Epiq logo Fair Work Commission logo






Fair Work Act 2009                                       1056600





s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Hospitality Industry (General) Award 2010


Restaurant Industry Award 2010




9.35 AM, FRIDAY, 16 NOVEMBER 2018


THE COMMISSIONER:  Ms Dabarera, you're appearing for United Voice?


MS N DABARERA:  Yes, Commissioner.


THE COMMISSIONER:  Thanks, and Mr Ryan for the AHA?


MR RYAN:  Yes, Commissioner.




MR C WARD:  Good morning, Commissioner.


THE COMMISSIONER:  Good morning.  All right, so this matter has been listed to deal with the various F52 applications that United Voice has made in respect to AM2017/57 and 2017/59.  What I was proposing to do was to go through the various schedules in respect of each of the orders, consider them each in turn and deal with each part of them, if you like, separately, but before doing that inquire if there's been any discussions between the parties and whether you've reached consent positions on some or all of the matters in contention.


MR RYAN:  Commissioner, it's Ryan for the Australian Hotels Association.  Perhaps if I start, in relation to the statement of Johan Clint(?) and Vicki Nagle(?) and the orders to produce in relation to those witnesses, we wish to withdraw those statements from the proceedings.


THE COMMISSIONER:  In their entirety?


MR RYAN:  In their entirety.




MR RYAN:  So that we won't be seeking to rely on the evidence of Mr Clint or Ms Nagle in the proceedings.


THE COMMISSIONER:  All right, well - - -


MR RYAN:  And I suppose that short circuits some of this morning's issues, or disposes of some of this morning's issues.


THE COMMISSIONER:  It disposes of those two.  So you will be withdrawing your F52 applications in respect of Clint and Nagle then, I take it?


MS DABARERA:  Yes, Commissioner, we will be.


THE COMMISSIONER:  Thanks, Ms Dabarera.  All right, that disposes of those.  Then let's got to the others for restaurants, and starting with – well, again, either Mr Ryan or Ms Dabarera, any discussions been had, has there been consent reached on some or all of the matters?


MS DABARERA:  Commissioner, unfortunately consent has not been reached in relation to any of the matters, with restaurants.


THE COMMISSIONER:  That's right, is it, Mr Ward?


MR WARD:  That's correct.


THE COMMISSIONER:  Have there been any discussions?


MR WARD:  There have.


THE COMMISSIONER:  Right.  All right, then we'll go through them one by one.  Is that satisfactory to the parties?  You don't want to propose an - - -


MS DABARERA:  Yes, Commissioner.


MR WARD:  Yes, Commissioner.


THE COMMISSIONER:  An alternative course?  All right, well then let's start with the Brailey statement.  So looking at the schedule the – I take it, Mr Ward, that there's no particular issue taken with paragraph 1 and 2, which of course is common to all three witness statements, the definition of a document and the request for primary resource records, but where summaries and secondary sources are made or so on and so forth  - fairly standard wording, there's no objection to those two paragraphs?




THE COMMISSIONER:  And I'll take it that that's the case for all three.  Now turning to paragraph 3, "Documents evidencing the labour costs referred to in paragraph 10 of Frances Edmond Brailey's witness statement."  What's the objection to that, Mr Ward?


MR WARD:  The objections have been outlined broadly and I would say they apply to all of the requests that have been made.  Can I take you to paragraph 3 of my submissions, part 6, that "the sworn witness statements are first-hand evidence being submitted and it's for the Commission to assess its credibility and weight."




MR WARD:  It would be quite onerous to expect the small business owners to dig through years and years of financial records and employment records, which frankly some of them may not even have, in order to support what can only be described as their personal insight into the industry.


THE COMMISSIONER:  All right.  Let's have a look at the Brailey statement.  Labour costs for the financial period year, 30 June 2017, amounts to $526,125.


MR WARD:  Sure.


THE COMMISSIONER:  So what's being asked for is any document which underpins that number.


MR WARD:  Certainly.  If the Commission feels that that will be of some assistance to them then I'm sure that – if those specific documents are available, they can be made available to the Commission.  My submission pertains to the fact that this evidence is purely being submitted to the Commission to provide insight into the operations of this particular business owner.  And having those very specific details confirmed by financial reports, especially self generated financial reports, may be of very little assistance to the Commission overall.


THE COMMISSIONER:  Perhaps if I just put it to you this way, Mr Ward.  What happens in these proceedings, and it may not happen but it's possible that Mr Brailey gets asked, "Well, you say that your labour costs are $526,125." And he says, "Yes", and he's asked, "On what basis do you say it's that amount of money?"  And he says, "Oh, well, it's out of my MYOB accounting system", or something.  Well, it's not unusual then for the one doing the examining to say, "Well, I call for that to be produced."  And then we have time delays waiting to look at the document.  Because that may not happen, and I'm conscious of the submissions you make about not imposing an onerous burden on small businesses, I think that's absolutely right.  But he's either got a document that supports the $526,125 or he doesn't.  And if he doesn't, then that's fine.  That will all get dealt with in the hearing.


MR WARD:  Certainly, Commissioner.  I would say that those submissions probably pertain to some of the more burdensome requests, this one in particular because he has given such a specific number.  That would appear to indicate he does have detailed records.  And I would accept that it wouldn't be too onerous to obtain those records since he has been able to obtain it for the purpose of giving the witness statement.


THE COMMISSIONER:  All right, so you withdraw your objection to paragraph 3 of the schedule pertaining to Brailey?


MR WARD:  Yes.


THE COMMISSIONER:  All right.  Let's go to paragraph 11 where it's a similar issue where there's a particular amount attributed to particular expenses, and any documents and evidence in that are sought.  What is your position on that?  Has that changed as a result?


MR WARD:  No, as with the other submissions I think if he's been able to get those specific details in order for the purpose of the witness statement then again it shouldn't be too much trouble to have that supporting evidence there.


THE COMMISSIONER:  All right, so you withdraw your objection to that one?


MR WARD:  Yes.


THE COMMISSIONER:  Now the annual financial statements for the Marine at Café Church Point for years ending 30 June through to 30 June 2018, Ms Dabarera, they of course don't pertain to any particular paragraph that I can see in the witness statement and I'm wanting to understand the basis of this request.


MS DABARERA:  Yes, Commissioner.  The basis of that request is that the two claims made by RCI which is their witness evidence is in support of that.  Both relate to matters which would lead to a reduction in pay for employees.  So the relevance of annual financial statements is looking at what is the profit or loss of this organisation and what would be the loss for employees if these claims were to succeed, and then allowing – like, the modern awards' objective requires looking at employment costs and also what the impact would be.  So we think it's relevant to that question.


THE COMMISSIONER:  That may well be, but they're not running a - some sort of capacity to (indistinct) pay.  The evidence being led that I – you know, but you take me to it if you can tell me where it is, but I don't see anywhere in here, we have to have these changes in order to, you know, to continue to financially operate the business.  I mean, that sort of evidence is led in any award proceedings, but I just can't see it.  And I certainly can't see what the relevance would be, unless you can take me to it, of five years of financial statements.  I can't say I'll be excited about looking through it without some reason to.  I can't speak for my colleagues.


MS DABARERA:  Yes, Commissioner.  We understand if the shorter period would be granted that would be sufficient.  But we understood that the argument from ICI was also that there's a reduction in cost for the employer, which is why they're seeking these changes.


THE COMMISSIONER:  All right.  Mr Ward, what do you want to say about this matter?


MR WARD:  It's a little bit of a stretch.  I believe our submissions pertain more to the interruption that the industry is being faced with by having to categorise these employees in different pay groups.  As one of the witnesses point out, a waiter would be expected to say, "I'm sorry, sir, I can't serve you, let me go get somebody who can", just because of a different pay classification.  I don't think we've gone into any great detail or put any submissions as to the financial impact on a business and I don't see how the scrutiny of private financial details of one small business operation would be of any assistance to the Commission at all.


THE COMMISSIONER:  They're not going to be private financial details, are they, they'll be matters that they have to report to the Australian Taxation Office.


MR WARD:  Well, yes.  I mean, they're not publicly available but they are submitted for tax purposes and audit purposes.


THE COMMISSIONER:  All right.  I took it from what you were saying earlier, Ms Dabarera, you would concede that a shorter period would be satisfactory.


MS DABARERA:  Yes, Commissioner, we would.  And I would also put that regardless if they're not pressing that argument that there would be a reduction in employment costs.  The reality is that there would be a reduction for employees.  So we do think that's a relevant factor.


THE COMMISSIONER:  All right.  You'd be satisfied with financial statements for the most recent financial year, to 30 June 2018?


MS DABARERA:  If you, Commissioner believe that's the appropriate approach then we would accept that.


THE COMMISSIONER:  I might tell you that's the appropriate approach but I'm just asking your view, whether that would be satisfactory.


MS DABARERA:  Commissioner, we would prefer if we were able to look at, say, a period of three years.  I think that would give a better indication of what the profits and losses are for this organisation.




MR WARD:  If I may, Commissioner, could we perhaps have some discussion around what exactly the Commission, or Ms Dabarera would hope to achieve through scrutiny of the financial statements if it's simply to establish that the reduction in wages would establish a higher profit for the (indistinct)?  That's just an obvious accounting principle.


THE COMMISSIONER:  Sure.  I'm not going to be delving that deeply into where the – I want to establish a view obviously about the probative value of the evidence.  I think that that's appropriate.  But I'm not going all the way down that particular worm hole today.


MR WARD:  Certainly.  In the case of the first one we're happy to withdraw our objection on the basis that Frances has submitted specific, or he's made an assertion of a specific number and I understand that will need to be substantiated.  But in this case it's just a, well, open your books, let us have a look just for the sake of it.  It doesn't seem to be establishing any specific point or bringing any specific benefit.


THE COMMISSIONER:  I'm just going to put a proposition to you.  I think there would be some utility in having the financial statement for the most recent financial year, up until 30 June and I don't think that will be particularly onerous.  It will be something that the - - -


MR WARD:  Yes, Commissioner.  I was hoping to establish what that utility would be.  I am going to have to go back to these witnesses and try and sell this to them, so understanding what the Commission or Ms Dabarera is hoping to establish would be of some assistance to me.


THE COMMISSIONER:  Mr Ward, it won't be a matter of you selling it because I'm going to make a decision to day about what it is your witnesses will be doing.


MR WARD:  Certainly.


THE COMMISSIONER:  What is happening today is I'm hearing from you and from Ms Dabarera about – can you hear me okay?  You seem to be struggling there.


MR WARD:  Yes, I'm having a bit of – if you could hold on I'll just try and find the volume.  Is that – would you mind speaking, Commissioner?


THE COMMISSIONER:  Yes.  Testing, one, two, three.


MR WARD:  Much better, thank you.  Thank you, that's much better.


THE COMMISSIONER:  All right.  So I can hear you a little better now too.  I'm canvassing with you because I'm balancing up how onerous the responsibility is - - -


MR WARD:  Sure.


THE COMMISSIONER:  Relevance of the matter.  Ultimately I'm going to make a decision on all of these matters today.  And so I'm canvassing with you any difficulties from your point of view on behalf of your member organisation with providing the annual financial statement through to 30 June of this year, not in the last five years, just this year.


MR WARD:  Sure.  I need to give some insight into our perspective or the challenges that we face.  These witnesses are intimidated, scared, they're lay people who haven't had a great deal of interaction with the Commission.




MR WARD:  We're basically going to lose the witnesses.




MR WARD:  Yes.


THE COMMISSIONER:  Be very wary of doing what you're doing at the moment which is giving evidence from the Bar table about some fairly significant allegations.  If you want to bring those matters before the Full Bench that's fine.  But I'm not going to sit here and listen to - - -


MR WARD:  I'm sorry, Commissioner.  I reject that any allegations have been put at all.


THE COMMISSIONER:  Sorry?  You just - - -


MR WARD:  I don't believe I've put any allegations, at all.


THE COMMISSIONER:  I thought you just told me that your witnesses are being intimidated.


MR WARD:  No, I said that they're lay people and that the idea of participation in the Commission intimidates them.




MR WARD:  I'm trying to give you some insight into the mindset of my witnesses and how difficult it will be for me to continue to coax them into giving evidence to the Commission with all of these submissions before them.


THE COMMISSIONER:  THE COMMISSIONER:  All right.  That's what you want to say about that?


MR WARD:  It is perhaps a misunderstanding, Commissioner, and I do apologise.  I perhaps should have been more clear.


THE COMMISSIONER:  No, no, no.  I apologise if I misunderstood what you said.  I thought that you were indicating that your witnesses were being intimidated.


MR WARD:  No, certainly not.


THE COMMISSIONER:  No.  Okay.  Well, if that's the position on that, having considered those submissions I determine that the annual financial statement for one year, that is the most current year, 30 June 2018, will be produced.  I am satisfied that that balances out the needs of relevance for the proceeding and not being unduly onerous on the respondent.  Let's turn to paragraph 6.  The Brailey statement refers to paragraphs 14 to 16 – sorry, paragraph 6 deals with references to paragraphs 14 and 16 of the Brailey statement and seeks documents evidencing the number of junior employees currently employed at the Marina Café, including the ages of the junior employees and whether each junior employee is employed on a full-time, part-time or casual basis, and documents evidencing the number of junior employees currently employed at Marina Café who deliver and/or serve alcohol.  What's the position in that, Mr Ward?


MR WARD:  Opposed.


THE COMMISSIONER:  Yes, for what reason?


MR WARD:  As outlined in the submissions I don't believe having this specific documentary evidence will assist the Commission in any way.  If the hope is to establish whether or not the witnesses employ junior employees that can be established by asking them under their sworn evidence, and again that credibility can be weighed by the Commission.


THE COMMISSIONER:  All right, Ms Dabarera, what are the reasons that this particular part is sought?


MS DABARERA:  Commissioner, this is directly relevant to the claim of RCI to reduce the payment to junior employees who serve alcohol.  So it's indicated in the statements that there is some employment of junior employees, and this gives details to that claim so the Commission can make an assessment about what the impact would be.


THE COMMISSIONER:  Anything in response on that, Mr Ward?


MR WARD:  My submissions respectfully stand.


THE COMMISSIONER:  Yes, all right.  I've considered that matter and I do think that what's provided in the schedule at paragraphs 6(a) and (b), the documents that are related to there.  In the schedule pertaining to the Brailey statement are relevant to the proceedings and for that reason they will be ordered to be produced.  Let's go to paragraph 7.  By reference to paragraph 17 and 18 of the Brailey statement documents evidencing all individual flexibility agreements made with employees at the Marina Café since January 2012 – I'm struggling to understand this particular request, Ms Dabarera.


MS DABARERA:  Commissioner, I'll explain why we believe it's relevant.  So the claim that RCI has in relation to breaks is to make breaks the subject of individual flexibility agreements.




MS DABARERA:  So we believe it's relevant to see what is the usage of IFA's in the workplace to see how useful that claim, if made, would be for the workplace.


THE COMMISSIONER:  But why can't you just ask it?  You can just ask witnesses whether they've got any IFA's in the workplace at the time.


MS DABARERA:  We could but this would - - -


THE COMMISSIONER:  And even if you did then that – I guess I'm struggling – they might have IFA's about something that's got nothing to do with rest breaks.  What relevance has that got to do with – why do I need them for the last five years?  Do you understand where I'm coming from?


MS DABARERA:  Yes, that's accepted, Commissioner.  We withdraw that.


THE COMMISSIONER:  You'll withdraw that, okay.




THE COMMISSIONER:  So (7) is withdrawn.  Look, similarly I've got an issue with rosters for employees.  It is more relevant period, it's just the last year.  But I'm not sure what the relevance is.  Can you help me with that?


MS DABARERA:  Yes, Commissioner.  We do press that.  With rosters, the rosters can given an understanding of the organisation of the workplace in look at shift lengths, when there are broken shifts, that's relevant to looking at when breaks would be given and what benefit there could be in making those breaks the subject of an individual flexibility agreement.  Because there are penalties in the award currently if breaks are not given at a certain point.  So we believe that's relevant in looking at what penalties might be able to be gone around by making breaks the subject of an individual flexibility agreement.


THE COMMISSIONER:  Are you looking for evidence as to whether or not the employer is actually rostering in accordance with the breaks in the award, is that what you're saying?


MS DABARERA:  No, Commissioner.  What we're saying is that the breaks clause in the current Restaurants Award has penalties if you don't give a break at a certain point.  So we want to look at what other shift lengths commonly in this workplace – as we understand it RCI's claim is to make breaks the subject of a flexibility agreement so that potentially an employer could avoid those penalties for not giving a break.  So we want to see what's the impact.


THE COMMISSIONER:  Yes, all right.  Mr Ward?


MR WARD:  I would submit that these witnesses have not come forward to participate in a survey or an audit.  If the intention is to extrapolate that kind of information then perhaps there are other avenues that should be explored. For the purpose of supporting the witness statements I don't see how this information would be relevant.  Moreover, it's not unusual for small businesses to not have access to those kinds of records.  Rosters aren't necessarily kept in perpetuity.




MR WARD:  I've seen many places where rosters are written on a scrap bit of paper and posted on a whiteboard for all to see.  Some of them are sent through a What's App chat messenger group.  It is just not a practical request that can be fulfilled.


THE COMMISSIONER:  All right.  So the roster are sought in relation to the IFA position pertaining to rest breaks?


MS DABARERA:  Yes, Commissioner.


THE COMMISSIONER:  I am still struggling with how a set of rosters if produced would inform the Commission in considering whether or not it is appropriate to include explicitly rest breaks as being capable of being dealt with through an IFA.


MS DABARERA:  Commissioner, yes, essentially our position is that it's going to given an indication of what the shift lengths are and when people would be normally getting breaks and normally entitled to breaks within those shift lengths, and it can give an indication of what an employee might be seeking to avoid by making an IFA in that circumstance.


THE COMMISSIONER:  Yes.  Look, I'm just not satisfied on that.  I just think that's a matter that you can simply work out from an analysis of the award provision.  You'd agree with that wouldn't you?


MS DABARERA:  Your Honour, we press that matter but we're in the Commission's hands.


THE COMMISSIONER:  All right.  I don't agreement that that's going to assist matters at this point.  So that will not be included.  Now that deals with Mr – sorry, Mr or Mrs Brailey, I'm not sure – yes, it's Frances, could be Mr or Ms, I'm not sure.  We'll go to Bunder's statement.  Presuming that the position is the same in respect to paragraphs 1 and 2, there's no issue with those, they'll remain.  And then in terms of (2) and (b), are similar to 6(a) and (b) in the Brailey statement but there might be something particularly different about this.  Mr Ward, any different position in respect to 3(a) and (b), or essentially the same arguments?


MR WARD:  No, my submissions were made generally.  However this might be an opportune moment to just clarify something quickly with part (b) relating to the junior employees.  What kind of documentary evidence could be produced to satisfy United Voice on the number of junior employees who deliver and serve alcohol?  I'm just trying to think off the top of my head in practice whether there or not there would be any documentary evidence that ticks off whether they serve or don't serve alcohol.  Would the possession of an RSA satisfy, or – or simply just a witness statement saying, yes, this person does serve alcohol, or no, this person doesn't?


THE COMMISSIONER:  No, they're after documents.


MR WARD:  I don't believe there are any in existence.


THE COMMISSIONER:  With respect, you're not Mr Bunder, so you know, you might be right, in which case that will be what's returned.


MR WARD:  Certainly.


THE COMMISSIONER:  That's what's returned.  If there's something then it will be returned, yes.


MR WARD:  Okay, so to be provided if something exists?


THE COMMISSIONER:  Well, of course.  You can't provide something that doesn't exist.


MR WARD:  That's the situation I'm hoping to circumvent.


THE COMMISSIONER:  All right.  Anything else you wanted to say about it, Mr Dabarera?


MS DABARERA:  Commissioner, we accept what was put in relation to the last schedule and that could be applied to this schedule unless there's other issues.


THE COMMISSIONER:  Yes, all right.  Well, the decision is that 3(a) and (b) in respect of the Bunder statement schedule will remain and will be part of the order.  Annual financial statements, I'm presuming that the arguments are the same as they were in respect of the Brailey statement?  No one wants to say anything more on that?


MR WARD:  Again, just an opportunity for clarification.  The financial statements, if I could clarify what specifically they will be addressing.


THE COMMISSIONER:  What did you have in mind in that regard, Ms Dabarera?


MS DABARERA:  Commissioner, we were looking at a profit and loss statement for the year, or something to that like.


THE COMMISSIONER:  All right.  What we'll do is, rather than say annual financial statement and annual profit and loss statement, and we'll do that for both Mr Brailey and Mr Bunder.


MS DABARERA:  Yes, Commissioner.




MR WARD:  Commissioner, I never like to assume but perhaps I could again clarify.  Will the financial details of these witnesses be subject to confidentiality?


THE COMMISSIONER:  You can make application for that.


MR WARD:  Sir, I would pursue that, thank you.


THE COMMISSIONER:  All right.  Perhaps I'll deal with that now, Ms Dabarera.  So you would be seeking non publication of the – obviously the other side needs to see it.


MR WARD:  Yes.


THE COMMISSIONER:  But you're simply wanting them to be not published?


MR WARD:  Yes, just purely in an attempt to remove as many barriers as possible for these witnesses coming forward.


THE COMMISSIONER:  No, I understand.  I understand.  Any objection to that, Ms Dabarera?


MS DABARERA:  We wouldn't object provided we can access the documents, but we wouldn't seek to publish or anything like that, yes.


THE COMMISSIONER:  All right.  I will wave the red flag for the usual rules and I'll accept that application for confidentiality orders in the sense that the profit and loss statements won't be published.


MR WARD:  Commissioner, that would be of great assistance.


THE COMMISSIONER:  All right.  I should say that will extend to, I guess, the financial – the aspects of it, because I'm not going to not publish the entire document.


MR WARD:  Yes.  Yes.


THE COMMISSIONER:  But to the extent that there is numbers in that that your members want to keep confidential, that will be done.  I take it that paragraph 5 is withdrawn?


MS DABARERA:  Yes, Commissioner.


THE COMMISSIONER:  And does anyone want to say anything different in respect to paragraph 6, to what they've put previously?


MS DABARERA:  No, Commissioner, we've put our submissions and you've made your ruling on that so - - -


THE COMMISSIONER:  All right, there will be no paragraph 6 in the schedule for Bunder.  And that leaves me with Mr Day.  Again, paragraph 1 and 2, straight forward.  Paragraph 3, again assuming that nothing different is to be put, paragraphs 3(a) and (b), will remain in the schedule.


Again, assuming nothing different to be put in terms of paragraph 4, that will be amended to profit and loss, confidentiality order in respect of numerical information, presuming that's pressed in respect of that, as well, Mr Ward - - -




THE COMMISSIONER:  And there's no objection to that from Ms Dabarera, and I agree with that so the same provisions will apply to that and it will be just for this financial year just ended, 30 June 2018.  And in respect of profit and loss statements paragraph 5 is withdrawn, I take it, Ms Dabarera?


MS DABARERA:  Yes, Commissioner.


THE COMMISSIONER:  And paragraph 6, I've ruled that I can't see the relevance.  That won't be included.  And with the withdrawal of the AHA two witnesses there are no more matters to deal with, I don't think.  Am I correct?


MS DABARERA:  That's correct, Commissioner.


THE COMMISSIONER:  All right.  Well, orders will be issued on the basis foreshadowed, and thank you for your attendance at the Fair Work Commission this morning.


MS DABARERA:  Thank you.


MR WARD:  Commissioner, just one further matter, sorry.




MR WARD:  Does the Commission require any formal correspondence from the AHA in relation to our withdrawal of witnesses or is it sufficient that we've done so in the course of these proceedings today?


THE COMMISSIONER:  I think, look, if it was just me sitting alone I would say no, but it's probably important and prudent that you write to the head of the Bench indicating that.  I'll obviously let him know but I think it would be sensible to do that.  That will be published on the website for all to see.


MR WARD:  May it please.


THE COMMISSIONER:  All right, thank you.


MS DABARERA:  Thank you.

ADJOURNED INDEFINITELY                                                        [10.11 AM]