PN7465

VICE PRESIDENT HATCHER: Mr Dixon, Mr Gotting.

PN7466

MR GOTTING: Your Honour, before we continue today can I attend to tendering extracts of the cross-examination bundles which were used in cross-examination of the witnesses called by the unions.

PN7467

VICE PRESIDENT HATCHER: Well, is it a single bundle or it is - - -

PN7468

MR GOTTING: There's a series - the answer is no.

PN7469

VICE PRESIDENT HATCHER: Right. Just hold on a sec. Right, go ahead.

PN7470

MR GOTTING: The first tender is the cross-examination bundle of Mark Unwin and I understand it will become exhibit 57 in the proceedings.

PN7471

VICE PRESIDENT HATCHER: The cross-examination bundle of Mark Unwin will be marked exhibit 57.

EXHIBIT #57 CROSS-EXAMINATION BUNDLE OF MARK UNWIN

PN7472

MR GOTTING: The second tender is the cross-examination bundle of Vicki Crowe.

PN7473

VICE PRESIDENT HATCHER: So that will be marked exhibit 58.

EXHIBIT #58 CROSS-EXAMINATION BUNDLE OF VICKI CROWE

PN7474

MR GOTTING: The third tender is the cross-examination bundle of Gavin Kirkman.

PN7475

VICE PRESIDENT HATCHER: Cross-examination bundle of Gavin Kirkman will be marked exhibit 59.

EXHIBIT #59 CROSS-EXAMINATION BUNDLE OF GAVIN KIRKMAN

PN7476

MR GOTTING: The fourth tender is the cross-examination bundle of Tim Wright.

PN7477

VICE PRESIDENT HATCHER: The cross-examination bundle of Tim Wright will be marked exhibit 60.

EXHIBIT #60 CROSS-EXAMINATION BUNDLE OF TIM WRIGHT

PN7478

MR GOTTING: The fifth tender is the cross-examination bundle of Zoe Klegg - sorry Matthew Dagg.

PN7479

VICE PRESIDENT HATCHER: The cross-examination bundle of Matthew Dagg will be marked exhibit 61.

EXHIBIT #61 CROSS-EXAMINATION BUNDLE MATTHEW DAGG

PN7480

MR GOTTING: The sixth tender is the cross-examination bundle of Zoe Klegg.

PN7481

VICE PRESIDENT HATCHER: The cross-examination bundle of Zoe Klegg will be marked exhibit 62.

EXHIBIT #62 CROSS-EXAMINATION BUNDLE OF ZOE KLEGG

PN7482

MR GOTTING: The seventh tender is the cross-examination bundle of David Hiscox.

PN7483

VICE PRESIDENT HATCHER: The cross-examination bundle of David Hiscox will be marked exhibit 63.

EXHIBIT #63 CROSS-EXAMINATION BUNDLE OF DAVID HISCOX

PN7484

MR GOTTING: That completes the tender of the cross-examination bundles. There was some material produced by the Professional Golf Association on Monday. It was in the form of two data sets. Copies of the data sets have been printed and I've provided a copy to United Voice and I seek to tender each data set. The first tender is the data set described as Member Survey 1.

PN7485

VICE PRESIDENT HATCHER: PJ Member Survey 1 will be marked exhibit 64.

EXHIBIT #64 PJ MEMBER SURVEY 1

PN7486

MR GOTTING: For the avoidance of doubt exhibit 64 was produced in response to the order for production made by the Commission on Friday afternoon. The next tender is Member - the data set for Member Survey 2.

PN7487

VICE PRESIDENT HATCHER: PJ Member Survey 2 data set will be marked exhibit 65.

EXHIBIT #65 PJ MEMBER SURVEY 2

PN7488

MR GOTTING: Once again, exhibit 65 was produced in response to the order for production of the Commission issued on Friday. That completes the tenders from Clubs Australia.

PN7489

VICE PRESIDENT HATCHER: Mr Dowling, what happened to your additional exhibit? Didn't you have something?

PN7490

MR DOWLING: Subject to an application we wish to make this morning we'll deal with that tomorrow.

PN7491

VICE PRESIDENT HATCHER: Right. Do you want to make that application now?

PN7492

MR DOWLING: Yes, your Honour.

PN7493

VICE PRESIDENT HATCHER: Go ahead.

PN7494

MR DOWLING: Thank you, your Honour.

PN7495

VICE PRESIDENT HATCHER: Just hold on a sec, Mr Dowling.

PN7496

MR DOWLING: Yes.

PN7497

VICE PRESIDENT HATCHER: Yes, go ahead.

PN7498

MR DOWLING: Thank you, your Honour. The Full Bench is no doubt aware that yesterday afternoon we were provided with new amendments to the proposed award that is to replace the Clubs Award or that is to cover the employees formerly covered by the Clubs Award. We understand that the solicitor for the applicant notified your Honour chambers shortly before 7 o'clock last night. Those amendments on our reading in the time we've had include matters upon which United Voice and it seems to us some of the other objectives may wish to call evidence, particularly evidence from employees that detail the consequence of the removal of those entitlements. Secondly, there may be evidence from the employers that detail the consequences of the removal of the entitlements. Thirdly, there may be evidence as to the history of those particular entitlements and how that impacts upon their removal.

PN7499

Can I illustrate that by giving you an example. The Bench will recall that the AWU called some evidence with respect to clause 29.1(e) which was a proposal to change the ordinary hours of the maintenance and horticultural workers. Two witnesses were called that set out the consequences of inserting a provision that allowed for the changing of ordinary hours for maintenance and horticultural workers, and the effect of that for them and the effect of that for employees in securing employment.

PN7500

Now ultimately that was removed and those witnesses weren't relied upon but I raise it as the type of evidence that might be called with respect to what are now new changes.

PN7501

VICE PRESIDENT HATCHER: Mr Dowling, I recall you raised in cross-examination with at least one witness that parties should have been alive to the possibility that the outcome of the proceedings may not conform to the precise terms of the award variation sought by CAI, that is it's always on the cards that the Full Bench would or possibly could form its own view about what an amalgamated award would look like if it was inclined to go down that path.

PN7502

MR DOWLING: Yes.

PN7503

VICE PRESIDENT HATCHER: Why wouldn't that apply fully to your client?

PN7504

MR DOWLING: Well, that option certainly was open but that doesn't undermine the entitlement to procedural fairness to our client. So in our submission, if the Bench proposed to adopt a course inconsistent with what had been put by the applicant, it would still need to give the parties an opportunity to be heard upon it.

PN7505

VICE PRESIDENT HATCHER: Well, no doubt you'd be aware that the usual course the Commission has taken in this 4 Yearly Review is that when that occurs it publishes - - -

PN7506

MR DOWLING: Yes.

PN7507

VICE PRESIDENT HATCHER: - - - a draft determination or an Exposure Draft and then gives parties a further opportunity to make a case as to why that at least provision view should not be adopted. In the event that we decided to go down the path suggested by the most recent correspondence, for example, why wouldn't that course afford your client and others procedural fairness?

PN7508

MR DOWLING: Well, this is a different approach, in our submission. It is one thing for the Commission to hear all of the evidence called by all of the parties and potentially come up with an alternative that's different and then give the parties an opportunity to answer it but what we are facing as the result of the amendments delivered late yesterday is a new case put by the applicant that we should be entitled to answer not only in the way that your Honour described in terms of proposed changes that the Commission might make but here it's directed at the particular case that the applicant now puts.

PN7509

The applicant now seeks to remove some specific entitlements that clubs employees have and we should be given the opportunity, in our submission, so should the other objectors if they wish to take it, of putting evidence directly to those matters, not just responding to a proposal that the Bench may have but calling evidence expressly in response to it.

PN7510

VICE PRESIDENT HATCHER: Right.

PN7511

MR DOWLING: That it is in those circumstances, your Honour, to enable us to prepare evidence in response to these new amendments and, we should say, to consider the possibility that the witnesses already called by the applicant might need to be recalled so that they can be cross-examined on what is now a new case. There was at least, or not at least, only one employer called by the applicant.

PN7512

She, Ms Petri, was not cross-examined on any of these new proposals and how they might impact upon her place of employment because, of course, we didn't know about them, so that is the problem that has arisen as a result of the late amendments and I provide two cases to the Bench, I provided these to my learned friends. They are principles that all the members of the Bench will be familiar with but for completeness - of the two cases, can I please firstly take the Bench to the Australian Railway Unions case, reported in 117 ALR 17, and this concerned parties, the relevant parties, making submissions about an interim - or ultimately the Commission made a final award and there was a challenge to that on the basis that the parties had not been given, or afforded, procedural fairness to present their case in respect of the possibility of it being a final award.

PN7513

The principles that we point the Bench to, can be found starting on page 23. Before I come to the principles, the start of paragraph or line number 40, can I just take the Commission, please, to line number 26 where consistent with what I said a moment ago about the facts:

PN7514

It is clear that the relief granted by the Commission in the form of the Victorian Public Transport Post (indistinct) Retrenchment Award was not the relief sought by any of the parties to the application which was before it.

PN7515

That's not analogous of the situation but the principle applies, we say. From line 40:

PN7516

But the wide scope given to the Commission in determining the relief which it will give does not absolve it from an obligation to observe the rules of procedural fairness in exercising its arbitral function.

PN7517

Citicorp is there referred to:

PN7518

This court pointed out that it is well settled that the Conciliation and Arbitration Commission was bound to act judicially and the Commission, as its successor, is bound to do likewise.

PN7519

The court went on to point out that:

PN7520

One aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and coupled with that is a duty to consider the case put.

PN7521

There's there reference to the Hoyts case where the court says that:

PN7522

The Commission has a duty in considering an application to afford a party a reasonable opportunity to allow his or her case to be put.

PN7523

That's the first of the principles we rely upon. I'll go to the particular clauses that concern us and the need for us to put evidence in respect of them. Before I do that, can I just very briefly take the Bench to the second of the decisions that I provided this morning and is the Minister for Immigration v Lee, another decision that the Bench is no doubt familiar with, standing for the principle that a denial of procedural fairness can amount to a jurisdictional error.

PN7524

Can I take the Bench firstly to paragraph 11 which appears on page 342 of the report, I do this for completeness. You'll see there there's reference to the statutory description of the powers and how they should be exercised of the Migration Review Tribunal which was relevantly similar for the RRT, which is also considered. We just note that the same approach is applied in the Fair Work Act in terms of acting consistent with equity and good conscience and the substantial merits of the matter, so I raise that to demonstrate that the position that was presented to the High Court was relevantly similar to the statutory powers that the Commission has.

PN7525

The principles relevantly start at paragraph 18 and 19 on page 346 where French CJ there describes the matters that are referred to in division 5 of part 5 of the Act, that part I've previously gone to, and part way down that paragraph says:

PN7526

Division 5 does not deal with the matter of an application by an applicant for an adjournment in order to provide additional material or

PN7527

as in this case:

PN7528

the provision of a third party assessment, the existence of which is the criteria for the grant of the visa. The common law hearing rule of procedural fairness applies to the process for making a decision to grant or refuse an adjournment in such cases and informs its legal consequence where a person is said to have been deprived by a refusal of a reasonable opportunity for a hearing.

PN7529

He goes on to note:

PN7530

The decision of this court in Bhardwaj pre-dated the enactment of the relevant legislation

PN7531

that I referred to a moment ago:

PN7532

Nevertheless, having regard to the proper construction of those provisions, the observation of the judgement of Gaudron and Gummow that a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness remains apposite to the proceedings of the MRT and the RRT.

PN7533

That, we say, consistent with those principles to refuse, subject to what I have to say about the particular evidence that we expect to go to, that consistent with those principles to refuse the applicant an adjournment in the present circumstances would be a denial of procedural fairness amounting to a jurisdictional error. The members of the Bench will have seen the list of the amendments that are now currently proposed to be made to the application by the applicant - - -

PN7534

VICE PRESIDENT HATCHER: I suppose this application's premised on the assumption that CAI will be granted leave to amend its application.

PN7535

MR DOWLING: Yes, we have contemplated, your Honour, how that might fall out, of course. If we were dealing with pleadings and we might be able to say "Well too late. You should not be entitled to amend", we're in a rather different situation dealing with a review under section 156 where to do so, in our submission, might be effectively telling the applicant that being forced to run a case that it now no longer wants to run because it's withdrawing some of the provisions.

PN7536

That has consequences for us and our members, my client's members, of course, but your Honour is right, one alternative might be to say to the applicant "I'm sorry, you've got to run the case that you've been running for the last week and a half and that's the end of it". Your Honour is right, our application is premised on them proceeding with the application as foreshadowed in their correspondence last night.

PN7537

VICE PRESIDENT HATCHER: Right. Anyway, let's proceed on that assumption until we hear what Mr Dixon says about it.

PN7538

MR DOWLING: Thank you, your Honour. I didn't want to take you to all of the amendments that are proposed but I wanted to illustrate our point by referring to a number of them. If I can take the Bench to clause 29.4 of the amended proposed Amalgamated Hospitality and Clubs Award as it was prior to yesterday afternoon. I do - - -

PN7539

VICE PRESIDENT HATCHER: Which one was that, 29 point?

PN7540

MR DOWLING: 29.4, it appears on page 43 of my version of the proposed amended award.

PN7541

VICE PRESIDENT HATCHER: Yes.

PN7542

MR DOWLING: And it deals with make up time. As we understand the amendment here, it would be to remove the make up time provision that is set out at the bottom of the page, the last three lines of the page, dealing with make up time for clubs' employees. A comparison of the two entitlements makes it very clear that two very different things are being talked about. This is not a case where removing the clubs' entitlements leaves you with something substantially similar so what is our complaint. The two entitlements are very different. One entitles a club employee to elect, with the consent of their employer, to work make up time, under which they may take time off and work those hours at a later time. The scheme provided for, for what was employees other than clubs, is a very different scheme. It seems to suggest, consistent with subparagraph (a)(i), that it might be the employer that proposes it but thereafter there has to be agreement by a majority of employees. So the entitlement provided for by what was the clubs' provision, we say, is something that has been lost and is not insignificant, and something that those employees or employers that use it we expect will want to say something about on our instructions.

PN7543

That's the first of the examples. If I could ask the Bench to turn over two pages to page 45 and the clause starting at 31.6, the green font, representing that it was an entitlement under the clubs award. As we understand it, there's a proposal to remove everything in green from 31.6 through to 31.12. We can say in respect of 31.6 through to 31.9 there are some approximate equivalents from what would be left behind. That is not so in respect of 31.10, that is, breaks for work falling between 11 pm and 8 am. So that is again something that will be lost, something that we expect employees and possibly employers will want to be heard upon. Likewise, over the page, 31.11 and 31.12, they are sought to be removed. I should say, just to interpolate for a moment, there's a difference between this clause and the earlier one I took the Bench to. The Bench will recall from the correspondence sent last night, the earlier clause I went to, 29.4, we understand is to be removed regardless of what happens with respect to any other aspect of the application, whereas in respect of this clause, we understand what's now put by the applicant is: we wish to retain it; alternatively, we wish to phase it out. Perhaps not a lot turns on that for the point that I'm making, because in our submission, if it's to be phased out it's going to be lost, albeit later but certainly lost, and in those circumstances, that's something that we wish to be heard on.

PN7544

I was at the point of detailing clause 31.11 and 31.12. There the Bench will see that the tea breaks for maintenance and horticultural employees are to be lost. We expect, again, the need to provide some evidence for the loss of that entitlement. It may be also that Mr Randolph, representing the Australian Workers' Union, has something to say about that, because he covers the maintenance and horticultural employees. So that is a second example of the type of loss of entitlement that we expect to need to address. Can I just identify more briefly a number of the others, going backwards - 13.3, which appears on page 15, is an entitlement for casual employees to be paid overtime for any work in excess of 12 hours per day or per shift or in excess of 38 hours per week. That is an entitlement that is to be removed, and again we expect something might be said on it. We caveat this one by noting that this was out and then came in at a later stage, and is now out again, but again, we may wish to say something about it. Alternatively, we may wish to cross‑examine about it.

PN7545

Can I just then, lastly, without going to it, note at least two other provisions that we presently expect to need to address, that is, the amendment to the junior rates provision in clause 20.5. The effect of that loss both for employers and employees in attracting suitable employees, and the ordinary hours provisions in 29.1(d)(vii) and 29.1(b)(ii). They are an illustration but not an exhaustive list of the types of matters upon which we presently anticipate we would need to call evidence, and if we were not permitted to do so, in our submission, would be denied procedural fairness. We are in the Bench's hands as to, subject to the granting of the application, how best it might be dealt with. That might depend a little bit upon what the applicant says. Of course this is the applicant's case and the applicant's amendment. One would normally expect that the applicant might put on its own evidence about these changes if it wishes to call any. If it chooses not to, well, we, on my present instructions, would still wish to do so. So the timing of how any additional evidence or additional hearing dates might be dealt with are subject to that response that needs to come from the applicant.

PN7546

VICE PRESIDENT HATCHER: So just to be clear, you want to adjourn at this point now?

PN7547

MR DOWLING: Yes.

PN7548

VICE PRESIDENT HATCHER: Not hear closing submissions; have a program for filing of further evidence, submissions and further hearing dates, then closing submissions, is that broadly what you seek?

PN7549

MR DOWLING: Yes, your Honour. I mean, one alternative might be to hear closing submissions, but it seems to us that they would have to be repeated. But it also seems to us that it might significantly change the case that the respondent puts, because the case that the respondent was meeting was: all of the clubs' entitlements are to be carried over and given to you, save penalty rates. Now what is put is a number of those entitlements will not be carried over. That might change the responsive case of the respondent, and by that I mean the respondent may now say, well, if you're to choose one of the two entitlements and you're not going to have hotels, or hospitality and clubs, why not the choose the clubs' entitlement.

PN7550

VICE PRESIDENT HATCHER: Can you just take me back to clause 13.3?

PN7551

MR DOWLING: Yes, your Honour.

PN7552

VICE PRESIDENT HATCHER: Is that provision in the existing hospitality award?

PN7553

MR DOWLING: No, your Honour. It is, on my understanding, a provision that presently exists in the Registered and Licensed Clubs Award and was, on the present application, prior to last night, to be included in the hospitality award. So I think, your Honour, unlike some of the other clubs' entitlements that came over, the other clubs entitlements the came over were then restricted to clubs employees, this one, and I explained your Honour's concern. This one came over and appears to now apply to all hospitality workers. But is now to be removed.

PN7554

VICE PRESIDENT HATCHER: Right.

PN7555

MR DOWLING: Unless the Bench has any questions, that is the application and the basis for it.

PN7556

VICE PRESIDENT HATCHER: Thank you. Does any other party wish to be heard in support of Mr Dowling's application? Mr Cooper.

PN7557

MR COOPER: Again, we've heard a lot of evidence about two awards into the one. We basically have been working on the latest draft dated 15 June. So overnight we get another revised document and I think it puts us at a disadvantage to fully digest what the changes are. I acknowledge the two significant points raised as examples but we would support United Voice's application to adjourn the matter so the possibility could be to revisit this document.

PN7558

In my opening remarks I did make the distinction that it's really up to the Commission, it is the Commission's awards. They may produce a draft exposure document and I agree there would be an opportunity for consultation to talk about that draft exposure document. It may look nothing like the document dated 15 June or the document which was produced overnight, thank you. So we do support the application to adjourn the matter on the grounds of procedural fairness, thank you.

PN7559

VICE PRESIDENT HATCHER: Mr Duncalfe.

PN7560

MR DUNCALFE: Thank you, your Honour. The AWU does support the application made by United Voice, especially in respect of the amendments proposed by the applicant last night, the breaks provisions that they seek to transition out in relation to the maintenance and horticulture employees, as Mr Dowling did go through earlier. We would have led evidence - the AWU would have led evidence on the retention of those breaks provisions as they are distinct to the breaks provisions that do exist for other employees covered by the Clubs Award and obviously employees covered by the Hospitality Award. We would have led evidence on the junior rates notwithstanding that the junior rates wouldn't change for all ages but there would be a change and it would be a decrease in the entitlement for junior employees who would be covered by the Australian Workers Union.

PN7561

We believe that with the process, as Mr Dowling said, we did have two witnesses to speak to the proposed changes that the applicant made to the ordinary hours, or the acceptance of a reclassification of overtime to ordinary hours. On that being withdrawn by the applicant we withdrew our witnesses because they spoke to that. We wouldn't have withdrawn those witnesses, they would have had something to say about the breaks and possibly the junior employees rates in their evidence as well, and we wouldn't have withdrawn them had we known that this was the case at the outset of the application. So we do support the United Voice application, your Honour.

PN7562

VICE PRESIDENT HATCHER: Thank you. Mr Ryan.

PN7563

MR RYAN: Your Honour, our position and I was only made aware of this application upon arrival this morning. Our position would simply be that if arising out of this, a party is going to make submissions or lead evidence that one of the existing provisions in the Hospitality Award should be removed and in its place substituted therefore a provision in the Clubs Award, we would like the opportunity to be able to potentially lead evidence and put detailed submissions about that in terms of how that might impact our members. So that would be our position is the Commission's minded to grant the application.

PN7564

VICE PRESIDENT HATCHER: So Mr Ryan, although your members might like it, I take it that for example the proposed deletion of clause 13.3 is a direct change to something that now applies to hospitality employees. Is that right?

PN7565

MR RYAN: That's correct and I think - and look, I don't want to speak for the applicant in these proceedings but I suspect where that's come from is that provision is replicated in the current Hospitality Award at clause 33. That was inserted in the Hospitality Award on or about mid-December last year, I think it might have been 12 December and I suspect the document they're working off was a pre-12 December document, and that's where that issue has arisen.

PN7566

VICE PRESIDENT HATCHER: I see.

PN7567

MR RYAN: But certainly the issue of overtime for casual employees is dealt adequately and simply in clause 33 of the existing provision - the existing clause.

PN7568

VICE PRESIDENT HATCHER: Do you want to say anything Mr Arnold?

PN7569

MR ARNOLD: Yes, thank you, your Honour. I was made aware of these proposed changes at 7 o'clock last night. I haven't had the opportunity to properly digest the changes and the impact it's likely to have upon our members. I did speak with Ms Burke earlier this morning and she flagged with me the possibility of seeking an adjournment. At that point in time I gave an indication that we'd probably support that adjournment. However, in discussions with my - very brief discussions with my client this morning, I should indicate that my client is a small organisation with limited funds and we are a bit concerned that if an adjournment occurs at this point in time, that may result in increased fees in terms of being present in this case. So in terms of the adjournment I'm in the hands of the Commission. If the Commission pleases.

PN7570

VICE PRESIDENT HATCHER: Thank you. Mr Dixon.

PN7571

MR DIXON: May please the Commission. The Commission would have noted from the position expressed in the email that there are essentially three proposed - I beg your pardon - approaches. In relation to paragraph 1 the position is that those matters are not pressed for the inclusion of the following into the proposed award but in relation to paragraph - - -

PN7572

VICE PRESIDENT HATCHER: Well, just start with that. So if you go to 13.3 that was a casual entitlement added to the Hospitality Award as a result of the part-time casual case if I recall correctly, and you're now proposing simply to remove it.

PN7573

MR DIXON: Your Honour, that has taken me by surprise. I beg your pardon, I was not aware of the point that your Honour has just raised.

PN7574

VICE PRESIDENT HATCHER: Well, I mean it's the entitlement - I mean if there's another provision which saves it somewhere else, please tell me but that's an entitlement, as I understand it, the entitlement from the Hospitality Award for overtime penalty rates for casual employees and you - unless there's another provision somewhere in the draft, you're simply removing it.

PN7575

MR DIXON: Would your Honour just bear with me? If the Commission pleases, I'm instructed that the changes have been made and that there is no intention to change the position between the two awards, and therefore the provision which is proposed will also be in the Hospitality Award as I understand the position.

PN7576

VICE PRESIDENT HATCHER: Well, I don't know what the position is. You had it in there, now you've sent us a letter last night saying you want to delete it in circumstances where the case has simply not been about overtime rates for casuals.

PN7577

MR DIXON: As I understand the position that provision is already in the Hospitality Award.

PN7578

VICE PRESIDENT HATCHER: Yes, and you want to take it out. Unless it's somewhere else in the document, that's the provision and you've proposed to remove it.

PN7579

MR DIXON: Yes. The basis upon which that provision from clause 13.3 on page 15 was to be deleted was that there was - it was common with what is in the Hospitality Award and my instructors tell me that there was no intention to change the regime in relation to that entitlement that is there set out. So it is simply a drafting matter.

PN7580

VICE PRESIDENT HATCHER: It's not a drafting matter, Mr Dixon. You've sent us a letter last night saying you want that entitlement to be removed. Now are we going to have to go through this clause by clause?

PN7581

MR DIXON: No, your Honour. We want clause 13.3 removed, as I understand the position, on the basis that there is an equivalent provision already in the hospitality award to same effect.

PN7582

VICE PRESIDENT HATCHER: But that's the provision.

PN7583

MR DIXON: It is, so why would one have a separate replication for clubs? Everything - - -

PN7584

VICE PRESIDENT HATCHER: Mr Dixon, this document we're working off is your proposal for an award which would cover hospitality and clubs.

PN7585

MR DIXON: Yes.

PN7586

VICE PRESIDENT HATCHER: And unless it's somewhere else in the document, that is where one finds the entitlement for casual employees to receive overtime.

PN7587

MR DIXON: Yes.

PN7588

VICE PRESIDENT HATCHER: It was in your draft and consequently it was not an issue in proceedings, and you sent us a letter last night saying you want to remove it. So with the greatest of respect, it is not a drafting issue. It is an entitlement which you had in your proposal to retain, and you've sent us a document saying you want to remove it.

PN7589

MR DIXON: We want it removed as a clubs‑specific matter, because it is - - -

PN7590

VICE PRESIDENT HATCHER: It was not expressed as a clubs‑specific matter.

PN7591

MR DIXON: Your Honour, everything in green was said to be to preserve what came out of clubs. I appreciate what your Honour says, but my understanding in relation to that clause is that there is no intention to delete the entitlement. The only intention is to ensure, because the entitlements are the same in the hospitality award as they are in this award.

PN7592

VICE PRESIDENT HATCHER: Is it somewhere else in the document then?

PN7593

MR DIXON: As I understand the position and am instructed, your Honour, in December the similar provision went into the hospitality award and it should now be in the hospitality award and there should be nothing in green to suggest that it is a clubs provision, that is, that the entitlement is not intended to be removed.

PN7594

VICE PRESIDENT HATCHER: So we can strike out paragraph 1(c) of your email from yesterday evening, can we?

PN7595

MR DIXON: That is the effect of it, your Honour.

PN7596

VICE PRESIDENT HATCHER: All right. Mr Dixon, with respect, do we need to go through this clause by clause, or should I allow you an opportunity to check all this a second time?

PN7597

MR DIXON: I would have hoped that that would not be the case, your Honour. That is an obvious omission and I apologise for it.

PN7598

VICE PRESIDENT HATCHER: You don't need to apologise. I'm just concerned that there are others. Are there others?

PN7599

MR DIXON: Not that I can readily identify. May I just return to the way in which we seek to formulate the matter? The first, your Honour, is that those provisions in paragraph 1 are not pressed, and what is in paragraph 2 of the note to the Commission is that it is an alternative to the primary position that those provisions be included. But because Clubs does not want to upset the current working patterns, basically in relation to hours and breaks, its primary position was that those provisions be retained, but its alternative position, recognising that the Commission is not bound by what the participants put forward, that those matters be the subject of a cut‑off date, as is set out in paragraph 3 of the material that is provided to the Commission. The attempt, of course, is to bring to a greater extent hospitality award provisions into operation, but to allow a period in respect of some matters such as those set out in paragraph 2 to come into effect at a later stage.

PN7600

COMMISSIONER BISSETT: Mr Dixon, is the intention that if the Bench decided your alternative position was the position that should be adopted that we wouldn't adopt what you've got in paragraph 1, because you put paragraph 2 as an alternative to paragraph 1?

PN7601

MR DIXON: No. It's an alternative to our primary position, even in relation - - -

PN7602

COMMISSIONER BISSETT: So is it in addition to paragraph 1?

PN7603

MR DIXON: In relation to paragraph 1, that stands irrespective of what we've put in paragraph 2. Paragraph 2 is an alternative to the retention of those clauses that they'd be retained for a period, with a cut‑off date which has been selected as, for example - - -

PN7604

COMMISSIONER BISSETT: It's all right. I was confused by the use of the word, "alternate."

PN7605

MR DIXON: Yes. It's not an alternative to 1. It's an alternative to the - - -

PN7606

COMMISSIONER BISSETT: Alternative to the primary application.

PN7607

MR DIXON: And an alternative to retaining those clauses indefinitely but with a view to the cut‑off - in relation to those provisions.

PN7608

VICE PRESIDENT HATCHER: That's unusual, because at least from the perspective of your opponents, that's a more radical position than your primary position. It's usually the other way around, isn't it; that one usually advances an alternative position which perhaps moderates the primary position vis-à-vis your opponents? And just as a general observation, while in award proceedings it's not uncommon for parties to amend their applications or proposals to narrow the gap between them and their opponents, these are the opposite, that is, you're seeking these amendments to widen the gap and to widen the scope of change from the existing provisions which apply to clubs and their employees.

PN7609

MR DIXON: Although, your Honour, what it does do is to recognise, given all the evidence and all the material, that there is a greater conversion between the terms - a need for conversions of the terms in hospitality and clubs, and if the Commission were to adopt the position in paragraph 2, it would clearly result in a merged award - hospitality award - which is much closer to the hospitality award than the clubs award provisions that were originally intended.

PN7610

VICE PRESIDENT HATCHER: Well, that may or may not be true, but it's a different case to the one you ran.

PN7611

MR DIXON: It recognises, however, the concerns of the Commission, which we perceived that adopting simply an approach that dealt with penalty rates was a potential difficulty, and where the Full Bench had in the penalty rates decision, as we perceive it, indicated that there were common provisions and these provisions would be within that category. So what we have done in the proposal that is now being put forward to the Commission is that all the club managers' provisions are retained, all the maintenance and horticultural matters are retained; some provisions in paragraph 1 will be deleted to bring the hospitality award - to make it more operative, and in relation to matters where there are clear differences and it is difficult to determine, if one looks at the breaks clauses and the hours clause where the benefits and detriments necessarily lie, put the appropriate way in which we respectfully submit is to adopt the hospitality award, and we would then submit that the hospitality award, as so amended, is the appropriate award to cover the employees in respect of which the evidence shows the levels of commonality that we have put forward. If in the event that the Commission is persuaded that there is a procedural fairness issue for our opponents, we of course would not oppose any adjournment. But in our respectful submission, given that it is a review process and that the Commission would ultimately decide what goes in and what does not go in a merged award, we are putting forward a proposal which would narrow the differences between the two sets of employment conditions to a much greater extent.

PN7612

VICE PRESIDENT HATCHER: I mean, nothing I've said should be taken as a comment upon the merits of the amendments. It's a question of the procedural fairness consequences of the amendments.

PN7613

MR DIXON: And that's why we do not oppose any adjournment, if that is what is being sought.

PN7614

VICE PRESIDENT HATCHER: All right. Well, Mr Dowling, you've got an open door apparently.

PN7615

MR DOWLING: It appears so. I should correct the record in answer to your Honour's question. You said in respect of 13.3 was that an existing entitlement in the hospitality award - I said no to that, because it doesn't appear in the proposed merged award, if I can call it that, we were given but on my instructions, the Hospitality Award at 33.2(c), if your Honour goes to page 48, I'm perhaps wasting time given what it is my friend has said in response to the procedural fairness difficulty but just for completeness, at page 48 there is there 33.2, the entitlement to overtime rates. As I understand it, there was a paragraph (c) that - - -

PN7616

VICE PRESIDENT HATCHER: Which clause?

PN7617

MR DOWLING: 33.2 on page 48.

PN7618

VICE PRESIDENT HATCHER: I'm missing the version in CAI's folder, so 33 - is that the - - -

PN7619

MR DOWLING: Page 42, your Honour.

PN7620

VICE PRESIDENT HATCHER: Yes. 33.2, see, cross-refers to 13.4. 13.4 operates in conjunction with 13.2 and those provisions now don't find any equivalent if those amendments were made in the proposed award.

PN7621

MR DOWLING: Yes. Sorry, that was an aside, your Honour. I wanted to be sure that you understood what I now understand about the history of that. There's only one other matter, if it's necessary, your Honour, by way of response, this is really in response to your Honour's question, your Honour raised the possibility that one thing the Commission could do is to present a provisional view and might that answer that procedural fairness concerns.

PN7622

Of course, in our view, in our submission, I'm sorry, we should have the opportunity to respond to the case that's put before the Commission forms their provisional view and influence that provisional view rather than just respond to the provisional view and that would be the problem if that was seen to be a solution to the problem that we are now presented with. Should I take it, given what my learned friend says, that we should nextly move to how it is we might be able to accommodate the procedural fairness, or?

PN7623

VICE PRESIDENT HATCHER: No, I think the next step is the Bench to consider whether we should grant the application even in the circumstances where it's apparently not opposed.

PN7624

MR DOWLING: Yes, your Honour.

PN7625

VICE PRESIDENT HATCHER: We might adjourn for a short period to consider that.

PN7626

MR DOWLING: Thanks, your Honour.

SHORT ADJOURNMENT [10.57 AM]

RESUMED [11.14 AM]

PN7627

VICE PRESIDENT HATCHER: The Full Bench has determined to grant the adjournment application made by United Voice and supported by a number of other parties. Given the nature of the amendments to its application foreshadowed by Clubs Australia Industrial in its email of yesterday evening, we consider that it is necessary in order to afford procedural fairness to United Voice and the other parties that the adjournment requested be granted. I'll hear the parties shortly about what directions should be made but can I indicate two things. Firstly, any further hearing dates we intend to list within the period from 22 to 25 October and 29 October through to 2 November. Yes.

PN7628

MR DOWLING: Sorry, your Honour, I missed the last date.

PN7629

VICE PRESIDENT HATCHER: Yes. So they're two consecutive weeks. The first week is only - excludes the Friday, so it's 22 October to 25 October and then the whole of the following week, that is 29 October through to 2 November. We're not suggesting that all those days would be necessary but we would need to list it in those days.

PN7630

MR DOWLING: Thank you, your Honour, I understand.

PN7631

VICE PRESIDENT HATCHER: So the parties can say what they want to say about further directions in the light of that end point. The second thing is that now that it's necessary to have a further step in the proceedings, the Full Bench is minded when it issues the further directions and listing for completion of the matter to also issue a statement which will raise some issues which the parties might wish to address in any further evidence and submissions. Those issues will not be provisional views but will simply be I think possibilities and matters the Full Bench considers may arise in its determination of the matter. If any party wishes to say anything about that they can do so. Mr Dowling, broadly speaking, how do you foresee the matter playing out and Mr Dixon, if you want to go first.

PN7632

MR DIXON: No, your Honour, just one point. Given the embarrassing position I was in earlier about the document that had been proposed, could we have as a starting point, leave to make whatever corrections we need to make to our proposed documentation as a starting step and have a short period of time to do so.

PN7633

VICE PRESIDENT HATCHER: Well, I was going to say that we were going to direct by close of business tomorrow - sorry, close of business on Friday that Clubs Australia Industrial file its full proposed award in a clean copy and a marked up copy.

PN7634

MR DIXON: If the Commission pleases.

PN7635

VICE PRESIDENT HATCHER: Upon which it wishes to proceed, rather than simply a document of the nature of last night's email.

PN7636

MR DIXON: Yes.

PN7637

VICE PRESIDENT HATCHER: We assume that in preparing that document Clubs Australia will carefully consider the nature of the amendments it now seeks.

PN7638

MR DIXON: If the Commission please.

PN7639

VICE PRESIDENT HATCHER: So beyond that point, how do the parties envisage proceeding?

PN7640

MR DOWLING: Thank you, your Honour. I raised - yes, it might be of assistance if my learned friend and I have a discussion and we might be able to come to some arrangement that might assist. I think the first point from my client's point of view people need to know is whether the applicant proposes to put on any evidence in respect of the changes it now proposes. If not that will affect the timetable.

PN7641

VICE PRESIDENT HATCHER: Yes.

PN7642

MR DOWLING: I calculate somewhere between 14 and 15 weeks between now and those dates. I can indicate for everybody that the week of 22 October I am unavailable so for my part it would have to be the following week but I'll have a discussion with my learned friend unless there's anything he wants to add on the record.

PN7643

MR DIXON: If we work out a timetable it might assist if we could have a short adjournment if the Commission please.

PN7644

VICE PRESIDENT HATCHER: Right, well I'll allow the parties an opportunity and of course they will also consider the possibility of how the directions might accommodate for the statement which I have envisaged.

PN7645

MR DIXON: Would your Honour be in a position to indicate and I raise this with some reticence, at what point the Commission might make the statement. That might influence of course the timetable.

PN7646

VICE PRESIDENT HATCHER: Well, given that you've afforded us some period of free time we should be able to do that by the end of the week.

PN7647

MR DIXON: If the Commission pleases.

PN7648

VICE PRESIDENT HATCHER: We'll now adjourn.

SHORT ADJOURNMENT [11.19 AM]

RESUMED [11.37 AM]

PN7649

VICE PRESIDENT HATCHER: Yes, Mr Dixon.

PN7650

MR DIXON: May it please the Commission, we've agreed amongst all those represented a timetable. There is just one matter that I would seek, with respect, some clarification, the Commission might be able to assist us in this regard. The Commission indicated that it would issue a statement for the parties which they might wish to address. Without in any way seeking to ask the Commission what that might be, it's possible, I suppose, that that statement might raise matters that the parties might want to adopt or comment on or whatever it is and I simply raise it with a view to whether Clubs Industrial files its document by Friday or shortly after that because there might be matters in the statement that they want to take on board and address straight away.

PN7651

I'm not trying in any way to interfere with the Commission's processes but it just struck me that we wouldn't want to come back if there's some amendment or anything that flows from what the Commission might make. Apart from that, the periods that the parties have agreed is the Clubs Australia Industrial to file any evidence by 15 August, response - - -

PN7652

VICE PRESIDENT HATCHER: That's evidence, leaving aside the statement, that's evidence in support of the amendments?

PN7653

MR DIXON: Yes. Yes, your Honour.

PN7654

VICE PRESIDENT HATCHER: Sorry, what was that date?

PN7655

MR DIXON: 15 August.

PN7656

VICE PRESIDENT HATCHER: Yes.

PN7657

MR DIXON: Response evidence by 12 September and CAI reply, if any, 26 September and the common position appears to be, from availability if it suits the Commission, is the week of 29 October for a hearing.

PN7658

VICE PRESIDENT HATCHER: Have the parties got - I know it's early days but how many days? We still obviously need two days for submissions.

PN7659

MR DIXON: Yes.

PN7660

VICE PRESIDENT HATCHER: How many days for the evidence? Is two enough if we did them Monday, Tuesday and then have the Thursday, Friday for submissions. Would that - - -

PN7661

MR DIXON: That's what we would aim to do, if the Commission please.

PN7662

VICE PRESIDENT HATCHER: All right. Sorry, would there be any further written submissions accompanying the evidence?

PN7663

MR DIXON: Yes, I think that would be useful if that were incorporated, your Honour.

PN7664

VICE PRESIDENT HATCHER: All right. I think I've written this down incorrectly. What was the last date for the reply?

PN7665

MR DIXON: 26 September, your Honour.

PN7666

VICE PRESIDENT HATCHER: September. All right. Mr Dowling, do you have anything to add?

PN7667

MR DOWLING: No, your Honour. I was only going to raise the matter that your Honour did about if we add outlines to that but other than that, we agree with those dates.

PN7668

VICE PRESIDENT HATCHER: All right. Does any other party wish to be heard in relation to those directions? Mr Arnold?

PN7669

SPEAKER: No, your Honour.

PN7670

MR ARNOLD: No, your Honour. No.

PN7671

VICE PRESIDENT HATCHER: I was going to say, Mr Arnold, in terms of the comments you made about costs, which are apposite, it's entirely a matter for your client, I suppose, but one possibility is that you could simply file an outline of submissions in accordance with the directions and whether you attend the hearing or not is a matter entirely for you but no prejudice would result from the fact that you could not attend.

PN7672

MR ARNOLD: Yes, thank you, your Honour. I'd need to seek some instructions from my client but if that's an option, then I think that would be acceptable, thank you, your Honour.

PN7673

VICE PRESIDENT HATCHER: Yes, all right, thank you. All right, well if there's nothing further, we'll now adjourn. I'm sorry, Mr Dixon, we'll try to get the statement out, if we can, perhaps by close of business tomorrow.

PN7674

MR DIXON: Yes, your Honour would understand I wasn't trying to interfere with the Commission's approach, if the Commission please.

PN7675

VICE PRESIDENT HATCHER: All right, we'll now adjourn.

ADJOURNED INDEFINITELY [11.42 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #57 CROSS-EXAMINATION BUNDLE OF MARK UNWIN... PN7471

EXHIBIT #58 CROSS-EXAMINATION BUNDLE OF VICKI CROWE.. PN7473

EXHIBIT #59 CROSS-EXAMINATION BUNDLE OF GAVIN KIRKMAN PN7475

EXHIBIT #60 CROSS-EXAMINATION BUNDLE OF TIM WRIGHT..... PN7477

EXHIBIT #61 CROSS-EXAMINATION BUNDLE MATTHEW DAGG.. PN7479

EXHIBIT #62 CROSS-EXAMINATION BUNDLE OF ZOE KLEGG....... PN7481

EXHIBIT #63 CROSS-EXAMINATION BUNDLE OF DAVID HISCOX. PN7483

EXHIBIT #64 PJ MEMBER SURVEY 1......................................................... PN7485

EXHIBIT #65 PJ MEMBER SURVEY 2......................................................... PN7487