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Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards




SDA claim for blood and bone marrow donor leave




11.12 AM, MONDAY, 16 JANUARY 2017


THE VICE PRESIDENT:  Can I take the appearances, please.  I might start in Melbourne.  Ms Biddlestone, you appear with Mr Moretta for the SDA.


MS K BIDDLESTONE:  Yes, that's correct, your Honour.  Also with me is Mr Moretta, initial M, appearing on behalf of the SDA.


THE VICE PRESIDENT:  Right.  Thank you.  So in Sydney:  Ms Walsh, you appear for the AWU.


MS R WALSH:  Yes, your Honour.  And I have with me Dunalfe, initial Z, also of the AWU.


THE VICE PRESIDENT:  Ms Bhatt, you appear for AiG and the Hair and Beauty Association.


MS R BHATT:  Yes, Vice President.  Thank you.


THE VICE PRESIDENT:  Mr Arndt, you appear for ABI and the New South Wales Business Chamber.


MR J ARNDT:  That's right, your Honour.


THE VICE PRESIDENT:  And Ms Wellard, you appear for the Pharmacy Guild and the Master Grocers Association.


MS S WELLARD:  If it pleases your Honour.


THE VICE PRESIDENT:  And in Brisbane:  Mr Wild, you appear for the National Retail Association.


MR T WILD:  Yes, your Honour, correct.


THE VICE PRESIDENT:  It might be easier to stay seated, Mr Wild.  And in Adelaide:  Mr Keffer, you appear for Business SA.


MR C KLEPPER:  Yes.  That's Mr Klepper, your Honour.


THE VICE PRESIDENT:  Klepper.  I'm sorry, Klepper.


MR KLEPPER:  That's all right.


THE VICE PRESIDENT:  Is that all the appearances?  Yes, all right.


MR KLEPPER:  Yes, your Honour.


THE VICE PRESIDENT:  All right.  Ms Biddlestone, you're the moving party in this matter, so can you give me the benefit of an estimate of what would be involved in haring this matter, including what evidence, if any, would be involved; how long it would take to put on your evidence and submissions; and how long a hearing would take.




MR MORETTA:  Your Honour, if I may speak on behalf of the SDA.




MR MORETTA:  Your Honour, we believe it's going to take some time, probably in the next few months, before we will be able to put some proper submissions - adequate submissions in:  getting witnesses; getting - obviously we're hoping to get expert witnesses as well in the field, that might be able to - that should be able to assist in our case.


THE VICE PRESIDENT:  How long will that take?


MR MORETTA:  We believe it will take at least three to four months.  We're hoping that we can put appropriate submissions - written submission in around May of this year, taking into account there are - we have resources in other matters that are before the Commission in relation to the modern award review, namely I'm involved in the public holiday cases matters.  So we see that that would be the time frame.


But we also would like to take the opportunity, if we can, in this time or up to that time to have conference in your presence and assistance with the parties.  We haven't had a - probably no discussion or substantive discussion with most of the groups that have put their appearances in today.  We would like to also take that time, the opportunity to have at least conferences with those parties, even before your Honour, to see if we can maybe be able to come to an agreed position on the case in terms of the drafting and address the concerns that the employer groups have in relation to such a provision in the awards.


THE VICE PRESIDENT:  How many witnesses do you think you will be calling?


MR MORETTA:  At this point in time, your Honour, it could be anywhere between 10 to 20 in terms of our members that have the provision in their EBAs, and also award employees; so that could be about anywhere between 10 to 20, we're envisaging at this stage.




MR MORETTA:  And we will be conducting surveys, and we're trying to work on one in order to - approaching our members in the most expedient way, online through our website, in order to get feedback.  So that will assist us greatly in achieving that.  I think ‑ ‑ ‑


THE VICE PRESIDENT:  Mr Moretta, the difficulty is that this is a four-year review which has to have finished by the end of the year, which involves a Full Bench hearing the matter; issuing a decision; and if there's a variation, it needs to be consolidated with everything else for a final award by the end of the year.  That makes me very reluctant to list it at any time beyond the middle of the year.  Can you accommodate that sort of time scale?


MR MORETTA:  Yes.  Your Honour, I understand, and all I can say at this point is that if we had the opportunity to have a conference with the interested parties at some point in the coming month we would probably be able to gauge a better view of how long the case will take in terms of we will know also the number of witnesses that will come forward or be prepared to come forward; it might be that simply it won't be 10 or 20.  But it really will allow us also to approach experts in the area and to get the relevant information, the technical information that we need.  I think that would be also time that we would require.


And I think with the written submissions we would be hoping that initially the case would be dealt with through written submission as well predominantly and see where we go with the oral in terms of having the witnesses.


THE VICE PRESIDENT:  So what do you need expert evidence about?


MR MORETTA:  In terms of the value of having such a provision and the value to the community of blood donor and bone marrow.  That would be important, and see where - having the provisions in the award that would assist in terms of the provision of people donating blood and involved in bone marrow and see how that could be - how that's beneficial to the community and how both the employers and the employees - to us it s a win-win for all.


We want to show the utility of such a provision, essentially, in the awards, which cover millions of employees in the country, especially in the retail sector.


THE VICE PRESIDENT:  All right.  Anything else at this stage?


MR MORETTA:  Not at this stage, your Honour.


THE VICE PRESIDENT:  All right.  Perhaps I will hear from the AWU next.  What do you want to say about the matter?


MS WALSH:  Your Honour, this is a matter that was recently brought to our attention.  We have an interest just in the Hair and Beauty Industry Award.




MS WALSH:  I suppose we can say that we're broadly supporting of the claim.




MS WALSH:  At this stage I'm only aware of, really, the attachment to the recent statement on 21 December.  If I can confirm, I did speak to the employer parties.  I understand this didn't really get very far along in relation to the Pharmacy Industry Award.  But at this stage I can just say that we're supportive, but we haven't seen any further material other than what has been put into that statement.


THE VICE PRESIDENT:  All right.  Thank you.  Ms Bhatt.


MS BHATT:  Thank you, Vice President.  If I can firstly address the proposal of the SDA that the matter be listed for conference:  we wouldn't oppose that course of action, but I should note that the claim in its current form is opposed by both of the organisations that I speak for today.


If I can raise just a few things about the any directions that are issued for the filing of material:  based on what we've just heard in relation to the nature of the evidence that might be filed, it is our view that we would require a minimum of eight weeks to respond.  We also submit that any directions that are issued should require the filing of comprehensive written submissions, any witness statements, and also any other documentary material upon which any party seeks to rely.


I'm unsure as to whether it's necessary to require the SDA to file a draft determination.  I understand that some document has previously been filed that sets out a proposed clause.  If the SDA is seeking a form of words that differs from that, they should of course indicate that when they find their material in support of their claim.


The only other matter that I might raise, although this may be somewhat premature, is that once all the material has been filed, the matter should, we say, be listed for mention to discuss the programming of the hearing, especially if there are several witnesses to be called.  At this stage I have nothing further to put.


THE VICE PRESIDENT:  That would involve deferring the setting of the hearing date, which does place considerable constraints upon completing the matter appropriately by the end of the year.


MS BHATT:  Your Honour, that isn't what I had in mind.  I wonder if it would be possible to list the matter for hearing but perhaps - - -


THE VICE PRESIDENT:  Yes, have a further mention of it.


MS BHATT:  Yes, to discuss how those dates are used.


THE VICE PRESIDENT:  All right.  Thank you.  Mr Arndt.


MR ARNDT:  Your Honour, from ABI and the Chamber's perspective we have no difficulty in attending a conference in regards to the matter.  We hear your Honour's comments about how important it is to get a listing date in the middle part of the year.  All we would really require is a sufficient time to respond to any evidence produced.  The amount of time we would need to respond would, I guess, depend on the evidence produced, but I would see a period of six to eight weeks as a sensible amount of time.  And as I said, if the next step is to attend a conference, we would be amenable to that course.


THE VICE PRESIDENT:  Right.  Thank you.  Ms Wellard.


MS WELLARD:  Your Honour, the issue of blood and bone marrow leave was canvassed quite extensively in the Pharmacy Award proceedings.  We were unable to reach a position of consent with the union in that matter.  I don't know what benefit further consultation or conference with the union can have because I do think we discussed it quite a lot.


I note that this matter isn't a common issue, but has been brought together collectively because it is a matter that crosses a number of awards in the same way that the penalty rates matter did.  I don't know if it's the union's view that we may end up with different clauses in each of the awards, and therefore that wish to consult with us separately or jointly.  In any event, if the union is of the view that consultation in the Pharmacy Award - and with respect to the Master Grocers, the Retail Award - is of any benefit, then we're happy to participate.


With respect to the timetable, your Honour, we are completely in the Commission's hands with regard to when the materials are to be filed.  At this stage it's very difficult to know what evidence we would put on in response without saying that the union has.  If it pleases.


THE VICE PRESIDENT:  Thank you.  Mr Wild.


MR WILD:  Yes, your Honour.


THE VICE PRESIDENT:  Please stay seated, Mr Wild.


MR WILD:  Thank you, your Honour.  Your Honour, we take a similar view to the parties in so far as the timeline for a response is concerned.  It would be seeking an appropriate, fair time to respond, and it does obviously depend on actually what we are responding to.  But at a guess, at my best guess we would be asking for a minimum of six to eight weeks after hearing what the SDA is actually proposing to be putting on.


We are in the process of canvassing - or have actually canvassed our members on that, and our preliminary position, whilst we haven't seen any material other than the actual claim itself, would be to actually oppose the SDA's claim.  Thank you, your Honour.


THE VICE PRESIDENT:  Thank you.  Mr Klepper.


MR KLEPPER:  Thank you, your Honour.  Business SA will be in agreement with the other employer parties in regards to the response time.  We would also be welcoming of conferences to discuss this further; we are always open for matters such as that.  And we are also in a position of having done a preliminary survey of our members, obviously without them seeing the SDA's final proposal, and our preliminary findings are that we would have to oppose this claim.  Thank you.


THE VICE PRESIDENT:  All right.  Is there anything you want to say in reply, Mr Moretta, to any of that?


MR MORETTA:  Not at this stage, your Honour, no.


THE VICE PRESIDENT:  All right.  If the parties will just give me one second.  I propose, subject to the further comment of the parties, to make the following directions, firstly:


The SDA is to file a draft determination with respect to the variation it seeks in the awards the subject of this proceeding one week from today;


Once that has been done I will direct the parties to confer between themselves, and if, following any such conference, the parties consider that there would be further benefit from a conference conducted by a member of the Commission, that can be arranged upon request through my chambers;


I will direct the SDA and any other organisation supporting the SDA's claim to file their evidence and comprehensive written submissions by 14 April; those parties opposing the claim are to file their evidence and comprehensive written submissions by 16 June; and then the SDA will have until 30 June to respond;


The matter will be set down for a mention on 3 July; and


I will set aside three days for the hearing of the matter on 17, 18 and 19 July.


Mr Moretta, does that accommodate your union's circumstances?


MR MORETTA:  Thank you, your Honour, that satisfies us.  Thank you.


THE VICE PRESIDENT:  Does any other organisation have any issues with those directions?  Ms Bhatt?


MS BHATT:  There is just one matter.  If the directions were to require the filing of comprehensive written submission, evidence, and any documentary material.  I raise that for this reason:  there have been occasions in the past where we get to a hearing and we're met with, for instance, analysis of pre-reform awards; we're then left in a position where we're not able to check that at the time.


THE VICE PRESIDENT:  All right.  I will amend the directions to include that as an element of the cases which have to be filed.


MS BHATT:  Thank you.


THE VICE PRESIDENT:  Does anyone else have any issues with those directions?


MR WILD:  Thank you, your Honour.  No, your Honour.


MS WALSH:  No, your Honour.


THE VICE PRESIDENT:  All right.  I will formally arrange for those directions to be issued in writing; the parties are granted liberty to apply if some difficulty arises along the way; otherwise I thank the parties for their attendance and I will now adjourn.

ADJOURNED UNTIL MONDAY, 03 JULY 2017                           [11.32 AM]