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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009����������������������������������������������������

 

JUSTICE ROSS, PRESIDENT

 

AM2014/305

 

s.156 - 4 yearly review of modern awards

 

Four yearly review of modern awards
(AM2014/305)

 

Penalty Rates

 

 

 

 

 

 

 

Melbourne

 

1.46 PM, WEDNESDAY, 5 APRIL 2017

 

Continued from 28/03/2017

 


PN28805  

JUSTICE ROSS:  Can I have the appearances, please, in Melbourne.

PN28806  

MS S BURNLEY:  Yes, your Honour.  If it pleases the Commission, my name is Burnley initial S, appearing for the Shop Distributive and Allied Employees Association.

PN28807  

JUSTICE ROSS:  Thanks, Ms Burnley.

PN28808  

MR N TINDLEY:  Your Honour, Tindley initial N, of FCB Group, seeking permission to appear on behalf of the Australian Retailers Association and Master Grocers Australia.

PN28809  

JUSTICE ROSS:  Thank you, and in Sydney, Mr Izzo.

PN28810  

MR L IZZO:  Yes, your Honour.  Seeking permission to appear on behalf of Australian Business Industrial and the New South Wales Business Chamber.

PN28811  

JUSTICE ROSS:  Thank you.  Any opposition to the applications for permission?

PN28812  

MS BURNLEY:  No, your Honour.

PN28813  

JUSTICE ROSS:  Having regard to the complexity of the issue, I think it will be dealt with more efficiently if permission is granted.  I grant permission on that basis.  Are all of the retail interests here?  I always lose track of NRA, ARA.  Is there someone who might have an interest that isn't represented?

PN28814  

MR TINDLEY:  There is potential that the NRA may have an interest that aren't represented but I'll undertake to communicate back to them anything that arises from today.  I think we don't currently hold instructions to act for them.

PN28815  

JUSTICE ROSS:  Okay.  Can I deal with some of the issues that have come through.  There's who's going to deal with the issue.  It'll be the Penalty Rate Full Bench, I've already made that decision and referred it to them.  The question then is Saturday and late night penalties, I had apprehended, I think I've only referred the Saturday issue because that was the issue that had been identified in the Penalty Rates Full Bench decision, so at least at this stage, I've referred the Saturday penalty rate claim by the SDA to the Penalty Rate Full Bench.

PN28816  

If I've referred the late night penalty one, I've done it inadvertently because I've just taken the claim number and sent it in.  On the face of it I'm not sure I'd refer the late night work for casuals unless it raises the same issue.  That is, unless it's put that you're going to apply the same merit argument, that is on the Saturday, as I apprehend your argument, it'll be well full timers get 125 therefore casuals should get that amount plus the casual loading, 150.

PN28817  

If the same argument's being run on late night penalties then I follow if full timers of late night get a certain penalty and casuals don't get the full loading on top, if that's the argument, then I can see it would make sense to deal with those by the same Bench but if that's not the argument and it's some other broader restructuring of late night penalties, then I think I'll want to think about where that goes.

PN28818  

MS BURNLEY:  Yes.

PN28819  

JUSTICE ROSS:  Can you help me with that, Ms Burnley?

PN28820  

MS BURNLEY:  I can, your Honour.  It is the same argument for the Saturday penalty which is that the full timers, the permanents get a 25 percent loading for working on the evenings and the casuals only get their casual loading so it's the same principle as applying to the Saturday which we've enunciated, going back in the history of that, I had a bit of a dig, so, yes.

PN28821  

JUSTICE ROSS:  Yes, I think there's quite a bit of history to the late night penalty one.  I'm not as familiar with the history on the Saturday but I think the late night penalty's gone through a few iterations but in any event, and so that's where those matters will lie at the moment.  They're with the Penalty Rate Bench, it having expressed some views on it and to ensure comity of decision making.

PN28822  

It's then a question of how long you want to file your material and I wonder whether there's anything we might do to assist both of you.  For example, I could ask the award review section within the Tribunal administration to look at some history of these two provisions and seek to get whatever material was canvassed during the award modernisation process.

PN28823  

We can produce that as a sort of common exhibit and do it in draft format, invite any comment on it and then, at least, that might avoid some of the issues we got into before about what took place and the like.  Would that be of assistance as a preliminary step?

PN28824  

MS BURNLEY:  Yes, that would be useful.

PN28825  

MR TINDLEY:  Our view, yes, your Honour.

PN28826  

JUSTICE ROSS:  All right.  You happy with that.

PN28827  

MR IZZO:  I would concur as well, your Honour.

PN28828  

JUSTICE ROSS:  I'll try and get a timeframe on that but it's probably worthwhile if you get that before you launch off into - there's no reason why you can't work on your submissions in the meantime but I'll confirm our capacity and the timeframe for it.  I would think you're looking at probably four weeks and I would probably want it published in draft form first and if there's any particular decision that you think is particularly pertinent to these issues, then by all means forward them to my chambers and we'll pass them on to make sure, by a combination of effort, we don't miss anything.

PN28829  

We'll try and get together a background document on those two, the two provisions, at issue and then as I understand your position, Ms Burnley, or the note I've got, was that you were seeking perhaps four weeks after you get that document to file your material and then there's a dispute about how long the employer response is to be and a dispute about - well I'm not sure about the reply.

PN28830  

MS BURNLEY:  Yes, reply dependent on how long the employers ‑ and how broad the case was going to be, your Honour.

PN28831  

JUSTICE ROSS:  Sure.  Is the short point this that the employers want three months and the SDA thinks that's too long.  Is that really it?  I wonder whether - it'd be a matter for the Bench to decide the directions, I can make that clear.  I wonder whether it might proceed on the basis we publish the background document.  Perhaps the SDA can outline within the next four weeks, without putting your full submission, Ms Burnley, and the evidence, but you set out what you're seeking and the basis of your argument.

PN28832  

Mr Tindley, you'll be able to see then what you've got to respond to.  It may be, and I wouldn't want to put this too highly, but it may be that you can agree on certain consequences that might flow from such a change.  If, as I apprehend your submission, it may be that there'll be an employment effect of such an increase and a shift and it may be that in discussion with the SDA you can agree about how that might be expressed.

PN28833  

The alternative is, of course, for you to call a swag of witnesses to make the same point, so it may be that you can accommodate your position by discussion and agreed findings rather than putting you to the trouble and expense of a major evidentiary case.  I mean if you press the point, I'll take it to the Bench and we'll issue directions but it might be better to have an iterative process.

PN28834  

The SDA, in the next four weeks, to outline what it's going to be doing and in the next four weeks we'll also publish that background document.  I'll then call the matter on for mention again and in the interim, I'll have expected you and Mr Izzo, and the NRA if they're involved, to have a discussion with Ms Burnley and see what you can sort out.  I think it's desirable, if possible, to contain the case.

PN28835  

We've just been through a bit of an exercise, I'm sure there's a degree of Tribunal fatigue starting to set in and I don't want to prejudice any party's opportunity to put their case but I just want you to think about whether there's another pathway that may be open and I encourage the SDA to look at that constructively too, bearing in mind the case we've just gone through and some of the findings and observations we've made there.

PN28836  

They're not directly applicable to this because it's moving in the different direction but nevertheless they might inform where you go, all right.

PN28837  

MR TINDLEY:  Yes.

PN28838  

JUSTICE ROSS:  Are you content to adopt that or do you want me to bring down the hammer now really?  You happy to do it, let's see how it develops?  Your rights are protected anyway.  There's nothing to stop you - you may not have changed your position and we'll be back here and then that's where we'll be and you can use the time up until then to start to develop your case and your response and how you want to deal with it.  You can - - -

PN28839  

MR TINDLEY:  Yes, look, your Honour, we're comfortable with that approach.  Effectively it does promote the possibility of a more confined case but if there's no agreement, then we're back to pulling that evidence together.

PN28840  

JUSTICE ROSS:  Yes.  What I will want from you, I'll probably call it back on for mention in about five or six weeks because we'll have the documents then, I will want from you at that stage that if you are going to seek an extended period of time, I'm going to want to have a pretty clear idea about what you're planning on doing with the time, so I want to know the range and nature of any witness evidence and why it is you need that amount of time.  Bearing in mind you will have already had four weeks of it, so bear that in mind.  Are you content with all that, Mr Izzo?

PN28841  

MR IZZO:  We are.

PN28842  

JUSTICE ROSS:  Happy enough with that?

PN28843  

MS BURNLEY:  Yes, your Honour.

PN28844  

JUSTICE ROSS:  Just to be clear, Ms Burnley, if you can file that outline, and that's all it would be, as to the nature of your case and what you're intending to put, whether you're intending to call any witness evidence, et cetera, so Mr Tindley and Mr Izzo will have a bit of an idea about what are they replying to.  We'll work on the background document, get that to you in draft and then have an opportunity to comment on it.

PN28845  

You should provide any input you want as soon as you can.  We'll get that underway, try and get that back to you within four weeks and then in five or six weeks, I'll call it back on and we'll have a better idea of where we are and I'll encourage you to have direct discussions between the relevant parties so that you can see what effort might be made to confine the case as we go forward.  All right?

PN28846  

MR TINDLEY:  Yes.

PN28847  

JUSTICE ROSS:  Is there anything else you want at this stage?

PN28848  

MR TINDLEY:  No, thanks, your Honour.

PN28849  

JUSTICE ROSS:  No?  Well there probably is but nothing I can help you with, so.  All right, thanks very much, we'll adjourn.

ADJOURNED TO A DATE TO BE FIXED��������������������������������������� [1.58 PM]