[2018] FWCFB 1692

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.156–4 yearly review of modern awards

Family Friendly Working Arrangements
(AM2015/2)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOOLEY
COMMISSIONER SPENCER

MELBOURNE, 26 MARCH 2018

4 yearly review – Family friendly working arrangements – claim by ACTU – s.65 Fair Work Act 2009 – right to request – ACTU claim rejected – provisional model term proposed.

Chapters	Page	Paragraph
1.	Introduction 1.1 Background to the Claim 1.2 The Process	6	[1] [14]
2.	Legislative Framework 2.1 The Review 2.2 Existing provisions relevant to family friendly working arrangements 2.2.1 Section 65 2.2.2 Other statutory provisions relevant to family friendly working arrangements	14	[36] [71] [82]
3.	Jurisdictional Objections 3.1 Introduction 3.2 The Submissions 3.2.1 ACTU submissions 3.2.2 ACCI submissions 3.2.3 Ai Group submissions 3.3 Consideration	29	[97] [103] [112] [123] [132]
4.	Merit Submissions 4.1 ACTU submissions 4.2 ACCI submissions 4.3 Ai Group submissions 4.4 Other Employer party submissions	46	[165] [166] [169] [170]
5.	The Evidence 5.1 Overview of labour force data 5.2 Survey Evidence 5.2.1 Joint Employer Survey 5.2.2 VACC Survey 5.3 Witness Evidence 5.3.1 Expert evidence 5.3.2 Lay witness evidence 5.4 Findings	51	[176] [222] [234] [241] [355] [391]
6.	Conclusion and Next Steps	104	[393]

ATTACHMENTS	Page
Attachment A – List of Statements issued	126
Attachment B – List of Submissions filed	127
Attachment C – Research Reference List	129
Attachment D – Witness Statements	144
Attachment E – List of Cases	146
Attachment F – Agreed matters	148

ABBREVIATIONS

Act	Fair Work Act 2009 (Cth)
ABI	Australian Business Industrial and the New South Wales Business Chamber
ABS	Australian Bureau of Statistics
ACCI	Australian Chamber of Commerce and Industry
ACTU	Australian Council of Trade Unions
AFPCS	Australian Fair Pay and Conditions Standard
AHRC	Australian Human Rights Commission
AI Act	Acts Interpretation Act 1901 (Cth)
Ai Group	Australian Industry Group
AIRC	Australian Industrial Relations Commission
Austen Report	Expert report of Professor Siobhan Austen
AWALI	Australian Work and Life Index
AWRS	Australian Workplace Relations Study
Claim	The award term sought by the ACTU reproduced at paragraph [10] of this decision
CMIEG	Coal Mining Industry Employer Group
Commission	Fair Work Commission
EM	Explanatory Memorandum to the Fair Work Bill 2008
FFWH	Family Friendly Working Hours, as defined in the Claim
General Manager’s 2015 Report	General Manager’s report into the operation of the provisions of the National Employment Standards relating to requests for flexible working arrangements and extensions of unpaid parental leave under s.653 of the Fair Work Act 2009 (Cth)
HILDA	Household, Income and Labour Dynamics in Australia
IFA	Individual flexibility arrangement
Murray Report	Expert report of Dr Jill Murray
NatRoad	National Road Transport Association
NES	National Employment Standards
NFF	National Farmers’ Federation
NRA	National Retail Association
Panel	Expert Review Panel
PHIEA	Private Hospital Industry Employer Associations
Review	4 yearly review of modern awards
Stanford Report	Expert report of Dr James Stanford
Supplementary EM	Supplementary Explanatory Memorandum to the Fair Work Bill 2008
Toth Report	Expert report of Ms Julie Toth
VACC	Victorian Automobile Chamber of Commerce
Watson Report	Expert report of Dr Ian Watson
WR Act	Workplace Relations Act 1996 (Cth)

List of charts

Chart 1	Labour force participation by gender by age
Chart 2	Female employment rates by number of children under the age of 5 years, 2001-2014
Chart 3	Part-time employment share
Chart 4	Employment by gender and employment status, Australia, 2000-2017
Chart 5	Part-time employment share by age and gender
Chart 6	Reasons why people work part-time
Chart 7	Reasons why people work part-time by age and gender
Chart 8	Average hours worked by women by presence of dependent children, Australia, 2001-2015, percentages
Chart 9	Grouped hours worked by women by presence of dependent children, Australia, 2001-2015
Chart 10	Grouped hours worked by women by presence of children aged 0 to 4 years, Australia, 2001-2015
Chart 11	Women’s employment transitions, 2001-2015, per cent of all transitions
Chart 12	Employment transitions by new mothers, 2001-2015, per cent of all transitions
Chart 13	Employment transitions across household situations associated with parenthood, 2001-2015, per cent of all transitions, by gender
Chart 14	Occupational transitions, full-time and part-time employment, women, 2001-2015
Chart 15	Contract type changes, full and part-time employment by women, 2001-2015, remained with the same employer
Chart 16	Contract type changes, full and part-time employment by women, 2001-2015, changed employers
Chart 17	Average weekly total cash earnings by age group and gender, full-time employees, May 2014
Chart 18	Ratio to male and female average superannuation account balances, as measured in member contribution statements, 2013-2014
Chart 19	Work-life index scores by request outcome, 2014
Chart 20	Work-life index scores by request outcome, 2012

List of tables

Table 1	Previous and current employment situation, employees with and without dependent children, Australia, between 2005 and 2015, percentages
Table 2	Quantitative results from General Manager’s 2015 Report
Table 3	Proportion requesting flexibility by gender and whether content with current arrangements (percentage of all employees) 2009, 2012 and 2014

1. Introduction

1.1 Background to the Claim

[1] Section 156 of the Fair Work Act 2009 (Cth) (the Act) provides that the Fair Work Commission (the Commission) must conduct a review of all modern awards every four years (the Review). We deal with the legislative framework pertaining to the Review in Chapter 2.

[2] As part of the Review, the Australian Council of Trade Unions (ACTU) made an initial claim to vary modern awards to provide for the following:

• requests for family friendly work arrangements during pregnancy or upon return to work from parental or adoption leave;

• a right for an employee to return to their substantive position and work arrangements held prior to returning to work from parental or adoption leave; and

• access to personal leave to attend pregnancy, ante-natal and/or adoption related appointments and extension of unpaid parental or adoption leave.

[3] The Australian Chamber of Commerce and Industry (ACCI) and the Australian Industry Group (Ai Group) raised a number of jurisdictional objections to the ACTU’s proposed clause. ACCI’s submissions were supported by the Housing Industry Association 1 and the Australian Federation of Employers and Industries. The National Farmers’ Federation (NFF) objected to an aspect of the claim on the ground that it was directly inconsistent with s.65(5) of the Act.2

[4] On 1 December 2014, the Commission published a Statement confirming that jurisdictional objections advanced by the Employer parties would be dealt with as a threshold issue. 3 Directions issued on 23 February 2015 set out the following four preliminary jurisdictional issues identified by Ai Group and ACCI:

‘(i) Are any elements of the claims of the ACTU or individual unions inconsistent with Part 2-1 or Part 2-2 of the Fair Work Act 2009?

(ii) Do any elements of the claims of the ACTU or individual unions require terms that are not permitted to be included in a modern award under Part 2-3 of the Fair Work Act 2009?

(iii) Are any elements of the claims of the ACTU or individual unions inconsistent with Part 6-2 of the Fair Work Act 2009?

(iv) Do any elements of the claims of the ACTU or individual unions purport to give the Commission powers which it does not have under the Fair Work Act 2009?’ 4

[5] The Full Bench constituted to deal with the jurisdictional objections issued a decision on 22 October 2015 5 and observed that:

‘[w]here a claim is sought to be struck out on jurisdictional grounds, it must be demonstrated that the existence of jurisdiction to grant the claim is inarguable and that there is no order that could be made in favour of the applicant which would be within jurisdiction’. 6

[6] The Full Bench held that as the Employer parties did not object to the whole of the amended ACTU claim, nor contend that there was no modern award term that the Commission could make dealing with the subject of the claim, the Full Bench was not satisfied that they had discharged the ‘heavy burden’ of demonstrating that the ACTU’s claim was without legal foundation. The Full Bench confirmed that the matter would continue to a final hearing.

[7] In relation to the ACTU’s proposed clause, the Full Bench made the following observations:

‘The employer parties’ challenge to the jurisdictional foundation for clause X.1 of the ACTU’s proposed Parental Leave clause was, we acknowledge, a substantial one. However we are likewise not satisfied at this preliminary juncture, without having heard any evidence, that clause X.1 is clearly beyond power. Firstly, we consider that it is well arguable that the clause is authorised by s.139(1)(b) as a term which is about “regular part-time employment … and the facilitation of flexible working arrangements, particularly for employees with family responsibilities”.

Secondly, we consider that it is reasonably arguable that clause X.1 is supplementary to the right in s.84, in that it builds upon the employee’s right to return to work after taking parental leave to the employee’s pre-parental leave position or another available position for which the employee is qualified and suited and which is nearest in status and pay to the pre-parental leave position by adding a right to return to such a position on part-time hours or reduced hours. We are not persuaded at this point that the proposed clause would be detrimental to employees when compared with the NES in any respect, with the result that we consider that it is reasonably arguable that the clause is authorised by s.55(4).

Thirdly, we consider that it is reasonably arguable that the effect of s.55(7) is that a modern award term which, under s.55(4), is supplementary to a NES provision and does not result in any detriment to an employee when compared to the NES as a whole, does not contravene s.55(1) even if it excludes some other provision of the NES. If so, clause X.1 would be a permissible modern award term even if it excludes s.65(5).

Finally and in any event, we consider that the evidence may potentially bear upon the question of whether clause X.1 would, in practical terms, operate to exclude s.65(5). For example, the evidence may demonstrate the extent to which employees returning from parental leave, who would be in a position to take advantage of the proposed right in clause X.1, currently make requests for alternative working arrangements of the type contemplated by clause X.1 and thus are subject to the employer’s right to refuse the request on reasonable business grounds. Arguably, any such evidence might go to whether clause X.1 in its operation would result in an outcome whereby s.65(5) was negated.’ 7

[8] Following the jurisdictional decision, the ACTU, ACCI and Ai Group agreed on proposed directions which delayed the hearing of the substantive claim until the second half of 2017. 8

[9] On 29 May 2017, a Statement was issued reconstituting the Full Bench following the resignation of former Vice President Watson. 9 Amended directions were issued on 3 August 2017 extending the timeframe for parties opposing the ACTU’s claim to file submissions in reply and listing the matter for hearing in December 2017.10

[10] The claim lodged by the ACTU has been revised on a number of occasions. The final version of the award term sought by the ACTU is set out below (the Claim):

‘X.1 Family Friendly Working Hours for Parents and Carers

X.1.1 An employee is entitled to Family Friendly Working Hours to accommodate their parenting responsibilities and/or caring responsibilities in accordance with this clause.

X.2 Right to Revert to Former Working Hours

X.2.1 An employee with parenting responsibilities on Family Friendly Working Hours has a right to revert to their former working hours up until the child is school aged; or at a later time by agreement.

X.2.2 An employee with caring responsibilities on Family Friendly Working Hours has a right to revert to their former working hours for a period not exceeding two years from the date of the commencement of the Family Friendly Working Hours; or at a later time by agreement.

X.3 Family Friendly Working Hours arrangement

X.3.1 An employee shall give their employer reasonable notice in writing of their intention to access Family Friendly Working Hours under clause X.1, including at least the following matters:

(a) the period of time that the employee requires Family Friendly Working Hours;

(b) the specific days and hours of work that the employee wishes to work during the Family Friendly Working Hours period;

X.3.2 An employer will implement the Family Friendly Working Hours arrangement provided by the employee under X.3.1, or a variation of the arrangement agreeable to the employee.

X.4 Definitions

X.4.1 An employee has ‘parenting responsibilities’ if the employee has responsibility (whether solely or jointly) for the care of a child of school age or younger.

X.4.2 An employee has ‘caring responsibilities’ if the employee is responsible for providing personal care, support and assistance to another individual who needs it on an ongoing or indefinite basis because that other individual:

(a) has a disability; or

(b) has a medical condition (including a terminal or chronic illness); or

(d) is frail and aged.

X.4.3 ‘Employee’ means a full-time, part-time or casual employee.

X.4.4 ‘Family Friendly Working Hours’ means an employee’s existing position:

X.4.4(a) on a part-time basis if the employee’s existing position is full-time; or

X.4.4(b) on a reduced hours basis, if the employee’s existing position is part-time or casual.

X.4.5 ‘Family Friendly Working Hours arrangement’ means either the written document provided by the employee under clause X.3.1, or an agreed variation of that arrangement recorded in writing and provided to the employee.

X.4.6 ‘Existing position’ means the position, including status, location and remuneration, that the employee held immediately before the commencement of the Family Friendly Working Hours.

X.4.7 ‘Former working hours’ in clauses X.2.1, X.2.2 and X.3.1(c) means the number of hours that the employee worked immediately before the commencement of the Family Friendly Working Hours.

X.5 Replacement Employees

X.5.1 An employee engaged to replace an employee on Family Friendly Working Hours under this clause must be informed of the temporary nature of their engagement.

X.6 Eligibility Requirements

X.6.1 To be entitled to Family Friendly Working Hours under this clause, an employee must:

X.6.1(a) Have completed at least six months continuous service with the employer; and

X.6.1(b) If required by the employer, provide evidence that would satisfy a reasonable person that the employee has parenting responsibilities and/or caring responsibilities that meet the relevant definition in clause X.4. Such evidence may include a document or certificate from a health professional/practitioner or relevant services provider, or a statutory declaration.

X.6.2 An employee is not required to exhaust any existing leave entitlements before being entitled to Family Friendly Working Hours under this clause.’

[11] A list of Statements relating to the proceedings is at Attachment A. A list of submissions filed is at Attachment B.

[12] The Research Reference List 11 at Attachment C was produced by staff of the Commission. The Research Reference List includes research materials and data sources that parties referred to in their submissions and in the expert reports filed by the parties. It also lists additional material identified by staff of the Commission as relevant to the proceedings and includes reviews of flexible working arrangements and economic outcomes. Interested persons were given an opportunity to comment on the List.

[13] The parties generally agree that the Commission’s task in the Review involves considering whether the Claim:

(a) is prohibited by s.55(1) of the Act;

(b) is allowable within the scope of ss.55(4), 139 and/or 142 of the Act;

(c) will result in modern awards that include terms only to the extent necessary to achieve the modern awards objective (s.138); and

(d) is supported by probative evidence such as to warrant the Full Bench exercising its discretion to vary the relevant modern awards.

1.2 The Process

[14] The matter was listed for Mention before Deputy President Gooley on 28 November 2017. Following the Mention, Directions were issued confirming that the matter would be listed on 12, 13 and 14 December in Sydney and 21 and 22 December 2017 in Melbourne. Parties were also directed to file closing written submissions by noon on 19 December 2017.

[15] The evidence was heard over three days from 12 to 14 December 2017. Closing submissions and the further cross-examination of Ms Toth occurred on 21 December 2017. Transcript is available via the following links to the Commission’s website:

• 12 December 2017;

• 13 December 2017;

• 14 December 2017; and

• 21 December 2017.

[16] Final written submissions were filed on 19 December 2017 in relation to the evidence in the proceedings and the findings to be drawn from the evidence, by:

• ACTU;

• Ai Group;

• ACCI; and

• National Retail Association (NRA).

[17] On 12 January 2018, we issued a Statement 12 together with the following three background papers:

• Background paper 1: identifying the uncontested and contested issues in the proceedings and seeking to summarise the parties’ submissions;

• Background paper 2: outlining the statutory provisions in respect of flexible working arrangements in OECD countries; and

• Background paper 3: outlining the United Kingdom (UK) system concerning flexible working arrangements.

[18] Interested parties were given the opportunity to make submissions in relation to Background paper 1, addressing the following matters:

(i) the draft summary of the Commission’s approach to the Review (see Attachment C to Background paper 1);

(ii) the accuracy of the summaries of the parties’ submissions on jurisdiction and merit;

(iii) the list of witnesses (see Attachment D to Background paper 1) and the references to the parties’ submissions on the evidence; and

(iv) any other corrections or additions to Background paper 1.

[19] Submissions were received from the following parties:

• ACTU;

• Ai Group;

• ACCI; and

• NRA.

[20] Submissions in reply were received from ACCI.

Background paper 1

[21] As mentioned above, Background paper 1 outlined the process of the proceedings and summarised the submissions of the parties in relation to both jurisdiction and the merits of the Claim. The paper also included a list of witnesses who gave evidence in the proceedings.

[22] In relation to Background paper 1, Ai Group submitted that it did not have any concerns with its contents 13 and the NRA confirmed that the paper accurately reflected its position.14

[23] The ACTU confirmed that the paper accurately summarised its position, but noted that the witness statement of Ms Julia Johnson (which appeared in the list of witnesses) was withdrawn on 13 December 2017. 15 ACCI did not make any comment on the summary of submissions but noted that Mr Jae Fraser, a witness for ACCI, had been incorrectly listed as an ACTU lay witness, Ms Lauren Cleaver’s first name was incorrectly recorded and Mr Mark Rizzardo’s statement had been omitted from the summary.16 All of the suggested corrections have been made. The parties’ submissions in relation to jurisdiction and the merits are set out in Chapters 3 and 4 respectively of this decision. The list of witness statements is at Attachment D.

Background paper 2

[24] Background paper 2 provided information on statutory rights and rights to request reduced hours arrangements and flexibility in scheduling work hours in OECD countries. It focused on provisions for parents and other carers, but also discussed general flexibility entitlements (i.e. it was not confined to persons with caring responsibilities).

[25] The NRA submitted that the Commission should not place much weight on the statutory or regulatory regimes in other countries and that the Commission’s task is to determine whether the ACTU’s proposed clause, if inserted into modern awards, would allow those awards to better meet the modern awards objective. 17

[26] ACCI submitted that there is a wide divergence of economic, industrial, social and legislative conditions pertaining to the countries discussed in the paper and Australia, which relate directly to the issue of flexibility in employment for parents and carers. 18 ACCI also submitted that the most obvious variable is the statutory scheme under which industrial laws can be developed and noted that many of the flexible work systems examined in Background paper 2 would not be permissible under the Act.19

[27] Ai Group submitted that the consideration of access to flexible working arrangements in other countries is of limited relevance to the task before the Commission, which is to determine whether the provision proposed by the ACTU is necessary to ensure that each of the modern awards it seeks to have varied provides a fair and relevant minimum safety net. 20 Ai Group submitted that it would be misplaced to rely on international material because there is no evidence before the Commission about the broader context in which the statutory frameworks summarised in the paper operate, including: the framework within which employment relationships are regulated; the definitions of ‘full-time’ and ‘part-time’ employment; other forms of flexibility available to employees; protections against unfair dismissal and discrimination; restrictions on an employer’s ability to change an employee’s hours of work; costs associated with engaging new employees, and the practical operation of the schemes.21

[28] The ACTU submitted that two conclusions could be drawn from Background paper 2. First, that s.65 of the Act is arguably one of the weaker provisions when compared to the provisions in place in a number of the other jurisdictions considered. Second, that the position taken by the ACTU in this application is consistent with frameworks already operating in other jurisdictions and therefore is not ‘unique’, as had been suggested by ACCI in its closing submission of 19 December 2017. 22 The ACTU acknowledged that there is some variation in the frameworks considered in the paper, but noted that there are some core features common to a number of the frameworks considered which closely reflect the ACTU’s position in the present matter. These include: a right to reduced hours rather than a right to request reduced hours; access to dispute settlement; a right to revert to former hours, and a qualifying period of less than 12 months’ service.23 The ACTU also noted that where refusal is permitted, many of the countries considered in the paper adopt a stricter formulation than the reasonable business grounds test in s.65 of the Act, including: ‘serious operational reasons’; ‘harmful consequences for the company’s operation’, and ‘urgent operational reasons’, amongst others.24

[29] In response to the ACTU’s submissions, ACCI submitted that a finding relating to a comparison of the provisions of the Act and other jurisdictions appears to have a very limited bearing to the question of whether the ACTU has made out its case under the relevant principles of the Review. 25 ACCI rejected the ACTU’s submission that the schemes examined in Background paper 2 show that the Claim is not unique. ACCI submitted that the ability of an employee to unilaterally determine their hours as under the Claim does appear to be unique in the industrial world.26 ACCI submitted further that the comparisons made by the ACTU do not demonstrate any insufficiency in the Australian safety net.27

Background paper 3

[30] Background paper 3 considered the framework for flexible working arrangements currently in place in the UK.

[31] The NRA repeated the submissions it made in relation to Background paper 2. 28

[32] Ai Group submitted that the observations made in respect of Background paper 2 are also relevant in relation to Background paper 3 29, and also submitted that the UK system influenced the establishment of the right to request in s.65 of the Act. The success of the UK system was expressly noted in the 2008 National Employment Standards (NES) Exposure Draft Discussion Paper as a reason for adopting the Australian system. Ai Group submitted that the Claim would represent a marked departure from the approach intended by the legislature.30

[33] ACCI repeated the submissions made in relation to Background paper 2. 31 ACCI noted that, in contrast to the position in the UK, the provisions of the Act mean that the Commission is not permitted to introduce a right to review a decision to refuse a s.65 request.32

[34] The ACTU noted that in the UK, all employees have a right to request flexibility if they have completed at least 26 weeks of service and that the request can only be rejected on one or more specified grounds. An employee may then appeal if they believe that an employer’s decision was based on incorrect facts or that the notification did not meet requirements. The ACTU submitted that it is clear from the decisions considered in the paper that the UK tribunal lacks the power to consider whether an employer has acted fairly and reasonably in refusing an employee’s request for flexible working arrangements. 33

[35] We released Background papers 2 and 3 to illustrate the range of schemes in place to address requests for flexible working arrangements. However, we accept the criticism advanced by the Employer parties that there is no evidence before us about the social and legal context in which the various schemes operate in other countries. Accordingly, the material in Background paper 2 and 3 is of limited relevance to our consideration of the Claim, but it is of greater relevance to the general issues associated with facilitating family friendly working arrangements.

2. Legislative Framework

2.1 The Review

[36] Section 156 of the Act requires the Commission to conduct a 4 yearly review of modern awards as soon as practicable after 1 January 2014.

[37] Subsection 156(2) provides that the Commission must review all modern awards and may, among other things, make determinations varying modern awards. In this context ‘review’ has its ordinary and natural meaning of ‘survey, inspect, re-examine or look back upon’. 34

[38] Section 156 clearly delineates what must be done in a Review, what must not be done and what may be done. Further, where the legislative intent of the section is to qualify a discretion this is done expressly, as in s.156(3) - the Commission may vary modern award minimum wages ‘only if’ it is satisfied that the variation is justified by work value reasons. This may be contrasted with the discretion in s.156(2)(b)(i) to make determinations varying modern awards in a Review, which is expressed in general, unqualified, terms.

[39] If a power to decide is conferred by a statute and the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made, a general discretion confined only by the scope and purposes of the legislation will ordinarily be implied. 35 However, a number of provisions of the Act which are relevant to the Review operate to constrain the breadth of the discretion in s.156(2)(b)(i). In particular, the Review function is in Part 2-3 of the Act and hence involves the performance or exercise of the Commission’s ‘modern award powers’ (see s.134(2)(a)). It follows that the ‘modern awards objective’ in s.134 applies to the Review. Section 138 (achieving the modern awards objective) also applies.

[40] A range of other provisions of the Act are relevant to the Review: s.3 (object of the Act); s.55 (interaction with the NES); Part 2-2 (the NES); s.135 (special provisions relating to modern award minimum wages); Divisions 3 (terms of modern awards) and 6 (general provisions relating to modern award powers) of Part 2-3; s.284 (the minimum wages objective); s.577 (performance of functions etc by the Commission); s.578 (matters the Commission must take into account in performing functions etc), and Division 3 of Part 5-1 (conduct of matters before the Commission).

[41] Any variation of a modern award arising from the Review must comply with the requirements of the Act relating to the content of modern awards. Division 3 of Part 2-3 deals with the terms of modern awards, in particular terms that may or must be included in modern awards, and terms that must not be included in modern awards. Division 3 includes s.138. This Division also prohibits award terms that contravene s.55 (which deals with the interaction between the NES and modern awards). These provisions, in an appropriate case, may operate to constrain the discretion in s.156(2)(b)(i). 36

[42] Division 6 of Part 2-3 also contains specific provisions relevant to the exercise of modern award powers which apply to the Review. If the Commission were to make a modern award, or change the coverage of an existing modern award in the Review, then the requirements in s.163 would need to be satisfied. Sections 165 and 166 deal with when variation determinations come into operation. Variation determinations arising from the Review will generally operate prospectively, unless the variation is made under s.160 (which deals with variations to remove ambiguities or uncertainties, or to correct errors: see ss.165(2)(a) and 166(3)(a)) and the Commission is satisfied that there are exceptional circumstances that justify retrospectivity (ss.165(2)(b) and 166(3)(b)).

[43] The general provisions relating to the performance of the Commission’s functions in Division 2 of Part 5-1 of the Act also apply to the Review. Sections 577 and 578 are particularly relevant in this regard. Section 577 states:

‘577 Performance of functions etc by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that FWC performs its functions and exercises its powers efficiently etc (see section 581).’

[44] Section 578 states:

‘578 Matters the FWC must take into account in performing functions etc

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

[45] As stated in s.578(a), in performing functions and exercising powers under a part of the Act (including the Review function under Part 2-3) the Commission must take into account the objects of the Act and any particular objects of the relevant part. The object of Part 2-3 is expressed in s.134 (the modern awards objective). The object of the Act is set out in s.3, as follows:

‘3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) acknowledging the special circumstances of small and medium-sized businesses.’

[46] In conducting the Review the Commission is able to exercise its usual procedural powers, contained in Division 3 of Part 5-1 of the Act. Importantly, the Commission is not bound by the rules of evidence and procedure (s.591) and may inform itself in relation to any matter before it in such manner as it considers appropriate (s.590(1)).

[47] Section 156 imposes an obligation on the Commission to review all modern awards and each modern award must be reviewed in its own right. The requirement in s.156(5) to review each modern award ‘in its own right’, is intended to ensure that the Review is conducted ‘by reference to the particular terms and the particular operation of each particular award rather than by a global assessment based upon generally applicable considerations’. 37 However, while the review of each modern award must focus on the particular terms and operation of the particular award, this does not mean that the review of a modern award is to be confined to a single holistic assessment of all of its terms.38 Further, s.156(5) provides that the requirement that each modern award be reviewed in its own right does not prevent the Commission from reviewing two or more modern awards at the same time.

[48] While s.156(5) does not confine the review of a modern award to a single holistic assessment of all of its terms, we accept ACCI’s submission 39 that such a single holistic assessment of each modern award will be required prior to the conclusion of the Review. Such an assessment will be necessary so that each modern award is reviewed, in its own right, to ensure that it achieves the modern awards objective and only includes terms to the extent necessary to achieve that objective.

[49] In CFMEU v Anglo American Metallurgical Coal Pty Ltd (Anglo American) 40 the Full Court of the Federal Court discussed the nature of the Commission’s task in conducting the Review:

‘The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 – terms may and must be included only to the extent necessary to achieve such an objective.

Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award [sic] objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.’ 41

[50] The Review is to be distinguished from inter partes proceedings. The Review is conducted on the Commission’s own motion and is not dependent upon an application by an interested party. Nor is the Commission constrained by the terms of a particular application. 42 The Commission is not required to make a decision in the terms applied for (s.599) and, in the Review, may vary a modern award in whatever terms it considers appropriate, subject to its obligation to accord interested parties procedural fairness and the application of relevant statutory provisions as outlined above.

[51] In 4 Yearly Review of Modern Awards – Penalty Rates – Hospitality and Retail Sectors 43 the Full Bench summarised the general propositions applying to the Commission’s task in the Review, as follows:

‘1. The Commission’s task in the Review is to determine whether a particular modern award achieves the modern awards objective. If a modern award is not achieving the modern awards objective then it is to be varied such that it only includes terms that are ‘necessary to achieve the modern awards objective’ (s.138). In such circumstances regard may be had to the terms of any proposed variation, but the focal point of the Commission’s consideration is upon the terms of the modern award, as varied.

2. Variations to modern awards must be justified on their merits. The extent of the merit argument required will depend on the circumstances. Some proposed changes are obvious as a matter of industrial merit and in such circumstances it is unnecessary to advance probative evidence in support of the proposed variation.Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence.

3. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. For example, the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time it was made. The particular context in which those decisions were made will also need to be considered.

4. The particular context may be a cogent reason for not following a previous Full Bench decision, for example:

• the legislative context which pertained at that time may be materially different from the FW Act;

• the extent to which the relevant issue was contested and, in particular, the extent of the evidence and submissions put in the previous proceeding will bear on the weight to be accorded to the previous decision; or

• the extent of the previous Full Bench’s consideration of the contested issue. The absence of detailed reasons in a previous decision may be a factor in considering the weight to be accorded to the decision.’ 44

[References omitted]

[52] We now turn to the relevance of the ‘modern awards objective’ to the Review.

[53] The modern awards objective is set out in s.134 of the Act:

‘134 The modern awards objective

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and

(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).’

[54] The modern awards objective is to ‘ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in ss.134(1)(a) to (h) (the s.134 considerations). The obligation to take into account the s.134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. 45 No particular primacy is attached to any of the s.134 considerations46 and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.

[55] Section 138 of the Act emphasises the importance of the modern awards objective:

‘138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.’

[56] To comply with s.138, the terms included in modern awards must be ‘necessary to achieve the modern awards objective’.

[57] In Shop, Distributive and Allied Employees Association v National Retail Association (No.2) 47 Tracey J considered what it meant for the Commission to be satisfied that making a determination varying a modern award (outside a 4 yearly review) was ‘necessary to achieve the modern awards objective’ for the purposes of s.157(1). His Honour held:

‘The statutory foundation for the exercise of FWA’s power to vary modern awards is to be found in s 157(1) of the Act. The power is discretionary in nature. Its exercise is conditioned upon FWA being satisfied that the variation is “necessary” in order “to achieve the modern awards objective”. That objective is very broadly expressed: FWA must “provide a fair and relevant minimum safety net of terms and conditions” which govern employment in various industries. In determining appropriate terms and conditions regard must be had to matters such as the promotion of social inclusion through increased workforce participation and the need to promote flexible working practices.

…

The question under this ground then becomes whether there was material before the Vice President upon which he could reasonably be satisfied that a variation to the Award was necessary, at the time at which it was made, in order to achieve the statutory objective.

…

In reaching my conclusion on this ground I have not overlooked the SDA’s subsidiary contention that a distinction must be drawn between that which is necessary and that which is desirable. That which is necessary must be done. That which is desirable does not carry the same imperative for action. Whilst this distinction may be accepted it must also be acknowledged that reasonable minds may differ as to whether particular action is necessary or merely desirable. It was open to the Vice President to form the opinion that a variation was necessary.’ 48

[58] The above observation – in particular the distinction between that which is ‘necessary’ and that which is merely ‘desirable’ – is apposite to s.138, including the observation that reasonable minds may differ as to whether a particular award term or proposed variation is necessary, as opposed to merely desirable. What is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, taking into account the s.134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence. 49

[59] If a modern award is not achieving the modern awards objective then it is to be varied so that it only includes terms that are ‘necessary to achieve the modern awards objective’. In such circumstances regard may be had to the terms of any proposed variation, but the focal point of the Commission’s consideration is upon the terms of the modern award as proposed to be varied.

[60] The terms of s.138 do not require that the Commission be satisfied that a particular variation proposed by a party is necessary to achieve the modern awards objective.Such an approach would inappropriately focus attention on the particular variation proposed, rather than on the terms of the modern award as proposed to be varied. 50 In 4 Yearly Review of Modern Awards -Preliminary Jurisdictional Issues51 the Full Bench considered what had to be demonstrated by the proponent of an award variation and concluded that:

‘… To comply with s.138 the formulation of terms which must be included in modern award[s] or terms which are permitted to be included in modern awards must be in terms ‘necessary to achieve the modern awards objective’… In the Review the proponent of a variation to a modern award must demonstrate that if the modern award is varied in the manner proposed then it would only include terms to the extent necessary to achieve the modern awards objective.’ 52

[61] It is not necessary to make a finding that the award fails to satisfy one or more of the s.134 considerations. 53 Generally speaking, the s.134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives. As the Full Court of the Federal Court said in National Retail Association v Fair Work Commission:54

‘It is apparent from the terms of s 134(1) that the factors listed in (a) to (h) are broad considerations which the FWC must take into account in considering whether a modern award meets the objective set by s 134(1), that is to say, whether it provides a fair and relevant minimum safety net of terms and conditions. The listed factors do not, in themselves, however, pose any questions or set any standard against which a modern award could be evaluated. Many of them are broad social objectives. What, for example, was the finding called for in relation to the first factor (“relative living standards and the needs of the low paid”)? Furthermore, it was common ground that some of the factors were inapplicable to the SDA’s claim.

The relevant finding the FWC is called upon to make is that the modern award either achieves or does not achieve the modern awards objective. The NRA’s contention that it was necessary for the FWC to have made a finding that the Retail Award failed to satisfy at least one of the s 134(1) factors must be rejected.’ 55

[62] In Anglo American the Court also considered the expression ‘only to the extent necessary to achieve the modern awards objective’ in s.138:

‘… The words “only to the extent necessary” in s 138 emphasise the fact that it is the minimum safety net and minimum wages objective to which the modern awards are directed. Other terms and conditions beyond a minimum are to be the product of enterprise bargaining, and enterprise agreements under Pt 2-4’. 56

[63] The modern awards objective is very broadly expressed 57 and the matters which may be taken into account are not confined to the s.134 considerations. As the Full Court of the Federal Court observed in Shop, Distributive and Allied Employees Association v The Australian Industry Group58(Penalty Rates Review):

‘… What must be recognised, however, is that the duty of ensuring that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions itself involves an evaluative exercise. While the considerations in s 134(a)-(h) inform the evaluation of what might constitute a “fair and relevant minimum safety net of terms and conditions”, they do not necessarily exhaust the matters which the FWC might properly consider to be relevant to that standard, of a fair and relevant minimum safety net of terms and conditions, in the particular circumstances of a review. The range of such matters “must be determined by implication from the subject matter, scope and purpose of the” Fair Work Act (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40).’ 59

[64] In the context of the Review, variation of a modern award may be warranted if it is established that there has been a material change in circumstances since the making of the award, but the Commission’s power to vary the award is not conditional on it being satisfied that there has been such a change in circumstances. 60 For example, a modern award might be found not to comply with the modern awards objective ‘where considerations, which were extant but unappreciated or not fully appreciated on a prior review, are properly brought to account.’61

[65] The modern awards objective is a composite expression which requires that modern awards, together with the NES, provide ‘a fair and relevant minimum safety net of terms and conditions’, taking into account the matters in ss.134(1)(a)-(h). 62 As the Full Court observed in the Penalty Rates Review:

‘… It is apparent that “a fair and relevant minimum safety net of terms and conditions” is itself a composite phrase within which “fair and relevant” are adjectives describing the qualities of the minimum safety net of terms and conditions to which the FWC’s duty relates. Those qualities are broadly conceived and will often involve competing value judgments about broad questions of social and economic policy. As such, the FWC is to perform the required evaluative function taking into account the s 134(1)(a)-(h) matters and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance. It is entitled to conceptualise those criteria by reference to the potential universe of relevant facts, relevance being determined by implication from the subject matter, scope and purpose of the Fair Work Act.

…

… As discussed “fair and relevant”, which are best approached as a composite phrase, are broad concepts to be evaluated by the FWC taking into account the s 134(1)(a)-(h) matters and such other facts, matters and circumstances as are within the subject matter, scope and purpose of the Fair Work Act. Contemporary circumstances are called up for consideration in both respects, but do not exhaust the universe of potentially relevant facts, matters and circumstances’. 63

[66] Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question. As the Full Court observed in the Penalty Rates Review:

‘it cannot be doubted that the perspectives of employers and employees and the contemporary circumstances in which an award operates are circumstances within a permissible conception of a “fair and relevant” safety net taking into account the s.134(1)(a)-(h) matters.’ 64

[67] Finally, the expression ‘minimum safety net of terms and conditions’ in s.134(1) was considered in the Penalty Rates – Hospitality and Retail Sectors decision, in which the Full Bench rejected the proposition that the reference to a ‘minimum safety net’ in s.134(1) means the ‘least … possible’ to create a ‘minimum floor’:

‘the argument advanced pays scant regard to the fact the modern awards objective is a composite expression which requires that modern awards, together with the NES, provide ‘a fair and relevant minimum safety net of terms and conditions’. The joint employer reply submission gives insufficient weight to the statutory directive that the minimum safety net be ‘fair and relevant’. Further, in giving effect to the modern awards objective the Commission is required to take into account the s.134 considerations, one of which is ‘relative living standards and the needs of the low paid’ (s.134(1)(a)). The matters identified tell against the proposition advanced in the joint employer reply submission.’ 65

[68] We conclude our general observations about the modern awards objective by noting that the nature of modern awards under the Act is quite different from the awards made under previous legislative regimes. 66 In times past awards were made in settlement of industrial disputes. The content of these instruments was determined by the constitutional and legislative limits of the tribunal’s jurisdiction, the matters put in issue by the parties (i.e. the ‘ambit’ of the dispute) and the policies of the tribunal as determined from time to time in wage fixing principles or test cases. An award generally only bound the employers, employer organisations and unions which had been parties to the industrial dispute that gave rise to the making of the award and were named as respondents. Modern awards are very different to awards of the past.

[69] Modern awards are not made to prevent or settle industrial disputes between particular parties. Rather, the purpose of modern awards, together with the NES and national minimum wage orders, is to provide a safety net of fair, relevant and enforceable minimum terms and conditions of employment for national system employees (see ss.3(b) and 43(1)). They are, in effect, regulatory instruments that set minimum terms and conditions of employment for the employees to whom the modern award applies (see s.47).

[70] Nor are there named respondents to modern awards. Modern awards apply to, or cover, certain persons, organisations and entities (see ss.47 and 48), but these persons, organisations and entities are not ‘respondents’ to the modern award in the sense that there were named respondents to awards in the past. The nature of this shift is made clear by s.158 which sets out who may apply for a determination making, varying or revoking a modern award. Under previous legislative regimes, the named respondents to a particular award would automatically have the requisite standing to make such applications; that is no longer the case. 67

2.2 Existing provisions relevant to family friendly working arrangements

2.2.1 Section 65

[71] Section 65 of the Act provides employees with a right to request flexible working arrangements:

‘65 Requests for flexible working arrangements

Employee may request change in working arrangements

(1) If:

(a) any of the circumstances referred to in subsection (1A) apply to an employee; and

(b) the employee would like to change his or her working arrangements because of those circumstances;

then the employee may request the employer for a change in working arrangements relating to those circumstances.

Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

(1A) The following are the circumstances:

(a) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;

(b) the employee is a carer (within the meaning of the Carer Recognition Act 2010);

(d) the employee is 55 or older;

(e) the employee is experiencing violence from a member of the employee’s family;

(f) the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.

(1B) To avoid doubt, and without limiting subsection (1), an employee who:

(a) is a parent, or has responsibility for the care, of a child; and

(b) is returning to work after taking leave in relation to the birth or adoption of the child;

may request to work part-time to assist the employee to care for the child.

(2) The employee is not entitled to make the request unless:

(a) for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or

(b) for a casual employee—the employee:

(i) is a long term casual employee of the employer immediately before making the request; and

(ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Formal requirements

(3) The request must:

(a) be in writing; and

(b) set out details of the change sought and of the reasons for the change.

Agreeing to the request

(4) The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.

(5) The employer may refuse the request only on reasonable business grounds.

(5A) Without limiting what are reasonable business grounds for the purposes of subsection (5), reasonable business grounds include the following:

(a) that the new working arrangements requested by the employee would be too costly for the employer;

(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;

(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;

(d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;

(e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

(6) If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.’

[72] Employees may request flexible working arrangements relating to the circumstances set out in s.65(1A).

[73] Employees, other than casual employees, are eligible to make a request once they have completed at least 12 months of continuous service with the employer immediately before making the request. 68 Casual employees who are long term casual employees of the employer immediately before making the request,69 and who have a reasonable expectation of continuing employment by the employer on a regular and systematic basis,70 are also eligible to make a request.

[74] Requests must be in writing 71 and set out details of the change sought and of the reasons for the change.72

[75] The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request. 73 If the employer refuses the request, the written response must include details of the reasons for the refusal.74

[76] The employer may refuse the request only on reasonable business grounds. 75

[77] The Commission is unable to deal with a dispute to the extent it is about whether an employer had reasonable business grounds under s.65(5), unless the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the Commission dealing with the matter. 76

[78] The right to request flexible working arrangements was first introduced in 2009 as part of the NES. The Explanatory Memorandum to the Fair Work Bill 2008 (EM) noted that the intention of the provisions was ‘to promote discussion between employers and employees about the issue of flexible working arrangements.’ 77

[79] On commencement, the Act only entitled an employee to request flexible working arrangements to assist the employee with caring responsibilities where the employee was a parent, or had responsibility for the care, of a child under school age or a child under the age of 18 who has a disability.⁷⁸

[80] The Act was amended by the Fair Work Amendment Act 2013 (Cth) to provide a right to request flexible working arrangements on the grounds that the employee: is a carer (within the meaning of the Carer Recognition Act 2010 (Cth)); has a disability; is 55 or older, or is experiencing domestic violence or is caring for someone experiencing domestic violence. The amendments commenced on 1 July 2013. 79

[81] The amendment to s.65 to include a wider range of circumstances where flexible working arrangements could be requested, was recommended in the post-implementation review of the Act by an Expert Review Panel (Panel).⁸⁰ The Panel noted:

‘The Panel has formed the view that, while the introduction of the right to request flexible working arrangements represented an important development in providing additional rights to certain types of working carers, the scope of the caring arrangements under the current provisions should be expanded to reflect a wider range of caring responsibilities. Given that an object of the FW Act is to help employees balance their work and family responsibilities by providing flexible working arrangements, and the importance of maintaining a skilled workforce who may have caring responsibilities, the Panel recommends extending the right to request.’ 81

2.2.2 Other statutory provisions relevant to family friendly working arrangements

[82] This section briefly discusses some of the other provisions of the Act which may assist employees in balancing their work and parental or carer responsibilities. It is not intended to be comprehensive and does not address protections in other legislation such as State and Territory anti-discrimination laws.

(a) Individual Flexibility Arrangements

[83] Modern awards and enterprise agreements must include flexibility terms enabling an employee and their employer to agree on an individual flexibility arrangement (IFA) in order to meet the genuine needs of the employee and employer. 82 Where an IFA is made, the modern award or enterprise agreement has effect in relation to the employee and their employer as if it were varied by the IFA,83 and the IFA is taken, for the purposes of the Act, to be a term of the award or enterprise agreement.84

[84] The model flexibility term in a modern award specifies the terms of the award that an employee and their employer ‘may agree to vary the application of’ in an IFA. These include terms relating to ‘arrangements for when work is performed’.

[85] An IFA made under an enterprise agreement can only vary those terms of the agreement specified in the agreement’s flexibility term. If an enterprise agreement does not include a flexibility term or the flexibility term does not meet the requirements of the Act, the model flexibility term prescribed in Schedule 2.2 to the Fair Work Regulations 2009 (Cth) is taken to be a term of the enterprise agreement. 85

[86] Section 203(2)(b) of the Act provides, amongst other things, that the flexibility term in an enterprise agreement must require the employer to ensure that any IFA agreed to is about matters that that would be ‘permitted matters’ if the IFA were an enterprise agreement. This would include, for example, an IFA dealing with the span of hours to be worked by an employee.

[87] Section 144(4) of the Act provides, amongst other things, that the flexibility term in modern awards must require that the employee and their employer genuinely agree to any IFA, and require that the employer must ensure that any IFA results in the employee being better off overall than the employee would have been if no IFA were agreed to. Section 203 of the Act makes equivalent provision in respect of the flexibility term in an enterprise agreement.

(b) Maximum weekly hours

[88] Under the NES, an employer must not request or require an employee to work more than the following hours in a week, unless the additional hours are reasonable:

• 38 hours for a full-time employee; or

• for other employees, the lesser of 38 hours and the employee’s ordinary hours of work in a week. 86

[89] As a part of the NES, s.62 is a civil remedy provision. 87

[90] An employee may refuse to work unreasonable additional hours.⁸⁸ In determining whether additional hours are reasonable or unreasonable, matters including the employee’s family responsibilities must be taken into account. 89

(c) General Protections

[91] An employee also has protections under the general protections provisions in Part 3-1 of the Act against adverse action taken by their employer.

[92] Section 340(1) of the Act prohibits an employer taking adverse action against an employee for reasons including that the employee has a workplace right, has exercised a workplace right, proposes to exercise a workplace right, or to prevent the employee’s exercise of a workplace right.⁹⁰

[93] Adverse action is taken by an employer against an employee if the employer dismisses the employee, injures the employee in their employment, alters the position of the employee to their prejudice, or discriminates between the employee and other employees of the employer.⁹¹

[94] Pursuant to s.341(1) of the Act, an employee has a workplace right if the employee is: entitled to the benefit of a workplace law or workplace instrument; is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or is able to make a complaint or inquiry in relation to their employment, or to a body with capacity to seek compliance with the workplace law or workplace instrument.⁹² This would include an eligible employee making a request for flexible working arrangements under s.65 of the Act,⁹³making or terminating an IFA,⁹⁴ or refusing to work unreasonable additional hours.

[95] Section 351(1) of the Act also provides that employers must not take adverse action against a person who is an employee or prospective employee because of, amongst other matters, the person’s sex, family or carer's responsibilities or pregnancy. 95 Section 351(1) does not apply to action that is not unlawful under any anti-discrimination law in force in the place where the action is taken,96 or that is taken because of the inherent requirements of the particular position concerned.97

[96] The general protections are also civil penalty provisions. 98 Subject to the requirements of the Act, an employee may apply to the Federal Circuit Court or the Federal Court for orders relating to a contravention of the general protections provisions. If a contravention is made out, the Court may make orders including orders imposing a pecuniary penalty, and orders for compensation or reinstatement.⁹⁹

3. Jurisdictional Objections

3.1 Introduction

[97] ACCI and Ai Group submit that the Claim cannot be included in a modern award as it excludes part of the NES, contrary to s.55(1). ACCI and Ai Group also oppose the ACTU’s contention that the Claim is a term that supplements the NES within the meaning of s.55(4)(b).

[98] Modern awards are dealt with in Part 2-3 of the Act. The content of modern awards is dealt with in s.136, which provides:

‘136 What can be included in modern awards

Terms that may or must be included

(1) A modern award must only include terms that are permitted or required by:

(a) Subdivision B (which deals with terms that may be included in modern awards); or

(b) Subdivision C (which deals with terms that must be included in modern awards); or

(c) section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or

(d) Part 2-2 (which deals with the National Employment Standards).

Note 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.

Note 2: Part 2-2 includes a number of provisions permitting inclusion of terms about particular matters.

Terms that must not be included

(2) A modern award must not include terms that contravene:

(a) Subdivision D (which deals with terms that must not be included in modern awards); or

(b) section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement).’

Note: The provisions referred to in subsection (2) limit the terms that can be included in modern awards under the provisions referred to in subsection (1).’

[99] The central jurisdictional issue is whether the Claim seeks to include a term in modern awards which is prohibited by s.136(2).

[100] No party contends that the Claim is a term that contravenes Subdivision D of Division 3 of Part 2-3 (see s.136(2)(a)). The various jurisdictional objections centre on the interaction between the NES and the Claim (see s.136(2)(b)). Section 55 deals with that interaction. It provides:

‘55 Interaction between the National Employment Standards and a modern award or enterprise agreement

National Employment Standards must not be excluded

(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.

Terms expressly permitted by Part 2-2 or regulations may be included

(2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:

(a) by a provision of Part 2-2 (which deals with the National Employment Standards); or

(b) by regulations made for the purposes of section 127.

Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.

(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).

Note: See also the note to section 63 (which deals with the effect of averaging arrangements).

Ancillary and supplementary terms may be included

(4) A modern award or enterprise agreement may also include the following kinds of terms:

(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;

(b) terms that supplement the National Employment Standards;

but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.

Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:

(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or

(b) that specify when payment under section 90 for paid annual leave must be made.

Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:

(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or

(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99).

Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.

Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards

(5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).

Effect of terms that give an employee the same entitlement as under the National Employment Standards

(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:

(a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and

(b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.

Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.

Terms permitted by subsection (4) or (5) do not contravene subsection (1)

(7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).

Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).’

[101] As discussed in Canavan Building Pty Ltd, 100it is not necessary that an exclusion for the purpose of s.55(1) be in express terms:

‘Section 55(1) of the Act relevantly provides that an enterprise agreement “must not exclude” the NES or any provision thereof. It is not necessary that an exclusion for the purpose of s.55(1) must be constituted by a provision in the agreement ousting the operation of an NES provision in express terms. On the ordinary meaning of the language used in s.55(1), we consider that if the provisions of an agreement would in their operation result in an outcome whereby employees do not receive (in full or at all) a benefit provided for by the NES, that constitutes a prohibited exclusion of the NES. That was the approach taken by the Full Bench in Hull-Moody. The correctness of that approach is also confirmed by the Explanatory Memorandum for the Fair Work Bill 2009 as follows:

“209. This prohibition extends both to statements that purport to exclude the operation of the NES or a part of it, and to provisions that purport to provide lesser entitlements than those provided by the NES. For example, a clause in an enterprise agreement that purported to provide three weeks' annual leave would be contrary to subclause 55(1). Such a clause would be inoperative (clause 56).”’ 101

[Endnote omitted]

[102] For the purposes of these proceedings the relevant provisions of the NES are those in s.65, which is set out earlier (at [71]).

3.2 The Submissions

3.2.1 ACTU submissions

[103] The ACTU contends 102 that the Claim is about ‘the facilitation of flexible working arrangements’ (s.139(1)(b)) and ‘arrangements for when work is performed, including … variations to working hours’ (s.139(1)(c)). On this basis, it is submitted that it is a permitted term within the meaning of s.136(1)(a) (being a term ‘about’ the matters in ss.139(1)(b) and (c)).

[104] Further, the ACTU contends that the Claim is not a prohibited term for the purposes of s.136(2) because it is a term that supplements the NES (within the meaning of s.55(4)(b)) and is not detrimental to an employee in any respect, when compared to the NES. It is submitted that because the Claim is a term permitted by s.55(4), it does not contravene the prohibition in s.55(1) of excluding the NES or any provision of the NES (see s.55(7)).

[105] The ACTU does not contend that the Claim is ancillary or incidental to the operation of an entitlement of an employee under the NES (within the meaning of s.55(4)(a)).

[106] As to the meaning of the word ‘supplement’ in s.55(4)(b), the ACTU submits that it should be given its ordinary and natural meaning and that the Macquarie Dictionary defines ‘supplement’ as ‘something added to complete a thing, supply a deficiency, or complete a whole’. 103 The ACTU also observes that ACCI’s suggestion that the concept of ‘supplementing’ the NES ‘connotes the notion of building upon, increasing or extending’104 is not inconsistent with the Macquarie Dictionary definition.105

[107] The starting point for the ACTU’s contention that the Claim supplements the NES is the proposition that the entitlement in s.65 to request a flexible working arrangement is ‘incomplete’ or ‘deficient’ because:

• ‘it does not provide the employee with any guarantee that her or his request will be granted’;

• ‘the right of an employer to refuse a request on ‘reasonable business grounds’ is too broad and does not require the employer to balance the employee’s interests or the business benefits of flexible working arrangements’;

• ‘the right to refuse a request on ‘reasonable business grounds’ cannot be reviewed or enforced’; and

• ‘the qualifying period of 12 months is too onerous’.¹⁰⁶

[108] The ACTU submits that the Claim supplements the NES because it seeks to ‘complete and/or remedy the deficiencies’ in s.65 in the following ways:

‘(a) Section 65(1) of the … [Act] grants an employee a right to request a flexible working arrangement if the request relates to any of the circumstances prescribed by s 65(1A). Those circumstances include, relevantly, if the employee is the parent or responsible for the care of a child of school age or younger (s 65(1A)(a)) including where the parent is returning to work following a period of parental leave (s 65(1B)), or if the employee is a carer within the meaning of the Carer Recognition Act 2010 (Cth) (s 65(1A)(b)). [The Claim at] cl X.1 provides that an employee is entitled to Family Friendly Working Hours (FFWH) if the employee has parenting or caring responsibilities as defined in X.4.1 or X.4.2.

(b) Section 65 does not provide or make allowances for the duration of a flexible working arrangement or the employee’s right to return to her or his previous position when or if circumstances change, whereas proposed clause cl X.2 grants employees the right to revert to their former working hours up until the child is school aged (for parents), or for a period not exceeding two years from the commencement of FFWH (for carers). Employees are required to give notice of their intention to revert at the time that they notify their employer of their intention to access FFWH, per cl X.3.1(c).

(c) In the alternative to (b), cl X.2 is supplementary to s 84 of the … [Act], because the right of employees to return to their pre-parental leave position is extended to permit employees to maintain that position but on reduced hours to accommodate their parenting or caring responsibilities.

(d) Proposed cl X.4.3 and X.6.1(a) provide that the proposed clause applies to casual employees, and if required by the employer, to employees who have completed at least six months continuous service with their employer. These provisions are more favourable to employees than the NES entitlement, which only applies to long term casuals with a reasonable expectation of continuing employment on a regular and systemic basis, and to permanent employees who have completed at least 12 months of continuous service.

1.3.2 International

126. Department for Business, Innovation and Skills (2014), The fourth work-life balance employer survey (2013), United Kingdom Government, BIS Research Paper No. 184, December.

127. Department of Employment and Learning (Northern Ireland) (2010), Flexible Working and Time to Train Response to Public Consultation, United Kingdom Government.

128. Executive Office of the President of the United States (2010), Work–life balance and the economics of workplace flexibility, United States of America Council of Economic Advisers, March.

1.4 Data sources

129. ABS (2017a), Australian Demographic Statistics, Sep 2016, Catalogue No. 3101.0.

130. ABS (2017b), Australian Industry, 2015–16, Catalogue No. 8155.0.

131. ABS (2017c), Australian National Accounts: National Income, Expenditure and Product, Jun 2017, Catalogue No. 5206.0.

132. ABS (2017d), Australian National Accounts: National Income, Expenditure and Product, Mar 2017, Catalogue 5206.0.

133. ABS (2017e), Australian Social Trends, Dec 2011, Catalogue No. 4102.0: ‘Fifty Years of labour Force: Now and Then’.

134. ABS (2017f), Average Weekly Earnings, Australia, May 2017, Catalogue 6302.0.

135. ABS (2017g), Characteristics of Employment, Australia, August 2016, Catalogue No. 6333.0.

136. ABS (2017h), Labour Force, Australia, Feb 2017, Catalogue No. 6202.0.

137. ABS (2017i), Labour Force, Australia, Detailed - Electronic Delivery, Aug 2017, Catalogue No. 6291.0.55.001.

138 ABS (2017j), Labour Force, Australia, Detailed - Electronic Delivery, Jul 2017, Catalogue No. 6291.0.55.001.

139. ABS (2017k), Labour Force, Australia, Detailed, Quarterly, Aug 2017, Catalogue No. 6202.0.

140. ABS (2017l), Labour Force, Australia, Detailed, Quarterly, May 2017, Catalogue No. 6202.0.

141. ABS (2017m), Labour Force, Australia: Labour Force Status and Other Characteristics of Families, June 2016, Catalogue No. 6224.0.55.001.

142. ABS (2016a), Births, Australia, 2015, Catalogue No. 3301.0.

143. ABS (2016b), Estimates of Industry Multifactor Productivity, 2015–16, Catalogue No. 5260.0.55.002.

144. ABS (2016c), Gender Indicators, Australia, August 2016, Catalogue No. 4125.0.

145. ABS (2015a), Childhood Education and Care, Australia, June 2014, Catalogue No. 4402.0.

146. ABS (2015b), Disability, Ageing and Carers, Australia: Summary of Findings, 2015, Catalogue No. 4430.0.

147. ABS (2015), Family Characteristics and Transitions, Australia, 2012–13, Catalogue No. 4442.0.

148. ABS (2015c), General Social Survey: Summary Results, Australia 2014, Catalogue No. 4159.0.

149. ABS (2015d), Household and Family Projections, Australia, 2011 to 2036, Catalogue No. 3236.0.

150. ABS (2015e), Labour Mobility, Australia, February 2013, Catalogue No. 6209.0.

151. ABS (2014a), Forms of Employment, Australia, November 2013, Catalogue No. 6359.0.

152. ABS (2014b), Measures of Australia’s Progress, 2013, Catalogue No. 1370.0.

153. ABS (2012), Pregnancy and Employment Transitions, Australia, Nov 2011, Catalogue No. 4913.0.

154. ABS (2011a), Caring in the Community, Australia, 2009, Catalogue No. 4436.0.

155. ABS (2011b), Workforce Participation and Workplace Flexibility, Victoria, Dec 2010, Catalogue No. 6210.2.

156. ABS (1999), Disability, Ageing and Carers, Australia: Summary of Findings, 1998, Catalogue No. 4430.0.

157. Department of Social Services and Melbourne of Applied Economic and Social Research, Household, Income and Labour Dynamics in Australia (HILDA) Survey, Release 15.

158. Department of Social Services and Melbourne of Applied Economic and Social Research, Household, Income and Labour Dynamics in Australia (HILDA) Survey, Release 14.

159. Fair Work Commission, Australian Workplace Relations Study, 2014.

160. Workplace Gender Equality Agency (WGEA) (2016), Gender Composition of the Workplace: by occupation.

2. Additional articles

1. Bittman M, Hoffmann S & Thompson D (1998) ‘The "family friendly" workplace: origins, meaning and application at Australian workplaces', International Journalof Manpower, Vol. 19, No. 4, pp. 250–265.

2. Blackham A (2015) ‘Rethinking working time to support older workers,’ The International Journal of Comparative Labour Law and Industrial Relations, Vol. 31, No. 2, pp. 119–140.

3. Budd JW & Mumford KA (2006), ‘Family-friendly work practices in Britain: Availability and perceived accessibility’, Human Resource Management, Vol. 45, No. 1, pp. 23–42.

4. Burri SD, Opitz H & Veldman A (2003), 'Work-family policies on working time in practice. A Comparison of Dutch and German case law on working-time adjustment,' The International Journal of Comparative Labour Law and Industrial Relations, Vol. 19, No. 3, pp. 321–346.

5. Carney T & Junor A (2014) ‘How do occupational norms shape mothers’ career and caring options?’, Journal of Industrial Relations, Vol. 56, No. 4, pp. 465–487.

6. Chapman A (2010) ‘Industrial law, working hours, and work, care and family’, Monash University Law Review, Vol. 36, No. 3, pp. 190–216.

7. Chen Y & Fulmer IS (2017), ‘Fine-tuning what we know about employees’ experience with flexible work arrangements and their job attitudes’, Human Resource Management, doi: 10.1002/hrm.21849.

8. Croucher R & Kelliher C (2005) ‘The right to request flexible working in Britain: the law and organisational realities’, International Journal of Comparative Labour Law and Industrial Relations, Vol. 21, No. 3, pp. 503–520.

9. Gaze B (2005) ‘Quality part-time work: can law provide a framework?’ Labour & Industry: a journal of the social and economic relations of work, Vol. 15, No. 3 pp. 89–111.

10. Golynker O (2015) ‘Family-friendly reform of employment law in the UK: an overstretched flexibility’, Journal of Social Welfare and Family Law, Vol. 37, No. 3, pp. 378–392.

11. Hegewisch A, Williams-Baron E (2017) ‘The gender wage gap and work-family supports: women's choices or policy choices’, St. Louis University Public Law Review, Vol. 36, No. 5, p. 18.

12. Kunn-Nelen A, de Grip A & Fouarge D (2013), ‘Is part-time employment beneficial for firm productivity?’, Industrial & Labor Relations Review, Vol. 65, No. 5, pp. 1172–1191.

13. Lee B-H & Kim J-S (2010), ‘Is family-friendly management good for firms? The diffusion and performance of family-friendly workplaces in South Korea’, Journal of Industrial Relations, Vol. 52, No. 4, pp. 459–475.

14. Munsch C (2016) ‘Flexible work, flexible penalties: the effect of gender, childcare, and type of request on the flexibility bias’, Social Forces, Vol. 94, No. 4.

15. Russell H, O'Connell PJ & McGinnity F (2009), ‘The impact of flexible working arrangements on work–life conflict and work pressure in Ireland’, Gender, Work & Organization, Vol. 16, No. 1, pp. 73–97.

16. Smith B & Riley J (2004), ‘Family-friendly work practices and the law’, Sydney Law Review Vol. 26, No. 3. pp. 395–426.

17. Townsend K, McDonald P & Cathcart A (2017), ‘Managing flexible work arrangements in small not-for-profit firms: the influence of organisational size, financial constraints and workforce characteristics’, The International Journal of Human Resource Management, Vol. 28, No. 14, pp. 2085–2107.

2.1 Working papers and reports

2.1.1 Australia

18. Baxter J (2013), Parents working out work, Australian Family Trends No. 1, Australian Institute of Family Studies.

19. Bittman M, Hoffman, S & Thompson D (2004), Men's uptake of family-friendly employment provisions, Policy Research Paper No. 22, Department of Family and Community Services.

20. Hewitt B, Baird M, Baxter J, Brady M, Coles L, Dickenson J, Strazdins L, Whitehouse G, Xiang N & Yerkes M (2017), Millennium Mums Report, waves 1–5, Institute for Social Science Research, University of Queensland.

2.1.2 International

21. Devicienti F, Grinza A & Vannoni D (2015), The impact of part-time work on firm total factor productivity: evidence from Italy, Institute for the Study of Labour, Discussion Paper No. 9463, October.

22. Garnero A (2016), Are part-time workers less productive and underpaid?,IZA World of Labour, No. 249, April.

23. Grimshaw G & Rubery J (2015), The motherhood pay gap: a review of the issues, theory and international evidence, International Labour Office, Geneva, Working paper No. 1/2015.

24. Tobin S, Kuhn S, Horne R & Yoon S (2017), World employment social outlook: trends for women 2017, International Labour Office, Geneva.

2.2 Government reports and reviews

25. Equality & Human Rights Commission (UK) (2009), Working better: meeting the changing needs of families, workers and employers in the 21st century, Equality and Human Rights Commission, March.

ATTACHMENT D – Witness Statements

Professor Siobhan Austen	Expert Statement of Professor Siobhan Austen-5 May 2017, Transcript [168] and Statement of Siobhan Austen, Transcript [176]	Exhibit ACTU 1 and ACTU 2
Dr Jill Murray	Expert Statement of Dr Jill Murray-6 May 2017, Transcript [679]	Exhibit ACTU 5
Dr James Stanford	Expert Report of Dr James Stanford-4 September 2017, Transcript [805]	Exhibit ACTU 6
Dr Ian Watson	Expert Statement of Dr Ian Watson-4 May 2017, Transcript [467] and Supplementary Statement of Dr Ian Watson-27 November 2017, Transcript [474]	Exhibit ACTU 3 and ACTU 4
Monika Bowler	Witness Statement of Monika Bowler-21 April 2017, Transcript [1296]	Exhibit ACTU 12
Ashlee Czerkesow	Witness Statement of Ashlee Czerkesow-8 May 2017, Transcript [1326]	Exhibit ACTU 17
Sacha Hammersley	Witness Statement of Sacha Hammersley-1 May 2017, Transcript [1201]	Exhibit ACTU 9
Sherryn Jones-Vadala	Witness Statement of Sherryn Jones-Vadala-6 May 2017, Transcript [1079]	Exhibit ACTU 8
Nicole Mullan	Witness Statement of Nicole Mullan-3 May 2017, Transcript [1298]	Exhibit ACTU 13
Michelle Ogulin	Witness Statement of Michelle Ogulin-1 May 2017, Transcript [1294]	Exhibit ACTU 11
Katie Routley	Witness Statement of Katie Routley-6 May 2017, Transcript [991]	Exhibit ACTU 7
Andrea Sinclair	Witness Statement of Andrea Sinclair-8 May 2017, Transcript [1300]	Exhibit ACTU 14
Jessica van der Hilst	Witness Statement of Jessica van der Hilst-6 May 2017, Transcript [1260]	Exhibit ACTU 10
Witness 1	Transcript [1307]	Exhibit ACTU 16
Paula Bayliss	Statement of Paula Bayliss-31 October 2017, Transcript [2115] and Supplementary Statement of Paula Bayliss, 11 December 2017, Transcript [2115]	Exhibit ACCI 1 and ACCI 2
Lauren Cleaver	Statement of Lauren Cleaver-31 October 2017, Transcript [2115] and Supplementary Statement of Lauren Cleaver, 12 December 2017, Transcript [2115]	Exhibit ACCI 3 and ACCI 4
Jae Fraser	Statement of Jae Fraser-31 October 2017, Transcript [2115]	Exhibit ACCI 5
Mark Rizzardo	Statement of Mark Rizzardo-31 October 2017, Transcript [2115]	Exhibit ACCI 6
Jeremy Lappin	Witness Statement of Jeremy Lappin-26 September 2017, Transcript [1543]	Exhibit Ai Group 3
Benjamin Norman	Witness Statement of Benjamin Norman-24 October 2017, Transcript [2108] and Supplementary Witness Statement of Benjamin Norman-8 December 2017, Transcript [2108]	Exhibit Ai Group 5 and Ai Group 6
Janet O’Brien	Witness Statement of Janet O’Brien-4 July 2017, Transcript [1391] and Supplementary Witness Statement of Janet O’Brien-11 December 2017, Transcript [1397]	Exhibit Ai Group 1 and Ai Group 2
Peter Ross	Witness Statement of Peter Ross-24 October 2017, Transcript [2108] and Supplementary statement of Peter Ross – unsigned, Transcript [2108]	Exhibit Ai Group 7 and Ai Group 8
Julie Toth	Witness Statement of Julie Toth-26 October 2017, Transcript [1711]	Exhibit Ai Group 4
Kevin Hoang	Statement of Kevin Hoang-3 November 2017, Transcript [2130]	Exhibit MTO 1
Edwina Beveridge	Statement of Edwina Beveridge-29 September 2017, Transcript [2081] and Statement of Edwina Beveridge-8 December 2017, Transcript [2081]	Exhibit NFF 1 and NFF 2
Lucinda Corrigan	Statement of Lucinda Corrigan-1 November 2017, Transcript [2082] and Statement of Lucinda Corrigan-7 December 2017, Transcript [2083]	Exhibit NFF 3 and NFF 4
Chris Kemp	Statement of Chris Kemp-30 October 2017, Transcript [2087] and Statement of Chris Kemp-undated, Transcript [2087]	Exhibit NFF 5 and NFF 6
Deborah Platts	Statement of Deborah Platts-27 October 2017, Transcript [2089] and Statement of Deborah Platts-11 December 2017, Transcript [2089]	Exhibit NFF 7 and NFF 8

ATTACHMENT E – List of Cases

4 yearly review of modern awards – Alleged NES Inconsistencies [2015] FWCFB 3023, (2015 249 IR 358)

4 Yearly Review of Modern Awards – Annual Leave [2015] FWCFB 3406

4 Yearly Review of Modern Awards – Annual Leave [2016] FWCFB 3177

4 Yearly Review of Modern Awards – Common Issue – Award Flexibility [2015] FWCFB 4466

4 Yearly Review of Modern Awards – Common Issue – Award Flexibility [2016] FWCFB 6178

ARTBIU v ARTC [2013] FWC 6861

Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121

Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503

Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123

Construction, Forestry, Mining and Energy Union v Glendell Mining Pty Limited [2017] FCAFC 35

Edwards v Giudice (1999) 94 FCR 561

Esso Australia Pty Ltd v The Australian Workers’ Union (2017) 350 ALR 404

Jurisdictional Decision [2015] FWCFB 5585

National Retail Association v Fair Work Commission (2014) 225 FCR 154, [2014] FCAFC 118

O’Sullivan v Farrer (1989) 168 CLR 210

Preliminary Jurisdictional Issues decision [2014] FWCFB 1788

Parental Leave Test Case 2005 (2005) 143 IR 245

Penalty Rates – Hospitality and Retail Sectors decision [2017] FWCFB 1001

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

Re Armacell Australia Pty Ltd (2010) 202 IR 38

Re Canavan Building Pty Ltd[2014] FWCFB 3202

Re Hull-Moody Finishes Pty Ltd[2011] FWAFB 6709

Re Shop, Distributive and Allied Employees Association[2011] FWAFB 6251; (2011) 211 IR 462

Request from the Minister for Employment and Workplace Relations [2008] AIRCFB 550

Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227

Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161

The Australian Industry Group re Manufacturing and Associated Industries and Occupations Award 2012 [2012] FWA 2556

Transitional Review Award Flexibility Decision [2013] FWCFB 2170

Victoria v Commonwealth (1937) 58 CLR 618

Attachment F – Agreed matters

The following matters are generally agreed by the parties:

(i) Some parents and carers experience lower labour force participation, linked to a lack of access to flexible working arrangements and to quality affordable child care.

(ii) Parents (predominantly women) seek part-time work to manage parenting and caring responsibilities, but preferred hours of work to combine work and caring responsibilities are not always available.

(iii) There are economic and social benefits associated with increased female workforce participation.

(iv) Many employees are able to negotiate family friendly work arrangements with their employers – largely through informal arrangements, but a proportion of employees are not able to negotiate suitable flexible working arrangements, for various reasons. The utilisation of s.65 is very low.

(v) The desirability of employers and employees reaching agreement on flexible working arrangements is generally accepted. However, the framework within which those matters are discussed is contested.

1 HIA submission 20 April 2014

2 NFF submission 20 April 2015

3 [2014] FWC 8583

4 Directions, 23 February 2015 and see also Amended Directions, 10 June 2015

5 [2015] FWCFB 5585

6 Ibid at [18]

7 Ibid at [22]–[25]

8 Directions, 30 November 2015

9 [2017] FWC 2928

10 [2017] FWCFB 4047, Attachment D

11 Republished 15 December 2017

12 [2018] FWCFB 99

13 Ai Group submission, 5 February 2018 at 2

14 NRA submission, 2 February 2018 at page 1

15 ACTU submission, 2 February 2018 at 2-3

16 ACCI submission, 2 February 2018 at 2.5

17 NRA submission, 2 February 2018 at page 1

18 ACCI submission, 2 February 2018 at 3.3

19 ACCI submission, 2 February 2018 at 3.4

20 Ai Group submission, 5 February 2018 at 4

21 Ai Group submission, 5 February 2018 at 9

22 ACTU submission, 2 February 2018 at 4

23 ACTU submission, 2 February 2018 at 6

24 ACTU submission, 2 February 2018 at 8

25 ACCI submissions in reply, 12 February 2018

26 ACCI submissions in reply, 12 February 2018 at 2.7

27 ACCI submissions in reply, 12 February 2018 at 2.24

28 NRA submission, 2 February 2018 at page 2

29 Ai Group submission, 5 February 2018 at 12

30 Ai Group submission, 5 February 2018 at 14

31 ACCI submission, 2 February 2018 at 4.2

32 ACCI submission, 2 February 2018 at 4.5

33 ACTU submission, 2 February 2018 at 12

34 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at para. 38

35 O’Sullivan v Farrer (1989) 168 CLR 210 at p. 216 per Mason CJ, Brennan, Dawson and Gaudron JJ

36 See Preliminary Jurisdictional Issues decision [2014] FWCFB 1788 at [40]–[48]

37 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at para 85. Although the Court’s observations were directed at the expression ‘in its own right’ in Item 6(2A) of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) they are apposite to s.156(5)

38 Ibid at [86]. While the Full Federal Court was considering the meaning of the Item 6(2A) of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) the observations are also apposite to s.156(5) of the FW Act, which is in substantially the same terms.

39 ACCI submission, 2 February 2018 at 2.3

40 [2017] FCAFC 123

41 Ibid at [28]–[29]

42 4 Yearly Review of Modern Awards – Annual Leave [2016] FWCFB 3177 at [135]–[140] and [2017] FWCFB 1001 at [110]

43 [2017] FWCFB 1001

44 [2017] FWCFB 1001 at [269]

45 Edwards v Giudice (1999) 94 FCR 561 at para 5; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at para 56

46 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at para. 33

47 (2012) 205 FCR 227

48 Ibid at [35]–[37] and [46]

49 See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227

50 Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123 at para 37

51 [2014] FWCFB 1788

52 Ibid at [36]

53 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]–[106]

54 National Retail Association v Fair Work Commission (2014) 225 FCR 154

55 Ibid at [109]-[110]; albeit the Court was considering a different statutory context, this observation is applicable to the Commission’s task in the Review

56 [2017] FCAFC 123 at [23]

57 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35]

58 [2017] FCAFC 161

59 Ibid at [48]

60 [2017] FWCFB 1001 at [230]-[268]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [23]

61 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at para. 34.

62 [2017] FWCFB 1001 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [41]–[44]

63 [2017] FCAFC 161 at [49] and [65]

64 Ibid at [53]

65 [2017] FWCFB 1001 at [128]

66 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [18]

67 See, for example, The Australian Industry Group re Manufacturing and Associated Industries and Occupations Award 2012 [2012] FWA 2556

68 s.65(2)(a) Fair Work Act 2009 (Cth)

69 s.65(2)(b)(i) Fair Work Act 2009 (Cth)

70 s.65(2)(b)(ii) Fair Work Act 2009 (Cth)

71 s.65(3)(a) Fair Work Act 2009 (Cth)

72 s.65(3)(b) Fair Work Act 2009 (Cth)

73 s.65(4) Fair Work Act 2009 (Cth)

74 s.65(6) Fair Work Act 2009 (Cth)

75 s.65(5) Fair Work Act 2009 (Cth)

76 s.739(1)(a) Fair Work Act 2009 (Cth)

77 Parliament of the Commonwealth of Australia, Explanatory Memorandum to the Fair Work Bill 2008. (2008) [258]

78 s.65 Fair Work Act 2009 (Cth)

79 Fair Work Amendment Act 2013 (Cth) s.2

80 Australian Government, Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation, p.99. < Australian Government, Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation, p.98 < ss.144(1) and 202(1)(a) Fair Work Act 2009 (Cth)

83 s.144(2)(a); 202(2)(a) Fair Work Act 2009 (Cth)

84 ss.144(2)(b); 202(2)(b) Fair Work Act 2009 (Cth)

85 s.202(4) Fair Work Act 2009 (Cth)

86 s.62(1) Fair Work Act 2009 (Cth)

87 S.539(1) table item 1 Fair Work Act 2009 (Cth)

88 s.62(2) Fair Work Act 2009 (Cth)

89 s.62(3)(b) Fair Work Act 2009 (Cth)

90 s.340(1) Fair Work Act 2009 (Cth)

91 s.342(1) item 1 Fair Work Act 2009 (Cth)

92 s.341(1)(a)-(c) Fair Work Act 2009 (Cth)

93 s.341(2)(i) Fair Work Act 2009 (Cth)

94 s.341(2)(g) Fair Work Act 2009 (Cth)

95 s.351(1) Fair Work Act 2009 (Cth)

96 s.351(2)(a) Fair Work Act 2009 (Cth)

97 s.351(2)(b) Fair Work Act 2009 (Cth)

98 s.539(1) table item 11 Fair Work Act 2009

99 s.539(2) and s.545(2) Fair Work Act 2009 (Cth)

100 [2014] FWCFB 3202

101 Ibid at [36]. Applied in [2015] FWCFB 3023 at [37]

102 ACTU submission, 27 November 2017 at [7]–[28] and ACTU closing submission, 19 December 2017 at [14]

103 ACTU submission, 27 November 2017 at [13]

104 ACCI closing submission, 19 December 2017 at [8.29]

105 ACTU submission, 27 November 2017 at [13]

106 ACTU submission, 9 May 2017 at [111]–[139]; ACTU submission, 27 November 2017 at [14]

107 ACTU submission, 27 November 2017 at [15]

108 Ibid at [20]

109 Ibid at [23]

110 ACTU submission, 27 November 2017 at [24]-[25] and [27]-[28]

111 See Transcript, 21 December 2017 at [2706]

112 Ibid at [2707]–[2710]

113 ACCI final submission, 19 December 2017 at [8.4]

114 Ibid at [8.15]–[8.16]

115 Transcript, 21 December 2017 at [3023]-[3047]

116 Ibid [3025]-[3026]

117 ACCI final submissions, 19 December 2017 at [8.29]–[8.30]

118 Transcript, 21 December 2017 at [3067] and [3077]

119 ACCI final submissions, 19 December 2017 at [6.17]

120 Department of Education, Employment and Workplace Relations, National Employment Standards Exposure Draft – Discussion Paper at [58]-[61]

121 Transcript, 21 December 2017 at [3045]-[3046]

122 Ibid at [3030]

123 Ibid at [3032]-[3036]

124 ACCI final submissions, 19 December 2017 at [8.34] – [8.35]

125 Ibid at [8.32]

126 Ibid at [8.37]–[8.42]

127 Ibid at [8.37]-[8.38]

128 Ibid at [8.39]

129 Also see Transcript, 21 December 2017 at PN [2877]-[2911]

130 Ai Group final submission, 19 December 2017 at [45]-[46]

131 [2015] FWCFB 3023at [37]

132 Ai Group final submission, 19 December 2017 at [23]-[28]

133 Ibid 2017 at [31]

134 Transcript, 21 December 2017 at [2712]–[2713]

135 Ai Group final submission, 19 December 2017 at [33]-[34]

136 Ibid at [40]-[43]

137 Transcript, 21 December 2017 at [2720]

138 Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]

139 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]

140 Esso Australia Pty Ltd v The Australian Workers’ Union (2017) 350 ALR 404 at [52]

141 EM at [206]

142 The one qualification to this is that s.118 provides that an award or agreement may specify the notice of termination that an employee is required to provide in order to terminate his or her employment

143 Supplementary EM at 23

144 Ibid at [24]

145 Ibid at [25]-[26]

146 EM at 208-209

147 Note that if s.55 is a code as to the manner in which award and agreement terms may deal with the subject matter of the NES, an award or agreement term could ‘contravene’ s.55 either by contravening s.55(1) or because it is a type of term not provided for in s.55.

148 [2015] FWCFB 5585

149 Ibid at [24]

150 EM at [214]

151 Section 13(3) of the AI Act as it applies to the Act, provides: ‘[n]o marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.’

152 CFMEU v Glendell Mining Pty Limited [2017] FCAFC 35 at para 118

153 ACTU closing submission, 19 December 2017 at [3] and [44]-[52]

154 Transcript, 21 December 2017 at [2718]

155 Evidence of Dr Murray, ACTU closing submissions, 19 December 2017 at [57]-[63]

156 Transcript, 21 December 2017 at [2724]

157 Parental Leave Test Case 2005 (2005) 143 IR 245; ACTU closing submissions, 19 December 2017 at [11]

158 Transcript, 21 December 2017 at [2669]-[2677]

159 Ibid at [2663]

160 Ibid at [2663]

161 ACTU closing submissions, 19 December 2017 at [15]

162 Ibid at [19]

163 Ibid at [42]-[43]

164 Ibid at [32]

165 Ibid at [35]

166 Ibid at [37]-[38]

167 Ibid at [66]

168 Ibid at [78]

169 Ibid at [86]-[87]

170 Ibid at [89]-[95]

171 ACCI final submissions, 19 December 2017 at [1.10]

172 Ibid at [1.5]

173 Ibid at [1.11]

174 Ibid at [12.12]

175 Ibid at [9.1(a)]-[9.1(b)]

176 Ibid at [9.1(f)]

177 Ibid at [9.1(g)]

178 Ibid at [12.6]

179 Ibid at [12.7]

180 Ibid at [12.11]

181 Transcript, 21 December 2017 at PN [2846]

182 Ai Group final submission, 19 December 2017 at [193]

183 Ibid at [188]

184 Ibid at [191]

185 Ibid at [191]-[193]

186 Ibid at [201]

187 Ibid at [202]

188 Ibid at [205]

189 ibid at [209]

190 Ibid at [213]

191 Ibid at [219]

192 Ibid at [225]

193 NRA submission, 18 December 2017 at [3]

194 NRA submission, 30 October 2017 at [10]-[12]

195 Ibid at [101]

196 Ibid at [25]-[101]

197 Ibid at [102]

198 NRA submission, 18 December 2017 at [132]

199 PHIEA submission, 27 October 2017 at [40]

200 CMIEG submission, 30 October 2017 at [4]

201 Ibid at [5]

202 NFF submission, 30 October 2017 at [14]

203 Exhibit ACTU 1

204 Exhibits ACTU 3 and 4

205 Exhibit ACTU 6

206 Exhibit Ai Group 4

207 Ibid at [10]

208 Ibid at [9]

209 Exhibit ACTU 6 at [45], Figure 6

210 Exhibit ACTU 1 at [21]

211 Exhibit ACTU 1 at p. 13, Figure 9

212 Exhibit ACTU 6 at para. 37, Figure 1

213 Graph 1; Cassidy N & Parsons S (2017), The rising share of part-time employment, Bulletin, September Quarter, Reserve Bank of Australia, p. 19

214 Exhibit Ai Group 4 at [13]

215 Exhibit ACTU 6 at [37]

216 Exhibit ACTU 3 at [44]

217 Exhibit ACTU 3 at [44], Figure 1.7; ABS, Labour Force, Australia, Feb 2017, Catalogue No. 6202.0.

218 Exhibit Ai Group 4 at [19], Graph 2; Cassidy N & Parsons S (2017), The rising share of part-time employment, Bulletin, September Quarter, Reserve Bank of Australia, p. 21

219 Exhibit Ai Group 4 at [18]

220 Cassidy & Parsons (2017) at p. 20

221 Exhibit Ai Group 4 at [20]

222 Ibid at [18], Graph 3

223 Ibid at [20], Graph 5

224 Cassidy & Parsons (2017) at p. 19

225 Exhibit ACTU 3 at [109]

226 Ibid at [110] Figure 3.2

227 Ibid at [110], Figure 3.3

228 Ibid at [110], Figure 3.4

229 Venn D & Wakefield C (2005), Transitions between full-time and part-time employment across the life-cycle, Department of Employment and Workplace Relations, paper presented at the HILDA Research Conference, Melbourne, 29 September

230 Ibid at p. 3

231 Ibid at p. 4

232 Ibid at p. 15

233 Ibid at pp. 13–14

234 Exhibit Ai Group 4 at [54]

235 Exhibit ACTU 1 at [36]

236 Ibid at [38]

237 Ibid at para [40]

238 Exhibit ACTU 2 at p. 1

239 Ibid at p. 2

240 Ibid at p. 2

241 Exhibit ACTU 1 at [43], Figure 10

242 Ibid at [46], Figure 11

243 Ibid at [48]

244 Ibid at [49]

245 Exhibit ACTU 1 at [83]

246 Ibid at [83], Figure 25

247 Ibid at [69]

248 Ibid at [52], Figure 13

249 Ibid at [52]-[53]

250 Exhibit Ai Group 4 at at [16]

251 Ibid at [13]. The remaining part-time workers were self-employed and not considered to be employees. See Transcript, 14 December 2017 at [1784]

252 Exhibit ACTU 3at [64]

253 Exhibit ACTU 4 at [17]

254 Exhibit ACTU 3at [139]

255 Ibid at Table 3.10

256 Exhibit ACTU 1 at [56]

257 Ibid at Figure 15

258 Ibid at Figure 15

259 Ibid at[84]

260 Ibid at [85], Figure 26

261 Ibid

262 Ibid at [87]

263 Ibid at [19]

264 Ibid at [19], Figure 8

265 Exhibit Ai Group 3

266 Exhibit MTO 1

267 Transcript, 12 December 2017 at PN65-68, 70, 75-83 and 111-113; Ai Group Submissions in reply: ACTU Objections to the Joint Employer Survey, 11 December 2017 at [26]

268 Transcript, 12 December 2017 at [153]

269 [2017] FWCFB 1001 at [1563]-[1570]

270 Ibid at [1572]-[1574]

271 Ai Group reply submission, 31 October 2017 at [503]

272 Exhibit Ai Group 3 at 11

273 Ai Group reply submission, 31 October 2017 at [519]

274 Ibid at [597]-[613]

275 ACTU Submission – objection to evidence, 8 December 2017 at [11]-[12]

276 Exhibit ACTU 3 at [4]

277 Ibid at [14]

278 Ibid at [5]

279 Ibid at [8]

280 Ibid at [99]

281 Ibid at [100]

282 Ibid at [101]

283 Ibid at [106]

284 Ibid at [109]

285 Ibid at [115]

286 Ibid at [139]

287 Ibid at [150]–[152]

288 Ibid at [158]–[159]

289 Exhibit ACTU 1 at [109]

290 Ibid at [110]

291 Ibid at [112]; [114]

292 Ibid at [115]

293 Ibid at [29]

294 Ibid at [5]–[6]

295 Ibid at [7]–[8]

296 Ibid at [9]

297 Ibid at [11]

298 Ibid at 12,Table 1

299 Ibid at [14]

300 Ibid at [13]–[14]

301 Ibid at [15]

302 Ibid at [21]

303 Ibid at [22]

304 Venn D & Wakefield C (2005), Transitions between full-time and part-time employment across the life-cycle, Department of Employment and Workplace Relations, paper presented at the HILDA Research Conference, Melbourne, 29 September

305 Exhibit ACTU 1 at [43]–[44]

306 Ibid at [45]

307 Ibid at [46]

308 Ibid at [48]

309 Ibid at [49]

310 Ibid at [52]

311 Ibid at [53]

312 Ibid at [56]

313 Ibid at [73]

314 Ibid at [75]

315 Ibid at [79]; [82]

316 Ibid at [83]

317 Ibid at [94]

318 Ibid at [18]–[19]

319 Exhibit ACTU 5 at[1]

320 As described in [2017] FWCFB 1001 at [566]–[567]

321 Skinner N & Pocock B (2014), The persistent challenge: Living, working and caring in Australia in 2014 - The Australian work life index 2014, Centre for Work + Life, University of South Australia.

322 Exhibit ACTU 5 at Appendix 1, p.36

323 Exhibit ACTU 5 at [ 23]; Skinner N & Pocock B (2014), The Australian Work Life Index 2014: The Persistent Challenge: Living, Working and Caring in Australia in 2014, Centre for Work + Life, University of South Australia

324 Exhibit ACTU 5 [24]

325 Ibid at [116]

326 Ibid at [43]

327 Ibid at [32]; O’Neill B (2015), General Manager’s report into the operation of the provisions of the National Employment Standards relating to requests for flexible working arrangements and extensions of unpaid parental leave under s.653 of the Fair Work Act 2009 (Cth): 2012–2015, Fair Work Commission, November

328 Exhibit ACTU 5 at [35]

329 Ibid at [36]

330 Ibid at [40]

331 Ibid at [100]

332 Ibid at [76]

333 Ibid at [92]

334 Ibid at [93]

335 Ibid at [97]–[98]

336 ACCI Final Submissions, 19 December 2017 at [9.9]-[9.10]

337 Ibid at [9.11]

338 Transcript, 12 December 2017 at PN [716]-[718], [723]-[724] and [731]-[732]. We would also observe that Ms Toth (Ai Group’s expert witness) was similarly unable to answer specific questions regarding the HILA methodology: Transcript, 13 December 2017 at [1819]-[1820]

339 Ai Group Reply Submission, 31 October 2017 at [296]

340 Skinner N, Pocock B & Hutchinson C (2015), A qualitative study of the circumstances and outcomes of the national employment standards right to request provisions, a report to Fair Work Australia, Centre for Work + Life, University of South Australia.

341 O’Neill, B (2015), General Manager’s report into the operation of the provisions of the National Employment Standards relating to requests for flexible working arrangements and extensions of unpaid parental leave under s.653 of the Fair Work Act 2009 (Cth): 2012–2015, Fair Work Commission, November, at [4.2.4]

342 Ibid at [5.1.2], p. 17

343 Ibid at [5.2.1], p. 18

344 Ibid at [5.2.2], p. 21

345 Ibid at [5.2.3], p. 22

346 Ibid at Table 5.5, p. 23

347 Ibid at [5.2.4], p.25

348 Ibid at p. 27

349 Ibid at [5.3.4], p. 31

350 Ibid at table 5.12, p. 32

351 Ibid at [5.3.2], p. 26

352 Ibid at p. 27

353 Ai Group Reply Submission, 31 October 2017 at [297]

354 Ai Group Reply Submission 31 October 2017 at [342]-[344]

355 ACCI Final Submissions 19 December 2017 at [9.11(3)]; Ai Group Reply Submissions 31 October 2017 at [340]

356 Skinner N & Pocock B (2014), The Australian Work Life Index 2014: The Persistent Challenge: Living, Working and Caring in Australia in 2014, Centre for Work + Life, University of South Australia.

357 Ibid at p. 38

358 Ibid at p. 39, Table 8

359 Ibid at p. 40, Table 9

360 Ibid at p. 41

361 Ibid at p. 43, Figure 18. The remainder were ‘waiting on decision’

362 Ibid at p. 42

363 Ibid at p.45

364 Ibid, Figure 19 at p.45

365 Ibid at p.8

366 Ibid at p.45

367 Ibid Table 12 p.43

368 Ibid at p. 43

369 Exhibit ACTU 5 at [105].

370 Skinner N, Cathcart A & Pocock B (2016), ‘To ask or not to ask? Investigating workers’ flexibility requests and the phenomenon of discontented non-requesters’, Labour and Industry, Vol. 26, No. 2, pp. 103–119.

371 Skinner et al., p. 107

372 Ibid pp. 110–111

373 Ibid p. 116

374 Ibid p. 111

375 Ibid p. 112

376 Ibid p. 113

377 Ibid p. 114

378 Ibid at pp. 111-114

379 ACTU final submission, 19 December 2017 at [61]

380 Ai Group reply submission, 31 October 2017 at [330]

381 Ibid at [331]; Skinner et al., p. 109

382 Ibid at [332]

383 Skinner N, Cathcart A & Pocock B (2016) at pp.110-111

384 Ibid at p.110

385 Ibid, Figure 1 on p.110

386 Exhibit ACTU 6, Expert report of Dr. Stanford, 4 September 2017 at Annexure JS2

387 Exhibit ACTU 6 at [16]

388 Ai Group final submission, 19 December 2017 at [103]

389 Transcript, 12 December 2017 at [908] and [913]-[914]

390 Exhibit ACTU 6 at [6]

391 ACCI final submissions, 19 December 2017 at [9.19] – [9.20]

392 Ai Group Reply Submissions, 31 October 2017 at [173]

393 Exhibit ACTU 6 at [21]

394 Ibid at [22]

395 Ibid at [25]

396 Ibid at [54]

397 Transcript , 12 December 2017 at [849] – [ 862]

398 Exhibit ACTU 6 at [58]

399 Ibid at [59]

400 Ibid at [12]

401 Transcript, 12 December 2017 at [826] – [834]

402 Transcript , 14 December 2017 at [1730]-[1736]

403 Ibid at [1735]-[1737]

404 Ibid at [1735]-[1741]

405 Transcript, 21 December 2017 at [2465]-[2466]

406 Ibid at [2963]

407 Ibid at [2966]-[2969]

408 ACCI Final Submissions, 19 December 2017 at [9.24]

409 Exhibit Ai Group 4, witness statement of Julie Toth at [29]

410 Abhayaratna, J., Andrews, L., Nuch, H. and Podbury, T. 2008, Part Time Employment: the Australian Experience, Staff Working Paper, Productivity Commission, p.54

411 Exhibit Ai Group 4 at [29]

412 ACTU Closing Submissions 19 December 2017 at [77]

413 Exhibit ACTU 18, Ernst & Young (2013) ‘Untapped opportunity: The role of women in unlocking Australia’s productivity potential’, p.4, 11see ACTU Closing Submissions 19 December 2017 at [68]; Also, the paper was put to Ms Toth in cross examination, Transcript at [1903]-[1911]

414 Transcript, 12 December 2017 at [863]-[874]

415 Exhibit Ai Group 4 at [51]

416 The witness statement of Perry Anderson dated 27 April 2017 was withdrawn (see Transcript, 21 December 2017 at [2442])

417 Exhibit ACTU 12

418 Exhibit ACTU 17

419 Exhibit ACTU 9

420 Exhibit ACTU 8

421 Exhibit ACTU 13

422 Exhibit ACTU 11

423 Exhibit ACTU 7

424 Exhibit ACTU 14

425 Exhibit ACTU 10

426 Exhibit ACTU 16

427 NRA Submissions on Evidence, 19 December 2017 at [79], [82]-[83]

428 Ai Group Final submissions, 19 December 2017 at [130]

429 ACCI Final submissions, 19 December 2017 at [9.32]

430 Ai Group’s Final Submissions, 19 December 2017, table at [128]

431 Ai Group Final Submissions, 19 December 2017 at [132(e)]

432 Exhibit ACTU 8 at [10]-[12] and [17]

433 Transcript, 13 December 2017 at [1133]-[1136]

434 Exhibit ACTU 7 at [8] - [9]

435 Ibid at [12]

436 Exhibit ACTU 8 at [15]

437 Exhibit ACTU 10 at [10]-[11]; Also see ACTU 14 at [13]; Ms Czerkesow’s evidence, ACTU 16 at [15]-[16], [19], [21]- [22], [25] and [27]; and Ms Hammersley’s evidence, ACTU 9 at [9]

438 Exhibit ACTU 16 at [9]-[10]

439 Ms van del Hilst; Ms Bowler; Witness 1; Ms Hammersley; Ms Mullan and Ms Ogulin

440 Exhibit ACTU 9 at [15]. Also see Exhibit ACTU 10 at [12]-[14] and Exhibit ACTU 12 at [20]-[22]

441 Exhibit ACTU 16 at [18]

442 Exhibit ACTU 8 at [26]

443 Exhibit ACTU 7 at [16]-[18]

444 Exhibit Ai Group 3

445 Exhibits Ai Group 5 and 6

446 Exhibits Ai Group 1 and 2

447 Exhibits Ai Group 7 and 8

448 Exhibits NFF 1 and 2

449 Exhibits NFF 3 and 4

450 Exhibits NFF 5 and 6

451 Exhibits NFF 7 and 8

452 Exhibits ACCI 1 and 2

453 Exhibits ACCI 3 and 4

454 Exhibit ACCI 5

455 Exhibit ACCI 6

456 ACCI Final Submissions 19 December 2017 at [9.83]

457 Exhibit NFF 5

458 Exhibit ACCI 1 at [5]

459 Lauren Cleaver – Norske Skog – Exhibits ACCI 3 and 4; Peter Ross – Rheem Australia – Exhibits Ai Group 7 and 8

460 Paula Bayliss – Navitas Australia – Exhibit ACCI 1 and 2

461 Chris Kemp – cattle, sheep and broadacre crop producer – Exhibits NFF 5 and 6; Edwina Beveridge – Exhibits NFF 1 and 2; Lucinda Corrigan – Angus stud – Exhibits NFF 3 and 4; Deborah Platts – dairy farmer – Exhibits NFF 7

462 Jae Fraser – Edge Child Care – Exhibit ACCI 5

463 Mark Rizzardo – bus operator – Exhibit ACCI 6

464 Benjamin Norman – grain storage and handling – Exhibit Ai Group 5

465 Janet O’Brien – Conplant – Exhibits Ai Group 1 and 2

466 For example, Exhibit Ai Group 1 at [24]; Exhibit ACCI 3 at [4]; Exhibit Ai Group 7 at [48]

467 Exhibit Ai Group 5 at [60]

468 See Exhibit ACCI 5 at [71] and [77];, Exhibit ACCI 3 at [39] and Exhibit Ai Group 5 at [62] and [64]-[68]

469 Exhibit ACCI 5 at [89]

470 Exhibit ACCI 5 at [20]-[42], [47]-[50]

471 Exhibit ACCI 6 at [12]-[17]

472 Exhibit NFF 1 at [8]-[10]

473 Exhibit NFF 7 at [7]; Also see Exhibit Ai Group 5 at [14]

474 Exhibit Ai Group 5 at [70]

475 Exhibit Ai Group 7 at [73]

476 See Exhibit Ai Group 1 at [44]

477 Skinner et al at p.103

478 ACCI final submissions, 19 December 2017 at [1.11]

479 Skinner at al at p.104

480 s.739(1)(a) Fair Work Act 2009 (Cth)

481 ACCI final submissions, 19 December 2017 at [1.11]

482 4 Yearly Review of Modern Awards – Annual Leave [2016] FWCFB 3177 at [135]–[140]

483 Ai Group Reply Submissions, 31 October 2017 at [171]-[172]

484 Abhayaratna J, Andrews L, Nuch H & Podbury T (2008), Part time employment: the Australian experience, Staff Working Paper, Productivity Commission, June at xxviii

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