AM2014/270, Transcript of Proceedings [2015] FWCTrans 411 (15 July 2015)

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PN1

JUSTICE ROSS: Can I have the appearances, please? First in Melbourne. Just remain seated, it's easier for the camera.

PN2

MS D DE MARTINO: Thank you. If the Commission please, De Martino, initial D, for the SDA, and with me MS FOX, initial J, for the SDA.

PN3

JUSTICE ROSS: Thank you, and in Sydney.

PN4

MR J ARNDT: Arndt, initial J, seeking permission to appear on behalf of Australian Business Industrial and the New South Wales Business Chamber.

PN5

JUSTICE ROSS: Was that Barnes, I'm sorry?

PN6

MR ARNDT: Arndt.

PN7

JUSTICE ROSS: Thanks, Mr Arndt. There's no need to stand. The next one, please.

PN8

MS W CARR: Carr, initial W, from the Transport Workers Union and with me I have MS WALTON, initial T, also from the Transport Workers Union.

PN9

JUSTICE ROSS: All right. Any other appearances? No appearances from the NRA and none of the retailers? The matter was listed for mention today to deal with an exchange of correspondence between the SDA and an organisation called FCB. The correspondence is on the website and I assume you've all seen it. FCB acts for retailers generally, is that correct?

PN10

MS DE MARTINO: Correct, the ARA, your Honour.

PN11

JUSTICE ROSS: All right. As I understand it, the issue is where is this claim going to be dealt with? Is that in a nutshell?

PN12

MS DE MARTINO: That's correct.

PN13

JUSTICE ROSS: Am I right that the SDA is not seeking to change the penalty rates in the award. What you are seeking to do is to change the application of those penalty rates, such that a number of them will apply to casual employees. Is that the essence?

PN14

MS DE MARTINO: That's correct, your Honour. Yes, the SDA - the concern we've had is that the casual loading is absorbed at the penalty rates time under the General Retail Industry Award, but we are not seeking to alter the penalty rates per se.

PN15

JUSTICE ROSS: All right. Well, other claims that have dealt with the application of penalty rate provisions to casuals have been referred to the Casual and Part-time Full Bench. Do you have a view about that or how this matter should be dealt with?

PN16

MS DE MARTINO: Your Honour, we do believe that that's where this claim would sit, more appropriately, in amongst the other issues of a similar nature. We didn't anticipate that it was pertinent to the penalty rates case. We had tracked what had been occurring in the Commission thus far and I myself was present at the mention before Hatcher VP of the Casual and Part-time Employment Full Bench at which time the draft directions were discussed, and casual loading at penalty rates time was a matter which was indicated would be addressed by that Full Bench, along with overtime for casuals as well, and in keeping with the claims that we're seeking here, we believe that they would most likely fall into that Full Bench.

PN17

JUSTICE ROSS: All right. Mr Arndt, do you have a view about that? Sorry, I should go to the TWU first. Does the TWU have a view about that?

PN18

MS CARR: No, your Honour. We don't have a view. We have an interest in the award, but not a view on this issue.

PN19

JUSTICE ROSS: All right. Mr Arndt?

PN20

MR ARNDT: I must admit, your Honour, I feel a tiny bit lonely on the employer's side here this morning. I expected a representative from the Retail Association to be here in light of that it is their correspondence.

PN21

JUSTICE ROSS: Yes, but at the moment I'm asking ABI's view.

PN22

MR ARNDT: ABI's view is that it appears that the claim seems to be about penalty rates for casual employees and therefore it's not an award claim. It should be either heard under penalty rates or the Casual Full Bench. It may be that the pace and the progress of the Casual Full Bench might make it more appropriate to hear it than the penalty rates, which I understand is a very full schedule at the moment and it might be another thing just to add to that hearing.

PN23

JUSTICE ROSS: All right. Anyone else?

PN24

MR D STRATH: Commissioner, Strath, initial D, here for the Master Grocers Australia. I've just spoken to Mr Tindley who has said he is running late. He missed the notice that this morning was even on. So he's on his way down here, but certainly the position of the employer associations is that which is voiced in the original submission. My understanding is there is expert evidence that would be heard in a separate matter.

PN25

JUSTICE ROSS: No, they're not proposing to call expert evidence. It's a merit-based submission and based claim.

PN26

MR STRATH: Commissioner, Mr Tindley has ‑ ‑ ‑

PN27

JUSTICE ROSS: Well, why is he late and why didn't he get the notice?

PN28

MR STRATH: I am not sure, your Honour.

PN29

JUSTICE ROSS: Well, I've got a range of other matters today. I can't sit around waiting for him to rock up.

PN30

MR STRATH: I understand.

PN31

JUSTICE ROSS: When is he likely to be here?

PN32

MR STRATH: He said literally he was on his way about two minutes ago.

PN33

JUSTICE ROSS: I will wait until quarter past. I will remain in place until he - if he's not here by then, I will make a decision based on his correspondence and what the parties have said to date. What's the Master Grocer's view about how this matter should be dealt with?

PN34

MR STRATH: Your Honour, Master Grocers would maintain that we would like to see this dealt with in the penalty rates ‑ ‑ ‑

PN35

JUSTICE ROSS: Why?

PN36

MR STRATH: It's a penalty rates matter, your Honour.

PN37

JUSTICE ROSS: It's not seeking to adjust the level of penalty rates as the other claims are in the penalty rates matter. It's seeking the application of penalty rates to casuals. A number of similar claims have already been referred to the Casual and Part-time Full Bench.

PN38

MR STRATH: Your Honour, as mentioned Mr Tindley has prepared the application on my behalf or on MGA's behalf. I don't feel I'm in a position to make the submission.

PN39

JUSTICE ROSS: That's fine.

PN40

MR N TINDLEY: Your Honour, Tindley, initial N, appearing on behalf of the ARA and Master Grocers. Apologies for my late arrival, a failure on my behalf to check the website and apologies for the inconvenience to all the parties.

PN41

JUSTICE ROSS: Is there anything you wish to add to your correspondence of 10 April in relation to this matter?

PN42

MR TINDLEY: Is it okay if I remain seated for the purpose of the video?

PN43

JUSTICE ROSS: Certainly.

PN44

MR TINDLEY: Thank you, your Honour. I don't think there's anything that we can be any more clear about on the matters that we've raised and taking into account the SDA's response I don't think there's anything in that that we necessarily need to respond to. I don't think that that takes away at all from the fact that these are clearly penalty rate claims.

PN45

JUSTICE ROSS: All right. Can I just check for Mr Tindley's benefit, I might just confirm with you, Ms De Martino that your claim is not seeking to vary the level of the penalty rates in the relevant awards, it's seeking to vary their application, such that they apply to casual employees, is that correct?

PN46

MS DE MARTINO: That's correct, your Honour.

PN47

JUSTICE ROSS: Also, the FCB correspondence makes the observation that it is reasonable to assume the SDA will be relying on expert and other evidence in support of their variations. Is that the case?

PN48

MS DE MARTINO: No, your Honour.

PN49

JUSTICE ROSS: All right. Is there anything else anyone wish to say?

PN50

MS DE MARTINO: Your Honour, if I may?

PN51

JUSTICE ROSS: Yes, Ms De Martino.

PN52

MS DE MARTINO: Your Honour, at the mention before Hatcher VP on 22 December, Mr Ward appeared on behalf of Australian Business Industrial. Mr Tindley appeared on behalf of the ARA. There was an appearance by the MGA and the NRA. The Vice President ran through the draft directions which include:

PN53

The hearing will deal with following issues: payment of casual loading in addition to other penalty payments; specific casual employment issues identified in stage 1 exposure drafts or the subject of separate applications amongst other issues regarding casuals -

PN54

and in terms of part-time employment also mentioned overtime provisions. At the mention on 22 December, the Vice President referred to his draft directions. Not one of the parties that I've just mentioned or in fact no party present questioned any of those matters as being inappropriate to be heard before the Casual and Part-time Employment Full Bench.

PN55

Your Honour, the SDA, to be frank we're a little bit baffled at being called disingenuous by not putting these claims to the Penalty Rate Full Bench. In absolute good faith ‑ ‑ ‑

PN56

JUSTICE ROSS: I don't want to really get into a slanging match between the two of you about your respective characterisations. I'm more focused on the substance of the nature of your claim and where it's best to be dealt with.

PN57

MS DE MARTINO: I appreciate that, your Honour. I suppose the point I am trying to make is that in good faith we truly believe that the claims that we have in the General Retail Industry Award and there are some similar ones in the Fast Food Industry and the Hair and Beauty Industry Award as well as Pharmacy Industry Award. In good faith we truly believe that they would either be caught up by the Casual and Part-time Employment Full Bench or would be dealt with as separate award-specific matters.

PN58

JUSTICE ROSS: Nothing further from anyone?

PN59

MS DE MARTINO: No, your Honour.

PN60

JUSTICE ROSS: I am persuaded to refer the SDA applications to the Casual and Part-Time Full Bench. The nature of those applications is very similar if not identical to similar applications that have already been referred to that Full Bench.

PN61

No party will be denied an opportunity to make submissions in relation to those matters, it's simply a question of which bench you'll make them to and you will be making them to the Casual and Part-time Full Bench. Thanks, I will adjourn.

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Fair Work Commission Transcripts

AM2014/270, Transcript of Proceedings [2015] FWCTrans 411 (15 July 2015)