· the existing Award when made brought considerable stability and served the industry well - fitting the industry as it existed then and recognising the qualifications available at that time.
· there has been an exodus of workers to the public sector where pay and conditions are better.
· the Award today fails to recognise the diversity of positions in the industry and new areas of speciality that have emerged.
· the failure of the Award to recognise positions such as Senior Case Workers, Team Leaders, Project Workers, Research Workers and those working in large community based multi-service providing organisations requires rectification.
· the Award does not provide a career path for social welfare workers in the industry.
65 Ms Michelle Robertson, senior industrial officer with the Queensland branch of the Australian Services Union, provided a statement (Exhibit J) and gave oral evidence as to the implementation and operation of the Social and Community Services (Queensland) Award 1996, an award of the Australian Industrial Relations Commission which contains, among other things, an eight level classification structure similar to that which is sought by the Union in the present application.
66 Ms Robertson described the Queensland classification structure as working well and as being dispute-free in that the Union had not taken a classification dispute to the Australian Industrial Relations Commission since the award was made. She considered that the strength of the Queensland structure lies in its ability to determine classification levels based on degrees of responsibility/skill rather than job title or qualification only.
67 Notably the Queensland award like all other awards pertaining to this industry throughout Australia, with the exception of New South Wales, was made by consent.
68 Ms Meg Smith, co-author of a comprehensive research document dealing with trends in casual employment was called in the Union case.
69 The document entitled 'Choice and Coercion - Women's Experience of Casual Employment' - was admitted into evidence and marked Exhibit K.
70 Ms Smith emphasised as one of the research outcomes that what on the face of it may appear to be widespread choice of casual employment, in particular by women, was in fact an only alternative for those who would otherwise properly be regarded and prefer to be employed as permanent part-time workers.
71 She described what is referred to as disamenities attaching to casual employment, or in other words, those aspects of casual employment that may disadvantage employees relative to permanent employment including (despite the casual loading) low earnings, employment insecurity and less regular employment, lower access to training, a high propensity to engage in multiple job holding for income purposes and lack of access to entitlements and benefits that accrue to permanent employees such as sick leave, parental leave, carer's leave and the like.
72 Ms Smith indicated as another outcome of the research project, a range of recommendations going to the desirability of more or better prescription in awards and agreements to ensure that employment which more closely resembles or is actually permanent part-time employment is named and offered as such by employers.
73 In the employer's case, Mr Robert Martin Foster provided written statements (Exhibit 2 & 3) and attended for cross-examination thereon.
74 Mr Foster said he was employed as the general manager, finance and administration at Challenge Disability Serves (Challenge) an organisation based at Tamworth in northern NSW for which he had worked for 11 years. He described Challenge as a non-profit organisation established by parents and providing services to people whose primary disability is intellectual.
75 The services offered by Challenge cover vocational, residential, open employment, respite and day care programs.
76 The vocational operations were said to comprise 8 business units including a recycling operation, a garment manufacturer and retailer, workcrew and a contracts section.
77 Challenge provides so called residential services for 47 people in 19 residences and as an organisation, provides services for over 200 people for the purposes of which, it employs 95 under the Social and Community Services Employees (State) Award.
78 In addition, there are another 35 persons employed some described as managers who are award-free and the remainder who are covered by awards regulating employees in the clothing trades, storemen and packing, administrative and clerical and so on.
79 Of those employed under the Social and Community Services Employees (State) Award and doing the best he could in cross-examination, Mr Foster thought about 30 were full-time employees, 40 were part-time and the rest were casual (T 173.35).
80 His evidence disclosed concerns to which by and large, he adhered in respect of various elements of the Union claim.
81 As to the claim for a new definition of 'casual employee' which introduces and limits itself to the notion of employment of a "short-term irregular nature" (Cl 5), he referred to the ongoing need for the organisation to employ casuals to replace staff whilst on leave in order to maintain appropriate support levels, to meet the variable or fluctuating needs of clients who from time to time may require additional support and to generally enable the organisation the flexibility which would not be available to them in the deployment of permanent staff if the Union claim were granted.
82 He expressed the view that concepts of "short term" and "irregular" had a subjective character to them which allowed differing interpretations and which may create rather than avoid disputation.
83 He felt that the requirement inherent in the provision sought by the Union that any employee deemed to be working on other than a short-term irregular basis be made permanent would seriously restrict his organisation's ability to meet client needs in a flexible and responsible manner.
84 He did not consider when it was put to him in cross examination that the provision sought by the Union and agreed to by the employer parties as to fixed-term employees (Exhibit P, Cl 4) would overcome these difficulties.
85 Conversely, he felt that the existing definition of casual employee namely, one who is employed and paid as such provided the necessary flexibility and served his organisation well.
86 His initial objection to the Union claim in respect of the payment of overtime to part-time employees was diminished by the agreement reached between the industrial parties between the time his statement of evidence (Exhibit 2) was prepared and the time he was called to give evidence (T 165.15).
87 In that regard it is to be noted by reference to Cl 17 Overtime of the last amended Union application (Exhibit P) that entitlement to overtime payment would accrue to only those part-time employees (if the claim were granted) who worked in excess of full-time equivalent hours rather than, as was initially claimed to those who worked in excess of their contracted hours.
88 As to the Union claim for an On-call Allowance (see Cl 22 Exhibit P) Mr Foster described his organisation's existing practice in respect of on-call arrangements whereby employees are issued with a mobile telephone to which calls received outside office hours (8.30am - 5.00pm Monday to Friday) are diverted.
89 The on-call employee may resolve the matter on the telephone, if necessary may attend to the matter in person (in which case an entitlement to a minimum of two hours pay accrues pursuant to the call-back provisions of the existing award) or may refer the matter to the relevant manager.
90 Although there is no existing award provision in this regard, Mr Foster's organisation pays employees who are on-call, a flat amount of $15 per on-call period or $105 as is more the case, to each employee who is rostered on-call for a full week.
91 He estimated that the granting of the Union claim for an on-call allowance (which may be broadly described as 2 hours pay for weeknights and 4 hours for weekends) would represent a significant increase over his organisation's current on-call costs.
92 As to Excursions, Mr Foster said that additional costs associated with granting the Union claim in this regard (Exhibit P, Cl 27) would leave his organisation with no alternative but to cease conducting them.
93 He described the present arrangements whereby employees are paid for hours worked on excursions up to 8 hours per day with one of those employees being on sleepover duty and it is assumed, paid according to the sleepover provisions of the existing award (that is, nominally 3 hours pay plus additional pay for necessary work in excess of 2 hours during the night).
94 Employees who attend excursions are also given time in lieu for half the number of hours for which they receive pay during the excursion.
95 Mr Foster explained that the costs of excursions are met from within the Challenge organisation and no specific funding is received to conduct them.
96 In respect of the Union claim for Conferences, Training and Study Leave (Exhibit P, Cl 36), he said that paid leave is provided by Challenge where training and/or attendance at conferences is required of an employee and further, that course attendance at the initiative of the employee is dealt with on a case by case basis where requests are made by an employee for leave or other forms of assistance.
97 It may be that, for example, an arrangement is entered into whereby an employee who chooses to undertake a course will be asked to cover their own travel time and meals whereas Challenge will agree to pay for the course fee and accommodation.
98 He said this flexibility of approach, which involved a joint contribution by the employer and the employee to the cost of training and study, maximises the opportunities for employees to undertake such training and study.
99 Mr Foster said that Challenge as a larger employer in the community welfare sector, is able to offer these arrangements to employees whereas the majority of employers in the industry operate with such severe budgetary and resource constraints that an award provision such as that contemplated by the Union would be unsustainable.
100 He said and maintained in cross-examination that the award provision sought by the Union would alter the existing circumstances within his organisation whereby few if any employees receive assistance by way of paid study leave, to a position where it would be regarded as a right and claimed accordingly and to a further position whereby refusal would lead to disputation.
101 In respect of the Union claim for an Employee Counselling and Disciplinary Procedures provision (Exhibit P, Cl 49), Mr Foster's primary position was that Challenge would prefer the flexibility of the existing unregulated regime in such matters notwithstanding that his organisation presently has in place procedures similar to those sought by the Union.
102 He said it was presently open to his organisation to modify its disciplinary procedures as thought necessary or desirable in particular circumstances although it had not done so in five or six years and he accepted when it was put to him, that the Union claim was designed to ensure industry-wide compliance with principles of procedural fairness.
103 Mr Foster's evidence then canvassed the federal and State funding arrangements that applied to his organisation in the course of which he provided an estimate of the likely increase in employment costs in the event of the Union claim being granted by the Commission.
104 He was critical of the eight-level classification structure proposed by the Union expressing the view that, by comparison with the structure proposed by employers, it was ill-defined and likely to lead to disputes as to the appropriate classification of individual employees.
105 He indicated a preference for a flatter organisational structure not including ranges of yearly increments within each level as the Union proposal does and he further thought that the translation process would be lengthy and involved.
106 Mr Foster resisted the proposition put to him in cross-examination that the classification structure put forward by the employers did little to change the existing arrangements in that regard.
107 He agreed, however when it was put to him that the provision of adequate career paths for people working within the social welfare industry is a laudable objective.
108 Mr Roger Lipscomb, human resources manager of Anglicare NSW since 1993, provided a written statement of evidence (Exhibit 4) on which he was cross-examined.
109 He described his organisation as the welfare arm of the Anglican Church. He said the organisation consists of six divisions: