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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT05276
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER RAFFAELLI
C No 75644 of 1998
SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION
and
$2 AND UNDER and OTHERS
Notification pursuant to section 99 of the Act
of disputes re failure of said employers to accede
to a letter of demand and log of claim sent to the
employers on 26.6.98
MELBOURNE
10.09 AM, THURSDAY, 8 AUGUST 2002
Continued from 7.8.02
PN3724
JUSTICE GIUDICE: Yes, Mr Moore?
PN3725
MR S. MOORE: If your Honour pleases, before my friend begins there were two matters arising from the evidence of yesterday which my clients provided me with instructions about overnight. The concern - two of the exhibits, first is ARA17.
PN3726
JUSTICE GIUDICE: Yes.
PN3727
MR MOORE: ARA17 has got four pages to it. On the first page there is - the subheading is, " Florist listed in part 10 but included in annexure F." Our instructions overnight are that it is correct, that each of the businesses or shops there listed are listed in annexure F and are also listed in part 10 of the award.
PN3728
JUSTICE GIUDICE: Yes.
PN3729
MR MOORE: The next page the subheading is "Schedule A Businesses included in annexure F", and that list goes for two pages with one exception I am instructed that again it is correct that each of the businesses or shops listed are listed in annexure F and are also listed in schedule A of the award. The one exception is on the first page of that listing about two-thirds of the way down and it is item number 3391 Thomburg Holdings Pty Ltd trading as Carols Cheaper Food Barn Forest Hill. I am instructed that that name does not appear in annexure F but it does appear in schedule A.
PN3730
The last page of the exhibit is headed "Duplicates in annexure F." I am instructed that it is correct - I will withdraw that, your Honour. As I understand from my friends' statements to the Bench yesterday about this document, the way I read it is that in the first table of which there are some seven - six or eight entries, eight entries.
PN3731
JUSTICE GIUDICE: It looks like seven to me.
PN3732
MR MOORE: Seven I am having trouble reading that, your Honour, sorry - - -
PN3733
JUSTICE GIUDICE: Yes.
PN3734
MR MOORE: - - - seven entries. There were seven in the second table and it is suggested as I understand it that for example number 451 on top of the first table that that corresponds or is a duplicate of item 34(a). I am instructed that - and so on with respect to each of the items and each of the tables. It is correct that each of the firms or businesses listed there do separately appear in annexure F and the reason for that, as appears on the face of this document, is that there is difference in either business name or in address. That is exhibit ARI17.
PN3735
The other exhibit I just need to take the Bench to is ARA20 and that is entitled "Businesses listed in the Nicola Murdoch annexure K" which should have been excluded. I am instructed that each one of those businesses listed do appear in annexure K, which the Commission may recall are the actual survey forms completed and that further they should not have been included in those survey forms in that they appear on either schedule O to the award or in part 10 of the award. Commissioner pleases.
PN3736
JUSTICE GIUDICE: Yes, thanks for clarifying that, Mr Moore. Ms Paul.
PN3737
MS V. PAUL: Sir, Mr Moore's comments with respect to Carols Cheaper Food Barn, we will just note that we disagree. They are contained in annexure F but we will deal with that in our submissions, sir.
PN3738
JUSTICE GIUDICE: Yes, thank you.
PN3739
MS PAUL: Sir, prior to commencing, one of our witnesses has actually still - he is coming from Mildura and unfortunately there seems to have been a plane incident and so he is still flying at the moment. We intend to therefore call him last. He will be coming this morning but we just thought we might highlight that we may need to call adjournment when he arrives.
PN3740
JUSTICE GIUDICE: Yes
PN3741
MS PAUL: And we apologise for that, sir.
PN3742
JUSTICE GIUDICE: Yes. Yes certainly.
PN3743
MS PAUL: We seek to call Miss Linda Greenberger, sir.
PN3744
PN3745
MS PAUL: Ms Greenberger, could you state your name, address and occupation, please?---Linda Greenberger, 52 Ocean Beach Road, Sorrento, and I am a retailer.
PN3746
Okay and when you say you are a retailer, what store do you own?---Roses Lingerie.
PN3747
Okay. Ms Greenberger do you have a statement with you?---I do.
PN3748
Do you seek to make any corrections to that statement?---Yes there is some corrections to it.
PN3749
Would you take the Commission through the corrections you wish to make to that statement?---Yes. At number 6 where I have two permanent part-time employees I now have three therefore number 7 is no longer applicable.
PN3750
JUSTICE GIUDICE: Do you want us to delete number 7?---Yes, please.
PN3751
Yes. You have to attend to Ms Paul's questions but make sure we can hear the answers?---At clause 8 I now pay $14. I review that every year so it is no longer 13. Number 9 it is 25 per cent of 50 per cent not 5, that was a typographical error that one. And at number 18 where it was 640 because I now employ three it is $1220 per fortnight which is - - -
PN3752
SENIOR DEPUTY PRESIDENT WATSON: Sorry one thousand two?--- - - - 1220 per fortnight.
PN3753
Thank you.?--- - - - which is an increase of $320 per fortnight including superannuation and Workcover and that brings it up to approximately $1640 per fortnight just for the Saturday and Sunday penalties.
**** LINDA GREENBERGER XN MS PAUL
PN3754
JUSTICE GIUDICE: Was it 1640?---And 40, yes. An approximate increase of 35 per cent. And at number 24 the amount now that I would need to gross is between $925 and $1275.
PN3755
SENIOR DEPUTY PRESIDENT WATSON: I am sorry could you repeat those?---$925 and $1275.
PN3756
Thank you?---And they are all the changes I have to make.
PN3757
MS PAUL: Do you attest that the statement is therefore true and correct?---Yes.
PN3758
Sir, we seek to tender the statement of Ms Greenberger as an exhibit.
PN3759
PN3760
MS PAUL: Ms Greenberger, for the purposes of today's hearing were you asked to complete an analysis of your wealth stream?---I was?
PN3761
If you could just bear with me for a second while I hand you up a piece of paper. Ms Greenberger, could you tell the commission what the document I just handed you is?---It is a comparison of current terms and conditions with the SDAEA Victorian Shops Interim Award 2000.
PN3762
Okay, and there is some handwriting on it. Is that your handwriting?---Yes.
**** LINDA GREENBERGER XN MS PAUL
PN3763
And what do those figures and statements represent?---That I need to fill in now?
PN3764
No, no, sorry, no the actual statement and figures that you have already filled in. What do they represent?---That relates to the hours of work that my staff do and the accumulated sick leave and holiday pay and total hours paid per week.
PN3765
And that is all your current staff?---Yes.
PN3766
At the bottom of the second page, Miss Greenberger, there are two statements that say other business expenses- - -?---Yes
PN3767
- - - and business income for the week. You have made a statement there saying, "It is discussed with Sue, my accountant has my ledger." Do you have your ledger here today?---Yes I have brought it with me. I collected it from my accountant this morning on the way through.
PN3768
Would you be able to tell the Commission what the two figures should represent?---Well the total per annum, I haven't broken it down because I have just taken it straight from the ledger.
PN3769
Sorry is this for business expenses?---Business expenses, total business expenses per annum is $382,989.72, if you want the cents. And the total income for the year per annum $400,538.04.
PN3770
COMMISSIONER RAFFAELLI: Can you just repeat both those figures. Not the cents so much.
PN3771
MS PAUL: A bit slower please, Ms Greenberger?---Yes okay. The business expenses $382,989 and the income $400,538.
**** LINDA GREENBERGER XN MS PAUL
PN3772
The figures that you have just provided us as well the figures that you filled in here only represent what you currently pay and what you currently earn. Is that correct?---That is correct.
PN3773
No further questions, sir. Sorry, sir, could we seek to tender that as an exhibit subject to any objections my friend may have.
PN3774
JUSTICE GIUDICE: Yes, have you seen this?
PN3775
MR MOORE: No, your Honour, just - well it has been provided to me moments ago. Your Honour, the witness has identified it as the document that she has completed so it is capable of going in. I don't object to it going in.
PN3776
JUSTICE GIUDICE: Yes.
PN3777
MR MOORE: I would like the benefit of reading it with some moment of reflection just to digest it.
PN3778
JUSTICE GIUDICE: Yes, by all means. We will mark it and give you an opportunity to read it before you cross-examine. Yes
PN3779
MR MOORE: Thank you, your Honour.
PN3780
**** LINDA GREENBERGER XN MS PAUL
PN3781
SENIOR DEPUTY PRESIDENT WATSON: Ms Greenberger, can I ask you to clarify something in relation to that?---Yes.
PN3782
The hours of work on Saturday, you have seven for each of A and B and then a note every second Saturday for employee B. I take it from that, employee A works seven hours each Saturday, and employee B seven hours every second Saturday?---Correct, yes.
PN3783
Okay, and in relation to Sunday, employee A doesn't work at all?---No.
PN3784
And employee B or C works - - -?---every - they share that week about.
PN3785
Every second week?---Yes.
PN3786
So you have one employee working seven hours on a Sunday?---Yes.
PN3787
Thank you.
PN3788
MR MOORE: Thank you, your Honour.
PN3789
PN3790
MR MOORE: Ms Greenberger, when did you prepare the document which you have just identified?---This particular one here?
PN3791
Yes, the document that has just been handed up to the Bench?---I provided that last week with the exception of those two bottom figures, business expenses and income, I provided that this morning.
**** LINDA GREENBERGER XXN MR MOORE
PN3792
Right, so you actually filled the document in a week or two ago did you?---Last week.
PN3793
Last week. I see in your statement, Ms Greenberger, at paragraph 2, that you say that the business has been operating for approximately 12 years:
PN3794
And I have worked in the retail industry for approximately 11 years in total.
PN3795
Just to clarify that, did you first prepare this statement back in approximately October last year. Is that right?---It would have been towards the end of last year, September, October, yes.
PN3796
Yes. So am I correct in reading paragraph 2 this way, that the business which you now own and operate has been in existence since about 1989?---That is correct.
PN3797
Yes, and that you have owned and/or operated the business since about 1990. Is that right?---No, it was 1996 that I took over that business.
PN3798
SENIOR DEPUTY PRESIDENT WATSON: So you worked elsewhere in the retail industry prior to - - -?---I had worked elsewhere. I had another store.
PN3799
You have another store?---Yes.
PN3800
MR MOORE: I see, so that the reference in paragraph 2, "I have worked in the retail industry for approximately 11 years", it is only since 1996 that that work has been in this store that you currently own?---Related to Rosie's, that is correct.
**** LINDA GREENBERGER XXN MR MOORE
PN3801
I see. In 1996 I take it you purchased the store from the previous owner?---Yes.
PN3802
And I assume that it is your expectation that at a suitable point in the future you will be able to sell the business for a profit?---One always hopes so.
PN3803
Yes, and would you agree with me that the reward, if you like, that you get for running your business is comprised of both that anticipated profit in the future and the weekly wage that you draw down from running the business?---That is rather difficult to answer because there is almost no goodwill in businesses these days, in small business.
PN3804
But you are hoping to be able to sell your business at a profit?---I am hoping to but I can't give you a definite answer on that.
PN3805
For you, though, to properly get a sense of what the reward ultimately will be for running your business you will need to consider both the wage you draw down and any profit you ultimately make on the business. Is that right?---That is correct.
PN3806
Yes. Are you a member of the ARA?---Yes.
PN3807
When did you join approximately?---I think I have been a member for about six years, seven years.
PN3808
Six, seven years?---Yes.
PN3809
Is one of the reasons that you are a member of the ARA because you look to the ARA to provide you with assistance and advice in respect of employment and industrial relations matters generally?---All matters relating to small business.
**** LINDA GREENBERGER XXN MR MOORE
PN3810
Yes, and is that one of the matters that you looked to the ARA for advice about?---Not particularly, no. I just looked at it overall.
PN3811
I see. Is it your understanding in the - I think you were saying in your statement that you received the log of claims from the SDA?---Yes.
PN3812
And do you look toward the ARA to represent your interests in respect of that log of claims?---They have taken it up on my behalf. Yes.
PN3813
Yes. And it would be your expectation, would it, that these proceedings and any dealings with the union in respect of that log of claims would be dealt with on your behalf by the ARA?---Yes.
PN3814
You understand, do you, that as a result of this hearing and further arguments and discussions but as a result of this proceeding an award may be made which may be imposed upon your business?---Yes.
PN3815
If that does occur would you be keen to get the ARA's assistance in consulting with your employees to reach agreement about conditions which might apply at your workplace which are more suitable to you than what the award conditions are?---I would have to review that at the time.
PN3816
Yes. If there was a facility in the award to permit you to consult with your employees to reach agreement about the application of the award to your workplace, would you be keen to do that?---Yes.
PN3817
If the award is imposed upon you, would you also be keen to consider or at least explore with the ARA's assistance, the possibility of entering into individual or collective workplace agreement to apply at your workplace?---I would look at that.
**** LINDA GREENBERGER XXN MR MOORE
PN3818
MS PAUL: Sir, I could object to that question unless Mr Moore intends to explain that there is - what he means by individual agreement or otherwise and how that may impact on making any changes to the award. It is assuming some knowledge on behalf of the witness.
PN3819
JUSTICE GIUDICE: Yes. I am not sure it is a proper objection but I suppose, Mr Moore, you should make sure that the witness understands what you are asking.
PN3820
MR MOORE: Yes, your Honour.
PN3821
By way of some background, Ms Greenberger, employers are able to enter into agreements directly with their staff to provide full terms and conditions of employment. Are you aware of that generally?---Yes.
PN3822
Are you aware that employers are able to enter into collective agreements?---Yes.
PN3823
You are aware of that?---Yes, yes.
PN3824
If the award is imposed upon you would you look towards the ARA to assist and advise you about the possibility of entering into one of those types of agreements to make the provisions more suitable to your business?---Yes. Yes.
PN3825
And I take it that if the award is introduced and imposed upon your business, you wouldn't take any steps to decrease employees' hours of work or to lay employees off until firstly you had at least fully assessed and appreciated the actual impact of the award?---I can't answer that one at this stage.
PN3826
Let me come at it a different way. Before you made any decisions about how you would deal with the award once it was imposed upon you, if it is imposed upon you, you would want to be fully certain about what its impact as a matter of reality will be. Is that correct?---Yes.
**** LINDA GREENBERGER XXN MR MOORE
PN3827
Yes. And you would also want to explore other ways of dealing with its terms and conditions by way of agreement making and consultation with your employees of the type I have just referred you to?---Well as it stands at the moment as I see it, it is the double time issue and the penalty rates at the weekend that I just simply won't be able to absorb so therefore staff will ultimately have to lose work.
PN3828
Yes?---So it is a hard question to answer that one.
PN3829
Yes. Are those concerns about the double time on the weekend?---Sunday trading with employees if they work through the week and it makes it rather difficult.
PN3830
Yes. So when do you understand double time is imposed under the award?---Sunday.
PN3831
Sunday, and that is of key concern to you?---Very.
PN3832
Yes, and let us focus on that as an example. Before you made any decisions as to what to do with your business if the award is imposed upon it, you would want to exhaust your options, wouldn't you, as to ways of dealing with that penalty rate provision for Sunday work to make it better for your business for example. Is that correct?---Yes.
PN3833
Yes. No further questions, your Honour.
PN3834
JUSTICE GIUDICE: Thank you. Any re-examination, Ms Paul?
PN3835
MS PAUL: No re-examination, sir.
**** LINDA GREENBERGER XXN MR MOORE
PN3836
PN3837
MS PAUL: Sir, prior to undertaking the next witness, which is Mr MacGregor, Mr MacGregor has actually brought in a roster and we wish to tender that, but unfortunately we haven't had the opportunity of deleting the names of the employees. I am happy to provide my friend with the only copy I have, to actually have a look at prior to - and then we would seek to white out the names and make copies for all parties and the Bench, if that is acceptable.
PN3838
JUSTICE GIUDICE: Yes. Well, what do you think of that idea, Mr Moore?
PN3839
MR MOORE: Your Honour, I am certainly - my main concern is just to have an opportunity to look at the document.
PN3840
JUSTICE GIUDICE: Yes. All right, that is an acceptable procedure.
PN3841
MS PAUL: Sir, if we may call Mr MacGregor to the witness box?
PN3842
PN3843
MS PAUL: Mr MacGregor, could you state your name, address and occupation for the Bench, please?---Bruce Courtland MacGregor-Skinner, 1 Adair Court, Wantirna. I am a franchisee's owner of a Leonard's store.
PN3844
Do you have a witness statement in front of you, Mr MacGregor?---I do.
PN3845
Okay. Are there any corrections you wish to make to that witness statement?---Yes, there is.
PN3846
Would you like to take the Bench through the - - -?---Number 1 - I now only own one store instead of two. Number 2 - it is now approximately eight years I have owned the franchise. Number 6 - I currently employ 11 casuals and four full-time. Number 7 - since closing one store I have cut my hours back to 60 and the wife 40. Number 14 - those figures are not quite correct because that was done 18 months ago but I believe the 22 per cent is correct. Number 28 - the Sundays that had a downturn and the actual figures are current labour costs $301 and under the new terms and award $501. And that is the lot.
PN3847
Just in case anyone didn't hear, sir, it was number 28 - the first figure of 347.15 will now become 301, the second figure of 578.96 will become 501.
PN3848
Mr MacGregor, do you attest - do you swear that this statement is true and correct?---To the best of my knowledge, yes.
PN3849
PN3850
MS PAUL: Mr MacGregor, I would like to hand you up a statement which is a roster. Could you explain to the Bench what that statement actually is?---It is actually a pay statement for the week ending 28 June, of what I paid my staff for that week.
**** BRUCE COURTLAND MACGREGOR-SKINNER XN MS PAUL
PN3851
Okay. And, Mr MacGregor, does that reflect all the employees that you employ?---Yes.
PN3852
Sir, could we tender those in exhibit, subject to my comments made earlier with respect to appropriate copies being provided to the Bench and subject to any objections?
PN3853
JUSTICE GIUDICE: Yes, you could.
PN3854
MS PAUL: And we - but we will need to call a break with respect to Mr Roberts and we will seek to then provide you the copies, sir.
PN3855
JUSTICE GIUDICE: I see. Yes, well you can finish the tender at that time.
PN3856
MS PAUL: If that is all right with you, sir, that - - -
PN3857
JUSTICE GIUDICE: Do you want the adjournment now, do you?
PN3858
MS PAUL: No, sir. We would seek to finish Mr MacGregor's statements.
PN3859
JUSTICE GIUDICE: Yes.
PN3860
MS PAUL: But it is just more as to when we can actually go and make the copies.
PN3861
SENIOR DEPUTY PRESIDENT WATSON: Would you like the copies made Ms Paul?
**** BRUCE COURTLAND MACGREGOR-SKINNER XN MS PAUL
PN3862
MS PAUL: That would assist us, sir.
PN3863
SENIOR DEPUTY PRESIDENT WATSON: Yes, very well, we will have that done.
PN3864
MS PAUL: Thank you, sir. We have no further questions of Mr MacGregor.
PN3865
JUSTICE GIUDICE: Yes, Mr MacGregor, can I just ask you a couple of things. Paragraph 32 of your statement is no longer relevant, is it?---Sorry, your Honour, there is a change there as well.
PN3866
Yes?---One is already closed, I am sorry, your Honour.
PN3867
Well, do you want us to just delete that - - -?---Delete that whole clause.
PN3868
- - - paragraph?---Yes, sorry.
PN3869
The other question is, are you able to - - -
PN3870
SENIOR DEPUTY PRESIDENT WATSON: And 33?
PN3871
JUSTICE GIUDICE: Yes?---Yes. That will change as well. At the moment I have closed the second store but haven't decreased my staff at this stage.
PN3872
Well, you have given some different staff figures in paragraph six?---In front, yes. What is that, 15, there is a couple of staff discrepancies.
**** BRUCE COURTLAND MACGREGOR-SKINNER XN MS PAUL
PN3873
Well, is it better just to delete 33?---I agree, your Honour.
PN3874
You have given the new staffing figures in six?---That is correct, your Honour.
PN3875
Yes. The other question, Mr MacGregor, was about staff costs as a proportion of total costs. Do you know what that is?---That was on - in - I don't understand the question, your Honour, I am sorry that was - - -
PN3876
Well, of the total costs of your business - do you know what - - -?---It was running around about 20 per cent at the moment.
PN3877
About 20 per cent?---Yes.
PN3878
Thank you?---Thanks, your Honour.
PN3879
MS PAUL: Sir, in light of the deletions, may I ask Mr MacGregor two questions?
PN3880
JUSTICE GIUDICE: Yes.
PN3881
MS PAUL: Mr MacGregor, you have just deleted clause 32 and clause 33?---Yes.
PN3882
Should the award apply to your business, do you say that there will be any impact on your business?---Certainly.
PN3883
Would you be able to tell us what the impact would be?---Well, the biggest impact is the overtime rates. Have to pay overtime for Saturdays - Thursday, Fridays and Saturday nights - there will be impact on the business.
**** BRUCE COURTLAND MACGREGOR-SKINNER XN MS PAUL
PN3884
And what will happen?---At this stage, I am not quite sure. I would like to see the exact results when they do have them, but at this stage reducing the staff, because I still only get the same price on my chicken whether it is Thursday, Friday or whatever day it is.
PN3885
JUSTICE GIUDICE: Is Leonard's a chicken store, is it?---Yes, sir. Haven't you heard of it, your Honour.
PN3886
SENIOR DEPUTY PRESIDENT WATSON: I was going to ask you the same question?---No, this is very - sorry, your Honour.
PN3887
JUSTICE GIUDICE: You couldn't have brought us in a couple, could you?---It is only fresh chicken, your Honour, you have to have someone to cook it for you.
PN3888
You have to cook, all right. Yes, Mr Moore.
PN3889
PN3890
MR MOORE: Mr MacGregor, I was also curious about Leonard's and I went and actually had a look on the web site, on the internet, to find out something about Leonard's. I see that their - the web site professes there to be more than 200, 200 Leonard's shops throughout South Africa and Australia. Is that your understanding?---That is approximately, yes.
PN3891
Yes, and there is a - as you are a franchisee, there is a franchisor. Is that right?---That is correct.
**** BRUCE COURTLAND MACGREGOR-SKINNER XXN MR MOORE
PN3892
And franchisees can get assistance from the franchisor in various respects?---Correct.
PN3893
Yes. And I see that the web site refers to assistance in respect of marketing?---Correct.
PN3894
Assistance which is available in respect of training of staff?---That is correct.
PN3895
And there is also reference to access being available to a Leonard's field consultant, to be able to assist you with employment matters. Is that right?---Not to the true sense. The field service is to help us in our store, in our marketing and training of staff, actually after we have employed them.
PN3896
Right. I see after they are employed?---After they are employed. Employing is up to each individual.
PN3897
Yes. The actual employing of people is up to you as a franchisee?---Correct.
PN3898
But once persons are employed there is assistance by way of the field consultant to assist you in respect of employment matters?---No. They - training methods as to our product.
PN3899
Yes?---Training in the manufacturing of our product of - - -
PN3900
The web site has a question "Am I responsible for employing staff?" and the answer to that question is:
PN3901
Leonards gives you the opportunity to employ your own staff but if you have any problems your Leonard's field consultant will be available to assist you.
**** BRUCE COURTLAND MACGREGOR-SKINNER XXN MR MOORE
PN3902
Are you aware of the assistance that is offered by the Leonard's field consultant?---Not in that wording.
PN3903
No?---I thought they were there only to - in training after we had employed staff, not in wage matters and all that.
PN3904
That might be because, to date, you haven't had need to call upon them for those additional concerns?---Could be.
PN3905
Yes. Now as I understand it, Leonard's is in the business - or your shop, Leonard's shop, is in the business of the sale of foodstuffs, including poultry and cooked meat?---No, no cooked meat.
PN3906
No cooked meat?---No cooked meat.
PN3907
Is it uncooked meat, is it?---Uncooked. All fresh poultry, fresh game, beef, pork and lamb.
PN3908
I see, so it is - I am sorry, it is - the meat which is cooked - is there any cooked meat available?---No, no cooked product whatsoever.
PN3909
I see. I was a bit confused. I am sorry. Now did you, when you started this franchise you paid something for it?---I certainly did.
PN3910
Yes. And you are hoping to get that back, plus a bit of a reward down the track?---Yes.
PN3911
Yes. And the way you see your reward is comprised of both that anticipated profit in the future and the wages you take now?---That is correct.
**** BRUCE COURTLAND MACGREGOR-SKINNER XXN MR MOORE
PN3912
Yes. You are a member of the ARA?---Correct.
PN3913
When did you join the ARA?---Approximately 1994.
PN3914
About when you started - - -?---Started the business.
PN3915
Yes. And part of your reason for joining the ARA is for assistance in respect of employment and industrial relations matters?---All those parts, yes.
PN3916
And you say in your statement, I think, that you got served with the SDAs log of claims?---That is correct.
PN3917
And I imagine you would be looking to the ARA to assist and represent you in this proceeding and in dealings with the union as are required?---Yes.
PN3918
You understand, I take it, that the outcome of this proceeding may be that an award is imposed upon your business?---Yes.
PN3919
Yes. If that does occur would you seek the assistance of the ARA to negotiate different workplace arrangements to apply at your business, if such arrangements were able to be negotiated under the award?---Yes.
PN3920
Would you - you are also aware, are you, that employers such as yourself are able to enter into individual agreements with their employees?---Yes.
PN3921
Yes. Are you also aware that employers such as yourself are able to enter into collective agreements with a number of employees?---Yes.
**** BRUCE COURTLAND MACGREGOR-SKINNER XXN MR MOORE
PN3922
Yes. If this award is imposed upon you, would you consider entering into either of those types of agreements to make the conditions which apply at your workplace more suitable to your needs?---Yes.
PN3923
And I take it that if the award is imposed upon you, before you made any final decision to decrease staff or to reduce hours, you would fully exhaust those options about agreement making in the workplace?---Yes.
PN3924
You would of course also want to know precisely what the effect will be?---What the - find out what the effect would - the award would be and what it would do to my business.
PN3925
Yes?---And then with consulting we would make a decision.
PN3926
Yes. If you could look at paragraph 14 of your statement, Mr MacGregor, I think you gave some evidence just before that the calculations referred to were done about 12 months ago?---Over 12 months, it would be last August, somewhere in that time, yes.
PN3927
Did you do those calculations or did you get the ARA to do those?---No, I did those calculations.
PN3928
You did those calculations?---I did those calculations with figures supplied from the RAARAV - RTAV, sorry.
PN3929
They are very - I accept that they are 12 or more months out of date?---Well, that is when I had two stores, that is what I was working on.
PN3930
Yes, I accept that. They - just accepting that though, the figures that you identify there are quite specific. I mean you are able to say, down to the nearest dollar, that your current gross wages are $211,490?---That was the figure I gave to the Zurich Work - - -
**** BRUCE COURTLAND MACGREGOR-SKINNER XXN MR MOORE
PN3931
Yes. Just wait for the question, Mr MacGregor?---Sorry.
PN3932
And you are also able to say, quite specifically, that if you are bound by the award, it will cost you - your wages cost will go up by $46,350.90?---Yes.
PN3933
Can you show the Commission or can you explain, precisely, how you calculated that figure of $46,350.90?---That was the extra hours if I put my staff, I had, on the computer, worked out how many hours for the 12 months they worked overtime and multiplied by the figure, accordingly.
PN3934
Have you got that calculation?---No, I haven't got it here.
PN3935
So you are unable to demonstrate to me how you did that calculation?---Just be adding the extra money figure from what the award wage to what the new award wage would be, the same - - -
PN3936
So you added to the current wage figure?---The current wage figure which I gave to Zurich for my WorkCare - - -
PN3937
Yes?--- - - - which was the $211 and then from that I worked out how many people, what overtime they did and what the new wage figure was and that came to the $46,305.90.
PN3938
All right. Do you still have a copy of that calculation?---That I am not sure.
PN3939
What are the particular obligations, contained in the proposed award, that you had regard to in doing that calculation?---Is the overtime rates and the leave loading.
**** BRUCE COURTLAND MACGREGOR-SKINNER XXN MR MOORE
PN3940
When you say overtime rates, what do you mean, specifically?---The extra money I would have to pay for Thursday nights, Friday nights, Saturdays and Sundays trading.
PN3941
What are the extra amounts that you pay for Thursday nights?---The extra overtime rates, the - - -
PN3942
Yes, what are they?---I am not quite sure at this stage.
PN3943
You don't know what they are?---I do know what they are but I haven't got the figures with me, here, at the moment.
PN3944
Do you know what the extra rate is for Friday work, Friday evening work?---If I have, sorry?
PN3945
Could I just ask you, Mr MacGregor, what you are looking at there, please?---The ARA Victoria Wages Guides, done by the SDAEA Victorian Intermediate Award 2000.
PN3946
Perhaps you can put that to one side while I ask you these questions. If you don't know the answer, you don't know the answer. Do you know what the overtime rate, which would be payable under the proposed award, on Saturdays, would be?---Around about $18 for a casual - $18 something for a casual award.
PN3947
$18 per hour?---Yes.
PN3948
I see. When you did those calculations did you assume or factor in anything in respect of increases in rates of pay, for ordinary hours of work, say between 9 and 6, Monday to Friday?---No.
**** BRUCE COURTLAND MACGREGOR-SKINNER XXN MR MOORE
PN3949
At the time that you did this statement, what was your operating budget?---Sorry, I can't answer that question at this moment.
PN3950
You don't know?---No, I don't know off hand, no I don't know.
PN3951
So, in paragraph 18, where you say:
PN3952
I currently set aside approximately 20 per cent of my operating budget for wages.
PN3953
Do you see that?---Yes.
PN3954
You can't, precisely, show me or tell me what that budget was?---If you work backwards, it is 20 per cent of - what did I say, $200,000, 20 per cent, work backwards - you have got a calculator there, sir?
PN3955
I see - - -
PN3956
MS PAUL: Sir, would - I can provide a calculator for the witness, if - - -
PN3957
MR MOORE: No, it is okay. Am I correct, then, in assuming that the wages costs that you then incurred, of 211,000, that that was equivalent to 20 per cent of your operating budget?---That is correct.
PN3958
I see. The one store you have got now, do you open on Sundays?---Yes.
PN3959
No further questions, your Honour.
**** BRUCE COURTLAND MACGREGOR-SKINNER XXN MR MOORE
PN3960
JUSTICE GIUDICE: Is there any requirement, under your lease at Eastland, to open at particular hours?---No, your Honour, no. Only the core trading hours, which is the Monday to Friday, Saturday. Sunday and public holidays are own discretion.
PN3961
Yes. What are the hours on Saturday?---9 until 5.30.
PN3962
Yes?---Sorry, 9 until 5.00, I am sorry, your Honour, 9 until 5.00.
PN3963
So you would be required to open those periods?---I am required to open those periods, yes.
PN3964
The whole centre is open?---The whole centre is open, yes.
PN3965
Yes?---It is only the Sundays and public holidays that vary.
PN3966
Yes. And is there any requirement to open particular hours during the week?---Yes, we are required to open 9 until 5.30 on Monday, Tuesday, Wednesday, 9 until 9 on Thursday, Friday.
PN3967
PN3968
MS PAUL: Sir, just a couple of questions on re-examination. Mr MacGregor, when Mr Moore was asking you about the various award rates, whether you pay on Saturday and Sunday, was this the kind of document you were provided, by the ARA?---Yes.
**** BRUCE COURTLAND MACGREGOR-SKINNER RXN MS PAUL
PN3969
And was that the kind of document you used in making those calculations you told Mr Moore about?---That is correct.
PN3970
Sir, could we seek to tender that, as another exhibit, again we need to make - - -
PN3971
JUSTICE GIUDICE: Well, it is a document like the one he used, is that - - -
PN3972
MS PAUL: Well, sir, he actually has the one he has used, so we would then ask for that to be tendered.
PN3973
JUSTICE GIUDICE: Well, is it the same one?
PN3974
MS PAUL: Is that the same one, Mr MacGregor?---That is correct.
PN3975
JUSTICE GIUDICE: Are you sure, could you just check it is the same one, Mr MacGregor, so we can confidently - - -?---I have just checked it. 0112.
PN3976
I think just check that the rates are the same, perhaps do a spot check on those, so that?---Yes, your Honour.
PN3977
Yes, all right.
PN3978
MS PAUL: Sir, we would seek to tender that, again on the same basis that we will provide the parties with appropriate copies of it.
PN3979
**** BRUCE COURTLAND MACGREGOR-SKINNER RXN MS PAUL
PN3980
MR MOORE: Your Honour, might I just have an opportunity to read that document?
PN3981
JUSTICE GIUDICE: Yes, of course.
[11.00am]
PN3982
MR MOORE: Thank you, your Honour.
PN3983
JUSTICE GIUDICE: Yes. No questions arising out of that?
PN3984
MR MOORE: No.
PN3985
JUSTICE GIUDICE: No. Ms Paul, the other document which you were going to tender was a list of employees with the hours they worked in July.
PN3986
MS PAUL: Yes, sir.
PN3987
JUSTICE GIUDICE: A copy of that has been made. It has the employees names on it. Were you intending to have those blanked out, or?
PN3988
MS PAUL: Yes, sir, and I have actually got the white-out to be able to do that, sir, if we could have a short break for the purposes of - - -
PN3989
JUSTICE GIUDICE: Yes, well do you have any comment about that, Mr Moore?
PN3990
MR MOORE: Your Honour, no.
**** BRUCE COURTLAND MACGREGOR-SKINNER RXN MS PAUL
PN3991
JUSTICE GIUDICE: No.
PN3992
MS PAUL: Our only concern, sir, is we think it is inappropriate because we haven't checked with the employees - - -
PN3993
JUSTICE GIUDICE: Yes, and I understand that, as long as there is no objection that is acceptable. Well, I will mark the one which I have which has the names on it on the understanding that you will provide copies with the names blanked out.
PN3994
MS PAUL: Yes.
PN3995
PN3996
JUSTICE GIUDICE: You can provide that in due course. Yes, is there anything else for the witness?
PN3997
MS PAUL: Just one further question, sir.
PN3998
When Mr Moore asked you whether you would enter into a collective agreement or an individual agreement, do you know what the meaning of a collective agreement or an individual agreement is?---Yes.
PN3999
No further questions.
**** BRUCE COURTLAND MACGREGOR-SKINNER RXN MS PAUL
PN4000
JUSTICE GIUDICE: All right. Thank you. Thank you for your evidence.
PN4001
SENIOR DEPUTY PRESIDENT WATSON: I am sorry. Mr MacGregor, the second store - did you sell that store?---No, just closed it, sir.
PN4002
You just closed it?---Your Honour.
PN4003
Yes, very well. Thank you.
PN4004
PN4005
MS PAUL: Sir, I believe Mr Roberts has arrived. If it is possible for us to have a short adjournment to be able to - - -
PN4006
JUSTICE GIUDICE: Yes, we will adjourn for 10 minutes.
SHORT ADJOURNMENT [11.02am]
RESUMED [11.18am]
PN4007
JUSTICE GIUDICE: Yes, Ms Paul?
PN4008
PN4009
MS PAUL: Mr Roberts, could you state your name, occupation and address for the Commission, please?---My name is Wayne Harvey Roberts. I live at 13 Anthony Street, Mildura, and I am the owner operator of the Great Australian Ice-creamery in Mildura.
PN4010
Okay. Mr Roberts, have you got a statement in front of you?---Yes.
PN4011
Do you wish to make any corrections to that statement?---Yes, I would like to. On the statement number 1 is "I am the owner of the Great Australian Ice-creamery." We are no longer a franchise.
PN4012
Are there any other corrections you wish to make, Mr Roberts?---Perhaps a deletion of number 27 and I make note that item 15 is 12 months ago those figures were put together.
PN4013
Is that all the corrections you wish to make, Mr Roberts?---All I can see, yes.
PN4014
Do you swear that the statements contained in there are true and correct?---Yes.
PN4015
PN4016
**** WAYNE HARVEY ROBERTS XXN MR MOORE
PN4017
JUSTICE GIUDICE: Yes, Mr Moore?
PN4018
MR MOORE: Thank you, your Honour.
PN4019
Mr Roberts, you bought the business in about 1996, did you?---That is correct, yes.
PN4020
Yes. And it had been going for some time before that?---Since 1991, it was opened.
PN4021
Yes. And you paid something for the business?---Yes.
PN4022
And it is your hope or expectation that in due course when you want to, you will be able to sell the business for a profit?---Yes.
PN4023
Yes. And I trust that you regard as part of your reward for running this business the profit that you hope you will make in the future and the wages that you take from the business now?---Yes.
PN4024
You are a member of the ARA?---Yes.
PN4025
When did you join the ARA?---Approximately 1997.
PN4026
And was part of the reason that you joined the ARA was to seek its assistance in respect of employment and industrial relations matters?---Just general assistance in running a business.
PN4027
And did that include employment matters?---Not to that degree, no.
**** WAYNE HARVEY ROBERTS XXN MR MOORE
PN4028
I see. You did get served the log of claims by the SDA in this case?---Yes, I did.
PN4029
Yes. And you are looking towards the ARA to represent your interests in that case?---Yes.
PN4030
And you would expect that the ARA will represent you in any necessary dealings with the union as part of this case?---Yes, I do.
PN4031
Do you understand, Mr Roberts, that if the union is successful in this case that the award, without going to its terms, that the award will be imposed on your business?---Yes, I do.
PN4032
Yes. And if that occurs, would you be keen to get the assistance of the ARA to negotiate with your employees different conditions which are more suitable to the needs of your business, if that was able to be done?---Perhaps I won't answer that at this moment.
PN4033
I am sorry?---I won't answer that at this moment.
PN4034
The difficulty, Mr Roberts, is that you are required to answer the questions subject to your representative's objections to my questions and of course the views of the Bench. You are required to answer my questions?---Okay, could you ask that again, please?
PN4035
Certainly. If the award is imposed upon your business, would you be keen to get the assistance of the ARA to negotiate different terms and conditions to apply to your employees if you are able to do so?---If it was possible, yes.
PN4036
Yes. Are you aware in general terms, Mr Roberts, that employers such as yourself are able to enter into individual agreements within individual employees?---I don't totally understand all that, so I would rather leave that if that is okay, is it?
**** WAYNE HARVEY ROBERTS XXN MR MOORE
PN4037
Well I am not going to ask you anything detailed about it and you can answer yes or no, if you don't know that just say so, but in general terms, are you aware that employers such as yourself can enter into individual agreements with their employees?---At this stage, I am not totally aware of, no not all of it.
PN4038
I see. Now, I think in your statement you referred to various potentially negative affects that the award, you say, will have on your business?---Yes.
PN4039
I take it that you wouldn't take any action such as reducing employee numbers or hours of work until you had a clearer understanding of what the precise affect of the award would be?---Yes, that could be the case.
PN4040
Yes. And I take it you wouldn't take any of those actions such as reducing employee numbers or hours of work, until you had undertaken what efforts you could with the ARAs assistance to negotiate different conditions to apply to your employees?---I would discuss it intently with them.
PN4041
Yes. And on the basis of those discussions, then you would make a decision, would you?---Yes, I would.
PN4042
Yes. Do you know what the ordinary hours in the award are?---Not off hand, sorry.
PN4043
In paragraph 14 of your statement, you say that the ordinary hours in this award will mean that I am forced to pay double time for 21 hours of the week, do you see that?---To answer your question, I don't know what the award rates are, so I can't say yes or no and that was 12 months or more ago.
PN4044
Yes. So you don't know what the ordinary hours of work are under the award?---No, not - I am sorry I couldn't give you an answer on that.
**** WAYNE HARVEY ROBERTS XXN MR MOORE
PN4045
How did you get the conclusion then that you would be forced to pay double time for 21 hours of the week?---I suppose on assumption.
PN4046
Yes. Is that an assumption based upon information provided by the ARA?---No.
PN4047
Just an assumption you made?---Talking with other business people.
PN4048
Right, so based upon - what other business people?---Just other people, general business people.
PN4049
Right. So you chatted to other business people and made an assumption about what the ordinary hours of work would be, is that right?---I guess it would be discussion amongst business people.
PN4050
Yes, and based upon those discussions you made an assumption, is that right?---I think most of us would have done.
PN4051
Yes. In your statement, you say that the - and you have indicated that you did these calculations about 12 months ago, but you say that your wages costs will increase by $450, do you recall saying that?---Well they were the figures I came up with, yes.
PN4052
Yes. How did you calculate that?---I haven't got those figures in front of me to be really specific on it, so I can't answer that, sorry.
PN4053
When you made this statement, what was your operating budget?---Of?
PN4054
Your operating budget of your business?---Of which particular segment of it?
**** WAYNE HARVEY ROBERTS XXN MR MOORE
PN4055
I am sorry?---Of which particular segment of the business?
PN4056
Your businesses total operating budget?---Sorry, I don't understand that. I just believe there is - are you saying the wages part of?
PN4057
No, I am just asking your total operating budget?---I couldn't give you a figure on that, sorry.
PN4058
In paragraph 17 of your statement, you say "I currently set aside a maximum of 18 per cent of my operating budget for wages". So what was your operating budget, do you know or not?---No, sorry.
PN4059
You say in paragraph 15 that your current gross wages cost the business approximately $950 per week. At that time, would that amount be equivalent to about 18 per cent of your operating budget?---Perhaps not, no.
PN4060
Might it be less or more?---I couldn't say that, to be honest on that.
PN4061
So you can't give us anymore detail about those numbers?---No, not on that question, no sorry.
PN4062
No. You say in paragraph 17 after you refer to the fact that you currently set aside a maximum of 18 per cent of your operating budget for wages, you say you can't increase this to 31 per cent, which would be required under the award. How did you come up with 31 per cent?---Once again, as I said in the question before, that was an assumption when we had discussions.
PN4063
Yes. Assumptions on a basis of discussions from other business people?---That is right, yes.
**** WAYNE HARVEY ROBERTS XXN MR MOORE
PN4064
Yes. You say in your statement that you will be hard hit by the award because you trade on Saturday and Sundays and evenings until 10 pm. What are the award obligations in respect of Saturday work which make it so hard hitting?---I guess that, from what I have read into it, it would be the extra penalty rates.
PN4065
What is the penalty rate for a Saturday?---Well at the moment - I couldn't answer that what it is at the moment.
PN4066
Well when you did this statement what was it?---I just can't remember what that is. I am sorry, I can't help you on that one either.
PN4067
No. At the time you did the statement, what was the penalty rate for Sundays?---I will have to leave that one too because I would rather be very specific on that.
PN4068
Certainly. You don't know?---No, I would rather not answer that - I don't know the detail.
PN4069
Do you what the penalty is on evening work after 6 pm Monday to Friday?---No, I am sorry.
PN4070
You say in your statement that this year, and I take it to be last year, you had to absorb large increases in your Workcover premiums and superannuation payments. What were the sum of those increases approximately?---No, I am sorry, I can't detail it. I should have brought it with me. I can't help you on that, sorry.
PN4071
You don't know?---No. I have got it all back home.
**** WAYNE HARVEY ROBERTS XXN MR MOORE
PN4072
Can you give an estimate?---No. I would rather be exact than an estimate, I am sorry.
PN4073
No further questions, your Honour
PN4074
JUSTICE GIUDICE: Mr Roberts, in paragraph 23 you talk about competition?---Yes.
PN4075
You say you faced stiff competition. Who are your competitors, I don't mean by name, but by type of shop. I mean, are there other ice-cream shops?---Yes, we have. Within 100 metres we have got competition in our direct business, your Honour, and we have got a very large food chain store which is very competitive.
PN4076
Yes, so when you say you have got the direct competition, is that another ice-cream shop, is it?---Two others, yes, your Honour, and one softserve outlet which is very cheap.
PN4077
Do you know whether those businesses are covered by this log of claims?---I am not sure, sir.
PN4078
Yes, thank you. Is there anything arising out of that, Mr Moore?
PN4079
MR MOORE: No, your Honour.
PN4080
JUSTICE GIUDICE: Ms Paul?
PN4081
MS PAUL: No re-examination, sir.
**** WAYNE HARVEY ROBERTS XXN MR MOORE
PN4082
PN4083
PN4084
MS PAUL: Could you state for the Commission your name, occupation and address, please?---Yes. Gary John Kiehne, Company Director of G. and C. Investments Pty Ltd, 22 Edgbaston Circuit, Berwick.
PN4085
Before you is a witness statement. Do you have a witness statement in front of you?---Yes, I do.
PN4086
Is there any corrections you wish to make to that witness statement?---There are a number.
PN4087
Can we go through them for the Commission, please?---Yes. Initially, the first paragraph, "I, Gary Kiehne, the owner of Donut King Fountain Gate." The company I had was the owner, it is no longer the owner, so there will be a number of references in there which are in the present tense, would need to be the past tense.
PN4088
JUSTICE GIUDICE: Yes, well what is the current position?---I am no longer the owner.
PN4089
So you no longer have any connection with Donut King?---No, no. That was sold on 27 March this year.
PN4090
Yes.
PN4091
MS PAUL: Apart from the tense, is there any other statements you want to correct?---Yes. Paragraph 2, the period of time, its now - or at the time of selling, was four years and two months. Paragraph 23, the amounts of $75,000 and $85,000 should have been additional sales per year and not sales per week. Paragraph 26 on the second line, it was "therefore I not" to be "therefore I cannot". Paragraph 28 again is in - should be past tense.
**** GARY JOHN KIEHNE XN MS PAUL
PN4092
SENIOR DEPUTY PRESIDENT WATSON: And they are loan repayments presumably?---Yes.
PN4093
Yes?---I believe that is all.
PN4094
MS PAUL: Thank you. Is the statement true and correct now with all those amendments?---Yes, it is.
PN4095
Sir, could we tender that as evidence of Mr Kiehne and have an exhibit, subject to any objections my friend may have.
PN4096
JUSTICE GIUDICE: Yes.
PN4097
MR MOORE: Your Honour, an issue arises in that the evidence is called in general terms as to the adverse affect of the award upon the business. It is difficult to see how that is really dealt with now given that the deponent has disposed of his business.
PN4098
JUSTICE GIUDICE: Yes, I think that point is well made. It would be inappropriate I think to exclude the evidence totally.
PN4099
MR MOORE: It would inappropriate - - -
PN4100
JUSTICE GIUDICE: To exclude it totally, yes.
PN4101
MR MOORE: Yes.
PN4102
JUSTICE GIUDICE: And it may have some relevance in submissions, but - - -
**** GARY JOHN KIEHNE XN MS PAUL
PN4103
MR MOORE: Yes, your Honour.
PN4104
JUSTICE GIUDICE: - - - the point you make is obviously a fairly telling one as far as the future position goes.
PN4105
MS PAUL: Yes, sir, but if I may, the evidence is only put forward for the purpose of submissions with regards to the past and the time that Mr Kiehne was in there.
PN4106
JUSTICE GIUDICE: Yes. I am not excluding it, Ms Paul.
PN4107
MS PAUL: Thank you, sir.
PN4108
JUSTICE GIUDICE: It is a matter that can be the subject of argument.
PN4109
MS PAUL: Thank you.
PN4110
PN4111
MS PAUL: I have no further questions for Mr Kiehne.
PN4112
JUSTICE GIUDICE: Mr Kiehne, can I just ask you one question. Did you sell the franchise?---Yes I did, your Honour.
**** GARY JOHN KIEHNE XN MS PAUL
PN4113
PN4114
MR MOORE: I am sorry, shall I pronounce your surname Mr "Keen" or?---"Keena".
PN4115
Mr "Keena", thank you.
PN4116
JUSTICE GIUDICE: Mr Kiehne, I am sorry.
PN4117
MR MOORE: Mr Kiehne, what do you do now?---I recently purchased a Kwik Kopy Printing Centre.
PN4118
When you were the owner of the Donut King Fountain Gate operation, was that a franchise?---Yes.
PN4119
And did you own any other Donut King franchises?---No.
PN4120
Now I understand, I am told that when you, up until when you disposed of Donut King Fountain Gate, that you did pay double time for work on Sundays?---That is correct. No sorry, public holidays.
PN4121
Public holidays. I am told that you also paid it for Sunday work?---No.
PN4122
That is incorrect, is it?---That is incorrect.
PN4123
In your statement you refer to having employed nine casuals, five part-timers and two cooks. Where the cooks full-time, part-time or casual?---Cooks, one was part-time and one was casual.
**** GARY JOHN KIEHNE XXN MR MOORE
PN4124
Is the only penalty rate that you pay - I will withdraw that. When you ran Donut King, you paid a flat hourly rate for all hours worked other than in the case of public holidays, is that right?---That is correct.
PN4125
So public holidays was the only exception to that?---That is right.
PN4126
I see. You say in your statement that if you are bound by the proposed award, your gross wages, superannuation and Workcover costs would increase by $37,984.35. Did you calculate that or did the ARA?---No, my wife and I calculated that using the federal award provisions that was applied by the ARA.
PN4127
Are you able to present to us the calculation?---I don't have them here with me, no.
PN4128
You also say that increase represents a percentage increase of 25.42 per cent?---That is correct.
PN4129
Are you able to produce to us the calculation by which you arrived at that?---Well, you have the two figures down there of current amount being paid and then what the increased amount was. You have your calculation there.
[11.44am]
PN4130
Yes. When you worked out that sum of $37,984.35 what, if anything, did you assume about the rate payable for Saturday work?---There was an additional amount, and I am going from memory, I think it was around $5 per hour paid on the Saturday up to a certain time and then there was a penalty - further penalty rate that went above that.
**** GARY JOHN KIEHNE XXN MR MOORE
PN4131
And what if anything did you - when - I withdraw that. When you say there was a further penalty which went above that what do you mean?---I am going from memory from when this was first done up but my understanding was after that period around the middle of the day you then went into a penalty, a percentage increase.
PN4132
This is on Saturdays, is it?---Yes, from memory.
PN4133
Right. So the penalty became more burdensome from about the middle of the day as you recall it?---Yes.
PN4134
And what if anything did you assume about penalties for Sunday work under the proposed award?---Again from memory I believe Sunday was double time.
PN4135
And what about Monday to Friday after 6 pm?---That didn't - sorry the Monday to Wednesday didn't concern us.
PN4136
Why didn't it concern you?---Because Monday to Wednesday - - -
PN4137
You are not open those hours?---After those hours.
PN4138
Yes, I am sorry?---Thursday night and Friday night there was a penalty rate but I can't recall exactly what it was.
PN4139
And did you make any assumption about increases in the ordinary time hourly rate of pay between Monday and Friday between 9 and 6 under the proposed award?---No, the ordinary rate of pay, there was no change.
**** GARY JOHN KIEHNE XXN MR MOORE
PN4140
I don't think you tell us the rates of pay paid to your employees. What was the hourly rate that you paid your employees?---I believe the part time rate was, which is the same as the permanent rate which from memory was 12.83 or 12.84. It was based on the expired Victorian rate with the increases as they are going through.
PN4141
And the casual rate?---Well, the casual rate was - there is a loading on that of, I think it is 20 or 25 per cent on top of that.
PN4142
On top of that, the part-time rate that you referred to?---Yes.
PN4143
At the - when you made this statement and you say that your gross wages, including super and Work Cover costs were $156,354.25, what proportion of your total operating costs did that amount represent?---Around 25 per cent.
PN4144
That would - - -?---Operating - I take it you mean your sales revenue.
PN4145
Well, you refer to operating budget in here. I understand it to mean sales revenue. Is that what you understand it to mean?---Yes, that is right.
PN4146
Yes. So you would say it would represent about 25 per cent?---That is correct.
PN4147
Yes. That would suggest to me that your annual operating budget was about $625,000?---For the year that it was completed, 30 June last year it was. We - for the current financial year we budgeted for a lower figure. The centre we were working - there were reasons for it.
PN4148
For the year that you made this statement though it was 625 was it?---It was - it would have been around that figure, yes.
**** GARY JOHN KIEHNE XXN MR MOORE
PN4149
625,000. You say in your statement that, and this is in paragraph 18:
PN4150
I currently set aside a maximum of 25 per cent of my operating budget -
PN4151
which we have just - I have just asked you about and you say that the operating budget was about $625,000 -
PN4152
and I cannot increase this to 35 per cent.
PN4153
How did you get to 35 per cent?---As I said in a previous statement the sales budget for the current financial year was downgraded due to effects within the shopping centre. Added the wages that we had paid plus what the additional costs would be through this burden and work the percentage from that.
PN4154
I see, so you worked out the proportion of your total operating budget which your additional or total wage costs under the award would be, you worked that out by reference to the next years operating budget, did you?---That is correct.
PN4155
I see. And the next year's operating budget was something less than $625,000?---Yes.
PN4156
At the time you made this statement what were your typical gross sales per week?---Typically around $12,000 a week.
PN4157
Excuse me for a moment. You say the gross sales per week were typically about 12,000. Is that right?---That is right. That is averaged out over the years.
PN4158
Excuse me, your Honour, I apologise. I was just needing to do some calculations for a moment.
**** GARY JOHN KIEHNE XXN MR MOORE
PN4159
JUSTICE GIUDICE: That is $624,000 a year. That is what he said originally.
PN4160
MR MOORE: Yes, I am not - - -
PN4161
JUSTICE GIUDICE: Yes.
PN4162
MR MOORE: I am - there is another analysis. There is very little provided in - by way of background to these calculations, your Honour.
PN4163
PRESIDENT GIUDICE: Yes, there is.
PN4164
MR MOORE: It is rather challenging to make sense of them.
PN4165
Yes, thank you for that. Now when you made this statement you refer to increases, large increases in WorkCover premiums and super payments. Do you recall what they were in that year?---The work - workers compensation increased by 50 per cent which was about $2500.
PN4166
Yes. Per year you mean?---That is right.
PN4167
And the increase was 2500?---2500.
PN4168
Yes?---Superannuation would have been around 1500.
PN4169
No further questions, your Honour.
PN4170
SENIOR DEPUTY PRESIDENT WATSON: Mr Kiehne, in paragraph 26 you refer to competition. What do you regard as your competition or what is your competition?---In a Donut King shop whereas the major product we sell is coffee surprisingly and - - -
**** GARY JOHN KIEHNE XXN MR MOORE
PN4171
Different in America no doubt?---No, their coffee is damn awful. And on the - in the centre we are in on the level we are on there were, including ourselves, six people selling coffee in the financial year I put there. This current financial year there is now 11.
PN4172
What sort of establishments are they?---There is a food court area that we are in and they are all food shops and then the others were either food or specialty coffee houses.
PN4173
Thank you.
PN4174
JUSTICE GIUDICE: Do you know whether any of the other shops you have referred to are respondents to this log of claims?---I hadn't found any that were, your Honour.
PN4175
Yes?---I spoke to most of them and none were.
PN4176
Thank you.
PN4177
MS PAUL: Just one quick question, sir.
PN4178
SENIOR DEPUTY PRESIDENT WATSON: Mr Moore.
PN4179
JUSTICE GIUDICE: Yes, Mr Moore? Yes.
PN4180
MR MOORE: Yes, your Honour, I have just one matter arising out of your Honour's question.
**** GARY JOHN KIEHNE XXN MR MOORE
PN4181
JUSTICE GIUDICE: Yes.
PN4182
PN4183
MS PAUL: Just one quick question. Mr Moore asked you about how you made your calculations with respect to the award terms?---Yes.
PN4184
Were you provided any wage guides from the ARAV to assist you with that?---Yes, I was.
PN4185
Can I show you a wage guide?---Yes.
PN4186
Just - ..... copies are all here. Is that the wage guide that you received? I will explain?---Yes.
PN4187
Is that the wage guide you received?---Yes, it is.
PN4188
Okay. Sir, may I refer to that wage guide which is actually ARAV24.
PN4189
JUSTICE GIUDICE: 24, yes.
PN4190
MS PAUL: As the wage guide that I have just shown Mr McGregor.
PN4191
JUSTICE GIUDICE: Yes, he has identified that. Thank you.
**** GARY JOHN KIEHNE RXN MS PAUL
PN4192
MS PAUL: We don't have any further questions, your Honour.
PN4193
PN4194
MS PAUL: Sir, if I may, we have just handed up, to the Bench as well as to the other parties, the exhibits mentioned in Mr MacGregor's statement, being ARA24 and 25, the roster as well as the document Retail Briefing.
PN4195
JUSTICE GIUDICE: Yes, 25 is the roster. I will substitute the document which has been handed up with them, with names blanked out, for the document I marked earlier. And the document I marked earlier will be returned to you, Ms Paul.
PN4196
MS PAUL: Thank you, sir. Sir, we have no other witnesses to call and we will seek to address you with respect to evidence that we seek to tender at this point.
PN4197
JUSTICE GIUDICE: Yes.
PN4198
MS PAUL: Sir, I believe that you have received three volumes from us, belonging to one, two and three, in a grey folder.
PN4199
JUSTICE GIUDICE: You can make that assumption, yes.
PN4200
MS PAUL: Okay. Sir, this, in volume 1, sir, is an index and we seek to tender, at tab 3, the summary of an ARAV proposed award, which will sit with our alternative proposition, as found in our submissions that have already been filed in this matter.
PN4201
PN4202
MS PAUL: We also, sir, in the same folder - I am not sure whether we need to tender you a copy of the actual award, I am assuming we don't, sir, but we do have it in that folder.
PN4203
JUSTICE GIUDICE: I don't think there is any need to tender the award.
PN4204
MS PAUL: At tab number 5, sir, of that same folder, we have what we have collectively called ARAV Evidence on Shop Trading in Victoria as well as Queensland and various newspaper articles relating to Sunday trading, as well as the Shop Trading Act. If you would like, sir, we could go through each but we were hoping, as a matter of ease, to have them all as one exhibit.
PN4205
JUSTICE GIUDICE: How are we ever going to find anything in that document?
PN4206
MS PAUL: If it will assist, we will be happy to go through each one.
PN4207
JUSTICE GIUDICE: Well, if there is going to be reference, in submissions, to that material, it is going to be almost impossible to find anything - - -
PN4208
MS PAUL: Sorry, sir, to alleviate that and because we had identified that because of the volume of material, in our submissions we will, actually, re-submit any document we have directly referred to in our submissions, that are contained in these folders in forms where you are able to cross reference them.
PN4209
SENIOR DEPUTY PRESIDENT WATSON: What are we meant to do with the rest of it. Why is it being tendered if it is not being relied - - -
PN4210
MS PAUL: Well, sir, we will rely on them but we will put them in a format for the Bench to be able to use.
PN4211
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN4212
MS PAUL: Or, alternatively, sir, we are very happy to take these folders and re-send them to you with appropriate tabulations, included in them, if that is more convenient.
PN4213
JUSTICE GIUDICE: Well, I hate to sound like a broken record but the way to deal with these things is to sequentially number the pages.
PN4214
MS PAUL: Yes, sir. We apologise that that hasn't - - -
PN4215
JUSTICE GIUDICE: We can certainly make these available to you, for that purpose, if you wish us to read them.
PN4216
MS PAUL: What we may do, sir, is actually take you up on that and - - -
PN4217
PN4218
MS PAUL: Behind tab 6, sir, we don't intend to rely on the second survey - sorry, the first survey in tab 6. And, perhaps, if you could just not rely on anything in tab 6 but, in fact, we seek to tender that survey report that we do intend to rely upon and the actual answers to the survey, as a separate exhibit, subject to any objections, which I am sure - - -
PN4219
JUSTICE GIUDICE: Yes, now, just taking it a step at a time. You are not tendering anything behind tab 6?
PN4220
MS PAUL: No, sir.
PN4221
JUSTICE GIUDICE: No, thank you.
PN4222
MS PAUL: Volume 2, sir, of the - which is in the next folder, is the evidence - sorry, contains former retail awards in Victoria.
PN4223
JUSTICE GIUDICE: Yes.
PN4224
MS PAUL: And, as well as New South Wales trading laws retail award, being tab 7 and tab 8. Again, we would be happy to sequentially number those, for the Commission's purposes.
PN4225
JUSTICE GIUDICE: I suppose they are not quite as difficult to deal with.
PN4226
MS PAUL: It may be easier, for the sake of numbering, that is, sir, if we just re-number all the folders for you.
PN4227
PN4228
MS PAUL: Volume number 3, sir, contains the ACT Retail Award, at tab 9, being trading hours and the actual Retail, Wholesale Shop Employees ACT Award, which we seek to tender.
PN4229
JUSTICE GIUDICE: Yes, the ACT Retail Award is an award of the Commission, isn't it?
PN4230
MS PAUL: Yes, sir. For ease, sir, we thought we may, actually, put them all in there.
PN4231
PN4232
MS PAUL: Tab 10, sir, refers to the Queensland trading and legislation of retail awards, which includes the RAQ fact sheets, Trading Hours and Retail Industry Interim Award of Queensland. And, again, we will number those for you, sequentially.
PN4233
PN4234
MS PAUL: Behind tab 11, sir, is a list of enterprise agreements, as at last year, that the ACA have entered into.
PN4235
JUSTICE GIUDICE: Yes, is there any problem with that?
PN4236
MR MOORE: I am content for it to go in, your Honour. What the document is is that it is not, simply, a list of the names of the agreements, it purports to summarise the terms of the agreements in various respects. As I say, I don't have any objection to it going in but I would, simply, make the point that it may, of course, be necessary and where necessary, it would be preferable to refer to the actual terms of the agreements themselves.
PN4237
PN4238
SENIOR DEPUTY PRESIDENT WATSON: Presumably, in submissions, we will be told what the asterisks must look at again?
PN4239
MS PAUL: Yes, sir.
PN4240
SENIOR DEPUTY PRESIDENT WATSON: Thank you.
PN4241
MS PAUL: The final - sorry, it is the second last one we intend to tender, sir, is in tab 12, Retail Industry News Articles and we will, again, sequentially verify them. We do tender that, sir, in purely it is historical as, obviously, they were articles relating to 01, we don't intend to put in any articles with respect to 02.
PN4242
PN4243
MS PAUL: The final that we wish to - before we tender our final document, sir, as alerted yesterday, there may be additional awards or agreements of the Commission and the parties have agreed that we will provide that to Mr Moore and the Commission by next Friday. And those issues have arose out of rebuttal or witnesses etcetera. We won't be seeking to tender, obviously, information that is not commonly available. To that end, we go to the final document that we seek to tender and I expect that my friend will raise objections with respect to that and that being the survey results of the ARAV, as well as the actual questionnaires, which we did raise yesterday, we seek to tender them.
PN4244
We suggest, sir, that they still provide some historical data and it is really a question of weight that the Commission does or does not place upon the evidence and we tender them, only insofar as they provide a picture of at least the respondents - the 64 respondents to the survey and what they said about it. And that is within - I think the Commission already has those.
PN4245
JUSTICE GIUDICE: And do we understand, from what you said, yesterday, that you intend to provide some sort of analysis of the survey returns?
PN4246
MS PAUL: Sir, we are actually going to be tendering the survey results that - - -
PN4247
JUSTICE GIUDICE: I see, yes.
PN4248
MS PAUL: The actual report and that, as one item, which will - - -
PN4249
JUSTICE GIUDICE: Yes. Was that the document that was in volume 1?
PN4250
MS PAUL: Yes, sir.
PN4251
JUSTICE GIUDICE: Yes, I see.
PN4252
MS PAUL: But I thought for the ease it would be better to tender that separately, but it actually is in volume 1.
PN4253
JUSTICE GIUDICE: Yes.
PN4254
MS PAUL: Would it be of ease if we just provided the whole lot to the Commission, at this point?
PN4255
JUSTICE GIUDICE: Yes, well I think we know what is in them. Mr Moore?
PN4256
MR MOORE: Yes, your Honour, I do press my objection, in it is a new objection, given that there is now clarity as to what is sought, precisely, to be tendered. I object to the report and the survey forms going in. Firstly, the ARA was on notice well before this case, that the association proposed to object to the report going in as evidence. The ARA has chosen - the ARA has received, as have all the other parties in the Commission, obviously, Dr Gordon's report in respect of the ARA survey. The ARA, notwithstanding those matters, has chosen not to put anyone forward to attest to the survey report.
PN4257
The completed survey forms, of course, really could only go in, in my submission, if they, as part and parcel of the survey, otherwise it is the same as putting in un-named witness statements containing - making various assertions, equivalent to the markings on the completed survey forms. So, in dealing with the survey in toto, there is no right of a party to seek to tender a document without it being attested to by a bar witness. The ARA - - -
PN4258
JUSTICE GIUDICE: It happens a lot in - - -
PN4259
MR MOORE: I am sorry, your Honour?
PN4260
JUSTICE GIUDICE: It happens a lot in safety net reviews.
PN4261
MR MOORE: And forgive me, your Honour, for my, perhaps, lack of familiarity with those - the processes that might be adopted in that context. I am not sure if that occurs in the context of there being an objection to documents being tendered?
PN4262
JUSTICE GIUDICE: Well, all sides seem to do it.
PN4263
MR MOORE: That is, the documents go in, sir, without objection - yes. And, I suppose, the point I make here, is that this is a different situation.
PN4264
JUSTICE GIUDICE: Yes, quite, but I was just drawing attention to the fact that the Commission, as a matter of practice, is not unused to dealing with material which isn't attested to, in the formal sense and I suppose trying to give what weight to it, seems appropriate.
PN4265
MR MOORE: Indeed, your Honour is correct and in this case, both my client and the ARAV have tendered quite a mountain of material and that has gone, without any difficulty between us. However, this is a specific instance, the material is potentially important to a relevant matter in the proceeding. We have done the right thing and put the ARA on notice about our position, they have had an opportunity to remedy that, to, at least, attempt to remedy that by putting someone forward and have not even got to that foundational stage.
PN4266
Secondly, if the Commission pleases, the only evidence which is before the Commission, in respect of the ARAV survey, is Dr Gordon's report. Dr Gordon, in my respectful submission, where no issue of substance was taken, with respect to the ARAVs report, in cross-examination. That means, if the Commission pleases, that in respect of the ARAV report - and of course, Dr Gordon's report is prepared on the basis and assuming that the ARAV survey goes in, that means that the only evidence, in respect of the ARAV survey, is Dr Gordon's damning critique of the reliability of the ARAV report.
PN4267
The Commission, in my respectful submission, subject to the Members of the Bench's own assessment of Dr Gordon's evidence, of course, will, nonetheless, the only evidence it can act on, in relation to the survey, the ARAV survey, is Dr Gordon's evidence. And Dr Gordon's evidence is unequivocal, it is unreliable. Now, I am conscious that there is a distinction between admissibility and weight, but if one has an expert in the field, whose unchallenged testimony is that it is an unreliable basis upon which to reach any conclusions, on what basis could the Bench even consider putting weight on it, in my respectful submission.
PN4268
JUSTICE GIUDICE: I think that Ms Paul, if she maintains the position she indicated to us, yesterday, is really seeking to go beyond that evidence.
PN4269
MR MOORE: No. As I understand the ARAVs position - well I withdraw it. I don't, precisely, know how it is Ms Paul intends to use the material which is now sought to be tendered.
PN4270
JUSTICE GIUDICE: But I think she indicated - she can speak for herself, of course, but I think at least, yesterday, she indicated that she would rely on that paragraph towards the end of Dr Gordon's evidence, to the effect that it might be representative of the views of some members. Something like that, in any event and that, of course, you are quite right that his evidence, that you can't extrapolate from the survey, is unchallenged.
PN4271
MR MOORE: Yes. I mean, Dr Gordon' evidence, in respect of that statement, upon which Ms Paul's position appears to hang, is simply that, of necessity, if someone completes a survey - if one person, in a sample of 100, fills out a survey form, well, by definition, there is information and that is true. But a survey is, of course, conducted for the purpose of inferring or reaching conclusions about a population. It is not undertaken by way of direct evidence. I mean if the test for admissibility was information, everything would come in.
[12.15pm]
PN4272
SENIOR DEPUTY PRESIDENT WATSON: As along as it were relevant.
PN4273
MR MOORE: Yes. But it is not presented. A survey doesn't get admissible, in my view, just because it contains information, because every survey contains information as long as one sample person responds and that is such a low threshold on the question of admissibility to make that question irrelevant, in my view.
PN4274
COMMISSIONER RAFFAELLI: Do you see any difference between admitting the actual response sheets rather than the survey. See the survey uses the response sheets and then says, well there is 60 people that are representative of the 500 people and therefore these are the conclusions. But the responses themselves, other than the fact the people aren't here to attest to them, but - - -
PN4275
MR MOORE: Yes.
PN4276
COMMISSIONER RAFFAELLI: - - - they do represent the views in some ways, not quite as high as the four witnesses that have come here.
PN4277
MR MOORE: Well I - thank you, Commissioner. I regard my objections or problems with admission admissibility are greater in respect of the survey forms than the survey report. I mean, if those survey forms, completed survey forms can go in there is the issue which I think the President raised yesterday as to their relevance, ie, they were completed for the purpose of the report or form part of the report, but even putting that issue aside, if they are sought to be tendered or relied upon on the basis well there is information in them and we can consider that and make of it what we will, well there would be no inhibition then, in my client, going around and getting 100, 200 members or employees in retail to tick a few boxes, answer a few questions and not put their name to it and for me to come along here and say, please put that in because there is some information there.
PN4278
SENIOR DEPUTY PRESIDENT WATSON: Would that be something similar to the document from the Taskforce Report which cites what persons have said?
PN4279
MR MOORE: No, I wouldn't see it in the same way, your Honour. That is - - -
PN4280
JUSTICE GIUDICE: Voices From The Workplace.
PN4281
MR MOORE: Voices From The Workplace, your Honour.
PN4282
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN4283
MR MOORE: That, of course, forms part of an investigation and a report of a vastly different quality and undertaking than the ARAVs undertaking.
PN4284
SENIOR DEPUTY PRESIDENT WATSON: But that section is nothing more than the unattributed expression of views of individuals, representative or otherwise.
PN4285
MR MOORE: I think they are known. The persons are actually known, your Honour.
PN4286
SENIOR DEPUTY PRESIDENT WATSON: Well, I - - -
PN4287
MR MOORE: I do recall reading that document at one point. The persons are known.
PN4288
SENIOR DEPUTY PRESIDENT WATSON: But it raises in my mind whether this is really a question of admissibility or weight.
PN4289
MR MOORE: Well, that is the question. And I suppose my submission is that at some point, notwithstanding a degree of greater scope for admission of documents in Commission proceedings - which I will accept - there must still be, and is still a legitimate basis for a party to accept to assert rights in respect of admissibility and for the Commission, in my respectful submission, to be satisfied that a document meets very basic standards of admissibility.
PN4290
Now, I am well conscious that if the document is admitted well, Doctor Gordon's report is there. It is a damning critique of the report. And, of course, the SDA will rely upon that if that gets to the position. But the SDA does wish to use - exercise its rights to press - to make a submission in respect of admissibility. Once the document goes in the ARAV will make use of it in whatever way they will. And those submissions will have to be dealt with by way of reply in circumstances where there is just simply no foundation for it properly to go in.
PN4291
I mean, in my respectful submission, I don't - if that report and the survey forms go in, I do not understand on what basis there is any real test for admissibility. Thank you, your Honour.
PN4292
MS PAUL: Sir, I believe you quite correctly noted my commentary as to why we are putting the evidence through and there really is nothing else that I can add other than what we have said before and we seek to tender it if that is the wish of the - if the Commission allows it.
PN4293
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN4294
COMMISSIONER RAFFAELLI: Can you just clarify one thing?
PN4295
MS PAUL: Yes, sir.
PN4296
COMMISSIONER RAFFAELLI: This survey that you are tendering, there were actually two sheets. There was another thing called Employer Poor.
PN4297
MS PAUL: No, sir, we are not seeking to rely on that one at all.
PN4298
COMMISSIONER RAFFAELLI: Okay. We forget about that, okay.
PN4299
MS PAUL: Yes, sir.
PN4300
JUSTICE GIUDICE: Yes. We intend to admit the documents, both of them. But we are conscious of the - both the basis on which they are tendered and the submissions that will in due course be made about the weight to be attributed to them. The document which is marked - can you hand them up, Ms Paul?
PN4301
MS PAUL: No sir - one is MF - - -
PN4302
JUSTICE GIUDICE: I think we already have the survey forms, do we not?
PN4303
MS PAUL: Yes. And you actually have the report in tab 6, sir, of the first volume.
PN4304
JUSTICE GIUDICE: Right.
PN4305
MS PAUL: It is the second survey, sir, which is in colour in tab 6.
PN4306
JUSTICE GIUDICE: Yes. The document which is marked MFI1, which is the collection of survey responses, will be marked ARA36.
EXHIBIT #ARA36 COLLECTION OF SURVEY RESPONSES
EXHIBIT #ARA37 SURVEY RESULTS OF ARVAV MEMBERS TRADING ON SUNDAYS IN VICTORIA, JULY 2001, SUBTITLED THE IMPACT OF BEING BOUND BY THE SDA VICTORIAN SHOP INTERIM AWARD 2000
PN4307
MS PAUL: If the Commission pleases, we have no further evidence at this point to tender, other than this previously stated. For the purposes of more administrative issues, sir, with respect to the remarking of the folders, would it be of ease if we simply made copies, remarked them and returned three copies of - three sets to yourselves our would you like us to - - -
PN4308
JUSTICE GIUDICE: Well, I don't think it is necessary to make fresh copies of all of that material. They can be - arrangements can be made with my associate, I think, to uplift those parts of the documents.
PN4309
MS PAUL: Yes, sir. Thank you, sir. We will undertake that.
PN4310
SENIOR DEPUTY PRESIDENT WATSON: Or for someone to attend with a sequential date stamp, it might be even easier.
PN4311
MS PAUL: Yes, sir. Yes, we may organise something, sir.
PN4312
JUSTICE GIUDICE: Right. Now, I mention another matter. I received some correspondence from the Baking Industry Association, a Mr Clemisce. Have you see that letter of 4 August, Mr Moore?
PN4313
MR MOORE: No, your Honour. I haven't.
PN4314
JUSTICE GIUDICE: Well, the letter - yes, my associate can make a copy available to you. The letter indicates that agreement has been reached with the union in relation to a list of employers, who I presume are members of the Baking Industry Association of Victoria. And I don't propose to say anymore about that but if there is any issue about that agreement no doubt you can take that up with Clemisce if there is a problem. But - - -
PN4315
MR MOORE: Yes. Thank you, your Honour, if there is. I see that the material also contains a letter from my client of 18 December 2001. I don't know if - your Honour might not have that material.
PN4316
JUSTICE GIUDICE: Yes.
PN4317
MR MOORE: But if there is any difficulty with that I am sure my client will take it up with the association.
PN4318
JUSTICE GIUDICE: That correspondence would simply remain on the file. I won't mark that. Yes. Now, Mr Moore, could you remind us of the dates which have been agreed for the exchange of submissions?
PN4319
MR MOORE: Certainly, your Honour.
PN4320
MR COLE: If the Commission pleases, at an appropriate time there are three short matters from the Commonwealth which mainly - - -
PN4321
JUSTICE GIUDICE: I see. Yes. Should we deal with those now?
PN4322
MR COLE: Yes. The first goes to the marking, your Honour, of the Commonwealth written submissions.
PN4323
JUSTICE GIUDICE: Yes.
PN4324
MR COLE: There are two documents. One an initial outline of the Commonwealth's submissions dated 28 September 2002 (sic) under cover of the letter to your Honour of the same date. And there is an addendum to those submissions, again under cover of a letter to your Honour. The second letter dated 3 August 2002.
PN4325
PN4326
MR COLE: Thank you, your Honour. The second matter - I have anticipated this with my friend - the Commonwealth will wish to tender to the Bench a letter from the consultants who conducted the Commonwealth survey, adding one additional fact into the record. The additional fact will go to the number of the status unknown respondents in the Commonwealth survey, in respect of whom there was a Return to Sender letter received back by the consultants. I don't have that to tender today.
PN4327
I have a reserve - I seek to reserve the right to discuss that with my friend and I imagine that it is a matter on which agreement might be reached. And on that basis a letter, when available, will be provided to the Commission and the other parties. And, as I said, I don't anticipate any real issue in that regard. But the third matter is - we are presently reviewing those outlines of submissions. If there is any other reference or authority on which we will seek to rely, we undertake to advise that to my friend in the next couple of days.
PN4328
Your Honour, there may for example be an additional minimum wage study to add to the material that is already alluded to in the outline. As I say, if there is anything of that nature we will advise that to my friend by early next week.
PN4329
JUSTICE GIUDICE: Yes.
PN4330
MR COLE: If the Commission pleases those are the only matters from the Commonwealth.
PN4331
JUSTICE GIUDICE: Mr Moore?
PN4332
MR MOORE: Your Honour, if the Commission pleases, the timetable which I think has been foreshadowed by two Members of the Bench, as I understand it it remains what is intended to occur here for the finalisation of submissions. The agreement, as I understand, it between the parties is that the association will file and serve full written submissions by 30 August, close of business 30 August. And that the employer representatives and the Commonwealth to file and serve full witness submissions by the close of business on 20 September. And that any reply by the SDA be filed and served by the close of business on 2 October.
PN4333
JUSTICE GIUDICE: Yes. Well, we can confirm that we intend to sit on 24 October to hear any additional oral submissions. And out of an abundance of caution we are - intend to keep 25 October free in the event that it is needed. But that is really our precaution.
PN4334
MR MOORE: Yes. Well, your Honour, might I state that that would appear to sit well with the timetable and what the parties would have anticipated. And from my own perspective there is no difficulty with 24 and 25 October. If the Commission pleases.
PN4335
JUSTICE GIUDICE: Is there anything else before we adjourn?
PN4336
MR MOORE: No, your Honour.
PN4337
SENIOR DEPUTY PRESIDENT WATSON: Yes. Could I just ask the parties generally - it seems in terms of economic argument conceptually this - what is being now sought is the reverse of what happened in 1993, other than there were deeming provisions that continued certain conditions as being operative. If the parties are aware of any information, any study, search that might have assessed the affect of the movement from the old Victorian Award to the Schedule 1A conditions, if there is any such material that would be useful if that could be brought to the attention of the Commission.
PN4338
MR MOORE: Your Honour has in mind the - potentially the effect in economic terms, I take it?
PN4339
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN4340
MR MOORE: Yes.
PN4341
SENIOR DEPUTY PRESIDENT WATSON: There is material before us now in relation to employment effects and I was wondering whether there was any actual real life studies, if you like, in relation to the reverse situation.
PN4342
MR MOORE: Yes.
PN4343
MR COLE: I can undertake the Commonwealth will certainly seek to make enquiries in relation to that issue. If those enquiries reveal there is any such material well we will certainly bring that to the notice of the Bench. If the Commission pleases.
PN4344
JUSTICE GIUDICE: The other thing that is perhaps relevant to that, and there may be some material on it, I am not sure. But the parties might like to give some consideration to the size of the industry in Victoria, in terms of numbers of shops and so on. In other words what would be - if the application were granted, what would be left under the Schedule 1A area, whether it is possible to give any estimate or quantification of that.
PN4345
MS PAUL: Sir, may I just address you shortly with respect to that loss. There may be some data available. We would be cautious about the accuracy because of the turnover that occurs in the industry as far as small business coming in and out. And so we would just allude to that fact with any data that may come out.
PN4346
JUSTICE GIUDICE: Yes. Well, thank you all for your assistance. We will adjourn now until 24 October.
ADJOURNED UNTIL THURSDAY, 24 OCTOBER 2002 [12.35pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
LINDA GREENBERGER, SWORN PN3745
EXAMINATION-IN-CHIEF BY MS PAUL PN3745
EXHIBIT #ARA21 STATEMENT BY LINDA GREENBERGER OF 32 PARAGRAPHS AS FILED AND AMENDED 08/08/2002 PN3760
EXHIBIT #ARA22 DOCUMENT PRODUCED BY MS GREENBERGER HEADED COMPARISON OF CURRENT TERMS AND CONDITIONS WITH SDAEA VICTORIAN SHOPS INTERIM
AWARD 2000 PN3781
CROSS-EXAMINATION BY MR MOORE PN3790
WITNESS WITHDREW PN3837
BRUCE COURTLAND MACGREGOR-SKINNER, SWORN PN3843
EXAMINATION-IN-CHIEF BY MS PAUL PN3843
EXHIBIT #ARA23 MR MACGREGOR'S WITNESS STATEMENT PN3850
CROSS-EXAMINATION BY MR MOORE PN3890
RE-EXAMINATION BY MS PAUL PN3968
EXHIBIT #ARA24 DOCUMENT USED TO MAKE CALCULATIONS PN3980
EXHIBIT #ARA25 LIST OF EMPLOYEES AND HOURS WORKED PN3996
WITNESS WITHDREW PN4005
WAYNE HARVEY ROBERTS, AFFIRMED PN4009
EXAMINATION-IN-CHIEF BY MS PAUL PN4009
EXHIBIT #ARA26 STATEMENT OF W.H. ROBERTS PN4016
CROSS-EXAMINATION BY MR MOORE PN4017
WITNESS WITHDREW PN4083
GARY JOHN KIEHNE, AFFIRMED PN4084
EXAMINATION-IN-CHIEF BY MS PAUL PN4084
EXHIBIT #ARA27 STATEMENT OF G.J. KIEHNE PN4111
CROSS-EXAMINATION BY MR MOORE PN4114
RE-EXAMINATION BY MS PAUL PN4183
WITNESS WITHDREW PN4194
EXHIBIT #ARA28 SUMMARY OF AN ARAV PROPOSED AWARD PN4202
EXHIBIT #ARA29 COLLECTION OF DOCUMENTS CURRENTLY BEHIND TAB 5 IN VOLUME 1 PN4218
EXHIBIT #ARA30 FORMER RETAIL AWARDS IN VICTORIA, THE MATERIAL BEHIND TAB 7 IN VOLUME 2 PN4228
EXHIBIT #ARA31 NEW SOUTH WALES TRADING LAWS AND RETAIL AWARD, BEHIND TAB 8 IN VOLUME 2 PN4228
EXHIBIT #ARA32 CONTENTS OF TAB 9 IN VOLUME 3, WHICH IS THE TRADING HOURS REPEAL ACT 1997 AND THE RETAIL AND WHOLESALE SHOP EMPLOYEES
ACT AWARD 2000 PN4232
EXHIBIT #ARA33 QUEENSLAND TRADING, LEGISLATION AND RETAIL AWARDS, BEHIND TAB 10 IN VOLUME 3 PN4234
EXHIBIT #ARA34 LIST OF ENTERPRISE AGREEMENTS PN4238
EXHIBIT #ARA35 COLLECTION OF NEWSPAPER ARTICLES PN4243
EXHIBIT #ARA36 COLLECTION OF SURVEY RESPONSES PN4307
EXHIBIT #ARA37 SURVEY RESULTS OF ARVAV MEMBERS TRADING ON SUNDAYS IN VICTORIA, JULY 2001, SUBTITLED THE IMPACT OF BEING BOUND BY THE
SDA VICTORIAN SHOP INTERIM AWARD 2000 PN4307
EXHIBIT #COMMONWEALTH3 INITIAL OUTLINE OF COMMONWEALTH'S SUBMISSIONS DATED 28 SEPTEMBER PN4326
EXHIBIT #COMMONWEALTH4 ADDENDUM TO SUBMISSIONS WITH COVERING LETTER DATED 3 AUGUST 2002 PN4326
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