AM2014/305, Transcript of Proceedings [2015] FWCTrans 297 (14 May 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1051836

JUSTICE ROSS

AM2014/305

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards

(AM2014/305)

Penalty Rates

Re: Order Requiring Production of Documents etc. to the Fair Work Commission

Hearing by Telephone AEST

By Telephone AEST

10.34 AM, THURSDAY, 7 MAY 2015

PN1

MR D. MACKEN: Yes, if your Honour pleases, MACKEN, initial D, seeking permission to appear for the SDA with MS BURNLEY.

PN2

JUSTICE ROSS: Thank you.

PN3

MS S. WELLARD: If the Commission pleases it’s WELLARD, initial S, seeking permission to appear for the Pharmacy Guild.

PN4

JUSTICE ROSS: All right. Well, having regard to the nature of the matter I think it will be more efficiently dealt with if permission is granted. So permission is granted in both cases. Mr Macken, as I understand it the application is for a notice to produce in relation to a Deloitte report titled “The effects of the Pharmacy Industry Award 2010 on community pharmacy in Australia” dated 2 September 2014. You’ve been alluded to that report by the material filed by the Pharmacy Guild on 20 April 2015 when they outlined the nature of their expert evidence. Is that right?

PN5

MR MACKEN: That's correct, your Honour. The act of the existence of the finalised report.

PN6

JUSTICE ROSS: Well, why should I issue a notice to produce when I’ve issued directions which are intended to balance the interests of the parties and you’ll get the report then?

PN7

MR MACKEN: Only for this reason, your Honour. Firstly, can I say it’s not a desired course of action that it should be necessary to apply for an order. I think the normal course of action, of course, is to invite the other side to provide it, which we’ve done, and I think the Commission - can I just confirm that your Honour has a copy that?

PN8

JUSTICE ROSS: I do. I’ve got the exchange of correspondence between you.

PN9

MR MACKEN: Yes. Thank you, your Honour. And obviously that request was not acceded to. The reason for the request is that given the tight timetables and given the existence of the report, it’s not a report awaiting finalisation, the interests of the hearing is best served, in my respectful submission, by giving us access as soon as possible to a report finalised in September so that no difficulty, or reduced difficulty, is likely to arise in complying with the timetable ordered by the Commission for the filing of material.

PN10

JUSTICE ROSS: Ms Wellard, is there some reason you don’t want to provide the report to them? I take it you’ve got the report in your possession.

PN11

MS WELLARD: I do, your Honour. There are a number of reasons, I think I’ve sort of got six or seven of them.

PN12

JUSTICE ROSS: Yes.

PN13

MS WELLARD: But if I can start with the one first about whether or not it’s finalised. The report was prepared - and this also goes to privilege - the report was prepared in anticipation of the award review of the Pharmacy Award. And so it was prepared - it wasn’t prepared specifically for penalty rates, but penalty rates is one part of the review of that award.

PN14

JUSTICE ROSS: Yes.

PN15

MS WELLARD: So it was prepared at that time for these proceedings, the award review proceedings. We only identified it because we were required to by the directions. I have not yet been able to meet with Deloitte because they’re also preparing another report for us that was commissioned by a number of parties, to actually go through the methodology or to assess that report or to go into detail the evidence that Ms Poluzo from Deloitte will give in relation to the report. So there’s some - you know, it’s there, and I did the best that I could to identify it to give the parties as much of a head’s up as I could about it. But also in relation to that I would say it’s a report based on a survey of the pharmacy industry, and there were responses by proprietor pharmacists to that report. I didn’t really even need, and I kind of debated with myself, about whether or not I even needed to identify it or file it until 6 July. So we are providing it early when we provide it on 29 June as it is. So there’s a report, the extent to which the evidence that Ms Poluzo will give about that report is not quite finalised yet because I haven’t had a chance yet to meet with her because Deloitte are working on another report for us. There’s also the issue of privilege, there’s also the issue that you raised, your Honour, about the fact that there are already directions there. I think at the time those directions were set it wasn’t evident exactly how many expert reports there would be. I’ve gone back through everybody’s commissions this morning and I think there are only four. So it’s certainly not as big as people were saying in the first place.

PN16

JUSTICE ROSS: Yes.

PN17

MS WELLARD: The other point that I’d make is that as soon as things become public the media and the press are all over it and I just think it is unfair for the Pharmacy Guild to be subject to that early, rather than being part of the group at the time that everybody’s evidence becomes public and then they’re all part of that same group. So there’s certainly an issue around that. I appreciate that’s probably a lesser concern, but it certainly is a concern.

PN18

JUSTICE ROSS: Okay. Anything in reply, Mr Macken?

PN19

MR MACKEN: Thank you, your Honour, in terms of the suggestion that privilege attaches, I can only rely upon the correspondence previously submitted. This is not a request, obviously, for the evidence of Ms Poluzo, this is simply a request for the production of a document identified as being in existence at a point in time well prior to September 2014. What evidence Ms Poluzo wishes to give in relation to that obviously awaits finalisation and all the rest of it. But I don’t understand that, having regard to the contents of the letter of 20 April, that it’s not the intention of the Pharmacy Guild to file this report in the form in which it exists as at 2 September. So it’s not a privilege issue where, for example, I might - - -

PN20

JUSTICE ROSS: Yes. No, that’s fine, you don’t need to spend any time on the privilege question. Is there anything further you want to say about any of the other points?

PN21

MR MACKEN: In terms of the concern of confidentiality, well obviously if this document is produced pursuant to formal orders of the Commission, it can’t be used for any extraneous purpose to the purposes of the Commission, and that doesn’t include broadcasting it in the way that Ms Wellard has some apprehensions about. It would simply be intended to be used for the purposes of the proceedings to which it was brought into existence.

PN22

JUSTICE ROSS: All right. Well, I don’t propose to grant the order. My reasons, briefly, are these: that the timetable was set down in a way - after hearing full argument from all the parties - in a way that balanced the interests of the parties. I don’t think the notice to produce should be used as an opportunity to obtain part of the information at an early stage, and I don’t think such applications should be encouraged. Having said that, if the Pharmacy Guild is in a position to finalise its expert material, after discussions with the author of the report, prior to the due date, then I’d encourage it, as I would encourage any party, to finalise the material as soon as you have it available. But in my view the application would subvert the intent of the directions and I imagine this wouldn’t be the only application that I’d be getting. So on that basis I don’t propose to grant it. I’d encourage the parties to continue to have discussions and if material is able to be exchanged prior to the due dates then that should be done, but I don’t propose to issue any orders to facilitate that. Is there anything further?

PN23

MR MACKEN: No, your Honour. That’s all.

PN24

MS WELLARD: No, your Honour.

PN25

JUSTICE ROSS: All right. Thanks for your attendance.

ADJOURNED INDEFINITELY                                                        [10.42 AM]