Clerical and Administrative Employees (State) Award (No 2), Re [2005] NSWIRComm 397

FILE NUMBER(S): IRC 3613 of 2001 and IRC 1413 of 2003

CORAM: Wright J President; Sams DP; Staff J; Bishop C

Award - Clerical Industry - Application by Employers First to vary award re casual employees' span of ordinary hours, penalty rates for ordinary time worked on Saturday and Sunday and extension of ordinary hours to 7.00 pm - Application opposed by Union party to award - Application by Union party and other employers to remove alleged award ambiguity re hours of work and shiftwork - Special case principles - Matters to which Commission is to have regard - Requirements of s 10 of the Industrial Relations Act - Award making power - Fair and reasonable conditions of employment - Onus on respective applicants - Merits of applications - Lack of evidence for reduced penalty rates for ordinary time worked on Saturday and Sunday - Alleged ambiguity rejected - Concession by Union - Variation to award re ordinary time worked on Saturday and Sunday - Public interest to extend ordinary hours to 7.00 pm Monday to Friday - Savings provision sought - New award made. CATCHWORDS:

ASMOF (NSW) v CSAHS [2005] NSWIRComm 339 Clerical and Administrative Employees (State) Award, Re [2003] NSWIRComm 345 Clerks (State) Award, Re (unreported, Burns C, Matter Nos 21/1968 and 391/1968, 25 March 1969) Clerks (State) Award, Re (unreported, Burns C, Matter Nos 21/1968 and 391/1968, 4 July 1969) Clerks (State) Award [1958] AR (NSW) 8 Clerks (State) Award, Re (unreported, Full Bench, IRC 1153 of 1985, 30 April 1987) Dental Technicians (State) Award case (unreported, IRC 1269 of 1991 and 266 of 1992, 18 december 1992) Fruit Growing Industry case (unreported, IRC 390, 391 and 616 of 1988, 1001, 1023 and 1024 of 1989, 23 August 1991) Hairdressers case (unreported No 1232 and 1236 of 1987, 30 November 1989) Occupational Health Nurses' Superannuation (State) Award, Re (1996) 85 IR 158 Pastoral Industry (State) Award, Re (2001) 104 IR 168 Private Pathology Laboratories (State) Award case (unreported, IRC 1278 of 1991, 17 June 1993) Public Hospital Nurses (State) Award (2002) 115 IR 183 CASES CITED: Real Estate Industry (Clerical and Administrtive Employees) (State) Award 2003 [2003] NSWIRComm 149 Restaurant &c., Employees (State) Award (unreported, Marks J, IRC 216 of 1995, 1875 of 1995 and 1026 of 1996, 23 August 1996) Retail Industry (South Australia) Award - Variation 2004 [2004] SAIRComm 54 Shift Workers Case, Re [1972] AR (NSW) 633 Shop Distributive and Allied Employees Association - Victorian Shops Interim Award 2000 (AIRC, PR 941526, 3 December 2003) Shop Employees (State) Award (unreported, IRC 1682 and 2203 of 1984, 16 August 1985) Storeworkers - IGA Distribution Pty Limited New South Wales Distribution Centres Award 2002, Re (2002) 124 IR 1 TAFE case (unreported, IRC 566 and 1619 of 1989, IRC 515 of 1997, August 1991) Teachers (Non Government Early Childhood Service Centres) (State) Award [1994] NSWIRComm 166 Teachers (Non-Government Schools) (State) Award and other awards (unreported, Full Bench, 17 August 1990) Transport Workers Union of New South Wales and Chubb Security Services and Anor [2005] NSWIRComm 369 Transport Workers Union of New South Wales v New South Wales Taxi Industry Association [2005] NSWIRComm 407

HEARING DATES: 02/16/2005; 02/17/2005; 02/18/2005; 02/22/2005; 02/23/2005; 02/25/2005; 03/17/2005; 03/22/2005; 03/23/2005; 04/11/2005

APPLICANT (Matter No IRC2001/3613) Mr J De Celis and Mr T McDonald Employers First

APPLICANT (Matter No IRC2003/1413) Mr H Mette and Ms A Hartley United Services Union

RESPONDENTS Mr J De Celis and Mr T McDonald Employers First LEGAL REPRESENTATIVES: Printing Industries Association of Australia Australian Medical Association (NSW) Limited Restaurant & Caterers Association of New South Wales

Mr H Mette and Ms A Hartley United Services Union

Ms S Wellard Australian Business Industrial New South Wales Road Transport Association Inc

Mr M Mead Australian Industry Group New South Wales Branch

CORAM: Wright J, President Sams DP Staff J Bishop C

CLERICAL AND ADMINISTRATIVE EMPLOYEES (STATE) AWARD Application by Employers First for a new award

CLERICAL AND ADMINISTRATIVE EMPLOYEES (STATE) AWARD Application by the Federated Clerks' Union of Australia, New South Wales Branch for variation re clause 7 re shifts

1 The Commission has before it an application by Employers First for a new Clerical and Administrative Employees (State) Award ("the Award"). However, with the consent of the Federated Clerks' Union of Australia, New South Wales Branch ("the Union") (now called the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union and also known as the United Services Union) which had also filed an application for variation of the Clerical and Administrative Employees (State) Award, the parties initially pressed only two variations to the award, that is, a variation of cl 42, Area, Incidence and Duration and the insertion of a new subclause with a provision specific to telephone canvassers. 2 These matters were determined by Glynn J in Clerical and Administrative Employees (State) Award [2003] NSWIRComm 345. The parties agreed that the remaining matters in the applications would be dealt with after her Honour had delivered judgment in respect of the above issues. 3 Essentially, the remaining part of Employers First's application sought an extension of ordinary time from Monday to Friday (in certain circumstances to 12.00 noon on Saturday at present) to Monday to Sunday. 4 After her Honour had reserved judgment in IRC 4692 of 1999 and 3613 of 2001, the Union filed a further application to vary Cl 7, Shift Work, of the Award. 5 Glynn J formed the view that the outstanding aspects of the application filed by Employers First and the application filed by the Union, gave rise to a Major Industrial Case which could reasonably be expected to be heard by a Full Bench of the Commission pursuant to the special case principle. Pursuant to s 193(1) of the Industrial Relations Act 1996 ("the Act") her Honour referred the matter to the President and the matter was then referred to the Full Bench. The Applications

6 Conciliation conferences were conducted by Sams DP which resulted in a narrowing of the issues for determination by the Full Bench.

7 The Union's application seeks to remove what it characterises as an ambiguity in the award. It does not seek to alter the current status quo of the award. The Union contends that the award provides for two methods of arranging hours of work. Firstly, it submits that work could be done during "standard hours as provided for in cl 6 of the award". This clause provides that the ordinary hours of work will be between 6.00 am and 6.00 pm Monday to Friday inclusive, and between 6.00 am and 12.00 noon on Saturday. 8 The second method for arranging work is for it to be performed in "non standard hours" in accordance with Cl 7 Shift Work. The Union contends that this clause should be interpreted so as to allow for any employee who is rostered outside the ordinary standard hours in cl 6 to be engaged as a shift worker and paid the appropriate loadings. 9 The variation sought by the Union to cl 7 is as follows (emphasis in the original): 1. Delete cl 7(i) and insert in lieu thereof:

7 (i) (a) The provisions of this clause hall apply to the performance of work in a business where operations are conducted outside the span of hours set out in clause 6 of this Award. (b) Monday to Friday shifts are defined as any ordinary hours performed within the times set out in paragraphs (c) to (f) below. Such shifts shall attract the additional amounts prescribed by subclause (ii) (c) of this clause. (c) "Afternoon shift" means any shift finishing after 6.00 p.m. and at or before 11.00 p.m. provided that where the majority of employees in an established afternoon shift finish at a later time, up to 12 midnight, clerical employees may be required to work the same hours. (d) "Night shift" means any shift starting at or after 11.00 p.m. and at or before 5.00 a.m. or finishing subsequent to 11.00 p.m. and at or before 6.00 a.m. (e) "Permanent shift" means a night shift which does not rotate with another shift or shifts or day work and which continues for a period of not less than four consecutive weeks. (f) "Early Morning shift" applies to an employee whose ordinary hours on a regular shift commence between 5.00 a.m. and 6.00 a.m. except where such a shift is part of a shift system and preceding an afternoon shift finishing at 11.00 p.m. (g) Weekend shifts are defined as any ordinary hours performed on Saturday or Sunday. Public holiday shifts are defined as any ordinary hours performed on Public Holidays. Such shifts shall attract the additional amounts prescribed by subclause (ii)(f) of this clause. (h) "Seven Day Shiftworker" - (that is an employee who has an entitlement in accordance with clause 19 (ii) of this Award) means an employee who is rostered to work regularly on Sundays and Public Holidays. 2. Delete the amount of 15% from cl 40(i), Exemptions, and insert in lieu thereof "25%".

The variation claimed in paragraph 2 was not pressed by the Union. 10 The Employers First application, as amended, seeks the following: (i) The span of ordinary hours should be between 6.00am and 7.00pm ("ordinary hours"). (ii) Ordinary hours should be permitted to be worked on Saturday and Sunday at a penalty rate that is less than the overtime penalty. (iii) The penalties that should apply to ordinary hours on a Saturday and Sunday should be time and one-quarter and time and one-half respectively. (iv) The penalties that should apply to shiftwork (ie afternoon shift, night shift, early morning shift) on a Saturday and Sunday should be time and one-half and time and three-quarters respectively, in accordance with clause 7, Shiftwork. (v) Casual employees should be able to perform ordinary hours within the same span of hours that applies generally to any other employee under the Award. (vi) A savings provision should be inserted to ensure that employees who continue to work the same hours receive no less pay than they currently receive. (vii) A new Award should be made having effect from the date of decision and having a nominal term of 12 months. 11 Australian Business Industrial, Australian Industry Group and the New South Wales Road Transport Association ("the group employers") supported the Union's contention that the current shiftwork provisions in the Award allow an employee to work ordinary hours (that is work that is not overtime) on a Saturday or Sunday and to be paid for such work at time and one half and time and three quarters respectively. They contend that this is the proper construction of cl 7, Shiftwork, of the Award and support the Union's application and their objective, that being to remove confusion. In this regard, the group employers proposed an alternate shift clause which does not alter the operation of the current shiftwork provisions but that uses language that is clear and less likely to lead to confusion. The Union, in the alternative, supports the proposed shiftwork clause. 12 In all other respects, the group employers support the application made by Employers First. 13 The variation to cl 7, Shiftwork, proposed by the group employers is in the following terms: 7 SHIFT WORK

(i) "Shiftworker" means an employee whose ordinary hours of work are not wholly within the span of ordinary hours set out in clause 6 of this Award. (A) A Shiftworker who works the following types of shifts on weekdays will be paid the shift penalties prescribed by subclause (ii)(c) of this clause: (a) "Afternoon shift" means any shift finishing after 6pm and at or before 11pm, provided that where the majority of employees in an establishment finish afternoon shift at a later time, up to 12 midnight, clerical employees may be required to work the same hours. (b) "Night shift" means any shift starting at or after 11pm and at or before 5am or finishing subsequent to 11pm and at or before 6am. (c) "Permanent Shift" means a night shift which does not rotate with another shift or shifts, or day work and which continues for a period of not less than four consecutive weeks. (d) "Early Morning Shift" means a shift commencing between 5am and 6am, except where such a shift is part of a shift system and preceding an afternoon shift finishing at 11pm. (B) A Shiftworker who works the following type of shift will be paid the shift penalty prescribed by subclause (ii)(f) of this clause: (a) "Weekend Shift" means any shift in which ordinary hours are worked on a Saturday or Sunday. (C) A Shiftworker who is regularly rostered to work on Sundays and Public holidays will be classed as a Seven-day shiftworker and paid the entitlement prescribed by clause 19(ii) of this Award. 14 Consequential variations in respect of Public Holidays, Meal Breaks, Overtime and Meal Allowance and Annual Leave Loading would result if the above variations were granted. 15 Relevantly, the variations sought to the Award by Employers First in their amended application are as follows: 6. HOURS

(i) Weekly Employees (a) Subject to paragraph (b) the ordinary hours of work exclusive of meal hours shall not exceed an average of 38 hours per week and except as provided in Clause 7 - Shift Work, shall be worked between the hours of 6.00 a.m. and 7.00 p.m., Monday to Sunday inclusive, and shall be worked in one of the following ways: (1) on 19 days over a 4-week cycle; or (2) on 10 days over a 2-week cycle; or

(3) on 5 days in any week; or (4) on 5 and one-half days in any week. Where the employer and employee agree, rostered days off, which occur as a result of employees working in accordance with the provisions of this subclause, may accumulate to a maximum of 5 days. These accumulated days may be taken at any time mutually agreed between the employer and the employee and shall be taken within six months of accrual. Notwithstanding any other provision of this award the ordinary hours of work prescribed herein may be worked up to 10 hours on any day. Provided that in any arrangement of ordinary working hours where the ordinary working hours are to exceed 8 on any day but no more than 10, the arrangement of hours shall be subject to the agreement of the employer and the majority of employees concerned. (b) It is a condition of the allowing of a 19 day/4 week cycle, a 10 day/2 week cycle or a 5 day week that, if required, employees shall comply with the reasonable and lawful orders of the employer as to working overtime including the working of overtime on Saturday. (c) Where a 19 day/4 week cycle is worked, the ordinary hours of work shall not exceed 8 hours per day, Monday to Sunday inclusive, between the hours of 6.00 a.m. and 7.00 p.m. (d) Where a day 10 day/2 week cycle is worked, the ordinary hours of work shall not exceed 8 hours per day, Monday to Sunday, on 9 days of the cycle and 4 hours on any one day of the cycle, between the hours of 6.00 a.m. and 7.00 p.m. (e) Where a 5 day week is worked the ordinary hours of work shall be worked between the hours of 6.00 a.m. and 7.00 p.m., Monday to Sunday inclusive, such that either: (1) the ordinary hours of work on 4 days of any one week shall not exceed 8 hours and on one day of the week shall not exceed 6 hours; or (2) the ordinary hours of work on each day of the week shall be worked so that they shall not exceed 7 hours and 48 minutes per day. (f) Where a 5½ day week is worked the ordinary hours of work shall be worked so that they shall not exceed 6 hours and 48 minutes per day, Monday to Friday inclusive, and 4 hours on Saturday. (g) The starting time when once fixed in accordance with this subclause shall not be altered without seven days' notice being given by the employer to the employees. However, in an emergency, an employer and an employee may agree to change such employee's commencing and ceasing times with less than seven days' notice; provided that the employee shall be entitled to have the union delegate present when such matters are discussed.

(ii) Casual Employees The spread of ordinary hours of work shall be the same as those prescribed by sub-clause (i) of this clause.

(iii) Part-Time Employees The spread of ordinary hours of work, exclusive of meal times, shall be the same as those prescribed by sub-clause (i) of this clause, but shall not, in any case, be less than twelve hours per week. The ordinary hours of work shall not exceed eight hours per day. Provided that the ordinary hours of work prescribed herein may be worked up to 10 hours on any day. Where such arrangement of ordinary working hours is to exceed 8 on any day but not more than 10, the arrangement of hours shall be subject to the agreement of the employer and the majority of employees concerned. 7. SHIFT WORK

(i) Definitions: In this clause (a) A "shift worker" means an employee whose ordinary hours of work are in accordance with the shifts defined in paragraphs (b), (c), (d), (e) and (f) of this subclause. (b) "Afternoon shift" means any shift finishing after 7.00 p.m. and at or before 11.00 p.m. provided that where the majority of employees in an establishment finish afternoon shift at a later time, up to 12 midnight, clerical employees may be required to work the same hours. (c) "Night shift" means any shift starting at or after 11.00 p.m. and at or before 5.00 a.m. or finishing subsequent to 11.00 p.m. and at or before 6.00 a.m. (d) "Permanent shift" means a night shift which does not rotate with another shift or shifts or day work and which continues for a period of not less than four consecutive weeks. (e) "Early Morning shift" applies to an employee whose ordinary hours on a regular shift commence between 5.00 a.m. and 6.00 a.m. except where such a shift is part of a shift system and preceding an afternoon shift finishing at 11.00 p.m. (f) "Seven-day shift worker" means an employee who is rostered to work regularly on Sundays and public holidays.

(ii) Hours, Shift Allowances, Special Rates, Meal Interval (a) Notwithstanding any other provisions of this award and subject to the provisions of subclause (i) hereof, an employee may be employed upon shifts, in which case the ordinary hours shall not exceed eight in any consecutive twenty-four; or forty per week; or eighty in fourteen consecutive days; or one hundred and fifty-two in any twenty-eight consecutive days. Provided that the ordinary hours of work prescribed herein may be worked up to 10 hours on any day. In any arrangement of ordinary working hours where the ordinary working hours are to exceed 8 on any day but not more than 10, the arrangement of hours shall be subject to the agreement of the employer and the majority of employees concerned. In addition the arrangement shall average 38 hours per week over the shift cycle. (b) Times of beginning and ending the shift of any employee may in any case be varied by agreement between the employer and the employee or in the absence of agreement may be varied by at least one week's notice given by the employer to the employee. (c) A shift worker employed on a shift shall for work done during the ordinary hours of any such shift be paid ordinary rates prescribed by Clause 5 - Classification Structure and Wages, plus the following additional percentage of the graded rate of pay applicable as prescribed by subclause (iii)-(vii) of the said Clause 5. Afternoon shift - at the rate of 17 per cent Night shift - at the rate of 20 per cent

Early morning shift - at the rate of 10 per cent Allowances in accordance with this clause shall be circulated in multiples of 10 cents, amounts of less than 5 cents being taken to the lower multiple and amounts of 5 cents or more being taken to the higher multiple. (d) Juniors Junior employees working Shift Work shall be paid as follows: A junior who is a stenographer, comptometer operator, ledger posting or similar accounting machine operator, data processing machine operator, tabulating machine operator, computer operator, card punch operator or verifier operator, shall be paid the additional percentage of the Grade 3, Adult Rate. All other junior employees shall be paid the additional percentage of the Grade 1, Adult Rate. (e) A shift worker whose rostered day off coincides with a public holiday shall be paid a day's pay addition to his/her weekly wage, or have a day added to his/her annual leave. (f) A shift worker whose ordinary working period includes a Saturday, Sunday or holiday as an ordinary working day shall be paid: Saturday - time and one-half

Holidays - double time and one-half (g) Where ordinary shift hours commenced between 11.00 p.m. and midnight on a Sunday or holiday, the ordinary time worked before midnight shall not entitle the shift worker to the Sunday or holiday rate. Provided that the ordinary time worked by a shift worker on a shift commencing before midnight on the day preceding a Sunday or holiday and extending into a Sunday or holiday shall be regarded as ordinary time worked on such Sunday or holiday. (h) At least twenty minutes shall be allowed to a shift worker for a meal during each shift before the expiration of five hours. Such meal break shall be counted as time worked.

(iii) Overtime (a) All time worked by a shift worker in excess of the hours provided in paragraph (a) of subclause (ii) of this clause shall be paid time and one-half for the first two hours and double time thereafter. In computing overtime, each day shall stand alone. (b) A shift worker required to work overtime in excess of one hour on any shift shall be paid meal money, as set in Item 2 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates. If overtime exceeds five hours on any shift a further meal allowance of the same amount shall be paid.

(iv) Work on a Rostered Day Off (a) An employee required to work on a rostered day off shall be paid the rate prescribed in subclause (iii) of this clause except for the time worked on Sundays which shall be paid for at the rate of double time and time worked on public holidays which shall be paid for at the rate of double time and one-half. (b) Where work is performed as prescribed in paragraph (a) of this subclause on a Sunday or a holiday, such employee shall be paid a minimum of four hours at the appropriate rate.

(v) Special Rates not Cumulative The penalties herein prescribed are in substitution for and not cumulative upon the shift allowances prescribed in subclause (ii) of this clause.

(vi) Casual and Part-Time Shift Workers Casual and part-time shift workers shall receive the allowance prescribed in paragraph (c) of subclause (ii) of this clause.

(vii) Restrictions on Shift Work (a) No employee under 18 years of age shall be employed on shift work. (b) Employees under 21 years of age shall not be employed on the night shift, except employees not younger than 19 years of age whilst working on a training programme. The restriction on night shift shall not apply in these cases. 9. SUNDAYS AND HOLIDAYS (i) New Years Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Queen's Birthday, Eight Hour Day, Christmas Day, Boxing Day and an additional day's holiday to be observed pursuant to subclause (ii) of this clause, and any other day gazetted as a public holiday for the State shall be holidays for the purposes of this award. (ii) In addition to the holidays specified in subclause (i) of this clause, an employee shall be entitled to one additional day as a holiday in each calendar year. Such additional holiday shall be observed on the day when the majority of employees in an established observe a day as an additional holiday or on another day mutually agreed between the employer and employee. The additional holiday is not cumulative and must be taken within each calendar year. (iii) Any dispute concerning the day on which an additional holiday is to be taken by an employee may be referred to the Industrial Committee. (iv) No deductions shall be made from the wages of weekly or part-time employees for the week in which any of the holidays, referred to in subclause (i) of this clause, fall. (v) For work done on any of the holidays, referred to in subclause (i) of this clause, double time and one-half shall be paid with a minimum payment for four hours' work. (vi) Ordinary hours performed on a Sunday shall be paid at time and one half (other than on an afternoon, night or early morning shift) with a minimum payment for four hours' work; provided that an employer carrying on a newspaper business outside the area covered by the Clerical Employees in Metropolitan Newspapers (State) Award made on 12 March, 1998, in lieu of paying such Sunday or holiday rate may, by mutual consent in the case of a weekly or part-time employee, give the employee a whole day off within one month of the occurrence of such holiday or Sunday or, alternatively, may, by mutual consent, add such day or days to the annual leave of the employee. (vii) Where an employee is absent from the employee's employment on the working day before or the working day after a public holiday without reasonable excuse or without the consent of the employer the employee shall not be entitled to payment for such holiday. 16 The following witnesses gave evidence in the proceedings:

for the Union Mr M R Want, Executive President, New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union Ms Kathryn Lai, Practice Manager, Engadine Medical Centre Mr Stephen Bower, Organiser, New South Wales Government, Clerical, Administrative, Energy, Airlines & Utilities Union Mr Derek Margerison, Organiser, New South Wales Government, Clerical Administrative, Energy, Airlines & Utilities Union Mr Keith Harvey, National Industrial Officer, Australian Municipal, Administrative, Clerical and Services Union Mr Gary Day, Customer Service Agent, Hertz Australia Ms Kymberly Harrison, Customer Service Agent, Hertz Australia Mr Graeme Russell, Associate Professor in Psychology, Macquarie University Ms Kym Payne, Customer Service Representative, TVSN Limited Mr Paul Partridge, Library Clerk, Newcastle Newspapers Pty Ltd (was not required for cross-examination. His working hours would not be affected by the application) Ms Shauna Wallace, Clerk, Stud Book, Australian Jockey Club (was also not required for cross-examination) Professor Michael Bittman, Professional Fellow, University of New England Joanne Copper, Casual Costs Processor, Linfox Armaguard Pty Limited Lesley Knight, Customer Service Agent, Hertz Australia Mr Grahame Majoribanks, Editorial Administration Manager, Newcastle Newspapers Pty Ltd

for the Employers Ms Kathryn D Ryan, Human Resources Manager and Financial Assistant for Prestige International. Mr M R Wilson, Manager, Human Resources, Australian Jockey Club Mr T Wise, Financial Controller, John Cully Pty Ltd Ms Suzanne Hanton, Hotel Manager, Saville Park Suites Mr D R Paulsberg, Finance and Administration Manager, IVFAustralia Pty Ltd Ms A Dixon, Human Resources and Contact Centre Manager, Mobile Innovations and MIBroadband Pty Ltd Mr R Armstrong, Director, Standard Weighbridges Pty Ltd Mr M Lamont, Human Resources Manager, United Parcel Service Pty Ltd Ms Fiona Davies, Director, Workplace Relations and Human Resources, Australian Medical Association (NSW) Limited Overview of Employers' Evidence 17 The employer's evidence primarily consisted of witnesses who gave evidence about their workplaces. The evidence of Ms Davies, Director of Workplace Relations and Human Resources for the Australian Medical Association (NSW) Limited, primarily dealt with the claim that ordinary hours should be extended to 7.00 pm. We will deal with Ms Davies evidence in more detail when we come to address that specific issue. 18 It is to be observed that the witnesses called by Employers First do not represent a broad cross section of workplaces that employ clerical staff under the Award. These witnesses are all from employers who regularly or semi regularly engage clerical employees during weekends and after 6.00 pm. 19 An analysis of this evidence demonstrates that the proportion of work that is conducted on weekends is small in comparison to that conducted during the standard hours arrangement provided by cl 6 of the Award. 20 A summary of the employment arrangements at the employer workplaces appears in the following table which was provided with the written submissions of the Union [set out on next page]:

Table 1. Summary of employee numbers at relevant times (OT = Overtime, DS = Daylight Savings)

1. Employer 2. Number at work on a typical Saturday 3. Number at work on a typical Sunday 4. Number finish 6pm - 7pm on a typical weekday 5.Other shifts worked 6.Total clerical employees Prestige International 13 14 3 non-DS Night Shift and Other afternoon shifts 35 7 DS Australian Jockey Club 8 1 NIL NIL 50 Budget Rent-a-Car 7 7 2 NIL 17 Saville Park Suites 2 2 NIL Afternoon Shifts to 11pm 4 IVFAustralia 5 5 NIL - except OT NIL 24 Mobile Innovations 6 5 NIL Afternoon Shifts 44 Standard Weighbridges NIL - OT only NIL - OT only NIL - OT only NIL - OT only 4 UPS 10 15 3 non DS NIL 120 Nil DS Totals: 51 53 8 non DS 298 9 DS % of total 17% 18% 2.5%-3%

21 Employers First's evidence did not quantify the incidence of work in unusual hours currently performed in the clerical industry. The only statistical evidence before the Commission in this regard was a report commissioned by the Union from Professor Michael Bittman which we will return to later. The evidence does not support the proposition that the incidence of clerical work on weekends is greater than in other industries. The evidence actually points to the contrary. The evidence does not demonstrate that there has been a significant increase in the incidence of clerical work on weekends. The evidence from the majority of employers' witnesses is that they have always operated on the same basis as they do now. 22 Mr de Celis who appeared for Employers First acknowledged that "it may be an Award that applies to more employees in this State than any other". Overview of the Union's Evidence 23 The majority of the Union evidence was directed to establishing that the current compensation for work performed on weekends at a rate of time and half for Saturdays and time and three quarters for Sundays is fair and reasonable compensation for the disabilities associated with such work. 24 The Union called evidence from a wide variety of workplaces covered by the Award including the Newspaper Industry, Rental Car Industry, Call Centres, Cash Handling and the Racing Industry. 25 In addition, the Union called expert evidence from Professor Michael Bittman, Professional Fellow in Sociology at the University of New England and Associate Professor Graeme Russell, a Psychologist whose academic position in that discipline was at Macquarie University. Their evidence focused on the impact of working unsociable hours, particularly in the afternoon and on weekends. 26 Evidence was also called to establish that the compensation provided for working after 6.00 pm is fair and reasonable for the disabilities associated with work at that time. 27 The Union also called evidence from Mr Want, the Executive President of the New South Wales Branch of the Union and Mr Harvey, the National Industrial Officer with the Australian Services Union in respect of the Union's contention that the Award allows for ordinary time to be worked on Saturday and Sunday, pursuant to the shiftwork provisions of the Award. 28 Mr Mette, who appeared for the Union advised (in answer to a question from the Full Bench in respect of the number of people covered by the Award) that estimates of how many people are covered by this Award is made particularly difficult by the number of other clerical Awards there are in the Industry. Mr Mette suggested that the number would be in the hundreds of thousands. Mr Mette noted that the Award is a common rule Award which applies throughout New South Wales to a large number of industries where there is no specific Award, to both large and small employers and that it also operates as a safety net for a large number of federally certified agreements. 29 Mr Mette submitted that the Award is used in both industrial systems in determining questions relating to the no disadvantage test. 30 We turn to consider the evidence in respect of ordinary hours on Saturday and Sunday. We deal first with the evidence from Employers First witnesses. The Evidence of Employers First 31 Mr Matthew Wilson is the Human Resources Manager at the Australian Jockey Club ("the AJC"). His evidence was: (i) The majority of the AJC's race meetings are conducted on 22 Saturdays and public holidays. Such meetings commence between 12.00 noon and 1.00 pm. (ii) The AJC engaged clerical employees in the membership office, reception, Australian Prices Network and the Marketing Department on Saturdays when there is a race meeting. Mr Wilson's evidence is that between 10 to 15 employees out of 50 clerical employees are affected by this application. (iii) Apart from these employees, clerical staff normally work within the standard hours of 6.00 am to 6.00 pm Monday to Friday. The membership office is staffed by between 5 and 7 clerical employees during a normal race day Saturday to handle general enquiries from members and to distribute members' tickets. (iv) The employees in the membership office, which include casual employees who only work on the weekend, and weekly employees are paid overtime rates when they work on a Saturday. (v) In the reception area, the AJC engages three part-time employees. One of the part-time employees works four hours on a Saturday and is paid overtime rates. The AJC does not provide a "full roster" for Saturday because overtime rates are payable for work on that day. (vi) Mr Wilson states that overtime rates are paid because the Award does not permit the AJC to engage a part-time clerical employee to work during the day on Saturday without the payment of overtime. (vii) In the Australian Prices Network, the AJC employs a casual employee who works "any five days in seven including Saturday and Sunday". Mr Wilson states that if the casual "works an ordinary day on a Saturday or Sunday then he/she is paid overtime rates because there is no provision for a casual employee to work ordinary hours between 6.00 am and 6.00 pm on a Saturday or Sunday". (viii) Mr Wilson gave evidence concerning other industrial instruments that apply to workers at the race course on a Saturday. Each provides for ordinary hours on a Saturday. (ix) Mr Wilson's evidence was if Saturday was an ordinary day under the Award:

• the AJC would roster Saturday as an ordinary day;
• it would create an opportunity to roster more employees in the membership office on racedays as it is currently cost prohibitive;
• more employment opportunities would be created in the membership office. When giving his evidence, Mr Wilson stated that there would be an additional two to three full time roles available in the membership office if Employers First's application was successful;
• The AJC would provide a "full roster" for reception on a Saturday;
• The AJC could adopt a Tuesday-Saturday roster in weeks where there is a Saturday race meeting;
• The racing calendar for a year is set approximately 12 months in advance;
• Employees are aware of the need to work on a Saturday months in advance. Indeed Ms Wallace, an employee of the AJC gave evidence that from January 2005, she works on Saturdays in accordance with a planned roster in the membership office. (x) The additional employment opportunities that may be available if Saturday was made an ordinary day would be the same regardless of whether the rate for ordinary hours on a Saturday was time and one-half or was time and one-quarter. Mr Wilson stated the numbers of employees would be similar to those now employed even if the rate was lowered to time and one quarter. (xi) During cross-examination Mr Wilson conceded that a number of employees working at the track under other industrial instruments on Saturday racedays do not receive additional penalty payments and there is no difficulty in attracting those people to work at Saturday race meetings. (xii) During cross-examination, Mr Wilson conceded that if Saturdays were able to be rostered under the shiftwork provisions either as currently interpreted by the Union or proposed, and if the AJC were able to pay Saturdays at a rate of time and a half that it would be a benefit. In response to a question from his Honour the President, Mr Wilson agreed that such an arrangement would give the AJC a lot more flexibility. (xiii) Later in cross-examination, Mr Wilson 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 long, long time. He 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 also agreed with the proposition that Saturday is a day where racing events are held because the majority of the public has the day off. This evidence is consistent with the evidence of Professor Michael Bittman that Saturday is the dominant day for sporting activities and that the majority of the community does not work on that day. 32 Ms Kathryn Ryan is the Human Resources Manager and Financial Assistant for Prestige International ("Prestige"). Her evidence was: (i) Prestige International is a diverse services group which provides a suite of business processing outsourcing solutions, ranging from global contract centre services and insurance claims processing to roadside assistance and concierge service. Prestige is a Japanese company headquartered in Tokyo with offices in 16 cities worldwide, including Japan, Europe, North America, and the Asia/Pacific region. The Sydney office of Prestige was established in 1989; (ii) the Sydney office of Prestige operates through main services to clients - insurance-related services, credit card services and outbound telemarketing. Assistance is provided, particularly in respect of customers travelling from other countries; (iii) since the company was established, its employees have ranged from 180 to 15, the latter figure as a result of downsizing caused by the loss of a major contract. At the present time, the company employs 35 employees and made a small profit during the last quarter; (iv) the 35 employees comprise 26 customer service representatives, three project managers and six managers who are covered by the award;

(v) the company has operated 24 hours, seven days a week since 5 April 2004; (vi) employees are invited to nominate their preferred rostered hours and days and are rostered accordingly; (vii) employees who finish after 6.00 pm are paid between 17 per cent and 25 per cent allowance for all hours worked. During daylight saving, the daily roster is changed from 10.00 am to 6.00 pm to 10.30 am to 6.30 pm or 11.00 am to 7.00 pm; (viii) employees who work on weekends are paid penalty rates of time and one half on Saturday and time and three quarters on Sunday and shift allowances; (ix) Saturday and Sunday work are like normal working days as the company services so many different countries. Saturdays are particularly busy through to 1.00 pm for the insurance service as the company services the United States and Europe when their offices close for the day. The five and a half day week provided under the Award is not suitable for an operation such as this company's, given the hours that the company operates. (x) the significant costs associated with hours worked on a Saturday and Sunday is one of the factors which prevent the company from being able to grow its business. If Employers First application was successful, it would ensure that the company's pricing would be more competitive on a global basis allowing additional business to be placed in the Sydney office and reducing the chances of the parent company closing down the Sydney office. 33 Mr Tony Wise is the Financial Controller of John Cully Pty Ltd. His evidence was: (i) John Cully Pty Ltd is the largest Budget Rent-A-Car Franchisee in New South Wales; (ii) The Rent-A-Car industry has changed with more members of the general public renting vehicles for reasons including:

Ø for weekends away/holidays; Ø while another vehicle is being repaired; Ø reduced airfares has increased demand for a means of transportation once travellers reach their destination; Ø the property boom has realised an increase in vehicle rentals on weekends to facilitate "moving house"; Ø retail customers tend to rent light trucks and the like on weekends for domestic purposes such as cleaning up their yard. (iii) The price of rental vehicles has reduced significantly since the mid 1980's; (iv) The vehicle hire industry has been affected by consumer demand. The industry follows the retail industry closely - after retail businesses operated on weekends, the demands of customers changed and the vehicle rental industry followed; (v) The price charged for the rental of a vehicle is constant across the 7 days of the week and therefore it is sensitive to labour costs; (vi) The business employs 17 Customer Service Representatives covered by the Clerks Award across its branches. Their duties include staffing the rental counter, renting vehicles, telephone sales and the delivery of vehicles;

(vii) Work on seven days is necessary for the business; (viii) Though the business has five branches, only one operates for a full day on Saturday and Sunday. The other branches are only open until 1.00 pm on weekends; (ix) The business does not open the other branches all day on the weekend due to the cost of labour; (x) The business currently prepares its rosters so that employees are rostered to regularly work on Sundays and holidays in order that all employees fall within the seven day shift worker definition and consequently the business avoids paying overtime rates on weekends. This is currently done regardless of any individual employees' preference as to working on Sundays, in order to fit within the provisions in the current Award; (xi) Given that the business utilises the seven day shift worker provisions to apply the weekend shift work penalty rates (as opposed to overtime) all employees covered by the Clerks Award receive an additional week of' leave in accordance with Clause 19 of the Award; (xii) Driveway Attendants that also work on the weekend do not receive such additional leave. Further, Driveway Attendants receive the following penalties for work performed on the weekend under the Vehicle Industry - Repair Services and Retail (State) Award:

Ø On Saturday, no penalty prior to 12.00 noon, time and one-half after 12.00 noon (Clause 14(a)(i)) of the Vehicle Industry Repair Services and Retail (State) Award; Ø On Sunday, time and one-half (Clause 15(a)(i)(i); (xiii) If the penalty rates payable on weekends were lower, the business would consider opening all day on the weekend at its Campbelltown and Gosford locations for customers; (xiv) During cross-examination, Mr Wise agreed that Driveway Attendants were the only occupation in the abovementioned Award that attracted a lesser penalty rate; (xv) Mr Wise also agreed that the main benefit from the application insofar as his employer was concerned was reduced costs and more effective rostering. 34 Ms Suzanne Hanton is the Hotel Manager of Saville Park Suites. Her evidence was: (i) Employees of Saville who are employed in its hotel operations are covered by the federal Motels, Accommodation and Resorts Award 1998 ("the Motels Award"); (ii) The Motels Award provides: Ø A penalty of time and one-quarter for Saturday work (Clause 26); Ø A penalty of time and three-quarters for Sunday work (Clause 27). (iii) The Saville Group, a subsidiary of Stockland, a listed company on the Australian Stock Exchange, provides a concierge service to one apartment building in St Leonards (The Abode Apartments), which is Saville's first non-hotel based building management contract; (iv) Saville took on the concierge service contract to grow its own brand and to expand its business; (v) Saville was awarded the contract by the owners' corporation of Abode Apartments at its first AGM management meeting; (vi) The employees of Saville at Abode Apartments are covered by the Clerical and Administrative Employees (State) Award; (vii) The employees concerned are generally students who look for flexible work at times that do not conflict with their studies, particularly during the evening and on weekends; (viii) Labour costs at the Abode Apartments are 15 per cent higher under the Clerical Award than the labour costs of the Saville's hotel under the Motels Award; (ix) The concierge service is provided between 8.00 am and 11.00 pm, Monday to Sunday; (x) The busiest times for the concierge services are between 8.00 am and 10.30 am and 5.00 pm to 7.00 pm, Monday to Sunday; (xi) The service provided by Saville at the Abode Apartments is the same or similar as that provided by Saville at its hotels; (xii) Saville's operations at the Abode Apartments is running at a loss year to date, and it will therefore review the concierge services as a part of the business going forward. 35 In cross-examination, Ms Hanton agreed that Stockland was a property development enterprise and that the concierge services are directly connected to the interests of the Stockland Group as that service was seen as a value added component which allows for a higher price for apartments. The Stocklands Group 2004 Annual Report noted: "Stocklands Development Division perform strongly in FY04, delivering a record profit of $167.2 million, up 77% on last year's result. ... Our Apartments business laid the foundations for future growth with five new projects acquired during the year. Our new projects are strategically located in premium locations such as Little Bay and Gordon in Sydney and the landmark Eagle Street Pier Site on the Brisbane river. These tightly held locations provide solid markets for growth over the next three years." 36 The Stocklands Group Annual Report, in referring to the Saville Hotel Group Division, noted: "For the Saville Hotel Group, the 2004 financial year has been our most successful to date. A focus on yield management has achieved the highest possible occupancies and rates after two years of tough challenges in a competitive environment. A net profit of $4.8 million was delivered, representing a 58% improvement on the previous year. This is an excellent result in a competitive industry in which rates and occupancy levels are under considerable pressure." The overall number of employees for the Stockland Group increased from 984 in 2003 to 1,161 in 2004. 37 Ms Hanton also gave evidence that: (i) If penalty rates for ordinary hours on the weekend were set at the level proposed by Employers First there would be potential for Saville "to not only continue with our contract at the Abode Apartments but also to take on more of these concierge opportunities to increase and grow this side of the business". Additionally, Ms Hanton states that "to be sustainable we need to see some changes to the current hours of work structure that we are restricted in adopting by the Clerical Award".

(ii) During cross-examination, Ms Hanton maintained (correctly) that Saville's business is run distinctly from other parts of Stockland's business.

(iii) Later, in cross-examination, Ms Hanton gave evidence that she had done a costs analysis of the savings that would result if the application was successful. Her evidence was that there would be a cost saving of $4,000 per annum. 38 Mr Daniel Paulsberg is the Finance and Administration Manager of IVFAustralia. Mr Paulsberg's evidence may be summarised as follows:

(i) IVFAustralia operates IVF clinics at seven locations in New South Wales. The North, East and West clinics operate over seven days of the week;

(ii) Monday to Friday, daily operating hours fall between 7.00 am and 6.00 pm. On Saturday and Sunday, the operating hours are from 7.00 am to 12.00 noon; (iii) The clinics are operating on weekends to cater for the demands of patients; (iv) IVFAustralia engages employees under a number of Awards, including:

• Clerical and Administrative Employees (State) Award;
• Nurses, Other Than in Hospitals (State) Award;
• Private Pathology Award.

(v) Some of the employees request weekend work. For example:

• an employee works on weekends as she is a university student and this suits her study requirements;
• an employee can only work on weekends because she has a full-time job elsewhere;
• 75 per cent of clerical employees are part-time employees. Such part-time work, including work on weekends, suits their childcare or school arrangements; (vi) The employees working on Saturday and Sunday are regarded as seven day shift workers, so that IVFAustralia is able to pay shift penalties for weekends rather than overtime. During cross-examination, Mr Paulsberg explained that employees working on the weekend alternately work Saturday one week (and have Sunday off) and Sunday the next week (and have Saturday off); (vii) The employees working on a weekend do not otherwise work a shift; (viii) Nurses employed by IVFAustralia on the weekend are paid time and one-quarter for work on Saturday and time and one-half on Sunday. See Clause 8(ii)(b) of the Award in Exhibit 25; (ix) Mr Paulsberg explained that IVFAustralia support for Employers First's application is based on its aim to lower existing costs, and use the savings to extend IVFAustralia's services; (x) In the context of labour costs being IVFAustralia's largest cost, Mr Paulsberg states that Employers First's application to extend ordinary hours until 7.00 pm and to include Saturday and Sunday work will facilitate growth through an extension of operating hours during the week and on weekends. Such changes would require the employment of more staff.

(xi) Responding to the proposition that a reduction in operational costs would lead to an increase in employees, Mr Paulsberg stated that IVF planned to employ more staff irrespective of any changes in the Award. Any decision in this regard would be based upon the best service that IVF could offer and the support that was necessary for the doctors.

(xii) During cross-examination, Mr Paulsberg conceded that doctors generally prefer not to work weekends stating that "some of our doctors do prefer a later starting shift. Most of them would not prefer to work on weekends". 39 Ms Annette Dixon, Human Resources Manager, Mobile Innovations, gave evidence that: (i) Mobile Innovations employs approximately 44 employees covered by the Clerks Award. Previously, this organisation had been engaged in selling mobile phones, however, through a dispute with Vodafone had lost that right. Its subsidiary company known as Engin, to which the evidence also relates, is involved in selling a service known as "Voice Over the Internet". Mobile Innovations is a growth company and Ms Dixon agreed that the Award had not been a barrier to its growth.

(ii) The employees in the call centre account for the majority of those employees;

(iii) The hours of operation of the call centre are from 8.00 am - 8.00 pm, Monday to Friday and 9.00 am - 3.00 pm on Saturday and Sunday. An employee is available on call between 3.00 pm and 6.00 pm on the weekend;

(iv) The operating hours of the call centre are driven by: - Contractual obligations with the client, Vodafone; - Demand from customers that expect to access Mobile Innovation's services into the evenings and on weekends;

• An industry code for mobile number portability which was developed by the Australian Communications Authority pursuant to ss 455 and 458 of the Telecommunications Act 1997 (Cth). The code requires that the call centre be open for at least "standard hours of operation" on a business day (Monday to Friday) from 8.00 am to 8.00 pm, and from 10.00 am to 6.00 pm on Saturday.

(v) The hours worked by employees in the call centre, i.e. to 7.00 pm, would be considered ordinary hours in the industry in which Mobile Innovations operates;

(vi) Mobile Innovations competes with retail outlets that provide similar mobile telephone services. The employees of the retail outlets are covered by the Shop Employees (State) Award. Unlike employees covered by the Clerks Award who are entitled to overtime rates on the weekend, employees in the retail outlets receive time and one-quarter on Saturday and time and one half on Sunday;

(vii) The employees in the call centre are paid overtime rates on the weekend. Ms Dixon did not believe that the Award would permit the employees in the call centre to work ordinary time on Saturdays and Sundays. Further, Ms Dixon did not agree with the proposition that the current shift work provisions allowed ordinary hours of work on the weekend;

(viii) Currently existing call centre employees of Mobile Innovations service the requirements of Engin, however, as Engin grows it is expected that it would engage its own employees;

(ix) During cross-examination, Ms Dixon explained that Mobile Innovations supported the application "... to help our business and to serve our customers and to keep jobs here in Australia rather than having to go to India to try and get our customers service". 40 Mr Roger Armstrong is a Director of Standard Weighbridges Pty Ltd, a family owned and operated business. The business includes weighbridge facilities which are used for truck weighing and other road vehicle weighing. Mr Armstrong's evidence may be summarised as follows:

(i) Standard Weighbridges currently employs three full-time weighbridge operators, one at each of their sites at Smithfield, Auburn and Alexandria.

(ii) These employees work 38 ordinary hours per week. They also employ one part-time employee at their Smithfield site who works 36 ordinary hours per week.

(iii) In addition to the permanent employees, they also employ two casual employees. These two casuals fill in their roster to cover busy periods and on days when their full-time employees either do not work or are on leave.

(iv) All of the weighbridge operators are employed under the Award and also certified agreement. (v) Weighing occurs for two main reasons: to weigh products being sold and for safety and legal purposes (eg. to avoid overloading). Each accounts for approximately 50 per cent of standard weighbridge's custom; (vi) Weighing is discretionary and therefore highly price sensitive; (vii) Standard operating hours for direct, supervised weighing is 7.00 am to 4.30 pm, Monday to Friday; (viii) Outside of these hours Standard Weighbridges provides an automated weighing service to offer an unsupervised, out of hours service to customers; (ix) An automated service was brought in because of the high cost of after hours operation under the Award and because work could not be predictably arranged outside the standard operating hours of 7.00 am to 4.30 pm Monday to Friday; (x) Standard Weighbridges would prefer to be able to have seven days manned service because it provides a higher level of service but the costs involved have resulted in the business resorting to the automated service; (xi) During cross-examination, the following exchange took place: "Q. So, previously you would have employed people on the weekend before that technology was available? A. Yes, on Saturday mornings at one stage we had a local operator, yes. Q. You have effectively gone from a regular Saturday morning operation to covering that time as overtime with the existing staff? A. We have gone from manning that on a regular Saturday morning using the Saturday morning person in the Clerical Award, paying, I think, a secure $12 loading for regular operator, leaving that as an automated system but we would prefer to expand the hours that we man our sites. We would prefer to be able to give seven days manned service because of the high level of service but the costs involved are such that we decided not to do that. Q. On that Saturday morning you basically determined that $14 loading did not make it profitable for you to engage those hours on a regular basis for those employees? A. It is really the case that if we are going to open now we would prefer to do it all day on a Saturday and Sunday. I would not say that the loading made it unprofitable, but it is a case of if you are going to provide the service we really need to be able to provide a full daytime service. Q. If you were able to provide that service at the rate of time and a half all day Saturday, would you provide that service on a Saturday? A. We still consider that it is too expensive. Q. So the difference between time and a half and time and a quarter makes it profitable? A. It makes it more appealing. Q. Does that mean you actually roster someone those hours? A. We get customers asking for quotations to provide weekend service and we provide - we base our rates according to the Award. I mean, our charges reflect the cost of doing business and that includes obviously Award rates. Some customers will pay the Award rates. Some refuse it and say it is too expensive. If we were given a situation where we could regularly employ people on weekends at a more reasonable rate, we would pick up more work and it would, in effect, mean that we could put on more employees and employ more people." (ix) Mr Armstrong responded to a question about whether he could provide employment on the weekend at the rate of time and one-half and time and three-quarters as follows: "I feel that paying time and a half and time and three quarters is still a high cost and I don't believe that we would implement the weekend Saturday and Sunday regular work if they were the pay rates". (x) Later in cross-examination Mr Armstrong stated "the proposal of time and a half and time and three quarters would still be too expensive for our customers to pay". 41 Mr Marcus Lamont is the Human Resources Manager of United Parcel Service Pty Ltd ("UPS"), the world's largest express carrier and package delivery company that managers the delivery of goods in more than 200 countries. UPS is not engaged in the business of freight forwarding. The nature of the operation is such that each package delivered does not exceed 75 kilograms in weight. 42 Mr Lamont's evidence may be summarised as follows:

(i) UPS has approximately 250 full time equivalent employees in New South Wales with approximately 120 engaged in clerical work.

(ii) The exigencies of UPS' operations dictate that it employs clerical workers on the weekend.

(iii) UPS regularly engages clerical employees to work on weekends and has done so for "probably the last four to five years".

(iv) Jets containing parcels for delivery in Sydney depart North America on Saturday morning and arrive in Sydney on Sunday morning.

(v) The volume of parcels received by jet on Sunday is 800 per cent more than UPS receives on other days of the week.

(vi) In order to have the large volume of parcels ready for delivery on Monday, a number of clerical tasks must be performed on the weekend.

(vii) When the jets are loaded in North America, a data report is electronically sent to Sydney which describes each parcel that will arrive.

(viii) Clerical employees are employed on Saturday and Sunday to enter data that is used for a mandatory customs entry for each parcel.

(ix) 5 casual employees who perform the data entry work on Saturday and Sunday receive overtime rates. The casual employees work only on weekends.

(x) On Sunday, in addition to the casual employees, 4 permanent employees also perform data entry. The permanent employees work three other days between Monday and Friday. The casual and permanent employees receive double time for work performed on Sunday.

(xi) Additionally, UPS roster employees in the billing department to work on weekends in order that bills may be ready for when the parcels are delivered on Monday.

(xii) Such employees receive overtime rates for the work on weekends and work 37.5 hours ordinary time between Monday and Friday as they are classified as full-time employees. Mr Lamont further explains that under the Award the hours worked during the day on Saturday and Sunday would not presently constitute ordinary hours in any event.

(xiii) If Saturday and Sunday formed part of the ordinary working week, UPS would consider implementing an alternating roster whereby employees would work on weekends as part of their ordinary hours. This would reduce the penalties payable by UPS and increase the leisure time of the employees concerned.

(xiv) UPS could conduct its clerical activities overseas at another UPS location but to date UPS had made a conscious decision to maintain the functions in Sydney.

(xv) During cross-examination, Mr Lamont stated that the difference between paying time and a quarter and time and a half on a Saturday would be one consideration (described by Mr Lamont as the medium consideration) in determining whether or not any decision was made to transfer the work offshore. Mr Lamont's evidence was that there were many other considerations before such a decision was made including whether the company's competitors went offshore. Mr Lamont acknowledged that competitors such as Fedex and DHL were both based in Australia at the present time although parts of their work was done overseas. For example, the Customer Service Centre for Fedex is run out of Malaysia and billing for DHL is processed in the Phillipines. Mr Lamont stated that the level of weekend rates was a "medium consideration" in determining whether or not clerical work was moved overseas. (xvi) Mr Lamont understood that both Fedex and DHL were respondents to the Clerical and Administrative Staff - International Freight Forwarding and Customs Clearing Industry Award 2003, a federal Award. It was further acknowledged that the Federal Award resulted in an identical payment for work done on weekends as that provided for under the Award.

43 Ms Fiona Davies is a Director of Workplace Relations and Human Resources for the Australian Medical Association (NSW) Ltd ("AMA"). Ms Davies evidence may be summarised as follows:

(i) The demand for medical services over the last decade has changed considerably as patients are demanding to see doctors at times that suit them.

(ii) There is increasing demand for doctor's practices to remain open later in the evening and to be open on weekends.

(iii) Large medical centres are often open until 9.00pm, seven days per week.

(iv) The Department of Industrial Relations ("DIR") has ordered some medical practices to pay overtime rates to casual employees who worked on a Saturday because a full-time employee did not also work on a Saturday.

(v) The DIR does not interpret the Award as permitting the application of the shift work provisions to circumstances where an employee only works on a Saturday.

(vi) Ms Davies does not interpret the Award as permitting the application of the shift work provisions to circumstances where an employee only works on a Saturday.

(vii) The DIR has, in one case, permitted an employer to classify an employee as a shift worker where the employee worked on both Saturday and Sunday.

(viii) If the rate for ordinary hours was set at time and one half and time and three quarters for Saturday and Sunday, it may still discourage medical practices from either opening at all, or from extending the hours of operation on the weekend. During cross-examination, the following evidence was given: Q. A rate of time and a half for all work on Saturday, that is not a fair and reasonable compensation? A. We would consider that for a number of practices, again speaking purely anecdotally, that rate would still be a cost constraint to have in considering their hours of opening, whether it is fair and reasonable, more fair and reasonable, most fair and reasonable is not a matter for me to absolutely determine. I can tell you that our members would still find that rate would cause them concern in their cost structures. Q. And the rate of time and three quarters for Sunday, would you consider that is fair and reasonable? A. Once again my understanding is that they would consider that would be a cost constraint that they would have to take into consideration. Q. You would view it from a cost constraint perspective, not from the perspective of the person who works those hours. Is that correct? A. That is correct.

(ix) A copy of the Australian Government's Department of Health and Ageing Memorandum entitled "Round the Clock Medicare: Higher Medicare Rebates for After Hours GP Services" was tendered during Ms Davies' evidence. This document provides that a doctor may only claim additional payments for "out of hours services" provided:

• on a public holiday; - on a Sunday; - before 8am or after 8pm, Monday - Friday; - before 8am or after 1pm on a Saturday.

(x) A Media Release by the AMA dated 28 September 2004 contended that practice costs rise outside the ordinary hours currently prescribed in the Award. The President of the AMA stated:

"The Coalition's decision to increase the Medicare patient rebate for all services provided after 8pm on weekdays, after 1pm on Saturday and all day Sunday, will help make this care more affordable and accessible for patients.

But the policy needs to go even further and include all services provided after 6pm on weekdays and any time on the weekend as this is when general practice costs rise. To help GPs keep their doors open longer the Medicare Schedule must be amended to include a more realistic definition of after hours service."

(xi) During cross-examination, Ms Davies was provided with Department of Health Schedules which set out the consulting fee for attendances, emergency attendances and after hours attendances to which no other item applies effective from 1 January 2005. Ms Davies stated that the majority of GP attendances would fall into the Level B category, that is professional attendance involving taking a selective history, examination of the patient with implementation of a management plan in relation to 1 or more problems or a professional attendance of less than 20 minutes duration (not being an out of hours attendance) for which the surgery consultation fee is $30.85. Level B out of hours surgery consultation attracts a fee of $40.85.

(xii) Work on a Saturday in a medical practice is often a convenient shift to work for a uni student or a parent.

Union Evidence 44 Mr Gary Day is employed as a Customer Service Agent with Hertz Australia. Mr Day's evidence was that he was employed on a permanent full time basis working 11.30 am to 6.00 pm Monday; 9.30 am to 6.00 pm Tuesday and 11.00 am to 7.00 pm Wednesday, Thursday and Friday. Mr Day is paid a shift loading of 17 per cent on the shifts he works on Wednesday, Thursday and Friday. 45 Mr Day's evidence was that working the shift arrangement that he did was harder on him physically because he didn't have the same daily routine. Working until 6.00 pm or 7.00 pm on weekdays gave him less time to spend with his wife, family and friends at the end of the day when most people are relaxing and enjoying social and personal times. 46 Mr Day believed that the compensation that he receives for working the late shifts is reasonable. 47 Mr Day stated that if the shift loadings and penalty rates he currently receives were reduced or abolished, he would no longer work afternoon shifts. His evidence was that he was prepared to work the hours that he did because of the extra remuneration he received and was willing to make sacrifices in terms of his personal life and physical health because of the additional remuneration. He believed if Employers First's application was successful that Hertz Australia would find it harder to employ suitable people to work the evening weekday shifts and weekend shifts. His evidence was that the application represented a very backward step in terms of wages and conditions for employees at a time when society was supposed to be advancing. 48 Ms Kymberly Harrison is also employed by Hertz Australia as a Customer Service Agent. Ms Harrison's evidence can be summarised as follows: (i) Ms Harrison has been employed by Hertz for approximately 18 months and stated that Hertz employs approximately 30 clerical staff, which consist of approximately 20 permanent, full or part time staff and 10 casual staff. (ii) Ms Harrison works a seven day rotating shift with each roster covering nine weeks. Ms Harrison generally works three or four night shifts in a row followed by a day off and then three or four morning shifts. (iii) Ms Harrison stated that she has very little time to spend with her partner. Often when she is at home with her partner, she is exhausted because of the shift work and unusual sleeping patterns and this impacts negatively on the time that she is able to spend with her partner. (iv) Her evidence was that she rarely goes out in the evening because she is either working or sleeping. (v) In light of the hours that Ms Harrison works, she is unable to rely on public transport to get to work and is therefore required to run a car which is an additional expense. Ms Harrison stated that she is opposed to the application on the basis that the rates of pay are currently, in her view, very low and if it were not for shift loadings and penalty rates, she would not remain in her current position. In order to make a decent income, she has to work over a seven day shift roster and work overtime. If shift loadings and penalty rates were reduced or abolished, she would no longer work early morning, evening or weekend shifts. Her evidence was that the extra remuneration is only barely reasonable compensation. (vi) The only reason that she continues to work the shifts that she does is to receive the extra pay which means she has to surrender her social life and time with family and friends. (vii) Ms Harrison believed that Hertz would find it difficult to find people to work early morning, night and weekend shifts if there were not reasonable financial compensation provided. 49 During cross-examination, it was conceded by the Union that the application would not affect Ms Harrison and that she would receive the same penalty rates under the proposed Award. 50 Ms Lesley Knight is also employed by Hertz Australia as a Customer Service Agent, a position she has held for approximately four years. Ms Knight's evidence may be summarised as follows: (i) Ms Knight works on a seven day rotating shift roster and each roster covers nine weeks. Ms Knight works two different shifts, 5.00 am to 1.00 pm or 2.00 pm, and 2.00 pm or 3.00 pm to 10.00 pm or 11.00 pm. Generally, Ms Knight works the same shift pattern as Ms Harrison. (ii) Her partner works ordinary hours Monday to Friday and because of the hours that she works, they spend little time together. She has great difficulty catching up with friends and family because of the hours that she works and misses out on social events in the evenings because she is either working or needs to be in bed early because of an early start. When she has a day off during the week, her evidence was that it is not easy to socialise because most other people are working. (iii) Ms Knight has one weekend off every three weeks which she uses to catch up with family and friends. (iv) As public transport is not available for her to get to work during the hours she is engaged she has to maintain a motor vehicle. (v) The only reason that she continues to do shift work is because of the added income she receives. Ms Knight would not work the shifts that she does if she was paid at a lesser rate. She estimated that she would lose approximately $200 per week if there were no penalties available. If weekend and early morning or night work only attracted the same remuneration as work during ordinary hours Monday to Friday, Ms Knight would only work Monday to Friday ordinary hours. 51 Ms Knight was not required for cross-examination as she would not be affected by the proposed application. 52 Ms Kym Payne is employed as a full time customer service representative with TVSN Ltd ("TVSN") in a call centre. Ms Payne's evidence may be summarised as follows: (i) TVSN employs approximately 300 people. 70 of these employees work in a call centre which operates 24 hours, seven days a week. (ii) Ms Payne works 10.30 pm until 7.00 am on Sunday, Monday and Thursday and from 12.00 midnight until 8.30 am on Friday and Saturday. (iii) As a result of the shift patterns worked by Ms Payne, she spends little time with her partner and finds it difficult to spend time with her friends and family. Due to a lack of public transport being available to get to work during the hours required, Ms Payne maintains a motor vehicle. (iv) If shift loadings and penalty rates were reduced or abolished, she would not work the shifts that she does. She only works these shifts because of the extra remuneration that she receives. 53 Ms Payne was not required for cross-examination as the proposed application by Employers First would not affect her remuneration. 54 Mr Paul Partridge is employed as a Library Clerk with Newcastle Newspapers Pty Ltd. Mr Partridge was not required for cross-examination. Mr Partridge's evidence may be summarised as follows: (i) He has been employed by Newcastle Newspapers for approximately 22 years. Mr Partridge is employed under the terms of the Newcastle Newspapers Pty Ltd Clerical Staff Enterprise Agreement 2003. (ii) This agreement is underpinned by the Clerical and Administrative Employees (State) Award. (iii) Mr Partridge works 2.30 pm to 11.00 pm Monday to Friday and is compensated for this work by the payment of a 17 per cent shift allowance.

(iv) Mr Partridge's evidence was that his shift work gets in the way of him enjoying a normal domestic life with his partner. He is unable to socialise during week nights. (v) Mr Partridge stated that he strongly opposed the Employers First application, believing that that the current rates of pay are appropriate to compensate him for the hours that he works. 55 Mr Grahame Marjoribanks has been employed by Newcastle Newspapers Pty Ltd for approximately 25 years. Mr Marjoribanks' current position is Editorial Administration Manager. Mr Marjoribanks' evidence can be summarised as follows: (i) There are approximately 350 employees at Newcastle Newspapers including part time and casual employees. Of these, about 90 are clerical and administrative workers.

(ii) Mr Marjoribanks works 9.00 am to 5.00 pm Monday to Thursday and either 3.00 pm to 11.30 pm or 2.30 pm to 11.00 pm on Sundays for which he is paid double time for all work on Sunday. (iii) As a result of working on Sundays, he misses out on a range of activities with his family which include two teenage children. Mr Majoribanks would not work Sunday evening if he did not receive the penalty rate for such work. The penalty for such work has been time and three quarters until recently when the rate was increased to double time for each hour worked. (iv) Mr Marjoribanks' Sunday penalty amounts to an additional $145 per week and his evidence was that he works Sundays in order to gain access to this additional income that enables him to meet his financial obligations. (v) In his capacity as a supervisor of clerical and administrative staff, he stated that he had concerns about Newcastle Newspapers' ability to attract employees to weekend and evening work on reduced penalty payments. 56 Ms Joanne Copper is employed as a casual cash processor with Linfox Armaguard Pty Ltd. Ms Copper's evidence was: (i) that she has been employed in this position since March 2003 and is the Union delegate. The Armaguard NSW (Clerical and Administrative) Enterprise Award 2002-2004 allows the span of hours from 5.00 am to 8.00 pm to be worked in ordinary time. There are approximately 50 clerical staff employed at the Rosebery site of Armaguard; (ii) Ms Copper works a set shift from 11.30 am until between 8.00 pm and 10.00 pm Monday to Friday with the exception of Tuesdays when she works 10.30 am to 7.00 pm; (iii) Ms Copper stated that her shift patterns meant that she was generally not home for evening meal times. Working the unusual hours has placed a strain and extra friction on Ms Copper's relationship with her husband as they do not share much of a social life; (iv) Ms Copper stated that she was opposed to Employers First application and also that her employer was attempting to increase the span of ordinary hours in the Enterprise Award. A meeting of employees has rejected the proposal by Armaguard to increase the span of ordinary hours; (v) Ms Copper stated that she was aware that Armaguard was currently experiencing difficulty in filling the afternoon shifts and has a problem retaining staff to work those hours; (vi) During cross-examination, Ms Copper acknowledged that the Employers First application, if granted, would not affect her. 57 Ms Kathryn Lai is employed as a practice manager at the Medical Practice of Dr Ayres and Givney, Engadine. Ms Lai has been employed by the practice for over 18 years and has been a Practice Manager for the past 10 years. Ms Lai's evidence may be summarised as follows: (i) She is responsible for book work and accounts, organising of staff rosters, training, reception and generally running the office.

(ii) Ms Lai is classified as a Level 5 Clerk and paid $3.00 above the Award. The Medical Practice is open from 8.30 am until 6.00 pm Monday to Friday and 8.00 am to 11.30 am on Saturday. (iii) There are five clerical staff employed in the Practice including Ms Lai and in organising the roster she endeavours to distribute the afternoon shifts evenly so that each employee finishes late once a week for which the employee is paid a 17 per cent loading.

(iv) Ms Lai generally works on a Saturday morning. Ms Lai stated that she believed a 17 per cent loading is fair compensation for the inconvenience of working an afternoon shift.

(v) Ms Lai stated that it would be more difficult to get people to work the afternoon shift if there was no loading.

(vi) Ms Lai works most Saturday shifts because the other administrative staff do not want to work that shift. Ms Lai believed that it would inconvenience their family lives more than hers as she no longer has school aged children who need their parents on Saturday mornings for sporting activities. (vii) Ms Lai is paid ordinary time for work on the Saturday together with a $14.00 loading. (viii) Ms Lai stated that she was opposed to the Employers First application. Based on her work with the bookkeeping of the practice. Ms Lai did not believe that the payment of compensation for work on weekends and afternoon shifts in any way places an unreasonable burden on the finances of the practice.

(ix) Ms Lai doubted that a reduction in loadings would make it more likely that the practice would employ additional clerical staff. She believed that a reduction of the shift loading would make it harder to obtain staff to work on afternoon and weekend shifts. (x) During cross-examination, Ms Lai agreed that the operating hours of the practice were fairly standard for a practice of its size in a suburban area. (xi) Ms Lai also stated that she was now working four days per week and Saturday morning. It was put to Ms Lai that the Award required the working of five and a half days per week in order for Saturday morning to be ordinary time. Ms Lai was surprised at this proposition, stating that she found the Award quite difficult to interpret. (xii) Ms Lai agreed during cross-examination that in light of her hourly rate if the Employers First application was granted, she would receive approximately $16.00 in lieu of the current loading of $14.50 for working on Saturday morning. 58 Ms Shauna Wallace is employed as a part time clerk by the AJC. Ms Wallace works in the Australian Stud Book Department during the week and in the Membership Section on some Saturdays and public holidays when race meetings are conducted by the AJC. Ms Wallace's evidence may be summarised as follows: (i) She has been employed for approximately 11 years with the AJC and currently works 22 hours per week at the Australian Stud Book. (ii) Ms Wallace also works approximately 10 Saturdays per year, from 10.00 am to 4.00 pm in the Membership Section. As a result of working on Saturdays, Ms Wallace stated that she is unable to participate in social, family and sporting activities such as going to watch her son play football. (iii) Ms Wallace stated that the impact of working weekends would be greater if she was required to carry out work on weekends as part of her ordinary hours rather than by her own choice. (iv) Ms Wallace had read the affidavit of Mr Wilson and generally agreed with his evidence regarding the employment of clerical employees at the AJC. Ms Wallace stated that on Saturdays she is paid at overtime rates for the times she works although the hourly rate is calculated on a rate which is less than her weekly rate of pay. (v) Ms Wallace stated that if the Employers First application was successful and compensation for working weekends was reduced, she would be far less inclined to work on weekends and she believed it would be harder to get other staff to work the hours. In reply to this belief, Mr Wilson, whose evidence has been summarised earlier, stated that a number of employees working at the track under other industrial instruments on Saturday race days do not receive additional penalty payments and there is no difficulty in attracting those people to work at Saturday race meetings. 59 Mr Derek Margerison, an organiser with the USU, gave evidence in response to the evidence given by Mr Wilson for the AJC. Mr Margerison stated that his responsibilities as an organiser included organising members employed in a clerical capacity at the AJC. Mr Margerison stated that he had attended a series of meetings in August, September and October 2004 to discuss a new enterprise Award for employees of the AJC. Mr Wilson and Mr M Ford represented the AJC during these negotiations. Mr Margerison stated that the AJC did not seek any change to the hours of work arrangements during these negotiations and that he was not aware of the AJC seeking greater flexibility in the hours of work arrangements. 60 A new Award known as the Australian Jockey Club - Single Bargaining Unit Enterprise Award 2004 ("the Enterprise Award") was made by consent by Commissioner Murphy on 7 December 2004. 61 Mr Margerison stated that the AJC had not consulted with its clerical employees regarding its participation in these proceedings and its acquiescence in an application to reduce weekend penalty rates. Mr Margerison contended that the failure to consult was contrary to the objects of the Enterprise Award. 62 The Union called two expert witnesses, Professor Graeme Russell, an Associate Professor in Psychology at Macquarie University who has been teaching and researching work and family issues for the past 25 years and Professor Michael Bittman, an expert on the collection and analysis of time use statistics, who is currently Professional Fellow in Sociology at the University of New England and was formerly Senior Research Fellow at the Social Policy Research Centre, University of New South Wales. 63 Professor Russell has published numerous academic articles and books on families, fathers, child development and work and family. Professor Russell was engaged by the Union to prepare a report on issues associated with the significance of working during unsociable hours with particular focus on the effect of such working patterns on family and social interaction. 64 Professor Russell summarised the key issues in his report as follows: My report goes to the significance of working unsociable hours on a family and personal well being and, as I stated in my report there are various definitions of those unsociable hours - atypical, not standard, and so on, but in essence they are hours of work, early mornings, evenings and weekends. These are times when families and friends would expect to have the opportunity to be together and engage in family life. What I was doing was looking at the implication of working these unsociable hours on those kinds of interactions and I suppose, if I can summarise quickly the essential points that I have in my report - they are that family and close relationship matters both in respect to individuals and to a family - particularly family and close relationships matter to both individuals and to family and individual outcomes and that might seem like an obvious point but it's really important to affirm that.

Time together, shared activities and active involvement in the life of other family members is essential to sustain effective family relationships and positive outcomes for families. Early mornings, evenings, nights and weekends are very important for people because they are the times when there is both the time and the opportunity for participation and involvement in shared activities. It's also the time the majority of people are available, especially children, to engage in those family activities and particularly family rituals.

To summarise a bit more on the nature of this, there are five points that come out in the report. The data shows that people prefer not to work at times that interfere with their family and personal commitments. Working unsociable hours does have a negative impact on family relationships. Social hours - the reverse of unsociable hours - are salient for family interaction and working on weekends has a significant impact on family interaction and I can refer to the data of Michael Bittman here. Finally, the emerging area of research is that working unsociable hours has an impact on family and individual wellbeing. 65 Unsociable, non standard or atypical working hours, according to Professor Russell's evidence, are usually taken to mean early mornings (before 8.30 am), evenings (after 5.30 pm), nights and weekends. He stated these are times when many families, couples and friends would expect to have the opportunity to be together and to engage in family, social and community activities. 66 During cross-examination, Professor Russell stated that he had undertaken a substantial amount of research into families in the past and that one of the strong findings that came out of that research was that where parents arrange their working hours so that they can share child minding responsibilities, those families often struggle in terms of their family relationships. He stated it was a pattern that was often worked out on the basis of lack of availability of child care and it wasn't always a pattern that the parents preferred. In some of those families, Professor Russell stated he would consider those people in terms of the lifestyles they were leading were potentially at risk with regard to relationships. Professor Russell acknowledged that his report was not specific to clerical employees. However, Professor Russell emphasised that regardless of any occupation, in the end it was the working of non standard hours that still had an impact on child wellbeing. 67 Professor Bittman's evidence may be summarised as follows: (i) Professor Bittman's research interests include social policy and social change; family dynamics, time spent in unpaid work (especially caring for others); trends in working hours and the distribution of leisure. (ii) Professor Bittman has been invited to chair expert committees of the United Nations, to address the United States' National Academy of Sciences and to deliver a plenary (symposium) address to the World Congress of Sociology. Professor Bittman also led the team that drafted a report on balancing work and family life for the OECD. (iii) Professor Bittman was asked to prepare a report on "The Frequency of Working on Weekends and effects on other activities" drawing upon his knowledge and expertise in the area of time use statistics, for the Union. (iv) Professor Bittman summarised his findings in his report this way: (a) It was possible to examine the issue of whether working on a Saturday or Sunday leads to relative social isolation by inhibiting the opportunities for social contact with friends, colleagues and neighbours. (b) In terms of the amount of social contact, Saturday and especially Sunday are the most important days of the week. Time spent with immediate family (spouse and where applicable, children) on weekends is roughly 70 per cent higher than mid week. A similar pattern holds for the time spent with children, with parents devoting 50 to 70 per cent more time to leisure activities with their children than mid week. Naturally, time spent with children overlaps with time spent with family and it is hardly a surprise to find that these patterns so closely resemble each other. Sunday is also the day that adults devote the greater time to eating with other family - 50 per cent more time than on a weekday. On Saturdays adults spend 44 per cent more time breaking bread with other family members. (c) Taking these findings together, Professor Bittman states that it is reasonable to conclude that Sunday is the most critical day for families to spend time together. (d) Although not quite as important as Sunday, Saturday is also a day of important social contact with friends, colleagues and neighbours. Working age Australians devote roughly double (115 per cent) of the time to these activities on Saturdays and 50 per cent more time than on a week day. 68 During cross-examination, Professor Bittman stated that his research suggested that there had been a lengthening of the working day on average and that the likelihood of working after 6.00 pm in the evening has increased markedly in the last two surveys. The other significant trend noted by Professor Bittman was that on a daily basis in the mid 1970s, it seemed as though a reasonable proportion of women were able to work six hour working days, which is significant because that is the number of hours that children are normally in school and by the 1990s, the proportion working a six hour day had dwindled to almost nothing. So women working part time now seem to work a seven or eight hour day. 69 In respect of the above findings of Professor Bittman, the following exchange took place during cross-examination:

Q: If I could ask you to go to page 20. I think on page 20 you start to present your findings as to time or the loss of time spent in certain non work related activities. Can you explain to the Commission the regression analysis that you undertook to come to the conclusions that you did in your report?

A: Okay. Well, the idea behind a regression analysis is that there could be two explanations for any differences you found in mean times allocated to particular activities between those people who worked on a Saturday or Sunday and those who did no work on weekends; and some of this difference, it can be argued, might be the result of this difference, it can be argued, might be the result of the different types of people who did either of these two activities and the point of the multiple regression is to hold those other characteristics constant. So the point of the regression was to hold together, hold constant the kinds of activities that might have explained some of these differences in time allocation; and the procedure, therefore, attempts to give you a net effect of working on a Saturday or a Sunday, which is independent of these other personal characteristics that people may have. The kinds of characteristics I have held constant are either known from previous research to have large impact on people's allocation of time, such as family composition, or be pertinent to industrial matters, in other words to be about either an occupation or an industry. So what the output of the procedure produces is a constant term, which is the time allocated to the particular activity I'm examining for the reference category which from memory was --

A: 22, yeah. Okay, yes. Currently employed working aged male who is an elementary clerical, sales or service worker living with his wife and school aged children who does not work on a Sunday. So the effect that is just for Sunday or Saturday is relative to that person.

Q: So that person, as I understand it, might spend 69 minutes or thereabouts in time spent eating with family members?

Q: Do we understand that that person loses 30 minutes or generally people lose 30 minutes regardless of their occupation?

A: It is that particular person with those characteristics.

Q: Just in terms of the reference group that you have described, it is elementary clerical sales or service workers?

A: Yes. Submissions Removal of Award Ambiguity - the Union's Case 70 It is the Union's application that the Award is ambiguous in respect of whether an employee who is rostered outside the ordinary span of hours can be classified as a shift worker. 71 The Union's case is that the Award provides for two methods of arranging hours of work. 72 The first method is that work can be performed during "standard" hours in accordance with cl 6 Hours of Work. 73 The second is that work can be performed in non standard or unusual hours via Cl 7 Shift Work. According to the Union, this clause should be interpreted so as to allow for any employee who was rostered outside the ordinary span of hours in cl 6 to be engaged as a shiftworker and paid appropriate loadings. 74 The Union contends that the shift loadings for working ordinary time during weekends and outside the span of hours are intended to compensate for the inconvenience associated with working during unsociable hours. 75 The Union submitted that it was clear that prior to an Award amendment in 1981, the shiftwork provisions were limited to a number of delineated work areas pursuant to cl 7(i) of the 1981 Award. These included some areas where it is now claimed that weekend shiftwork is not available such as weighbridges, the receipt and despatch of goods in the Road Transport Industry, in a medical, travel, sporting or lodging service. It was the Union's contention that employers such as the AJC, UPS, Standard Weighbridges, IVFAustralia and Saville Apartments would have all been able to access weekend shiftwork pursuant to cl 7(i) of the 1979 Award. At that time there was no definition of "shiftworker" in the Award. 76 The Union submitted that this raised the question of whether the insertion of a definition of "shiftworker" into the Clerks (State) Award made on 4 December 1981 was intended to limit the availability of shiftwork to those areas that had previously been set out in cl 7(i) of the 1979 Award. The Union submitted that access to shiftwork was not to be limited to the types of shifts defined in cl 7(i) of the 1981 Award but occurs as it did previously through the interoperation of cl 7(i) and cl 7(iii)(a) which provided "Notwithstanding any other other provision of this award and subject to the provisions of subclause (i) hereof, an employee may be employed upon shifts, in which case the ordinary hours shall not exceed eight in any consecutive twenty-four." 77 The Union relied on the evidence of Mr Want, the Executive President of the Union who stated: While I was not directly involved in the negotiations that resulted in the insertion of the definition of shift workers on 4 December 1981. I understand from my work as a union official at the time that the aim of the changes at the time was not to alter or limit the way in which shift workers should be engaged on shifts. The main aim was to increase the loadings that applied and to clarify that employees would by definition be shift workers and entitled to the penalties provided by the award if they worked shift hours... I understand that this was a claim to improve conditions, and ensure that those who were entitled to the allowances received them. It was not to put in place a significant limitation to the engagement of shiftworkers. 78 The Union submitted that further confusion arose out of the removal of cl 7(i) of the 1981 Award when the Award was varied on 8 December 1988. The variation provided for the deletion of subclause 7(i) and a re-numbering of the remaining subclauses in cl 7. However, the reference to subclause (i) in cl 7(iii), in particular, the words "and subject to the provisions of subclause (i) hereof" remained in that subclause. 79 In this regard, Mr Want's evidence was as follows: In 1988 a variation was made to the Clerks Award to remove remaining limitations to the categories of employers who could access the shift work provisions in the award. I recall that it was clear at the time that the intention of this change was to remove the remaining limitation and not in any to narrow or limit the manner in which shiftworkers could be engaged. This position was articulated in a circular that was distributed at the time summarising the change. 80 The Union submitted that the deletion of subclause 7(i) in the 1988 Award should have been accompanied by the deletion to the reference to it in subclause 7(iii) which would have resulted in cl 7(iii)(a) reading "Notwithstanding any other provision of this award, an employee may be employed upon shifts ..." 81 In the alternative, the Union submitted that if it was wrong about the interpretation of the current shiftwork provision, the Commission should nevertheless rule that the loadings contained in the shiftwork provision are appropriate compensation for the hours worked. Any variation to allow ordinary hours to be worked in a manner which is currently not permitted by the Award should be accompanied by an appropriate savings clause and additional compensation for the enhanced flexibility afforded to employers. Such a savings clause would protect employees who have access to additional income from regularly rostered time on weekends. Such employees should not be forced to roster their weekend work in ordinary time at a lower rate of pay. Employers First's Case 82 Employers First contend that the Union's interpretation of the Award is not supported by the words in cl 7 itself. It submitted that the evidence discloses that at most, those employers applying the weekend penalties that apply to shiftworkers do so because: (i) the employees perform true shiftwork; or (ii) the employees are working in accordance with a roster that requires them to work regularly on Sundays so that they fall within the literal definition of a seven day shiftworker. 83 Employers First submitted that all other employers who gave evidence in the proceedings consider that work performed during the day on Saturday and Sunday is to be paid at overtime rates or double time pursuant to cl 9 and cl 12 of the Award. 84 Employers First submitted that there is no evidence of the shiftwork provisions being applied in the manner consistent with the Union's contentions in these proceedings and its contention that it seeks to reflect the status quo is not available. It was submitted that no inference can be drawn from the history of the shiftwork provision that simply working on Saturday or Sunday, without regard to the arrangement of an employee's hours of work, renders work shiftwork, or renders an employee a shiftworker. 85 Employers First submitted that lest there be any doubt who the parties regarded to be a shiftworker, a definition of a shiftworker was inserted into the Award in December 1981 upon the application of the Union. The definition then inserted continues in the award. Australian Business Industrial the Australian Industry Group and the NSW Road Transport Association (the group employers) Case 86 The Australian Business Industrial, the Australian Industry Group and the NSW Road Transport Association ("the group employers") supported the Union's construction of Cl 7 Shift Work of the Award and the Union's objective to remove confusion from the shiftwork provision. The group employers submitted that such an objective was consistent with the Commission's requirement to take account of unnecessary technicalities and to assist the ease of understanding an Award pursuant to s 19 of the Act. 87 The group employers proposed an alternative shiftwork clause (set out earlier in this decision) which does not alter the operation of the current shiftwork provisions but uses language that is less likely, so it was submitted, to lead to misinterpretation and which assists in the reading and understanding of the Award. 88 In the alternative, the Union submitted that it would adopt the shiftwork clause proposed by the group employers. Application for a New Award - Employers First's Case 89 Mr de Celis outlined Employers First case as follows: that any Award proposed by Employers First would provide fair and reasonable conditions of employment having regard to s 10 of the Act, the evidence in the case, and other relevant decisions of the Commission. It was further contended that the application would facilitate increased employment opportunities for clerical employees as employers expand their services and that it is in the public interest that businesses are able to operate until 7.00 pm. 90 The three issues raised by the Employers First's application can be shortly stated as follows:

1. Should casual employees be able to perform work within the same span of ordinary hours that applies to other employees under the Award?
2. What penalty rates should apply to ordinary time worked on Saturday and Sunday under the Award?
3. Should ordinary hours to be permitted to be worked between the hours of 6.00 am and 7.00 pm? 91 It was contended that the conditions of employment described by cl 6(ii) are unduly restrictive and unreasonable. 92 Mr de Celis submitted that the limitation placed on the ordinary hours of work for a casual employee is a product of two decisions in Re Clerks (State) Award (unreported, Burns C Matter Nos 21/1968 and 391/1968, 25 March 1969) ("the March 1969 decision") and Re Clerks (State) Award (unreported, Burns C, Matter Nos 21/1968 and 391/1968, 4 July 1969 ("the July 1969 decision"). 93 At pp 65 - 66 of the March 1969 decision, Burns C identified that the Employment Agents' Association of NSW had filed an application for exemption from the Clerks Award to permit its members to employ and pay employees on an hourly basis. The evidence concerning Employment Agencies reveals that they were what are described today as labour hire companies. 94 The Employment Agents' Association sought a divisor of 40 (equal to the number of ordinary hours prescribed by the Award at the time) to establish the appropriate hourly rate for casual employees. 95 In determining the provision of casual employment, Burns C stated: "I think there could be cause for dissension in the use of a divisor of 40 in establishments where a 35 or 37 ½ hour week is worked by the permanent employees. Of course the Agents seek the divisor of 40 because it would enable them to quote one firm hourly rate to all clients. I do not believe, however, that they would suffer any great difficulty in quoting a rate based on the actual hours worked in the clients business." (at 73)

96 Burns C returned to the matter in the July 1969 decision. The Commissioner stated at p 3 of that decision: "Subclause (ii) deals with the hours of casual employees. It was part of my decision in relation to casual employment that casual employees should work the same hours as weekly employees in the establishment in which the casual employees are employed. There should therefore, now be added to this subclause a sentence expressing this principle. I suggest the sentence:- "Casual employees shall work the same ordinary hours of work as are worked by weekly employees in the establishment in which the casual employees are employed from time to time."

97 The Award that was gazetted on 29 October 1969 (175 IG 421) following the July 1969 decision contained the following clause : "(ii) Casual Employees : the spread of ordinary hours of work shall be the same as those worked by weekly employees in the establishment concerned. Where there are no such weekly employees the spread of ordinary hours of work shall be those prescribed by subclause (i) of this clause." (at 423)" The clause that was inserted following the July 1969 decision continues in the present award today. 98 It is submitted that, in context, the purpose of the clause was to ensure that casual employees were paid an hourly rate that reflected the ordinary hours worked by weekly employees in the establishment in which they were working, and to ensure that they did not work more than the number of ordinary hours worked by those weekly employees. Its purpose certainly did not extend to limiting the spread of hours that may be worked by casual employees. 99 Clause 5 (xi) of the current Award relevantly provides: "Casual Employees - Casual employees shall be paid at an hourly rate equal to the appropriate weekly rate divided by thirty-eight or the number of ordinary hours worked by clerical employees other than casual and part-time employees in the establishment, whichever is lesser, plus 20 per cent, with a minimum of four hours' work at the appropriate rate."

100 It is contended that clause 5 (xi) serves the purpose that was intended by the Commission in its March 1969 and July 1969 decisions. 101 Employers First proposed that cl 6(ii) which limits the spread of ordinary hours that casuals can work to those worked by weekly employees, should be varied to provide that the spread of ordinary hours of work be the same as those prescribed by subclause (i) of the clause in the claim, that being 6.00 am to 7.00 pm Monday to Sunday. Mr de Celis relied on the evidence of Ms Davies who identified the difficulty caused by the operation of cl 6(ii) as being where some medical practices are staffed with full time and part time employees during Monday to Friday and employ a clerical employee to work on the weekend, the operation of cl 6(ii) affects the penalties payable to that employee. 102 The second issue raised by the Employers First's application is what penalty rates should apply to ordinary time work performed on a Saturday or Sunday. Employers First propose that the ordinary hours prescribed by cl 6 of the Award be extended to include ordinary hours worked during the day on Saturday and Sunday. 103 It proposes that the appropriate penalty rate for such ordinary hours is time and one quarter for Saturday and time and one half for Sundays. 104 Mr de Celis observed that no party proposes that ordinary hours should not be permitted to be worked during the hours on a weekend which are the subject of Employers First's application. 105 The Union's submission is that the appropriate penalty rate for Saturday and Sunday is time and one half and time and three quarters respectively. Mr de Celis submitted that Employers First recognise that employees working ordinary hours on a Saturday and Sunday suffer a social inconvenience. It was contended that the penalty rates proposed by Employers First adequately compensate employees for the social inconvenience suffered. 106 It was contended that it is relevant for the Commission to take into account the public interest in the provision of services on the weekend in setting appropriate penalty rates. In this regard, Mr de Celis relied upon the evidence of Professor Bittman, who agreed with the proposition that there is a public benefit in services being provided on a weekend so that persons who are not working may engage in non work-related activities. 107 It was further contended that there is a public interest in the employment opportunities that would be created if the application was successful. 108 Mr de Celis submitted that it was relevant for the Commission to take into account the rate of the existing Saturday loading that applies to ordinary hours of work performed on a Saturday morning. The Award does not currently provide for ordinary hours on a Saturday or Sunday, save for circumstances where a five and a half day week is worked in which case four ordinary hours may be worked on a Saturday between 6.00 am and 12.00 noon. 109 Mr de Celis referred to a decision of Kelleher J in Re Clerks (State) Award [1958] AR (NSW) 8 where his Honour considered a claim by the Federated Clerks Union for a five day working week over the days Monday to Friday. At the time, the Award provided for a five and a half day working week (similar to the provision that occurs in the Award today). In determining the claim, his Honour concluded at 11: ... there nevertheless remains a need in particular establishments for the employment of clerical staff on Saturday morning arising from the necessity to service public demands or from the exigencies of the businesses concerned. 110 Mr de Celis submitted that it is apparent in today's context that there is a necessity to service public demands on Saturday afternoon and Sunday, referring to the evidence in respect of the AJC, John Cully Pty Ltd. (Budget), Medical Practices, UPS and Mobile Innovations. 111 Mr de Celis observed that the Saturday loading that already applies to ordinary hours on a Saturday morning equates approximately to a 25 per cent loading. The payment of the flat Saturday loading of $14.50 represents the following percentage loadings to each grade in the Award for the ordinary hours of work: To Grade 1 27.18 per cent To Grade 2 26.12 per cent To Grade 3 24.55 per cent To Grade 4 22.85 per cent To Grade 5 20.76 per cent 112 Mr de Celis observed that ordinary hours on a Saturday morning are remunerated at an additional rate of 25 per cent in the following Clerical Awards in other jurisdictions: (i) Clerical Employees Award (State) - Qld; (ii) Clerks Commercial, Social and Professional Services Award - WA; (iii) Clerks (Credit and Finance Establishments) Award - WA; (iv) Clerks (Wholesale and Retail Establishments) Award - WA (v) General Clerks (Northern Territory) Award 2000.

113 Mr de Celis referred to Re Shift Workers Case [1972] AR (NSW) 633, submitting that it involved the comprehensive review of the appropriate compensation for shiftworkers under the Hospital Employees (State) Award. It was further submitted that it was apparent from the Full Bench's decision in that matter that weekend penalty rates set for shiftworkers compensate an employee for a double disability: the disability of working a shift (i.e. afternoon, night or early morning shifts) as well as the disability associated with working on a weekend. 114 It was therefore contended by Mr de Celis that the penalty rates that apply to shiftworkers (time and one half and time and three quarters respectively for Saturday and Sunday) are not appropriate for workers who work during the day, that is, workers who do not experience a double disability. 115 Mr de Celis placed significant weight upon the Full Bench's decision in Re Shop Employees (State) Award (unreported, IRC 1682 and 2203 of 1984, 16 August 1985 ("the 1985 Shop Employees Case")). In that case, the Full Bench considered the appropriate penalty rates that should apply in retail shops. The Commission awarded time and one quarter for work on Saturday and time and one half for working ordinary hours on Sunday. 116 Mr de Celis observed that the rates awarded in the 1985 Shop Employees Case for working ordinary time on a Saturday and Sunday were followed by a Full Bench in the TAFE case, (unreported, IRC 566 and 1619 of 1989; IRC 515 of 1997, August 1991). A similar approach was adopted by Full Benches in the Fruit Growing Industry case (unreported, IRC 390, 391 and 616 of 1988, 1001, 1023 and 1024 of 1989, 23 August 1991) and the Hairdressers Case (unreported No 1232 and 1236 of 1987, 30 November 1989). 117 Similar penalties for working ordinary time on Saturday and Sunday were awarded by Glynn J in the Dental Technicians (State) Award case (unreported, IRC 1269 of 1991 and 266 of 1992, 18 December 1992) and the Private Pathology Laboratories (State) Award case (unreported, IRC 1278 of 1991, 17 June 1993). Schmidt J granted similar penalties in Teachers (Non Government Early Childhood Service Centres) (State) Award, [1994] NSWIRComm 166 as did Marks J in Restaurant &c., Employees (State) Award (unreported, Marks J, IRC 216 of 1995, 1875 of 1995 and 1026 of 1996, 23 August, 1996). 118 In Shop Distributive and Allied Employees Association - Victorian Shops Interim Award 2000 (AIRC, PR 941526, 3 December 2003), a Full Bench of the Australian Industrial Relations Commission ("AIRC"), by majority, awarded double time for ordinary hours worked on Sunday. Ordinary hours worked on a Saturday had already been fixed at time and one quarter. 119 Mr de Celis submitted that the reasoning of the President of the AIRC in that matter, who was in the minority, ought to be preferred. His Honour observed at [19]: It is also relevant that night shift workers under the parent award are paid at double time for shift work performed on Sundays, while for shift work performed on weekdays there is a shift penalty of 30 per cent for full-time and part-time employees and 45 per cent for casual employees. The additional penalty for night shift work on Sunday is thus 70 per cent or 55 per cent depending on the category of employment. This is another indication that a penalty for 100 per cent for working ordinary hours on Sundays is excessive. 120 Relying on the above passage Mr de Celis submitted that it follows, that it is excessive to fix penalty rates for work performed during ordinary hours on the weekend at the same level that applies to shiftwork performed on the weekend. 121 Mr de Celis submitted that the above decisions bear out the following propositions:

(i) Where it is established that work is performed over 7 days of the week, the Commission should provide that ordinary hours of work may be performed on Saturday and Sunday;

(ii) Whether or not work is performed over 7 days of the week is a matter of fact to be determined on the evidence. In this case, there is no dispute that work is performed over 7 days of the week;

(iii) In setting the appropriate loadings to apply to ordinary hours on the weekend the Commission shall compensate employees for the social inconvenience caused by such work;

(iv) In setting the appropriate loadings the Commission shall not set loadings so as to penalise an employer for, or deter an employer from, trading on the weekend and/or deter the employment of clerical employees on the weekend;

(v) The loadings arising from the Shift Workers' Case are inappropriate for what is an extension of ordinary hours.

(vi) Generally speaking, the appropriate loadings for ordinary hours on Saturday and Sunday are time and one-quarter and time and one-half respectively.

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.

176 As noted earlier, Ms Hanton is the Hotel Manager of Saville Park Suites. The Saville Group provides a concierge service to one apartment building in St Leonards. The Saville Group is a subsidiary of Stockland, a property development enterprise. During cross-examination, Ms Hanton agreed that the concierge service was directly connected to the interests of the Stockland Group as that service was seen as a value added component which allows a higher price for apartments. The Stockland Group 2004 Annual Report recorded that the Saville Hotel Group had made a net profit of $4.8 million. During cross-examination, Ms Hanton's evidence was that she had done a cost analysis of the savings that would result if the application was successful. Her evidence was that there would be a cost saving of $4,000 per annum. 177 The evidence of Mr Paulsberg, the Finance and Administration Manager of IVFAustralia which operates IVF clinics at seven locations in New South Wales, was that the clinics operate on weekends to cater for the demands of patients and the employees who work weekends are regarded as seven day shift workers. Although Mr Paulsberg's evidence was that the granting of the application would facilitate growth through an extension of operating hours during the week and on weekends and such changes would require the employment of more staff, he stated that IVFAustralia planned to employ more staff irrespective of any changes in the Award. Any decision in this regard would be based upon the best service that IVFAustralia could offer and the support necessary for doctors. 178 During cross-examination, Mr Paulsberg conceded that doctors generally prefer not to work on weekends. Mr Paulsberg further conceded that the benefit from granting the employer application would be a reduction in operational costs. 179 As noted, Ms Dixon is the Human Resources Manager of Mobile Innovations. This organisation through a subsidiary company known as Engin, to which the evidence also relates, is involved in selling a service known as "Voice Over the Internet". Mobile Innovations employs approximately 44 employees covered under the Award. Ms Dixon's evidence was that it is a growth company and the Award has not been a barrier to its growth. The majority of the employees are engaged in the organisation's call centre. Ms Dixon's evidence was that wage costs account for approximately 50 per cent of the organisation's revenue although the company's annual report showed that the employees' costs account for approximately 32 per cent of total revenue. During cross-examination, it was put to Ms Dixon that the difference between the stated employee costs and these found in the annual report was approximately $1.35 million. Ms Dixon attempted to explain this discrepancy stating that the employees were provided with fruit, monthly massages, rewards, and similar benefits. 180 Ms Dixon's evidence was that Mobile Innovations employs staff on rostered overtime on weekends. This was primarily because Ms Dixon claimed it would otherwise be difficult to find staff to work on weekends. Asked why the company did not utilise the shiftwork provisions in the Award, Ms Dixon's evidence was that she believed the company would be unable to attract skilled employees. 181 We have some difficulty with this evidence because in the event that the application was granted, it would result in the payment of similar loadings to those required to be paid to employees rostered to work on the basis of the shiftwork provisions. 182 The evidence of Mr Armstrong, a Director of Standard Weighbridges Pty Ltd, a family owned and operated business, was that the company employs three full-time weighbridge operators as well as 1 part-time and two casual operators. All operators are covered under the Award. His evidence was the standard operating hours for direct supervised weighing are 7.00 am to 4.30 pm Monday to Friday. Outside of these hours, the company provides an automated weighing service to offer unsupervised, out of hours service to customers. Mr Armstrong's evidence was that this service was brought in because of the high cost of after hours operation under the Award and because work could not be predictably arranged outside the standard operating hours. His preference was to have seven days manned service because it provides a higher level of service but the costs involved resulted in the business implementing the automated service. Mr Armstrong's evidence was that due to variations in demand for the company's services, shiftwork was not suitable for the business. He also believed that the current loading was too high. The overall thrust of Mr Armstrong's evidence was that the costs of operating on weekends was too high. 183 The evidence of Mr Lamont, the Human Resources Manager of United Parcels Services Pty Ltd ("UPS") (the world's largest express carrier and package delivery company that manages the delivery of goods in more than 200 countries) was that his company employed approximately 120 clerical employees. Five casual clerical staff work on a Saturday in the Customs Clearing Department and nine clerical employees work on Sunday, five of whom are casual. An additional two clerks are employed on a Saturday in the Building Department and one on a Sunday. 184 Casual employees who work on a Saturday are paid time and one half for the first two hours and double time thereafter with double time automatically paid after 12 noon. Casual employees who work on a Sunday are paid double time for all hours worked. 185 Permanent employees who work on a Saturday and Sunday are paid on an identical basis to casuals. During cross-examination, Mr Lamont was asked whether he was aware that the shift provisions of the Award permitted an employee to be engaged on 38 hours a week so that a work arrangement such as four days per week, or five days per week which included a Saturday and a Sunday was permitted by the Award, subject to the payment of shiftwork penalties. He replied that he was not. 186 The evidence of Mr Bower, an organiser with the Union, was that the arrangements for compensating weekend work at UPS is consistent with the federal Customs Clearing Industry Award 2003 which regulates the conditions of employees engaged by DHL International and Federal Express, the major competitors of UPS. 187 The thrust of Ms Davies' (from the AMA) affidavit evidence was that it is cost prohibitive for many practitioners to employ clerical staff after 6.00 pm Monday to Friday, although Ms Davies evidence was that most suburbs have a large medical centre and that it was not uncommon for such medical centres to be open until at least 9.00 pm, seven days a week. However, a report prepared by KPMG Consulting for the Commonwealth Department of Health and Aged Care entitled "Corporatisation of General Practice Scoping Paper" dated May 2000 suggests that the growth of such practices is not a recent phenomenon and dates back to the 1970s and 1980s. The report states: More recently, there have been examples of corporate groups, some doctor-driven and others involving publicly listed companies, acquiring and developing medical centres. Macquarie and United Health Care are examples of multiple centre groups owned by entrepreneurial doctors with little or no personal involvement in the delivery of general practice. Primary Health Care, Alpha Health Care and Health Care of Australia are examples of publicly listed health care operators with some exposure to general practice ownership. 188 During cross-examination, Ms Davies was provided with Department of Health Schedules which set out the consulting fee for emergency attendances after hours, and general practitioners after hours attendances to which no other item applies effective from 1 January 2005. Ms Davies stated that the majority of GP attendances would fall into the Level B category, that is professional attendance involving taking a selective history, examination of the patient with implementation of a management plan in relation to one or more problems or a professional attendance of less than 20 minutes duration, for which the surgery consultation fee is $30.85. Level B out of hours surgery consultation (defined as on a public holiday, on a Sunday, before 8.00 am or after 1.00 pm on a Saturday or before 8.00 am or after 8.00 pm Monday to Friday) attracts a fee of $40.85. 189 Ms Davies stated work on a Saturday in a medical practice is often a convenient shift to work for a university student or a parent. 190 The appropriate conclusion from the evidence adduced is that no good or sufficient evidentiary basis was established for the grant of the award application, particularly given that it was advanced on an all or nothing basis. We would also observe that there was no evidence brought in respect of incapacity to pay but rather evidence that if the application was granted, it may lead to cost savings. As the Full Bench observed in Storeworkers - IGA Distribution Pty Ltd at [208] the desire for a lower cost regime per se does not constitute a sufficient basis for the variation of existing conditions. 191 The group employers in their outline of contentions submitted "[i]t would be consistent with the Commission's decisions in other awards to set penalty rates at time and one quarter for ordinary hours worked on a Saturday and time and one half for ordinary hours worked on a Sunday." No evidence was called in respect of this contention by these employers, nor was the contention developed in final submissions. In essence, the submissions of these employers were directed to the proper construction of cl 7, Shift Work, of the Award, with these employers supporting the Union's proposed variation to cl 7 to remove confusion about the operation of this clause. We will turn to deal with this issue later in these reasons. 192 The current conditions of employment were awarded in conformity with the obligations imposed upon the Commission by s 10 of the Act and its predecessors. It follows that some positive demonstration of why such a condition sought to be removed because it no longer provides fair or reasonable conditions of employment, must be provided on the evidence, before the Commission will act to remove it, particularly over the objection of other parties to the award. In our view, the necessary evidentiary burden has not been met and the case has failed as a matter of merit. It follows that this part of the employer's application will not be granted. Application to Remove Ambiguity 193 We now turn to a related matter although raised by that part of the Union application in which it seeks to remove what it contends is an ambiguity in respect of cl 7, Shift Work. 194 The group employers joined with the Union in respect of this contention and have filed an alternative shiftwork clause which does not alter the operation of the current shiftwork provisions but uses languages that is less likely, it is contended, to lead to misinterpretation and which assists in the reading and understanding of the Award. 195 The ambiguity in respect of the shiftwork clause is said to arise in this manner. The Union and the group employers agree that the Award currently allows for an employee who is rostered outside the ordinary span of hours in cl 6, Hours, to be engaged as a shiftworker and paid appropriate loadings. This enables an employee to work ordinary time at any time on a Saturday or a Sunday and to be paid at the rate of time and one half and time and three quarters respectively. 196 The group employers, Employers First and the Union further agree that work performed as ordinary time on Saturday evenings should attract a loading of time and one half and that work performed as ordinary time on Sunday evenings should attract a loading of time and three quarters. 197 The Union's contention is that the above penalties should be retained for all ordinary time worked on a Saturday and Sunday. Employers First contend that the above penalties are appropriate for ordinary time worked on a Saturday and Sunday after 7.00 pm. 198 Employers First further contend that the Award currently does not provide for ordinary time to be worked between noon and 6.00 pm on a Saturday or between 6.00 am and 6.00 pm on a Sunday without paying overtime unless the employee is a seven day shift worker. This period is referred to as the "gap". 199 The group employers contend that the shiftwork provisions currently operate so that the penalties payable for ordinary time worked at any time on a Saturday and Sunday are not limited to seven day shiftworkers, therefore there is no "gap". In the alternative, it was submitted that if the Commission finds that "the gap" exists, it is open to the Commission to vary the Award in the terms sought by the group employers or the Union, in order to address the "gap". 200 The group employers contend that the Award should be varied because the evidence supports the contention that the Award is confusing and should be clarified; there are employers who currently apply the shiftwork provisions in the manner advanced by the group employers and the Union (time and a half on Saturday and time and three quarters on a Sunday); and there are employers (such as those that are currently paying overtime rates for work performed on Saturday afternoons or Sundays) that would benefit from the shift work provisions in the Award operating in the manner advanced by the group employers and the Union. 201 The group employers pointed to evidence given in the proceedings that the Award was "difficult to interpret", "quite cumbersome and difficult to understand", "a little bit confused", "complex", that "the loading provisions cause confusion" and that employers would be assisted by "a simpler hours of work provision". 202 It was not disputed by any party that employers are applying the shiftwork provisions in a number of ways, including the manner advanced by the group employers and the Union. 203 The evidence of Ms Ryan from Prestige International was that all employees of that employer who work on a Saturday are paid time and one half and all employees who work on a Sunday are paid time and three quarters. It follows from Ms Ryan's evidence that Prestige International does not require an employee to be rostered regularly on Sundays (as a seven day shiftworker) in order for the Saturday shiftwork penalty to apply. 204 Many employers, however, do not apply the shiftwork provisions in the manner advanced by the group employers and the Union. 205 The Union application seeks the insertion in cl 7 of a definition of "weekend shiftworker" which would result in any person who is rostered to perform ordinary hours on a Saturday or a Sunday being classified as a shiftworker. In effect, the Union contends that a shiftworker is not confined to employees that fall within the definition of a shiftworker. According to the Union, there is another class of shiftworker, who do not fall within the definition in cl 7 but who are nonetheless shiftworkers because they are rostered to work on a Saturday or Sunday. The Union contends that the Award already permits an employee to work during the day on a Saturday and a Sunday as a shiftworker at the rate of time and one half and time and three quarters respectively. 206 In an attempt to make good their contention, the Union referred to the more recent history of variations to the Award in respect of shiftworkers. 207 Clause 7(i) of the 1979 Award limited the performance of shiftwork to specific work areas. These were electronic data processing, medical, travel, sporting or lodging service, where clerical employees were required to work in direct association with other employees who were working shiftwork including the receipt and despatch of goods in the Road Transport Industry, emergency services such as TV repairs, road service to motorists, weighbridges and/or the provision burglary or fire detection services, land sales development or the Real Estate Industry. Shifts were defined as in the current Award. However, there was no definition of shiftworker. Access to shiftwork was limited through the interaction of cl 7(i), Limitations of Shiftwork and cl 7(ii)(a) which provided "Notwithstanding any other provision of this Award and subject to the provisions of subclause (i) hereof, an employee may be employed upon shifts ...". 208 On 4 December 1981, cl 7(ii), Definitions of the Award, was varied with the insertion of a definition of shiftworker who was defined as an employee whose ordinary hours of work are in accordance with the shifts defined in paragraphs (b) to (e) of cl 7(ii), these being afternoon, night, permanent and early morning shift. Clause 7(ii)(f) defined a "seven-day shift worker as an employee who is rostered to work regularly on Sundays and Public Holidays. 209 On 8 December 1988, various clauses of the Award were varied by Glynn J. In particular, cl 4 of this variation provided as follows: that subclause (i) of cl 7, Shiftwork, be deleted. 210 Clause 7(i) was the clause that dealt with Limitations of Shiftwork. The variation also provided for the re-numbering of the subclauses in cl 7. Prior to the variation cl 7(iii), Hours, Shift Allowances, Special Rates, Meal Interval, contained in subparagraph (a) a reference to subclause (i). This reference to subclause (i) remained in the clause which was re-numbered (ii). 211 The Union contended that the body of subclause (ii) incorrectly contained a reference to that part of cl 7 that had been deleted, that is, cl 7(i). The Union's contention was that this should not be construed so as to now apply a different limitation regarding access to the shiftwork provisions. This would mean, it was submitted, that the shiftwork clause in the new Award, instead of being limited by the old Limitations Clause, would now be limited by the definitions found in cl 7(i). 212 Mr Want, the Executive President of the Union, gave the following evidence in respect of this variation: In 1988 a variation was made to the Clerks Award to remove the remaining limitations to the categories of employers who could access the Shift work provisions in the award. I recall that it was clear at the time that the intention of this change was to remove the remaining limitation and not in any way to narrow or limit the manner in which shift workers could be engaged. This position was articulated in a circular that was distributed at the time summarising the changes. 213 The Union's submission is that the deletion of subclause 7(i) in the 1988 Award variation should have been accompanied by the deletion to the reference to subclause (i) in subclause (iii), that is the words "and subject to the provisions of subclause (i) hereof", should be deleted so that cl 7(ii) should read "Notwithstanding any other provisions of this Award an employee may be employed upon shifts ...". 214 How should the construction issue concerning the alleged ambiguity as to the weekend work/penalty rates question be determined? The relevant issues should be dealt with in two parts. First, we will deal with the issue of the proper construction of the relevant award provisions. Second, we shall determine what alterations, if any, should be made to the award in light of our conclusion as to the construction issue and having regard to the evidence and submissions in the proceedings. 215 Returning to the first issue, it is now useful to refer to and set out the existing provisions the subject of the various contentions as to ambiguity. The particular provisions are Clause 6, Hours, and Clause 7, Shift Work, which are in the following terms: 6. Hours

(i) Weekly employees: (a) Subject to paragraph (b), the ordinary hours of work exclusive of meal hours shall not exceed an average of 38 hours per week and, except as provided in clause 7, Shift Work, shall be worked between the hours of 6.00 a.m. and 6.00 p.m., Monday to Friday inclusive, and between the hours of 6.00 a.m. and 12 noon on a Saturday and shall be worked in one of the following ways:

(1) on 19 days over a 4-week cycle; or (2) on 10 days over a 2-week cycle; or (3) on 5 days in any week; or (4) on 5 and one-half days in any week; or (5) where the employer and employee agree, rostered days off, which occur as a result of employees working in accordance with the provisions of this subclause, may accumulate to a maximum of 5 days. These accumulated days may be taken at any time mutually agreed between the employer and employee and shall be taken within six months of accrual. Notwithstanding any other provision of this award the ordinary hours of work prescribed herein may be worked up to 10 hours on any day. Provided that in any arrangement of ordinary working hours where the ordinary working hours are to exceed 8 on any day but no more than 10, the arrangement of hours shall be subject to the agreement of the employer and the majority of employees concerned. (b) An employer shall adopt working hours other than a 5½ day week in any case in which the ordinary week's work of 38 hours can be performed as aforesaid without: (1) detriment to the public interest; (2) loss in the value of goods handled or to be handled; (3) reducing the efficiency of production; or (4) reducing the efficiency of the necessary services; and provided that a majority of the employees in such establishment desire to work their ordinary hours in other than five and a half days as aforesaid. Any dispute as to whether the ordinary hours of work can in any case or cases be worked in other than 5½ days without detriment, loss or reduction as aforesaid shall be determined by the Industrial Relations Commission of New South Wales or the Clerks (State) Conciliation Committee upon application made by or on behalf of the employees. Upon such an application, proof of such detriment, loss or reduction as aforesaid shall be upon the employer. It is a condition of the allowing of a 19-day/4-week cycle, a 10-day/2-week cycle or a 5-day week that, if required, employees shall comply with the reasonable and lawful orders of the employer as to working overtime, including the working of overtime on Saturday. (c) Where a 19-day/4-week cycle is worked, the ordinary hours of work shall not exceed 8 hours per day, Monday to Friday inclusive, between the hours of 6.00 a.m. and 6.00 p.m. (d) Where a 10-day/2-week cycle is worked, the ordinary hours of work shall not exceed 8 hours per day, Monday to Friday, on 9 days of the cycle and 4 hours on any one day of the cycle, between the hours of 6.00 a.m. and 6.00 p.m. (e) Where a 5-day week is worked, the ordinary hours of work shall be worked between the hours of 6.00 a.m. and 6.00 p.m., Monday to Friday inclusive, such that either: (1) the ordinary hours of work on 4 days of any one week shall not exceed 8 hours and on one day of the week shall not exceed 6 hours; or

(2) the ordinary hours of work on each day of the week shall not exceed 7 hours and 36 minutes. (f) Where a 5½ day week is worked, the ordinary hours of work shall be worked so that they shall not exceed 6 hours and 48 minutes per day, Monday to Friday inclusive, and 4 hours on Saturday.

(g) The starting time when once fixed in accordance with this subclause shall not be altered without seven days' notice being given by the employer to the employees. However, in an emergency, an employer and an employee may agree to change such employee's commencing and ceasing times with less than seven days' notice; provided that the employee shall be entitled to have the union delegate present when such matters are discussed.

(ii) Casual Employees - The spread of ordinary hours of work shall be the same as those worked by weekly employees in the establishment concerned. Where there are no such weekly employees the spread of ordinary hours of work shall be those prescribed by subclause (i) of this clause.

(iii) Part-time Employees - The spread of ordinary hours of work, exclusive of meal times, shall be the same as those prescribed for weekly employees, but shall not, in any case, be less than twelve hours per week. The ordinary hours of work shall not exceed eight hours per day.

Provided that the ordinary hours of work prescribed herein may be worked up to 10 hours on any day. Where such arrangement of ordinary working hours is to exceed 8 on any day but not more than 10, the arrangement of hours shall be subject to the agreement of the employer and the majority of employees concerned. 7. Shift Work

(i) Definitions - In this clause: (a) A "shift worker" means an employee whose ordinary hours of work are in accordance with the shifts defined in paragraphs (b), (c), (d), (e) and (f) of this subclause.

(b) "Afternoon shift" means any shift finishing after 6.00 p.m. and at or before 11.00 p.m., provided that where the majority of employees in an establishment finish afternoon shift at a later time, up to 12 midnight, clerical employees may be required to work the same hours.

(c) "Night shift" means any shift starting at or after 11.00 p.m. and at or before 5.00 a.m. or finishing subsequent to 11.00 p.m. and at or before 6.00 a.m.

(d) "Permanent shift" means a night shift which does not rotate with another shift or shifts or day work and which continues for a period of not less than four consecutive weeks.

(e) "Early morning shift" applies to an employee whose ordinary hours on a regular shift commence between 5.00 a.m. and 6.00 a.m. except where such a shift is part of a shift system and preceding an afternoon shift finishing at 11.00 p.m.

(f) "Seven-day shift worker" means an employee who is rostered to work regularly on Sundays and public holidays.

(ii) Hours, Shift Allowances, Special Rates, Meal Interval - (a) Notwithstanding any other provisions of this award and subject to the provisions of subclause (i) of this clause, an employee may be employed upon shifts, in which case the ordinary hours shall not exceed eight in any consecutive twenty-four, or forty per week, or eighty in fourteen consecutive days, or one hundred and fifty-two in any twenty-eight consecutive days. Provided that the ordinary hours of work prescribed herein may be worked up to 10 hours on any day. In any arrangement of ordinary working hours where the ordinary working hours are to exceed 8 on any day but not more than 10, the arrangement of hours shall be subject to the agreement of the employer and the majority of employees concerned. In addition, the arrangement shall average 38 hours per week over the shift cycle.

(b) Times of beginning and ending the shift of any employee may in any case be varied by agreement between the employer and the employee or, in the absence of agreement, may be varied by at least one week's notice given by the employer to the employee.

(c) A shift worker employed on shift shall, for work done during the ordinary hours of any such shift, be paid ordinary rates prescribed by clause 5, Classification Structure and Wages, plus the following additional percentage of the graded rate of pay applicable as prescribed by subclauses (iii) to (vii) of the said clause 5. Afternoon shift - at the rate of 17 per cent. Night shift - at the rate of 20 per cent. Permanent night shift - at the rate of 26 per cent. Early morning shift - at the rate of 10 per cent. Allowances in accordance with this clause shall be calculated in multiples of 10 cents, amounts of less than 5 cents being taken to the lower multiple and amounts of 5 cents or more being taken to the higher multiple.

(d) Juniors - Junior employees working shift work shall be paid as follows: A junior who is a stenographer, comptometer operator, ledger posting or similar accounting machine operator, data processing machine operator, tabulating machine operator, computer operator, card punch operator or verifier operator, shall be paid the additional percentage of the Grade 3 adult rate. All other junior employees shall be paid the additional percentage of the Grade 1 adult rate.

(e) A shift worker whose rostered day off coincides with a public holiday shall be paid a day's pay additional to his/her weekly wage or have a day added to his/her annual leave.

(f) A shift worker whose ordinary working period includes a Saturday, Sunday or holiday as an ordinary working day shall be paid: Saturday - time and one-half. Sunday - time and three-quarters. Holidays - double time and one-half.

(g) Where ordinary shift hours commence between 11.00 p.m. and midnight on a Sunday or holiday, the ordinary time worked before midnight shall not entitle the shift worker to the Sunday or holiday rate. Provided that the ordinary time worked by a shift worker on a shift commencing before midnight on the day preceding a Sunday or holiday and extending into a Sunday or holiday shall be regarded as ordinary time worked on such Sunday or holiday.

(h) At least twenty minutes shall be allowed to a shift worker for a meal during each shift before the expiration of five hours. Such meal break shall be counted as time worked. (iii) Overtime -

(a) All time worked by a shift worker in excess of the hours provided in paragraph (a) of subclause (ii) of this clause shall be paid at the rate of time and one-half for the first two hours and double time thereafter. In computing overtime, each day shall stand alone.

(b) A shift worker required to work overtime in excess of one hour on any shift shall be paid meal money as set in Item 2 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates. If overtime exceeds five hours on any shift a further meal allowance of the same amount shall be paid.

(iv) Work on a Rostered Day Off - (a) An employee required to work on a rostered day off shall be paid at the rate prescribed in subclause (iii) of this clause, except for time worked on Sundays which shall be paid for at the rate of double time and time worked on public holidays which shall be paid for at the rate of double time and one-half.

(b) Where work is performed as prescribed in paragraph (a) of this subclause on a Sunday or a holiday, such employee shall be paid a minimum of four hours at the appropriate rate. (v) Special Rates not Cumulative - The penalties herein prescribed are in substitution for and not cumulative upon the shift allowances prescribed in subclause (ii) of this clause. (vi) Casual and Part-time Shift Workers - Casual and part-time shift workers shall receive the allowance prescribed in paragraph (c) of subclause (ii) of this clause.

(vii) Restrictions on Shift Work - (a) No employee under 18 years of age shall be employed on shift work.

(b) Employees under 21 years of age shall not be employed on the night shift, except employees not younger than 19 years of age whilst working on a training programme. The restriction on night shift shall not apply in these cases. 216 Notwithstanding that some of the parties submitted that it would be inappropriate for the Commission to attempt to determine the true intention of these provisions, we do not see that it is inappropriate to do so. Indeed, the issue raised by the various submissions as to whether there is in fact an ambiguity in the relevant award provisions plainly requires us to consider whether the competing contentions are, or involve, the correct interpretation of the relevant award provisions. 217 The approach that should be adopted to the award construction issue in these proceedings is similar to that recently referred to by Full Benches as to issues of statutory construction in ASMOF (NSW) v CSAHS [2005] NSWIRComm 339 at [61] and Transport Workers Union of New South Wales and Chubb Security Services and Anor [2005] NSWIRComm 369 at [89]. 218 Without repeating the whole of the discussion in those cases it is sufficient for present purposes to observe that the operation of award provisions is a question which, as with any issue of construction, may often be resolved by ascertaining the intention of the award maker from the express words of the relevant instrument viewed in their context and that (ASMOF at [63]; TWU at [89]): The starting point of our consideration must therefore be the express words of the relevant provision viewed in their context having particular regard to the relevant provision's ordinary and grammatical meaning, paying due regard to the ... purpose and the context in which the relevant words are used, the reference to context being in its wider sense. 219 As we understand the thrust of the submissions of those parties (the applicant Union and the group employers) who contend that there is an ambiguity in the relevant provisions, they submit that the shift work provisions currently operate so that the penalties payable for ordinary time worked at any time on Saturday or Sunday are not limited to seven day shift workers. The difficulty with that contention is that it is not consistent with the plain words of Clause 7, Shift Work, of the award. Sub-clause (i) of that clause sets out a number of definitions relevant to the operation of the clause and paragraph (a) of sub-clause (i) makes plain that a shift worker is an employee whose ordinary hours of work are in accordance with one of the other paragraphs (that is, paragraphs (b) to (f), inclusive) of the sub-clause. 220 What that means is that to be a shift worker, the employee must be an employee whose work comes within the description of afternoon shift, night shift, permanent night shift, early morning shift or a seven day shift worker. In the case of a seven-day shift worker that means the employee is one who is rostered to work regularly on Sundays and Public Holidays. The parties who contend an ambiguity exists submit that the shift work provision permits an employer to treat an employee who works "ordinary time" on a Saturday to be treated as a shift worker, for example, on the basis that an employee so employed (although not employed on afternoon, night or early morning shifts) from, say, Tuesday to Saturday is a shift worker. 221 There is however no basis in the terms of cl 7, Shift Work of that construction to be accepted. Rather, the terms of sub-cl (i) of cl 7 make clear that to be a shift worker the employee's work must fall within one or other of the defined categories of afternoon shift, night shift, early morning shift or seven-day shift worker. An employee whose work is not, during relevant Monday to Friday periods such that it is an afternoon, night or early morning shift as defined, could not become a shift worker by working frequently on Saturdays or every Saturday during an employees working period. 222 We have made it clear that we base our conclusion on this aspect on the clear words of cl 7 and particularly sub-cl (i) thereof. However, there are other bases in the award provisions which make plain that this is the appropriate construction. One example is the reference in cl 7(ii)(h) to meal breaks for shift workers. That provision provides that at least 20 minutes shall be allowed to a shift worker for a meal break during each shift before the expiration of five hours and such meal breaks should be counted as time worked. This is to be contrasted with the more extensive provisions in cl 10, Meal Break, of the award which provides (if not expressly then at least by inference) in respect of non-shift workers that they shall be provided with a meal break of not less than 30 minutes nor more than one hour between the hours of 11am and 2.30pm. 223 The construction put forward by those parties who contend that Saturday or Sunday work may be worked as part of shift work pattern notwithstanding that no other part of the employee's work fits within one or other of the definitions of shift worker would have the unlikely result that such an employee who was rostered to work on, for example, Tuesday to Saturday inclusive would not be covered by the provisions of cl 10, Meal Break (without the benefit of an unpaid meal break of between one half hour and one hour per day) but rather by the specific provisions as to meal breaks in cl 7. For reasons we have given, there is no warrant for this surprising conclusion to be reached. Variation to the Award

224 Although we have rejected the contention of the Union and the group employers as to this matter, the approach taken by those parties, and particularly by the Union, has one other important relevance to these proceedings. That is, that when the approach of the Union is examined in terms of its substance rather than its form, it is plain that the Union accepts that, as a matter of merit, it is open to an employer, and thus appropriate, for an employer to arrange the work of its employees on the basis that ordinary hours of work may be performed on a Saturday in conjunction with other ordinary hours of work in such a way as to permit the Saturday or Sunday work to be treated as shift work on a weekend and thus work that would attract only the weekend penalties prescribed by cl 7(ii)(f); that is, time and one half for Saturdays and time and three quarters for Sundays. 225 We consider that the approach taken by the Union represents a significant concession on its part which should be acted on by the Commission. We therefore propose to vary the award to enable an employer to arrange the work of its employees in such a way (for example, by having ordinary hours scheduled from Tuesday to Saturday, Wednesday to Sunday, Saturday to Wednesday or Sunday to Thursday) as to regard the time worked pursuant to such a pattern of work on Saturdays and Sundays as attracting time and one half and time and three quarters, respectively, as if it were shift work for the purposes of cl 7(ii)(f). 226 We now turn to the claim of the Union and the respondent employers that the Saturday morning penalty currently prescribed by the award be removed. This claim is advanced by the Union and the group employers on the basis that employees working Saturday morning should be paid the shift work rate for that period (that is, time and one half) whereas Employers First argues that, on the basis that their claim for ordinary hours worked on a Saturday be paid at time and a quarter, that all such work on Saturday morning, if a five and a half day week arrangement was to be adopted, should also be paid on the basis of time and a quarter. We do not need to further consider the approach of Employers First as we have not accepted its primary submission that ordinary time worked on a Saturday should be paid for at the rate of time and a quarter. 227 One logical possibility therefore is to adopt the approach of the Union and the group employers that time worked on Saturday morning as part of a five and a half day a week scheme should also be paid at time and one half. The difficulty with that approach is that there was no witness who gave evidence before the Commission who represented, or who worked for, an employer, who or which used the five and a half day working pattern. It is clear that that pattern of work that has been available in the award for many decades. We are not prepared to accept that merely because no witness gave evidence as to its use in his or her workplace, that it may not be used in some situations. 228 We therefore consider it inappropriate to disturb this situation in the present award proceedings because there may well be employers who use this pattern of work for their workplace and there may well be employees who are paid in accordance with the relevant provisions governing it. 229 Rather, we consider the appropriate approach is that we should, by this decision, give notice to the parties to the award that this is an issue that will be considered the next time the award is reviewed and the Commission expects to have then placed before it evidence of the extent to which the five and a half day working pattern is used and the detriment or prejudice, if any, which might be suffered by parties who use this system of work should any of the other approaches adopted or proposed in relation to the variation of this system be adopted. 230 It should however be made plain that should an employer who currently adopts a five and a half day working pattern move to a different way of working on Saturdays such that the whole of the Saturday is worked as part of an ordinary system of hours, then the facility to pay the loading for each Saturday morning worked would no longer be available. Instead, the employer would be obliged to pay time and a half for all ordinary hours worked on Saturday up until 6pm, in accordance with the provisions we have earlier awarded.

Extension of Ordinary Hours to 7.00 pm 231 We now return to that part of Employers First's application which claims that the ordinary hours prescribed by cl 6(i) of the Award should be extended to 7.00 pm Monday to Sunday. 232 The current spread of ordinary hours, as prescribed by cl 6(i) is as follows: the ordinary hours of work ... shall be worked between 6.00 am and 6.00 pm, Monday to Friday inclusive, and between 6.00 am and 12.00 noon on a Saturday ... 233 The current provisions of ordinary hours until 6.00 pm in the evening were awarded by the Commission in Court Session in 1987: Re Clerks (State) Award (unreported, IRC 1153 of 1985, 30 April 1987). Prior to 1987, the Award provided for ordinary hours until 5.30 pm. The spread of hours was increased to 6.00 pm as a cost offset for the introduction of a 38 hour week. 234 The principles and considerations that we have earlier referred to in respect of the claim to extend ordinary hours to weekends are equally applicable in respect of this aspect of the application although it is not necessary to repeat them here. 235 Mr de Celis submitted that it is appropriate that the Commission should review the spread of hours in the Award in the face of the evidence that business is increasingly being conducted after 6.00 pm in this State, and that therefore clerical employees may be required to work beyond 6.00 pm until at least 7.00 pm. This, it was submitted, is particularly the case, given that clerical employees covered by the Award are pervasive through industry in this State. 236 It was contended that the claim is both modest and targeted. In this regard, we would observe that the original application sought an extension of ordinary hours until 10.00 pm which was subsequently amended to reflect the current claim. 237 Mr de Celis submitted that the application is aimed at removing a shift penalty, which is currently payable on all hours worked, even if the employee only works for one hour beyond the spread of ordinary hours and/or the overtime penalty that they otherwise apply. 238 The major grounds advanced for the variation was that the current provision deters 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 in respect of medical practitioners; the existing provision deters 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 term, in particular, medical practices; the provision penalises an employer, due to the exigencies of its business, and due to the operation of daylight saving, as a day shift (finishing at 6.00 pm), is rendered an afternoon shift (finishing at 7.00 pm) and generally penalises some employers for employing clerical employees when public demand requires that such employees be employed. 239 The application is opposed by the Union. 240 We now turn to the evidence as to the merits of this application. The principal witness called was, as we have noted, Ms Davies from the AMA. Ms Davies' affidavit evidence was that there is an increasing demand for doctors' practices to remain open later in the evenings; however, it is cost prohibitive for many practitioners to employ clerical employees after 6.00 pm. Her evidence was that some smaller practices either close at 6.00 pm, or if they remain open after 6.00 pm, rely on the doctors at the practice to perform the clerical work between 6.00 pm and close. 241 Ms Davies stated that the Medicare Scheme defines out of hours consultations as being consultations after 8.00 pm, Monday to Friday, which results in a doctor that bulk bills patients only being provided with additional remuneration for consultations after 8.00 pm. During cross-examination, Ms Davies gave evidence that people wished to work the extended hour. She gave as an example that there are at least 200 or 300 Australian Workplace Agreements that extend the span of hours from 7.00 am to 7.00 pm and occasionally 7.30 am to 7.30 pm or 8.00 am to 8.00 pm. Her evidence was that such agreements were made with existing employees. Ms Davies stated that the AMA as an organisation did not encourage it members to regulate their employment by Australian Workplace Agreements. 242 Ms Davies confirmed that the spread of hours contained in the Nurses, Other Than in Hospitals, &c., (State) Award has a spread of hours from 7.00 am to 7.00 pm and that this closely reflects the demands on hours required by medical practices. 243 Ms Kathryn Ryan's evidence also dealt with this aspect of the Employers First application. Ms Ryan's affidavit evidence was that Prestige International, an international call centre, conducts a day shift that finishes at 6.00 pm during Eastern Standard Time and 6.30 pm or 7.30 pm during daylight saving time in its travel insurance service division in order to service international time zones. Her evidence was that the peak periods for travel insurance service are from 10.00 am to 6.00 pm during standard time and 11.00 am to 7.00 pm during daylight saving time. Ms Ryan confirmed that an afternoon shift allowance was paid during daylight saving time on all hours worked during the day, even though only 30 minutes to one hour of working time occurs outside the spread of ordinary hours in the Award. Ms Ryan's evidence was that this represented a significant cost. Ms Ryan's evidence was that similar circumstances applied in the Credit Card Services Division of the company. 244 Mr Marcus Lamont's evidence was that UPS employs clerical employees in its Sydney Call Centre until 7.00 pm in order that it may service its customers during business hours in Western Australia. Such employees who finish work at 7.00 pm are paid an afternoon shift allowance on all hours worked even though they only work one hour outside the daily spread of hours in the Award. Mr Lamont's evidence was that UPS could conduct such clerical activities from overseas but to date had made a conscious decision to maintain the functions in Sydney observing that Federal Express, a company that offered a product in competition with UPS had relocated its Customer Service Centre to Malaysia. This evidence was confirmed by Mr Bower, an organiser who gave evidence on behalf of the Union. 245 Evidence was also given in respect of this part of the application by Mr Tony Wise from John Cully Pty Ltd which conducts six Budget Rent-A-Car branches in New South Wales. Mr Wise's affidavit evidence was that only one of these branches (Westmead) was kept open until 7.00 pm. His evidence was that the main reason that five of the six branches close at 6.00 pm is because of the overtime that would be payable to staff each day at those branches if they worked after 6.00 pm. Currently, customers who want to pick up or drop off a vehicle after 6.00 pm must do so from the Westmead Branch. Mr Wise's evidence was that if ordinary hours could be worked until 7.00 pm, it is likely that the Branches located a substantial distance from Westmead (Campbelltown, Revesby and Gosford) would open until 7.00 pm. 246 Mr Paulsberg from IVFAustralia considered that an extension of ordinary hours until 7.00 pm would facilitate growth in that business and require the employment of more employees. 247 The evidence of Ms Hanton and Ms Dixon was to the effect that there is a requirement in their respective businesses to engage clerical workers beyond 6.00 pm. 248 The evidence of Professor Bittman, given during cross-examination, was that there is a trend towards the lengthening of the working day and an increase in the likelihood of work being performed after 6.00 pm. 249 Evidence called on behalf of Saville Park Suites and Mobile Innovations also demonstrated that there is a requirement to engage clerical workers beyond 6.00 pm. 250 The Union opposed the extension of ordinary hours for weekly employees to 7.00 pm submitting that the current afternoon shift loading of 17 per cent affords appropriate compensation for work during evenings. Mr Mette relied on the evidence of Professor Russell, submitting that there is a social inconvenience associated with working after 6.00 pm. Mr Mette referred to a report prepared by Professor Russell which states: Unsociable, non-standard or atypical working hours are usually taken to mean (see Millward, 2002; Le Bihan & Martin, 2004): early mornings (before 8.30 am), evenings (after 5:30 pm), nights and weekends. These are times when many families, couples and friends would expect to have the opportunity to be together and to engage in family, social and community activities. 251 Later in his report Professor Russell states: There are now numerous research studies that have examined the impact of working unsocial hours and shift work on family and individual well-being. The consistent pattern of findings from both large scale and small scale qualitative studies, and from studies conducted in a range of different countries is that working nonstandard/atypical/unsocial hours does have a significant impact on family, couple and child well-being. 252 Professor Russell's evidence outlines the specific disadvantages of shift work and "unsocial hours", for example, the impact on children, the impact on childcare arrangements, the impact on family and child well-being and the impact on relationship well-being. 253 However, Mr Mette contended that there had not been a significant increase in the incidence of work being performed after 6.00 pm by clerical workers. 254 The Union called evidence from nine employee witnesses. Of these witnesses, only two witnesses gave evidence that their working hours would be affected by an extension of ordinary time until 7.00 pm. 255 Mr Day, a Customer Service Agent employed by Hertz Australia works until 6.00 pm on Monday and Tuesday and until 7.00 pm on Wednesday Thursday and Friday. He receives an afternoon shift loading for working on Wednesday, Thursday and Friday until 7.00 pm. His employer conducts the Qantas Valet Parking Service which operates from 5.00 am to 11.00 pm daily. Significantly, in cross-examination, Mr Day explained that the Valet Parking Service was busiest in the evening between "probably 4.00 - 4.30 pm through till probably about 7.30 pm". Mr Day gave evidence that working different shifts throughout the week is harder on him physically, because he doesn't have the same daily routine and has difficulty in being alert and active at different times, and then relaxing and winding down at other times. 256 His affidavit evidence was that working after 6.00 pm on weekdays gave him less time to spend with his wife, family and friends and that the compensation he received for the late shifts is reasonable considering the limits it places on his ability to participate in social activities with family and friends on week nights. However, in cross-examination, Mr Day's evidence was that when he commences work at 11.00 am or 11.30 am which is on four out of the five days he works each week, he is able to do things that he doesn't do at night, such as washing the car or going to the shops. 257 The evidence of Ms Lai, Practice Manager at the Engadine Medical Centre, was that the staff at the Practice include a number of part time employees, and the operating hours of the Practice from Monday to Friday is effectively split in half, 8.30 am - 1.30 pm and 1.30 pm - 6.30 pm, or 7.00 pm. An employee working between 1.30 pm and 6.30 pm is paid an afternoon shift loading. During cross-examination, Ms Lai's evidence was that the last appointment taken by the Practice is 6.30 pm, although the last patient may not leave until 7.00 pm. Her evidence was the opening hours of the Practice are fairly standard though practices with more doctors often open earlier and close later. 258 Ms Lai agreed that the roster at the Engadine Medical Centre provides part time employees with either the morning off or the afternoon off, and that such an arrangement allows these employees to attend to any necessary personal affairs in the morning or the afternoon. 259 Mr de Celis referred the Commission to a number of decisions and awards made by various industrial tribunals where ordinary hours are permitted to be worked beyond 6.00 pm Monday to Friday. The significance of that material is that it confirms the trend to more work being performed, on an ordinary hours basis, between 6.00 pm and 7.00 pm on weekday evenings. 260 As we have observed earlier in this decision, existing award conditions are, of course, not immutable. In our view, it is appropriate that the Commission should review the spread of hours in the Award in the light of the evidence that business is increasingly being conducted after 6.00 pm in this State, particularly in medical practices, and that therefore, clerical employees may be required to work beyond 6.00 pm until at least 7.00 pm. However, regard must be paid to the consideration that clerical work is still largely performed prior to 5.00 pm or 6.00 pm on weekdays and that the requirement on individuals, particularly as family members to work past such times, has a potential to affect their lives and those of their families. It is important that employers seriously consider the impact of extending ordinary working hours to 7.00 pm on the families of their employees before they take that step. 261 We are satisfied upon a careful consideration of all of the evidence that the current limitation in the spread of ordinary hours during weekdays is deterring 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. There is also the situation where, because of the exigencies of its business and/or due to the operation of daylight saving, a shift (finishing at 6.00 pm) may become an afternoon shift (finishing at 7.00 pm). 262 An extension of ordinary hours to 7.00 pm on weekdays was not opposed by the group employers. 263 We therefore find that the applicant has made out its case for extending the span of hours for weekly employees to 7.00 pm, Monday to Friday, provided that a small additional payment is made for time worked between 6.00 pm and 7.00 pm. Such amount should not however be such as would deter an employer from introducing this change. We therefore fix the additional amount as 17 per cent of the ordinary hourly rate. We reject the claim in respect of weekend work. 264 The employers propose that a savings provision should be included if the Commission granted this part of the application. In this regard, it is agreed that any existing employee who is in receipt of an afternoon shift loading and whose hours finish after 6.00 pm and at or before 7.00 pm would continue to receive the afternoon shift loading. In our view, such a savings provision is appropriate and the variation is granted upon that basis. Casual employees 265 Finally, Employers First sought a variation to the Award concerning casual employees (see para [90] and following above). Clause 6(ii) of the Award which deals with the hours of work of casual employees, is set out at para [215] above. In light of the variation we have made to the Award extending the ordinary hours of work, together with our conclusion that no case has been made out regarding this issue, we decline to grant this part of the application. Decisions made 266 For the reasons already given, our decisions in this matter to vary the award may be summarised as follows: (i) Clause 6(i) of the award is varied to extend the working of ordinary hours on weekdays to 7.00 pm provided that the prescribed loading is paid for the time worked between 6.00 pm and 7.00 pm. (ii) Although we have determined that the Union's and group employers' submissions regarding the existence of an ambiguity in respect of cl 6 and cl 7 of the Award should be rejected, we have, nevertheless, determined that the Award should be varied to reflect the effect of the Union's and group employers' contention. The variation should operate on and from the first pay period to commence on or after 30 January 2006. (iii) Therefore clauses 6 Hours and 7 Shift Work are varied to permit an employer to arrange or re-arrange the work of its employees in such a way that employees may work ordinary time on a Saturday or Sunday (between 6.00 am to 6.00 pm) and be paid at the rate of time and a half for such work on a Saturday and time and three quarters for such work on a Sunday (if an employer adopts the system of work where ordinary hours are worked on a Saturday, the Saturday loading for Saturday morning work would not be payable). 267 The new Award to be made is varied accordingly from the first pay period to commence on or after 30 January 2006. Consequential variations may be necessary in respect of other parts of the award. We direct that the Union file and serve by 12 noon on Thursday 15 December 2005 short minutes of the resulting new Award. 268 The Union made a number of submissions that the Commission should include a savings provision in favour of existing employees in respect of their current conditions of employment if changes were made to the current award either because of changes they had in substance accepted should be made to the award (such as to clauses 6 and 7), or where changes were made to the award because of the submissions made by Employers First. 269 We understand the basis for that submission. However, it was made in very general terms. Such a submission may be advanced with more precision now that the parties are aware of the decisions made. In this regard, the parties are directed to exchange and file any further submissions on that issue by 12 noon on 15 December 2005. The matter will be listed for hearing at 10.30 am on Monday 19 December 2005 at which time the Full Bench will consider the Short Minutes of the new Award and the issue as to the proposed savings provision.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.