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Fair Work Act 2009                                                    




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


Application by Shop, Distributive and Allied Employees Association & Shop, Distributive and Allied Employees Association and Others


General Retail Industry Award 2020




10.02 AM, FRIDAY, 5 MARCH 2021


JUSTICE ROSS:  Good morning.  Rather than have each of you announce an appearance, the quickest way is probably for me to run through the list I've got in front of me and that I can see on the screen.  If I miss anyone, you can draw that to my attention.  If you can put your mics on mute unless you're speaking, as well, otherwise we get some feedback.


Mr Kemppi from the ACTU; Mr Crawford from the AWU; Mr Booth from the Newsagents Association of New South Wales and the ACT, and the Australian Newsagents Federation; Ms Durbin from the Attorney‑General's Department; Mr Friend, with Ms Burnley and Mr Macken for the SDA; for the MGA, Ms Stockley and Ms Brown; for ABI, Mr Izzo; for the ARA, Mr Tindley; for the NRA, Mr Millman; Ai Group, Mr Ferguson; for RAFFWU - I'm sorry, I'm butchering the pronunciation.  Can you let me know how that is to be pronounced, or is Mr Cullinan there?


MR CULLINAN:  Yes, President, I'm here now and it's (indistinct)


JUSTICE ROSS:  (indistinct) thank you.  I've got Mr Strong from COSBOA.


MR STRONG:  Yes.  Thank you.


JUSTICE ROSS:  Anybody else that I've missed?


MR MENSBURG:  Mr Mensburg, G, from the SDA, your Honour.


JUSTICE ROSS:  Yes, no problem with that.  Mr Friend will be speaking on behalf of the SDA.




MR McKENZIE:  Mark McKenzie from COSBOA, but I will be supporting Mr Strong.


JUSTICE ROSS:  Okay.  Thanks, Mr McKenzie.  All right.


MR O'BRIEN:  Liam O'Brien from the ACTU, as well.


JUSTICE ROSS:  All right.  Thank you.  Anybody else?  No?  All right.  We have published two statements in relation to these proceedings; on 1 March and 4 March.  In the statement on 4 March, at paragraph 9, there is an indication of some threshold issues raised by various parties.  As indicated in that statement we propose to deal with those threshold issues at the commencement of today's hearing.


What I propose to do is to firstly invite you, Mr Izzo, and ask some questions of you in relation to your threshold issues, then I'll go to the NRA and RAFFWU has also raised a threshold point.  I don't want you to canvass the various submissions that you have brought in, in which you deal with the merit of the application.  For the moment we're dealing with how we hear and determine the application.


Then I will ask whether anyone else who opposes the application has anything they want to say, then I'll go to the joint applicants, SDA, MGA, ACTU, COSBOA and seek their views.  Once we have concluded that we'll adjourn for 15 minutes or so to provide the Bench an opportunity to think about what we're going to do, then we'll come back let you know.  Does everyone understand that?  Has anyone got any questions?


MR TINDLEY:  Your Honour, it's Mr Tindley for the ARA.  The only point I'd make is that our submission didn't appear in the statement.  I understand it is on the web site, but it didn't appear in the statement.  I just wanted to raise that and ask whether the Bench has that submission.


JUSTICE ROSS:  When did you file that, Mr Tindley?


MR TINDLEY:  I think at about 12.20 yesterday.


JUSTICE ROSS:  So after the deadline for filing?




JUSTICE ROSS:  Did you seek an extension?


MR TINDLEY:  No, your Honour.


JUSTICE ROSS:  All right.  Anything else?  No?  All right.  Can I go to you first, Mr Izzo?  Look, sort of to summarise the proposition you're advancing within that threshold category at paragraph 9, implicit in that is that - well, can I ask you a question about one of the issues you raise in support of your first proposition?  This is at paragraph 13, subparagraph (b) of your submission.  Have you got that?  No doubt you do.


MR IZZO:  I do, Your Honour.


JUSTICE ROSS:  It's where you say at the end of it that you'd be in a position to file the expert report upon which you wish to rely in the very near term.  I am wondering if you can clarify what that might mean.


MR IZZO:  I can.  I suspect - - -


JUSTICE ROSS:  I should - I am sorry.  I should say, Mr Izzo, I don't want another formulation of words that means in the very near term.  I am looking for a particular date.


MR IZZO:  I can't be exact, but I would say two or three weeks maximum.


JUSTICE ROSS:  Two or three weeks?


MR IZZO:  Well, if - we have - most of the work has been done.  The report is in the process of being prepared.  If it was expedited, it could probably be filed within two weeks.


JUSTICE ROSS:  I see.  You essentially seek to have the matter go into conference and be adjourned until you have had an opportunity to file that expert report, is that the essence of it?


MR IZZO:  That is.  There are some other reasons why we say that, but that is one of the reasons, because - - -


JUSTICE ROSS:  No, that's fine.  I am just - and what would the expert report provide evidence about?


MR IZZO:  It would predominantly look at two things:  the nature of the demand for labour in the retail industry, so that is the fluctuations in demand for labour, and explore that notion; and it would also look at impediments to part-time employment, that is, why is part-time employment not being used as much as it could be.  They're the two primary issues being explored.  There are others, but they are probably the most two pertinent to these proceedings.


JUSTICE ROSS:  Do you have a copy of the instructions you've issued to the expert witness and the name?


MR IZZO:  I do have a copy of a letter of instruction, yes, and the expert - it's a team that's preparing it.  We don't necessarily know who we'd be asking to call evidence at this stage.  But it's a team from the University of Wollongong.


JUSTICE ROSS:  And are you content to file that letter of instruction, and that can be provided to the other parties?


MR IZZO:  Yes, I would be.


JUSTICE ROSS:  And the first point - okay.  It may be that the first point can be the subject of some agreed facts, in any event.  That is, fluctuations in the demand for labour.  How is the second point going to - I am just not sure what the - I appreciate you don't know either, but what evidence is going to be relevant to impediments?  There'd be submissions you could make about the award, et cetera.  I'm not sure an expert is going to add anything to that proposition.  But how is it - I'm just not - I'm trying to understand how an expert report on that issue is relevant.


MR IZZO:  Well, without prejudging what's going to be in the report, I suspect - the report basically looked at focus groups initially of employers in the industry, and then a survey.  I suspect what the report will go to is asking, at a practical level, employers themselves why it is that they perhaps - if they're not using part-time employment, why is that the case?  It's not necessarily - yes.


JUSTICE ROSS:  Yes, no.  That's fine, okay.  So it's not - well, my I suppose apprehension was that if it was simply to make the points that you're making as to why, from your perspective, the award is providing an impediment.  But if it's seeking the views of those participants in the industry, that's a different proposition.


MR IZZO:  It does.  I don't want to - it's - I am happy to be quite open about it.  So it's focus groups initially at a qualitative level.  It's survey evidence that then reinforces that.  You would be well aware, Your Honour, of the difficulties parties sometimes have when it comes to survey evidence and participation rates and all those types of things, and there may be some criticism about those matters that we would be more than happy to respond to.  But at the end of the day, they are the two sources of evidence that we will be relying upon to draw inferences.


JUSTICE ROSS:  Mr Izzo, I can almost predict the submissions.  I think they will be the same about the focus groups.  In my experience, what happens is when unions want to rely on focus group evidence, the employers attack it, because it's only the views of a small number of people.  And you can expect the same attack in return.  And we have addressed the issue of qualitative evidence in the penalty rate case, and a number of subsequent cases.  But I don't expect that is going to deter anyone from making the same points.  So yes, look, I just wanted to get an understanding of the nature and scope of it for the moment.


The second proposition you raise is that there be - well, it's in the form of a joinder application between - a joint application that's advanced by the MGA and the SDA with the proposal in your draft determination attached to your submission.  Can I make this observation in an effort to deal with this as quickly as possible?  I am not sure it's really an appropriate case for a joinder application.  Normally you join two applications.  Here we've only got one, and we've got a proposal that's still in progress.  Secondly, joinder is usually done so that the evidence in one is treated as the evidence in the other.  Here, we've really only got one issue that is dealing with a form of variation, however you describe it, to the operation of part-time work provisions in the Retail Award.  A joinder is sometimes done for cost reasons in the civil jurisdictions, but that's not relevant here.


I am not sure that we need to do anything about the joinder application, because there is no impediment to you advancing changes or a different proposal in the context of a hearing.  We are not - for our part, we are not bound - unlike in civil court jurisdictions, we are not confined to make a decision in the terms that are applied for, and I just don't - I think it will just lead to a larger argument about joining and everything else.  I just don't see that it's necessary in those circumstances.  You are certainly not going to be impeded, Mr Izzo; you are not going to be prevented in any way from arguing what your clients perceive to be the deficiencies in the joint application, or in advancing an alternative.


MR IZZO:  No, Your Honour.  If I could just make one point by way of background.  I think we can operate within the framework you've identified.  I think one of the reasons the joined issue arose is that there were proceedings on foot, and they were AM2020/103, in order to deal with the ministerial letter.  And it does appear that the current application is in response to those proceedings.  But because the SDA, AWU and MGA filed a separate 157 application, they have effectively taken their draft determination that they seek, pulled it out of proceedings AM2020/103, and created a separate proceeding.  But in many ways, this application and these current proceedings are really a development from or part of the broader proceedings AM2020/103.  So we are just trying to draw the bench's attention to that matter and seek to have our proposal determined together with this determination.  Now, if we can simply file our determination in these proceedings, that would deal with any comments of joiner, and we'd be more than happy to do so.


JUSTICE ROSS:  I mean, raising the general proceedings really goes to not only the point you make, but the point that is perhaps more strongly made by some of the other employees, and that is there is no expedition in relation to this issue.  Well, I suppose that leads me to wonder, what am I doing in these general flexibility proceedings anyway?  Why don't I just terminate them?  Because what - they have been instituted in response to a letter from the Minister.  Now, plainly the letter is not a direction, but it's a relevant consideration.  We've responded to it.  He identifies the General Retail Award as a priority modern award in a sector that has been the hardest hit by the pandemic.  He talks about the government being strongly of the view that the Commission has an important further and immediate role to assist in the process of developing reform to assist the future recovery.  He expressly says that the changes should be made as expeditiously as possible, preferably no later than 31 March.


Now, this isn't particularly directed at you, Mr Izzo, but you read some of the other employer submissions and you're sort of left with the impression that everything is rosy in the retail sector; no need to do anything quickly, just take your time and we'll get to it in due course if I can, you know, use the vernacular.


MR IZZO:  That is certainly not our position, your Honour, and I think perhaps some of the submissions - I won't speak for the others, but certainly in our own - the resistance to expedition of the nature that is being discussed today wasn't precisely articulated in terms of what time frame we would expect.  We do think these proceedings should be handled expeditiously.  We do think that the time frame for determining the matter should be in the near future.


What we are rallying against is determining the matter within the space of four business days and there is a couple of reasons for that.  One is the ministerial letter itself talks about having the variations in effect by the end of March.  We still have three and a half weeks until the end of March, so even if we use the ministerial letter as a time frame for dealing with the current issue there is all of March that we could utilise.  I appreciate the Bench still needs to make its decision, but that would indicate we don't necessarily need - - -


JUSTICE ROSS:  Thanks for that, Mr Izzo.  We will need time to make the decision, that's right.  On your framework though you're saying two weeks for the expert report and then, no doubt, there will need to be some - you know, we could hardly list it on the same day as you have filed the expert report, so you can see how - we're already at the 5th.  You add two weeks to that, you're already on the 19th.  March pretty soon starts to get away from you.


MR IZZO:  I do understand that, your Honour.  There is a possibility of seeking further instructions from the experts about timing.  I'm not in a position to kind of curtail their time frame more on the spot, but I could certainly make inquiries about the ability to bring that forward.


JUSTICE ROSS:  Okay, that would certainly be helpful.  When were they given the instructions?


MR IZZO:  This has been a process that has been in place for a considerable period of time, your Honour.  I think it started about six months ago, to be honest.




MR IZZO:  It's an issue we've been looking at well before the pandemic even arrived, but now it appears that all the issues have aligned in these proceedings and the evidence will be relevant.


JUSTICE ROSS:  Yes, okay.  Well, I'd like you to seek those instructions.  So it's not the case - and I don't wish to be seen to be, sort of, underestimating the effort required - that they haven't done the focus groups or the survey, it's the writing up of the report that we're talking about now?


MR IZZO:  Yes, which itself is - - -


JUSTICE ROSS:  No, no, I - - -


MR IZZO:  - - - at the stage they've prepared - - -




MR IZZO:  It's mostly done.  That is my understanding.




MR IZZO:  I just don't have their availabilities to understand what it takes to finish it, but all the evidence gathering is done and most of the drafting is done, is my understanding.


JUSTICE ROSS:  Okay.  All right.  Thank you.  We will ask you to seek that.  If you can perhaps have someone do that while we're hearing from the other parties.  If you can seek that and obviously from our perspective the sooner the better, but let's see what is possible once you've engaged with them.


MR IZZO:  Certainly.  Once I've finished with submissions, your Honour, I'm happy to immediately take that up and I can hopefully revert to you during the course of this morning.


JUSTICE ROSS:  All right.  Thank you.  So in terms of the threshold issues, I note that you're seeking for the matter to go into conference; if not, you know, now, then at some point.  Look, can I make an observation about that and there is always an element of risk in making these sorts of observations because there's usually violent disagreement from one party or another.


I haven't done a close textual analysis of your revised proposition and the one put forward by the joint applicants, but my initial impression at least - speaking for myself - was that it has changed significantly.  In particular it addresses some of the matters that were raised in the earlier proceedings.  When you compare the two propositions, there are some obvious differences between them, but you could count them on the fingers of one hand really.


There is an element - as you point out in your submission - of common purpose about them which rather suggests that there may be some utility, if we were minded to adjourn, in conferences between the parties.  Have you had any conversations or made contact about your proposal with the SDA, NTA, COSBOA or the ACTU?


MR IZZO:  Your Honour, the short answer to that question is no, but that's merely because of the haste with which we moved to respond to the application on Monday.  Can I just take your comments a little further in terms of the commonality.  I think putting aside all the legal arguments and all the concerns about procedural fairness that have been raised by some of the parties, I think there is a fundamental development here and that is that we're actually at a moment of extraordinary consensus between the parties.


I think for the first time since the introduction of the Fair Work Act we have major unions and employers in this industry all openly agreeing that part‑time employees should be able to voluntarily work additional hours up to 38 without penalty, and we are all in agreement that this is in the interests of employers and employees, the national economy and the modern awards objective.  I think what we have here is a moment that should be harnessed by everyone and it's possible we could squander this opportunity if we act with undue haste because, as you point out, there is disagreement, rather strong disagreement, about the mechanics by which we go about to achieve this common outcome.


To put it another way, there is disagreement about the drafting.  What we say is so substantial is our disagreement about the drafting that my clients hold concerns that if we go ahead with the joint application that's before you today, it is so disadvantageous to employers and part‑time employees that it's not only inconsistent with the modern awards objective but it takes the industry backwards.


JUSTICE ROSS:  Let's for a moment focus on the moment of extraordinary consensus and those fundamentals.  Look, I don't particularly want other parties to comment on this and, you know, then we'll get variations of the theme.  They might say, well, it's not extraordinary consensus so let's not trouble ourselves with anything like that.  Let's take that proposition for a moment.


I think from my reading of the applications, yes, there is an element of commonality and a coming together on the issue.  For my part, Mr Izzo, I share your concern that it might be squandered, but I think that works in two ways.  I take your point about if it's heard and determined today that may force parties into a particular position and may deny the opportunity for some conferences and discussions which might bring the parties closer together.


I'm also concerned that if we - as I think Ai Group suggests, sort of without - you know, no doubt you would put it differently, Mr Ferguson, but it reads a bit like putting to off into the never‑never.  If we push it off for a considerable period of time, if I can put it that way, then the consensus or the degree of commonality may evaporate.  And that, of itself, might push people into a different position.  So I think it's - it seems to me it's a balancing exercise of trying to accommodate the prospect of building a consensus, narrowing the issues in dispute, but doing that within a timeframe that doesn't jeopardise the whole process.  And it's also, frankly, faithful to the position the government has put around the need to deal with these things quickly.  So it's that sort of balance that I think will be the tricky think, Mr Izzo.


MR IZZO:  I understand and appreciate that, Your Honour.  I think the reason I made the points I did, to take your comments a little further, was that the final point I was going to make is that given where we are at with all the parties together, what we say is the sensible solution is that everyone does need to get into a room, whether that's virtually or physically, to deal with the mechanics.  And I personally am generally somewhat pessimistic about conciliation, but I am genuinely optimistic in this case, because we are all talking about a common outcome.  So I think even if we had a week or a few days to have a member assisted conciliation conference, it would be worth pursuing that avenue and exhausting it almost simultaneously, as the parties can prepare to have the issue determined.  But I think there is considerable merit in it, given our common desire for the same outcome.


JUSTICE ROSS:  And look, it may be that - look, I'd have a degree of pessimism as well.  Not that - but mainly that I think it's unlikely that this disparate group are all going to end up signing up to one document.  But that doesn't mean that there can't be - and it may be that not all of the employers are going to reach a common position.  It may be that those represented by ABI do, or Mr Booth does, or Mr Booth has some concerns, et cetera.  It doesn't need to be a unanimity of view.  And RAFFWU has made its position fairly clear, but I doubt if it will be signing up for any outcome that either group comes up with.  But that doesn't mean that there's not a prospect of at least building the degree of consensus that exists, and narrowing the issues between some or more or all of the parties.  But as I say, it's the balance in it that we'll need to have a think about.  Was there anything else you wanted to say about the preliminary threshold issues, Mr Izzo?


MR IZZO:  There is, a couple of matters.  If I could just come back to one of your questions that you asked me, Your Honour.  You asked about expedition, and you talked about the ministerial request, and you asked, well, why are we moving with any sense of speed on all these matters?  I just wanted to say that the (indistinct) task in terms of the process.  There is merit in expedition.  It needs to be balanced against the opportunity to provide a response, and for the parties to have a fair opportunity to do that.  What I wanted to impress upon the commission, and the commission is well aware of the authorities of Kioa v West and the other authorities that talk about what's necessary will depend on the context.


What I want to impress upon you is that - and we take the opportunity in the submissions to draw your attention to these matters - the commission has, very much to its credit, moved swiftly in a whole range of matters over the course of the past 12 months, some of it within days.  But we are in a very different circumstances here that never before have we had a scenario where we're seeking a variation of 18 months.  So this is much more - or much longer term than the two or three month variations that have been in place previously.  In the previous occasions that the commission moved within the space of a week, there was almost always unanimous consent of all (indistinct).  That is not - I should rephrase that.  No opposition by a party.


Where there was opposition, that arose, on our analysis, in four occasions.  We deal with that in our written submissions.  In those four occasions, again, at least in a couple of them, there was broad consensus on the actual determination.  There was only a single item, or a couple of drafting items that were in contest.  Or alternatively, it had been the product of a previous consent variation.  But in any event, in all of those circumstances, evidence had been filed.  And this is a matter that Mr Friend is going to have to grapple with.  On 5 February, Mr Friend made it very clear that any variation of this nature would require evidence.  He is now standing before the commission today, urging the commission to make a variation without evidence, and that's something that the SDA from a procedural perspective needs to grapple with.


What we say is given that my clients have foreshadowed the ability to file relevant evidence shortly, the context - when you have regard to the whole context, delaying by even a couple of weeks will put the commission and the parties in a position to make a much better decision than they will be in if the matter is heard today.  That is my response to your question, Your Honour, in relation to why don't we just stall on everything.  I don't accept that.  I don't accept that we shouldn't move quickly; we should.  Just not this quickly.  So that's the first matter I wish to raise.


There is another matter, and I do need to be careful in how I raise this, because I don't want to be seen to be saying we don't want this to go ahead because it's not our proposal.  But there is an element of the employer proposals that were raised on 5 February being sidelined or leapfrogged in how the process has unfolded.  And I don't say that critical of any party, but it could be the outcome if we proceed today, and that is because there was a timeframe for the filing of these proposals.  And we make the point in our submissions that the SDA, AWU and MGA never made it apparent to anyone that they were considering a proposal.  There were directions for the filing of these types of proposals they didn't file.


JUSTICE ROSS:  Let me just - look, can I just cut you off on this line of submissions for the moment, Mr Izzo?  Because what I don't want is to spend the next couple of hours listening to those who are not party to the joint application complain that they were never told about the joint application, and then I can assure you what I will hear from the joint applicants will be, well, you've never engaged with them, and it just becomes this sort of circular tit for tat thing.  It was clear in the statements that I was encouraging bilateral conversations between parties, and it's a product of that.  With respect, I don't think there's much utility in going through - we are where we are.


As I have indicated to you, there is no impediment to you.  We've not made the decision as to how we're going to proceed with it today yet.  We want to hear everyone about that.  Let's focus on that for the moment.  But when we do get to some hearing point, there is no impediment from you drawing our attention to your proposal.  The others will have an opportunity to say what they want to say about it.  And we are not confined by the nature of what's before us in the sense that we are obliged to accord procedural fairness.  We can't sort of go off on a frolic and do something completely different.  But you have a developed proposal that's in your submissions, and there is nothing to join, because there's no application to vary by any party other than the joint applicants.  So it's sort of revisiting the - you're not going to be constrained about what you want to argue.


And look, I make this observation to the others:  don't bother complaining about the conduct of somebody else, or - you know, it reads a bit like, you know, nobody's spoken to me type of thing.  Well, I think everyone in the room is - there's a degree of guilt to share around on all of that, you know.  So let's not get too caught up in that side of it.  It's got the potential - the reason I interrupted, Mr Izzo, is that it's got the potential then to invite some responses, which I am sure there will just be a robust exchange, and I don't want anything to happen here that is going to jeopardise that consensus that you drew attention to.  And I think there is a risk of if we start to - and I wasn't suggesting that you were doing this, but I'm pretty sure - it's pretty evident in some of the other submissions.  And no doubt, those on the other side would feel the need to respond to that, and I want to avoid that sort of thing.


MR IZZO:  Your Honour, thank you.  I think your comments dispense with my arguments in this sense:  where I was going to come to, my main concern, was that this application will be determined without our alternative being considered at the same time.  The prejudice we would suffer is that once this variation is made, it may be difficult, particularly if the modern awards (indistinct) meet the modern awards objective, for us to then articulate a revision so quickly, but provided we can put forward our alternative determination and the Bench will consider that as part of the proceedings, it dispenses with my concerns in that regard.




MR IZZO:  If you would just bear with me one moment.


JUSTICE ROSS:  Yes, sure.


MR IZZO:  I'll make sure there is nothing else I wish to raise.  There is probably one final issue that is actually not canvassed in our submissions, your Honour, that is a matter of substance but is equally relevant to the process.  That is this:  there is I think, in our humble submission, a problem in clause 10 of the Retail Award.  When clause 10 of the Retail Award is read, when one reads 10.5, 10.6, the clauses that talk about setting the hours of work for part‑time employees and then one gets to the end of the clause which deals with rostering, there are inherent tensions that make the interpretation, operation and application of the clause very difficult.


I think one of the things that hopefully will arise form our expert evidence is that the award is very difficult to grapple with when it comes to this.  The proposal that's before you does not grapple with this.  It does not actually go to the root cause of one of the problems in the industry, in our humble submission, which is that there is a tension about how you can roster the part‑time employees, whether their hours can be changed.  If we are to embark upon fixing this award to enable economic recovery, we need to grapple with one of the problems, which is the award is very hard to apply when it comes to rostering part‑timers.


What another couple of weeks would give is the benefit for the unions to have this drawn to their attention, the employers to properly articulate what that tension is so that when you come to consider this additional variation to flex up hours, if you want to call it that, or offer additional hours, we also fix another root problem which goes to rostering of part‑timers.  What we're talking about is trying to make it easier to engage part‑timers and so we're saying we should fix it properly now that the opportunity has arose, now that we have the consensus.


The only reason I raise that as a subsequent point is the current application doesn't deal with that and a little bit more time may enable that to also form part of these proceedings.  Others may hold different views about that, but I think what you'll find, your Honour, is everyone has a different view as to how the beginning of clause 10 interrelates with the end of clause 10.  If everyone has a different view, it means we may well have a problem and so we think that should also form part of these proceedings and more time will enable that.


That's probably all I wish to say.  I will just put myself on mute and try and make those inquiries about our expert evidence, and follow the proceedings as best I can, if your Honour pleases.


JUSTICE ROSS:  Okay.  Thanks, Mr Izzo.  Mr Millman, can I go to you.  You have raised an objection to the expedited hearing.  I want to hear what you say about the exchange with Mr Izzo regarding the Minister's correspondence and position.  That would be the first thing.  In terms of an adjournment, what period and for what reason.  Can I indicate from my perspective that I would be unlikely to make the direction that you're proposing.  It's set out in paragraph (b) under point 2 in paragraph 9; that is, requiring the applicants to file and serve evidence, and more fulsome submissions in support.


Issuing such a direction would require a prejudgment about the nature of their submissions, which I don't propose to do.  It's a matter for each party to advance their case as they see fit.  I would make the same point to RAFFWU.  You say that without an evidentiary basis it should not be permitted to proceed to a hearing.  There's no substance for that view either.


A party is entitled to bring an application, they're entitled to have it heard.  Whether they choose to have, as you put it, fulsome submissions or more focused submissions, whether they choose to bring evidence or not, is a matter for them.  Ultimately they carry the risk of whatever course they choose.  I don't think the Commission would be in the business of saying, "No, you can't proceed unless you file evidence", or in the position of, "You can't proceed unless you file a more fulsome submission."  You make the submissions you want to make and we make the decision on the basis of it.


Let's just go to the hearing point first, bearing in mind here I don't want to canvass the respective merits or anything of that nature.  You don't need to go into the - and please avoid the, you know, "Why wasn't I told?" thing.  I think we've heard that, got the message.  Everyone understands where everyone is coming from on that, but let's focus on whether you see any need for expedition at all and what sort of adjournment are you proposing.


MR MILLMAN:  Thank you, your Honour.  In terms of the expedition point, I will say first of all that we're not saying that these proceedings should not be dealt with as quickly and efficiently as reasonably possible.  We certainly don't want this to be another iteration of the penalty rates case, with three years between application and final determination.


As Mr Izzo said, what we do object to is the haste of what appears to be proposed between the time of the filing and the time of hearing being about four days.  Certainly in circumstances where what is being proposed is an attempt to remedy an issue in the award that has been there for about 10 years and has been grappled with previously, and has unsuccessfully been grappled with previously, in order for the application to deal with the issue with any kind of merit it needs to be subject to a bit more consideration.


In terms of that particular point, we're not seeking a long adjournment by any stretch of the imagination.  We would be suggesting that the progression between today and a final hearing be measured in weeks rather than months.




MR MILLMAN:  Turning then to the point about the Minister's letter, as you said yourself, your Honour, it's not a direction, it is an indication of what the government would prefer, but the Commission must nevertheless exercise its functions in a manner that allows it to act judicially and accord procedural fairness to the parties.  Rushing with undue haste in circumstances such as this is, we feel, prejudicial to the interests of employers and employees, and in that respect I daresay Mr Cullinan will speak to the position of employees.


By and large I believe rather than take up the Bench's time and everyone else's, Mr Izzo has effectively canvassed in perhaps more articulate fashion than I am able the various points that effectively we also raise in our submissions with respect to the timing, nature and extent of consideration to be provided in this case.


MR IZZO:  Apologies, your Honour.  I just thought I would intervene now because I have those instructions and then everyone has the benefit of it - - -




MR IZZO:  I have been informed we could be in a position to file that report on Monday, 15 March.  It's basically a week.  A week is Friday, it's the following Monday, so it's about eight or nine days away.


JUSTICE ROSS:  All right.  Thank you.  Mr Millman, you said this has been an issue for 10 years.  Well, one wonders why you haven't done something about it is the first point.  The second point is I think it was either the NRA or the ARA that actually foreshadowed and filed a claim in the four yearly review, and then when directions were issued for the filing of submissions you withdrew it.


MR MILLMAN:  Yes, I understand that was the case, your Honour, and unfortunately the circumstances at that particular time were due to changes in the internal structure of NRA which meant that we didn't have the resources available to advance that claim at the time.  Certainly had we had those resources we would have wanted to advance that claim.


When I say that this is an issue in the Retail Award or has been for 10 years, we do note that certainly among our membership the level of casualisation across the retail industry generally has remained steady for the last 10 years.  I don't think that it takes much in the way of evidence to establish that the feedback we had from our membership on that point is that the reason for that and why part‑time employment is not favoured is because, as Mr Izzo said, part‑time employment doesn't offer the flexibility to meet all the labour demands that change from time to time in the retail sector.


While employers prefer part‑time employment because it means that they do need to - you know, if they actually roster someone on they can be relatively sure that the person might turn up.  Casual employment does actually offer a bit more flexibility in that respect.  Now, I dare say that other employer groups may have different perspectives depending on the experiences with their members, but that has been the experience with our members with respect to the part‑time provisions in the award; but obviously there are some difficulties in actually addressing it.


JUSTICE ROSS:  Look, I might say from my perspective I'm not sure that that is something that goes without evidence, this issue about casualisation not changing or anything like that.  This goes back a number of years now, maybe five years, I can recall meeting I think the then CEO of - I think it was Coles and I think it was Ian McLeod.  I was interested in the changes in their stores and their businesses, et cetera.  I went to look at one of the stores.  He was explaining how it worked.


I remember commenting that I had noticed a difference in service levels; that now you ask someone, "Where would I find" - in my case asking, "Where do I find the maple syrup?" and they sort of will take you there.  I could recall in years past you might ask the same question and the answer would be, "I'm not sure, mate.  Somewhere down aisles 7, 8 or 9 I suppose", and you would sort of wander around the store on your own.  He made the point then - I don't know if that's still the case and I'm really using this by way of illustration - that when he started two‑thirds of the employees were casuals and one‑third were full‑time and part‑time.


During his tenure as CEO that had reversed and two‑thirds were full‑time and part‑time, and one‑third were casuals.  One of the reasons for that was that - and I'm not suggesting this is evidence in any sense, but I'm just making the point that I'm not sure this is a simple construct.  He said one of the reasons for that change was that they felt they got more engagement out of part‑time employees.  They felt that there was more of a commitment to training and participation, and the like.  I think there are many factors that intersect with these things.


I also took the opportunity to complain that they had dropped Canadian maple syrup from their lineup and now all I could buy was Home Brand, but he did make the point in reply that perhaps I wasn't the ideal Coles customer that they were looking for and maybe I needed to find a gourmet food shop to meet all my needs.


The point he made stuck in my mind about how these things can change depending on the particular circumstances of each business and for them, and for him, he liked the fact that part‑timers had more of a connection and engagement with the business.  They could participate in training, be more committed to its objectives and what they were doing in their change program.  You know, looking at aggregate numbers doesn't always tell you the answer.  All right.  Thank you, Mr Millman.  Mr Tindley?


MR TINDLEY:  Thank you, your Honour.  I don't know whether we're talking about the Coles situation as evidence.  I would make a couple of observations about that.  I think businesses like Coles and the major retailers can make those decisions more easily about their part‑time/casual mix because they have enterprise agreements largely reached with the SDA which contain a level of flexibility for part‑time employment that is fundamentally aligned with the determination that has been proposed by ABI and agreed with by the ARA, so I would make that observation.


In relation to maple syrup, your Honour, if you go to Costco they sell Canadian maple syrup in a one‑litre container.  I've got one in the fridge, so if you are a significant consumer of it as I am, then that's the direction to take.  A 60‑dollar membership can be confronting, but we work through that and benefit of the savings.


In general terms and on a serious note, your Honour, I just fully commend Mr Izzo's position about the opportunity that exists here.  I would also echo your comments, your Honour, about the number of matters that are in dispute here.  It seems to me that there are somewhere in the vicinity of,, kind of, four or five matters between at least the majority of the parties involved in this process that are in dispute.  Now, some of them are likely to be significant and I would agree that there is a strong likelihood that at least one or two of those just won't be - there won't be a consensus here reached, but if we can iron out some of those elements.


We're essentially in agreement that there is a benefit of more flexible part‑time arrangements.  There is perhaps some disagreement about the nature and the way that employees can be protected in those circumstances and we're confident that those kind of protections are in the common interests of employers and employees, so we're committed to working to narrow those issues.  I think it quite simply makes the best use of the Commission's time if we can at least undertake that process.


I again share Mr Izzo's usual kind of reticence about conciliated processes, but I think that's a process that would be suitable to these circumstances.


JUSTICE ROSS:  Thanks, Mr Tindley, and I'm indebted for your advice about Costco.  I'll make some inquiries.  I'm pretty sure that my consumption of that product is going to make that joining fee pale into insignificance with the passage of time.  Can I go to perhaps Mr Booth and then Mr Ferguson.  Mr Booth?  Mr Booth, you have to turn your mute off.  Okay, we'll come back to you, Mr Booth.  We might go to Mr Ferguson.


MR FERGUSON:  Yes, your Honour, just one small point to ensure our submissions around the merits and conferencing weren't misunderstood at all.  We were actually optimistic about the prospects of conferencing, narrowing or perhaps reaching an agreement between the parties.  As to timing, I think in our view perhaps once the huge variable of the bill was taken out of play - and that may happen relatively imminently - that, you know, an agreement that is (indistinct) to the Commission might have been more easily struck.


I certainly don't want that to be taken to mean that we don't think there is merit in conferencing beforehand.  Perhaps our view of the world is different to others and now is the time, but we're certainly willing to engage in conferencing, you know, in the very near future rather than waiting the sort of two weeks or thereabouts that we had proposed.  We have just tried to set out the timing about the passage of the bill to make it clear that, you know, potentially we will have certainty within a very tight time frame.


JUSTICE ROSS:  Well, yes, let's not - - -


MR FERGUSON:  Perhaps, your Honour.


JUSTICE ROSS:  I think speculating on the timing of legislation is a fairly arid exercise.  All right.  Mr Booth, I see you have found the hands up function, too.  Good for you.  What did you wish to say about this sort of threshold issue, Mr Booth?  Not so much the respective merits, but the "how do we proceed from here" point.


MR BOOTH:  I hope you can hear me, your Honour.




MR BOOTH:  We have had the opportunity of speaking with various parties in the period leading up to today's conference.  We would consider that there may be some merit in the parties coming together under a guided (indistinct) structure.  We believe that there are certain similarities between the application and the foreshadowed applications.  And beyond that, Your Honour, we would leave it to the commission to decide.


I would add also that I have a personal stash of Canadian maple syrup, since I have Canadian relatives, and I will send you my residential address, and I look forward to seeing you on the weekend.


JUSTICE ROSS:  Well, if I can make this observation.  Mr Booth, this hearing has been much more productive for me than I had anticipated when I started it.  And thanks for your consideration.  I wouldn't want you to think that I survive on a diet of only maple syrup; you've got to put it on something.


MR BOOTH:  Well, I can also advise that Costco have an open day in Sydney on this weekend, and you won't have to pay the joining fee to make a purchase.


JUSTICE ROSS:  Well, this day just keeps getting better and better for me, Mr Booth.  Thanks very much.  If I can go to you, Mr Cullinan, and then I will go to those associated with the joint application.


MR CULLINAN:  Thank you, Your Honour.  We have heard the various things that folks have had to say today.  I just wanted to flag that I have to leave in 20 minutes to participate in another hearing, and I apologise for that, but Ms Zetanaka(?) will be online for RAFFWU.  In terms of the complaint we made, and maybe our language was a little inarticulate, perhaps a function of having 36 hours to file submissions, it's not so much that their application shouldn't be dealt with without evidence.  We think that that can be dealt with very, very quickly without evidence.  The issues is that the expedited timeframe had the effect of preventing RAFFWU putting on evidence.  And so it was in that context, which probably - well, which need to be said in a better way.


Just in terms of some of the other things that have been raised, while it's not all rosy at the moment, this is still not March 2020 or July 2020.  Christian Porter, the minister, is wrong; these things do not need to be rushed through, and we just don't believe that these changes that are proposed in this structure respond to any of the expeditious issues.  At its core, part-time workers do work additional hours right now.  The structure of the award provides for part-time workers to work additional hours, and every day of every week, there are thousands and thousands of workers working those additional hours.  We think that the proposals that have been put forward, as they have been correctly put, are the claims of employers for ten years.  And we understand that.  We understand some of the concern about the ABI and other employer group proposals.


But as a proposal, it is something that we are able to understand and grapple with, because as has been put by I think one of the advocates, it is very similar to the structure that is currently in place at some major retailers, like Coles.  We have members who work under those structures.  The structure that is being proposed is not particularly dissimilar from the current award.  There are issues that we have with - and I think maybe Mr Izzo hit the nail on the head with the difference between rostering and agreed hours and variations, and there's concerns for us about rostering and consultation and agreed additional hours.  But those are all concerns that could be, remarkably, the subject or some form of conciliation and discussion.  As a proposal, though, it is vastly different from the proposal that's been - that's the subject of the application.  And that is a straight up casualisation of part-time work without casual loading.


I think that sums up a number of the concerns we have.  We're happy obviously to answer any questions.  We would seek time to be able to put on the evidence of our members that work under current arrangements, such as those at Coles and Woolworths, as well as other arrangements in workplaces where the award applies, if that pleases the commission.


JUSTICE ROSS:  Thank you, Mr Cullinan.  What I propose to now do is go to the SDA, then the AWU and then the MGA and COSBOA and go finally to the ACTU.  Can I go to you first, Mr Friend?


MR FRIEND:  Thank you, Your Honour.  It's true that there is some common ground between the joint applications that's been made and the proposal from ABI, but it's perhaps not as great as some people have submitted.  The joint application is an application for a temporary change of 18 months.  The ABI application is a permanent change to the way part-time work is to be dealt with under the award, and that gives us very great concern.  It's been suggested, I think, that this joint application in some way arises out of the ministerial letter, and I think that's probably fair enough to say that.  The circumstances of COVID, the minister pointed to career being a priority award, a distressed industry sector, simplifying pay arrangements on an opt-in basis, and moving as expeditiously as possible.  What we are proposing is something that will achieve that outcome, but not on a permanent basis.


There's been very slow progress up until now.  On 5 February the commission invited the parties to talk, and we have done that, and come up with this proposal.  It doesn't forestall or prevent the employers from making an application along the lines of ABI.  At the moment, as we understand it, the ABI draft is something that only enjoys, to quote their submission, "broad support at a conceptual level."  So they have presumably still got a fair bit more work to do before they decide exactly what they want.


We are dealing with a situation here where there seems to be some general agreement that there is some urgency in bringing some relief, particularly to small business employers.  To that extent, we propose that the application that we put forward should be dealt with very quickly.  ABI and the others can talk and work out what particular type of proposal they want to introduce, which is obviously going to take some time, and that can be programmed and dealt with in the ordinary way.  I can tell you if it's a proposal like the one that we see, it will be opposed by the SDA, and vigorously opposed.  Because it's a permanent change, it provides for standing agreements for additional hours, and you could readily imagine that employees would have to sign those agreements before they even get their job, there's no arbitration available in relation to any disputes.  So that is going to take a fair contest.  We don't say the employers can't pursue that, and we can have a hearing about that in due course.  It's a bit change to the award, and an important part of the award.


But what we've done with the MGA and the AWU and support of the ACTU and COSBOA is come up with a proposal that does something.  It doesn't go as far as ABI want, but it does something.  And it does it now.  It can start next week.  So we submit that the appropriate course is to have a hearing as soon as possible, today if possible, and have the change implemented.  It's not permanent.  It's for 18 months.  But it does something.  That is the proposal that we put at this stage, commission.


JUSTICE ROSS:  Mr Friend, can I just - in the event that we decide not to proceed today, but to adjourn the matter for whatever period, acknowledging your point about the need to deal with the matter with some expedition, is the SDA opposed to participating in any conferencing process that might arise?


MR FRIEND:  We don't want to waste time on a conferencing process.  I think it's been accepted - I think Mr Tindley's said he didn't anticipate that there would be agreement on at least a couple of things, and we would anticipate too.  So I haven't got specific instructions.  But our position is we want to proceed as quickly as possible.  If there was a day or so delay to try and get some broader consensus, I imagine that that could be accommodated.  But we don't want to put it off any longer.


JUSTICE ROSS:  I'm not - to be clear, I'm not suggesting that the reason for any adjournment would be to permit conferencing to take place, but rather if an adjournment was (indistinct) during which that adjournment take place, one useful activity would be to take advantage of that period by facilitated conferences between the parties to see if the areas in dispute can be narrowed, and so that there can be some discussion about this interaction between the part-time employment and rostering provisions.


MR FRIEND:  Your Honour - in these Teams meetings, it's not always easy to get instructions.  I'm speaking for myself.  If it's not causing a delay, I can't see that it's a major problem, but there may be other issues, so.


JUSTICE ROSS:  That's fine.  You can do those instructions while I deal with the others, and if there's any shift in the position - I understand the difficulty, Mr Friend.


MR FRIEND:  Thank you.


JUSTICE ROSS:  If there's any shift in the position, then just let me know.


MR FRIEND:  Thank you.


JUSTICE ROSS:  Mr Crawford.


MR CRAWFORD:  Thank you, Your Honour.  Your Honour, the AWU supports the submissions just made by the SDA, and there's nothing additional I want to add at this point.


JUSTICE ROSS:  Can I just ask you about that conferencing issue?  In the event that, contrary to your submission and the SDA's, we were to adjourn for a period, would the AWU be prepared to participate in any conferences that might be organised during that period?


MR CRAWFORD:  I think in general we are, Your Honour, but we would largely be guided by the SDA's position, I think, in this matter, given they are the principle union for this industry.


JUSTICE ROSS:  No, certainly.  I understand.  Thank you.  Can I go to the MGA?  Was there anything that you wish to add?


MS BROWN:  Yes, Your Honour.  It's Marie Brown here on behalf of MGA.


JUSTICE ROSS:  Yes, Ms Brown.


MS BROWN:  Just a couple of things I'd like to add, first of all about the idea of having a conference.  I haven't got strict instructions on that.  Maybe a day or so.  But I think basically we feel that we have talked about this issue for some considerable time, and we feel that having focused on award flexibility over a considerable period of time and talked about it at length, and not been told at various times that yes, we are all in favour of that, but never really coming to any conclusion, (indistinct) that we have now got to the stage where we (indistinct).


JUSTICE ROSS:  I am sorry, Ms Brown.  You've just dropped out.  Ms Brown?  Just bear with us.  We are just trying to get Ms Brown back on the line.  Are you back, Ms Brown?


SPEAKER:  Can you hear us now, Your Honour?


JUSTICE ROSS:  I can, yes.


SPEAKER:  Okay, great.  Sorry, it was just a small technical difficulty.


JUSTICE ROSS:  No, no.  That's - you've got my entire sympathies about technical difficulties.  Go on, Ms Brown.


MS BROWN:  Thank you.  As I was saying, we know that the economy is more or less on the road to recovery at the moment, so we're told.  But there are still some very difficult situations for small businesses.  We know that if you walk through the CBD at the moment looking for a particular shop, you'll find that you won't find it, because it's not there anymore.  So small businesses have really struggled over the last year, and obviously will continue to struggle.  So we are not looking for any major changes to the award.  We are simply looking for an opportunity to provide a bit more flexibility, with the assistance of the commission, of course, to offer more hours and hopefully restore some part-time work, a lot more part-time work, rather than this growing number of casual employees.  So we say that we have talked about this for a long time.  To say there's been no consultation is absolutely wrong, because MGA and COSBOA have been talking about the need for award flexibility for almost a year.  We talked about it in the small groups with the attorney-general, but nothing has happened.  So we believe that joining forces with the SDA has perhaps enabled us to be brought to the floor, and we can progress the matter, hopefully very quickly, because we really strongly feel that there is a need to do something quickly.  I could elaborate a lot more, but I think a lot has been said already.  But I think we really firmly believe that what we want to do will be valuable to everybody; employers and their employees.  So I think that's all, unless Your Honour had any questions of us.  We just want to make sure that (indistinct) what's being requested at the time.


JUSTICE ROSS:  Thank you, Ms Brown.  Can I go to Mr Strong at COSBOA?


MR STRONG:  Thank you, President.  I'll just reinforce what Ms Brown was saying, and let me say that we've been looking for a simplicity, and the opportunity for employees and employers to work together to do what's best for both of them for a long time now.  And participating in this, I can see why it hasn't happened.  It's very sad to hear that we have taken ten years, and people seem to think we need more time.  We know the problem, there's just disagreement about the process.  We have in front of you, Mr President, agreement reached by key unions with an employer body, supported by the union organisation and the peak small business organisation.  The fact that we might go to a university to get expert advice on retail is quite amusing when you think that the Master Grocers Association is full of experts on retail, as is the SDA.  It's just a delay that we don't need.  It sends a message again to the small business community that you don't count, that what counts is process and the opinions of lawyers and big business, and would be so disappointing that we would go back down the same path we've always been.  This is an obvious thing that will create the opportunity to employ less casuals, to give part-timers more work, and a lot of them want it, but it won't force part-time people to take any work.  It's doesn't force employers, small business employers, to get (indistinct) either.


As I say, participating in this has just confirmed the problem of the process.  People wanting to stop things for no apparent reason bar a textbook or a clause somewhere.  We need to get this through.  The confidence of the small business sector will rise as a result of this.  They will be able to be more flexible with their employees, and their employees want flexibility.  The issue in most retail is that most employees don't know they are supposed to get - part-time employees, they are supposed to get overtime.  If the boss yells across the room, can you work on Thursday for a few hours, it makes no sense.  And the same with a lot of small business people.  It's a rule that the club knows about that a lot of small business people don't know about.


And finally, as I say, in the Master Grocers Association and the SDA, these are fine organisations that know retail back to front.  They have come together.  We have talked about this for a long time.  We have talked about it with lots of unions.  We have talked about it with industry association.  We know small business.  We know what they're talking about.  To the point, President, can I say that if we're buying maple syrup, it should be from your local IGA or your local small (indistinct).  Thank you.


JUSTICE ROSS:  Look, if only they carried it, Mr Strong, I'd be there in a flash.  Look, do I take it that your position is in support of that put by the MGA, that you want the matter heard and determined quickly.  On that basis, you are opposed to an adjournment.  But if we were against you about that, and decided that a short adjournment was an appropriate course, you would be prepared to participate in some conferencing in an effort to reduce the scope of any disagreement?


MR STRONG:  Very prepared to participate and make sure it deals with reality, President.  That they don't go off into things that we saw during the working groups, that people talked about things that didn't exist in the real world.  So I'd love to participate, if we have to do that.  But I hope we don't.


JUSTICE ROSS:  Thanks, Mr Strong.  Can I go finally back to the ACTU, Mr Kemppi?


MR KEMPPI:  Thank you, Your Honour.  The benefit, of course, of going last is that I do get to somewhat truncate my submission based on what has been said already.  I think it is, however, worth pulling us back to what this application is about, and essentially this is an application that is brought on by the relevant workers' representatives who we would argue are the relevant employer representatives for a schedule in the Retail Award that is entirely capable of being adopted voluntarily, and at any rate sunsets after 18 months.  In our submission, any claims around the increased burden brought about by this schedule, or any claims about the need for delay, should be assessed absolutely in light of the fact that this is a schedule, it is voluntary, and it sunsets.


The employer groups themselves have prosecuted the case for change.  They have repeatedly said that there is a need for change.  They have repeatedly said that there is a need for change.  The employer groups who support this application continue to press the case for change, and we have heard from them as to why this is necessary.  In particular, we've heard from the representatives of small business in a sector that is highly made up of small business employers whom themselves are particularly award reliant, and we say that there is a particular relevance to the fact that the employer who support this application, who have even brought about this application, are the very ones who will be most affected by it.  They are the employers that are saying that they need this to occur, and they are the employers behind this application.


As to the consensus point, there has been talk about the fact that there is consensus, or isn't consensus, depending on the preferences of the advocate and the point they are trying to make.  We say that there is consensus around this particular schedule that's being advances, and that consensus is that this schedule represents and has sufficient safeguards to enact a scheme that would be completely voluntary; would, according to the businesses who bring the claim, benefit their employers; and would also benefit their workers.  That is essentially the consensus that is here, and that is, as Your Honour correctly pointed out, the sort of consensus that could very well evaporate if we were to kick the can too far down the road.  If we were to try to deal with this matter in a way that put on the table worse changes that don't have the sufficient safeguards.  That is exactly the kind of consensus that is at danger of entirely evaporating, depending on how we grapple with this matter now.


On the conciliation point, which seems to also be one of the threshold issues being pushed by some of the objectors, in our submission, the calls for conciliation to narrow the scope of the dispute are (indistinct).  What we have seen is proposals that have been put and ideas that have been canvassed for a very long time throughout the pandemic, throughout this process, and have now recently culminated in a solid and tangible application for a temporary change being made by one group of parties, and a series of positions which have ultimately, I would say, ended up in a bargaining position.  Because I think that the entire radical change from the first proposal we saw from some of the large employer groups, to the most recent proposal that we've seen from the large employer groups, can only really be described as a bargaining position, given that it's shifted so far.


At any rate, though, there does appear to be a very solid position on the one hand for a temporary change, and a somewhat unified position, on the other hand, for a more permanent change.  There is no lack of certainty as to what is being proposed here.  So on that basis, it's not the case that there are 17 different competing proposals (indistinct) where there are small differences and tinkering that can be done.  There really is one proposal that is the subject of this (indistinct) application, and a series of iterations which have ended up in a very different proposal without robust safeguards.


As to the case for change, the case for change, as I've said, has been made out by the employer groups, including the employer groups who now object to there being a case for change.  And as Your Honour correctly observed a moment ago, if this isn't urgent, then why is any of this urgent?  It is again, we say, somewhat disingenuous for there to have been a very strong case put that something must be done, it must be done now, businesses are struggling, and to then almost entirely take a 180 degree pivot to now say, well, it's not really that urgent.  Let's push this back.  There's a whole lot of other things going on.  You know, let's just back off here.  We say that those are two very opposing submissions, and it is interesting to see that those sorts of submissions have been made by the same parties.  We say that that is, again, disingenuous.


As to the prejudice point, and that goes to really how multiple applications fit together, there is nothing in this application which prevents a subsequent application from being made.  There is nothing in granting this application which would prevent a subsequent application from being.  If it is indeed the case that there is a wealth of evidence that is being produced at the moment that must then be led in favour of permanent changes that some of the employer groups are advocating for, then by all means, they may make their application.  They may put their evidence.  They may do so according to any timeline that they prefer.  And we would say that it is fair, if they want to put that sort of evidence in favour of a permanent change, that that should be an extended timeframe, as they content for.  We don't oppose their preference at this stage as to how their matter should be dealt with, given that their preference is that they do need quite a bit of time, perhaps months, to deal with the extended change to the award that they are contending for.  However, nothing in that prevents us from dealing with this application on an urgent basis, as it is before the commission right now.


If I may jump on the bandwagon, if it please Your Honour, and make a crude analogy.  If Your Honour were to see a jar of maple syrup in a store and buy that jar of maple syrup, and then subsequently see a different jar of maple syrup in a different store, there is nothing preventing Your Honour from then purchasing that second jar of maple syrup.  There is nothing in the purchase of that first jar that says you can't buy any further maple syrup ever again.  It's up to the employers who were content for the changes that they have put forward permanently to make their application, bring forward their evidence, see what that says, and whether it does in fact support their case or not.  But at any rate, that is a separate process, we say, to the process that is before you right now.


And the last point, Your Honour, that I will make, may it please the commission, is the point on legislation that has been raised in the written submissions.  As for that point, we say that there has been a very developed approach taken to the potential for legislation to interact with matters that might be afoot in the commission.  And essentially speaking, the commission has declined to take into account that a particular legislative provision  may change in the future, or may be legislated, or that there are competing policy provisions, or any of those sorts of things, because that is entering us into the entirely speculative realm of what happens in parliament as opposed to dealing with the law as we see it before us now.  We say that the task is to deal with the law as it is right now.  Your Honour has correctly adopted that approach on several occasions, and there's been no (indistinct) from employer representatives at the time, nor should there really be power.  The fact that there could be legislation passed, if we were to say that is a reason not to press ahead with an urgent application to fix immediate need, then essentially what we would be saying is that all the government would have to do, or all an opposition for that matter would have to do to scuttle any case before the commission would be to say we're considering legislation in this area, and that would be sufficient for the commission to be disempowered from acting.  And we say that would be an entirely unsatisfactory and completely absurd position to take, and we don't expect Your Honour to indeed take that position.


May it please the tribunal, those are the submissions of the ACTU.


JUSTICE ROSS:  Mr Kemppi, can I make a couple of observations, and then ask you a question?  Yes, historically, and I think it's arisen in wage reviews, and there is no doubt that the Commission determines matters on the basis of the evidence before it.  I think someone might have their mike not on mute, because we're getting a bit of feedback.


My concern that I'd raised in an earlier conference was more, and this isn't said critically, Mr Izzo, so brace yourself, it was more about the proposition that was being put in the conference that the particular proposal was, I think, better or more suited than the legislation that was being considered.  My anxiety was to avoid that sort of comparison between what might be in a bill and what was currently being proposed, because I think there's a real risk of that in interacting between the two of them.  But, in making that observation, I didn't want to suggest that I was ignoring the past jurisprudence on that question.


The second observation is, if I can go to your - I did have a heart-stopping moment when I thought you were going to say that I could only ever buy one bottle of maple syrup.  I could see Mr Tindley just the anxiety washing across his face at that suggestion, but - look, speaking for myself, I don't think it is as simple as you're suggesting.  I think there is some substance in the point Mr Izzo makes that if we were to grant the application, in the terms that are sought, the notion that someone could come along and seek to make a variation in the next couple of months, about the same subject matter, and it would be, somehow, a clear playing field for them, I think oversimplifies the issue.


I don't doubt that if that were to happen then you and the SDA would be coming in to argue that there's no necessity for the change because we've got this schedule in place.  So I think - an, in any event, it become sort of an arid exercise because whenever the matter is heard, whether it's today or later, I think the key point is ABI is not going to be confined about what it says about the joint application or what it says is a more preferred way of addressing the issue that arises.  So it probably - it doesn't come put.  But I don't think it's as simple to say, "Well, we'll just process the joint application and the interests of some of the employer organisations won't be prejudiced because they can come along in a couple of months and argue for their change".  I think there is, as a practical matter, an interaction between them.


But, as I've indicated, I think the way of dealing with any perceived prejudice in that regard is to provide the proponents of a different model with an opportunity to say what they want to say about that model.


Can I ask, going to the question, if against your submission the Bench forms the view that an adjournment, and perhaps a short adjournment, is appropriate, then it would seem that if that was the course adopted it would be sensible to organise some conferencing to see if the positions between the parties can be narrowed?


I accept, it's a point Mr Friend made, certainly there are a couple of start differences between the proposal and, as Mr Tindley said, I think it's unlikely you'll all be sitting around holding hands and singing Kumbaya, in support of the common outcome, but it doesn't need to result in a complete unanimity.  I think, by discussion, there might be a capacity to reach a resolution on some of the differences, if not all of them.


If that were to eventuate, again, I know it's a difficult question for you to answer because your position is, "Well, there shouldn't be any delay, therefore no conferencing", but if there was a delay would you be prepared to participate in those conferences?


MR KEMPPI:  Thank you, your Honour.  Would your Honour's preference be for me to address the second point you raised, about the prejudice, or just move simply to the question about if - - -


JUSTICE ROSS:  Look, I think the preference is - I was more making an observation.  I understand the argument you put and I understand the argument Mr Izzo puts, I'm really putting back to you that I don't think it's as simple as they get to kick off in a couple of months, whenever it suits them, and they'll be in the same position they're in now.  I think they would face an argument from, amongst others, you that there's no necessity for there to be a change.


Look, I can predict the argument now, it would be, "Let's wait until we get to the end of the 18 months, see how we go then.  Let's evaluate that and then we'll have a look at whatever Mr Izzo wants to do".  You'd be entitled to make that argument and I'm really putting it to you that, well, on the face of it that argument might have some substance too, if that was what eventuated.  So I don't think it's as simple to say, "They can come back and have a go in a couple of months", that was the only point I was making, Mr Kemppi.


But let's go to the conferencing matter and what you think about that?


MR KEMPPI:  Understood, your Honour.  I might throw to Mr O'Brien on that route.




MR O'BRIEN:  Thanks, Mr Kemppi, and thanks your Honour.


So I'll just make a couple of observations about it and I, again, defer to the SDA in relation to this but also really I think the principle that was that we do not want to see a delay to this.  This is something that, as business have outlined, is urgently needed.


In relation to conferencing though, picking up on earlier comments, this has been something that has been discussed for many months.  It has been the subject of discussions convened by the Attorney General, throughout 2020 and, indeed, even if were to just look at the last six to eight weeks, it's been the subject of discussion.


In relation to the utility of conferencing, I'd also say if we look at the proposals that have thus far been advanced by some employer groups, those proposals would actually seem to be heading further away from the position that we currently have in the joint application and not closer.  If it were heading the other way, that might be some merit to continue some discussions in relation to that.


The only final remark I would make, and I can only really speak with respect to the ACTU is that in the days that have transpired since this application we have not had one approach from any of those seeking delay to facilitate conversations.  So I would merely point out that we think this is a disingenuous attempt to delay, rather than any serious desire to come to agreement, or narrow the scope of any proposal.


JUSTICE ROSS:  Can I just ask about the second last point you raise?  You said, "Some of the employer proposals are going further away".  That wasn't my impression of the ABI proposed variation, the one that's attached to their submission, "In response to our statement of 1 March".  That seems to move closer.  I accept that there are differences and I accept some of those are fundamental and, no doubt, the access to arbitration issue is one of those.  But were you referring to that or were you referring to other employer proposals?


MR O'BRIEN:  I think we would say, and again I might defer to Mr Kemppi on the specifics, but the proposal that was previously submitted, as part of the process initially commenced, following the referral, is different in terms and actually, potentially, is more egregious to the interests of employees.


I would also say, and I associate myself with the SDAs comments, that the proposals that have been flagged by ABI and others are ones that would absolutely be objected to by the ACTU, and there are threshold issues we see, in terms of - specifically arbitration, but other matters as well.  I might see if Mr Kemppi wants to touch on the specifics about the differences?


MR KEMPPI:  In terms of the differences between the proposals, the two different proposals, yes, we do understand that the latest proposal, in fact, allows more of a freestanding agreement, in generals work, extra hours, which can be drawn on here and there.  We take it to mean a far greater, if I can use the term, casualization of part-time employment.  Once again, this is a proposal that does not have any safeguards attached to it, by way of - or at least certainly not any robust safeguards attached to it, such as the provision you would find in our proposal.


Without - and I will confess, without having looked at them absolutely line-by-line, certainly we do see it's moving towards much more open system, the latter proposal, whereby ours can really just be an ad hoc offered and accepted with no great structure around it.  We certainly see that (indistinct) moving in that - it appears to be moving in that direction to us.


JUSTICE ROSS:  All right.  Okay.  Thanks, Mr Kemppi.  I don't propose to go around the room again.  I've got no doubt that, Mr Izzo, you would be defending the use of universities to conduct expert reports.


MR IZZO:  Yes.


JUSTICE ROSS:  No doubt there would be a response to some of the other observations that have been made; the characterisation of particular claims and the like.  I think we want to focus on really the central issue as to what do we do next, so unless anyone has anything that - and, you know, resist the temptation to say you don't like the characterisation of your position or your organisation.


I understand that there is this strong desire to defend your position, but unless it's going to help us decide what we do next, I don't think we need to hear it at this stage.  Is there anything further, having put that caveat in, that anyone wishes to say before we adjourn to consider what has been put?


MR IZZO:  Your Honour - - -


JUSTICE ROSS:  Sorry, Mr Izzo, I notice - Mr Booth, I've got every sympathy for your capacity with the technology because it's about the same as mine.  I notice there is a hand up, but I don't know who that is from or - - -


MR IZZO:  I believe it's the government, your Honour.  No, it has gone.


MR BOOTH:  No, your Honour, it's not myself.  It's someone else.


JUSTICE ROSS:  Thanks, Mr Booth.


MS DURBIN:  Your Honour, it's Alison Durbin from the Attorney‑General's Department.  Yes, it is us.  Just a couple of things very briefly, thank you.  Just to note that as people are well and truly aware, the industrial relations bill does remain live before parliament; it did pass the House of Reps.  The exact timing, as you noted, your Honour, will be a matter for government, but as you people were aware it does provide the optional and voluntary avenue for part‑time employees.


Just one thing for the radar is that the Senate Education and Employment Legislation Committee is due to hand down its report next Friday, on 12 March, so that may be another piece of information that could be relevant.  Certainly I think there have been a number of comments around the Minister's radar in terms of the need to move expeditiously on a range of issues and challenges that are faced within the retail industry in this case, particularly around small business.


In that context obviously, you know, there would be a view that there is clearly value in proper consideration and programming of matters such as this, but obviously it's still with the sprit and intention of moving as quickly as possible.


JUSTICE ROSS:  Thanks, Ms Durbin.  Mr Izzo, did you want to - - -


MR IZZO:  I do, your Honour.


JUSTICE ROSS:  Do you have some advice for me about where I can purchase maple syrup or was it something more important?


MR IZZO:  No, no, I don't have comments on the maple syrup, your Honour.  I'm conscious of the comments you made about not wanting to go around the circle again.  There is one matter I wanted to clarify.  We are not seeking months.  We have indicated that our expert (audio malfunction) which will canvass the views of employers in the industries, not the views of the university, can be filed on 15 March which is a little over five business days from today.


We will be in a position to file all materials by then or before, if necessary, in terms of submissions, but all our materials by then.  We're talking about an adjournment that could be two weeks.  We could have a hearing almost at the end of that week.  I just wanted there to be no misunderstanding certainly from my perspective we're not talking about months.  That's the first thing.


The second thing, the proposal we have put forward does not have broad support from ABI and NSWBC.  It is our proposal.  It's what we would file.  In terms of broad support, I was indicating it had broad support from others but I have instructions to pursue that determination for my client, so there is certainty in that respect.


The third matter, which I really thought had been dealt with but in case it hasn't, in terms of the question about prejudice and, you know, whether you can buy the bottle of maple syrup a second time, if for any reason we were unable to put forward our proposed determination as part of this hearing, then we would be seeking expedition in a matter of a week or so to have our application brought on.


We're not talking about ABI and NSWBC's proposal being heard three months later.  We're talking about granting a claim potentially and having another claim sought expeditiously within a week, as well, and that just does not seem to make sense at all.  They were the things that I wanted to say that I don't think I've necessarily canvassed earlier on, so I wanted to put you on notice of that.


JUSTICE ROSS:  All right.  Thanks, Mr Izzo.  Anyone finally before we adjourn?  No?  We will adjourn until quarter to 1, so roughly half an hour.  I don't know quite how the Teams things work, but my associate will take care of that.  If she needs to contact you and join you in, she'll do that.  If you wouldn't mind making yourselves available then and we'll give you our decision about how we propose to proceed.


Thanks very much for you attendance, particularly for those of you who have generously made some suggestions about how I might resolve my maple syrup problem.  Thanks.  We'll adjourn.

SHORT ADJOURNMENT                                                                   [12.15 PM]

RESUMED                                                                                              [12.49 PM]


JUSTICE ROSS:  Thank you.  It seems to us that there is a broad measure of support for acting quickly in the current economic circumstances.  We note that RAFFWU takes a different view.  We need to balance the desirability of expedition with the requirement to afford interested parties a reasonable opportunity to present their case.  We propose to adjourn today's hearing for a short period.  We will issue formal directions shortly.


Can I indicate that those directions will be as follows:  (1) today's hearing is adjourned; (2) the matter will be listed for hearing at 9.30 am on Tuesday, 16 March; (3) interested parties are to file the submissions and evidence upon which they wish to rely by no later than 5 pm on Friday, 12 March; (4) by no later than 2 pm on Monday, 15 March, parties are to provide an indication of which witnesses are required for cross‑examination at the hearing the following day.


Can I also indicate that we see there is merit in conducting facilitated conferences in respect of this issue in the time available between now and the hearing on Tuesday week.  It seems to us that there is some common ground evident from a comparison of the terms of the joint application and ABI proposal.


Commissioner Hampton is available to facilitate those conferences.  The Full Bench will now adjourn and Commissioner Hampton will remain in the Teams meeting and I would ask the other parties to do that also.  He will organise appropriate times for those conferences.  We will now adjourn.  As I indicated, we will issue formal directions shortly.



COMMISSIONER HAMPTON:  Good afternoon, all.  What I propose to do is to have a preliminary discussion about the logistics of trying to organise the conciliation discussions that the President has just referred to.  Obviously this is a sort of developing scenario, so from my point of view firstly I'll need to develop some diary options from my perspective.


Secondly, the Bench has only just given you an outline of the directions and obviously I need to be mindful of the directions and the commitments the parties will have to make associated with preparing for the arbitration - or potential arbitration of the matter.  Looking at it in that context, what I propose to do is have a discussion with you about some of the parameters and some of the options for moving forward, and then subsequently propose a date or dates for a conference to explore all the possibilities that the President has just referred to.


Just by way of scope, it might be helpful for me to understand how many proposals might be on the table in those discussions.  There is the joint application and the ABI application.  Is there any other party that is part of this process wishing to sort of immediately advance an alternative to either of those two?


MR FERGUSON:  Commissioner, Mr Ferguson for Ai Group.




MR FERGUSON:  We have been heavily involved in discussions leading to the development of the ABI proposal.  We're engaging with some members about their views as to it, so it may be that we have a further more refined proposal that develops and we will try and do that as quickly as possible.  Equally, it maybe that we just ultimately get behind that proposal that is on the table now, but that's just a moving feast, Commissioner.


COMMISSIONER HAMPTON:  All right.  I appreciate the indication.  Obviously you will need to move quickly.




COMMISSIONER HAMPTON:  Given the process is going to run in parallel with the preparation for arbitration, but I understand what you say.  All right.  Does anyone else want to put the parties and the Commission on notice about an alternative?  No?  Very well, silence is golden.  I think the second question I have is how many groups would want to be involved and, look, the assumption I'm going to make is that everyone that has participated in the hearing is likely to want to participate in those discussions, so perhaps we would do this on a contrary basis.  If that's not the case, perhaps a party might tell me now.


MR CULLINAN:  Commissioner Hampton, we want to be involved.




MR CULLINAN:  But that time frame through until Friday probably means we can't be involved next week in conciliations if we have to put on evidence by Friday, so I'll need to discuss it with our team and see how we might be involved.


COMMISSIONER HAMPTON:  I understand.  Certainly all the communications about the arrangements will go to your organisation, Mr Cullinan, as well as to everyone on the call, but I appreciate the heads up about that, as well.  All right.  Thank you.  The next issue that flows - given the numbers of groups that will want to be involved in your respective locations - is there value in having an in‑person conference or conferences and, if so, is that achievable and would parties want to be involved in that?


I appreciate that's an open question and it's a dangerous thing to do with so many of you on the line, but I can't think of a better way of going about that.  Firstly, are there any views about conducting in‑person proceedings and whether you would want to be involved?


MR IZZO:  Commissioner, it's Mr Izzo here.  I think from the time frame and given the (audio malfunction) I think there is a prospect of agreement.  There would be some merit if we were to set aside a day or half a day - probably depending how we go it might need to be up to a day - in having everyone together in the one place, but I do appreciate that if the parties simply can't do that then it can't be done, so we would favour that.


We think that would be more constructive, but if a number of the key parties say, well, look, we can't all be in either Melbourne, Sydney or wherever it is, then we will have to do a Zoom, but I do think it's desirable if possible.


COMMISSIONER HAMPTON:  All right.  Thank you.  Any contrary views?


MR O'BRIEN:  The ACTU are happy either with face‑to‑face or via an online delivery.


COMMISSIONER HAMPTON:  Thank you very much.  Just while you're thinking about that, one of the challenges is that clearly if it's going to achieve its purpose it needs to be as inclusive as possible.  We're going to have to do this at relatively shortly notice, so one of the trade‑offs is going to - I think in person would definitely have advantages.  The (indistinct) days might make it more difficult for some to be involved, particularly at short notice.  I just put that out there for what that's worth.  All right.  Does anyone else wish to be heard on it?


MR STRONG:  I would - - -


MR IZZO:  I was just going to say, Commissioner - apologies, Mr Strong - that if there is any issue about distancing and those things, it doesn't necessarily need to be at the Commission.  If the Commission can accommodate us, that's great, but there are a number of parties here so it may be that one of the parties has a bigger space depending on the city that's chosen and that's an option, as well.


I mean, ideally we would do it in the Commission, but I just didn't want that to be an impediment, but I think it could be accommodated.  I certainly know in Sydney we could join a number of training rooms together.  I don't know if


they're available, it depends what days we're talking about, but just if the Commission didn't have a facility itself big enough.


COMMISSIONER HAMPTON:  Yes.  Thank you for that.


MR KEMPPI:  Commissioner, just one thought that comes to mind is that it might be helpful to perhaps pick the date and then canvass whether or not people can make it on that particular date or not, then perhaps move from there.


COMMISSIONER HAMPTON:  Yes, that's helpful.  Mr Strong, I think you wanted to say something.


MR STRONG:  Yes, we're quite happy to come in person and I suggest we don't bring maple syrup.


COMMISSIONER HAMPTON:  No, I was going to suggest that I have no additional insights into the availability of maple syrup, but that might be a career‑ending move, so I wouldn't go there.  All right.


MR BOOTH:  Commissioner, Ian Booth representing the Newsagents.




MR BOOTH:  We can see merits in an in‑person face‑to-face meeting, although the next fortnight is - as you might expect - fairly jam packed just with other legal matters.  If there is to be an in‑person meeting I would suggest if there could also be an attached online participation option, which may add to the complexity of the facilitation, but those of us who may not be able to attend face to face may still be able to attend electronically.


COMMISSIONER HAMPTON:  Yes, I understand the point you make and that goes to the point that I was making about, well, whatever we do we probably won't get everyone in one mode or another.  We need to be as inclusive as possible if this is going to work.  All right.  Anybody else?  I think the suggestion that - - -


MS BROWN:  It's Marie Brown from MGA.




MS BROWN:  I think we would see some merit in a face‑to‑face meeting (audio malfunction) had a look around, I don't see a lot of the people here are in (audio malfunction) thank you.


COMMISSIONER HAMPTON:  Yes, and I can see some of the Sydney representatives, as well, and - all right.  I understand.


MS BROWN:  (audio malfunction)


COMMISSIONER HAMPTON:  All right.  As I mentioned earlier, I think the suggestion of putting a date or dates - advancing dates and checking availability, and also in that context making some assessment about whether in person or online or a combination of both, would be useful.  Well, before we adjourn then is there any other suggestions that might be made about preparations for a conciliation conference?


MR IZZO:  Commissioner, Mr Izzo here.  In terms of a date, I think it would be prudent for the employers to be given an opportunity to liaise with themselves before the conference because at the moment it's an ABI and NSWBC proposal.  As I said, there is broad conceptual support and it would be nice to tighten that up a bit and see if we have a bit more of a unified position.  So when you choose a date, for instance, our preference would be that it's not Monday so that at least the employers have Monday to talk amongst themselves.


The unions can also have an opportunity obviously and so we would be really looking at Tuesday onwards just to enable us the chance to have more of an understanding of whether there's commonality amongst the employers.




MR BOOTH:  Commissioner, Ian Booth here from Newsagents.  I note that according to my calendar Monday is a public holiday in Victoria, which may create some further scheduling issues.  It doesn't impact us, but it may impact some.


COMMISSIONER HAMPTON:  Thank you.  That's fair enough.  Mr Ferguson, did you want to say something?


MR FERGUSON:  Yes, I can work to try to resolve differences between us and ABI on Monday, so that we can proceed from, you know, Tuesday onwards.




MR TINDLEY:  Commissioner, Mr Tindley here.  In exchange for the matter being dealt with in Melbourne, I'm prepared to work through my public holiday with Mr Izzo, Mr Ferguson and anyone else.


COMMISSIONER HAMPTON:  Duly noted, Mr Tindley.  All right.  Are there any other suggestions by way of preparations that the parties want to put on the table?  No?  All right.  Well, thank you all for that.  This is a bit of a moving feast, of course, and obviously a very recent development for all of us.  My office will liaise with the representatives as quickly as we can about those arrangements and try and be as flexible as possible from our point of view in trying to be as accommodating as possible.


In the end we will have to ultimately settle a date and a mode of conference, and we'll obviously do our best.  Look, that's just the nature of things given the time frames and the other constraints that impinge on this.  Thank you, all.  The Commission will adjourn and stay tuned.

ADJOURNED INDEFINITELY                                                            [1.03 PM]