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, 3 AUGUST 2015

4 yearly review of modern awards – penalty rates – mention – 5 August 2015.

[1] Further to the Statement issued on 29 July 2015 the following information is provided for the purpose of the mention to be held at 9.00 am on Wednesday 5 August 2015. The issues raised in this Statement will be canvassed at the mention.

A. Expert Evidence

[2] To date various employer parties have filed expert evidence from 4 expert witnesses:

Expert Evidence	Title / Institution	Organisation	Location

Professor John Rose Study—Value of time and value of work time during public holidays	Institute for Choice	University of SA	Sydney, NSW

Professor Phil Lewis Research—Penalty rates and the retail, caf� and restaurant; and hairdressing and beauty industries	Director, Centre for Labour Market Research	University of Canberra	Canberra, ACT

Dr Sean Sands Witness Statement and Report – Retail Award Research	Research Director of the Australian Centre for Retail Studies	Monash University	Melbourne, Vic

Ms Lynne Pezzullo Witness Statement and Report —The Modern Face of Weekend Work Research—The effect of the Pharmacy Industry Award 2010 on community pharmacy in Australia	Lead Partner, Health Economics and Social Policy	Deloitte Access Economics	Barton, ACT

[3] The Australian Industry Group (Ai Group) has indicated that at present it does not propose to call an expert witness, but reserves its right to call such evidence in response to expert evidence filed by the unions.

[4] As per the directions issued on 3 March 2015 ([2015] FWC 1482) the Union parties are to file their expert evidence and common material by 24 August 2015 and the employers are to file any expert evidence in reply by 1 September 2015.

Issues

1. Parties were directed to file an outline of submissions and the findings they submit the Commission should make based on the expert evidence. This direction has not been complied with in all cases.

Parties will be invited to comment on a proposed revised direction that the party calling an expert be directed to file the proposed findings based on that particular expert’s evidence, by 4.00 pm on 24 August 2015.

2. Given the location of the experts to be called, does the balance of convenience favour the hearing being located in Sydney? If so what video links will be required?

3. In accordance with the directions the Employer parties have filed statements from 4 experts. In relation to the evidence filed:

(i) Is there any objection to the statements filed?

(ii) Are the witnesses required for cross examination and if so how long is the cross examination of each witness likely to take?

(iii) In what order are the witnesses to be called?

4. The Union parties have indicated that they will file statements from 11 experts. The issues set out at paragraph 3 above also arise in relation to the Union evidence but cannot be answered until the evidence is filed on 24 August 2015.

Is it convenient to have a further mention to deal with these issues at 9.00 am on Thursday 27 August 2015?

B. Hospitality Survey Evidence

[5] Restaurant and Catering Industrial (RCI) have indicated that they intend to rely on four surveys in relation to the hospitality group:

● Telephone Survey Poll: 1000 business owners will be surveyed by Jett Research (an independent research company) on penalty rates and employment issues;
● Benchmarking survey: survey of RCI members about penalty rates and employment issues conducted in-house via online survey (Survey Monkey);
● Omnibus Survey Poll: 2 additional questions will be added to the poll of consumers regarding consumers’ views in relation to weekends conducted by I-View (an independent research company).
● Web Survey Poll: a survey of independent business owners regarding labour costs conducted by Elections Australia P/L (an independent research company).

[6] Ai Group filed a bundle of statistical and related data, including data compiled by the ABS.

Issues

1. How is the evidence to be presented?

2. Is a witness statement to be filed explaining the methodology used in each instance?

C. Hospitality Evidence

[7] To date the employer parties have filed 67 witness statements:

Australian Hotels Association and Accommodation Association of Australia

	Witness	Title / Position	Location

1.	Albert Hakfoort	CEO of network of hotels in Qld	Qld

2.	Andrew Bullock	CEO of ‘1834 hotels’	Adelaide, SA

3.	Anthony Lebherz	Manager of Shearers Arms Tavern	Ormeau, Qld

4.	Ashley Winn	Hotel Manager of Halikos Hospitality P/L	Darwin, NT

5.	Belinda Usher	Owner and Manager of The Fitzroy Beer Garden	Fitzroy, Vic

6.	Clive Johnston	Owner of Pencray P/L, trading as Prince Alfred Hotel, Booval, Qld	Ipswich, Qld

7.	Colin Waller	Hotel Owner, The Heads Hotel Motel P/L	Shoalhaven Heads, NSW

8.	Dan Cronin	Hotel Owner and Manager of Western Hotel	Ballarat, Vic

9.	Darren Lea Brown	Hotel Manager, Shoreline Hotel	Howrah, Tas

10.	Darren Gunn	Hotel Owner, Crescent Head Tavern	Crescent Head, NSW

11.	David Gibson	Owner, Westcourt Tavern, Westcourt, Qld	Brisbane, Qld

12.	David Ovenden	Group Operations Manager, Glen Hotel	Eight Mile Plains, Qld

13.	Dean William Trengrove	Hotel Owner of Mulga Hill Tavern	Broken Hill, NSW

14.	Dennis Madden	Director and Mgr of Madden’s Commercial Hotel	Camperdown, Vic

15.	Fiona McDonald	Accounts Mgr of the Timber Creek Hotel	Timber Creek, NT / Kununurra, WA

16.	Peter Williams	Owner and Mgr of San Remo Hotel	San Remo, Vic

17.	Helen Sergi	Owner of the Steam Packet Hotel, Nelligen, NSW	Batehaven, NSW

18.	Ian Green	Owner of the Courthouse Hotel, Mudgee, NSW	Mudgee, NSW

19.	Jackie Booth	Chief Operating Officer of Zagame Corporation	Melbourne, Vic

20.	Jim Ryan	Hotel Owner /Manager of Gippsland Hotel	Sale, Vic

21.	Joanne Blair	Director of Zamovisa Emloyment P/L	Sydney, NSW

22.	John Andrew Dowd	Hotel Owner of Croote P/L which trades as Lightning Ridge Outback Resort & Caravan Park	Lightning Ridge, NSW

23.	John Clarkson	Director of Katie 180 P/L which operates the Tattersall’s hotel	Toowoomba, Qld

24.	John Dabner	Director and Mgr of Tall Timbers	Smithton, Tas

25.	Kasie Ferguson	Owner and Mgr of Railway Hotel in Parkes, NSW	Parkes, NSW

26.	Keith McCallum	Hotel Owner/Mgr of Lonsdale Hotel	Lonsdale, SA

27.	Mel Tait	General Manager for Murrumba Downs Tavern	Murrumba Downs, Qld

28.	Patrick Gallagher	Owner of the Gallagher Group of Hotels	North Sydney, NSW

29.	Peter Johnston	Owner of the Ulster Hotel	Ipswich, Qld

30.	Peter Sullivan	Owner of Grogbaron P/L which trades as the Queensland Hotel Goondiwindi	Goondiwindi, Qld

31.	Philip Tudor	Owner of the Hotel Canobolas	Orange, NSW

32.	Rick Lovell	Hotel Owner of the Marryatville Hotel	Kensington, SA

33.	Samantha Walder	Director of HR at the Intercontinental, Double Bay	Double Bay, NSW

34.	Samuel McInnes	General Manager of the Hurley Hotel Group	Adelaide, SA

35.	Sharon Martin	General Manager of the Adelaide Rockford Hotel	Adelaide, SA

36.	Sue Mitchell	Hotel Owner of the Victoria Tavern	Rockhampton, Qld

37.	Susan Cameron	Owner of the Lord Roberts Hotel	Sydney, NSW

38.	Tim Bilston	General Manager of the Amora Hotel Riverwalk Melbourne in Richmond, Vic	Melbourne, Vic

39.	Tony Cakmar	General Manager of Clarion Suites Getaway in Melbourne	Melbourne, Vic

40.	Vanessa Anderson	HR Mgr of the Pacific Hotel, Cairns	Cairns, Qld

41.	Will Cordwell	Hotel Owner of Cordwell Investments P/L which trades as Ascot Hotel in North Rockhampton	North Rockhampton, Qld

42.	Michelle Morrow	Financial Controller and HR Mgr of Hunger Management Service P/L	Vic

43.	Michael Burke	Business Owner (part-owner) of Hotel Malvern P/L which trades as the Malvern Hotel	Malvern, Vic

44.	Daryl Walker	Revenue Mgr of Lilianfels Blue Mountains	Katoomba, NSW

45.	William KC Tam	Manager of Alatai Holiday Apartments in Darwin’s CBD	Darwin, NT

46.	Michael Mark Karney	Owner of Small Bar P/L which trades as Bar Petite in Newcastle, NSW	Newcastle, NSW

47.	Graham Annovazzi	Hotel Owner of Capertee Royal Hotel	Capertee, NSW

Restaurant and Catering Industrial

	Witness	Title / Position	Location

1.	James Parker	Managing Director of Jetty Research	Coffs Harbour, NSW

2.	John Hart	CEO of the Restaurant and Catering Industry Association of Australia Inc, trading as Restaurant & Catering Australia (R&C)	St Leonards, NSW

3.	Carlita Warren	Policy & Public Affairs Director of the Restaurant and Catering Industry Association of Australia Inc, trading as Restaurant & Catering Australia (R&C)	St Leonards, NSW

4.	‘Redacted’	Business owner of …	Unknown

5.	‘Redacted’	Business owner of …	Griffith, NSW

6.	‘Redacted’	Business owner of …	Adelaide, SA

7.	‘Redacted’	Business owner of …	Main Beach, Qld

8.	‘Redacted’	Business owner of …	NSW

9.	‘Redacted’	Business owner of …	Perth, WA

10.	‘Redacted’	Business owner of …	Vic

11.	‘Redacted’	Business owner of …	Qld

12.	‘Redacted’	Business owner of …	Canberra, ACT

13.	‘Redacted’	Business owner of …	SA

Note: the signed versions of statements number 12 and 13 above have been forwarded to the chambers of Justice Ross’ with a request to keep confidential. They have been published in redacted form.

Clubs Australia Industrial

	Witness	Title / Position	Location

1.	Richard Ian David Tait	Executive Manager – Workplace Relations for The Registered Clubs Association of NSW	Sydney, NSW

2.	Gwyn Rees	Deputy Chief Executive of Clubs ACT	Canberra, ACT

3.	Jeffrey Cox	Operations Manager of Coffs Ex Services Memorial and Sporting Club Ltd	Coffs Harbour, NSW

4.	Paul Maskell Biddlestone	Chief Executive Officer of Batemans Bay Soldiers Club, NSW	Batemans Bay, NSW

5.	Anthony Mark Casu	Club Manager of Narooma Sporting & Services Club Ltd in Narooma, NSW	Narooma, NSW

6.	David Bruce Orchard	Club Manager of Marcoola Surf Life Saving Supporters Club, Qld	Marcoola, Qld

7.	John Dellar	Club Manager of Club Hawthorn, Victoria	Hawthorn, Vic

Issues

1. In relation to the 67 witness statement which have been filed by the Employer parties:

(i) Is there any objection to the statements filed?

(ii) Which witnesses are required for cross examination and if so how long is the cross examination of each witness likely to take?

(iii) In what order are the witnesses to be called?
(iv) Given the location of the witnesses what is the most convenient location for the hearing (with video links if required)? It appears the employer witnesses are located as follows:

● 23 in New South Wales
● 15 in Queensland
● 12 in Victoria
● 7 in South Australia
● 3 in the Northern Territory
● 2 in the Australian Capital Territory
● 1 in Tasmania
● 1 in Western Australia

(v) How do the parties propose to deal with the ‘redacted’ witness statements filed by Restaurant and Catering Industrial?

2. The closing date for the filing of the union (non-expert) evidence is 10 August 2015. Are the union parties in a position to indicate how many statements they are likely to file?

The issues set out at point 1 above also arise in relation to the Union evidence and could be addressed at a subsequent mention.

PRESIDENT

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