PN1

JUSTICE ROSS: Good afternoon. Could I have the appearances please?

PN2

MS K O'BRIEN: O'Brien, initial K, for the Australian Industry Group.

PN3

JUSTICE ROSS: Thank you.

PN4

MR M GALBRAITH: Galbraith, initial M, for the SDA.

PN5

JUSTICE ROSS: Thank you.

PN6

MR J CULLINAN: Cullinan, initial J, for the RAFFWU.

PN7

JUSTICE ROSS: Thank you. Look, the purpose of the mention is to sort through the number of witnesses to be cross-examined by RAFFWU and the SDA and the likely timeframe for that cross-examination. You'd given an indication on a previous mention, I think there were some five witnesses involved from memory, one of whom was Mr Flemington. Starting with you, Mr Galbraith, can you indicate which witnesses the SDA wishes to cross-examine?

PN8

MR GALBRAITH: Yes, thank you, your Honour. Two witnesses definitely being Anderson and Agostino. Anderson's likely about 30 minutes and Agostino less than 30 minutes.

PN9

JUSTICE ROSS: Yes.

PN10

MR GALBRAITH: Your Honour, I've been in contact with counsel who's currently on leave but he has been following the correspondence on this. He's unlikely to want to cross-examine Hossain but he said when he gets back and reviews the material more closely he'll decide on that, but he thinks at this point that's unlikely.

PN11

JUSTICE ROSS: When will he be back from leave?

PN12

MR GALBRAITH: Early next week.

PN13

JUSTICE ROSS: Well, can I leave it with you then to contact Ai Group as soon as you know whether or not Mr Hossain's required for cross-examination - - -

PN14

MR GALBRAITH: Yes.

PN15

JUSTICE ROSS: - - - and preferably by the close of business on Wednesday, so that he can be made available. I'll come back to you - - -

PN16

MR GALBRAITH: I'll let you know on Monday or Tuesday.

PN17

JUSTICE ROSS: Thanks, Mr Galbraith. I'll come back to you in a moment. Mr Cullinan, who do you wish to cross-examine?

PN18

MR CULLINAN: Thank you, your Honour. We are seeking to cross-examine four of the witnesses.

PN19

JUSTICE ROSS: Can you identify them?

PN20

MR CULLINAN: Yes, Hossain.

PN21

JUSTICE ROSS: Yes.

PN22

MR CULLINAN: Agostino.

PN23

JUSTICE ROSS: Yes.

PN24

MR CULLINAN: Anderson.

PN25

JUSTICE ROSS: Yes.

PN26

MR CULLINAN: And Montebello.

PN27

JUSTICE ROSS: Right, and how long will you be in relation to those witnesses?

PN28

MR CULLINAN: So what we've told the AIG yesterday was less than 30 minutes for Hossain.

PN29

JUSTICE ROSS: Yes.

PN30

MR CULLINAN: Approximately one hour for Agostino.

PN31

JUSTICE ROSS: Yes.

PN32

MR CULLINAN: One and a half hours for Anderson.

PN33

JUSTICE ROSS: Yes.

PN34

MR CULLINAN: And two hours for Montebello.

PN35

JUSTICE ROSS: Right. Well, that can be comfortably done in a day. Is there any - well can I put this to both Mr Galbraith and Mr Cullinan. Is there any logic that would dictate the order of the witnesses?

PN36

MR CULLINAN: The AIG has communicated with us a desire for two of the witnesses in the morning and two in the afternoon, so we have - - -

PN37

JUSTICE ROSS: Yes. Which two?

PN38

MS O'BRIEN: In the morning it would be Agostino and Anderson who are both the McDonald's witnesses at 9.30, and then if possible to split, then it would be Hossain and Montebello after lunch, unless we can - the Commission requires them to be available earlier in the day.

PN39

JUSTICE ROSS: What time are we scheduled to commence the proceeding?

PN40

MS O'BRIEN: 9.30.

PN41

MR CULLINAN: 9.30.

PN42

JUSTICE ROSS: Just bear with me for a moment. Well, if we could have Hossain and Montebello available from 1.30.

PN43

MS O'BRIEN: Yes.

PN44

JUSTICE ROSS: Also, can I put this to - although obviously Ai Group has an interest in it but to Mr Galbraith and Mr Cullinan. Your respective counsel are going to need to have some discussions prior to the hearing because you can take it that the Commission's not going to be enthusiastic about witnesses being asked the same question by two different people in cross-examination. You're going to need to confer about what is the most efficient way for you to conduct the cross-examination.

PN45

MR CULLINAN: Certainly, I understand.

PN46

JUSTICE ROSS: I'll leave that with you. Is there anything else about the witnesses? Do I take it - look, we haven't had a discussion about what happens next but the Bench is available the following morning. The parties have already put in written submissions and no doubt will have a good idea as to what they're going to want to put following the witness evidence. It would seem to me to make sense for the matter to be heard the following morning, and the parties to put oral argument in closing based on the evidence that we've heard.

PN47

MR GALBRAITH: Your Honour, our counsel isn't available on the 16th. It was their expectation that the matter would be heard in the one day.

PN48

JUSTICE ROSS: Well, that means then that you would go on at the end of the evidence, so you're content to do that?

PN49

MR GALBRAITH: Yes.

PN50

JUSTICE ROSS: Is that the position with each of you?

PN51

MS O'BRIEN: Yes, your Honour, our counsel for Ai Group estimates their closing submissions will take an hour to an hour and a half, so I think that'll take place on the day that it's listed.

PN52

JUSTICE ROSS: Right, well, let's just - I'm sorry, have I - Mr Cullinan, you're in the same position?

PN53

MR CULLINAN: Well, we have a different approach and that is we're seeking a period of time to do a closing in writing, having had the benefit of the transcript.

PN54

JUSTICE ROSS: Yes, well - - -

PN55

MR CULLINAN: Which may mean that we've got a very short time on the day but we would still seek the opportunity to make a written submission.

PN56

JUSTICE ROSS: Well, yes, I think we'll deal with that on the day but you should be prepared to proceed orally. You can renew your application on the day before the Full Bench but you can take it that our expectation is we'll hear oral argument at the end of the day.

PN57

MR CULLINAN: Thank you, your Honour.

PN58

JUSTICE ROSS: Let's just go through the timeframe then. AT the moment you have a total of three and a half hours in the morning starting at 9.30, so that would have us concluding that at 1 pm. Then you have Hossain and Montebello in the afternoon, that's two and a half hours, starting at three - sorry, starting at one. That means - or 1.30 rather. That means you would finish at 4 o'clock, and Ai Group thinks its counsel's going to be, what, an hour and a half, 5.30. If that's what happens then we wouldn't require the others to reply, not at 5.30 in the evening. So you need to have a think about how this is going to work after.

PN59

Just on the estimates that you've given for the hearing of the evidence, unless you can tell me that I've got the calculations wrong, you won't start oral submissions until 4 pm at the earliest.

PN60

MR GALBRAITH: I think that seems about right, your Honour.

PN61

JUSTICE ROSS: If Ai Group takes an hour and a half, well it's not going to be trial by exhaustion and then the others are stuck with starting at 5.30 at the end of what will be a long day, I don't think that would result in a fair hearing. What, in the light of that, do you suggest?

PN62

MS O'BRIEN: Perhaps if the SDA would want to provide their closing submissions starting at 4 pm and then Ai Group and RAFFWU could be heard the following morning.

PN63

JUSTICE ROSS: Well, the SDA then won't have heard your closing argument and they're opposed to one of your claims.

PN64

MS O'BRIEN: I understand, your Honour.

PN65

MR GALBRAITH: Your Honour, our counsel, and this starts to get complicated, is available on the 19th and the 20th if required but I mean I think their expectation was to try and wrap it up in the one day.

PN66

JUSTICE ROSS: Yes.

PN67

MR GALBRAITH: I'm not sure how that fits with everyone else.

PN68

JUSTICE ROSS: Well, yes.

PN69

MS O'BRIEN: Our counsel's available the 19th and the 20th.

PN70

JUSTICE ROSS: So the only counsel not available on the 20th is the SDA's, is that right?

PN71

MR GALBRAITH: No, no, the SDA - - -

PN72

MS O'BRIEN: No, on - -

PN73

JUSTICE ROSS: Sorry, let's just go through it again. So Ai Group's is available on both days. The SDA?

PN74

MR GALBRAITH: Not available on the 17th. We are available on the 19th and the 20th.

PN75

JUSTICE ROSS: Just bear with me for a moment. Just bear with me, I'm just getting the calendar. Can I touch on something else? We had a request from Ai Group to extend the timeframe for the filing of the material. There's also been a request for confirming the nature of the findings sought by the Commission. We're not actually seeking any findings. What I'm asking you is what findings are you asking us to make based on the evidence? The evidence has to be relevant to the claim and therefore presumably you want us to make some findings on the basis of the evidence.

PN76

For example, you want us to find that - I'm not suggesting this is one of the findings, I hope you don't all get excited about it, that there's a high proportion of casual employees in the fast food industry for example, and your current submissions are replete with what might be regarded as findings that you're asking us to make. What I want you to do is to have a list of what findings do you want us to make on the evidence, what findings of fact are you asking the Commission to make? Because I want to know that before I hear the evidence, before I see the witnesses. Are you clear about what we're seeking?

PN77

MS O'BRIEN: Yes, your Honour.

PN78

JUSTICE ROSS: Right. So at the moment, what's the availability on the 19th?

PN79

MR GALBRAITH: SDA is okay.

PN80

JUSTICE ROSS: Yes.

PN81

MS O'BRIEN: Ai Group is okay.

PN82

JUSTICE ROSS: Yes, RAFFWU?

PN83

MR CULLINAN: I just don't have Ms Kelly's availability, I'm sorry.

PN84

JUSTICE ROSS: Right. The 18th?

PN85

MS O'BRIEN: Ai Group's available.

PN86

JUSTICE ROSS: Right.

PN87

MR GALBRAITH: The SDA is available but would prefer the 19th and the 20th. Counsel would have to make some adjustments to his calendar.

PN88

JUSTICE ROSS: I think we'll look at the 19th. Mr Cullinan, how quickly can you find out?

PN89

MR CULLINAN: I actually don't know, I'm sorry, your Honour. I've been trying to contact Ms Kelly for the last two days about availability and I haven't had a response, so I think she is away.

PN90

JUSTICE ROSS: Right, just bear with me for a moment. We'll contact her chambers on another line, just bear with us for a moment.

PN91

MR CULLINAN: Thank you. I do understand that she's away, your Honour.

PN92

JUSTICE ROSS: Well, her clerk will be there. I'll need to check the availability of the Bench as well. When is she back, do you know?

PN93

MR CULLINAN: I understood this weekend.

PN94

JUSTICE ROSS: Right. Well, we'll leave it on the basis that you can contact her and say - if we leave this as the current arrangement, if this doesn't work out then I'll have a further mention and we'll sort through it but at the moment you should all proceed on the basis that the matter will - we'll hear all the evidence on the Monday, the 16th, and we'll hear closing submissions on the 19th.

PN95

MR CULLINAN: Right.

PN96

JUSTICE ROSS: So you can at least let your respective counsel know that. If Ms Kelly can't do that then we'll need to - well we'll deal with that on the Monday about how the matter's to proceed. Either the parties can discuss it amongst themselves - my preference is for an oral closing, not in writing. Because if it's in writing we end up with the inevitable endless responses to what someone else has said, the Bench doesn't have an opportunity to engage with any of you about what your respective arguments are. If we have any questions we don't have a ready mechanism of getting them answered and frankly if it was a trial in a court you'd be on your feet at the close of the evidence, so I don't think - I do think it's unreasonable to expect people after a full hearing day to be on their feet at 6 o'clock at night responding, so I'm sympathetic to the notion that there be another day but we have to find a day as close to the closing of the evidence as well can. So Mr Cullinan, that at the moment is in your hands to find out Ms O'Brien's availability and to let us know as soon as you can.

PN97

MR CULLINAN: Yes, and I will do.

PN98

JUSTICE ROSS: Once you let us know we'll let all the parties know and we'll confirm what the arrangements are. If it's not going to work out then we'll have another mention and I'll want each of your counsel to be on the phone for that mention, because we may have to explore different dates and you may not know their calendar. So they're going to have to be on the telephone mention on the next occasion.

PN99

MR CULLINAN: Understood.

PN100

JUSTICE ROSS: Thanks very much. You're content with that Ms O'Brien in relation to - you'll contact your witnesses and get that sorted?

PN101

MS O'BRIEN: Yes, I will, your Honour.

PN102

JUSTICE ROSS: Right. Thanks very much for your attendance, I'll adjourn.

PN103

MS O'BRIEN: Thank you.

PN104

MR GALBRAITH: Thank you, your Honour.

PN105

MR CULLINAN: Thank you.

ADJOURNED INDEFINITELY [1.21 PM]