EM2009/3, Transcript of Proceedings [2010] FWATrans 1747 (7 December 2010)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 32778-1

EM2009/3 C2009/11424

Sch. 6, Item 4 - Application to make a modern award to replace an enterprise instrument
Sch. 6, Item 5 - Application to terminate an enterprise instrument


Yum Restaurants Australia Pty Ltd
(EM2009/3)

Shop, Distributive and Allied Employees Association
(C2009/11424)
Pizza Hut - SDA National Employee Relations Award 2000

(ODN C NO. 21897 OF 1991)
[AP792506 Print ]]




Melbourne

10.02AM FRIDAY, 19 NOVEMBER 2010

Continued from 18/11/10

PN755

VICE PRESIDENT WATSON: Mr Fernon.

PN756

MR FERNON: Your Honour, we agree to interpose two witnesses today, as your Honour has been told, Ms Daniela DeMartino, and Mr Karadji Cummings. I call Daniela DeMartino.

PN757

VICE PRESIDENT WATSON: Ms DeMartino.

<DANIELA DEMARTINO, SWORN [10.04AM]
<EXAMINATION-IN-CHIEF BY MR FERNON [10.04AM]

PN758

VICE PRESIDENT WATSON: Thank you. Please be seated, Ms DeMartino. Yes, Mr Fernon.

PN759

MR FERNON: Could you tell us your name, please?---Daniela DeMartino.

PN760

Your work address is 6th floor, 53 Queen Street, Melbourne. Is that correct?
---That's correct.

PN761

You're a national industrial officer employed by the SDA?---That's correct.

PN762

Could you tell us when you commenced working for the SDA?---March this year.

PN763

March 2010?---That's correct.

PN764

In what capacity do you work?---Part-time.

PN765

How many days a week do you work?---Two days a week.

PN766

You have prepared a statement for the purposes of this application before the tribunal. Is that correct---Yes.

PN767

Have you reviewed the statement recently?---I have, yes.

PN768

The matters set out in it are true and correct, subject to one change that we'll come to in a moment?---Yes.

PN769

I think you just wanted to make a change in paragraph 3. Is that right?---Yes. Instead of "at my direction" it's "at my request".

**** DANIELA DEMARTINO XN FERNON
PN770

Apart from that change the matters set out in the statement are true and correct?
---Yes.

PN771

I tender the statement if the court please.

PN772

VICE PRESIDENT WATSON: Statement of Ms DeMartino will be exhibit F9.

EXHIBIT #F9 STATEMENT OF MS DEMARTINO

PN773

MR FERNON: There are a number of documents that you refer to in your statement. The documents we understand to have been filed in the tribunal.

PN774

VICE PRESIDENT WATSON: Yes, and form part of the exhibit.

PN775

MR FERNON: The first document - perhaps may I clarify. In marking the statement as F9 does the tribunal regard the documents referred to as tendered or is it necessary to tender each one?

PN776

VICE PRESIDENT WATSON: No, the attachments to the statement form part of F9.

PN777

MR FERNON: Thank you.

PN778

Going to the document which you have referred to as document A, was that a document that you yourself prepared?---No.

PN779

Could you tell us where or how that came to be prepared?---That was prepared by another industrial officer of the national branch - our national office, excuse me, and our accountant.

PN780
**** DANIELA DEMARTINO XN FERNON

What's the comparison that's made in the document?---The comparison is between the draft Pizza Hut Award as found on AMOD and their rates as compared to the modern - the Fast Food Industry Modern Award from 1 July 2010.

PN781

Some parts are shaded yellow. What's the yellow to indicate?---The yellow indicates - where one sees yellow the Fast Food Industry Award betters the draft award in the rate.

PN782

COMMISSIONER ROBERTS: I don't see yellow in the copy that I have?---You don't have a colour copy?

PN783

Apparently I have only a photocopy.

PN784

MR FERNON: Shaded perhaps, yes. Maybe it's the shaded areas, yes. I think it's actually shaded on my copy so it's fine.

PN785

DEPUTY PRESIDENT IVES: Mine too so it's - we can read yellow into it, don't worry.

PN786

MR FERNON: We can supplement two additional - - -

PN787

DEPUTY PRESIDENT IVES: I think we can treat shading as the new yellow, Mr Fernon.

PN788

MR FERNON: Certainly would - it might be of concern to have a yellow car but apart from that - all right, thank you.

PN789

There's also a document which is headed Rostered Hours as part of that document A?---That's correct.

PN790
**** DANIELA DEMARTINO XN FERNON

What is that based upon?---There was a roster which was attached to the statement of Nicholas Hosking and the industrial officer who compiled this comparison of rates used that roster to form a comparison here so that you could look at the total weekly wage in a given week without public holidays and see whether or not that employee was better off under the Fast Food Industry Award or the Pizza Hut Draft Award.

PN791

The next document is document B. That comprises two parts; one, a submission of 1 August 2008 and the second part a submission of 10 August 2008. Correct?---10 October.

PN792

10 October 2008?---2008, correct.

PN793

The first document, that of 1 October 2008, is a document of 41 pages together with an additional page headed Schedule 1. Is that so?---Yes.

PN794

The document which is dated 10 October 2008 is a document of 42 pages together with a document headed Schedule 1 consisting of 25 pages?---Correct.

PN795

I have just gone through that, if the tribunal please, because there was some question in our mind as to whether the document that appeared on AMOD was the complete document. I can trust that your Honours have the complete version of the particular - of the document there. Thank you.

PN796

VICE PRESIDENT WATSON: Yes.

PN797

MR FERNON: Document C is also referred to. I don't need to go to that. The document which is described as document D, could you tell us the derivation of that document?---Yes. The New South Wales branch compiled an analysis of a local pizza competition of Pizza Hut stores in New South Wales, a comprehensive document.

**** DANIELA DEMARTINO XN FERNON
PN798

So it's Pizza Hut stores in New South Wales with the nominated competitors within an area of two kilometres of the Pizza Hut?---That's right, and where there isn't a competitor within two kilometres it's highlighted in pink.

PN799

Together with the other information that's set out in the document which includes reference to trading hours and whether or not there's delivery and phone orders?
---Phone orders, that's correct.

PN800

Document D also includes a similar exercise done in respect of KFC stores. Is that right?---That's correct, yes.

PN801

The next is a large folder, document E.

PN802

DEPUTY PRESIDENT IVES: Sorry, Mr Fernon, just to interrupt you, you raised the issue of whether the documentation was complete, under tab B was complete, and appears not to be in mine.

PN803

MR FERNON: We will attend to that.

PN804

DEPUTY PRESIDENT IVES: Yes, all right.

PN805

COMMISSIONER ROBERTS: All I have is actually the stage 1 class 2 Industry - - -

PN806

DEPUTY PRESIDENT IVES: The August submission not the October submission or the attachment to it.

PN807

MR FERNON: Is that the same?

PN808
**** DANIELA DEMARTINO XN FERNON

DEPUTY PRESIDENT IVES: I have the October one.

PN809

VICE PRESIDENT WATSON: I've got October but I have no C in mine. Is there meant to be a C there?

PN810

MR FERNON: Document C? Yes, there's meant to be a document C.

PN811

VICE PRESIDENT WATSON: Maybe it has become untabbed, I don't know, but there's not - - -

PN812

MR FERNON: It's the Ibis World - document C is the document which is headed Ibis World. It's Ibis World Industry Report 6 June 2008.

PN813

COMMISSIONER ROBERTS: No, you have skipped it in mine.

PN814

MR FERNON: I see. We'll attend to that.

PN815

The document that you have told us is document E, that's a document that was compiled by you?---Yes.

PN816

Could you tell us what you have done to prepare document E?---In order to gain the information for document E I conducted a Yellow Pages online search under the category of fast food and the location was all states of Australia.

PN817

DEPUTY PRESIDENT IVES: I don't appear to have a document E.

PN818

COMMISSIONER ROBERTS: I have no document E either.

PN819

DEPUTY PRESIDENT IVES: Nor do I, or an F for that matter.

PN820
**** DANIELA DEMARTINO XN FERNON

MR FERNON: I'm sorry, I have it in a separate file.

PN821

DEPUTY PRESIDENT IVES: All right.

PN822

MR FERNON: I'm pleased to see that your - - -

PN823

VICE PRESIDENT WATSON: We have document F.

PN824

MR FERNON: - - - folder is coloured yellow.

PN825

COMMISSIONER ROBERTS: No, it looks slightly shaded to me.

PN826

MR FERNON: All right. So that's a material that you have prepared based on your online search using the parameter of fast food in respect of Yellow Pages listings - - -?---Online.

PN827

- - - online within Australia?---That's correct.

PN828

You've prepared a short summary document at the front?---Yes.

PN829

You make an observation about your summary in respect of Hungry Jack's. Is that so?---Yes.

PN830

You've listed in your summary document, Hungry Jack's in respect of the Victorian stores is zero?---Yes, in relation to the actual online Yellow Pages search, when one conducts a fast food search there were no listings under the heading Hungry Jack's for any of the Victorian stores and they were quite limited for the rest of Australia.

PN831

You've done a subsequent - a different search in respect of Hungry Jack's, have you?---That's correct.

**** DANIELA DEMARTINO XN FERNON
PN832

What is the search that you've done there?---That was an - a retail - inside retailing search which is under the Hungry Jack's tab, and from memory, I don't have it in front of me right now, there were 63 stores in Victoria.

PN833

That's something that we'll come to later. Now, the next document again is in a folder described as document F. Could you tell us whether you prepared document F or you did it with yourself and somebody else?---It was initially prepared by somebody else with information gained from all of our branches and correlated by another industrial officer and then I further requested more information from a few other branches and it was added to.

PN834

What does it - what does document F do?---Document F is tabbed by states, and the state branches went out and conducted a competition - a local competition analysis of some sample Pizza Hut and KFC stores. They chose the area.

PN835

So in respect of New South Wales there is a sample competition exercise done in respect of KFC and Pizza Hut in the Newcastle and northern New South Wales area. Is that right?---Yes, the Newcastle and northern New South Wales Branch conducted the search (indistinct)

PN836

In the other states, there's also samples done in respect of competition relating to Pizza Hut and KFC stores?---That's correct.

PN837

Was there any particular parameter used for measuring an area or the extent to which the competition arose?---Initially, not to my knowledge. I think they were asked to look at local competition, so they defined that themselves.

PN838

In that way? All right. So what we end up with is the earlier document, document D is a comprehensive New South Wales document, and document F, in respect of the other branches of the SDA is a sample of competition in respect of Pizza Hut and KFC stores?---That's correct.

**** DANIELA DEMARTINO XN FERNON
PN839

Now, in the South Australian tab of document F there was a reference to a Pizza Hut on the third page of that South Australian tab, the first item listed as the corner of Bains Road and Panalatinga Road, Morphett Vale?---That's correct.

PN840

Have you made some further inquiries in relation to that entry?---I have, yes.

PN841

What have you done?---I went onto the Pizza Hut web site, the find a store tab, or it might be called "Find your nearest store", sorry, so I got that wrong. I searched under Morphett Vale and the closest one which came up was a Pizza Hut location just around the corner from there on - is it Panalatinga - excuse me for incorrect pronunciation - Road in - - -

PN842

Woodcroft?---Woodcroft. Thank you.

PN843

Thank you. Could I just show you this document? Is that the search that you did?---Yes.

PN844

Yes, I tender that.

PN845

VICE PRESIDENT WATSON: It will be exhibit F10.

EXHIBIT #F10 INTERNET SEARCH

PN846

MR FERNON: You make the observation that the Pizza Hut that you have now identified is near to the corner of Panalatinga Road and Bains Road?---Yes. It seems to be not too far a distance away, near Kampala Road.

PN847

Next is document G. Could you tell us what is the basis of the preparation for document G?---Certainly. I conducted a search using online Yellow Pages once again for the stores of the franchisee witnesses for Pizza Hut and looked at the proximity of other outlets who identified themselves as being fast food outlets within around about a 2 kilometre radius - - -

**** DANIELA DEMARTINO XN FERNON
PN848

How do you determine what the radius is in respect of those particular outlets?
---There's a search function on the online Yellow Pages whereby you can enter an area and the category and then you can actually enter in your location and then from there it will allow you to search - it will produce the most recent - sorry, the outlets closest to you and actually give you a distance in kilometres from that location.

PN849

Next document H is a document that you've prepared?---Yes.

PN850

Could you tell us firstly what the derivation of that document is?---That's a document which identifies large fast food chains in Australia that come under or are transitioning to the Fast Food Industry Award.

PN851

Is there a change that you wish to make in respect of document H?---Yes, there is. Domino's has been withdrawn.

PN852

Why is that?---They have their own enterprise award.

PN853

In respect of the others that are listed, is it the case that they do not have an enterprise award?---That's correct.

PN854

May I tender an amended document H to reflect the change mentioned by deleting the entry for Domino's? Does your Honour wish to mark it?

PN855

VICE PRESIDENT WATSON: We'll just regard that as a replacement document, I think.

PN856

MR FERNON: Thank you.

PN857
**** DANIELA DEMARTINO XN FERNON

Now, in that document H, you have under a heading Fast Food Type entered various descriptions as pizza, sandwich/salad, hamburger, chicken, et cetera. That's to indicate the nature of the fast food in respect of that particular chain?
---That's right.

PN858

You have, in respect of - a number of the chains nominated use the words "freshly prepared". What does that mean?---Well, when one goes onto the web sites of these companies, of these stores, they - that's paraphrased, "freshly prepared". A number of them will express that they make it - they make your pizza fresh to order, that they use fresh ingredients, that it's made fresh for you. So that's paraphrased, but it's indicated on their web sites.

PN859

So if they have that sort of entry on the web site?---That's correct.

PN860

In respect of the chain Eagle Boys, have you made some inquiries in relation to the manner in which the pizza is prepared in an Eagle Boys chain?---Yes, I have.

PN861

What inquiries have you made?---I inquired - I contacted our New South Wales branch and inquired to see if we were able to find out whether or not their dough was freshly prepared or frozen, they then called around to force separate stores in New South Wales and the ACT and were informed by all four that their dough - they make their dough to last 48 hours, the only frozen dough they use is a gluten free dough because there's not as large a demand for gluten free, so they don't make that freshly every day.

PN862

But otherwise they do?---Otherwise they do.

PN863

Or at least it's reported to you?---At least it's reported to me, that's correct.

PN864

Now, you've also made some inquiries in relation to the method of preparation of Domino's pizzas?---Yes, I did.

**** DANIELA DEMARTINO XN FERNON
PN865

What have you done in relation to that?---I searched their web site and under the section where it sort of invite you, if you're interested, in becoming an employee, there are some little videos that they have embedded within the web site. I clicked on one of those and it showed how, you know - how one works at Domino's and the kind of work that one might expect to do there. There was a video there showing them making the dough, measuring the yeast and actually preparing the dough there back of house and then making the pizzas.

PN866

Are pizzas something that you make?---Yes.

PN867

Was what you saw the sort of way that you make a pizza?---I certainly measure my yeast. It's very important.

PN868

Lastly, there's a document that you've attached as part of your statement, document I, the IBISWorld Industry Report of September 2010?---That's correct. That's the latest.

PN869

Thank you.

PN870

VICE PRESIDENT WATSON: Mr Kite.

PN871

MR FERNON: Sorry, there is one further thing which I'm grateful for being reminded.

PN872

Have you prepared a document relating to a comparison of the proposed Pizza Hut award in this application, the Fast Food Industry Award?---Yes, along with another colleague.

PN873

Thank you. Could I show you a document. Is that the document?---That's the document, yes.

**** DANIELA DEMARTINO XN FERNON
PN874

So I tender the document. Your Honours, at this point could I simply tender one document, and we'll provide additional copies.

PN875

VICE PRESIDENT WATSON: Yes, that will be exhibit F11.

EXHIBIT #F11 COMPARISON OF PIZZA HUT AWARD

PN876

MR KITE: Can I just observe, your Honour, that the (indistinct) I doubt that it's a matter that I would seek to cross-examine the witness about anyway (indistinct) submission.

PN877

MR FERNON: We see this as a submission document. It's a summary of documents. It's either right or it's wrong, but it's sought to be advanced as a full summary and Ms DeMartino has been involved in the preparation of the documents, so we tender them at this point rather than any submissions.

PN878

VICE PRESIDENT WATSON: Yes. Thank you.

PN879

MR FERNON: We don't suggest that it should be in way controversial. It should be accurate and we'll tend to that.

PN880

VICE PRESIDENT WATSON: Yes. Mr Kite.

<CROSS-EXAMINATION BY MR KITE [10.29AM]

PN881

MR KITE: I take it DeMartino is an Italian heritage name?---That's correct.

PN882

You told us that you started work in March this year as an industrial officer on a part-time basis. Have you had any prior involvement with the SDA?---No.

PN883

Any other union?---No.

**** DANIELA DEMARTINO XXN KITE
PN884

Have you had any involvement in anything that might be described as the fast food industry?---No.

PN885

I take it that in your role as an industrial officer, you do not go in the field and visit stores or outlets for the purpose of doing your job?---No, that's correct.

PN886

I suspect, like most of us, you've visited various fast food outlets, whether they're sandwich shops or Pizza Huts or KFCs?---Yes.

PN887

But as a consumer?---Yes.

PN888

Then (indistinct) purchases from those outlets.

PN889

VICE PRESIDENT WATSON: Somewhat hesitant consumer advice.

PN890

MR FORRESTER: We won't ask who the consumer is.

PN891

MR KITE: You've told us, basically, how these various documents have been prepared?---Yes.

PN892

The document A, was that prepared at your direction or request?---It was prepared at the direction of another colleague and I cast - I don't know if that's the correct word. I looked over it.

PN893

Did you ask that it be prepared by your colleague?---No.

PN894

Just a voluntary thing on that person's part, or did somebody else - - -?---No, somebody else, sorry. My colleague directed that that be prepared by another colleague.

**** DANIELA DEMARTINO XXN KITE
PN895

Do you know what instructions were given to the person to prepare it as to what should be included and what should not?---No, I don't.

PN896

In terms of permanent comparisons, there is no allowance made for any training wage, is there?---Could you please specify?

PN897

You understand that national training wages may be paid under the modern fast food award?---I have a very vague knowledge of that.

PN898

You understand that grade 5 and grade 4 are training type positions under the Pizza Hut award?---I understand that grade 5 is.

PN899

But not grade 4?---But not grade 4.

PN900

All right. Well, in respect of grade 5, have you done any comparison based upon a national training wage applying?---No, I haven't, no.

PN901

Looking at the casuals, do you know how the calculations were made in relation to penalties?---For the casuals?

PN902

Yes?---No, I can't say with certainty.

PN903

I know you haven't done these calculations, but if I could ask you to compare, for example, the permanent grade 3 to the casual grade 3?---Is this for the Pizza Hut - - -

PN904

The two pages that you've got, one for permanent grade 3 versus MFFA level 1?
---And a casual grade 3. Yes.

PN905
**** DANIELA DEMARTINO XXN KITE

And a casual grade 3 versus MFFA level 1?---Yes.

PN906

We see the MFFA rate during the day is - take the 10 am rate on Monday, 16.47 whereas the Pizza Hut rate is 17.80?---Yes.

PN907

Now, to get the casual rate, one would add 25 per cent to the MFFA rate?---Yes.

PN908

That produces a rate of $20.59?---Yes.

PN909

The casual Pizza Hut rate is 22.25?---As I see it here, yes.

PN910

Now, the 9 pm rate requires an additional 10 per cent loading in the MFFA award?---Yes.

PN911

What I want to suggest to you is that there's an error in this calculation in that if one were to add an additional 10 per cent of the $16.47, one would get a rate of 22.23, not 22.65?---My understanding is that it's for evening rates under the fast food industry award. It's the casual rate plus 10 per cent.

PN912

That's your understanding?---Yes.

PN913

That's the basis on which you understand this has been prepared?---Well, looking at it, if you're just doing a very quick calculation it's got $20.59 plus 10 per cent, so another $2.06. So that brings it up to 22.65. So just looking at it here, how it's been calculated, that's an additional 10 per cent on top of that casual rate.

PN914

Yes. I'm not sure it exactly works out, but I understand what you're saying, that the 10 per cent has been added on to the 25 per cent loading. So there's penalty on penalty?---Yes.

PN915
**** DANIELA DEMARTINO XXN KITE

What I want to suggest to you is that's not the way the MFFA award operates at the 25 per cent loading, and the 10 per cent loading are on the base rate?---May I refer to the - - -

PN916

Absolutely?---- - - industry award?

PN917

Have a look at clause 26.2(a)?---Yes. (i)?

PN918

Pardon?---(1), sorry. Thank you. Yes, "A loading of 10 per cent will apply for ordinary hours of work within the span of hours between 9 pm and midnight, and for casual employees this loading will apply in addition to the 25 per cent loading."

PN919

You've interpreted that to mean 10 per cent on the 25 per cent?---Yes, because it varies to 26.2(c), which is Sunday work, (ii) which says, "A 75 per cent loading will apply for all hours of work on a Sunday for casual employees inclusive of the casual loading." So the wording is different there.

PN920

Yes. Indeed, it's different again on Saturday?---Yes.

PN921

You're aware of the general decision of the commission on penalties and casual rates? That they're intended to be calculated on the base rate?---I'm aware of the intention.

PN922

In any event, whichever one is right we can debate that before the tribunal later. Just to understand the way you've calculated it, that's the way you've gone about it?---Well, I didn't do these figures.

PN923

That's the way you understand it?---That's the way I understand it was done because on the Fair Work Australia site, which actually breaks down the calculations of penalties and loadings, I believe that's actually how they showed they calculated evening work.

**** DANIELA DEMARTINO XXN KITE
PN924

There may be an error or two. You have to address that one with (indistinct) won't we? But if it was calculated the other way, what I want to suggest to you is it comes down to about $22.23. So if you look at the 9.00,10.00, 11 pm rate, that would in fact be white rather than yellow, wouldn't it, those columns?---It would bring back - did you say it would be 22.23?

PN925

22.23?---So there would be a two cent difference and it would be in white. I accept that. I haven't got a calculator but I trust you.

PN926

I appreciate what you can do with a calculator. The alternative way of looking at these tables is that wherever it's white, the Pizza Hut is award is ahead in terms of rates?---Yes, that's correct.

PN927

Now, you've told us about the rostered hours calculation which is the last part - last page or so of document A. Are you aware of how this was assembled? You've told us it's based on a roster attached to Mr Hosking statement?---Yes.

PN928

Do you know where the gradings came from?---No. I think they were assumptions made.

PN929

They were assumptions? Do you understand any particular reason why Nikki, for example, appears twice and James appears twice?---I think there may have been - I haven't got a copy of the original roster in front of me. I can only imagine it was done to just give two variations.

PN930

So you have no particular knowledge of - - -?---No, I don't.

PN931

But it's intended to be based on the information attached to Mr Hosking's statement?---Yes, just using the hours that's on Mr Hosking's statement.

**** DANIELA DEMARTINO XXN KITE
PN932

And making assumptions about gradings?---That's right.

PN933

What I want to suggest to you is Nikki is shown as a shift supervisor, which would be a grade 1?---I don't know.

PN934

Equally you've made assumptions - whoever has prepared it has made assumptions about their employment status, that is permanent versus casual?
---That's correct. I know how that assumption was made.

PN935

How was that?---If you look at those who have been assumed to be casuals, so that's Ash, Lachlan, James and James, they all indicate that they have two hour shifts.

PN936

So the rest have been assumed to be permanent?---Yes. We couldn't - well, one couldn't assume that they were casuals because - for that reason. One had to assume that the four listed there as casuals are casuals because they have a minimum two hour shift.

PN937

You would accept that the best way to do such a comparison would be to actually look at the gradings and the employment status of those individuals and make the calculation that way?---The best way to do it would depend on your definition of "the best way".

PN938

You wouldn't accept that's the best way? Is there another definition of "best" that you would prefer?---Well, the best way in terms of saying "this is what that person earns", yes. But as a sample - - -

PN939

Was there any particular reason why Mr Hosking's roster was chosen?---I don't know.

**** DANIELA DEMARTINO XXN KITE
PN940

Now, you attached document B, and that was two versions, one - the first was one of to 10 October?---Yes.

PN941

You refer in your statement to extracts from that document on page 2 of your statement - - -?---Yes.

PN942

- - - paragraphs 12.1 and 12.2. Do you suggest that the authors of that document had the same definition of the fast food industry as you?---I don't make any suggestion in terms of this.

PN943

You make no judgment either way?---No, I'm not making a judgment. This document was submitted before I came along on this, but I am identifying this document.

PN944

Would you accept that at the time this document was prepared and submitted, there was provision for modern enterprise awards in the legislation?---I don't know. Sorry.

PN945

The way you refer to the schedule attached in terms of what was sought as a modern fast food industry award, you don't suggest that application was successful, do you?---No, I make no suggestion of that.

PN946

You told us a bit about document D, and in a sense it relates to document B and F and perhaps G as well. They're all intended to be competition and comparison documents, are they not?---Yes.

PN947

Did you adopt any particular definition of "competitor"?---No. I didn't request this particular search of New South Wales.

PN948
**** DANIELA DEMARTINO XXN KITE

The New South Wales document can - the criteria were developed by the New South Wales branch?---Yes, they developed the criteria.

PN949

You don't know what they were?---Well, competition within two kilometres of pizza. So they compared pizza - - -

PN950

They found pizza outlets?---They found pizza outlets within two kilometres of the Pizza Hut stores listed.

PN951

That was their definition of competition as far as you understand it?---Yes.

PN952

Do you know - did you undertake any further inquiries to see whether any of these outlets said to be in competition were employers?---No.

PN953

Did you undertake any inquiries as to whether they operated under any particular industrial instrument?---No, I didn't.

PN954

That's true, is it not, of documents F and E as well?---Sorry, F and E of the Yellow Pages and the and the other - - -

PN955

Yes?---Yes, I don't have a copy of those here, sorry. Yes.

PN956

Well, if you need them - you might need a copy of document F in a moment?
---Okay.

PN957

In terms of document E which was your Yellow Pages search, you told us how you (indistinct) them back. Of course I think you've acknowledged in your statement there's a limitation based upon who enters into Yellow Pages and who doesn't?---Yes.

PN958
**** DANIELA DEMARTINO XXN KITE

Similarly, you don't know whether any of these people are employers or not?
---That's correct.

PN959

You don't know what industrial instrument, if any, applies to them?---That's correct.

PN960

Indeed, you don't know if they actually aren't supplied as retail food?---What I know is that they're identified themselves as being fast food in the Yellow Pages.

PN961

Having some relationship to fast food perhaps. They could be fast food equipment suppliers?---Perhaps, but - - -

PN962

You don't know, and I'm not questioning - - -?---I don't know. Yes.

PN963

- - - anything, I'm just identifying a number of possibilities. Your search in relation to Hungry Jack's, for example, of the Yellow Pages listing illustrates one difficulty of that approach. On your summary document you identified Pizza Haven but not Eagle Boys. Is there any particular reason for that?---Sorry?

PN964

I'm sorry. You've got your pie chart?---Yes.

PN965

Which is simply an extrapolation - - -?---That's exactly correct. That's right. That pie chart came from the data on the page after the Yellow Pages listing for fast food Australia.

PN966

Unlike the earlier document, the wage comparison document, one really does need a colour version of this to understand it, otherwise it's all going to look pretty shaded.

PN967

VICE PRESIDENT WATSON: It could in fact be a pizza chart, couldn't it?

**** DANIELA DEMARTINO XXN KITE
PN968

MR KITE: It could be. That little white slice is probably the one I'd be allowed to have.

PN969

But you do need to look at that colour coding. Your chart indicates that McDonald's is amongst the chains, the biggest with KFC the next largest and then Pizza Hut, Domino's and Red Rooster, it appears, all having a fairly equivalent market share. But looking at the next page - - -?---Yes.

PN970

- - - your summary of the Yellow Pages listing. You have Domino's Pizza listed there under the fast food modern award companies?---No, sorry. Can I make - can I just clarify this?

PN971

Sure?---At the top it says Fast Food Modern Award Companies, to the right of that you have the figure 15,980, so these are the number of outlets who would fall under the fast food modern award. Underneath that to the left-hand side you see the others collected together, fast food companies with the own enterprise awards, and so the number for fast food modern award companies was reached by taking the fast food companies with their own enterprise award total number out of the total search listing figure, which was 17, 621. That's how the 15,980 was arrived at, based on the Yellow Pages online search.

PN972

DEPUTY PRESIDENT IVES: So 17,621 minus 369 minus 219 et cetera comes out to 15,980?---That's correct.

PN973

Okay.

PN974

MR KITE: Your number of stores there shown are a summary of what comes up in these documents?---That's right. So I went through and hand counted.

PN975
**** DANIELA DEMARTINO XXN KITE

You're a patient lady?---It took many, many hours.

PN976

But for example Domino's has, I want to suggest to you, more than 220 stores. It's more like 413?---That's correct. There were 220 listings which I extracted -counted, sorry and then extracted into the next section which is tabbed for each of those companies. So they're the results.

PN977

Can I just ask you, I understand how you've got the companies broken down, then behind what in my document is a red divider there's a document headed Fast Food Companies Throughout Australia Covered By The Fast Food Industry Modern Award as listed in the online Yellow Pages as at those dates?---Yes.

PN978

Then there follows a series of tabs which all seem to be results of searches?
---That's right.

PN979

So behind tab A, 17,606 results with takeaway food, all states. Top left corner?
---Yes.

PN980

Then behind B, 17,607 results, takeaway food, all states?---Yes. It could - - -

PN981

What's the difference between A and B?---There isn't - it just would have been at time of printing. Literally if you were to go on now, you would have a slightly different figure there, so some companies must be taking off their listings and others would be adding on, so it does fluctuate slightly.

PN982

Otherwise these tabs simply divide the 17,000-odd in alphabetical order?---Yes.

PN983

I didn't notice that until just then?---Okay.

PN984

But all of those are subject to the limitations I raised with you earlier about whether their employers, what industrial instrument they apply?---And whether or not they're in Western Australia and sole partnerships, et cetera.

**** DANIELA DEMARTINO XXN KITE
PN985

What - prior to the fast food modern award there was a national fast food retailing award which did not provide for loaded rates or penalties and the like, is that right?---I'm not familiar with it. As I state before, I joined the union in March so I wasn't around.

PN986

Do you have any knowledge at all of the industrial regulation of takeaway food outlets?---Prior to the modern award?

PN987

Other than Pizza Hut, KFC?---Do you refer to those who have enterprise awards?

PN988

No, other than those that have enterprise awards?---Other than those who have enterprise awards? Can you repeat the question? Sorry.

PN989

Do you have any knowledge of the industrial regulation of those companies, other than those who have enterprise awards, or those businesses?---As of today?

PN990

No, prior to the making of the modern fast food award?---Some knowledge.

PN991

Do you understand that most of them operated without loaded rates?---No, I did not know that.

PN992

Did you understand anything about the penalty rate regime of those outlets (indistinct) enterprise award?---Not in fast food, no.

PN993

May we infer from your search that in terms of - I withdraw that. Do you suggest that all of those that you've identified in your search are in competition with Pizza Hut, or do you make no suggestion at all?---About the companies listed in the - those - whether or not they're in competition with Pizza Hut?

PN994
**** DANIELA DEMARTINO XXN KITE

Yes?---Are fast food companies - well, fast food outlets in competition.

PN995

Yes?---Yes.

PN996

You say they are?---That fast food companies are in competition with Pizza Hut?
---Yes.

PN997

All of those?---No, not all of this. I can't guarantee that there aren't some strange listings in there that wouldn't, you know - as you pointed out before.

PN998

Subject to the limitations, though?---Subject to the limitations, depending on proximity.

PN999

Why do you say that?---Why do I consider that fast food is in competition with Pizza Hut?

PN1000

Or sandwich shops if you call sandwich shops fast food and Chinese takeaways and Chinese restaurants, are they all in competition with Pizza Hut. I assume your answer is yes?---I would say yes.

PN1001

Why?---From personal experience, if I get home very late at night and there isn't a chance to cook in time, fast food may well be the option and it's not a matter of, "We have to have this, we have to have that," there can be arguments and debates as to what kind of fast food we'll have, so in that sense they're in competition with one another. So we will argue and debate the merits of the different fast food nominated within the household and then someone wins.

PN1002

What - apart from taste, what factors apply in determining which preference might be yours?---Quality. Really it's the quality, and when I say quality I talk about the nutritional value as well of the food.

**** DANIELA DEMARTINO XXN KITE
PN1003

We'll assume you're making no assumptions there, but - - -?---No.

PN1004

I understand what you're saying. Value for money?---No.

PN1005

Not value for money?---No.

PN1006

Delivery?---No.

PN1007

Presumably availability?---Availability, yes, if they're open or not.

PN1008

I'll ask you to have a look at document F. I must say, I haven't turned every page of this in terms of menus, but I couldn't see any Pizza Hut menus. Are there some there?---There should be some there.

PN1009

I know on the schedules it says yes, menu obtained, but for example under the first tab, New South Wales, Pizza Hut Maitland, menu obtained, yes. But I couldn't find that menu.

PN1010

DEPUTY PRESIDENT IVES: Perhaps you should have tried Froggy's when you couldn't find Pizza Hut.

PN1011

MR KITE: I was fascinated by Froggy's and more. I was expecting a fantastic French menu?---No, I can't see one there.

PN1012

I notice that poor old Froggy's is represented as - I withdraw that. Mustafa's Kebab House and Café is said to take - not take phone orders but does do home delivery. Not very convenient really, is it?---There is a Pizza Hut menu there if you just keep going - - -

PN1013
**** DANIELA DEMARTINO XXN KITE

Is there?---Yes, sorry, but it's behind the New South Wales. So if you go past page 33 you then have an orange comparison and after that you get a Pizza Hut menu, if that helps.

PN1014

Well, we feel a little sad that Eagle Boys has got colour photos (indistinct) just looking at your summary table - - -?---It's not mine.

PN1015

It's not yours?---No. None of them are

PN1016

Looking at the table that summarises, or purports to summarise these matters, there appear to be some errors, for example, as to Mustafa's Kebab House and Café, he does in fact take phone orders according to his menu. But when we look at them, for example, BJ's Gourmet Sandwich Bar operates Monday to Saturday, 7.30 to 3 pm. So in terms of evening penalties Monday to Friday, he would have a competitive advantage over Pizza Hut?---Yes.

PN1017

(indistinct) tuck box?---Yes.

PN1018

In his opening hours, he would have a competitive advantage on price of labour over Pizza Hut?---Yes, Monday to Friday.

PN1019

That's the only time he opens?---That's right.

PN1020

You would accept generally that if stores don't operate after 9 pm Monday to Friday, they will enjoy a class advantage over Pizza Hut?---Yes.

PN1021

For later?---Yes.

PN1022

Yes, I think I've asked you about the competition elements of Chinese restaurants and Pizza Hut so I'm not going to take that any further. I did fail to ask you earlier in relation to document E, that summary table behind the pie chart, why there's no reference to Eagle Boys?---Yes. Because Eagle Boys do not have their own enterprise award.

**** DANIELA DEMARTINO XXN KITE
PN1023

So this table - do you know that Eagle Boys owns Pizza Haven?---Yes, I was made aware of that.

PN1024

Do you take the view, notwithstanding that, and similarly with Domino's - sorry, Hungry Jack's, because their enterprise award is limited to Victoria, that they could not move to an enterprise award?---Could you please repeat the question?

PN1025

Let's concentrate on Hungry Jack's?---Yes.

PN1026

Hungry Jack's Victorian stores, they don't have - they're not covered by Hungry Jack's enterprise award? That is, outside Victoria there's an award. Is that right?
---No. The Victorian stores are covered by an award. Outside of Victoria, Hungry Jack's would be - comes under or is transitioning to the Fast Food Industry Award.

PN1027

Do you accept, or do you have the view one way or the other whether Hungry Jack's, because of its award coverage elsewhere, might apply for a modern award nationally?---I don't have a view.

PN1028

But you'd document has been prepared on the basis that if an existing award doesn't extend to an outlet by geographic reference or name, it is not covered by an enterprise award? So Eagle Boys don't have an enterprise award as far as you're concerned, notwithstanding their relationship with Pizza Haven?---That's - well, yes, my understanding is that Eagle Boys do not have an enterprise award and therefore I didn't include them on this list. I can't comment on what happens when they purchase Pizza Haven stores. It's not my area.

PN1029

Have you made any comparisons between, for example, Domino's enterprise award and Pizza Hut's award?---No.

**** DANIELA DEMARTINO XXN KITE
PN1030

You would accept, would you not, that on anybody's analysis Domino's and Pizza Hut are competitive?---Yes.

PN1031

You told us something about "freshly prepared" being a paraphrase and about Domino's, you indicated that you’d made some inquiries on the web site and saw someone producing pizza dough?---Yes.

PN1032

I gathered from your answer that it appeared in that instance that the person preparing the pizza dough was in an outlet?---Yes.

PN1033

You don't know whether they prepare pizza dough in other ways?---I'm not aware of that.

PN1034

In relation to Eagle Boys, did you make - I think you were in the hearing when some evidence was given about Eagle Boys having kiosks with frozen pizzas at airports. Did you, when you made your inquiries of your New South Wales branch, ask them to look into that as well?---No, I didn't.

PN1035

Any particular reason?---I actually didn't catch that. Sorry.

PN1036

As I understood, you were told by your New South Wales branch, someone there, that Eagle Boys make dough that lasts up to 48 hours?---Yes, a maximum of 48 hours.

PN1037

But you don't know whether they, in respect of other products other than the gluten free product, have other mechanisms for production?---No.

PN1038

The IBIS documents will speak for themselves, but did you - I know you attached it to your statement for a particular purpose, but have you read it closely?---I wouldn't say closely. I have read it.

**** DANIELA DEMARTINO XXN KITE
PN1039

Do you have a copy there? Page 41 of the - of document C - - -?---41, did you say.

PN1040

41?---Yes.

PN1041

Firstly in relation to Pizza Haven's, there is a reference to the stores being taken over by Domino's in 2005, at least in New Zealand?---Sorry, that was in regards to Pizza Haven, was it?

PN1042

Yes, under the heading Other Players?---Yes, Pizza Haven estimated market share.

PN1043

Yes?---Yes, acquired by Domino's.

PN1044

Under the heading, Eagle Boys Dial-A-Pizza Ltd, about halfway through that paragraph it says, "During late 2005 the company introduced a series of smaller solution stores which allowed pizzas to be prepared in-store in a third of the time of making a traditional pizza." Did you make any inquiries - did you read that, I should say?---No.

PN1045

So we may take it you made no inquiries as to how they did that?---No.

PN1046

As an experienced pizza maker yourself, would you assume that they've developed an engineered solution?---I'm not sure how they would do that. I can't possibly comment on their methods of preparation.

PN1047

Thank you, Ms DeMartino?---Thank you.

PN1048

VICE PRESIDENT WATSON: Thank you for your evidence, Ms DeMartino. You may step down.

**** DANIELA DEMARTINO XXN KITE

<THE WITNESS WITHDREW [11.11AM]

PN1049

MR FERNON: I call Mr Cummings.

<KARADJI CUMMINGS, AFFIRMED [11.12AM]
<EXAMINATION-IN-CHIEF BY MR FERNON [11.12AM]

PN1050

MR FERNON: Sir, could you tell us your full name, please?---My name is Karadji Cummings.

PN1051

Karadji is spelt K-a-r-a-d-j-i?---That's right.

PN1052

Cummings is spelt C-u-m-m-i-n-g-s?---Yes.

PN1053

Could you tell us your work address, please?---Yes, number 65 Southbank Boulevard, in Southbank.

PN1054

That's your - - -?---Work address.

PN1055

Thank you. Your occupation?---I'm an organiser.

PN1056

Is that with the Victorian branch of the Shop, Distributive and Allied Employees association?---That’s right.

PN1057

You prepared a statement for the purposes of this application before Fair Work Australia?---Yes.

PN1058

Do you have a copy of the statement with you?---I do.

PN1059

Have you had an opportunity to read it in the recent past?---Yes.

PN1060

Are there any matters that you wish to amend in it?---No.

PN1061

Is it true to the best of your knowledge and belief?---Yes. So I tender the statement of Karadji Cummings.

**** KARADJI CUMMINGS XN FERNON
PN1062

MR KITE: I object to paragraphs 5 and 12 in this affidavit.

PN1063

VICE PRESIDENT WATSON: On what basis?

PN1064

MR KITE: (indistinct) it seems it basically relies on (indistinct) application. If he indicates on what basis then I would reconsider it.

PN1065

VICE PRESIDENT WATSON: Are those paragraphs pressed in this application?

PN1066

MR FERNON: Yes, they are. Paragraph 5 is saying who he is and indicating his background. His background in the fast food industry is relevant to this application in the same way that if he had worked at Domino's Pizza or wherever, it's relevant background. The fact that it's KFC and there is a KFC application doesn't exclude it in this application, in our submission. Paragraph 12 is the same as indicating the nature of the work that he's done, the hours that he performed in the fast food industry. 5 through to 12? Well, even more so. Yes, it's relevant background to the application.

PN1067

MR KITE: On that basis, your Honour, I don't press the objection.

PN1068

VICE PRESIDENT WATSON: Yes. We'll mark the statement of Karadji Cummings dated August 2010 exhibit F12.

EXHIBIT #F12 STATEMENT OF KARADJI CUMMINGS OF /08/2010

PN1069

MR FERNON: If the court pleases.

PN1070

VICE PRESIDENT WATSON: Mr Kite.

**** KARADJI CUMMINGS XN FERNON

<CROSS-EXAMINATION BY MR KITE [11.15AM]

PN1071

MR KITE: Mr Cummings, you've been employed as an organiser full-time since 2002?---That’s right.

PN1072

We gather from paragraph 5 that for some time during the 1990s at least you were employed with KFC for about five years. When did that end?---I'm not sure exactly. I know it was around five years because I received a five year service certificate from the company.

PN1073

Have you still got it?---I doubt it. I couldn't say exactly. It may have been six years. It was around five.

PN1074

I'm just trying to get a sense. Did you leave that employment to go directly to the SDA, or did you do something in between?---I worked in another business briefly in between.

PN1075

Just for a brief period?---Yes.

PN1076

What was that business?---In a music shop.

PN1077

A music shop?---A music shop.

PN1078

Then you were recruited as an organiser with the SDA?---Yes, I worked as a casual organiser first and then I became a full-time organiser later on. Whether your status was casual or full-time - I'm sorry, are you saying that some time prior to 2002 you were working as a casual organiser and that in 2002 you became full-time?---I definitely became full-time in 2002. Yes, it would have been prior to 2002 because I did that for 12 or 18 months before.

PN1079
**** KARADJI CUMMINGS XXN KITE

Equally for a short time at least prior to that you were working in a music store?
---That's right.

PN1080

So that would mean you finished working in the KFC store around about 1998, 1999?---I think it would have been 2000, because I definitely remember I was 15 when I started and that I got the five year certificate would have mean it was roughly 2000. It may have been 99, yes.

PN1081

Mate, if don't work it out on your own - so about 99, 2000 is when you had your experience at KFC. Did you only work in one store?---No, I worked across a few stores.

PN1082

What stores were they?---Box Hill, Heidelberg, Reservoir, Preston, one of the two Westgate Stores, the show ground store, Fitzroy, Brunswick, there may have been some I've forgotten.

PN1083

You were a busy man?---I was a casual manager with them, so initially when I was a cook and working on the front counter and when I was at high school I was only at that store because that was the only place I could get to easily. It was later on.

PN1084

As a casual manager you provided relief at other stores?---Exactly, yes.

PN1085

Now, since becoming an organiser have you been to any Pizza Hut stores?---Yes.

PN1086

When was the last one?---A number of years ago now. It was at the time that we were rolling out an enterprise agreement there, except as a customer.

PN1087

Yes (indistinct) customer. So several years ago, the enterprise agreement in Victoria - was it about 2004?---Probably, yes.

**** KARADJI CUMMINGS XXN KITE
PN1088

You were visiting stores prior to that - prior to the making of that agreement?---It was in connection with the roll out of the agreement.

PN1089

So explaining its operation to - - -?---Yes, and getting them to vote, so making sure they understood it.

PN1090

In your statement you say that you visited outlets to speak to employees twice prior to any enterprise agreement?---Once to explain the proposed agreement and then once to get the to vote yes or no with period in between, such that they've read it and understood it.

PN1091

When you say, "Each employee twice," do you mean you have individual meetings with them, or do you speak to them as a group?---It really depends on the store. We ask to do group meetings but it's often not convenient for the managers to call in more people than happen to be working at the time anyway. So I don't recall that when we did that agreement at Pizza Hut there were any more than one person at a time, and it really meant, you know, grabbing a few seconds in between they were doing what they were doing, so you would have to kind of explain in chunks as they made pizzas and served the customers.

PN1092

Is that your general experience?---What do you mean?

PN1093

Well, if you look at paragraph 3, as I understand it, you're describing it as a general activity as an organiser?---Yeah. So the other activities are, we deal with individual union members where they seek our assistance, but that's generally not in the store.

PN1094

I take it you haven't had occasion to speak to Pizza Hut employees on that basis in the last few years?---No.

**** KARADJI CUMMINGS XXN KITE
PN1095

Indeed since the enterprise agreement you haven't had agreement to speak to Pizza Hut employees, have you?---Not that I recall, no.

PN1096

In paragraph 2 you indicate that you had members in the fast food industry and you identify a number of the chains. You say, "A collection of smaller bakeries, specifically bakeries"?---These are outlets in shopping malls so, yeah, they include bakeries and donut places and ice-cream places.

PN1097

Are they chains, like Wendy's and - - -?---Yeah, Wendy's is one. Krispy Kreme Donuts, that kind of - - -

PN1098

Takeaway food outlets, are they of the same character?---Yes.

PN1099

That is, chain stores?---Yes.

PN1100

You don't visit high street sandwich shops and Chinese restaurants?---No.

PN1101

Or anything of that sort?---No.

PN1102

That's not within your area of responsibility?---I don't know that our union has coverage of those shops.

PN1103

Whether they have coverage or not, it's not part of your responsibility?---That's right, yeah.

PN1104

So essentially when you use the expression "fast food industry" you're talking about chain outlets?---Yes.

PN1105

So we should understand what you say in your statement in that context?

**** KARADJI CUMMINGS XXN KITE

---Yes.

PN1106

In terms of chain stores or chain outlets, I gather that you have had reason to visit them in recent years?---Yes.

PN1107

What sort of stores or outlets have you had reason to visit?---McDonald's, Hungry Jack's, KFC.

PN1108

When was the last time you visited a KFC store?---Six weeks, maybe two months ago.

PN1109

What was that in relation to? A new agreement?---No, they were inducting some new employees and we were letting them know about us.

PN1110

So they were inducting new employees and they were inviting you along as a representative of the union to speak to those employees?---That's right.

PN1111

Do you find them at least a cooperative employer?---Yes.

PN1112

They provide you with application forms to staff and do things like invite you along to induction programs?---That's right, yeah.

PN1113

VICE PRESIDENT WATSON: Mr Cummings, could I ask you to have an audible response?---Sorry.

PN1114

That's all the questions. I think there was some nodding there that the transcript might not have picked up?---Got you, thank you, your Honour.

PN1115

MR KITE: I don't think there has been anything other than an affirmative response to my questions I put to you, but that's my fault, I'm sorry, Mr Cummings. Have you had occasion to visit other pizza chains?---Domino's, the last time we rolled out an agreement there.

**** KARADJI CUMMINGS XXN KITE
PN1116

When was that?---I couldn't say exactly. My memory says about 18 months.

PN1117

Apart from addressing the employees do you make any observations about the way in which they work?---Pizza chains?

PN1118

Or at Domino's?---Well, they're reasonably similar to Pizza Hut.

PN1119

On what basis do you say that?---There's a similar profile of employees. They tend to be younger people. The layout of the stores is quite similar. There's a front counter that customers come to and a cooking area out the back and a large oven and a preparation bench and, you know, racks that they put all of their not yet prepared pizzas in; a loading area out the back, garbage bins.

PN1120

Did you make a particular analysis of the work done by employees?---No.

PN1121

Thank you, Mr Cummings.

PN1122

VICE PRESIDENT WATSON: Thank you for your evidence, Mr Cummings. You may step down and you're excused from further attendance?---Sorry?

PN1123

You're excused from further attendance?---Thank you, your Honour.

<THE WITNESS WITHDREW [11.27AM]

PN1124

VICE PRESIDENT WATSON: Is that as far as we can take it today?

PN1125

MR FERNON: Yes, your Honour.

PN1126

MR KITE: It rarely happens but I would just like to know that counsel is going to work this time.

PN1127

DEPUTY PRESIDENT IVES: I'll mark it down somewhere, Mr Kite.

PN1128

MR KITE: Thank you, your Honour.

PN1129

VICE PRESIDENT WATSON: Perhaps we could frame that page of the transcript. We will adjourn now until the next hearing day of this matter which I think might be the 29th of this month. Mr Fernon?

PN1130

MR FERNON: Your Honour, might I just foreshadow one little issue and that arises out of your Honour's - in case your ruling yesterday - in relation to the progress of the matter. My learned friend and I will need to have some discussions but it might be, and I'm just putting it on that basis at the moment just to flag a possible issue if I may, it might be that we would want to make an application for at least some evidence to be heard by telephone or some more convenient means than personal attendance, but if necessary could we deal with that when the matter comes back before the tribunal.

PN1131

VICE PRESIDENT WATSON: Yes. Video evidence is often utilised in this tribunal as long as person is near a video facility, but these matters, as far as possible, should be agreed between the parties.

PN1132

DEPUTY PRESIDENT IVES: I might just add to that, Mr Fernon, if you discuss that and come to a view that video conferencing is a way that you would seek to go, then the earlier you can let the tribunal know about that the better because booking the locations at both ends, there's a priority listing.

PN1133

MR FERNON: Thank you for that indication.

PN1134

DEPUTY PRESIDENT IVES: Yes.

PN1135

VICE PRESIDENT WATSON: Yes, it all assumes that it works. We will have a big test of that in a case between five locations all of next week but - - -

PN1136

MR KITE: Mr Boyce will (indistinct)

PN1137

VICE PRESIDENT WATSON: Mr Boyce will have some knowledge of how the technology measures up. We will adjourn till 29 November.

<ADJOURNED UNTIL TUESDAY, 29 NOVEMBER 2010 [11.29AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DANIELA DEMARTINO, SWORN PN758
EXAMINATION-IN-CHIEF BY MR FERNON PN758
EXHIBIT #F9 STATEMENT OF MS DEMARTINO PN773
EXHIBIT #F10 INTERNET SEARCH PN846
EXHIBIT #F11 COMPARISON OF PIZZA HUT AWARD PN876
CROSS-EXAMINATION BY MR KITE PN881
THE WITNESS WITHDREW PN1049
KARADJI CUMMINGS, AFFIRMED PN1050
EXAMINATION-IN-CHIEF BY MR FERNON PN1050
EXHIBIT #F12 STATEMENT OF KARADJI CUMMINGS OF /08/2010 PN1069
CROSS-EXAMINATION BY MR KITE PN1071
THE WITNESS WITHDREW PN1124