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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 33917-1
VICE PRESIDENT WATSON
AM2010/226
AM2010/236
s.158 - Application to vary or revoke a modern award
Application by National Retail Association Ltd
(AM2010/226)
Application by Australian Retailers Association
(AM2010/236)
General Retail Industry Award 2010
(ODN AM2008/10)
[MA000004 Print PR985114]]
Melbourne
10.05AM, MONDAY, 6 DECEMBER 2010
PN1
THE VICE PRESIDENT: Please be seated. May I have the appearances, please.
PN2
MS J. DUFF: Jessica Duff on behalf of the members of the National Retail Association.
PN3
THE VICE PRESIDENT: Ms Duff.
PN4
MR N. TINDLEY: May it please the tribunal, Tindley, initial N, of FCB Group, seeking leave to appear on behalf of the Australian Retailers Association.
PN5
THE VICE PRESIDENT: Mr Tindley.
PN6
MR D. GREGORY: Commissioner, as foreshadowed in our previous correspondence, we seek leave to intervene on behalf of the Australian Chamber of Commence and Industry. My name is Gregory, initial D.
PN7
THE VICE PRESIDENT: Mr Gregory.
PN8
MR W. FRIEND: If your Honour pleases, I seek leave to appear with my learned friend Mr Dowling on behalf of the SDA, as counsel.
PN9
THE VICE PRESIDENT: Mr Friend. Any objection to leave being granted to counsel, paid agent?
PN10
MS DUFF: Commissioner, the NRA would have thought that given the simplicity of the matters and the fact that most of the parties have been involved in similar proceedings in the past, that legal representation wasn't warranted.
PN11
THE VICE PRESIDENT: That legal representation, pardon?
PN12
MS DUFF: Sorry?
PN13
THE VICE PRESIDENT: I didn't hear you.
PN14
MS DUFF: Was not warranted.
PN15
THE VICE PRESIDENT: Was not warranted. What's the basis, Mr Tindley and Mr Friend, for application for permission to appear?
PN16
MR TINDLEY: Your Honour, the matter is one which has been through proceedings and it has been through a full bench appeal. It is clearly an important matter and a complex matter. It would be consistent with previous rulings that leave be granted to the ARA for my appearance. It's also a matter that the ARA does not have the internal capacity to represent itself in this matter and it would be unfair for it to be placed in a position where it was required to represent itself.
PN17
THE VICE PRESIDENT: I think in the earlier matters you might have opposed legal representation.
PN18
MR FRIEND: He's seen the light, your Honour.
PN19
MR TINDLEY: Your Honour (indistinct) and there's no doubt I'm a much better informed advocate because of that direction. Thank you.
PN20
MR FRIEND: For the first time I agree with Mr Tindley in one of these cases, your Honour. It's efficiency, and in fact as I apprehend it, it's not just the NRA case, it's the ARA case which we don't have much material on yet but we will presumably have a substantial amount. There is a substantial amount filed by ACCI last Thursday, which I don't anticipate we'll be dealing with today but it's one case, and in my submission it would be much more efficient if lawyers are entitled to represent their clients. If your Honour pleases.
PN21
THE VICE PRESIDENT: Yes. Ms Duff, do you wish to respond, having heard the advocates?
PN22
MS DUFF: No.
PN23
THE VICE PRESIDENT: I grant permission to appear to counsel and paid agents. I consider that the test in the act is satisfied in the circumstances of this matter. It is only the first mention of it this morning but I feel it does have a significant history, if that makes sense, and complexity about the matter. Any objection to Mr Gregory's application on behalf of ACCI?
PN24
MR FRIEND: I don't object.
PN25
THE VICE PRESIDENT: Mr Gregory, I grant ACCI leave to intervene in the proceedings and as such you will have the rights of parties in the proceedings.
PN26
MR GREGORY: Thank you.
PN27
THE VICE PRESIDENT: Yes, Ms Duff.
PN28
MS DUFF: Thank you, your Honour. The NRA is in a position to proceed with its preliminary submissions this morning and to lead evidence on the basis that we will have the opportunity to respond and make further submissions once the SDA and ARA have in fact filed their written material. I would suggest that it's appropriate to deal with the issue of NRA's standing to bring this application. The SDA has, in correspondence with the tribunal, objected that the NRA is not competent in the proceeding and I'd just like to address that issue, if I may, as a preliminary. I would submit that the NRA - - -
PN29
MR FRIEND: Your Honour, we accept that the NRA is now transitionally recognised and we don't object.
PN30
MS DUFF: Thank you. The NRA has filed a detailed written submission about the application and whether it is necessary to achieve the modern award's objective. I don't intend to go through everything in that written submission but will address the tribunal on the most significant aspects. Does your Honour have a copy of the submission? I have a bound copy, if that would assist.
PN31
THE VICE PRESIDENT: Yes, I do, and I might mark it. I understand final submissions might be a way off but that outline of submissions dated 12 November I will mark exhibit D1 in these proceedings.
EXHIBIT #D1 OUTLINE OF SUBMISSIONS DATED 12/11/2010
MS DUFF: Thank you, your Honour. The NRA also relies on the material filed in connection with the other proceedings canvassing the same subject matter as the one currently before your Honour. The application before the tribunal is made by the NRA for the variation of the General Retail Industry Award by including an addendum to clause 13.4 to allow secondary school students to work a minimum engagement period of less than three hours. The ARA has, by its separate application, sought a similar amendment to that clause. The addition to clause 13.4 is, in the NRA's submission, crucial to ensure that secondary school students are not disadvantaged in seeking and retaining casual employment.
PN33
The modern award's objective is to provide a fair and relevant minimum safety net of conditions, taking into account a number of factors. The fundamental consideration for the tribunal is whether the variation sought achieves the modern award's objective. When balancing the relevant factors set out in section 134 of the act, the vast majority favour the granting of the NRA's application, we would submit. Our written submission and its accompanying statements deal extensively with the considerations of social inclusion, increased labour costs and of the especially vulnerable position of small business.
PN34
The NRA's application in the matter is aimed at balancing the needs of both employers and employees. We would submit that most employers will, where possible or practical, engage employees for more than two or three hours. However, the NRA's evidence does demonstrate that the current three-hour minimum is too restrictive to suit the needs of retail employers and employees. A survey conducted by the NRA supports this proposition. The NRA submits that the evidence demonstrates that the modern award as it currently stands is significantly impacting both employers and employees within the retail industry, contrary to the modern award's objective and other relevant provisions. This fact should, in our view, support the tribunal's decision to grant the variation sought in the matter. Those are our initial submissions, your Honour.
PN35
MR DOWLING: Your Honour, before Ms Duff calls any evidence, she has made reference firstly to statements attached to the submission that was filed and to material filed in a number of other matters which have been before the tribunal. She hasn't made any attempt to tender any of that material as evidence. If she did, we would object, and I could outline the reasons for that at the appropriate time. But without them being tendered, we would submit you should have no regard to them in any event, because they're not before the tribunal in this matter as presently constituted. This arose, your Honour, because on Wednesday we wrote to the NRA and said, "We want to cross-examine your witnesses." They wrote back - and I think your Honour got a copy of the letter - - -
PN36
THE VICE PRESIDENT: Yes.
PN37
MR DOWLING: - - - - - - on Friday, saying that the NRA only intended to lead evidence from Mr Black, and otherwise would rely on the written submissions and the evidence led in connection with a number of other matters. Now, some of those matters we're fully aware of. There's 2010/16 and 17, which are the previous applications before your Honour; 2010/36, which is an application by Sandra Green which was withdrawn; 2010/39, which is an application by the ARA, which was also heard when all of this matter was before your Honour in May and June of this year; 2010/44, which is an application by Mr Whitaker, but no evidence was led in relation to that; 2010/90, which was the fast food application which your Honour heard and determined not so long ago; 2010/122, which is an application by VECCI to vary the Building and Construction General Onsite Award, in which there's no evidence; and 2010/36, which is another application by VECCI to vary the Ambulance and Patient Transport Award, which has also been withdrawn.
PN38
But the point, your Honour - and I wanted to raise it at this early stage so we didn't get off on a wrong route, so we all know what's clearly being considered by the tribunal - is that our position, and we want to put it very firmly, is if the evidence isn't tendered, it can't be relied on. If it's sought to be tendered, we'll have something to say.
PN39
THE VICE PRESIDENT: Ms Duff is on notice of your position, Mr Friend.
PN40
MR FRIEND: I'm sorry, your Honour?
PN41
THE VICE PRESIDENT: Ms Duff is on notice therefore of your position.
PN42
MR FRIEND: Thank you, your Honour.
PN43
THE VICE PRESIDENT: Yes.
PN44
MS DUFF: I would like to call Gary Black, if your Honour pleases.
PN45
THE VICE PRESIDENT: Yes, Mr Black.
PN46
THE ASSOCIATE: Please state your full name and address?
PN47
MR BLACK: Gary David Black, (address supplied).
<GARY DAVID BLACK, SWORN [10.16AM]
<EXAMINATION-IN-CHIEF BY MS DUFF [10.16AM]
MS DUFF: Good morning, Mr Black?---Good morning.
PN49
Would you state your name and address for me, please?---Gary David Black, (address supplied).
PN50
And you are the executive director of the National Retail Association, the applicant in this proceeding?---Yes, that's correct.
PN51
Now, Mr Black, you've filed an affidavit in connection with this matter of some 13 paragraphs long. Do you have a copy that affidavit with you this morning?---I do.
PN52
And is the contents of that affidavit, to the best of your knowledge and belief, true and correct?---It is, yes.
PN53
Mr Black, in that affidavit you refer to a survey conducted at your instigation by staff of the National Retail Association. Would you tell us please the results of that survey?---Yes. The affidavit didn't include this material but the summary is that 67 responses were noted in the survey. Two responses came from businesses in South Australia, four from Tasmania, six Victoria, six Western Australia, 16 New South Wales, 29 Queensland, one Northern Territory, one ACT and two from businesses that operated across most states. Insofar as the questions were concerned, "Would a reduction in the minimum shift make it easier for the business to employ school kids after school?" 47 or 70 per cent said yes. In respect to the question, "Do you think parents want their school-aged children working three hours after school?" 54 per cent said no, that's 36 said no. "Do you currently employ school-aged after school?" 26 said yes, which was 38 per cent. "If you do employ school-aged kids, do you find it difficult to roster these employees?" 43 responded to that with a yes, which equals 64 per cent. In terms of the proposition, "Would you employ more school-aged children after school if the minimum 1.5-hour shift was implemented?" 43 or 64 per cent said yes. That was the results of the survey.
**** GARY DAVID BLACK XN DUFF
PN54
Thank you, Mr Black. Your Honour, I'd like to tender the affidavit of Gary Black.
PN55
MR FRIEND: Your Honour, there are two objections.
PN56
THE VICE PRESIDENT: What are they?
PN57
MR FRIEND: Thank you, your Honour. Paragraph 3, the first two sentences, the statement of the witness's view that the evidence given by Ms Harrison and Mr Spencer is typical, is really no more than an expression of opinion which is unfounded. I understand the Rules of Evidence don't apply here, your Honour, but usually there's more foundation given to something of that nature. The second sentence is even worse, in our submission: "In my view these statements could and should be considered representative." It's really not a matter for the witness and we object to the receipt of those two sentences. That matter was made even more profound in the sense that the reference to Laticia Harrison and Matthew Spencer is not explained and can only be explained by other evidence which we would object to being relied on in the way that's proposed.
PN58
The second objection is paragraph 4, the first sentence: "I doubt whether many school students who work in retail are members of the SDA." Your Honour, the witness can't give that evidence. It's a guess. Those are the objections we take.
PN59
THE VICE PRESIDENT: Ms Duff, are those references referred to intended to be any more than expressions of opinion of this witness?
PN60
MS DUFF: No, they're not, your Honour.
PN61
THE VICE PRESIDENT: Yes. Well, on the basis that they are sought to be relied on as expressions of opinion and the ability of the other parties to cross-examine but also to make submissions on the weight to be given to such evidence, I'll allow those passages to be part of the evidence of Mr Black. I'll mark the affidavit of Gary Black dated 12 November, together with the attachments thereto, exhibit D2.
**** GARY DAVID BLACK XN DUFF
PN62
MS DUFF: Thank you, your Honour. I have no further questions of Mr Black.
PN63
THE VICE PRESIDENT: Do you desire to cross-examine, Mr Tindley or Mr Gregory?
PN64
MR TINDLEY: Your Honour, I'd like to take the opportunity to cross-examine Mr Black if I could - or to examine Mr Black.
PN65
THE VICE PRESIDENT: Yes.
<CROSS-EXAMINATION BY MR TINDLEY [10.21AM]
MR TINDLEY: Mr Black, at paragraph 5 of your affidavit you talk about significant increases in labour costs for many employers under the Modern Retail Award, and you then go on to indicate where that arises in paragraph 6. Is it your evidence that the - - -
PN67
MR FRIEND: Well, your Honour, Mr Tindley shouldn't be leading this witness. He is in exactly the same interests as this - he represents a client who has exactly the same application. All the authorities - and your Honour will recall Gordon v Carroll, the Full Federal Court. Cross-examination is not of right. It depends upon the circumstances. In my submission Mr Tindley should be asking non-leading questions, not cross-examining Mr Black, putting propositions to him that he can accept and asking your Honour to treat that as evidence with some weight.
PN68
THE VICE PRESIDENT: I think there shouldn't be leading questions, Mr Tindley.
PN69
MR TINDLEY: Your Honour, I'm referring Mr Black to aspects of his statement, which would be an approach taken in cross-examination, and then I'm asking him to provide information in relation to the questions I ask him about. I don't believe that I'm leading.
**** GARY DAVID BLACK XXN TINDLEY
PN70
THE VICE PRESIDENT: Well, yes, you can do all of that without leading questions, yes.
PN71
MR TINDLEY: Yes. I will endeavour not to traverse that, your Honour, and I'm sure that my friend will intervene in the event that he believes that that is occurring.
PN72
What comment do you have about the level of the safety net under the modern award as opposed to the pre-modern award safety net, Mr Black?---What we've said in paragraph 5 is that the modernisation process has caused increases in labour costs for many retailers. The impact on retailers is not uniform. It varies depending on their pre-existing instrument, in what state they were operating and other considerations. But for some retailers there has been substantial increases arising from Sunday penalties and casual rates and some other provisions.
PN73
And the changes with respect to junior employees?---I don't think there have been significant changes in the modern award in terms of the junior rate scale.
PN74
Do you speak to retailers about matters in relation to the modern award?---It's a constant subject of discussions between my organisation and retailers. We're very active in engaging with retailers, and since the modernisation process commenced many, many, many questions are raised on a daily basis about the process.
PN75
And about the circumstance of the minimum engagement for school students?
---It's commonly discussed. It's part of my role, in terms of advocacy for the retail sector. We discuss this matter with politicians. We discuss it with other business people. We discuss it with retailers. We discuss it with affiliated associations. I think everyone has a view on it, and almost without exception it's a view that something ought to be done to reduce the minimum for school students.
**** GARY DAVID BLACK XXN TINDLEY
PN76
Your organisation is based in Queensland?---Well, we have offices in Sydney, Melbourne and Brisbane, but the head office is in Brisbane.
PN77
And the pre-modern Queensland Retail Award provided for a three-hour minimum engagement?---That's my understanding.
PN78
Has there been, prior to this application, concerns raised with you by Queensland retailers about a three-hour engagement for school students?---No, it wasn't an issue before modernisation.
PN79
Queensland firms are raising that issue with you now?---They are now, because modernisation is a complex animal and it has not had a benign effect on retail and it has raised costs in many areas, so it has caused retailers to look across the board and look at all provisions.
PN80
You've been employed with the National Retail Association I believe since 2001?
---That's correct.
PN81
You've been involved in other areas, other employer associations in other areas?
---Prior to 2001?
PN82
Prior to 2001?---Yes. I've been with employer associations for the majority of my working life.
PN83
I won't traverse how long that may have been?---No.
PN84
Have you had experience where minimum engagements for employees have been reduced under an award process?---Not as far as I'm aware. I can't recall any such proceeding.
**** GARY DAVID BLACK XXN TINDLEY
PN85
With the survey that the NRA conducted, what was the direction given in relation to that?---The instruction was that we should try to get a representative sample of youths. The survey was deliberately skewed towards smaller retailers; that is away from the national chains, because the national chains more likely than not will have enterprise agreements in place. We asked the staff calling to ask the questions that are indicated in the survey document.
PN86
So apart from the skewing, as you refer to it, towards non-national chains, was there any geographic direction given or - - -?---The idea was to try to get a sample that went across all the states and territories, so to some extent we were successful but it's not - if there were 68 respondents, it's not 68 divided by 5 in terms of the participation rate.
PN87
There was no direction to focus on regional or metropolitan areas?---No, I didn't give any such direction.
PN88
And you're not aware from the responses whether the retailers are located regionally or metropolitan?---No, I don't have any information about the retailers themselves.
PN89
You live in Queensland, Mr Black?---I do.
PN90
In your local area is there a shopping centre, a shopping strip?---There is.
PN91
Are you aware of the times that shops in that area operate to during the week?
---Other than the supermarkets, around 5.00, 5.30, would be the latest.
PN92
Do you have school-aged children, Mr Black?---I do, yes.
PN93
**** GARY DAVID BLACK XXN TINDLEY
Do you know what time school finishes during the week for them?---Usually 3 o'clock.
PN94
So if they're finishing school at 3 o'clock what time would you expect they might reasonably be available to attend work after school?---It would depend on the location of the employer but I would say it would be very difficult for them, as a matter of reliability, to get to work before 4.00.
PN95
To complete an afternoon shift they do require to work until what time?
---7 o'clock.
PN96
Are you aware generally of the training hours in Queensland for retailers?---I am, yes.
PN97
How do you come about that information?---Trading hours in Queensland are regulated. The Industrial Relations Commission determines retail shop trading hours in Queensland and I as an individual have been very active in this regard, but also as an organisation we're directly involved in that jurisdiction.
PN98
And the retailers communicate to you about the hours that they trade on weekdays?---Yes, there is no confusion. There is variation between - usually between supermarkets and other retailers. If you looked at shopping precincts, that's the enclosed shopping centres, apart from the supermarkets usually the majority of tenants are closed by 5.00 or 5.30.
PN99
Is that limited to Queensland or are there similar situations in other states?
---That would be overwhelmingly the case. There are many exceptions of course. There are supermarkets that will trade through till 10.00, midnight, some 24-hour trading, and there would be some of the mass merchants like Bunnings or Big W in certain cases - Kmart - that might trade through to later hours. But if you said an enclosed shopping centre for example contained about 300 tenants, I would think 95 per cent of them would be closed by 5.00 to 5.30.
**** GARY DAVID BLACK XXN TINDLEY
PN100
Do you as a parent have any concerns about your children working a three-hour shift after school?---It couldn't happen. It wouldn't be tenable in my family. My kids play sport. A combination of after school sport, club sports, club fixtures - it would be untenable that they might not get home till 7.30 and then go through their usual routines, including homework.
PN101
In your time as executive director of the NRA has there been, in your experience, any change in the workforce within the retail industry, in the make-up of the workforce?---What the labour force data tells us, if you went just pre-GFC, took the August 07 data, the retail labour force has fallen by 40,000 full-time jobs and has increased by 32,000 part-time jobs. Certainly anecdotally - the response by retailers through the GFC and continuing - this is the case because of very poor trading conditions this year. Yes, you see the increase - or the casualisation I think of the retail workforce and a reticence to take on full-time workers.
PN102
Are there other factors that contribute to increasing part-time and casual work, that you've observed?---I think each retailer makes a judgment in terms of the cost of labour. The casual loading set at say 25 per cent is certainly an encouragement for retailers to look at part-time employment modes. So I think every retailer makes a judgment about labour costs and the mix of the labour force, shop by shop.
PN103
Do retailers communicate with you about the reasons why they engage young people to work after school?---I think the equation is probably self-evident. For retailers, the junior employee gives them access to relatively cheap labour. For some, I think they have a very strong philosophical commitment to their communities and want to create employment opportunities for young people. But generally, junior employees or school kids would not be comparative in the labour market if it were not for the junior rate scale. They would not compete in terms of experience or productivity and so on. So it's a relationship which complements itself, I think.
**** GARY DAVID BLACK XXN TINDLEY
PN104
What role does the retail industry play in terms of the provision of employment opportunities for young people?---Well, in broad terms, one in every two kids relies on retail for a job, and I think anyone expects that retail and the related sectors like fast food, hospitality, they shoulder the burden of transitioning young kids from school to work. They deliver the critical employability skills. They help induct kids into the workforce. In my view and, as I say, whenever you talk to politicians, you talk to journalists, you talk to other business people, it's a thing that everyone acknowledges. It plays a vital role, because most of these kids don't stay in retail. They transition out. It's a problem for retail.
PN105
And the restriction on ability to engage young people after school, would you have comments on the way that may impact both for retail industry and industry generally?---Well, it certainly limits the ability of retail to deliver in the philosophical area, I think, of helping transition kids. I think retailers - not all of them. I think in my survey for instance, one retailer just came out and said, "We only use them for two hours but we pay them for three." But it does make it harder I think for these businesses, particularly small businesses who have been trading under pretty difficult conditions, to take on people, if they've got to pay them for longer than what they're required. So overall it represents I think an impediment to school kids getting work and acquiring these employability skills.
PN106
Is your organisation involved in the negotiation or implementation of enterprise agreements?---Yes, we are.
PN107
Do you have any evidence or any anecdotal evidence about the nature of bargaining under the new Modern Retail Award?---Well, I think the emphasis for employers has been on getting agreements in place prior to the modern award, to try to avoid the more onerous provisions of the modern award. The difficulty for me as a sort of industry advocate is around those businesses that commence after 1 January 2010 are going to find themselves in a pretty uncompetitive position when it comes to labour costs.
**** GARY DAVID BLACK XXN TINDLEY
PN108
Thank you, Mr Black. No more questions.
PN109
THE VICE PRESIDENT: Mr Gregory?
PN110
MR GREGORY: Your Honour, I have no questions for Mr Black.
PN111
THE VICE PRESIDENT: Mr Friend?
PN112
MR FRIEND: Thanks, your Honour.
<CROSS-EXAMINATION BY MR FRIEND [10.39AM]
MR FRIEND: How many members do you think the ARA has, Mr Black?---I'd be guessing, but 1500.
PN114
And what about the NRA?---12 or 13.
PN115
So when in paragraph 2 you say it's the largest and most representative, the emphasis is on most representative, is it, rather than largest?---Largest absolutely, because in terms of employment, our core constituency is the national chains, who typically employ more than small businesses. So if the measure is employment, if the measure is representative, I don't think there's any doubt that when you look at the three mainstream organisations - ourselves, the ARA and the NRA - that we'd be the most representative and largest organisation. We've certainly got the biggest physical infrastructure in terms of Sydney, Melbourne, Brisbane, and we have the greatest number of staff.
PN116
So representative is relating to the number of employees of the employers you represent? Is that what you mean?---As well, the diversity of the membership. If you look at the membership, I think we've got a more diverse membership.
**** GARY DAVID BLACK XXN FRIEND
PN117
I see. You're a Queensland organisation?---We were formerly the Retailers Association of Queensland.
PN118
Yes, and you have registration under the Queensland act, Industrial Relations Act?---The RAQ has, yes.
PN119
And you've only recently obtained the status of a recognised organisation under the federal Fair Work Act. Correct?---That's correct.
PN120
That's in fact is as recently as 29 October of this year. Correct?---That's correct.
PN121
And that gives you the right to represent the interests of persons in Queensland. That's right, isn't it?---That's right, yes.
PN122
Not outside that area?---That is correct insofar as the operation of my organisation as a registered union.
PN123
Yes?---It doesn't preclude it from representing employers - - -
PN124
But in terms of industrial representation within Fair Work Australia, Queensland employers are the only people that you can represent?---Only in respect to appearing as an organisation in its own right. But we've always, under the prior system, represented employers nationally, in any jurisdiction. So we continue to do that.
PN125
Yes, but there's no legislative recognition of you from that point of view?
---There's not.
PN126
Just turning over to paragraph 4 of your statement, you talk about 1.2 million retail employees in Australia. Where did you get that figure?---ABS data.
**** GARY DAVID BLACK XXN FRIEND
PN127
You know that refers to employed persons, not employees, don't you?---I'm not familiar with the distinction.
PN128
Yes, you don't know that there is a distinction in the ABS data between employed persons and employees?---I haven't reviewed it before, no.
PN129
All right. If I suggest to you that that 1.2 million is employed persons, which includes self-employed persons and people doing voluntary work, you wouldn't be able to disagree with that?---No, I don't have expertise to answer that question.
PN130
No. Thank you, yes, all right. You've set out in paragraph 6 a large number of things in the modern award which you say made things more extensive or more onerous for employers. Correct?---Yes.
PN131
Was there anything going the other way? Were there any benefits to employers in the modern award or was it all a one-way street?---Look, there were some swings and some roundabouts, but if you're a retailer - invariably you only access those if you're a business operating across the jurisdiction, so typically say a national chain. The majority of the chains have enterprise agreements. So when you analysis the impact of the modern awards, the burden falls mainly on businesses that probably don't operate beyond jurisdiction. So the question is answered by reference to what was the pre-existing arrangement and did the modern award result in the costs, and in that case - certainly in New South Wales, Queensland and for many employers in South Australia - that was clearly the case.
PN132
But my question was, were there benefits for employers. Is your answer that there were none, apart from the major chains or people who operated interstate?---In Victoria there was a benefit because the casual loading reduced.
PN133
**** GARY DAVID BLACK XXN FRIEND
There were other - - -?---But you know, beyond that - - -
PN134
Well, there were other reductions for casuals in Victoria, weren't there? They lost sick leave, didn't they?---Their loading dropped from something like - or will drop over time from 33 to 25.
PN135
But they also lost sick leave, didn't they?---And employees were given the legislative benefit of take-home orders. So unlike employers, who are victims of the broken promise, the employees were protected by legislation. They can't have their take-home pay reduced.
PN136
You see employers as victims of the broken promise, do you?---Yes.
PN137
And that was implemented by Fair Work Australia. They implemented the breaking of the promise and they made employers victims, did they?---Is that a statement?
PN138
It's a question. I said "did they"?---The promise was made, when award modernisation was launched, that it would not result in increased labour costs for employers.
PN139
All right?---But that promise has not been sustained.
PN140
All right, and you don't see anything - you've put nothing in your statement about detriments to employees. It's your position that there are no changes of detriment to employees, apart from the one you've mentioned. Is that right?---Well, the overriding position for employees of course - for current employees - is that there can't be a reduction of take-home pay. Now, outside of that, where have employees been worse off - there are areas where they have been worse off.
PN141
**** GARY DAVID BLACK XXN FRIEND
Now, you said the take-home pay orders. Are any of those in existence for casual employees in the retail industry?---I've got no idea.
PN142
Well, why did you say it didn't make any difference to them, if you've got no idea if there's an order?---Sorry, can you run that by me one more time?
PN143
You said, "Oh, it didn't make any difference, reducing the casual loading for employees in Victoria, because of the take-home pay orders." Now you're telling the tribunal you don't know if there are any take-home pay orders?---I don't see the relationship between the two statements. What I've said is that that protection is available to employees and it's not available to employers.
PN144
So having it available is not the same as it being implemented - I mean, is the same as it being implemented?---I think that has got a fair bit to do with the operations of the union you represent.
PN145
I see. You see, you're running a political case in all of this, aren't you, Mr Black?
---Can you be more specific?
PN146
You've said in your evidence you're talking to politicians and journalists the whole time. You do about this, don't you?---We've certainly made representations around this issue, yes.
PN147
Yes, and you're saying it's a terrible thing and something has got to change. Correct?---I don't think the issue will go away. It's a very important issue.
Yes, and you're making statements about particularly the two school children in Terang. You've done that on numerous occasions, haven't you?---I don't think I've mentioned them this morning.
PN149
**** GARY DAVID BLACK XXN FRIEND
Not this morning, but in the media, haven't you?---I can't recall. Do you have some media statements there?
PN150
What, are you worried about what I'm looking at? Just think back in your memory and see what you can recall. Can you recall it?---Sorry, can you deliver the question again?
PN151
Yes. Can you recall making statements in the media about the school children in Terang?---We've made regular - we've issued regular press releases about this issue.
PN152
All right. Do you remember being on the ABC Radio National program, Life Matters, earlier this year?---I don't recall appearing on that show, no.
PN153
Do you remember being interviewed by Mr Richard Aedy?---Yes, sorry, I do.
PN154
Yes?---I was thinking television.
PN155
No, I'm sorry. Do you remember him asking you - he said this to you. "Now, Gary, the ACTU says this decision" - now, this is the full bench decision on the previous application - "this decision protects casual workers who might have their day shifts cut so cheaper school students can be employed after school." Do you remember him saying that?---I don't, but he may well have.
PN156
Yes, and what the transcript records is you said, "Look, I don't think there's - there was certainly no evidence to that effect." Was that your view?---I don't recall any such evidence, no.
PN157
No. Were you present in the tribunal last time?---Sorry, which was last time?
PN158
**** GARY DAVID BLACK XXN FRIEND
Sorry, when the hearing was conducted in relation to the first application, to reduce from three to two. Were you present?---No. No, I definitely was not.
PN159
But obviously you read the transcript, did you?---I have tried to keep up-to-date by reviewing the transcripts.
PN160
And did you read the statements that were filed?---No, I haven't read the statements.
PN161
Well, you see, can I read to you - pardon me one moment. One of the statements said, "Many permanent employees work after school hours. Part-timers work until 5.30. A two-hour start for casuals could result in these workers losing their shifts in favour of cheaper, junior casuals." Now, right or wrong, that was evidence to the effect that Mr Aedy put to you, wasn't it?---Who said that?
PN162
It was evidence given - - -?---Who are you quoting?
PN163
Don't ask me questions, Mr Black; answer mine?---You tell me.
PN164
Mr Black, answer my questions?---Don't question me without telling me who made the statements.
PN165
Mr Black - - -
PN166
THE VICE PRESIDENT: Mr Black, if you could just answer the questions of Mr Friend, thanks.
PN167
MR FRIEND: That was evidence before the tribunal, wasn't it?---Not that - - -
PN168
To that effect?---Doesn't constitute evidence from my point of view.
**** GARY DAVID BLACK XXN FRIEND
PN169
Yes, I see. So it's only evidence if you agree with it, Mr Black. Is that right?
---Well, I don't know who said it. It could have been a union organiser making a political statement.
PN170
You're the one that makes political statements, Mr Black. You're running a political campaign, aren't you?---In what regard?
PN171
Don't ask questions, Mr Black. Answer mine. Are you running a political campaign?---Where?
PN172
In the media?---Look, I've answered your question before. I said we've made representations to politicians about this issue. Simon Crean made a public statement on radio saying that the claim was not justified generally but was justified for student casuals. A number of politicians have expressed a view about it. They regularly say it in the media. So it is a political issue.
PN173
Yes, my question, Mr Black, is - - -?---(indistinct)
PN174
- - - are you running - - -?--- (indistinct)
PN175
- - - a political campaign. My question, Mr Black, is are you running a political campaign?---I'm running an application to Fair Work Australia to get this problem fixed.
PN176
Are you running a political campaign?---I don't understand the question.
PN177
And you were prepared to say - I can give you other evidence. I better in fairness do it to you. Another witness said, "Clearly employees, especially full-timers, are threatened by casual employees and any reduction of the casual shift would increase this threat. I believe that if casuals were allowed to work a shift of one and a half or two hours, then these hours would be taken off the senior permanent employees." Now, if that was accepted, that would be contrary to what you said, wouldn't it?---As an opinion.
**** GARY DAVID BLACK XXN FRIEND
PN178
So we shouldn't have reliance on opinions, should we, Mr Black?---No, but I'm giving - - -
PN179
(indistinct) facts?--- - - - opinions and that's a union organiser giving an opinion.
PN180
But you said on the radio that there was no evidence to that effect?---And that's not evidence. That evidence was contradicted. We don't agree with that.
PN181
Who contradicted that?---Well, I certainly don't agree with that.
PN182
Who contradicted it, Mr Black?---I don't know, you tell me.
PN183
No-one, not in that whole case?---So a union official comes into a proceeding, makes an opinion - a highly broadly based opinion - and that's fact, is it?
PN184
Mr Black, what you were saying was that there's no evidence before the tribunal. You didn't say, "That's not the fact." You said there was no evidence. Do you understand the distinction?---I understand the whole pedantic nature of your question. If you said something is a proven fact, I'm with you.
PN185
You don't accept that that will happen, do you? You don't accept that employers will take on casuals because they're cheaper and they can be employed for a shorter time at the expense of permanents. That won't happen at all, will it?---I couldn't rule that out. That - - -
PN186
No, you can't rule it out, can you?---That dynamic is always a possibility.
PN187
Yes?---There are many employers out there that will pay people under-award rates.
**** GARY DAVID BLACK XXN FRIEND
PN188
Yes?---If you want to run a scare campaign, all these possibilities are indeed attainable at some point.
PN189
All right, Mr Black. Now, your application seeks a variation to the award that allows secondary school students to work between 3.00 and 6.30 on a day on which they're required to attend school for less than three hours, as long as it's not below a minimum of one hour and 30 minutes. Correct?---Yes, if you're reading from the application, that's correct.
PN190
Well, you understand what your application is, don't you?---I do, yes.
PN191
Is that consistent with what your application is and your understanding?---Well, why don't you bear with me and I'll have a look. Would that be helpful?
PN192
By all means have a look, Mr Black?---I may not have it with me.
PN193
That's all right. Look, I'll read the whole thing to you. I wasn't trying to trap you?
---I didn't think you were trying to trap me, but I didn't want to mislead you with my response.
PN194
Here's a copy you can have in front of you. It will help us. Sorry, that's the wrong one, because there's an amended one?---Yes, I have the application.
PN195
Yes, and you see on the second page - this is the bit that is to be edited - "save that (indistinct) secondary school student between 3.00 and 6.30" and then you've got (3) "the employee agrees to work and the parent or guardian of the employee agrees to allow the employee to work a shorter period than three hours"?---Yes.
PN196
Okay. So posit the situation where the employer needs someone to work between say 4.00 and 6.00 and the employee student can get there by 4.00. You would envisage the employer advertising a job, wouldn't you, for two hours' work?
**** GARY DAVID BLACK XXN FRIEND
---Yes, I don't think they do for school kids. I think the normal routine is that kids drop their resumes off or through word of mouth or other mechanism. I don't think you'll find them advertising.
PN197
And the employer would say to the student, "Look, I can give you a job but it's only for an hour and a half. Do you want it or do you not want it?" That's how this will work, isn't it?---I think that's possible in some cases. It would be the minority but - - -
PN198
Well, why is it going to be the minority? Most of the employers say, "This is the job, these are the hours, take it or not." That's what normally happens, isn't it?
---Well, you put the question on the basis that - you were implying that all employers would fit into that category. What I'm saying is that it's entirely possible that some employers would say that, but it's speculation and a hell of a lot wouldn't.
PN199
What, are the others going to say, "Oh, look, I've got a job. How long do you want to work?" Is that what's going to happen?---What will drive it will be the operational needs of the business and the - - -
PN200
Exactly?--- - - - roster that the employer puts in place.
PN201
Exactly, and the employer will say, "The operational needs of the business are I need someone for an hour and a half. Do you want the job"?---Yes, certainly for a typical business that trades through to 5.30 and the kid is available at 4.00, then that's a pretty obvious proposition.
PN202
Yes. So the student is going to go home to mum and dad and say, "Look, I can get a job. It's only for an hour and a half but that's all that's on offer. Will you sign here?" That's what's going to happen, isn't it?---I would think so, yes.
**** GARY DAVID BLACK XXN FRIEND
PN203
Yes. So this isn't really about giving employees - student employees - the chance to agree to shorter hours if that's what they want. It's about giving employers the opportunity to offer shorter hours if that's what suits, as you put it, the operational needs of their business. Correct?---Well, certainly it is intended, it is explicitly designed to create the opportunity for 1.5-hour shifts.
PN204
Yes, for employers' operational needs?---And also to enable school kids to be employed in circumstances where otherwise the job is not there.
PN205
But you see, before the modern award that wasn't a problem, was it?---Well, there were a lot of things that weren't a problem before the modern award.
PN206
Well, just - - -?---The modern award changed everything.
PN207
Just stay with me. Before the modern award there was no problem about a three-hour minimum for school students, was there?---There was no debate about it.
PN208
And you didn't make any applications for it to be reduced in Queensland?
---That's correct.
PN209
You didn't run a political campaign about it in Queensland, did you?---No, we weren't dealing with a 50 per cent increase in the Sunday loading or an increase in casual rates and generally increased costs either.
PN210
Okay, so what this is about is reducing costs to offset other increases in the modern award. That's what you're saying, isn't it?---It's about fixing an anomaly and putting in place a commonsense solution that just about everybody that I've spoken to says should happen.
**** GARY DAVID BLACK XXN FRIEND
PN211
All right, so it's about fixing an anomaly which arises because of increases in other costs. That's what you're saying, isn't it?---It's about ensuring that school kids get the greatest possible opportunity for work after school hours and making sure the fit between the operational needs of the retailer and the imperatives associated with school kids gaining employability skills - that we can maximise that fit.
PN212
All right. Was there a problem in New South Wales before the modern award, with the three-hour minimum?---I'm sure there was, but there was no public discussion.
PN213
Did you know about it?---There was no actual - - -
PN214
Did you know about it?---It wasn't a - - -
PN215
Did you know about it?---It wasn't a point of discussion, no.
PN216
Mr Black, you're not answering my question. Did you know about a problem in New South Wales with the three-hour minimum before the modern award?---No. It wasn't raised with me that they - - -
PN217
Thank you?--- - - - mean the problem (indistinct)
PN218
What about in Victoria?---It could have been (indistinct) employment.
PN219
Mr Black, just stick with my questions and don't make speeches, please. Was the two-hour minimum raised as a problem in Victoria with you before the modern award?---Well, the Victorian pre-existing position was two hours.
PN220
**** GARY DAVID BLACK XXN FRIEND
That's right, but that's too long as far as you're concerned. You say an hour and a half should be the minimum. Was that raised as a problem with you?---No-one raised the issue with me.
PN221
Was the four-hour minimum in Tasmania raised as a problem with you?---No, it was not.
PN222
Was the three-hour minimum in South Australia raised with you as a problem?
---No.
PN223
What about Western Australia?---In South Australia, sorry, South Australia has got a long history of 1.5-hour provision for school kids.
PN224
In some circumstances?---Yes, it's well-known, well accepted.
PN225
All right, and what about in Western Australia?---No, no-one raised the issue.
PN226
Okay. Now I want to ask you about your survey. You read from a document when you gave your evidence before?---From a survey document?
PN227
Yes, you read from a document with the results. You gave some percentages and figures?---Yes, I did.
PN228
While you were in the witness box. Do you still have that document with you?---I do.
PN229
Yes, can I see that, please. Thank you. Is it fair to say that you read all of the material on that page or do we need to get a copy of that to have the full extent of that evidence?---All the handwriting.
PN230
**** GARY DAVID BLACK XXN FRIEND
Yes, that's what I meant, sorry?---No, the answer referenced the handwriting, nothing else.
PN231
Thank you. Now, how many people conducted the survey?---There would have been up to four.
PN232
So you don't know whether it was two, three or four people?---Over the period it would have been anything up to four. So one might have been on the phone at any given point in the time and on another occasion there might have been a couple, but there would have been four people who would have taken calls.
PN233
I didn't mean how many at any one time. I just want to clarify, are you unsure whether three or four people asked the questions over the course of the survey or two or four or one or four or if there was four?---There would have been four people who would have made called at some point.
PN234
It's the "would" that keeps troubling me, Mr Black. When you say would, do you mean you're not sure, or you are sure it was four?---Yes, there were four people involved in the process.
PN235
Okay. Did you speak to each of them?---No. I spoke to the team leader.
PN236
Spoke to the team leader, and did you give team leader a written direction about how to conduct the survey?---No. No, we would have - - -
PN237
Did you - - -?---We discussed the matter orally.
PN238
Okay, and in discussing the matter orally did you suggest how your - I assume you spoke to your members. I think that's in - I mean, your members you spoke to? Is that right?---Yes, that's right.
**** GARY DAVID BLACK XXN FRIEND
PN239
What was to be said to the members when they answered the phone?---Yes. Yes, bearing in mind that it's pretty precarious to ring up business people during operating hours, you're not always sure what sort of response you got in terms of demand in the shop and the - - -
PN240
Sure?---So generally they were told that NRA was making an application to reduce the minimum engagement period for student casuals and we wanted to ask them a few questions about that matter.
PN241
You say generally they were told that, but you don't - you weren't there while the calls were made?---No, I was not, no.
PN242
You didn't give them a script to read, did you?---No, I did not, no.
PN243
No. Did you write down the questions?---There may have been an email exchange but I'm not - I don't think so.
PN244
You don't think the questions were even written down?---Not coming from me. They may have been written down.
PN245
Someone else may have written them down?---Mm.
PN246
And that's something you could find for us, if you needed to?---I could try, yes.
PN247
Yes, and what about the responses? Were they written down?---Yes, the responses were. They were recorded on a - I think either an Excel spreadsheet or in handwriting.
PN248
Okay, and you could get those documents for us too?---Yes.
**** GARY DAVID BLACK XXN FRIEND
PN249
All right, well, can I ask you to do that before we come back for the next day of hearing?---I'll see what I can find for you.
PN250
Thank you. Pardon me, your Honour. Yes, do you know if people were asked if they were covered by the General Retail Award?---I don't think they were.
PN251
So they may or may not have been?---I think that's a possibility.
PN252
Okay. You were asked some questions by Mr Tindley about closing hours in your local area and throughout Queensland. It's fair to say that lots of students get work in other areas, for instance fast food, where closing hours aren't a problem. Correct?---Restaurants, hotels.
PN253
Yes, and of course they can work at weekends?---Most definitely, yes.
PN254
Yes, and of course you said 5 o'clock closing but I assume Queensland has late night trading one day a week?---It does, yes.
PN255
Yes, and so they would be able to work then as well?---That's right, and I think a number of the survey responses refer to the late night.
PN256
Yes, and of course a lot of students, as your own children do, have after school commitments with sport and what have you. Correct?---That's right.
PN257
Often the best time for them to work is the late night trading or at the weekend?
---May well be, that's right.
PN258
All right, thank you. Thank you, your Honour.
PN259
THE VICE PRESIDENT: Ms Duff, any re-examination?
**** GARY DAVID BLACK XXN FRIEND
PN260
MS DUFF: I don't have any further questions for Mr Black, your Honour.
PN261
THE VICE PRESIDENT: Thank you for your evidence, Mr Black?---Thank you, your Honour.
PN262
You may step down?---Thank you.
<THE WITNESS WITHDREW [11.07AM]
THE VICE PRESIDENT: Ms Duff?
PN264
MS DUFF: Your Honour, the NRA has no other witnesses.
PN265
THE VICE PRESIDENT: No further evidence, very well. Are we now in a position of scheduling further proceedings in the case, or is there something else that can be dealt with today?
PN266
MR FRIEND: Apart from scheduling the exchange of further material, we hadn't anticipated (indistinct) today, your Honour.
PN267
THE VICE PRESIDENT: Yes. Well, Mr Tindley, your client has the other application. What do you propose as far as further proceedings in these matters?
PN268
MR TINDLEY: Your Honour, we've had some discussions with the other parties about the future conduct of the matter but we've not sort of finalised whether there's any consent position, at least from the SDA and NRA perspective. So I'm just wondering if we can take a short opportunity to have that discussion.
PN269
MR FRIEND: That would be helpful, your Honour, given what - - -
PN270
THE VICE PRESIDENT: Yes. We'll adjourn for a short time.
<SHORT ADJOURNMENT [11.08AM]
<RESUMED [11.16AM]
PN271
THE VICE PRESIDENT: Mr Tindley.
PN272
MR TINDLEY: The parties have had an opportunity to discuss the proposed future carriage of the matter and certainly from the ARA and SDA's perspective the document that your associate has provided you with is a reflection of the consent position of the parties. Do you have a copy of that before you?
PN273
THE VICE PRESIDENT: Yes, I do.
PN274
MR TINDLEY: You will note that there have been some amendments to that as a result of the discussions that we had, so that's certainly the position of the ARA and SDA, and the NRA may wish to make some comments about that.
PN275
THE VICE PRESIDENT: Is there any estimate of how long would be required?
PN276
MR TINDLEY: We had some discussion about that and it will in essence depend on the number of witnesses produced by each party. So what the parties have undertaken to do is that once both parties' submissions are in and evidence is in, then we would have some discussion with the parties and with Fair Work Australia about the timing. But we would expect two to three days would be about what we'd be looking at.
PN277
THE VICE PRESIDENT: Yes. The difficulty which occurs to me is that I have scheduled leave immediately after the amended time. It might not be possible to have a date immediately after 22 April.
PN278
MR TINDLEY: Perhaps, your Honour, that would be an opportunity. The parties would have some detailed discussions about that and propose, in your absence, the time that we believe it will take to deal with the matter. Then when you return from leave then the opportunity would be to set the date at that point.
PN279
THE VICE PRESIDENT: Yes, very well. This timetable is suitable to you, Mr Friend?
PN280
MR FRIEND: It is, your Honour, thank you.
PN281
THE VICE PRESIDENT: Yes. Ms Duff?
PN282
MS DUFF: Your Honour, from the NRA's perspective, we would like the matter resolved as expeditiously as possible, so from that perspective we're unable to consent but we will be led by directions your Honour is willing to make.
PN283
THE VICE PRESIDENT: Yes, thank you. Very well, I'll make the directions that are agreed and consider the possible dates for hearing of the matter. Given the involvement of the parties and their representatives, we will consult future commitments to ensure there's no clash of commitments of the representatives of the parties prior to setting down actual hearing dates. It might be advisable to set some dates at an early stage so that that can be planned around other commitments. That might be necessary to extend, depending on the extent of evidence that's going to be involved in the matter. Thank you for those submissions. The tribunal will now adjourn.
<ADJOURNED INDEFINITELY [11.20AM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #D1 OUTLINE OF SUBMISSIONS DATED 12/11/2010 PN32
GARY DAVID BLACK, SWORN PN48
EXAMINATION-IN-CHIEF BY MS DUFF PN48
CROSS-EXAMINATION BY MR TINDLEY PN66
CROSS-EXAMINATION BY MR FRIEND PN113
THE WITNESS WITHDREW PN263