TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 42837-1

AM2010/226 AM2010/236

s.158 - Application to vary or revoke a modern award

Application by Australian Retailers Association, The
(AM2010/236)
General Retail Industry Award 2010

(ODN AM2008/10)
[MA000004 Print PR985114]]




Sydney

2.04PM, FRIDAY, 11 MARCH 2011

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

THE VICE PRESIDENT: Please be seated everybody. Any changes in appearances?

PN2

MR C. DOWLING: Your Honour, I appear without my learned friend, Mr Friend, that's the only change from the SDA's perspective.

PN3

THE VICE PRESIDENT: Yes, Mr Dowling, thank you.

PN4

MS NICHOLSON: Sir, I appear on behalf of the minister for employment and industrial relations from the Department of Business and Innovation (indistinct)

PN5

THE VICE PRESIDENT: Yes, Ms Nicholson. Do you need leave to intervene in the proceedings?

PN6

MS NICHOLSON: The minister has, in his submissions, sought leave to intervene in the proceedings. Yes, sir.

PN7

THE VICE PRESIDENT: Is that by right or is it by leave?

PN8

MS NICHOLSON: It's by leave of the tribunal on the grounds that the state has a public interest in the matter. Above and beyond that, as an ordinary person.

PN9

THE VICE PRESIDENT: Is there any objection to the Victorian minister being granted leave to intervene?

PN10

MR DOWLING: For our part, your Honour, we hadn't contemplated that leave would be addressed today; we had contemplated that it would be addressed on the resumption of the hearing, though I haven't taken instructions on that issue or examined the basis upon which the department has intervened, but we'd request that question be left for the resumption of the hearing and we contemplate it and consider it in the meantime.

PN11

THE VICE PRESIDENT: Yes, well perhaps Ms Nicholson can be permitted to intervene for the purposes of today at this stage, on the basis it can be revisited later in the substantive hearings.

PN12

MR DOWLING: Yes, your Honour. We're certainly happy for that to occur given the nature of the hearing and the timetabling issues that I understand are to be discussed.

PN13

THE VICE PRESIDENT: Yes, very well. I grant you leave to intervene for today's proceedings, Ms Nicholson, so that if you do have any views you can put them, but the actual application for leave to intervene will be considered at the next hearing date. I've listed this matter at the request of at least one party for a reconsideration of the directions in this matter. Who would like to go first?

PN14

MS J. DUFF: I'm happy to, your Honour.

PN15

THE VICE PRESIDENT: Ms Duff?

PN16

MS DUFF: Your Honour, the purpose of the NRA requesting that this matter be listed for mention this afternoon and (indistinct) revising the directions that your Honour made in December. The NRA - - -

PN17

THE VICE PRESIDENT: Excuse me, Ms Duff, I am having trouble hearing you. You might be a fair distance from the microphone that's used for the video conference. I'm not too sure where that is on the bar table.

PN18

MS DUFF: Is that better, your Honour?

PN19

THE VICE PRESIDENT: That's much better, thank you very much.

PN20

MS DUFF: So I was just saying, your Honour, that the purpose of requesting that the matter be listed for mention today was to canvass the possibility of revising the directions that your Honour made last December. The NRA also has reservations about the appropriateness of the ARA discontinuing its application, given the background of the matter. As your Honour is aware, the matter was originally listed for hearing in December 2010 but it was at the ARA's insistence that the directions were revised and the hearing of the matter adjourned to June of this year.

PN21

The decision of the ARA to abandon its application to vary the award, after having earlier insisted on the substantial adjournment of its application and the NRA's application, is prejudicial to the NRA and to the retail sector, its members that it represents and, accordingly in the circumstances, the NRA submits that it's reasonable for your Honour, if he decides to do so, to inquire as to why the ARA should be permitted to discontinue. The NRA also has some question concerning the validity of the ARA's discontinuance, pursuant to the ARA's own rules. It is our understanding that such action requires the resolution of its council; not just a letter from its executive director and a notice signed by a solicitor.

PN22

Your Honour would be aware that the NRA has always believed this to be an urgent matter and have sought to have it resolved as expeditiously as possible and we consider that we are obliged, in the interests of the retailers we represent, to see whether there's a possibility of reviewing the directions and have the matter resolved more promptly. I understand that the SDA (indistinct) to the hearing occurring earlier and that, subject to your Honour's availability, the dates of 27, 29 April - - -

PN23

THE VICE PRESIDENT: That was the 27th to the - - -

PN24

MS DUFF: To 29 April.

PN25

THE VICE PRESIDENT: Yes, and would there need to be any other changes to the directions, other than the hearing date?

PN26

MS DUFF: I don't believe so. Yes, we had canvassed this morning with the SDA whether there was a possibility of them filing their evidence a little earlier, but they still need - they have a lot to canvass themselves and that's not going to be possible, so we're happy to leave that direction as is.

PN27

THE VICE PRESIDENT: Yes. That week, being straight after Easter - the week before Easter is not suitable to one or other of the parties? The later dates are what have - agreed, are they, with the SDA?

PN28

MR DOWLING: Your Honour, perhaps I should be clear, there has been some discussion between the representatives of the NRA and the SDA and I can confirm that the position put by the SDA is that it is currently preparing its material which is due on 15 April and it has indicated that it will not be and is not in a position to complete that material before 15 April. So it's correct to say that the clear position and the strong position of the SDA is: that date has to remain. There was a discussion, given the revision that's sought by the NRA of the possibility of moving the hearing dates earlier - not moving the directions - and those three dates were raised as dates that were available and on which the two counsel representing the SDA are able to appear.

PN29

We did explain of course that that might be to the NRA's detriment. They would only have between 15 April and 27 April to consider the material that's filed by the SDA and there's the Easter break in between those. But I can confirm those dates are available. Our preference is still for the original dates, I should say, but if the position is put strongly and continued to be urged by the NRA, those dates are available but none other in April and I understand that your Honour has some difficulties in May, so the parties have not contemplated dates in May. If your Honour was unable to do those dates, of course, we're into June and again, the sensible course would be to keep the existing dates.

PN30

THE VICE PRESIDENT: Yes.

PN31

MR DOWLING: Whilst I'm on my feet, your Honour, can I just flag, but not raise at this stage, a housekeeping matter that I'd like to bring to your Honour's attention before the close of today. But that's all I have to submit with respect to the dates. With respect to the position that's put by the NRA in relation to the conduct of the ARA, from the SDA's perspective it is unfortunate that the application withdrawn was withdrawn on the day the ARA evidence was due, but we don't wish to make any submissions on those matters that have been raised by Ms Duff as to whether they should be permitted to discontinue or whether their discontinuance was in accordance with their own rules. Unless there's anything further, your Honour - - -

PN32

THE VICE PRESIDENT: Yes. Mr Dowling, the time estimate for the hearing, is that revised? Is it necessary to have three days, or is two, do you think, going to be sufficient?

PN33

MR DOWLING: We're still of the view, your Honour, that three days is necessary. We've taken into account the number of witnesses that will be called on behalf of the SDA, the fact that there is now an additional party intervening in the form of the department, and its our view that three days is still necessary.

PN34

THE VICE PRESIDENT: Yes, thank you, Mr Dowling. Ms Nicholson, do you have anything to say about the proposed change to the hearing dates?

PN35

MS NICHOLSON: No, your Honour. We're happy to be in the tribunal's hands as to when you can get the matter for hearing.

PN36

THE VICE PRESIDENT: Yes, thank you. Ms Duff, what's your view as to the number of days required, given that it might relate primarily to the extent of cross-examination that you have of SDA witnesses?

PN37

MS DUFF: Your Honour, we would have thought that two days would have been sufficient.

PN38

THE VICE PRESIDENT: Yes. I think we might have had the third day previously pencilled in, in case it was necessary. I think two days was probably the estimate previously, possibility of three. I can indicate that I am able to move the hearing forward to those dates that are suitable to the parties, being Wednesday, 27 April; Thursday, 28 April; and Friday, 29 April. In doing so, however, that does require a little bit of reorganisation of other commitments and it would certainly assist greatly if those hearings could be completed within the first two days set down. Mr Dowling, anything further?

PN39

MR DOWLING: Yes, your Honour. I hear what you have to say about the three days. As I say, we still think the three days is necessary. That doesn't mean we won't do everything within our power to finish it within the two, but just a warning: we still think it will be three. As I forecast, there is one last matter. Your Honour may recall that, when we were before you last on 6 December, Mr Black gave some evidence and was cross-examined by Mr Friend and you may recall that, in relation to the survey that was tendered together with Mr Black's evidence, there were some questions by Mr Friend about whether the questions that formed part of the survey were written down and, if they had been, whether Mr Black could obtain copies of that material, and also whether the responses were recorded and written down and whether Mr Black could obtain copies of that material.

PN40

Can I say, there's been some communication between the parties. There was an email from Ms Burnley of the SDA to Ms Duff on 8 December in relation to that request. There was a further letter of 17 February from the SDA to Ms Duff in relation to that request. There was a response from the NRA on 21 February saying there were no documents. There was a further communication on 22 February of this year, clarifying part of that response. It seems to us, on our most recent instructions, that there aren't any documents, but what we would like to do is tender those four pieces of correspondence that exchanged in relation (indistinct) issue so it is clear to everybody that material was sought and that the response was, "There is no such material".

PN41

I have a copy of them here from the telephone link-up we had. It's difficult for me to provide them to your Honour, but we're happy for them to be tendered as a bundle of four pieces of correspondence and, if it assists your Honour, I can identify for you, in detail, the date and description of each.

PN42

THE VICE PRESIDENT: Yes, I'm just wondering whether it's necessary to tender it and mark it today or whether that can wait for the resumption of the hearings.

PN43

MR DOWLING: Yes, we're content with that - - -

PN44

THE VICE PRESIDENT: Yes.

PN45

MR DOWLING: - - - given (indistinct) the video link-up and the restrictions that that imposes.

PN46

THE VICE PRESIDENT: Yes. I think, given that it also relates to the substantive hearing, although it is a loose end, we might deal with that at the outset of the resumed hearings.

PN47

MR DOWLING: Thank you, your Honour.

PN48

THE VICE PRESIDENT: As far as the matters that have been raised about the withdrawal of the other application, I don't propose to do anything at this stage. However, the raising of this matter at the hearing today should alert the ARA as to the position of the NRA and, if the ARA wishes to respond to that material, then it can do so on the next occasion when the matter is relisted. I'll otherwise issue a new notice of listing for this matter on the dates I've indicated, 27 to 29 April. Unless there's anything further, the proceedings are now adjourned.

<ADJOURNED INDEFINITELY [2.20PM]