PN1

THE VICE PRESIDENT: Yes, I'll take appearances. Mr Gotting, you appear for Clubs Australia - Industrial.

PN2

MR A GOTTING: I do, your Honour.

PN3

THE VICE PRESIDENT: Mr Ryan, you appear for the AHA.

PN4

MR P RYAN: Yes, your Honour.

PN5

THE VICE PRESIDENT: Mr Dowling, you appear with Ms Burke for United Voice.

PN6

MR DOWLING: That's correct, your Honour. Good morning.

PN7

THE VICE PRESIDENT: Ms Crowe.

PN8

MR C DOWLING: I think she might be on the telephone.

PN9

MS V CROWE: Yes, I'm here, your Honour.

PN10

THE VICE PRESIDENT: Yes, you appear for the Professional Golfers Association.

PN11

MS CROWE: That's correct.

PN12

THE VICE PRESIDENT: Right. So Mr Gotting, would you like to go first. Have you filed all your case now?

PN13

MR GOTTING: We've filed all of the evidence that we rely upon in-chief. It may be necessary for us to file something in reply in due course but we would obviously await anything that's going to be filed by United Voice or the Professional Golfers Association or some other entity.

PN14

THE VICE PRESIDENT: Right.

PN15

MR GOTTING: United Voice filed a submission. I'm in a position to respond to three other points that they've agitated in that submission in due course, but the basic proposal that I wish to put forward today is to allow United Voice and Clubs Australia - Industrial to engage in some discussions to resolve one of the issues, hopefully, over a 14 day period and then to have the matter come back before you in say 21 days' time.

PN16

THE VICE PRESIDENT: What issue is that?

PN17

MR GOTTING: That issue is the fourth issue identified in the submission that was filed by United Voice and that concerns the identification of some differences between the Clubs Award and the proposed (indistinct) Award, in terms of identifying all of the differences that may exist between the two awards. There's a suggestion by United Voice that we haven't articulated all of the differences. We want to explore that issue with United Voice and if there are some issues that need to be clarified, to provide that clarification and to do so within the 14 day period that I alluded to earlier.

PN18

THE VICE PRESIDENT: But why do we need to come back again after that? I mean you can do that.

PN19

MR GOTTING: Well I'm happy alternatively for directions to be made for other parties responding to the application to file their evidence by a specified date, and the usual sorts of directions to occur.

PN20

THE VICE PRESIDENT: Well I mean assuming that this is case of at least five days' dimension. The earliest dates available will be in July and if you delay they will keep going back further than that. So that's why I'm raising the issue of whether you wanted to come back again in three weeks' time because those dates may have gone by then.

PN21

MR GOTTING: Well I had had a discussion with Mr Dowling to the effect of coming back in 21 days, and that's why I'm just slightly hesitant. I mean obviously my client would prefer to take the first available dates and to have directions for the preparation of evidence, such that they're consistent with the first available dates.

PN22

THE VICE PRESIDENT: Thank you. Mr Ryan, what's your organisation's attitude to the application?

PN23

MR RYAN: Your Honour, I think very early on in the piece we put our position that we're opposed on the record. At this stage, we're still considering whether or not we'll maintain that position or whether that position will be abandoned and another position taken.

PN24

THE VICE PRESIDENT: Will that be affected by any discussions about further changes to the Hospitality Award?

PN25

MR RYAN: Perhaps, your Honour, and I was anticipating today that if the outcome of today was that there'd be directions for any other party to respond to the application, that if we were to maintain that position we would then have to put material on at some point between now and the hearing date, in which case we would in terms of complying with those directions our position would be flashed out one way or the other.

PN26

THE VICE PRESIDENT: Thank you. Mr Dowling. Sorry, Mr Crabb did you want to enter an appearance? You can stay where you are, you don't have to come forward.

PN27

MR CRABB: Your Honour, we'd be happy to take a date today and probably - - -

PN28

THE VICE PRESIDENT: Do you want to enter an appearance for the AWU?

PN29

MR CRABB: Appearance, yes.

PN30

THE VICE PRESIDENT: Yes, all right.

PN31

MR A CRABB: Crabb, initial A, appearing for the AWU.

PN32

THE VICE PRESIDENT: Thank you. Yes?

PN33

MS P IMBER: Your Honour, may I also appear for the Club Managers Association, P Imber.

PN34

THE VICE PRESIDENT: Thank you. Mr Dowling.

PN35

MR DOWLING: Thank you, your Honour. As Mr Gotting indicated, we filed a short submission that outlined a number of issues. The concern that we had prior to timetabling is that we fully understand the case we are to meet, and the fourth issue that Mr Gotting identified is one that goes some significant way to identifying exactly what is put and how the case is put, particularly - not so much the revocation case but that part of the case that involves variation to the Hospitality Award. At this stage, we don't fully understand the extent of the variations and how they are said to be necessary in order to achieve the modern award's objective. So for our part we're very loathe to agree to directions in respect of the further conduct of the matter without understanding the breadth of the case that we face.

PN36

THE VICE PRESIDENT: Well, I understand that point but does that prevent at least some reservation of hearing dates?

PN37

MR DOWLING: I don't think it prevents the reservation of hearing dates, no. The only other - there were four issues that we raised. The first of those I think has been addressed by my learned friend Mr Gotting, when he says that there's no further evidence. The second of them is an important issue that might impact upon hearing dates, because the second of them is the approach of the applicant in this matter to rely on factual findings from the penalty rates decision, and it's our position that they are not able to do that. Insofar as those paragraphs that they seek to rely on from the penalty rates decision and another decision, I should add, that are factual findings by a different Full Bench in a different matter, that is not something that they should be permitted to do. Now that might affect hearing dates and timetabling because - - -

PN38

THE VICE PRESIDENT: Why is that the case? I mean if they want to run their hearing on that basis, they either stand or fall on it, don't they?

PN39

MR DOWLING: They do, your Honour, but what we would want to avoid is we get part way through a hearing and at the close of their case or at some way part through it, they say well we want to rely on these 10 paragraphs from the penalty rates decision and another decision, we object. The objection is allowed and what's sought to be done is to lead further evidence to provide for the circumstances, the factual findings.

PN40

THE VICE PRESIDENT: I'll hear from Mr Gotting but I mean the parties are represented by counsel. Clubs Australia's now been put on notice about the point. I don't think they'd get much of a sympathetic hearing if they tried to re-open their case at that hearing, on the basis that they lost the point.

PN41

MR DOWLING: We agree with that, your Honour, and that's the purpose of these submissions. To put squarely on the table that when you are dealing with a different application, before a different Full Bench, there is no basis to say well the factual made in that different case by a different Full Bench can be relied upon in this case.

PN42

THE VICE PRESIDENT: To be clear, I'm not saying whether the point has merit or not. All I'm saying is that having been put on notice about the point, I don't think a re-opening application of a hearing would have a sympathetic ear.

PN43

MR DOWLING: I understand.

PN44

THE VICE PRESIDENT: All right. I understand there's some debate about the scope of the case but roughly speaking, how long do you think the case would take?

PN45

MR DOWLING: Well it is informed by that proposition. You will see the other - - -

PN46

THE VICE PRESIDENT: That is assuming Clubs Australia runs the case on the basis of the evidence it's filed today and no more, can you give a very rough estimate how long you think the case will take?

PN47

MR DOWLING: Can I just raise one other issue, I'm sorry, your Honour.

PN48

THE VICE PRESIDENT: Yes.

PN49

MR DOWLING: The other issue that we identified in our submission is there are two parts to this case. One is a revocation of the Clubs Award and the other is a variation of the Hospitality Award. One of the issues that we identified is that in the submissions filed by Clubs, they haven't identified the basis upon which they seek to maintain the revocation case. 164 is a special provision in respect of revocation, they haven't identified what part they seek to rely on and how they put that case.

PN50

THE VICE PRESIDENT: Well presumably the second limb is it, they'll say that all employees would move to the Hospitality Award and that's appropriate to cover them.

PN51

MR DOWLING: I don't want to verbal my learned friend but I think as things stand at the moment, they're going to rely on both limbs. There'll be a debate about whether 164(b) is meant to operate in the way that your Honour's just contemplated. But that's just a further difficulty for my client because again it doesn't understand completely how the case is put, so I raise that partly in answer to your Honour's question.

PN52

THE VICE PRESIDENT: With all those caveats how long is the case going to take?

PN53

MR DOWLING: I would think a period of at least two weeks, your Honour.

PN54

THE VICE PRESIDENT: So I reserve two weeks that would be a start? That is, if we reserve two weeks in July then allowing you the further 21 days would still I think allow plenty of time for United Voice and any other opponents to the application to put on their case.

PN55

MR DOWLING: Yes, yes, we would want dates into next year of course, given we're close to December and the difficulties of the December/January period but I think that could still be accommodated if we're in July, your Honour.

PN56

THE VICE PRESIDENT: Right, thank you.

PN57

MR DOWLING: Thank you, your Honour.

PN58

THE VICE PRESIDENT: Right, does any other party want to add to what's been said? Ms Crowe, do you want to add anything?

PN59

MS CROWE: No, your Honour. Just to say that I'm also representing the AGCSA who has lodged a submission of objection today, and will be going into the future as well so they're the Australian Golf Course Superintendents, so the maintenance course grounds people.

PN60

THE VICE PRESIDENT: Right, thank you. So Mr Gotting?

PN61

MR GOTTING: Your Honour, I agree with Mr Dowling's estimate of two weeks and - - -

PN62

THE VICE PRESIDENT: The two weeks I have in mind are the weeks beginning the 2 and 9 July.

PN63

MR GOTTING: That's suitable from the applicant's perspective.

PN64

THE VICE PRESIDENT: Is that suitable for your side, Mr Dowling?

PN65

MR GOTTING: Yes, your Honour.

PN66

THE VICE PRESIDENT: Beyond that, we could simply stand it over for 21 days for a further report back, was that the intention?

PN67

MR GOTTING: That's the intention or alternatively if your Honour's opposed to that course, to set now some proposed directions for the filing of evidence in opposition to the application by a date - - -

PN68

THE VICE PRESIDENT: I think if we reserve the dates in July we can stand down for 21 days and still allow United Voice sufficient time to put on a proper evidentiary case in reply.

PN69

MR GOTTING: Yes.

PN70

THE VICE PRESIDENT: Now did you want to make any further reply to the submissions of United Voice?

PN71

MR GOTTING: I've had some discussions with Mr Dowling. We take a different view to Mr Dowling and his client as to the ability to rely on the material in the penalty rates decision and the part-time and casual employees decision. I've taken on board what your Honour said though about a sympathetic ear if the evidence was rejected and that's an approach that we shared, and was something that I had raised with Mr Dowling. We're obviously clearly on notice now, but we say that it's part of a single review and that the application that we have made is part of the initial review in the penalty rates decision, as was contemplated by the Full Bench in that penalty rates decision. We can have that - - -

PN72

THE VICE PRESIDENT: You're not asking for that submission to be resolved at some sort of preliminary point?

PN73

MR GOTTING: I'm not asking for that to be resolved at the present time.

PN74

THE VICE PRESIDENT: Right.

PN75

MR GOTTING: In terms of the other issue that Mr Dowling raised concerning section 164 of the Fair Work Act, we rely primarily on section 164(b) as your Honour foreshadowed, but it will be an issue over our reliance of that paragraph that we also rely on section 164(a), and in that respect we call in aid item 627 of the Explanatory Memoranda, but we can make some submissions on that issue in due course.

PN76

THE VICE PRESIDENT: Right. So if we reserve the dates and stand the matter for further report back at 9 am on 7 December. Is that an appropriate course?

PN77

MR DOWLING: Yes, your Honour.

PN78

MR GOTTING: Yes, your Honour.

PN79

THE VICE PRESIDENT: Can I anticipate that on that occasion the parties might come armed with some proposed directions for the filing of evidence and submissions.

PN80

MR GOTTING: Of course.

PN81

THE VICE PRESIDENT: Right, well if there's nothing further I'll now adjourn and stand the matter over until 9 am on 7 December.

ADJOURNED UNTIL THURSDAY, 07 DECEMBER 2017 [9.15 AM]