AM2014/305, Transcript of Proceedings [2015] FWCTrans 466 (7 August 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052250

JUSTICE ROSS, PRESIDENT

AM2014/305

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards

(AM2014/305)

Penalty rates

Melbourne

9.05 AM, WEDNESDAY, 5 AUGUST 2015

PN1

JUSTICE ROSS: Can I have the appearances please, firstly in Melbourne?

PN2

MR S MOORE: If the Commission pleases, my name is Moore initial S. I appear with Miss A FORSYTH for the SDA.

PN3

JUSTICE ROSS: Thanks, Mr Moore.

PN4

MR C DOWLING: Good morning, your Honour. My name is Dowling initial C. I appear with Ms K BURKE - or seek permission to appear on behalf of United Voice.

PN5

JUSTICE ROSS: Thanks, Mr Dowling.

PN6

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.

PN7

JUSTICE ROSS: Thanks, Mr Izzo.

PN8

MR N TINLEY: Good morning, your Honour. I believe permission has been granted but I'll raise that again. Tinley initial N.

PN9

JUSTICE ROSS: Probably given it's a mention I don't think I'm going to get too caught up in the permission issue. We'll deal with all of that later.

PN10

MR TINLEY: Tinley, initial N, appearing on behalf of the Australian Retailers Association, National Retail Association, Retail Council and Master Grocers Association in relation to the Retail Award.

PN11

JUSTICE ROSS: Thank you. Nobody else in Melbourne? In Sydney?

PN12

MR FAGIR: If it pleases the Commission, Fagir for the ACTU.

PN13

JUSTICE ROSS: Thank you.

PN14

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

PN15

JUSTICE ROSS: Thanks Mr Parkes.

PN16

MS S WELLARD: If the Commission pleases, Wellard initial S, seeking leave to appear for the Pharmacy Guild of Australia, the Australian Hotels Association and the Accommodation Association of Australia.

PN17

JUSTICE ROSS: Thanks Ms Wellard.

PN18

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

PN19

JUSTICE ROSS: Thanks Ms Karianis. Anybody else?

PN20

MR S BULL: Bull initial S.

PN21

JUSTICE ROSS: Yes.

PN22

MR S BULL: I'm instructing Mr Dowling and Ms Burke in Melbourne.

PN23

JUSTICE ROSS: Okay.

PN24

MR S CRAWFORD: Your Honour, there's also Crawford initial S from the AWU.

PN25

JUSTICE ROSS: Thanks Mr Crawford. Anyone else?

PN26

MS L CRUDEN: Your Honour, in Newcastle.

PN27

JUSTICE ROSS: I'm sorry, who was that?

PN28

MS L CRUDEN: Your Honour, sorry, Leanne Cruden, if the Commission pleases. Seeking leave to appear on behalf of the Australian Industry Group. I'm dialled in from Newcastle.

PN29

JUSTICE ROSS: Thanks Ms Cruden and I've received your correspondence in relation to these issues as well.

PN30

MS CRUDEN: Thank you.

PN31

JUSTICE ROSS: And I think the department is in Canberra but only observing. Can I indicate that in discussion with the other members of the Full Bench what I'm intending to do today is to take you through some of the issues that are identified in the correspondence. I'm not going to canvass every issue. There are some that I'll be making some reasonably forceful suggestions to the respective counsel to sort out. There are others where I'm seeking a view from you in relation to it. I've asked for the transcript to be expedited and the Full Bench is getting together on Friday to try and see how we deal with the morass of issues that seem to have crept up.

PN32

It's unlikely we're going to touch on the retail issues. We want to focus on really what's going to happen in this first tranche of hearings around the expert evidence from the hospitality. To the extent that has a ripple effect, if it does, then we have a further mention and raise that with those parties affected by it. Look, I've got a list of the issues. Don't panic if I don't deal with yours or don't worry about the order in particular. Some of them have already been foreshadowed in the statements and unless you have a particular view on it, don't feel the need to say something about every issue because I want to try and move through it as quickly as I can.

PN33

At the end of it if I've missed something of significance it won't have been intentional. It's just there's a range of exchanges of correspondence between you, that at the end of this process I'll ask you whether there's anything else that I need to touch on, okay? The first issue is this question - and I don't want to get into the merit of the debate between the parties about whether or not there has been compliance with the direction that proposed findings be filed. From at least my perspective I think the proposed findings that have been identified need to be more particularised.

PN34

What we're really looking for here -and I direct this to the unions as well when they file their 11 foreshadowed expert statements - what we want to know is on the basis of each statement, for example the Lewis statement for the employers, what findings you want us to make based on that evidence. What you've done at the moment is identify on the basis of the expert evidence globally "These are the findings". We want you to identify - and I say this without a criticism. I'm not making a criticism, because the directions perhaps could have been clearer and I think that has been one of the issues.

PN35

What was proposed is that that level of particularity be provided by 4 pm on 24 August. Now bearing in mind there are issues - it might be that we discuss the hearing allocation question first before I come back to that issue. Can I characterise United Voice's position, and the SDA seems to have the same view, that in short there are 14 days allocated at the moment. You don't think that's going to be enough. You think an additional seven days is required. You're proposing that the current 14 days between 8 and 25 September deal with the lay evidence. The December dates, with some additions, deal with the expert evidence.

PN36

Look, I don't need to go to the employer position on this. It's articulated in some of your correspondence and I'm left with the impression that you're not enthusiastic about the ripple slippage through the system. There are some alternate suggestions that have been flagged in the AHA, AAA correspondence and I want to raise another couple with you, and I also want to put something to the employers. One of the reasons why we need to revisit the directions is you didn’t comply with them in the first place, and two of your expert witnesses were filed a week late.

PN37

Now the problem that creates is apparent from the timetable because in the normal course if you file yours a week late, well the other side would get another week to file theirs. But what that means in this case is that you won't have time to file your expert evidence in reply, which is what you wanted, because we'll be into the case. So that's a dilemma and on the face of it that may mean that we commence on 8 September with the lay evidence and we try and find dates to deal with the expert evidence. Ai Group makes the point that it would have been desirable to deal with the expert evidence first.

PN38

They're reserving their position to recall lay witnesses. Well, that's fine, we can deal with that when it happens. But from all of that it doesn't necessarily follow that the only option is the one that United Voice has put forward. The other options would be for the expert evidence to be heard without disturbing the dates for the retail material, either between 28 September and 5 October which is the AHA proposal, or some time in the period from 2 to 13 November. The 13th yes. Now I mention this. I'm not saying those dates are available et cetera but what I'm looking for, let's have some comment around that issue; what do you say about that as an alternate.

PN39

Secondly, if that was granted it may be that not all members of the Bench are able to be present. That might be the case during some of this evidence anyway. There are five members of the Bench and we don't propose to delegate to a single member to hear all of this - certainly no one has volunteered for that task - and we'll endeavour to get to all of them. Can I give you an example; Senate Estimates falls within one of those dates. If I'm required to attend that I don't want to disrupt this hearing for that purpose, and there may be occasions that members aren't available. They will of course read the transcript in the normal course.

PN40

So can we deal with that issue first and perhaps hear from United Voice and the SDA about that, and then hear from the employers. That why does it follow - I understand what you say about the late filing but it seems that your proposal then pushes it back to December. Why can't the expert evidence be accommodated in those periods that I've identified?

PN41

MR MOORE: Thank you, your Honour. For our part we don't see a difficulty with that possible solution to the expert evidence being heard on the dates you identified in September into October and in the first part of November. We didn't propose that because we didn't want to be presumptuous as to - - -

PN42

JUSTICE ROSS: No, no, I understand that, Mr Moore. Yes, okay. That's helpful.

PN43

MR MOORE: It was about using what dates were already there. For our part we wouldn't have a difficulty with that because we see as the major crisis, as it were, the logjam of a hundred witnesses in those 14 days.

PN44

JUSTICE ROSS: Yes. Yes.

PN45

MR MOORE: And the only other point I'd make - and I'll sit down so others can speak - is that in terms of an earlier option you flagged, your Honour, about if the September dates went ahead as a result of the lateness in the employer material, meaning that the reply expert evidence by the employers could not be filed perhaps in the time prescribed, that might have the consequence that those hearings commence with the lay hospitality then with the experts in the second part of that. We would see that as also a workable solution. We would see though the first, the other option around putting the expert evidence in the dates you identified in September and November as being preferable for our part, subject to issues that United Voice might have about availability. But I'll let Mr Dowling raise any issues, if there are any there.

PN46

JUSTICE ROSS: All right.

PN47

MR MOORE: Thank you.

PN48

JUSTICE ROSS: Thank you Mr Moore.

PN49

Mr Dowling?

PN50

MR DOWLING: Thank you, your Honour. One issue that arises is your Honour will have seen we raised in correspondence the possibility of concurrent evidence.

PN51

JUSTICE ROSS: Yes.

PN52

MR DOWLING: And that may impact upon the discussion we're having, and the reason we raised that - one of the reasons we proposed the November dates is we saw some efficiencies being created by allowing the experts to consult between them, possibly come up with - ideally at least - a list of issues between them.

PN53

JUSTICE ROSS: Yes, I saw that and I thought - speaking for myself - that that seemed to have much to commend it. But if the dates go to within that period, if the expert evidence is heard then later in the process, not as late as you're intending because of the ripple effect that might have on others.

PN54

MR DOWLING: Yes.

PN55

JUSTICE ROSS: If it's heard in that first part of November, for example, that would have a couple of benefits. It would allow us to adjust the directions for the filing of material to accommodate the fact that some of the employer material came late. It would allow for, for example, a Commission member, probably not a member of the Bench but to be available to facilitate a conference with the parties to see if issues can be identified if that's necessary, and it would provide more time to enable a discussion about hot tubbing or concurrent evidence. It's difficult to know the extent of any of that until we know the substance of the union evidence and the degree to which it covers common issues.

PN56

MR DOWLING: Yes, your Honour, we accept - sorry, your Honour.

PN57

JUSTICE ROSS: Yes. No, no, but those issues that you've identified are also factors that would support the lay evidence being dealt with in the 8th to 25th September and then the expert evidence being dealt with at a later point without disturbing the current scheduling of the retail evidence.

PN58

MR DOWLING: Provided enough time for that process we're describing, and indeed the November dates may - that only leaves one problem from my perspective, your Honour, and that is the question of availability, and I know that's low down the list of priorities but the ambulance - - -

PN59

JUSTICE ROSS: Make your pitch anyway, Mr Dowling. It's worth putting on the record.

PN60

MR DOWLING: The Ambulance Work Value Case, which I understood until recently your Honour was also in.

PN61

JUSTICE ROSS: Yes, but because of this I'm vacating that one and look, Mr Dowling, I'd only say that dates haven't been set for the ambulance case. It's a different Bench and I don't know what their availability is.

PN62

MR DOWLING: Thank you, your Honour. I appreciate that. We were given some dates in November. I now understand that those dates may no longer be the dates.

PN63

JUSTICE ROSS: And also bear in mind that one of the members of the ambulance Bench is also on this Bench.

PN64

MR DOWLING: Thank you, your Honour.

PN65

JUSTICE ROSS: So I don't know how all that will pan out but the ambulance dates haven't been set. I understand that - that's coincidentally why I had those dates vacant.

PN66

MR DOWLING: Thank you, your Honour. Well, the 28th and 29th unfortunately cause some difficulties as well, your Honour, but I just put that on the record and I appreciate where that weighs in the balance. Otherwise the ambulance commitment is the only issue that arises. But the primary concern is that there be adequate time to provide the expert material, adequate time for the hot tubbing process to take place. Can I mention then lastly that the first issue your Honour raised in terms of the findings, the proposed findings issues.

PN67

JUSTICE ROSS: Yes.

PN68

MR DOWLING: We of course would support the necessity for that, given what has been provided.

PN69

JUSTICE ROSS: And look, I think to be fair what has been provided is probably our fault in the sense that we probably didn't articulate with sufficient clarity exactly what we meant. But I've clarified it now that really what we - I think you can deal with the lay evidence differently. You can deal with that in globo because there's a lot of it and you can say, "Well, what findings do you draw from that?" The expert evidence deals with different subject matters and there's a necessity to identify, based on that particular expert, what findings do you make. That's for two reasons. One is so we know, but more importantly so everybody knows, and it can focus cross‑examination et cetera. But we can put a direction that can remedy that deficiency.

PN70

MR DOWLING: Yes, and we had contemplated, your Honour, that rather than - I think your Honour proposed in the statement that 24 August was the relevant date.

PN71

JUSTICE ROSS: Yes.

PN72

MR DOWLING: We had read that, perhaps optimistically, that that would be the employer expert outlines in respect of that issue on the 24th, necessarily the union employer expert outlines would have to come later.

PN73

JUSTICE ROSS: Wouldn't the union expert - whatever date you file your expert evidence, it would be that date.

PN74

MR DOWLING: Yes.

PN75

JUSTICE ROSS: Yes.

PN76

MR DOWLING: And at the moment if we are providing an extra week - - -

PN77

JUSTICE ROSS: No, I understand. Yes, look I understand there would be some - - -

PN78

MR DOWLING: Yes.

PN79

JUSTICE ROSS: And that partly depends on where the Full Bench lands about - because I'm only expressing some options here. It's where the Full Bench lands on when the expert evidence will be heard about those issues. But I understand your position from what you've filed.

PN80

MR DOWLING: Thank you, your Honour.

PN81

MR MOORE: Your Honour, might I just say something about the outline of submissions point which I overlooked saying before?

PN82

JUSTICE ROSS: Sure.

PN83

MR MOORE: The additional comment is this. A number of the employers have filed in addition to expert witness material tender - what I'll call tender documents.

PN84

JUSTICE ROSS: That's true. ABS material and the like?

PN85

MR MOORE: Yes, and they're quite voluminous.

PN86

JUSTICE ROSS: Yes.

PN87

MR MOORE: And there may be various controversies around the admissibility of that material. But putting that to one side, for our part we are in the dark to a large extent as to what the employers want to make of that material. So we'd make the suggestion that, to pick up your Honour's explanation as to what is intended by the provision of an outline of submissions dealing with proposed findings, that that extend to include any tender documents or documents proposed to be tendered by the employers.

PN88

JUSTICE ROSS: Yes, that would also be the same for you.

PN89

MR MOORE: Indeed.

PN90

JUSTICE ROSS: That might be survey evidence and the like. What do you want - and this is primarily from our perspective - us to draw from that material?

PN91

MR MOORE: Yes.

PN92

JUSTICE ROSS: How is it relevant, because until we know that it's difficult to deal with any objections on the basis of relevance and we need those proposed findings as a prism through which to view the material, okay?

PN93

MR MOORE: Yes and, your Honour, can I follow that up with this observation in relation to the outline of submissions filed by the Ai Group in relation to the Fast Food Award. Those outline of submissions on their face appear to do what you say they should do. That is they say, "Well, we want findings of fact to this effect. That is X thousands of people are between 18 and 24" and so on and so forth. What they don't go on and say is what submission is said to flow from all that for the purposes of the case. We read that material and we are completely in the dark as to what the AiG's argument is, and it makes it near enough we're speculating in terms of trying to respond to that material.

PN94

JUSTICE ROSS: Except that you know what findings they're proposing to make and you can deal with those, and bearing in mind there's a process for the filing of submissions later after the evidentiary material is in.

PN95

MR MOORE: Yes, your Honour.

PN96

JUSTICE ROSS: I think the risk here is, Mr Moore, that I'll be sitting here with you all quite a lot dealing with inter‑party skirmishing around whether the outline of submissions is sufficient or not. Certainly from my own perspective the findings proposed need to be better particularised and they need to relate more to the material. I take the point you raise about the common material as well; the same observation is appropriate for that and it applies to both the employer and the union parties. But I can envisage once you file your material, the employers saying, "Well that doesn't" - and then, you know, bearing in mind that ultimately you'll have your submissions and an oral hearing subsequently.

PN97

MR MOORE: I understand what your Honour says. However the task that the unions have is, amongst other things, to provide responsive expert material.

PN98

JUSTICE ROSS: That's right.

PN99

MR MOORE: And on the face of the AiG's case we're not clear what - we don't know what they want to make of these various statistical - these numbers that they assert.

PN100

JUSTICE ROSS: No, no, I agree.

PN101

MR MOORE: And it makes it very difficult to assemble a responsive evidentiary case because it's not articulated what is said to flow from these numbers, which is all they really are.

PN102

JUSTICE ROSS: No, no, but I agree with you about that.

PN103

MR MOORE: I see.

PN104

JUSTICE ROSS: No, I agree with you that they should say what findings are they proposing on the basis of that material.

PN105

MR MOORE: Thank you, yes.

PN106

JUSTICE ROSS: No, no, I don't take issue with that.

PN107

MR MOORE: I see.

PN108

JUSTICE ROSS: And the same will apply if the unions file material in response. My point is directed not at the proposed findings, it's more at the adequacy or otherwise of the outline of submissions and the broad argument they're going to run. Yes.

PN109

MR MOORE: Yes. Thank you, your Honour.

PN110

JUSTICE ROSS: Perhaps Mr Izzo and then Ms Wellard?

PN111

MR IZZO: Your Honour, perhaps just - and I've understood everything that your Honour has said this morning. I must say on the part of Australian Business Industrial and the New South Wales Business Chamber, part of the reason that the outline of findings was provided in the way it was is that we were of an understanding that much of the reason for that particular direction was to give the parties advance notice of the types of expert evidence that would be provided and the areas it was going to.

PN112

JUSTICE ROSS: That's all right, Mr Izzo. I'm not attributing fault or anything like that. I'm just trying to find a way through so that all parties are clear about what we're seeking, that's all.

PN113

MR IZZO: Certainly, and so your Honour, in response to the proposed course of action you've suggested there are probably a couple of concerns that we have, and we might have some ways around them. One of the things that we understood the way the hearing was going to proceed was with the expert evidence first followed by the lay evidence.

PN114

JUSTICE ROSS: Sure. Sure.

PN115

MR IZZO: And part of the reason for that was firstly we understood there may be a level of commonality between the hospitality and the retail evidence, and so it was desirable from an efficiency perspective that way. But also perhaps that if anything came out of cross‑examination or the expert evidence itself, that could put to lay witnesses if necessary.

PN116

JUSTICE ROSS: Sure.

PN117

MR IZZO: And so from the efficiency of running the proceedings perspective, that was our preference. Now I've heard what your Honour has to say about the fact that if we give the union's an extra week with their expert evidence it means that our evidence in reply is effectively due on the first day of the hearing.

PN118

JUSTICE ROSS: Well, that's one of the problems. The second problem is the sheer volume and the third problem is my recollection was, from the hospitality employers, that their preference was for the lay evidence to be heard in September. So I think hearing the expert evidence in that September and then having some of the lay evidence move off, the problem with that is, on what had been put previously, that would inconvenience the employer lay witnesses of which there are a number because of the nature of their businesses.

PN119

So you can reserve your rights in the same way as Ai Group has. If something comes out of the expert evidence that you feel you need to recall a lay witness to clarify, well that can be done and we'll hear you about that at the relevant time. I agree that it would have been desirable - the key point was though that the common expert evidence would be heard in one lump. It was preferable that it be heard before the lay evidence. Well, now we're caught with you filed your expert evidence late and that has had a bit of a ripple effect.

PN120

But secondly, it seems reasonably apparent that it will be difficult to complete, bearing in mind the foreshadowed number of union expert witnesses and the number of foreshadowed union lay witnesses and the number of employer lay witnesses, it's going to be difficult to deal with all of that in the time that's presently been allocated. So how do we find a solution to that problem, and that's really what we're trying to explore here.

PN121

MR IZZO: And so, your Honour, in terms of when additional hearing dates can be allocated, with respect to the dates that you've broadly foreshadowed I think - - -

PN122

JUSTICE ROSS: I'm just trying to come up with something that doesn't, you know, knock the retail case around.

PN123

MR IZZO: Because one of the options we had considered, your Honour, perhaps is using the retail date - if there was a problem we could start with the expert evidence. Perhaps even if we had a few days cut off the evidence in reply for the experts we could start our hospitality hearing with the expert evidence starting just perhaps even one or two days late. We could still use those dates. Then what we would look at is really using the retail dates for the hospitality proceedings, but I understand that's a concern that you're trying to avoid.

PN124

JUSTICE ROSS: Look, I think if we can come up with a solution that has as little disruption to the set hearing dates as we can manage then that's probably desirable. But look, you've put that proposal on the record. I'll take it to the Full Bench as well. We'll hear what others want to say about it, but that's another option certainly.

PN125

MR IZZO: With respect to the proposal about hot tubbing or concurrent evidence, your Honour - - -

PN126

JUSTICE ROSS: Well, let's wait and see what the expert evidence is.

PN127

MR IZZO: Yes.

PN128

JUSTICE ROSS: Yes.

PN129

MR IZZO: Yes, because I was just going to raise the point that for instance that might be appropriate for some of the academic evidence but perhaps some of that statistical evidence we've filed, it might not match up with some of the other evidence. So perhaps we just - - -

PN130

JUSTICE ROSS: Look, I think I'm expressing the view that where you've got evidence that let's say for example both filed by the respective parties that deals with social trends, so the same broad subject matter, there might be some utility in having the experts heard together and people asking them questions; and it's desirable to do that if it's feasible but we're quite a way away from making any calls about that. We need all the material in and then we'd probably have a further mention. But before the mention - and this is something I'll say about this squabble around the disclosure of material on the expert evidence - I'm expecting the parties to, if I can put it this way, behave in an adult way and engage with each other and not have to come back here for endless discussions about material.

PN131

I may as well deal with that issue now because it's directed at you. There's correspondence from Macken & Co on behalf of the SDA seeking various material in relation to the Lewis and Rose report. Now can I put this to you that I think the - and I make this comment about the AHA, AAA response as well. They say, "Oh well, we shouldn't have to correspond with the other side because they've only put in the material to assist the Commission and they'll only do it if the Commission wants to do it". My view is that you need to start talking to each other because I can guarantee you that you're going to want the same material off the union experts.

PN132

So, you know, for goodness sake get your heads together, work out what's the list of background material you're going to want. It's entirely appropriate for a party to want to know what instructions were given to the expert. There's nothing exceptional about any of that. Was a draft report produced? The employer parties, when the union expert evidence is filed, are going to want to know exactly those things. So get your heads together and do it quickly about what material do you agree in broad categories will be provided in relation to the expert material.

PN133

If an expert refers to data or something like that, what are the factual bases for the expert's opinion is entirely an appropriate topic for cross‑examination, and it's entirely appropriate that a party get it. Now I don't want to have to be sitting here making interlocutory rulings on those sorts of things when it's going to be in the mutual interests of both parties to put your heads together and sort it out, and I would have thought that's the benefit of granting permission to appear. Because I would expect counsel and legal representatives to sort those things out, not to come along here and have the squabble. Okay?

PN134

So look, I say that about the expert material. I don't know the substance about the material that's sought on the lay evidence, and I think the quick - and I'm in no position, and I'm not making any decision about them because I haven't gone through the list of requests about the expert evidence. But some of them, it did strike me, for goodness sake, you're going to want the same material from the other side.

PN135

In the lay evidence the proposition that’s put against the union is that the request is onerous. I haven't even seen the request. I think the best way of dealing with that is, if you can't sort it out between yourselves, put in a notice to produce. It will be determined by a subset of the Full Bench. Three members will probably get together and deal with that issue.

PN136

I think that involves a different question. Your questions about the expert evidence are likely to be more generic. About the lay evidence, it depends on what each witness is saying and I haven't gone through all that, and it depends on an argument about whether the request is onerous or not, and I think that argument needs to be had. So let me put that in a separate category, but the quickest way to bring that to a decision point, file your notice to produce in relation to that material. It will get heard and determined and we will move on with it, and the sooner the better because the hearing is not that far off. Okay, Mr Dowling.

PN137

MR MOORE: Thank you, your Honour. I appreciate that.

PN138

JUSTICE ROSS: That is the way to do it.

PN139

MR MOORE: Just one small issue in respect of that. Your Honour should know that the requests we have made have been tied to particular paragraphs so that the respondents to those requests can see that. I am just conscious of the timelines within which we are working, and whether it’s necessary or premature to seek a date. I think inevitably that’s where that course is heading, whether it’s necessary to allocate a date at this stage or whether your Honour - - -

PN140

JUSTICE ROSS: I think if you file your notice to produce, we will endeavour to deal with it within a week.

PN141

MR MOORE: Thank you, your Honour.

PN142

JUSTICE ROSS: After you file it, so let’s see how we go, and it will depend a bit on the availability but we will endeavour to meet that as quickly as we can so that matter can be resolved.

PN143

MR MOORE: Thank you, your Honour.

PN144

JUSTICE ROSS: In relation to the expert evidence, do each of the parties involved here, those who filed from the employer’s side and the union’s side, understand what I’m putting? Is there anything you want to say about any of that?

PN145

MR IZZO: Could I just make one comment, your Honour. We certainly have - with respect to the two experts - prepared - reports have been filed by ABI and the New South Wales Business Chamber. We have had very preliminary discussions this morning with United Voice but our position hasn’t been to refuse what has been sought. We simply haven’t responded because a large number of documents have been sought, many of which we would be happy to provide if it’s background briefing materials, et cetera. There are a couple of categories of documents sought that might ordinarily be subject to a legitimate claim for legal professional privilege, and it’s just a case that we haven't yet had the opportunity to properly formulate our position, and we agree the appropriate course of action is for us to respond to both the SDA and United Voice, and if at that point they are - and they respond to us and they’re dissatisfied with our response, then we can perhaps look to resolve it.

PN146

JUSTICE ROSS: Can I encourage you to pick up the phone. Let’s not get into an endless exchange of letters. It will just drag it out. See if you can have a conference with the respective parties, sit down, sort out not only what you'll provide, see if you can reach agreement, but also what the unions will provide, same sort of categories of the material when they file their expert material. But the sooner you can do that, the better, okay.

PN147

MR IZZO: Yes, your Honour.

PN148

JUSTICE ROSS: I certainly don't want to see you back here having an argument about background material that has been provided or instructions given, et cetera. Does anyone want to say anything further about that expert evidence issue before I ask for any further comments around the dates question? No?

PN149

Around the dates question, can I go to Ms Wellard and then Mr Parkes about that. You have heard the discussion about the dates and the issue we’re facing, and what we’re trying to avoid doing is - we’re trying to minimise the disruption to the dates that have already been set. I'm trying to deal with the hospitality lay evidence in that period from 8 to 25 September, reflecting the concerns that were raised by the employers around the early hearing of that, and we’re looking at then allocating some seven days for expert evidence somewhere either in the period 28 September to 5 October or 2 to 13 November. Ms Wellard or Mr Parkes, what do you want to say about all of that?

PN150

MS WELLARD: Your Honour, the 28 September to 5 October dates are fine, and before we proposed that in the correspondence I sent through on behalf of the AHA and AAA. I checked with our expert Lyn Peluso in relation to her availability and also with counsel that I have briefed. Those dates work. Ms Peluso is in Papua New Guinea in the November dates and not available unfortunately.

PN151

JUSTICE ROSS: Is Ms Peluso your counsel or the expert?

PN152

MS WELLARD: The expert, your Honour. So she’s in Papua New Guinea. The other thing is - we do have - - -

PN153

JUSTICE ROSS: Yes, right. Sorry, Ms Wellard, but she is available - - -

PN154

MS WELLARD: 28 to 5 October. 28 September to 5 October.

PN155

JUSTICE ROSS: And presumably she is available on the dates that we have already set, 8 to 25 September.

PN156

MS WELLARD: She is, your Honour, and I do note that her - our expert evidence provided by her was filed on time, so I don't know if that means that the unions are in a better position to deal with her sooner than some of the others if she is sort of interposed in between the hospitality lay witnesses earlier, if that works. It may, it may not.

PN157

JUSTICE ROSS: Yes. I think we will - we will take into account what you have said about her availability and we will see how we go.

PN158

MS WELLARD: Thank you, your Honour. Just in relation to Mr Izzo’s proposal that the retail hearing dates be used potentially for hospitality, I appreciate the weight that might be put on this but I have briefed counsel for the hotels case and different counsel for the pharmacy case. Counsel in the pharmacy case has locked in those retail dates and has difficulty otherwise with availability, including those November dates and the proposed December dates that were proposed by the unions.

PN159

JUSTICE ROSS: All right.

PN160

MS WELLARD: So we are reluctant to change the locked in retail dates in any way, if that’s - - -

PN161

JUSTICE ROSS: For what it’s worth, I share the reluctance but it’s really if there’s no other viable alternative then we may need to look at all options including that one, but I understand what you’re saying, Ms Wellard.

PN162

MS WELLARD: Yes, your Honour. Just in respect of the direction to file more particularised findings around the expert evidence, that's not opposed in any way.

PN163

JUSTICE ROSS: All right. Thank you. Mr Parkes?

PN164

MR PARKES: Thank you, your Honour. I think from the outset our organisation identified the seasonal issues, so obviously we’re keen to maintain the September hearing dates for the lay evidence for the hospitality witnesses. I also point out that it’s a little bit difficult to highlight what the issues are going to be for cross-examination of the union lay witnesses for the hospitality group, because the witness statements haven't been filed because they're not due to be filed until 10 August.

PN165

JUSTICE ROSS: No, that's right.

PN166

MR PARKES: Yes, so we would need to carefully consider what is in those witness statements and to determine whether or not we would be requiring you to cross-examine those witnesses.

PN167

JUSTICE ROSS: Yes, I understand that. I think what was proposed was that there be a further mention, I think on 27 August, to deal with some of those issues. No, I entirely - I understand that. We would have a further mention before the hearing of the lay evidence to identify - but I would want the parties to confer around the order of witnesses, who is required for cross-examination. I expect that conversation to take place between the various representatives, and then at the further mention you come along and let me know what the agreed position is.

PN168

And you can take it that the Bench is - because counsel always overestimate how much is required for cross-examination, in my experience at least, for lay witnesses. So we’re going to, if you like, over list. That is, you might think you require an hour for each. It may mean that some witnesses are told not before a certain time, but the only thing we’re likely to do with your timetable would be to tighten it up.

PN169

What I don't want to happen and what I don't intend to happen would be we finish at 3 o’clock on a day because there are no more witnesses. So we need to find a way of making sure that does not happen, both for the costs of the parties and also the timing that is available.

PN170

Mr Parkes, so as I understand it you want to retain those September dates, certainly for the lay evidence. It appears, given the volume of material that is not going to be sufficient to deal with the expert evidence. What do you say about the proposal that the expert evidence - there are four propositions really, there’s United Voices are to be heard later. There’s the proposition that it be heard - with the ripple effect of United Voices’ proposal - that is that it be heard in December with then submissions next year.

PN171

There’s Mr Izzo’s rapidly failing to get support proposal to have the experts chew into a bit of the retail evidence.

PN172

MR IZZO: Your Honour, if I could just interrupt at this point and just say, I don’t think we’d appreciated the inconvenience that might cause the parties and if that is the case then it should be - that submission should be viewed in that light.

PN173

JUSTICE ROSS: All right, thank you. Then there’s the proposition put up by AHA and AAA that sometime in the period, 28 September to 5 October - and I have raised an additional proposition that it be sometime in the period 2 to 13 November. What do you want to say about all of that, Mr Parkes?

PN174

MR PARKES: Thank you, your Honour. Firstly, in relation to the union’s proposal to move the dates to December, we would oppose that. We don’t support that pushing back to that period.

PN175

JUSTICE ROSS: I think that’s a common position from all the employers.

PN176

MR PARKES: Yes. As an alternate, the dates suggested from 28 September to 5 October were open to. I would just ask the Bench to take a cautious approach to varying the time table and the directions issued on 3 March. Until there’s more certainty between the parties on what we could actually accommodate here. I just think there’s a risk that if we rush ahead and vary the time table that there may be some unintended consequences that fall out of that.

PN177

JUSTICE ROSS: What I am concerned about is if we wait until all the materials - and if we start the hearing on 8 September and it is not completed by the 25th, there is going to be more inconvenience to the parties, because we will have to find alternate dates.

PN178

MR PARKES: Yes.

PN179

JUSTICE ROSS: We can’t simply say, that is the period and tough luck because the employer interests are going to want an opportunity to at least cross-examine some of the 11 experts the union is going to be calling. The union is foreshadowing they are going to want to cross-examine the expert evidence and no doubt some of the lay witnesses. Well, whilst the Commission will seek to control any repetition in questioning and those sorts of issues, I don’t think we can reasonably curtail a right of a party to ask relevant questions in cross-examination. So my concern is that if we wait until all the material is in and we see how we go in the period from the 8th to the 25th, then we are going to have more limited options than we have at the moment. I think a difficulty is that the employer expert evidence, two of them were filed late. So in those circumstances I am afraid you are going to be stuck with some variation to the directions because you didn’t comply with them.

PN180

MR PARKES: Yes, well, I don’t think it was our organisation.

PN181

JUSTICE ROSS: It doesn’t matter. It doesn’t matter who it was. It would the same if the unions are late, well, the directions were set down and if they haven’t been complied with, well, you shouldn’t get the benefit of non-compliance.

PN182

MR PARKES: Your Honour, the alternate proposition that we would support would be that period, 28 September to 5 October.

PN183

JUSTICE ROSS: All right. What do you say about 2 November to the 13th? Because I am not sure about the Bench’s availability on these dates too, that is the other tricky bit. I understand what Ms Wellard said about the Peluso evidence and that may - if we went for 2 to 13 November that may mean that Peluso is dealt with on a day within that 28 September to 5 October period or a day within the 8 to 25 September, perhaps towards the end of that period. But what do you say about the 2nd to the 13th?

PN184

MR PARKES: I am not sure, your Honour, what I can say about the November proposal at this point.

PN185

JUSTICE ROSS: All right. Does anyone else want to say anything about the hearing allocations or anything of that nature at this stage, before I go to some of the other matters?

PN186

MS CARAYANNIS: Yes, your Honour, from Clubs Australia Industrial here. Your Honour, I just have some very brief comments to make. For starters Clubs Australia Industrial have complied with the directions and accordingly we have been preparing our case in line with the current set of directions. It would be our preference to have all of our lay evidence heard within the first allocated week or at the very least between 8 and 15 September because all of our witnesses are actually available between those dates, as is our counsel.

PN187

JUSTICE ROSS: Sorry, which times were you seeking?

PN188

MS CARAYANNIS: Between 8 and 15 September, your Honour.

PN189

JUSTICE ROSS: All right. Can I suggest with that, that the employer parties get together in relation to the lay evidence and discuss it because you all might have different preferences about when they run and that can be dealt with at the further mention that will take place before the commencement of the hearing on 8 September.

PN190

MS CARAYANNIS: Yes, thank you, your Honour.

PN191

JUSTICE ROSS: Because you can take it that if you agree on a certain order and grouping, well, that’s likely to be fine with the Commission. But you might all have different bids and you might want to talk to your witnesses and everything else. I think that is best sorted out initially amongst yourselves, all right?

PN192

MS CARAYANNIS: Yes, thank you, your Honour. Just also with respect to the additional dates proposed. I am aware that our counsel is not available between 28 September and 2 October and with respect to 2 to 13 November I would need to check counsel’s availability.

PN193

JUSTICE ROSS: I will note that but if it comes down to it and it’s just a counsel available as opposed to a witness then I am not sure that is going to be a determinative factor. But I note what you say and I will confer with my colleagues about all of those issues.

PN194

MS CARAYANNIS: Thank you, your Honour.

PN195

MS CRUDEN: Your Honour, it is Leanne Cruden in Newcastle for Ai Group. I also have some comments with respect to the proposed dates.

PN196

JUSTICE ROSS: Yes.

PN197

MS CRUDEN: With respect to 28 September to 5 October, again, appreciate whilst not the priority concern, for October the earliest dates our counsel has available is 8 October. I would need to check with respect to the late September date but certainly there is difficulty with the start of October. Whereas 2 to 13 November there is availability there. I am also unclear, Australian Industry Group has not called an expert, however we have filed an affidavit of Julie Toth which is as common evidence and not as expert evidence. However, clarity as to whether or not the hearing of her evidence would go within the retail evidence or within the expert, notwithstanding that she’s not one, that would also be useful. I do have some availability information in relation to her.

PN198

JUSTICE ROSS: I will leave that to you to discuss that with the union party representatives and see what you can sort out.

PN199

MS CRUDEN: Thank you, your Honour.

PN200

JUSTICE ROSS: You would have heard what has been said by Mr Moore about that material and the statistical material, that what is being sought and would be dealt with in any revised directions is what findings are you proposing in relation to all that material?

PN201

MS CRUDEN: Yes, your Honour, sorry, you were wanting Ai Group’s response with respect to that?

PN202

JUSTICE ROSS: Yes.

PN203

MS CRUDEN: Well, for our part, your Honour, with respect to the outline that was filed on 20 April it did include, as I believe you noted earlier, in some detail a finding sought to be made on the evidence. It included a brief outline of submissions and that outline primarily went to the aspects of section 134 of the Fair Work Act that we would be, I guess, seeking to rely on with respect to the modern awards objective. I am unsure as to whether something arose in terms of whether or not further submissions will be required.

PN204

JUSTICE ROSS: The earlier discussion wasn’t - I was seeking to avoid getting into the adequacy of the outline of submissions that have been filed. But what will be sought is this material that Ms Toth is referring to, your statistical material, any government reports, anything else that you have filed, Mr Moore has pointed out, well, that material is quite voluminous and they are in the dark about what do you extract from that material? So, in other words, what findings do you seek the Commission to make based on that material. That is the question that is being put to you and that is the question that would be put to you in the revised directions.

PN205

MS CRUDEN: Yes, your Honour, the findings that we sought be made on that material were set out within the outline, I think they nearly stretched to around two pages in terms of that material that was filed. So I guess from my perspective I confirm that the finding for that material has been set out in the outline of 20 April.

PN206

JUSTICE ROSS: All right. You have a discussion with Mr Moore and sort out what exactly is the issue and see if you can reach an agreement in relation to that. I would encourage the parties to do that as much as possible. To be frank, if we are going to have skirmishing around every single issue and if we have to deal with it in a mention rather than parties corresponding directly and trying to sort these things out, there are going to be inevitable delays and additional costs to the parties in these proceedings. So as much as possible, pick up the phone and try and sort out the issue between yourselves rather than coming in here to get it sorted out, okay. Anything else?

PN207

MS CRUDEN: Thank you, your Honour.

PN208

MR MOORE: Your Honour, I had one other issue arising from the employer’s submissions about the listing dates and I feel it incumbent just to raise this now, I was going to raise it later. Ms Peluso, reference has been made to her availability and so on. It is our intention to object to the receipt of the reports that have been prepared by Ms Peluso on various bases, and that was a matter I was going to flag in due course but I just wanted to flag that to the parties and to the Commission.

PN209

JUSTICE ROSS: That is fine and we will need to then consider what dates we will deal with objections and the like.

PN210

MR MOORE: Yes.

PN211

JUSTICE ROSS: Just before you do we might just deal with the retailers, Mr Tindley.

PN212

MR TINDLEY: Thank you, your Honour. The only comments we make in terms of dates is that in terms of Dr Sands availability, who is the expert called by the retail group. I am aware that the period of 28 September to 5 October is available. I don’t believe that he’s available in the November block but I will confirm that. The other issue that I wanted to raise and the Commission clearly is minded to this in the statement that it issued, your Honour. I am a keen student of history and I think if we reflect on the 2012 review and how the penalty rates component of that proceeded there are some very solid learnings and they are - there’s an enormous number of lay witness evidence that is going to be filed and there is an enormous number of lay witness evidence that is going to be relatively uncontroversial.

PN213

Our view is that we will be pushing with the SDA to reach a level of agreement about what these statements and what they do. So we want to be very clear with the SDA about what propositions our witnesses are making. We will encourage them to do the same with us with a view to minimising any contentious evidence because my experience with 2012, there was a lot of questioning through cross-examination that was perhaps unnecessary.

PN214

JUSTICE ROSS: At the end of the day no doubt submissions will be made about what do we make of the fact that 50 or so employers say this? Or what do we make of the fact that 50 or so employees express this view? How much is said to be representative? How much weight, et cetera? I understand the reasons why the respective parties call the material but there are those considerations as well. No doubt they will be the nature of your submissions directed at the SDA evidence and their submissions directed at yours. So I would certainly encourage both the retailer and the hospitality parties to engage around those issues and agree on whatever you can agree on. As you say, I have no desire to repeat past history in relation to these matters. Mr Dowling.

PN215

MR DOWLING: Thank you, your Honour, two very brief matters. In respect of the two sets of dates that your Honour proposed, I wonder if your Honour might allow us to assess the availability of our experts in both of those periods and write to your Honour’s chambers today.

PN216

JUSTICE ROSS: That will be fine, Mr Dowling. Any other party can do the same. Ms Wellard, would you mind - I know you’ve put her on the record, as has Mr Hindley about availability of their experts, but it would be helpful if you could send a note to my chambers later today just confirming those issues. I don’t want to lose track of what a party has said in trying to track it through transcript. It is easier to deal with in correspondence.

PN217

MR DOWLING: Thank you, your Honour. The last matter, I should put on the record, in terms of our preferences our time table as proposed in our letter of 24 July still remains our first preference.

PN218

JUSTICE ROSS: I understand that.

PN219

MR DOWLING: If you are against us on that the November dates are our second preference. Primarily for the reason that would enable enough time for the sort of consultation issues that we have described. The last of the preference is the September to October dates that your Honour identified. Thank you, your Honour.

PN220

JUSTICE ROSS: Thank you. That deals with those issues. Can I raise some other issues and some of these it might be too early and if it’s too early then just let me know. Hearing location, does anyone want to say anything about that? If we deal with the lay evidence, bearing in mind I don’t know where the union lay evidence is coming from. I suppose to the extent we can I would rather not have a travelling roadshow mainly because of the disruption that causes with packing up, moving, wasted time, et cetera.

PN221

That period between 8 September and the 25th. If we work on the basis that at least within that period the lay hospitality evidence would be dealt with. I did a brief analysis and put it in one of the statements I think about the employer witnesses, the preponderance were in New South Wales, although spread around a bit, and then Queensland seemed to be the next. Do any of the parties wish to express any view - I think Ai Group has already expressed a view about Sydney. We can have the discussion about the expert evidence I think once the Bench has reached a decision about the timing of that. There will undoubtedly be a further mention before that expert evidence is heard and at that point we can discuss things like the order, who is going to be cross-examined and location.

PN222

What we do know at the moment is that there are a raft of 67 lay witness statements from the employers, let us just deal with them and deal with what is known about the union lay evidence. Does anyone want to say anything about where we should hear it? There will of course be video links provided and those sorts of issues but are there any preferences?

PN223

MS CARAYANNIS: Your Honour, on behalf of Clubs Australia Industrial our preference would be for the hearing to be in Sydney on the basis that the majority of our witnesses are in New South Wales. However, we may need video link facilities for our witness in Queensland in Victoria.

PN224

JUSTICE ROSS: We will certainly provide video links. Mr Dowling.

PN225

MR DOWLING: Your Honour, we can give your Honour some additional information. The lay evidence in respect of United Voice is due to be filed on 10 August and we can tell you that there is a significant number of those from Victoria which will put them slightly ahead of Queensland in terms of total numbers, still slightly behind New South Wales in terms of total numbers.

PN226

JUSTICE ROSS: So it may be that we have - we apportion a block for Sydney and then we apportion some time in Melbourne with video links to the other states, might suit your convenience?

PN227

MR DOWLING: Yes, your Honour. Our preference remains Melbourne, but we have a preference against more than two cities and ‑ ‑ ‑

PN228

JUSTICE ROSS: So do I. Yes.

PN229

MR DOWLING: ‑ ‑ ‑ the obvious demarcation in those circumstances is part Sydney and part Melbourne.

PN230

JUSTICE ROSS: All right. That's something that we can – does anyone have a view that would object to that as a broad proposition that, look, we do Sydney to deal for a portion of the period, perhaps the early part? We'll make an assessment about the split after the further mention, once we know how many are going to be called and cross‑examined and after the parties have had an opportunity to have a direct discussion. But does anyone want to say anything against the idea that we’d split the lay evidence hearing scheduled for the 8th to, you know, sometime towards the end, 25 September, within that period? We’d have some of it in Sydney and some of it in Melbourne with video‑links as required. Anyone got a problem with any of that? No? All right.

PN231

In relation to objections to the material that’s been filed, perhaps one way of dealing with that will be to deal with it in revised directions and if you have an objection, you notify at the time and we'll give you an indication about when that would be heard, but you've already foreshadowed, Mr Moore, that there’s an objection to one of the expert’s statements that have been filed. The employers may have objections to yours. So I think we just need a bit of a process to give the respective parties an opportunity to identify what their objection is and then it will probably be what your objection is and sort of a dot point as to the substance of it and then we’d have an oral hearing rather than an endless written submission process. Okay?

PN232

MR DOWLING: Yes. That would be consistent with what we were going to propose, your Honour.

PN233

JUSTICE ROSS: Thank you. Lay evidence, the same sort of issues may arise, although I'm hoping that you all took on board my earlier exhortation not to include submissions in the lay evidence, but I’ve not gone through the lay evidence at this point that’s been filed. I haven't seen the union lay evidence, but similarly, there’d be a process for objection to any part of that.

PN234

The idea would be let’s resolve all the objections first before we get in – don’t do it when the witness is in the box. Let’s do it an earlier stage. That will be the intention. Okay? I think there was one other issue I needed to cover, that is Restaurant and Catering Industrial has filed a number of redacted witness statements. The unredacted versions of those have been sought by the union parties. Subject to an undertaking by counsel for those parties that they’ll only disclose the identity and location of those businesses for the purpose of preparing for cross‑examination and to seek instructions and not more broadly, what’s the problem with providing the unredacted statements?

PN235

MR DOWLING: Sorry, your Honour. I can tell your Honour the unredacted versions have been provided to my client.

PN236

JUSTICE ROSS: Thank you. So there’s no issue about that?

PN237

MR DOWLING: No, your Honour.

PN238

JUSTICE ROSS: All right, thanks for that, Mr Parkes. Is there anything else - I'm sure there, is there anything else that I’ve missed that at this stage that you need some clarity around before we move much further?

PN239

MR MOORE: I can think of two issues, your Honour. One would be what date is fixed for the filing of the union expert evidence. Obviously, as things currently stand, that’s 24 August, but we are proceeding on the basis informally that there is, in effect, an additional week there, but that’s obviously something we wouldn't continue to proceed on that basis. We’d like that addressed in a direction. If the ‑ ‑ ‑

PN240

JUSTICE ROSS: I can indicate that, look, for my part because of the delay, I understand the force of that proposition, but we'll endeavour to get out any revised directions and clarity on Friday afternoon.

PN241

MR MOORE: I see.

PN242

JUSTICE ROSS: So you'll have that sooner rather than later.

PN243

MR MOORE: And what I was going to raise, your Honour, was if the expert evidence is ultimately heard in either of the dates that you flagged before from late September or in November, certainly if it’s the November dates, we’d seek more time insofar as it can reasonably be sought beyond 30 August. Without going into it, it’s been a very challenging task preparing responsive expert material in seven weeks. People are overseas. Professors and the like are busy people. It’s very difficult to bring that material together.

PN244

We've done our best, but for our part we would seek as much more time as can reasonably be sought beyond the 30th. Can I also raise – and to be totally transparent – we have one particular problem with one particular expert who is overseas until 29 August and we won’t therefore be able to file a report by that expert, even by 30 August.

PN245

JUSTICE ROSS: What’s that expert?

PN246

MR MOORE: That's Serena Yu.

PN247

JUSTICE ROSS: Sorry?

PN248

MR MOORE: Serena Yu, Y-u. We have just a ‑ ‑ ‑

PN249

JUSTICE ROSS: All right.

PN250

MR MOORE: ‑ ‑ ‑ real problem with achieving even the 30th in relation to her. I just wanted to raise that with your Honour.

PN251

JUSTICE ROSS: Look, I mean, we'll take it into account, but bearing in mind the employer parties were provided with a period of time and you've been on notice for a while, if we’re revisiting when you file, we would also give consideration to the filing of reply evidence from the employer experts as well. So there might be a ripple. I'm not sure that much more time ‑ ‑ ‑

PN252

MR MOORE: Even if it is in the nature of a week, every day is valuable, from our perspective.

PN253

JUSTICE ROSS: Yes. I understand the particular issue around that one witness and that’s something that we'll have a look at.

PN254

MR MOORE: Yes, thank you. The only other issue to raise with you, your Honour, while we’re all here is it would be good to get an indication from the employers in the retail group whether or not there is any material departure from the previous estimates given as to the number of lay witnesses to be called. Part of the problem, as I understand it, in relation to the currently scheduled hospitality and expert evidence 14 days, is that twice as many lay witnesses are proposed to be called than were foreshadowed some months ago.

PN255

If there is a change there, we don’t want to be back here in a month’s time saying – or next week - we’re not going to be able to do the October dates.

PN256

JUSTICE ROSS: No, I understand.

PN257

MR MOORE: Yes.

PN258

JUSTICE ROSS: Mr Tinley, have you got anything you can add to that?

PN259

MR TINLEY: Yes. I can't recall what our initial estimate - I think we’d estimated about 15 witnesses in retail. We look like we'll be filing nine witness evidence – nine or 10.

PN260

MR MOORE: I thank Mr Tinley for that. I think pharmacy, the guild, had foreshadowed – and I'll stand corrected – 50. It would be rather concerning if that’s now 100.

PN261

JUSTICE ROSS: Ms Wellard, are you able to assist with that?

PN262

MS WELLARD: Yes, your Honour. It won’t be 100. It may be 50. I can say it will at least be 25.

PN263

JUSTICE ROSS: All right. So somewhere between 25 and 50.

PN264

MR MOORE: Thank you.

PN265

JUSTICE ROSS: Thanks, Ms Wellard.

PN266

MR MOORE: And I'm not sure what the position with the AI Group and fast food is.

PN267

JUSTICE ROSS: Ms Cruden?

PN268

MS CRUDEN: Yes, your Honour. Leanne Cruden here. We anticipate that we'll file 14 affidavits on 10 August.

PN269

JUSTICE ROSS: 14? Probably with swings and roundabouts, you're going to be below where the collective estimate was going to be, in any event.

PN270

MR MOORE: That sounds about right. Thank you.

PN271

JUSTICE ROSS: Yes, Mr Dowling?

PN272

MR DOWLING: Thank you, your Honour. Two issues, one of which your Honour has raised: we just wanted to re‑emphasise that this arises from your Honour’s statement of 3 August in relation to the hospitality survey evidence.

PN273

JUSTICE ROSS: Yes.

PN274

MR DOWLING: At page 3 of your Honour’s statement is set out the survey evidence filed by Restaurant and Catering Industrial and you posed the questions how the evidence was to be presented and whether there was a witness statement to be filed explaining the methodology used in respect of those surveys.

PN275

JUSTICE ROSS: Yes.

PN276

MR MOORE: As we've seen the surveys, there is no witness statement explaining the methodology.

PN277

JUSTICE ROSS: Yes. Mr Parkes, the normal course would be – and perhaps if you look at the annual leave common issue, and you might have a chat to Mr Izzo about this - the employer survey that was tendered in those proceedings was accompanied by a witness statement and a witness who gave information about how the survey was conducted, response rates and the like and that would be required in this instance as well otherwise there’s no one to ask any questions in relation to the survey and I'm not sure what then could make of it.

PN278

MR PARKES: Your Honour, we have done that. The jetty research report is accompanied by a witness statement by Mr James Parker, the managing director of the research company and we've also got the benchmarking survey; is accompanied by a witness statement from our policy director in-house at Restaurant and Catering Australia and the remaining two elements of the surveys is accompanied by a witness statement by Mr John Hart, the CEO of Restaurant and Catering Australia and all of those witness statements cover the methodology used with the surveys.

PN279

JUSTICE ROSS: All right. Mr Dowling, do you have any residual concerns then that there’s material in there that doesn't have anyone explaining it?

PN280

MR DOWLING: Yes, your Honour. The last of the three that you identify in the dot points. The material, we say, doesn't adequately do what it should do in terms of what your Honour has identified. We’re happy to take it up directly.

PN281

JUSTICE ROSS: I think that’s probably the best course. In any event, you can cross‑examine those witnesses, if necessary. But it would probably avoid cross‑examination, Mr Parkes, or at least limit it if you're able to have a conversation with Mr Dowling and perhaps clarify some questions he has in advance in discussion with your witnesses. That may mean that they're not required or inconvenienced by being required to come in for cross‑examination. So I’d certainly encourage you to have that conversation. Okay?

PN282

MR PARKES: Thank you.

PN283

JUSTICE ROSS: So I'll leave that with each of you, but it will either be dealt with in cross‑examination or by agreement.

PN284

MR DOWLING: Just one very last matter, your Honour, I promise. Your Honour will have seen, we forecast or foreshadowed in our correspondence, I think of 18 June, but also 24 July, there is one of the modern awards, the Dry Cleaning and Laundry Industry Award that affects my client that is in the retail grouping. We expect only a very small number of witnesses would be called by United Voice in respect of that award. We were hopeful, so as not to inconvenience those witnesses and any of the other parties that we could be allocated no more than a day in the retail hearing just to deal with that award.

PN285

We understand, certainly from Mr Moore’s perspective, they don’t propose to call any witnesses in respect of that award. Our preference is if that can be accommodated, it would be in the last of the weeks allocated, which is the one commencing 26 October.

PN286

JUSTICE ROSS: Okay. Look, a bit like the Clubs Industrial proposition, I’d ask you to talk to the others involved in it and I'm sure you can sort out – it’s sensible if it’s a discrete issue to try and get an agreed date when that might occur so those who have an interest in that award rock up then rather than having to come along when – and I’d encourage you to do that with all of them. The sooner you can identify which groups of witnesses will be dealt with where and what awards they relate to, that might also minimise costs to the parties because you can make a decision then about whether you need to attend for that bit.

PN287

So the more certainty we can provide around those things in a way that minimises inconvenience to witnesses and assists the parties collectively, I'm all for. But I think in the initial stage it should be discussed between yourselves. We'll certainly have – I have an uneasy feeling, Mr Dowling, this won’t be the last mention in these proceedings and certainly if you do strike a problem and you can’t sort it out, well then of course you've got liberty to apply for a mention, but I do want to encourage you in the first instance to try and agree on these nuts and bolts issues between yourselves to the greatest extent possible rather than have us, as it were, make some arbitrary determination that may not suit anyone’s convenience.

PN288

MR DOWLING: Thank you.

PN289

JUSTICE ROSS: Okay? Is there anyone else? As I’ve indicated, the Full Bench will confer on Friday. We'll endeavour to get revised directions dealing with the issues that have been raised either Friday afternoon or, at the latest, early next week and I'll reiterate my desire that the parties start the process of discussing these matters directly between you. Nothing further?

PN290

Look, thanks very much for your patience this morning and for your assistance and flexibility in trying to accommodate the respective positions of the parties. I think that’s something that we’re going to have to build on because I expect that there will be a bit of ebbing and flowing in this case as we go through it because it’s difficult to know at the outset, and it’s difficult for each of the parties to make realistic estimates until all the material is in. So it may mean that on some days, we’re sitting a bit later to accommodate a witness or a time zone difference to or those sorts of issues. All right, thanks very much. You'll hear from the Bench later this week. I'll adjourn.

ADJOURNED INDEFINITELY [10.21 AM]