EXHIBIT #ACTU3 STATEMENT OF ANNEXURES TO STATEMENT OF DR IAN WATSON............................................................................................................... PN467

EXHIBIT #ACTU4 STATEMENT OF DR IAN WATSON DATED 27/11/2017 AND ATTACHED LETTER FROM ACTU DATED 20/11/2017............................ PN474

CROSS-EXAMINATION BY MR WARD........................................................ PN475

THE WITNESS WITHDREW............................................................................ PN652

JILL MURRAY, AFFIRMED............................................................................. PN662

EXAMINATION-IN-CHIEF BY MS BURKE.................................................. PN662

EXHIBIT #ACTU5 STATEMENT OF DR JILL MURRAY, DATED 04/05/17 PN679

CROSS-EXAMINATION BY MR WARD........................................................ PN682

THE WITNESS WITHDREW............................................................................ PN783

JAMES STANFORD, AFFIRMED.................................................................... PN793

EXAMINATION-IN-CHIEF BY MS BURKE.................................................. PN793

EXHIBIT #ACTU6 STATEMENT OF DR JAMES STANFORD, WITH ANNEXURES, DATED 04/09/17.................................................................................................... PN805

CROSS-EXAMINATION BY MR FERGUSON.............................................. PN808

CROSS-EXAMINATION BY MR WARD........................................................ PN875

THE WITNESS WITHDREW............................................................................ PN933