122 The third issue relates to whether ordinary hours should be extended to 7.00 pm. Mr de Celis submitted that significantly Professor Bittman explained during cross-examination that there is a trend towards the lengthening of the working day and an increased likelihood of work being performed after 6.00 pm.
123 Mr de Celis submitted that the current provision of ordinary hours until 6.00 pm in the evening was set by the Commission in Court Session in 1987: see Clerks (State) Award, Re; (unreported, Full Bench, IRC 1153 of 1985, 30 April 1987). Prior to 1987, the Award provided for ordinary hours until 5.30 pm. Mr de Celis acknowledged that the spread of hours was increased to 6.00 pm as a cost offset for the introduction of a 38 hour week.
124 It was submitted that the employer claim is both modest and targeted. It is aimed at removing a shift penalty, which is currently payable on all hours worked even if the employee only works one hour beyond the spread of ordinary hours or the overtime penalty that may otherwise apply.
125 Mr de Celis submitted that the above provisions deter some employers from conducting business between 6.00 pm and 7.00 pm in circumstances where it would be in the public interest that such services be provided, particularly for medical practitioners and Budget Rent-A-Car.
126 It was further submitted that these provisions deter some employers from employing a clerical employee between 6.00 pm and 7.00 pm, even though the business may have an opportunity to employ a clerical employee during that time. The example of medical practices was given.
127 Mr de Celis particularly relied on the evidence of Ms Fiona Davies from the AMA, together with the evidence of Ms K Ryan from Prestige, Mr M Lamont from UPS and Mr T Wise from John Cully.
Submissions of the Union
128 Mr Mette submitted in respect of the variations sought to the Award that the onus of proof falls on the applicant to demonstrate that the variation is necessary to establish fair and reasonable conditions of employment and that the matter has special attributes: Public Hospital Nurses (State) Award (2002) 115 IR 183. It was contended that the case before the Commission does not demonstrate any special attribute that would warrant a variation under the special case principles.
Extending Span of Hours to 7.00 pm on Weekdays
129 The Union opposed the extension of ordinary hours to 7.00 pm submitting that the current loading of 17 per cent afforded appropriate compensation for work during evenings.
130 The Union referred to the evidence before the Commission that there is social inconvenience associated with working after 6.00 pm. Particular reliance was placed on the expert evidence of Professor Graeme Russell and the evidence of the employee witnesses which highlighted the disadvantages of working after 6.00 pm.
131 Mr Mette submitted that both the expert and lay witnesses gave evidence that work during unsociable hours has negative impacts on both personal and family wellbeing. Reference was made to the specific disadvantages outlined by Professor Russell which included the impact on having children, the impact on childcare arrangements, the impact on family and child wellbeing and the impact on relationship wellbeing.
132 It was further submitted that the evidence demonstrated that the pressures on family interaction are now greater through higher female participation in the workforce and for individuals this pressure is increased through work being performed during unsociable hours. Mr Mette referred to Professor Russell's conclusions which included his evidence that:
Having time to engage in significant family interactions has become even more salient in the current social and work context. Weekends and evenings still provides the best opportunity for this interaction to occur given the continuing pattern that the majority of people do not have fixed work commitments at these times and children are available to interact with.
133 Mr Mette submitted that in regards to clerical workers, the vast majority of work areas represented by the employer evidence have quite commonly performed work during unusual hours. Since October 1972, it was contended that shiftwork was available to most of these work areas without the need for a special application. The variation to the Award that was introduced at that time referred specifically to:
(i) Work in or in connection with electronic data processing;
(ii) In a medical, travel, sporting or lodging service;
(iii) Where employees are required to work in direct association with or in conjunction with other employees working a shift and without limiting the generality of the forgoing shall include clerical workers in the despatch of goods in the road transport industry ... weighbridges ...
134 It was submitted that employers, in these categories, included the AJC, Saville Park Suites, IVFAustralia, Standard Weighbridges and UPS. In response to questions from the Bench whether clerical work on weekends was a new phenomenon in these industries, each of the above employers agreed that it was not.
135 It was further submitted that the current 12 hour span of ordinary hours is already as broad or, in certain circumstances, broader than all other State and federal Clerical and Administrative Awards. This was as a result of structural efficiency changes which occurred in 1987 and 1991 respectively. It was submitted that the changes to the span of hours were accompanied by either a reduction in ordinary hours or by general structural efficiency increases. Mr Mette observed that in respect of the current application there is no benefit proposed to employees submitting that it is nothing more than a negative cost cutting exercise.
136 Mr Mette submitted that the contention that there is a need to minimise award conditions to reduce costs has not been made out. Industry practice shows that most employers pay substantially above the minimum rates in the Award. Furthermore, it was submitted that all employers who gave evidence were profitable and did not exhibit any signs of an incapacity to pay.
137 In respect of medical centres, Mr Mette contended that there was evidence that doctors are now receiving more income through higher Medicare rebates in respect of some of the times in which the application for extended hours is sought. On the evidence, from 1 January 2005, general practitioners were receiving an additional $30 to $40 per hour where work is performed during some of the unsociable hours. In addition Ms Davies conceded that there were a range of other financial incentives in place to compensate for after hours service.
Ordinary hours on Saturdays and Sundays
138 Mr Mette commenced his submissions in respect of this aspect of the case by observing that the Award already provides for ordinary hours to be worked between 6.00 am and 7.00 pm on Saturdays and Sundays, subject to loadings of 150 per cent and 175 per cent respectively, pursuant to the shiftwork provisions in the Award.
139 Mr Mette contended that the Employers First application seeks to remove what it calls a "gap" and replaces this with an overlap between the operation of cl 7 and the clause dealing with weekly employees (shiftworkers who regularly work on Sundays and public holidays). Mr Mette observed that pursuant to the application, a person who previously had been defined as a seven day shiftworker by working, for example, Wednesday to Sunday, would now be a "weekly employee" and entitled to 125 per cent for work performed on Saturdays under the proposed cl 5 (x)(a) and 150 per cent for work performed on Sundays under the proposed cl 9(vi). At the same time, they would still be a seven day shiftworker under the definition in cl 7(i)(f) and such an employee would be entitled to the current loading of 150 per cent and 175 per cent provided by cl 7(ii)(f) of the Award.
140 Mr Mette submitted that to the extent that the application seeks to reduce the daytime weekend shift loadings, such a result would be inconsistent with the test case standard that was determined in the Shiftworkers Case 1972 which specifically considered the issue of whether a lower loading for day work should apply.
141 Mr Mette pointed to Awards made in the federal jurisdiction that awarded an afternoon or night shift loading on top of weekend loadings. He cited the Airline Officers (Qantas Airways Limited) Award 2000 and the Airlines Operations (Transport Workers') Award 1998. Mr Mette submitted that this approach was applied by the Full Bench of the New South Wales Commission in Re Storeworkers - IGA Distribution Pty Limited New South Wales Distribution Centres Award 2002 (2002) 124 IR 1.
142 Mr Mette submitted that in New South Wales, awards that apply a Saturday loading are generally confined to the retail and hospitality sectors and the approach of simply adopting rates from another award was rejected by the Full Bench in Re Real Estate Industry (Clerical and Administrative Employees) (State) Award 2003 [2003] NSWIRComm 149.
143 Attached to the Union's written submissions was a table summarising the key weekend penalty rate decisions in New South Wales and other jurisdictions. Mr Mette submitted that the most persuasive authorities were those that had specifically considered the issue of what inconvenience was associated with weekend work. He submitted that the Commission should continue to be guided by the decision in the Shiftworkers Case. It was submitted that the line of authorities based on Re Shop Employees (State) Award should not be followed on the basis that it is clear from these decisions that the particular history of Retail Awards played a significant factor. Similarly, it was submitted that the line of authorities that follow the TAFE case of 7 August 1991 should also not be followed. In respect of the TAFE case, Mr Mette contended that the observations of the Full Bench in that matter in respect of "social inconvenience" were made in the absence of evidence, and without reference to previously decided cases. He observed the loading awarded in the TAFE case contradicted the position of both parties in that matter.
144 Mr Mette submitted that the Commission should consider the evidence of what social inconvenience actually applies to workers generally and to clerical workers in particular. This approach, it was submitted, was consistent with the approach of the Full Bench of the AIRC in Shop Distributive & Allied Employees Association - Victorian Shops Interim Award 2000 and the decision of the Full Bench of the South Australian Industrial Relations Commission in Retail Industry (South Australia) Award - Variation 2004 [2004] SAIRComm 54. In each of these cases, higher Sunday rates were awarded.
145 Mr Mette relied on the evidence of Professor Bittman and Professor Russell that Sunday is the most critical day for families to spend together and that people prefer not to work at times that interfere with their family and personal commitments.
146 The evidence in support of the above propositions came from the following sources:
(i) Overall, the rate of increase in hours worked on weekends has been relatively low [see Professor Bittman's evidence; paper by Ms Dixon, 2002].
(ii) Few people who have the choice establish formal working arrangements at unsociable hours do so (eg., few managers work at these times) [paper by Ms Dixon, 2002].
(iii) Research shows that the majority of people who work at unsociable hours say that they have no choice in doing so. In a study referred to in the evidence (La Valle et al 2002) of 1165 UK mothers who worked non-standard hours, 75 per cent said that they had no choice about working non-standard hours. This figure was even higher for single mothers - 83 per cent. Of those who work on the weekends, 70 per cent said they would prefer not to do this.
147 Mr Mette submitted that employee witness evidence also indicated that they did not prefer weekend work, and that this work was only undertaken by necessity or due to the higher compensation provided by the loadings. In this regard, Mr Mette referred to the evidence of Ms Harrison and that of Ms Dixon, who gave evidence of the difficulty of finding skilled staff even under the shift rates as they currently stand.
148 The Union contended that the evidence demonstrates that Saturdays and Sundays are not "normal" working days. The majority of clerical employees, or employees generally, do not work on these days. Professor Bittman provided evidence of the trends across the total workforce stating it can be seen that the trend lines for working on Saturdays or Sundays are almost flat over the 18 year period between 1974 and 1992. In the most recent period, the proportion of currently employed persons working on Sundays has increased seven percentage points while the proportion working on Saturdays has remained constant.
149 Further, it was apparent from the summary of the employer evidence that only 17 to 18 per cent of those employees work weekends. There was no basis, it was submitted, in respect of clerical workers to conclude that there is a high incidence of clerical work being performed on weekends.
150 It was submitted that the evidence, both empirical and anecdotal, clearly demonstrates Saturdays, and to a lesser extent, Sundays are recognised as the dominant day for sporting, leisure and community activities. This conclusion was supported by Professor Bittman's analysis of time use data. It was also consistent with the oral evidence given by Mr Wilson.
151 It was further submitted that Professor Bittman's analysis of the effect of working on weekends and its impact on social contact was persuasive and that the evidence demonstrated that time off during the week does not compensate for the activities that are foregone in working during weekends. This was clearly established, it was submitted, by the analysis undertaken and contained in Professor Bittman's report.
152 Mr Mette submitted that the current rate of 150 per cent for work performed on a Saturday is comparable with other State and National Clerical Awards and less than some Awards, which provide for overtime rates to be paid for work performed during ordinary hours on weekends.
153 It was submitted that the application to vary the Award was nothing more than a negative cost-cutting application to reduce existing loadings and that the matter had no special attributes that justify a special case.
Consideration
Employers First Application - Ordinary Hours on Saturday and Sunday
154 The application by Employers First on this aspect involves the variation to the award to provide that Saturday and Sunday be work in ordinary hours paid respectively with loadings of time and a quarter and time and a half. It therefore involves the establishing of a special case in terms of the State Wage Case principles. The onus which falls on an applicant in such proceedings is well settled. In a special case, an applicant must meet the ordinary onus to make out its case on the evidence and, in addition, the particular onus of establishing that a "special case" exists: Re Occupational Health Nurses' Superannuation (State) Award (1996) 85 IR 158 and Teachers (Non-Government Schools) (State) Award (unreported, Fisher P, Sweeney J and Varnum DP, 17 August 1990). Matters of the cost of the claim and the public interest also arise for consideration.
155 In the ordinary way, in any contested proceedings before the Commission, there is an onus which falls on an applicant to make out its case. The applicant in a special case has a particular onus and that onus must be met in the context of the requirements of s 10 of the Act.
156 It follows that consideration must be given to the application brought under the Act in the ordinary way, having in mind the current provisions of the award; the changes sought to be made to the award; whether such changes would, on the evidence, lead to an award which in terms of s 10 of the Act, fixes fair and reasonable conditions of employment. The contention of the Union is that the changes sought would not satisfy the requirements of s 10 of the Act, must also, of course, be considered.
157 This means that in considering the substantial changes sought here from the current award arrangements, the Commission must be satisfied that in granting the application, it would be making an award which meets the statutory obligation in s 10 to make an award fixing fair and reasonable conditions of employment and one which conforms with the objects of the Act.
158 Existing award conditions are, of course, not immutable. Subject to compliance with the requirements of the Act and applicable principles, award provisions may be varied upon the basis of the consent of the parties, or in the case of contested proceedings, if a case is made out on the evidence that the award conditions in question no longer provide fair and reasonable conditions of employment. In a contested case, the onus falls on the applicant to make out a case for an alteration to an award, which otherwise will usually remain undisturbed: Re Pastoral Industry (State) Award (2001) 104 IR 168 at 184, 185 and Transport Workers Union of New South Wales v New South Wales Taxi Industry Association [2005] NSWIRComm 407.
159 It also follows that in the present circumstances, the Commission would need to be satisfied that the changes sought had relevant industrial merit, apart from merely the desirability of conformity with awards in other distinct industries: Re Real Estate Industry (Clerical and Administrative Employees) (State) Award. Thus, the application would not be granted unless the applicant meets this requirement.
160 Here, the case for the employers was advanced both on the basis that the award provision should be varied because the retention of the award provisions in their current form had no industrial merit and that such variation would increase employment opportunities for clerical employees and would generally be in the public interest. There was little evidence led as to the latter consideration. As to the evidence directed to the application's special case nature or contended justification, we are not satisfied that the evidence called demonstrated this feature. Some of the evidence given in this regard by the employer witnesses demonstrated a desire to reduce costs. There is nothing special or out of the ordinary in an employer seeking to reduce operational costs.
161 Further, such evidence as was led by the applicant upon the merits of the application, when tested, often pointed in the opposite direction; for example, the retention of the existing provision: see for example, the evidence of Messrs Paulsberg and Wise.
162 It was common ground that the award covers some hundreds of thousands of employees in New South Wales. The employer evidence excluding that of Ms Davies from the AMA, which we will deal with later in this decision, consisted of eight witnesses.
163 We are not satisfied that the employer witnesses represent a broad cross section of workplaces that employ clerical staff under the Award. The evidence discloses that the number of employees that work on a typical Saturday at the employer workplaces numbered 51 and 53 on a typical Sunday. This represented 17 per cent and 18 per cent respectively of the total number of clerical employees employed at the employer workplaces, the subject of the evidence. The total number employed across these workplaces numbered 298. No evidence was called to quantify the incidence of work in unusual hours currently performed in the clerical industry. Furthermore, there was no evidence of any increase in the incidence of clerical work on weekends or that the incidence of clerical work on weekends is greater than other industries.
164 Professor Bittman did provide some statistical evidence which showed that there had not been any significant change in this regard in the period for which the statistical evidence was available (1974 to 1997). The evidence from the majority of employers is that they have always operated on the same basis as they currently operate, although the evidence of Standard Weighbridges was that there had been a reduction in weekend work as a result of the move from working ordinary hours to overtime on Saturdays.
165 In our view, the evidence does not establish that there is a high incidence of clerical work being performed on weekends. In this regard, the evidence of Mr Wilson, the Human Resources Manager of the Australian Jockey Club, was that if the application was granted, it would lead to the engagement of an additional two to three full time employees in the Membership Office. However, Mr Wilson conceded that if Saturdays were able to be rostered under the shiftwork provisions either as currently interpreted by the Union and the group employers, or as proposed, this would result in the AJC paying employees that worked on a Saturday at the rate of time and one half which would represent a benefit to the AJC. In response to a question from the Full Bench, Mr Wilson agreed that such an arrangement would give the AJC a great deal more flexibility. We will deal further with this aspect of the case (the ambiguity argument and its relationship to the issue of payment for weekend work) later in these reasons.
166 Mr Wilson also acknowledged that Saturday employment in the racing industry was not a new phenomenon and that Saturday had been the dominant day for racing for a very long time. Mr Wilson agreed with the proposition that Saturday afternoon, in particular, is a prime time for sporting events because it is a convenient time for leisure activities. He agreed with the proposition that Saturday is the day when racing events are held because the majority of the public has the day off. This evidence is consistent with the evidence of Professor Bittman that Saturday is the dominant day for sporting activities and that is, in part, because the majority of the community does not work on that day.
167 We would also observe that on 7 December 2004, Commissioner Murphy made an award known as the Australian Jockey Club Single Bargaining Union Enterprise Award 2004. This Award was made by consent. Evidence given by Mr Margerison, who conducted negotiations on behalf of the Union with the AJC was that no changes were sought to the hours of work arrangements or any greater flexibility in respect of these arrangements.
168 The evidence, particularly that of Professor Bittman, supports the conclusion which we have reached that Saturdays, and to a lesser extent, Sundays, are recognised as the dominant days for sporting, leisure and community activities and are especially valued by members of the community for that and other reasons, such as, in the case of Sunday, religious observance and its religious significance.
169 Significantly, Professor Bittman's evidence in respect of working on weekends and its impact on social contact was:
The likelihood that certain activities will take place on Saturday or Sunday does not simply reflect the lack of available time during the week but also the need to coordinate with other people's schedules. Many activities turn on the availability of significant others. Children have more limited waking hours than their parents. Relatives, friends, colleagues and neighbours must be available for regular contact to take place at that time. Meeting the demands of working and coordinating collective activities around the school day lead many of these activities to be scheduled on a weekend. Nearly four times as much time is allocated to socialising on weekends as during the week.
170 Professor Bittman's conclusion was supported by Professor Russell's key findings, namely, that time together, shared activities and the active involvement in the lives of other family members are essential to sustain effective family relationships and positive outcomes for families and individuals.
171 Professor Bittman's further evidence was "an analysis of the data indicates that people who do work on a Saturday or a Sunday do not, or are unable to, make up on weekdays for the lost opportunities of family togetherness and social contact associated with Saturday or Sunday work."
172 We conclude that, notwithstanding changes in industry and working patterns and conditions, members of the community still significantly value time free from work on Saturdays and, to a greater extent, Sundays and that work at such times still has a significant limiting and detrimental effect on family life, shared activities and general satisfactory social interaction of families and individuals.
173 We are therefore not persuaded in light of the above evidence, that public interest considerations would presently warrant the granting of the application. Similarly, although heavy reliance was placed by Employers First on the Full Bench decisions in the retail industry which introduced and maintained weekend penalty rates of time and a quarter for Saturday work and time and a half for Sunday work, and also on a number of other decisions which followed the retail decisions, we do not consider that those decisions can be said to have created a standard for weekend work which should be applied to the present Award.
174 We now turn to the evidence as to the merits of the application. Employers First called eight witnesses. Ms Ryan, who was employed by Prestige International, gave evidence relating to an international company providing, among other things, insurance, credit card and outbound telemarketing services. The company employs some 35 employees although it has gone through significant downsizing due to the loss of clients and restructuring. It appears to be a profitable business which utilises the shiftwork provisions in the Award. The overriding motivation in supporting the application that can be derived from Ms Ryan's evidence was a desire to reduce operational costs through the reduction in loadings and penalties for working outside ordinary hours. However, Ms Ryan acknowledged that flexible working arrangements were available under the current Award. Ms Ryan's evidence did not suggest that the present provisions for weekend and afternoon shift were not fair and reasonable.
175 The evidence of Mr Wise, the Financial Controller of the largest Budget Rent-A-Car franchisee in the State, was that although the business has five branches, only one operates for a full day on Saturday and Sunday with the other branches open until 1.00 pm on weekends due to the cost of labour. The business employs 17 customer service representatives which are covered by the Award. Mr Wise's evidence was that if the penalty rates on weekends were lower, the business would consider opening all day on the weekend at its Campbelltown and Gosford locations. During cross-examination, when asked whether a rate of time and three quarters for work on a Sunday was unreasonable, he responded "No, I don't feel it is unreasonable". Mr Wise agreed that the main benefit of the application in so far as his employment was concerned was reduced costs and more efficient rostering.