PN1

THE VICE PRESIDENT: Mr Robson, you appear for the ASU? Mr Robson, are you there?

PN2

MR M ROBSON: Yes, Vice President, I'm here.

PN3

THE VICE PRESIDENT: All right. So you appear for the ASU?

PN4

MR ROBSON: Yes, I do, sir.

PN5

THE VICE PRESIDENT: Mr Bull, you appear for the United Worker's Union?

PN6

MR S BULL: That's correct, your Honour.

PN7

THE VICE PRESIDENT: And Ms Liebhaber, you appear for the HSU?

PN8

MS R LIEBHABER: Yes, your Honour.

PN9

THE VICE PRESIDENT: All right. On the employer's side, Mr Ward, you appear for ABI and the NSW Business Chamber?

PN10

MR N WARD: Yes, your Honour.

PN11

THE VICE PRESIDENT: Mr Pegg, you appear for National Disability Services?

PN12

MR M PEGG: Yes, your Honour.

PN13

THE VICE PRESIDENT: Mr Ferguson, you appear for the Ai Group?

PN14

MR B FERGUSON: Yes, your Honour.

PN15

THE VICE PRESIDENT: And Ms Thomson, you appear for the Australian Federation of Employers and Industries?

PN16

MS P THOMSON: Yes, your Honour.

PN17

THE VICE PRESIDENT: Well the first issue is whether the parties have filed all the material they want to file in relation to this matter. Is there any party that wishes to file any further material?

PN18

MR WARD: Your Honour, it's Mr Ward. I don't think we'll seek to file any additional evidentiary material, but we haven't finished reading everything that people put on. It might be that we might want to file some further submissions, but probably no evidence. But can I just indicate this? We will be seeking to make application for orders for production, and I'm happy to address that at an appropriate time.

PN19

THE VICE PRESIDENT: All right. Well let's just stay with the submissions. How long might you need to do that?

PN20

MR WARD: Your Honour, I would think Friday next week would be satisfactory to us, if we are going to file any further written submissions.

PN21

THE VICE PRESIDENT: All right. If I go back - - -

PN22

MR FERGUSON: It's Mr Ferguson - - -

PN23

THE VICE PRESIDENT: Yes, Mr Ferguson?

PN24

MR FERGUSON: Yes, your Honour, we would seek to file some additional material, at the very least written submissions. We haven't got a concluded view as to whether there would be any evidentiary material, because not only do we have to finish going through some of the material, but importantly we've got to consult with some of the key members, including members who have employees who advanced evidence in the proceedings. In terms of timeframes, we would ideally be seeking a date for filing materials of 1 July, so that we can have those consultations, make a decision about evidence, and then prepare our material. We say that having regard to the nature of these proceedings, but also on the basis of other matters that are on before the Commission and not wanting to disturb any other timetables for award proceedings, including in particular the significant proceedings around pandemic leave, which your Honour is probably aware, we sit for a hearing on 25 and 26 June. So we would seek a date for filing additional material in relation to this matter that is just slightly after that matter concludes. I can go through the raft of additional matters that we have on at the moment, but that matter is probably the most relevant to a lot of parties here.

PN25

THE VICE PRESIDENT: All right. Does any employer group need to file any further material?

PN26

MS THOMSON: Thomson from AFEI. We are still consulting with our members on the materials that were filed by the unions and we would appreciate the liberty to apply, or if another party is seeking a date for filing the materials, that that would be extended to all the parties.

PN27

THE VICE PRESIDENT: All right. So what do the unions want to say about how this matter should be timetabled for hearing, and (indistinct) urgency involved and when the parties will be ready to proceed?

PN28

MR BULL: There is, your Honour - this is Stephen Bull from United Worker's Union - there's an element of urgency in relation to the application. You're obviously aware that you can't - well provisions like this can't be made retrospective. We really think that the first available hearing date should be allocated and we should work around that.

PN29

THE VICE PRESIDENT: What do you say about Ai Group's request to have until 1 July?

PN30

MR BULL: Well it seems like quite a long time, and there hasn't been a massive evidentiary case filed by the unions, and a lot of the material is, I would have thought, not heavily contentious and they should be able to respond to it in a relatively short timeframe, and there's an element of mystery about getting instructions from the employers and so forth, because we were never told who their members are. I don't - - -

PN31

SPEAKER: I might just - 1 July is too long, and I might add, Vice President, that at least one of the member witnesses, the HSU's member, their employer, Life Without Barriers, has filed a submission in support of the application, and we understand that they're a client of the Ai Group.

PN32

THE VICE PRESIDENT: All right. Is there any estimate of time as to how long the hearing will take? Perhaps I should ask the applicant unions first what their estimate is and then we'll see.

PN33

SPEAKER: I'm just looking at the two days I think, your Honour, might be a possible timeframe where it could be dealt with. It all depends on how many - you know, if the employers want to cross‑examine every witness, what statements can be tendered and so forth.

PN34

THE VICE PRESIDENT: All right. Do any of the other unions take a different view?

PN35

SPEAKER: No, your Honour.

PN36

MS LIEBHABER: No, your Honour. I think one to two days would be sufficient.

PN37

THE VICE PRESIDENT: All right. So Mr Bull?

PN38

MR BULL: Your Honour, we will be calling Richardson, Highland, I'm going to say Fata but it may be Fata, Brown, and we haven't formed a view yet on Farthing and Hollywood. So I think it's going to be at least two days. I would suggest it possibly might be sensible to reserve a third just in case. So that would be our estimate in terms of courtroom time.

PN39

THE VICE PRESIDENT: All right. Do any of the other employer parties take a different view about that?

PN40

SPEAKER: No, your Honour.

PN41

MS THOMSON: No, your Honour.

PN42

THE VICE PRESIDENT: All right. Mr Ward, you wanted to move to your proposed order for production?

PN43

MR WARD: Your Honour, we will be filing F52s in relation to the majority of union witnesses. I was anticipating that they would be filed on Monday, and obviously we would need sufficient time for those to be returned, potentially deal with any debates about what is or isn't returned, and then obviously have sufficient time to review the materials prior to the hearing.

PN44

THE VICE PRESIDENT: All right. Does any other party wish to add anything?

PN45

MR FERGUSON: Your Honour, Mr Ferguson. Just in relation to the unions' submissions about the date we proposed, we accept their desire for this to be dealt with quickly. Of course we say that doesn't trump the need for us to be afforded a fair timeframe. It is a significant claim, which could have major cost implications for employers, and while we accept that there's not a massive evidentiary case put on in these proceedings, there is a very significant evidentiary case that has been advanced in the context of the pandemic leave proceedings, and as I say, part of the difficulty is the two timetables will run concurrently, if you will, and obviously there's a common interest in both. That's why we've tried to select a date that's only modestly after those proceedings, so that we don't end up needing to make an application later for these or those proceedings to be, you know, adjourned or for us to be given a greater period of time. So we haven't tried to pick a date that is excessively far away, but we think that that's a proper consideration. Obviously we also don't know what additional material will ultimately be filed by the employers, so it may be that we need to revisit, you know, how long it will be before there's an actual hearing based on what comes in later. But our major concern is the date for our material isn't before 1 July.

PN46

MR WARD: Your Honour, it's Mr Ward. Sorry, I'll ask this question as delicately as I can. In the Commission's statement of 5 May, the Commission posed a variety of questions. I'm just inquiring, is the Commission likely to issue a sort of a further statement of its views prior to a hearing? It seems that one course of action might be that the questions that were posed originally the Commission might not think they're as relevant now, because the union seems to almost sort of start its case again. I'm just trying to understand what the status of that statement and the replies was to those questions.

PN47

THE VICE PRESIDENT: Well, I mean speaking for myself, I'm (indistinct) about this matter. But obviously the Full Bench's statement will be a consideration, as will be the responses, but I haven't formed any views about the matter quite frankly.

PN48

MR WARD: That's fine, your Honour.

PN49

THE VICE PRESIDENT: Okay. Well if there's nothing further I will consult the Full Bench about what has been put, and the parties can expect to receive further directions for the filing of material and other procedural matters, and a notice of listing for the hearing, either later today or tomorrow.

PN50

MR WARD: Your Honour, sorry, could I just ask one more question? In terms of us filing our F52s, would it be appropriate for us to file those directly to the President's Chambers?

PN51

THE VICE PRESIDENT: No, you should file it with my Chambers.

PN52

MR WARD: Thank you, your Honour.

PN53

THE VICE PRESIDENT: All right. If there's nothing further we will now adjourn.

ADJOURNED INDEFINITELY [10.41 AM]