PN2733

VICE PRESIDENT HATCHER: Mr Dixon?

PN2734

MR DIXON: If the Commission pleases, may I just tend to a few matters before we call the next witness?

PN2735

VICE PRESIDENT HATCHER: Yes.

PN2736

MR DIXON: In relation to the cross‑examination bundle of Mr Docker, I won't trouble the Commission with it at this moment if you would give me this leave: I have identified for our learned friends, United Voice - and I will of course for anyone else who asks for it - the relevant pages which we would seek to tender. Mr Dowling, my learned friend, he would just like the opportunity to have a look at it to shorten the process.

PN2737

If I can just stand that matter over until he has had an opportunity to do so and then we can tender passages of it and provide an extracted document or remove from the Commission's file documents that were not referred to and are not in the tender. Is that acceptable to your Honours?

PN2738

VICE PRESIDENT HATCHER: Yes.

PN2739

MR DIXON: The next question which I seek to raise is the question of the provision of further details in respect of the Productivity Commission report. We have prepared an amended aide‑memoire of Clubs Australia Industrial relating to proposed conclusions which we would invite the Commission to draw from the Productivity Commission report. I have provided our learned friends with a copy and wish to hand up a copy to the Commission.

PN2740

VICE PRESIDENT HATCHER: All right. Thank you.

PN2741

MR DIXON: The third issue which I wish to raise concerns a request for documents to be produced by Ms Crowe, a union witness. She is to be called, as I understand it, by United Voice. In paragraphs 16 to 19 of her statement, she makes reference to a PGA survey that was conducted in March of this year. We have been provided with some material following a request, but there is material that we have not been provided with. It's set out in correspondence. I understand Ms Crowe is to be called on Friday and we clearly wish to receive all the details and responses to the survey which is referred to in those paragraphs.

PN2742

I don't want to take up too much time, but there is an exchange of correspondence over a period of time starting from 21 June, their responses. We understand from Ms Crowe that there is a suggestion that some of the material that was the subject of the survey was provided to PGA on a confidential basis. That would not, in our respectful submission, prevent it from being produced to the Commission - on a confidential basis subject to that confidentiality - but it is referred to and relied upon in paragraphs 16 and 19 and the documents have not been produced.

PN2743

VICE PRESIDENT HATCHER: Sorry, was there an order issued by the Commission for the production of these documents?

PN2744

MR DIXON: Yes, your Honour.

PN2745

MR DOWLING: No.

PN2746

MR DIXON: I thought your Honour said, "Is there an order." No, there was no such order. We are seeking such an order or some undertaking by our learned friends to provide us that material by no later than tomorrow morning.

PN2747

VICE PRESIDENT HATCHER: I think it's simply an inter partes matter until such time as your client applies for an order for their production.

PN2748

MR DIXON: Sorry, I couldn't hear your Honour.

PN2749

VICE PRESIDENT HATCHER: I think it's only an inter partes matter until such time as your client seeks an order from the Commission for their production. If you want an order, you need to apply for one.

PN2750

MR DIXON: Your Honour, we were trying to avoid troubling the Commission with this, but I will be pressed to ask for orders because the witness is to be called on Friday. She relies in paragraphs 16 to 19 on survey material.

PN2751

VICE PRESIDENT HATCHER: It's Thursday on the amended list, I think, isn't it?

PN2752

MR DIXON: It's Thursday?

PN2753

VICE PRESIDENT HATCHER: Yes.

PN2754

MR DIXON: May I tender in support of our application a bundle of correspondence. Mr Dowling has just informed me that he would wish to take instructions from Ms Crowe and he can do that immediately. May I stand that matter over until he is able to get back to us. We are tending to a couple of other matters which I will get back to the Commission as soon as I'm able. May I, in those circumstances, call the next witness for Clubs Australia Industrial, Ms Petrie.

PN2755

VICE PRESIDENT HATCHER: All right.

PN2756

THE ASSOCIATE: Could you please state your full name and address.

PN2757

MS PETRIE: Lisa Maree Petrie, (address supplied).

<LISA MAREE PETRIE, SWORN [9.43 AM]

EXAMINATION-IN-CHIEF BY MR DIXON [9.43 AM]

PN2758

MR DIXON: Ms Petrie, is it correct that your full names are Lisa Maree - spelt M‑a‑r‑e‑e - Petrie?‑‑‑That's correct.

PN2759

Would you state for the Commission your address?‑‑‑Home address is (address supplied).

PN2760

You are employed, are you, by St George Leagues Club Ltd as the human resources manager?‑‑‑That's correct.

PN2761

You have been employed in that by St George Leagues Club for the past three - just over three years?‑‑‑Now it has just reached four.

PN2762

It has reached four years. In respect of these proceedings have you made a statement which contains your signature following paragraph 47, on 23 October 2017?‑‑‑That's correct.

PN2763

Do you have a copy of that statement with you?‑‑‑I do.

PN2764

You do. May I draw your attention to paragraphs 11 and 12. I understand that you wish to update the figures that are referred to in those paragraphs?‑‑‑Yes.

*** LISA MAREE PETRIE XN MR DIXON

PN2765

May I show you a document. I've shown the document to our learned friend. It may assist you in just telling the Commission whether by reference to paragraph 11 - whether there has been any change in the numbers of employees at St George Leagues?‑‑‑Yes.

PN2766

You had a figure of 180. What is the figure as of now?‑‑‑It's now down to 172.

PN2767

How many of the 172 are now engaged as full‑time?‑‑‑That would be 47.

PN2768

How many now engaged on a part‑time basis?‑‑‑33.

PN2769

How many engaged on a casual basis?‑‑‑92.

PN2770

Is there any change in relation to paragraph 12?‑‑‑The number of managers employed at the club is now seven managers with five duty managers. That has remained the same. We have 80 staff members who are food and beverage attendants and 80 who work in a variety of other duties. That can be chefs, administration, et cetera.

PN2771

Thank you. Subject to updating those figures, is there anything else in your statement that you wish to address?‑‑‑Not that - - -

PN2772

Do you say the contents of that statement are true and correct to the best of your knowledge and belief?‑‑‑Yes, they are.

PN2773

I seek to tender the statement of Lisa Maree Petrie, if the Commission pleases.

PN2774

VICE PRESIDENT HATCHER: Any objections?

PN2775

MR DOWLING: Yes, your Honour. The table provided yesterday, which includes a table separately dealing with Ms Petrie, there are five items. Do the members of the Commission have that table?

PN2776

VICE PRESIDENT HATCHER: Yes.

*** LISA MAREE PETRIE XN MR DIXON

PN2777

MR DOWLING: Thank you. Paragraph 37 of Ms Petrie's statement is the first objection. It seeks to speculate about the reasons in respect of the gaming revenue. It perhaps seeks to speculate as to the motives of the people that are gambling. We say it's objectionable.

PN2778

VICE PRESIDENT HATCHER: Paragraph 37 will be admitted.

PN2779

MR DIXON: 38 is the next. The first sentence is a submission or speculation about the competition that it there refers to.

PN2780

VICE PRESIDENT HATCHER: But the basis of the opinion is set out, is it not?

PN2781

MR DOWLING: Well, we object to the last sentence also. As to the second, it doesn't provide the basis of course for the first.

PN2782

VICE PRESIDENT HATCHER: Paragraph 38 will be admitted.

PN2783

MR DOWLING: Thank you, your Honour. Paragraphs 42 and 43 are a relevance objection, but your Honour has ruled on those in respect of the relevance of the comparator that is there referred to. Paragraphs 44 to 47 are all submission.

PN2784

VICE PRESIDENT HATCHER: Yes, those paragraphs will be admitted. The statement of Lisa Petrie, dated 23 October 2017, will be marked exhibit 22.

EXHIBIT #22 WITNESS STATEMENT OF LISA PETRIE DATED 23/10/2017

PN2785

MR DIXON: May I, with the Commission's leave, deal with one other matter. The Commission will recall that our learned friends tendered the St George Leagues Club financial report for the period 31 October 2016(sic) - exhibit 5. We wish to identify and ask her some questions in relation to the 2017 - updated position in relation to that report.

PN2786

VICE PRESIDENT HATCHER: Is that objected to, Mr Dowling?

PN2787

MR DOWLING: No, your Honour.

PN2788

VICE PRESIDENT HATCHER: Mr Dixon, while you're proceeding we're going to dial in Mr Arnold in Brisbane, so hopefully that won't disrupt what's going on; but there may be some strange sounds as we proceed.

*** LISA MAREE PETRIE XN MR DIXON

PN2789

MR DIXON: Shall I just keep going?

PN2790

VICE PRESIDENT HATCHER: Just keep going.

PN2791

MR DIXON: If the Commission pleases.

PN2792

Ms Petrie, may I show you a document - and I have copies for the Commission?‑‑‑Thank you.

PN2793

VICE PRESIDENT HATCHER: Thank you.

PN2794

MR DIXON: Do you identify the document that I've handed you, Ms Petrie?‑‑‑Yes.

PN2795

Can you state what it is?‑‑‑It's the St George Leagues Club annual financial report, dated 31 October 2017.

PN2796

You gave some evidence about declining gaming revenue. Can I ask you to turn to page 8 of that document?‑‑‑Yes.

PN2797

Are you able to identify, in respect of revenue, what revenue is derived from gaming services?‑‑‑That would be "Rendering of services".

PN2798

Does the entry that says "Rendering of services" relate to - - -?‑‑‑To gaming.

PN2799

- - - gaming?‑‑‑That's correct.

PN2800

You have a reduction there from 2016; 35,132,624 to 32,117,177. What do you attribute that reduction to?‑‑‑That was a 3‑million‑dollar reduction in the amount of revenue that we got from our gaming machines.

PN2801

What do you attribute that reduction to?‑‑‑People not coming into the club as much as they used to. Spends are different. Generally just not as much patronage.

*** LISA MAREE PETRIE XN MR DIXON

PN2802

In relation to the rendering of services, can I also draw your attention to page 13. Perhaps by reference to that page, it seems to me that poker machines - - -

PN2803

MR DOWLING: Let her give the evidence, rather than doing it for her.

PN2804

MR DIXON: Have a look at page 13, please, Ms Petrie?‑‑‑Yes. I can see that the poker machine net clearances in 2016 were $33,681,089 as compared with 2017 which were 30,923,324. Members' subscriptions were slightly lower, the commission received was slightly higher and other services were reduced, but fundamentally that close to 3‑million‑dollar difference in net clearances from the poker machines meant our revenue was substantially down.

PN2805

I see. May I ask you to turn to page 28. Page 28 deals with the benefits paid to key personnel?‑‑‑Yes.

PN2806

St George Leagues Club employs a general manager?‑‑‑That's correct.

PN2807

Still does?‑‑‑That's correct.

PN2808

Assistant general manager?‑‑‑Yes, that's correct.

PN2809

Still does?‑‑‑(No audible reply)

PN2810

A gaming operations manager?‑‑‑Not any longer. He has resigned.

PN2811

Is there a replacement for the gaming operations manager listed on page 28?‑‑‑Not currently.

PN2812

Are you aware of the Clubs Award that has scales for rates in the relevant classifications for club managers?‑‑‑Yes, I am.

PN2813

Are you able to say whether the general manager and assistant general manager, based on your role, are paid above the 58,000 - sorry, above the scales in the top rates in the Clubs Award?‑‑‑Absolutely they are.

PN2814

What about other managers? Do you have other managers employed at level A of the Clubs Award?‑‑‑Yes, we do.

*** LISA MAREE PETRIE XN MR DIXON

PN2815

Are you able to indicate the salaries and remuneration - how many of those employed at level A?‑‑‑Currently I would think there would be two.

PN2816

Are their salaries above level A in the classifications?‑‑‑I would have to check what that - just what the numerical value is.

PN2817

A level A manager - perhaps I can show you the - do you have an objection - do you want a formal objection?

PN2818

MR DOWLING: Yes, I object to this. I was happy to give my friend leave to ask some questions about the financial report because the financial report for 2016 was filed. Now we seem to have gone onto a whole different topic that was not related to the financial report. Again Ms Petrie filed her evidence in October last year and here we are on day three of the trial hearing new evidence for the very first time. In our submission, it should not be admitted.

PN2819

VICE PRESIDENT HATCHER: Why should this be admitted? Why could this - - -

PN2820

MR DIXON: Your Honour, I cross‑examined Mr Docker - - -

PN2821

VICE PRESIDENT HATCHER: - - - not have been in the witness's statement?

PN2822

MR DIXON: I beg your pardon. I didn't mean to cut across your Honour. It became apparent in the cross‑examination of Mr Docker that in Tradies Clubs in ACT all the managers are above the rates set out in the award. It goes to the effect of a change that is being sought in these proceedings and I'm seeking to establish whether the same position applies at St George. In my respectful submission, that could be a relevant factor.

PN2823

VICE PRESIDENT HATCHER: It may be relevant, but why wasn't it in the statement?

PN2824

MR DIXON: Well, that issue had not arisen - - -

PN2825

VICE PRESIDENT HATCHER: But you raised it.

PN2826

MR DOWLING: You cross‑examined on it.

*** LISA MAREE PETRIE XN MR DIXON

PN2827

MR DIXON: Your Honour, I did raise it and as a relevant factor in one area we're seeking to inform the Commission about how it applies at St George.

PN2828

VICE PRESIDENT HATCHER: Right. Thank you. No, we won't allow it, Mr Dixon.

PN2829

MR DIXON: If your Honour pleases. I seek to tender the financial statement for St George Leagues Club of 31 October 2017, if the Commission pleases.

PN2830

VICE PRESIDENT HATCHER: The St George Leagues Club Ltd annual financial report, dated 31 October 2017, will be marked exhibit 23.

PN2831

MR DIXON: If the Commission pleases.

EXHIBIT #23 ST GEORGE LEAGUES CLUB LTD ANNUAL FINANCIAL REPORT DATED 31/10/2017

CROSS-EXAMINATION BY MR DOWLING [10.00 AM]

PN2832

MR DOWLING: Ms Petrie, you have given evidence that you are the human resources manager at the St George Leagues Club?‑‑‑That's correct.

PN2833

In that capacity no doubt you make human resources decisions affecting your staff?‑‑‑In consultation with the general manager and assistant general manager.

PN2834

All right. Some of those decisions affect the terms and conditions of the staff?‑‑‑That would be - yes, correct.

PN2835

Should we understand that you are here today giving evidence on behalf of the club?‑‑‑Yes.

PN2836

Thank you very much. Now, you have given a little bit of evidence about your club and of course it is a not for profit club. Yes?‑‑‑That's correct.

PN2837

When you prepared your statement in October of last year, it had 29,000 members. Are you able to tell the Commission how many members it has today?‑‑‑I'm not aware of any difference. I'm sorry, I didn't find that out. I'm sorry.

*** LISA MAREE PETRIE XXN MR DOWLING

PN2838

That's okay. But you think it's approximately the same?‑‑‑I would say about the same.

PN2839

All right. You have updated this morning the staff numbers?‑‑‑Yes.

PN2840

Should I understand from that, that the number of casuals you indicated when you provided your evidence in October was 88 and the number of casuals you now have is 92. Correct?‑‑‑That's correct.

PN2841

So your proportion of casuals has increased?‑‑‑Yes.

PN2842

Your proportion of casuals now makes up more than half of your workforce. Correct?‑‑‑It does.

PN2843

VICE PRESIDENT HATCHER: You have reduced the number of permanent full‑time and part‑time employees?‑‑‑Yes, your Honour.

PN2844

Why was that?‑‑‑For the flexibility with casuals - some days trading is not as high as it used to be, so with a casual we can send them home after - even though it's a two‑hour engagement, we don't send anybody home after three, but we've got that flexibility. When it's a permanent or permanent part‑time, we can't alter their roster; so if they're rostered for an eight‑hour shift, they must stay for that eight‑hour shift whereas with a casual, as I said, if it's quiet we might send them home after five or six so we can save a little bit of money.

PN2845

Were they reductions in the permanent workforce by redundancies or by natural attrition?‑‑‑Natural attrition, your Honour.

PN2846

Thank you.

*** LISA MAREE PETRIE XXN MR DOWLING

PN2847

MR DOWLING: Thank you, Ms Petrie. You gave some evidence that decisions are made by you in consultation with the general manager. Should we understand that the answer you gave to the Vice President is part of a decision that you have come to with the general manager that, "We want to increase the casual side of our workforce and decrease the permanent side of our workforce so as to gain flexibility for the club." Correct?‑‑‑It wasn't a determination. Really it has just happened. As a permanent or a permanent part‑timer has left, they have been replaced with a casual probably by attrition, just for the fact that we have flexibility with permanent part‑timers but not with permanent staff. I suppose it's probably just for - as I said, for trade. At the moment trade is really quiet in the club because it's cold. People don't come out as much, so - - -

PN2848

I see. So it wasn't a positive determination to terminate some of your permanent workforce and replace them with casuals?‑‑‑That's correct.

PN2849

But there has been a determination that as the permanents leave by way of natural attrition - - -?‑‑‑Yes.

PN2850

- - - they will be replaced with casuals?‑‑‑For the most part, depending on the position. It depends on the position.

PN2851

I see. That's directed towards, in your words, flexibility. Correct?‑‑‑Correct.

PN2852

Thank you very much. I noticed from your statement that you have worked in the clubs industry for quite some time?‑‑‑I have.

PN2853

Since, I think, at least 2009 or before that?‑‑‑I actually started in 1994.

PN2854

Right, okay. You have told us in your statement at least that you were at West's for a time?‑‑‑That's right.

PN2855

South Junior's and St George?‑‑‑Yes.

PN2856

I take it, given you've been in the clubs industry for such a long period of time, it's a deliberate choice you make to work in this industry?‑‑‑Yes.

PN2857

All right. An industry that you're proud of, no doubt?‑‑‑I am.

PN2858

That you see as unique and different to the hospitality sector?‑‑‑(No audible reply)

PN2859

To hotels, for example. You have chosen to work in a club as opposed to a hotel. Correct?‑‑‑I've chosen to work in a club, but I don't see them as necessarily different. They're fundamentally - we do the same work, but we provide differences to the community, I would suggest.

*** LISA MAREE PETRIE XXN MR DOWLING

PN2860

I see. What are the differences you provide to the community?‑‑‑I think that's a great question.

PN2861

I'm glad I could ask you a great question?‑‑‑First of all, the community grants that we give. Obviously we help St George Leagues Club; a lot of money to Calvary Hospital; we obviously run a football club, so we give money to those. I'm very big on employing people with a disability. We employ 10 people through Nova, because they're part of our community so I like to give them employment, whereas I'm not quite sure if that's how it works in hotels; but any money that we make goes back to the community through grants, through giving money back.

PN2862

Of course the money that a hotel makes doesn't go back to the community?‑‑‑That's right.

PN2863

That's one of the reasons you choose the clubs industry?‑‑‑That's part of it, yes.

PN2864

Right, okay. Can I assist you in a small way at least and provide to you a copy of the constitution and the articles of your club?‑‑‑Thank you.

PN2865

Now, this is a document that you have provided for us in response to a request?‑‑‑Yes.

PN2866

Should we understand that this is the present constitution and articles of the club?‑‑‑It's old, but, yes, I'm going to say it is current.

PN2867

It dates back to 1955, I think, but as far as you're aware it's the current constitution of the club?‑‑‑That's correct.

PN2868

Now, can I ask you to turn over the first three pages and you come to the objects of the club. The first under 3(a) is:

PN2869

To establish and carry on a social and athletic club in the rugby league football district of St George, City of Sydney, or elsewhere, for the use of members of the club and their friends.

PN2870

You see that?‑‑‑Yes, I do.

PN2871

That is still an aim of the club, I take it?‑‑‑Yes.

*** LISA MAREE PETRIE XXN MR DOWLING

PN2872

Consistent with that, over the page if you go to (d):

PN2873

To promote and foster the playing of football in accordance with the code of the New South Wales Rugby League in the districts of St George -

PN2874

again that continues to be an object of the club?‑‑‑Yes, that's correct.

PN2875

Just picking up on what you said a moment ago, can I take you to (g), please:

PN2876

Generally to arrange functions of all kinds and raise funds by all means for the purposes of the club or for patriotic, philanthropic or charitable purposes.

PN2877

That's one of the things that is still the object?‑‑‑Yes.

PN2878

That's one of the things that attracts you to this employer?‑‑‑Yes.

PN2879

And this industry?‑‑‑Yes.

PN2880

All right. Again, picking up on what you have already said, if you go to the next column in (l), second from the top:

PN2881

To support and subscribe to any local or other charities and institutions, societies or clubs which may be for the benefit of the club or its employees and to grant donations for any one or more of the objects of the club or for any public purpose.

PN2882

Again, that's still an object of the club?‑‑‑Yes.

PN2883

That is a reason you want to be employed in the clubs industry and for this club?‑‑‑Yes.

PN2884

I tender that document, your Honour.

PN2885

VICE PRESIDENT HATCHER: Yes. The document entitled "Constitution, St George Leagues Club Ltd" will be marked exhibit 24.

*** LISA MAREE PETRIE XXN MR DOWLING

PN2886

MR DOWLING: Thank you, your Honour.

EXHIBIT #24 CONSTITUTION OF ST GEORGE LEAGUES CLUB LTD

PN2887

MR DOWLING: Just while we're dealing with the industry and your attraction to it, is it correct to say you having been in the cubs industry for such a long time, you can help us; but as a general proposition they are community based and community run?‑‑‑Yes.

PN2888

All right. I think almost without exception they are not for profit. Correct?‑‑‑Yes, that's my understanding.

PN2889

Mostly, but not always perhaps, they offer sports or activities or entertainments; rugby league in your case and associated clubs. Correct?‑‑‑That's right. Well, different clubs have different - I know there are Catholic clubs, there are workers clubs, but, that's right, a lot of sporting clubs. Correct.

PN2890

You have sporting clubs beyond just rugby league, don't you?‑‑‑We do.

PN2891

You have a bowls club and a chess club, I think?‑‑‑We do.

PN2892

Dancing club?‑‑‑We do.

PN2893

A swimming club?‑‑‑Yes. A photographic club.

PN2894

Thank you. I take it it is in the nature of your club and clubs generally that they are controlled by their members?‑‑‑I wouldn't say controlled by members. Members get to use the facilities; they are not stakeholders in the club. That's a management decision. They definitely get to use the facilities and I feel that members feel that they are part of the community, which is the club.

PN2895

I see. They feel they can have some say in what it is the club does. Does the club reach out and get feedback from them and say, "What would you like?" and, "What would you like us to add as a service?" or, "What would you like us to add to this particular club?" Is that something it does on a routine basis?‑‑‑Some clubs may, but I'm not aware that St George does.

*** LISA MAREE PETRIE XXN MR DOWLING

PN2896

All right. Again consistent with what you've said about your club, it's important in the clubs industry that they are not only part of the community, but they are contributing to the community. Correct?‑‑‑Yes.

PN2897

That includes contributing by raising funds and making donations. Correct?‑‑‑Yes.

PN2898

As well as by providing a sporting oval or something to that effect?‑‑‑Again, some may do a sporting oval. We hire Jubilee Oval. That's owned by the council, but some may have an oval. That's correct.

PN2899

Some clubs, I think, are granted the land that they preside on by the council or by the state. Is that correct?‑‑‑Again, I wouldn't know, I'm sorry.

PN2900

All right. You mentioned your members. I take it that your members are very important to you?‑‑‑Yes, they are.

PN2901

I take it also in the human resources field that what you tell your staff is, "These members are very important to us. They're our livelihood. It is important that we treat them with the utmost respect and do everything we can to service them as best we can"?‑‑‑For our members and guests. Correct.

PN2902

You might go out of your way for one of your members in a way that a pub just might not and that's one of the things that attracts you to the industry. Correct?‑‑‑I'm not quite sure what you're referring to, because I don't think that we go out of our way for one particular member. I would like to think we're consistent with all our members.

PN2903

Yes. I'm not talking about going out of your way for one member over another?‑‑‑Okay.

PN2904

But your focus for your staff as the human resources manager is to make sure - it is a point of focus and an important issue that your staff service your members as best as they possibly can?‑‑‑My focus as the HR manager is for the welfare of my staff.

PN2905

Of course?‑‑‑So that is my utmost priority. Part of their job of course is for them to look after, as I said, members and their guests; everybody that comes into the club.

*** LISA MAREE PETRIE XXN MR DOWLING

PN2906

All right. I asked you some questions about some of the things that the club does. I think I said there was a dancing club and you agreed with me. You do dance lessons also; is that right?‑‑‑We have somebody come in - I think it's a Tuesday night or a Wednesday night - and they do dances.

PN2907

Are they employed by the club?‑‑‑They're not, no.

PN2908

Do you know the terms and conditions under which they are paid?‑‑‑That's voluntary. They're not paid.

PN2909

I think on Wednesdays you have bingo?‑‑‑We do.

PN2910

You have a bingo caller for that purpose, I imagine?‑‑‑We do.

PN2911

Is the bingo caller employed by the club?‑‑‑No, it's contracted out. We have the Robin Hunt organisation, so it's a contracting company that does that.

PN2912

All right. Have you ever employed the bingo caller yourself during your period of time?‑‑‑No, I haven't.

PN2913

What about at the other clubs?‑‑‑I was not aware of that, because that was already in place before I went there. I was only at South's for 10 months, so I'm not aware of what the agreement was.

PN2914

All right. Are you aware of the terms and conditions under which the bingo caller is paid?‑‑‑No, I'm not.

PN2915

Have you inquired?‑‑‑No, I haven't.

PN2916

Are you familiar with the Coverage clause of the current Clubs Award?‑‑‑I don't understand, I'm sorry.

PN2917

You're familiar with the Clubs Award?‑‑‑Correct, yes.

PN2918

Are you familiar with who it seeks to cover; which employees and which work it seeks to cover?‑‑‑Yes.

*** LISA MAREE PETRIE XXN MR DOWLING

PN2919

What is your understanding in terms of whether the Clubs Award will apply to the bingo caller who comes in to do work at the club?‑‑‑As a contractor, as I said, I'm not sure what award they are running under but under the Clubs Award, I would be thinking that the contractors are under our jurisdiction.

PN2920

I see, thank you very much. Now, as I understand it, your club doesn't run a gym, is that right?‑‑‑That's correct.

PN2921

Some of the others do; some of the other leagues clubs do, I think that's correct?‑‑‑Absolutely.

PN2922

Canterbury Leagues Club I think is one that runs a gym called C-Life, I think it's called?‑‑‑I think they do as well, I think they do, yes.

PN2923

Central Coast is one that runs a gym. Is that right?‑‑‑I don't know about Central Coast, but many do.

PN2924

Ryde Eastwood, is that one you know about?‑‑‑I don't know that one either.

PN2925

St Marys?‑‑‑I know the ones closer to my venue, sorry.

PN2926

Of those closer to your venue that run a gym, which are they?‑‑‑Canterbury Leagues would be one, yes.

PN2927

Right. Canterbury, I think as well as running a gym, runs a child care centre, is that right?‑‑‑Again, I wasn't aware that they did.

PN2928

Are you aware that some do?‑‑‑Yes, I am.

PN2929

Again, are you able to assist the Commission by identifying which of those that you're familiar with or that are close to you that run a child care centre?‑‑‑Yes, I'm aware that Revesby Workers is definitely one of those clubs. I think Club Central at Hurstville, their second property at Menno, I think they also run a child care centre as well.

PN2930

Thank you very much Petrie. Now, you were handed - and gave some evidence about the 2017 financial report. Do you still have that report with you?‑‑‑I do.

*** LISA MAREE PETRIE XXN MR DOWLING

PN2931

I take it you've given some evidence about it today that you have some familiarity with these financial reports?‑‑‑A little bit, yes.

PN2932

Before I ask you those questions about 2017, can I take you back to 2015 please and provide you with the 2015 report. Do you see that?‑‑‑I do.

PN2933

That, I think it's fair to say is in substantially similar terms to the 2017 report you had, correct?‑‑‑The overall document, yes.

PN2934

Yes?‑‑‑Correct.

PN2935

Not the detail; I'll come to the detail for you. I think you were taken to page 8 in respect of the 2017 report. Could you have a look at page 8 of the 2015 report?‑‑‑Yes.

PN2936

You gave some evidence about what rendering of services means, largely gaming revenue, I think, correct?‑‑‑Yes.

PN2937

We should understand that in the year ended 31 October 2015 the St George Leagues Club had a revenue mostly from gaming machines of $34,233,215, correct?‑‑‑That's correct.

PN2938

That was down a little on the previous year 2014, correct?‑‑‑No, it was up.

PN2939

Sorry. $33,500,000 in 2014. Up to $34,200,000 in 2015?‑‑‑Correct, yes that's correct.

PN2940

Can I just ask you to turn the page to page 9 and there's an item at the bottom of the page which represents members' funds and identifies what it describes as retained profits. Do you see that figure?‑‑‑I do.

PN2941

The retained profits for the 2015, or year ending October 2015 was $45,677,640, correct?‑‑‑That's what it says, yes

PN2942

Now can I just ask you to jump ahead to page 20, as you did when you looked at the 2017 report or its equivalent. You see there the break-down of rendering of services, that there tells us that of the $34,233,000, $32,630,000 is from poker machines?‑‑‑That's correct.

*** LISA MAREE PETRIE XXN MR DOWLING

PN2943

Poker machines have variously been referred to in this case as poker machines or electronic gaming machines, but they are the same thing?‑‑‑Absolutely.

PN2944

Again, that's a slight increase on the 2014 year, correct?‑‑‑That's correct.

PN2945

If you could just help me with two other things. If you go ahead to page 22 and that deals with income tax. It describes the concept of mutuality at the top and describes - if you're about half way down page 22, the portion of income attributable to non-members, so that is income we make not from our members. You see that that is $6.9 million?‑‑‑Yes, I see that.

PN2946

Then we deduct from that the portion of expenses attributable to non-members which is in excess of $7 million. We should understand from that, that for the financial year ending 31 October 2015, the leagues club did not pay any income tax, correct?‑‑‑I'm not an accountant. I have a slight gaming background, so I understand gaming, but as I said, I'm not familiar with income tax.

PN2947

You gave some evidence about the 2017 report and what you could tell us in that?‑‑‑Yes.

PN2948

Perhaps just read it as best you can. Does that represent to you that in the year 31 October 2015, the club did not pay any income tax.

PN2949

MR DIXON: The document can speak for itself. The witness has said she's not equipped to deal with this matter. My learned friend can make whatever submissions he likes about the document.

PN2950

VICE PRESIDENT HATCHER: That's correct, isn't it?

PN2951

MR DOWLING: Yes, well perhaps I'll ask her what she knows from her role. Are you aware from your role as the Human Resources Manager, whether in the year ending 31 October 2017, the leagues club paid any income tax?‑‑‑I would assume.

PN2952

That they did?‑‑‑Yes. As I said, I don't know.

PN2953

You don't know?‑‑‑Am I allowed to look at the statement?

*** LISA MAREE PETRIE XXN MR DOWLING

PN2954

Of course, of course. Go back to the 2017 report.

PN2955

VICE PRESIDENT HATCHER: Page 16, isn't it?

PN2956

MR DOWLING: It is, your Honour. You have there page 16 of the 2017 report?‑‑‑I do.

PN2957

If we look at the equivalent figures, the portion attributable to non-members was $4.87 million, less the portion of expenses attributable to non-members, $5.6 million. It appears to me that there is no income subject to tax. Is it your understanding from your role as Human Resources Manager that the leagues club did not pay any income tax for the year ending 31 October 2017?‑‑‑I'm sorry, I'm confused by this document because of the brackets from the 2015 statement as compared to the 2017 statement. Where it says the portion and then the less. I can see in 2015 there's brackets around it. But then of course in 2017 there's not, so I'm just a bit confused, I'm sorry.

PN2958

Take your time.

PN2959

VICE PRESIDENT HATCHER: I'm not sure taking time is going to assist, Mr Dowling. The witness has indicated she doesn't understand the document. Is that a fair representation?‑‑‑Yes, your Honour. I apologise, I'm not - - -

PN2960

MR DOWLING: There are some parts of this document that you can help us with and other parts you can't help us with. Is that your evidence?‑‑‑Absolutely. As I said, I do apologise that I'm more au fait with some things and not with others. This is one I'm not, I'm sorry.

PN2961

Can I ask you then just lastly to turn back to the 2015 report? This time to page 57. This page deals with property plant and equipment. I take it you have some familiarity with the property and equipment that's owned by the club?‑‑‑Property, yes.

PN2962

There's an item for land and buildings which comes under property and that shows the value of the land and buildings prior to depreciation at $31.6 million. That's your understanding?‑‑‑Yes.

PN2963

I tender the 2015 Annual Financial Report, your Honour.

*** LISA MAREE PETRIE XXN MR DOWLING

PN2964

VICE PRESIDENT HATCHER: The St George Leagues Club Ltd Annual Financial Report dated 31 October 2015 will be marked exhibit 25.

EXHIBIT #25 ST GEORGE LEAGUES CLUB LTD ANNUAL FINANCIAL REPORT DATED 31 OCTOBER 2015

PN2965

MR DOWLING: So as to provide a consistent account of your evidence and so we don't miss a year, I'll show you the 2016 report. This was tendered in as exhibit 5, your Honour, but we have some spare copies. I'm happy to provide the witness to save time. Also, can provide additional copies to the Bench if anyone does not have it. We looked at 2015. Now if you could do your best within your scope of expertise to have a look at 2016. Firstly, I'll take you to the items that we went through in the 2017 report, so of course, I think it goes that you're equipped to show us those?‑‑‑Yes.

PN2966

The first is page 8 and here again we have the rendering of services, do you see that?‑‑‑Yes, I do.

PN2967

We are told that in the 2016 year ending 31 October the revenue from the rendering of services was this time $35,132,624, correct?‑‑‑That's right.

PN2968

An increase from 2015?‑‑‑Yes.

PN2969

Turning the page and dealing with that item that you explained for me in the 2015 report, the members funds and retained profits, here is $48,224,261?‑‑‑Yes.

PN2970

Again, just so we have a complete picture, can I just take you ahead to page 19 which is the break-down of the rendering of services. It shows us the poker machine component of the $35 million as $33.7 million or $33,681,000?‑‑‑Exactly, yes.

PN2971

I think you've done your best already, but if you jump ahead to page 21, you'll see the income tax. Should we understand, given what you've already said, that you cannot tell us much about the income tax that does not appear to have been paid in respect of the club for the year ended 31 October 2016?‑‑‑I'm sorry, yes that's correct.

PN2972

Just two more things. Jumping ahead to page 23, we've got here a reconciliation of cash. This describes cash at bank and on hand and term deposits of $13.8 million for the year 31 October 2016?‑‑‑Yes, I see that.

*** LISA MAREE PETRIE XXN MR DOWLING

PN2973

All right that is consistent with what you know about the cash holdings?‑‑‑I don't know what they currently are, but I do know our general manager is an accountant. He likes to have money in the bank.

PN2974

They all do, don't they? I'll take you to the 2017 report and just one last item then in this report. We went to land and buildings and consistent with what we looked at in 2015, the 2016 report shows, over the page on 25, I'm sorry, in shows the land and buildings at $35.538 million?‑‑‑Yes.

PN2975

Thank you very much. Can I just ask you then lastly, to have a look at exhibit 23 which is the 2017 report that Mr Dixon took you to? He took you to page 8, so if you could go back there?‑‑‑Yes.

PN2976

You describe the rendering of services and the drop in the rendering of services in 2017. Would you go over the page to that item we were looking at, retained profits, down the bottom of page 9?‑‑‑Yes.

PN2977

You see here the retained profits went up in 2017?‑‑‑I do.

PN2978

The retained profits for 2017 are at $48.5 million?‑‑‑Yes, that's correct.

PN2979

I take it your general manager accountant has got a tight grip on things and he's making sure the retained profits are going up, correct?‑‑‑I'd say so.

PN2980

Just to complete the picture, jumping ahead to page 13, which is where in this this report the breakdown that Mr Dixon took you to of the poker machine component of rendering of services. You've already given evidence that tells us that the poker machine component is $31 million or thereabouts, $30.9 million, yes?‑‑‑That's correct.

PN2981

Page 16 again, appears to demonstrate that no income tax was paid by the club. Is this in the same position as you've already indicated you can't help us with page 16?‑‑‑Yes, that's correct.

PN2982

Page 19, I think you said you didn't know what the cash at bank and term deposits were. This tells us that 31 October 2017 it was $12.991 million?‑‑‑That's correct.

PN2983

The land and buildings are on the following page and it appears the value of those has gone up a little. It was $35.5 million and now 31 October 2017 we have the value at $36.4 million or thereabouts?‑‑‑That's correct.

*** LISA MAREE PETRIE XXN MR DOWLING

PN2984

All right, thank you for that. I asked you some questions about the Clubs Award and I take it you understand that this application made by Clubs Australia Industrial, the aim is to have the Clubs Award revoked?‑‑‑I do.

PN2985

But it also seeks to carry over club specific terms and conditions from that award into what will be the Hospitality and Clubs Award. Do you understand that?‑‑‑That's my understanding, yes.

PN2986

Some of those changes include the following, the retention of the club manager's structure?‑‑‑Yes.

PN2987

You understand that's to be kept?‑‑‑Yes, that's my understanding.

PN2988

With respect to those club managers, one of the other things it seeks to bring across is separately the allowances that applies for those club managers?‑‑‑Okay, yes.

PN2989

Well, I don't want to put you at a disadvantage. I'll show you the proposed merged award. I'll give you a copy that is coloured. I hope like me you're not colour blind. We've given you one in a folder. Can I just ask you to turn to clause 20? That sets out the minimum wages and it lists levels and classifications. Do you see that?‑‑‑I do.

PN2990

On page 21, what I hope is green in your copy. Sorry, going back to page 19, there's one green item at the bottom which is a child care worker grade one for clubs?‑‑‑Yes.

PN2991

That would pick up the people we were discussing before that might do child care work in a club and put them into this award. Do you understand that?‑‑‑I do, yes.

PN2992

There's reference on page 20 to maintenance and horticultural employees, that you see are green and have come across?‑‑‑Yes.

PN2993

Then at page 21 as well as having some green, maintenance and horticultural and child care workers, there's also from level six through to level 13, entries that deal with club managers?‑‑‑Yes.

PN2994

They're quite specific to the club manager's provisions that have come across from the Clubs Award?‑‑‑Yes.

*** LISA MAREE PETRIE XXN MR DOWLING

PN2995

I asked you some questions about allowances and if you can jump ahead to page 26, clause 21 which deals with allowances, do you have that?‑‑‑I do, yes.

PN2996

The first item that's dealt with is meal allowances. Do you see that?‑‑‑I do, yes.

PN2997

But then at the top of the next page there's a particular meal allowance that's there for club managers. Do you see that?‑‑‑I do.

PN2998

What I'm suggesting - well, perhaps before I ask you that question, and to be fair, if we can jump over the page, you see there's some allowances dealing with uniforms?‑‑‑Yes.

PN2999

There's a particular uniform allowance just for club managers in the middle of page 28. Do you see that?‑‑‑I do, yes.

PN3000

Then on the next page towards the bottom, there's some allowances that deal with expenses?‑‑‑Yes.

PN3001

There's some particular provisions for club managers and expenses?‑‑‑Yes.

PN3002

Again, the green tells us that that's carried over from the Clubs Award?‑‑‑Yes.

PN3003

Whilst we're dealing with club managers, if you can jump ahead to page 35 and that seeks to sort of consolidate all sort of - or make reference to those provisions that apply to the way salary might be paid to managerial staff and what that might include if it's paid as a salary?‑‑‑Correct, yes.

PN3004

I take it, and you as a human resources manager are well placed to assist us, but I take it that it is very important to clubs that they retain and bring with them this structure for club managers, correct?‑‑‑Definitely the exemption part, so that a manager receives the same amount of pay each week as opposed to sometimes it going up or down because a lot of time there's shift penalties in there. So, from that exemption we actually use that quite a lot, yes.

PN3005

I see, so it's very important for you, as the human resources manager, that you get to roll up a whole lot of allowances and have a salary rate for your club managers?‑‑‑Yes.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3006

But in doing that of course, you have to have reference to each of the individual allowances that those club managers would have?‑‑‑We would put it in a contract exactly how it's written here. We would term which ones would be included in their salary, that's correct.

PN3007

They go tougher effectively. These are all your allowances and if we want an annual salary, we have to recognise all of those allowances and make sure they're covered?‑‑‑Under which exemption. So, if it's 20 per cent exemptions, so many allowances are covered. But if you want to give them a 50 per cent exemption, there's more allowances included in that, that's correct.

PN3008

Now there are some other things that are carried over from the Clubs Award. If you go ahead to clause 29 which deals with hours of work.

PN3009

VICE PRESIDENT HATCHER: Are you moving away from club managers now, Mr Dowling?

PN3010

MR DOWLING: Momentarily.

PN3011

VICE PRESIDENT HATCHER: Right, can I just ask this question Ms Petrie? In the last paragraph of your statement you say that work performed by employees under the Clubs Award and the Hospitality Awards is essentially the same, as skills and response required are not different. Does that view extend to the work of managers?‑‑‑Your Honour, having not worked in a hotel, I don't know what a manager does, but from the staff perspective, they pull beers, they make coffee. We do it in a club and we do it - - -

PN3012

Yes, I'm talking about managers?‑‑‑Managers - as I said, I'm really not sure what their jurisdiction is. Because we look after a club and again, there's often maintenance staff. It's sort of a whole parameter. I'm not quite sure what a hotel manager would extend to. Obviously, looking after their staff, their patrons, definitely they'd probably have a restaurant in there. I'm just not quite sure the extent of the coverage of a manager.

PN3013

Is paragraph 47, is the view expressed there based upon just observations about what customer-facing personnel do in hotels?‑‑‑Yes.

PN3014

But you don't really know beyond that point how hotels, either whether they're pubs or accommodation facilities, actually work beyond that point?‑‑‑Yes, that's right, your Honour.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3015

Thank you.

PN3016

MR DOWLING: Thank you, your Honour. Now, hours of work is clause 29?‑‑‑Yes.

PN3017

You'll see page 39 has some peculiar - by peculiar I mean different to the hospitality industry, hours of work for clubs in green on page 39?‑‑‑Yes.

PN3018

Are you able to say, whether as a human resources manager it was important or is important for your business to carry over the particular club's ordinary hours into this new award?‑‑‑Sorry, I'm just familiarising myself with the hospitality, if that's okay? I'm just reading that part.

PN3019

VICE PRESIDENT HATCHER: What page are you on Mr Dowling?

PN3020

MR DOWLING: 39, your Honour?‑‑‑I don't think that part would be that important to carry over. I think, fundamentally, that would be - I couldn't see why a club manager couldn't work under that hospitality - they're very similar. It says 11.5 hours - we have a 12 hour day. Then with six hours in the maximum. I could see no reason why the managers couldn't work under that.

PN3021

VICE PRESIDENT HATCHER: You said managers?‑‑‑Managers, yes, your Honour.

PN3022

Is this question confined to managers?

PN3023

MR DOWLING: No, it's not.

PN3024

VICE PRESIDENT HATCHER: I think questions directed to employees generally?‑‑‑Okay, and staff as well, your Honour.

PN3025

MR DOWLING: You'd be content if your staff did not continue with the club specific entitlements in 29.1(b)(ii)?‑‑‑If that's the way the award went, I'm sure we would be able to accommodate that. That would be fine.

PN3026

You understand that's not the basis of the application that's put before the Commission?‑‑‑I do.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3027

The application made by clubs at Australia Industrial is that all of these clubs' specific entitlements have to go over?‑‑‑Have to be retained? I do. Realistically though, this is - but I couldn't see any reason why that couldn't happen.

PN3028

Have you, in consultation with your general manager, expressed support for the way this application is made, and that is from the St George's Leagues Club point of view, we're happy to support the application that retains the club specific provisions but otherwise - well, some of them at least - but otherwise, merges the rest of the terms?‑‑‑We haven't had that exact conversation, but I have spoken to him about what it meant me coming here today, and he was very supportive. He has a good knowledge of what it meant if the changes go ahead and the two awards amalgamate. He was very aware of that and happy with that.

PN3029

All right, perhaps I might have confused you and I didn't mean to, I'm sorry. I'm concentrating for the moment on any conversations that you and your manager might have had with Clubs Australia Industrial who is bringing this application. Have they asked whether you support the way in which the application is made and that is carry over all of the club specific entitlements, mostly. But otherwise, take the hospitality provisions. Is that something they have asked of you?‑‑‑No.

PN3030

Right, so there's been, to the best of your knowledge no consultation with your club about the form of the award that is put in this application?‑‑‑That's correct.

PN3031

We were dealing with clause 29 and 29.4 provides for make-up time. Is that something you're familiar with?‑‑‑Yes, I am.

PN3032

Again, you'll see there's a distinction created between other than clubs and clubs. At the bottom of page 43, in clause 29.4, it provides for make-up time, just with respect to clubs' employees?‑‑‑Yes, I see that.

PN3033

Have you had any cause to look at the differences between the club's make-up time provision and the make-up time for organisations other than clubs?‑‑‑I haven't looked at that previously, no.

PN3034

Are you able to say whether it's important for your organisation that you carry over the make-up time provisions that formerly applied in the Clubs Award?‑‑‑With your permission, I might just familiarise myself with what the hospitality says and the difference.

PN3035

Certainly?‑‑‑I could see no problem with that.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3036

Just while we're dealing with these different clauses, I take it that you haven't examined the comparison between the two closely, prior to today. Have you or your general manager discussed how it is that you might explain to staff the operation of this new award?‑‑‑We haven't had that conversation, no.

PN3037

Because those employees or staff will have access to any new award?‑‑‑Absolutely.

PN3038

What they will be presented with is two sets of conditions. One that applies in a club and one that applies elsewhere. Do you expect that it will be part of your role to explain to them the difference between the two?‑‑‑Yes, that would definitely be part of my role.

PN3039

That's not presently part of your role, of course?‑‑‑No, but any changes that came in, for example when the part time provisions notices went out, I would explain to staff. The consultation process is very important.

PN3040

I take this is going to take a somewhat additional burden for you in that clubs' employees reading this now will not only be saying what is my entitlement, but their likely to be saying to you, hang on, why is mine different, correct?‑‑‑Sorry, different to what it used to be? Or different to somebody else's?

PN3041

Different to somebody else's in the same award?‑‑‑I think from what I've read so far, fundamentally, it's not going to negatively impact on them. I think they would be. They don't really mind if it's different, as long as they're okay by it, to be honest.

PN3042

Well, you'll discover it, I suppose, won't you?‑‑‑Yes.

PN3043

You accept that you'll have to explain it to them?‑‑‑Yes, absolutely.

PN3044

You expect and anticipate, do you, that you will have employees coming to you saying, why is there two and can you explain the difference between the two?‑‑‑They possibly could. I explain a lot of - that's pretty much a lot of my job, talking to staff.

PN3045

Can we just lastly deal with breaks, which is commencing at page 44 and clause 31. Again, you should have some black and white font for organisations other than clubs and some green font for clubs on the right hand page, page 45. Do you have that?‑‑‑Yes, I do.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3046

I take it from the evidence that you've already given that again, you've not examined the differences between breaks for organisations other than clubs and the breaks for clubs?‑‑‑You're correct.

PN3047

You're not able to say without examining it, whether it's something that you think's important to be retained, or not?‑‑‑You're correct again.

PN3048

It might be difficult for you, given what you've said about any communications you've had from Clubs Australia Industrial, the applicant, but did they identify for you what club-specific provisions they were not taking over? Were not going over to the new award?‑‑‑Not that I recall.

PN3049

Perhaps I can assist you by telling you that if not all, certainly very close to all of the clubs' provisions are going over, except the entitlements for penalty rates for permanent employees on public holidays, Saturdays and Sundays. You understood that much?‑‑‑I did.

PN3050

You've given some evidence about your permanent employees and how many you have?‑‑‑Yes.

PN3051

I think your evidence was you have 80 permanent employees made up of full time and part time?‑‑‑That's right, 47 and 33 currently.

PN3052

And 92 casuals?‑‑‑That's correct.

PN3053

You didn't tell us, but could you tell us as best you are able, the break-down of the classification level of the permanent employees?‑‑‑I'll start off, of course with the general manager himself. The managers, we have 12 managers. Seven, and then the five duty managers. We have eight supervisors, they're all permanent. Then we have general staff who work in the bar who work in gaming. Chefs, maintenance staff.

PN3054

What classification are they - sorry, by classification I should be clear, you're aware that in terms of permanents, and we've looked at some part of the classification structure has an introductory level and then a level one, two, three, four, five, six, seven, right through to 13?‑‑‑Yes.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3055

I imagine it would be very difficult for you to say precisely, but can you give the Commission an indication of where - are they mostly level 3's or level 2's? Putting our managers to one side for the moment?‑‑‑Excellent. WE have nobody on introductory, I know that, and we have nobody on level 1. We don't pay anybody on those two levels. Level 2 would be the start of all of our staff, so I would be thinking the majority of our staff would fall into level 2 and level 3.

PN3056

Of course, I said excepting managers, so if we put managers to one side, the balance of the permanent staff are then level 2 and level 3?‑‑‑Fundamentally, yes.

PN3057

To the best of your knowledge, they're paid at the award rate under the current Club's Award?‑‑‑Fundamentally they are. We have some staff who might have a classification of level 3, but the club recognises their responsibility and we pay them at a level 4 rate. Our two permanent receptionists are the two people I have in mind.

PN3058

I see, well let's for present purposes put them to one side for the moment. We'll concentrate on the vast bulk which is the level 2 and 3?‑‑‑Sure.

PN3059

I think you're aware from what you said a moment ago, that all of the club's provisions come over except for the penalty rates. Their paid by and large on the award. If we're looking at a level 2 employee, their hourly rate for working on a Monday to Friday is $19.53. Does that accord with your understanding of their hourly rate?‑‑‑I was last week, but as of this week, it's actually just gone up.

PN3060

As of 1 July?‑‑‑That's right.

PN3061

Do you know how much it went up?‑‑‑I do. Level 2 is $20.22 and level 3 is $20.91.

PN3062

I'll round the figures a little for us to make it a bit easier, but someone who's on $20 at the level 2, working a Saturday will currently be paid 150 per cent for working on the Saturday?‑‑‑That's correct.

PN3063

Given I've rounded the figures, that makes our maths easy for us. We know that person is on $30?‑‑‑Yes.

PN3064

The proposal made by CAI in this case, is that ultimately the penalty rates will be reduced to 125 per cent?‑‑‑That's correct.

PN3065

That same person working on that Saturday will be earning $25?‑‑‑That's correct.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3066

You understand that by supporting this application that your staff at level 2 who are currently on $20 an hour Monday to Friday, $30 on Saturday will not be being paid $25 an hour on Saturday?‑‑‑Our permanent staff, correct.

PN3067

MR DIXON: I object to the question.

PN3068

VICE PRESIDENT HATCHER: Well, it's been answered, hasn't it?

PN3069

MR DIXON: Your Honour.

PN3070

MR DOWLING: Now, that same person at level 2, they will, on a Sunday, the current penalty rate is 175 per cent?‑‑‑That's correct.

PN3071

Again, we can - my maths is good enough to work out that at about $35 and this application seeks to reduce that to 150 per cent, so to $30?‑‑‑That's right.

PN3072

Again, that person after the full extent of the reduction will be losing $5 an hour?‑‑‑That would be correct.

PN3073

The same person working on a public holiday, it's 250 per cent, $50?‑‑‑Yes.

PN3074

Two and a half times 20?‑‑‑Yes.

PN3075

This application seeks to reduce it to 225 per cent?‑‑‑That's correct.

PN3076

That will be $45, on my calculation?‑‑‑That's what I would say, too.

PN3077

Again, that person would lose $5 an hour for every hour worked on a public holiday?‑‑‑That's correct.

PN3078

You accept that the effect of the evidence that you give in support of your application is to reduce the hourly rate for each of your permanent employees by $5 an hour for every hour they work on a Saturday and Sunday and public holidays?‑‑‑If that's what it takes to keep the club employment numbers as they are, that's what we will do. Yes, that's correct.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3079

You'd accept of course that the same person would have to work additional hours to earn the same amount of money?‑‑‑Stands to reason, that's correct.

PN3080

If they've lost $5 an hour over an eight hour shift, they've lost $40 for that day. They'd have to work in terms of Monday to Friday hours an additional two hours just to get back to where they were?‑‑‑I understand that.

PN3081

I take if, if you're full time, if you're permanent and full time, that person is unlikely to be offered additional hours, just as the result of this cut in penalty rates?‑‑‑Sorry, did you say full time or part time, sorry?

PN3082

Full time permanent?‑‑‑Full time permanent. Yes, because as soon as you go over your 38 hours, it incurs overtime.

PN3083

So someone who's a full time who's had their hourly rate cut by $5 an hour and needs to work another two hours just to get back to where they were, will not be offered extra hours by you because you'd have to pay them overtime?‑‑‑But that's on the assumption that they work weekends.

PN3084

Yes?‑‑‑And not all of our permanents, of course, work weekends.

PN3085

Undoubtedly there are some that work weekends?‑‑‑Yes. Yes.

PN3086

Let's concentrate on that person?‑‑‑Okay.

PN3087

He or she is a permanent employee, works an eight hour shift on a Saturday, loses $40, works a 38 hour week, you will not offer that person any additional hours, correct? That person will be $40 an hour worse off a week, correct?‑‑‑Yes, but still have a job.

PN3088

Right, okay.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3089

VICE PRESIDENT HATCHER: So do you mean by that answer?‑‑‑Your Honour, I spoke to the general manager about this because the penalty rates obviously are a big topic at work and because when wage increases happen, like are sent down, how he explained it to me, he said we can put up some of our prices in our bar and in our food outlets to sort of recoup some of that money, he said, but of course, we can't do that in gaming and we can't do that for our horticultural staff, so he said at the moment he – he's actually contemplating closing our brasserie on a public holiday because we don't get as many patrons in and it costs a lot to staff the brasserie on a public holiday Monday. That's – Monday is traditionally a quiet day anyway and so he has actually – we've actually done figures so he said to me if it doesn't start to pick up we would either reduce the hours that we open or close the brasserie altogether and just operate - - -

PN3090

On a public holiday?‑‑‑On a public holiday. On predominantly public holiday Mondays because that is a quiet day.

PN3091

And how many permanent staff work in the brasserie?‑‑‑At least half a dozen.

PN3092

What functions do they perform?‑‑‑They'd be manning our front counter, doing our till, serving meals, chef, kitchenhand.

PN3093

And would the change in penalty rates that are being sought make any difference to that assessment?‑‑‑Again, according to the general manager, as I said, I had the conversation with him knowing full well this would come up. And he said that with the reductions in penalty rates that may just keep the brasserie open and keep the hours as they are as opposed to having a reduction.

PN3094

Ms Petrie, I was going to raise another time. You gave evidence in 2016 in the part time casual case?‑‑‑Yes, I did.

PN3095

And the effect of the evidence was that more flexible part time provisions in the award would allow the club to engage a greater proportion of part time employees in substitution for casual employees?‑‑‑Yes.

PN3096

That didn't - - -?‑‑‑And that hasn't happened.

PN3097

That didn't work out, did it?‑‑‑Not yet, your Honour.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3098

Not yet. Well, it's going in the other direction, isn't it?‑‑‑At the moment. I mean, we've got – the casuals has gone up four, I believe, from the time I made my statement. I think it's gone up from 88 to 92. A lot of it is just movement. You know, if a permanent part timer has left and we don't have somebody to fill that role we'll just put on as a casual. Then if they work out and they're happy to do it we can pop them in as a part timer. We have a lot of university students who choose to be casual because they can sort of drop a shift at short notice and they don't have that, I suppose, the stability that the older people who might have carer's duties or that, they like to know what they're doing every week. For our uni students who have uni exams they say, we don't want to work for the next two weeks because we've got uni exams coming up. Casual works quite well for them. So we really try and keep a mix and we try and keep the individual happy as opposed to looking at it as a holistic approach. We do do that on an individual basis.

PN3099

All right, thank you.

PN3100

MR DOWLING: You have given some evidence about what the general manager thinks. Is there any reason you know of that the general manager couldn't be here to give evidence?‑‑‑I believe because he wasn't asked.

PN3101

Right. In terms of this idea of what difference it might make are you able to tell the Commission whether you yourself have done any calculation as to what money will be saved by this reduction in penalty rates from permanent staff employed on a weekend?‑‑‑I haven't done those calculations, I'm afraid.

PN3102

And are you aware of whether the general manager has done any of those calculations, or have you seen any if he has?‑‑‑I believe some were done before I started, so that's pre four years ago.

PN3103

If you've not gone to the trouble of making the calculation as to what money will be saved it's really very difficult for you to make any assessment of what impact the reduction in penalty rates will have. Isn't that a fair assessment?‑‑‑I haven't personally done them, as I said, within the last four years but my understanding is the general manager and the previous HR manager did do those calculations.

PN3104

See, you're here, Ms Petrie, and you're giving evidence about how it might make a difference to the brasserie but you're unable to assist the Commission in any way as to what calculation or what money you might save in how it might make a difference. That's fair, isn't it?‑‑‑From your point but not from my point because I – you said at the beginning that I am acting on behalf of St George and I have had that conversation with the general manager.

PN3105

But you've not seen any calculations from the general manager that set out any basis for this is what we'll save and this is how it will make any difference. You've not seen that either, have you?‑‑‑Again, that's an excellent point but there's a lot of things that I don't see that happens in the club and because he's the general manager he takes that final responsibility.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3106

The Commission is the organisation that has to make the decision and they don't have those calculations, do they?‑‑‑They don't because I don't but I – as I said, I - - -

PN3107

So they can't be assisted, can they? We really can't take anything from your evidence that it might make some - - -

PN3108

MR DIXON: I just - - -

PN3109

MR DOWLING: Let me finish the question please - we really can't take anything from your evidence that it might make some difference because there is just no basis for it given. That's correct, isn't it?

PN3110

MR DIXON: I object. It's a matter for submission.

PN3111

VICE PRESIDENT HATCHER: I will allow the question.

PN3112

MR DOWLING: There is no basis for the evidence you have given, correct?‑‑‑No, I would actually say that's not the case because common sense says that if the penalty rates are going to go down you're going – it's not going to cost the club as much money.

PN3113

So your premise is based on that. They will save money. But you don't know how much they will save and you don't know how much difference it will make?‑‑‑Not that we'll save money but it's not going to cost as much money.

PN3114

I see, but you do not know how much less it will cost, correct?‑‑‑That's correct.

PN3115

And you do not know whether that would make any difference, correct?‑‑‑It will make a difference.

PN3116

You do not know to what extent?‑‑‑But you didn't say to what extent, you said will it make a difference, and it will make a difference.

PN3117

All right, perhaps let me take it in steps for you. How are you able to say what difference it will make if you do not even know how much it is?‑‑‑I think you and I are talking about two different things.

PN3118

I don't think so?‑‑‑You're talking to the extent, and I'm talking, it will make a difference. Even if it's a tiny difference, it will make a difference.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3119

I see. I see?‑‑‑That's where I think you and I are coming - - -

PN3120

It might be a difference of point, 001 per cent?‑‑‑You could say that but common sense would tell you it's not going to be .001, it's – because we are talking about a 25 per cent reduction on a public holiday so realistically we – we both said that it was going to be a $5 an hour reduction, so as I said, while I don't have the mathematical calculations I have enough common sense to say that it's not going to be that minute.

PN3121

All right, but the difference that you are talking about and the difference that you want this Commission to accept is that it will make a difference to whether the brasserie opens or closes. Now can I suggest to you, that is not something you are able to say because you would have to know with some precision just exactly how much money is being saved, correct?‑‑‑Again, when I had the conversation with the general manager - - -

PN3122

No, no, let's concentrate on your own evidence rather than the general manager who is not here for us to ask questions from?‑‑‑That is true but you're asking me if the brasserie would open or close and when I had the conversation that's what he told me. And I did swear on oath so - - -

PN3123

Okay. Can I just ask you again - - -?‑‑‑Yes.

PN3124

To concentrate as much as possible on your own evidence and what you know from your own position. You are telling this Commission yourself that it might make a difference to whether the brasserie stays open or closed. I'm putting to you, you cannot say the difference the reduction in penalty rates will make because you do not know the reduction in cost, as you call it, correct?‑‑‑I don't know the mathematical calculation, that's correct.

PN3125

And therefore you can't explain and you can't ask the Commission to rely on any suggestion that it will make a difference, correct?‑‑‑Well, I think I can but according to you I can't.

PN3126

You accept you don't know how much the cost reduction will be?‑‑‑That is correct.

PN3127

Thank you. Have you had any discussion with the general manager as to one way of maintaining the existing services but paying your staff in accordance with the existing award entitlements, might be to use some of the 48.5 million in retained members' funds?‑‑‑No.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3128

Is that something that you discussed?‑‑‑No.

PN3129

Have you discussed with the general manager that one way of paying your employees the current penalty rates but still retaining the existing services might be to use some of the 13 million dollars that the club has in the bank?‑‑‑No.

PN3130

When I asked you before as to what your duties were you said the most important thing for you was, in your words, "the welfare of my staff"?‑‑‑That's right.

PN3131

Have you asked your staff the impact upon them of losing $5 an hour for every weekend day that they work and every public holiday?‑‑‑I haven't asked them but of course I've thought about it.

PN3132

You haven't asked them?‑‑‑No.

PN3133

I take it then that you haven't asked them what they will do when they lose $40 per eight hour shift and can't make up the hours at any other time during the week, you haven't asked them about the consequences of that either?‑‑‑No but it's better than, as I said, than having no job or reducing the hours.

PN3134

Well, that's what you say. But we have no evidence that the reduction in penalty rates will make such a difference.

PN3135

VICE PRESIDENT HATCHER: So when you said, no job, I mean, we asked you for this before - - -?‑‑‑Yes.

PN3136

Are you suggesting that some people will lose their jobs?‑‑‑We would start, your Honour, with casuals, of course, because that's the way we work, but again that's what I – we've had these discussions that as areas may reduce hours – we're just in the process of reducing the hours in the TAB because we're not getting the patronage. So people now are losing hours. As I said, it is the casuals first but there's nothing to say that somewhere down the track it won't move to permanent part timers or permanent.

PN3137

Has the club ever made any permanents redundant while you've been there?‑‑‑Not while I've been there.

PN3138

They by definition can't have their hours reduced because they're permanents?‑‑‑That's correct.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3139

The only permanents that you've lost, if I can call it that, in your time is through natural attrition in your evidence?‑‑‑Yes, that's correct, in my time. We did close up - - -

PN3140

MR DOWLING: And you've replaced them with casuals?‑‑‑Yes.

PN3141

And you have been operating in all your time under the penalty provisions in the current award?‑‑‑Yes.

PN3142

So in the current award, paying the penalty rates that it currently provides for, it has not resulted in any departure of a permanent worker other than through natural attrition, correct?‑‑‑That's correct.

PN3143

Right. Can I return to what discussions you have or haven't had with your employees?‑‑‑Yes.

PN3144

Have you had any discussions with your employees about the financial obligations that they have to meet from their payroll, from their salary?‑‑‑Yes.

PN3145

Their mortgage obligations, their school fees obligations?‑‑‑Yes.

PN3146

Any other financial obligations?‑‑‑Yes.

PN3147

And have those discussions included you putting them on notice that what the club wants to do is to take five dollars an hour out of their pay for every hour worked on a Saturday, Sunday or public holiday?‑‑‑No.

PN3148

Don't you think it's beholden upon you as the human resources manager to say, "I'm going to the Commission. Listen, all my staff, I know you have financial obligations and I know you only earn $20 an hour which makes things difficult. I'm going to the Commission to make sure if I can that $5 an hour comes out of your pay on a Saturday and Sunday." Don't you think it's important that you would let them know, that you would tell them?

PN3149

MR DIXON: I object. Relevance.

PN3150

VICE PRESIDENT HATCHER: I'll allow it.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3151

WITNESS: I don't know what the outcome of this hearing is going to be and what decision will be made so I don't want to let them know something that may or might not happen, so – they're aware. The union have been out a lot. They've made it very clear so the staff know.

PN3152

But I'm talking about your role as someone, in your words, who is "concerned about the welfare of my staff." Concerned about their welfare, shouldn't you be putting them on notice that it's possible that they'll be losing $40 a week?‑‑‑Well, I don't want to put them in a state of panic. This may not happen.

PN3153

And what if it does? You'll just say, "Okay, as of today you're losing $40 a week." Wouldn't you rather, and wouldn't it be more appropriate for someone who's concerned about the welfare of their staff to give them some notice of it?‑‑‑They're aware of what's happening and if it comes in there's always a transition period and then that would be the time that obviously we would – we'd bring each person in. When we just changed the roster two years ago, each permanent and permanent/part-timer came in and spoke to the operations manager and myself individually so we could let them know of any changes to what was happening in the club and the roster. So the same would be afforded to them if this happened.

PN3154

I think you said before you hadn't had any discussion with Clubs Australia Industrial about the terms of this new award. Does that also mean that you didn't have any discussion with them about any period of time to implement the change?‑‑‑I know there's always transitional periods. Like when the new award came in there was - - -

PN3155

Sorry - - -?‑‑‑Sorry.

PN3156

I'm sorry to interrupt you. I just want you to make sure you understand my question?‑‑‑Okay, sorry.

PN3157

My question is, and I'll use your words, have you had any discussion with Clubs Australia Industrial about what the transitional period might be for the implementation of these cuts if they are made?‑‑‑Yes.

PN3158

Right. I thought your evidence was earlier that you hadn't had any discussions with them about the terms of this award?‑‑‑I'm sorry, I misunderstood. I mean, I know there's always a transition so - - -

*** LISA MAREE PETRIE XXN MR DOWLING

PN3159

Yes, all right. And have you put forward a proposal for what you think the transition should be?‑‑‑No.

PN3160

Have you discussed with your staff what you think a fair transition might be?‑‑‑No, I assume that we would be given that transition period and that's the time that we would implement it.

PN3161

When you say you'll be given it, you mean by the Commission?‑‑‑By the Commission.

PN3162

They'll decide it for you?‑‑‑Well, the Commission – again, previously in 2010 when the changes – we knew we had four years to make the changes to the pay rates back then so one would think that we would be told, within this timeframe, that's when the changes would be brought in.

PN3163

And you'll discuss it at that point. So if a decision was made to bring it in immediately you'll cop it and you'll tell your staff, "I'm sorry, it's going to come in immediately. I didn't tell you about it, sorry about that. Here it is"?‑‑‑I'm going to suggest that the Commission would not put it in immediately. There would be some sort of grace period. Just from a logistics point of view, from payroll, there'd have to be some sort of timeframe, you know, to get that into place.

PN3164

You haven't proposed one to the applicant in this proceeding?‑‑‑No.

PN3165

VICE PRESIDENT HATCHER: Ms Petrie, one conceivable transition arrangement might be that existing permanent employees keep their penalty rates forever - - -?‑‑‑Yes.

PN3166

And that it only applies to new employees?‑‑‑Yes, your Honour.

PN3167

What would you think about that?‑‑‑I think that sounds – the staff would be much happier with that. I think the general manager may have another point of view.

PN3168

Which would be what?‑‑‑Which would be – again, he is looking at the viability of the business. But that may be something that would be a compromise, I suppose.

PN3169

All right, thank you.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3170

MR DOWLING: Thank you, your Honour. Can I just ask you to turn back to your statement. Do you still have that before you?‑‑‑I do.

PN3171

You give some evidence in paragraphs 9 and 10 – I'm sorry, at 10 in particular about the Crown Dragon and the Grange Buffet operated by Ricky Char, a catering business?‑‑‑Yes.

PN3172

Do you see that evidence?‑‑‑I do.

PN3173

You' are no doubt aware that those assisting me made a request to you to provide any arrangements, agreements or documents that set out how it is that Ricky Char and the Club agreed between them on the operation and you were, correct, unable to produce anything?‑‑‑I was told that there was no contract.

PN3174

No, I don't want to – I don't – sorry, I'll let you finish. My apologies?‑‑‑No, that's all right. I was told – of course, HR, I'm not involved in getting contractors anything, so when I asked for that they said that they didn't have one.

PN3175

But you were also asked for any agreements of any sort. Do we take it then from the lack of production of anything that there's no document at all that sets out how the agreement between Ricky Char and the Leagues Club?‑‑‑When I asked the general manager and the assistant general manager, for the contract that existed between the club and Ricky Char they said it's a verbal agreement.

PN3176

And you don't know the terms of that verbal agreement?‑‑‑I don't. I wasn't part of that so - - -

PN3177

Do you make it your business as the human resources manager to ascertain the terms and conditions that are paid to the employees of Ricky Char?‑‑‑No, I don't.

PN3178

But those employees would be working alongside your employees, wouldn't they?‑‑‑No, they work in two restaurants that our staff aren't part of.

PN3179

Sorry - - -?‑‑‑That's okay.

PN3180

When I say, "alongside", I didn't mean quite that literally?‑‑‑Sorry.

PN3181

But certainly in the same club and in the same building?‑‑‑They are, yes.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3182

So did you not think it might be prudent to find out the terms and conditions of those employees working in those restaurants that are part of the club?‑‑‑No. No because they were already employed when I started so obviously their staff had some agreement with Ricky and – yes.

PN3183

But you don't know what it is?‑‑‑No, I don't.

PN3184

VICE PRESIDENT HATCHER: So Ms Petrie, in paragraph 2 where you say to the best of your knowledge the employees in those venues are covered by the Hospitality Award - - -?‑‑‑Yes.

PN3185

Is that just your opinion about award coverage or is that based on some knowledge as to how they're paid?‑‑‑I just assumed that's – I don't know what they get paid. I just assumed they'd be under the Hospitality Award.

PN3186

Thank you.

PN3187

MR DOWLING: We shouldn't pay very much regard to that paragraph. It's just an assumption on your part and you don't know?‑‑‑Yes. It was an assumption, that's correct.

PN3188

And you don't know?‑‑‑No.

PN3189

All right. Do you know whether there's - from your experience of working in the industry for such a long time, is there any confusion about where subcontract – where restaurants are run by contractors within a club, as to what terms and conditions apply to them, whether it's the Restaurants Award or the Clubs Award or the Hospitality Award?‑‑‑Yes. Sadly although I've been in the industry for a long time, for the first part I was an attendant so I've got no idea, sorry.

PN3190

You don't know?‑‑‑I don't know.

PN3191

And again as a human resources manager that's not something you've ever endeavoured to discover, that if we have subcontractors or if we had a contract restaurant, what terms that they are being paid?‑‑‑Not at this point in time, no.

PN3192

That's never troubled you?‑‑‑No. I have enough of my own, to be honest.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3193

Right. Just a couple of other brief matters. You give some evidence about the Star Casino. Do you know how long they have been operating?‑‑‑I understand – I know I visited the temporary casino in 1997. I'm not sure when the permanent one became set up but it's – so it's, I'd be thinking somewhere around the 20 year mark.

PN3194

My information, and you can tell me whether it accords with your advice, if this is assisting your memory, that the temporary casino was set up in 1995?‑‑‑Okay, yes.

PN3195

So 23 years ago?‑‑‑Sure.

PN3196

And the permanent one in 1997, 21 years ago?‑‑‑Okay.

PN3197

Does that seem accurate?‑‑‑That could be. I couldn't say for sure. I know I visited – it must have been at the beginning of 1997. It was still in the temporary site but yes, that sounds about right.

PN3198

We're both agreed at least - - -?‑‑‑Yes.

PN3199

That it's in excess of 20 years?‑‑‑Yes, that's correct.

PN3200

And all of those in the room from Sydney will know but indulge those that are not, is it right to say that your club is about a half hour driving depending on Sydney traffic, away from the casino, correct?‑‑‑Yes, that's correct.

PN3201

You talk about competition between you and the casino and again, limit your evidence as best as you are able to what it is you know?‑‑‑Mm-hm.

PN3202

Has anyone at the club ever performed an assessment or a study of how it is that you compete with the Star Casino?‑‑‑No.

PN3203

You give some evidence about restaurants in your local area. I take it you are unable to say – to be fair to you, I'm sorry, you do that at paragraphs 42 and 43 where you talk about local restaurants of the Thai and Chinese varieties?‑‑‑Yes.

PN3204

Do you know the terms and conditions under which those local restaurants pay their staff?‑‑‑I'm sorry, I don't, no.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3205

And again have you performed any assessment of how it is they compete with you as the Leagues Club and the impact of it?‑‑‑No.

PN3206

At 43 you there set out the fast food outlets?‑‑‑Yes.

PN3207

Are you able to say with any reliability the terms and conditions under which they pay their staff?‑‑‑No, other than my son when he was at school, worked at KFC.

PN3208

Right, apart from that experience that rules out all the others?‑‑‑Yes.

PN3209

Again are you able to say whether any analysis has been prepared by you as to the effect or how it is they compete with the club?‑‑‑No, we haven't done that.

PN3210

I identified for you some of the Clubs Award specific entitlements that are coming over as part of this proposal and I think you said, well, at least in respect or some of them they could probably take the hospitality terms and conditions. Do you have any concern or have you raised any concern that if the club is treated the same as all other hospitality venues for the purposes of this award that it might start to be treated as just the same to any other hospitality venue for all sorts of other purposes?‑‑‑I hadn't thought of that.

PN3211

Perhaps we can discuss it. You know that the clubs get beneficial gaming tax entitlements that other pubs don't have?‑‑‑We have more entitlements. That is correct, I know that.

PN3212

All right, and you have different caps on gaming machines?‑‑‑Yes.

PN3213

And gaming machines are a very important source of revenue, as we have seen, for your club, correct?‑‑‑As it is for the government, too.

PN3214

Yes, but let's concentrate on for your club, yes?‑‑‑Yes.

PN3215

Let's just start with that proposition. Have you considered any consequence about treating the club the same as a pub for this award might also mean that they are treated the same for the purposes of gaming tax or gaming machine caps?

*** LISA MAREE PETRIE XXN MR DOWLING

PN3216

MR DIXON: I object to this line of questioning. This witness can hardly give evidence to what government responses would be to a reduction in, or change of award conditions that the Commission might decide upon and in my respectful submission it can be of little assistance to the Commission.

PN3217

MR DOWLING: I'm not, with respect to my learned friend, asking her what the government is going to do. I'm asking her whether she herself has a concern, as someone who supports the application.

PN3218

VICE PRESIDENT HATCHER: I will allow the question on that basis.

PN3219

MR DOWLING: Do you have that concern?‑‑‑As I said previously I had never thought of it and it's a decision that I – again, I understand the Commission will rule on the award interpretation and be it the amalgamation or not, and then as I said, I – my honest opinion is the government likes the taxation that they get from gaming machines so I hazard a guess that they're not going to do a lot with that because - - -

PN3220

What I'm suggesting to you is they could get even more because if they taxed you the same way they taxed pubs they would get greater revenue from you. So what I'm suggesting to you, now having thought about it, do you have a concern that if you're treated the same way for the purposes of the award, you'll be treated the same way for other purposes?‑‑‑Not really because the thing that sets clubs apart is the charity and the community grants and money that they give, so - - -

PN3221

But they are able to do that because they have all sorts of tax advantages. As we've seen, they don't pay any income tax. As we've seen, they don't pay tax on their members' funds. Now - - -

PN3222

VICE PRESIDENT HATCHER: I'm not sure how far we can take this. The witness says she hasn't even thought about it so I'm not sure if this is going to be productive.

PN3223

MR DOWLING: Thank you, very much, your Honour. There are no further questions.

PN3224

VICE PRESIDENT HATCHER: Ms Petrie, can I just take you to paragraph 38 of your statement?‑‑‑Yes, your Honour.

PN3225

Do you have that? This courtesy bus from the Star Casino, can you just tell me a bit about that? How does that work?‑‑‑Yes. Well, I see it myself in the St George area and it collects patrons and takes them into the casino.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3226

Does it operate at any particular times?‑‑‑Again I'm not sure of that but I see it driving around quite frequently in the St George area. I don't – I think they - - -

PN3227

Have you see it at or in the vicinity of the leagues club?‑‑‑Absolutely. Absolutely.

PN3228

And what times have you see it at the leagues club?‑‑‑During the day, during the afternoon. It drives around a lot of Sydney is my understanding but it's definitely in the St George area.

PN3229

And you see patrons get in it?‑‑‑Yes.

PN3230

You'd have to be a pretty hard core gambler to go from a leagues club to a casino, wouldn't you?‑‑‑I – your Honour, I'm not a gambler but I think there are some really hard core ones that will go where they're getting good benefits.

PN3231

Yes, all right, thank you. Does any party opposing the application wish to cross-examine this witness? No? Any re-examination, Mr Dixon?

PN3232

MR DIXON: No, sir.

PN3233

VICE PRESIDENT HATCHER: All right, thank you for your evidence, Ms Petrie. You're excused and you're free to go?‑‑‑Thank you, your Honour. Thank you, very much.

<THE WITNESS WITHDREW [11.30 AM]

PN3234

We will take a short morning tea break of about ten minutes. We'll now adjourn.

SHORT ADJOURNMENT [11.30 AM]

RESUMED [11.45 AM]

PN3235

VICE PRESIDENT HATCHER: Mr Dixon?

PN3236

MR DIXON: If it please the Commission, I seek to call Mr Chris Lawrence Mossman.

PN3237

THE ASSOCIATE: Could you please state your full name and address.

*** LISA MAREE PETRIE XXN MR DOWLING

PN3238

MR MOSSMAN: Chris Lawrence Mossman, (address supplied).

<CHRIS LAWRENCE MOSSMAN, AFFIRMED [11.46 AM]

EXAMINATION-IN-CHIEF BY MR DIXON [11.46 AM]

PN3239

MR DIXON: Mr Mossman, your full name is Chris Lawrence Mossman?‑‑‑Yes.

PN3240

Are you the executive manager - workplace relations for ClubsNSW? Are you employed in that capacity?‑‑‑Yes, I am.

PN3241

And also as executive director/secretary of Clubs Australia Industrial?‑‑‑That's right.

PN3242

Could you state your address for the transcript?‑‑‑(Address supplied.)

PN3243

Would you mind speaking up as loudly as you are comfortable with? You won't get amplification. For the purposes of these proceedings, have you prepared a statement?‑‑‑I have.

PN3244

Do you have a copy of that statement with you?‑‑‑I do.

PN3245

Does it consist of 57 paragraphs with some attachments, four attachments?‑‑‑Yes, that's correct.

PN3246

Would you turn to page 9 of the document?‑‑‑Yes.

PN3247

Does it contain a signature from you or not?‑‑‑My version does not, no.

PN3248

I apologise because I don't know what's happened in translation, if the Commission pleases, but I, nonetheless, will ask Mr Mossman to make clear the position.

PN3249

Mr Mossman, having studied that document, do you say that that is the statement which you wish to present to the Commission?‑‑‑It is.

*** CHRIS LAWRENCE MOSSMAN XN MR DIXON

PN3250

Do you say that the contents of that statement are true and correct to the best of your knowledge and belief?‑‑‑Yes, except for one change to paragraph 29 on page 4.

PN3251

Can you tell the Commission what that change is?‑‑‑Our records show that at the relevant period of time that the two circulars refer to, Mr Genge's club email address wasn't subscribed to our system. The system has a notation that he was receiving updates at an alternative email. That email is not recorded on the system, so I couldn't positively assert that the two relevant circulars at that period of time reached him, unlike the other circulars which we can track in our system to the club's address.

PN3252

Does that mean you don't want to rely on paragraph 29?‑‑‑Yes.

PN3253

VICE PRESIDENT HATCHER: The last two sentences really, isn't it?‑‑‑Yes, sorry, that's so.

PN3254

We will strike the last two sentences.

PN3255

MR DIXON: Can I just clarify - I apologise for this - which of the sentences are you referring to?‑‑‑I'm referring to the sentence, "Having checked the records of ClubsNSW" and the sentence that follows, "I understand that the Casino Returned Servicmen's Memorial Club was sent each of the three circulars." The last two sentences.

PN3256

The last two sentences, thank you. If the Commission pleases, may I just indicate that I don't seek to read, in light of one of the objections, in paragraph 57(a), the words at the end of that subparagraph after the comma, strike out the word "which it owns and operates".

PN3257

With the Commission's leave, may I just ask Mr Mossman to identify where Goanna's Club is situated?‑‑‑Goanna's Club is situated in Cessnock in the Hunter Valley of New South Wales.

PN3258

In relation to paragraph 57 (b), after the word "facilities", I don't seek to read all the words after "but" and, with the Commission's leave, may I ask you to identify where The Southport Sharks Club is?‑‑‑Southport Sharks Club is in Southport on the Gold Coast.

*** CHRIS LAWRENCE MOSSMAN XN MR DIXON

PN3259

In relation to subparagraph (e), after the word "premises", the words in brackets that follow, "operated", et cetera, I don't seek to read. With an attempt to deal with one of the objections, if the Commission pleases, I tender the statement.

PN3260

VICE PRESIDENT HATCHER: Any objections, Mr Dowling?

PN3261

MR DOWLING: Yes, your Honour. They are becoming sharper and sharper focused, your Honour. You have a table and it has five entries on it. I can remove those objections to paragraphs 56 and 57. 50 and 51 we press, but, consistent with - they are in the responding to the "I do not agree", we say, on a speculative basis and are not properly in admissible form, but that is the sort of paragraph I understand from your earlier ruling that you have admitted.

PN3262

VICE PRESIDENT HATCHER: I will note the objections; the paragraphs will be admitted.

PN3263

MR DOWLING: That only leaves paragraph 55, which is in a different category, your Honour, which is simply a submission.

PN3264

VICE PRESIDENT HATCHER: Mr Dixon?

PN3265

MR DIXON: Your Honour, it is in response to evidence of the witnesses that we understand United Voice will call - and others - in paragraph 53 and the gist of that evidence is that it will be more difficult for attracting quality staff. All of that is assertion by those witnesses and this is a response as to a few from someone holding the positions that Mr Mossman does in responding to or rebutting those assertions and he states a basis for doing so in the second sentence of subparagraph (a).

PN3266

VICE PRESIDENT HATCHER: What is the experience being drawn upon to express the view in paragraph (c)?

PN3267

MR DIXON: I would need your leave to lead that evidence.

PN3268

VICE PRESIDENT HATCHER: We won't be granting leave any more. I will admit paragraphs 55(a) and (b). Paragraph 55(c) will not be admitted.

PN3269

MR DIXON: If the Commission pleases.

*** CHRIS LAWRENCE MOSSMAN XN MR DIXON

PN3270

VICE PRESIDENT HATCHER: The statement of Chris Mossman dated 8 June 2018 will be marked exhibit 26.

EXHIBIT #26 WITNESS STATEMENT OF CHRIS LAWRENCE MOSSMAN DATED 08/06/18

PN3271

VICE PRESIDENT HATCHER: Mr Dowling?

PN3272

MR DOWLING: Thank you, your Honour.

CROSS-EXAMINATION BY MR DOWLING [11.55 AM]

PN3273

MR DOWLING: Mr Mossman, you have only held your current role since 2016; that's correct?‑‑‑That's correct.

PN3274

Part of the controversy in this case is whether clubs should retain their own and separate award; do you understand that?‑‑‑Yes.

PN3275

I take it in your role as executive manager, workplace relations for ClubsNSW and executive director of Clubs Australia, you are able to confirm the position held by both those organisations up to and prior to the commencement of this application?‑‑‑Up to and prior to the commencement of this application?

PN3276

Yes?‑‑‑I can speak from December 2016 when I took on the roles. The Club Australia Industrial position is that the clubs award should be - or rather clubs should be transferred to coverage under the hospitality industry award. The position of ClubsNSW is the same.

PN3277

You might have misunderstood my question, Mr Mossman. I am talking about prior to this application being made. Prior to this application being made, ClubsNSW and Clubs Australia Industrial have held the view that there should be a separate clubs award; that's correct, isn't it?‑‑‑All I can tell you in respect to that is I can only refer to the document that was lodged by Clubs Australia Industrial in about 2008/2009 when the awards were first modernised. Anything between that document and the period of December 2016, I couldn't comment on.

PN3278

So you had seen then the document that was filed by Clubs Australia in the modernisation process and the submissions that they made?‑‑‑If we're referring to that same document. I would need to see the document, sorry.

PN3279

I will give you a copy?‑‑‑Thank you.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3280

This is a document that you have been handed that is headed "Further Submissions to Australian Industrial Relations Commission by Clubs Australia re Award Modernisation Process"; do you see that?‑‑‑That's the title, yes.

PN3281

Is that the document that you were referring to that you have seen previously?‑‑‑Can I examine it for a moment?

PN3282

Of course?‑‑‑The only document I saw is what's attached in pages - they are double-sided - pages 3 and 4. That's what I was aware of. Those are the nine factors that are listed.

PN3283

I see. I just want to be sure that my version is the same as yours. At the top of page 3 of my version, it starts:

PN3284

The club industry in Australia is a separate and distinct industry that can be distinguished from the hospitality industry on the following grounds.

PN3285

?‑‑‑Yes, my page 3 starts with that as well.

PN3286

Good. And it goes over for the balance of the grounds 6, 7, 8 and 9. Is what you are saying you have seen those two pages previously?‑‑‑Yes, up until 9. I don't recall seeing anything beyond that heading "The ANZ Codes". It was just those nine factors that were relied upon.

PN3287

How were you given that document, do you recall?‑‑‑I don't.

PN3288

Were you told where the document had come from?‑‑‑I don't recall if someone told me where the document came from.

PN3289

I think you said in your evidence a moment ago the submission made in part of the award modernisation case, was it your understanding when you were given those two pages they were part of the submissions made in the award modernisation case?‑‑‑It was my understanding that these were part of the award modernisation case prior to 2010.

PN3290

Do you have any reason to suggest - you will see there's a footer in this document, a rather long one, that starts, TWM/KWT/DSYD and then a number; do you see that?‑‑‑Yes.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3291

You see that appears on the bottom of every page?‑‑‑It does.

PN3292

Have you any reason to suspect that the two pages that you have previously seen are not the two pages that are part of the entire document that I have shown you?‑‑‑Sorry, could you ask that again?

PN3293

Yes, certainly. Do you have any reason to suspect that the two pages that you have seen are not the two pages of the document that you now have in front of you?‑‑‑I have no reason to suspect that this was not before the Industrial Relations Commission in 2008 and 2009.

PN3294

I tender that document, your Honour.

PN3295

VICE PRESIDENT HATCHER: Document entitled "Further Submissions to Australian Industrial Relations Commission by Clubs Australia re Award Modernisation Process" will be marked exhibit 27.

EXHIBIT #27 DOCUMENT ENTITLED "FURTHER SUBMISSIONS TO AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION RE AWARD MODERNISATION PROCESS"

PN3296

MR DOWLING: We were talking about some windows of time and I want to make sure that we are both on the same page. What I am suggesting to you is that Clubs Australia Industrial and ClubsNSW from 2008 until the point immediately before the making of this application in this proceeding have both always and consistently held the view that the clubs industry should have their own and separate award; is that correct?‑‑‑I can't comment upon that. I can say that this document reflects what appears to be Clubs Australia Industrial's position at or about 2008 or 2009, or at least in respect to when the award modernisation process first occurred. What position was held by Clubs Australia Industrial or what position was held by ClubsNSW between 2009 until when I commenced in 2016, I couldn't say.

PN3297

All right, thank you. Perhaps then we will just deal with from December 2016 onwards. It is correct that in December 2016, both of those organisations held the position that there should be a separate award for the clubs industry; correct?‑‑‑In December 2016?

PN3298

Yes?‑‑‑I don't know.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3299

Your evidence is you are the executive manager, workplace relations for ClubsNSW and you don't know what position ClubsNSW held in December 2016, after you started, about whether there should be a separate award?‑‑‑Correct.

PN3300

What about by January of 2017; do you know what position they held then?‑‑‑I don't. Do you mean - I will clarify that. Neither Clubs Australia Industrial or ClubsNSW, no, I don't know what their position was on the award in January 2017.

PN3301

Right. Do you know whether ClubsNSW participated in the penalty rates hearing that occurred through 2017 and 2017 and 2018, prior to this application?‑‑‑What do you mean by "participated"?

PN3302

Provided instructions in respect of it?‑‑‑I don't know what role ClubsNSW had in relation to the penalty rate case, no.

PN3303

Did you have any role?‑‑‑In relation to the penalty rate case?

PN3304

Yes?‑‑‑In the running of the case?

PN3305

Did you have any role? Did you provide any instructions to anybody about the position of ClubsNSW?‑‑‑No, the only role I had in relation to the penalty rates case was being present when the judgment was handed down by the Full Bench in February 2017.

PN3306

It is correct to say that throughout the penalty rates, the clubs award was being dealt with separately?‑‑‑Sorry?

PN3307

Throughout the penalty rates case, the clubs award was being dealt with separately?‑‑‑I'm not sure what you mean by that. The clubs award was part of those proceedings. As far as my reading of the judgment is concerned, there was a number of award being dealt with by the Full Bench in those proceedings and clubs was one.

PN3308

Clubs was one of the awards that was being dealt with as part of the penalty rates proceeding; you understood that?‑‑‑I did.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3309

And no one representing any party interested in the clubs award suggested to the Commission that clubs and the industry should not have its own separate award; correct?‑‑‑Sorry, that was a lengthy question, could you just put that to me again, sorry?

PN3310

No one at any stage in the penalty rates proceeding representing the interests of the clubs industry - got it so far, Mr Mossman?‑‑‑Yes.

PN3311

Represented to the Commission that the clubs award should not be a separate award?‑‑‑I don't know.

PN3312

You don't know?‑‑‑I don't know. I wasn't a participant in the proceedings. My sole knowledge of the penalty rate case comes from my reading of the judgment from the Full Bench when it was handed down.

PN3313

Have you, at any time, as the executive manager, workplace relations, prior to this application, advocated a position that the clubs award should not be a separate award?‑‑‑Are you referring to as executive manager of ClubsNSW or as executive director of Clubs Australia Industrial?

PN3314

Both?‑‑‑Okay. Sorry, could you just ask that again?

PN3315

Have you, in either of those capacities, ever represented that the clubs award should not be a separate award?‑‑‑Prior to the application being made?

PN3316

Yes?‑‑‑Represented to the Fair Work Commission?

PN3317

To anyone?‑‑‑To anyone? Prior to the application being made, no, not that I'm aware of.

PN3318

It seems to be accepted prior to your giving evidence that every representative body of the clubs industry has accepted prior to the application in this proceeding being made, every representative body on the union side, the employer side, each state body has consistently said there should be a separate clubs award. Is that consistent with your understanding and your experience since December of 2016?‑‑‑Again, that was a lengthy question, sorry. Put that to me again.

PN3319

Did you not understand it?‑‑‑No, no, it was quite long.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3320

What I am suggesting to you is it has been accepted by all of the evidence so far called in this case that every representative body, be it an employer representative or an employee representative, supported the position that there should be a separate award for the clubs industry prior to this application?‑‑‑I don't know what the other representative bodies' positions were up until the making of - - -

PN3321

Let's not be cute, Mr Mossman?‑‑‑I'm not.

PN3322

Did you know of any view expressed by any association of which you are an employee or a representative that has ever said up to the start of this application that there should not be a separate clubs award? Are you aware of such a thing?‑‑‑What United Voice's position was on the clubs award for that period of time before I started, I don't know. What Clubs Queensland's position was, I don't know.

PN3323

Listen to my question, Mr Mossman. Are you aware of anybody since December of 2016, prior to the application in this proceeding, putting the position that there should not be a separate clubs award?‑‑‑Yes, since December 2016.

PN3324

Are you aware of anybody?‑‑‑Yes, I am.

PN3325

Who is that?‑‑‑Clubs Queensland and ClubsNSW, ClubsACT, CCV, Clubs South Australia, ClubsWA.

PN3326

All of those bodies have said there should not be a separate clubs award prior to the application in this proceeding? Is that your evidence? I should warn you that is inconsistent with everything we have heard for the first three days of this hearing, but if that's your evidence, please confirm it for us?‑‑‑As far as the - the first time I spoke about the issue in relation to the other state associations - a member of each of the state associations sits on the board of Clubs Australia Industrial - the first time I raised with them the issue of award coverage or the amalgamation of award coverage was after the penalty rates case. They considered what they needed to consider, they took a vote, that vote was passed unanimously by each of the states and the Northern Territory to revoke the clubs award and seek coverage of the clubs award into the hospitality, so my views of the state associations are informed by what happened in those meetings with Clubs Australia Industrial.

PN3327

All right, Mr Mossman.

PN3328

VICE PRESIDENT HATCHER: And that process was prompted by what the Full Bench said in the penalty rates case about the options with respect to the club award?‑‑‑That's correct, your Honour.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3329

MR DOWLING: Let's go back one step then, Mr Mossman. Prior to the handing down of the penalty rates decision, are you aware of any representative body ever - if you would like me to be more precise - after December 2016 and prior to February 2017, when the decision was handed down, are you aware of any representative body advocating that there should not be a separate clubs award?‑‑‑I'm not.

PN3330

And you certainly didn't advocate it in either of your roles; correct?‑‑‑In December of 2016 and February 2017?

PN3331

Yes?‑‑‑I - no.

PN3332

The first time anybody ever considered that there should be no longer a separate clubs award was after the penalty rates decision; correct?‑‑‑Well, I can't speak for all other associations, but that's certainly the first time Clubs Australia Industrial spoke about the matter.

PN3333

That is certainly the first time in respect of the organisations for whom you can speak?‑‑‑Mm-hm.

PN3334

And it is the first time that you became aware of anybody putting a position inconsistent with a separate clubs award; correct?‑‑‑Yes.

PN3335

It was prompted by - consistent with what the Vice President asked you - it was prompted by what was said in the penalty rates decision; correct?‑‑‑Yes.

PN3336

You said you were familiar with the nine paragraphs that appear in the document that has been marked exhibit 27 and it is before you. When did you first become aware of these nine paragraphs?‑‑‑I'm not sure, I can't recall.

PN3337

You have read them again recently?‑‑‑I have.

PN3338

Is it fair to say that the position hasn't changed with respect to them? If we deal with one at a time, clubs aren't suddenly now no longer not for profit? Paragraph 1 still holds?‑‑‑I will just read that, sorry.

PN3339

Certainly?‑‑‑They are not-for-profit organisations, yes.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3340

Paragraph 2 is still true?‑‑‑Yes.

PN3341

Paragraph 3 is still true?‑‑‑No.

PN3342

All right. Paragraph 4 is still true?‑‑‑Yes.

PN3343

Paragraph 5 is still true?‑‑‑Yes.

PN3344

Paragraph 6 is still true?‑‑‑I'd say "No" to 6.

PN3345

It is your position as the executive manager, workplace relations that clubs are not subject to separate and distinct regulations and regulatory framework?‑‑‑We are subject to regulations and framework, but, in my opinion, they are not so separate and they are not so distinct amongst other hospitality providers.

PN3346

What about gaming tax? Is that the same as other hospitality providers?‑‑‑Gaming tax is not my area, but I've been told by my people in policy that the gaming tax is - the rates are different.

PN3347

Isn't that a different regulatory framework?‑‑‑It still falls within the same legislation as far as I'm aware.

PN3348

I see. So if it's in the same Act but it provides for a different scheme, then you say it's the same regulatory framework?‑‑‑Different rates, it's a different rate.

PN3349

I see.

PN3350

VICE PRESIDENT HATCHER: Does that mean paragraph 6 was never true, that is, it wasn't true at the time this document was prepared?‑‑‑Certainly, you know, regulation beyond IR, your Honour, by no means falls within my experience or expertise, but what I have been told from policy is they were fairly distinct in regulations. An example I can give of that, for example, is that there was a period of time where clubs would be issued 24-hour trading licences, which weren't available to everyone, and that regulation has been taken away.

PN3351

When was that?‑‑‑I couldn't comment, your Honour. I'm not sure, no, sorry. I'm really relying upon what others have told me in the gaming regulations place, I'm afraid.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3352

MR DOWLING: But your point of distinction, consistent with what the Vice President asked you, is if they are in the same Act, it's not a different regulatory framework, so if they were in the same Act in 2008, then you don't think what Clubs Australia had to say to the Commission was accurate?‑‑‑I'm not sure if they were the same Act in 2008 or not.

PN3353

But that is your discrimen, is it, that's the point of difference for you? If it's in the same Act, therefore it's the same regulatory framework?‑‑‑No, I would look at the substance of the regulations. I think certainly if it's in the same Act, it goes a long way to saying it's the same regulation.

PN3354

But the most important thing is the substance?‑‑‑I think so, I think that's fair.

PN3355

So if the substance is different, then the framework is different?‑‑‑I think that's fair to say.

PN3356

I am suggesting to you that 6 is still correct; do you agree or disagree?‑‑‑I disagree with you.

PN3357

All right, but you can't give us any examples?‑‑‑Well, I just gave one.

PN3358

The one that you don't know the reason for it and don't know how it happened?‑‑‑No, I don't know the reason for it and I don't know how it happened, I just know it's happened.

PN3359

VICE PRESIDENT HATCHER: But has it happened since this document was prepared?‑‑‑I'm not sure, your Honour, I'm not sure, I'm not sure.

PN3360

MR DOWLING: That is the only example you can talk to?‑‑‑Yes, the regulations, the gaming and liquor regulations are not my areas of expertise.

PN3361

Or any others? Income tax?‑‑‑No.

PN3362

Can't talk to that?‑‑‑I can only tell you what's been told to me by our policy people.

PN3363

You understand the concept of interest mutuality, I take it?‑‑‑I've been told what it is. I'm not sure I'd profess to understand it, but I've been told what it is.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3364

Do you understand how it impacts upon the income tax paid by clubs that are your members?‑‑‑Again, I do to the extent of what I've been told in a very broad way.

PN3365

That is a fundamental difference between your members and hoteliers, restaurateurs, isn't it?‑‑‑It's a difference in income tax, yes.

PN3366

A fundamental one?‑‑‑It's a difference.

PN3367

You don't think it's fundamental?‑‑‑I'm not sure. I'm not an expert in tax or the income tax upon hotels or clubs. It's definitely a difference.

PN3368

All right. Paragraph 7 is correct?

PN3369

COMMISSIONER HAMPTON: Just before we leave 6, the proposition in 6 has two parts: one is about the separate and distinct regulatory framework and the second proposition requires a different staffing arrangement. I think it might be appropriate to explore that as well.

PN3370

MR DOWLING: Thank you, Commissioner.

PN3371

You heard Hampton C's question?‑‑‑I did and, to answer the question, Commissioner, I'm not aware of any regulation which compels clubs to have different staffing arrangements to other hospitality industry employers.

PN3372

But it had separate awards in 2008 that regulated it as opposed to hoteliers or restaurateurs, didn't it?‑‑‑In 2008?

PN3373

Yes?‑‑‑In 2008, it would've been the NAPSA at that period of time in 2008.

PN3374

Yes?‑‑‑The clubs award, yes.

PN3375

It was different?‑‑‑To the New South Wales, yes.

PN3376

To the hospitality sector and to the restaurant sector?‑‑‑It depended on the state. Some states' clubs, South Australia, for example, or I think it's ACT, one of those, their state based awards have had clubs and hospitality included in the same award.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3377

New South Wales?‑‑‑Not the case, a separate clubs award.

PN3378

That is your home state and your role for the New South Wales body, you accept then that there were different staffing arrangements as a result of the regulatory framework?‑‑‑Different staffing? It depends on what you mean by "staffing arrangements".

PN3379

Come on, Mr Mossman, let's not get cute?‑‑‑I'm not.

PN3380

They had different terms and conditions, Mr Mossman, as a result of different awards. Is that controversial?‑‑‑Yes, they were different awards. I've not sat with the state based NAPSA and the hotel NAPSA and compared the two. I do know they were different awards. That's all I can say. Staffing awards - - -

PN3381

Isn't that enough?‑‑‑Awards deal with issues, as you know, like rates of pay, hours, et cetera. Staffing arrangements, I'm not sure what that means. Does that mean the number of staff you have to have on, or who, what, where and how, so, no, I disagree with your comment.

PN3382

VICE PRESIDENT HATCHER: Mr Dowling, this point 6 is expanded upon later in the document. It's the fourth-last page of text.

PN3383

MR DOWLING: Do you want to have a look at that, Mr Mossman, the fourth-last page. Thank you, your Honour. Are you able to comment upon that?‑‑‑I just need to read it first, I'm sorry.

PN3384

Certainly. Have you read it?‑‑‑I'm still on the last paragraph, sorry.

PN3385

Let me know when you have finished?‑‑‑I will. I have read the heading "Staff Requirements" up to "Club Managers". Do you want me to read the Club Managers paragraph?

PN3386

No. If you go back to the staff:

PN3387

Unlike other establishments, clubs are not public establishments. Entry to clubs is restricted to members and, in some circumstances, to bona fide visitors and guests.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3388

Is that still true?‑‑‑Yes, for the club building, yes, it is.

PN3389

Then:

PN3390

Both members and bona fide guests are required to undertake certain protocol pursuant to the relevant state legislation prior to entry and partaking of the club's facilities and services.

PN3391

Is that still true?‑‑‑I'm not sure. The only reference that I can think of to that is the requirement to sign in.

PN3392

You don't know the answer to whether that is still true?‑‑‑Members are required to undertake certain protocol pursuant to relevant state legislation prior to entry, so I could only assume that they're referring to the process of signing into the club.

PN3393

Do you say then that the sentence is still true or not?‑‑‑Not so much. There are clubs now who have adopted technology where you can just effectively scan in through your licence without someone physically being there. One of the bowls clubs I visited in one of the suburbs of Sydney just recently - I can't recall the suburb, I'm afraid - but that was exactly the case where you just scanned your licence.

PN3394

Do you have to scan your licence to enter a pub?‑‑‑Not that I'm aware of. Well, some pubs you do, yes. Some pubs, particularly with the regulations now on safe drinking, there is a requirement to produce and have your ID scanned before you enter the pub.

PN3395

Are you saying that's the same as what is being discussed in the second paragraph, are you, Mr Mossman?‑‑‑The scanning of the ID?

PN3396

Yes?‑‑‑Yes, for those clubs that utilise that technology and those pubs that utilise that technology, same thing, you insert your licence and - - -

PN3397

And they are doing it for the same regulatory reasons, are they? Is that your serious evidence, Mr Mossman?‑‑‑No, I'm not sure why the pubs do it, other than, you know, they appeared after things like safe drinking precincts, violence, all that sort of thing, but certainly the requirement to sign in, I am well aware that that's a part of the requirements of the Registered and Licensed Clubs Act of New South Wales.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3398

Do you say that the second sentence is true or not true?‑‑‑The second sentence?

PN3399

Yes?‑‑‑Yes, that's true. It's the last sentence that I would probably disagree with.

PN3400

All right. Can you return to our nine considerations, unless your Honour has any questions. I think we are up to 7. Do you accept 7 is still correct?‑‑‑Not necessarily, not necessarily.

PN3401

You say that clubs are not required to adopt a set of rules of constitution subject to the provisions of the applicable regulatory framework?‑‑‑That sentence is true.

PN3402

Right. So shall we do it a sentence at a time, Mr Mossman. The first sentence is true, is it?‑‑‑The first sentence is true, yes.

PN3403

What do you say about the second sentence?‑‑‑The second sentence is the change in which we've seen in the industry as clubs now do provide offerings which are open to the public. Someone asked me a question about Cessnock before. The Cessnock Goannas, for example, have a motel, a place to stay. That is open to the public. You don't need to be a member of the club. Penrith Panthers has a McDonald's that you can walk into and not sign into the club. So, the industry has changed.

PN3404

It seems perhaps we need to do it by half sentence not just sentence. Let's deal with the first half of the second sentence:

PN3405

Such regulatory framework means that the clubs are subject to control by members -

PN3406

Do you agree with that part of the sentence or not?‑‑‑That's correct.

PN3407

So the first sentence is correct, the first half of the second sentence is correct and you don't agree with the second half of the second sentence?‑‑‑Sorry, just say that again.

PN3408

You agree the first sentence is correct?‑‑‑The first sentence is correct, yes.

PN3409

You agree the first half of the second sentence is correct?‑‑‑Yes.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3410

You don't agree with the second half of the second sentence?‑‑‑Yes, I think that's changed, I think that's changed.

PN3411

All right. Do you agree with paragraph 8?

PN3412

VICE PRESIDENT HATCHER: I was just going to say the McDonald's at Panthers has been there, to my knowledge, since the early 90s. That's not a relevant change since this document was prepared?‑‑‑That's so, your Honour, but we've seen more of that type of activity for clubs beyond clubs like Penrith Panthers. The Goanna Hotel, the Cessnock Goanna - sorry, the Cessnock Leagues Club, otherwise known as the Goannas, for example, that's a brand new motel just opened. The Southport Sharks, an AFL club on the Gold Coast, they just offer - they've got a very big Ridges, I think, hotel on the Gold Coast which just opened a couple of days ago.

PN3413

There might be an issue of degree, but Panthers, for example, has had accommodation since the early 90s, think?‑‑‑I'm not sure about that, your Honour.

PN3414

I am?‑‑‑Yes.

PN3415

Sorry, Mr Dowling.

PN3416

MR DOWLING: No, no, thank you, your Honour.

PN3417

Do you agree with paragraph 8? It's just one sentence?‑‑‑Yes.

PN3418

Do you agree with paragraph 9?‑‑‑I don't.

PN3419

All right, thank you.

PN3420

VICE PRESIDENT HATCHER: Sorry, before we move on from that, if we just go back, I think you said paragraph 3 was not correct?‑‑‑Yes.

PN3421

What part of that, or maybe it's all of it?‑‑‑Yes, the part of that - - -

PN3422

Do you say that is not correct and why?‑‑‑Pardon me, your Honour?

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3423

What part of that is not correct and why?‑‑‑I disagree with that. We have now seen, particularly venues like pubs, putting on and offering entertainment. There are certainly - - -

PN3424

Pubs have always offered entertainment, haven't they?‑‑‑We've seen a lot more of it, in my view, from what I've now observed.

PN3425

People who used to be in the pub band scene would tend to disagree?‑‑‑Yes, but you speak to people in the industry who've been in the club industry for a long time and, you know, it used to be the case that clubs were the major destination for a band to play in some areas, if not the only destination in which they can play. Certainly we've seen a lot more of pubs getting involved in that space. If you have an area like Tweed Heads, for example, Twin Towns used to be the only entertainment place in that region, but you have other offerings of function centres, we have entertainment centres now, conference centres now. They used to be the sole bastion of clubs, so there's a lot more competition in that entertainment space.

PN3426

MR DOWLING: Are you just talking from December 2016 when you started?‑‑‑No, I'm not, no.

PN3427

Are you giving us your experience prior to December 2016?‑‑‑I am. I have visited clubs before.

PN3428

As a patron?‑‑‑Yes.

PN3429

You are giving evidence as a patron now, are you?‑‑‑I am giving evidence as a patron; I am also giving evidence on the information which has been told to me by my peers in the organisation.

PN3430

Well, let's focus on your own rather than what someone else might have told you. In terms of your own evidence from your own experience, it's just as a patron prior to December 2016, is it?‑‑‑As my own observations, yes.

PN3431

Sorry, I am not sure whether your Honour had any further questions in respect of paragraph 3?

PN3432

VICE PRESIDENT HATCHER: No.

PN3433

MR DOWLING: Thank you, your Honour.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3434

You have given some evidence about a process that ClubsNSW adopts and, indeed, Clubs Australia Industrial of sending regular circulars to its members. Do you recall giving that evidence?‑‑‑In my statement?

PN3435

Yes. I'm not referring to a particular part?‑‑‑Yes.

PN3436

You give some evidence that one thing - tell me if I am not right, if I'm over-simplifying it - "One thing we do is we send circulars to our members"?‑‑‑Yes.

PN3437

Regularly?‑‑‑Yes.

PN3438

All right. That, I think you say, is one way that you consult with your members; correct?‑‑‑Yes.

PN3439

That is one way that ClubsNSW has consulted with its members; correct?‑‑‑Yes.

PN3440

And one way, if there's a difference, that Clubs Australia Industrial might have communicated to the other club bodies; correct?‑‑‑Sorry, I just missed that last bit about Clubs Australia Industrial.

PN3441

One way in which Clubs Australia Industrial might have communicated with other club bodies by circular?‑‑‑I'm not aware of CAI sending a circular to a club representative body.

PN3442

But CIA might send a circular to members of a representative body; is that right?‑‑‑Very rarely.

PN3443

In terms of the consultation method that you chose to adopt in your capacity of executive manager, workplace relations for ClubsNSW post the penalty rates decision, it was to use these circulars; correct?‑‑‑Yes.

PN3444

Can I present you firstly with a document. Do you recognise this? It is a document headed "2017 Circular Index ClubsNSW". Do you see that?‑‑‑I just need to read it and look at it, if that's okay.

PN3445

I am just asking you first to identify whether that is what it says on the first page at the top?‑‑‑It says "2013 Circular Index" and it has the ClubsNSW logo.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3446

2017, is that what you said?‑‑‑17, sorry.

PN3447

Do you want to familiarise yourself with it?‑‑‑I do.

PN3448

Are you familiar with it?‑‑‑No.

PN3449

Let me know when you have finished?‑‑‑I've finished.

PN3450

To the best of your knowledge, does this represent a list of the circulars published by ClubsNSW to its members commencing 10 January 2017 through to 5 July of 2017?‑‑‑I don't know, I've never seen the document before. It certainly identifies circulars. Whether it's the complete record, I couldn't comment. It has not been produced by me, I've never seen that before.

PN3451

All right. Perhaps you can tell the Commission whether there is a practice of numbering the circulars, and if you look at the very first one dealing with the Chef's Table, it has the number 17-0001. Is it your practice of numbering the circulars of ClubsNSW?‑‑‑I don't, but ClubsNSW circulars are numbered, yes.

PN3452

Should we understand - and tell me if I am wrong - should we understand the 17 to refer to the year 2017?‑‑‑I couldn't say with absolute certainty, but I would assume that would be the case.

PN3453

It seems logical, doesn't it, Mr Mossman?‑‑‑It does to me.

PN3454

And the 001 is because it's the first circular of the year?‑‑‑That would seem logical.

PN3455

If I tell you that the list is continuous through to 103, have you any reason to believe that it's not a complete list of circulars 1 to 103 issued by ClubsNSW between 10 January 2017 and 5 July of 2017?‑‑‑There's nothing in this document which would indicate to me that there's anything missing, no.

PN3456

I tender that, your Honour.

PN3457

VICE PRESIDENT HATCHER: Any objection?

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3458

MR DIXON: Yes, your Honour. The witness has never seen it and he can't be more specific than his answers about what it means. In my respectful submission, it can have very little evidentiary weight.

PN3459

VICE PRESIDENT HATCHER: Are you in a position to obtain instructions to ascertain whether this is an authentic ClubsNSW document or not?

PN3460

MR DIXON: I shall do that.

PN3461

VICE PRESIDENT HATCHER: We will defer marking it until then, Mr Dowling.

PN3462

MR DOWLING: Thank you, your Honour. Would you like to mark it for identification?

PN3463

VICE PRESIDENT HATCHER: Yes, I will mark it MFI1.

MFI #1 DOCUMENT ENTITLED "2017 CIRCULAR INDEX CLUBSNSW"

PN3464

MR DOWLING: Thank you, your Honour.

PN3465

Are you aware of the date on which the Fair Work Commission handed down the penalty rates decision?‑‑‑I'm aware of the month. I think it was late February 2017.

PN3466

Perhaps the list might assist you, but, for your own judgment, can you have a look at the reference to 17-032?‑‑‑Yes.

PN3467

There you see a date 23/02/2017, "FWC Hands Down Decision on Penalty Rates". Do you see that?‑‑‑Yes.

PN3468

Can I hand you that circular, please. Would you like to read that, Mr Mossman?‑‑‑Yes, I would. Yes.

PN3469

You have read that?‑‑‑I have.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3470

Can I suggest to you that this was circulated on 23 February, the day that the Fair Work Commission handed down its penalty rates decision?‑‑‑I would say it would be, yes.

PN3471

This is just telling people it has happened. It doesn't ask for people's view about what should happen next; is that fair?‑‑‑It doesn't.

PN3472

All right. I tender that, your Honour.

PN3473

VICE PRESIDENT HATCHER: Document headed "Circular ClubsNSW FWC Hands Down Decision on Penalty Rates" will be marked exhibit 28.

EXHIBIT #28 DOCUMENT HEADED "CIRCULAR CLUBSNSW FWC HANDS DOWN DECISION ON PENALTY RATES"

PN3474

MR DOWLING: It says: "There are no changes to the penalty rates in our award." What it meant by that is that the clubs lost their application to change the penalty rates; is that correct?‑‑‑Sorry?

PN3475

The third sentence, Mr Mossman: "There are no changes to penalty rates in our award." Notwithstanding the Fair Work Commission has granted a reduction in other modern awards, is what ClubsNSW means when it said, "There are no changes to penalty rates in our award", that, "We lost our application"?‑‑‑Anthony Ball, the CEO, has said this and I can only speculate that that's what he meant, yes.

PN3476

VICE PRESIDENT HATCHER: Did you have any input to this circular?‑‑‑I have had in circulars in regards to the circulars that are attached to my statement. I'm not sure about this one, your Honour.

PN3477

You have got no recollection of that?‑‑‑I'm not sure. The reason I say that is because on the day I was actually in Melbourne receiving the decision and Anthony was in Sydney, so I don't have any specific recollection of being involved in the drafting of this, no.

PN3478

Did you communicate the decision to him?‑‑‑I did.

PN3479

What did you tell him about the decision? What did you tell him was the outcome?‑‑‑I told him that there's no changes to the clubs awards, that the orders they were seeking in terms of the penalty rates were rejected, yes, I did tell him that.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3480

Thank you.

PN3481

MR DOWLING: Did you say "We lost"?‑‑‑I can't specifically recall what I said to him.

PN3482

Did you tell him what words he should use in describing the outcome?‑‑‑I didn't.

PN3483

You did or you didn't?‑‑‑I did not.

PN3484

I take it from your answers to his Honour's questions that as the executive manager, workplace relations, or despite being the executive manager, workplace relations, you didn't proof the final circular prior to it going?‑‑‑All I can say is I don't recall, I don't recall.

PN3485

You may have and you don't recall?‑‑‑Yes, I can't recall. As I said, I do remember being in Melbourne for the decision, so that's why I'm so unequivocal about it.

PN3486

You accept, I take it, that that's exhibit 17-032?‑‑‑Sorry.

PN3487

That is circular 17-032 in our list, the one that says "FWC Hands Down Decision on Penalty Rates"?‑‑‑So 17-032?

PN3488

Yes?‑‑‑It is.

PN3489

Can I show you, please, 17-033, which is the next one. Would you like to read that, Mr Mossman?‑‑‑I will.

PN3490

Tell me when you have finished, please?‑‑‑Yes.

PN3491

Were you back in Sydney by the next day, Mr Mossman?‑‑‑I believe so.

PN3492

Flew back on the night of the 23rd, as best you can recollect?‑‑‑As best I can recollect.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3493

Did you have a hand in drafting this one on 24 February 2017?‑‑‑Again, I don't have any specific recollection whether this was just Anthony or whether I saw it or had input into the draft on this one.

PN3494

Is it correct that this is consistent with the first one in the sense that it advised of the outcome but doesn't call for input from or the views of members as to what should happen next?‑‑‑It looks very similar to 17-032 and it doesn't call for the views.

PN3495

Or input of the members?‑‑‑That's right.

PN3496

I tender that, your Honour.

PN3497

VICE PRESIDENT HATCHER: Document entitled "Circular ClubsNSW FWC Decision Penalty Rates 24/02/2017" will be marked exhibit 29.

EXHIBIT #29 DOCUMENT ENTITLED "CIRCULAR CLUBSNSW DECISION PENALTY RATES 24/02/2017"

PN3498

MR DOWLING: Thank you, your Honour.

PN3499

Mr Mossman, could you please turn to annexure CM-1, which is the first of the circulars in your bundle?‑‑‑Yes.

PN3500

Do you have that?‑‑‑17-055?

PN3501

Yes. Would you like to make yourself familiar with it or are you more familiar with that one?‑‑‑I'll take the time.

PN3502

Tell me when you have finished?‑‑‑Yes.

PN3503

You will see in the first line of that circular, it says: "As advised in circular 17-033 on 23 February." Do you see that?‑‑‑I do.

PN3504

Do you want to go back to 17-033. It might just be a typographical error, but 17-033, the copy you have is dated 24 February, but, as far as you know, it is referring to the earlier one, the one we have just looked at, 17-033?‑‑‑It's referring to 17-033 but there's a difference in the date.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3505

Yes?‑‑‑But I would suspect that that's what Anthony was referring to, yes.

PN3506

Yes, sorry, I have misled you. It doesn't say that the circular is dated 23 February, it says that the Commission handed down its decision on 23 February?‑‑‑I see, yes.

PN3507

My apologies?‑‑‑I think that's right.

PN3508

You have no reason to doubt that the 17-033 being referred to is the circular we have just looked at, the most immediate one we just looked at?‑‑‑That's right.

PN3509

Can you just go back to the list for a moment?‑‑‑Mm-hm.

PN3510

As I read it, but I want you to do so, there are no circulars on the topic of the penalty rates decision in between these two, and by "these two" I mean 17-033 and 17-055. Can you just confirm that for yourself?‑‑‑Do you want me to have a look between 17-033 and 17-055?

PN3511

Yes. Now, the best you can do is read the description, which becomes the heading for each circular, as we have seen and as no doubt you are aware, so if you could do that exercise, please?‑‑‑I have read between 17-033 and 17-055.

PN3512

Having done that, is it accurate to say that there does not appear to be any circular addressing the penalty rates decision in between the circular 17-033 and the circular 17-055?‑‑‑There's no circular in this table or document that has a title which is relevant to the penalty rates decision.

PN3513

Thank you very much. Can I just ask you to turn to 17-055 again?‑‑‑Yes.

PN3514

You have read it just a moment ago?‑‑‑I have, yes.

PN3515

Are you able to point to that part in the circular that makes a request of ClubsNSW members to provide to ClubsNSW their views or their input as to what should happen next?‑‑‑No.

PN3516

There isn't such a thing, is there?‑‑‑No, there's not.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3517

It doesn't call for the views or input of members at all, does it?‑‑‑Only other than if a club requires further information on the circular to contact the members' enquiry centre. That's the only reference.

PN3518

Yes, it doesn't call for people's input as to what option might be exercised in terms of the options that were presented as part of the penalty rates decision, does it?‑‑‑That's right.

PN3519

It would not be fair to describe this circular as consultation on that issue, would it?‑‑‑I disagree.

PN3520

Perhaps we have a different understanding of "consultation". Is it fair to say that the normal process by which consultation works is prior to a decision being made, you seek someone's input so as to give them the opportunity to influence that decision; correct?‑‑‑I would say the first part of consultation is notifying people what the issue is.

PN3521

Right. And then the second part is seeking their input?‑‑‑It depends, it depends on the consultation.

PN3522

So there might be some consultation that doesn't ask for people's input? Is that how you see consultation?‑‑‑In some circumstances, there would be consultation that wouldn't necessarily seek the express input into it, yes.

PN3523

This wasn't one of those Mr Mossman, though, was it? This is one where consultation would have and should have included seeking the input of the members of ClubsNSW; correct?‑‑‑No, we are a democratically elected industrial organisation. We have a board which is democratically elected by the members, we are, as part of our rules, engaged with the task of making industrial decisions on behalf of our members, which we do. Not everything we do we go around to every club and say, "Do you or do you not agree with this?" I suppose the avenue for members, if they are dissatisfied with the approach that their industrial organisation takes, they can stand for election.

PN3524

This is a big issue; this is not just a passing issue. This is not about the Chef's Table competition in February of 2017. This is one of the biggest issues facing clubs, surely?‑‑‑Well, Chef's Table was very important to the industry.

PN3525

The Chef's Table is as important as penalty rates and the existence of a separate clubs award; is that your evidence?‑‑‑It depends on who you're talking to.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3526

I am talking to you, Mr Mossman?‑‑‑For me, in my world, no, Chef's Table is not as important as penalty rates, but that's not to say that for others probably Chef's Table is more important.

PN3527

Let's focus on the evidence of the executive manager, workplace relations. In your world, this is an important issue?‑‑‑It is.

PN3528

On this important issue, can I suggest to you that a normal part of consultation would be to seek the views of the members of the association?‑‑‑We seek the views - as I said before, in my view, it's the role of the board of a democratically appointed industrial organisation to make the decision as part of what it does. In the constitution of ClubsNSW there is a state council that is constitutionally provided for, there are 13 districts that are appointed pursuant to the constitution. Each one of those districts has a councillor and that councillor is democratically elected to represent that area, and that is the manner in which we provide our consultation and our decision-making is made.

PN3529

Mr Mossman, you have given evidence about these fliers and you have given it under the heading "Consultation with Club Members"?‑‑‑Mm.

PN3530

You say:

PN3531

Following the decision, each of the clubs industrial associations commenced the process of consulting with their members.

PN3532

You go on to say:

PN3533

This process included circulars being distributed.

PN3534

I had understood from that, and I may have misunderstood you, but I had understood from that that you were saying this process of the distribution of circulars was part of the consultation?‑‑‑It was part of the consultation, yes.

PN3535

Right. But, despite that and despite giving that evidence, you accept with me that it doesn't in any way in any place invite or seek the views of members?‑‑‑The circular does not.

PN3536

Well, that is not very effective consultation then, is it, Mr Mossman?‑‑‑I disagree. It is difficult to consult before you've told people what the issue is about.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3537

VICE PRESIDENT HATCHER: Mr Mossman, this circular is really informing members of a decision that has already been taken; is that correct?‑‑‑By Clubs Australia Industrial.

PN3538

Do I take it from one of your earlier answers that was a decision made by the board?‑‑‑Of Clubs Australia? The decision to make this application which is before your Honour was taken by the board of Clubs Australia Industrial.

PN3539

It had been taken some time before this circular was issued? I am just looking at the reference to "taken the decision" in the second-last paragraph on the first page.

PN3540

MR DOWLING: I was coming to that, your Honour.

PN3541

THE WITNESS: Yes, that's right.

PN3542

VICE PRESIDENT HATCHER: When was that decision taken by the board?‑‑‑I couldn't give you the exact date, but in April, your Honour.

PN3543

Thank you.

PN3544

MR DOWLING: So by the time this goes out, the decision has already been made?‑‑‑The decision made by CIA is recorded in that second-last paragraph that his Honour pointed out.

PN3545

By the time this circular goes out to the members, the decision as to which option should be pursued has already been made; correct?‑‑‑Yes.

PN3546

That is not, on anyone's definition, even yours, Mr Mossman, effective consultation, is it, telling people after the decision is made?‑‑‑No, it is, because - well, no, I disagree; it is.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3547

In your world, effective consultation is telling someone after they have made the decision?‑‑‑It is effective consultation because we took the view that we would continue to consult at all times up until and including the date of the hearing. You do need to bear in mind that we weren't set a direction by the Full Bench to say, "Go away for eight months and go see all your members and come back with your view", we had a direction by the Full Bench to indicate a direction which Clubs Australia Industrial would take, and indeed I think the deadline was 28 April, referred to in the circular. Pursuant to that direction that was made by the Full Bench of the Fair Work Commission, Clubs Australia Industrial made that decision which is reflected in the minute, but it was certainly by no means the case that this brings discussions with our members, councillors, state counterparts, interested parties to an end.

PN3548

VICE PRESIDENT HATCHER: Mr Dowling, are you going to take the witness to the last paragraph of the first page?

PN3549

MR DOWLING: Yes, your Honour.

PN3550

Can I take you back, though, Mr Mossman, to the third paragraph and the last sentence of it where Mr Ball says - sorry, before I do that, I should take it from your evidence earlier that because you have attached these ones, should we understand that you had some involvement in these ones and you just can't remember 033 and 032?‑‑‑I do have an actual recollection of assisting in the draft of this circular and the circular that is subsequent to it.

PN3551

All right. In the third paragraph, the last sentence, you are talking about merging the clubs award with the hospitality award and there you say:

PN3552

In this way, if approved, clubs would gain access to the penalty rates in the hospitality award, including those for public holidays, while maintaining the clauses specific to clubs, including classifications.

PN3553

?‑‑‑Yes.

PN3554

That is your aim, as part of this application, to maintain all of the clauses specific to clubs except for one - penalty rates?‑‑‑No, no.

PN3555

That is not your aim?‑‑‑No.

PN3556

Is that what the sentence says?‑‑‑The reference to "classifications", when we talk about club-specific classifications, we are talking there to what is our somewhat unique classification system for clubs managers. Hospitality goes effectively from level 1 to level 6 and caps out, ours goes on for another few levels, which specifically cover club managers at various levels and, as indicated by the Full Bench and I think as mandated by section 163 or 164 of the Act, the club managers had to be provided for, they had to come across in coverage.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3557

Sorry, you say section 164 mandates that the new merged award has to include the clubs managers?‑‑‑My understanding of the effect of that provision is that if you are covered by a modern award as at 1 January 2010, any decision the Commission makes in terms of revocation, varying an award, those people - the effect of the section is those people still must end up in an award.

PN3558

You don't have to bring with them the specific structure, you could just say, "Everyone covered by the clubs award is now covered by the hospitality award", couldn't you?‑‑‑I took that to be a reference that that classification had to come across.

PN3559

All right. Is that the advice you gave to members in your capacity as the executive manager, workplace relations for ClubsNSW?‑‑‑I did. I informed - part of the Full Bench's decision in the penalty rates case was to point out the fact that there may be club-specific provisions which are required - sorry, I will start that again - which are required for club-specific parts, and I believe I recall the Full Bench in the penalty rates case indicated that the club manager or classification that's peculiar to the clubs is one of those which could be catered for in a club-specific schedule.

PN3560

Your evidence is that it had to be?‑‑‑My evidence is the effect of the Act is that the club managers could not lose award coverage and I based on the assumption that that would include what they are classified as.

PN3561

The second-last paragraph is the one that the Vice President took you to about the decision being taken and the last paragraph - I want to deal with it in two separate parts - firstly, the second sentence of the last paragraph:

PN3562

Our feedback indicates that there is broad support for this option provided there is no disadvantage to clubs.

PN3563

I will come back to the question of feedback, but what did you mean when you wrote "provided there is no disadvantage go clubs"?‑‑‑Well, again, I think that's come from Mr Ball, but I would assume his reference would be to - - -

PN3564

That's his bit, is it?‑‑‑I couldn't say, but I think it might have been. What's meant by "no disadvantage", as I said, I assume just that, that there is no - that clubs don't end up in a worse position.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3565

Before that, you refer to the feedback: "consulted with as many clubs and stakeholders." I just want to explore two things. One, are you able to identify for the Commission whether there was any list kept by ClubsNSW of who they spoke to?‑‑‑No, not that I'm aware of, no.

PN3566

Or Clubs Australia Industrial, any list of who they spoke to?‑‑‑Not that I'm aware of, no.

PN3567

All right. Do you know when that occurred?‑‑‑When what occurred, sorry?

PN3568

The feedback that it refers to?‑‑‑When the feedback occurred?

PN3569

Yes?‑‑‑I'm not sure, no.

PN3570

That is not something you participated in; is that your evidence?‑‑‑No. Sorry, I probably didn't answer that clearly. No, it's not something I participated in directly, no.

PN3571

You can't give any evidence about that?‑‑‑No.

PN3572

All right. Can I just ask you to turn to the second page.

PN3573

VICE PRESIDENT HATCHER: Before we move on, I just want to be clear about this. It says:

PN3574

CAI has consulted with as many clubs as possible.

PN3575

Do you know anything about what was involved in that?‑‑‑What I can tell you, your Honour, is CAI, again by virtue of its constitution, has state and Northern Territory appointed delegates to the board. Those people are also the representatives of each of the state associations in each of the relevant states and territory, and it was that board, that composition of the board of CAI in their representative capacity that passed the resolution to proceed with the consolidation of the hospitality award. In relation to penalty rates particularly, I was instructed or told that the CAI position had been longstanding since the penalty rates review kicked off, I think in 2015, and there was periods of consultation around that, but, no, of course, I wasn't directly involved in those issues, I was relying upon my board at CAI.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3576

Just to be clear, between the time the penalty rates decision was handed down on 23 February 2017 and the board decision to which this circular refers it was based, did CAI consult directly with any clubs about the issue of the two options referred to in the penalty rates decision?‑‑‑Did CAI consult?

PN3577

Yes?‑‑‑Not that I'm aware of, no.

PN3578

So when it says:

PN3579

CAI has consulted with as many clubs as possible -

PN3580

your evidence is that is to mean no more than that there was a board meeting which made a decision?‑‑‑My belief of that is what that's referenced to is each of the state and territory representatives go back to get their own position in relation to what each state representative body - what position they wanted to take on the issue. They came back again after doing that process and they met as a board and passed a resolution.

PN3581

Who is the ClubsNSW representative on the CAI board?‑‑‑Mr Peter Newell.

PN3582

Where is he from?‑‑‑What club?

PN3583

Yes?‑‑‑Illawarra Leagues.

PN3584

Apart from his own club, do you know if he consulted with any other club in New South Wales between the date of the penalty rates decision and the date of the board decision about the two options in the penalty rates decision?‑‑‑I don't, your Honour, no.

PN3585

Thank you.

PN3586

MR DOWLING: Thank you, your Honour.

PN3587

In answer to his Honour's questions, we understand that that reference to consultation is a reference to the decision of the board. Are you able in your official capacity to obtain the minutes of the board in which that decision was made?‑‑‑For CAI?

PN3588

Yes?‑‑‑Yes, I am.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3589

I call for that minute, your Honour.

PN3590

VICE PRESIDENT HATCHER: I assume that is not present in court, is it?

PN3591

MR DIXON: We would need to take instructions.

PN3592

VICE PRESIDENT HATCHER: All right.

PN3593

MR DOWLING: I maintain the call.

PN3594

VICE PRESIDENT HATCHER: Are we moving on from the circular now, Mr Dowling?

PN3595

MR DOWLING: One last part of the circular. I think I was over the page and your Honour wanted to clarify Mr Mossman's evidence in respect of the end of the first page. Just one last issue, your Honour.

PN3596

Can I take you to the fourth-last paragraph on page 2. I will read it to you so we are both on the same page:

PN3597

CAI would seek to preserve our identity via the creation of a club-specific schedule that would contain the unique classification structure for clubs and, importantly, the flexible part-time provisions.

PN3598

Do you see that?‑‑‑Yes.

PN3599

Did you have a hand in writing that bit?‑‑‑I don't recall.

PN3600

Are you able to assist the Commission in terms of what is being referred to where it says "seek to preserve our identity"?‑‑‑Yes, I can.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3601

What does that mean?‑‑‑I think again that's a reference to the uniqueness of the club. There was two unique things in the original club award, modern award rather, of 2010, as far as we saw it, which were the first were the flexi part-time provisions that existed in the modern award. They were highly valued by industry, the flexi part-time provisions were a feature of the New South Wales State NAPSA. What occurred in the modern award process is that there was a period of time under the clubs - sorry, pardon me, one step back. Clubs had that flexi part-time structure in its award and hospitality didn't and, as far as I'm aware, I don't think any other like award had the flexi part-time provisions. We had a period of time in the modern award review where we could still utilise a form of flexi part-time. That expired on 1 January 2015, I think, although there was some grandfathering for those who were on those existing arrangements.

PN3602

That concern, I would assume from Mr Ball, would be to regain the flexi part-time provisions, but I understand at that stage, when these were being sent out, the flexi part-time case had just been handed down, I think, but, in any event, the flexi part-time provisions ended up going back into the clubs award, but they also went into the hospitality award as well and we saw that as a significant narrowing of the clubs award and the hospitality award, that now we couldn't say the clubs award had any particular uniqueness about it because hotels were - not just hotels, not limited to hotels - the hospitality industry award now had that provision.

PN3603

The other reference is again in relation to that club-specific - when we say "club-specific schedule", we had a look at it, levels 1 to 6 in the hospitality award and levels 1 to 6 in the clubs award are effectively almost the same, which was a point again made to us by the Full Bench of the Fair Work Commission in the penalty rates case. It's those classifications that then go on which are the unique ones for clubs, which are our club managers from level 7 to 13, I think it is.

PN3604

MR DOWLING: As I read the sentence, Mr Mossman, these are two of the ways that will preserve the identity. What I am asking you to answer as best as you are able what is the identity that is being referred to? What are we preserving via the use of those two things?‑‑‑Just that. For example, the hospitality industry award has a casino schedule that catered for classifications which have particular nuances to the casino industry. We saw ourselves in the same position. There are particular classifications - again I'm referring to club managers - which are a nuance to the club industry and they should be preserved.

PN3605

The other thing that we were very keen on was the flexi part-time provisions, but, of course, as a result of the full Bench decision, that became a non-issue to us because they were inserted into the hospitality award anyway.

PN3606

VICE PRESIDENT HATCHER: Have we finished with the circular?

PN3607

MR DOWLING: Yes, your Honour.

PN3608

VICE PRESIDENT HATCHER: Is that a convenient time for the luncheon adjournment?

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3609

MR DOWLING: Yes, your Honour.

PN3610

VICE PRESIDENT HATCHER: All right, we will now adjourn and resume at 2 pm.

<THE WITNESS WITHDREW [1.12 PM]

LUNCHEON ADJOURNMENT [1.12 PM]

RESUMED [2.01 PM]

<CHRIS LAWRENCE MOSSMAN, RECALLED [2.01 PM]

CROSS-EXAMINATION BY MR DOWLING, CONTINUING [2.01 PM]

PN3611

MR DOWLING: Mr Mossman, immediately before the luncheon adjournment I had asked you some questions about the fourth last paragraph in circular 17‑055. Do you recall those questions?‑‑‑I do.

PN3612

You have given some evidence in your statement about 17‑055 and that evidence includes some evidence that some concerns were raised after the circular. Do you recall giving that evidence?‑‑‑In my statement, yes.

PN3613

Yes. All right. Again, you were asked to produce some documents - - -?‑‑‑Yes.

PN3614

- - - in respect of those complaints. Is that right?‑‑‑(No audible reply)

PN3615

Can I show you a letter, please?‑‑‑Thank you.

PN3616

Do you have there a letter with a heading "Kingscliff Beach Bowls Club", 6 June 2017, addressed to Mr Anthony Ball?‑‑‑I do.

PN3617

Have you seen that letter before?‑‑‑Could I just take a minute to - - -

PN3618

Certainly. Let me know when you're finished, Mr Mossman?‑‑‑I will. Yes.

PN3619

I asked you whether you had seen that letter before. Have you?‑‑‑I'm not sure if you asked me that, but, yes, I have seen that letter before.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3620

All right. Did it come to your attention in June 2017 on or about the date it was sent to Mr Ball?‑‑‑I'm not sure.

PN3621

But it has come to your attention sometime after 6 June. Is that right?‑‑‑Yes.

PN3622

All right. Now, it makes a number of allegations. I think I can say it probably divides them into four; the first in the third paragraph - - -?‑‑‑Sorry, the - - -

PN3623

Third paragraph, that:

PN3624

The award is unique to our industry and should not be traded away.

PN3625

Is that something that Mr Ball discussed with you after receiving Mr Kelly's letter?‑‑‑He did, because he asked me to assist him in his written response back to Mr Kelly.

PN3626

All right. Did he provide a written response to Mr Kelly?‑‑‑I believe he did, yes.

PN3627

I wonder if you could produce that for us.

PN3628

MR DIXON: If it please the Commission, I produce a document under heading "ClubsNSW" dated Friday, 11 August 2017, addressed to Mr Phil Kelly, general manager Kingscliff Beach Bowls Club. It appears to be under the hand of Mr Anthony Ball, chief executive officer.

PN3629

VICE PRESIDENT HATCHER: Have you seen this, Mr Dowling?

PN3630

MR DOWLING: No, I haven't.

PN3631

MR GOTTING: Your Honour, whilst Mr Dowling is looking at that document, there was a question raised by your Honour about MFI 1 and its authenticity. I'm instructed that a document of that kind is not available generally, but insofar as it lists all the circulars that were issued in the relevant time frame, that list is accurate.

PN3632

VICE PRESIDENT HATCHER: Does that dispose of the objection to the tender?

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3633

MR GOTTING: Yes, it does.

PN3634

VICE PRESIDENT HATCHER: All right. The document entitled "2017 circular index ClubsNSW" will be marked exhibit 30.

EXHIBIT #30 2017 CIRCULAR INDEX CLUBSNSW

PN3635

VICE PRESIDENT HATCHER: Do you want to tender that document, Mr Dowling?

PN3636

MR DOWLING: Yes, your Honour.

PN3637

VICE PRESIDENT HATCHER: Also the letter to which it - - -

PN3638

MR DOWLING: Yes, your Honour. Perhaps if the witness might - - -

PN3639

VICE PRESIDENT HATCHER: I just might mark it first.

PN3640

MR DOWLING: Sorry, your Honour.

PN3641

VICE PRESIDENT HATCHER: Then we can deal with it. The letter dated 6 June 2017 from Kingscliff Beach Bowls Club will be marked exhibit 31.

EXHIBIT #31 LETTER FROM KINGSCLIFF BEACH BOWLS CLUB DATED 06/06/2017

PN3642

VICE PRESIDENT HATCHER: The ClubsNSW response letter, dated 11 August 2017, will be marked exhibit 32.

EXHIBIT #32 CLUBSNSW RESPONSE LETTER DATED 11/08/2017

PN3643

VICE PRESIDENT HATCHER: You want the witness to be shown exhibit 32?

PN3644

MR DOWLING: Just to verify that this is the response - I take it from what Mr Dixon said, they are his instructions, but - - -

PN3645

VICE PRESIDENT HATCHER: Yes, all right.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3646

MR DOWLING: You described assisting Mr Ball preparing a response. Could you just confirm for the Commission whether that is the response you assisted Mr Ball to prepare?‑‑‑Can I just read it?

PN3647

Certainly, if you need to read it to do that?‑‑‑I don't think I saw the final draft that went out. I had my input - I don't think Anthony showed me this final draft.

PN3648

All right. Could you just hand it back to me for the moment. There is just one query. In the second paragraph - I appreciate you don't have it in front of you, but having just read it - Mr Ball says, "You are not alone in questioning this course of action." Are you able to assist the Commission in explaining what Mr Ball meant when he described Mr Kelly as not being alone in questioning this course?‑‑‑I'm not sure, no.

PN3649

Thank you. I shall return that to your associate, your Honour, it being the only copy.

PN3650

VICE PRESIDENT HATCHER: Do you want the witness - - -

PN3651

MR DOWLING: No, I'm sorry, I don't need the witness to have it any longer.

PN3652

Can I take you back to your statement, Mr Mossman, and now to the next of the circulars that you provide from ClubsNSW which is circular 17‑066?‑‑‑Sorry, say that number - - -

PN3653

It's dated - - -?‑‑‑Sorry, I have it, yes. Pardon me.

PN3654

So it's your annexure CM2. It has a circular number 17‑066?‑‑‑Yes. I have that now, yes.

PN3655

All right. The first thing it does is refer to the earlier circular 17‑055. I'm sorry to do this to you, but if you could have a quick look at the list that you've got next to you, can you just confirm for the Commission that there were no circulars dealing with this topic in between 17‑055 and 17‑066?‑‑‑There is nothing in this document that shows a circular relevant to - - -

PN3656

As far as you know, this is the next circular on the topic. Correct?‑‑‑As far as I know, yes.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3657

Have you read that circular? Do you need to read it again?‑‑‑I will quickly refresh.

PN3658

Okay?‑‑‑Yes.

PN3659

Is it accurate to describe that circular, consistent with 17‑055, as one that does not call for the view - or in any express way the view or input of the members of ClubsNSW?‑‑‑The only reference is the last paragraph; if clubs require any further information, to contact the MEC.

PN3660

That, I take it from what we've seen already - and you might know - is the last sentence that appears at the end of every circular no matter what the topic?‑‑‑Of the circulars you've just taken me to?

PN3661

Yes?‑‑‑Yes.

PN3662

You give some evidence in your statement about what it is that publications of ClubsNSW or other organisations might do in the event that this application is successful. Do you recall that evidence?‑‑‑I do.

PN3663

Should we understand that from your position in your role you have editorial control over what goes out in the ClubsNSW publications?‑‑‑Do I have editorial control? Me personally?

PN3664

Yes?‑‑‑No, I don't.

PN3665

Do you have any editorial control over what goes out in any of the other state bodies and their publications or Internet sites?‑‑‑No.

PN3666

So your evidence about that is just what you anticipate might happen rather than what you are able to control?‑‑‑I have never - the magazine knock back an article yet, so I'm confident that would be the case.

PN3667

That's assuming you would write it, of course, but in terms of what they might write - - -?‑‑‑The editor?

PN3668

Yes?‑‑‑Pardon me. I misunderstood your question. There is no editor's writing piece in the magazine.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3669

No, I think I've made it more confusing for you. Those state bodies ultimately decide what goes in their state publication?‑‑‑Yes.

PN3670

They might put something in by you, but they might also put something in themselves?‑‑‑They may well.

PN3671

You have no control over that?‑‑‑No.

PN3672

Now, Mr Geoff Stewart gave some evidence to which you responded about professional golfers employed by golf clubs. Do you recall responding to that evidence?‑‑‑I do.

PN3673

I just want to give you the opportunity out of fairness and tell you that Mr Stewart, in giving that evidence, consulted with his membership list. Did you consult a list of professional golfers employed in New South Wales when you made your statement?‑‑‑No.

PN3674

Do you have such a list?‑‑‑Of professional golfers?

PN3675

Yes?‑‑‑No.

PN3676

Have you seen such a list?‑‑‑No.

PN3677

Thank you. Now, you give some evidence about what you describe as the financial distress about bowling and golf clubs. Should I understand from that evidence that it is by reference to the 2015 club census?‑‑‑That's part of it.

PN3678

Dealing with that part, is it also correct that you understand the criteria used in terms of an assessment of financial distress is EBITDA?‑‑‑I believe that's what they used, KPMG.

PN3679

Accordingly, if we're dealing with a golf club or a bowling club, it does not take into account their asset position. Is that correct?‑‑‑I'm not sure.

PN3680

You're not sure how EBITDA works or you're not sure whether the measure used by KPMG in some other way takes account of their asset?‑‑‑No, the KPMG use EBITDA.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3681

Okay. What I'm suggesting to you, if you're measuring viability or distress solely on the basis of EBITDA, you are not taking into account their asset position - - -?‑‑‑Earnings before interest - yes, that's correct.

PN3682

All right. Thank you. I take it, given your role, you are one of those responsible for deciding on the commencement of this application. Is that right?‑‑‑It's the board's decision, of CAI, and I sit on that board as an executive director, yes.

PN3683

As a member of that board, you participated in the decision to commence this application on or about 28 July of last year. Correct?‑‑‑That's so.

PN3684

As I understand your evidence, part of the reason for that is the hospitality industry had obtained a reduction in their penalty rates as a result of the penalty rates decision?‑‑‑Yes.

PN3685

The clubs industry had not obtained a reduction in the penalty rates as a result of the penalty rates decision. Correct?‑‑‑Yes.

PN3686

What clubs wanted to do, consistent with 17‑055, was be able to access the reduced penalty rates in the Hospitality Award. Correct?‑‑‑That was part of the reason, yes.

PN3687

VICE PRESIDENT HATCHER: Was there any other part of the reason?‑‑‑Yes, there was, your Honour.

PN3688

What was that?‑‑‑The penalty rate issue was significant in CAI's decision‑making, but by that stage what was also significant was the view of CAI that effectively the regulation that referred to the award and that terms had narrowed significantly. What I mean by that, your Honour, is it was identified that one of the key, big strategic pieces of the Clubs Award when compared it to the Hospitality Award was that flexi part‑time provision. The flexi part‑time case was this insertion on the Hospitality Award. It significantly narrowed the gap in between the two, so we took the view that given what has happened in the industry, the importance of hospitality and the fact that we've got like service offering, like workers, like workforce, like duties, like jobs, that we couldn't see a logical reason going forward why someone like a bartender gets paid a different rate of pay in that building as opposed to that particular building. Those were all in the consideration of a CAI. We didn't want to see - - -

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3689

Are you suggesting the rates of pay are different?‑‑‑I meant the penalty rates, your Honour. The rates of pay in level 1 to 6 are the same.

PN3690

Once the part‑time casual decision made down with the part‑time provisions, the only change that is being accessed by way of your application is the lower penalty rates?‑‑‑Yes.

PN3691

Everything else you would have either whether you stayed as you were or whether you went over to hospitality?‑‑‑Sorry, your Honour, I missed that.

PN3692

Everything else you would keep if you obviously stayed within your own award?‑‑‑Everything in our own award? Sorry, I'm not sure I understand the question.

PN3693

You identified the only substantial difference between the two awards is weekend and public holiday penalty rates?‑‑‑Yes.

PN3694

That is the only thing, from your perspective, clubs would gain from going into the Hospitality Award?‑‑‑There are other differences which we don't see as overly significant. For example, you know, there are nuances in the Clubs Award around bingo callers and fitness instructors, but our view of a - - -

PN3695

What I'm asking is the only thing from your members' perspective that you would gain is the lower weekend and public holiday penalty rates?‑‑‑We would gain the lower weekend and public holiday penalty rates. In addition, I think CAI with an eye to the future was concerned to ensure that the difference between conditions for pubs, hotels, casinos, et cetera, did not diverge to what clubs have to do.

PN3696

In respect of what?‑‑‑In respect of things like penalty rates, public holidays, et cetera. When we made the decision we have on one side pubs, casinos, et cetera, about to get the partial reduction in rates. As your Honour would no doubt be aware, there is a transitioning for that so the rates get further away as years go by to what the clubs do, so we wanted to be in a position where the Molong Bowls Club is not paying more for its labour than the Crown Casino.

PN3697

In respect to penalty rates?‑‑‑Yes.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3698

I'm struggling to understand whether you have identified any reason for the application other than access to the lower penalty rates on weekends and public holidays?‑‑‑The other reason that we took is - we asked ourselves the question effectively what is the difference between someone pouring a beer in a club premises to what they're doing in a hospitality venue. We couldn't identify any logical basis. We took on board the comments that were made by the Full Bench in the Fair Work Commission in the February decision in respect to the commonality of the tasks, the workforce, the service offering and what's being involved. I suspect - although I'd only been with CAI for a couple of months at that stage - the issue wasn't focused on that commonality until the Full Bench brought that issue to its attention in the February decision.

PN3699

Has CAI considered whether there is any difference between managerial roles in hospitality generally as distinct from clubs?‑‑‑In managerial roles?

PN3700

Yes?‑‑‑The only identified - the actual work being performed, in our view - the work being performed is very, very, very similar. The key difference which is enshrined in the award is the concept of training and qualification that we see more often with club managers.

PN3701

Is there a reason why if there was one combined award there could not be common conditions for managers in hotels, casinos and clubs?‑‑‑Sorry, your Honour?

PN3702

Given the commonality of work, is there any reason why in a combined award there could not be common conditions for managers whether they work in casinos, hotels or clubs?‑‑‑In our view the club managers are different by virtue of that historical level of classification and they're formalised in the award; about a formalised training and progression system. We have also undertook - the CMAA had expressed concerns about the loss of club managers and club classifications. We undertook to them that we weren't seeking to alter the status quo for them.

PN3703

That's not really what I'm asking you. Obviously the awards currently treat managers differently. I'm trying to understand whether there is any difference in their work - - -?‑‑‑Yes. In terms of the work, no.

PN3704

Let me finish?‑‑‑Sorry.

PN3705

In their work, training, qualifications, that would justify any distinctive treatment as to their pay rates and conditions of employment?‑‑‑As far as the work they perform, I can't identify any discrepancies between a casino, pub or - - -

PN3706

So Clubs Australia Industrial would be content for there to be developed common conditions in an amalgamated award for managers across all sectors of the hospitality industry. Is that the position?‑‑‑Our position as stated is that it is - we do want to preserve the classification for clubs managers in a specific schedule to the Clubs Award and the reason being for that is effectively results of our discussion with the relevant union, the CMAA.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3707

And if that isn't the outcome?‑‑‑If that isn't the outcome, as far as the industry is concerned - well, as far as CAI is concerned, then that's a call for the Fair Work Commission. If it's appropriate in the Fair Work Commission view to "commonalise", if that's a word, the conditions for managers, then we would have no opposition to that.

PN3708

All right. Thank you.

PN3709

MR DOWLING: But, see, the position you have just described to the Vice President is not just the agreement you reached with the CMAA. That is the position you put to your members, Mr Mossman?‑‑‑Yes.

PN3710

You said to your members, "We would seek to preserve our identity by the creation of a club‑specific schedule", so what you're telling all your members is, "That's what we're going to go out and get for you. We're going to get a merged award that has a club‑specific schedule." Are you now saying, "Well, if we just end up with exactly the same terms as the hospitality sector and a coverage clause that says it covers everyone, including clubs, well, that's on the Commission"?‑‑‑Well, our application as it stands and as we still press it is for a schedule which contains those classifications for club managers.

PN3711

Did you tell your members or did you tell the board in your capacity as executive manager workplace relations that it is open to the Commission to make an award - as part of your application - in terms different to the award that you propose?‑‑‑Yes, I did.

PN3712

So you told them, "We're going to propose this club‑specific schedule, but you have to know, members, that what you might end up with is just a Hospitality Award that covers all of your sector"?‑‑‑Did I tell the board, sorry, or the - - -

PN3713

Did you tell the board firstly, yes?‑‑‑Yes.

PN3714

Did you tell all your members?‑‑‑Did I tell all the members, no.

PN3715

Did you send a circular, like the circulars we have been looking at, saying, "We're going to try and preserve it, but you need to know one of the potential outcomes is we might lose it all and just end up in the Hospitality Award." Is that something you did?‑‑‑We didn't, because the CMA had raised that. We were told the CMA had been raising it with its members that that was a possibility.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3716

But what about your members, Mr Mossman? Did you tell your members? Let's leave Mr Cooper's CMA members to one side - - -?‑‑‑I did not, no.

PN3717

Did you think that was negligent?‑‑‑No.

PN3718

Don't you think you should be telling them, "We're trying to get this one, but you better know you might lose them all. These things we're telling you we're trying to retain, you might lose them all and you might just get a coverage clause that is just the hospitality sector." Is that something you think you should be telling your members?‑‑‑Sorry, could you just repeat that.

PN3719

I'm asking you whether you think it's something that you should be telling your members; that a potential outcome is that they will lose all the club‑specific provisions that are currently in your proposal and just end up with the Hospitality Award?‑‑‑Should we have told the members?

PN3720

Yes?‑‑‑No. We haven't said that to the members in those circulars, no.

PN3721

I understand you have not. What I'm suggesting to you is whether now, pondering it in the witness box, you think it would be a good idea to do so?‑‑‑No, I don't think so. I think we've made it clear that we're pursuing an application that we are pursuing and there is a draft of what we hope for. I think through those various sources like the CMA - I think it's quite clear to industry that what we end up with might be something very different to our draft.

PN3722

Your members understand that even though that's a draft, they may get none of it? They understand that?‑‑‑I think so. I think they do.

PN3723

Despite you not having told them?‑‑‑That's correct.

PN3724

You think they understand it?‑‑‑Yes.

PN3725

Okay. Now, I just want to go back one step. In answer to the Vice President's questions, you clarified really the - I don't want to misstate your evidence, but you clarified the term that is different from those that are coming over is the penalty rates. I think you said you wanted to reduce the competition or the competitive advantage - use your own words, please - that's created by the hospitality sector getting a lower penalty rate and you being left with your existing penalty rate. Did I understand your evidence correctly?‑‑‑We were concerned about the relative labour costs that the different penalty rates imposed, yes.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3726

Having that concern, did you go to the trouble of trying to assess or quantify in any way the effect of that competitive advantage, as you call it, given to the hotel sector or the hospitality sector as a result of their reduced penalty rates?‑‑‑What do you mean by that, did we quantify?

PN3727

You say they have got some advantage now because their penalty rates are lower and you're worried about that and that that gives them a competitive advantage is one of the things you are worried about?‑‑‑Mm.

PN3728

Did you try and quantify what that competitive advantage was, what it really meant for you?‑‑‑In terms of money?

PN3729

In terms of money or any other consideration. Did you perform some analysis of what it's worth?‑‑‑We didn't get our own individual, it was - we relied on what the ACTU said, that it was a $77 per week per employee and used that as the figure.

PN3730

So in assessing the competitive advantage that ClubsNSW, that employer association, it relied upon the figures published by the ACTU?‑‑‑Yes, we looked at - labour costs was the issue that we - I think we just look at that obviously, if there's a bar tender in a pub, they will get paid this particular penalty rate, which will end up being 25 per cent lower than the clubs award if left unchanged for both Saturday, Sunday and public holiday. In terms of what that might work out in the quantum, there was a public figure released there from the union side that that will work out to be a $77 on average discrepancy for the employers that were affected, which were obviously the hospitality employers. So, we just worked back from that, we've got a certain percentage of full-time, part-time and casual labourers and in terms of adding up what competitive advantage that might deliver a casino or the hospitality, we simply accepted that figure of $77 per week per employee to the permanent aspects - the permanent engagement of the industry.

PN3731

But that doesn't tell you in any way, of course - that, at best, tells you the reduced labour cost of the hotel?‑‑‑Mm.

PN3732

It doesn't tell you whether it's more likely they are going to get custom that was formerly custom of a club or more likely they might be able to offer something. Did you perform any assessment what this really meant? Was there any expert engaged to form an assessment of what's going to be the effect on clubs as a result of hospitality getting a reduction in penalty rates?‑‑‑You mean by that the non-monetary benefits? Is that what you're referring to?

PN3733

I am talking about any benefits?‑‑‑Okay, sure.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3734

Did you have anyone perform an analysis rather than - let's leave aside just accepting what it is the ACTU said?‑‑‑Yes.

PN3735

But if that's what ClubsNSW do, that's fine, but let's leave their publication to one side?‑‑‑Yes.

PN3736

Did you ask anyone to perform an analysis of the competitive advantage that you said hotels were going to get as a result of them getting a penalty rate decrease that you didn't?‑‑‑Yes, not externally. What they did do, as you know, when it came to Clubs Australia Industrial in December 2016, once the penalty rate case was released, by that stage, Clubs Australia Industrial had been on the record for years as to what it wanted to achieve in the penalty rate review in terms of the penalty rates for the club industry. I obviously didn't know at that stage how that came about or how that position was reached, so I asked the relevant people on the CAI board, ClubsNSW, et cetera, and what I was told is that there was lots of consultation back then, and the relevant time was, I think, 2015, but they were informed that there was strong support in the industry for concepts like offering extended trading hours, engaging more staff, using more permanents rather than casuals, increasing the service offering, all those sorts of things. So, I took my lead, took my direction from the Clubs Australia Industrial and ClubsNSW on what they told me had occurred to reach their original position back in 2015.

PN3737

Just so I am clear, what you have just described is what you say is the analysis performed to assess the competitive advantage given to the hospitality industry; is that right?‑‑‑That's what was told to me in relation to what clubs would do in the event.

PN3738

No, no, what I am asking you is the description you gave, that's what you call an analysis to assess the competitive advantage given to the hospitality sector as the result of their reduced penalty rates? Is that what that is?‑‑‑No, the competitive advantage, as I said, we just looked at that purely in terms of a like for like, a bar tender working permanently on a Sunday in a bar in a pub compared to one that is working in a club will reach a position in time where that person who is in a pub is 25 per cent less cost than that to a club.

PN3739

How much time had passed, do you recall, between the reduction in penalty rates in the hospitality sector and the filing of your application?‑‑‑1 July was, of course, as it must be well known in this room, when the first reduction in the hospitality rates took effect. We filed our application, I think, on about 28 July or the end of July.

PN3740

Four weeks later?‑‑‑Yes.

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3741

It's not a lot of time to make any assessment of what was likely to happen as the result of the impact of the reduction in penalty rates?‑‑‑Well, it was, because we saw what the transitional provisions were proposed by the Fair Work Commission in relation to the transitioning of the rates, so we knew with a degree of certainty what the rates of pay for penalty rates would be in the hospitality award once they had changed.

PN3742

No, no, listen carefully to my question, Mr Mossman. You knew what the rates were going to be. I am asking whether you knew the effect of the reduction in rates. I am suggesting to you that, at most, your assessment of the effect had to be speculative because only four weeks had passed since the first reduction. That's a fair assessment, isn't it?‑‑‑No, because, as I said, when I was coming up to speed, as it were, in relation to the matter in the case that Clubs Australia Industrial had been running for some years in the penalty rate case, one of the questions I asked of my board is, "What would be the effect of clubs or what would they do in the event that they achieved the reductions that they were hoping to achieve?"

PN3743

Yes, that's a different question, though, isn't it, Mr Mossman, what clubs would have done had they achieved a reduction? We are now talking about what it was that hotels might have done when they got their reduction. That is not something you knew about?‑‑‑Other than what I read in the penalty rates decision in February. There was a lot of extensive evidence in that, of course, and a detailed consideration of the Full Bench. There was evidence, as you know, by the AHI and I read what each of those witnesses had to say, so that's what I based what hotels would do and the accepted findings that were made in the penalty rates case by the Full Bench.

PN3744

Have we now got to understand what it was your assessment was in terms of the likely impact? Have you said as much as you want to about the assessment carried out by CAI as to how the competitive advantage might be quantified before it, four weeks later, commenced its application?‑‑‑Yes, we would end up in a position where on Sundays and public holidays, we would be paying 25 per cent more than pubs and casinos.

PN3745

Nothing further, your Honour.

PN3746

VICE PRESIDENT HATCHER: Any re-examination, Mr Dixon?

*** CHRIS LAWRENCE MOSSMAN XXN MR DOWLING

PN3747

MR DIXON: There is some re-examination. I am not in a position to produce the board minute at the moment that my friend called for. We are obviously in the Commission's hands about this and I am not sure whether it is preferable for Mr Mossman to stand down and we can produce the document and he can be brought back if necessary and then be examined.

PN3748

VICE PRESIDENT HATCHER: I think we will just finish his evidence and if there's an application for him to be called back to give further evidence, we will deal with that when it happens.

PN3749

MR DIXON: If your Honour pleases.

PN3750

MR ARNOLD: Your Honour, I would like the opportunity to cross-examine Mr Mossman.

PN3751

VICE PRESIDENT HATCHER: I am sorry, Mr Arnold, yes. We just might need to make sure we can hear you more clearly. Is it easier if you stay seated, Mr Arnold, so you can stay close to that microphone?

PN3752

MR ARNOLD: Is that better?

PN3753

VICE PRESIDENT HATCHER: Are you able to adjust one of the microphones and make sure it is as close as possible to you? You can move it if you can.

PN3754

MR ARNOLD: Thank you.

PN3755

VICE PRESIDENT HATCHER: All right.

CROSS-EXAMINATION BY MR ARNOLD [2.39 PM]

PN3756

MR ARNOLD: Mr Mossman, it's Greg Arnold speaking. I am representing the RSL and Services Clubs Association of Queensland. Can I take you to - I am sorry, I'm getting some feedback through here.

PN3757

VICE PRESIDENT HATCHER: We are not hearing it, but we will just try to fix that. Just go on, unless it becomes intolerable, Mr Arnold.

PN3758

MR ARNOLD: Mr Mossman, can I take you to your witness statement of 8 June. We understand from your evidence that you commenced your role in December 2016; is that correct?‑‑‑Yes.

*** CHRIS LAWRENCE MOSSMAN XXN MR ARNOLD

PN3759

Can I ask you, are you aware that the club industry in Australia in 2009 and 2010 had fought long and hard to maintain a separate and distinct club industry award through the award modernisation process? Did you know that through the history?‑‑‑I can't comment whether they fought long or hard of whether there was any fight at all. I know there was an application for a separate award. I don't know if there was a fight or whether that fight was long and hard.

PN3760

Are you aware that the making of the distinct and separate award in the club industry in 2009 was at the consent and support of all parties in the industry at that point in time?‑‑‑Was at the consent? Yes, I believe I've been told that it was by consent, yes.

PN3761

By all parties in that industry sector; are you aware of that?‑‑‑No, just the CAI, United Voice and CMA, I think, were the parties that I knew of that consented to it.

PN3762

What party is the CMA; do you understand that? Can you elaborate on what the CMA is?‑‑‑The CMA is an industrial organisation which represents the industrial interests of club managers.

PN3763

Okay. At paragraph 6, you say:

PN3764

When I commenced in my roles, CAI maintained its position for a reduction in penalty rates payable under the clubs award. As far as I'm aware, CAI has not altered its position for a reduction in penalty rates since 1 January 2014.

PN3765

Is that correct?‑‑‑That's what I've said in the statement, yes.

PN3766

Is that maintained or is that position maintained even at the expense of the clubs award?‑‑‑Sorry, could you just put that to me again?

PN3767

Is that position, the position - you say:

PN3768

As far as I'm aware, CAI has not altered its position for a reduction in penalty rates since 1 January 2014.

PN3769

?‑‑‑Mm.

*** CHRIS LAWRENCE MOSSMAN XXN MR ARNOLD

PN3770

My question is, is that position maintained even at the expense of the club industry award?‑‑‑We don't see it as an expense to the club industry award. Club Australia Industrial has effectively considered those comments about commonality of work, the nature of the workforce, the nature of the work type, the nature of the work duties and the nature of the services being performed by clubs and others in the hospitality and the high degree of commonality between the awards. We accept the Full Bench's comments in relation to that, that there are strong interests in the commonality of what a bar tender might do in a casino as to what they might do in a pub as what they might do in a club. It makes good sense to us, the reasoning of the Full Bench makes good sense to us, so we don't see it as at the expense of the clubs award, we don't see the clubs award going, as it were, as an awful or bad thing.

PN3771

In paragraph 7, you say:

PN3772

Soon after I commenced in my roles, I met with representatives of members of ClubsNSW, including directors, chief executive officers, senior managers and human resources managers from across all regions of New South Wales.

PN3773

Is that right?‑‑‑Yes.

PN3774

When you talk about "Soon after I commenced", what period are we talking about there? Is that the period between when you commenced in December 2016 and 28 April when you made the decision to make this application?‑‑‑Obviously it relates to the period after the penalty rate decision was handed down up until the making of the application and beyond the date of that. We haven't limited consultation just to that period of February to July. We see consultation as ongoing at all stages, so we have continued to talk, discuss, take views from February until today.

PN3775

You also say at paragraph 7:

PN3776

I also met with representatives of each of the state and territory clubs industrial associations, including Clubs Queensland, ClubsACT, Community Clubs Victoria, Clubs South Australia, ClubsWA and Clubs Northern Territory.

PN3777

Is that right?‑‑‑Yes.

PN3778

Did you meet with any of the RSL and Services Clubs Association in relation to this application?‑‑‑I did have a discussion with a representative of RSL Victoria.

*** CHRIS LAWRENCE MOSSMAN XXN MR ARNOLD

PN3779

RSL Victoria?‑‑‑Yes, they contacted me, in fact, yes.

PN3780

What about RSL Queensland and RSL New South Wales?‑‑‑RSL clubs are represented in ClubsNSW, so when I say "represented", 94 per cent of clubs in New South Wales are members of - pardon me, 94 per cent of clubs in New South Wales are members of ClubsNSW. That includes the RSL clubs and - pardon me - I just missed that last bit of your question, sorry.

PN3781

What about RSL and Services Clubs Association of Queensland?‑‑‑I did not speak to them, no.

PN3782

You didn't meet with them?‑‑‑No.

PN3783

No?‑‑‑I do believe the CEO, Penny Wilson, of RSL may have had discussions with Anthony Ball, the CEO, but I am not aware of the contents of those.

PN3784

You are not aware of that? You spoke before in cross-examination from Mr Dowling about CAI and the decision-making process that was undertaken and you indicated that there are representatives from each of the states and territories on that CAI board which made that decision; is that correct?‑‑‑Yes.

PN3785

Who is the board member representing Queensland?‑‑‑That is Don Seccombe.

PN3786

Don Seccombe?‑‑‑Yes.

PN3787

Is he the president of Clubs Queensland?‑‑‑He is.

PN3788

You also say:

PN3789

During my meetings, the representatives raised a variety of issues but no representative raised me with a concern of the position of CAI in seeking a reduction in penalty rates under the clubs award.

PN3790

Is that correct?‑‑‑Obviously there's a typo there, there should be a "with" between "raised" and "me".

PN3791

Yes, notwithstanding the typo?‑‑‑Sorry, what was the question again?

*** CHRIS LAWRENCE MOSSMAN XXN MR ARNOLD

PN3792

Notwithstanding the typo, you say that "no representative raised with me a concern of the position of CAI." Is that right?‑‑‑That's so.

PN3793

Was that still the case up until the filing of the application in July?‑‑‑The representatives from the state associations?

PN3794

Yes?‑‑‑That's so.

PN3795

Has anyone ever indicated to you that there are a number of clubs who are not happy about the application that is before the Commission currently?‑‑‑Sorry, could you just repeat that question, I just didn't get it? Has anyone raised a question?

PN3796

Has anyone raised with you the issue that is currently before - sorry, have they raised concerns about the application that is currently before the Commission?‑‑‑They have. I speak to those three clubs that I referred to in my statement and that other club that is referred to that was passed on to me through the other executive manager through the regional council meetings that we conduct and those are the ones I have referred to in my statement, yes.

PN3797

At paragraph 12, you say:

PN3798

After the issue of the circular -

PN3799

which is 17-055 -

PN3800

only three representatives of any clubs raised a concern regarding the proposed merged award or reduction of penalty rates for club employees under the proposed merged award.

PN3801

Is that correct?‑‑‑Yes, I am speaking there with me, yes.

PN3802

Who were those three?‑‑‑I think I've listed them in the statement, sorry. Bear with me. One is Kingscliff, which is in evidence, as you would have heard; the other is Chester Hill. Just bear with me, I will just check on the name in the statement. In any event, the one that I referred to in the west was Wenty Leagues. Chester Hill RSL, I think, is the third.

*** CHRIS LAWRENCE MOSSMAN XXN MR ARNOLD

PN3803

Kingscliff Beach Bowls Club, Mr Kelly?‑‑‑Mr Kelly.

PN3804

Wenty Leagues?‑‑‑Sorry, sorry, Kingscliff raised that with the FD. There was one that I've referred to in my statement from the regional meeting I attended in Mullumbimby where there was a club manager, one club manager there who raised his concerns with the application, but I'm afraid I don't recall his club.

PN3805

And that is what you refer to in paragraph 17; is that right?‑‑‑Just let me turn to it. Yes, it's a Western Sydney club, Wenty Leagues. Mullumbimby is the one I've just described. Sorry, yes, I had correspondence - as far as correspondence went, we had the Kingscliff correspondence there with Anthony Ball, I had - again I think it's Chester Hill RSL, and Port Macquarie Golf Club.

PN3806

At paragraph 17, it says:

PN3807

After the issue of the third circular, two further representative -

PN3808

I think that should be "representatives" plural -

PN3809

of a club, the first from Western Sydney, the second from another club in Mullumbimby, raised with me an objection.

PN3810

From what I understand from paragraphs 12 and 17, are there five clubs or representatives from clubs that have raised an objection to this application?‑‑‑I'm speaking here with the ones that were raised with me and, as I said, the ones that I dealt with - the only ones I dealt with were the Chester Hill RSL - that was by correspondence - and when I say "Chester Hill RSL was a concern", all they said was they just informed us that it was their intention for their club to keep the penalty rates the same. They didn't express any concern about the revocation of the clubs award into the hospitality award; it was just purely a recital from them that they didn't intend to change anything in the penalty rates if the application was successful.

PN3811

The Western Sydney club I refer to was Wenty Leagues. I went out and met with the president of Wenty Leagues and the CEO, as did Anthony Ball, to explain our position and after we had that meeting, they withdrew their objection. Then I had the club in Mullumbimby and, I apologise, I don't recall the club. It wasn't from Mullumbimby, it was from somewhere in the region, and I think that's it.

*** CHRIS LAWRENCE MOSSMAN XXN MR ARNOLD

PN3812

Mullumbimby, that was the Far North Coast regional meeting on 10 July 2017; is that right?‑‑‑I think it was the AGM actually, the Far North Coast AGM on 2 July - sorry, pardon me, 20 July.

PN3813

Isn't it the case that there were a number of managers in that meeting, the regional meeting of the Far North Coast on 20 July, that raised an objection with you or raised concerns with you about the application?‑‑‑Just one.

PN3814

Who was that?‑‑‑As I said, I don't recall the gentleman's name or the club he was from.

PN3815

Given the circumstances, wouldn't it have been prudent to find out who that person was and have a discussion with him?‑‑‑Yes, I did, I did have a discussion with him. He asked a number of questions.

PN3816

You don't remember who he is?‑‑‑No, I don't, sorry, this is over a year ago that I spoke to him, or close to a year, I should say. You have got to bear in mind I'm presenting, there's a room probably of about, I don't know, close to a hundred people probably in the room, I'm on the stage presenting, there's an opportunity with these things to open up the floor after I've presented what our position would be, what Clubs Australia Industrial's position would be in respect of the award and, as what is normal with these things, the floor is then opened up for anyone - town hall style - for anyone to say whatever they want to say. One gentleman from the floor, who is the gentleman I have described, asked his questions, raised his concerns, we spoke again after that once the meeting had closed, but I do not recall his name.

PN3817

Isn't it the case that there were at least three who had raised concerns with you at that Mullumbimby meeting?‑‑‑No.

PN3818

One being Phil Kelly from Kingscliff Beach Bowls Club, the other being Roger Hong from Evans Head Bowls Club, and the other being Phil Broughton from Yamba Bowls Club; is that right?‑‑‑No.

PN3819

You don't recall that?‑‑‑No, it's wrong.

PN3820

Can I take you to paragraph 29. Before I ask questions in relation to paragraph 29, as a result of this application, there have been a number of submissions made to the Fair Work Commission in objection to this application. Are you aware of that?‑‑‑I assume you're meaning the pro forma document that has been - each of the ones, the 50 or so that's been filed in the Fair Work Commission?

*** CHRIS LAWRENCE MOSSMAN XXN MR ARNOLD

PN3821

Yes?‑‑‑Yes.

PN3822

Some are pro forma, some are not; is that right? Would you agree?‑‑‑I think, from memory, there's one that's not a pro forma, from memory, but the others are pro formas.

PN3823

From my memory, at least two are not pro forma; is that right?‑‑‑Well, I don't know what your memory is, sorry, so I couldn't answer that question.

PN3824

My memory is that one is from Mr Docker from Tradies and also another one is from Greenbank RSL; is that right?‑‑‑I'm not sure what's in your memory, so I can't comment, sorry.

PN3825

Would you agree with me there's been at least 50 objections or, sorry, submissions which are objecting to this application lodged with the Fair Work Commission from clubs?‑‑‑I think there's around 50, whatever the number is on the Fair Work Commission site.

PN3826

Would you agree with me that these clubs have taken the time and effort, even though they may be considered to be pro formas, they have taken the time and effort to write to the Fair Work Commission and express their concern about this application?‑‑‑I don't know under what circumstances they executed those pro formas, no, I don't.

PN3827

At paragraph 29, you say:

PN3828

I have read the statement of Neale Genge dated 8 May 2018. I refer to paragraph 30 of the statement. Mr Genge did not speak to me about the CAI application. I do not know whom Mr Genge spoke to at ClubsNSW. No person from ClubsNSW informed me that Casino Returned Servicemen's Memorial Club opposed the application. Until I read the statement, I did not understand that Casino RSM, Returned Servicemen's Memorial Club, opposed the application.

PN3829

Is that right?‑‑‑That Mr Genge didn't, no, but I believe he was one who did file. I'm pretty sure Casino was perhaps one of the ones who filed in that 50, but I'm not sure when I became aware of that.

PN3830

Yes?‑‑‑Yes.

*** CHRIS LAWRENCE MOSSMAN XXN MR ARNOLD

PN3831

But you say:

PN3832

Until I read the statement, I did not understand that Casino Returned Servicemen's Memorial Club opposed the application.

PN3833

But, in fact, Mr Genge had lodged a submission opposing this application on 15 September 2017; isn't that right?‑‑‑I'm not sure when he lodged it and I'm not sure when his objection came to my attention on the website.

PN3834

Have you been monitoring the website on a regular basis?‑‑‑Yes.

PN3835

Then you would know that on 15 September 2017, that club registered a submission which opposed this application?‑‑‑As I said, I don't recall when their particular one came to my attention, sorry, in terms of Mr Genge coming to the Commission, or his club, to oppose the application. My reference to the statement there was the first time I knew he was going to take that position in terms of opposition was probably when the statement came to me, when I received the statement.

PN3836

You said before that you monitored the website on a regular basis to see who was making submissions in relation to this application; is that right?‑‑‑Mm.

PN3837

Is that a "Yes"?‑‑‑Yes.

PN3838

Thank you. So, on that basis, you would have realised that there were a number of clubs, large and small, that had made submissions opposing this application, is that right?‑‑‑Whether they're large and small those clubs at - - -

PN3839

And medium?‑‑‑Large, small or medium those clubs in Queensland (indistinct) whether they may be I couldn't comment upon the size of that. I'm aware that 50-odd clubs out of over 6,000 clubs in Australia have lodged one of those pro formas on the Fair Work Commission website.

PN3840

Yes. There are a number of clubs in New South Wales and Queensland that lodged submissions opposing this application. Would you agree?‑‑‑There are clubs in New South Wales and Queensland that lodged those pro formas with the Fair Work Commission, I agree.

*** CHRIS LAWRENCE MOSSMAN XXN MR ARNOLD

PN3841

And there's a number of significant clubs that have lodged submissions opposing the application, would you agree?‑‑‑Well, every club is significant to me, but, yes, there are I think six or seven clubs in these proceedings that have lodged a statement opposing it.

PN3842

When you saw those submissions opposing this application, when you saw those did you make any contact with anybody from any of those clubs, those significant clubs, to have a discussion with them?‑‑‑Which – which clubs, sorry? Are you referring to the ones who have put statements in these proceedings or - - -

PN3843

Can I take you for example to West Tamworth Leagues Club. West Tamworth Leagues Club is a large club with three or four sites including a hotel?‑‑‑I'm not sure.

PN3844

Sorry?‑‑‑I don't know.

PN3845

You don't know?‑‑‑No.

PN3846

Do you know that the West Tamworth Leagues Club is a significant club in the region, in New England?‑‑‑No, I did not know that.

PN3847

In your position as the executive manager of Workplace Relations at Clubs New South Wales and executive director and secretary of Clubs Australia Industrial wouldn't it be important to know these sorts of things, whether they're a significant club or not?‑‑‑Look I was – my view as is the organisation's every club is significant. The Wyalong Bowls Club is as significant as the Penrith Panthers is in our charter that we treat all clubs with the same level of respect, importance and significance, but bear in mind – you know, I have not visited Tamworth yet. I've visited many parts of New South Wales in my duties. I've been in the role for a year and a half now, so unfortunately I've not yet visited Tamworth.

PN3848

All right. Can I take you to the annexures to your statement, and they are all the circulars that have gone to the members of Clubs New South Wales, is that right?‑‑‑These are the circulars – I think I identify these are the circulars that have gone up until the point of time that we filed the application.

*** CHRIS LAWRENCE MOSSMAN XXN MR ARNOLD

PN3849

Yes. Just in relation to those circulars and further to cross-examination by Mr Dowling it's my experience having been with Clubs New South Wales in the past that the drafting of these circulars are done by the executive manager in charge of the particular area of issue. They are drafted by that person and then they are overseen by Mr Ball and then sent out under the name of Anthony Ball chief executive officer. Is that right?

PN3850

MR DIXON: This is giving of evidence.

PN3851

VICE PRESIDENT HATCHER: I am not sure that the question is finished yet. Is there more to the question, Mr Arnold?

PN3852

MR ARNOLD: Yes, there is.

PN3853

VICE PRESIDENT HATCHER: Just finish the question then.

PN3854

MR ARNOLD: Do you understand that that's the process, Mr Mossman?‑‑‑The process? No, look there will be certainly circulars that we assist Mr Ball in drafting. There are certainly circulars which Mr Ball sends that he doesn't consult with me at all. There are certainly circulars which are sent as is the example in CM3 which have gone out under my name. I do – I do agree with you though that there would be a significant number of those circulars which Mr Ball would have approved when referring to the circular index.

PN3855

One other question and further to the cross-examination of Mr Dowling could I ask you in relation to this application do you agree with me that a possible outcome of this application would be that the clubs award is merged with the hospitality award, but the penalty rates that currently apply with the clubs award could come over into the hospitality award as well. Do you agree with that, that's a possible outcome?‑‑‑That the clubs penalty rates come over - - -

PN3856

As they currently apply?‑‑‑To – you mean the clubs penalty rates would apply to the pubs? I'm sorry, I'm not sure I understand the question, sorry.

PN3857

The clubs penalty rates as they currently stand are not changed and are simply brought into the hospitality award.

PN3858

VICE PRESIDENT HATCHER: You mean for clubs, Mr Arnold?

*** CHRIS LAWRENCE MOSSMAN XXN MR ARNOLD

PN3859

MR ARNOLD: For clubs, yes?‑‑‑That's certainly as you know not what we're seeking. It's a possibility. This is a modern award review, so at the end of the day it's the (indistinct) umpire who could make those calls. As far as our position is it's always been since we started this process is that the high degree of commonality between the roles, the work performed, the workforce type of service offering, the nature of the operations, the high degree of commonality in respect to that would align our, or it is hoped that the Commission will accept our argument that that would align the clubs awards, penalty rates would align with that of hospitality, and in addition in relation to the merits of using the hospitality penalty rates again we repeat and rely upon the merit of that proposal in the penalty rates decision of the Full Bench on the basis that the nature of the work, type of work or service offering, the work that's being performed by the type of people that's being performed in an identical industry has a high degree of commonality. There are some nuances to the club industry which I've identified like the club managers and some others like bingo callers or fitness instructors, but other than that those nuances, the high commonality would warrant that the clubs go into the hospitality industry award and those hospitality industry penalty rates apply.

PN3860

VICE PRESIDENT HATCHER: One other alternative conceivably might be that there's a transitional provision by which existing permanent club employees retain their penalty rates?‑‑‑That could well be a possibility. As we saw in the substantive penalty rate decision there was I think 12 or 13 different options that required exploring by the Full Bench post decision in terms of the red-circling take up, et cetera, et cetera, so that may – I accept that may be a possibility.

PN3861

Did I understand from your earlier evidence that your members, you said your members would understand that all those alternate possibilities are possible outcomes?‑‑‑Yes.

PN3862

And that wouldn't affect their support for a merging of the awards?‑‑‑No.

PN3863

Thank you.

PN3864

MR ARNOLD: So is the answer to my question, yes, that's a possibility?‑‑‑Yes, and if it's a possibility.

PN3865

Going on from what Mr Dowling has put to you in cross-examination that possibility has not been communicated to the members at this point in time?‑‑‑Penalty rates it has, yes. Penalty rates we have indicated, or rather I should say – we have. We have indicated that the fact that the Commission makes a revocation order and an order for clubs to go in doesn't give an absolute guarantee. We think it's a very strong position to be in due to the commonality and the arguments that were run in the penalty rate case, but we have identified on advice that it is a legal possibility to the contra.

PN3866

Where have you advised the members that that is a possibility?‑‑‑I've advised each of the board of CAI and the representatives on that board who are basically the presidents and the representatives of each of the state associations.

*** CHRIS LAWRENCE MOSSMAN XXN MR ARNOLD

PN3867

But you haven't advised the members at this point in time?‑‑‑Me, I haven't gone to the members with that, no.

PN3868

Just going back to that question that I posed before about the composition of the board of CAI and the representative from Queensland is Don Seccombe, is that right?‑‑‑Yes.

PN3869

In the two months between 23 February and 28 April are you able to advise me as to who and how Mr Seccombe sought advice and consulted with his constituents?‑‑‑No, I'm not.

PN3870

I have got nothing further, thank you.

PN3871

VICE PRESIDENT HATCHER: Does any other party who oppose the application wish to cross-examine this witness? No. Mr Dixon, re-examination?

PN3872

MR DIXON: May it please the Commission.

RE-EXAMINATION BY MR DIXON [3.10 PM]

PN3873

Mr Mossman, you gave some evidence in answer to questions about a conversation you had with a representative at a presentation session from someone in Mullumbimby?‑‑‑Yes.

PN3874

And you couldn't remember the person's name, but can you tell the Commission what that person's concern was that was raised with you?‑‑‑He was a club manager and the issue of concern is he wanted to ensure that club managers remained covered by an award.

PN3875

What did you indicate to him in response?‑‑‑I said that CAI's position is that club managers will be covered by a consolidated award as it were, or the hospitality award I should say, and I also informed him of the effect of 160 through 164 of the Act I think that where one is award covered as at 1 January 2010 no variation, you can't fall out of award coverage, you must maintain that award coverage.

*** CHRIS LAWRENCE MOSSMAN RXN MR DIXON

PN3876

Earlier in your cross-examination you were asked some questions about financial distress and your attention was drawn to material that came from the 2015 census in respect of golf clubs and your evidence was in part drawn from that census and then you identified that. What was the other part from which you drew your evidence in relation to financial distress at golf clubs?‑‑‑A range, so as a part of my role I do road trips as it were so I visit clubs, particularly in regional areas, so I visit clubs like Cessnock RSL I think it was who did end up eventually shutting, small clubs like Wyalong Bowls who pay a hundred grand a year just to keep two greens open for the town. They speak directly to me about the precarious situation financially that they're in. I'm aware of over 100-odd expressions of interest for amalgamations for clubs. Clubs seek to amalgamate as an alternative to shutting their doors. We're involved in each of – each amalgamation that affects our 94 per cent of members in relation to amalgamation. So we're well aware of the number of amalgamations.

PN3877

Sorry, my question was directed at golf clubs?‑‑‑Pardon me, golf clubs, pardon me, yes. Again the golf clubs, as a part of my trips I visit golf clubs, Merewether for example, but also we – I've asked or consulted with – we have two employees that visit every single club in New South Wales, so I speak to them and I ask them questions about the state of golf clubs in relation to each of the clubs they visit. That's all metro, that's all regional, so it's 94 per cent of clubs in New South Wales, and they have given me that information.

PN3878

Can I draw your attention to exhibit 27 which is the document further submissions to Australian Industrial Relations Commission which you were asked a range of questions on?‑‑‑Yes.

PN3879

In relation to a question concerning as I understood it award coverage. My note said that your understanding was that not all states have common coverage prior to the making of a modern award. Is that - - -?‑‑‑Sorry, I should have said - - -

PN3880

I may be wrong, so tell us?‑‑‑Yes, yes. What I thought I had said is that in some parts of Australia like the ACT and I'm pretty sure South Australia as well prior to the modern award coming along their state awards clubs were included in the general hospitality industry award, at their state-based award system.

PN3881

And outside of the ACT and South Australia do you have any - - -?‑‑‑I'm not sure. I'm not sure.

PN3882

Thank you. In relation to the document exhibit 27 you were asked whether you accepted and agreed with item 9 which starts with "Employees of clubs provide the service" – et cetera. Do you see that?‑‑‑I do, yes.

PN3883

My recollection is that you said you did not agree that that is the position in your views as you started taking up your role?‑‑‑Yes.

*** CHRIS LAWRENCE MOSSMAN RXN MR DIXON

PN3884

Can you tell the Commission why you disagree?‑‑‑I just can't identify anything else that are bar work or a waiter or whatever it may be in the club does as a service offering compared to what casino, compared to a hotel. I'm speculating, but if it's a reference to – you know, we go above and beyond in customer service, well country pubs could argue the same thing, but standing there watching someone do a job I cannot see any difference in what they do.

PN3885

Can I ask you then just in relation to the board which forms part of CAI and the decision-making process how many members in total comprise that board?‑‑‑There's one each from each of the states, the Northern Territory and the ACT, and, sorry, there is one from Tasmania, Glenorchy RSL, yes.

PN3886

How are those board members elected?‑‑‑They are elected in accordance with CAI's rules, so there is – we have an annual general meeting like most industrial associations, and like any other board they are – they put their hand up for nomination and they're voted on.

PN3887

Do you attend board meetings of CAI on a regular basis?‑‑‑As executive director I have to, I attend all board meetings.

PN3888

Since you have become an employee what is the usual means by which CAI consults clubs about any industrial matters of equal - - -

PN3889

MR DOWLING: If the question is put in a non-leading way it might be more useful for the Bench.

PN3890

MR DIXON: I think I said the usual means.

PN3891

VICE PRESIDENT HATCHER: Just proceed, Mr Dixon.

PN3892

MR DIXON: What is the usual means by which CAI consults clubs about any industrial matters of importance?‑‑‑CAI relies upon each of the state associations doing their job.

PN3893

How is that information of what the states are doing conveyed to CAI at board meetings?‑‑‑So the president of Clubs Queensland is a director or councillor we call them on CAI. They are - - -

*** CHRIS LAWRENCE MOSSMAN RXN MR DIXON

PN3894

I am sorry, is a councillor of what?‑‑‑CAI, Clubs Australia Industrial. We call them councillors, they're directors. Mr Peter Newell is the chairman of both Clubs New South Wales and he's also in fact the chairman of Clubs Australia Industrial and effectively – well, that is the case, you have the appointed person from each state coming from the state association.

PN3895

You're hunting for some minutes, but do you attend the board meeting that is referred to in your circular which you have attached to your statement 17-055?‑‑‑17-055 - - -

PN3896

Do you remember you were asked some questions about the second last paragraph on that page?‑‑‑On the front page, sorry?

PN3897

Yes?‑‑‑Yes. Yes, I was.

PN3898

Just one last question, in relation to the last paragraph on that page there's a reference to consulted clubs and stakeholders. What do you understand by the reference to stakeholders?‑‑‑Stakeholders are – was an attempted engagement with entities like CMA, the AHA. I think I'd spoken to obviously the representatives of the other state-based associations, and I think we're endeavouring to try to engage – we had had discussions with the New South Wales state branch of United Voice and I think we're endeavouring to try to get to the Federal branch at that stage as well, so stakeholders in the broader sense of the industry.

PN3899

That's the re-examination if the Commission pleases.

PN3900

VICE PRESIDENT HATCHER: Thank you, Mr Mossman, you're excused and may go?‑‑‑Thank you.

<THE WITNESS WITHDREW [3.20 PM]

PN3901

Is that all your witnesses, Mr Dixon?

PN3902

MR DIXON: It is if the Commission pleases.

PN3903

VICE PRESIDENT HATCHER: Subject to the issue of cross-examination bundle is that the close of your case?

PN3904

MR DIXON: Sorry, your Honour, there is a tender bundle of materials which we have identified in our written submissions which my learned friends have and I don't believe there's any objection to the tender. It consists of six items, I won't read them out. Perhaps I tender them as a bundle.

*** CHRIS LAWRENCE MOSSMAN RXN MR DIXON

PN3905

VICE PRESIDENT HATCHER: We don't have that already?

PN3906

MR DIXON: I don't believe you have got all the material.

PN3907

VICE PRESIDENT HATCHER: The first one is that the general tender bundle, is it?

PN3908

MR DIXON: The two volumes of one bundle as you will see from the index.

EXHIBIT #33 CAI TENDER BUNDLE VOLUMES 1 AND 2

PN3909

If the Commission pleases.

PN3910

VICE PRESIDENT HATCHER: Does that deal with the cross-examination bundle issue as well?

PN3911

MR DIXON: No. That's the outstanding matter that I was on my feet to raise. I was just waiting to hear from my learned friend about that.

PN3912

MR DOWLING: Sorry, your Honour, I had one volume and I just wanted to be clear why it was that the Bench had two volumes.

PN3913

VICE PRESIDENT HATCHER: So are we going to leave that until later, Mr Dixon, are we?

PN3914

MR DIXON: If it's acceptable, yes.

PN3915

VICE PRESIDENT HATCHER: Thank you. Mr Dowling?

PN3916

MR DOWLING: I wondered if we could have just a brief short adjournment so that we can organise ourselves prior to giving our opening.

PN3917

VICE PRESIDENT HATCHER: How long will the opening take?

PN3918

MR DOWLING: I am thinking somewhere of 15 to 20 minutes, somewhere in that range.

PN3919

VICE PRESIDENT HATCHER: I am not sure that we can sit past 4.30 today. So is there time to do the opening and then get a witness done?

PN3920

MR DOWLING: That's the next thing I wanted to raise with you. We have two witnesses here presently, both of whom have flown from interstate. I know that's our burden to deal with. We are trying to inconvenience them as little as possible. They're both on flights this evening. I don't how my learned friend is going to be with either, so it's very difficult for me to say, but I was going to ask the Bench's attitude to sitting a little later. We have been working long days so I am loathe to do it.

PN3921

VICE PRESIDENT HATCHER: We can sit until 4.30.

PN3922

MR DIXON: So we won't deal with both witnesses. It's 3 at the moment, but my learned friend – I think it's more than likely that we will only be able to deal with Mr Constable.

PN3923

VICE PRESIDENT HATCHER: All right. Adjourn for how long, Mr Dowling?

PN3924

MR DOWLING: Ten minutes would be adequate, your Honour.

SHORT ADJOURNMENT [3.25 PM]

RESUMED [3.36 PM]

PN3925

VICE PRESIDENT HATCHER: Mr Dowling.

PN3926

MR DOWLING: Thank you, your Honour. Can I just tell you in terms of timetabling as I said I anticipate being somewhere around 20 minutes. The first witness to be called thereafter, not including Mr Docker, is going to be Mr Genge and on present estimates between myself and Mr Dixon he can be done with and accommodated before 4.30.

PN3927

VICE PRESIDENT HATCHER: Thank you.

PN3928

MR DOWLING: Can I then just give the Bench an overview of the structure at least of what it is that I propose to say in the brief opening, a summary of the case it is we understand we have to meet firstly. Secondly just to confirm a number of outstanding matters that we understand were either taken on notice or are to be otherwise clarified for the record. Thirdly the jurisdictional threshold and test as we say it should apply. Fourthly the applicant's case in summary in terms of how it approaches section 164 and 134 and the question of competition, and fifthly and lastly the statutory framework that United Voice on whose behalf I appear directs the Bench's attention to and the evidence that it will call in support of that statutory framework.

PN3929

As to the case it is now clear to the Bench from the cross-examination and the evidence given the case as United Voice understands it put by the applicant is that CAI seeks to revoke the Registered and Licenced Clubs Award and to amend the Hospitality Industry General Award to cover employees and employers in the clubs industry. We understand in broad terms the justification for that application is that since the implementation of the penalty rates decision with respect to penalty rates under the hospitality industry award clubs now suffer what might be said to be some competitive disadvantage with - - -

PN3930

VICE PRESIDENT HATCHER: I am not sure it's confined that way, again reminding ourselves that there was a differential Saturday penalty rates that's been there all along.

PN3931

MR DOWLING: Yes. I understand the prompt for the case if it's right as we understand it is the change created by the penalty rate case, accepting as your Honour says that there was a differential pre-existing.

PN3932

VICE PRESIDENT HATCHER: Perhaps the prompt was the failure of the case to reduce both Saturday and Sunday penalty rates together with an invitation from the Full Bench in that case to consider whether the award should be folded into the hospitality award.

PN3933

MR DOWLING: Yes. That might be so. We are doing as best as we can to grapple with how it is the applicant puts it. Whichever is the prompt the consequence as we understand it is that there is some competitive disadvantage and unfairness that arises. In simple terms on the face of the proposed amendments what is clear is that what CAI is really seeking to do is cut the penalty rates for the clubs workers and only change that term and that term only, but all of the other clubs specific terms are to be preserved.

PN3934

That, in our submission, although Mr Mossman seems to have taken a slightly different view and perhaps Ms Petri did also to the other witnesses who presented for the applicant, that is consistent with the long held position of the applicant that there should be a separate award for the club sector.

PN3935

I identified that the second thing I would do is just clarify those matters that are still unanswered. One and perhaps the most important one is the precise terms of the coverage clause that will be included in the merged award if it is that the applicant is successful. You might recall this was raised with my learned friend Mr Dixon and he is to clarify, this is the issue about including restaurants subcontracted in clubs. I have raised this with my learned friend again today and I understand that something is coming to clarify the applicant's position, but we can - - -

PN3936

MR DIXON: As I indicated in my opening the coverage clause as is proposed is, in our respectful submission, consistent with preserving the status quo in respect of the interrelationship between the three awards.

PN3937

VICE PRESIDENT HATCHER: The problem is that the draft seems to pick up all the exemptions that are in the hospitality award and by doing so affect that.

PN3938

MR DIXON: The note that Mr Dowling is referring to is on its way here and in my respectful submission that will illustrate that the way it's drafted is consistent with the present interrelationship between the three awards. That's what we seek to explain and our understanding of those three awards. We have had to go back to the making of the awards to verify our understanding.

PN3939

MR DOWLING: Thank you, your Honour. If the consequence of what my learned friend says is that they're not changing the current awards in terms of the coverage clause then we will have something to say about whether that has the requisite amount of clarity. The issue for the Bench's reference is raised at paragraph numbered 303 of the transcript.

PN3940

The second issue that was raised with my learned friend and all which was taken on notice was the issue that, or the question about the justification of keeping some of the clubs specific terms, but not the penalty rates. This has been elicited and query raised with each of the relevant witnesses too. We understand there's an answer coming to that proposition on behalf of the applicant and the Bench will find that raised at paragraph numbers 52 to 55, 65 to 77 and 97 to 99 of the transcript.

PN3941

It appeared to us that the evidence at least of Mr Rees and Mr Addison and Mr Murray was that it was important to keep the clubs specific provisions. It might be said some of the evidence of Ms Petri was to a different effect and likewise Mr Murray. So there does seem to be a conflict between the positions of the witnesses for the applicant.

PN3942

VICE PRESIDENT HATCHER: You mean Mr Mossman?

PN3943

MR DOWLING: Mr Mossman, sorry. Thank you, your Honour. Now the third and last issue – sorry, not the last – the third issue in respect of other matters taken on notice at paragraph number 114 Mr Dixon was taken to the list of amendments made to the relevant awards through the four yearly review and was asked if he could inform the Commission whether those were hospitality specific or whether they applied to both. I think it was raised certainly - - -

PN3944

MR DIXON: We have been working on that and I am hoping to give the answer in the morning.

PN3945

MR DOWLING: I don't mean to criticise my learned friend by identifying these things, I am simply putting on the record that these are things we still need, are still parts of the applicant's case that we need to understand.

PN3946

There were two other matters; there was the note with respect to the PC report. We received that this morning; we haven't had a chance to review it, and we understand there was to be a similar aide memoire prepared with respect to those parts of the part-time and casual employment decision that are sought to be relied upon.

PN3947

VICE PRESIDENT HATCHER: I thought at the end of the day in terms of factual findings the part-time casual case was not relied upon in any respect, but that the applicant might rely on some of the general reasoning and conclusions in that case. Is that right, Mr Dixon?

PN3948

MR DIXON: Yes.

PN3949

MR DOWLING: That makes it easier. I am grateful for that acknowledgement from my learned friend. So that's the second of the topics that I wanted to address. The outstanding issues are the things we are still waiting for clarification on.

PN3950

The second of the topics was the jurisdictional threshold. I only want to say something very briefly about that, partly because the applicant in its written submissions makes much of the fact that this is a review and not an inter-parties dispute and the broad powers that the FWC, the Commission has I am sorry, to investigate and determine for itself whether a modern award is meeting the modern awards objectives.

PN3951

We remind the Commission and draw its attention to the preliminary jurisdiction decision that no doubt it's well familiar with where it established the jurisdictional standard that the applicants are required to meet in the four yearly review where significant change is proposed, and in our submission there can be little doubt that this is a significant change, and as a result it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation. That's at paragraph 23 of the preliminary jurisdiction decision.

PN3952

Further a party seeking to vary a modern award in the context of the review must advance a merit argument in support of the proposed variation. Where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation, and for reference that's at paragraph 60 of the preliminary jurisdiction. All of that requires the applicants, we say, to address the relevant legislative provisions, put on probative evidence properly directed to demonstrating the facts, supporting the application and advance a merit argument in support of its application. That's the second of the issues.

PN3953

The third in a little more detail, the applicant's case as we understand it, it relies on section 164 and alternatively 156 or 134. Insofar as it relies on section 164 it seems to rely on both section 164(a) and 164(b) to suggest that 164(a) applies, that is that the Act permits the revocation of the modern award where there is satisfaction that the award is obsolete or no longer capable of operating, and as we understood Mr Dixon's opening it is premised on the basis that if this application is granted then clubs award will be obsolete. It might be premature in opening to say too much about that issue, but on our understanding of the evidence presently presented or presented by the applicant it appears to be the case that it cannot be said that the clubs award is obsolete and some of their own witnesses seek to maintain the specific provisions relating to it.

PN3954

Section 164(b), the second limb in respect of the first part of the case, permits revocation where the Commission is satisfied that all of the employees covered by the award are or will be covered by a different modern award that it is appropriate for them to cover. CAI's case is that the hospitality industry award is appropriate for the clubs award in part because of the similarities between the award, but based on the evidence heard to date – sorry, based on the evidence heard to date, but I note in respect of schedule B there is still that outstanding question as to the changes in respect of those award provisions.

PN3955

I will return when I come back to section 164(b) in respect of how we say that should properly work. Before I do that can I just address how it is the applicant puts its case in respect of the modern awards objectives. It does address the modern awards objectives. It is apparently uncontroversial, but the Commission is required in performing or exercising any of its functions or powers in part 2.3 of the Act to apply the modern awards objectives. The Commission will find that at section 134(2).

PN3956

The revocation of the modern award is a performance of the exercise of the Fair Work Commission's powers under part 2.3, as is the variation of the modern award. So when it comes to the modern awards objectives there are two aspects; how it applies in respect of the revocation under section 164 and how it applies in respect of the variation to the hospitality industry award. They are the two ways in which the applicant is required to address the modern awards objectives, and as we read the applicant's submissions they have addressed the factors but not separately with respect to both of those propositions; how the factors apply with respect to the revocation under section 164 and the appropriateness of the award under 164(b), and how the factors apply in respect of the variation to the hospitality industry award.

PN3957

Can I just say one last thing in respect of this statutory way or statutory context in which the applicant puts its case. In his opening Mr Dixon said that the Commission had found in the penalty rates case that the Sunday penalty rate under the hospitality award was not fair or relevant, and the Commission was referred to paragraph 885 of the decision. It is important to note, in our submission, that that paragraph refers to Sunday penalty rates payable under the hospitality award and only the hospitality award. The Bench was required, as it is required to do now of course, consider each award separately and cannot, in our submission, simply apply that finding under section 885 to the clubs award.

PN3958

Can I say in concluding in respect of the applicant's case as we understand it just deal with the question of competition. Whatever it is that the prompt is consistent with the discussion that your Honour and I had at the start of this opening it seems that a justification is the question of some competitive advantage.

PN3959

Can we just make three points by way of opening. Be there any competitive advantage or disadvantage complained of by clubs they can only be for the hospitality dollar, if I can call it that, not for golfing, life saving or any other non-food and drink activity, and that has to be stressed, because as the witnesses have accepted there are a large variety of clubs that offer a large variety of services, and it can't and should not be assumed that because we are talking about competition we are only talking about food and drink.

PN3960

The second issue that has become obvious from at least the cross-examination in respect of the competitive advantage is that that competitive advantage, if there was one, was only in place for a period of four weeks before the application was made.

PN3961

VICE PRESIDENT HATCHER: You mean Sundays?

PN3962

MR DOWLING: In respect of Sundays, correct, your Honour. If that competitive advantage is said to justify the application in respect of Sundays of course the application must and can only have been speculative. It wasn't based on any proper assessment. There has been no evidence produced about it, and it can't be said that it was anything other than speculative.

PN3963

Thirdly, and perhaps mostly important, in all of the evidence that the Full Bench has heard so far about the competitive pressures that clubs are facing there is no evidence about how the cuts to penalty rates will ameliorate or will have an effect on that pressure, and your Honour asked a direct question of Mr Addison when he was dealing with what he said to be pressure from casinos in terms of taking some of the gamblers, how it could be said, a question that he was unable to answer, how it could be said in your Honour's words playing around with penalty rates would have any impact upon the competition that clubs face from casinos, and that has simply gone unexplained and unanswered by the evidence called by the applicant.

PN3964

Can I then lastly just identify the framework as we see it applying and then give the Bench just a summary of the evidence that's proposed to be called by the applicant, perhaps assisted by the categories into which that evidence falls. In respect of 164(a) and 164(b) for our part and in our submission 164(a) cannot apply, and it's wrong to approach it from the view that if the emerged award is made then the award becomes obsolete.

PN3965

That only gets us so far because there's an "or" between 164(a) and 164(b), so we accept 164(b) would apply, but the proper approach in respect of 164(b) is for the Commission to assess whether the hospitality award is appropriate for persons currently employed by the clubs award and it must do that by reference to the modern awards objectives. Again section 134(2) tells you that each power you exercise under the relevant part must be done by reference to the modern awards objectives.

PN3966

In assessing whether the hospitality award is appropriate it must do so assessing whether it's appropriate for all persons, not just as the applicant would have it for food and beverage attendants. It must look at all persons, and it's accepted that there are other people who do work and responsibilities outside food and beverage. All of the witnesses have accepted that. There will be evidence about it, but it must be accepted that there is work done by employees in clubs outside of people doing food and beverage work, and the Commission is required to assess whether the hospitality industry award is appropriate for all of them.

PN3967

The second part of the legislative framework as we see it is the variations to the hospitality award.

PN3968

COMMISSIONER HAMPTON: Just before you go there, just in relation to section 164(b) do you say we make the assessment about whether or not the modern award is appropriate without regard to the potential or actuality of variations that might be made to the modern award, in this case the hospitality award?

PN3969

MR DOWLING: Sorry, if I understand – you mean changes that are currently contemplated with respect to the hospitality award?

PN3970

VICE PRESIDENT HATCHER: Yes. Do we take the hospitality award as it stands now and say is that appropriate, or can we vary it in a way to ensure that at time of revocation it will be appropriate?

PN3971

MR DOWLING: I might reserve my position, but it seems that it would be sensible and logical in an application of this sort that the Bench could take account of the variations that it proposes to make to the merged award as it's being described in assessing whether it's appropriate, because ultimately that's going to be the product at the end of the day if the applicant was successful in some way. It seems sensible – as I say I reserve for myself some further consideration, but on my feet that seems to be a prudent question and the most logical answer taking into account the form of the award as varied in answering the appropriate test.

PN3972

VICE PRESIDENT HATCHER: Did I understand you to submit that leaving aside the jurisdictional prerequisite of 164 the applicant would then have to establish firstly that the clubs award as it stands does not meet the modern awards objective with respect to those covered by it, and to that the modern awards objectives would be met if they were folded into the hospitality award?

PN3973

MR DOWLING: I am not sure I put the first in quite that way. As I understand the operation of 164(b) - - -

PN3974

VICE PRESIDENT HATCHER: No, I am saying independent of 164(b), the operation of the modern awards objective, would that require, as a first step, that it is established that the clubs award, as it stands, is not meeting the modern awards objective?

PN3975

MR DOWLING: Again, I think that is a question that deserves some careful consideration, but that is certainly an approach open on the legislation as it stands that that would be a requirement. They would have to demonstrate that first and that seems to us, from what we can comprehend of the applicant's case, patently not so on its own case.

PN3976

VICE PRESIDENT HATCHER: Because it seems, speaking for myself, that if the clubs award is currently meeting the modern awards objective, from the point of view of the conduct review, it would end at that point.

PN3977

MR DOWLING: Yes.

PN3978

VICE PRESIDENT HATCHER: All right.

PN3979

MR DOWLING: I think the last - the questions your Honour has raised are independent of 164. We have addressed 164 or how we see 164(b) applying. There then comes the question, and this might fold into the question, Hampton C asked, but how it is the changes to the hospitality award meet the modern awards objective, you might end up in the same place in the sense that you are making variations to the hospitality award and each of those would have to meet the modern awards objective. Perhaps, rather than just looking at the hospitality award as it presently stands, you can take into account the variations that you might make as a result of the merged award, but those variations would have to be made by reference to the modern awards objective.

PN3980

Can I then identify in summary form the evidence that is to be called from United Voice. We divide it into three categories and I will, lastly, as a fourth and separate category, identify the evidence called by others that we rely upon, but the first category, if I can describe it as, in part at least, historical evidence from Mr Cooper from the Club Managers Association, who will give evidence about the making of the modern clubs award which is relevant to, of course, we say, the need for its separateness and the submissions that were put, although much has been heard already about the submissions that CAI made, or Clubs Australia made.

PN3981

The second category is the evidence of employees and these are Ms Gorman, Ms Kelly, Ms King and Mr Valenti. They will each give evidence of the impact that cutting penalty rates will have on their income, their household budgets and their ability to meet daily expenses, and they will give some evidence about the disutility of weekend work, including the constant time away from friends, family and community. That is the second category.

PN3982

The third category is from employers working in the industry, and that is that the clubs award continues to be relevant and operative and is not obsolete and that the hospitality award is not appropriate for club employees and employers, and those witnesses are Mr Docker, who you have already heard from, Mr Constable, Mr Genge, Ms Crowe and Mr Unwin.

PN3983

Finally, as I indicated, we rely on evidence called by other respondents to this application. The Club Managers Association, we understand, will produce evidence from Ms Tassell, Ms Clegg, Mr Hiscox, Mr Allen and Mr Dagg, and we rely upon that in support of opposing the application. It goes to the need for the separate award for the club managers.

PN3984

The Professional Golfers Association call evidence from Mr Stewart and Mr Kirkman and we rely on that, and we understand Mr Wright will give evidence from the Queensland RSL and Services Clubs Association, and we rely on that, even though each of those witnesses is not called by United Voice.

PN3985

Unless there are any questions, that is the opening of United Voice and we call Mr Genge.

PN3986

VICE PRESIDENT HATCHER: All right, thank you.

PN3987

MR DOWLING: Ms Burke will deal with Mr Genge.

PN3988

THE ASSOCIATE: Could you please state your full name and address.

PN3989

MR GENGE: Neale Henry Genge, (address supplied).

<NEALE HENRY GENGE, SWORN [4.06 PM]

EXAMINATION-IN-CHIEF BY MS BURKE [4.06 PM]

PN3990

MS BURKE: Mr Genge, can you please state your full name again for the record?‑‑‑Neale Henry Genge.

PN3991

And your address?‑‑‑(Address supplied.)

PN3992

And your occupation?‑‑‑Secretary Manager at Casino RSM Club.

PN3993

Have you prepared a statement for the purposes of this proceeding?‑‑‑I have.

PN3994

Can I ask that the witness be shown a copy of his statement, please. Mr Genge, what has been handed to you there is a folder with all of the United Voice witness statements in there. Can I ask that you turn to tab 3, please. Is that your statement there?‑‑‑Yes, it is.

PN3995

Is it 36 paragraphs?‑‑‑Yes.

PN3996

And signed and dated by you on 8 May 2018?‑‑‑That's correct.

PN3997

I understand there are some objections to that statement.

*** NEALE HENRY GENGE XN MS BURKE

PN3998

VICE PRESIDENT HATCHER: Mr Dixon?

PN3999

MR DIXON: Your Honour, given the earlier rulings, we have just amended and cut down some of the objections. May I hand up a revised list. There are three objections to Mr Genge's evidence. They are paragraph 30, the first sentence of paragraph 33 and the first and second sentences of paragraph 34.

PN4000

VICE PRESIDENT HATCHER: Sorry, I missed that. Paragraph 30 - what is it?

PN4001

MR DIXON: The whole of paragraph 30.

PN4002

VICE PRESIDENT HATCHER: Yes. What's wrong with that?

PN4003

MR DIXON: It is opinion/submission/conclusion and on the ground of relevance.

PN4004

VICE PRESIDENT HATCHER: Yes, paragraph 30 will be admitted.

PN4005

MR DIXON: Paragraph 32, the first sentence clearly cannot be admitted. Your Honour, that is simply struck out, in my submission.

PN4006

VICE PRESIDENT HATCHER: Yes, Ms Burke?

PN4007

MS BURKE: Your Honour, Clubs Australia's case is that this application is what members want. This goes to disproving that. It is highly relevant, in my submission.

PN4008

VICE PRESIDENT HATCHER: Say that again?

PN4009

MS BURKE: This application is directed - sorry, Clubs Australia's application is made on the basis that this is something that clubs want.

PN4010

VICE PRESIDENT HATCHER: Yes, but where does one get support for the proposition that there is a general view that club employees are second class? Where does all that come from?

PN4011

MS BURKE: I don't want to give evidence for the witness.

*** NEALE HENRY GENGE XN MS BURKE

PN4012

VICE PRESIDENT HATCHER: All right, that sentence won't be admitted. Yes?

PN4013

MR DIXON: The first and second sentence of paragraph 34, your Honour will see there is some suggestion about a downturn in economic expenditure and some further submission and conclusion. In our respectful submission, those two paragraphs should not be admitted - two sentences, I beg your pardon.

PN4014

VICE PRESIDENT HATCHER: Ms Burke?

PN4015

MS BURKE: Yes.

PN4016

VICE PRESIDENT HATCHER: I just want to hear you in relation to the second part of the first sentence about a downturn in economic expenditure.

PN4017

MS BURKE: Your Honour, Mr Murray yesterday gave evidence about the potential employment effect more broadly in the community from cutting penalty rates and I objected and that evidence was allowed to be given. It was evidence of a general nature. In my submission, this evidence is of a similar kind and should be admitted consistent with that ruling.

PN4018

VICE PRESIDENT HATCHER: Just remind me, what was the evidence of Mr Murray you are referring to?

PN4019

MS BURKE: He said that if penalty rates were cut, it would lead to job creation more broadly in the sector - under objection.

PN4020

VICE PRESIDENT HATCHER: All right. Those sentences will be admitted.

PN4021

MS BURKE: Thank you, your Honour. With those rulings, I tender the statement of Mr Genge.

PN4022

VICE PRESIDENT HATCHER: The statement of Neale Henry Genge dated 8 May 2018 will be marked exhibit 34.

EXHIBIT #34 WITNESS STATEMENT OF NEALE HENRY GENGE DATED 08/05/2018

PN4023

MS BURKE: Thank you, Mr Genge, there will be some questions for you.

*** NEALE HENRY GENGE XN MS BURKE

PN4024

VICE PRESIDENT HATCHER: Mr Dixon?

CROSS-EXAMINATION BY MR DIXON [4.11 PM]

PN4025

MR DIXON: Mr Genge, you work at The Casino Returned Servicemen's Club?‑‑‑Yes.

PN4026

You do so in the capacity as a manager - sorry, as a senior industrial advocate. Let me start again. You are employed by - it's getting late in the day, I apologise - you are the general manager of The Casino Returned Servicemen's Memorial Club?‑‑‑That's correct.

PN4027

That club has a restaurant called Peppercorns?‑‑‑It's now a function room.

PN4028

It's a function room?‑‑‑It's a function room.

PN4029

And it's a function centre that can handle - what - 500-odd guests in the function centre?‑‑‑At least.

PN4030

At least. It has a café and a bistro?‑‑‑That's correct.

PN4031

Called Monte's?‑‑‑Yes.

PN4032

It has a gaming room?‑‑‑Yes, it does.

PN4033

Does it have a bar?‑‑‑Several.

PN4034

How many bars?‑‑‑At present, I have four bars. One is ready to go into renovation and has been shut down, but, generally speaking, (indistinct) are open per night.

PN4035

The club offers entertainment to members and guests?‑‑‑Yes.

PN4036

So you would have bands performing from time to time?‑‑‑Yes.

PN4037

Stage performers, hypnotists?‑‑‑Yes.

*** NEALE HENRY GENGE XXN MR DIXON

PN4038

It has a Facebook page?‑‑‑Yes.

PN4039

You use the Facebook page to promote events at the club?‑‑‑We certainly do.

PN4040

And you use that page to promote entertainment at the club?‑‑‑We do.

PN4041

You have been a resident of Casino for some time, have you?‑‑‑I have.

PN4042

For how long?‑‑‑Five and a-half years.

PN4043

And you are familiar with the other hospitality establishments in Casino?‑‑‑Yes.

PN4044

There are a number of pubs in Casino?‑‑‑Several.

PN4045

How many, do you know?‑‑‑Seven, from memory.

PN4046

The Royal Hotel, is that included in the number you have just mentioned?‑‑‑Yes, yes, it is.

PN4047

It is? In the seven you mentioned, is The Commercial Hotel included in that?‑‑‑Yes.

PN4048

And Hotel Cecil?‑‑‑Yes.

PN4049

Each of those establishments have a bar or more than one bar?‑‑‑That's correct.

PN4050

How many pubs in total would you estimate would there be in Casino?‑‑‑Seven, from memory.

PN4051

A number of the hotels have bistros?‑‑‑I believe they all do.

PN4052

All the hotels then have bars or more than one bar?‑‑‑At least one.

PN4053

At least one. Some have multiple bars?‑‑‑From memory, two.

*** NEALE HENRY GENGE XXN MR DIXON

PN4054

The hotels have gaming machines?‑‑‑Not all.

PN4055

Not all. A number of them have gaming machines?‑‑‑They do.

PN4056

Are you able to say which ones?‑‑‑Cecil Hotel, Royal Hotel, Oxford Hotel, Tattersalls and Charcoal.

PN4057

The Servicemen's Club is in fairly close proximity to each of those establishments that you've just described?‑‑‑For a country town, reasonably. The Charcoal Hotel's across the river. It's the only one on the south side.

PN4058

But the others are in walking distance from your club are they?‑‑‑Yes.

PN4059

You previously worked at the Royal Motor Yacht Club at Toronto?‑‑‑That's correct.

PN4060

That's a club located on Lake Macquarie?‑‑‑Yes.

PN4061

About 15 minutes from Morisset?‑‑‑If you're driving fast, yes.

PN4062

That's not far from Newcastle?‑‑‑No.

PN4063

Did you mean you agreed with me or?‑‑‑Yes, yes, so it's half an hour from Newcastle, 40 minutes.

PN4064

When you worked there, the Royal Motor Yacht Club at Toronto had a restaurant?‑‑‑Subcontracted.

PN4065

But was it called the Toronto Bay Bistro?‑‑‑That's right.

PN4066

That restaurant, to your knowledge it still exists?‑‑‑As far as I'm aware.

PN4067

When you were there it offered a la carte food at the restaurant?‑‑‑Yes.

PN4068

Served a range of – I withdraw that. It had a bar?‑‑‑The club had a bar.

*** NEALE HENRY GENGE XXN MR DIXON

PN4069

It offered bar food?‑‑‑Bistro would have. Club didn't.

PN4070

Sorry, a bistro in the club?‑‑‑The Toronto Bay Bistro provided meals, the club didn't. It was subleased.

PN4071

I see, and the club had a function centre?‑‑‑We had a function room, yes.

PN4072

A large one?‑‑‑150 max people.

PN4073

Offered entertainment?‑‑‑Yes.

PN4074

Bands and singers on Sundays?‑‑‑Yes.

PN4075

It had a Facebook page?‑‑‑I started it.

PN4076

It promoted the club through that use of that page?‑‑‑Yes.

PN4077

The sort of functions that are held at the Casino club are functions for weddings?‑‑‑Rarely.

PN4078

Business function?‑‑‑Primarily business, sporting, football teams, our bowls, functions of that nature.

PN4079

But also social functions?‑‑‑Yes.

PN4080

The sort of social functions that hotels with function rooms and other hospitality outlets would provide?‑‑‑I don't know, I don't work for them.

PN4081

But you fairly familiar with the hospitality industry are you not?‑‑‑I am.

PN4082

The function centre would accommodate functions of a business nature?‑‑‑In our town?

PN4083

Yes?‑‑‑

*** NEALE HENRY GENGE XXN MR DIXON

PN4084

VICE PRESIDENT HATCHER: Sorry, are we talking about Toronto or Casino now?

PN4085

MR DIXON: No, I am sorry, I'm back in Casino, I'm sorry?‑‑‑In our town, I'd – the only sort of other function area, I dare say, of that nature is one operated by Win, which is known as Windara, which is a not-for-profit organisation which employs disabled/handicapped people through the Catholic church and the other one would be the council civic centre.

PN4086

Is there a golf club in Casino?‑‑‑There is.

PN4087

With facilities?‑‑‑It does have facilities.

PN4088

Like a function room?‑‑‑Restaurant/function room.

PN4089

To your knowledge that would provide entertainment of a kind like weddings and engagement parties and Christmas parties and the like?‑‑‑We took our Christmas party there two years ago.

PN4090

The answer is yes?‑‑‑Yes.

PN4091

I'm back now at Toronto, were there other function facilities that you're aware of in Toronto?‑‑‑Toronto Worker's Club, Toronto RSL.

PN4092

Right, and at the club, the Royal Motor Yacht Club Toronto, it employed bar staff?‑‑‑We did.

PN4093

Kitchen attendants?‑‑‑No.

PN4094

Is that because of a contracting arrangement?‑‑‑That's right.

PN4095

Front office workers?‑‑‑That was me.

PN4096

Right, and guest service workers?‑‑‑No.

PN4097

Security staff?‑‑‑Subcontracted.

*** NEALE HENRY GENGE XXN MR DIXON

PN4098

Right, and the rostering at the Casino club, more staff were rostered on a Saturday than Monday to Friday?‑‑‑That's correct.

PN4099

More staff hours are rostered on a Sunday than a Monday to Friday?‑‑‑Generally, Friday nights and Saturdays are our busiest, so. Sunday lunch times, yes, on Saturday.

PN4100

In relation to the services that your Casino club offers, there's greater demand for those services on a Saturday than on a Monday to Friday is it?‑‑‑Well, generally most people work Monday to Friday so yes.

PN4101

The same is the case for a Sunday rather than a Monday to Friday at Casino club?‑‑‑That's right.

PN4102

In Toronto there's also the Toronto District Worker's Club?‑‑‑Yes.

PN4103

It has a bistro and a bar?‑‑‑From memory, yes.

PN4104

It had, when you worked in that area, a cafe?‑‑‑I can't recall.

PN4105

A function centre?‑‑‑Yes.

PN4106

Could handle approximately 70 guests?‑‑‑The worker's club?

PN4107

Yes?‑‑‑I'd say over 500. I can't speak for Mark (indistinct) who's the manager there.

PN4108

It offered entertainment?‑‑‑Yes, it did.

PN4109

Kid's playground?‑‑‑Can't recall.

PN4110

Can't recall, and in the town of Toronto, there were, when you were there, and if you could perhaps confirm if that knowledge is current, a number of restaurants, up to 10?‑‑‑I'd imagine so.

*** NEALE HENRY GENGE XXN MR DIXON

PN4111

No, you would have spent time in that town so you ‑ ‑ ‑?‑‑‑I didn't live in the town.

PN4112

You visited the town on a regular basis?‑‑‑Yes.

PN4113

There were a number of restaurants?‑‑‑Yes.

PN4114

You might not be able to give us the exact figure?‑‑‑No.

PN4115

A pizza shop?‑‑‑Not to my knowledge. Could be.

PN4116

Cafes?‑‑‑I imagine so.

PN4117

Right, when you say "imagine so" you had knowledge because you visited?‑‑‑I worked at the club, I went to the bank, I went to the worker's club occasionally.

PN4118

There was a hotel called the Toronto Hotel close by to ‑ ‑ ‑?‑‑‑That's right.

PN4119

It had bars?‑‑‑Yes.

PN4120

A restaurant?‑‑‑Yes.

PN4121

It offered entertainment?‑‑‑I believe so.

PN4122

Accommodation, you would understand it provided?‑‑‑I don't recall.

PN4123

Right. It also had a Facebook page promoting, would you know that, its services?‑‑‑I don't know. It may have had when I was working there but I can't recall. My competition, in my view when I was there, was the RSL and the worker's club.

PN4124

Right, and in Casino, there's now a fair choice available for people living in that town to either visit your club or any one of the other hospitality establishments that we've referred to?‑‑‑There's a choice.

PN4125

Yes?‑‑‑Yes.

*** NEALE HENRY GENGE XXN MR DIXON

PN4126

The same as to which pub they go to, they've got a choice between your club and any one of those other pubs and the hotels you identified?‑‑‑If they wish to.

PN4127

VICE PRESIDENT HATCHER: Sorry, Mr Dixon, a choice to do what?

PN4128

MR DIXON: To visit the establishment and consume food or alcohol, or entertainment?‑‑‑In the pubs, yes. Ones that are left.

PN4129

The staff at the Casino RSN, since you there, the staff remained employed for lengthy periods?‑‑‑A lot have.

PN4130

You do not have a high turnover of staff do you?‑‑‑Not in the permanents.

PN4131

How many of the staff there are permanents as opposed to part time – as opposed to casuals?‑‑‑I feel it was in my statement but I can't recall off the top of my head.

PN4132

All right. I think - - -?‑‑‑Paragraph 12, sir.

PN4133

Thank you. If staff leave, you have no difficulty in recruiting replacement staff in Casino RSN club?‑‑‑No, we do.

PN4134

You do. You have any difficulty in recruiting casuals?‑‑‑Yes.

PN4135

I see. You're aware of the - - -

PN4136

VICE PRESIDENT HATCHER: Why is that, Mr Genge?‑‑‑(Indistinct) the hours, your Honour. A lot of our casuals, family commitments as well, so they're not available nights, weekends, things like that. We're fortunate to have a couple of uni – we've got the Southern Cross Uni up the road so we have a few that are happy to work those shifts but generally speaking, we struggle to get good employees. I'm trying to find a chef in country New South Wales, it's impossible.

PN4137

Yes, thank you.

PN4138

MR DIXON: As a general manager, are you aware of the fact that the Clubs Managements Association publishes a magazine that it sends out to all managers of clubs?‑‑‑Club Managers Association?

*** NEALE HENRY GENGE XXN MR DIXON

PN4139

Yes?‑‑‑We do, or used to. I believe it's all moved online but you'd have to check with the CMA.

PN4140

You receive it and access it from time to time?‑‑‑I do.

PN4141

To your knowledge, it covers a range of issues, that advice is given to managers by that association?‑‑‑The magazine?

PN4142

Yes?‑‑‑It varies, interest stories, training coming up, things of that nature.

PN4143

It's an information source for managers, in your experience?‑‑‑To an extent.

PN4144

It addresses changes on any industrial matter, if there's an industrial matter that's come up, the managers can – it typically gets reported through that source to managers?‑‑‑The Club Managers Magazine?

PN4145

Yes?‑‑‑Not what I recall. Last – if I can qualify that, last note of legislation, I received an email from Ralph Tobar from the CMA. Generally speaking, we gain most of our sources at CMA meetings.

PN4146

I'm sorry, I missed that last bit?‑‑‑We gain most of our sources in feedback and alerts to changes from club managers meetings quarterly.

PN4147

You attend quarterly managers meeting?‑‑‑Yes, in the zone.

PN4148

In that zone, it's an information or training sessions that occur by the association?‑‑‑Yes, that's correct.

PN4149

They provide training in relation to matters such as any changes in industrial laws?‑‑‑Yes, we generally get a brief from the delegate from CMA head office.

PN4150

If there's an award change that affects managers, you would expect to get a briefing from that organisation at those quarterly meetings?‑‑‑Yes, generally, yes.

PN4151

Have you attended training sessions by that organisation in relation to interpretation of awards?‑‑‑I haven't.

*** NEALE HENRY GENGE XXN MR DIXON

PN4152

But you're aware that such training sessions are provided by that organisation?‑‑‑I believe so.

PN4153

Are you familiar, Mr Genge, with the Fair Work Ombudsman publishes pay guides on its website that you can access if you have any query guides under any relevant award?‑‑‑I don't know who publishes them, so – but I do get online and check pay rates occasionally.

PN4154

All right. Can I show you a document, if I may. May I draw your attention, if you will please, Mr Genge to the document behind tab six and you're aware that the Fair Work Ombudsman publishes pay guides of this kind that can be accessed through the internet access to that organisation?‑‑‑Yes, I've seen similar of these before.

PN4155

In the event that a new award was made in these proceedings - - -

PN4156

VICE PRESIDENT HATCHER: Mr Dixon, what's the relevance of this? I mean, we can take it for granted that the Fair Work Ombudsman will perform their statutory functions. What's this witness know about that?

PN4157

MR DIXON: Your Honour, there's evidence in these proceedings that suggests that there is – if you were to grant the application, it will all be too complex and people won't understand the proposed award.

PN4158

VICE PRESIDENT HATCHER: Does this witness say that?

PN4159

MR DIXON: I beg your pardon?

PN4160

VICE PRESIDENT HATCHER: Does this witness say that?

PN4161

MR DIXON: No but if he's able to he's able to deal with the matter in a positive sense, we can obviously use it. I am conscious of time - - -

PN4162

VICE PRESIDENT HATCHER: Yes, so am I.

*** NEALE HENRY GENGE XXN MR DIXON

PN4163

MR DIXON: - - - and I will move on as quickly as I can. Are you also aware are you, Mr Genge, that the Commission itself publishes material on allowances? If you go to what is behind tab eight. If you have a query about the allowance that applies to the registered or licensed club award for particular employees, you can identify them by access to the Commission's website?‑‑‑Yes, I believe so.

PN4164

All right, and can you tell the Commission whether your club was approached by the United Voice with a view to signing a pledge about weekend penalty rates?‑‑‑I can't recall.

PN4165

You can't recall. If you look at the document behind tab 10, did you receive a document, or that document, at any particular time?‑‑‑I don't believe so.

PN4166

Right, and the document behind tab 11?‑‑‑No.

PN4167

Can you tell us something very briefly in relation to managers at the Casino club, do you have a deputy?‑‑‑I do.

PN4168

You're aware of the fact that under the clubs award, of the salary levels under the clubs award for managers?‑‑‑I vaguely aware as the sort of latest update come through last week.

PN4169

Who provided you that update?‑‑‑Can't recall. My admin manager had a copy of it.

PN4170

Did the association provide you updates with - - -?‑‑‑It may have come from the association, the CMA. I've seen a copy of it but I've got a full time administration manager.

PN4171

Does your deputy earn, we're not asking for the particular amount, more than $58,000 or $59,000 a year?‑‑‑Yes.

PN4172

Considerably more?‑‑‑Reasonable.

PN4173

What level is your deputy classified at, do you know?‑‑‑I don't have a copy of his agreement with me, so I can't answer that.

PN4174

Right, and do you have a number of direct reports other than the deputy manager?‑‑‑Sorry, please explain? As far as managers?

*** NEALE HENRY GENGE XXN MR DIXON

PN4175

Managers?‑‑‑We have several, so a quick summary would be myself, the assistant secretary manager, administration manager, head chef, maintenance manager and duty manager.

PN4176

Your Honour, would you allow me five minutes to finish this line of cross-examination?

PN4177

VICE PRESIDENT HATCHER: Yes.

PN4178

MR DIXON: May I show you the club, the registered clubs award, please, Mr Genge. Thank you. Can you identify by reference to the – you know where to find the classification pay rates for managers in that award?‑‑‑I've looked for them before, so yes, I should be able to.

PN4179

Go to clause 17 and turn to page 21 if you will. Of the managers you've just described, which managers would be classified as level seven?‑‑‑Probably two.

PN4180

Do they earn more than $47,189 a year?‑‑‑Yes, they're on overtime exemptions.

PN4181

I'm sorry, on the overtime exemption, which means that they are at least 25 percent above that figure?‑‑‑20.

PN4182

Right, and how many in level eight?‑‑‑Without having their contracts with me, I'd say two.

PN4183

Again, the exemption applies to at least 20 percent above that figure of $49,000?‑‑‑I believe so, yes. They're on overtime exemptions.

PN4184

Do you have any level C mangers, level 9s?‑‑‑I can give you a rough pay rate of four of my managers off the top of my head but I can't determine what their classification is without looking at their contracts and going back over them.

PN4185

All right. Well, perhaps I can ask you this, do they all earn at least 20 percent above the $58,000 for level 13?‑‑‑No.

PN4186

The majority of them do?‑‑‑Give me a pay – give me a figure.

*** NEALE HENRY GENGE XXN MR DIXON

PN4187

Well how many managers do you have in level seven through to level 13?‑‑‑Well, as stated, I have an admin manager, I have a duty manager, I have a head chef, I have a maintenance manager, the assistant secretary manager, myself. I think that's all.

PN4188

Are you able to say out of those, how many earn above $58,000 a year?‑‑‑From memory, all but two.

PN4189

The two are at the lower end of the scale?‑‑‑That's right.

PN4190

Either level seven or level eight?‑‑‑Well, they're on ‑ they're classified as level A.

PN4191

I see?‑‑‑With an overtime exemption.

PN4192

But I think you said the level eight ones all earn above the 20 percent threshold?‑‑‑I said I haven't got their contracts with me so I can't tell you what they're classified without going back over them.

PN4193

If the Commission pleases, that's cross-examination.

PN4194

VICE PRESIDENT HATCHER: Any re-examination?

PN4195

MS BURKE: No, your Honour. If the witness could be excused.

PN4196

VICE PRESIDENT HATCHER: All right, thank you very much, Mr Genge. You're excused and you're free to go?‑‑‑Thank you.

<THE WITNESS WITHDREW [4.38 PM]

PN4197

VICE PRESIDENT HATCHER: Is there any reason why we can't start at 9.30 tomorrow morning?

PN4198

MR DIXON: Not before.

PN4199

VICE PRESIDENT HATCHER: Ms Burke?

PN4200

MR DOWLING: No, your Honour.

*** NEALE HENRY GENGE XXN MR DIXON

PN4201

VICE PRESIDENT HATCHER: All right.

PN4202

MR DIXON: Your Honour, I have an aide memoire which seeks to address the question of the inter-relationship with those three awards which if I may hand up now, it may assist.

PN4203

VICE PRESIDENT HATCHER: All right. We'll now adjourn and we'll resume at 9.30 am in the morning.

ADJOURNED UNTIL THURSDAY, 05 JULY 2018 [4.39 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

LISA MAREE PETRIE, SWORN.................................................................... PN2757

EXAMINATION-IN-CHIEF BY MR DIXON................................................ PN2757

EXHIBIT #22 WITNESS STATEMENT OF LISA PETRIE DATED 23/10/2017 PN2784

EXHIBIT #23 ST GEORGE LEAGUES CLUB LTD ANNUAL FINANCIAL REPORT DATED 31/10/2017.............................................................................................. PN2831

CROSS-EXAMINATION BY MR DOWLING.............................................. PN2831

EXHIBIT #24 CONSTITUTION OF ST GEORGE LEAGUES CLUB LTD PN2886

EXHIBIT #25 ST GEORGE LEAGUES CLUB LTD ANNUAL FINANCIAL REPORT DATED 31 OCTOBER 2015.............................................................................. PN2964

THE WITNESS WITHDREW.......................................................................... PN3233

CHRIS LAWRENCE MOSSMAN, AFFIRMED........................................... PN3238

EXAMINATION-IN-CHIEF BY MR DIXON................................................ PN3238

EXHIBIT #26 WITNESS STATEMENT OF CHRIS LAWRENCE MOSSMAN DATED 08/06/18................................................................................................................. PN3270

CROSS-EXAMINATION BY MR DOWLING.............................................. PN3272

EXHIBIT #27 DOCUMENT ENTITLED "FURTHER SUBMISSIONS TO AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION RE AWARD MODERNISATION PROCESS"............................................................................................................................... PN3295

MFI #1 DOCUMENT ENTITLED "2017 CIRCULAR INDEX CLUBSNSW" PN3463

EXHIBIT #28 DOCUMENT HEADED "CIRCULAR CLUBSNSW FWC HANDS DOWN DECISION ON PENALTY RATES"............................................................... PN3473

EXHIBIT #29 DOCUMENT ENTITLED "CIRCULAR CLUBSNSW DECISION PENALTY RATES 24/02/2017"............................................................................................ PN3497

THE WITNESS WITHDREW.......................................................................... PN3610

CHRIS LAWRENCE MOSSMAN, RECALLED.......................................... PN3610

CROSS-EXAMINATION BY MR DOWLING, CONTINUING................. PN3610

EXHIBIT #30 2017 CIRCULAR INDEX CLUBSNSW................................. PN3634

EXHIBIT #31 LETTER FROM KINGSCLIFF BEACH BOWLS CLUB DATED 06/06/2017............................................................................................................................... PN3641

EXHIBIT #32 CLUBSNSW RESPONSE LETTER DATED 11/08/2017.... PN3642

CROSS-EXAMINATION BY MR ARNOLD................................................. PN3755

RE-EXAMINATION BY MR DIXON............................................................. PN3872

THE WITNESS WITHDREW.......................................................................... PN3900

EXHIBIT #33 CAI TENDER BUNDLE VOLUMES 1 AND 2..................... PN3908

NEALE HENRY GENGE, SWORN................................................................ PN3989

EXAMINATION-IN-CHIEF BY MS BURKE................................................ PN3989

EXHIBIT #34 WITNESS STATEMENT OF NEALE HENRY GENGE DATED 08/05/2018............................................................................................................................... PN4022

CROSS-EXAMINATION BY MR DIXON..................................................... PN4024

THE WITNESS WITHDREW.......................................................................... PN4196