STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Penalty rates
(AM2014/305)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 23 FEBRUARY 2015

4 yearly review of modern awards – penalty rates.

[1] The purpose of this statement is to provide further information about the scheduling of various proposals to vary penalty rates in a number of modern awards as part of the 4 yearly review of modern awards. It is convenient to refer to these matters collectively as the penalty rates case. The proposed variations are to be heard by a specially constituted Full Bench.

[2] Following a conference held on 12 December 2014 to deal with various programming and scheduling issues the Commission issued a Statement on 17 December 2014. The December Statement dealt with, among other things, the sequencing of awards and noted that there was general agreement that the awards and issues in the penalty rates case should be dealt with jointly and that the hearing sequence should be as follows:

Common evidence	hearing	around 20 July 2015
Hospitality evidence	hearing	late August 2015
Retail evidence	hearing	late September 2015

[3] In the context of the December Statement ‘common evidence’ referred to evidence that would be relevant to the consideration of claims in all awards and industry sectors, and would generally be provided by an expert but may include government reports, statistical or social commentary material. It was intended that award or industry-specific evidence would be presented during the Hospitality and Retail group phases.

[4] Attachment A to the December Statement set out a draft timetable for dealing with the penalty rates case. Comments were invited on the draft timetable and a further conference was held on Friday 20 February 2015.

[5] A number of issues were discussed at the 20 February conference; in particular it emerged that a number of employer parties intended to call industry-specific expert evidence during the Hospitality and Retail group phases of the case. The Commission had previously been working on the assumption that the only expert evidence to be called would be in relation to issues common to each of the industry sectors and that this evidence would be dealt with in the common evidence phase.

[6] It is desirable that all of the expert evidence be heard during one hearing phase and that this occur before the hearing of any lay evidence to be called in the proceeding. The ‘common evidence’ phase will now be known as the ‘expert evidence’ phase. In addition to the evidence of various experts, any documentary material that may be relevant to the consideration of claims in a number of awards and industry sectors should also be tendered during the expert evidence phase.

[7] As a consequence of the broadening of the scope of this first phase of the proceedings—to enhance all expert evidence—the draft timetable must be amended. A revised draft timetable is attached. The amendments incorporated with the revised draft timetable are intended to provide employer parties with some additional time to file their expert evidence; and to provide union parties with a reasonable period in which to file any expert evidence in response to the employer material. A number of other consequential amendments have also been made to the directions relating to the filing of expert evidence.

[8] The revised draft timetable also incorporates some adjustments to the schedule in respect of the retail industry having regard to the volume of material likely to be filed in that matter, in particular:

Retail group	Originally proposed as:	Changed to:
Employer evidence to be filed	10 August 2015	No change
Union evidence to be filed	21 September 2015	5 October 2015
Evidentiary hearing	27 September 2015–9 October 2015	12–30 October 2015 (extended from 2 to 3 weeks)
Employer final submissions to be filed	4 November 2015	9 December 2015

[9] Comments in relation to the revised draft timetable can be made to amod@fwc.gov.au by 12 noon on Friday 27 February 2015.

[10] A further conference will be held on Monday 2 March 2015 at 1.30 pm (AEDT). The purpose of the conference is to provide an opportunity for interested parties to comment on the revised draft timetable with a view to finalising the timetable following the conference.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A—Revised draft timetable (in date order)

27 February 2015	Closing date for comments on revised draft timetable
2 March 2015	Conference
20 April 2015	Expert evidence—Closing date for employer parties to file the list of expert witnesses to be called (including their qualifications and the nature of their evidence) and outline of submissions and the findings they submit the Commission should make based on the expert evidence to be filed
1 June 2015	Expert evidence—Closing date for union parties to file the list of expert witnesses to be called (including their qualifications and the nature of their evidence) and outline of submissions and the findings they submit the Commission should make based on the expert evidence to be filed
29 June 2015	Expert evidence—Closing date for filing expert evidence and common material—employer parties
29 June 2015	Hospitality evidence—Closing date for filing evidence—employer parties
10 August 2015	Hospitality evidence—Closing date for filing evidence—union parties
10 August 2015	Retail evidence—Closing date for filing evidence—employer parties
24 August 2015	Expert evidence—Closing date for filing expert evidence and common material—union parties
1 September 2015	Expert evidence—Closing date for reply evidence from employer experts
8–25 September 2015 }	Expert evidence—hearing
}	Hospitality—Evidentiary hearing
5 October 2015	Retail evidence—Closing date for filing evidence—union parties
12–30 October 2015	Retail—Evidentiary hearing
14 October 2015	Hospitality—Closing date for filing final submissions—employer parties
9 November 2015	Retail—Closing date for filing final submissions—employer parties
25 November 2015	Hospitality—Closing date for filing final submissions—union parties
2 December 2015	Hospitality—Closing date for filing submissions in reply—employer parties
2 December 2015	Retail—Closing date for filing final submissions—union parties
9 December 2015	Retail—Closing date for filing submissions in reply—employer parties
14–18 December 2015	Hospitality & Retail—Final hearings

ATTACHMENT B—Revised draft timetable (by subject)

Common
27 Feb 2015	Closing date for comments on revised draft timetable
2 March 2015	Conference
20 April 2015	Expert evidence—Closing date for employer parties to file the list of expert witnesses to be called (including their qualifications and the nature of their evidence) and outline of submissions and the findings they submit the Commission should make based on the expert evidence to be filed
1 June 2015	Expert evidence—Closing date for union parties to file the list of expert witnesses to be called (including their qualifications and the nature of their evidence) and outline of submissions and the findings they submit the Commission should make based on the expert evidence to be filed
29 June 2015	Expert evidence—Closing date for filing expert & common material—employer parties
24 August 2015	Expert evidence—Closing date for filing expert evidence and common material—union parties
1 Sep 2015	Expert evidence—Closing date for reply evidence from employer experts
8–25 Sep 2015	Expert evidence—hearing

Hospitality
29 June 2015	Hospitality evidence—Closing date for filing evidence—employer parties
10 August 2015	Hospitality evidence—Closing date for filing evidence—union parties
8–25 Sep 2015	Hospitality—Evidentiary hearing
14 Oct 2015	Hospitality—Closing date for filing final submissions—employer parties
25 Nov 2015	Hospitality—Closing date for filing final submissions—union parties
2 Dec 2015	Hospitality—Closing date for filing submissions in reply—employer parties
14–18 Dec 2015	Hospitality & Retail—Final hearings

Retail
10 August 2015	Retail evidence—Closing date for filing evidence—employer parties
5 Oct 2015	Retail evidence—Closing date for filing evidence—union parties
12–30 Oct 2015	Retail—Evidentiary hearing
9 Nov 2015	Retail—Closing date for filing final submissions—employer parties
2 Dec 2015	Retail—Closing date for filing final submissions—union parties
9 Dec 2015	Retail—Closing date for filing final submissions—employer parties
14–18 Dec 2015	Hospitality & Retail—Final hearings