AM2017/39, Transcript of Proceedings [2017] FWCTrans 538 (29 December 2017)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1055470

VICE PRESIDENT HATCHER

AM2017/39

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards

(AM2017/39)

Registered and Licensed Clubs Award 2010

Sydney

9.06 AM, THURSDAY, 7 DECEMBER 2017

PN1

THE DEPUTY PRESIDENT: Appearances. Mr Gotting, you appear for Clubs Australia Industrial.

PN2

MR GOTTING: I do, your Honour.

PN3

THE DEPUTY PRESIDENT: Mr Ryan, you appear for the AHA and others.

PN4

MR RYAN: Yes, your Honour.

PN5

THE DEPUTY PRESIDENT: Ms Burke, you appear for United Voice, in Melbourne.

PN6

MS BURKE: Yes, your Honour.

PN7

THE DEPUTY PRESIDENT: Mr Cooper for the Club Managers.

PN8

MR COOPER: Yes, your Honour.

PN9

THE DEPUTY PRESIDENT: Mr Duncalfe for the AWU.

PN10

MR DUNCALFE: Yes, your Honour.

PN11

THE DEPUTY PRESIDENT: What's the position, Mr Gotting? Sorry, and Ms Crowe you appear for the Professional Golfers Association.

PN12

MS CROWE: Yes, your Honour.

PN13

THE DEPUTY PRESIDENT: Yes, right. What's the position, Mr Gotting?

PN14

MR GOTTING: Your Honour, on the last occasion I indicated a desire for some discussions to occur at a counsel to counsel level between my client and United Voice, over one of the issues that have been raised by United Voice in its submissions. That issue related to the effect of the application on certain entitlements in the Clubs Award and it was said by United Voice that they did not understand the case that was being presented by Clubs Australia. After the last occasion, United Voice identified the types of entitlements that was the subject of its concern and Clubs Australia I anticipate will file an amended proposed award shortly.

PN15

Yesterday, Clubs Australia provided a draft application that was designed to address the concerns to United Voice on a without prejudice basis. The discussions at the counsel to counsel level have not yet occurred but I anticipate that they will occur in the next seven days. There is one issue that was not addressed in the amended award served on a without prejudice basis and I anticipate that I need some instructions but that I'll be able to obtain those instructions and address that issue within 14 days. So my proposal is that my client be permitted to file an amended application dealing with the proposed award by 4 pm on 21 December 2017.

PN16

THE DEPUTY PRESIDENT: That would otherwise represent the completion of your case?

PN17

MR GOTTING: That would otherwise represent the completion of our case.

PN18

THE DEPUTY PRESIDENT: Right.

PN19

MR GOTTING: It's intended that my client will file an amended outline that addresses the concern - the other concerns that have been raised by United Voice and I anticipate that that amended outline will also be filed by 4 pm on 21 December.

PN20

THE DEPUTY PRESIDENT: Right, thank you. So then United Voice and others opposing the application are in position to file their material at a date to be determined.

PN21

MR GOTTING: That's right, and as I understand it once we've clarified the nature of the case the Commission had anticipated that it would make orders about the filing of evidence and the like as the next step in directions.

PN22

THE DEPUTY PRESIDENT: Right, thank you. Mr Ryan, have the organisations refined their attitude to the application yet?

PN23

MR RYAN: Not at this stage, your Honour. It is somewhat subject to seeing what the amended application is and having heard what Mr Gotting said we don't object to that proposed course.

PN24

THE DEPUTY PRESIDENT: Well, the difficulty is that if you end up supporting the application those opposing it will need to know what your case is before they respond.

PN25

MR RYAN: Yes, your Honour.

PN26

THE DEPUTY PRESIDENT: So you need to make up your mind otherwise you might lose the opportunity to put on anything.

PN27

MR RYAN: Yes, your Honour. It is perhaps in the - and I don't know what the attitude of the other parties is but if there were directions issued today flowing from 21 December thereafter, perhaps built into those directions there would be, for want of a better word, a guillotine direction that if we are to support it we have to put stuff - materials on by a certain date. At this stage, your Honour, we are on the record I think back in March this year opposing the application.

PN28

THE DEPUTY PRESIDENT: Yes, right. Thank you. Ms Burke.

PN29

MS BURKE: Thank you, your Honour. There's no objection from United Voice to Mr Gotting's client filing the amended material on 21 December. The only difficulty though is that I'm in the Commission all day on the 21st and potentially the 22nd as well, so I'm afraid it just won't be enough time to absorb that material, form a view about the evidence that United Voice, who are working closely with the AWU in defending the application, forming a view about what that evidence needs to be and the time for completion, and then being able to give the Commission a responsible estimate of what directions should be made.

PN30

So in my submission the appropriate direction today should be to Clubs Australia to file their material on the 21st, and then for the parties to return in January for timetabling directions where we've had the opportunity to consider the material and form a view about the evidence that's needed to meet the application.

PN31

THE DEPUTY PRESIDENT: Well, Ms Burke, we've reserved two weeks for hearing in July so I don't think waiting is going to improve the situation, is it?

PN32

MS BURKE: Well, your Honour, I don't anticipate that the hearing dates in July would be disturbed by the course I'm proposing. I'm conscious of wanting to assisting the Commission. I'm just not in a position at the moment to responsibly advise my client or the Commission about what evidence we need to meet the application, because it is in a sense incomplete, and how long it will take to prepare that evidence. But as I said I'm conscious of the hearing dates being allocated and I don't anticipate there will be any disturbance to those by this proposal.

PN33

THE DEPUTY PRESIDENT: Well, isn't it just a case of maximising the time available to you client within the - prior to the hearing date? That is whatever happens with this amended application if the hearing dates are to stay, you won't be able to improve the situation in terms of time.

PN34

MS MOLONEY: Sorry, I just missed the end of that.

PN35

THE DEPUTY PRESIDENT: Yes, sorry. Whatever's in this amended application if the hearing dates are to be maintained you won't be able to improve your position as to the time you have between now and then.

PN36

MS MOLONEY: No, but at this stage I am loathe to commit to a timetable that has my client filing evidence in the first couple of months of next year without having any sense of what that evidence might be. I just - my concern is that the utility of making directions now would be that those directions would be in a very real sense very temporary.

PN37

THE DEPUTY PRESIDENT: All right. Any other party opposing the application want to add anything to that? No. Mr Gotting, do you want to comment on that?

PN38

MR GOTTING: Your Honour, we have indicated to United Voice that we have filed all of the evidence upon which we intend to rely. The one outstanding issue concerns maintenance and horticultural employees which is in a small category of employees and I do not anticipate that that issue will be the subject of any evidence.

PN39

THE DEPUTY PRESIDENT: Do you - - -

PN40

MS BURKE: Sorry, can I - - -

PN41

THE DEPUTY PRESIDENT: Yes, sorry, Ms Burke. Go ahead.

PN42

MS BURKE: I'm sorry, I was just going to say that I understand Mr Gotting's position is that Clubs Australia has filed all of its evidence, nevertheless the evidence that United Voice working with the AWU might file is likely to be very much affected by whether amendments will be made to the maintenance and horticultural cohort or not. So it's not just purely responsive to the evidence that Clubs Australia has filed but we will want to prepare our own evidence addressing the obsolescence or otherwise of the award.

PN43

THE DEPUTY PRESIDENT: Right, thank you. Mr Gotting, in any timetable for filing evidence do you want to have an opportunity to put on reply evidence?

PN44

MR GOTTING: Yes, your Honour.

PN45

THE DEPUTY PRESIDENT: What's the minimum - sorry, what's the absolute maximum time you require to do that?

PN46

MR GOTTING: Four weeks, your Honour.

PN47

THE DEPUTY PRESIDENT: Four weeks.

PN48

MR GOTTING: Sorry, on the assumption there's no expert evidence four weeks.

PN49

THE DEPUTY PRESIDENT: Well, don't make any assumptions. I mean I can cancel the hearing dates and we can just let this meander on or we can try and set a timetable.

PN50

MR GOTTING: I'm not advocating for the cancellation of it.

PN51

THE DEPUTY PRESIDENT: Right.

PN52

MS BURKE: Your Honour, I should say without foreclosing anything that United Voice or the AWU might do that we do - there is a likelihood that we will file expert evidence.

PN53

THE DEPUTY PRESIDENT: Yes, all right. Well, what I'm minded to do is set directions for the filing - further directions for the filing of evidence but grant the parties liberty to apply in the event that events change. But broadly speaking, having regard to the reserved hearing dates, those opposing the application would file their material by - sorry, just excuse me. By 26 May and any evidence in reply by 23 June.

PN54

MS BURKE: Your Honour, this may be - I may come to regret this but might it be possible to pull those dates back a little bit to allow a little bit more time than two weeks between Clubs Australia's reply evidence and the commencement of the hearing.

PN55

THE DEPUTY PRESIDENT: So another week?

PN56

MS BURKE: Perhaps maybe even another three weeks.

PN57

THE DEPUTY PRESIDENT: Another three weeks?

PN58

MS BURKE: So United Voice could - as I said I may at some point want to eat my words but I think that it's - - -

PN59

THE DEPUTY PRESIDENT: I think you might. I'll give you another two weeks, so we'll make it 12 May.

PN60

MS BURKE: Yes.

PN61

THE DEPUTY PRESIDENT: That would be - and 9 June. Sorry, these are Saturdays, I'm looking in the wrong place. So it's 11 May and 8 June.

PN62

MS BURKE: Thank you, your Honour.

PN63

THE DEPUTY PRESIDENT: Again, I'll probably issue directions and I'll grant liberty to apply in the event that the amended application causes parties some insuperable difficulty in terms of preparing their case. Mr Ryan, if you decide you want to file evidence in support of the claim, then you'll have to exercise - apply for a direction to be made to accommodate that.

PN64

MR RYAN: Yes, your Honour. I understand.

PN65

THE DEPUTY PRESIDENT: Is there any reason why I shouldn't issue a formal listing for the hearing of the matter?

PN66

MR GOTTING: no, your Honour.

PN67

THE DEPUTY PRESIDENT: Ms Burke?

PN68

MS BURKE: No, your Honour.

PN69

THE DEPUTY PRESIDENT: Well, today or tomorrow we'll issue the formal directions in the hearing listing. If there's nothing further, I'll now adjourn.

PN70

MS BURKE: Sorry, your Honour, just one further matter.

PN71

THE DEPUTY PRESIDENT: Sorry, yes Ms Burke.

PN72

MS BURKE: I'm sorry, I was just going to confirm that the form of the order will be that made on 28 August with respect to Clubs Australia, so witness statements, documentary material and the outline of submissions.

PN73

THE DEPUTY PRESIDENT: Yes.

PN74

MS BURKE: Thank you.

PN75

THE DEPUTY PRESIDENT: Thank you.

ADJOURNED INDEFINITELY                                                          [9.19 AM]