AM2014/305, Transcript of Proceedings [2015] FWCTrans 181 (30 March 2015)

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s.156 - 4 yearly review of modern awards

Four yearly review of modern awards
(AM2014/305)
Penalty Rates

PN203

JUSTICE ROSS: Can I have the appearances in Melbourne first, please. Don't stand otherwise the camera will have trouble following you.

PN204

MS B WILD: If the Commission pleases it is Wild, initial B, for the Textile Clothing and Footwear Union.

PN205

MS G STARR: If it pleases Starr, initial G, for the ACTU and also I appear on behalf of the Australian Workers Union.

PN206

MS S BURNLEY: If the Commission pleases, Burnley initial S, appearing for the Shop Distributive and Allied Employees Association.

PN207

MR N TINDLEY: Good afternoon, Your Honour, Tindley, initial N of FCB Group appearing on behalf of the ARA, ANRA, NRA and MGA in relation to the Retail Award.

PN208

MR S ELLAF: May it please the Commission, Ellaf, initial S for the NRA and the HBIA, appearing with regard to the Fast Food Awards and Hair and Beauty Award.

PN209

JUSTICE ROSS: Thank you, anyone else in Melbourne? Sydney.

PN210

MR BULL: If the Commission pleases, my name is Bull, B-u-l-l, I appear on behalf of the United Voice.

PN211

MS F WELLARD: If the Commission pleases, Wellard, initial F. I seek permission to appear for the Pharmacy Guild, the Australian Hotels Association, the Accommodation Association of Australia and the Motor Inn and Motels Association.

PN212

MR L IZZO: Your Honour, Izzo, initial L, seeking permission to appear on behalf of the Australian Chamber of Commerce and Industry, New South Wales Business Chamber and Australian Business Industrial.

PN213

MR G PARKS: If the Commission pleases, Parks, initial G, appearing on behalf of Restaurant and Catering Industrial.

PN214

MS L CRUDEN: If it pleases the Commission, L Cruden, seeking leave to appear on behalf of the Australian Industry Group.

PN215

MS H KARIANIS: If the Commission please my name is Karianis, initial H, seeking permission to appear on behalf of Clubs Australia Industrial.

PN216

MR S FORSTER: If the Commission pleases, Forster, initial S, for the Australian Federation of Employees and Industries, ALARA and DIA, thank you.

PN217

JUSTICE ROSS: Anybody else? No. Is there anyone present in Adelaide, Canberra or Brisbane? No. Is there any objection to the application for permission to appear? No. Permission is granted in each case. Having regard to the complexity of the matter I think it would be dealt with more efficiently if permission were granted.

PN218

In substance, I don't say this to diminish the other submissions that have been made, there are three that I want to particularly go to following the statement of the Commission released on 23 February which followed our last conference. It is probably convenient to deal firstly or really to note, Mr Parks, the submission you make on behalf of Restaurant and Catering. I note the difficulties that any further slippage would cause for your members having regard to what you've put in previous conferences. I am sympathetic to that position and I don't think any party is proposing any further slippage and we will wait and see what emerges in their oral submissions.

PN219

In relation to the Pharmacy Guild, Ms Wellard, the submission indicates really the timing of evidence to be scheduled in the three week hearing period. What we'll do is deal with, not only that proposition but any other proposition about the scheduling of witness evidence once all the evidence is in. As I indicated on a previous occasion once all the evidence is in we'll also list the matter to deal with any objections to the evidence and following that there'll be a mention at which we'll deal with witness scheduling and those sorts of issues.

PN220

The third submission which is adopted by a number of union parties is that of the SDAs. Can I just go to that now. Once I have finished that and sought the views of parties in relation to particular aspects of it then I'll see whether anyone has anything they wish to say beyond what we've already covered. Ms Burnley, it might be convenient just to go to the SDAs submission now. There are some matters raised here that don't seem to me to be particularly contentious and others that might be. So can I chance my arm at the ones that don't seem to be contentious.

PN221

At paragraph 3 the SDA says that it assumes that the draft timetable whereby employer and union parties file on 28 April and 1 June respectively a list of expert witnesses to be called, et cetera and an outline of submissions and findings they submit the Commission should make based on the expert evidence.

PN222

The SDA states it assumes that this reference to an outline of submission is intended to be an outline directed at and confined to the expert evidence to be relied on. That is correct. I hadn't intended anything beyond what findings - this is the evidence you're going to call, the expert evidence, what findings do you want us to make on that? Any issue about that? I thought that was fairly clear from what is said because it says, an outline of submissions and the findings they submit the Commission should make based on the expert evidence to be filed, so it's only confined to that.

PN223

The next point is that the proposition is the same two dates, 20 April and 1 June, that the reference to the parties filing a list of expert witnesses to be called including their qualifications and the nature of their evidence. The amendment sought is to where it says "and the nature of their evidence", it should read, "and the nature and substance of their evidence." I don't have any difficulty with that amendment provided it applies to both the employer and the union parties in relation to their expert evidence and I had assumed you had intended it to apply to both.

PN224

MS BURNLEY: Yes, Your Honour, I had.

PN225

JUSTICE ROSS: Does anyone have any difficulty with that?

PN226

MR TINDLEY: Your Honour, just from our perspective, just trying to understand. When I looked at the concept of - the outline of submissions and findings, it seemed to me that that would necessarily include something around the substance of the evidence. I am just unsure how far that is expected to go in terms of what is meant by substance.

PN227

JUSTICE ROSS: Ms Burnley.

PN228

MS BURNLEY: Yes, Your Honour, we are wanting more than just, you know, a brief statement to say this is what we - this is, you know, a finding that just says we expect you to find X. There would be something needed to be noted there regarding the substance of what is - because we've only just I think seen the evidence by this - no, we haven't seen the evidence that's actually going to be presented at this stage.

PN229

JUSTICE ROSS: What is the difference between the nature of the evidence and the nature and substance of the evidence?

PN230

MS BURNLEY: I think it's more substantial and given the misunderstandings previously regarding what should or shouldn't be in here we wanted it to be quite clear that it was more than just a blanket statement that needed to be made regarding what the findings should be. That there needed to be some substance put behind it as to why they'd be able to draw that from the reports they're going to be filing for the experts.

PN231

JUSTICE ROSS: It may be that it says, for example, look, from my perspective I think both sides should put in as much information and detail about the expert evidence that they can at the relevant times. That is probably the starting position. It may be that if you're calling two or three experts and you have a range of findings you say that, expert Bloggs will be calling evidence of a literature review nature or based on some empirical research, or whatever it is, that you say will support findings 1, 3 and 7 that you propose, it might be something of that nature. I think the whole process will be made much easier if each side provides as much information as they can as early as they can. Anything else on that point?

PN232

The next point I also think has some merit, but I am assuming it also will apply to the unions, that whilst - when we dealt with the expert evidence we made the point that you'd file at the same time as you're giving an indication as to the nature and substance of the expert evidence. You would also file your outline of submissions that relates to that evidence and the findings you say should be made based on it. The point is made here that, well, for the non-expert evidence which will include the survey evidence, there is no similar step. That is that you don't articulate what findings you're seeking there either. Leave aside fairness to each side so that each of you know what findings are going to be sought to be drawn on it.

PN233

It would also be of assistance to the Commission because that allows us also to test issues of relevance. If some evidence is not relevant to a finding you're seeking to make then why should it be admitted? What is proposed in paragraph 6, although I would say if it is going to apply to the employers it should also apply to the unions, is that when you file your non-expert evidence, let me take hospitality as an example. So on 29 June for the employers and on 10 August for the unions you would file your evidence and you would also file an outline of submissions identifying the findings you're seeking based on that non-expert evidence. So it would then mirror the process we have adopted for the expert evidence. Any issues about any of that?

PN234

Then we move to what I apprehend might be the more contentious matters. At paragraph 8 of the SDAs, and I note I don't need to hear from the range of unions that support the SDA or the ACTU. What is proposed here is that the date for the unions filing their list of expert witnesses be moved from 1 June to 15 June. Do you want to say anything further about that, Ms Burnley, before I ask for comment from anyone else?

PN235

MS BURNLEY: Only briefly, Your Honour. It just allows the union to better prepare and to find and source the expert evidence that we now think that we'll require in this case. So it is just an extra bit of time that we're just seeking there, without trying to delay the whole timetable.

PN236

JUSTICE ROSS: Employer parties. Any comment anyone wishes to make about it in Melbourne first? Ambivalent?

PN237

MR TINDLEY: Your Honour, I think it doesn't prejudice the timetable and I don't think it prejudices us in preparing our case. So I think - we wouldn't stand in the way of it.

PN238

JUSTICE ROSS: Because it's not shifting the date they'll actually be filing their expert evidence and you'll have an opportunity to reply to that in any event. Anyone in Sydney have any different view?

PN239

Then there is the issue of the survey evidence. This falls in two parts. I think the first part is non-contentious because that is what we discussed before and that is that it's in the - if I can describe it as the non-expert phase of the case that deals with the hospitality evidence and the retail evidence. Survey evidence will be dealt with in that part of the proceedings. That was my understanding of where we got to the last time. Does anyone have any different view about that issue before we come to what may be the more contentious proposition around the dates?

PN240

All right. Then what is put by the SDA and supported by the other unions is that employer parties should be required to give notice of the nature of any survey evidence they propose to rely on and two dates are proposed for that. For the hospitality employers it is 25 May and for the retail employers it's 6 July. Well, can I hear from, let's deal with the hospital employers first in Sydney and what do you say about that proposition? And if you're opposed to the date, do you have another suggested date or are you opposed to the whole idea? Who would like to go first, Ms Wellard or Mr Parks - not Ms Wellard - - -

PN241

MS WELLARD: Your Honour, we have no difficulty with those dates.

PN242

JUSTICE ROSS: Does anyone else in Sydney have any difficulty with those dates, I mean amongst the employers not - what if the union - I'll come back to that in a minute. In Melbourne?

PN243

MR TINDLEY: Your Honour, we don't propose to have survey evidence outside the evidence provided by our retail expert unless they want to push our retail expert back to 6 July and include that in the survey evidence I think I'll stay quiet.

PN244

JUSTICE ROSS: What about the union survey evidence?

PN245

MR BULL: We are not proposing any survey evidence apart from expert evidence.

PN246

JUSTICE ROSS: Is any union proposing any survey evidence apart from expert evidence?

PN247

MS BURNLEY: Your Honour, the SDA hasn't decided yet.

PN248

JUSTICE ROSS: When will you let us know? When will you let the employers know? The employers aren't going to call any or, we've just heard they're not. At least not in the non-expert phase of the case.

PN249

MS BURNLEY: Just a moment, Your Honour. Thank you, Your Honour, I was just conferring there. So without knowing what - I'm not too sure whether the Pharmacy Guild may be putting in any survey material, I'm not too sure whether - - -

PN250

JUSTICE ROSS: Ms Wellard?

PN251

MS WELLARD: It is not envisaged at this stage, Your Honour, other than any survey material that will be also dealt with by an expert and filed at that time.

PN252

MS BURNLEY: And also the AI Group I'm assuming is in the same position then.

PN253

MS WELLARD: Your Honour, the Australian Industry Group is intending to file survey evidence in the lay evidence, Your Honour. We have no objection to the 6 July date for filing an outline with respect to that survey evidence.

PN254

JUSTICE ROSS: All right, anyone else want to be heard on that? It doesn't seem like there's any objection to the course proposed, either the dates or what you have indicated about the outline and the material, et cetera. I think the last point you make is - well, really around your capacity to meet - it is based on others meeting their obligations. I would make the general observation that any failure to comply with the timetable will have a significant ripple effect. So I will hear from anyone else who has any other changes but once the timetable is amended to reflect the changes that we have just gone through and anything further that we discuss in the conference, that will be it. There will be liberty to apply in the evidence of some cataclysmic event. You shouldn't assume that you will be given any leeway in the timetable unless you apply for it, there will be a hearing in relation to that. I think it will be incumbent on all of us to make sure that it works and that will require meeting deadlines, filing the material in the form that has been requested in the directions.

PN255

So that deals with the written material that has come in. In addition to that is there anything else anyone wants to say, firstly in Melbourne?

PN256

MR TINDLEY: Your Honour, just to confirm following on from the last conference we raised an issue about an expert's ability to comply with the proposed amended time line. We have now clarified that so we are comfortable with that, Your Honour.

PN257

JUSTICE ROSS: Good, thank you. Anyone in Sydney?

PN258

MR IZZO: Your Honour, Luis Izzo on behalf of ACCI and the New South Wales Business Chamber, just one comment more for noting than anything else. We have sent in some correspondence regarding the scheduling of the penalty rates hearing and how that will sit next to the scheduling of the public holidays hearing.

PN259

JUSTICE ROSS: Yes, that's right. I will put out a short statement on that, Mr Izzo, probably tomorrow morning. It will be to draw parties attention to what you have put, to provide them with an opportunity to put any response in in relation to that probably by 4.00 pm next Tuesday and then we will have a further conference in public holidays, I think Friday of next week, probably around 9.30.

PN260

MR IZZO: Thank you, Your Honour.

PN261

JUSTICE ROSS: I just haven't put it out there. I haven't overlooked it, it is just I think we discussed at the conference you were going to file some material, there would be an opportunity for parties to respond to that and then we would have a further discussion about it. I think the public holidays programming is not as advanced as it is in relation to penalty rates. So we will have a further conference in relation to those issues. Was there anything else from you, Mr Izzo?

PN262

MR IZZO: No thank you, Your Honour.

PN263

JUSTICE ROSS: Is there anything from anyone else in Sydney?

PN264

MR BULL: Just one matter, Bull from United Voice, this is a housekeeping matter. In terms of the hearing dates that are going to be set is it intended that the hearings are principally going to take place in Melbourne?

PN265

JUSTICE ROSS: I think it depends on where the witnesses are. It is something that we would sort out as we get down to that point, Mr Bull. But look I think, what I would endeavour to do is to have a conference like this and try and balance out the interests of the parties, their convenience and those of the witnesses. For example, if you are based in Sydney and AI Group is up there, et cetera, that we don't have all the hearings in the one place. I am not proposing - I know there was an earlier suggestion that we sort of travel around the countryside. I am not as enthusiastic about that idea. It very much depends on if there are, for example, 10 or 15 witnesses in retail that are based in Brisbane, then there's an argument for going there for a day or so to deal with that evidence. At this stage we just don't know. But you will certainly be consulted about that.

PN266

Once all the witness evidence is in, I would ask when you put in a statement identify where the person is or where it's most convenient for them to go. Then we will have the process of dealing with any objections and then we will have a conference to program the scheduling of the evidence and where it will be heard. But I imagine once it is all in I would expect the parties also to confer about that issue, the employers to confer amongst themselves, then to have some discussions with the principal unions in an effort to work out the scheduling, discuss timing and to see what is convenient. I know we are getting ahead of ourselves. When we get to that point I would urge you - people always over-estimate the amount of cross-examination. So it is always best to have at least one or two witnesses in reserve on any one day, that can come in at relatively short notice as we see how we're going by the luncheon adjournment.

PN267

I do not want to have a succession of days that finish at three o'clock. I think we want to get through it. Just because there is three weeks scheduled I don't think that means we work towards all sitting here for three weeks. We should try and get through it as quickly as possible and I think if that means that a couple of witness, it may mean that we sit late to deal with their evidence or they're called in and we don't get to them. That is probably the better alternative rather than wasting time, it will only add to everyone's costs as we go through it as well.

PN268

Anyone else from Sydney? No, all right. Yes, Ms Burnley.

PN269

MS BURNLEY: Your Honour, there was two other points in the SDA submission which might have been missed, points 15 and 16.

PN270

JUSTICE ROSS: Yes, I'm sorry. Yes, you're quite right. You are proposing - this is really in relation to you, Mr Izzo I think.

PN271

MR IZZO: Yes

PN272

JUSTICE ROSS: Yes, the proposition is that prior to 6 March - well, at some point in time relatively shortly - you provide an outline of the subject matters because you know your evidence and you know the two witnesses at least that you are intending to call, the two experts and what is being sought is an outline of the subject matters about which it is proposed they will give their evidence and any letters of engagement. I would suggest the letter of engagement and the request for the report is probably going to cover (a) because that will set out what you have asked them to provide evidence about.

PN273

MS BURNLEY: That's it, Your Honour.

PN274

MR IZZO: Your Honour, in response to what is being sought by the SDA, I am not too certain why it is necessary for our client to particularly file this information in advance of the general timetable. All the other employer parties will be filing the list of witnesses and the nature of evidence on 20 April and I am just not sure what the basis is for us to be subject to a special rule about filing this week.

PN275

JUSTICE ROSS: I suspect the basis is you are the only party that has identified the witnesses you are going to call and so it's assumed on that basis that you have already engaged them and you have the letter of engagement or the request.

PN276

MS BURNLEY: Yes, and Your Honour the last submissions that were put in in writing the ARA and the retailers did identify properly the Deloitte person and what subject matters were covered in some detail. So that was in compliance with those instructions as these two witnesses which were tried to be put into the non-expert phase or the industry specific phase and were just mentioned in one line that they're doing a social report.

PN277

JUSTICE ROSS: Mr Izzo, it arises this way. You will recall the original directions that were put out were dealing with expert evidence that was about the common issues. There was compliance with that request by some of the employer organisations. Then we had the discussion that, well, there's other expert evidence that isn't common in nature but rather is directed at retail and hospitality. I think it was ABIs correspondence where they identified that sort of conundrum about whether - when they call that evidence. I think one part of it at least was directed at one industry and the other witness may have been giving evidence about both sectors or evidence that may be relevant to both.

PN278

I suppose if you've got the information why wouldn't you provide it?

PN279

MR IZZO: Certainly, Your Honour, at this stage the difficulty I have is - and I must say my knowledge is only based on about mid-last week but as of mid-last week neither experts have actually received letters of engagement. So in terms of the scope of their work, whilst we have identified the experts, I am not actually sure that the framework or the scope of their engagement has been settled with certainty. So it may be that it is settled in the coming week but at this stage I am not in a position to confirm that there are letters of engagement, in fact I don't think there are. So at this stage we're not - - -

PN280

JUSTICE ROSS: My recollection, Mr Izzo, at the last conference - I'll need to check the transcript - but I think Mr Ward was indicating a preparedness to provide some information when it became available and I think he was checking when it was going to be available. So can I leave it on this basis that you make those inquiries. I wouldn't propose amending the general directions just to have a specific one for you but bearing in mind that the other employer parties have provided some of this information already. Certainly if you have it at hand it should be provided as early as possible. When we deal with the public holiday matter - will you be there for that Ms Burnley? Will the SDA be there at the public holiday conference?

PN281

MS BURNLEY: Yes, Your Honour.

PN282

JUSTICE ROSS: And either you, Mr Izzo, or someone from your organisation, I am assuming, and will mention at the beginning of that where you've got up to with this, okay. So that will give you time to - without listing the whole - because it only applies really to you or to your organisation. So without listing the whole of the penalty rate matter again we will mention this particular issue at the commencement of the public holiday conference. All right.

PN283

MR IZZO: Thank you, Your Honour.

PN284

JUSTICE ROSS: Anything else from anyone in Sydney? No. Is there anything else anyone else wishes to say? No. Thank you very much for your attendance and we will publish a short statement and revised directions probably tomorrow. Thank you.

ADJOURNED INDEFINITELY [2.05 PM]

Fair Work Commission Transcripts

AM2014/305, Transcript of Proceedings [2015] FWCTrans 181 (30 March 2015)