AM2014/190, Transcript of Proceedings [2015] FWCTrans 261 (5 May 2015)

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PN1

JUSTICE BOULTON: Good morning everyone. We have scheduled this conference, we are in conference but we are going to take appearances. Firstly, I’d ask you to stand when you make your appearances, but after that we will remain seated. I would indicate that we are recording the conference. We might at some stage go off the record, but initially, at least, we are going to record what’s said in the conference. Maybe if we start in Sydney, we might take the appearances in Sydney, and then we’ll move to the other people.

PN2

MS J KNIGHT: KNIGHT, initial J for the ASU.

PN3

JUSTICE BOULTON: Good, thank you.

PN4

MR B FERGUSON: FERGUSON, initial B for the Australian Industry Group. With me is Ms BAR, initial R.

PN5

MR J ARNDT: ARNDT, initial J appearing for ACCI and New South Wales Business Chamber and Australian Business Industrial.

PN6

MR A BAUMGARTNER: BAUMGARTNER, initial A for the Motor Traders Association of New South Wales and the Victorian Automobile Chamber of Commerce.

PN7

MS K MARK: MARK, initial K. I seek leave to appear on behalf of the Pharmacy Guild.

PN8

JUSTICE BOULTON: Yes, thank you. Now, we’ll go to Western Australia, Perth.

PN9

MR A MILLMAN: MILLMAN, initial A on behalf of the SDA seeking leave to appear together with Dustin Rafferty, an employee of the union.

PN10

MR P MOSS: May it please the Commissioner, Paul MOSS, WA Chamber of Commerce and Industry.

PN11

JUSTICE BOULTON: We’ll go to Adelaide next.

PN12

MR B CAGNEY: Your Honour, Mr CAGNEY, initial B for the SDA, SA&NT Branch.

PN13

JUSTICE BOULTON: Thank you.

PN14

MR M SHEEHAN: If it please the Commission, SHEEHAN, initial M. I appear on behalf of the Motor Trade Association, South Australia. Thank you sir.

PN15

JUSTICE BOULTON: Is there anyone else in South Australia?

PN16

MR MILLMAN: No, your Honour. Business SA I think requested the video link but there’s no representative from Business SA here.

PN17

JUSTICE BOULTON: We’ll go to Melbourne.

PN18

MS G STARR: Thank you. If it pleases, STARR, initial G on behalf of the ACTU.

PN19

JUSTICE BOULTON: Thank you Ms Starr. Perhaps the matters that we need to discuss fall into two categories. The first category being Broken Hill allowance, the second category being the applications which have been made by the SDA and the ASU in relation to the inclusion of what might be termed vocation allowances into a number of awards and what we should do in relation to the programming for the hearing of those applications.

PN20

Firstly, if we might deal with the issue of Broken Hill Allowance. That has been the subject of some correspondence to the Full Bench. Some directions were issued by the Full Bench in relation to the filing of submissions and we’ve received various submissions and some correspondence about that matter. It would seem to us that on the basis of what’s been put, that we would be in a position to make a ruling or decision in relation to that matter subject to anything else which the parties are now seeking to put.

PN21

The only matter which might be a matter that the parties wish to comment on is that in the event that a decision is made, and the decision is that the Broken Hill Allowance applies or continue to apply, there might be a possible issue or question regarding the operative date in relation to the application of that allowance and what has occurred in between in particular, 31 December last year or 31 January this year and whenever an appropriate award variation was made. The parties might wish to say something about that.

PN22

Apart from that, we would proceed on the base of what’s been filed to make a ruling or decision in relation to that matter unless anybody is going in the conference this morning to suggest that we should adopt any different course. If there is any different course, now is the opportunity for any party to raise that.

PN23

MS MARK: Your Honour, sorry, Ms Mark from the Pharmacy Guild. We filed on Friday, some correspondence with a draft determination seeking to remove the allowance from our particular award. To confirm you’re suggesting that it won’t be until the hearing at the end of May that you will make a decision in relation to the status of that.

PN24

JUSTICE BOULTON: No, I’m suggesting that we’ll make a decision relatively soon on that.

PN25

MS MARK: Okay.

PN26

MR ARNDT: Your Honour, perhaps it’s a good time for ACCI to say something.

PN27

JUSTICE BOULTON: Maybe it’s better for you to identify yourself each time because it’s going to be easier for people listening to the video conference to know who’s speaking, yes.

PN28

MR ARNDT: Apologies your Honour. Arndt, initial J appearing for ACCI. It’s obviously difficult in the abstract without knowing the result of the Full Bench’s decision in regards to the Broken Hill Allowance.

PN29

JUSTICE BOULTON: That sort of applies in most cases.

PN30

MR ARNDT: I agree your Honour. I guess this submission is to say that what’s already been put in ACCI’s correspondence about the effect of the decision, in what’s termed the February decision of the Full Bench, in allowing the Broken Hill section of the sunset clause’s application. My instructions are if that decision is retained in the Broken Hill Allowance - is retained, subject to the February decision, that ACCI will be seeking to pursue its options in terms of judicial review.

PN31

I appreciate that’s not put very delicately to the Bench, but it’s very difficult this morning, without knowing which way the Bench is leaning to put any meaningful submissions as to what might be a useful way forward. I think we’ll have a position, obviously once the decision comes down. As you say your Honour, you - - -

PN32

JUSTICE BOULTON: You’ve had all the benefit of looking at the submissions, and we’ve now got all the submissions. Without giving the ruling, it’s not possible to give any further indication. The options which you have are for you to consider.

PN33

MR ARNDT: I should just note your Honour, if that course was taken, and I appreciate we’re talking in hypotheticals now - - -

PN34

UNIDENTIFIED SPEAKER: Your Honour, we’ve got very little of hearing ability here in Adelaide, that it’s coming through very softly.

PN35

MR ARNDT: Is that better?

PN36

UNIDENTIFIED SPEAKER: Yes, much better, thank you.

PN37

MR ARNDT: Apologies for that. I should just note that ACCI’s view, should a judicial review application be made, that a seek of the stay of these proceedings would also be made on the basis that it would be inappropriate for the Federal Court to be hearing a matter, essentially on similar issues, particularly in relation to section 154 of the Act, as will be ventilated, no doubt, very comprehensively for the SDA and the ASU applications which we’re due to hear in the coming weeks.

PN38

JUSTICE BOULTON: That again, would be a matter for ACCI and the Federal Court.

PN39

MR ARNDT: Should it be necessary. Exactly.

PN40

JUSTICE BOULTON: If you were to make an application to us, that might be a different matter. That would be an application for us not to proceed to deal with matters.

PN41

MR ARNDT: I appreciate, that’s all right.

PN42

JUSTICE BOULTON: Section 154 has been a feature of the arguments in relation to a whole range of matters that have been before the Full Bench.

PN43

MR ARNDT: It has, your Honour. I just don’t want to put the Bench or any of the other parties in a position where the parties had a chance to speak about what might happen in relation to the Broken Hill issue and ACCI to be silent on things that may come to pass, depending on where the Full Bench goes with it.

PN44

JUSTICE BOULTON: There’s a question of whether there’s an obvious error and if there is, the conclusion might be one thing. If there isn’t, then there’s no power for us to change what has been done. That’s a relatively simple position, isn’t it? You’ve made submissions on that and others have. Unless there’s anything anybody else wanted to say about those matters, then we should proceed to consider the way forward with the District Allowance matters.

PN45

It would seem to me that the best way of starting the conference off, would be for each of the participants to simply summarise, in the case of the applicants, what they’re seeking and what evidence and in one case at least, what inspections they’re proposing and in the case of respondents, essentially what they’re position is. That’s probably going to take us a little while to get through it and I’m only asking for a quick thumb nail sort of summary of what the various positions are. I think that would provide a better basis for us to continue to discuss these matters.

PN46

I’m not sure if ACTU wants to start or if ASU or SDA want to outline their positions. We’ll note that the CFMEU and the Nurses have discontinued their applications, so the only applications I think we have before us are the SDA and the ASU applications. Clearly they’re different applications, so there might be some issues in relation to how they might be programmed for that reason as well.

PN47

Do you want to start off Ms Starr, or do you want the unions to outline theirs and then you tell us the ACTU position, or what?

PN48

MS STARR: Your Honour, it’s probably best for the SDA and the ASU to outline their applications before we make any submissions.

PN49

JUSTICE BOULTON: Good, so do you want to start?

PN50

MS KNIGHT: We don’t want to truncate too much of what the SDA is seeking and we had a short discussion on Friday and happy to go after the SDA.

PN51

JUSTICE BOULTON: Mr Cagney, do you want to start?

PN52

MR CAGNEY: Your Honour, Mr Millman will speak on behalf of the SDA in Western Australia.

PN53

JUSTICE BOULTON: I was looking at Mr Millman, I was just looking at the wrong part of the page. Mr Millman?

PN54

MR MILLMAN: Yes, good morning your Honour. Thank you for the opportunity, and I’m happy to start. As far as the hearing at the end of May is concerned, what the SDA is seeking is the inclusion of, as your Honour correctly described, a location allowance into the awards, the subject of the application. The basis upon which the inclusion ought to be made is set out in some detail in the written submissions that were filed back in March and which have now been responded to by the respondent parties last week.

PN55

The evidentiary basis upon which the legal position is advanced is supported by the materials that were filed, the evidentiary materials, the statutory declarations and witness statements that were filed in support of the application. On the question of evidence, one of the things that we would be seeking this morning, by way of the conference, is some direction from the Full Bench, or some indication from the other parties what’s to be done in respect of the witnesses at the end of May.

PN56

There are two reasons that we raise that. The first reason is that with the exception of the Pharmacy Guild, and I’m happy to be corrected. With the exception of the Pharmacy Guild, I didn’t see that there was any witness material that had been filed in response to the witness material that’s been filed by the union parties. The second reason that we would like some direction or some clarity about what’s to be done with the witnesses, sort of goes without saying when you are doing a location allowance case, and that’s that a number of the witnesses are in rural, remote and regional locations, for whom it would be very difficult to attend the hearing at the end of May in person. That’s one of the things that we would be seeking by way of an outcome at the conference this morning.

PN57

The second thing that we would be seeking guidance in respect to, is reply submissions. It may be, having had a chance to read over the weekend, some of the submission that have been filed by the respondent parties, it may be that the Full Bench and the other parties would benefit from the SDA and perhaps the ASU, but I’ll let the ASU speak to that point. The Full Bench and the other parties may benefit from the SDA having the opportunity to file some reply submissions to the responsive submissions that have been filed by the respondents.

PN58

In the spirit of keeping it a thumbnail sketch your Honour, that’s as close to a thumbnail as I can get.

PN59

JUSTICE BOULTON: There were some issues raised in the submissions by the employers about just what the SDA application meant and whether it was these distances from the capital cities or what. Maybe you could clarify that.

PN60

MR MILLMAN: Yes, your Honour. Sorry, I beg your pardon. I wonder if I can take you to paragraph 47. Your Honour’s question is apposite. The reason that I thought reply submissions might be useful, is because we can address issues such as these. Given that I haven’t done a comprehensive analysis of all of the submissions, no criticism, but the RIG submissions weren’t received until late Sunday afternoon.

PN61

By way of example, if I can your Honour to paragraph 47 of the submissions filed on behalf of the Pharmacy Guild which is on page 7 of their submissions dated 17 April. I’ll take your Honour to 47, and then if I can ask you to continue to have regard to 47, I’ll then take your Honour and the members of the Full Bench to 67.

PN62

At 47, the Pharmacy Guild - - -

PN63

JUSTICE BOULTON: Just hold on for a moment.

PN64

MR MILLMAN: Sorry, sir. Sorry, your Honour, if I can be of assistance, this is on the letter, on the correspondence from Meridian Lawyers. Does your Honour have paragraph 47?

PN65

JUSTICE BOULTON: Yes.

PN66

MR MILLMAN: Thank you, your Honour. The way the clause is worded, I’m just quoting here, “An employee that works at least 450 kilometres from the capital city of any state or capital territory is entitled to the allowance”. The Pharmacy Guild says that this creates uncertainty for employers in locations such as - and then the submissions proceed to list locations.

PN67

By way of clarification, the wording of the clause was chosen specifically to be clear. It’s not 450 kilometres from the state or territory capital city, but rather any state or territory capital city. For example, if you are in Loxton, you may be 678 kilometres from Melbourne, but only 247 kilometres from Adelaide and therefore, under the wording of our clause, not entitled.

PN68

Then if I can take your Honour to 67. It’s a legal question which I hadn’t proposed to canvass in great detail in the conference, but perhaps by way of reply submissions. The Pharmacy Guild states,

PN69

As noted above, if it is the case that the SDA’s proposed clause will apply by reference to the capital city of the state in which the employee works...

PN70

MR MILLMAN: We say that is not the case, but proceed from that erroneous assumption. Then you have a difficulty with Tasmania and with the Australian Capital Territory. The submission in reply to that is just because people in one state might not fall within the eligibility for the payment of the allowance, that doesn’t offend what’s required by section 139 in terms of the way in which the allowance should be calculated. What offends against 139 is what the state based district allowances did, which was why, inter alia, the state based district allowances are no longer in existence.

PN71

What we’re proposing, as your Honour said right at the start, is a location allowance which is calculated by reference to locations, taking into account those matters that are raised in 139(1)(g). They are just by way of illustrative examples, your Honour, they are not exhaustive. The SDA would appreciate the opportunity, as I say, to file some reply submissions so we can highlight areas of uncertainty or ambiguity that has arisen as a result of the respondent’s filing their submissions.

PN72

Alternatively, if no orders are made for the filing of reply submissions, these were matters that the SDA was happy to address during the hearing at the end of May. That’s part of the basis upon which it is put, that some orders, with a relatively short time frame, may be the end of the week next week, submissions are filed by the SDA just responding to those matters that have been raised in the respondent’s submissions.

PN73

Then secondly, if I may, your Honour, the other point that I made was just in respect of the witnesses. This is not a matter that I’ve had the opportunity to canvass with the respondents yet. I was waiting to see what the nature and extent of evidence filed against us was going to be. It may be that there are a couple of ways we can proceed with respect to the evidence on behalf of the applicant, the SDA. Objections taken in the usual way, the witness statements can stand as the witness statements and then submissions can be made on the question of weight. The witnesses can be required to adopt their witness statements and give their evidence in the proceedings. If we go with the third option, we would contend that consistent with the objects of the Act, the best way to do that is to arrange video links, simply because of the geographical location in which a number of our witnesses are located.

PN74

As I say, your Honour, my apologies to the Full Bench. I haven’t yet had the chance to canvass that proposal with the respondents. They’re the two matters that we were hoping to clarify this morning. They’re the submissions on behalf of the SDA for WA and South Australia.

PN75

JUSTICE BOULTON: Thank you. I only raised the wording with the SDA application because I thought the answer was going to be that we intended to put capital city in it, but apparently it’s not as easy as that, what is actually intended to be the precise wording of the proposed clause and from that wording, then what the operation of it is. I thought it was going to be, as it were, a more simple answer to my question.

PN76

MR MILLMAN: Sorry, your Honour.

PN77

JUSTICE BOULTON: I wasn’t intending to sort of get into a whole range of other things.

PN78

MR MILLMAN: I’m sorry your Honour, yes. I appreciate.

PN79

JUSTICE BOULTON: Let’s again, maybe sticking to this, that we really just want a relatively brief explanation as to the position of each of the parties, which will then provide a basis for our further discussion in conference of various matters. Maybe we should go to you Ms Knight, is it?

PN80

MS KNIGHT: That’s right, your Honour. Thank you, your Honours, Commissioner. The ASU application made in September last year is an application across nine industries and 11 modern awards. The submissions made for this particular hearing later in May, do seek the inclusion of district allowances into the modern awards, and for that, as a matter to be ventilated in the hearing. We’ve also proposed a rational system that is as simple as possible in our application. It’s not the same as the SDA’s; it is based on the Australian Defence Force rationale and we’d be more than happy to take questions on that between now and the hearing, on notice.

PN81

With regard to the evidentiary materials filed, similar to the SDA we do seek to understand whether or not our witnesses would be called for that hearing, for a similar reason, particularly in WA. It’s quite difficult to access those locations where Ms Thorn lives in northern Western Australia. In regards to inspections, we’ve proposed that the Commission choose four locations as a matter for them to decide.

PN82

We also noticed that quite a few issues were raised by respondents for the ASU to answer and would seek an opportunity to file submissions in reply, prior to hearing. I think in terms of what the ASU seeks and how we think that the hearing should proceed in May, that that should cover it. Thank you.

PN83

JUSTICE BOULTON: I see. You’re only proposing two witnesses?

PN84

MS KNIGHT: We have two witnesses. What we’re seeking to understand from the employers today, is whether or not there’ll be a need for those witnesses to appear for cross-examination and for the Commission to give us an understanding of that, so that we can be prepared, given their locations. In terms of what the SDA has proposed about objections in those statements and then having them marked, that would be the preference of the ASU.

PN85

JUSTICE BOULTON: In your claim, you’ve actually specified the localities and the allowances which will be paid.

PN86

MS KNIGHT: What we’ve done in annexure A is shown the history to assist the Commission but annexure A is - the ADF, apologies your Honour, you’re right. The ADF locations are listed in our application.

PN87

JUSTICE BOULTON: What you propose is that they’re all the ADF location amounts.

PN88

MS KNIGHT: We’re proposing that we support a simple method of calculation as much as possible.

PN89

JUSTICE BOULTON: What you’ve got in your application is the ADF allowances, is it?

PN90

MS KNIGHT: That’s correct.

PN91

JUSTICE BOULTON: They’ll be adjusted whenever the ADF allowances are adjusted?

PN92

MS KNIGHT: The method for adjustment, I think, would be based on review of modern awards, per se, so perhaps in the four yearly review.

PN93

JUSTICE BOULTON: That would be the Commission would leave it to somebody else to determine, basically, what the adjustments were going to be?

PN94

MS KNIGHT: On the basis that the Commission accepted that the ADF rationale was the best way to include allowances in the modern awards, the variation to modern awards, if those allowances are adjusted, would be a matter of application or for the four yearly review.

PN95

JUSTICE BOULTON: There are two days which potentially are available in May, 28 and 29 May. You’re proposing inspections should take place on those days, before those days, after those days?

PN96

MS KNIGHT: I think that the question of the inspections, we’re proposing that the Commission choose four locations and that we go to hearing on the 28th and 29th to ventilate the content of the submissions and the other witness evidence and then for inspections to occur after those date.

PN97

DEPUTY PRESIDENT KOVACIC: Does the ASU have a view as to what those four locations should be, Ms Knight?

PN98

MS KNIGHT: We haven’t formulated a view, no, but we’ll take the question on notice and get back to the Commission, if that’s what’s required.

PN99

DEPUTY PRESIDENT KOVACIC: The other question, just in terms of the ADF approach and at the risk of going into a level of detail which is probably more appropriate later on in the proceedings, those quantums and those locations determined by the Defence Force Remuneration Tribunal or alternatively are they matters determined either by the relevant minister and/or the Chief of the Defence Force?

PN100

MS KNIGHT: Again, your Honour, I appreciate the question and I’ll have to take that on notice and get back to you. Thank you.

PN101

JUSTICE BOULTON: I think the answer is the latter, from memory of my days on the Defence Force Remuneration Tribunal. Yes, thank you.

PN102

MS KNIGHT: Thank you.

PN103

JUSTICE BOULTON: We’ll go to ACTU, Ms Starr.

PN104

MS STARR: Thank you. The first thing I think I should say is that putting to one side the Broken Hill Allowance which I understand will be subject to a decision shortly and any further steps which ACCI might wish to take in that respect, I just foreshadow that for the applications and for the matters which will be dealt with at the end of May, during the hearing, there may be some ramifications for the affiliate applications specific to Broken Hill depending on what (1) arises from the decision, and (2) what further action ACCI might take in that respect.

PN105

Putting the Broken Hill Allowance to one side, the only other thing which I will raise is that the employers have, I understand, will wish to pursue some jurisdictional and other objections in relation to the applications which have been made. I’m mindful that two days have been set aside for the hearing and I would propose that those jurisdictional issues be dealt with first, prior to the hearing of any of the substantive matters. I think that there might also be some cross-over between the jurisdictional objections which have been made and also perhaps the substance of the clauses and by that, I mean the operation of the clauses which have been proposed. I think, in support of the SDA’s submission that the unions be provided with an opportunity to apply, I think that that’s a good proposal and I think that makes sense so that we can reply to some of those objections with a view to not having to perhaps take up too much time during the hearing to deal with those jurisdictional and other matters.

PN106

Other than to raise that - if I can just revisit the Broken Hill Allowance, your Honour, you raised a question earlier in the conference in regards to the operative date. It would probably be best if we can provide further submissions within today, or if not, tomorrow in that respect, if that would be of assistance.

PN107

JUSTICE BOULTON: We were asking you in the context of the conference, if you had any more to say. There’s been an opportunity for submissions, if people wanted to put in submissions. That was the final matter that I just wanted to see in the conference if anybody wanted to say any more about it. We’re not intending to open up a new avenue for submissions. The submissions have already been put in.

PN108

MS STARR: Certainly, your Honour.

PN109

JUSTICE BOULTON: You know in the past, we’ve resisted the approach of hearing jurisdictional objections without hearing the whole of the case. Half these matters are jurisdictional objections. Anyway, that hasn’t been the approach we’ve adopted so far in terms of dealing with these transitional matters. Yes, thank you.

PN110

MS STARR: Thank you, your Honour.

PN111

JUSTICE BOULTON: We can come back to some of those matters in the course of the conference. Just wanted to get an outline of people’s positions. Now, if we go to the respondents. Do you want to start Mr Ferguson?

PN112

MR FERGUSON: Just in relation to the proposal about reply submissions, we wouldn’t have any difficulty with the unions being afforded to appear. I think the request was not to appear until the end of next week to put on some reply material and obviously that might make the hearing move more efficiently.

PN113

In terms of the cross-examination, we don’t anticipate requiring any of the union witnesses for cross-examination. We would probably want to put a concluded view about that once we’ve received the reply material and we know the full parameters of their case. Perhaps a way of handling that would be for some directions for the parties to advise the unions or the other parties whether witnesses would be required to cross some relatively short period after the date for filing reply material.

PN114

In terms of inspections, we’d see that if the Bench was satisfied there was a need for inspections, that really should occur before the hearing of submissions and so forth, so obviously parties can deal with anything that falls out of that, rather than that somehow happening at a later point in time. That’s obviously if the Bench is satisfied it’s appropriate for it to do inspections, but we’ll leave that to the unions to address.

PN115

In terms of the actual other issues around programming, we think there’d be merit in some sort of direction being given to the parties to prepare, perhaps at least a running list of the order of witnesses to be called, so that we don’t have a sort of situation that we all turn up but the witnesses aren’t available. Obviously that can’t be done until we know if any are actually going to be required for cross.

PN116

JUSTICE BOULTON: At this stage, you are saying you don’t anticipate wanting to call any of the witnesses.

PN117

MR FERGUSON: We don’t anticipate, no, but I believe others might not have a concluded view, or might require some. Just if that is to happen, it would be useful to know what each day we’re going to be dealing with. What I was going to suggest is if it turns out that witnesses are required for cross, it might even be helpful if we decided when we would move into submissions so that we knew what we had to do on what day. Depends obviously if witnesses are required.

PN118

On the jurisdictional point, we don’t see that in this case there’s necessarily a need to deal with that as a separate issue, especially if parties put on reply submissions so those legal issues are ventilated on the papers to a very large degree. It might limit the amount of detailed argument that we have to have, so that there won’t be a need to separate them out. If there’s not a lot of evidence, a lot of cross-examination that will ultimately be required, then two days should be long enough to deal with it anyway, I would hope.

PN119

I wasn’t going to raise anything further, unless there were any questions.

PN120

JUSTICE BOULTON: Good, thank you. Mr Arndt.

PN121

MR ARNDT: In terms of the prospect of the union parties filing reply submissions, there’s no particular in principle opposition to that. I should just note though, that having regard to what’s in ACCI’s submissions and also having regard to what’s in some of the other employer parties’ submissions, essentially, as you say, there are a lot of submissions made from the employer parties which point out what we would put as serious deficiencies in the union applications.

PN122

I should just note that any opportunity to put reply submissions on shouldn’t be an exercise in essentially, filling in the gaps and filling in the information that isn’t there already in the applications. The applications have been made and they’ve been made some time ago. I appreciate the opportunity afforded to the moving parties to assist the Commission in explaining some of the more complex parts of their claims. It shouldn’t be an opportunity however, to fill in the gaps, particularly the gaps that the submissions in response have pointed out. That’s our position in terms of reply submissions.

PN123

In terms of witnesses, we don’t see as it currently stands that we would call anyone, but we seek to confirm that in writing at fairly short order. In terms of the inspection process, there’s not a lot of information as to what that type of arrangement would be. I think we’d probably wish to reserve any submissions on that prospect until we actually saw what the intention was. Just thinking about it, if the inspections were to occur after the hearing date, it may give rise to issues where another hearing date might be needed or, I just don’t know what the actual application for inspection is, so it’s difficult to speak to it.

PN124

JUSTICE BOULTON: I can’t see that you can have inspections other than before any hearings

PN125

MR ARNDT: I agree with you, your Honour.

PN126

JUSTICE BOULTON: In which case the purpose of the conference would be really to hear where it was proposed that the inspections should be conducted and when and to schedule them, because apart from that, we can’t then schedule the hearing of evidence and whatever. Normally with inspections, you are to some extent, hearing evidence, so there might be a consideration to reply evidence. Anyway, that’s what you say about inspections. What else?

PN127

MR ARNDT: If there’s any other matters, do you need any other information from ACCI?

PN128

JUSTICE BOULTON: Generally, your position is to oppose.

PN129

MR ARNDT: Our position is stated in the submissions and that we oppose the applications on a number of grounds both factual and jurisdictional and I hear what your Honour has said about the order in which those two types of oppositions or two types of areas would be heard at the hearing and we are content to go with your Honour’s views and the Full Bench’s views on that issue.

PN130

JUSTICE BOULTON: Your position isn’t that you think that if, for example, we were to adopt some sort of location allowances, the ASU model was more appropriate than the SDA, or that you can’t have different models, or you should have one model. I know you are saying you don’t want any.

PN131

MR ARNDT: I think ACCI would put that both models have real difficulties and are inappropriate under the Act for different reasons, because they are so different. Some of the issues are common to both claims but I think ACCI’s view is that the real fundamental problems with each of the respective claims are distinct from the ASU and the SDA.

PN132

JUSTICE BOULTON: I see the potential at least is you could have people in the same locality, but under different modern awards getting different, as it were, compensation or locality allowances to, in some way, compensate them or to deal with the problems of living in those locations.

PN133

MR ARNDT: That’s right. I don’t think we address how the two systems would interact with one another in our submission. I think it’s sufficient to say that we oppose both models and both systems. Should a requirement be made that we address how these types of claims will interact with each other, we could certainly turn our minds to it but that’s not within the scope of our current submission.

PN134

DEPUTY PRESIDENT KOVACIC: Mr Arndt, sorry, I might have missed it, did you say whether you wish to cross-examine any witnesses?

PN135

MR ARNDT: At the moment, it’s unlikely that we would require anyone. I would appreciate it if I had a tiny bit of latitude to confirm that in writing at relatively short order.

PN136

JUSTICE BOULTON: Thank you, Motor traders?

PN137

MR BAUMGARTNER: Yes, just briefly, our circumstances are different in the sense that we have an application from the SDA. We would think that there ought to be a specific hearing on an award basis and that was the nature of these proceedings. There might be some common matters that are dealt with in terms of jurisdictional issues, but we would like to see a situation where our award can be heard or scheduled within the days that are available and dealt with separately, so that we can put our case.

PN138

There’s no probative evidence brought forward by the SDA in relation to the Vehicle Manufacturing, Repair, Service and Retail Award and we would be objecting to evidence that relates to other awards being used to support a case against the Vehicle Manufacturing, Repair, Service and Retail Award. In relation to our particular award, the circumstances are particular. There’s never been any district allowances in New South Wales, Victoria, and in South Australia there hasn’t been district allowances for a long time. In Queensland there were vere minimal district allowances that hadn’t been varied since 1973.

PN139

The circumstances where the bulk of our membership is operating, have not had district allowances for many, many years and it’s never been a factor. Equally, that is the case in Broken Hill. So without any evidence to suggest a need in the industry, the reality is that where people are working in remote locations that is catered for generally in the overall payments that people are paid.

PN140

Our view also, in relation to places like New South Wales, the cost of living is generally much lower in regional New South Wales and country towns, indeed in Broken Hill. In the light of that, they are generally way in front in terms of the cost of living, so there is no real basis for any district allowance or location allowances as we would apprehend the issue. It seems to us that if these are specific award matters, we shouldn’t have to deal with the ASU approach in relation to our award. We only have the SEA approach and having listened to the explanation, I’m no more certain about how it is meant to apply and we’ve raised that issue in our submission.

PN141

As far as reply submissions are concerned, we would not oppose some simple replies just limited to clarity. They shouldn’t be allowed to put on any more material, apart from explaining the application. It seems to us we tend to prefer to have the jurisdictional issues determined first, but if that’s not going to be the case, then so be it.

PN142

In terms of cross-examination, we will not be cross-examining any of the witnesses. They’re not related to our industry award, so we don’t see any point to that.

PN143

JUSTICE BOULTON: I think we might as well just hear the people in Sydney first, so Ms Mark.

PN144

MS MARK: Thank you, your Honour. I’ve heard the submissions obviously from the SDA today in response to our submissions. They’re quite comprehensive and they’ve clearly set out the basis of the Guild’s opposition to the SDA’s proposed course. I note today that the SDA have attempted to provide more clarity in relation to the clause. I have to confess I’m still a bit uncertain as to how it applies and I’m not entirely certain as to why it wouldn’t apply in the examples provided today, in the context of those. But in any event, I think reply submissions probably are a good idea and I think that in terms of providing some more clarity, regarding the clause, I think that’s probably of benefit to everyone and will save time at the hearing.

PN145

I do endorse what ACCI has said and also the motor traders today, in terms of what the reply submissions should include. I think, as it was put today by ACCI, filling in the gaps should not be the objective of these reply submissions. They should be focussed on merely providing some clarity as to how the proposed clause, as worded, will operate in a practical sense and that’s I think, what we seek. I think that there is merit to hearing the jurisdictional objections and the merits of the case together. I don’t think they should be split up and I think that that’s an approach that the Bench has taken and which we do support.

PN146

In terms of witnesses, the Guild has actually filed for witness statements, three of Friday and another one this morning. Similar to the SDA, we would seek from them some clarity as to who they require, if anyone, for cross-examination. Again, obviously, our witnesses are unsurprisingly located in remote locations and so we again would ask that they, if they are required, be permitted to do so via video link.

PN147

The SDA have filed one statement which relates to the Pharmacy Industry Award and that’s the statement of a lady by the name of Mandy Miller who is located in Broken Hill and the Guild will require her for cross-examination. I can advise the Bench of that today. Obviously at a time, almost two days that is suitable to Ms Miller, given that she’s in Broken Hill, but we will require her for cross-examination.

PN148

JUSTICE BOULTON: Maybe this is something that I should know, but I don’t. Is the Broken Hill issue a continuing issue, or might it be resolved by our decision in terms of whether we’re going to make a correction?

PN149

MS MARK: It is an issue and it’s been an issue. Our members believed that it had ended pursuant to the sunset clause in the award and there was some confusion in February, I think, when the Bench made its reasons for decision that the allowance may stay in.

PN150

JUSTICE BOULTON: Maybe I should clarify my question. Would your people be covered - they’re covered by an existing vote?

PN151

MS MARK: They were.

PN152

JUSTICE BOULTON: A Broken Hill allowance which applied under the transitional provisions, and then that might or might not have been continued, and I’m simply putting it that way, not because I haven’t got a view on it, but because I don’t want to put that view at this stage. Is the SDA then seeking in relation to whatever might have been continued, that that be now varied?

PN153

MS MARK: That’s correct. They’ve put on a fresh application.

PN154

JUSTICE BOULTON: That four per cent - I mean I’m not sure if Broken Hill fits into the four or the eight per cent category. That would come up with a different amount than what would have applied under the award which provided - - -

PN155

MS MARK: Yes, the Broken Hill Allowance was different to what is being proposed, that is correct, by the SDA.

PN156

JUSTICE BOULTON: I see. Is it higher, or lower?

PN157

MS MARK: The Broken Hill Allowance is higher.

PN158

JUSTICE BOULTON: Under the new claim?

PN159

MS MARK: No, under the new claim, it would be lower. It would be four per cent. I believe the Broken Hill Allowance, from memory was - it’s 4.8 per cent, I think it was. I’m sorry, off the top of my head, I don’t know, but it’s higher. I believe the SDA might be able to - - -

PN160

MR SHEEHAN: Your Honour, it’s 4.28 per cent.

PN161

MS MARK: 4.28 per cent. So it would have been higher, had the Broken Hill Allowance - if it remained ongoing. I suppose from the Guild’s perspective, we seek clarity as to whether the SDA are pursuing this clause which will cover Broken Hill and indeed, potentially the entire country or whether they are seeking to preserve the Broken Hill Allowance. I believe they filed a determination to that affect as well a short time ago. So this is why our members are in a bit of state of confusion at the moment as to what actually the situation is and we’d like some certainty on that as well.

PN162

JUSTICE BOULTON: Well, maybe we’ll go to Perth, Mr Moss. Do you want to say something?

PN163

MR MOSS: Yes, thank you sir. On the basis of CCIWA, with respect to witnesses, we would have no intention to cross-examine any of the witnesses put forward at this point. We don’t object to the SDA or ASU providing submissions in reply, but we would pick up the point that ACCI and others have raised, that we wouldn’t view that as an appropriate opportunity to either introduce new evidence or to provide further or new argument on that aspect.

PN164

CCIWA's argument really comes down to four main areas. That is in particular with the ASU claim that it offends section 154, that there's failure to provide any appropriate evidence to justify the claim that the unions are seeking; and in particular that there is no connection between what they are seeking and the evidence to justify any linkage to the quantum, and that the applications are not in accordance with the or don’t meet the modern award objectives.

PN165

The issue of inspection has been raised. We would object to inspections at this particular point of time principally on the premise that the ASU have not put forward any evidence or any argument to further support where inspections are to occur or the basis for selecting those towns. We would quite frankly suggest four inspections is insufficient and inappropriate to judge the circumstances affecting regional towns across a variety of areas in Australia. And we have made reference in our submissions to the type of exercise that was undertaken during the 1950s and also late 1970s with respect to WA location allowances and the significant resources that were involved by the relevant Commission at the time in trying to assess or determine the circumstances affecting employees in those regional areas. Thank you, sir, that would be our brief views on those points.

PN166

JUSTICE BOULTON: Good, thank you. We'll go to Adelaide. Mr Cagney I assume you weren't going to add anything to what has been said by Mr Millman.

PN167

MR CAGNEY: No, I won't. Not in relation to the submissions around the district allowances. Can I just say in relation to the Broken Hill allowance I've had a chance to reflect on what you raised earlier about whether the parties had a view as to - obviously depending on the decision of the Commission in relation to ACCI's submissions that the Commission was in error in allowing the Broken Hill allowance to continue, we don't have any particular issue if the Commission were to decide it were not in error, that the orders giving effect to the Broken Hill allowance would take effect as of that date, as of the date that a ruling is made on that issue. So that would be our view as to when that allowance would take effect.

PN168

On the Pharmacy Guild's correspondence in relation to the SDA filing applications for location allowances instead of filing draft determinations, I have been in contact with the author of that letter and explained that we had filed draft determinations, and I might just add as well that we don't necessarily accept that if the district allowance application or the location allowance application to have a comprehensive set of location allowances apply on the basis of distance from a particular area, we don't necessarily accept that the Broken Hill allowance if it is in existence at the time the decision is made, that it necessarily disappears or has no effect. So I just wanted to make that point.

PN169

JUSTICE BOULTON: Yes. Good. How far is Broken Hill from Melbourne and Adelaide? Do we know?

PN170

MR CAGNEY: I don't have the figures in front of me but from memory it may be about 800 from Melbourne and from Adelaide it may be anywhere between 450 to 500, or 400 to 500. I don't have the exact figures with me your Honour.

PN171

MS MARK: It's 520 kilometres from Adelaide. It's 507 in Miss - our witness evidence.

PN172

JUSTICE BOULTON: Yes.

PN173

MS MARK: In any event it falls within the allowance provisions.

PN174

MR CAGNEY: We'll Google it on Google maps.

PN175

JUSTICE BOULTON: Well, we won't necessarily ask you about the meaning of all the terms that are used in the SDA application. Everybody has to go to a dictionary. Good. Now Mr - is it Shan in Adelaide?

PN176

MR SHEEHAN: Sheehan. S-h-e-e-h-a-n, your Honour.

PN177

JUSTICE BOULTON: Sheehan. Sorry, we didn't have you on the list initially.

PN178

MR SHEEHAN: Your Honour, the Motor Trade Associations have filed their submissions last week. Apart from that we would generally support the submissions made by Mr Baumgartner, MTA New South Wales. In relation to the SDA application and the Vehicle Manufacturing and Repair Services Retail Award, if it please the Commission that's basically all I would like to say at this stage. Thank you, sir.

PN179

JUSTICE BOULTON: Good. Thank you. Look, I suspect the easiest way for us to proceed is for us to have a brief adjournment so that we can have a discussion amongst the members of the Bench as to some of the matters which have been raised, and you've also been put on notices to a few matters which are going to be raised. If we're going to program inspections, we'll need to get an idea of where they should be and what the case is for programming inspections. Indeed if not, then it would seem that there isn't going to be, as it were, much witness evidence by way of examination‑in‑chief or cross‑examination.

PN180

So that will also affect us in terms of how much time we might need to set aside for the hearing of the matter. I think there probably is going to be an issue about to what extent the 28th and 29th May are going to be the dates for what - if we use those dates, for what, and then if it's necessary to look for some further dates, when that might be. So I suspect you can guess the sort of things that we'll discuss with you, but I think it's probably going to be more convenient if we have a discussion amongst the members of the Bench and then we will continue with the conference after that.

PN181

COMMISSIONER BULL: Ms Knight, I just wonder if you could just tell us what do you seek to be achieved out of inspections that can't be achieved some other way?

PN182

MS KNIGHT: It was a matter of the cross‑examination of witnesses. So if there was contention about some of the statements around cost of living particularly and the needs of the low paid, if there was some justification to seeing the conditions in which people do live and work then we thought that it was appropriate to actually go regionally and see what that's like, and then go remotely and see the differences there as well.

PN183

COMMISSIONER BULL: Yes, well originally you asked the Commission to nominate four locations, which may or may not happen, but that's not relevant to the particular witnesses though is it?

PN184

MS KNIGHT: Well, in some discussions shortly before the conference started, so I had a very short discussion with my friend here about the need for inspections. So we've proposed that there's a need for inspections but it's because we're concerned that there will be objection to the witness evidence. So we were hoping to ventilate
what - - -

PN185

COMMISSIONER BULL: All I'm saying is if there was inspections, and if that's what your concern is, it would have to be related to the location of the witnesses wouldn't it?

PN186

MS KNIGHT: It would.

PN187

DEPUTY PRESIDENT KOVACIC: Sorry to cut across, but to the extent that most of the employer advocates have indicated this morning that the ASU's witnesses are unlikely to be required for cross‑examination, does that change the thinking about that point about inspections?

PN188

MS KNIGHT: It does change the thinking at this stage but I still need to take the question on notice to respond.

PN189

JUSTICE BOULTON: Well, the only witness that it has been definitely indicated that will be required for cross‑examination is - I see, yes it's Ms Miller from the SDA. So no one of your witnesses it has been indicated they will be required for cross‑examination.

PN190

MS KNIGHT: Not this morning, no.

PN191

DEPUTY PRESIDENT KOVACIC: Ms Knight in terms of seeking those further instructions, I mean given that one of the issues the Full Bench needs to have a discussion about when we adjourn is the issue of inspections, would that be something that you would be able to do fairly promptly?

PN192

MS KNIGHT: Yes, it is.

PN193

DEPUTY PRESIDENT KOVACIC: Perhaps let Justice Boulton's associate know the outcome of that so that we could factor that into our thinking as well.

PN194

MS KNIGHT: Okay.

PN195

JUSTICE BOULTON: Good. Look, it might be better if we say we're going to adjourn for half an hour and then everybody can work on that basis. But I'm not sure how you do this but it could be useful if the unions had a slightly more coordinated position in the sense of if you're seeking inspections, if not, if you're doing this, just in terms of this programming it would be easier if we were clear on matters like that. Because it seems a bit odd to have inspections say for the ASU matter but not for the SDA matter. Anyway, we'll adjourn for half an hour.

SHORT ADJOURNMENT [11.27 AM]

RESUMED [12.08 PM]

PN196

JUSTICE BOULTON: Ms Knight, do you have anything to add to what we were talking about?

PN197

MS KNIGHT: Thank you, your Honour. We have been able to have a conference between the unions, and the ASU is not going to press the need for inspections any further. We're in agreement with the SDA. We do feel that inspections are the best way to obtain evidence in this case but we don't want to delay the hearing in late May. Our preference is that the hearings go ahead in May and so we won't press the need for inspections any further.

PN198

JUSTICE BOULTON: Okay, so we've been discussing the parties have raised. We don't have any problem with there being some opportunity for reply submissions. Perhaps they could be programmed for by the end of next week, so that would enable those sort of matters to be dealt with. If there is any indications which have not yet been given in terms of cross‑examination of witnesses, we could say what would that be, another week after that? So any further evidence; I think some of the employer organisations were saying that in the light of reply submissions and clarifications et cetera there might be an issue about further evidence, and if there was to be any further evidence or any evidence in some cases to be presented by the employers, you'd indicate that by that following week as well.

PN199

It seems at least on what people have said that there won't be much need to hear witness evidence. So that could probably be done in the first morning and then we would proceed to hear the submissions. I mean, the union outlines of submissions at least are not very lengthy so one would not imagine it's not going to take all that long to hear those. The employer outlines are actually more lengthy, but again we'd have two days. Is the estimate of the parties we would be able to hear and complete the matters within those two days, the 28th and 29th May?

PN200

MS KNIGHT: The estimate of the ASU is, without wanting to truncate the SDA's outline and submissions, substantive submissions, that we wouldn't foresee that there would be a need for more than a day and a half for the unions. But we were thinking more like a day for the unions.

PN201

JUSTICE BOULTON: So one day for the unions. Does that include the evidence?

PN202

MS KNIGHT: For the ASU it does, yes.

PN203

JUSTICE BOULTON: For the?

PN204

MS KNIGHT: For the ASU it does, yes. So any - - -

PN205

JUSTICE BOULTON: Is it one day for the ASU?

PN206

MS KNIGHT: No.

PN207

JUSTICE BOULTON: Or is it one day for the unions?

PN208

MS KNIGHT: We're proposing one day for the unions but without wanting to truncate the SDA's application, so they may have a different view on that timeframe.

PN209

JUSTICE BOULTON: I see. Well, I mean the question I'm asking is if 28 and 29 are enough for us to complete the case?

PN210

MR FERGUSON: Yes, just from discussions amongst the employers we thought that two days would be enough. I don't think any of us anticipated that we'd be particularly long. Assuming there wasn't going to be much of an evidentiary - much time spent on witness evidence, that we should be able to get through submissions easily within two days based on what's before the Bench. I don't think anyone anticipates an employer side being on their feet for terribly long.

PN211

JUSTICE BOULTON: Okay. Let's hear from the SDA. What do you think about that timing?

PN212

MR MILLMAN: Your Honour, it's Mr Millman here in Perth. We think that two days is sufficient particularly in light of the employer representatives today taking the approach that it's unlikely that they're going to require witnesses for cross‑examination. I mean, I'd be surprised if it takes longer than two days.

PN213

DEPUTY PRESIDENT KOVACIC: Mr Millman, can I just ask a point of clarification? We've heard this morning that the Pharmacy Guild has filed four witness statements. Would it be the SDA's intention to cross‑examine any of those witnesses?

PN214

MR MILLMAN: Sir, we haven't seen the last of them. Of the ones that we've seen we think it's unlikely that we'll cross‑examine the Pharmacy Guild's witnesses, and we're happy to confirm that position in writing firstly. And then secondly to the extent, if any, that any of their witnesses are required for cross‑examination we would have no objection to their witnesses giving their evidence via video link. This is not going to be a case where there's significant issues of credit so there's no need for the Pharmacy Guild's witnesses to be available in presence.

PN215

JUSTICE BOULTON: Yes, and the ACTU?

PN216

MS STARR: Your Honour, given the directions to file reply submissions the ACTU - which we will undertake to do that. Further to that I don't think there will be many oral submissions that the ACTU will need to give on that time, so we're in the hands of our affiliates. And subject to those witnesses, be that the employer or the union witnesses that might be called, we think that two days should be sufficient to get through all of the matters.

PN217

JUSTICE BOULTON: Good. Well, you've already said some things, Mr Ferguson. Mr Arndt or any of the other employer representatives, do you want to say anything at this stage?

PN218

MR ARNDT: ACCI's view accords with what Mr Ferguson has said. I think it's very unlikely that we will call any witnesses. As I said before, we'll confirm that as soon as we can. I can't see the submissions of ACCI, given what has already been filed, being incredibly long so I think two days is sufficient, pending all things going well and if anything comes up on the reply submissions or anything to do with anything in reply, the reply submissions, at this point I can't see it going more than two days.

PN219

JUSTICE BOULTON: Good.

PN220

MR BAUMGARTNER: We have nothing really to add. We won't take very long I don't think.

PN221

JUSTICE BOULTON: Good.

PN222

MS MARK: On behalf of the Guild I just say that given the SDA's indication at the moment that it probably won't cross‑examine our witnesses, if that does change and you do obviously decide to -look, having regard to the one we filed this morning and if the position does change we'd appreciate just knowing as soon as possible so we can advise those people. But no, I think that two days is sufficient for us too. I don't propose to be particularly long, given the submissions that we've filed.

PN223

JUSTICE BOULTON: Yes. So the 28th and 29th May should be sufficient depending on developments between then and now in terms of maybe some other matters and applications that you possibly foreshadow, Mr Arndt.

PN224

MR ARNDT: That's right, your Honour. I think we'll know the state of play in terms of the ongoing nature of these proceedings and then we will do whatever needs to be done as soon as it's humanly possible to do it, should that requirement arise.

PN225

JUSTICE BOULTON: Yes. Good. Yes, we will issue some further directions for there to be reply submissions by the end of next week, and then one week after that if the employers would indicate if there is going to be any further evidence and also which, if any, witnesses might be required for cross‑examination. That means that we will be able to program the matters for hearing on the 28th and 29th May on the basis that the evidence will be heard on the first morning of those proceedings and then the rest of the time would be taken up with submissions. I'm not sure there's anything more that we can usefully do at this stage in relation to these matters. So I think unless there's anything that anybody wanted to suggest that we need to talk about, we can simply go ahead on that basis. Well, thank you for your attendance and that's the conclusion of the conference today.

ADJOURNED UNTIL THURSDAY, 28 MAY 2015 [12.19 PM]

Fair Work Commission Transcripts

AM2014/190, Transcript of Proceedings [2015] FWCTrans 261 (5 May 2015)