PN1

JUSTICE ROSS: Good afternoon. Could I have the appearances, please.

PN2

MS K O'BRIEN: May it please the Commission, O'Brien, initial K, for the Australian Industry Group.

PN3

JUSTICE ROSS: Thanks, Ms O'Brien.

PN4

MR D BRUNO: May it please the Commission, my name is Mr Bruno, initial D, for the SDA.

PN5

JUSTICE ROSS: Thanks, Mr Bruno. Anybody else?

PN6

MR J CULLINAN: May it please the Commission, it's Cullinan, initial J, for RAFFWU.

PN7

JUSTICE ROSS: Mr Cullinan. And is that it? The purpose of the mention is to set this matter down for hearing. My understanding is that the parties believe that a one-day hearing is required. The preference is for Sydney, and everyone seems to be available on Monday, 16 July, except an Ai Group witness, who's surname is Flemington. Is that summary accurate?

PN8

MS O'BRIEN: Yes, your Honour.

PN9

MR BRUNO: Yes.

PN10

JUSTICE ROSS: Yes.

PN11

MR BRUNO: Your Honour, this is Mr Bruno speaking on behalf of the SDA.

PN12

JUSTICE ROSS: Yes.

PN13

MR BRUNO: I think one day is a fair indication of how long this proceeding might take. Having said that, much will depend on if Mr Cullinan is given leave or his client is given leave to appear, and the nature of cross-examination of the witnesses. I just note that there might legal argument before the Commission about that issue, which I might say now that the SDA doesn't take any position on, but the hearing would need to deal with that aspect, and if leave is granted ‑ ‑ ‑

PN14

JUSTICE ROSS: If leave is granted ‑ ‑ ‑

PN15

MR BRUNO: Yes.

PN16

JUSTICE ROSS: ‑ ‑ ‑then he would be able to cross-examine, but the Bench would be mindful that the purpose of – well, we wouldn't be permitting repetitive cross-examination.

PN17

MR BRUNO: Yes. And one issue that I foresee without obviously about the cross-examination is that my understanding is that the cross-examination which Mr Cullinan might undertake of witnesses might be different to the cross-examination that I'll be undertaking, because the SDA's position, your Honour, in relation to the four yearly review is that it's in agreement with Ai Group in relation to one part of the proposed variation, which is in relation to the part-time clause.

PN18

JUSTICE ROSS: Yes.

PN19

MR BRUNO: But in disagreement with the variation which is the facilitative variation to the penalty rates provision for hours between 5 am and 6 am. So my cross-examination in relation to three witnesses will be really limited to that and I'll confine that as much as I can to not waste any of the Commission's time.

PN20

JUSTICE ROSS: Yes.

PN21

MR BRUNO: But I suspect that Mr Cullinan's cross-examination will just be on different topics and might go to the part-time clause issue.

PN22

JUSTICE ROSS: Yes. Can I just – I don't have it in front of me. Ms O'Brien, how many witnesses is Ai Group calling?

PN23

MS O'BRIEN: None. They're all our witnesses. We were the only party to file any evidence, your Honour.

PN24

JUSTICE ROSS: No, no, I asked how many witnesses is Ai Group calling? Did you say none?

PN25

MS O'BRIEN: No, our witnesses have filed evidence. It's just our – there are five witnesses ‑ ‑ ‑

PN26

JUSTICE ROSS: No, no, sure.

PN27

MS O'BRIEN: ‑ ‑ ‑required for cross-examination.

PN28

JUSTICE ROSS: Yes.

PN29

MS O'BRIEN: So there are potentially five witnesses. Three of those witnesses are both common to the SDA and RAFFWU. Two of those witnesses.

PN30

JUSTICE ROSS: No, no, just back off a minute. When you say they're common to RAFFWU, Ai Group has filed five witness statements; is that right?

PN31

MS O'BRIEN: No, Ai Group has filed 10 witness statements.

PN32

JUSTICE ROSS: And it's been indicated that five are required for cross-examination?

PN33

MS O'BRIEN: Yes. And of those five ‑ ‑ ‑

PN34

JUSTICE ROSS: Of the five, when you say five are required, that's both an indication from the SDA and RAFFWU?

PN35

MS O'BRIEN: No, only three are for the SDA.

PN36

JUSTICE ROSS: No, no, I understand that. In total the five are required for cross-examination by either the SDA or RAFFWU; is that right? So, look, what I'm not faced with is you've got 10 witnesses, the SDA said they want to cross-examine five, and RAFFWU has given you no indication.

PN37

MS O'BRIEN: No. The SDA has indicated they require three.

PN38

JUSTICE ROSS: Yes.

PN39

MS O'BRIEN: RAFFWU has indicated that they require five.

PN40

JUSTICE ROSS: Yes.

PN41

MS O'BRIEN: One of those is Flemington, who's unavailable on 16 July.

PN42

JUSTICE ROSS: Yes. All right.

PN43

MS O'BRIEN: Bu there's also submissions from both Ai Group and RAFFWU before the Commission in relation to RAFFWU's participation.

PN44

JUSTICE ROSS: Yes.

PN45

MS O'BRIEN: Which we are waiting on a determination from today.

PN46

JUSTICE ROSS: No, no, that's fine. We'll get that to you in the next week or so.

PN47

MS O'BRIEN: Yes.

PN48

JUSTICE ROSS: So it's five witnesses, four of whom are available on the 16th; is that right?

PN49

MS O'BRIEN: Yes, your Honour.

PN50

JUSTICE ROSS: And is Mr Flemington available on Friday the 13th?

PN51

MS O'BRIEN: No, he's ‑ ‑ ‑

PN52

JUSTICE ROSS: When is he available?

PN53

MS O'BRIEN: He wouldn't be available until late in July because ‑ ‑ ‑

PN54

JUSTICE ROSS: Isn't he available early July?

PN55

MS O'BRIEN: He's in Italy from 4 July till 6 July.

PN56

JUSTICE ROSS: So he's available at the end of June?

PN57

MS O'BRIEN: Yes, I think he is available at the end of June.

PN58

JUSTICE ROSS: Okay. So what's the availability of everyone else for 29 June to deal with Mr Flemington?

PN59

MR BRUNO: Your Honour, I'm not available, but I do note that Mr Flemington is a witness that the SDA doesn't propose to cross-examine.

PN60

JUSTICE ROSS: Okay.

PN61

MR BRUNO: So I don't foresee any issue with that, but I just wanted to let your Honour know that I am unavailable. I'm overseas from 27 June.

PN62

JUSTICE ROSS: Yes. In any event the SDA can be there. But as you say, you don't wish to cross-examine Mr Flemington. All right. If you can advise him that I'll confirm with the Bench to get you a time, but we would deal with his evidence on the 29th. That assumes that we find in favour of RAFFWU's application to appear. If we don't then obviously we'll abandon the 29th as Mr Flemington won't be required.

PN63

MS O'BRIEN: Okay.

PN64

JUSTICE ROSS: Is there anything else?

PN65

MS O'BRIEN: No. Just to confirm, your Honour, the balance of the proceedings will be heard on 16 July.

PN66

JUSTICE ROSS: 16 July. That's right.

PN67

MS O'BRIEN: In Sydney?

PN68

JUSTICE ROSS: Yes. Could you make sure that you have all of your witnesses available. We'll start at 9.30, because estimates of cross-examination are usually unreliable, and I want to avoid a gap in the proceedings. Ms O'Brien, have you received any indication from the other parties as to how long they'll be with the four witnesses that are to be dealt with on 16 July?

PN69

MS O'BRIEN: No, your Honour.

PN70

JUSTICE ROSS: What can you tell me about that, Mr Bruno?

PN71

MR BRUNO: Your Honour, it's a qualified view in terms of the extent that I've had the opportunity to read into the matter, but out of the three witnesses that the SDA propose to call the cross-examination I expect would be short. I would hope to be able to have each of the witnesses resolved within half an hour. I'm not seeking to cross-examine on any topic other than the reasons for the facilitative provision, and the extent that witnesses talk to that issue in their statements.

PN72

JUSTICE ROSS: Mr Cullinan?

PN73

MR CULLINAN: Yes. So I think before in the previous hearing before Lee C we indicated the same. That we expected it would be about a half an hour for the witnesses that we cross-examine.

PN74

JUSTICE ROSS: Nothing further?

PN75

MS O'BRIEN: No, your Honour.

PN76

MR BRUNO: No.

PN77

JUSTICE ROSS: I'll issue a hearing notice confirming what we've discussed once I've had a chance to chat with the Bench about the 29th. And we'll endeavour to get the decision in relation to RAFFWU's involvement out to you either late this week or next week. Thanks very much. Nothing further?

PN78

MR BRUNO: No.

PN79

MS O'BRIEN: No, your Honour.

PN80

MR CULLINAN: No.

PN81

JUSTICE ROSS: Thank you.

PN82

MS O'BRIEN: Thank you.

ADJOURNED TO A DATE TO BE FIXED [1.10 PM]