Editors --- "Federated Municipal and Shire Council Employees Union of Australia (WA DIV) - Land Fund and Indigenous Land Corporation - (ATSIC Amendment) Act 1995 (Cth) - Digest" [1996] AUIndigLawRpr 14; (1996) 1(1) Australian Indigenous Law Reporter 32

Federated Municipal and Shire Council Employees Union of Australia (WA DIV)
re Municipal Employees (WA) Award, 1995, AIRC

Australian Industrial Relations Commission (Senior Deputy President Riordan)
31 January 1995, Melbourne

Conditions of employment -- Aboriginal (indigenous) employees -- Local government administration -- (CTH) Industrial Relations Act 1988 -- Section 113

Decision

This decision is with respect to an application by the Federated Municipal and Shire Council Employees Union of Australia, which has since amalgamated with certain other registered organisations of employees to form the Australian Municipal and Clerical Services Union of Australia (ASU), made pursuant to section 113 of the Act to vary the terms of the Municipal Employees (Western Australia) Award, 1982 (the Award).

The fundamental purpose of the application is to give due and proper recognition to the cultural and spiritual beliefs of Aboriginal persons who are employed by local government bodies in Western Australia in accordance with the terms and conditions which are contained in the Award.

This is an unusual matter. It raises questions for determination which, as far as I am aware, have not previously been decided by this Commission or by any State industrial tribunal. It is an application for the variation of particular clauses which, if awarded, would, according to Mr Bennett and Ms Jackamarra who appeared on behalf of the ASU, create the necessary conditions which would facilitate the adherence to the requirements of relevant Aboriginal cultural and spiritual duties and obligations, which are required by Aboriginal law and cultural practices, by Aborigines who are employed by local government bodies in Western Australia, without their continued employment being prejudiced as a consequence of such observance.

The application to vary the Award was filed in the Perth Registry of the Commission on 17 June, 1993. The final submissions made by Mr Bennett and Ms Jackamarra on behalf of the ASU, by Mr Fitzgerald on behalf of the Western Australian Municipal Association (WAMA), on behalf of its member local government councils and by Mr Joyce, on behalf of the Chamber of Commerce and Industry of Western Australia (CCI of WA) on behalf of its member local government councils, concluded in Perth on 12 January 1995.

Earlier in the proceedings an application was made, on behalf of the employers represented by WAMA and CCI of WA, pursuant to the terms of section 107 of the Act, for this application to be heard and determined by a Full Bench of the Commission. This application for a reference was opposed by the ASU, which expressed the view that if its application were to be heard by a Full Bench the presentation of its case would be severely impeded because Aborigines were very apprehensive about giving evidence in formal proceedings in the atmosphere of a court on account of their experience in courts in Western Australia. After considering the various aspects of the matter the President, the late Justice Maddern, decided as follows:

In order to expedite the hearing and determination of the matters, I direct Senior Deputy President Riordan to investigate and report pursuant to section 107(10) and take evidence pursuant to section 107(12) of the Act in relation to these matters.

Arrangements were made for hearings to be held in various parts of Western Australia for the purpose of taking evidence, and hearing submissions in respect thereto.

The procedures followed were suited to the particular circumstances in each case. Generally, evidence was taken with the least possible formality in order to encourage to the maximum extent the participation of relevant employees. It is appropriate to observe that there is a low incidence of union membership amongst Aborigines who are employed in local government in Western Australia. It was noticeable, however, that more employees became more readily available to give evidence with respect to this application as the proceedings progressed.

The degree of informality of the procedures was supported by all parties to the proceedings. In my view, the approach taken was essential in the circumstances in order to gain access to relevant information and to obtain a proper appreciation of the relevant circumstances surrounding the employment of Aborigines, to ascertain the capacity of such persons to obtain employment and gain access to a proper career path in accordance with the Commission's Structural Efficiency Principle, which is the corner-stone of the current principles of wage fixation.

The Commission has a discretion to follow procedures which are suitable to meet the circumstances of the particular proceedings (s.111(1)(j) and (t)). It is not constrained in this regard except to the extent necessary to ensure that all parties are afforded the benefit of procedural fairness. Appropriate steps were taken to ensure that no party was prejudiced in this regard. Indeed, all parties expressed satisfaction with the procedures that were followed.

After hearing all of the evidence and receiving all of the material presented, together with the respective submissions that were made, a report was made to the President on 26 October 1994. In the event, her Honour, President O'Connor, refused the application by the employers for a reference of the application to a Full Bench for hearing. A further hearing was arranged for 11 and 12 January 1995 in order to hear the final submissions of the parties.

The final submissions made on behalf of the ASU, WAMA and CCI of WA during the proceedings held on 11 and 12 January, 1995 are clearly indicative of there having been no change of attitude by any of the relevant parties. The issues, therefore, must be determined by the processes of arbitration. This is an unfortunate and regrettable situation because for there to be real and fully effective reform in this very sensitive and complex area of industrial relations a large measure of co-operation is highly desirable.

The conclusion I reached, and which is included in my report to her Honour, the President, included the following:

It is appropriate to observe that all parties to these proceedings agree that there is a need for due recognition of, and for proper respect to be afforded to, the culture, and the duties and responsibilities attached thereto, of Aboriginal Australians in the work place of local government in Western Australia. The ASU disputes that such recognition exists at present and is very critical of the attitude of some employers in this regard.

It is, of course, trite to observe that it is not difficult to support in general terms the objective of racial and cultural equality and non discrimination in the workplace. On the other hand, it is a quite different matter for management to implement such principles in an effective manner. There is no conclusive evidence in this case, however, to suggest duplicity by employers in this regard. At the same time, there is little evidence of a concerted effort to develop in an active way a positive policy to affirm the right of Aboriginal persons to practice their culture without having a concern for their future employment prospects.

The issue which divides the parties may be stated fairly, as being the form of the recognition of and the respect for the Aboriginal culture. The ASU is adamant in its view that there must be an adequate prescription of relevant provisions in the Award, which may be enforced where necessary. On the other hand, the employers' view is that the relevant objective will be achieved best by an expression by both parties of acceptable policy and principle, with a joint approach designed to achieve its successful implementation at the workplace.

Having regard to the evidence given and the submissions made in these proceedings, I have formed the view that there is a genuine desire by those who represent the interests of employers in this matter to achieve a situation whereby there will be a proper recognition of the culture of Aboriginal Australians in the workplace and the legitimate desire of employees to practice their cultural beliefs, and to ensure that Aboriginal employees are able to discharge their extended family responsibilities. This, however, is not to under-state the strength of the opposing attitudes with respect to the method of achieving such a desirable situation.

The proposal made by employers is that the award should be varied to include a new Schedule "C" which will contain "Statement of Principles and Guidelines -- Aboriginal (Indigenous) Employees -- Cultural Considerations". The substantive part of that Schedule is in the following terms:

Local governments acknowledge the Aboriginal cultural beliefs and practices of their employees and will seek to empower those Aboriginal employees to continue in employment whilst carrying out all the practices and beliefs of their Aboriginal culture.

Statement of Principles

Local Government supports the principle of reconciliation with Aboriginal people and seeks to create a better understanding of Aboriginal history, and culture and to address the continuing disadvantage of the Aboriginal people. Local Government supports the aspirations of the Aboriginal people.

Local Government recognises self determination as an appropriate mechanism for Aboriginals to exercise greater control and management of the affairs of Aboriginal communities.

Local Government supports initiatives which enable Aboriginal participation and input in council activities and processes.

Local Government seeks to foster goodwill between Aboriginal and non Aboriginal employees.

Local Government recognises the desire of Aboriginal employees to practice and develop their culture.

Local Government supports the development of local consultative mechanisms, where appropriate, to ensure that Aboriginal employees are not limited by their employment from growing and developing in the Aboriginal culture.

Training of Staff Councillors

Local Government recognises the importance of cross cultural training for staff and elected members to develop skills and knowledge which enable Local Government to more effectively understand the needs of Aboriginal people.

Aboriginal Employment and Training

Local Government has a role in stimulating and promoting the employment and training of Aboriginal people by:

* Supporting the principle of Equal Employment Opportunity (EEO) in Local Government, in particular the elimination of
discrimination in employment on the ground of Aboriginality and the promotion of equal opportunity for all persons.

* Identifying council positions where Aboriginality is an occupational advantage as allowed for under section 50(d) of the Equal Opportunity Act (1984).

* Supporting involvement in employment training programs for Aboriginal people.

* Ensuring Aboriginal organisations have equal access to tendering for contracts for the delivery of local services; and

* Supporting Aboriginal organisations which aim to develop and implement local employment programs.

Culture and Heritage

Local Government encourages Aboriginal people to develop cultural activities, and participate fully in general community activities.

Local Government encourages the promotion of local Aboriginal history, heritage and culture in consultation with Aboriginal people.

Guidelines

Local Government will, in consultation with local Aboriginal employees, ensure that the provisions in the Municipal Employees (WA) Award 1982 ("the Award") are interpreted as flexibly as possible in order to ensure that:

1. Aboriginal employees in dispute with a Local Government may be represented by an Aboriginal person chosen from a local list of Aboriginal Community mediators.

2. Develop and implement local policies and practices, in consultation with Aboriginal employees, that will ensure Aboriginal
employees receive culturally appropriate training in numeracy and literacy and the skills development appropriate to their
employment by Local Government.

3. Make provision for flexible interpretation of the appropriate clauses of the Award to assist Aboriginal employees to fulfil their cultural and family requirements in the event of the death of a family member (having regard for the Aboriginal understanding of "family").

4. Develop local strategies and mechanisms which will ensure that Aboriginal employees are fully inducted into the workforce when they take up employment with a local government.

5. Ensure through training of other staff that the appropriate recognition is given to Aboriginal employees' commitment to their culture.

6. Allow sufficient flexibility in the taking of single days of annual leave or alternatively the transfer of public holidays so that
Aboriginal employees may celebrate their National Day in an appropriate manner.

7. Negotiate locally with the family and/or tribal elders to facilitate the flexible application of the Parenting Leave provisions of the Award appropriate to the local Aboriginal cultural beliefs and practice in relation to child birth and adoption.

Recommended Process for Local Discussions with Aboriginal (Indigenous) Employees

The parties to this Award agree that the process of local discussions with Aboriginal (Indigenous) employees regarding local arrangements to accommodate Aboriginal (Indigenous) employees' cultural needs will be conducted in accordance with Clause 45 -- Enterprise Agreements of this Award.

The areas of concern will vary from one locality to another as the cultural duties and responsibilities and needs of Aboriginal (Indigenous) employees vary from place to place. However, employers are urged to give favourable consideration to applications by Aboriginal (Indigenous) employees which relate to their duties and responsibilities in the practice of their culture which includes, but is not limited to absences from work to attend to the following matters:

* Aboriginal funerals in the extended Aboriginal family

* Aboriginal Ceremonies and Law Business

* Initiation Ceremonies

* Aboriginal Women's Business

* Assisting family members suffering ill health

* Assisting family members in distress.

In addition, the employers propose variations to clause 22 (Holidays) to give recognition to National Aboriginal Day of Celebration, a variation to the dispute settlement procedure contained in clause 11 of Schedule B of the Award and a provision with respect to enterprise agreements. These proposals are dealt with later herein.

The first question to be decided, therefore, is whether the award should contain a schedule setting out a statement of good intentions by the employers towards Aboriginal persons who may be employed by local government respondents to the award or whether there is a need for a more prescriptive approach.

I have given a good deal of thought to this matter, including a careful consideration of all of the evidence given in these proceedings which included evidence from academics with very long experience and outstanding personal records of research work with respect to Aboriginal culture, evidence given by several persons including those who are managerial and supervisory staff of local government councils, persons employed by local government bodies as Aboriginal liaison officers, other persons employed by local government including a substantial number of persons who practice Aboriginal culture in varying degrees, persons involved in Aboriginal affairs and the Union's special advisor on Aboriginal matters.

In addition, a statement to which I have given careful consideration was made during the hearing by the Deputy Chairperson of the Council for Aboriginal Reconciliation, Sir Ronald Wilson A.C., K.B.E. That statement is set out in full in my report of the 26 October 1994 which was made pursuant to section 107(10) of the Act. In view of its importance it is appropriate to set it out again in this decision. The statement made was in the following terms:

I am speaking as a member of the Council for Aboriginal Reconciliation. I am the deputy chairperson of that council. The process of reconciliation was enshrined in the statute -- the Council for Aboriginal Reconciliation Act of 1991 -- which received assent and came into force on 2 September 1991. The statute provided for the appointment of a council for reconciliation consisting of 25 members; 12 of them were to be of Aboriginal race, two of them Torres Strait islanders and the remaining 11 were other Australians. So there was a majority of indigenous Australians on the council.

It has operated since its first meeting in February 1992. It was appointed for the 3 years, which would expire in December next year, to be followed by further councils which may or may not provide for overlapping membership, to preserve some continuity. But the whole process is provided for in the statute to be completed by 1 January 2001, the date on which Australia will celebrate the centenary of federation. It is anticipated -- and this is the challenge -- that the nation will then be ready to enter the 21st century as a united nation.

And if I can express it in terms of the council's vision which was formulated at our first meeting as both a goad and a guide -- a goad to keep us on the job and a guide to help us maintain direction -- but it was the vision of a united Australia which values this land of ours, which respects its Aboriginal and Torres Strait Islander heritage and which provides justice and equity for all. The council proceeded, as the statute required it, to formulate a goal and it was to encourage all Australians to acknowledge that vision as their own by 2001.

The council has undergone a miniature process of reconciliation because it was an extraordinarily diverse group of 25 people -- both as to age and gender and race, background; some from Aboriginal communities still living in their traditional ways, others from the capital cities, the urbanised Aboriginal people, and other Australians from a very influential cross-section of Australians -- Ian Spicer, for example, is a member who would be well known in this jurisdiction, Jenny George is a member, Robert Champion De Crespigny -- the executive chairman of Normandy Poseidon -- is a member, Rick Farley -- the national director of the National Farmers Federation -- is a member.

On the more persuasive side, Ray Martin of media fame is a member and it's proving very efficacious to have Australians of this degree of influence within the Australian community to combine their skills and their experience to facilitate, together with the indigenous members of the council, a process of reconciliation. The council recognises that its task is not to create reconciliation but to facilitate it. Ultimately reconciliation will only come when the nation is ready for it and that essentially means when the ordinary Australian has perceived the importance, indeed the imperative, if this country is to make the most of its future and its promise in the next century, to enter that century without the evasiveness that presently attends the relationship between the indigenous people and the rest of Australia. So we're about changing attitudes.

And of particular relevance to the hearing and your work, sir, is the work of the industry committee. We have appointed sectorial committees; one in the rural industry, one in the mining industry and one in the industry itself. It's co-chaired by Jenny George and Ian Spicer and it has the task of facilitating the process of reconciliation in the workplace. That includes familiarising employers and unions with the goals of the reconciliation process -- indeed with the vision of the council -- encouraging them through a process of communication, information sharing and general education of the merits of reconciliation in the workplace; encouraging both the peak bodies and the individual workplaces to enter into a commitment to reconciliation, a commitment which would recognise the importance of reconciliation and adopt practical measures to facilitate it.

One of those measures is the recognition of the low state of Aboriginal employment in many workplaces in Australia and the importance of practical training to facilitate the employment of Aboriginal persons in the workplace and also to educate the other Australians working in that workplace in the cultural traditions and history and some of the features of Aboriginal culture, some of its riches, that will encourage a positive and constructive relationship.

A document has been prepared and recently published called, "Working as One" and it epitomises, both in its title and its content, the objectives of the Industry Committee. It's a very short publication. If I may, I will leave this copy for you, sir.

I am sorry I cannot give my friends copies. I tried to get a number sent from Canberra in a hurry but I left it too late. But it is readily available and may already be known to my friends at the table. It states, very shortly, the importance of a harmonious workplace and a workplace that is representative of the cross-section of Australian community. It's receiving considerable encouragement. I was very impressed with the recent ACTU congress at its biennial congress in September when it devoted an entire half day of its four-day program to reconciliation and there is a willingness at that level to enter into a formal commitment to reconciliation and then to encourage its members to do the same so that the process will filter through to the grass roots workplaces where the work is actually being performed.

It may not be relevant to mention in this context the industry regards government, employers, trade unions and local government within its mandate and the council as a whole, and the industry committee in particular, recognises the very significant role that local government plays in the Australian community, the hands-on grass roots level of government and the importance that attaches to a positive attitude on the part of local government to reconciliation issues.

If I may speak as a West Australian and not specifically out of anything I have learned from being a member of the council, I am not unfamiliar with some of the problems that afflict some of our country towns in Western Australia where the Aboriginal people still largely reside on a reserve not on the outskirts of the town and where there is an inherited systemic discrimination operating. It was highlighted by the Equal Opportunity Tribunal in Western Australia 2 or 3 years ago in a case called Saltier.

I will not mention the town but that was a complaint of discrimination arising out of the failure of an application made by an Aboriginal woman for employment in one of the shops in the town. She was qualified and in all respects appeared to be a suitable candidate for employment but she wasn't appointed and she lodged a complaint with the Equal Opportunity Commission when, failing conciliation -- as is the practise in Western Australia -- it went to the tribunal. And the tribunal gave down what I think at that time was a historic judgment because it was the first time, to my knowledge, that an Equal Opportunity Tribunal in Australia, and certainly my human rights and equal opportunity commission of which I have the honour to be president, had not made a decision in that area before.

But the thrust of this decision was not to criticise specifically the employer that declined to employ the Aboriginal applicant but to, nevertheless, find the complaint established on the basis that the non-employment of the Aboriginal person in that context was the outcome of a systemic discrimination that infected the relationships entirely in that community; that the communities were really quite separate black and white except on the football field and, unfortunately, the camaraderie that might have developed on the football field just didn't penetrate into the community life, its social activity and its communal life.

And I think a local authority has an enormous opportunity in a situation like that to bring together the different sectors of the community in an informal committee of reconciliation; just a local committee. It needn't be heralded or reach the headlines but it's just a group of Aboriginal representatives and community leaders in that town that helps them to live together and to promote opportunities for ironing out difficulties and disputes and generally to look towards a co-operative relationship that spells harmony for the community.

I find it hard to see a more constructive role when you look at the number of country towns of this land and the location of local government, the number of them, it's difficult to see a more constructive role for reconciliation than that which can be played by local government in adopting a constructive and open approach to reconciliation.

Part of the challenge of the process is to encourage Australians not to see it as a compulsion to be moral or to overcome some sort of guilt, nothing like that at all, but to encourage a positive welcoming of a new day -- in the terms of that very wonderful play that's enjoying such success at the moment, a Bran Nue Dae -- in which indigenous and non-indigenous Australians begin to appreciate each other and value each other's past and history, the heritage and culture, and generally to pave the way for personal relationships where it's possible for them to develop that are grounded in mutual respect and, indeed, a liking for each other and a recognition of their respective gifts.

Well, that's the process of reconciliation. The council's a bit worried about the political point-scoring that's going on at the moment and concerned that it may promote a new divisiveness that the council will have to pick up the pieces when the dust settles and carry on with its job. But basically the message that you graciously allow me to bring is that the reconciliation process in Australia is a reality. It has considerable significance for the workplace, as it does for other areas of Australian life, and if the kind of positive proposals that are contained in this document can be implemented throughout the workplaces of the nation, then I'm sure it bodes very well indeed for our future.

I have had regard to this statement and treated it as evidentiary material because it was not contested by any party to the proceedings. Authority for treating this as evidence is based on the judgments of Barwick, CJ and Menzies, J (See -- Melbourne Metropolitan Tramways Board -- [1965] HCA 50; (1965) 113 CLR 228 at 243 and 252).

The statement made by Sir Ronald Wilson represents an important factor in deciding the fundamental question between the parties, that is, whether there should be a prescriptive or non-prescriptive approach. In particular, his reference to the "inherited systemic discrimination operating" in country towns in Western Australia is particularly apposite.

The existence of "inherited systemic discrimination" would lead to the conclusion that unless there is a requirement to observe certain conditions there is at least a strong possibility that, in some instances, a statement of good intentions made in good faith by two employer bodies representing local government may not be sufficient to overcome the perceived difficulty. In this regard it is relevant to keep in mind that the evidence is clear that in at least a substantial number of cases the claims by the ASU have not been referred to or discussed by the elected councillors of the local government bodies on whose behalf evidence was given by the executive or supervisory staff.

There is also the evidence given by Professor Tomkinson which is an important factor to be considered in deciding this aspect of the matter. Professor Tomkinson is the professor of anthropology at the University of Western Australia. He has about 32 years of experience of field research with Aboriginal people, principally in Western Australia. In his evidence he referred to certain prejudicial attitudes towards aboriginal persons to be found generally in the community.

Dr Sampson is an anthropologist with long experience in the study of Aboriginal affairs and he was the professor of anthropology at the University of Western Australia until his retirement in June 1993. His evidence also has relevance in this regard.

The evidence given by persons employed by local councils in the various parts of Western Australia does not establish the existence of racial prejudice with respect to the employment of Aboriginal persons. On the other hand, it is very clear that relatively few persons of Aboriginal cultural background or of Aboriginal heritage are employed in local government in Western Australia.

The evidence indicates that Aboriginal persons are sometimes employed on fixed term contracts in accordance with one of the Commonwealth Government's Aboriginal employment schemes and that certain of those persons have continued their employment following the conclusion of the particular employment scheme or program. There is evidence of such employees continuing their training and gaining limited advancement, particularly in areas such as gardening and road maintenance. The evidence indicates a willingness and desire by those employees to undertake training and to seek further progression within those grades; but it must be said that the numbers of such persons who are employed by local government is extremely small.

Although I am apprehensive about the consequences of a prescription which might be regarded by employers as onerous and, therefore, a disincentive to employment, the conclusion I have reached is that unless there is some clear requirement on the part of the employer to give a proper and reasonable recognition to the culture and spiritual beliefs of Aboriginal employees the terms of any award made in this regard would be ineffective at least in some areas.

It must be said, I think, that certain of the local government councils in Western Australia are making a real effort to give proper recognition to the cultural and spiritual needs of Aboriginal persons without their employment being adversely affected.

The evidence given in these proceedings by the President of the Shire of Derby, West Kimberly, Western Australia, is indicative of the harmony which can be achieved where a council sets out to achieve close co-operation and a reasonable understanding of the needs of persons practising Aboriginal culture. If the practices described were to be applied universally throughout the local government industry in Western Australia the application presently before the Commission may well not have been made.

Certain other Councils also appear to be making, in a serious way, efforts which are intended to achieve harmony with the requirements of Aboriginal culture and beliefs.

It was argued, on behalf of the Western Australian Municipal Association, that the changes which are desirable will not be achieved by award prescription but "they will be achieved by a real change in the minds and hearts of the people that are in local government today" (page 1140 -- Transcript 12/1/95).

It must be stated immediately that the draft schedule proposed by employers contains a provision for the training of staff and elected members of council which will allow more effective understanding of the needs of aboriginal people. There is, of course, no barrier to such a desirable and highly commendable proposal and, hopefully, such training will be implemented.

If there were any real prospect of such a change of heart being achieved in the immediate future the proposal would be most attractive. It is to be remembered, however, that councils are elected by a regular electoral process in the various towns and regions of the State of Western Australia. There is no guarantee that if the hearts and minds of those who presently occupy elected positions in the State were attuned to the cultural needs and legitimate aspirations of Aboriginal persons, the same position would necessarily endure next year.

It is also relevant, I think, that some country towns and localities are perceived to be infected with systemic discrimination against Aboriginal persons. In these circumstances the inescapable conclusion is that the award should be varied to achieve the desired result.

I have decided that there should be a general award duty on employers which will be in broadly the following terms:

An employee, covered by this Award, who is an adherent to Aboriginal culture and who practices Aboriginal spiritual and/or religious beliefs, shall be afforded a reasonable opportunity by his or her employer to follow and practice the requirements of that culture or spiritual or religious belief. Where this involves time away from work arrangements will be made for the employee concerned to take annual leave or accumulated rostered days off for the purpose if leave is not otherwise provided in the Award. Alternatively, the employer and the employee may agree to time off without pay. Provided that an employer may require reasonable evidence of the legitimate need for the employee to be allowed the required time off from work. Any dispute with respect to the implementation of this clause will be referred to a Local Industrial Board for resolution by the processes of conciliation. In the event of the matter not being so resolved the matter shall be referred by the Local Industrial Board to the Commission for determination by way of award variation or the making of an appropriate order. This procedure will not affect any other right that a party may have pursuant to the terms of the Industrial Relations Act 1988 as amended.

I now turn to the consideration of individual items contained in the Union's application.

The ASU seeks to amend clause 22 (Holidays) of the award by inserting a new subclause in the following terms:

(d) In respect of Aboriginal (Indigenous) persons, an additional day to be known as "National Aboriginal Day" shall be set aside for
persons of Aboriginal (Indigenous) descent.

In this regard the employers propose a new paragraph (a) to replace the existing paragraph (a) of clause 22 of the award. The employers proposal is in the following terms:

Delete paragraph (a) of Clause 22. -- HOLIDAYS and replace with the following:

(a) The following days or the days observed in lieu shall, subject to subclauses (b) and (c) of this clause, be allowed as holidays
without deduction of pay, namely:

New Year's Day, the Day following New Year's Day, Australia Day, Good Friday, Easter Monday, Easter Tuesday, Anzac Day, Labour Day, State Foundation Day, Sovereign's Birthday, Christmas Day and Boxing Day.

Provided that another day may be taken as a holiday by arrangement between the parties in lieu of any of the days named in this subclause.

Provided that the National Aboriginal Day of Celebration ("NADOC Day") may be one such day taken, by arrangement between the employer and the employee, as a holiday in lieu of any of the days named as a holiday in this subclause.

The employers proposal is identical to the existing clause with the addition of the final paragraph.

The first observation to be made about the proposal by the ASU is that the award at present provides for twelve public holidays and, if the Union's application were to be granted, persons of Aboriginal descent would be entitled to thirteen days each year as paid holidays. It would also be likely to cause friction and disharmony amongst other employees. Such a situation would be in direct contradiction to the stated objective of the application to create harmony and reconciliation in the community and the work place.

The second observation is that a Full Bench of the Commission which recently dealt with the question of paid public holidays specified that nine days were to be observed as paid single day holidays with an additional day to be provided, such as a union picnic day or some other day which may be prescribed by a State government. In doing so the Full Bench virtually established a "safety net" number of ten public holidays. (Hancock, SDP, MacBean, SDP, Commissioner O'Shea -- Print L4534).

In the circumstances of this matter, and in order to give immediate practical recognition to the legitimate cultural pursuits of Aboriginal Australians, the clause will be varied to provide as follows:

Provided that the National Aboriginal Day of Celebration may be taken as a holiday in lieu of any of the specified holidays contained herein. The holiday on which work is to be performed in lieu of National Aboriginal Day of Celebration is to be agreed between the employer and the employee concerned. Any dispute about the operation of this provision is to be resolved in accordance with the disputes resolution procedures provided in this award.

The ASU seeks to vary clause 11 of the Award which is concerned with dispute settlement procedures. This part of the application raises a very important aspect of the dispute resolution procedure.

According to the unchallenged evidence given by Professor Tomkinson there are quite important cultural values which prevent some Aboriginal people in all sorts of situations from speaking for themselves. (Page 60 -- transcript 16/11/93).

Professor Tomkinson said that "it is illustrative of a very basic aspect of Aboriginal society where very often it is not your place to speak for yourself. It is other peoples place to speak for you, very much, so that the notion of intermediary, the notion of somebody who will say what you are unable to say."

In the circumstances I propose to award part of the application. The subclause will read:

In the case of Aboriginal (Indigenous) persons the following conditions shall apply:

1. An Aboriginal (Indigenous) employee shall be entitled to be represented in the various steps of the above procedure by another
person of his or her choosing.

2. Where the person chosen by the Aboriginal (Indigenous) employee is employed by the particular employer the employee
selected shall suffer no loss of wages or other benefit arising from his or her presence, and/or representation made, at any
stage of the dispute settlement procedure.

3. The foregoing does not limit the right of an Aboriginal (Indigenous) employee from being represented by any other person,
including an official of the ASU, who is not an employee of the employer but the employer shall not be liable to pay wages
to such other person for time spent in representing the relevant employee.

The ASU seeks to vary the Award in respect of adoption leave and maternity leave in the following respects:

By inserting after Sub-clause (10) of Clause 26A -- ADOPTION LEAVE -- the following new Sub-clause:-

`(11) In respect of Aboriginal (Indigenous) persons the provisions of Sub-clauses (1) to (9) above shall only be adopted after it has been
established that such provisions are consistent with the cultural and community practices of such Aboriginal
(Indigenous) persons affected by the operation of this Clause.'

By inserting after Sub-clause (1) of Clause 26 -- MATERNITY LEAVE -- the following new Sub-clause:-

`(m) in the case of Aboriginal (Indigenous) persons the foregoing shall be applied in a manner consistent with respect to the cultural practices of such Aboriginal (Indigenous) persons.'

I have decided to award these provisions.

These proposals appear to do no more than require the application of reasonable and minimum conditions so as to ensure that there is no offence given to the cultural beliefs of the employees concerned. If any practical difficulty should arise with respect to this matter it can be considered further.

It is proposed by the ASU that clause 6 (Contract of Service) should be amended by inserting a new subclause (h) in the following terms:

(h) That when Aboriginal (Indigenous) persons are engaged under this clause they shall be provided with appropriate and related
induction and training that shall include recognition of their Aboriginal (Indigenous) beliefs and cultures.

In view of my earlier decision to include a relevant clause to protect the rights of aboriginal employees and to give due recognition and respect to aboriginal culture and religious beliefs this provision appears to be reasonable and the award will be varied accordingly.

There are several other variations to the Award which are sought by the ASU, but I have decided against them because of the general duty to be prescribed and my firm belief based on the evidence given in these proceedings that the best interests of all concerned will be served best if the required reforms are introduced on a gradual and selective basis. The general duty on employers is not to be minimised because it is of wide application. It will have a marked effect on the employment relationship.

The demands of Aboriginal culture and spiritual considerations are strong and compelling. The explanation of these matters given by Professor Tomkinson and Dr. Sampson represent essential reading for those wishing to gain an appreciation of the relevant facts.

The evidence in these proceedings indicates that two-thirds of Australia's Aboriginal population are of mixed descent. It also indicates that there are varying degrees of adherence to aboriginal culture and religious or spiritual beliefs and that the needs of aboriginal employees with respect to their employment relationship and cultural requirements varies very considerably as between different persons.

The evidence given by aboriginal employees of local government would indicate that, generally speaking, satisfactory arrangements have been made in the past for the attendance at funerals. I have not overlooked the possibility that those Aboriginal persons who adhere more closely to the requirements of the relevant Aboriginal law and culture may not be in employment on account of this fact. There is a clear gap between the evidence about what is required by some persons in terms of absence from work and the evidence given by employees who are presently employed by local government bodies.

There is, in addition, the potential for a major difficulty as more aboriginal persons, hopefully, are recruited into the local government workforce.

It is an essential feature of aboriginal culture that when a person dies, all those who have a kinship relationship to the deceased person should and, in some cases must, attend the funeral ceremony. There is a very strong belief that the spirit is reluctant to leave the body of the deceased person and, if it does not leave in a proper manner and return to the place from whence it came, there is likely to be trouble, and even death, in the relevant community. Persons who do not give effect to this fundamental duty may forfeit their right to become elders in the Aboriginal community and may, in some circumstances, even be ostracised by their fellows.

The difficulties that arise with respect to cultural and religious requirements and the employment relationship include the following:

1. The distances required to be travelled to attend the funeral ceremony may be considerable and there may be some delay whilst the arrival of others coming from more distant places is awaited.

2. The kinship of Aboriginal persons represents a very extended family and the requirement to attend funerals may, in some cases, be greater than that which would be experienced by other employees.

3. The average lifespan of an Aboriginal male in New South Wales is 53 years. There is no evidence of the position in Western Australia but assuming that it is approximately the same it will be seen regrettably that more Aboriginal males can be expected to die during normal working life and thus the requirements for funeral attendance is likely to be greater than in respect of other employees.

The evidence indicates that the kinship is the core of aboriginal society. The Aboriginal culture has no centralised institutions, they have no police or courts for the enforcement of laws or the settlement of disputes and the behaviour of the community is directly related to the operation of kinship rules. It was said that attendance at funerals is the major social activity that brings together relevant people. Traditionally, Aboriginal people were seen as hunter-gatherers in order to obtain and supply food for the needs of the group. In the circumstances, it was necessary for people to move over a wide area of land and they would not come together, except on such occasions to attend funeral ceremonies.

Professor Tomkinson explained that "the kinship systems carry with them really very very deep seated obligations and responsibilities ...". He explained that it was a huge human responsibility in traditional Aboriginal society for the largest possible number of the living relations to be called together when one of their kin died. It was the practice for "messages to be sent out in all directions" calling on the relevant persons "to come to assure the passage of the spirit" which would at that time be leaving the deceased person's body and returning to the place from whence it came.

Professor Tomkinson said this responsibility was "extremely important because those beliefs, which one finds in urban areas today as well, are still strongly held by many or most Aboriginal people... ". He said that "the whole idea of funeral activity" is concerned "to make certain that the spirit saw that it was treated properly and with full respect and sent on its way back to the land of the dead ...". (See pages 51 and 52 of transcript -- 16.11.93).

It is not possible on present information to draft a particular clause to give effect to the need to attend funerals. The duration of the time required is not established, but this is a matter which should be dealt with on the basis of individual cases by particular employers with recourse to the disputes settlement procedure should that be necessary. This aspect should be considered as part of the Award right to be provided for employees to follow their cultural and religious beliefs.

Another custom which causes some concern is the need for a family to vacate the house in which an Aboriginal person dies. There was no evidence of any person presently employed by local government being placed in this position. There are substantial variations in the adherence to this traditional practice. Because Aboriginal persons were traditionally hunter-gatherers they could not accumulate material possessions as they needed to be on the move, as it were. Traditionally, the deceased person's belongings were destroyed upon the death of the person concerned and sometimes those possessions were buried with the deceased. Spears used by the deceased person were sometimes broken, which was to discourage the spirit from hunting and making trouble for the remaining persons.

In practical terms in modern society a deceased person's house cannot be burnt down and sometimes a compromise is reached where the house is "smoked". It is said that sometimes houses are exchanged to meet this difficulty but I emphasise again, there is no evidence of that having occurred amongst present employees of local government.

I am somewhat uncertain about this aspect of the matter because there was clearly a reluctance early in the proceedings for aboriginal persons to come forward and give evidence. There is also a low incidence of union membership amongst those persons. It may be that the factual position did not emerge by way of sworn evidence.

The employers also proposed a variation to clause 45 (Enterprise Agreements) in the following terms:

Insert a new paragraph (o) into Clause 45. -- Enterprise Agreements as follows:

(o) The terms of any clause of this Award may be varied in any way by agreement in writing between the employer and an
individual employee without regard for the procedures set out in this clause, provided that the variation is made for the
purposes of allowing flexibility to accommodate the cultural needs, duties and responsibilities of an Aboriginal (Indigenous)
or any employee. Any agreement made in accordance with this subclause shall have the same force as if it had been made
in accordance with the provisions of this clause.

I am not prepared to award this proposed variation because, although I do not impute any improper motive to the employers associations who suggested it, I think it is open to gross and serious abuse. I am not unmindful of the fact that there is a low proportion of union membership amongst the relevant employees, that there are persons who are presently employed by aboriginal associations which have the very best of intentions but the persons concerned work for the equivalent of the unemployment benefit allowance. There is no award coverage granting protection to such people.

In the circumstances, the contracting out of work to such employees on a contractor basis would be more likely to cause disputation, disharmony and severe friction which is diametrically opposite to what is intended by the variations to the award contained herein. It could, in some circumstances, work as a positive discouragement to the growth of aboriginal employment in local government. Such a result would be contrary to the stated intention of the employers and I do not impute improper motive to them but, in the circumstances, it would not be appropriate to grant the application.

There were several other aspects of the claims by the ASU but I have reached the conclusion that it would be unwise to attempt to do too much without allowing what has been decided to settle in to the scheme of employment relationships which currently exist and which hopefully will expand with the employment of additional Aboriginal employees in local government.

It is my intention that there should be a Local Industrial Board created, constituted by two representatives of the Australian Services Union, one representative of the Western Australian Municipal Association, one representative of the Chamber of Commerce and Industry of Western Australia and the Deputy Industrial Registrar, Perth, to act as chairperson. That Local Industrial Board should meet on a monthly basis for the rest of this year, in order to review the operation of the variations made to this award. In addition, efforts should be made to reach agreement with respect to any variations to the Award that may be necessary and to give advice and assistance to local government employers and employees designed to achieve harmony in the workplace whilst at the same time giving due and proper recognition to the culture, spiritual and religious beliefs of the Aboriginal persons concerned.

I emphasise once more that certain local government employers are making serious efforts to meet the legitimate needs of their Aboriginal employees. The difficulties associated with increased participation by Aboriginal persons in local government workforce are not to be minimised. It was my experience during these proceedings to see Aboriginal persons living in grossly substandard accommodation, or no accommodation at all, under deplorable conditions with no proper facilities available.

It is an unspeakable outrage against the standards of fairness and decency, and which causes offence to all reasonable persons, to acknowledge that some Aboriginal persons in Western Australia live in storm water drain pipes. The problems of such persons obtaining the necessary start in employment are immense.

This is a situation which should excite more interest by government, because the evidence given in these proceedings indicates that Aboriginal persons make good employees. They are, like most employees, willing to learn, to undertake training and wish to follow a career in local government. When they have been given a reasonable opportunity they are more than capable of succeeding.

The racist and outrageous nonsense of the past, and the not too distant past, where country towns had curfews whereby aboriginal persons were excluded from the towns after a certain hour, or were not allowed into the city or towns at all, unless they had a certificate entitling them to do so. Such certificates were sometimes referred to as the "dog licence". These practices remain a stark reality in the memory of some.

There is a further difficulty with specifying rights, duties and obligations with particularity which is that there is not uniform observance of aboriginal culture and there are, therefore, many different cultural requirements amongst the aboriginal workforce. There are different family responsibilities depending upon the adherence to tribal or kinship laws and whether persons of aboriginal descent are adherents to the aboriginal culture. If real progress is to be made in this most important area towards national reconciliation, appropriate and proper steps need to be taken in a careful and planned manner in order to achieve the stated objectives of the union and the employers with respect to employment covered by the Award.

One difficulty which must be faced is to whom are the conditions specified in this decision to apply. In other words, there needs to be a definition as to those who are to be afforded the terms of this decision.

In his evidence Dr Sampson referred to the statutory definition of Aboriginal person, which is to be found in certain Commonwealth legislation. It is in the following terms:

An Aboriginal person is a person who identifies as such and furthermore is regarded as an Aboriginal person by members of his or her community.

For the purposes of this award that definition will be included in order to identify persons to whom these variations are to apply.

There is a fine line to be drawn between indifference and intolerance. The variations to be made to the award are intended to make a contribution to the acceptance and recognition of the rights of employees to practice their cultural and spiritual duties without loss of employment rights. To make such provision is not to afford special treatment to one class of employees. Rather, it is to afford a proper recognition of equality.

The award will be prospective in operation and will, therefore, have effect on and from the first pay period to commence on or after the date of this decision and will remain in force for a period of three months. This relatively short period will allow the clauses to be implemented and to be varied to fit the circumstances as they may arise.