[2015] FWC 5894 |
FAIR WORK COMMISSION |
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, 25 AUGUST 2015 |
4 yearly review of modern awards – penalty rates.
[1] The purpose of this statement is to outline the matters to be dealt with at the mention to be held at 9.00 am on Thursday 27 August 2015.
[2] As discussed at the mention on 5 August 2015 the purpose of the mention on 27 August 2015 is to finalise the arrangements in respect of the hospitality and expert evidence scheduled for 8 to 25 September 2015. A list of the lay hospitality witnesses is set out at Attachment 1.
[3] A draft schedule of the witness evidence is set out at Attachment 2. The draft schedule is based on the assumption that all witnesses are required for cross examination. Approximately 45 minutes is scheduled for each employer lay witness and a shorter period (about 20 minutes) is provided for each union lay witness, having regard to the differences in the character of the evidence. The Full Bench will be located in Sydney for the period of 8 to 18 September and in Melbourne for the week of 21 to 25 September 2015. Video links will be provided as required. The draft witness schedule will be discussed at the mention on 27 August 2015.
[4] The Commission has received correspondence from Restaurant & Catering Industrial seeking to amend the revised directions issued on 7 August 2015. A copy of the correspondence and the revised directions are at Attachment 3. This correspondence will be discussed at the mention on 27 August 2015.
[5] To ensure that the mention on 27 August 2015 proceeds as efficiently as possible parties are directed to file any comments on the draft witness schedule and the proposed amendments to the revised directions to amod@fwc.gov.au by no later than 4.00 pm on Wednesday 26 August 2015. Interested parties are encouraged to discuss these matters among themselves with a view to arriving at a consent position.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code C, PR571224>
ATTACHMENT 1—Lay Witnesses—Hospitality Evidence
Employer witness |
Union witness |
Witness |
Title / Position |
Location | |
AHA and AAA | |||
1. |
Colin Waller |
Hotel Owner, The Heads Hotel Motel P/L |
Shoalhaven Heads, NSW |
2. |
Darren Gunn |
Hotel Owner, Crescent Head Tavern |
Crescent Head, NSW |
3. |
Dean William Trengrove |
Hotel Owner of Mulga Hill Tavern |
Broken Hill, NSW |
4. |
Helen Sergi |
Owner of the Steam Packet Hotel, Nelligen, NSW |
Batehaven, NSW |
5. |
Ian Green |
Owner of the Courthouse Hotel, Mudgee, NSW |
Mudgee, NSW |
6. |
Joanne Blair |
Director of Zamovisa Emloyment P/L |
Sydney, NSW |
7. |
John Andrew Dowd |
Hotel Owner of Croote P/L which trades as Lightning Ridge Outback Resort & Caravan Park |
Lightning Ridge, NSW |
8. |
Kasie Ferguson |
Owner and Mgr of Railway Hotel in Parkes, NSW |
Parkes, NSW |
9. |
Patrick Gallagher |
Owner of the Gallagher Group of Hotels |
North Sydney, NSW |
10. |
Philip Tudor |
Owner of the Hotel Canobolas |
Orange, NSW |
11. |
Samantha Walder |
Director of HR at the Intercontinental, Double Bay |
Double Bay, NSW |
12. |
Susan Cameron |
Owner of the Lord Roberts Hotel |
Sydney, NSW |
13. |
Daryl Walker |
Revenue Mgr of Lilianfels Blue Mountains |
Katoomba, NSW |
14. |
Michael Mark Karney |
Owner of Small Bar P/L which trades as Bar Petite in Newcastle, NSW |
Newcastle, NSW |
15. |
Graham Annovazzi |
Hotel Owner of Capertee Royal Hotel |
Capertee, NSW |
16. |
Albert Hakfoort |
CEO of network of hotels in Qld |
Qld |
17. |
Anthony Lebherz |
Manager of Shearers Arms Tavern |
Ormeau, Qld |
18. |
Clive Johnston |
Owner of Pencray P/L, trading as Prince Alfred Hotel, Booval, Qld |
Ipswich, Qld |
19. |
David Gibson |
Owner, Westcourt Tavern, Westcourt, Qld |
Brisbane, Qld |
20. |
David Ovenden |
Group Operations Manager, Glen Hotel |
Eight Mile Plains, Qld |
21. |
John Clarkson |
Director of Katie 180 P/L which operates the Tattersall’s hotel |
Toowoomba, Qld |
22. |
Mel Tait |
General Manager for Murrumba Downs Tavern |
Murrumba Downs, Qld |
23. |
Peter Johnston |
Owner of the Ulster Hotel |
Ipswich, Qld |
24. |
Peter Sullivan |
Owner of Grogbaron P/L which trades as the Queensland Hotel Goondiwindi |
Goondiwindi, Qld |
25. |
Sue Mitchell |
Hotel Owner of the Victoria Tavern |
Rockhampton, Qld |
26. |
Vanessa Anderson |
HR Mgr of the Pacific Hotel, Cairns |
Cairns, Qld |
27. |
Will Cordwell |
Hotel Owner of Cordwell Investments P/L which trades as Ascot Hotel in North Rockhampton |
North Rockhampton, Qld |
28. |
Belinda Usher |
Owner and Manager of The Fitzroy Beer Garden |
Fitzroy, Vic |
29. |
Dan Cronin |
Hotel Owner and Manager of Western Hotel |
Ballarat, Vic |
30. |
Dennis Madden |
Director and Mgr of Madden’s Commercial Hotel |
Camperdown, Vic |
31. |
Peter Williams |
Owner and Mgr of San Remo Hotel |
San Remo, Vic |
32. |
Jackie Booth |
Chief Operating Officer of Zagame Corporation |
Melbourne, Vic |
33. |
Jim Ryan |
Hotel Owner /Manager of Gippsland Hotel |
Sale, Vic |
34. |
Tim Bilston |
General Manager of the Amora Hotel Riverwalk Melbourne in Richmond, Vic |
Melbourne, Vic |
35. |
Tony Cakmar |
General Manager of Clarion Suites Getaway in Melbourne |
Melbourne, Vic |
36. |
Michelle Morrow |
Financial Controller and HR Mgr of Hunger Management Service P/L |
Vic |
37. |
Michael Burke |
Business Owner (part-owner) of Hotel Malvern P/L which trades as the Malvern Hotel |
Malvern, Vic |
38. |
Darren Lea Brown |
Hotel Manager, Shoreline Hotel |
Howrah, Tas |
39. |
John Dabner |
Director and Mgr of Tall Timbers |
Smithton, Tas |
40. |
Andrew Bullock |
CEO of ‘1834 hotels’ |
Adelaide, SA |
41. |
Keith McCallum |
Hotel Owner/Mgr of Lonsdale Hotel |
Lonsdale, SA |
42. |
Rick Lovell |
Hotel Owner of the Marryatville Hotel |
Kensington, SA |
43. |
Samuel McInnes |
General Manager of the Hurley Hotel Group |
Adelaide, SA |
44. |
Sharon Martin |
General Manager of the Adelaide Rockford Hotel |
Adelaide, SA |
45. |
Ashley Winn |
Hotel Manager of Halikos Hospitality P/L |
Darwin, NT |
46. |
William KC Tam |
Manager of Alatai Holiday Apartments in Darwin’s CBD |
Darwin, NT |
47. |
Fiona McDonald |
Accounts Mgr of the Timber Creek Hotel |
Timber Creek, NT / Kununurra, WA |
Clubs Australia Industrial | |||
48. |
Richard Ian David Tait |
Executive Manager – Workplace Relations for The Registered Clubs Association of NSW |
Sydney, NSW |
49. |
Jeffrey Cox |
Operations Manager of Coffs Ex Services Memorial and Sporting Club Ltd |
Coffs Harbour, NSW |
50. |
Paul Maskell Biddlestone |
Chief Executive Officer of Batemans Bay Soldiers Club, NSW |
Batemans Bay, NSW |
51. |
Anthony Mark Casu |
Club Manager of Narooma Sporting & Services Club Ltd in Narooma, NSW |
Narooma, NSW |
52. |
Gwyn Rees |
Deputy Chief Executive of ClubsACT |
Canberra, ACT |
53. |
John Dellar |
Club Manager of Club Hawthorn, Victoria |
Hawthorn, Vic |
54. |
David Bruce Orchard |
Club Manager of Marcoola Surf Life Saving Supporters Club, Qld |
Marcoola, Qld |
Restaurant and Catering Industrial | |||
55. |
Garry Joseph Klein |
Business owner of Klein’s Coffee, Bar & Grill |
Runaway Bay, Qld |
56. |
John Hart |
CEO of the Restaurant and Catering Industry Association of Australia Inc, trading as Restaurant & Catering Australia (R&C) |
St Leonards, NSW |
57. |
James Parker |
Managing Director of Jetty Research |
Coffs Harbour, NSW |
58. |
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 |
59. |
Richard Clark Rudkin |
Business owner of Emrisk P/L trading as Peddling Beans |
Griffith, NSW |
60. |
Maila Reyes |
Owner of The Entrance Lake House |
NSW |
61. |
Gianni Gugliemin |
Business owner of Briscola, a pizzeria |
Canberra, ACT |
62. |
Allan Watson |
Business owner of Taminick Springs P/L trading as Jimmy Watsons |
Vic |
63. |
Lisa Slaughter |
Business owner of Ripponlea Food & Wine |
Vic |
64. |
Janece Ann Penney |
Business owner of Zorina P/L trading as Diva Tea and Coffee House |
Main Beach, Qld |
65. |
Giuseppe Puntureri |
Business owner of Audicue P/L trading as Gaucho’s Argentinian Restaurant |
Adelaide, SA |
66. |
Daniel Milky |
Business owner of Argo On The Parade/Square and Juice Bureau |
Norwood, SA |
67. |
Brian Leyden |
Business owner of Houghton’s Caf�, and Caf� Barre |
Perth, WA |
United Voice | |||
68. |
Mary Quirk |
Bar Manager |
Coledale, NSW |
69. |
Amit Gounder |
Hotel Employee |
Sydney, NSW |
70. |
Karen Greentree |
Assistant Manager |
Terrigal, NSW |
71. |
Jennifer Miller |
Chef |
Warburton, Vic |
72. |
Andrew Sanders |
Student |
Melbourne, Vic |
73. |
Akira Boardman |
Food and beverage attendant |
Vic |
74. |
Keith Harvey |
Director of Care Super |
Vic |
75. |
Steven Petrov |
Gaming Supervisor |
Ballarat, Vic |
76. |
Angus Lonergan |
Barista |
Melbourne, Vic |
77. |
Wayne Jones |
Purchasing Officer and Head Cellar man |
Bribie Island, Qld |
78. |
Alexandra Kindness |
Student and hospitality worker |
Qld |
79. |
Damian Cooper |
Barman and Courtesy Bus Driver |
Goodna, Qld |
80. |
Carol Gordon |
Receptionist |
Launceston, Tas |
81. |
Sean Davis |
Duty Manager |
Adelaide, SA |
82. |
William King |
Food and Beverage Attendant Level 3 |
SA |
83. |
Rachel Zwarts |
Apprentice chef |
SA |
84. |
Jan Syrek |
Security Officer |
Perth, WA |
ATTACHMENT 2—DRAFT SCHEDULE OF WITNESS EVIDENCE
Employer witness |
Union witness |
8–11 September – SYDNEY | |||||||
Tuesday 8 September |
Wednesday 9 September |
Thursday 10 September |
Friday 11 September | ||||
9.30 am |
Objections to lay hospitality evidence |
9.30 am |
8. Kasie Ferguson (NSW) |
9.30 am |
16. Albert Hakfoort (Q) |
9.30 am |
24. Peter Sullivan (Q) |
10.15 am |
1. Colin Waller (NSW) |
10.15 am |
9. Patrick Gallagher (NSW) |
10.15 am |
117. Anthony Lebherz (Q) |
10.15 am |
25. Sue Mitchell (Q) |
11.00 am |
2. Darren Gunn (NSW) |
11.00 am |
10. Philip Tudor (NSW) |
11.00 am |
18. Clive Johnston (Q) |
11.00 am |
26. Vanessa Anderson (Q) |
11.45 am |
3. Dean Trengrove (NSW) |
11.45 am |
11. Samantha Walder (NSW) |
11.45 am |
19. David Gibson (Q) |
11.45 am |
27. Will Cordwell (Q) |
12.30 pm |
4. Helen Sergi (NSW) |
12.30 pm |
12. Susan Cameron (NSW) |
12.30 pm |
20. David Ovenden (Q) |
12.30 pm |
adjournment |
1.30 pm |
28. Belinda Usher (V) | ||||||
2.15 pm |
5. Ian Green (NSW) |
2.15 pm |
13. Daryl Walker (NSW) |
2.15 pm |
21. John Clarkson (Q) |
2.15 pm |
29. Dan Cronin (V) |
3.00 pm |
6. Joanne Blair (NSW) |
3.00 pm |
14. Michael Karney (NSW) |
3.00 pm |
22. Mel Tait (Q) |
3.00 pm |
30. Dennis Madden (V) |
3.45 pm |
7. John Dowd (NSW) |
3.45 pm |
15. Graham Annovazzi (NSW) |
3.45 pm |
23. Peter Johnston (Q) |
3.45 pm |
31. Peter Williams (V) |
4.00 pm |
Objections to Expert evidence to be filed |
14–18 September – SYDNEY | |||||||||
Monday 14 September |
Tuesday 15 September |
Wednesday 16 September |
Thursday 17 September |
Friday 18 September | |||||
9.30 am |
32. Jackie Booth (V) |
9.30 am |
40. Andrew Bullock (SA) |
9.30 am |
48. Richard Tait (NSW) |
9.30 am |
56. John Hart (NSW) |
9.30 am |
64. Janece Penney (Q) |
10.15 am |
33. Jim Ryan (V) |
10.15 am |
41. Keith McCallum (SA) |
10.15 am |
49. Jeffrey Cox (NSW) |
10.15 am |
57. James Parker (NSW) |
10.15 am |
65. Giuseppe Puntureri (SA) |
11.00 am |
34. Tim Bilston (V) |
11.00 am |
42. Rick Lovell (SA) |
11.00 am |
50. Paul Biddlestone (NSW) |
11.00 am |
58. Carlita Warren (NSW) |
11.00 am |
66. Daniel Milky (SA) |
11.45 am |
35. Tony Cakmar (V) |
11.45 am |
43. Samuel McInnes (SA) |
11.45 am |
51. Anthony Casu (NSW) |
11.45 am |
59. Richard Rudkin (NSW) |
11.45 am |
67. Brian Leyden (WA) |
12.30 pm |
36. Michelle Morrow (V) |
12.30 pm |
44. Sharon Martin (SA) |
12.30 pm |
52. Gwyn Rees (ACT) |
12.30 pm |
60. Maila Reyes (NSW) |
12.30 pm |
adjournment |
2.15 pm |
37. Michael Burke (V) |
2.15 pm |
45. Ashley Winn (NT) |
2.15 pm |
53. John Dellar (Vic) |
2.15 pm |
61. Gianni Gugliemin (ACT) |
1.30 pm |
68. Mary Quirk (NSW) |
3.00 pm |
38. Darren Brown (T) |
3.00 pm |
46. William KC Tam (NT) |
3.00 pm |
54. David Orchard (Q) |
3.00 pm |
62. Allan Watson (V) |
69. Amit Gounder (NSW) | |
3.45 pm |
39. John Dabner (T) |
3.45 pm |
47. Fiona McDonald (WA) |
3.45 pm |
55. Garry Klein (Q) |
3.45 pm |
63. Lisa Slaughter (V) |
70. Karen Greentree (NSW) |
21–25 September 2015 – Melbourne | |||||||||
Monday 21 September |
Tuesday 22 – Friday 25 September | ||||||||
9.30 am |
71. Jennifer Miller (V) |
EXPERT WITNESSES (see Notes below) | |||||||
72. Andrew Sanders (V) |
Employer witnesses |
Union witnesses |
|||||||
73. Akira Boardman (V) |
Prof John Rose (NSW) |
Prof John Quiggin (Q) |
|||||||
74. Keith Harvey (V) |
Dr Sean Sands (V) |
Dr Olav Muurlink (Q) |
|||||||
75. Steven Petrov (V) |
Prof Phil Lewis (ACT) |
Mr Kevin Kirchner (SA) |
|||||||
76. Angus Lonergan (V) |
Ms Lynne Pezzullo (ACT) |
Ms Serena Yu (NSW) |
|||||||
11.30 am |
77. Wayne Jones (Q) |
Dr Ian Watson (NSW) |
|||||||
78. Alexandra Kindness (Q) |
Prof Morris Altman (NSW) |
||||||||
79. Damian Cooper (Q) |
Prof Ray Markey (NSW) |
||||||||
80. Carol Gordon (Tas) |
Dr Martin O’Brien (NSW) |
||||||||
2.15 pm |
81. Sean Davis (SA) |
Prof Damian Oliver (NSW) |
|||||||
82. William King (SA) |
Prof Sara Charlesworth (V) |
||||||||
83. Rachel Zwart (SA) |
Prof Jeff Borland (V) |
||||||||
84. Jan Syrek (WA) |
* NOTES: 1. Which expert witnesses are required for cross-examinations and for how long?
2. The evidence of the employer witnesses will be dealt with first
ATTACHMENT 3 |
REVISED DIRECTIONS |
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, 7 AUGUST 2015 |
4 yearly review of modern awards – penalty rates – revised final directions.
[6] The purpose of this statement is to provide further information about the scheduling of various proposals to vary penalty rates in a number of awards as part of the 4 yearly review of modern awards. A Statement and agreed directions in this matter were issued on 3 March 2015 following extensive consultation.
[7] On 24 July 2015 correspondence was received from the Shop, Distributive and Allied Employees Association and United Voice (jointly ‘the Unions’) seeking significant variations to the directions issued on 3 March 2015. The Unions note that some of the Employer parties had not complied with the directions, in that two of the statements from expert witnesses were filed one week late, and they expressed concern that there would be insufficient time to deal with all expert and hospitality evidence during the 14 sitting days scheduled in September. Among other changes, the alternative directions proposed by the Unions are:
[8] A mention was held at 9.00 am on Wednesday 5 August 2015 in relation to the scheduling for the hearings of the expert and hospitality evidence listed for 8 to 25 September 2015. The mention dealt with the correspondence referred to at paragraph 2 above; the sequence of witnesses and the venue for the hearings scheduled for 8 to 25 September 2015; the process for dealing with any objections to the evidence filed; and various requests for the production of certain documents. Following the mention correspondence was received from a number of parties dealing with their availability and the availability of their witnesses. The transcript of the mention hearing and all of the correspondence is available on the Commission’s website.
[9] We have had regard to the views expressed by all interested parties. It is apparent on the material before us that the 14 days presently allocated for hearing the expert evidence and the hospitality lay evidence (8 to 25 September 2015 inclusive) may not be sufficient. On present indications there will be 16 expert witnesses and in excess of 80 lay witnesses. We also note that some of the employer parties did not comply with the directions in relation to the filing of their expert evidence – two of the four expert witness statements were filed one week late. This non-compliance with directions requires some amendment to the directions issued on 3 March 2015 to ensure that other parties are not disadvantaged.
[10] We have decided to adopt a cautious approach to the revision of the existing directions given the inherent difficulties in estimating the time required to deal with witness evidence. We will further review the directions as the case progresses. The effect of the revised directions we propose to make now is as follows:
(i) United Voice and any other party are to file their notices to produce in respect of the lay hospitality witnesses by 4.00 pm Monday 17 August 2015. A hearing will be held at 9.30 am on Friday 21 August 2015 to deal with any objections to the notices to produce.
(ii) A further mention will be held at 9.00 am on 27 August 2015. This mention will deal with the order of the witnesses during the hearing scheduled for 8 to 25 September 2015, inclusive, and the venue for the hearing. At this stage it is anticipated that the allotted hearing days will be split between Sydney and Melbourne, with video links as required. The parties are encouraged to discuss the scheduling of witnesses and the venue for the hearing, prior to the mention. The Commission’s intention is to deal with the lay hospitality evidence first and, if time permits, as much as the expert evidence as possible during this sitting period. (see (vii) and (ix) below).
(iii) Any objection/s by any party to any of the lay hospitality evidence are to be filed by 4.00 pm Friday 28 August 2015. Parties should set out the aspect of the evidence which is the subject of the objection, the nature of the objection and a short submission in support of the position put (including a reference to any relevant authorities). Any objections to the lay hospitality evidence filed will be dealt with at the commencement of the proceedings on Tuesday 8 September 2015.
(iv) The Union expert evidence and common material is to be filed by 4.00 pm Friday 4 September 2015.
(v) By 4.00 pm Friday 4 September 2015 all parties are to file the specific findings they submit the Commission should make based on the statement of each particular expert upon which they rely and the proposed findings they seek based on any common material or survey evidence they have filed.
(vi) The Employer expert evidence in reply is to be filed by 4.00 pm Wednesday 16 September 2015.
(vii) The hearings scheduled for Tuesday 8 September 2015 to Friday 25 September 2015 (inclusive) will deal first with the lay hospitality evidence and, if time permits, as much of the expert evidence as possible.
(viii) Any objection/s by any party to any of the expert evidence are to be filed by 4.00 pm Tuesday 8 September 2015. Parties should set out the aspect of the evidence which is the subject of the objection, the nature of the objection and a short submission in support of the position put (including a reference to any relevant authorities). Any objection to the expert evidence filed will be dealt with at the commencement of the proceedings on Thursday 17 September 2015.
(ix) The timing of the hearings to deal with the expert evidence depends to some extent on whether the lay evidence in the hospitality part of the case requires the whole of the period currently allocated for that purpose requires all of the 14 hearing days allocated for that purpose (8 to 25 September inclusive). In the event that all of the currently scheduled time is not required for the lay hospitality evidence then we would propose commencing the expert evidence towards the end of that period (i.e. likely to be in the last scheduled week Monday 21 September to Friday 25 September 2015 inclusive). We will be unable to confirm whether those dates are available for the expert evidence until we have heard at least some of the lay evidence. We will consider this issue further at the commencement of the proceedings on Thursday 17 September 2015, or earlier if practicable. We also propose to reserve further dates for the hearing of expert evidence to be used if required. The reserved dates are: 30 September to 2 October (inclusive) and 4, 5 and 6 November 2015 (inclusive). The employer expert evidence will be heard first.
[11] Revised directions are now attached.
[12] As mentioned in the Statement issued on 3 March 2015, it is important that all parties comply with the various deadlines for filing material set out in the directions.
PRESIDENT