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

4 yearly review of modern awards – penalty rates – objections to expert and common evidence

[1] This Statement concerns a number of objections made in relation to evidence filed in the penalty rates case which forms part of the 4 yearly review of modern awards.

[2] Revised directions ([2015] FWCFB 5357) issued on 7 August 2015 provided that any objections by any party to any of the expert evidence were to be filed by Tuesday 8 September 2015. Parties were asked to set out the aspect of the evidence which is the subject of the objection and a short submission in support of the position put (including a reference to any relevant authorities).

[3] Objections to expert evidence were filed by the following parties:

● United Voice;
● Shop, Distributive and Allied Employees Association;
● Ai Group;
● Australian Hotels Association, Accommodation Association of Australia and Pharmacy Guild of Australia;
● Australian Business Industrial and NSW Business Chambers Ltd; and
● Restaurant and Catering Industrial

[4] The objections have been listed for hearing at 9.30 am Friday 18 September 2015.

[5] Given the number of objections filed it is apparent that the hearing time presently allocated will not be sufficient. Accordingly we propose to limit the scope of the hearing on 18 September to objections in respect of witnesses whose evidence will be heard in the coming weeks, namely to the objections by the SDA and United Voice to:

● the Pezzullo Report;
● parts of the Lewis Report;
● parts of the Sands Report;
● the Baxter affidavit; and
● the Pratley affidavit.

[6] The other objections filed will be the subject of a conference before Vice President Catanzariti at 10.00 am on Thursday 24 September 2015 in Melbourne.

[7] In respect of the objections referred to at paragraph 5 above the material which is the subject of objection, and the basis of the objection is summarised below.

(i) Ms Lynne Pezzullo, The Modern Face of Weekend Work, filed on behalf of the Australian Hotels Association and others (the Pezzullo report). The objection is to the whole report, on the basis that Ms Pezzullo is not a properly qualified expert within the meaning of section 79 of the Evidence Act 1995 (Cth).

(ii) Professor Phil Lewis, Penalty Rates and the Retail, Caf� and Restaurant; and hairdressing and beauty industries, filed on behalf of Australian Business Industrial and the New South Wales Business Chamber (the Lewis report). The objection is to the following parts of the Lewis report:

(a) ‘Part 5’, commencing on p.32 from the heading “Are Penalty Rates Relevant to the Modern Australian Economy” to end of the section at p.39. The objection is on the basis that this material is not based on Professor Lewis’ specialised knowledge and is therefore opinion evidence and in contravention of s.79 of the Evidence Act 1995 (Cth).

(b) ‘Part 6’, commencing on p.39 from the heading “Who Would Benefit From Removing Penalty Rates?” to end section at p.40, on the basis that this material is irrelevant to the proceeding and contains opinion evidence in contravention of s.79 of the Evidence Act.

(iii) Dr Sean Sands, Retail Award Research, filed on behalf of ARA, NRA, ANRA and MGA (the Sands report). The objection is to Part 1 of the report: Retail Industry Analysis (including references to Part 1 of the report at paragraph 1 of the Executive Summary and the Research Summary at pp.95–96). The objection is on the basis that this material is not based on Dr Sands’ specialised knowledge and is therefore opinion evidence in contravention of s.79 of the Evidence Act 1995 (Cth)

(iv) Ms Emily Baxter – in an affidavit dated 10 August 2015 Ms Baxter deposes to a survey conducted by employers in the retail industry in relation to trading and rostering practices of businesses (the Baxter affidavit). ABI and the NSWBC have set out the findings they seek be made by the Commission on the basis of the expert material filed, including the Baxter affidavit.  1

The SDA objects to the Baxter affidavit on the basis that it is not expert evidence.
In the alternative, if it is to be treated as expert evidence, then the SDA submits that it should not be received as it was filed late and the SDA has not been afforded a proper opportunity to file expert evidence in reply.

(iv) Dr Andrew Pratley – in an affidavit filed by Ai Group on 4 September 2015 seeks to provide expert evidence in relation to two online surveys filed as part of AIG’s lay evidence in this proceeding (the Pratley affidavit). The SDA objects to the Pratley affidavit on the basis that it was filed over two months late; no notice of such evidence was given by Ai Group; and nor was any extension of time sought. The SDA submits that it will be prejudiced by the need to seek, belatedly, expert advice on the Pratley affidavit.

[8] The parties are put on notice that they will be expected to respond to the following questions during the course of tomorrow’s hearing:

1. At paragraph 4–14 of its written submissions on the objections United Voice sets out what it submits are the applicable general principles. Does any party take a different view?

2. At paragraph 17 of its submission United Voice set out the findings the employer parties seek the Commission to make based on Professor Lewis’ proposed evidence. What do the employer parties say about this?

3. At paragraph 31 of its submission the SDA set out the findings the employer parties seek the Commission to make based on Dr Sands’ proposed evidence. What do the employer parties say about this?

4. If the Baxter affidavit is admitted what relief is sought by the SDA to address the prejudice it says it will suffer?

5. If the Pratley affidavit is admitted what relief is sought by the SDA to address the prejudice it says it will suffer?

PRESIDENT

 1   ABI Findings at [1.3(e)] and Part E.

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