On 20 November 1996, acting of its own motion under s79(3) of the Industrial Relations Act 1996 (`the 1996 Act'), the Industrial Relations Commission of New South Wales summoned industrial parties to show cause why the Commission should not take action under s51 of the 1996 Act to make a State decision relating to:

`part-time work by employees covered by industrial instruments and to set, by that decision, minimum conditions of employment to which part-time agreements under Part 5 of Chapter 2 of the Act are to be subject, including but not restricted to minimum and maximum hours of work and other relevant conditions of employment.'

`51 Making of State decisions (1) A Full Bench of the Commission may, if satisfied that it is consistent with the objects of this Act and that there are good reasons for doing so, make a State decisionsetting principles or provisions for the purposes of awards and other matters under this Act. (2) A Full Bench of the Commission may make a State decision only on the application of a State peak council or on its own initiative. (3) A State decision may apply generally to all awards or other matters under this Act or only to particular awards or other matters under this Act. (4) The principles or provisions of a State decision may be varied by a Full Bench of the Commission.'

`79 Application of industrial instruments (1) Application generally Part-time work under this Part is to be in accordance with the provisions of the industrial instrument applicable to the work concerned, except where the provisions do not have effect or are modified because of this section. (2) Application pro rata To the extent that any such provision of the industrial instrument is based on an employee engaged on a full-time basis, the provision is to apply pro rata to part-time work under this Part. (3) Commission to make State decision on part-time work A Full Bench of the Commission is required to make a State decision under Part 3 relating to part-time work by employees covered by industrial instruments and to set, by that decision, minimum conditions of employment to which part-time work agreements under this Part are to be subject. The minimum conditions must include minimum and maximum hours of work and other relevant conditions of employment.

Any of the following provisions of an industrial instrument has, except to the extent that is identified as a minimum condition by any such State decision, no effect if it would prevent an employee working part-time under this Part:

(a) a provision limiting the number of employees who may work part-time,

(b) a provision establishing quotas as to the ratio of part-time to full-time employees,

(c) a provision prescribing a minimum or maximum number of hours a part-time employee may work.'

`74 What is part-time work? For the purposes of this Part, part-time work is work of a lesser number of hours than constitutes full-time work under the relevant industrial instrument, other than casual work.'

The parties reported to the Full Bench that they had held many pre-hearing conferences, as a result of which a number of areas of agreement had been identified and areas of disagreement narrowed. On 7 March 1997 hearing dates were fixed for the week commencing 21 July; a document setting out agreed matters and matters remaining in contention was tendered; and a programme for preparation of the case fixed.

Discussions between the parties continued in an endeavour to further narrow matters in contention. Progress was reported to the Full Bench on several occasions. On 15 July an application that the hearing dates be vacated was granted, the parties not being ready to proceed to hearing. The parties continued their discussions and on 20 August the matter was again fixed for hearing, the parties reporting that the matter was ready to proceed. Hearing dates were fixed for 10, 11, 12, 18 and 19 November and a programme for the filing of orders proposed, evidence and an outline of submissions agreed.

The discussions between the parties continued even after the hearing had commenced and there were developments in the positions adopted by the parties even during the course of the hearing, which extended beyond the dates fixed and concluded on 12 December.

The cases finally advanced at the hearing made it apparent that the parties' early agreement had later collapsed and that none of the matters which the Commission was required to determine under s79(3) of the 1996 Act was the subject of any agreement.

The parties only agreement was that in this case the Commission should set minimum conditions for part-time work agreements and should not determine part-time work conditions generally. It was commonly accepted, and the course which we adopted, that a consideration of whether s79(3) required the Commission to determine part-time work conditions generally be deferred.

The industrial parties appearing at the hearing are set out in Annexure A.

The President of the Anti-Discrimination Board announced an appearance early in the proceedings, but on 28 May 1997 sought and was granted leave to withdraw from the proceedings and did not appear at the hearing.

The orders sought by the Labor Council of NSW, the New South Wales Teachers' Federation, the Minister for Industrial Relations and the various employers differed in many respects. The competing orders are set out in the following annexures:

(incorporating orders sought by New South Wales Teachers' Federation)

ACM, New South Wales Branch, the Local Government Association of New South Wales and the Shires Association of New South Wales, the Catholic Hierarchy of New South Wales, Province of Sydney, the Motor Traders' Association of New South Wales, and the New South Wales Road Transport Association Inc

As well as a great deal of documentary material being tendered at the hearing, evidence was called from a number of witnesses, not all of whom were required for cross-examination.

Federated Clerks' Union of Australia, New South Wales Branch

Shop, Distributive and Allied Employees' Association, New South Wales

Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch

Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch

Society for Providing of Needy and Neglected Children

secretary/manager, Shoalhaven Bowling and Recreation Club Limited

The parties co-operated in the evidence which they called, approaching the task on a representative basis.

Evidence was given of the business need in the retail sector for part-time work agreements as well as demand for such agreements from employees. Existing arrangements arrived at in such agreements had been designed to meet both business needs and the needs of the individual employees, having regard to commitments such as family responsibilities and studies being pursued. There was evidence of flexibility in hours being worked by arrangement between employers and employees at times of peak demands; of one workplace where the needs of the business for extra hours to be worked by employees was able to be met by part-time employees, but not casual staff; and of another workplace where a preference was expressed for utilisation of part-time rather than casual staff for extra hours, because of the particular training which permanent staff had received in the work.

There was also evidence that the particular needs of one employee for a part-time work arrangement, different to that provided for in the relevant award, was agreed by an employer under a part-time work agreement under the 1996 Act, principally in order to retain the services of a valuable employee.

There was evidence of a dispute involving the Shop, Distributive and Allied Employees' Association, New South Wales and David Jones over part-time work agreements entered under the 1991 Act which withdrew from employees working a 37.5 hour week a rostered day off to which full-time employees were entitled under the applicable award. Those agreements were superseded by an agreement entered between the company and the union.

In the club industry there was evidence of demand for part-time work by both clubs and employees not being met because of a view that the award provisions were too restrictive and expensive. The Club Employees (State) Award provides for a casual loading of 33 and 1/3 percent and a part-time loading of 15 percent. Part-time hours are 15 per week as a minimum and 30 maximum, with a minimum daily start of 3 hours and a shift maximum of 8 hours. Part-time employees also receive pro rata full-time benefits such as sick leave and annual leave.

There was evidence of a desire by some employees in the club industry to have the security which regular part-time work provided, without payment of the award loading for either casual or part-time work, as well as a willingness to work shifts of as few as 1 or 2 hours. There was a view amongst witnesses called from the management of registered clubs that the award provisions for part-timers were inflexible and costly, restricting part-time work opportunities. As a result of technical problems with the drafting of the agreements, endeavours to introduce part-time work agreements under the 1991 Act had failed.

The view of the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch was that the system for part-time work introduced as a result of arbitration before the Commission in 1980 (and upheld on appeal) was sufficiently flexible for the industry. (See The Club Employees (State) Award Pietracci CC, unreported, 11 August 1980, Liddy J on appeal [1981] AR 562 and Commission in Court Session on appeal [1981] AR 573.)

Evidence about employment by the Salvation Army indicated that about 60 percent of the workforce was employed part-time in order to meet both employer and employee needs, including 2 hour shifts in the morning and afternoons at aged care residential complexes. Some employees who sought part-time work were former clients in receipt of aged and disability pensions who had restricted hours for which they could work, in some cases fewer than 8 hours per week. Some staff wanted short hours because they were working a second job. A 12 hour weekly minimum would pose problems for such employees, because funding restrictions could limit the Salvation Army's ability to offer casual work to such people.

There was evidence concerning the operations of the Baptist Community Services - NSW and ACT, some 75 percent of whose 1,700 strong workforce worked part-time during hours ranging from 6 to 35 hours per week, with some shifts of 2 hours, 3 times per week. The view expressed was that artificial minimums and maximum hours would reduce employment opportunities for such staff.

There was also evidence of increasing part-time employment at St Vincent's Private Hospital resulting from employee demand and to meet staff shortages, despite an expressed preference for full-time employees. Part-time employees were however preferred over casual staff. Work patterns as low as 4 hours per week occurred with most ranging from 1 shift of 8 hours to 35.5 hours per week. Flexibility under the existing nurses award was perceived as a significant benefit.

Working arrangements for employees engaged in out of hours school care such as at Ardill House, Rosslyn Hall and Smithfield West where employees worked 2 shifts a day, was explored. The evidence of the Society for Providing of Needy and Neglected Children was that assistance had been provided by the introduction of a minimum 2 hour shift into the applicable award.

The extensive documentary material tendered by the Minister included ILO Convention number 156, concerning `... Equal Opportunities and Equal Treatment for Men and Women Workers: Workers With Family Responsibilities', which came into force on 11 August 1983 and which Australia has ratified. This Convention formed part of the material considered by the Australian Industrial Relations Commission in the Parental Leave Case (1990) 36 IR 1. Articles 3 and 4 of the Convention provide:

1 With a view to creating effective equality of opportunity and treatment for men and women workers, each Member shall make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities.

2 For the purposes of paragraph 1 of this Article, the term `discrimination' means discrimination in employment and occupation as defined by Articles 1 and 5 of the Discrimination (Employment and Occupation) Convention, 1958.

With a view to creating effective equality of opportunity and treatment for men and women workers, all measures compatible with national conditions and possibilities shall be taken -

(a) to enable workers with family responsibilities to exercise their right to free choice of employment; and

(b) to take account of their needs in terms and conditions of employment and in social security.'

A survey of the part-time work provisions of 100 New South Wales' awards, prepared by the NSW Department of Industrial Relations after consultation with the parties, was tendered. Amongst other things, the survey indicated that:

(1) 34 of the surveyed awards contained no part-time provisions at all, including awards such as the Building Tradesmen (State) Construction Award, the Electrician &c (State) Award, the Food Preservers (State) Award and the Storemen and Packers General (State) Award.

(2) 64 of the awards contained part-time provisions which provided for maximum weekly hours ranging from 20 to 40 hours per week, with 35 awards providing for a maximum of 38 hours per week. Only 37 of the awards contained minimum weekly hours (ranging from 2 to 30 hours per week).

(3) 26 of the awards contained minimum hours per shift ranging from 1 to 6 hours per shift, while only 7 awards contained maximum hours per shift (ranging from 7.36 to 12 hours per shift).

(4) Only 3 of the awards prescribed minimum numbers of shifts per week, and only 1 award provided for a maximum number of 5 shifts.

(5) 6 of the awards provide a minimum number of days to be worked, and only 1 provided a maximum of 5 days.

(6) 3 of the awards provided that overtime was to be paid for hours worked outside the maximum number a part-time employee could work under the award. 37 of the awards provided for overtime to be paid for hours worked in excess of ordinary hours for full-time employees and 23 awards for overtime to be paid for hours worked in addition to the part-time hours fixed by the part-time employee's contract of employment.

The mix of conditions for part-time work provided by awards varies markedly from award to award. The Clerks (State) Award provides, for example, for minimum weekly hours of 12 to be worked on 2 days of the week, but no minimum number of shifts or hours per shift, so that shifts as short as 1 hour or as long as 11 could be worked on 1 day. The Shop Employees (State) Award provides for minimum hours per shift of 3 and minimum weekly hours of 9 or 12 (depending upon the class of shop). The Transport Industry Interim (State) Award provides for a minimum of 18 hours per week and 6 hours per shift, while the Aged Care General Services (State) Award has a minimum requirement of 2 hours per shift, a maximum of 11 and maximum weekly hours of 38.

It follows that no general or common pattern of award regulation of part-time work can be drawn from the evidence.

The Minister produced, in addition to a great deal of statistical information, extracts from books, articles and research papers into sociological matters associated with part-time work and its growth in the community, not only in New South Wales but also applicable Australia wide. We mention a little of the relevant material below:

- In February 1991 there were some 1.5753 million people working full-time in New South Wales and 519,800 part-time. (The statistics included both casual and part-time workers.) By February 1995 this had grown to 1.4712 million full-time and 598,100 part-time. In February 1996 there were 1.6578 million full-time and 645,200 part-time employees. The latest Australia wide figures for August 1997 showed 4.1836 million full-time male employees and 2.0519 million female employees working full-time, with 577,100 part-time male employees and 1,576,700 part-time female employees.

- In the 7 years to August 1995 the proportion of employees working part-time in Australia had increased from 19 percent to 25 percent. 42 percent of female workers and 11 percent of male workers worked part-time. In August 1997 the part-time workforce was 26 percent of the total, but 73 percent of part-time workers were female.

- In 1966 the proportion of part-time jobs in Australia was some 9.8 percent, increasing to 24.3 percent in 1994. Part-time work had increased by 81 percent across Australia between May 1982 and May 1994. Over that same period there had been a 56 percent increase in the part-time employees who were satisfied with their hours of work, compared to a 314 percent increase in part-time workers who wanted to work longer hours.

- August 1995 Australian figures broke the part-time workforce into 5 percent male permanent part-time, 17.6 percent male casual, 32.7 percent female permanent part-time and 44.6 percent female casual.

- August 1997 figures placed 25 percent of male part-time workers in the 15-19 year age group as opposed to 13 percent of female part-time workers, (16 percent of the total). 28 percent of female part-time workers fell into the 35-44 year age group as opposed to 13 percent of male workers (24 percent of the total).

- August 1997 figures showed some 75 percent of dependent students working part-time (some 328,300 people), working 1 to 14 hours per week. 13.38 percent of female part-time workers and 13.97 percent of male part-time workers worked 30 to 34 hours per week and 17.87 percent of female part-time workers and 22.48 percent of male part-time workers worked 6 to 10 hours per week. There were significant percentages of workers, particularly women, who were happy with their part-time hours of work. 76 percent of women and 61 percent of men working 6 to 10 hours for instance preferred not to work more hours, with the figures for 30 to 34 hours being 82 percent of women and 61 percent of men who preferred not to work longer hours.

A significant increase in the participation of women, particularly married women, in the workforce has been reflected in changing patterns of work. A recent study into `Male Part-time Employment in Australia and New Zealand: A Comparative Analysis' by Burgess, Gleisner and Rasmussen, was tendered, which analysed growth in male part-time employment in both countries. The study concluded that there had been growth in male part-time employment in all industries and occupations and across all age groups, between 1981 and 1994, although like female part-time work there was a tendency for such employment to be clustered `into a limited range of occupations which are in general characterised by low skill requirements, limited career path and low pay'.

The study further concluded that the growth in male part-time employment matched the increase in involuntary male part-time employment, which suggested that the growth had less to do with attitudinal or lifestyle change and more to do with economic conditions. It was suggested that industry restructuring and recession had led to a dramatic loss of male full-time jobs, particularly in some sectors such as manufacturing. It was the author's conclusion that the growth in the number of males seeking part-time work, and those in part-time work, had resulted from a variety of factors: in some cases as a bridge to return to full-time employment; in some cases because employers were actively seeking part-time workers in order to economise on labour costs and to reduce the potential for redundancy costs; and, in some cases voluntary moves to part-time work reflected structural and demographic changes, such as an ageing population and increasing participation in post secondary education.

Norris and Wooden, `The Changing Australian Labour Market: An Overview' suggested that the scale of the change in the work participation rate of females since 1970, particularly that of married females, was relevant to the overall growth in part-time work. Since 1970 the participation rate of married females had increased from 42 percent to 55.2 percent in 1995, while the participation rate of unmarried females was little altered and that of men had fallen from 83 percent to 73 percent. It was also observed that a substantial increase in the participation rate in higher education had been accompanied by a decrease in full-time employment, particularly amongst young people, from some 48 percent of those aged 15-19 in full-time employment in 1980 to less than 25 percent of that age group in 1994. Part-time work in that age group had increased in a complementary way. Similarly those in the workforce with post school qualifications had increased from some 37 percent in 1980 to 51 percent by 1993. The authors concluded that in 1970 only 1 in 10 workers was employed part-time, while by the mid-90s the number was 1 in 4, with the majority of additional jobs which had come into existence since 1970 being part-time.

Other studies, such as that of Bill Harley `The Conditions Associated with Peripheral Employment in Australia: An Empirical Analysis', raised concern about the working conditions attaching to less than full-time employment, which were perceived to be less beneficial in terms of pay rates, job security, training and autonomy. Additional concern was expressed because, as the majority of workers in such `peripheral' employment were women, the negative aspects of such work was unequally distributed across society, `reinforcing existing patterns of social inequality'.

An industry report `Working out time in ... Cafés and Restaurants, Residential Care Travel and Real Estate', published by the NSW Working Women's Centre was included in the Minister's material. It was produced in 1997 after consultation with industrial parties including the Restaurant and Catering Association of NSW, the Labor Council of NSW (who participated after the Liquor and Hospitality Division of the Australian Liquor, Hospitality and Miscellaneous Workers Union declined to participate), the Real Estate Employers' Federation of NSW, the Real Estate Association of NSW, the Australian Services Union - NSW Clerical and Administrative Branch, the National Association of Nursing Homes and Private Hospitals, the NSW Nurses' Association, the Health and Research Employees' Association of NSW, the Australian Federation of Travel Agents and the Australian Services Union - NSW Branch.

The aim of the project report was to produce strategies for these four industries, which the participants would distribute to their members to address `working time issues' which had been a source of complaint, particularly from women. Those complaints included demands for unpaid overtime, `staying back', unilateral rescheduling of hours and problems with the taking of breaks.

Amongst many other things, it was noted that there had been considerable growth in the café and restaurant sector in the 1990's, with the number of such establishments doubling to almost 7,000 in 1994 from 3,342 in 1991 and 2,900 in 1988. This had been accompanied by an employment increase of 30,000 since 1991, with some 23 percent of the workforce falling into the 15-19 years age bracket and with employment being equally divided between men and women. Part-time and/or casual work was predominant in the industry, with 51 percent of men and 71 percent of women working part-time.

It was submitted that Part 5 part-time work agreements should not be seen as a default mechanism designed to remedy inflexibilities in existing industrial instruments or as a replacement for them, but rather as an adjunct. Such agreements would have a disproportionate affect on women and consequently had to balance the need for flexibility and protection of income streams.

A 3 hour minimum start would be a reasonable condition having regard to matters such as relative cost and benefit, travelling time, child care costs, income stream protection, community standards, flexibility and current agreements. A weekly minimum of 12 hours would also protect income stream and would balance stable employment and reasonable return, particularly having regard to underemployment concerns.

The maximum hours proposed on an 85 percent basis of full-time hours fixed by the applicable industrial instrument was not restrictive, was consistent with s75 and s79(3) of the 1996 Act and was not inconsistent with community standards. It was said to be necessary to provide a clear distinction between part-time and full-time work in order to ensure that full-time work was available to those who sought it; that part-time work agreements were not used as a device to dilute the concept of full-time work and to protect certain conditions attaching to full-time work such as rostered days off.

It was submitted that broken shifts should not be available if not provided for in the applicable industrial instrument because, generally, such arrangements were unreasonable given peak work load demands, were unsociable, and were inequitable. Broken shifts also raised genuine occupational health and safety concerns, were unfair in that they spread work into otherwise private hours, and generally penalised lower paid workers - they also disadvantaged women who were obliged to balance work and family commitments.

It was submitted that payment for overtime outside agreed hours was consistent with the legislative scheme and with protection of the employees' interests. It was also reasonable having regard to the arrangements agreed by the parties and consistent with maintaining a distinction from full-time work, particularly the proposed maximum hours, also thereby ensuring that agreed hours had meaning.

As to pro rata benefits, it was submitted to be consistent with the statutory scheme that this should be dealt with by way of a minimum condition which applied to all hours worked, including those in addition to hours fixed in the agreement. This was irrespective of whether a penalty loading applied to such hours. It was also submitted that the retention of pro rata benefits and a loading for part-time work would not unjustly compensate part-time workers.

It was submitted that the minimum conditions, in order to avoid confusion, should specify that qualifying periods, redundancy and incremental advancement applied to part-time workers. This would avoid inconsistency and conflict with the provisions of the Anti-Discrimination Act 1977. It was also submitted that a dispute mechanism should be provided for, that approach being consistent with s6(2)(d) of the 1996 Act and with the requirement that agreements be voluntary.

An exemption from the minimum conditions fixed was sought by the New South Wales Teachers' Federation for teachers employed in government schools. That application had the support of other parties.

Evidence was led as to the history of the current regime regulating part-time work by teachers employed by the NSW Department of School Education, which had had particular regard to industrial and employment considerations, as well as social and policy considerations applying to educational requirements of children being educated in State schools, as well as the requirements of employees, especially women, in the workforce.

The existing regime had resulted from extensive negotiation (over some 10 years) and trials involving 150 teachers. The part-time workforce in schools had expanded from 388 employees in 1991 to 3,353 (the equivalent of 1,909.1 full-time positions) in 1995 (the most recent figures). The ability of female teachers to maintain career opportunities had been considerably enhanced, as had the ability of the Department to attract and retain the services of fully trained and experienced teachers. The regime was subject to constant monitoring to ensure that the educational needs of students were met, as well as the employment needs of teachers.

The Employers' Federation of NSW, the Chamber of Manufactures of New South Wales (Industrial), the Registered Clubs Association of New South Wales, the Retail Traders' Association of New South Wales and the Metal Trades Association, NSW Branch

These parties generally urged less restrictive conditions to be imposed by way of minimum conditions than those existing under awards to give effect to the underlying purpose of the legislation of increasing the availability of part-time employment. That approach was said to be consistent with the legislative scheme which contained various in-built protections for employees and was appropriate given that awards required a certain degree of averaging, not necessary where parties were directly agreeing to terms suitable to their own circumstances in an individual part-time work agreement.

These employers proposed that part-time workers be paid the same ordinary hourly rates as full-time employees; part-time loadings were said to act as a deterrent and restriction upon part-time work, limiting opportunities for such work being made available by employers. The traditional rationale for loadings discouraging part-time work and compensating employees for the fact that they were not in full-time employment, were no longer warranted in the modern context or under the present statutory scheme. Such discouragement upon the utilisation of part-time work limited employment opportunities for employees such as women, contrary to the provisions of the Anti-Discrimination Act, and was also potentially discriminatory in various other ways.

It was submitted that there was no real disability attaching to part-time work performed under part-time work agreements, particularly in cases where it was the form of employment workers preferred. The disabilities acknowledged as attaching to casual employment were different to part-time work and were properly compensated by casual loadings. Subsection 79(2) provided that part-time employees were to receive the same benefits as full-time employees on a pro rata basis, it followed that there were no disabilities attaching to work under part-time work agreements which required compensation.

As to minimum hours, it was submitted that 2 hours should be fixed rather than the 3 hours proposed by the Labor Council. That followed because individuals were able to enter part-time work agreements suitable to their own circumstances rather than the averaging required in awards. Parties to such agreements could take account of factors such as an employee's proximity to work, the availability of additional hours at particular times, the applicable rates of pay, the employee's personal circumstances, and the physical demands of the job. The required fixing of times and days of work in a part-time work agreement also provided for certainty and ease of planning for employees. Consequently, it was logical to provide a lower limit than generally provided by award to ensure greater flexibility. Lower minima were also suitable to small businesses and a higher minimum might result in no work being offered by such employers.

A minimum for weekly hours was opposed, it being submitted that no good reason had been established for so limiting part-time work opportunities. It was submitted that such prescription would operate detrimentally for students and that, while there was evidence of some underemployment, the evidence was that the majority of part-time workers were satisfied with their hours. Furthermore, it was submitted, for individuals underemployment might be preferable to no employment.

The minimum for weekly hours proposed was significantly higher than the 9 hours fixed in major awards such as the Shop Employees (State) Award for special and confection shops and for restaurants with fewer than 15 employees in the Restaurants &c Employees (State) Award. Many awards provided no such minima. It was also relevant that no federal awards would contain such a provision in due course, given the provisions of s89A(4) of the Workplace Relations Act 1996 (Cth). Such a limitation would not achieve the objective of the 1996 Act of making part-time work more widely available.

As to broken shifts, it was submitted that 2 starts per day would result in a 4 hour minimum payment per day for employees who agreed to work them. This would assist in workplaces where there were 2 peak periods per day, which would only be worked in cases of such agreement.

As to maximum hours, the rationale for the maximum explained by the Minister in debates in the Legislative Council were referred to:

`The rationale for including the maximum hours is to ensure that part-time employees are not signed up on a low weekly rate, and then regularly asked to work overtime at a single rate of pay. Such arrangements operate to deny part-time employees such leave and annual recreation leave accruals commensurate with their weekly working hours.'

That rationale was best implemented by the employer's proposal of a high maximum so that benefits accrued to full-time employees for all ordinary hours of work, thus ensuring that these hours were reflected in accrued sick and annual leave. It was also submitted that there was no good reason for preventing employees who wished to work more part-time hours from doing so. There should be no limitation upon the opportunities for such work being taken up, particularly in industries where workplaces were open for more than 32 hours, but less than 38, (such as preschools).

It was relevant that many significant awards did not fix maximum part-time hours and that the matter had never been arbitrated by the Commission. Where maximum hours were fixed, the most common was 32. Given that the statutory scheme was intended to make part-time work more generally available, it followed that the Labor Council's proposal should be rejected.

As to the payment of hours worked additional to those specified in the agreement, it was submitted that they should be paid at ordinary rates unless they fell outside the ordinary hours for full-time employees, in which case they should be paid in accordance with the relevant industrial instrument. It was submitted that s80 contemplated additional hours of work, to which an employee agreed, being paid at ordinary rates. The Commission traditionally distinguished between additional hours agreed and those directed by an employer, with only the latter being paid at overtime rates, this being akin to the obligation to work reasonable overtime required by an employer - overruled by s80 of the 1996 Act. The flexibility was desirable and would achieve increased opportunity for part-time work.

The proposal in relation to qualifying periods was opposed, that being a matter best left to industrial instruments. In the alternative it was proposed that the clause should provide:

`where the relevant industrial instrument provides for incremental advancement or incremental payments, then such advancement or payments shall be in accordance with the scheme for part-time work in the relevant instrument, or shall in the absence of an express provision be based on full-time equivalent hours.'

The purpose of incremental scales was to reflect increased skills and knowledge acquired from experience acquired at work which would be reflected by the provision proposed.

As to redundancy, the employers did not disagree with the Labor Council's position in principle, but regarded the provision as unnecessary given s79(1) of the 1996 Act.

The Retail Traders' Association of New South Wales made short separate submissions going to the evidence led in relation to the existing regulation of the retail industry by various industrial instruments, including an agreement reached between the Shop, Distributive and Allied Employees' Association, New South Wales and David Jones providing for a 35 hour week for part-time employees. Similar agreements had been made with other large employers such as Woolworths, K-Mart and Coles Supermarkets.

It was submitted that the nature of the retail industry lent itself to part-time work, particularly given that shops now trade 7 days a week, with peaks and troughs in demand occurring throughout the week and over the course of a year. The need for employees to work additional hours offered, without the payment of overtime for less than full-time hours was emphasised, as was the desire to be able to offer more part-time hours than the 30 hour maximum fixed by the award. The 32.2 maximum proposed by the Labor Council was submitted, on the evidence, to be inadequate, as was the weekly minimum of 12 hours, especially when the award provided a 9 hour minimum.

As to protection of rostered day off entitlements, it was submitted to be relevant that this benefit was restricted under the award to general shops employing more than 20 employees; to deny the rest of the industry access to part-time hours in excess of 32 in order to protect this right was unreasonable.

ACM, New South Wales Branch, the Local Government Association of New South Wales and the Shires Association of New South Wales, the Catholic Hierarchy of New South Wales, Province of Sydney, the Motor Traders' Association of New South Wales, and the New South Wales Road Transport Association Inc

The primary position of these employers was to support the position pressed by the Employers' Federation, with a variation to the first proposed principle to accommodate those industrial instruments which make no provision for matters such as hours of work or weekly rates of pay. In the event that the Commission determined to fix minimum number of hours per week and a maximum number of hours per week an alternate position was put. That alternative position involved various departures, including an exception being made to the minimum conditions where the relevant industrial instrument provided for a minimum start less than that which the Commission prescribed and minimum weekly hours of 7.6. An allowance was also introduced for split shifts, modelled loosely on provisions recently introduced by the Commission in the restaurant industry.

It was submitted that any conditions fixed by this decision should not be regarded as a precedent for conditions negotiated by industrial parties in industrial instruments in the future. It was also accepted that part-time work agreements should not in future become the primary vehicle for regulation of part-time work, except where industrial instruments do not presently provide for such work.

It was also submitted that the minimum conditions fixed by the Commission should not merely reflect existing award standards, part-time work agreements were intended to give employers and employees greater flexibility than available under industrial instruments. In any event, given the varied provisions made in such instruments, no `community standards' could be drawn from them. The minimum conditions should not be too tightly prescriptive as they were intended to provide a framework for negotiation of suitable part-time work agreements. They should, however, protect employees from abuse.

Evidence was tendered of a kitchen hand employed part-time at a boarding school working 8 hours per week over 4 days, where the award provided for a minimum 3 hour start. While the factors mentioned by the Labor Council as relevant to fixing minimum hours of work (such as travel time, geographical location, family responsibility, child care distribution of workload and health and safety issues), were accepted as relevant considerations, that relevance was referrable to the individuals negotiating the particular part-time work agreement and not generally referrable to the fixation of the minimum conditions. Sufficient flexibility should be introduced to allow the direct parties to accommodate their own circumstances.

The Association of Independent Schools and the New South Wales Independent Education Union

While these parties initially announced that they were pursuing discussions around exemptions similar to those sought by the Teachers' Federation, that approach was ultimately not pressed.

It was submitted that the Commission should determine minimum conditions for part-time work agreements which would:

`(1) be consistent with existing award standards except where there is a legislative intent that this not be the case;

(2) limit the extent to which provisions of industrial instruments, which have been inserted by those familiar with the particular industry, are overridden; and

(3) facilitate regulation of part time employment through industrial instruments.'

It was submitted that award standards were aimed at providing adequate protections and entitlements for employees, and that it followed that such terms were relevant to the minimum conditions to be established by the Commission. It was important that there were significant differences between the legislative schemes established by the 1991 Act and the 1996 Act for part-time work agreements, particularly the requirement under the 1996 Act that the provisions of industrial instruments be applied generally to part-time work agreements, other than in the limited exceptions provided in s79(4) and the established minimum conditions. Section 82 of the 1991 Act, by way of comparison, permitted parties to agree to conditions different to those prescribed by the relevant industrial instrument.

It followed, so Counsel put it, that the extent to which part-time work agreements should be allowed to operate outside the provisions of industrial instruments was limited. In that context it was important to note that part-time work agreements would be negotiated between individuals and their employers directly, not on a collective basis, thereby exacerbating the inherently inferior bargaining position of employees. Requiring parties to part-time work agreements to observe applicable industrial instruments would also minimise anomalies in the treatment which employees would receive under part-time work agreements and would remove difficulties in predicting the consequences for employees of the minimum conditions which were determined by the Commission.

The importance of protecting employees from exploitation and the possibility of duress was much emphasised. It was submitted that as the minimum conditions set by the Commission would apply across the State to many industries and occupations, it was important to ensure the protection of all employees in the greatest variety of circumstances, rather than ensuring that highly individualised or unusual arrangements could be accommodated. The need to prevent and eliminate discrimination was also emphasised.

The Minister proposed a minimum of 3 hours per start, and that there should also be a weekly minimum of 12 hours fixed. It was submitted that otherwise there would be a risk that the required regularity of part-time work would be undermined. As to maximum hours, it was submitted that this should be fixed at 85 percent of full-time hours per week or cycle (32.5 hours in a 38 hour full-time week). It was also submitted that, if set too high, maximum hours for part-time workers might undermine conditions for full-time employees.

It was submitted that the working of more than 1 start per day should be left to be regulated by industrial instruments. The employers' proposal for broken shifts was criticised as failing to regulate the conditions under which such starts could be worked. It followed that the proposal thereby failed to provide adequate and reasonable protection for employees.

As to penalties and loadings, qualifying periods, probationary periods and incremental payments, it was submitted that these matters should be left to be regulated by the relevant industrial instrument, or in the absence of provision, should apply on a similar basis to full-time employees (or pro rata where appropriate). Overtime should be paid for hours worked in excess of the maximum hours fixed in the particular agreement.

In order to deal with the competing submissions of the parties as to the statutory scheme of the 1996 Act, it is necessary to consider the legislative background to the provisions of Part 5 of Chapter 2.

Provision for part-time work agreements was not made under the Industrial Arbitration Act 1940 (`the 1940 Act'), but was first introduced in New South Wales in Part 5 of Chapter 2 of the Industrial Relations Act 1991 (`the 1991 Act'). The provisions of the 1991 Act were considered by the Commission's predecessor in two cases, Simiana -v- Woolworths Limited (1993) 50 IR 382 and Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch -v- Tamworth and District Workers Club Ltd (1996) 71 IR 485.

In Simiana, at pages 389-390, Hungerford J, in considering the statutory scheme of the 1991 Act, quoted the relevant parts of the Minister's Second Reading Speech which introduced the Bill for the 1991 Act:

`The bill contains new provisions that will significantly increase the availability of part-time work. Many employees would prefer to work part-time in order to achieve a better balance between their working life and their social and family life. While there has been a strong growth in the incidence of part-time work in recent years, many awards either make no provision for part-time work or impose substantial restrictions on part-time work. Such provisions may, for example, limit the number of employees who can work part-time, establish quotas as to the ratio of part-time to full-time employees, prescribe a minimum or maximum number of hours a part-time employee may work, or require consultation with, consent of, or monitoring by a union. These restrictions not only limit the amount of part-time work available; they also mean that part-time work is often only available on a casual or temporary basis.

The federal Commission in the Parental Leave Test Case only agreed to introduce a right to part-time work in connection with parents caring for a child up to the child's second birthday. However, the Commission noted that there was no obvious reason for so limiting the period. The present Government recognises that employees may have a variety of valid reasons for wishing to work part-time other than the care of a child under two years of age, and for this reason has separated the issue of part-time work from that of parental leave. Accordingly, the bill provides that all employees, or prospective employees, have the right to work part-time, if their employer agrees, irrespective of any award restrictions that would otherwise apply. Such an arrangement must be entered into by way of a formal written agreement between the parties, and all conditions contained in an award or agreement which applies to the employee, other than restrictions on part-time work, will apply on a pro rata basis.'

The introduction of part-time work in the federal system to which the Minister referred in the Second Reading Speech, was dealt with by the Australian Industrial Relations Commission in the Parental Leave Case (1990) 36 IR 1. At pages 12-15 the concept of part-time employment was discussed with the claims before the Australian Commission being described at pages 12-13:

`Part-time employment

On the desirability of part-time employment there is, in a sense, no issue between the ACTU and CAI or any other party or intervener. As we noted earlier, much of the argument advanced by CAI was in support of award provisions which would make part-time work available generally and not only to employees who had assumed responsibility for caring for a child after birth or adoption. This part of the ACTU claim was thus subsumed by the CAI counterclaim. The ACTU resisted, however, any suggestion that part-time work, unrestricted by provisions relating to part-time employment elsewhere in an award, should be available to parents beyond the second birthday or the second anniversary of the placement of a child. It opposed these proceedings being used to establish a general award right to part-time employment. The issue therefore was not whether part-time work should be made available in connection with the birth or adoption of a child, but rather what limits, if any, should be placed on its availability. There are a number of cogent reasons why part-time work should be more generally available for both men and women. This is a matter raised for the consideration of the trade union movement and employers by the August 1989 national wage decision. We do not believe, however, that these proceedings should become a vehicle for establishing a general unqualified right for an employer to employ people part-time which is, in essence, the CAI counterclaim. These proceedings have their origin in the desire of the ACTU to establish or advance a range of rights for the natural or adoptive parents of young children. It is on this basis that they have assumed the status of a test case and this decision is made, in all respects, on the basis that the ACTU has indicated that its affiliates will not resist the introduction into private sector awards of any of the provisions we may decide upon as part of an entire scheme benefiting the parents of young children. There was, as we have said, no issue between the parties about the desirability of part-time employment for parents of young children. Further, the evidence before us makes clear the demand for such employment from parents, particularly women. The Commonwealth government and all of the States, as well as the other interveners, supported the introduction of part-time work as claimed. We have therefore decided to provide for part-time work for parents associated with the birth or adoption of their child. The scheme we have determined allows for part-time employment to be taken in conjunction with or independently of any maternity, paternity or adoption leave. Consistent with the ACTU claim, part-time employment will only be by agreement with the employer. We have provided that an employee with less than twelve months continuous service may work part-time under the clause but has no award right to return to his or her former position. An employee who has twelve months continuous service before commencing part-time work has such a right. The right to part-time employment under these provisions will cease on the second birthday of the child or the second anniversary of the placement of an adopted child. It is apparent from the material before us that child care is, and is likely to continue to be, more generally available for children over the age of two. Parents who are able to rearrange the pattern of their employment by working part-time so as to care for a child, may, on the child's second birthday, be confronted by award provisions which prevent the altered pattern continuing, notwithstanding that both the employer and employee desire the part-time employment to continue. The need for part-time employment for one or both of the parents may not diminish until the child, or the last of any subsequent children, reaches school age and even beyond. All of which suggests that part-time work should continue to be available after the second birthday of the child.'

At pages 13-14, the Australian Commission concluded:

`If we were to decide in this case, however compelling the reasons for doing so, that part-time work should be available beyond the period contemplated by the ACTU's claim, there could be resistance to the variation of awards to reflect the totality of our decision. We have decided, therefore, against the extension of part-time work in these proceedings beyond the second anniversary of the child's birth or placement for adoption. It is nevertheless our opinion that there is no obvious reason for so limiting the period and nothing in ILO Convention 156 supports this limitation. It is our view that the ACTU and its affiliates should give further consideration as to whether part-time employment associated with the care of a child should be so limited. It may be that after the scheme we are proposing has operated for a time, concern about part-time employment will be allayed. Employees working part-time under the clause we propose will receive, pro rata, all award benefits. There was debate before us as to whether part-time employment, provided for as a result of these proceedings, should be described as `permanent' or `regular' part-time work. We see no need for either description. Any part-time employment under the draft award provision is as permanent or impermanent or regular or irregular as full-time employment under the relevant award in which it will be included. We emphasise that we are not providing for casual employment. It is employment on the same conditions as to tenure as full-time employment under the award. If, for example, a full-time employee can be terminated under the relevant award by the giving of one week's or one month's notice, then the part-time employee may likewise have his or her employment terminated on the same basis. As to rates of pay, we intend that a part-time employee will be paid, on a pro rata basis, the rate prescribed in the award for the appropriate classification. In those awards where a loading is incorporated into a rate for part-time employees, as distinct from casual employees, the standard clause proposed will require modification to make clear that employees working part-time under the clause should be paid that loading. We wish to make it clear, however, that we do not intend to endorse award provisions for such loadings and their continued existence is a matter for consideration by the parties to the award. Where part-time employment is undertaken by the employee between the time of birth or placement of the child and the second anniversary of the event, then if a right to return to the former position exists, such right may be exercised once only, even though an employee may work part-time for a number of periods during the two years. The right to return to the former position after part-time work is independent of and additional to any right to return to the former position which arises at the end of maternity, paternity or adoption leave. We are in one respect extending the ACTU claim by allowing women, but not men, to work part-time with the consent of the employer, prior to the birth of a child. This is in the situation where such part-time work is, as a result of the pregnancy, necessary or desirable. There may well be situations where a woman, particularly in the later stages of pregnancy, would wish to work part-time but would not wish to take leave. Such a provision, in our opinion, is clearly justified and is of the type contemplated by s31 of the Sex Discrimination Act. Another area of difference in the part-time work provisions for men and women arises because a female may only engage in part-time employment after six weeks from the birth. The six weeks compulsory leave, as we have indicated, was not put in issue in this case. We do not therefore propose to provide for an entitlement for females to work part-time during that period. We have introduced a provision which requires the employer and employee to record essential elements of the part-time employment before it commences. It is desirable that the parties to the arrangement should have a clear understanding of the terms upon which part-time work will be performed. The part-time work need not be the same as that usually performed by the employee, but we have decided that the type of work which may be performed part-time must be work which is covered by the award under which the right arises. If work were to be performed outside the scope of the award creating the opportunity to work part-time, this could, in our opinion, result in a complex, confusing and possibly conflicting array of rights. As parents working part-time may make arrangements for child-care which depend upon definite commencing and finishing times, we have decided that employees working part-time under this clause should be exempted from any requirement to work overtime. The last matter we wish to deal with on this issue is the question of other award provisions regulating part-time employment. It is a matter we touched on earlier. The ACTU has, on behalf of its affiliates, made it clear that part-time employment in the context of this claim would operate independently of other award provisions restricting its performance. While the ACTU accepted the removal of what it described as `restrictions' on part-time work elsewhere in an award, it did not accept that `benefits' in the award applying to part-time employees should also be removed. Provisions may be restrictions or benefits, depending on the perspective from which they are viewed. A prescription as to the minimum number of hours a part-time employee may work, as exemplified in subclause 13(b) of the Retail and Wholesale Shop Employees (Australian Capital Territory) Award 1983 (see (1987) 24 IR 207), one of the awards before us, may restrict an employer's capacity to offer part-time employment. It may also be seen as a benefit by the relevant union. Little is gained, in our view, by endeavouring to characterise such provisions. We believe, and the ACTU appeared ultimately to have accepted, that provisions limiting the availability of part-time work should have no application to part-time work performed within the context of this claim. This is fundamental to the clause we propose.'

In Simiana, Hungerford J discussed the scheme for part-time work introduced by the 1991 Act at pages 394-395:

`That statutory scheme, in my review of it, represents a detailed and comprehensive prescription for the performance of part-time work in industry, where the work to be performed is itself work covered by a relevant award or agreement and even though that award or agreement may or may not contain any provision for part-time employment. A savings provision is included so as not to affect an employee's right to perform work part-time otherwise than under Div 4. As such, the scheme, in terms, gives effect to the stated purpose or object of the legislation to significantly increase the availability of such work in a situation where an award or agreement may not even provide for it. At the same time, it enables an employer and an employee to agree to the performance of work part-time free from any limitations or restrictions otherwise existing. But the statute goes further than ensuring the ability of an employee to be able to work part-time - it avoids not only the provision of any award or agreement which limits or restricts the circumstances in which part-time work may be worked but also any provision which limits or restricts the terms upon which it may be worked; it then establishes an entitlement in a part-time employee to the benefits of the provisions of any award or agreement applicable to the work concerned on a pro rata basis. That latter aspect was directly addressed in the second reading speech. Given that part-time work means work of a lesser number of hours than constitutes full-time work, the application of award provisions in a pro rata way must, in my view, be referable to those provisions for full-time work contained in the relevant award. That result follows too from the coverage of Div 4 over work performed under it even though the relevant award or agreement may not contain provision for part-time employment.

Whilst, as I have found, the scheme of Div 4 is detailed and comprehensive, it is not, in my view, a comprehensive and exclusive code covering part-time employment generally because it preserves certain aspects of part-time work: see Sungravure Pty Limited -v-Middle East Airlines Airliban SAL [1975] HCA 6; (1976) 134 CLR 1 at 22. For instance, the entitlement to part-time work under any other Act or any award, agreement or contract of employment is preserved by s70; s75 grants pro rata entitlements by reference to an applicable award or agreement; and s82 deals with inconsistent provisions of an award or agreement. Nevertheless, in my view, as to the area which Div 4 covers it is a code. That area is part-time work, as defined therein, agreed between an employer and an employee to be performed in accordance with the provisions of Div 4: ss71, 72, 78 and 81. Provisions in an award or agreement which are consistent with Div 4, that is those which do not limit the circumstances in which part-time work may be worked or the terms upon which it may be worked, apply to work under Div 4: s82. Those provisions, however, apply to the work under Div 4 on a pro rata basis by reference to those provisions applicable to a full-time employee: s75.'

In Tamworth and District Workers Club Ltd, Peterson J was called upon to consider the terms of particular part-time work agreements made under the 1991 Act and their compliance with the requirements of the 1996 Act. His Honour concluded that while those agreements were modelled on particular aspects of the otherwise applicable award, the Club Employees (State) Award, they nevertheless conflicted with the requirements of s78 of the 1991 Act which, like s76 of the 1996 Act, required a part-time work agreement to specify agreed working hours, days and commencing times.

In introducing the Bill for the Industrial Relations Act 1995 (`the 1995 Bill'), it was said by the Minister in the Second Reading Speech that:

`In chapter 2 part 5, it is proposed to, broadly speaking, carry forward to the new bill the provisions which allow an employee, with the agreement of an employer, to work on a part-time basis despite any provision of an award or agreement that limits or restricts the circumstances or terms upon which the part-time work may be performed. Under the 1991 Act, the availability of part-time work agreements was expanded massively without due regard to safeguards and proper supervision of what are, in effect, private arrangements which can displace minimum entitlements in awards and agreements. I have become increasingly concerned about the operation of part-time work agreements as continuing abuses and unconscionable agreements are brought to my attention. Accordingly, I have been convinced that the current provisions are deficient and open to abuse and that proper and sensible regulatory parameters must be set in place. The reforms I am about to detail should be considered in the context of the operation of these agreements under the 1991 Act. As part of the review process, I have been informed of instances where part-time work agreements are operating in a manner which makes eminent sense. Regrettably, however, it has also been drawn to my attention that part-time work agreements are being used by some employers to avoid what otherwise would be legitimate award entitlements. For example, I have been advised about a part-time work agreement which requires the employee to work 37½ hours per week, thereby avoiding an entitlement to a rostered day off which would otherwise accrue under the award to a full-time employee employed on a 38-hour week. In other instances, part-time work agreements impose unconscionable burdens on the employees who are forced to accept employment on virtually any terms due to their comparatively weak bargaining position. Members of the working party have been advised of such instances, for example, where a person, living approximately 90 minutes from a major regional centre in this State, was working a 60-minute shift under the part-time work agreement, that being the only employment available. In a civilised and advanced society, these arrangements should not be countenanced. Given these examples and others, there are sensible policy reasons why there should be minimum standards for people employed under part-time work agreements, such as minimum hours to be worked in a shift, the length of a break between split-shifts and a minimum number of hours to be worked in any week. Accordingly, the Government intends introducing the following measures. First, the present requirement for part-time work agreements to be in writing will be continued, but there will be a new requirement to lodge a copy of such agreements with the registrar. I appreciate that there have been concerns raised by some employer groups to this measure as being an onerous imposition on business. Realistically, I cannot accept such a response. The legislation will impose a cost on employers of not more than the price of one page photocopied, and one postage stamp. The benefits accruing indirectly to employers have obviously been ignored. The lodgment process will provide a modest check on the contents of such agreements and will be an invaluable resource for employers and unions to identify the sorts of restrictions in awards which are being overridden by part-time work agreements. Such records will be of assistance to the parties and the commission in the award review process I outlined earlier. Second, the commission will be empowered to establish principles governing the application of awards and enterprise agreements to part-time work agreements. This will allow the commission, after hearing arguments from the Government, unions and employers in test-case proceedings, to set relevant parameters for part-time work agreements. These parameters are not intended merely to reflect the existing standards in awards, but to establish a genuine base framework for the operation of part-time work agreements. Such standards are necessary to protect against the worst abuses of harsh and unconscionable part-time work agreements. Finally, the legislation has been clarified to ensure that the commission is empowered to deal with industrial disputes concerning part-time agreements in that the definition of industrial matters makes specific reference to part-time work agreements. This change will entitle the commission to deal with these disputes, including matters such as whether a part-time work agreement was made free from duress.'

In introducing the Bill for the 1996 Act, the Minister said that:

`I delivered a very comprehensive second reading speech in respect of the 1995 bill, which can be found in Hansard of 23 November 1995. It would not be of any benefit to repeat that speech, but its contents should be regarded as applying to the Industrial Relations Bill 1996, except where they have been directly overtaken by those amendments now included in the 1996 bill. I should stress that those amendments do not alter or detract from the major tenets and features of the 1995 bill. ... I would like to give the House a brief indication of the most significant of the amendments which have been made to the 1995 bill. Some of them address concerns which have been raised by various parties since the 1995 bill was introduced into the Parliament. Other amendments clarify certain technical aspects of the bill, a number of them being of a minor technical nature. ... Sixthly, an addition has been made to the bill to require a full bench of the commission to make a State decision setting minimum conditions of employment with which part-time work agreements made pursuant to the legislation must comply. This amendment has been made in response to expressions of concern about the scope for part-time workers to be exploited. Parties will have the opportunity to make submissions to the commission on these matters. ...'

The provisions of Part 5 of Chapter 2 of the 1996 Act to which we now turn, must be approached in the context of this legislative background and judicial consideration.

Subsection 79(3) of the 1996 Act requires the Commission to establish minimum conditions to which part-time agreements under Part 5 of Chapter 2 of the 1996 Act are to be subject. The effect of s73 is that such part-time work agreements are available to any employee for whom any conditions of employment are fixed by an `industrial instrument'. Industrial instrument is defined in s8 of the 1996 Act as `... an award, an enterprise agreement, a public sector industrial agreement, a former industrial agreement, a contract determination or a contract agreement'.

Section 76 allows employers and employees to enter into part-time work agreements with each other under Part 5. Such agreements must be in writing and must be signed by the employer and the employee. The employer must give the employee a copy of the agreement, which must also be filed with the Industrial Registrar, (s76). No provision is made for registered organisations of employers or employees to be parties to such agreements. Agreements may later be varied by further written agreement between the employer and employee, (s77). Employees and employers also have the option of continuing to operate under the part-time provisions of the applicable industrial instrument, (s75).

The provisions of s79 of the 1996 Act and the minimum conditions fixed by these proceedings prevail over the provisions of applicable industrial instruments (s79(1)). Otherwise, part-time work is to be regulated in accordance with the applicable industrial instrument; and the provisions of such industrial instruments which apply to full-time workers are to be applied pro rata to the part-time employee (s79(2)).

The scheme of Part 5 of Chapter 2 of the 1996 Act adopted by Parliament differs in a number of significant respects from the scheme of the 1991 Act. Most importantly, the scheme no longer permits employees and employers to agree to perform part-time work in the way discussed by Hungerford J in Simiana: `... free from any limitations or restrictions otherwise existing'. The provisions of applicable industrial instruments must be observed, except as displaced by the 1996 Act or by the minimum conditions determined by the Commission in this decision. The 1996 Act nevertheless continues that part of the scheme of part-time work agreements introduced by the 1991 Act which allows employers and their employees to agree on individual terms suitable to their own circumstances, free of some of the restrictions imposed by industrial instruments, particularly those clauses which prevent part-time work, those which limit the number of part-time employees or impose quotas on part-time employees or those clauses that provide minimum or maximum hours different to those set by this decision.

The legislative aim of making part-time work more widely available than under some industrial instruments has been retained and must be given effect.

The community need for part-time work: review of evidentiary material

The evidence demonstrated that profound changes have taken place over the last two decades in the composition of the workforce of New South Wales. Those changes include the increased participation of women in the workforce and the decreased participation in full-time work by young people, reflecting increased participation rates in tertiary education. The changes were accompanied by increasing requirements by employees of all ages, male and female, for part-time work, accompanied by increased demand from employers for such workers.

The new approach adopted to part-time work by the Parliament's enactment of the part-time work provisions of the 1991 Act, a system which it continued in the 1996 Act, albeit with some significant modification, no doubt reflected the changes in the community. Apparent from the material to which we have been referred is that in the 1990's the Parliament was not content to leave arrangements for part-time work within the confines of regulation by existing awards and other industrial instruments, but has stepped in and regulated part-time work directly by statute. The initial legislative aim was to make part-time work more widely available to employees who sought such work but were precluded from obtaining it as a result of existing provisions of applicable industrial instruments. The 1996 modifications were directed to guarding part-time workers against exploitation.

Direct intervention by Parliament in prescribing working conditions was by no means unprecedented; regulation of annual leave was taken over in part by the enactment of the Annual Holidays Act 1944, long service leave by enactment of the Long Service Leave Act 1955, and termination of employment in circumstances of redundancy by the enactment of the Employment Protection Act 1982. In the federal sphere, superannuation was regulated by the enactment of the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Superannuation Guarantee Charge Act 1992 (Cth) (`the SGC legislation').

The evidence showed that demand for part-time work had increased dramatically over the years, although the need for both permanent full-time and casual work also continued. In some industries employers and employees had a preference for permanent part-time employment, employers because it made available a trained workforce; employees because it brought a measure of security of working hours and income, as well as access to benefits such as sick leave, long service leave and the ability to plan and take paid annual leave. Parliament responded to what was a demonstrable need for permanent part-time work in the community, (as opposed to casual work), with unsatisfied demand for such work coming from both employers and employees.

The evidence indicated that part-time work has in the past been resisted by some industrial parties, a view being taken that permanent full-time work was to be preferred and permanent part-time work was to be discouraged. That approach has largely, but not completely, disappeared, with the result that part-time working arrangements are today a commonplace feature of workplaces in New South Wales, albeit with many and varied restrictions imposed by industrial instruments upon access to part-time work and the conditions under which it may be worked. Those restrictions resulted largely from the agreement of particular industrial parties, although in some cases from decisions, (generally not recent ones), of the Commission's predecessors.

The position at the beginning of 1998 is that in some industries, in particular geographical areas and in specific occupations, employers are unable to satisfy their needs for permanent full-time employees. Conversely, in other industries, geographical areas and occupations, employees cannot obtain the permanent full-time work which they would prefer; and in other cases employees cannot obtain sufficient part-time working hours to satisfy their personal and financial needs. In some cases employees take more than one job to satisfy their personal and financial needs.

The part-time workforce in the State is predominantly female, although the pattern differs depending upon the industry, geographical location and occupation concerned. Family responsibilities is one predominant reason for the part-time working arrangements made by many women in the workforce. It follows that the conditions determined in this decision will impact on more women than men.

The age of the part-time workforce is widely spread. There are, however, significant numbers of young part-time workers in the workforce, as well as substantial numbers of women of an age where family responsibilities are likely to exist. How the minimum conditions fixed by this decision will impact upon particular individuals, whether men or women, young or old, will of course depend upon their particular personal circumstances.

It is a matter of concern to the Commission to ensure that measures designed to be protective of employees, do not in reality operate to their detriment. By setting too high a minimum level of hours for part-time work agreements, part-time workers who need to obtain more than one job to satisfy their need for particular hours per week, may be denied the opportunity. By setting maximum hours too low, employees could be denied the opportunity of making arrangements suitable to their needs - forced to make a choice between too few hours of work or full-time work - neither of which may be readily accommodated by the employee.

We have determined that the question of the minimum conditions for part-time work which we set must be approached primarily from the point of view of meeting the needs of employees for part-time work, rather than from the point of view of employers seeking to overcome award provisions which they regard as inflexible or expensive, or from the point of view of unions seeking to defend the provisions of awards or other industrial instruments which are perceived as hard-won. The approach we have adopted follows not only from the background to the legislation which we have mentioned, but also from the provisions of Part 5 of Chapter 2 of the 1996 Act itself.

Against that background we turn to the competing provisions sought by the parties.

We accept the submission of the Labor Council that the conditions which we set must be appreciated on a `best fit' basis; conditions which will suit each employee and employer and every circumstance are unobtainable. The determination of that `best fit' is to be approached with the twin aims of making part-time work more widely available to employees and fixing conditions which protect employees from exploitation.

We note at this point that what such `exploitation' is, might not be easy to define; the parties made no real endeavour to come to grips with this difficult question. Minimum conditions which make available working arrangements desired by some employees, may well result in other employees being offered fewer hours than they require or even may preclude others from obtaining work of lesser hours which are suitable to their needs.

We take the view that in approaching this difficult question, it is not permissible to give greater weight to the needs of one class of employees who may wish to enter part-time work agreements - women with family responsibilities, for example, over any other class - for instance young people undertaking tertiary education. In our view, such an approach is not available having regard to the provisions of s169 of the 1996 Act and the Anti-Discrimination Act, which equally preclude discrimination at work on account of factors such as race, sex, transgender grounds, marital status, disability, homosexuality and age. The needs of all groups must be sought to be accommodated.

We accept the submission of Mr Crawshaw that even in the consideration of the needs of one identified group conflicting requirements and subgroups must be taken into account and sought to be accommodated. The illustration he used was women with family responsibilities: the need to guard against exploitation of employees inclines a more prescriptive approach to the fixing of minimum conditions, yet resulting inflexibility in permitted working arrangements might impact most severely on this group by restricting their access to part-time work arrangements which need to be accommodated with their family responsibilities. The difficulty in dealing with such complex matters in the broad, particularly in the area of possible indirect discrimination, cannot be overstated.

We take the view that the enactment of s79 of the 1996 Act does not require that in determining the minimum conditions the Commission would simply require the existing provisions of applicable industrial instruments to be observed in all part-time work agreements. The section does require the establishment of a single set of conditions available to all employees to whom an industrial instrument applies in the State. Those conditions are to be established under a statutory scheme which continues the system introduced in 1991 designed to give employees wider access to part-time work than may otherwise be available under such industrial instruments, but having the additional aim of protecting such employees from the risk of exploitation in such agreements.

Part 5 of Chapter 2 of the 1996 Act, however, differs significantly from the scheme for part-time work agreements established by the 1991 Act and those established by many industrial instruments. The 1996 Act does not permit employees and employers to enter agreements for part-time work irrespective of the provisions of industrial instruments. Relevant to the minimum conditions which we set is the recognition that the scheme which is established will provide for some conditions not generally available to employees under industrial instruments. For example, part-time work agreements made under Part 5 require that regular hours of work - their number, starting and finishing times, and the days of the week on which they are to be worked - must be agreed. Such hours cannot be altered unilaterally by an employer, even upon giving notice. Nor can an employer require an employee to work any additional hours. The legislative approach differs significantly from the rights which employers generally have under industrial instruments to roster work, change rosters (usually upon giving notice) and to require the working of reasonable overtime. The 1996 Act also precludes awards restricting the numbers of part-time employees who may be engaged at a particular workplace.

Two elements of the statutory scheme have particularly influenced the approach we have adopted in setting the minimum conditions. Firstly, the statutory protections given to employees who enter a part-time work agreement and, secondly, that they are individual agreements - rather than collective instruments into which the direct parties have no input.

The minimum conditions which we set must also be approached against the background of the numerous industrial instruments in the State which already make provision for part-time work for the industries which they regulate; that regulation is many and varied. The provisions of some extremely flexible industrial instruments are the result of detailed consideration and co-operation by the relevant industrial parties. The teaching and nursing sectors are examples.

Some industries have recently introduced great flexibility in the applicable instrument for part-time work in recognition of the necessity to provide such arrangements to meet the needs of employers in the industry and to accommodate the wishes of employees - the restaurant industry and the local government industry provide illustrations. In one industry, that of restaurants, the flexibility arose from an agreement reached after a judgment of the Commission and an appeal therefrom. (See Restaurants &c Employees (State) Award (Marks J, unreported, 23 August 1996.) In the local government industry, the arrangements were introduced by consent.

In some industries awards no longer reflect the actual conditions under which the majority of employees in the industry work, award prescription having, to a large extent, been displaced by registered enterprise agreements. The retail industry is one example, with the Shop Employees (State) Award estimated by the Shop, Distributive and Allied Employees' Association, New South Wales to now apply only to some 10 percent of those employed in the general shops to which the award applies. In some industries the management of part-time work by award regulation remains contentious and largely unchanged for many years. The registered club industry governed by the Club Employees (State) Award is an example of this situation.

The regulation of part-time work in the State is thus varied. Much of it was as the result of agreement - consent awards, enterprise agreements and individual part-time work agreements made under the 1991 Act. Some regulation results from arbitrated decisions of the Commission and its predecessors.

While this mixed position is relevant to the Commission's determination of the minimum conditions to be fixed for part-time work agreements entered under Part 5, no particular provision can be determinative of what those appropriate minimum conditions should be.

The conditions which the Commission is obliged to fix as minima must make part-time work agreements practically available to those who seek them - as widely and as freely as possible, bearing in mind two matters - the obligation which falls upon the Commission in fixing those conditions to guard against abuse and exploitation of those who may not have the strength to bargain for themselves a fair arrangement, and that the 1996 Act otherwise makes the agreements subject to applicable industrial instruments.

In that context that the evidence demonstrated that full-time and part-time employees share the benefits which flow from secure, regular employment, a significant factor for some employees, who prefer part-time work over more highly paid casual employment. The 1996 Act ensures that while the hours of part-time work may be less in total number than those worked by full-time employees, part-time work under a part-time work agreement entitles employees to participate in the benefits which regular employment brings; those benefits include matters such as access to sick leave, personal/carer's leave, and the taking of annual and long service leave. No doubt for some employees, casual employment, although not attracting such benefits, will continue to have the alternate attraction of casual loadings.

We turn to the approach which we propose to adopt in the fixation of the minimum conditions.

The scheme of Part 5 emphasises the features which part-time and full-time work share; part-time employees are entitled to the benefits of applicable industrial instruments on a similar basis to full-time employees, even where the instrument makes no provision for part-time work - on a pro rata basis where relevant. It follows in our view that in establishing minimum conditions which provide employees with access to the part-time work which they seek, yet also to protect them from exploitation, that we should aim to make the conditions applicable to part-time work, reflect those which apply to full-time work.

Various consequences flow directly from that approach; the first we turn to relates to part-time loadings.

There are now relatively few industrial instruments which provide loadings for part-time work. The trend of arbitrated decisions of the Commission over recent years has been to refuse to fix such loadings, particularly when part-time employees receive full-time benefits pro rata. (See Public Hospital Nurses (State) Award (Fisher P, unreported, 19 December 1985); Security Industry (State) Award (Hill J, unreported, 30 August 1990); and Restaurant &c Employees (State) Award.)

We consider that in the scheme adopted in Part 5 of the 1996 Act for part-time work agreements, the hourly rates for part-time employees should be the same as those fixed by the applicable industrial instrument for full-time employees. The consequence of this approach will be that there will be no additional loadings attaching to Part 5 part-time work agreements; loadings which would discourage employers from agreeing to part-time work arrangements which their employees seek.

A further consequence of our approach is that part-time employees should also be paid for all hours of work on the same basis as full-time employees are paid under the relevant industrial instrument. Subject to one protection which we set out below, we take the view that once a part-time employee works hours which would be overtime hours for a full-time employee, they should receive all benefits attaching to full-time employment under the applicable industrial instrument, including payment for such hours at overtime rates.

There was a deal of evidence about existing provisions of industrial instruments and part-time work agreements which provided minimum hours of part-time work of as few as 1 per day and as many as 18 per week; 3 hours per day was quite common and 2 hours not unusual. The disagreement between the parties was both practical and philosophical, with the Labor Council and the Minister emphasising the possibility of exploitation and pressing for 3 hours as a minimum and the employers emphasising the opportunity for employers and employees to agree to arrangements which suited them and urging that there be a minimum of 2 hours.

There was little evidence before us of any actual exploitation of employees in practice. Under the 1991 Act employers were not obliged to file part-time work agreements which they entered, hence little information was available as to the types of arrangements agreed to under that system. The Minister in the Second Reading Speech in relation to the 1995 Bill referred to a part-time work agreement in the country where the employee concerned had to travel for 90 minutes for 1 hour's work; no other examples of such exploitation were brought forward by the parties, although they emphasised that the Commission must guard against the possibility of future exploitation. Evidence was brought of a part-time work agreement under the 1996 Act which provided for 2 hours work per day by a kitchen hand at a boarding school, an arrangement precluded by the relevant industrial instrument. There was also evidence of circumstances where part-time employees had sought to work 2 short starts per day in industries where such arrangements required the consent of the union. An example was a bus driver who collected aged persons from their homes in the morning to transport them to an aged care centre and who would also have liked to transport them home in the afternoon. It seemed to follow that circumstances which could be described as exploitation on one definition might, on a different view, amount to desirable work conditions.

The Labor Council was candid in its closing submissions accepting that the scheme proposed provided for a particular balance which would have the result that some part-time work arrangements which some employees desired could not be available to them. It was submitted that such a balancing exercise was inevitable if exploitation was to be guarded against. Furthermore, it was conceded that the Labor Council's approach sought to ensure that there was a clear delineation maintained between part-time and full-time work. As a corollary, the Labor Council argued for a scheme that ensured the provision of what was perceived to be a `real' wage or income stream for all those employees who entered part-time work agreements having regard particularly to the provisions of the federal SGC legislation. That legislation prescribes that superannuation guarantee charges are only payable if superannuation is not made available to employees who earn over $450 per month. It was also candidly conceded that this approach could operate detrimentally for those employees, primarily young workers, including those in secondary or tertiary education who might require part-time work for periods which would not attract such superannuation benefits.

While we accept the notion that the prescription of the minimum conditions required by the 1996 Act must potentially have the consequence that some employees will thereby be precluded from entering part-time work arrangements which they desire and which do not involve exploitation, we take the view that given that the scheme established by the 1996 Act intended to expand access to part-time work, we should seek to minimise the incidence of those consequences.

We were unable to accept the submission that in establishing minimum conditions we should ensure that part-time work agreements encompass the requirement that a `real' wage or income stream for part-time workers is achieved. This is a concept undefined in the 1996 Act. No evidence was directed to the concept - certainly none was relied on in submissions. The upshot is that the notion was ill defined and, in a sense, illusory. The introduction of such concepts might provide benefits for some employees who would otherwise be offered fewer hours of work than they would ideally prefer; the risk involved (a real one on the evidence before us), would however be to introduce indirect, possibly direct, discriminatory consequences for women and young workers who require part-time work of limited hours and for whom such hours are not, in any usual sense, exploitative, (notwithstanding that they do not carry with them rights to superannuation under federal SGC legislation). For such employees the limited hours of work which they seek based on their own requirements, may well achieve a `real' wage or income stream suitable to their circumstances. We also finally note that under many industrial instruments superannuation is payable for all part-time workers; such conditions will flow to employees who enter part-time work agreements as a matter of course under s79(1). Where no provision is made, part-time employees will be entitled to a pro rata superannuation benefit under s79(2).

We have determined to fix a minimum start per occasion of 3 hours per day, subject to a number of exceptions. We take the view that it would be wrong to deprive employees of existing work under current part-time work agreements, particularly in the absence of tangible evidence of exploitation. As we mentioned earlier, there was evidence of part-time work agreements before us which provided for work of 2 hours per day, on several days per week including agreements entered by employees suffering from disabilities who could not work for longer hours. We have determined to permit such arrangements where two hours per start is agreed for 2 or more days per week, provided that the arrangement is either sought by the employee whose ability to work other arrangements is restricted by personal circumstances, the place of work is within 5km of the employee's place of residence or where the applicable industrial instrument already makes provision for a minimum start of 2 hours.

As we earlier noted we have been conscious of the evidence led which demonstrated that some people had a real need for working hours of this kind and that there was little evidence before us of any exploitation of employees. The evidence also showed that some industrial instruments do not allow either part-time or casual hours of work of 2 hours duration, thus precluding employees from obtaining such working arrangements on any terms, no matter what the employee's circumstances may be.

We have a real concern however, that for some employees the time and expense incurred in preparing for and travelling to and from work may in reality outweigh the remuneration and other benefits which such work provides. The example used by the Minister in the Second Reading Speech where an employee `... living approximately 90 minutes from a major regional centre in this State, was working a 60-minute shift under the part-time work agreement, that being the only employment available', illustrates the point. The minimum conditions which we have fixed endeavour to balance these competing concerns.

We have also determined to accept the exceptions proposed by the New South Wales Teachers' Federation, which were not opposed. Those exceptions, in this instance, permit the current regime for teachers in government schools to continue unaffected by the minimum conditions which we fix, an outcome appropriate in our view having regard to the peculiar conditions applying in those schools, particularly given the way in which hours of work are regulated and the flexible arrangements there agreed for part-time work, which endeavour to balance the needs of teachers and the educational needs of children.

The difficulties posed in this case by the paucity of evidence about the experience and needs of employees will, to some extent, be cured over time as part-time work agreements are filed with the Registrar. We have taken the view that in the circumstances it would be appropriate for the Commission to review the operation of the minimum conditions which we establish, so that any concerns which arise out of their operation can then be raised for consideration. The working of minimum shifts of 2 hours is one area which should be dealt with in that review.

We have determined not to impose any weekly minimum working hours. We reject the proposal of the Labor Council and the Minister that there be a weekly minimum of 12 hours, which in our view would have untoward and undesirable results. Such a prescription would, for instance, permit a part-time work agreement requiring a 12 hour shift to be worked on 1 day per week, but not 1 of 10, 8 or 7.5 hours per week. It would also permit a woman with family responsibilities or a student to agree to work 3 shifts of 4 hours per week, but not 3 shifts of 3 hours duration. The condition was pressed on the basis that it was important to ensure a `real' wage or income stream. For similar reasons to those explained above, we reject that approach. We add that the approach again carries with it a real risk of direct and indirectly discriminatory consequences, in that it could particularly deprive women, young workers and those with disabilities from access to part-time work agreements which their personal circumstances require and which would not make such agreed arrangements exploitative in any sense.

The competing approaches between the parties in relation to this matter ranged from that pressed by most employers of complete access to part-time work for all hours up to those of a full-time employee under the relevant industrial instrument and the approach of the Labor Council of a fixed 85 percent of the full-time hours under the applicable industrial instrument. This latter approach would translate to 34 part-time hours for those instruments which have a 40 hour full-time week of hours, 32.3 for those with a 38 hour full-time week hours and 29.75 hours for those with a 35 hour full-time week.

The approach of the Labor Council depended on the notion that it was important to maintain a real distinction between full-time and part-time hours. As we earlier indicated, we can see no basis for providing for such a conceptual distinction given the approach adopted in s79 of the 1996 Act. The percentage approach, pressed by the Labor Council and supported by the Minister, would in our view have the unacceptable and undesirable consequence of increasingly limiting access to part-time work in industries where fewer full-time hours are prescribed by the applicable industrial instrument. It would also mean that in some industries the maximum part-time hours permitted would be less than 30 per week. Such an approach appears illogical and contrary to the purpose of Part 5 of Chapter 2 - namely, to increase employees' access to part-time work and may result in less access to part-time work than that prescribed by many industrial instruments - the antithesis of the statutory scheme. Nor does that approach do anything to avoid exploitation of employees. We reject it.

We favour an approach to the fixing of maximum hours which permits wide access to employees to part-time work, but guards against exploitation. The evidence of exploitation before us centred around enterprise agreements offered several years ago by David Jones designed to avoid certain of the benefits attaching to full-time work by providing for part-time work of 37.5 hours per week. To guard against such an approach we will provide that employees who are employed for only 1 hour less than full-time workers under the relevant industrial instrument, are to receive the same benefits as full-time employees working the full week under the applicable industrial instrument.

The consequence of this approach is that part-time work agreements may be entered for any number of hours less than the full-time hours fixed by the industrial instrument, but if the hours agreed are 34 in the case of 35 full-time hours, 37 in the case of a 38 hour week or 39 in a 40 hour week provision for full-time workers, the part-time employee will be entitled to all the other benefits which attach to full-time work.

We have not been convinced by the approach of the employers that provision should be made for the working of broken shifts. Again there was little evidence before us about the matter brought by any party; some industrial instruments provide for broken shifts, others prohibit them, and yet others are silent on the matter.

As a result of concerns over the demands made of employees who are involved in working broken shifts, particularly in industries where there is heavy physical work required, provisions for broken shifts in some industries have been removed from industrial instruments by agreement. The Labor Council, while not bringing any evidence about the subject, raised for consideration its concern that the introduction of broken shifts into all industries in the State, without any review of whether there were resulting health and safety issues which should be considered, was not an appropriate course. That is a concern which we accept.

We do not preclude the question of broken shifts being raised further in the future review of the conditions which we establish in this decision. Such a review should however involve some evidence being called to address the consequences of the introduction of such working arrangements across all industries.

The consequence of our approach will be that the working of broken shifts is a matter left to be dealt with in accordance with existing provisions of the applicable industrial instrument.

Qualifying periods, probationary periods and incremental advancement

We confirm the view that part-time employees should, as far as possible, be treated in the same way as full-time employees, receiving similar benefits and conditions, on a pro rata basis. That is the effect of s79 of the 1996 Act.

We have however concluded that no separate provision should be made by way of minimum condition for these matters. We take the view that the provisions of s79 and of the applicable industrial instrument should take effect. The result of this approach should be that part-time employees are paid the same rates of pay, penalties and allowances for their hours and shifts of work as is provided by the industrial instrument for full-time employees, on an hour for hour basis and that conditions such as qualifying periods, probationary periods, incremental advancements, redundancy provisions and the like should also apply to them - where appropriate on a pro rata basis.

Again we do not preclude the issue being revisited in the review of the conditions, particularly if problems emerge in this area.

As we have indicated, we propose a future review of the conditions which we have determined, so that their operation in practice can be monitored and any problems, deficiencies, or instances of exploitation which emerge can be addressed.

In coming to this conclusion we have been influenced by the drafting of s79(2) of the 1996 Act. Its application in practice to the provisions of a complex multitude of industrial instruments which are in force now or may be agreed or awarded in the future may not prove to be without difficulty; nor is it clear, particularly given the nature of part-time work agreements as individual, rather than collective agreements, how problems which emerge in practice might be addressed.

We particularly note that there is no avenue provided for an employee party to a part-time work agreement to approach the Commission to deal with any difficulties which arise, although unions and employers may notify a dispute about such a matter. Where such problems emerge and cannot be agreed, it seems to us preferable that the matter be referred to the Commission by way of dispute notification, rather than by way of prosecution for breach of the provisions of the 1996 Act or the applicable industrial instruments, a course which we consider an impractical and ineffective approach.

We make the orders set out below. We note that for clarity we have repeated the relevant statutory provisions in the annexure which specifies the minimum conditions, rather than endeavouring to there paraphrase those provisions.

1 Pursuant to s51 of the Industrial Relations Act 1996, the Full Bench of the Industrial Relations Commission of New South Wales orders, for the purposes of awards and other matters under the Act, that the minimum conditions of employment to which part-time work agreements made under Part 5 of Chapter 2 of the Act are to be subject, are the conditions set out in Annexure F.

2 This order shall operate on and from today until further order of the Commission.

We propose that the proceedings be reconvened after a period of 12 months for the purpose of reviewing the practical operation of the minimum conditions which we have established. The parties have leave to apply accordingly.

The proceedings stand adjourned to a date to be fixed.

* Ms Gregory for the Labor Council of New South Wales;

* Mr McDonald for the Employers' Federation of NSW representing:

Association for Disability Employment Placement and Training Limited

Australian Council of Independent Business Colleges Limited

Australian Environmental Pest Managers Association Limited (NSW Branch)

Boating Industry Association of New South Wales Limited

Bus & Coach Industrial Association of New South Wales

Country Children's Services Association of New South Wales Inc

Family Day Care Sponsors (Non-Local Government) Association Inc

Housing Industry (Industrial Relations) Association

Master Plumbers & Mechanical Contractors Association of New South Wales

National Electrical Contractors Association, New South Wales Chapter

Natroad Limited (formerly Long Distance Road Transport Association)

Newcastle Chamber of Fruit & Vegetable Industries Co-operative Limited

Printing and Allied Trades Employers Association of New South Wales

Restaurant and Catering Industry Association of New South Wales

Textile Rental & Laundry Association of New South Wales

The Association of Consulting Architects NSW Branch

The Association of Wall & Ceiling Contractors of New South Wales

The Australian Commercial Dental Laboratories Association (NSW)

The Australian Dental Association (NSW Branch) Limited

The Funeral Directors' Association of New South Wales Limited

The Institute of Chartered Accountants in Australia

The Master Builders' Association of New South Wales

The New South Wales Branch of the Australian Medical Association Limited

The New South Wales Chamber of Fruit and Vegetable Industries Incorporated

The Professional Photographers Association of Australia

The Refrigeration & Airconditioning Contractors Association of Australia Incorporated

* Mr Grozier for the Chamber of Manufactures of New South Wales (Industrial);

* Mr Kolmar for the Registered Clubs' Association of New South Wales;

* Mr Ritchie for The Retail Traders' Association of New South Wales;

* Mr Russell for the Metal Trades Industry Association, NSW Branch;

* Mr Britt for the ACM, New South Wales Branch, the Local Government Association of New South Wales and the Shires Association of New South Wales, the Catholic Hierarchy of New South Wales, Province of Sydney, the Motor Traders' Association of New South Wales, and the New South Wales Road Transport Association Inc;

* Mr Crawshaw of Counsel with Mr Taylor of Counsel for the Minister for Industrial Relations;

* Mr Wright QC for the New South Wales Teachers' Federation with Ms Lowson of Counsel;

* Mr Dawson intervening for the New South Wales Independent Education Union;

* Ms Timbrell intervening for the Public Service Association of New South Wales;

* Ms Seemann (solicitor) intervening for the Association of Independent Schools.

(incorporating draft orders sought by the New South Wales Teachers' Federation)

`PART-TIME WORK AGREEMENTS -

MINIMUM CONDITIONS PRINCIPLES

General 1 In accordance with Part 5 Chapter 2 of the Industrial Relations Act 1996 an employer and an employee may agree in writing to the employee working part time under a Part Time Work Agreement despite any provision in an industrial instrument to the contrary. 2 These Orders, setting Minimum Conditions are to be read in conjunction with the legislative requirements applying to such agreements. 3 These Orders are not to be interpreted as creating a precedent for the working of part-time work at large, pursuant to industrial instruments, nor be used as a precedent in negotiations relevant to industrial instruments. 4 The terms and conditions in a Part Time Work Agreement must not unlawfully discriminate either directly or indirectly, on the grounds of the employee's sex, race, marital status, homosexuality, age, disability or transgender identity, nor be entered into under duress. Hours of work 5 The minimum hours of engagement under a Part-time Work Agreement shall be three continuous hours per start and twelve hours per week, except in the case of teachers employed in schools conducted by the New South Wales Department of School Education, where the minimum shall be one (1) school day (0.2). Except that where such agreement involves work of more than one day per week (0.2) the parties may agree to one start of half a day (0.1) per week. 6 The maximum number of hours specified in a part-time work agreement shall not exceed: (i) where the relevant instrument provides a maximum number of hours per week for a full time employee, then 85% of the full time hours; or where the relevant instrument provides a maximum number of hours per cycle for a full time employee, then 85% of the full time hours averaged over the cycle; or (ii) where the relevant instrument does not provide a maximum number of hours per week or per cycle for a full time employee, then 85% of the full time hours per week or averaged over the cycle as applicable, based upon a 38 hour week; or (iii) in the case of teachers employed in schools conducted by the New South Wales Department of School Education, four (4) school days (0.8). 7 Broken shifts may be worked under part time work agreements where such arrangements are provided for in the relevant industrial instrument, and not otherwise. Where broken shifts are worked, the provisions of the industrial instrument in respect to such arrangements shall apply. 8 In accordance with the Act, the part-time work agreement must stipulate the number of hours per week or per cycle for which the employee is engaged to work, the days on which they will be worked and commencing and finishing times, the classification applying to the work and any entitlement to return to full-time work (s76). 9 An employee under a part time work agreement is not required to work hours in addition to those provided under the part time work agreement (s80). 10 An employee under a part time work agreement may work hours in addition to those provided under the agreement provided the additional hours to be worked are worked by agreement between the employer and the employee (s80). 11 A part-time work agreement may be varied by a further written agreement between the employer and the employee (s77). Application of Overtime 12 Additional hours, worked in accordance with Point 10 above and which fall into the following classes of hours below, shall be paid as overtime or, if the relevant industrial instrument so prescribes, at the casual rate, in accordance with the particular provisions in the relevant industrial instrument: (i) the additional hours to be worked fall outside the span of ordinary hours for full-time employees provided by the relevant industrial instrument; or (ii) the total hours worked in a particular start exceed the number of ordinary hours worked that start by full time employees under the relevant industrial instrument; or (iii) the additional hours fall outside the maximum number of hours prescribed by Point 6 above; or (iv) all additional hours in excess of the hours nominated in the agreement, where the relevant industrial instrument provides that any additional hours worked by a part-time employee in excess of their nominated hours per week or per cycle shall be so paid. Pro-rata and other Benefits 13 (i) An employee under a part time work agreement shall be entitled to all the benefits, which would otherwise apply to the hours of work under the relevant instrument for a full time employee, on a pro rata basis (s79); (ii) An employee on a part-time work agreement shall be entitled to all relevant loadings and penalty rates which would apply to the work under the relevant industrial instrument. Qualifying Periods 14 Where an employee is working under a part time work agreement the following shall apply: (i) where the relevant instrument provides for a qualifying period for a benefit, the same qualifying period shall apply to an employee under a part time work agreement as would apply to a full time employee or a part-time employee, as the case may be, under the relevant industrial instrument; (ii) where the relevant instrument provides for a probation period, it shall apply to an employee under a part time work agreement on the same basis as it would apply to a full time employee or a part-time employee, as the case may be, under the relevant industrial instrument; and (iii) where the relevant instrument provides for incremental advancement or incremental payments, then such advancement or payments shall be in accordance with the scheme for part time work in the relevant industrial instrument or shall, in the absence of any express provision, be based on usual custom and practice in the industry. Redundancy 15 The redundancy arrangements provided in the relevant industrial instrument shall apply to employees working under a part-time work agreement. Leave Entitlements 16 Subject to any provision of a relevant industrial instrument which provides for leave during part-time work: (i) Leave entitlements for an employee engaged under a part-time work agreement, including all accrued leave, is to be converted into hours, on the basis of a day's leave being equivalent to the number of ordinary hours of work for a day of full-time employment. Upon a return to full-time work, the accrued leave entitlements are re-converted to days; (ii) Leave entitlements based on full-time work accrue pro rata during part-time work; (iii) Leave taken during part-time work is to be taken on an hourly basis for each ordinary hour of work the employee is absent from work. However, the employer and the employee may agree that the period over which leave is taken may be shortened to the extent necessary for the employee to receive payment at the employee's current full-time rate (s81). Replacement Employees 17 A replacement employee may be employed to take the place of another employee who has been engaged under a part-time work agreement, but who has a right to return to full-time employment. The replacement employee must be informed, prior to engagement, of the temporary nature of their employment and the rights of the employee working part-time to return to full-time employment (s82). Disputes 18 Part-time work under a part-time work agreement is an industrial matter and a dispute in relation to such arrangements can be referred to the Industrial Relations Commission of NSW. Where a dispute arises in relation to a part time work agreement, the parties should consider the following matters: (i) the wishes of the parties to the part time work agreement; (ii) whether the parties had an opportunity to seek independent advice prior to entering into the part time work agreement; (iii) whether the part time work agreement is in a language which the parties understand; (iv) whether a party entered into the part time work agreement under duress; (v) whether the part time work agreement complies with the relevant statutory obligation and the minimum conditions established by the Commission under subsection 79(3); (vi) whether the part time work agreement reflects the pattern of work actually worked; (vii) the wishes of the employee organization which is a party to the relevant industrial instrument; (viii) other matters the Commission considers relevant. Operation and Effect 19 These Orders shall take effect from the date of this decision and shall remain in force until varied by the Industrial Relations Commission.'

The New South Wales Teachers' Federation proposed that the Labor Council orders should include the following:

`5 The minimum hours of engagement under a Part-Time Work Agreement shall be three continuous hours per start and twelve hours per week except in the case of teachers employed in schools conducted by the New South Wales Department of School Education where it shall be one (1) school day (0.2) except that where such agreement involves work of more than one day per week (0.2) the parties may agree to one start of half a day (0.1) per week'.

(b) Amend paragraph 6 so as to include, in addition to the orders sought, a sub-paragraph (iii) as follows:

`(iii) in the case of teachers employed in schools conducted by the New South Wales Department of School Education four (4) school days (0.8)'.'

1 Pursuant to s51(2) and s79(3) of the Industrial Relations Act 1996, the Full Commission orders, for the purposes part-time work agreements made under s76(1) of the Act, that the following minimum conditions of employment shall apply:

Minimum Conditions of Employment for Part-Time Work Agreements

(i) An employee under a part-time work agreement shall be paid for ordinary hours, a rate of pay calculated by dividing the weekly rate of pay prescribed by the relevant industrial instrument for a full-time employee of the same classification by the number of ordinary weekly hours which constitute full-time work under the relevant industrial instrument.

(ii) The minimum start per occasion shall be two continuous hours.

(iii) An employee under a part time work agreement may agree to work up to two starts in any day.

(iv) The maximum number of hours set out in a part time work agreement shall be of a lesser number of hours per week or per cycle than constitutes full time work under the relevant industrial instrument.

(v) An employer may request, but not require, an employee working under a part-time work agreement to work for longer than the hours agreed to under the part-time work agreement. These additional hours shall be paid at ordinary time rates unless they fall outside the ordinary hours prescribed for full-time employees. If these additional hours fall outside the ordinary hours prescribed for full-time employees the employee shall be paid overtime in accordance with the relevant industrial instrument.

(vi) An employee under a part time work agreement shall be entitled to all benefits accruing to a full time employee under the relevant instrument on a pro rata basis for all hours worked at ordinary time rates.

2 This order shall take effect from the first pay period on or after ...... November 1997 and shall remain in force until varied.'

`Pursuant to s51(2) and s79(3) of the Industrial Relations Act 1996 (the Act) the Commission makes the following orders that set minimum conditions of employment that shall apply to employees working under part time work agreements made under s76 of the Act (part time work agreements):

1 An employee working under a part time work agreement shall be entitled to all the benefits available to full time employees under the relevant industrial instrument applicable to the work concerned (the relevant industrial instrument) on a pro rata basis for all hours worked by the employee.

2 The terms and conditions of a part time work agreement must not unlawfully discriminate either directly or indirectly on the grounds of the employee's race, sex, marital status, age, disability, homosexuality or transgender identity.

3 The parties to a part time work agreement must not bring duress to bear upon one another in respect of the terms and conditions set by the agreement.

4 The minimum hours to be worked by an employee under a part time work agreement shall be three continuous hours per start.

5 The minimum hours to be worked by an employee under a part time work agreement shall be twelve hours per week.

6 The maximum number of hours to be worked by an employee specified by a part time work agreement shall not exceed:

(i) where the relevant industrial instrument provides a maximum number of hours per week for a full time employee, then 85% of the full time hours, or where the relevant industrial instrument provides a maximum number of hours per cycle for a full time employee, then 85% of the full time hours averaged over the cycle; or

(ii) where the relevant industrial instrument does not provide a maximum number of hours per week or per cycle for a full time employee, then 85% of the full time hours per week or averaged over the cycle as applicable, based upon a 38 hour week.

7 Subject to s79(4) of the Act, the minimum conditions of employment applicable to part time employees in the relevant industrial instrument shall apply to employees working under part time work agreements. The conditions set out in orders 8 to 15 hereunder apply to employees working under part time work agreements, except to the extent that provision is made with respect to any such condition in the relevant industrial instrument, in which case such condition of employment in the relevant industrial instrument shall prevail over the conditions set out in orders 8 to 15 hereunder.

8 An employee working under a part time work agreement shall not start work more than once per day.

9 Where the relevant industrial instrument provides for overtime rates to be paid to full time employees, those rates shall be paid to an employee working under a part time work agreement where the hours worked by the employee fall outside the span of ordinary hours for full time employees provided by the relevant industrial instrument.

10 Where the relevant industrial instrument provides for overtime rates to be paid to full time employees, those rates shall be paid to an employee working under a part time work agreement where the hours worked by the employee in a particular start exceed the number of ordinary hours per start applicable to full time employees under the relevant industrial instrument.

11 Where the relevant industrial instrument provides for overtime rates to be paid to full time employees, those rates shall be paid to an employee working under a part time work agreement where the hours worked by the employee fall outside the maximum number of hours per week prescribed by order 6 above.

12 Where the relevant industrial instrument provides for a qualifying period benefit to be paid to a full time employee, the same qualifying period shall apply to an employee working under a part time work agreement.

13 Where the relevant industrial instrument provides for a probationary period for a full time employee, the same probationary period shall apply to an employee working under a part time work agreement.

14 Where the relevant industrial instrument provides for a qualifying period before an incremental advancement or an incremental payment is given to a full time employee, the same qualifying period shall apply to an employee working under a part time work agreement.

15 The redundancy arrangements applicable to full time employees under the relevant industrial instrument shall apply to an employee working under a part time work agreement.

16 These orders shall take effect from the date of this decision and shall remain in force until varied by the Industrial Relations Commission.'

ACM, New South Wales Branch, the Local Government Association of New South Wales and the Shires Association of New South Wales, the Catholic Hierarchy of New South Wales, Province of Sydney, the Motor Traders' Association of New South Wales, and the New South Wales Road Transport Association Inc

`Minimum Conditions of Employment for Part-Time Work Agreements

1 An employee under at part time work agreement shall be paid for ordinary hours, a rate of pay calculated as follows:

(a) where the relevant industrial instrument provides for part-time work, then in accordance with that industrial instrument but not including any part-time loadings; or

(b) where the relevant industrial instrument does not provide for part-time work then as follows:

(1) where the relevant industrial instrument prescribes a weekly rate of pay and a number of ordinary hours per week that constitute full-time work, the ordinary hourly rate for an employee under a part-time work agreement shall be calculated by dividing the weekly rate of pay of a full-time employee of the same classification by the number of ordinary weekly hours which constitute full-time work for a full-time employee of the same classification; or

(2) where the relevant industrial instrument prescribes an annual rate of pay and a number of ordinary hours per week that constitute full-time work, the ordinary hourly rate for an employee under a part-time work agreement shall be calculated by dividing the annual rate of pay of a full-time employee of the same classification by the divisor in the relevant industrial instrument used to calculate weekly payments and by the number of ordinary weekly hours which constitute full-time work for a full-time employee of the same classification; or

(3) where the relevant industrial instrument does not prescribe a number of ordinary hours per week that constitute full-time work for a full-time employee of the same classification, the ordinary hourly rate shall be calculated by dividing the weekly rate of pay of a full-time employee of the same classification by 38.'

1 Pursuant to s51(2) and s79(3) of the Industrial Relations Act 1996, the Full Commission orders, for the purposes part-time work agreements made under s76(1) of the Act, that the following minimum conditions of employment shall apply:

Minimum Conditions of Employment for Part-Time Work Agreements

I An employee under a part time work agreement shall be paid for ordinary hours, a rate of pay calculated as follows:

(a) where the relevant industrial instrument provides for part-time work, then in accordance with that industrial instrument but not including any part-time loadings; or

(b) where the relevant industrial instrument does not provide for part-time work then as follows:

(1) where the relevant industrial instrument prescribes a weekly rate of pay and a number of ordinary hours per week that constitute full-time work, the ordinary hourly rate for an employee under a part-time work agreement shall be calculated by dividing the weekly rate of pay of a full-time employee of the same classification by the number of ordinary weekly hours which constitute full-time work for a full-time employee of the same classification; or

(2) where the relevant industrial instrument prescribes an annual rate of pay and a number of ordinary hours per week that constitute full-time work, the ordinary hourly rate for an employee under a part-time work agreement shall be calculated by dividing the annual rate of pay of a full-time employee of the same classification by the divisor in the relevant industrial instrument used to calculate weekly payments and by the number of ordinary weekly hours which constitute full-time work for a full-time employee of the same classification; or

(3) where the relevant industrial instrument does not prescribe a number of ordinary hours per week that constitute full-time work for a full-time employee of the same classification, the ordinary hourly rate shall be calculated by dividing the weekly rate of pay of a full-time employee of the same classification by 38.

II The minimum start per occasion shall be two continuous hours unless the relevant industrial instrument provides for a lesser number of hours then it will be the lesser number of hours except in the case of teachers employed in schools conducted by the New South Wales Department of School Education where the minimum shall be one (1) school day (0.2). Except that where such agreement involves work of more than one (1) school day per week (0.2), the parties may agree to one start of half day (0.1) per week.

III The minimum work of an employee under a part-time work agreement shall be the lesser of the minimum work provisions of a part-time employee of the same classification in the relevant industrial instrument and the following:

(a) 7.6 hours per week where the relevant industrial instrument provides for a number of ordinary weekly hours per week that constitute full-time work for a full-time employee of the same classification; or

(b) where the relevant industrial instrument provides for a number of ordinary hours per cycle that constitute full-time work for a full-time employee of the same classification, then an average of 7.6 hours per week over the cycle; or

(c) where the relevant industrial instrument does not prescribe the ordinary hours of a full-time employee then it shall be 20% of the ordinary number of hours or load of a full-time employee.

IV An employee under a part-time work agreement may agree to work up to two starts in any day subject to the following conditions:

(a) where the relevant industrial instrument provides for broken shifts then the part-time work agreement must comply with the provisions in the relevant industrial instrument; or

(b) where paragraph (a) does not apply, the start of the first start and the completion of the second start shall be within a span of 14 hours inclusive of meal breaks and for each day an employee works two starts an employee shall be paid an allowance equivalent to one half hour of the ordinary hourly rate payable from time to time to the employee.

V (1) The maximum work of an employee under a part time work agreement shall be the greater of the maximum work provisions of a part-time employee of the same classification under the relevant industrial instrument and the following:

(a) thirty five hours where the relevant industrial instrument provides a maximum number of hours per week for a full-time employee of the same classification;

(b) where the relevant industrial instrument provides a maximum number of hours per cycle for a full time employee of the same classification, then 35 hours per week averaged over the cycle; or

(c) where the relevant industrial instrument does not provide a maximum number of hours per week or per cycle for a full time employee of the same classification, then 90% of the ordinary number of hours or load of a full-time employee.

(2) In the case of teachers employed in schools conducted by the New South Wales Department of School Education, four (4) school days (0.8).

VI An employer may request, but not require, an employee working under a part-time work agreement to work for longer than the hours agreed to under the part-time work agreement. These additional hours shall be paid at ordinary time rates unless they fall outside the ordinary hours prescribed for full-time employees. If these additional hours fall outside the ordinary hours prescribed for full-time employees the employee shall be paid overtime in accordance with the relevant industrial instrument.

VII An employee under a part time work agreement shall be entitled to all benefits accruing to a full-time employee of the same classification under the relevant industrial instrument on a pro rata basis for all hours worked by the part-time employee at ordinary time rates.

VIII Where an employee is working under a part-time work agreement, the following shall apply:

(a) where the relevant industrial instrument provides for a qualifying period for a benefit or a probation period, the same qualifying period shall apply to the employee as would apply to a part-time employee of the same classification in the relevant industrial instrument or if the relevant industrial instrument does not provide for part-time employment then the same period as would apply to a full-time employee of the same classification;

(b) where the relevant industrial instrument provides for incremental advancement or incremental payments, then such advancement or payments shall apply to the employee as would apply to a part-time employee of the same classification in the relevant industrial instrument or shall, in the absence of an express provision be based on usual custom and practice in the industry.

This order shall take effect from the first pay period on or after ....... November 1997 and shall remain in force until varied.'

Industrial Relations Act 1996

Minimum conditions for part-time work agreements

Pursuant to Part 5 of Chapter 2 of the Industrial Relations Act 1996 (`Part 5') employees are permitted to enter into part-time work agreements with their employers on terms different to those provided by the industrial instruments which apply to their employment.

Part 5 part-time work agreements must comply with both the requirements of Part 5 and with the minimum conditions which the Industrial Relations Commission of New South Wales has established for such agreements, which are set out below. The parties to such agreements are also bound by other applicable provisions of the 1996 Act and of the relevant industrial instrument, as well as the provisions of other legislation such as that which regulates annual leave, long service leave, superannuation and anti-discrimination matters.

The provisions for part-time work agreements made by Part 5 and by the minimum conditions established by the Commission do not replace the provisions made for part-time work by industrial instruments. Employers and employees remain free to continue to work in accordance with the provisions of applicable industrial instruments if they prefer. They also however have the choice of entering into part-time work agreements under Part 5 of the 1996 Act if they wish.

The minimum conditions hereby established by the Commission for part-time work agreements under Part 5 are designed to balance two competing considerations, which are partly in conflict with each other. Those two considerations are firstly, to ensure that employees have greater access to part-time work which suits their own circumstances than might otherwise be permitted by the applicable industrial instrument and, secondly, to protect employees from the possibility of exploitation.

The minimum conditions established by the Commission for

A part-time work agreement must comply with the following minimum conditions of employment:

1 A minimum start per occasion of 3 continuous hours, except:

(a) in cases where it is agreed that there shall be a start of 2 continuous hours, on 2 or more days per week, provided that:

(i) the part-time work agreement was made before 26 March 1998, or

(ii) a 2 hour start is sought by the employee to accommodate the employee's personal circumstances, which must be specified in the agreement, or

(iii) the place of work is within a distance of 5km from the employee's place of residence, or

(iv) the applicable industrial instrument permits such hours of work; or

(b) in the case of teachers employed in schools conducted by the New South Wales Department of School Education, where the minimum start shall be 1 school day (0.2), or where the agreement involves work on more than 1 day per week, 1 start per week of a ½ day (0.1) may be agreed.

2 The maximum number of hours per week provided in an agreement must be less than the ordinary hours of work fixed for full-time employees by the applicable industrial instrument, except:

(a) in the case of teachers employed in schools conducted by the New South Wales Department of School Education, where the maximum hours shall be 4 school days (0.8) per week.

(b) in cases where the industrial instrument makes no provision for hours of work, when the maximum part-time hours shall be 37 per week.

3 The part-time employee must be paid the same minimum ordinary hourly rate as full-time employees under the relevant industrial instrument. The hourly rate is to be calculated by dividing the weekly or annual rate of pay for a full-time employee of the same classification under the relevant industrial instrument, by the ordinary weekly or annual full-time hours provided by the industrial instrument. Where no hours of work are fixed by the applicable industrial instrument, the ordinary part-time hourly rate must be calculated by reference to the hours which full-time employees of the same classification at the particular workplace ordinarily work.

4 If the part-time employee agrees to work extra hours in addition to those specified in the part-time work agreement, the additional hours must be paid at the same rate as full-time employees are paid under the industrial instrument. The work must be paid for at the ordinary hourly rate for all hours unless they fall outside the ordinary hours fixed by the industrial instrument for full-time employees. Any hours worked in addition to such ordinary full-time hours, must be paid at the overtime rate applicable to full-time employees under the industrial instrument.

5 If the part-time employee agrees to work weekly hours which are only 1 hour less than the full-time hours fixed by the applicable industrial instrument, or in cases where the industrial instrument makes no provision for hours of work, if the employee agrees to work 37 hours per week, the employee must receive all of the benefits to which full-time employees are entitled under the applicable industrial instrument.

The provisions of Part 5 of Chapter 2 of the 1996 Act

For ease of reference we reproduce the provisions of Part 5:

This Part applies to employees for whom any conditions of employment are set by an industrial instrument.

For the purposes of this Part, part-time work is work of a lesser number of hours than constitutes full-time work under the relevant industrial instrument, other than casual work.

75 This Part not to affect other entitlements to work part-time

Nothing in this Part affects any entitlement that an employee has to part-time work under any industrial instrument.

76 Entitlement to work part-time with agreement of employer

(1) An employee may work part-time in accordance with this Part with the agreement of the employer (a part-time work agreement).

(2) A part-time work agreement must be in writing and signed by the employer and employee.

(3) A part-time work agreement must provide for agreement on the following:

(a) the entitlement of the employee to work part-time,

(b) the number of hours to be worked by the employee, the days on which they will be worked and commencing and finishing times for the work,

(c) the classification applying to the work to be performed,

(d) the entitlement (if any) of the employee to return to full-time employment.

(4) The agreement may be limited to a specified period or periods of part-time employment, but need not be so limited.

(5) The agreement may be made prior to the employee commencing employment with the employer.

A part-time work agreement may be varied by a further agreement in writing between the employee and employer.

78 Obligations of employer under part-time work agreements

(1) A part-time work agreement must be retained by the employer during the period of part-time work.

(2) The employer must give a copy of the agreement to the employee immediately after it is made.

(3) The employer must send a copy of the agreement to the Industrial Registrar not later than 1 month after it is made.

(4) The copy of the agreement is to be made available by the Industrial Registrar for public inspection during ordinary office hours. A person may make copies of it on payment of such fee, if any, as is prescribed by the regulations.

(5) This section extends to any variation of the agreement.

Part-time work under this Part is to be in accordance with the provisions of the industrial instrument applicable to the work concerned, except where the provisions do not have effect or are modified because of this section.

To the extent that any such provision of the industrial instrument is based on an employee engaged on a full-time basis, the provision is to apply pro rata to part-time work under this Part.

(3) Commission to make State decision on part-time work

A Full Bench of the Commission is required to make a State decision under Part 3 relating to part-time work by employees covered by industrial instruments and to set, by that decision, minimum conditions of employment to which part-time work agreements under this Part are to be subject. The minimum conditions must include minimum and maximum hours of work and other relevant conditions of employment.

Any of the following provisions of an industrial instrument has, except to the extent that is (sic) is identified as a minimum condition by any such State decision, no effect if it would prevent an employee working part-time under this Part:

(a) a provision limiting the number of employees who may work part-time,

(b) a provision establishing quotas as to the ratio of part-time to full-time employees,

(c) a provision prescribing a minimum or maximum number of hours a part-time employee may work.

An employer may request, but not require, an employee working part-time under this Part to work for longer than the hours agreed to under the part-time work agreement.

(1) The leave entitlements of an employee working part-time under this Part (including entitlements previously accrued) are to be converted into hours. The conversion is to be based on a day's leave being equivalent to the number of ordinary hours of work for a day of full-time employment.

(2) Leave entitlements based on full-time work are to accrue pro rata during the part-time work.

(3) Leave taken during part-time work is to be taken on an hourly basis for each ordinary hour of part-time work during which the employee is absent from work.

(4) Any accrued leave entitlements on return to full-time employment are to be re-converted into days.

(5) By agreement between the employer and the employee, the period over which leave is taken during part-time work may be shortened to the extent necessary for the employee to receive pay at the employee's current full-time rate.

(6) This section is subject to any provision of a relevant industrial instrument that provides for leave during part-time work.

(1) A replacement employee is a person who is specifically employed as a result of an employee working part-time under this Part and whose employment may be terminated on the return of that employee to full-time employment.

(2) Before a replacement employee is employed, the employer must inform the person of the temporary nature of the employment and of the rights of the employee working part-time to return to full-time employment.