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Fair Work Act 2009 1054887





s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Blood and Bone Marrow Donor Leave




10.05 AM, MONDAY, 3 JULY 2017


THE VICE PRESIDENT:  All right.  I'll take the appearances starting in Sydney.  Ms Bhatt, you appear for the Ai Group and the Hair and Beauty Association?


MS R BHATT:  Yes, Vice President.


THE VICE PRESIDENT:  Mr Roucek, you appear for ABI and New South Wales Business Chamber?


MR M ROUCEK:  Yes, Vice President.


THE VICE PRESIDENT:  Ms Wellard, you appear for the Pharmacy Guild?


MS S WELLARD:  If it pleases.


THE VICE PRESIDENT:  I think you need some of your member's products by the sounds of things.  In Melbourne, Mr Moretta, you appear for the SDA?


MR M MORETTA:  That's correct, your Honour.


THE VICE PRESIDENT:  And Ms Imbriano, you appear for Master Grocers?


MS B IMBRIANO:  Ys, Vice President.


THE VICE PRESIDENT:  And in Brisbane, Mr Millman, you appear for the National Retailers' Association?


MR A MILLMAN:  As it pleases, your Honour.


THE VICE PRESIDENT:  In Adelaide, is there any appearance for Business SA?  No, all right.  The purpose of this directions hearing is to clarify the procedural requirements for the hearing due to start a fortnight from today.  As I understand the position the SDA has filed 14 witness statements.  Are the parties able to advise whether the witnesses will be required for cross-examination?  Ms Bhatt?


MS BHATT:  Vice President, I'm not in a position to advise conclusively which of those witnesses are required for cross-examination, but I am in a position to advise tentatively on a without prejudice basis which witnesses we think we will require.  I think that we will be in a final position to advise once we've see the SDA's reply submissions and material which are due this Thursday.  I can read that list of 10 witnesses.  I'll identify them by their last name; Zilstra, Smith, Elmer, Hunter, Ewans, Chriscal, Deborah Allen.  The first name being relevant because there are two witnesses by the name of Allen; Caruso, Gilson and Robertson, which is 10 of the 14 witnesses called.


THE VICE PRESIDENT:  Assuming that's the case, how long do you think you'll need to cross-examine them all, since it's fairly common subject matter?  I ‑ ‑ ‑


MS BHATT:  I anticipate that any cross-examination of those witnesses will be very brief, and certainly wouldn't take anything more than a day.  I don't know that I can be more specific than that at this stage.


THE VICE PRESIDENT:  All right.  Does any other party intend to cross-examine any of the witnesses?  Mr Roucek?


MR ROUCEK:  Your Honour, we're happy to abide by the position described by the Industry Group, and we will be in a position to confirm once we've seen the remainder of the SDA's material in this matter.


THE VICE PRESIDENT:  All right.  Does anyone else Ms Wellard?


MS WELLARD:  Your Honour, it's unlikely that we'll cross-examine but I don't want to say no completely at this stage.  The SDA has not filed any evidence that goes to pharmacies and none of those witnesses are employed, or are covered by the Pharmacy Award or employed or ever employed in pharmacy, so it's unlikely that we will have any questions but I'll confer with my friends just to see what they intend to cover.


THE VICE PRESIDENT:  All right.  Ms Imbriano?


MS IMBRIANO:  Yes, Vice President, it's unlikely that MGA will cross-examine any of SDA's witnesses at this stage.




MR MILLMAN:  Thank you, your Honour.  Unlikely at this stage but, as my learned colleague also alluded to, we will await the submissions in reply from SDA before we make any conclusive statements in that regard.


THE VICE PRESIDENT:  All right.  Having regard to that advice the matter was set down for three days hearing, but it seems to me that no more than two days maximum would be required.  Does any party take a different view?


MS BHATT:  Vice President, the course that I was going to propose to you would be that the 17th be used to hear any cross-examination, and that submissions then commence on the Tuesday, 18 July.  That would allow the parties a little bit of time to consider any evidence that arises from the cross-examination.


The difficulty is that there are six respondent parties that have filed written submissions.  For our part I don't think that any oral submissions will take a particularly long time, given that we've filed fairly comprehensive written submissions, but I'm just conscious that we don't find ourselves in the situation where there's very little time left at the end of the day, either to hear all the respondent parties, or to allow the SDA to make its reply submissions.  On that basis our view would be that it would be prudent to leave the three days listed as they are.


THE VICE PRESIDENT:  All right.  I mean, I know there's a number of respondents, but I can't imagine you're all going to say very different things about the application.  But, all right, I note that.


Mr Moretta, was there any issue about the redaction of witness statements?


MR MORETTA:  Excuse me, can you repeat that again, your Honour?


THE VICE PRESIDENT:  Yes.  Was there an issue about the redaction of witness statements, that is ‑ ‑ ‑


MR MORETTA:  Yes, your Honour.  That's been sorted out this morning between the AiG and the SDA.  They made a commitment to address that, so we're satisfied with that.


THE VICE PRESIDENT:  There's a bigger issue.  Why are the statements redacted?


MR MORETTA:  At the end of the day, I mean, our witnesses at the outset didn't want their names to be published on the website essentially.  That's the reason why the names were redacted.  Not for any other purpose.  I mean, at the end of the day they are required to be cross-examined.  They have no issue with that.  It was just simply at the time we felt that, depending on whether they were to be cross-examined or not there was probably no reason why these details should be publicised or published on the website essentially, your Honour.


THE VICE PRESIDENT:  All right.  So you're content that otherwise the statements will be on the public record and their evidence will be heard in open court?


MR MORETTA:  Yes.  If they are required to - yes.  Yes, your Honour.  If they're required to be cross-examined, yes, there's no issue there from the perspective of the witnesses.


In relation to the schedule, if I may, your Honour, if I could address the programming, look, in light of the fact that we have five to date that I'm aware of, of submissions in reply to our submission, it's just impossible to have a comprehensive response in reply by well, the amended directions say 6 July, Friday, 6 July, so I'm not sure 6 July is Thursday, but I presume it was meant for Friday.  There's a typo in the date, but we just find it's going to be impossible for us to respond comprehensively to the employer's submissions.  We're requesting at least four weeks for the time for us to submit our written responses to the employers' objections.  In other words ‑ ‑ ‑


THE VICE PRESIDENT:  Sorry, I missed that.  Did you say four weeks?


MR MORETTA:  ‑ ‑ ‑getting us in to the first week of August where we could safely say we can adequately and comprehensively respond to all the submissions.  I mean, if you look at the volume just gleaning over the submissions by the NRA, the AiG, and others, we just feel that three days is inadequate and we really need a good four weeks.  I think in the first week of August where we can submit a proper reply to all of them, and then obviously the hearing dates would follow from that.


THE VICE PRESIDENT:  So do you want to change ‑ ‑ ‑


MR MORETTA:  And also in relation ‑ ‑ ‑


THE VICE PRESIDENT:  Sorry, Mr Moretta, do you want to change the hearing dates?


MR MORETTA:  Yes, your Honour.  In light of our request for the extension of time for our reply submissions to the employers' submissions, yes, your Honour.  That would be obviously subject to the availability of the Full Bench, but, at this stage, we just could not possibly respond comprehensively to the submissions, and we do need I'm requesting at least four weeks, so come the first week in August, at the end of the week to be able to provide a comprehensive reply submission in reply to the employers.  Then after that, I'm guided by his Honour and the Full Bench on their availability.  I suppose even when our reply submissions are filed, we can have that further I mean, you'll probably find that maybe the employer groups might not need to cross-examine our witnesses but we can have a later discussion with them after our submissions are submitted, and that might streamline things, your Honour, because then predominantly it would just be relying on our written submissions.


THE VICE PRESIDENT:  Mr Moretta, this matter has been set down for a very long time.  Why would we take that course?  All you need to do is file an outline of submissions in reply, and then you'll have an opportunity to make oral submissions in reply as well.


MR MORETTA:  Your Honour, we just feel that there's not enough time in three days to actually read the submissions and provide a proper written response.  We would prefer to have a comprehensive written response which will assist us during the oral submissions because then that would mean that from the SDA's perspective we wouldn't need much in terms of hearings except obviously if the employer associations want to cross-examine our witnesses.


We really need the time, your Honour to fully read these submissions and provide proper response, which also ultimately will assist the Full Bench prior to the hearings, but I can assure you that it would just be impossible for me to respond to all of these submissions in time.




MR MORETTA:  As set by the amended directions Friday Thursday and Friday this week.  I would ‑ ‑ ‑


THE VICE PRESIDENT:  Mr Moretta, if you'd given some notice of this application I might've made an endeavour to find what dates might be available but they won't be easy to find.


MR MORETTA:  Your Honour, my apologies for ‑ ‑ ‑


THE VICE PRESIDENT:  Quite frankly I'm not sure if we moved the dates we'll get other dates this year.


MR MORETTA:  Your Honour, I could not reply by the end of this week, and, I mean, nothing more I can add to that to say that, you know, in terms of resources and my ability to do that I just can't do it for the end of this week, and I would really ask for four weeks if I can and move the dates accordingly.


THE VICE PRESIDENT:  Mr Moretta, I'm not going to change the dates.  What I'll do is if I amend the requirement and make it clear that all you're required to file is an outline of submissions in reply.  They will be filed by next Monday which is 10 July.  We'll hear the case on the date set aside.  If any party wishes after the hearing is completed to have a further opportunity to put on further written submissions, they can make that application before the Full Bench.  Is that understood?


MR MORETTA:  Yes, your Honour.  Also, if I might just add, with respect, to the dates, look, we've notified our witnesses that potentially they could be cross-examined, and we also had given them the dates as they currently stand, but I'd also like to put on notice, your Honour, that also we need to - hopefully we can get all the witnesses that the employer associations want to cross-examine hopefully to see also their availability and due to their rostering at work, so we would like to have at least some flexibility on that as well.  I mean, I notice some based on the AiG's submission earlier about having all witnesses cross-examined in one day.  That might not be possible.


THE VICE PRESIDENT:  All right.  Firstly, can I indicate this?  The Full Bench will be sitting in Sydney but we'll arrange video or telephone facilities for the giving of evidence by those witnesses required for cross-examination.  Mr Moretta, you've been given the names of 10 persons who are required.  Can you, by the end of the week, file a document which sets out when in the it would probably be in first two days at the most, when in the hearing time those witnesses can give evidence, and the location at which they want to give their evidence?


MR MORETTA:  Sure.  Yes, your Honour.


THE VICE PRESIDENT:  So either obviously, if they're in a capital city, we will arrange a video facility.  If for some reason they can't attend there, that is, if they're in a regional location, then we can arrange a telephone attendance.


MR MORETTA:  Your Honour, can I just add just finally I'm concerned about not being able to submit an outline of submissions by Monday.  Just wondering if it's possible if I could get to the end of the week for the outline of submissions; the end of next week?


THE VICE PRESIDENT:  No.  Because the parties are entitled to see the reply submission before the case starts, and have some time to digest it.  With the greatest respect, Mr Moretta, I don't think this case is that complicated that it requires a submission of the order that you appear to be suggesting, but that's a matter for you.


MR MORETTA:  Yes, your Honour.  By just gleaning at the responses from the employers there is a lot of material there to be addressed.


THE VICE PRESIDENT:  Again, I emphasise you only have to file an outline.


MR MORETTA:  Thank you.


THE VICE PRESIDENT:  It's not necessary to respond to anything.  You will have an opportunity to make oral submissions, and if you, at the hearing, want to apply to the Full Bench for a further opportunity to make written submissions you can do so.


MR MORETTA:  Thank you, your Honour.


THE VICE PRESIDENT:  Right.  Are there any other procedural issues that need to be dealt with?  Ms Bhatt?


MS BHATT:  Just very briefly.  In light of the extension of time granted to the SDA until 10 July, I anticipate that we will be able to advise the SDA and the Commission on Wednesday, 12 July, as to which of the witnesses we require for cross-examination.


THE VICE PRESIDENT:  All right.  We'll proceed on the basis of the provisional indication and then if, once the final indication is given, we can then adjust the contingencies.  So Mr Moretta, once you've received the final indication you might make any modifications to your document that might be necessary.  Hopefully the list will shorten and not get longer.


MR MORETTA:  Yes, your Honour.


THE VICE PRESIDENT:  All right.  Any other matters?  All right.  I thank the parties for their attendance.  I will now adjourn.