PN1

THE VICE PRESIDENT: I will take the appearances, starting in Sydney. Mr Cooper, you appear for the Club Managers Association Australia.

PN2

MR P COOPER: That's correct, Vice President.

PN3

THE VICE PRESIDENT: Mr Bull, United Voice.

PN4

MR BULL: That's correct.

PN5

THE VICE PRESIDENT: Mr Bhatt, AiG.

PN6

MS R BHATT: Yes, Vice President.

PN7

THE VICE PRESIDENT: Mr Arndt, ADI New South Wales Business Chamber and the Aged Care Employers.

PN8

MR J ARNDT: Thank you, Vice President.

PN9

THE VICE PRESIDENT: Ms Light for the Pharmacy Guild.

PN10

MS LIGHT: May it please.

PN11

THE VICE PRESIDENT: And Mr McDonald and Ms Pike for Clubs Australia Industrial.

PN12

MR MCDONALD: If it please.

PN13

THE VICE PRESIDENT: And then - where has Melbourne gone? Can I take appearances in Melbourne now we've restored the link. Mr Bakri, you appear for the SDA and the AMWU.

PN14

MR BAKRI: That is so, Vice President.

PN15

THE VICE PRESIDENT: Mr Youngrave, you're also there for the SDA. Is that right?

PN16

MR YOUNGRAVE: Yes, that's right, your Honour.

PN17

THE VICE PRESIDENT: And is it Ms Dowling?

PN18

MS DOWLING: Yes, your Honour.

PN19

THE VICE PRESIDENT: Who do you appear for?

PN20

MS DOWLING: From SCB on behalf of the Australian Retailers Association.

PN21

MS L SVENDSEN: And Svendsen, Lee for the Health Services Union, your Honour.

PN22

THE VICE PRESIDENT: Thank you, Ms Svendsen. The purpose of today is to establish a program for the hearing commencing next week. Ms Bhatt, I notice you've sent round a draft program which initially referred to the witness order. Was the placement of the SDA witness on the second day an issue about availability, was it?

PN23

MS BHATT: That's my understanding. Based on discussions with the SDA I understand that their witness is only available on 25 July.

PN24

THE VICE PRESIDENT: All right. I will come back to that. Is that correct, Mr Bakri?

PN25

MR BAKRI: It is, Vice President. I can confirm that Ms Clark is only available on the Tuesday morning.

PN26

THE VICE PRESIDENT: All right. If I just turn to you, Mr Bull. In terms of the cross-examination of the five Clubs Australia Industrial witnesses, how long do you think that's going to take?

PN27

MR BULL: Look, I don't think it will - it has been helped by the material which has been produced. I had a look at the material in relation to the witnesses and I can say that I probably have, in relation to each, half an hour worth of questions. I think we could deal with those five witnesses on Monday. I will endeavour to shorten it as much as I can.

PN28

THE VICE PRESIDENT: All right.

PN29

MR BULL: If there's someone who I don't think is going to add anything, I will contact my friend and the Commission and say that the statement - I assume that the Clubs are still relying - wants to rely on all the statements that have been filed.

PN30

MR MCDONALD: Yes, we do, your Honour.

PN31

THE VICE PRESIDENT: Am I right in assuming that United Voice is the only party interested in Club Australia's industrial claim apart from Clubs Australia?

PN32

MR BULL: The Club Managers Association has some interest.

PN33

THE VICE PRESIDENT: Sorry. Yes, of course.

PN34

MR BULL: I don't know whether Mr ‑ ‑ ‑

PN35

THE VICE PRESIDENT: I haven't heard that you will be cross-examining anybody, Mr Cooper. Is that right?

PN36

MR COOPER: That's correct, yes.

PN37

THE VICE PRESIDENT: I'm inclined to deal with the claim sequentially. Is there any reason why we couldn't deal with the Clubs Australia Industrial claim from beginning to end on Monday and devote the whole of Monday to that?

PN38

MR BULL: I have no trouble with that.

PN39

THE VICE PRESIDENT: Does any other party have a difficulty with that proposition?

PN40

MS BHATT: Vice President, I'm trying to think through this. We may, and the reason for that is that it is my understanding that Clubs Australia Industrial is seeking the deletion of a provision from the relevant award which is in very similar terms to the provision that the SDA is seeking to have inserted in the relevant awards.

PN41

We anticipate that some of the issues that are raised by the relevant parties may be very similar. And, of course, we oppose the SDA's claim. It's for that reason that we thought that there may be merit in dealing with the matters together.

PN42

THE VICE PRESIDENT: The difficulty with that is it requires all the parties to be present for all three days.

PN43

MS BHATT: I understand that.

PN44

THE VICE PRESIDENT: But, of course, if any other party wants to be present on the Monday and makes an intervention during the day in respect of the other claims, it's up to them to do that if they want to.

PN45

MS BHATT: If the Commission pleases.

PN46

THE VICE PRESIDENT: Does any other party have a view one way or the other about that proposition? That is, that we should deal with the claims sequentially rather than in a rolled up fashion?

PN47

MR BAKRI: Vice President, if I could be heard on that matter. The SDA will want to make submissions in relation to the Clubs Australia application. We ‑ ‑ ‑

PN48

THE VICE PRESIDENT: Mr Bakri, if you can hold off. We've lost the video. Go ahead, Mr Bakri. You wanted to make some submissions about the Clubs Australia claim.

PN49

MR BAKRI: That's right. We don't intend to cross-examine any of Clubs Australia's witnesses. We considered whether to propose to the other parties that the applications be heard concurrently or sequentially. We came to the view that there was some merit in hearing them concurrently to avoid the repetition of particular submissions, but we don't have a firm view one way or the other and are really in the Commission's hands as to how to best proceed.

PN50

THE VICE PRESIDENT: All right. The alternative, if we hear them concurrently, that we will only be able to use approximately half a day on Monday, then we will have to adjourn to the Tuesday. Is that the position?

PN51

MR BULL: I think in terms of - I might take more than half a day to cross-examine the Clubs witnesses.

PN52

THE VICE PRESIDENT: Have the other parties seen Ms Bhatt's proposal, and do they wish to make any comment about that?

PN53

MS BHATT: Can I just raise one issue?

PN54

THE VICE PRESIDENT: Yes.

PN55

MS BHATT: We've had some discussions with the SDA regarding the evidence of Ms Clarke, who is the only SDA witness required for cross-examination. It is our position that the respondents to the SDA's claim should not be required to make their submissions until that evidence is heard, and so to that extent those respondent parties' submissions should be heard on the Tuesday.

PN56

But it is also my understanding that the SDA is content to make its first round of submissions, if I can call it that, on the Monday afternoon before evidence from Ms Clarke is heard. It might be that my learned friend can confirm that that is the position. And that's why the draft program proposes that the proponents commence making their submissions on the afternoon of 24 July.

PN57

THE VICE PRESIDENT: Who is cross-examining Ms Clarke?

PN58

MS BHATT: I understand that it's the Pharmacy Guild.

PN59

THE VICE PRESIDENT: How long will that cross-examination take?

PN60

MS BHATT: I suspect between 15 minutes and half an hour at most.

PN61

THE VICE PRESIDENT: Even if submissions didn't start until after Ms Clarke gave evidence, that would still leave most of two days to make submissions. Is there any party which thinks that we couldn't finish the submissions in the two days?

PN62

MR BULL: I would hope not. I think we could.

PN63

THE VICE PRESIDENT: Not whether we could, whether we will.

PN64

MR BULL: I think we will.

PN65

THE VICE PRESIDENT: Is there any doubt about that proposition?

PN66

MR BULL: I don't want to talk about this for three hours.

PN67

THE VICE PRESIDENT: Sorry?

PN68

MR BULL: I'm not going to be talking about this for three hours ‑ ‑ ‑

PN69

THE VICE PRESIDENT: What does that mean, two hours, 59 minutes, or ‑ ‑ ‑

PN70

MR BULL: ‑ ‑ ‑ I've had a lengthy written submission, so - sorry.

PN71

THE VICE PRESIDENT: How long do you think you will be?

PN72

MR BULL: Hopefully about 20, 30 minutes, depending on how the evidence pans out.

PN73

THE VICE PRESIDENT: Does any other party think there's any possibility that the submissions can't be completed on Tuesday and Wednesday?

PN74

MS BHATT: I don't envisage that that's the case, but the difficulty is that the relevant parties haven't necessarily provided an estimate of the time that they might require. And I, for my part, am not sure that I can provide an estimate on behalf of Ai Group. I don't anticipate we would be anything longer than an hour, but I don't think I can be more specific at this stage.

PN75

THE VICE PRESIDENT: All right. Does any other party think we won't finish the submissions in two days? Mr Bakri?

PN76

MR BAKRI: I can indicate that the SDA will be very brief with its submissions in support of its claim, in the vicinity of 15 or 20 minutes. The AMWU, who will be separately represented next week, they've indicated to me they will be about the same. The SDA, in relation to the Clubs Australia claim, won't be very long either; similarly, 15 to 20 minutes.

PN77

We anticipate that we will be a bit longer than that when making submissions in reply, but it's a bit difficult to estimate exactly how long that will be until the hear the submissions that are made next week. We are confident that this would be completed within three days; certainly completed within three days, and quite possibly within two.

PN78

THE VICE PRESIDENT: I'm not attracted to the idea of you starting your submissions before we've heard your witness, Mr Bakri, unless you persuade me otherwise.

PN79

MR BAKRI: We believe that we - - -

PN80

THE VICE PRESIDENT: Particularly if you're only going to take 15 minutes.

PN81

MR BAKRI: Yes. We believe that we would - - -

PN82

THE VICE PRESIDENT: All right. I think I've heard enough - - -

PN83

MR BAKRI: ‑ ‑ ‑ not be compromised in - my apologies.

PN84

THE VICE PRESIDENT: Yes, all right. Ms Svendsen, how long do you think you will be?

PN85

MS SVENDSEN: Vice President, I can't see that we will take any longer than 15 to 20 minutes in our opening submission. In fact, that's my intention. And in reply would be surprised if we would take a look longer than that. I do not see any difficulty in finishing within three days. I don't see our matter going very long as part of those three days. I would dearly love not to have to be here for all of the three days.

PN86

THE VICE PRESIDENT: All right. Unless anyone strongly objects, what I will propose is that on the Monday we will only hear the cross-examination of the five Clubs Australia Industrial witnesses; on the 25th, that's the Tuesday, we will hear Ms Clarke, the SDA witness; and then we will commence receiving the submissions of the rest of that day and the following day.

PN87

As to the order of submissions, is there any opposition to the order that's suggested in the AIG proposal? Mr McDonald?

PN88

MR MCDONALD: Your Honour, we have no particular difficulties with that. We would like to say some opening remarks, though, before our witnesses go in the box, which we would probably need around about 20 minutes to do so.

PN89

THE VICE PRESIDENT: I'm sure that will be time to that.

PN90

MS BHATT: Can I just raise one issue in light of the estimates that we've heard, which on one view sound like good news. I'm a little concerned that Ai Group will be met with various arguments that are put for the very first time against the submissions that we've put in writing when the unions make their final reply submissions. That raises an obvious issue of fairness from my perspective.

PN91

It means that we might not have an opportunity to respond, although I suppose, Your Honour, I appreciate that the answer to that might be that we make our application at the relevant time. But it would be our view that - - -

PN92

THE VICE PRESIDENT: You will have Tuesday night to think about those submissions.

PN93

MS BHATT: We might, depending on how the timing lands. It would be our view that the unions are obviously aware of the very comprehensive case that we have put in writing, and that to the extent that they seek to respond to those submissions, they should do so when they make their submissions on Tuesday. It shouldn't all be left until the Wednesday or whatever they make their final reply submissions.

PN94

THE VICE PRESIDENT: The parties have heard that message, but I think we can deal with that as it happens. Are there any other procedural issues?

PN95

MR BULL: I suppose this just - in relation to access for the material which is being produced, could I just get photocopy access. This material in the - - -

PN96

THE VICE PRESIDENT: Yes. You just need to make an appointment through my associate to seek access.

PN97

MR BULL: I think I sent an email, and is downstairs, so I will go and get it after this thing. There's one remaining witness which I've got reprint process servers out to look for, that's Mr Moore. That material may turn up on Monday, so in the spirit of reserving some spontaneity of the proceedings, I will deal with that can get that material on Monday. Thank you.

PN98

THE VICE PRESIDENT: All right. Mr McDonald.

PN99

MR MCDONALD: Your Honour, just one matter in relation to Mr Moore, he returned from leave and we were able to get in contact with him yesterday. He gave instructions for us to accept service, and we had written in that regard and will provide the material sought.

PN100

One other matter that has arisen from those discussions is that he has an important specialist appointment in Newcastle on Monday. He was wondering whether he would be able to give evidence by way of telephone. I did email your associate just before coming down here. I appreciate that's not an optimum situation, but all the other witnesses will be in attendance at the Commission.

PN101

THE VICE PRESIDENT: Mr Bull, do you oppose that course?

PN102

MR BULL: It's not ideal, but if - - -

PN103

THE VICE PRESIDENT: The only difficulty is if you want to raise some documents with him, Mr Bull.

PN104

MR BULL: What I was going to say is it's not ideal. If he has got a health problem, I don't want dragging down here unnecessarily. We've gone through this process of me engaging process servers and attending at the registry and photocopying material.

PN105

Now that Mr McDonald has accepted service on behalf of the witness that he proposes to call, perhaps if he could do me the courtesy of maybe emailing me a copy of the material that will be produced this afternoon or tomorrow and I can review it and see whether it's necessary to put Mr Moore to the inconvenience of being called as a witness for cross-examination.

PN106

I don't think - look, giving evidence by telephone should be a last resort, but if he has got to see his nephrologist or whatever in Newcastle, I'm not going to get in the way of that. But if I get the material in a timely manner I will review it and endeavour to, if I can, allow his statement to be tendered.

PN107

THE VICE PRESIDENT: Is it possible that he can attend the Commission in Newcastle?

PN108

MR MCDONALD: It would seem as though there may be some difficulty with that, but I will make those inquiries.

PN109

MR BULL: But if I could get the material in a relatively efficient manner, that will help me make a decision which will allow the best outcome for this witness.

PN110

MR MCDONALD: We will certainly provide that material to Mr Bull soon as we receive it.

PN111

THE VICE PRESIDENT: I'm certain the long-established cooperative relationship between Mr Bull and Mr McDonald will allow these issues to be sorted out.

PN112

MR BULL: And I must say one thing. I may have misjudged Mr McDonald, and I'm not going to indicate in what sense. There was some sort of technological issue in the sense that I don't know whether it's a saw them, but sometimes emails do not make it to United Voice.

PN113

I have, on the record, indicated that I've - I suppose, or in simulated that Mr McDonald may have been foxing in some sense. I don't know whether that's completely true, because the emails weren't actually getting to me, and that was verified by our IT person. It seems to have been fixed, though, and we are communicating. So an IT problem has caused us to start talking again.

PN114

THE VICE PRESIDENT: There's always the telephone.

PN115

MR BULL: I did ring him. I pick up the phone all the time.

PN116

THE VICE PRESIDENT: The Commission will, as soon as possible, publish a program consistent with what has been indicated today. I thank you for your attendance, and I will now adjourn the hearing.

ADJOURNED INDEFINITELY [2.19 PM]